United States District Court, S.D. West Virginia
FARRELL G. KELLY, Plaintiffs,
WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY; CORRECTIONAL OFFICERS BARRETT; GRAHAM; DILLARD; WOOD; MILLER; CHANNELL; AND JOHN/JANE DOE, Defendants.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.
is a motion to dismiss (ECF No. 10), filed July 30, 2018 by
defendant Correctional Officers Channel and Miller, and a
motion to dismiss (ECF No. 16), filed August 21, 2018 by
defendant Correctional Officers Barrett, Dillard, Graham, and
Wood. Those six correctional officers constitute all of the
identified individual defendants in this case.
an excessive force case originally brought by the plaintiff,
Farrell G. Kelly (“Kelly”), in the Circuit Court
of Kanawha County, West Virginia. Kelly filed his amended
complaint on April 20, 2018 and the defendants removed on
June 22, 2018.
was a pre-trial detainee at Tygart Valley Regional Jail,
located in Belington, West Virginia, when he claims the
defendant correctional officers used excessive force against
him. Amended Compl. ¶ 1. The plaintiff was acquitted by
a jury of the offense for which he was being detained on or
around March 31, 2016 and released thereafter. Id.
about March 24, 2016, Kelly, a pre-trial detainee at the
jail, claims the defendants told him to “cuff
up.” Id. ¶ 13. He asserts that he
complied with the order and his hands were handcuffed behind
his back. Id. Once handcuffed, the defendants
allegedly “entered [Kelly's] cell and accosted
[him] and used excessive force against [him] by, among other
things, slamming [him] into the ground and hitting and
kicking” him. Id. ¶ 14. According to the
plaintiff, he was “kicked in the face with such force
that he chipped/damaged his front teeth” and
“suffered bruising, abrasions, and injury to his
back” from the use of excessive force by the
defendants. Id. The plaintiff claims that
“[a]t no time was [he] a threat to the defendants and
at no time did [he] threaten any of the defendants.”
Id. ¶ 15. Plaintiff adds that his injuries
required medical treatment that he was denied. Id.
at ¶ 17. Plaintiff further alleges that the
officers' conduct was carried out without just cause, was
outrageous and intentional, proximately caused him to suffer
severe bodily injuries, and was done to inflict unnecessary
harm upon him when he posed no threat or harm. Id.
¶ 21, 22.
asserts that the defendants' conduct violated West
Virginia C.S.R. 95-1-15.9, which imposes a duty upon
employees to protect inmates from harm and to comply with the
use of force policy adopted by WVRJCFA. Id. ¶
15. In addition, the plaintiff claims the conduct alleged
violated his Fourteenth Amendment right to be free from
result, Kelly filed this five-count action consisting of
Counts I, II, IV, V, and VI (there is no Count III). Counts V
and VI are only against WVRJCFA, and Count VI (vicarious
liability) has been dismissed by prior order of the
issue here are the remaining three counts that charge the
individual correctional officers as follows: Count I, assault
and battery; Count II, intentional infliction of emotional
distress/outrageous conduct; and Count IV, violation of 42
U.S.C. § 1983. The individual correctional officers now
seek to dismiss Counts I, II, and IV.
Counts I and IV
Count IV, Kelly alleges a Section 1983 claim against the six
individual defendant correctional officers, Barrett, Graham,
Dillard, Wood, Miller, and Channel, claiming that the conduct
alleged violated his constitutional rights under the
Fourteenth Amendment. He also alleges state law assault and
battery in Count I. The defendants move to dismiss both
counts on the basis of qualified immunity.
immunity shields a correctional officer from allegations of
constitutional violations and civil liability in situations
where the officer was engaged in acts which constitute a
discretionary function, were carried out “within the
scope of his authority, ” and which “did not
violate clearly established laws of which a reasonable
official would have known.” Syl. pt. 5, W. Virginia
Reg'l Jail & Corr. Facility Auth. v. A.B.,
766 S.E.2d 751 (2014). Qualified immunity does not cover acts
that are “fraudulent, malicious, or otherwise
Process Clause of the Fourteenth Amendment “protects a
pretrial detainee from the use of excessive force that
amounts to punishment.” Graham v. Connor, 490
U.S. 386, 395 n.10 (1989). To establish that an officer's
force was excessive, a plaintiff must show “only that
the force purposely or knowingly used against him was
objectively unreasonable.” Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2473 (2015). [“I]n
determining whether the force used was objectively
unreasonable, a court considers ...