Leonard et al v. Starkey et al
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS STARKEY, WARE AND WALKER'S MOTION FOR SUMMARY JUDGMENT. The Court grants the Defendants Starkey, Ware and Walker's 123 Motion for Summary Judgment ; finding as moot 138 Motion in Limin e and 156 Motion for Leave to File. These defendants are dismissed from this action. All matters having now been dismissed, this matter is ORDERED STRICKEN from the active docket of this Court. The Clerk is directed to enter a separate judgment order in favor of all defendants in this matter. Signed by District Judge John Preston Bailey on 1/24/17. (Emailed to all counsel of record)(mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PAULA L. LEONARD and
ROBERT P. LEONARD,
CIVIL ACTION NO. 1:14-CV-42
SARAH STARKEY, BRENDA WARE,
TERRY WALKER, JULIE GARVIN,
COTY SHINGLETON, JAMES J. MEDINA, II,
and WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES,
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS
STARKEY, WARE, AND WALKER’S MOTION FOR SUMMARY JUDGMENT
Pending before this Court is Defendants Starkey, Ware, and Walker’s Motion for
Summary Judgment [Doc. 123], which was filed October 24, 2016. The plaintiffs filed their
Response in Opposition [Doc. 124] on November 6, 2016. The DHHR defendants filed
their Reply brief [Doc. 126] on November 21, 2016.
This matter is now ripe for
adjudication. For the reasons that follow, the Court GRANTS the DHHR defendants’
Motion for Summary Judgment [Doc. 123].
Robert Leonard (“Mr. Leonard”) and Paula Leonard (“Mrs. Leonard”) filed a petition
in the Circuit Court of Harrison County, West Virginia, alleging parental abuse and/or
neglect of the Leonards’ two grandchildren. Julie Garvin (“Garvin”)1 was appointed as the
guardian ad litem for the children in the action (“the child abuse case”), and Sarah Starkey
(“Starkey”) and Brenda Ware (“Ware”) were Child Protective Services (“CPS”) workers
assigned by their supervisor, Terri Walker (“Walker”), to the case [Doc. 50 at ¶ 4]. Upon
conclusion of the child abuse case, the Leonards were granted physical custody of their
grandchildren; the Leonards did not receive legal custody, which remained with the
The Leonards allege that “defendants Garvin and Starkey, and possibly Walker,” had
planned for Starkey to conduct a home visit without notice prior to March 14, 2012; Mr.
Leonard refused entry, and “later asserted in court papers filed in the child abuse case . .
. that he has a constitutional right to refuse a government agent’s entry into his home if the
agent does not have a warrant or court order authorizing the entry.” [Id.].
Following Starkey’s unsuccessful home visit, Starkey, Ware, and Garvin allegedly
planned to “remove the children from the Leonards’ lawful court-ordered physical custody
by force aided by the assistance of law enforcement under color of CPS authority” [id. at
¶ 5], with “the approval of and under the direction of defendant Walker.” [Id.]. On March
14, 2012, the West Virginia State Police launched a criminal investigation against Mr.
Leonard based upon his daughter’s allegation that he had sexually molested her when she
was a child [Doc. 118-4, Ware Decl. ¶ 5].
In a previous Order [Doc. 91], this Court found defendant Garvin was entitled to
immunity and dismissed her from this action.
In a previous Order [Doc. 95], this Court found defendant WVDHHR could not be
held vicariously liable; accordingly, it was dismissed from this action.
Starkey called the Harrison County 911, identified herself as a CPS worker, and
requested assistance in the removal, indicating that she anticipated problems at the
residence [Doc. 115 Ex. E, Starkey Decl. ¶ 6; Ex. F, Harrison/Taylor County CAD Incident
Report]. Specifically, a social worker had informed the deputy defendants that Mr. Leonard
was under criminal investigation for allegedly molesting his daughter, that he had guns and
might use them, that he had previously threatened to harm the children, and that there was
fear of a hostage situation if CPS attempted to remove the children. [Doc. 115 Ex. C,
Garvin Decl. ¶ 10; Ex. E, Starkey Decl. ¶ 7]. Defendants Starkey and Ware called
Assistant Prosecuting Attorney Patricia Dettori, who represented the DHHR in child abuse
and neglect cases, to advise her of the impending removal. Dettori told Starkey and Ware
they did not need to get a petition or court approval prior to taking the children, as the
WVDHHR already had legal custody. [Doc. 123 Ex. A ¶ 4 and Ex. B ¶ 7].
Harrison County Deputy Sheriff Shingleton was dispatched to meet Starkey, Ware
and Garvin in the parking lot behind the Harrison County Courthouse to accompany them
to the Leonards’ home. [Doc. 118-7 Ex. G, Shingleton Decl. ¶ 4]. Shingleton contacted
Deputy Medina for assistance. [Doc. 118-8 Ex. H, Medina Decl. ¶ 4]. The defendants all
arrived at the Leonards’ home around 6:21 p.m. The deputy defendants each arrived in
their law enforcement vehicles, while Starkey, Ware and Garvin arrived in one car together.
[Id.]. The deputy defendants, who were in their uniforms and armed, approached the
Leonards’ home, where Mr. Leonard was present. [Id. at ¶ 6]. The deputies asked Mr.
Leonard to exit the home, but Mr. Leonard asked if they had a warrant and then refused
to exit the home. [Doc. 124-2, Robert P. Leonard Decl. ¶ 8]. Further, the deputies could
see the children in the home, and Mr. Leonard was blocking access to them. [Doc. 118-7
Ex. G, Shingleton Decl. ¶ 11]. Deputy Medina then reached into the home and escorted
Mr. Leonard outside by his wrists to search and detain him. [Doc. 118-8, Medina Decl.
¶ 11]. Mr. Leonard alleges deputy Shingleton choked him at some point after being placed
in handcuffs. Deputy Medina testified that he believed his warrantless entry into the home
to separate Mr. Leonard from the children was justified by the exigent circumstances
exception. [Ex. M 14:21-15:14].
After Mr. Leonard was restrained, Starkey, Ware, and Garvin entered the home to
retrieve the children and a few of their belongings. [Doc. 118-7 Ex. G, Shingleton Decl.
¶ 12]. Mrs. Leonard alleges a couple articles of her clothing were also taken. Garvin and
Shingleton then took the children directly to the Harrison County Courthouse for emergency
removal proceedings pursuant to W.Va. Code § 49-6-3(c). [Id. at ¶ 15].
On March 12, 2014, the Leonards filed suit in this Court against Starkey, Ware,
Walker, Garvin, Shingleton, Medina, and the West Virginia Department of Health and
Human Resources (“WVDHHR”) [Doc. 1]. On October 7, 2014, Judge Irene M. Keeley3
heard oral argument on the previous motions to dismiss [Doc. 43], and denied the same
without prejudice. [Id.]. The Court ordered the Leonards to file an amended complaint, [Id.
at 2], which they did on December 1, 2014, alleging the following [Doc. 50]:
Counts 1 and 2: Violation of the Leonards’ right to be free from
unreasonable searches and seizures under the Fourth and Fourteenth
This matter was transferred to the undersigned judge on September 22, 2015
Amendments, pursuant to 42 U.S.C. § 1983 (against Starkey, Ware, Walker,
Garvin, Shingleton and/or Medina);
Counts 3 and 4: Intentional Infliction of Emotional Distress (against Starkey,
Ware, Walker, Garvin, Shingleton, and/or Medina);4
Count 6: Assault and Battery (against Shingleton and/or Medina);
Count 7: Civil Conspiracy (against Starkey, Ware, Walker, Garvin,
Shingleton, and Medina); and
Count 8: Vicarious Liability (against defendant WVDHHR).
On April 30, 2015, the DHHR defendants filed a Motion to Dismiss [Doc. 73], arguing
that the Leonards did not plead sufficient facts to state a claim upon which relief could be
granted, or to overcome the defendants’ sovereign and qualified immunity. In its Order on
the DHHR’s Motion to Dismiss, this Court ruled as follows:
DENIES WITHOUT PREJUDICE the DHHR defendants’ Motion to Dismiss
[Doc. 73], as to the § 1983 claims in Counts 1 and 2;
DENIES WITHOUT PREJUDICE the Motion to Dismiss based on qualified
GRANTS the DHHR defendants’ Motion to Dismiss and DISMISSES Counts
3 and 4 insofar as these Counts pertain to the DHHR defendants;
DENIES the DHHR defendants’ Motion to Dismiss the civil conspiracy claim
in Count 7 insofar as it pertains to § 1983 conspiracy;
There is no “Count 5" listed in the Amended Complaint.
GRANTS the DHHR defendants’ Motion to Dismiss the civil conspiracy
claims in Count 7 insofar as they pertain to all other claims except the
Section 1983 conspiracy; and
GRANTS the WVDHHR’s Motion to Dismiss the vicarious liability claim in
Count 8; accordingly, the WVDHHR is hereby DISMISSED from this action.
The DHHR defendants now move for summary judgment on the remaining claims.
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue
exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, the
Court must conduct “the threshold inquiry of determining whether there is the need for a
trial – whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250.
Additionally, the party opposing summary judgment “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is, once the movant has
met its burden to show absence of material fact, the party opposing summary judgment
must then come forward with affidavits or other evidence demonstrating there is indeed a
genuine issue for trial.
Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323-25;
Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations
The following claims remain against the DHHR defendants: (1) violations of the
plaintiffs’ Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 in their
individual capacities and (2) civil conspiracy. First, defendants argue that the Leonards’
state law claims are barred by statutory immunity pursuant to the West Virginia
Governmental Tort Claims and Insurance Reform Act, W.Va. Code § 29-12a-5(b) (the
“Act”). Second, the DHHR defendants contend that the Leonards have failed to establish
a § 1983 claim, or in the alternative, that they are entitled to qualified immunity. Finally,
defendants argue that because the Leonards have failed to support any tort claim, the
claim of civil conspiracy must fail as a matter of law.
The Supreme Court of Appeals of West Virginia has recently noted the complexities
involved when addressing claims of immunity:
We begin our analysis by observing that, admittedly, our caselaw analyzing
and applying the various governmental immunities – sovereign, judicial,
quasi-judicial, qualified, and statutory – to the vast array of governmental
agencies, officials, employees and widely disparate factual underpinnings
has created a patchwork of holdings. These various holdings against which
each particular set of facts must be analyzed lead inevitably to a situation
where some allegations fit more comfortably with certain syllabus points than
others. Much of the absence of harmony is simply the nature of the beast:
immunities must be assessed on a case-by-case basis in light of the
governmental entities and/or officials named and the nature of the actions
and allegations giving rise to the claim. See Syl. Pt. 9, in part, Parkulo [v.
West Virginia Bd. of Probation and Parole], 199 W. Va. 161, 483 S.E.2d
507 [(1996)] (“The existence of the State’s immunity  must be determined
on a case-by-case basis.”). As such, we will examine the claims in the case
sub judice under the scope of the particular qualified immunity holdings which
most accurately conform to the nature of the particular allegations.
West Virginia DHHR v. Payne, 231 W. Va. 563, 571, 746 S.E.2d 554, 562 (2013).
With this guidance in mind, this Court will delve into the various immunities claimed
by the defendants.
The DHHR defendants argue that the Leonards’ § 1983 claims must be dismissed
because: (1) the evidence fails to support a § 1983 claim; or (2) qualified immunity bars the
claim. Section 1983 allows for a plaintiff to assert a claim against any “person” who, acting
under color of state law, “depriv[ed] [another] of any rights, privileges, or immunities
secured by the Constitution.” 42 U.S.C. § 1983. A plaintiff seeking to bring a claim under
§ 1983 must meet two requirements: (1) the conduct complained of was committed by a
person acting under color of law; and (2) the conduct deprived the plaintiff of rights,
privileges, or immunities secured to him by the Constitution and the laws of the United
States. See Wirth v. Surles, 562 F.2d 319, 321 (4th Cir. 1977) (citing Monroe v. Pape,
365 U.S. 167 (1961)).
As an initial matter, this Court must identify whether any statutory or constitutional
rights were violated and then ask whether those rights were clearly established at the time
of the violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Hunter v. Town of
Mocksville, N.C., 789 F.3d 389, 396 (4th Cir. 2015). This Court, in its discretion, may
decide “which of the two prongs of the qualified immunity analysis should be addressed first
in light of the circumstances in the particular case at hand.” M.C. ex rel. Crawford v.
Amrhein, 598 Fed.Appx. 143, 146 (4th Cir. 2015) (citing Pearson, 555 U.S. at 236).
The Leonards allege that Starkey, Ware, and Garvin entered the Leonards’ home
and seized personal property, allegedly without the consent of the Leonards or other
authorization. On this basis, the Leonards claims for Fourth and Fourteenth Amendment
violations against the DHHR defendants under § 1983.
i. Clearly Established Right
Fourth Amendment protections are triggered when the State intrudes into an area
“in which there is a ‘constitutionally protected reasonable expectation of privacy.’” New
York v. Class, 475 U.S. 106, 112 (1986) (citing Katz v. United States, 389 U.S. 347, 360
(1967) (Harlan, J., concurring)). “Because individuals ordinarily possess the highest
expectation of privacy within the curtilage of their home, that area typically is ‘afforded the
most stringent Fourth Amendment protection.’” United States v. Taylor, 90 F.3d 903, 908
(4th Cir. 1996) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976)).
“With few exceptions, the question of whether a warrantless search of a home is
reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533
U.S. 27, 31 (2001) (citations omitted).
The right to be secure in one’s home from warrantless and forcible intrusion in the
absence of exigent circumstances is clearly established. In Payton v. New York, 445 U.S.
573, 590 (1980), the Supreme Court stated that “the Fourth Amendment has drawn a firm
line at the entrance to the house. Absent exigent circumstances, that threshold may not
be reasonably crossed without a warrant.” Id. Thus, at the time of the intrusion, there was
clearly established law from the Supreme Court prohibiting the DHHR defendants’ entry
into the Leonards’ home without a warrant, exigent circumstances, or court order.
ii. Violation of Constitutional Right
The Leonards claim that their constitutional rights were violated when the DHHR
defendants, acting under color of state law, entered their home without a warrant, exigent
circumstances, or other authorization, in violation of the Fourth Amendment and seized
their personal property. “It is a ‘basic principle of Fourth Amendment law that searches and
seizures inside a home without a warrant are presumptively unreasonable.’” Brigham City
v. Stuart, 547 U.S. 398, 403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559 (2004)).
However, “because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’
the warrant requirement is subject to certain exceptions.” Id. at 403.
In this case, a social worker had informed the dispatcher “that she anticipated
problems at the residence,” and when deputies arrived at the home and requested that Mr.
Leonard come outside, Mr. Leonard asked if they had a warrant and then refused to exit
the home. [Id. at 6]. The deputies then reached into the home and escorted Mr. Leonard
outside by the wrists to search and detain him. [Doc. 118-7 Ex. H, Medina Decl. ¶ 11].
Starkey, Ware, and Garvin then entered the house to retrieve the children.
In Underwood v. WVDHHR, 2013 WL 2319253 (S.D. W.Va. May 28, 2013), Judge
Joseph R. Goodwin explained the importance of legal custody by the DHHR in examining
qualified immunity. There, the plaintiff similarly asserted the WVDHHR violated her
constitutional rights when its employees removed her children from the home. Judge
A reasonable official could therefore believe that when the state retains legal
custody, it can rescind physical custody without violating the Fourth
Rivera v. Mattingly, No. 06 Civ. 7077(TPG), 2011 WL
4344422, at *11 (S.D.N.Y. Sept. 12, 2011)(finding that plaintiffs’ Fourth
Amendment claim failed as a matter of law because they could provide no
Second Circuit cases “holding that Fourth Amendment seizures occur when
foster children in the state’s legal custody are moved from one foster home
to another.”); A.C. v. Mattingly, No. 05 CV 2986(TPG), 2007 WL 894268, at
*5-6 (S.D.N.Y. Mar. 20, 2007)(finding no Fourth Amendment violation
because the state retained legal custody of the infant plaintiffs); Hunt v.
Green, 376 F.Supp.2d 1043, 1057-58 (D.N.M. 2005)(noting that “[t]here are
good reasons to require a warrant or court order when . . . the state is
removing children from parents or others who have legal custody,” but that
“[t]here is no such compelling reason for judicial action where the state is
changing foster parents or physical guardians,” because this would “largely
erase the distinction between legal and physical custody”); id. at 1058 n.5
(recognizing “the lack of case law discussing the constitutional implications
of a state changing the placement of children in the state’s legal custody,”
and analogizing to cases regarding the rights of prisoners); Gedrich v.
Fairfax Cnty. Dep’t of Family Servs., 282 F.Supp.2d 439, 469-70 (E.D. Va.
2003)(finding no Fourth Amendment violation for confining plaintiff minor child
when the state had legal custody).
This is precisely the advice Harrison County Assistant Prosecuting Attorney Patricia
Dettori told the DHHR defendants. They simply did not require a petition or court approval
before removing the children; the WVDHHR had legal custody. Accordingly, they had no
reason to believe that the removal would violate the plaintiffs’ constitutional rights.
Accordingly, the DHHR defendants are entitled to qualified immunity on Counts 1 & 2.
“In the absence of an insurance contract waiving the defense, the doctrine of
qualified or official immunity bars a claim of mere negligence against a State agency not
within the purview of the West Virginia Governmental Tort Claims and Insurance Reform
Act, W.Va. Code § 29-12A-1 et seq., and against an officer of that department acting within
the scope of his or her employment, with respect to the discretionary judgments, decisions,
and actions of the officer.” Syl. Pt. 6, Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374
(1995). “‘A public official who is acting within the scope of his authority and is not covered
by the provisions of W.Va. Code [§] 29-12A-1 et seq., is entitled to qualified immunity from
personal liability for official acts if the involved conduct did not violate clearly established
laws of which a reasonable official would have known . . ..’
Syl., State v. Chase
Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992).” Syl. Pt. 3, Clark, 195 W. Va.
The DHHR defendants also claim immunity for Child Protective Services Case
Workers. West Virginia Code § 49-6A-9(g) provides:
No Child Protective Services Case Worker may be held personally liable for
any professional decision or action thereupon: arrived at in the performance
of his or her official duties as set forth in this section or agency rules
promulgated thereupon Provided, That nothing in this subsection protects
any Child Protective Services worker from any liability arising from the
operation of a motor vehicle or for any loss caused by gross negligence,
willful or wanton misconduct or intentional misconduct.
W.Va. Code § 49-6A-9(g) (emphasis added).
The evidence shows that the DHHR defendants did no more than was necessary
to carry out the removal of the children. Having legal custody, and confirming with the
Assistant Prosecuting Attorney that they did not require a petition or court order, the DHHR
defendants simply moved forward with removal.
Mr. Leonard attempted to prevent
removal, and the police assisted in removing that obstacle. Subsequently, the children
were safely removed from the home. This Court finds nothing that amounts to gross
negligence, willful or wanton misconduct or intentional misconduct. Accordingly, the DHHR
defendants are entitled to statutory immunity on all state law claims.
The Leonards allege that the DHHR defendants and their co-defendants engaged
in a civil conspiracy. West Virginia law defines civil conspiracy as “a combination of two or
more persons by concerted action to accomplish an unlawful purpose or to accomplish
some purpose, not in itself unlawful, by unlawful means.” Dunn v. Rockwell, 225 W. Va.
43, 56, 689 S.E.2d 255, 268 (2009) (quoting Dixon v. American Indus. Leasing Co., 162
W. Va. 832, 253 S.E.2d 150, 152 (1979)).
“At its most fundamental level, a ‘civil
conspiracy’ is ‘a combination to commit a tort.’” Id. (citations omitted). Civil conspiracy is
not an independent action, because “[t]he cause of action is not created by the conspiracy
but by the wrongful acts done by the defendants to the injury of the plaintiff.” Id. “In order
for civil conspiracy to be actionable it must be proved that the defendants have committed
some wrongful act or have committed a lawful act in an unlawful manner to the injury of the
plaintiff.” Dixon, 162 W. Va. at 832, 253 S.E.2d at 150. Civil conspiracy is “a legal doctrine
under which liability for a tort may be imposed on people who did not actually commit a tort
themselves but who shared a common plan for its commission with the actual
perpetrator(s).” Dunn, 225 W. Va. at 57, 689 S.E.2d at 269.
The Court should dismiss a civil conspiracy claim when the plaintiffs allege that the
defendants “engaged in a civil conspiracy” and “individually and collectively” committed
wrongs, but do not produce evidence to support that allegation. Tucker v. Thomas, 853
F.Supp.2d 576, 594 (N.D. W.Va. 2012).
The Leonards allege that (1) the DHHR
defendants met their co-defendants in a parking lot behind the Harrison County Courthouse
and “conspired and planned to carry out a surprise raid on the Leonards”; (2) drove to the
Leonards’ residence together; (3) assisted in the removal of the children pursuant to W.Va.
§ 49-6-3(c); and (4) the defendants’ actions “were unlawful acts in furtherance of an
unlawful conspiracy to commit such acts between themselves and with defendants . . ..”
[Doc. 50 at pp. 5-6, 8].
“It has been said that Section 1983 essentially creates tort liability.” State v. Chase
Securities, Inc., 188 W. Va. 356, 364, 424 S.E.2d 591, 599 (1992). The Leonards have
also alleged that “Walker directed, and Starkey and Ware carried out with the assistance
of Garvin, Shingleton and Medina, an [sic] conspiracy to remove the Leonards’
grandchildren from the plaintiffs’ lawful court-ordered custody under the pretext of doing so
pursuant to W.Va. Code § 49-6-3(c), and to violate the Leonards’ constitutional rights to be
free from unreasonable searches and seizures.” [Doc. 81 at 2]. To successfully prevail on
this claim, the Leonards must ultimately show that the DHHR defendants acted jointly in
concert and performed an overt act in furtherance of the conspiracy which resulted in the
deprivation of their constitutional right to be free from unreasonable searches and seizures.
See Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421 (4th Cir. 1996) (citing Hafner
v. Brown, 938 F.2d 570, 577 (4th Cir. 1992)). “Further, the proponent of a civil conspiracy
claim must produce at least circumstantial evidence that each member of the alleged
conspiracy shared the same conspiratorial objective and mutual agreement.” Ash v.
Allstate Ins. Co., No. 12-1533, 2013 WL 5676774, at *5 (W. Va. Oct. 18, 2013) (citing
Wenmoth v. Duncan, No. 3:08-cv-182, 2009 WL 2707579, at *5 (N.D. W.Va. Aug. 26,
Lacking from the plaintiffs’ allegations is any evidence that the defendants came to
any mutual agreement to commit any tort. While the plaintiffs offer self-serving and
speculative assertions that the DHHR defendants were out to get them for telling them to
do their jobs in prior proceedings, there is simply no evidence, circumstantial or otherwise,
which suggests this was the motive for their actions in removing the children. Indeed, the
defendants did in fact meet and come to an agreement to remove the children from the
Leonards’ physical custody. This decision came, however, after Garvin’s suspicions
regarding sexual abuse in the house were substantiated by Mr. Leonard’s daughter’s sworn
statement to police that he had sexually molested her when she was a child. Furthermore,
Starkey and Ware called Assistant Prosecuting Attorney Patricia Dettori, who was
representing the WVDHHR in the pending child abuse and neglect cases to advise her of
the impending removal. Assistant Dettori informed Starkey and Ware that they did not
need to get a petition or court approval before taking the children, as the DHHR already
had legal custody of the children. [Doc. 123 Ex. A ¶ 4; Ex. B ¶ 7]. After Mr. Leonard was
detained, the DHHR defendants did their jobs in ensuring the safety of the children. After
what had transpired, no reasonable jury could conclude that entering the house and
removing the children from that situation violated any constitutional rights. The DHHR’s
presence was “related to the objectives of the authorized intrusion.” Wilson v. Layne, 526
U.S. 603, 611 (1999). And similar to Hunsberger v. Wood, 570 F.3d 546 (4th Cir. 2009),
the DHHR defendants’ presence in the house was useful to secure the children, who were
unknown to the officers.
Then, while inside, no search ensued; rather, with the assistance of Mrs. Leonard,
Starkey and Ware merely gathered some of the children’s clothing and toys, and a sippy
cup. [Doc. 123 Ex. E pp. 21-26]. Mrs. Leonard asserts that the DHHR defendants took
some of her clothing while gathering the children’s belongings. [Id. at pp. 26-27]. This
Court finds that even if true, the Fourth Circuit has held that negligence is insufficient to
support a Fourteenth Amendment violation. See Young v. City of Mt. Rainier, 238 F.3d
567, 577 (4th Cir. 2001). There is simply no evidence that anything taken from the
Leonards’ home was done so intentionally or maliciously. The defendants are therefore
entitled to summary judgment on this claim.
Plaintiffs assert a claim against defendant Walker for supervisory liability. The
Fourth Circuit has firmly held that supervisory officials may be held personally liable in
certain circumstances for the constitutional injuries inflicted by their subordinates. See
Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir. 1980); McCoy v. McCoy, 528 F.Supp.
712, 714 (N.D. W.Va.1981) (Haden, J.) (explaining that a prisoner states a cause of action
under 42 U.S.C. § 1983 where he alleges that the Commissioner of the WVDOC has failed
to supervise and control his subordinates who personally deprived the inmate of his civil
There is, however, no respondeat superior liability pursuant to 42 U.S.C. § 1983.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). “[L]iability will only lie where it
is affirmatively shown that the official charged acted personally in the deprivation of the
plaintiff's rights,” Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977), or where a
subordinate acts pursuant to a policy or custom for which the supervisor is responsible.
Fisher v. Wash. Metro. Area Transit Auth., 690 F.2d 1133, 1143 (4th Cir. 1982),
abrogated on other grounds by County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
Specifically, a supervisor may be liable under § 1983 if the following elements are
(1) the supervisor had actual or constructive knowledge that his subordinate
was engaged in conduct that posed a “pervasive and unreasonable risk” of
constitutional injury to citizens like the plaintiff; (2) the supervisor's response
to that knowledge was so inadequate as to show “deliberate indifference to
or tacit authorization of the alleged offensive practices;” and (3) there was an
“affirmative causal link” between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
Moreover, it has been established that the plaintiff bears a heavy burden of proof
which cannot be satisfied by pointing to a single incident or isolated incidents because “a
supervisor cannot be expected to promulgate rules and procedures covering every
conceivable occurrence within the area of his responsibility.” Slakan v. Porter, 737 F.2d
368, 373 (4th Cir. 1984).
In this case, defendant Walker was not present at the time of the removal.
Therefore, she had no participation in physically carrying out any of the acts which took
place. Further, any direction the other defendants took from defendant Walker would have
been isolated to this single incident, which is insufficient to satisfy the heavy burden of proof
to attach supervisory liability. More importantly, this Court has found no constitutional injury
upon which liability could attach. Accordingly, summary judgment must be awarded to
For the reasons discussed above, this Court GRANTS Defendants Starkey, Ware,
and Walker’s Motion for Summary Judgment [Doc. 123]. Accordingly, these defendants
are hereby DISMISSED from this action. All matters having now been dismissed, this
matter is ORDERED STRICKEN from the active docket of this Court. Separate judgment
is now ORDERED in favor of all defendants in this matter.
As a final matter, all remaining pending motions [Docs. 138 & 156] are hereby
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order to counsel of record.
DATED: January 24, 2017.
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