United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court are Defendants Motions to Dismiss [ECF Nos.
5, 8]. For the reasons that follow, the Motions are DENIED in
part and GRANTED in part.
Keith Allen Sizemore and his son, Plaintiff Shane Allen
Sizemore, residents of Oak Hill, Fayette County, West
Virginia, brought the current action against the following
four defendants: S.R. Morris, employed by the Fayette County
Sheriff's Department and assigned to the Central West
Virginia Drug Task Force; C.A. Young, employed by the Oak
Hill Police Department and assigned to the Central West
Virginia Drug Task Force; the Fayette County Commission; and
the Town of Oak Hill.
to the complaint, on July 10, 2017, Defendant Morris received
a tip that Plaintiff Keith Sizemore was transporting heroin
in a pickup truck. Compl. [ECF No. 1] ¶ 5-6. Officers
conducted a traffic stop on Plaintiff's truck, which was
carrying him and Melissa Figueroa, the significant other and
friend of Plaintiff's daughter. Id. at ¶ 7.
No heroin was found in the truck. Id. Following the
search, Defendant Morris interviewed Plaintiff at his
residence and noticed Figueroa inside Plaintiff's home
with his daughter. Id. at ¶ 9.
two months later, Defendants Morris and Young observed
Figueroa sell $80 of heroin in a Dollar Tree parking lot and
then leave in a gold Ford Taurus. Id. at ¶ 11.
Afterwards, Figueroa's buyer agreed to become a
confidential information (“CI”) for Defendants.
Id. at ¶ 12. Defendants Morris and Young
arranged a second heroin buy with the CI and Figueroa for
later the same day. Id. at ¶ 13.
point after the first drug buy but prior to the second buy,
Defendants Morris and Young drove by Plaintiff Sizemore's
residence and saw the same gold Ford Taurus in which Figueroa
had left the Dollar Tree Parking lot parked in front of
Plaintiff's residence. Id. They did not see
that day, after the second buy with the CI was set,
Defendants Morris and Young positioned themselves outside of
Plaintiffs' residence. Id. at ¶ 14. They
observed Figueroa and her sister leave Plaintiffs'
residence and get into a dodge Neon, which was parked where
the gold Ford Taurus had been earlier. Id. The Neon
drove to the Dollar Tree parking lot with Figueroa as a
passenger, and the second drug transaction took place.
Id. at ¶ 15. After the buy, “the officers
observed the Dodge Neon return to the [P]laintiff's
residence but did not observe Melissa Figueroa exit the
vehicle nor enter the residence.” Id.
the second buy, Defendant Morris “went to the Fayette
County Sheriff's Department to draft an application for a
search warrant for [P]laintiff's residence.”
Id. at ¶ 16. The affidavit used the term
“we, ” referring to both Defendants Morris and
Young. Id. at ¶ 26.
to the complaint, Defendant Morris attested to several false
statements in the affidavit, including that he and Defendant
Young “had prior knowledge that Melissa Figueroa lived
or stayed at the [P]laintiff's residence.”
Id. at ¶ 18. The complaint also alleges
Defendant Morris falsely attested that he and Defendant Young
witnessed Figueroa enter Plaintiff's residence after the
second buy. Id. at ¶ 19. Further, Plaintiffs
allege Defendants omitted that the heroin involved in
Figueroa's transactions was a small amount, sold for $80,
which could be hidden on her person. Id. at ¶
25. Finally, the affidavit allegedly falsely added that
“Members of the Central West Virginia Drug Task Force
have received numerous complaints about the sale and
distribution of heroin from this residence.”
Id. at ¶ 29.
magistrate, Defendant Young's mother, signed the search
warrant around 9:00 pm the same day as the drug buys, and the
Defendant officers immediately executed the warrant at
Plaintiffs' residence. According to the complaint,
Plaintiff was sitting in his living room when the officers
arrived. His 16 year old son was in the home with him.
Officers threw a concussion grenade through his living room
window, then busted through his door with a sledgehammer.
They handcuffed [P]laintiff, and put him on his porch, took
his son from him, and proceeded to search his house.
Id. at ¶ 20. The officers found heroin, two
firearms, and about $2, 000 in cash and arrested Plaintiff
Keith Sizemore. Id. at ¶ 21. “What they
did not find, however, was Melissa Figueroa-nor any of her
possessions. Nor did they find the prerecorded money from the
second buy with the informant.” Id. “As
a result of the illegal search and the ensuing civil
forfeiture proceedings, [P]laintiff lost his home, which was
confiscated; he lost his 2017 pickup truck, which was
confiscated; and he spent a substantial amount of time
incarcerated.” Id. at ¶ 33.
Keith Sizemore filed a Motion to Suppress, which Judge
Copenhaver of the Southern District of West Virginia granted,
and subsequently the United States dismissed all charges
against Plaintiff. Id. at ¶ 31-32. In granting
the Motion to Suppress, the Court found that “neither
[Defendants Morris nor Young] had any such prior
knowledge” that Figueroa lived or stayed at
Plaintiff's residence, nor did they see Figueroa enter
the residence after the second drug buy. Id. at
¶ 18-19 (quoting United States v. Sizemore,
2:18-cr-198, ECF No. 58 at 6). In addition, the Court found
“there is not an iota of evidence to support [the]
gratuitous allegation” that the Central West Virginia
Drug Task Force “received numerous complaints about the
sale and distribution of heroin from [Plaintiff's]
residence.” Id. at ¶ 29 (quoting
United States v. Sizemore, 2:18-cr-198, ECF No. 58
Copenhaver found the false statements were “calculated
to mislead the magistrate into the belief that there was
probable cause to believe heroin could be found at that
location.” Id. at ...