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Reed v. Sell

United States District Court, N.D. West Virginia

October 13, 2017

MARLENE K. REED, Plaintiff,
RICKEY SELL, SR.; MASTERFUL DESIGNS, LLC; and BRANDON CLYDE, individually and in his official capacity; Defendants.



         The plaintiff, Marlene K. Reed (“Reed”), filed a second amended complaint on November 21, 2016, in which she alleged that the defendants had violated her constitutional rights and also were liable for fraud and conversion (Dkt. No. 35). Now pending is the motion to dismiss that complaint filed by the defendants, Rickey Sell Sr. (“Sell”) and Masterful Designs, LLC (“Masterful Designs”) (Dkt. No. 48). Also pending is the motion for summary judgment filed by the defendant, Town of Barrackville Police Officer Brandon Clyde (“Officer Clyde”) (Dkt. No. 50). For the reasons that follow, the Court GRANTS in part and DENIES in part the motions.

         I. BACKGROUND

         A. Factual Background

         The Court's recitation of the facts is taken from Reed's second amended complaint (Dkt. No. 35), which the Court construes in the light most favorable to Reed. See De'Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013). In 2008, Reed purchased a home in Barrackville, West Virginia, with financing secured from First Exchange Bank. At the time she purchased the home, Reed worked in the food service industry. After suffering a stroke in July 2014, she ultimately was forced to stop working in May 2015. While Reed was hospitalized, her home was referred to foreclosure without her knowledge. On June 26, 2015, the home was auctioned to Masterful Designs at the Marion County Courthouse for the sum of $62, 500.

         In July 2015, Sell, the owner and operator of Masterful Designs, set about taking possession of Reed's home. On July 9, 2015, without filing an unlawful detainer action or giving Reed notice of the transfer of property, he went to her home “and told her he had closed on her house that day, and that she had to vacate the premises.” He further advised Reed that she had “to vacate the property within a few days” because his crew planned to begin working on the house four days later.

         The next day, July 10, 2015, Sell returned with several men, who began going through Reed's house and outbuilding. As Reed and her family and friends were packing her belongings, Sell continually harassed her to work faster and “told her that if she was not out by the following day, he would have her arrested.”[1]Later that evening, Officer Clyde arrived at the home and, after conversing with Sell, told Reed that he would arrest her if she was not off the property by the next day. This led Reed to believe that Sell and Masterful Designs were acting lawfully, and that she would be subject to arrest if she did not comply with Sell's demands. In addition, Sell changed the locks on Reed's house despite telling her that she would have until the next day to vacate the property.

         Finally, on July 11, 2015, Sell returned to the house as Reed frantically attempted to pack the remainder of her belongings. Sell made this task more difficult by blocking the driveway and refusing to permit Reed to remove a portable air conditioner she recently had purchased. Thereafter, Sell made a phone call, and Officer Clyde again arrived at the property to inform Reed that he would arrest her if she was not gone by that night.

         Believing Officer Clyde's threat of arrest to be genuine, Reed left the house that evening, and, in the process, abandoned a significant amount of personal property, including a love seat, four televisions, dishes, clothing, two lawn mowers, and many items of personal value. Because Reed was staying with her next door neighbor, she was able to observe Sell and his wife search through her personal property, “discarding some items and loading others into their car.” She estimates that the value of this property exceeds $12, 000. Reed has remained homeless since being forced from her house, and has had to store her belongings at a cost of $160 per month.

         B. Procedural Background

         On July 14, 2016, Reed filed a complaint against Sell, Masterful Designs, the Town of Barrackville, Police Officer William Piggot (“Officer Piggot”), and Police Chief Chuck Wilson (“Chief Wilson”), alleging violations of her federal constitutional rights under 42 U.S.C. § 1983, violations of her civil rights under the West Virginia Constitution, and state tort claims of fraud and conversion (Dkt. No. 1).

         At a scheduling conference held on October 25, 2016, the parties expressed doubt about whether the defendant Officer Piggot actually had been at Reed's home during the dates in question. Perceiving that the presence and involvement of state actors presented a threshold question regarding its federal question jurisdiction, which turns on the viability of Reed's claims pursuant to § 1983, the Court ordered a period of limited discovery on the jurisdictional issue and extended the schedule for Reed's responses to the defendants' then-pending motions to dismiss (Dkt. No. 26).

         Thereafter, on November 21, 2016, with leave of Court, Reed filed a second amended complaint, substituting Officer Clyde for Officer Piggot (Dkt. No. 35). Her claims are as follows: 1) violation of civil rights under § 1983 and the Fourth Amendment, 2) violation of civil rights under § 1983 and the Fourteenth Amendment, 3) violation of civil rights guaranteed by Article III, § 6, of the West Virginia Constitution, 4) violation of civil rights guaranteed by Article III, §§ 10 and 17, of the West Virginia Constitution, 5) fraud, and 6) conversion. Id. at 6-9. The Town of Barrackville, Officer Clyde, and Chief Wilson all answered the second amended complaint on December 23, 2016 (Dkt. No. 41), but the parties later stipulated to the dismissal of the Town of Barrackville and Chief Wilson on February 9, 2017 (Dkt. No. 44).

         On February 10, 2017, in light of the filing of Reed's second amended complaint, the Court denied the pending motions to dismiss as moot, and directed the defendants to file any further motions to dismiss (Dkt. No. 45). On March 3, 2017, Sell and Masterful Designs moved to dismiss the second amended complaint for failure to state a claim (Dkt. No. 48), and Officer Clyde moved for summary judgment, claiming statutory immunity regarding Reed's state law claims, and that the second amended complaint failed to state a claim against him (Dkt. No. 50).[2] Both motions are fully briefed and ripe for review.


         Fed. R. Civ. P. 12(b)(6) allows a defendant to move for dismissal on the grounds that a complaint does not “state a claim upon which relief can be granted.” When reviewing the sufficiency of a complaint, a district court “must accept as true all of the factual allegations contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). “While a complaint . . . does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] 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) (internal citation omitted). A court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

         In order to be sufficient, “a complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.'” Anderson, 508 F.3d at 188 n.7 (quoting Twombly, 550 U.S. at 547). “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). A motion to dismiss “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).


         A. Federal Constitutional Claims

         Reed alleges that the defendants deprived her of the right to be free from unreasonable seizures and the right to receive procedural due process (Dkt. No. 35 at 6-7). Because these claims present a federal question and form the only possible basis for the Court's subject matter jurisdiction, the threshold issue is whether Reed's second amended complaint contains allegations sufficient to state a claim under 42 U.S.C. § 1983 for the violation of her Fourth or Fourteenth Amendment rights.

         Section 1983 provides a cause of action against persons who, under color of state law, deprive a citizen of “rights, privileges, or immunities secured by the Constitution or laws.” “Section 1983 ‘is not itself a source of substantive rights, ' but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To state a claim for relief under § 1983, Reed must allege both 1) that she was “deprived of a right secured by the Constitution or laws of the United States, ” and 2) “that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

         Because § 1983 imposes liability only for acts taken “under color of state law, ” Reed's allegations against Sell and Masterful Designs - both private parties - inject an inherent tension into her federal claims. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 930 (1982). The questions raised by these allegations include whether Reed has stated a claim for deprivation of rights secured by the Fourth and Fourteenth Amendments, and if so, whether the defendants allegedly were acting under color of state law at the relevant time.

         1. Deprivation of Constitutional Rights

         a. Fourth Amendment Rights

         Count One of Reed's complaint alleges that the defendants violated her rights under the Fourth Amendment by unlawfully seizing her real and personal property (Dkt. No. 35 at 6).[3] Officer Clyde argues that no Fourth Amendment violation occurred in this case because he never handled Reed's “personal property or seized any item of property from her house” (Dkt. No. 51 at 17).[4]

         The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. amend. IV. Whether Reed has alleged a violation of her Fourth Amendment rights thus depends on 1) whether her property was seized, and, if so, 2) whether that seizure was unreasonable. See Altman v. City of High Point, N.C. , 330 F.3d 194, 200-05 (4th Cir. 2003).

         First, all personal property constitutes an “effect” within the meaning of the Fourth Amendment. See id. at 203. “A ‘seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property.” United States v. Brown, 701 F.3d 120, 125 n.7 (4th Cir. 2012) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Permanent deprivation of one's personal property qualifies as meaningful interference with a possessory interest. Altman, 330 F.3d at 205 (reasoning that killing a dog is a seizure because it is the permanent deprivation of one's effect).[5]

         Here, Reed alleges that, on at least two occasions, Officer Clyde came to her home and threatened to arrest her if she did not vacate the property by July 11, 2015 (Dkt. No. 35 at 4-5). Due to these threats, Reed believed that Sell's actions were lawful and she would be subject to arrest if she did not follow Sell and Officer Clyde's directions. Id. Thus, when Reed left her home for the final time on July 11, 2015, she abandoned numerous items of personal property that she did not have time to remove. Id. at 5.

         Taking these allegations in the light most favorable to Reed, De'Lonta, 708 F.3d at 524, she clearly contends that the defendants permanently deprived her of valuable personal property by forcing her to abandon it through the threat of arrest. Reed thus has alleged the “seizure” of her “effects” within the meaning of the Fourth Amendment. See Altman, 330 F.3d at 205.

         The second question is whether the alleged seizure was reasonable, as the Fourth Amendment only proscribes “unreasonable searches and seizures, ” and “[t]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.'” Kentucky v. King, 563 U.S. 452, 459 (2011) (alteration in original) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). “A seizure of personal property conducted without a warrant is presumptively unreasonable.” Altman, 330 F.3d at 205 (citing United States v. Place, 462 U.S. 696, 701 (1983)).

         To determine whether such a seizure is objectively reasonable, however, “a court must ‘balance the nature and quality of the intrusion on the individual's Fourth Amendment interest against the importance of the governmental interests alleged to justify the intrusion.” Id. (quoting Place, 462 U.S. at 703). For instance, if “officers [are] acting pursuant to a court order . . . a showing of unreasonableness . . . would be a laborious task.” Soldal, 506 U.S. at 71.

         Here, the reasonableness balancing test weighs heavily in favor of Reed. On the one hand, Reed allegedly has suffered the permanent deprivation of at least $12, 000 of personal property, including a love seat, four televisions, dishes, clothing, two lawn mowers, and many items of personal value. This is undoubtedly a significant intrusion on her right to be free from such seizures under the Fourth Amendment. On the other hand, the defendants have not asserted any important governmental ...

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