United States District Court, N.D. West Virginia, Elkins
ORDER GRANTING DEFENDANT NEWTON E. HIGGINBOTHAM
MI'S MOTION TO DISMISS COUNT III OF THE AMENDED
PRESTON BAILEY JUDGE
pending before this court is Defendant Newton E. Higginbotham
Ill's Motion to Dismiss [Doc. 24], filed January 9, 2019.
The Motion has been fully briefed and is ripe for
disposition. For the reasons set forth below, this Court
hereby grants defendant's Motion to Dismiss Count III.
filed an Amended Complaint in the United States District
Court for the Northern District of West Virginia [Doc. 22] on
January 4, 2019, wherein plaintiff alleges four separate
counts. The count at issue here is Count III, which is titled
"Waiver of Governmental Immunity and Punitive
Damages" [Id. at ¶ 9]. Plaintiff contends
that there is no immunity or a cap on damages applicable to
defendant [Id. at ¶ 59].
then filed his Motion to Dismiss on January 9, 2019 [Doc.
24]. In support of his Motion to Dismiss, defendant argues
that Count III of the plaintiffs claims should be dismissed
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a
claim upon which relief can be granted [Doc. 25]. In her
Response, plaintiff contends that Count III should not be
dismissed because defendant is not protected by qualified
immunity because his alleged conduct was outside the scope of
his employment [Doc. 27]. Plaintiff also adds that her claim
for punitive damages directly relates to her underlying claim
against defendant [Id. at 7]. In his Reply,
defendant reiterates the same arguments from his Motion to
Dismiss and again asserts that plaintiffs Count III should be
dismissed for failure to state a claim [Doc. 31].
complaint must be dismissed "if it does not allege
'enough facts to state a claim to relief that is
plausible on its face.'" Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "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). The facts alleged must be
sufficient "to raise a right to relief above the
speculative level." Twombly, 550 U.S. at 555.
reviewing a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the Court must assume
all of the allegations to be true, must resolve all doubts
and inferences in favor of the plaintiffs, and must view the
allegations in a light most favorable to the plaintiffs.
Edwards v. City of Goldsboro, 178 F.3d 231, 243-44
(4th Cir. 1999). "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." Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc, 591 F.3d 250, 255 (citing
Iqbal, 556 U.S. at 696).
contends in Count III of the Amended Complaint that
defendant's conduct was "willful, wanton, reckless,
fraudulent, oppressive, and outrageous" [Doc. 22 at
¶ 54]. Plaintiff argues because defendant's conduct
was "fraudulent, malicious and / or oppressive,"
defendant has no immunity under the common law [Id.
at ¶ 55]. Further, plaintiff contends there is no
immunity for an employee of a political subdivision under
§§ 29-12A-5(a)(12), 5(b)(1), 5(b)(2) and 5(c)
[Id. at ¶ 56]. Plaintiff also contends that
defendant does not have immunity under the Governmental Tort
Claims and Insurance Reform Act because plaintiffs claims
"include violations of the constitution or statutes of
the United States" [Id. at 57].
argues that Count III of plaintiffs Amended Complaint should
be dismissed because the Governmental Tort Claims and
Insurance Reform Act (the "Act") does not apply to
defendant [Doc. 25 at 3]. The defendant further argues that
any potentially applicable immunities must be raised by
defendant, not asserted by plaintiff [Id. at 4].
Additionally, the defendant argues West Virginia law does not
recognize a separate cause of action for punitive damages
[Id. at 5]. As set forth below, plaintiff has not
offered any legal basis for Count III of her Amended
Complaint to proceed.
Defendant does not fall inside the purview of the
Virginia has held that "the West Virginia State Police
is a State Agency that is not within the purview of [the
Act], and ... individual State Troopers ... are officers of
that State agency" are also not covered by the act.
Jarvis v. West Virginia State Police, 227 W.Va. 472,
481-82, 711 S.E.2d 542, 551-52 (2010); see also All v.
Raleigh County, 2018 WL 4101517, at *6 (S.D. W.Va. Aug.
28, 2018) (Berger, J.). The Act's purpose is "to
limit liability of political subdivisions and provide
immunity to political subdivisions in certain instances and
to regulate the costs and coverage of insurance available to
political subdivisions for such liability." W.Va. Code
§ 29-12A-1. The Act lays out statutory immunities that
are available for political subdivisions and their employees.
See Id. at §29-12A-5. A "political
subdivision" under the Act is limited to:
any county commission, municipality and county board of
education; any separate corporation or instrumentality
established by one or more counties or municipalities, as
permitted by law; any instrumentality supported in most part
by municipalities; any public body charged by law with the
performance of a government function and whose jurisdiction
is coextensive with one or more counties, cities or towns; a
combined city-county health department created pursuant to
article two, chapter sixteen of this code; public service
districts; and other instrumentalities including, but not
limited to, volunteerfire departments and emergency service
organizations as recognized by an appropriate public body and