United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge.
is defendants Tyler Dana McFeeley (“Trooper
McFeely”) and C.R. “Jay” Smithers's
(“Colonel Smithers”) (collectively, the
“State Defendants”) motion to dismiss, filed June
5, 2018. A third state defendant, Trooper Steven Demaske, is
not shown to have been served with process and has not
pending is the State Defendants' motion to designate
their motion to dismiss as unopposed and dismiss
plaintiff's claims for failure to prosecute, filed July
30, 2018, which motion is denied as moot, as hereinafter
Facts as Alleged
Dan Brown is a resident of Clay, West Virginia. First Am.
Compl. (“Compl.”) ¶ 4. On July 26, 2013,
defendant Deputy Robert Belt, a deputy sheriff of Clay
County, West Virginia saw Mr. Brown on the side of the road
with a flat tire. Id. ¶ 10. Deputy Belt then
approached Mr. Brown, allegedly without any reasonable
suspicion, began to conduct a traffic stop for driving under
the influence (“DUI”) and searched his vehicle.
Id. ¶ 11. Mr. Brown alleges that Deputy Belt
caused the blowout of his tire that resulted in the officer
pulling him over, Id. ¶ 33, and that Deputy
Belt knew of Mr. Brown's whereabouts due to information
obtained from Shonda Tanner, a mutual acquaintance,
Id. ¶¶ 30-33. When Deputy Belt ordered Mr.
Brown to undergo three field sobriety tests, the
“Horizontal Gaze Nystagmus, ” the “Walk and
Turn, ” and the “One-Leg Stand, ” Mr. Brown
pointed out that he suffered from several physical
disabilities that prevented him from being able to adequately
complete the tests. Id. ¶¶ 12-17. In
particular, he has long had nystagmus, an eye condition, as
well as a leg injury that makes him unable to place weight on
his leg. Id. ¶¶ 15-16. Mr. Brown has been
determined by the United States Social Security
Administration to be fully disabled. Id. ¶ 25.
Although Mr. Brown told Deputy Belt that he was “100%
disabled” and “could not take the normal tests
for DUI, ” Deputy Belt continued to administer the
three tests without offering accommodations. Id.
¶¶ 12, 21. Following the tests, Deputy Belt
arrested Mr. Brown for DUI. Id. ¶ 21.
Brown did take a preliminary breath test, and the result
showeda blood alcohol level of 0.0. Id. ¶ 18.
He asked to be given a blood test to provide further proof of
his sobriety, but Deputy Belt failed to request or administer
one. Id. ¶¶ 19-20.
charge was later dismissed, and when Mr. Brown contested the
revocation of his driver's license in an administrative
hearing, Deputy Belt admitted to being negligent when filling
out the DUI information sheet. Id. ¶¶
22-23. Also at this hearing, Deputy Belt is said to have
stated that he had never received training on compliance with
the Americans with Disabilities Act (“ADA”) or on
how to provide reasonable accommodations to disabled
individuals whose disability impairs their ability to pass
field sobriety tests. Id. ¶ 23.
year and a half after the July 2013 incident, on or about
February 20, 2015, Mr. Brown reported a robbery of over $40,
000 worth of tools from his property. Id.
¶¶ 26-27. Deputy Belt responded to Mr. Brown's
call to the authorities yet did not file a police report or
investigate the robbery. Id. ¶¶ 26-27.
Because Deputy Belt did not file a police report, Mr.
Brown's insurance claim was made more difficult to
support. Id. ¶¶ 28-29. Additionally, the
tools were never recovered. Id. ¶ 29. Mr. Brown
believes this failure to investigate to be retaliation for
the original DUI charge being dismissed. Id. ¶
22, 2015, Mr. Brown was once again arrested for DUI.
Id. ¶ 36. Mr. Brown alleges on good faith
information and reasonable belief that Deputy Belt
communicated to members of the West Virginia State Police to
“target” the plaintiff and charge him with DUI.
Id. ¶ 35. West Virginia State Troopers Huff,
Tallman and defendant Demaske were the arresting officers for
charges of DUI, left of center driving, and no proof of
insurance. Id. ¶ 36. Mr. Brown informed the
officers of his disability and subsequently failed the three
standard field sobriety tests. Id. ¶¶ 64,
67. He later took a breath test which revealed that he had a
blood alcohol level of 0.0. Id. ¶ 65. All three
charges were later dismissed after the officers failed to
appear or present any proof of impairment. Id.
January 15, 2016, Mr. Brown called the police to report a man
invading his home and battering him. Id. ¶ 38.
Defendant Trooper McFeeley, a West Virginia State Trooper,
responded to the call and arrested Mr. Brown for burglary,
destruction of property, and providing false information to
the state police, all without prosecuting the alleged crimes
that Mr. Brown called to report. Id. ¶ 39. Mr.
Brown asserts that this arrest was in retaliation for filing
the original complaint in this lawsuit on July 27, 2015
against defendants Deputy Belt, Clay County Sheriff Garrett
Samples, Jr., and the Clay County Commission (“the
Commission”). Id. at 21-22.
on July 5, 2016, Mr. Brown was driving in downtown Clay when
he was in a minor car accident. Id. ¶ 43.
Deputy Belt responded to the accident along with Deputy Tyler
Caruthers, a fellow Clay County deputy sheriff. Id.
¶ 44. They conducted DUI field sobriety tests and
charged Mr. Brown with DUI. Id. ¶¶ 44-45,
48. Mr. Brown had informed the deputies that he was
physically unable to pass the field sobriety tests, yet the
officers continued to conduct the same three field sobriety
tests as had been conducted by Deputy Belt at a previous
stop. Id. ¶¶ 47-48, 67. Mr. Brown
participated in a breath test which again showed that he had
a blood alcohol level of 0.0. Id. ¶ 65. Mr.
Brown admitted to taking his daily prescription medications
but also stated that no one had ever told him they might
impair his ability to drive. Id. ¶ 49. Mr.
Brown requested a blood test to prove that he had only taken
his prescribed medications, but the officers refused.
Id. ¶ 50. Upon arriving at the police station,
Mr. Brown was taken to a dark closet and held there for
approximately four hours while waiting for an expert from the
Charleston, West Virginia detachment who was to conduct
specialized testing of the plaintiff. Id.
¶¶ 46, 51-52. During that time, he was placed under
a “red light” for further testing of impairment.
Id. ¶ 52. This treatment triggered a migraine,
and the officers would not allow Mr. Brown to take his
medication to alleviate it. Id. This charge for DUI
was still pending as of plaintiff's filing of his motion
to amend the complaint on September 15, 2016. Id.
23, 2016, Trooper McFeeley arrested Mr. Brown for another
burglary. Id. ¶ 53. Mr. Brown claims that upon
arrest, Trooper McFeeley elected not to believe Mr.
Brown's story regarding the incident and that the
officer's choice was motived by retaliatory intent for
the filing of this lawsuit on July 27, 2015. Id.
¶¶ 105, 151
27, 2015, plaintiff filed his original complaint with the
court against Deputy Belt, Sheriff Samples, and the
Commission for the actions taken by Deputy Belt during the
July 26, 2013 DUI arrest. The complaint contained five
“causes of action” which the court treated as
Counts 1 through 5, namely, Count 1, failure to provide
reasonable accommodation under Title II of the ADA, 42 U.S.C.
§ 12132, and § 504 of the Rehabilitation Act, 29
U.S.C. § 794; Count 2, negligent hiring, supervision,
and/or training; Count 3, Fourth and Fourteenth Amendment due
process violations; Count 4, wrongful arrest; and Count 5,
intentional infliction of emotional distress
(“IIED”). On October 13, 2017, the court ruled on
the joint motion to dismiss of Deputy Belt, the Commission
and Sheriff Samples, the only defendants then charged in the
complaint. ECF No. 26. Pursuant to that motion, the court
dismissed the negligent hiring prong of Count 2 and all of
Counts 4 (wrongful arrest) and 5 (IIED) but did not dismiss
any other claims. Id. at 15.
September 15, 2016, the plaintiff filed for leave to amend
the complaint. The court granted the motion on March 30,
2018, and the First Amended Complaint with the named
defendants as set forth in the case caption above was deemed
filed on that same day, thereby adding as defendants Deputy
Caruthers, Trooper Demaske, Trooper McFeeley, Colonel
Smithers and Magistrate Jeffrey Boggs. The court at the same
time ordered that the negligent hiring claim, now in Count 4,
be dismissed; that the July 26, 2013 action for wrongful
arrest against Deputy Belt, now in Count 6, was time barred
due to the one-year statute of limitations and was dismissed;
and that Magistrate Boggs, named in several counts, be
dismissed from the action. ECF No. 29, at 6.
plaintiff's First Amended Complaint, he asserts for the
first time claims against Trooper McFeeley and Colonel
Smithers. He also alleges claims against the West Virginia
State Police, not named as a party to this action and for
whom the plaintiff has not issued a summons. Accordingly, the
court does not address claims against that entity, but does
treat the reference to the West Virginia State Police as an
indication that the named state defendants are being sued in
their official capacity. As noted, the plaintiff also asserts
claims against Trooper Steven Demaske and issued summons to
him on April 19, 2018, but there is no proof that service has
First Amended Complaint raises sixteen “causes of
action, ” which the court treats as Counts 1 through
16. One or more of Trooper Demaske, Trooper McFeeley or
Colonel Smithers is the subject of the following ten counts:
Count 2, failure to provide reasonable accommodations under
Title II of the ADA and § 504 of the Rehabilitation Act
during the second DUI traffic stop, on May 22, 2015, against
Trooper Demaske, Colonel Smithers, a supervising officer of
the West Virginia State Police, and naming the West Virginia
State Police; Count 4, negligent supervision and/or training
arising from the May 22, 2015 DUI arrest against Colonel
Smithers and naming the West Virginia State Police; Count 5,
violation of Due Process Rights under the Fourth, Fifth, and
Fourteenth Amendments of the Constitution under 42 U.S.C.
§ 1983 arising from the May 22, 2015 DUI arrest against
Colonel Smithers, Trooper Demaske and naming the West
Virginia State Police; Count 7, wrongful arrest for DUI on
May 22, 2015 against Trooper Demaske; Count 8, wrongful
arrest for burglary, destruction of property and providing
false information to state police on January 15, 2016 against
Trooper McFeeley; Count 10, wrongful arrest for burglary on
July 23, 2016 against Trooper McFeeley; Count 12, retaliation
claim under the First and Fourteenth Amendments and 42 U.S.C.
§ 1983 for “targeting” Mr. Brown in the DUI
arrest on May 22, 2015 against Trooper Demaske, Colonel
Smithers and naming the West Virginia State Police; Count 13,
retaliation claim under the First and Fourteenth Amendments
and 42 U.S.C. § 1983 for wrongful arrest for burglary,
destruction of property, and providing false information to
state police on January 15, 2016 against Trooper McFeeley;
Count 15, retaliation claim under 42 U.S.C. § 1983 for
wrongful arrest for burglary on July 23, 2016 against Trooper
McFeeley, Colonel Smithers and naming the West Virginia State
Police; and Count 16, intentional infliction of emotional
distress/outrage against all State Defendants for all of the
allegations contained in the First Amended Complaint against
State Defendants filed, on June 5, 2018, a motion to dismiss
the claims against them in the First Amended Complaint, and
later, on June 11, 2018, Deputy Belt, Deputy Caruthers,
Sheriff Samples and the Commission (collectively, the
“County Defendants”) did the same. The plaintiff
did not initially respond to these motions, but the court
ordered him to file a response by a certain date, which he
failed to do. Ultimately, the plaintiff filed his response,
which the court permitted and each group of defendants filed
their own reply.
the State Defendants' motion to dismiss and supporting
memorandum, the court notes in particular the confusing
language in the abbreviated motion to dismiss as set forth in
the phrase: “Plaintiff's claims are barred by the
applicable statute of limitations and inapplicable to
Defendants Smithers and McFeeley.” Defs. Smithers
& McFeely's Mot. Dismiss, ECF No. 36, at 1
(underlining supplied). Additionally, in their memorandum in
support of their motion to dismiss, the State Defendants
attempt to “incorporate by reference the Motion to
Dismiss arguments of any co-defendants to the extent that
those argument[s] apply to Plaintiff's claims against all
Defendants.” Defs. Smithers & McFeely's Mem.
Supp. Mot. Dismiss (“State Defs.' Mem.”), ECF
No. 37, at 16 n.3. The court declines to consider any such
later-filed County Defendant arguments that were merely, at
best, imagined at the time of the filing of the State
Defendants' motion to dismiss. Accordingly, the court
will only evaluate the arguments actually made in the State
Defendants' briefings in support of their motion to
plaintiff filed his response to the motions to dismiss,
Colonel Smithers and Trooper McFeeley filed a motion to
designate their motion to dismiss as unopposed and to dismiss
plaintiff's claim for failure to prosecute. ECF No. 49.
Inasmuch as the court granted plaintiff's motion to
extend the time for him to file a response, ECF No. 51, an
order with which the plaintiff eventually complied, this
motion is moot.
Standard of Review
Rule of Civil Procedure 8(a)(2) requires that a pleader
provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.” Fed.R.Civ.P.
8(a)(2); Erickson v. Pardus, 127 S.Ct. 2197, 2200
(2007). Rule 12(b)(6) correspondingly permits a defendant to
challenge a complaint when it “fail[s] to state a claim
upon which relief can be granted . . . .” Fed.R.Civ.P.
required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled
on other grounds, Twombly, 550 U.S. at 563); see
also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th
Cir. 2007). In order to survive a motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (quoting Twombly, 550 U.S. at
570); see also Monroe v. City of Charlottesville,
579 F.3d 380, 386 (4th Cir. 2009).
of the Rule 12(b)(6) standard requires that the court
“‘accept as true all of the factual allegations
contained in the complaint . . . .'”
Erickson, 127 S.Ct. at 2200 (quoting
Twombly, 127 S.Ct. at 1965); see also South
Carolina Dept. Of Health And Environmental Control v.
Commerce and Industry Ins. Co., 372 F.3d 245, 255 (4th
Cir. 2004) (quoting Franks v. Ross, 313 F.3d 184,
192 (4th Cir. 2002)). The court must also “draw all
reasonable . . . inferences from th[e] facts in the
plaintiff's favor . . . .” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
Statute of Limitations
Effect of Granting the Motion to Amend the Complaint
Smithers and Trooper McFeeley argue that the claims asserted
against them in Counts 2, 4, 5, 8, 12, 13, and certain claims
in Count 16 should be dismissed because those claims are
barred by the applicable statute of limitations periods.
State Defs.' Mem., ECF No. 37, at 5-9. The claims to
which the statute of limitations defense is being raised
arise from ...