United States District Court, S.D. West Virginia, Bluefield
JAMES A. JOHNSON Plaintiff,
MCDOWELL COUNTY SHERIFF DEP'T, et al., Defendants.
MEMORANDUM OPINION AND ORDER
A. Faber, Senior United States District Judge
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. ECF No. 16-1.
TWO YEARS OF BAD BLOOD
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. Id. at ¶¶ 25-28.
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.
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.
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.
SUBSTANCE OF THE AMENDMENT
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.