United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS'
MOTION TO DISMISS
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
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”).
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.
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.
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
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.
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.
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.
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.
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).
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.
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 ...