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Lizotte v. Finley

United States District Court, S.D. West Virginia, Charleston

July 2, 2019

LISA LIZOTTE, individually and as parent and natural guardian of WALTER LIZOTTE, Plaintiff,
SHERIFF MICHAEL FINLEY sic, Fridley, Fayette County Sheriff's Dept., DEPUTY JOSEPH A. YOUNG, Fayette County Sheriff's Office, DEPUTY STEVE K. NEIL sic, Neal, Fayette County Sheriff's Office, and STEVE KESSLER, former Fayette County Sheriff, and MICHAEL FRANCIS, Superintendent, WV Division of Corrections and Rehabilitation, Southern Regional Jail and Correctional Facility, Defendants.



         Pending are the motions to dismiss of defendants Deputy Joseph A. Young, Deputy Stephen K. Neal, and the Fayette County Sheriff, Michael Fridley[1], each filed February 20, 2019. The plaintiff filed a joint response to the three motions on March 20, 2019[2], to which each of the moving defendants replied on March 27, 2019.

         I. Factual and Procedural Background

         This case arises from an arrest that occurred on October 28, 2016. Early that morning, plaintiff Lisa Lizotte, a “middle-aged woman with many health problems, ” Compl. ¶ 36, and her son Walter were inside their home when, according to the complaint, “Defendants Neal and Young came to the front door . . . and demanded entry.” Id. ¶¶ 10-11. The officers allegedly “had no warrant and no probable cause to enter the Lizotte home.” Id. ¶ 12. Ms. Lizotte “stood in the door of her home and denied the officers permission to enter her home.” Id. ¶ 13. In order to gain entry despite the persistent denial of Ms. Lizotte, Officer Young allegedly “assaulted Ms. Lizotte by pushing and knocking her to the floor.” Id. ¶ 16. He then placed her in handcuffs “‘to detain her so that (he) could continue (his) investigation however she continued to refuse to comply with (illegal and unconstitutional) direction at which time [he] placed her in the back of (his) patrol car and advised her that she was now under arrest.'” Id. ¶ 17 (alterations in original; apparently quoting a report of Officer Young with no citation). Ms. Lizotte's son Walter was “present for, observed, and was [allegedly] traumatized by all of these events.” Id. ¶ 18.

         While handcuffed in the back seat of the patrol car, Ms. Lizotte was allegedly “assaulted by Deputy Steve Neal who sprayed ‘OC' spray into her face[, ]” id. ¶ 19, including her “eyes, nose, and mouth[.]” Id. ¶ 38. Officer Young then drove the patrol car to the Southern Regional Jail, allegedly at “excessively high rates of speed . . . thus endangering the life and health of Ms. Lizotte.” Id. ¶ 20. Ms. Lizotte was “delivered into the custody of Defendant West Virginia Department of Corrections and Rehabilitation's Southern Regional Jail and Correctional Facility where she was [allegedly] illegally held, without any legitimate charges against her for several days.” Id. ¶ 22. While in jail, she allegedly “suffered maltreatment at the hands of unknown employees[ ]and or agents of the defendant West Virginia Department of Corrections and Rehabilitation's Southern Regional Jail and Correctional Facility in that she was forced to sleep upon a bare concrete floor, and was assaulted by said unknown employees and or agents of said defendant with resulting dental injury.” Id. ¶ 23.

         Ms. Lizotte was charged with “obstructing justice, assault on a police officer and disorderly conduct[, ]” id. ¶ 27, each of which, according to the complaint, “were without merit and were dismissed.” Id. ¶ 29. The arrest was allegedly “without reasonable grounds for the Defendants to believe that Plaintiff had committed the offenses charged.” Id. ¶ 30. The defendants allegedly knew that they lacked probable cause to arrest Ms. Lizotte “as they were the ones who [allegedly] committed assault against [Ms. Lizotte.]” Id. Ms. Lizotte claims that the “Fayette County Sherriff (sic) and Fayette County Sheriff's Department failed to train and supervise his/its Defendant employees adequately to prevent such blatant miscarriages of justice[, ]” id. ¶ 31, and further alleges that the defendants' actions in arresting her were “concerted and malicious[.]” Id. ¶ 34. She additionally alleges that “Defendants Young, Neal, and the Fayette County Sheriff's Department had knowledge of, or (had they diligently exercised their duties to instruct, supervise, and control their own actions and actions of their agents) should [have] had knowledge that the wrongs conspired to be done were about to be committed[, ]” and that each defendant “had the power to prevent or aid in preventing the commission of said wrongs and could have done so by reasonable diligence[, ]” yet “intentionally, knowingly, recklessly, or negligently, failed to do so.” Id. ¶ 51.

         As a result of these events, Ms. Lizotte claims to have suffered “severe physical injury in the form of eye pain from the OC spray, dental injury, and severe mental anguish[.]” Additionally, the complaint alleges that “the Plaintiff's child Walter Lizotte suffered extreme distress from being forced to observe and endure his mother's maltreatment at the hands of uniformed and armed police officers.” Id. ¶ 81.

         Ms. Lizotte brings eleven causes of action arising from these events, each claim asserted against all defendants. She asserts six violations of 42 U.S.C. § 1983: false arrest (Count I); excessive force (Count II); detention and confinement (Count III); conspiracy (Count IV); refusing or neglecting to prevent (Count V); and malicious prosecution and abuse of process (Count VI). She additionally asserts five state law claims: false arrest and imprisonment (Count VII); assault and battery (Count VIII); malicious prosecution and malicious abuse of process (Count IX); intentional and negligent infliction of emotional distress (Count X); and negligence (Count XI). For each of the asserted claims, Ms. Lizotte seeks $2, 000, 000 in compensatory damages and $5, 000, 000 in punitive damages. Id., WHEREFORE clauses throughout.

         Ms. Lizotte filed her original complaint on October 27, 2018, and an amended complaint on December 12, 2018. Deputy Joseph A. Young, Deputy Stephen K. Neal, and the current Fayette County Sheriff, Michael Fridley[3], each filed motions to dismiss. The nonmoving defendants, Steve Kessler, Michael Francis, and the Southern Regional Jail and Correctional Facility[4], have not been served by the plaintiff nor otherwise made an appearance in this case.

         II. Motion to Dismiss Standard

         Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) correspondingly provides that a pleading may be dismissed when there is a “failure to state a claim upon which relief can be granted.”

         To survive a motion to dismiss, a pleading must recite “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)). In other words, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         A district court's evaluation of a motion to dismiss is underlain by two principles. First, the court “must accept as true all of the factual allegations contained in the [pleading].” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56). Such factual allegations should be distinguished from “mere conclusory statements, ” which are not to be regarded as true. Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Second, the court must “draw[] all reasonable factual inferences . . . in the [nonmovant's] favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

         III. Discussion

         As an initial matter, each of the moving defendants argue in their respective motions that the case should be dismissed because service was not timely executed. Specifically, the original complaint in this case was filed on October 27, 2018, and each of the moving defendants contend that they were not served until January 30, 2019, five days after the ninety-day period for service required under Fed.R.Civ.P. 4(m) had expired.

         The plaintiff does not dispute the timing set forth by the defendants, but rather asks the court to exercise its discretion by denying the defendants' motion and granting her motion, filed contemporaneously with her response to the motion to dismiss, to extend the time for service of process through January 30, 2019. In support, she contends that: the defendants would not suffer any prejudice from the extension; the statute of limitations would bar the refiling of her claims; and the delay was due to excusable neglect, in that her counsel was injured in a motor vehicle accident and was the only attorney working on the case. In response, the defendants argue that the plaintiff has not shown good cause because service of process need not be performed by an attorney. Finding good cause, the court grants the plaintiff's motion to extend the time of service and the defendants' first argument is rejected.

         Next, each of the moving defendants argue that the statute of limitations has expired for the state law claims of false arrest, assault and battery, and malicious prosecution and abuse of process. Inasmuch as the plaintiff concedes that the claims for false arrest and for malicious prosecution and abuse of process are governed by a one-year statute of limitations and does not dispute that the claims accrued well over one year prior to the filing of her complaint, those claims are dismissed.

         As for assault and battery, however, the plaintiff contends that the claim is governed by a two-year statute of limitations, a contention to which the defendants do not reply. Indeed, W.Va. Code § 55-2-12 states that “[e]very personal action for which no limitation is otherwise prescribed shall be brought . . . within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries[.]” See also Courtney v. Courtney, 190 W.Va. 126, 129 (1993) (“it is clear that damages for personal injuries arising out of an assault and battery are controlled by the two-year statute of limitations contained in W.Va. Code, 55-2-12(b).”). The court thus agrees with the plaintiff that her claim for assault and battery is governed by a two-year statute of limitations. Inasmuch as the alleged assault and battery occurred on October 28, 2016, and the complaint was filed October 27, 2018, the court finds that the claim was brought within the statute of limitations and cannot be dismissed on that ground.

         At this stage, the court has dismissed Count VII --state law false arrest and imprisonment -- and Count IX -- state law malicious prosecution and abuse of process -- as to all defendants. Next, the court addresses the arguments of the moving defendants that they are each immune from certain of plaintiff's claims.

         Deputies Neal and Young contend that they are statutorily immune from plaintiff's state law claims for the negligent infliction of emotional distress portion of Count X and negligence (Count XI). Under the West Virginia Tort Claims and Insurance Reform Act, employees of political subdivisions are immune from suit except in certain situations:

(b) An employee of a political subdivision is immune from liability unless one of the following applies:
(1) His or her acts or omissions were manifestly outside the scope of employment or official responsibilities;
(2) His or her acts or omissions were with malicious purpose, in bad faith, or in a wanton ...

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