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Frederick v. West Virginia Department of Health and Human Services

United States District Court, S.D. West Virginia

February 15, 2019



          Dwane L. Tinsley, United States Magistrate Judge

         Following 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[1], and National Youth Advocate Program (hereinafter “the NYAP Defendants”) (ECF No. 86).


         On June 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.

         Due to 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.

         On June 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).

         As a 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.[2] (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).

         A CPS 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, 95).

         Later 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).

         Driscoll 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).

         On June 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.

         The 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).

         Rather, 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).

         On June 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).

         On June 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).

         During 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, 155).

         On or 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).

         On June 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).

         On June 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.)

         The Complaint alleges that, during the probation hearing[3], 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).

         A 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).

         On June 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).[4]

         On June 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).

         On July 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, ¶ 219).

         On July 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.

         On July 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.

         During 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).

         On July 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).

         In 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).

         Prior 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).

         On 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).

         On 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).

         During 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., ¶ 302).

         According 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).

         Throughout 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).

         On 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, ¶ 334).

         On 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).

         On 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).

         On 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).

         Sims 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., ¶ 362).

         On May 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).

         Subsequently, 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).

         Following 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).

         Between 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).

         Subsequently, 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.

         Michael's 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, [5] 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).

         Hearings 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, ¶ 457).

         Sims 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).

         On 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).

         That 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.[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).

         On 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).

         However, 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).

         On February 10, 2017, Bottner and Pavlinic met with the new Prosecuting Attorney[7] 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 his favor.


         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.

         The 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 to relief.

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.

         Furthermore, 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).


         A 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.)

         The 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.

         Accordingly, the court should address his Fourth Amendment claims as claims grounded in malicious prosecution.

         The section 1983 claims herein also appear to be asserting violations of the Due Process Clause of the Fourteenth Amendment.

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).

         While 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.

         Turning 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.

         The 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.

         The 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.

         Each 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.

         A. The DHHR Defendants' first motion to dismiss should be denied as moot in light of the filing of their Amended Motion to Dismiss.

         On July 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).

         B. The Complaint fails to state any plausible claims for relief under 42 U.S.C. §§ 1985 and 1986.

         The 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.

         However, 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 here.

         The 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 animus.

         Michael 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.

         Similarly, “§ 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.

         Because 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.

         Accordingly, 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.

         C. The Complaint fails to state any plausible claims under the Fourteenth Amendment Equal Protection Clause.

         Similarly, 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 omitted).

         In 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.

         As 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.

         Thus, 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.

         D. The Complaint fails to state a plausible claim of intentional or negligent infliction of emotional distress.

         1. Intentional infliction of emotional distress

         In 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 follows:

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).

         In 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 following:

(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.

         The 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.

         The 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).

         The 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.

         2. Negligent infliction of emotional distress

         Count 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.

         It is 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.

         Furthermore, 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.

         Because 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.

         E. The plaintiffs lack standing to bring a Fourth Amendment claim arising out of the alleged unlawful seizure of S.F.

         Counts 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.[8] 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)).

         In 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.

         F. 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.

         Counts 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 ...

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