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Jones v. White

United States District Court, N.D. West Virginia

June 5, 2018

DAVID JONES, Plaintiff,
v.
MICHAEL S. WHITE, II, individually and in his capacity as a representative of the West Virginia State Police, COLONEL J.L. CAHILL, in his official capacity as Superintendent of the West Virginia State Police, JAMES W. DAVIS, JR., ESQ., individually and in his official capacity as a representative of the Hancock County Prosecutor's Office JACK WOOD, ESQ., individually and in his official capacity as a representative of the Hancock County Prosecutor's Office and HANCOCK COUNTY, WEST VIRGINIA, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         I. Background

         The plaintiff, David Jones, filed a complaint in this Court, in which he asserts five counts under 42 U.S.C. § 1983 against the five defendants. The complaint arises out of posts on the plaintiff's Facebook page that complain about local law enforcement officers and were viewed as an online threat made to multiple public officials. Defendant Michael S. White, II (“Trooper White”) learned of a Facebook post about several public officials from another law enforcement officer, and then went to the plaintiff's house to ask him about the post. The plaintiff admitted that he had made the post, and Trooper White then arrested the plaintiff and charged him with one felony count of making terroristic threats. The initial charge was based on a Facebook post dated June 24, 2015. On the date of the preliminary hearing on the initial charge, the State voluntarily dismissed the initial charge and instead charged the plaintiff with two felony counts of retaliation against public officials.

         The two new charges were based on two of the plaintiff's Facebook posts from the previous year. Trooper White obtained arrest warrants from the magistrate on the two new charges. Defendants James W. Davis, Jr., Esq. (“Mr. Davis”) and Jack Wood, Esq. (“Mr. Wood”), the prosecutor and assistant prosecutor, issued a subpoena to have the plaintiff's nephew, an attorney, testify at the preliminary hearing on the two new charges. The plaintiff's nephew had visited the plaintiff in jail along with two other individuals. At the preliminary hearing on the two new charges, the magistrate found that there was probable cause to believe the plaintiff had committed both offenses and bound the case over to the Circuit Court of Hancock County, West Virginia. The plaintiff alleges that his bail was set at $200, 000.00 for the initial charge and $50, 000.00 for the two new charges. All charges against the plaintiff were later dismissed.

         Count I of the complaint alleges violations of the First Amendment of the United States Constitution and Article III, § 7 of the West Virginia Constitution; Count II alleges violations of the Fourth Amendment of the United States Constitution and Article III, § 6 of the West Virginia Constitution; Count III alleges violations of the Sixth Amendment to the United States Constitution; Count IV alleges vindictive prosecution in violation of the Fourteenth Amendment of the United States Constitution; and Count V alleges excessive bail in violation of the Eighth Amendment to the United States Constitution and Article III, § 5 of the West Virginia Constitution. For relief, the plaintiff seeks a declaratory judgment that the defendants' alleged actions were unlawful and violated his rights, an injunction to prohibit the defendants from subjecting the plaintiff to the conduct alleged in the complaint in the future, compensatory damages, and attorneys' fees and costs.

         Defendants Mr. Davis, Mr. Wood, and Hancock County, West Virginia (“Hancock County”) have filed a motion to dismiss all counts against them in this matter. Defendants Trooper White and Colonel J. L. Cahill (“Colonel Cahill”) (collectively, the “State Police defendants”) have also filed a motion to dismiss with prejudice all claims against them. Both of the motions to dismiss are fully briefed and ripe for review. For the following reasons, both motions to dismiss must be granted.

         II. Applicable Law

         In assessing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must accept all well-pled facts contained in the complaint as true. Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009). However, “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6) purposes.” Id. (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). This Court also declines to consider “unwarranted inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).

         The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or the merits of the case. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed. 1998). The Rule 12(b)(6) motion also must be distinguished from a motion for summary judgment under Federal Rule of Civil Procedure 56, which goes to the merits of the claim and is designed to test whether there is a genuine issue of material fact. Id. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to the party making the claim and essentially the court's inquiry is directed to whether the allegations constitute a statement of a claim under Federal Rule of Civil Procedure 8(a). Id. § 1357.

         A complaint should be dismissed “if it does not allege ‘enough facts to state a claim to relief that is plausible on is face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Facial plausibility is established once the factual content of a complaint ‘allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Nemet Chevrolet, 591 F.3d at 256 (quoting Iqbal, 129 S.Ct. at 1949). Detailed factual allegations are not required, but the facts alleged must be sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

         III. Discussion

         A. Mr. Davis, Mr. Wood, and Hancock County's Motion to Dismiss

         This motion to dismiss first argues that the plaintiff has failed to plead any cognizable claim against Hancock County, and that the claims against Hancock County should be dismissed as a matter of law because the plaintiff has not satisfied the federal pleading standard. Next, the motion argues that all claims against Mr. Davis and Mr. Wood, who are and were county prosecutors at all relevant times, must be dismissed due to absolute prosecutorial immunity. The motion then contends that the defendants are also entitled to qualified immunity as to all claims. Lastly, the motion asserts that monetary damages are not available in regard to the West Virginia state constitutional claims, and that those claims are thus moot.

         The plaintiff filed a response in opposition to the motion to dismiss. As a preliminary matter, the plaintiff withdraws his Sixth and Eighth Amendment claims against the prosecutor defendants. The plaintiff then argues that his Facebook posts were protected speech because the posts were nearly a year old, made in the context of political speech, and do not satisfy the test for incitement to imminent lawless action under Brandenburg v. Ohio, 395 U.S. 444 (1969), or any criminal statute. The plaintiff contends that, despite clearly established law protecting the plaintiff's speech, the prosecutors conspired to cause him to be kept in custody with no charges pending and advised Trooper White of the additional protected speech in other Facebook posts.

         Specifically, the plaintiff contends that the motion to dismiss should be denied because (1) the complaint establishes the required elements of a § 1983 claim for retaliation in violation of the First Amendment; (2) the complaint states § 1983 claims for false arrest and malicious prosecution in violation of the Fourth Amendment because neither Facebook post constitutes probable cause for the commission of a crime; (3) the prosecutors are not entitled to prosecutorial immunity because of well-established law that prosecutors are not entitled to absolute immunity for investigations and other non-prosecutorial functions; (4) the prosecutors are not entitled to qualified immunity because there was no evidence that the Facebook posts met the requirements of any criminal statute, the plaintiff's First Amendment rights are clearly established, and the magistrate's issuance of a warrant did not insulate them; (5) Hancock County is a proper defendant in this action because the prosecutors' action were taken in accordance with the practices, policies, and procedures of Hancock County; (6) the complaint states a claim that Hancock County violated the plaintiff's Sixth Amendment rights by attempting to interfere with his right to the counsel of his choice; (7) the complaint states a claim that Hancock County violated his Eighth Amendment rights by setting his bail at an unconstitutionally high amount as part of a pattern, practice, or custom of Hancock County; (8) the complaint adequately states a claim for injunctive relief against Hancock County; and (9) the complaint adequately alleges violations of the West Virginia Constitution.

         The defendants filed a reply to the plaintiff's response in opposition. In reply, the defendants argue that (1) the plaintiff's First Amendment claims must be dismissed because the defendants are immune from any claim based upon “giving legal advice” or their alleged involvement in any investigation, and they cannot be held liable in connection with allegations that the plaintiff was inappropriately held in jail; (2) the plaintiff's Sixth Amendment claim against Hancock County must be dismissed because the plaintiff had no constitutional right to be represented by his nephew, the plaintiff did not sufficiently plead a Sixth Amendment claim against Hancock County, and the plaintiff's Sixth Amendment claim is not viable simply based upon the alleged facts; (3) the plaintiff's Eighth Amendment claim against Hancock County must be dismissed because the plaintiff does not allege any such wrongdoing on the part of Hancock County; (4) any claim for injunctive relief is moot and cannot proceed in this case because the alleged damages do not amount to “irreparable harm” and it is unclear how any form of injunctive relief could provide a remedy in connection with the alleged damages; and (5) monetary damages are not available in connection with the West Virginia constitutional claims.

         1. Hancock County

         This Court finds that Hancock County is not a proper defendant in this action because the plaintiff does not allege that the prosecutors' actions were taken in accordance with any specific practice, policy, or procedure of Hancock County. Under Monell v. Department of Social Services of City of New York, “[l]ocal governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” 436 U.S. 658, 690 (1978).

         The United States Court of Appeals for the Fourth Circuit has set forth the following pleading standard for a Monell claim:

To prevail on a Monell claim, [the plaintiff] “must point to a persistent and widespread practice[] of municipal officials, the duration and frequency of which indicate that policymakers (1) had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their deliberate indifference.”

Holloman v. Markowski, 661 Fed.Appx. 797, 799 (4th Cir. 2016) (quoting Owens v. Balt. City State's Attorney's Office, 767 F.3d 379, 402 (4th Cir. 2014)).

         Here, the plaintiff does not allege any persistent or widespread practice on the part of Hancock County in connection to his Sixth Amendment, Eighth Amendment, or any other claim. The plaintiff also does not allege that Hancock County policymakers had any actual or constructive knowledge of unconstitutional conduct, or that the policy makers were deliberately indifferent to any unconstitutional conduct. Thus, Hancock County cannot be sued under § 1983, and the plaintiff's claims against Hancock County fail under Twombly.

         2. Mr. Davis and Mr. Wood

         a. First and Fourth Amendment Claims

         i. Prosecut ...


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