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Nutter v. Mellinger

United States District Court, S.D. West Virginia, Charleston Division

January 13, 2020

MATTHEW NUTTER, et al., Plaintiffs,
ROSS H. MELLINGER, et al., Defendants.



         Pending 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.

         I. Background

         This 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].

         Plaintiffs 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.

         Plaintiffs 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. Id.

         The 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.

         Plaintiffs 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].

         II. Legal Standard

         Federal 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)).

         To 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.” Id.

         III. Discussion

         a. Federal Law Claims

         1. Excessive Force and Illegal Seizure under 42 U.S.C. § 1983 (Federal Law Claims - Count I)

         I find 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 ...

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