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Smith v. Popish

United States District Court, N.D. West Virginia, Wheeling

October 2, 2017

RAYMOND SMITH, Plaintiff,
v.
ERIC POPISH and CITY OF WEIRTON, Defendants.

          MEMORANDUM ORDER AND OPINION GRANTING IN PART AND DENYING IN PART CITY OF WEIRTON'S MOTION TO DISMISS

          JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE.

         On this day, the above-styled action came before this Court for consideration of the City of Weirton's Motion to Dismiss [Doc. 4], filed August 14, 2017. The plaintiff did not respond. For the reasons stated herein, this Court GRANTS IN PART AND DENIES IN PART the City of Weirton's Motion to Dismiss [Doc. 4].

         BACKGROUND

         Plaintiff, Raymond Smith, filed a Complaint in the Circuit Court of Hancock County, West Virginia, on July 18, 2017 [Doc. 1-3]. The matter arises from plaintiffs contention that defendant, Eric Popish, a police officer with the City of Weirton Police Department, utilized excessive force in his interaction with plaintiff on January 10, 2016.

         Specifically, plaintiff claims that on January 10, 2016, Officer Popish knocked on the door of plaintiffs home [Id. at ¶¶ 6-8]. Plaintiff claims Officer Popish "began berating [him] with profanity to retrieve 'his' dog, which was running loose" [Id. at ¶ 7]. Despite telling Officer Popish several times that the dog did not belong to him, Officer Popish allegedly "continued to accuse Plaintiff and continued to escalate the situation" [Id. at ¶ 9]. Plaintiff then claims that Officer Popish accused plaintiff of "touching" him, followed by Officer Popish tackling plaintiff, beating him, handcuffing him, and taking him into custody [Id. at ¶ 10]. Plaintiffs daughter was also taken with plaintiff to the City of Weirton Police Department [Id. at ¶ 11].

         At the police station, plaintiff claims he was seated on a bench and his handcuffs were removed [Id. at ¶ 12]. Plaintiff then asserts that his daughter began shouting that Officer Popish was hurting her and asked plaintiff to help, so plaintiff began reaching toward her [Id. at ¶ 14]. At that point, plaintiff claims Officer Popish "pulled him off the bench, slammed him to the floor and tazed him four (4) times, although Plaintiff was not resisting" [Id.].

         Plaintiff asserts he was then charged with "Battery on a Police Officer, Obstructing an Officer, Disorderly Conduct, Dog Running at Large and Destruction of Property greater than $500" [Id. at ¶ 15]. Plaintiff claims the "Destruction of Property charge was because Defendant, Eric Popish, falsely alleged that Plaintiff had damaged his uniform shirt. Pictures were taken by a fellow officer with his shirt still on. The pictures show no damage whatsoever" [Id. at ¶ 16].

         Plaintiff also asserts that "[t]he Defendant, Eric Popish, has prior claims against him for excessive force and was the subject of a federal investigation for such acts" [Id. at ¶ 17]. Finally, plaintiff alleges that "[a]s a result of... Eric Popish['s] actions, Plaintiff.. . sustained injuries to his face, neck, back and torso, suffered several seizures for six (6) months after the incident and incurred in excess of Five Thousand ($5, 000) Dollars in medical expense[s]" [Id. at ¶ 18].

         Accordingly, the Complaint alleges four counts against both defendants, Eric Popish and the City of Weirton, which include (I) Negligence, (II) Negligence, (III) Excessive Force, and (IV) "Civil Rights Violations" [Id. at ¶¶ 19-33]. With regard to defendant City of Weirton, to which the instant Motion pertains, Count I alleges that the City was "negligent in not setting and enforcing regulations to require all persons arrested by its police to be secured while in custody at all time[s]" [Id. at ¶ 21]. Count II alleges that the City "was aware of... Eric Popish['s] past use of excessive force, but allowed him to continue as a police officer without providing proper supervision or re-training" [Id. at ¶ 24]. Count III alleges the same as Count II, and further states that plaintiff "is entitled to punitive (exemplary) damages from the Defendants" [Id. at ¶¶ 27-28]. Finally, Count IV alleges civil rights violations for malicious prosecution [Id. at ¶¶ 30-31].

         The action was removed to the United States District Court for the Northern District of West Virginia based on federal question jurisdiction on August 14, 2017 [Doc. 1], Defendant, City of Weirton, also filed the instant Motion to Dismiss on August 14, 2017 [Doc. 4]. The Motion contends that the City of Weirton is "immune from any claim involving Officer Popish's alleged failure to secure plaintiff' (Count I) under West Virginia Code Section 29-12A-5(a)(4) [Doc. 5 at 4-5]. The Motion further contends that the City of Weirton "cannot be liable in connection with any allegations of excessive force committed by Defendant Eric Popish" (Counts II-III), again citing West Virginia Code Section 29-12A-5(a)(4) [Id. at 5-7]. Additionally, the Motion contends the City of Weirton "is entitled to immunity in connection with the negligence claims that are described in Plaintiffs Complaint" (Counts I-II), once again relying on West Virginia Code Section 29-12A-5(a)(4) [Id. at 7-9]. The Motion further contends that "Section 1983 claims are not viable against cities" and therefore Count IV should "be dismissed as a matter of law" [Id. at 2-3]. Additionally, the City argues "Plaintiffs Malicious Prosecution claims should be dismissed as a matter of law" (Count IV), relying on West Virginia Code Section 29-12A-5(A)(2). Finally, the City argues it is "immune from any claim requesting punitive damages" pursuant to West Virginia Code Section 29-12A-7(a) [Id. at 9-10].

         LEGAL STANDARD

         In reviewing the sufficiency of a complaint under Federal Rule of Civil Procedure 12(b)(6), a district court must accept the factual allegations in the complaint as true. Zak v. Chelsea, 780 F.3d 597, 601 (4th Cir. 2015) (citing Matrix Capital Mgmt. Fund, LP v. Bearing Point, Inc., 576 F.3d 172, 176 (4th Cir. 2009)). While a complaint does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Main, 478 U.S. 265, 286 (1986).

         A complaint must be dismissed if it does not allege "'enough facts to state a claim to relief that is plausible on its face.' Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007) (emphasis added)." Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This requires "more than a sheer possibility that a defendant has acted unlawfully." Id. However, when reviewing the sufficiency of a complaint, a court may also consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A court may consider documents attached to a motion to dismiss when they are "integral to and explicitly relied on in the complaint and ... the plaintiffs do not challenge [their] authenticity." American Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).

         "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). "But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6), " so long as "all facts necessary to the affirmative defense 'clearly appear[] on the face of the complaint.'" Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)).

         DISCUSSION

         As noted, Count I alleges that the City of Weirton was "negligent in not setting and enforcing regulations to require all persons arrested by its police to be secured while in custody at all time[s]" [Doc. 1-3 at ¶ 21]. Count II alleges that the City "was aware of... Eric Popish['s] past use of excessive force, but allowed him to continue as a police officer without providing proper supervision or re-training" [Id. at ¶ 24]. Count III alleges the same as Count II, and further states that plaintiff "is entitled to punitive (exemplary) damages from the Defendants" [Id. at ¶¶ 27-28]. Finally, Count IV alleges civil rights violations for malicious prosecution [Id. ...


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