United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is a Motion to Dismiss pursuant to Fed. R.
Civ. Pro. 12(b)(6) filed by defendants, Allyson Fields and
the Housing Authority of the County of Jackson (the
“Housing Authority”). [ECF No. 11]. Plaintiffs,
Matthew Nutter and Carrie Barnette, have not responded and
the time period to do so has elapsed. For the reasons that
follow, the Motion is GRANTED on all counts.
lawsuit arose out of events that took place during an
eviction at the Rolling Meadow Village Housing Complex (the
“Housing Complex”). Defendant, the Housing
Authority, is a private non-profit organization that owns and
operates the Housing Complex. Defendant, Allyson Fields,
works as the Public Housing Administrator for the Housing
Authority. Plaintiff, Carrie Barnette, resided at the Housing
Complex. On or about February 25, 2019, plaintiff Barnette
received a notice to vacate her apartment from the Housing
Authority. Pls.' Compl. ¶ 10, [ECF No. 1].
allege that on or about April 5, 2019, defendants, Chief
Deputy Ross Mellinger, Deputy L. M. Casto, Deputy B.A.
DeWees, and Deputy S.C. Fisher, were present at the Housing
Complex in the course of their employment with the Jackson
County, West Virginia Sheriff's Department answering a
disturbance call. Id. at ¶ 12. Defendant Fields
requested the Deputy Sheriffs assist with the eviction of
plaintiff Barnette. Id. at ¶ 12.
allege that the defendant Deputy Sheriffs and defendant
Fields subsequently entered plaintiff Barnette's
residence. Id. at ¶ 13. At that time, plaintiff
Matthew Nutter, who was present at plaintiff Barnette's
apartment to assist with moving, was asleep on the couch.
Id. at ¶ 10, ¶ 13. Plaintiffs further
allege that “some or all of the defendant Deputy
Sheriffs pulled the plaintiff Nutter off the couch while he
was still asleep and… proceeded to attack plaintiff
Nutter, using deadly and excessive force, and tazed [sic] him
on multiple occasions.” Id. at ¶ 14. The
Deputy Sheriffs then placed plaintiff Nutter in handcuffs and
dragged him outside, where they proceeded to tear off his
cloths and continue to beat him. Id. at ¶ 14.
Plaintiff Nutter claims he suffered “head and facial
injuries and other injuries” from the incident.
Id. The Complaint maintains that throughout this
alleged assault, plaintiff Nutter was compliant, did not
provoke the Sheriffs, did not defend himself with force, and
did not attempt to flee. Id. at ¶ 13-14. The
police then charged plaintiff Nutter with four counts of
“battery on a police officer, ” four counts of
“obstruction, ” and “simple
possession.” Id. at 19. Plaintiff Nutter
subsequently entered a plea to one count of obstruction,
resulting in the dismissal of all remaining charges.
Complaint also alleges that, while in plaintiff
Barnette's apartment, defendant Deputy Mellinger
“attacked” her, “throwing her across the
room against the wall and stomping on her feet which had
recently undergone surgery.” Id. at ¶ 16.
Plaintiffs claim that throughout the incident, plaintiff
Barnette did not pose a threat, did not provoke defendants
Deputy Sheriffs, and was compliant. Id. at 17.
Plaintiff Barnette alleges that the attack resulted in
“physical injuries, pain and suffering, emotional
injuries, and [that she] suffered otherwise.”
Id. at ¶ 16. Plaintiffs also claim that
“at no time from February 25, 2019 up to and including
April 5, 2019 did the Housing Authority commence eviction or
wrongful occupation proceedings against Plaintiff
Barnette.” Id. at ¶ 11. And that the
defendant Deputy Sheriffs and defendant Fields did not have a
court order when they entered Ms. Barnette's residence on
April 5, 2019. Id. at ¶ 12.
brought this lawsuit against all Deputy Sheriffs present
during the incident, the Jackson County Commission (the
political subdivision of the State of West Virginia that
governs the Jackson County Sheriff's Department), Allyson
Fields in her individual and official capacity as the Public
Housing Administrator of the Housing Authority, and the
Housing Authority. Plaintiffs allege the following claims
presumably against all defendants: Constitutional Tort (State
Law - Count I); Negligence (State Law - Count II); Battery
(State Law - Count III); Outrageous Conduct and Intentional
Infliction (State Law - Count IV); Excessive Force and
Illegal Seizure under 42 U.S.C. § 1983 (Federal Law -
Count I); Supervisory Liability under 42 U.S.C. § 1983
(Federal Law - Count II); and Unlawful Conspiracy under 42
U.S.C. § 1983 & 1985 (Federal Law - Count III).
Defendants, Ms. Fields and the Housing Authority, filed a
Motion to Dismiss all charges against them. [ECF No. 11].
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). “When
ruling on a motion to dismiss, courts must accept as true all
of the factual allegations contained in the Complaint and
draw all reasonable inferences in favor of the
plaintiff.” Farnsworth v. Loved Ones in
Home Care, LLC, No. 2:18-CV-01334, 2019 WL 956806, at *1
(S.D. W.Va. Feb. 27, 2019) (citing E.I. du Pont de
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435,
440 (4th Cir. 2011)).
survive a motion to dismiss under Fed. R. Civ. Pro. 12(b)(6),
plaintiff's factual allegations, taken as true, must
“state a claim to relief that is plausible on its
face.” Robertson v. Sea Pines Real Estate Co.,
679 F.3d 278, 288 (4th Cir. 2012) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). The plausibility
standard is not a probability requirement, but “asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). Although “the Complaint must contain
sufficient facts to state a claim that is plausible on its
face, it nevertheless need only give the defendant fair
notice of what the claim is and the grounds on which it
rests.” Hall v. DIRECTV, LLC, 846 F.3d 757,
777 (4th Cir. 2017). Thus, “a Complaint is to be
construed liberally so as to do substantial justice.”
Federal Law Claims
Excessive Force and Illegal Seizure under 42 U.S.C. §
1983 (Federal Law Claims - Count I)
the Complaint is deficient in two ways. First, plaintiffs
have not plead any facts to plausibly allege state action, as
required by 42 U.S.C. § 1983. And Second, even if state
action existed, plaintiffs have not plead facts that tie the