United States District Court, S.D. West Virginia
MICHAEL W. FREDERICK and DIANE H. FREDERICK, Plaintiffs,
WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley, United States Magistrate Judge
the transfer of this matter from the United States District
Court for the Northern District of West Virginia, due to a
perceived conflict of interest, this matter is assigned to
the Honorable Thomas E. Johnston, Chief United States
District Judge, and it is referred to the undersigned United
States Magistrate Judge for submission of proposed findings
and a recommendation for disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B). Pending before the court are the
following motions: a Motion to Dismiss filed by Kathy
Bradley, Lisa M. Driscoll, Anita B. Duncan, Rebecca Hall,
Shelly Nicewarner, and the West Virginia Department of Health
and Human Resources (hereinafter “the DHHR
Defendants”) (ECF No. 13); a Motion to Dismiss filed by
Debora Barthlow, Children's Home Society of WV, Emily R.
Hawver, Safe Haven Child Advocacy Center, and Victoria
Slater-Madert (hereinafter “the CHS Defendants”)
(ECF No. 34); an Amended Motion to Dismiss filed by the DHHR
Defendants (ECF No. 37); a Motion to Dismiss filed by Vicki
L. Barnard, CASA of the Eastern Panhandle, Inc., and Rebekah
Overstreet (hereinafter “the CASA Defendants”)
(ECF No. 68); a Motion to Dismiss filed by Jefferson County,
Jefferson County Prosecuting Attorney's Office, and
Jefferson County Sheriff's Department (ECF No. 71); a
Motion to Dismiss filed by Lyndsey W. Matschat (ECF No. 73);
a Motion to Dismiss filed by Brandon C.H. Sims (ECF No. 75);
a Motion to Dismiss filed by Hassan S. Rasheed (ECF No. 77);
a Motion to Dismiss filed by Scott Demory, Steven Holz, V.C.
Lupus, Sharon Moskowitz, R. Rjasko, Defendant Thomas, and
J.P. Windle (hereinafter “the Deputy Sheriff
Defendants”) (ECF No. 79); a Motion to Dismiss filed by
Pete Dougherty and Ralph A. Lorenzetti (ECF No. 81); a Motion
to Dismiss filed by Blue Ridge Elementary School, Mary
Brittingham, Bandon Caton, Bondy S. Gibson, Jefferson County
School District, and Susan T. Zigler (hereinafter “the
School Defendants”) (ECF No. 83); and a Motion to
Dismiss filed by Rene Ellenberger, Abigayle
Kohler, and National Youth Advocate Program
(hereinafter “the NYAP Defendants”) (ECF No. 86).
BACKGROUND AND PROCEDURAL HISTORY
21, 2018, the plaintiffs filed an excessively lengthy
Complaint in the United States District Court for the
Northern District of West Virginia. The Complaint, which is
247 pages in length, contains 1301 paragraphs asserting 76
counts/claims for relief against 39 defendants. All of the
claims arise out of the defendants' roles in criminal
prosecutions and abuse and neglect proceedings instituted
against Michael W. Frederick in the Circuit and/or Magistrate
Courts of Jefferson County, West Virginia, which were
prosecuted between June 11, 2014 and June 28, 2017.
a perceived conflict of interest, Chief Judge Gina M. Groh
transferred the matter to this United States District Court.
Following service of process, each defendant has filed a
Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. The Motions to Dismiss are fully
briefed and ripe for adjudication. Before addressing the
defenses raised in the Motions to Dismiss, the undersigned
believes a comprehensive recitation of the facts contained in
the Complaint will be helpful.
11, 2014, S.F., the eight-year-old daughter of Michael
Frederick (“Michael”), disclosed to Mary
Brittingham (“Brittingham”), a counselor at Blue
Ridge Elementary School (“BRES”), that “her
father . . . touched her and [did] other things to her in her
bedroom.” (ECF No. 1 at 13, ¶ 68). During the same
conversation, S.F. stated that her aunt, K.J., and her
grandfather, who had allegedly been blamed for
“touching” her, had not actually done so.
(Id. at 12, ¶¶ 66, 67).
result of these disclosures, and as required by state law,
Brittingham contacted the West Virginia Department of Health
and Human Resources' (“DHHR”) Child
Protective Services (“CPS”) and made a report
about S.F.'s abuse allegations. (Id., ¶
72). Brittingham assisted a DHHR social worker in the
completion of a Danger Assessment Intake Report, finding that
no present danger was indicated. (Id., ¶ 73).
S.F. was held in the school office and questioned by Lisa
Driscoll (“Driscoll”), a DHHR employee, without
the knowledge or consent of her parents. (Id. at
13-14, ¶ 75). S.F. was subsequently permitted to ride
the bus to her great grandmother's (Michael's
grandmother) house, where Diane Frederick
(“Diane”) (S.F.'s grandmother) also
lived. (Id. at 16, ¶¶ 90-92).
The Complaint suggests that this house is “where S.F.
was already staying for the summer -- her home away from
home.” (Id. at 19, ¶ 103).
referral was also made to law enforcement. (Id. at
14, ¶ 77). Sharon Moskowitz (“Moskowitz”), a
Deputy Sheriff with the Jefferson County Sheriff's
Department, responded to BRES, where she met with Driscoll
and Brittingham and was provided with Brittingham's
statement concerning S.F.'s disclosures and S.F.'s
school enrollment forms. (Id., ¶¶ 78, 79).
Driscoll and Moskowitz left the school and drove to
Michael's residence in Harper's Ferry, West Virginia,
to investigate and attempt to meet with the residents of the
home, but no one was there. (Id. at 15-16,
¶¶ 87, 88). Moskowitz contacted Scott Demory
(“Demory”), a Detective with the Jefferson County
Sheriff's Department, who commenced an investigation of
S.F.'s claims. (Id. at 16-17, ¶¶ 94,
that evening, Driscoll and Deputy Sheriff R. Rjasko
(“Rjasko”) arrived at Michael's residence to
serve him and his wife with CPS paperwork, including a
Temporary Protection Plan. (Id. at 17, ¶ 97).
Michael and his wife denied S.F.'s allegations and stated
that, while they were watching a movie in their bedroom, S.F.
had woken up in her bedroom and yelled “They were just
in here!” Michael's wife assured S.F. that she was
just having a “bad dream” and allowed her to come
into their bedroom to sleep for the night. (Id.,
¶ 98). The plaintiffs allege that Driscoll and Rjasko
did not take any steps to confirm any other information
concerning S.F.'s statements to the school and DHHR
staff. (Id. at 18, ¶ 99).
advised Michael and his wife that S.F. would need to stay at
her great grandmother's house as part of a Temporary
Protection Plan that was being put into effect, and then
presented them with some forms, which the plaintiffs allege
were signed under duress. (Id. at 18-19,
¶¶ 100, 101). The Temporary Protection Plan, which
was in effect until June 18, 2014, was also presented to
S.F.'s great grandmother. It indicated that S.F. was to
have no contact with Michael, his wife, her aunt K.J., or her
grandfather. (Id. at 19-20, ¶ 104).
12, 2014, Demory, working with DHHR staff, scheduled a
forensic interview of S.F. by Children's Home Society
(“CHS”) staff, which took place on June 13, 2014
at Safe Haven Child Advocacy Center (“CAC”).
(Id. at 20-21, ¶¶ 109-111). S.F. was
interviewed for about three hours by Victoria Slater-Madert
(“Slater-Madert”), Child and Family Services
Supervisor for CHS. (Id. at 22, ¶ 116). Demory
was also present at the interview. (Id., ¶
117). The plaintiffs take issue with the protocol and methods
used by Slater-Madert during the interview and the fact that
the interview was done without a court order.
plaintiffs allege that S.F. made inconsistent and implausible
statements during the interview, and that, upon returning
home, she told her great grandmother and another aunt, Y.A.,
that she had lied about her father touching her, that
“he didn't do it, ” and “it wasn't
true.” (Id. at 22-24, ¶¶ 120, 122,
124). S.F.'s aunt, Y.A., subsequently recorded
conversations with S.F. in which she continued to recant her
allegations that her father had sexually abused or assaulted
her and admitted that she had lied about it. (Id. at
24, ¶¶ 125, 126). The plaintiffs contend that
Demory failed to interview any of the other family members,
who allegedly would have provided information or evidence
demonstrating Michael's innocence. (Id. at
24-25, ¶ 127).
in an alleged rush to judgment, on June 14, 2014, Demory
swore out a criminal complaint, and secured a warrant for
Michael's arrest on charges of sexual assault and sexual
abuse by a parent or guardian. (Id. at 25, ¶
129). Later that night, Jefferson County Deputy Sheriffs
Rjasko, Thomas, and Windle arrived at Michael's house to
arrest him. (Id. at 25-26, ¶¶ 130-136).
Windle and Rjasko allegedly slammed Michael onto the back
deck and Thomas threatened to Taser him if he didn't
comply with being handcuffed. (Id. at 26, ¶
137). One of these defendants allegedly stated, “This
is what happens when you molest children.”
(Id.) They allegedly continued to verbally harass
him as they took him to the Eastern Regional Jail.
(Id., ¶ 138).
15, 2014, defendant Windle filed another criminal complaint
charging Michael with Obstructing an Officer and Fleeing an
Officer. (Id. at 27, ¶ 141). Michael appeared
before a magistrate and was released on bond (which he claims
was excessive). (Id., ¶ 142). At that time,
Michael was also serving a period of probation for a prior
conviction in the United States District Court for the
Eastern District of Virginia on charges of interstate
transportation of a stolen vehicle and discharge of
pollutants into waters of the United States. The probation
period was set to expire on July 21, 2014. (Id. at
28, ¶ 151).
16, 2014, V.C. Lupus, a Sergeant with the Jefferson County
Sheriff's Department, contacted the Probation Office in
the Eastern District of Virginia and advised Carolyn Nulf of
Michael's arrest in West Virginia and provided her with a
copy of the arrest warrant. (Id. at 29, ¶ 152).
Nulf thereafter secured a warrant for Michael's arrest on
a probation violation. (Id., ¶ 153).
this same time period, Jefferson County Assistant Prosecuting
Attorneys Brandon C.H. Sims (“Sims”) and Hassan
A. Rasheed (“Rasheed”) assumed responsibility of
Michael's criminal prosecution. (Id. at 28,
¶¶ 147, 148). Lyndsey W. Matschat
(“Matschat”), another Jefferson County Assistant
Prosecuting Attorney, was assigned as counsel for DHHR in the
prosecution of the abuse and neglect case against Michael and
his wife. (Id., ¶ 149). The plaintiffs allege
that Sims, Rasheed, and Matschat, as well as their
supervisor, Jefferson County Prosecuting Attorney Ralph
Lorenzetti, were aware of all of these facts, and directed
and coordinated the investigation by the Sheriff's
Department. (Id. at 28, 29, ¶¶ 147-150,
about June 17, 2014, a hearing was held in the abuse and
neglect matter before Circuit Judge Michael D. Lorensen
during which DHHR was awarded the care, custody and control
of S.F., a guardian ad litem (“GAL”) was
appointed for S.F., and counsel was appointed for each of the
parents. (Id. at 30, ¶ 160). The plaintiffs
allege that Driscoll and Matschat filed the abuse and neglect
petition, despite having knowledge of S.F.'s inconsistent
statements, and failing to investigate and interview the
other family members who could provide evidence of innocence.
(Id. at 30-31, ¶¶ 159, 161).
18, 2014, S.F. underwent a forensic examination which
rendered no physical evidence of sexual abuse. (Id.
at 31, ¶¶ 154, 165). The examination results were
provided to defendant Demory, who turned it over to Sims,
Matschat, and Driscoll. (Id. at 32, ¶¶
167, 169). Shortly after the examination, S.F. again told her
great grandmother and Y.A. that she had lied about the
allegations against her father. (Id. at 31-32,
¶ 166). The plaintiffs claim that Sims, Rasheed,
Matschat, and Driscoll willfully ignored this evidence of
innocence and that their respective supervisors were also
aware of this evidence and willfully ignored it.
(Id. at 32-33, ¶¶ 170, 171).
19, 2014, a hearing was held in the Eastern District of
Virginia concerning Michael's federal probation
violation. (Id. at 33, ¶ 173). Demory testified
at the hearing and admitted that he did not investigate or
try to corroborate S.F.'s various statements made during
her school interview, and that he was unaware of S.F.'s
prior allegations of abuse by her mother's former
boyfriend, or her alleged recantations of the abuse by her
father, and had not investigated the same. (Id. at
33-34, ¶ 174). Diane Frederick also testified during the
probation revocation hearing and disclosed that S.F. had
admitted to lying during her interview. (Id. at
34-35, ¶ 175). Michael's wife also testified about
S.F.'s prior unsubstantiated allegations of abuse by her
ex-boyfriend, S.F.'s history of lying, and the
circumstances surrounding Michael's arrest on the West
Virginia charges on June 14, 2014. (Id. at 35-36,
¶ 176). She denied that Michael attempted to flee when
he was arrested. (Id.)
Complaint alleges that, during the probation
hearing, Demory learned about S.F.'s prior
unsubstantiated allegations of abuse by her mother's
former boyfriend in Loudon County, Virginia. (ECF No. 1 at
37, ¶ 179). Sometime thereafter, Demory spoke with a
detective in Loudon County, Virginia about those allegations
and advised her of the West Virginia allegations.
(Id. at 41-42, ¶¶ 194-198).
second hearing was held in the Eastern District of Virginia
on June 23, 2014. (Id. at 38, ¶ 183). Diane
Frederick testified about a meeting with DHHR officials
concerning S.F.'s guardianship; about her understanding
of what occurred on the night in question; and about her
knowledge concerning S.F.'s prior allegations of abuse.
(Id. at 38-39, ¶ 186). Michael's wife again
testified about S.F.'s prior allegations of abuse and
about the night of the alleged incident and stated that there
was no opportunity for Michael to be alone in bed with S.F.
(Id. at 40, ¶ 187). Michael also testified and
denied having ever sexually abused his daughter.
(Id. at 40-41, ¶ 188). The federal judge
ultimately continued the revocation proceedings until after
Michael's preliminary hearing on the West Virginia
criminal charges. (Id. at 41, ¶ 191). The
Complaint again asserts that Sims, Rasheed, Demory, and their
supervisors were aware of this evidence, yet willfully
continued pursuit of the criminal charges. (Id. at
37, 41, ¶¶ 180, 181, 192, and 193).
30, 2014, Driscoll and Anita B. Duncan
(“Duncan”), another DHHR employee, met with
S.F.'s great grandmother and Diane and advised that S.F.
was now being streamlined for adoption within one year.
(Id. at 43, ¶¶ 201-205). Duncan also
allegedly insisted that Diane and Y.A., her daughter, move
out of the great grandmother's house. (Id. at
43-44, ¶ 206). Thus, on July 1, 2014, Diane moved to
Berryville, Virginia, and Y.A. moved in with her fraternal
grandmother in Ashburn, Virginia, where she allegedly
remains. (Id. at 44, ¶ 207). Diane's
subsequent requests for biweekly visitation with S.F. were
denied. (Id., ¶ 208).
30, 2014, Judge Lorensen appointed a volunteer advocate with
CASA of the Eastern Panhandle (“CASA”), Rebekah
Overstreet (“Overstreet”), to gather information,
attend Multidisciplinary Team (“MDT”) meetings,
and perform other duties and responsibilities of a Court
Appointed Special Advocate in the abuse and neglect matter.
(Id. at 44-45, ¶ 210). On July 2, 2014,
Overstreet was allegedly made aware of S.F.'s
recantations and provided copies of the recordings containing
her admissions that she lied during her interview with
Slater-Madert. (Id. at 45, ¶ 211).
1, 2014, Judge Lorensen held a prehearing on the Petition for
Termination of Parental Rights. During the hearing, Matschat
requested that a privilege log created by Brittingham
pertaining to redacted portions of her report be filed under
seal. (Id., ¶¶ 213, 214). Defendant Sims
was present at this hearing. (Id. at 46, ¶
2, 2014, a preliminary hearing was held before Magistrate
William Senseney in Michael's criminal cases to determine
whether there was probable cause for the charges.
(Id. at 47, ¶ 222). Sims called Slater-Madert
to testify about her interview of S.F. on June 13, 2014, and
to introduce the audio recording thereof, which was
apparently very poor. (Id. at 47-48, ¶¶
224-226). Michael was represented by attorney Sherman
Lambert, who moved to strike the recorded evidence and
requested the opportunity to cross-examine the State's
witness and to call witnesses on Michael's behalf, all of
which was denied by the court. (Id. at 47-50,
¶¶ 224-237). The Complaint alleges that Sims and
Rasheed knew that there was no probable cause for any of the
criminal charges. (Id. at 50-51, ¶¶ 236,
239). However, the court found probable cause for all of the
charges and allowed them to proceed.
3, 2014, Michael was released on home confinement with
electronic monitoring by the Virginia federal judge.
(Id. at 51-52, ¶¶ 241, 242). That same
day, Driscoll and another DHHR worker went to S.F.'s
great grandmother's house and removed S.F. from her care
because, allegedly based on “jail recordings”
made of telephone conversations between Michael and others,
they did not believe she could keep S.F. safe. (Id.
at 52, ¶¶ 246, 247). S.F. was taken to DHHR offices
where she met with Driscoll and her GAL and told them she had
lied to get her dad in trouble. (Id. at 53, ¶
248). She admitted that she had kept a diary, which she had
hidden in a clothes basket at her great grandmother's
home. (Id. at 53-54, ¶¶ 248, 255). S.F.
was subsequently placed in foster care.
a later MDT meeting attended by Matschat, Duncan, and the
GAL, discussions were allegedly held with Michael's wife
about their concerns about her ability to reunify with S.F.
if she continued to have contact with Michael. (Id.
at 53, ¶ 249). On July 3, 2014, DHHR recommended that
Michael's wife be permitted supervised visitation with
S.F. (Id. at 62, ¶ 289).
4, 2014, Demory obtained a search warrant for S.F.'s
diary, which was located and turned over to the prosecutors.
It allegedly contained entries admitting that S.F. had lied
about the sexual abuse by her father. Nonetheless, the
criminal prosecution and abuse and neglect proceedings
continued. (Id. at 55, ¶¶ 256-261).
mid-July, Michael's wife created a GoFundMe
account and conducted fundraising efforts to support
Michael's defense and “save her family.”
(Id. at 57-58, ¶¶ 269-271). On or about
August 15, 2014, Michael retained attorneys Kirk Bottner
(“Bottner”) and Thomas Pavlinic
(“Pavlinic”) to represent him and Sherman Lambert
(“Lambert”) withdrew as counsel. (Id. at
58, ¶ 272). Sims became aware of the GoFundMe
account and told Matschat about it. (Id.,
¶¶ 273, 274). Thereafter, Duncan and Matschat
allegedly began pressuring Michael's wife to shut down
the account. (Id. at 59, ¶ 275). During a
subsequent MDT meeting, Matschat, Duncan, and Overstreet
allegedly stepped up their pressure on Michael's wife to
cease all contact with Michael if she was granted an
Improvement Period in the abuse and neglect case.
(Id. at 59-60, ¶¶ 278).
to his indictment, Sims made a plea offer to Michael to plead
guilty to Sexual Abuse by a Parent, Guardian, or Custodian,
or Person in a Position of Trust, which carried a maximum
sentence of 20 years in prison. Michael refused that offer,
and Sims allegedly threatened to “put him away for life
so that he can never be around another woman again.”
(Id. at 60-61, ¶¶ 280, 281).
September 16, 2014, Michael was indicted by a Jefferson
County grand jury on the same charges contained in the
criminal complaints. (Id. at 61, ¶ 283). Sims
apparently presented to the grand jury the evidence from the
Slater-Madert interview and testimony by an officer, who was
not present at Michael's arrest and who is not a
defendant herein. (Id., ¶¶ 284, 285).
September 18, 2014, Michael relinquished his parental rights,
allegedly on the advice of his counsel, to prevent the State
from developing evidence and trial strategy for his criminal
case. (Id. at 64-65, ¶¶ 297, 298). That
same day, Michael's wife was granted a Post-Adjudicatory
Improvement Period. She was again allegedly pressured to
vacate her home and to cease contact with Michael.
Nonetheless, the Complaint states, Michael and his wife began
communicating through “burner phones.”
(Id. at 62-63, ¶¶ 289-296).
an MDT meeting on December 8, 2014, Matschat, Duncan and
Abigayle Koller (“Koller”), the Clinical
Coordinator of West Virginia Operations for the National
Youth Advocate Program (“NYAP), allegedly discussed the
fact that S.F.'s foster parents caught her “lying
all the time” and other evidence of S.F.'s
questionable veracity. (Id. at 65, ¶ 301). On
December 10, 2014, Michael's wife e-mailed Mr. Pavlinic
about the MDT meeting discussions. (Id., ¶
to the Complaint, Sims, Rasheed, Matschat, and Duncan
increased their ongoing efforts to erode Michael's
wife's support of him and attempted to convince her not
to provide alibi evidence on his behalf. (Id.,
¶¶ 304, 305). They allegedly convinced her to
record her conversations with Michael, which she did between
January 15, 2015 and March 20, 2015. (Id., ¶
306). However, when those conversations revealed no
inculpatory evidence, Sims allegedly told her to stop the
recordings and have no further phone contact with him.
(Id. at 66-67, ¶¶ 307, 309). These
defendants also allegedly helped her compose a fabricated
written narrative about the alleged sexual abuse.
(Id. at 67-68, ¶¶ 310, 311).
this time, Michael was on home confinement. In February of
2015, he began receiving treatment for heart palpitations and
ultimately had two cardiac ablation procedures on March 25,
2015 and April 11, 2015. He also developed three stomach
ulcers and suffered from kidney infections, dehydration, and
subsequently had his gallbladder removed. He was hospitalized
twice; once for 16 days, and once for five days.
(Id. at 69-71, ¶¶ 319-329). He attributes
his health issues to mental and emotional distress caused by
the sustained criminal charges and asserts that the
prosecutorial defendants specifically intended to cause him
harm and distress. (Id., at 69, ¶ 318).
April 22, 2015, Michael filed a motion to be released from
his probation in the Eastern District of Virginia. A hearing
on that motion was set for May 8, 2015. (Id. at 72,
April 26, 2015, Michael's wife served him with a petition
for divorce, which contained her phone number. (Id.,
¶ 335). That day, Michael sent a series of text messages
professing his love for her and asking to speak with her
about some other matters. His wife responded to the first
message, stating “Stop Contacting Me!”
Nonetheless, Michael sent additional messages throughout that
day. (Id. at 72-73, ¶¶ 337, 338).
April 28, 2015, Michael's wife met with Demory about the
text messages. (Id. at 73, ¶ 343). The
Complaint further alleges that Sims instructed her to seek a
Preliminary Protective Order (“PPO”) in a
Virginia state court. (Id., ¶ 339). The PPO was
issued on April 28, 2015 and a hearing was set for May 12,
2015. (Id., ¶ 341). According to the Complaint,
Michael was served with the PPO on April 28, 2015.
(Id., ¶ 345).
April 30, 2015, Demory apparently met with Sims and/or
Rasheed about the text messages and was allegedly advised by
Sims to draft a criminal complaint charging Michael with a
violation of W.Va. Code § 61-3C-14(a) for sending
obscene, anonymous, harassing, and threatening
communications. (Id. at 74, ¶¶ 347-349).
The plaintiffs contend that, when Sims instructed Demory to
seek the criminal complaint, she knew there was no probable
cause for the charges. (Id. at 75, ¶ 352).
Michael was arrested on those charges on May 2, 2015.
(Id., ¶ 355).
subsequently denied knowing that the harassing communications
charges had been filed, until on May 4, 2015, when she spoke
with Mr. Bottner. (Id. at 76, ¶ 360). However,
the Complaint further alleges that, prior to her conversation
with Bottner, Sims told Michael's wife that she would be
filing a motion to revoke Michael's bond. (Id.,
¶ 359). The Complaint further alleges that Sims was
fully aware of Michael's upcoming hearing in the Virginia
federal court on his motion to be removed from electronic
monitoring and released from probation. (Id., ¶
5, 2015, Judge David H. Sanders signed a bench warrant for
Michael's arrest and set a bond hearing on May 11, 2015.
(Id. at 77, ¶ 363). During that hearing,
Michael's attorneys expressed their concern that these
additional charges were a “guise” to prevent
Michael from being released from probation. (Id. at
77-78, ¶¶ 365, 366). Sims stated that she had been
contacted by the Virginia officials, but took the initiative
to file the bond revocation motion because of the new charges
and that it was not a coordinated effort with the Virginia
officials. (Id. at 79, ¶ 367).
an issue arose concerning which prosecutor(s) Demory had met
with about the pursuit of the harassing communications
charges. (Id. at 80-83, ¶¶ 371-380).
Michael's counsel sought an evidentiary hearing on that
matter and other issues of alleged prosecutorial misconduct.
(Id. at 80-81, ¶ 377). Demory has consistently
stated that he spoke with Sims about those charges. However,
Sims denied knowing about them and allegedly elicited an
affidavit from Rasheed stating that he was the one to whom
Demory had spoken about those charges. (Id. at
81-82, ¶¶ 378). The plaintiffs allege that this
affidavit was fabricated to obstruct justice. (Id.
at 82, ¶ 379). Judge Sanders ultimately denied
Michael's request for a hearing and denied him bail.
(Id. at 83, ¶¶ 380, 381).
his arrest, Michael was held in custody at the Eastern
Regional Jail (“ERJ”). On June 24, 2014, he was
brutally physically and sexually assaulted by three inmates
and was required to be hospitalized for four days.
(Id. at 83-84, ¶¶ 382, 383). He was
subsequently transferred to the Potomac Highlands Regional
Jail (“PHRJ”) and was diagnosed with Post
Traumatic Stress Disorder (“PTSD”). (Id.
at 84, ¶ 384). Michael retained Sherman Lambert to
represent him in a civil suit related to the ERJ assault and
Michael underwent a psychological evaluation for use in that
proceeding. (Id., ¶ 386).
June 2015 and October 2015, Sims twice moved to continue
Michael's harassing communications proceedings; once, due
to Demory's scheduling conflict, and again, due to
Sims' own scheduling conflict. The first motion was
granted; however, the second motion was denied, with the
magistrate finding that another prosecutor could try the
matter for the State. (Id. at 85-86, ¶¶
389-399). Michael's jury trial on the harassing
communications charges went forward on October 27, 2015, with
Matschat appearing as the prosecutor. (Id. at 87,
¶¶ 400, 401). Michael was acquitted of the
harassing communications charges that same day. (Id.
at 88, ¶ 404). The Complaint further alleges that, at
the conclusion of the trial, Michael's defense counsel
spoke with Prosecuting Attorney Ralph Lorenzetti and put him
on notice that his assistants “had lied to the Court
and needed to be held accountable.” (Id. at
89, ¶ 405).
Michael renewed his motion to terminate his federal
probation, which was granted in December of 2015.
(Id. at 91-93, ¶¶ 412, 413). However,
prior thereto, at a hearing on November 2, 2015, Michael
requested that he again be released on bond in West Virginia.
(Id. at 90-91, ¶ 411). Sims requested that he
be placed on electronic monitoring, which was denied by Judge
Sanders. (Id.) Thus, when Michael's federal
probation was terminated, he was released on bond in West
Virginia without that restriction.
lawyers also filed a motion to dismiss the remaining criminal
charges based upon alleged constitutional violations and
systemic prosecutorial misconduct. (Id. at 96,
¶ 428). During the November 2, 2015 hearing,
Michael's attorneys expressed their concern that the
State had withheld exculpatory evidence, largely consisting
of materials and reports from the MDT meetings. (Id.
at 97-98, ¶¶ 429). Sims conveyed the State's
position that such records were confidential under W.Va. Code
§§ 49-4-402(d) and 49-5-101,  and the State
objected to their disclosure in the criminal proceeding.
Judge Sanders ordered the State to produce the records in
camera, which Sims did on November 10, 2015.
(Id. at 100, ¶ 433). When no action had been
taken by the court, and upon prompting from Michael's
counsel, Sims again sent the records to Judge Sanders on
February 26, 2016. (Id., ¶ 438).
were held on March 7-8, 2016, during which Judge Sanders
heard testimony and the parties' arguments concerning the
DHHR records. (Id. at 101-111, ¶¶
440-456). He ultimately found that the materials contained
exculpatory or impeachment evidence that should be produced
to the defendant under Brady v. Maryland, 373 U.S.
83 (1963) and its progeny. (Id. at 111-114, ¶
subsequently sought a writ of prohibition in the Supreme
Court of Appeals of West Virginia (“SCAWV”)
concerning the order to disclose the DHHR records and the
court held oral argument on the matter. (Id. at
117-120, ¶¶ 465-470). On November 2, 2016, the
SCAWV denied the writ of prohibition and found, inter
alia, that the DHHR files contained “highly
exculpatory Brady material” to which Michael
had a constitutional right. (Id. at 120-122, ¶
471). See State ex rel. Lorenzetti v. Sanders, 774
S.E.2d 19 ( W.Va. 2015).
November 17, 2016, Sims and Rasheed were served with notice
that complaints had been filed against them with the West
Virginia Office of Disciplinary Counsel (“ODC”)
based upon their conduct in the Michael Frederick matters.
(Id. at 123-124, ¶¶ 474-475). An
evidentiary hearing concerning Michael's motion to
dismiss the criminal charges was scheduled on December 21,
2016. (Id. at 124, ¶ 479). However, Sims moved
to continue that hearing until the resolution of the ODC
complaints. (Id. at 124-125, ¶¶ 479, 480).
same day, Sims allegedly asked Bottner for a copy of
Michael's psychological evaluation that had been done in
conjunction with his civil lawsuit. (Id. at 124,
¶¶ 476, 478). When Bottner refused to provide the
report to her, Sims allegedly contacted attorney Sherman
Lambert's office on December 23, 2016, and obtained a
copy of the report from his secretary/wife. (Id. at
127, ¶ 492). The plaintiffs allege that this was a
violation of Michael's rights under the Health Insurance
Portability and Accountability Act (“HIPAA”), 42
U.S.C. § 1320d-6. Sims allegedly faxed a copy of the
evaluation to the Jefferson County Prosecuting Attorney's
Office, generated a certificate of service and sent a copy to
Michael's criminal defense counsel, and is also alleged
to have attached a copy of the report to her response to the
ODC complaint and retained a copy for herself. (Id.
at 127, ¶ 493).
January 2, 2017, Diane Frederick learned that Sims had
obtained a copy of Michael's psychological evaluation
from Lambert. (Id. at 130, ¶ 508). On January
3, 2017, Diane and her mother went to Lambert's office
and confronted Lambert and his wife about disclosing the
evaluation without a court order or Michael's
authorization. (Id. at 131, ¶ 511). Lambert
stated that he would respond to her in writing.
(Id., ¶ 515).
after Diane and her mother left his office, Lambert allegedly
contacted the Berkley County Sheriff's Department and
asserted that Diane had attempted to extort money and assets
from him. (Id. at 131-32, ¶¶ 516, 517). He
subsequently emailed Diane and stated that she had threatened
to extort money from him and that he asked her to leave his
office three times. (Id. at 132, ¶ 518). Diane
responded to the email stating that she had recorded their
conversation and there was no evidence of threats or
extortion. (Id., ¶ 519). Later that day, Diane
was arrested by a Berkley County Deputy Sheriff for
trespassing. (Id., ¶ 520). Diane asserts that
her arrest occurred as a direct and proximate result of
Sims' actions. (Id., ¶ 525).
February 10, 2017, Bottner and Pavlinic met with the new
Prosecuting Attorney to discuss the remaining charges against
Michael. (Id. at 127-128, ¶ 495). On March 31,
2017, the parties appeared before Judge John Yoder for a
status hearing on Michael's motion to dismiss the sexual
abuse charges based upon prosecutorial misconduct.
(Id. at 128, ¶ 498). Judge Yoder set a deadline
of June 1, 2017 for the State to respond to the motion.
(Id. at 129, ¶ 503). On June 28, 2017, the
State moved to dismiss the sexual abuse charges.
(Id., ¶ 505). The obstruction and fleeing
charges had previously been dismissed by the Magistrate Court
on December 22, 2015, based upon the State's Motion to
Nolle Prosequi. (Id., ¶ 504). Thus, all of the
criminal charges against Michael Frederick were resolved in
Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570
(2007), the Supreme Court observed that a case should be
dismissed for failure to state a claim upon which relief can
be granted if, viewing the well-pleaded factual allegations
in the complaint as true, and in the light most favorable to
the plaintiff, the complaint does not contain “enough
facts to state a claim to relief that is plausible on its
face.” While the complaint need not assert
“detailed factual allegations, ” it must contain
“more than labels and conclusions” or a
“formulaic recitation of the elements of a cause of
action.” Id. at 555.
Supreme Court elaborated on its holding in Twombly
in Ashcroft v. Iqbal, 556 U.S. 662 (2009), a civil
rights case. The Court wrote:
Two working principles underlie our decision in
Twombly. First, the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice. [Twombly, 550 U.S.] at
555, 127 S.Ct. 1955 (Although for the purposes of a motion to
dismiss we must take all of the factual allegations in the
complaint as true, we “are not bound to accept as true
a legal conclusion couched as a factual allegation”
(internal quotation marks omitted). Rule 8 . . . does not
unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Id., at 556.
* * *
In keeping with these principles a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported
by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
556 U.S. at 678-79. “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.” Id. at 678.
as noted in Haley v. Virginia Dep't of Health,
4:12-cv-0016, 2012 WL 5494306, at *2 n.2 (W.D. Va. Nov. 13,
2012), “[t]he Fourth Circuit has not resolved whether a
motion to dismiss based on the Eleventh Amendment is properly
considered pursuant to Rule 12(b)(1) or Rule 12(b)(6) . . .
The recent trend, however, appears to treat Eleventh
Amendment immunity motions under Rule 12(b)(1) [which
provides for the dismissal of claims over which the court
lacks subject matter jurisdiction].” Likewise, if the
court determines at any time that it lacks subject matter
jurisdiction over a claim or action, it must dismiss the
same. See Fed. R. Civ. P. 12(h)(3).
cogent summary of the plaintiffs' allegations is
contained in their Response to the DHHR Defendants'
Motion to Dismiss. (ECF No. 91 at 2-4). The plaintiffs assert
that this civil action arises from a “faulty
investigation” into sexual abuse allegations, in which
the defendants were allegedly “so determined to charge
and arrest Michael Frederick that they willfully ignored, or
were deliberately indifferent to, overwhelming
evidence” of his innocence and the lack of probable
cause for the charges. The plaintiffs further claim that the
defendants “exploited” S.F.'s inconsistent
statements and “demonstrably false” allegations,
which she had repeatedly recanted. The plaintiffs further
allege that the defendants used inappropriate therapy methods
to help S.F. “fill in the gaps” to “sell a
story that would fly in court” and, through threats of
the loss of a relationship with her child, intimidated
Michael's wife to turn against Michael and change her
story to create inculpatory evidence. The plaintiffs further
allege that the defendants “conspired to conceal
exculpatory evidence in order to maintain the charges against
Michael and strip [him] of his parental rights based on facts
they knew were untrue.” (Id.)
bulk of the Complaint alleges claims brought by Michael under
42 U.S.C. § 1983 grounded in alleged violations of the
Fourth and Fourteenth Amendments. To the extent that the
claims arise out of Michael's arrests and criminal
prosecutions, the court must distinguish the basis of those
claims. In Brooks v. City of Winston-Salem, the
Court found that:
A claim of false arrest permitted the recovery of damages
from “the time of detention up until issuance of
process or arraignment, but not more. Heck [v.
Humphrey], 114 S.Ct. at 2371 [Other citations omitted].
However, allegations that an arrest made pursuant to a
warrant was not supported by probable cause, or claims
seeking damages for the period after legal process issued,
are analogous to the common-law tort of malicious
prosecution. , 114 S.Ct. at 2371 [Other citations omitted].
85 F.3d 178, 181-82 (4th Cir. 1996). Michael's section
1983 claims are most analogous to claims of malicious
prosecution. In fact, Michael cannot plausibly raise a claim
based upon a false arrest or false imprisonment because he
was arrested pursuant to a warrant.
the court should address his Fourth Amendment claims as
claims grounded in malicious prosecution.
section 1983 claims herein also appear to be asserting
violations of the Due Process Clause of the Fourteenth
The Due Process Clause of the Fourteenth Amendment
encompasses three types of claims enforceable under §
1983: (1) claims for violations of rights enshrined in the
Bill of Rights and incorporated against the states, (2)
claims under the substantive component of the Due Process
Clause, which “bars certain arbitrary, wrongful
government actions ‘regardless of the fairness of the
procedures used to implement them, '” and (3)
claims under the procedural component of the Due Process
clause, which contains a guarantee of fair procedure.
Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quoting
Daniels v. Williams, 474 U.S. 327, 331 (1986)).
Arbitrary state action gives rise to a substantive due
process claim only when the action “shocks the
conscience.” County of Sacramento v. Lewis,
523 U.S. 833, 845-46 (1998).
Harper v. Barbagallo, No. 2:14-cv-07529, 2016 WL
5419442, at *10 (S.D. W.Va. Sept. 27, 2016). Here, the
plaintiffs appear to be asserting substantive due process
claims grounded in their fundamental right to familial
relations or association.
The Supreme Court has long recognized, as a component of
“substantive” due process, that parents have a
liberty interest in familial relations, which includes the
right to “establish a home and bring up children”
and “to control the education of their own.”
Myer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625,
67 L.Ed. 1042 (1923); see also Troxel v. Granville,
539 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)
(noting that the right to familial relations is “the
oldest of the fundamental liberty interests
recognized”) [Other citations omitted]
* * *
The right to familial relations is not, however, absolute . .
. . The liberty interest in familial privacy and integrity is
“‘limited by the compelling governmental interest
in the protection of children, particularly where the
children need to be protected from their own
parents'” Brokaw [v. Mercer
Cty.], 235 F.3d [1000, ] 1019 [(7th Cir. 2000)]
(citation omitted), and does not include the right to be free
from child abuse investigations. Brown v. Newberger,
291 F.3d 89, 94 (1st Cir. 2002); Watterson v. Page,
987 F.2d 1, 8 (1st Cir. 1993).
Doe v. Heck, 327 F.3d 492, 518-20 (7th Cir. 2003).
acknowledging this right under the Fourteenth Amendment,
see Gedrich v. Fairfax Cty. Dep't of Family
Servs., 282 F.Supp.2d 439, 460 (E.D. Va. 2003), the
United States Court of Appeals for the Fourth Circuit has
stated that the precise contours of the right are not clearly
established and “may be outweighed by a legitimate
governmental interest.” Hodge v. Jones, 31
F.3d 157, 163-64 (4th Cir. 1994). The Fourth Circuit has
limited the concept of familial privacy to two areas:
“(1) thwarting governmental attempts to interfere with
particularly intimate family decisions, and (2) voiding
governmental actions that sever, alter, or otherwise affect
the parent/child relationship.” Gedrich, 282
F.Supp.2d at 460 (quoting Hodge, 31 F.3d at 163). It
is the second category that appears to be at issue here.
to the elements of a substantive due process claim, to impose
liability, the conduct of the defendants “must be so
ill-conceived or malicious that it ‘shocks the
conscience;' mere negligence is insufficient.”
Gedrich, 282 F.Supp.2d at 460 (quoting Miller v.
City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999)).
“In the area of child protection, ‘remov[al] of a
child in emergency action from the custody of a parent
suspected of abusing him, based upon some evidence of
child abuse, ” does not shock the
conscience.” Id. (quoting Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
1990)). The undersigned will attempt to navigate the contours
of the plaintiffs' section 1983 claims against the
various defendants in light of this authority.
Complaint also asserts that the conduct of the defendants
constituted a conspiracy actionable under 42 U.S.C.
§§ 1985 and 1986 and violated Michael's right
to equal protection. Michael further assert claims under
certain provisions of the West Virginia Constitution and
various other causes of action under West Virginia law.
Complaint also alleges that Diane Frederick's rights
under the Fourteenth Amendment and Article III, § 10 the
West Virginia Constitution were violated by the
defendants' conduct, which affected her familial
relationships with her granddaughter, S.F., and her daughter,
Y.A. Diane further alleges a violation of her rights under
the Fourth Amendment and Article III, § 6 the West
Virginia Constitution, arising out of her arrest for
trespassing. Specifically, she claims that Sims' conduct
in improperly obtaining a copy of Michael's psychological
evaluation led to her false arrest for trespassing when she
confronted the civil attorney who provided the report to Sims
at his office.
defendant has moved to dismiss the Complaint for failure to
state a claim under the legal provisions and theories cited
therein and based on certain absolute or qualified immunities
and statutory bars, including applicable statutes of
limitations. Each Motion to Dismiss is fully briefed and ripe
for adjudication. The undersigned will first address a number
of claims which, regardless of the defendants against whom
they are asserted, fail to state a plausible claim for relief
against all defendants. Thereafter, the undersigned will
address the claims against specific sets of defendants, and
will discuss the various immunity and statute of limitations
defenses that may be applicable to each.
The DHHR Defendants' first motion to dismiss should be
denied as moot in light of the filing of their Amended Motion
17, 2018, the DHHR Defendants filed a Motion to Dismiss (ECF
No. 13) and Memorandum of Law in support thereof (ECF No.
14). However, on August 17, 2018, prior to any response by
the plaintiffs, the DHHR Defendants filed an Amended Motion
to Dismiss (ECF No. 37) and Memorandum of Law in support
thereof (ECF No. 38), which added an additional ground for
dismissal of the Complaint against those defendants. The
Amended Motion has been fully briefed and is the motion upon
which the court should proceed. Accordingly, it is
respectfully RECOMMENDED that the presiding
District Judge DENY AS MOOT the DHHR
Defendants' first Motion to Dismiss (ECF No. 13).
The Complaint fails to state any plausible claims for relief
under 42 U.S.C. §§ 1985 and 1986.
Complaint alleges that various defendants engaged in conduct
that violated 42 U.S.C. §§ 1985 and 1986.
Specifically, in Counts 7, 8, 29, 30, 52, 53, 65, and 66, the
Complaint contends that the County Defendants, the
Prosecutor's Office Defendants, the Sheriff's
Department Defendants, the DHHR Defendants, and the NYAP
Defendants conspired to obstruct justice and engage in
witness tampering, which violated Michael Frederick's
rights under 42 U.S.C. §§ 1985(2) and (3). In
Counts 9, 31, 54, and 67, the Complaint further contends that
the supervisors of the various defendants should be held
liable under 42 U.S.C. § 1986 because they neglected to
prevent the violations of section 1985 by their subordinates.
as addressed in the various Motions to Dismiss, Michael
cannot state any plausible claims for relief under sections
1985 and 1986 because he has not alleged, and cannot
demonstrate, that the defendants conspired to deny his right
to equal protection of the laws grounded upon class-based
protected status. 42 U.S.C. § 1985(2) contains two
distinct sub-clauses. The first clause addresses conspiracies
involving access to federal courts, which is inapplicable
second clause concerns conspiracies directed at access to
state or territorial courts and requires that the conspiracy
to deny civil rights be based on a violation of equal
protection. While Michael has alleged that the defendants
violated his right to equal protection as an individual as
compared to other individuals, nowhere in the Complaint does
he allege that he was the target of a conspiracy to deprive
him of his civil rights based on class-based discriminatory
responses assert that the defendants “classified him as
a sexual predator” and “demonstrated animus
towards him as a sexual predator.” (See ECF
No. 104 at 19; ECF No. 112 at 9; ECF No. 116 at 11). However,
sex offenders are not a protected class. See Cunningham
v. Parkersburg Housing Auth., No. 6:05-cv-00940, 2007 WL
712392, at *6 (S.D. W.Va. Mar. 6, 2007) (listing various
cases finding that sex offenders are not a suspect class for
equal protection analysis). Thus, he cannot establish that
essential element and cannot rely on section 1985(2) as a
basis for relief.
“§ 1985(3) provides relief only when the
conspiracy is designed to deprive a person of equal
protection or equal privileges and immunities under the
laws.” Rhodes v. Smithers, 939 F.Supp. 1256,
1271 (S.D. W.Va. 1995). “Consequently, subsection
1985(3) concerns only those conspiracies which are motivated
by some racial or other class-based ‘invidiously
discriminatory animus.'” Id. The
defendants have correctly asserted that Michael has not
sufficiently pled discriminatory animus based on any suspect
classification, and the facts do not support such a claim.
The plaintiffs' responses, which focus only on the
alleged conspiratorial nature of the defendants' conduct,
do not even address such absence of discriminatory animus.
Michael has not sufficiently alleged any class-based
discriminatory animus as the motivation for the alleged
conspiracy, the Complaint fails to state any plausible claim
for relief against the defendants under 42 U.S.C.
§§ 1985(2) or (3). Additionally, claims under 42
U.S.C. § 1986 are entirely derivative of section 1985
claims. See Womack v. Owens, 736 Fed.Appx. 356 (4th
Cir. 2018) (“Because the complaint does not adequately
allege a § 1985 conspiracy, it cannot bring a claim
under § 1986.”); see also Park v. City of
Atlanta, 120 F.3d 1157, 1159-60 (11th Cir. 1997);
Weaver v. Torres, No. Civ. A. WMN-00-1126, 2000 WL
1721344 (D. Md. Nov. 17, 2000) (“An action under
section 1986 may only be maintained in tandem with a valid
claim under 42 U.S.C. § 1985(3).”). Thus, because
the Complaint fails to state any plausible claims under
section 1985, the claims under section 1986 also fail as a
matter of law and must be dismissed.
the undersigned proposes that the presiding District Judge
FIND that Counts 7, 8, 9, 29, 30, 31, 52,
53, 54, 65, 66, and 67 fail to state a plausible claim upon
which relief can be granted against any of the defendants.
The Complaint fails to state any plausible claims under the
Fourteenth Amendment Equal Protection Clause.
to the extent that Counts 10, 11, 12, 13, 14, 15, 32, 33, 34,
35, 36, 37, 46, 47, 48, 49, 50, 51, 55, 56, 57, 58, 59, and
62 allege claims against various defendants under 42 U.S.C.
§ 1983 for violations of Michael's Fourteenth
Amendment right to equal protection, those claims also fail
because he has not properly alleged any basis for an equal
protection claim. The Complaint appears to be asserting a
“class-of-one” equal protection claim, alleging
that the defendants violated his equal protection rights by
treating him differently from others similarly situated
without a rational basis. See Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (“Our cases have
recognized successful equal protection claims brought by a
‘class of one,' where the plaintiff alleges that
she has intentionally been treated differently from others
similarly situated and that there is no rational basis for
the difference in treatment.”) (Other citations
order to withstand a motion to dismiss, the plaintiff must
plead facts that plausibly demonstrate that he was treated
differently from others who were similarly situated and that
the unequal treatment was the result of discriminatory
animus. Willowbrook, 528 U.S. at 564; see also
Moss v. Clark, 886 F.2d 686, 690-91 (4th Cir. 1989);
Gardner v. Oslin, No. 7:12CV00108, 2012 WL 1941447,
at * 3 (W.D. Va. May 29, 2012) (Equal protection claim
requires showing that plaintiff was similarly-situated and
unequal treatment was not rationally related to a legitimate
governmental purpose). As noted by the defendants, the
Complaint herein pleads no facts to establish unequal
treatment by the defendants concerning similarly-situated
persons. Thus, the defendants contend that the Complaint
fails to establish any plausible violation of Michael's
rights under the Equal Protection Clause.
noted above, the plaintiffs' responses to several of the
motions to dismiss assert that the defendants singled him out
because he was an alleged sex offender. However, as the
undersigned previously addressed, sex offenders are not a
protected class for the purposes of equal protection claims.
See Cunningham 2007 WL 712392, at *6. Moreover, the
Complaint does not even suggest how Michael was treated
differently than similarly-situated alleged sex offenders.
the undersigned proposes that the presiding District Judge
FIND that the plaintiff's allegations
are insufficient to establish a class of one equal protection
claim and, therefore, the Complaint fails to state a claim
upon which relief can be granted under the Equal Protection
Clause of the Fourteenth Amendment. Accordingly, the
undersigned further proposes that the presiding District
Judge FIND that Counts 10, 11, 12, 13, 14,
15, 32, 33, 34, 35, 36, 37, 46, 47, 48, 49, 50, 51, 55, 56,
57, 58, 59, and 62 fail to state a plausible claim upon which
relief can be granted against any of the defendants.
The Complaint fails to state a plausible claim of intentional
or negligent infliction of emotional distress.
Intentional infliction of emotional distress
Count 70 of the Complaint, Michael alleges that the conduct
of all the defendants was “intentional and
reckless” and “extreme, outrageous and beyond all
possible bounds of decency.” (ECF No. 1 at 236,
¶¶ 1229, 1230). The Complaint further alleges as
Defendants acted individually and in concert to manufacture
inculpatory evidence and to conceal exculpatory evidence for
the purpose of perpetrating criminal action against Plaintiff
for sexual assault, sexual abuse, obstructing an officer,
fleeing from an officer, and manufactured charges against
Plaintiff for sending alleged obscene, anonymous, harassing,
and threatening communications that were calculated to shame
and humiliate Plaintiff.
Defendants acted individually and in concert to intimidate
witnesses and manipulate witnesses with the intention of
perpetuating criminal proceedings against Plaintiff.
Despite Plaintiff's exoneration, Defendants' conduct
will continue to have deleterious effects on Plaintiff who
will forever be associated with the false allegations
advanced by Defendants.
(Id. at ¶¶ 1231-1233).
Syllabus Point 6 of Harless v. First Nat. Bank in
Fairmont, 289 S.E.2d 692, 694 ( W.Va. 1982), the Supreme
Court of Appeals of West Virginia (the “SCAWV”)
set forth the elements of an intentional infliction of
emotional distress claim as “[o]ne who by extreme and
outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for
such emotional distress, and if bodily harm to the other
results from it, for such bodily harm.” Such a claim is
also known as the tort of outrage. Id. at 703. In
order to establish a claim for intentional infliction of
emotional distress or outrage, the plaintiff must prove the
(1) that the defendant's conduct was atrocious,
intolerable, and so extreme and outrageous as to exceed the
bounds of decency; (2) that the defendants acted with the
intent to inflict emotional distress, or acted recklessly
when it was certain or substantially certain emotional
distress would result from his conduct; (3) that the actions
of the defendant caused the plaintiff to suffer emotional
distress; and, (4) that the emotional distress suffered by
the plaintiff was so severe that no reasonable person could
be expected to endure it.
Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 425 (
W.Va. 1998). As previously noted by the SCAWV, whether the
complained-of conduct is legally outrageous is a question of
law to be decided by the trial court. Hatfield v. Health
Mgmt. Assocs. of W.Va., 672 S.E.2d 395, 404 ( W.Va.
2008). To be legally outrageous, the conduct must be
“more than unreasonable, unkind, or unfair; it must
truly offend community notions of acceptable conduct.”
Travis, 504 S.E.2d at 425.
circumstances in which liability for intentional infliction
of emotional distress has been imposed are extremely rare,
and “firm judicial oversight is required in order to
avoid losing control over the tort.” See Hines v.
Hills Dep't Store, 454 S.E.2d 385 ( W.Va. 1994) and
Johnson v. Hills Dep't Store, 488 S.E.2d 471,
476 ( W.Va. 1997). The standard is so stringent that it is
not enough even when a defendant “acted with an intent
which is tortious or even criminal, or that he has intended
to inflict emotional distress, or even that his conduct has
been characterized by ‘malice,' or a degree of
aggravation which would entitle” a plaintiff to
punitive damages in another tort claim. Harless, 289
S.E.2d at 704-705.
plaintiffs assert that, in determining whether the
defendants' conduct rises to an outrageous level, the
court must consider the totality of the circumstances. They
contend that the totality of the circumstances herein
demonstrates that the defendants “inserted themselves
so deep into Plaintiffs' familial association that it
saturated the Fourteenth Amendment rights under the
Constitution” and “destroyed and broke down every
facet of the family unit[.]” (ECF No. 89 at 19-20).
They also suggest that the conduct of the prosecuting
attorneys, Sims and Rasheed, in pursuing the harassing
communications charges, which resulted in his incarceration
and assault at the ERJ, is a direct causation of his
emotional and physical injuries and “goes beyond any
bounds of decency.” (ECF No. 112 at 20). The
defendants, however, contend that none of the plaintiffs'
allegations demonstrate conduct “beyond the bounds of
human decency.” (ECF No. 101 at 10).
undersigned proposes that the presiding District Judge
FIND that the allegations contained in the
plaintiffs' Complaint do not rise to the high level of
outrageousness necessary to support a claim of intentional or
reckless infliction of emotional distress.
Negligent infliction of emotional distress
70 of the Complaint also alleges that the “Supervisory
Defendants were negligent in engaging in this conduct, from
which it was reasonably foreseeable that Plaintiff would
suffer emotional distress and psychological harm.” (ECF
No. 1 at 237, ¶ 1235). The Complaint further alleges
that the “Supervisory Defendants further negligently
ignored evidence demonstrating the Defendants' misconduct
underlying the investigation.” (Id., ¶
1236). Consequently, Michael claims that he “suffered
humiliation, mortification, imprisonment, loss of custody of
his children, and embarrassment, sleeplessness, and anxiety .
. . .” (Id., ¶ 1237). Notwithstanding the
conclusory nature of these allegations, this claim fails as a
matter of law.
well-established under West Virginia law that, absent a
physical injury to the plaintiff, negligent infliction of
emotional distress claims may only be maintained in three
very limited circumstances, which are: (1) when the plaintiff
witnesses a person closely related to him suffer critical
injury or death as a result of the defendant's negligent
conduct, Heldreth v. Marrs, 425 S.E.2d 157 ( W.Va.
1992); (2) when the defendant negligently exposed the
plaintiff to disease, causing emotional distress based on
“fear of contracting a disease, ” Marlin v.
Bill Rich Constr., Inc., 482 S.E.2d 620 ( W.Va. 1996);
and (3) for negligence in mishandling a corpse,
Ricottilli v. Summersville Mem'l Hosp., 425
S.E.2d 629 ( W.Va. 1992). The plaintiffs' case does not
fall under these circumstances.
to the extent that Michael is relying on the physical and
emotional injuries he suffered when he was sexually assaulted
at the ERJ to support his claim of negligent infliction of
emotional distress, he cannot meet the causation requirement
under state law. As noted in the reply briefs filed by the
Prosecuting Attorney's Office Defendants, “a
willful, malicious, or criminal act breaks the chain of
causation” for the injury alleged to have been caused
by prior negligence. See Yourtee v. Hubbard, 474
S.E.2d 613, 620 ( W.Va. 1996). (ECF No. 125 at 7; ECF No. 126
at 12; ECF No. 127 at 10). Thus, because the intervening
assault by the inmates at the ERJ was a willful, malicious,
and potentially criminal act, Michael cannot claim that his
injuries therefrom were proximately caused by the
investigations and prosecutions at issue in this matter.
the plaintiff's allegations do not fall into any of these
categories, the undersigned proposes that the presiding
District Judge FIND that the Complaint fails
to state a valid claim of negligent infliction of emotional
distress against any of the defendants. Consequently, the
undersigned further proposes that the presiding District
Judge FIND that Count 70 of the Complaint
fails to state a plausible claim upon which relief can be
granted against any of the defendants.
The plaintiffs lack standing to bring a Fourth Amendment
claim arising out of the alleged unlawful seizure of
1, 2, 3, 22, 24, and 44 of the Complaint allege that various
defendants violated Michael's rights under the Fourth and
Fourteenth Amendments through the unreasonable seizure of his
minor child. However as asserted in the various
defendants' motions, Fourth Amendment rights are personal
rights and cannot be asserted on another's behalf. Thus,
even if the plaintiffs could establish that S.F. was
“unreasonably seized” when she was held in the
school offices to make her disclosures of alleged sexual
abuse, any alleged violation of the Fourth Amendment would be
personal to S.F. and cannot be vicariously asserted by
Michael or Diane Frederick. See, e.g., Parker v.
Austin, 105 F.Supp.3d 592 (W.D. Va. 2015) (citing
Alderman v. United States, 394 U.S. 165 (1969)).
Parker, the district court dismissed Fourth
Amendment claims brought by the parents of children who were
removed from their home based upon suspected abuse, because
only the children, not the parents, were seized). The
defendants herein assert that Michael's Fourth Amendment
claims based upon the alleged seizure of his daughter on June
11, 2014 should suffer the same fate because they do not
state a legally cognizable claim on his behalf. On this
basis, the undersigned proposes that the presiding District
Judge FIND that Counts 1, 2, 3, 22, 24, and
44 of the Complaint, as pled, fail to state a plausible claim
for relief against any of the defendants.
The DHHR and its employees acting in their official
capacities are not persons under 42 U.S.C. § 1983 and
are entitled to absolute immunity under the Eleventh
Amendment on all of the plaintiffs' claims.
4, 5, 16, 17, 25, 26, 28, and 38 of the Complaint assert
claims against the DHHR and its employees named as defendants
in their official capacities under 42 U.S.C. § 1983 for
alleged violations of Michael's Fourth and Fourteenth
Amendment rights. Michael alleges that the DHHR
inappropriately removed his child from his custody and care
and then engaged in a conspiracy with other defendants to
conceal exculpatory evidence, which, he ...