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Johnson v. McDowell County Sheriff Dep't

United States District Court, S.D. West Virginia, Bluefield

April 3, 2018

JAMES A. JOHNSON Plaintiff,
v.
MCDOWELL COUNTY SHERIFF DEP'T, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David A. Faber, Senior United States District Judge

         This action arises from ongoing bad blood between two McDowell County first responders: volunteer firefighter, James Johnson and deputy sheriff, Ron Blevins. The conflict peaked when Johnson was tasered in the back by Blevins. Johnson sued Blevins and McDowell County Sheriff's Department (“MCSD”). After defendants filed a motion to dismiss, plaintiff responded by amending his complaint. For the reasons that follow, the court GRANTS in part and DENIES in part plaintiff's motion to file his Revised Amended Complaint.[1] ECF No. 16-1.

         I. TWO YEARS OF BAD BLOOD

         On January 8, 2015, James Johnson, Assistant Chief of the Berwind Volunteer Fire Department, was dispatched as a first responder to a motor vehicle accident. Complaint at ¶ 14. Ron Blevins, McDowell County Deputy Sheriff, was called to the scene of the accident as an investigating officer. Id. at ¶¶ 15-17. Finding Blevins' search personally unsatisfactory, Johnson searched the vehicle and found a quantity of Xanax and Oxycontin. Id. at ¶¶ 18-20. Johnson contacted Blevins and requested that he return and seize the evidence. Id. at ¶ 21. Blevins responded that he would recover the evidence the following day. Id. at ¶ 22. The next day, Johnson called the MCSD twice to ensure the evidence was recovered. Id. at ¶ 23. Later, Johnson prepared and filed an “unfavorable report” regarding Blevins' conduct. Id. at ¶ 24. On February 6, 2015, Blevins came with another police officer to Johnson's home and harassed the plaintiff, eventually leading Johnson to dial 9-1-1.[2] Id. at ¶¶ 25-28.

         On April 7, 2016, Johnson was again dispatched as a first responder to a motor vehicle accident. Id. at ¶ 30. Johnson assisted with directing traffic. Id. at ¶ 31. Blevins “arrived on the scene speeding, with no lights or siren, and drive (sic) through the barricades set up by [Johnson].” Id. at ¶ 32. These actions resulted in an argument between Johnson and Blevins. Id. at ¶ 34. After the verbal altercation, Blevins tasered Johnson in the back, resulting in his inability to stand or walk. Id. at ¶¶ 35-36.

         Blevins obtained an arrest warrant for Johnson, charging him with “Obstructing an Officer, Fleeing the Scene, and Disorderly Conduct” arising from the April 7, 2016 incident. Id. at ¶ 38. Johnson pled guilty to one count of Disorderly Conduct arising from the same incident. Id. at ¶ 39. Nevertheless, Johnson alleges that his actions never exceeded his duty as a public safety officer. Id. at ¶¶ 39-40.

         II. PROCEDURAL HISTORY

         Johnson sued Blevins and MCSD on November 28, 2017. See Complaint. Defendants answered the Complaint and simultaneously filed a motion to dismiss MCSD and partial motion to dismiss Ron Blevins on December 19, 2017. See ECF No. 8. Instead of responding, Johnson filed the instant motion for leave to amend his complaint. See ECF No. 11. Defendants opposed the amendment. See ECF No. 15. Johnson's Reply brief attached a Revised Amended Complaint, (see ECF Nos. 16, 16-1), which defendants opposed in a Surreply. ECF No. 17. Johnson filed a motion to strike defendants' Surreply, noting defendants' failure to seek leave of the court before filing the Surreply. ECF No. 18. Defendants then filed a motion for leave to file Surreply, ECF No. 19, which Johnson also opposed. ECF No. 21.[3]

         III. SUBSTANCE OF THE AMENDMENT

         Comparing the substantive revisions between the Complaint and Revised Amended Complaint illustrates the following changes:

- Constitutional Violations (Counts 1 and 2) now does not allege defendants' liability under the Eighth and Fourteenth Amendments of the United States Constitution. See id. at ¶¶ 2, 45, 55.
- Battery Claim now omits MCSD. Id., Count III.
- Strict Liability (Agency), Intentional Infliction of Emotional Distress (IIED), and Negligent Hiring, Training, and Supervision, and Punitive Damages claims added. See id. at pp. 10-13, Counts IV-VIII.
- Negligence Claim removed. See id.
- Revised Amendment Complaint alleges Blevins is individually liable for acts outside the scope of his employment. See id. at ¶¶ 5, 44.

         IV. ...


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