United States District Court, S.D. West Virginia, Huntington Division
NATHANIEL DEVERS; CORY SHIMENSKY; and STEPHEN SHIMENSKY, Plaintiffs,
CITY OF HUNTINGTON d/b/a HUNTINGTON POLICE DEPARTMENT, a municipal corporation; RONNIE LUSK, individually and in his official capacity; COLIN COOPER, individually and in his official capacity; AARON LAWHON, individually and in his official capacity; TYLER MEADE, individually and in his official capacity; SHAWN HENSON, individually and in his official capacity; JOHN DOE SUPERVISOR, Defendants.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the Court is Defendants' Motion to Strike portions
of Plaintiffs' Amended Complaint, filed by Defendants
City of Huntington d/b/a Huntington Police Department, Ronnie
Lusk, Colin Cooper, Aaron Lawhon, and Tyler Meade. Mot.
to Strike, ECF No. 17; Am. Compl., ECF No. 3.
Specifically, Defendants move that this Court strike
Paragraphs 6 through 11 of Plaintiffs' Amended Complaint,
which they argue are “immaterial” and
“scandalous” allegations under Rule 12(f) of the
Federal Rules of Civil Procedure. See Mot. to Strike,
at 2. Consistent with the following reasoning, the Court
DENIES Defendants' Motion to Strike
Paragraphs 6 through 11 of Plaintiffs' Amended Complaint.
action stems from a physical altercation between Plaintiffs
Nathaniel Devers, Cory Shimensky, and Stephen Shimensky and
several Huntington Police Department (“HPD”)
officers that occurred outside a local restaurant in October
2017. Am. Compl., at 6. Plaintiffs allege that a
number of officers-including Defendants Ronnie Lusk, Shawn
Henson, Aaron Lawhon, and Colin Cooper-initiated a violent
encounter after Defendants refused to file a police report on
behalf of one of Plaintiff's party. Id. at 7.
Plaintiffs claim that Defendants threw members of their party
to the ground, beat them severely, and fired Taser probes at
them “for no reason.” Id. at 8.
Defendants deny these allegations. See Answer, ECF
No. 17, at 10.
filed an initial Complaint in this Court on October 29, 2018,
and filed an Amended Complaint on January 11, 2019. See
Compl., ECF No. 1; Am. Compl. Plaintiffs
include a “Preamble” in their Amended Complaint
containing a number of general references to the goals of
policing and the practicability of video recording
technology. See Am. Compl., at 1-2. Paragraphs 6
through 11 of the Preamble address prior alleged instances of
misconduct on the part of HPD officers, as well as certain
HPD policies. Id. at 2-4. Paragraph 6 concerns a
2011 incident wherein an officer allegedly prevented a man
from filming a search of his vehicle. Id. at 2-3.
Paragraph 7 details an alleged assault by an HPD officer in
2012, after which the officer apparently deleted a video
record of the incident. Id. at 3. Paragraph 8
concerns another case from 2012, wherein an officer allegedly
used excessive force in a DUI encounter and did not record
the incident on his cruiser's dash camera. Id.
The Complaint notes that all three cases were settled with
“significant” payments from the city.
Id. Paragraphs 9 and 10 describe the HPD's
“Mobile Video policy, ” and the Department's
purported failure to abide by it. Id. Plaintiffs
claim that “[t]he unofficial custom and policy is that
the cameras ‘work' when the footage benefits the
department but fail to record when it is to its
detriment.” Id. at 4. Finally, Paragraph 11
details a 2015 confrontation between Defendant Lusk and
another man during a traffic stop that ended with Lusk
allegedly releasing his canine without verbal warning.
March 8, 2019, Defendants HPD, Ronnie Lusk, Colin Cooper,
Aaron Lawhon, and Tyler Meade filed their Answer alongside a
Motion to Strike Paragraphs 6 through 11 of Plaintiffs'
Amended Complaint. See Mot. to Strike, at 2. They
argue that the content of Paragraphs 6 through 11 is
“only commentary by counsel for the Plaintiffs”
and is “injected for improper and potentially
inflammatory effects . . . on a jury.” Id. at
3. On August 2, 2019, Plaintiffs filed their Response to
Defendants' Motion to Strike after obtaining leave to
submit a late response. Pl.'s Resp. to Def.'s
Mot. to Strike, ECF No. 59. Plaintiffs point out that
Rule 12(f) motions “are generally viewed with disfavor,
” and that Defendants “fail to explain how the
[contested] allegations ‘might cause prejudice at some
later point . . . .'” Id. at 1, 3. The
Court considers these arguments below.
STANDARD OF REVIEW
“court may strike from a pleading an insufficient
defense or any redundant, immaterial, or scandalous matter,
” acting either “on its own” or “on
motion made by a party.” Fed.R.Civ.P. 12(f). This
standard affords district courts significant discretion in
determining whether to strike certain material from
pleadings. See Scherer v. Steel Creek Property Owners
Ass'n, No. 1:13cv121, 2014 WL 813824, at *1 (W.D.
N.C. Mar. 3, 2014). Nevertheless, courts “should use
Rule 12(f) sparingly, as motions to strike are generally
viewed with disfavor.” Jenkins v. Aylor, No.
3:15-CV-00046, 2016 WL 2908410, at *11 (W.D. Va. May 17,
2016) (citing Waste Mgmt. Holdings, Inc. v. Gilmore,
252 F.3d 316, 347 (4th Cir. 2001)). As such, “[w]hen
reviewing a motion to strike, the court must view the
pleading under attack in a light most favorable to the
pleader.” M.T. ex rel. Hayes v. Medley, No.
14-cv-0424, 2014 WL 1404527, at *1 (D. Md. Apr. 9, 2014). It
follows that Rule 12(f) motions should be denied
“unless the challenged allegations have no
possible relation or logical connection to the subject matter
of the controversy and may cause some form of significant
prejudice to one or more of the parties to the action.”
Bailey v. Fairfax Cty., No. 1:10-cv-1021, 2010 WL
5300874, at *4 (E.D. Va. Dec. 21, 2010) (quoting 5C Charles
Alan Wright & Arthur R. Miller, Federal Practice
& Procedure § 1382 (3d ed. 2004)) (emphasis
added). This standard thus “imposes a sizeable burden
on the movant.” Clark v. Milam, 152 F.R.D. 66,
70 (S.D. W.Va. 1993).
matter is “that which has no essential or important
relationship to the claim for relief.” CTH 1
Caregiver v. Owens, No. 8:11-2215-TMC, 2012 WL 2572044,
at *5 (D.S.C. July 2, 2012) (quoting In re Methyl
Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 402
F.Supp.2d 434, 437 (S.D.N.Y. 2005)). “Scandalous”
matter “includes allegations that cast a cruelly
derogatory light on a party to other persons.”
Id. While “[t]he disfavored character of Rule
12(f) . . . is somewhat relaxed in the context of scandalous
matter, ” Thornhill v. Aylor, No.
3:15-CV-00024, 2016 WL 258645, at *2 (W.D. Va. Jan. 20,
2016), it is “not enough that the matter offends the
sensibilities of the objecting party if the challenged
allegations describe acts or events that are relevant to the
action, ” 5C Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 1382
(3d ed. 2004).
move to strike Paragraphs 6 through 11 from Plaintiffs'
Amended Complaint. See Mot. to Strike, at 2.
Defendants claim that the allegations contained in these
paragraphs are “only commentary by counsel for the
Plaintiffs, ” and are therefore immaterial and
scandalous. See Mot. to Strike, at 2. The Court
disagrees that Plaintiffs' allegations serve such a
Allegedly Immaterial Matter
Court first turns to Defendants' argument that the
contested portions of Plaintiffs' Amended Complaint are
immaterial. In Count VI of their Amended Complaint,
Plaintiffs allege a claim of municipal liability. To make out
a successful claim for municipal liability under 42 U.S.C.
§ 1983, a plaintiff must demonstrate that an official
municipal custom or policy caused the alleged violation.
Monell v. Dept. of Social Servs. of City of New
York, 436 U.S. 658, 690-91 (1978); see also Bd. of
Cnty. Comm'rs v. Brown, 520 U.S. 397, 405 (1997)
(holding that an act of a municipality must directly cause
injury). To constitute an “official custom or
policy” under Monell, a Plaintiff need not
demonstrate the existence of a written ordinance or other
explicit directive. See City of Canton v. Harris,
489 U.S. 378, 388-89 (1989) (holding that policymakers'
failure to act, coupled with deliberate indifference, may
constitute a “policy” under Monell).
Indeed, where an unconstitutional practice is widespread and
so “well settled as to constitute a custom or usage
with the force of law, ” an unconstitutional
“policy” under Monell may exist without
any formal written directive. Monell, 436 U.S. at
Plaintiffs argue that the challenged portion of their Amended
Complaint contains evidence tending to demonstrate the
existence of an unconstitutional policy or custom. Within
Count VI of their Amended Complaint, Plaintiffs aver that
“failure to follow or enforce the mobile video
recording policy has led to officers [sic] use of excessive
force because they know the department will not enforce the
policy which could capture their acts.” Id.
Put differently, Plaintiffs allege that an unconstitutional
practice has become so “well settled as to constitute a
custom or usage with the force of law.”
Monell, 436 U.S. at 691. As evidence, Plaintiffs use
Paragraphs 6 through 11 to identify four previous lawsuits
“wherein HPD's hostile treatment of video recording
its interactions with Huntington Citizens was on
display.” Pl. ...