United States District Court, S.D. West Virginia, Huntington Division
AMY BROWN, individually and as Administratrix of the Estate of JAMES BRADY LEONARD, deceased, Plaintiff,
MASON COUNTY COMMISSION; GALLIA COUNTY BOARD OF COMMISSIONERS; POINT PLEASANT VOLUNTEER FIRE DEPARTMENT ADAM BRYANT, individually and in his official capacity; NANETTE ELLIOTT; LISA TURNER; and JOHN and JANE DOE or DOES, Defendants.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
pending before the Court are three motions to dismiss, each
filed by a different set of defendants in this case. The
first of these motions moves for dismissal of all claims
asserted against Defendant Adam Bryant
(“Bryant”). Bryant Mot. to Dismiss, ECF
No. 27. The second motion similarly moves for dismissal of
all claims asserted against Defendant Mason County Commission
(“Mason County”). Mason Cnty. Mot. to
Dismiss, ECF No. 30. Finally, the third motion moves for
dismissal of all claims asserted against Defendants Gallia
County Board of Commissioners (“Gallia County”),
Nanette Elliot, and Lisa Turner. Gallia Cnty. Mot. to
Dismiss, ECF No. 38. For the reasons set forth below,
the Court DENIES the first motion and
GRANTS IN PART and DENIES IN
PART the second and third motions.
case arises out of a tragic set of facts. On December 7,
2016, James Brady Leonard was a passenger in a vehicle
participating in a drag race along a stretch of road running
parallel to the Kanawha River in Mason County, West Virginia.
Am. Compl., ECF No. 4, at ¶ 15; Gallia
Cnty. Mem. of Law, ECF No. 39, at 1. At some point
during the race, the driver lost control of the vehicle and
struck a telephone pole. Am. Compl., at ¶ 15.
The collision sent the car flying off the road and down a
steep embankment, eventually landing in the river below.
Id. The force of the impact ejected Leonard from the
car and launched him into the river. Id. A friend,
Jeffrey Woodall, pulled Leonard to shore and called 911.
Id. Though Woodall attempted to carry Leonard back
up to the road, the embankment leading to the river was too
steep and slippery for Woodall to make the trip with him.
Id. Instead, Woodall left Leonard on the riverbank
and returned to the road in an attempt to find something to
warm his friend. Id. Sometime after this point,
Leonard-bleeding badly- succumbed to his
injuries. Id. at ¶¶ 22, 24.
timeline becomes somewhat blurrier at this point. While the
Amended Complaint alleges that Mason County Emergency Medical
Services (“EMS”) did not arrive at the scene for
forty-six minutes following Woodall's initial 911 call,
it notes only that it “is disputed as to how long it
took Gallia County EMS to arrive on the scene.”
Id. at ¶¶ 16, 22. The Amended Complaint
similarly does not include any allegation as to the arrival
time of the Point Pleasant Fire Department or Adam
Bryant. Id. at ¶ 18-19.
Nevertheless, it appears that “[s]oon after Adam Bryant
arrived at the scene, Mr. Leonard's
mother”-Plaintiff Amy Brown-arrived as well.
Id. at ¶ 20. Plaintiff apparently learned of
the accident after receiving a call from Woodall, and was
able to arrive “shortly after the crash.”
Id. A Certified Flight Mobile Critical Care Nurse
(“CFRN”), Plaintiff had access to her medical
flight bag containing “items such as tourniquets,
IV[s], IV supplies, dressings, and saline fluid bags.”
Id. Nevertheless, Plaintiff alleges that Bryant
prevented her from reaching her son. Id. She claims
Bryant threatened her and her son's friends on the scene,
telling them that “if they went to him, he would arrest
them.” Id. Not immediately dissuaded,
Plaintiff recalls Bryant physically restraining her when she
again attempted to reach her son. Id.
Gallia County, Ohio borders Mason County, the counties
maintain a shared services agreement through which their
respective EMS departments may respond to emergency calls
when necessary. Id. at ¶¶ 22, 23;
Gallia Cnty. Mem. of Law, at 2. After receiving a
request from the Mason County EMS department for assistance
in responding to Woodall's call, a Gallia County EMS team
reported to the scene. Am. Compl., at ¶ 22.
Plaintiff alleges that “when they did arrive, no one
from Gallia County EMS, including but not limited to Nanette
Elliott and Lisa Turner, checked on Mr. Leonard's pulse,
breathing, or examined his body for injuries.”
Id. Instead, Plaintiff alleges “they
pronounced him deceased, placed him on a backboard, and
carried him up the riverbank to the roadway, where he lay
until Mason County EMS arrived.” Id.
two years later-and just two days shy of the statute of
limitations deadline applicable to her claims-Plaintiff filed
a five-count Complaint in this Court against several
municipal and individual defendants. Count One is styled a
“Due Process Violation, ” and raises civil rights
claims against Bryant and Mason County. Id. at
¶¶ 26-41. Count Two is a negligent hiring,
training, supervision and retention claim, and is directed at
Mason County, Gallia County, and Point Pleasant Volunteer
Fire Department. Id. at ¶¶ 42-47. Count
Three raises a claim for negligent infliction of emotional
distress against Mason County, Gallia County, Point Pleasant
Volunteer Fire Department, and Bryant. Id. at
¶¶ 48-51. Count Four is an intentional infliction
of emotional distress claim raised solely against Bryant.
Id. at ¶¶ 52-58. Finally, Count Five is
styled a “Violation of the West Virginia Medical
Professional Liability Act, ” and is raised against all
defendants except Bryant. Id. at ¶¶ 59-63.
Complaint was filed on December 5, 2018. Nearly a month and a
half later-on January 17, 2019-Plaintiff's counsel
provided a notice of her claims and a certificate of merit to
Defendants pursuant to West Virginia Code § 55-7B-6.
See Ex. A, ECF No. 38-1, at 1. On March 5, 2019,
Plaintiff amended her complaint to correct the erroneous
spelling of Nanette Elliot's first name. Compare
Compl., ECF No. 1, at 1, with Am. Compl., at 1.
The rest of her Complaint remained unchanged.
April 24, 2019, Defendants Bryant and Mason County filed
their respective motions to dismiss and corresponding
memoranda of law. Exactly one month later, Defendants Gallia
County, Nannette Elliot, and Lisa Turner filed their motion
to dismiss. The parties have fully briefed each motion, and
the issues presented therein are ripe for review.
STANDARD OF REVIEW
8(a) of the Federal Rules of Civil Procedure requires only
that a complaint contain “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Rule 12(b)(6) permits a party to attack a
complaint for failure to meet this threshold, and authorizes
dismissal of a complaint for “failure to state a claim
upon which relief can be granted.” To avoid dismissal,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Put
somewhat differently, a “complaint's factual
allegations must produce an inference of liability strong
enough to nudge the plaintiff's claims across the line
from conceivable to plausible.” Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, Inc., 592 F.3d 250, 256
(4th Cir. 2009). There is no bright-line threshold separating
plausible claims from implausible ones; instead,
“[d]etermining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. The
Court will grant a motion to dismiss if, “after
accepting all wellpleaded allegations in the plaintiff's
complaint as true and drawing all reasonable factual
inferences from those facts in the plaintiff's favor, it
appears certain that the plaintiff cannot prove any set of
facts in support of his claim entitling him to relief.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
motion to dismiss stage, the “issue is not whether a
plaintiff will ultimately prevail, but whether the claimant
is entitled to offer evidence to support the claims” he
or she makes. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). It follows that a motion to dismiss testing the
sufficiency of a complaint “generally cannot reach the
merits of an affirmative defense.” Goodman v.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007).
Nevertheless, “in the relatively rare circumstances
where facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Id. Importantly, “[t]his principle only
applies . . . if all facts necessary to the affirmative
defense clearly appear on the face of the complaint.”
Id. (citing Richmond, Fredericksburg &
Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993))
(internal quotations and punctuation omitted); see also
Jones v. Bock, 549 U.S. 199, 215 (2007) (“Whether
a particular ground for opposing a claim may be the basis for
dismissal for failure to state a claim depends on whether the
allegations in the complaint suffice to establish that
ground, not on the nature of the ground in the
final matter, the Court notes that the Fourth Circuit Court
of Appeals strongly favors the resolution of cases on their
merits rather than on technical or procedural grounds.
See United States v. Shaffer Equip. Co., 11 F.3d
450, 453 (4th Cir. 1993). Consistent with this legal
framework, the Court turns to its analysis of the instant
noted supra, there are three motions to dismiss
currently pending before the Court. While some of their
arguments do overlap, the Amended Complaint names different
parties in each count and often bases their respective
liability upon separate conduct. As such, the Court will
undertake a count-by-count analysis of each claim below,
considering the defendants' motions separately where
Count One: Due Process
names only two parties in Count One of the Amended
Complaint-Defendants Adam Bryant and Mason County-although
its bulk is made up of a laundry list of allegations against
Bryant in particular. Because the legal standards governing
liability for municipalities and their employees are
distinct, the Court will analyze both Defendants' motions
gravamen of Plaintiff's due process allegations against
Bryant is that he “deprived plaintiff of [her] due
process rights, under color of state law, by his affirmative
act of restraining [Plaintiff] and preventing her from
rendering medical care to her critically injured son.”
Am. Compl., at ¶ 29. Bryant naturally
disagrees, and argues that dismissal of Count One is
warranted “because Plaintiff's Complaint only
contains recitals of the elements of a cause of action
supported by conclusory allegations, which are not entitled
to the presumption of truth.” Bryant Mem. of
Law, ECF No. 28, at 3. Fair enough. The Court
acknowledges that it is Plaintiff's burden to allege
facts sufficient to “nudge [her] claims across the line
from conceivable to plausible, ” Nemet Chevrolet,
Ltd., 592 F.3d at 256, and will carefully consider the
Amended Complaint in this light. Yet there is deep irony in
Bryant's argument, which is essentially a series of
conclusory allegations of conclusory allegations. Bryant does
not reference a specific provision of the Amended Complaint
anywhere in his merits argument, and confusingly suggests
that Plaintiff has not pleaded sufficient facts to support a
“claim for Supervisor liability” that she has not
raised. Bryant Mem. of Law, at 4.
event, Plaintiff has alleged more than enough facts to state
a claim against Bryant. Taken as true, Plaintiff has alleged
that Bryant physically restrained her from assisting her son
and thereby prevented her from saving his life. Am.
Compl., at ¶¶ 29, 41. As noted above,
Plaintiff bases her claim on federal and state due process
provisions. While it is never explicitly stated, the Court
construes Plaintiff's federal constitutional claim as a
§ 1983 action. Section 1983 provides a private cause of
action for the deprivation of rights, under color of state
law, secured by the Constitution and laws of the United
States. Hafer v. Melo, 502 U.S. 21, 27 (1991). Here,
Plaintiff has raised her federal constitutional claims under
the Fourteenth Amendment's guarantee that no state
“shall deprive any person of life, liberty, or property
without due process of law.” U.S. Const. amend. XIV. Of
course, this clause “guarantee[es] more than fair
process.” Washington v. Glucksberg, 521 U.S.
702, 719 (1997). In particular, it covers “a
substantive sphere . . . barring certain government actions
regardless of the fairness of the procedures used to
implement them.” Cnty. of Sacramento v. Lewis,
523 U.S. 833, 840 (1998). Where no other constitutional
provision provides protection against a particular source of
government behavior, substantive due process is the guide to
analyzing a claim. See Id. at 842. Here, no other
constitutional provision applies.
“touchstone of due process is protection of the
individual against arbitrary action of government.”
Wolff v. McDonnell, 418 U.S. 539, 558 (1974). It is
true that, in general, the Due Process Clause “does not
require the State to provide its citizens with particular
protective services.” DeShaney v. Winnebago Cnty.
Dept. of Soc. Servs., 489 U.S. 189, 196-97 (1989).
However, “when the State by the affirmative exercise of
its power so restrains an individual's liberty that it
renders him unable to care for himself . . . it transgresses
the substantive limits on state action set by . . . the Due
Process Clause.” Id. at 200. Of course, the
Due Process Clause “does not transform every tort
committed by a state actor into a constitutional
violation.” Cnty. of Sacramento, 523 U.S. at
848. Instead, a “plaintiff must demonstrate some
egregious official conduct which constitutes an abuse of
power that shocks the conscience.” See Tigrett v.
Rector & Visitors of Univ. of Va., 137 F.Supp.2d
670, 678 (W.D. Va. 2001) (quoting Dunn v. Fairfield Cmty.
High Sch. Dist. No. 225, 158 F.3d 962, 965 (7th Cir.
1998)) (internal quotations omitted); see also Waybright
v. Frederick Cnty., Md., 528 F.3d 199, 205 (4th Cir.
2008) (“[T]he Supreme Court has . . . marked out . . .
conduct wrong enough to register on a due process scale as
conduct that shocks the conscience, and nothing
this is undoubtedly a high bar, Plaintiff's allegations
concerning Bryant-taken as true-meet this threshold.
Plaintiff claims that Bryant stopped her from providing
assistance to her son despite being aware of her role as a
critical care nurse. Am. Compl., at ¶ 30. At
one point, she claims that he physically restrained her and
threatened her with arrest as she attempted to move past him.
Am. Compl., at ¶ 31. It is worth noting that
discovery may shed more light on the factual circumstances
surrounding Plaintiff's interaction with Bryant at the
crash scene, and that her factual assertions will no longer
be accepted as true at future stages of this action. Yet it
bears repeating that, for the purposes of a motion to
dismiss, Plaintiff's allegations are sufficient to state
a claim upon which relief may be granted.
extent Plaintiff raises state constitutional claims against
Bryant, the Court's analysis follows a similar path. The
West Virginia Constitution provides that “[n]o person
shall be deprived of life, liberty, or property, without due
process of law.” W.Va. Const. art. III, § 10. The
“republican form of government which exists under the
West Virginia Constitution, by its nature encompasses a
concept of substantive due process.” Cooper v.
Gwinn, 298 S.E.2d 781, 787 ( W.Va. 1981). Unless barred
by immunity, a private cause of action exists where a party
denies a litigant “rights that are protected by the Due
Process Clause embodied within . . . the West Virginia
Constitution.” Hutchison v. City of
Huntington, 479 S.E.2d 649, 654 ( W.Va. 1996). “In
deciding whether a party deprived someone of their property
or liberty interest without due process of law under the West
Virginia Constitution, the West Virginia Supreme Court looks
to, and follows federal case law and precedent.”
Smith v. Teach, No. 3:07-CV-49, 2008 WL 11451886, at
*11 (N.D. W.Va. Nov. 13, 2008). Given this congruence,
Plaintiff has pleaded sufficient facts to state a claim for
relief under the West Virginia Constitution as well.
course, the Court's analysis does not end here. Even if
Plaintiff has stated a plausible claim, Bryant argues that
immunity shields him from liability. As Plaintiff has raised
federal and state due process claims, two types of immunity
are implicated in the present case: federal qualified
immunity, and state statutory immunity.
immunity is an affirmative defense that may be raised at the
motion to dismiss stage. Raub v. Bowen, 960
F.Supp.2d 602, 608 n. 8 (E.D. Va. 2013). Inasmuch as
qualified immunity is “an immunity from suit
rather than a mere defense to liability . . . it is
effectively lost if a case is erroneously permitted to go to
trial.” Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). As a result, the Supreme Court has “repeatedly
. . . stressed the ...