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Kelly v. West Virginia Regional Jail Correctional Facility Authority

United States District Court, S.D. West Virginia

July 2, 2019

FARRELL G. KELLY, Plaintiffs,



         Pending 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.

         I. Background

         This is 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.

         Kelly 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.

         On or 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.

         Kelly 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 excessive force.

         As a 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 court.[1]

         At 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.

         II. Discussion

         A. Counts I and IV

         In 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.

         Qualified 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 oppressive.” Id.

         The Due 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 ...

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