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Cummings v. City of Wheeling

United States District Court, N.D. West Virginia

December 5, 2019

RICHARD CUMMINGS, Plaintiff,
v.
CITY OF WHEELING, WEST VIRGINIA, a political subdivision and HARRY MYERS, in his individual capacity as a Wheeling law enforcement officer, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         I. Background

         The plaintiff in this civil action, Richard Cummings (“Cummings”), originally filed his complaint (ECF No. 1-1) in the Circuit Court of Ohio County, West Virginia, on August 5, 2019, against defendants the City of Wheeling, West Virginia (hereinafter, “City of Wheeling”) and police officer Harry Myers (“Officer Myers”) in his individual capacity as a Wheeling law enforcement officer (collectively “defendants”).

         Plaintiff alleges in his complaint that he was asleep in his own bed in the basement of his parents' home when Ammo, a trained Wheeling police dog handled by Officer Myers, was given a command to search the basement and attacked and bit plaintiff's hands, legs, and body for a period of 45 to 60 seconds. ECF No. 1-1 at 1-4.

         Stemming from this encounter, the complaint asserts a cause of action pursuant to 42 U.S.C. § 1983 (Count One), as well as a state constitutional tort claim (Count Two) and a negligence claim (Count Three). For relief, plaintiff seeks compensatory damages, attorneys' fees and costs, an award of punitive damages, and equitable relief including additional training and education for other similarly situated law enforcement officers to address the issues raised in this action. Id. at 10.

         Defendants removed this civil action to this Court on September 19, 2019 pursuant to 28 U.S.C. § 1443 and 28 U.S.C. § 1446(b)(1). ECF No. 1. In the notice of removal, defendants assert that this Court has original federal question jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Id. at 1. Further, defendants assert this Court has supplemental jurisdiction over plaintiff's asserted state law claims pursuant to 28 U.S.C. § 1367(a) in that plaintiff's state law allegations are inextricably tied to the facts of plaintiff's primary federal claim.

         Defendants then filed a motion to dismiss under Federal Rule of Civil Procedure 12b(6) and argue that Officer Myers is entitled to qualified immunity, plaintiff's state law claims are precluded by statutory immunity, and that all intentional tort claims asserted against the City of Wheeling should be dismissed as a matter of law. ECF No. 3 at 1. Further, defendants assert that plaintiff's state constitutional claims are moot and should be dismissed, plaintiff's municipal liability and failure to train claims are insufficiently pled, plaintiff's outrageous or deliberate indifference claims are insufficiently pled, and plaintiff's excessive force claim is baseless under the facts as contained in the complaint. Id.

         Plaintiff filed a response in opposition. ECF No. 5. Plaintiff asserts Officer Myers released a trained police dog to go down in the basement where plaintiff was asleep, while Officer Myers remained upstairs. Id. at 2. Plaintiff contends in his response that defendants' motion to dismiss should be denied because Officer Myers is not entitled to qualified immunity, defendants are not entitled to statutory immunity, the City of Wheeling is liable for the intentional torts of Officer Myers, the state constitutional tort claim is not moot, allegations of negligent supervision and custom, policy, and practice are sufficiently pled, and the allegations support plaintiff's claim of excessive force. ECF No. 5. Because the complaint “raises multiple factual issues that will need to be developed and ultimately resolved by a jury, ” plaintiff submits defendants' motion to dismiss should be denied so the parties can develop all of the relevant facts. Id. at 2.

         Defendants filed a reply (ECF No. 6) and argue that despite plaintiff's protestations to the contrary, pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal is required as there is no meaningful path by which plaintiff can recover from the defendants in this action.

         Now before this Court is the defendants' motion to dismiss the plaintiff's complaint (ECF No. 3). The motion is fully briefed and ripe for decision.

         II. Applicable Law

         In assessing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must accept all well-pled facts contained in the complaint as true. Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009). However, “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6) purposes.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This Court also declines to consider “unwarranted inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).

         It has often been said that the purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or the merits of the case. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed. 1998). The Rule 12(b)(6) motion also must be distinguished from a motion for summary judgment under Federal Rule of Civil Procedure 56, which goes to the merits of the claim and is designed to test whether there is a genuine issue of material fact. Id. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to the party making the claim and essentially the court's inquiry is directed to whether the allegations constitute a statement of a claim under Federal Rule of Civil Procedure 8(a). Id. § 1357.

         A complaint should be dismissed “if it does not allege ‘enough facts to state a claim to relief that is plausible on is face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Facial plausibility is established once the factual content of a complaint ‘allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Nemet Chevrolet, 591 F.3d at 256 (quoting Iqbal, 556 U.S. at 678). Detailed factual allegations ...


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