Leonard et al v. Starkey et al
MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO DISMISS. The Court grants in part and denies in part defendants Shingleton and Medina's 77 Motion to Dismiss. The Court denies, without prejudice, Medina and Shingleton's Motion to Dismiss as to the 1983 unlawful entry claims in Counts 1 and 2; denies without prejudice the Motion to Dismiss based on immunity; grants Medina and Shingleton's Motion to Dismiss and Dismisses Counts 3 and 4 insofar as these Counts pertain to the deputy defendants; grants Medina and Shingleton's Motion to Dismiss and Dismisses the assault claim in Count 6; denies Medina and Shingleton's Motion to Dismiss the civil conspiracy claim in Count 7 insofar as it pertains to 1983 conspiracy; and grants Medina and Shingleton's Motion to Dismiss the civil conspiracy claims in Count 7 insofar as they pertain to all other claims except the Section 1983 conspiracy. Signed by District Judge John Preston Bailey on 12/8/15. (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 DENYING IN PART AND
GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS
Pending before this Court is the Motion to Dismiss filed by defendants Coty
Shingleton and James J. Medina, II (“Shingleton,” “Medina,” or “the deputy defendants”)
[Doc. 77], which was filed May 1, 2015. The plaintiffs filed their Response in Opposition
[Doc. 81] on May 18, 2015. The deputy defendants filed their Reply brief [Doc. 84] on May
22, 2015. Subsequently, this Court ordered the plaintiffs to submit a more definite
statement [Doc. 87], which the plaintiffs filed on August 31, 2015 [Doc. 88]. This matter is
now ripe for adjudication. For the reasons that follow, the Court GRANTS IN PART and
DENIES IN PART defendants Shingleton and Medina’s Motion to Dismiss [Doc. 77].
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”) 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. [Id.].
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 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.]. Of import, on March
9, 2012, defendant Garvin reported the alleged “imminent danger” the plaintiffs posed to
the children, yet no action was taken until five days later on March 14. This Court also
notes that defendant Garvin, in her Motion to Dismiss, states that “abuse may have been
occurring . . ..” [Doc. 72 at p. 12] (emphasis added).
Starkey called the Harrison County Sheriff’s Department, identified herself as a CPS
worker, and requested assistance in the removal, indicating that “she anticipated problems
at the residence.” [Id.]. Harrison County Deputy Sheriffs Shingleton and Medina were sent
to meet Starkey, Ware and Garvin in the parking lot behind the Harrison County
Courthouse to accompany them to the Leonards’ home. [Id.]. The defendants all arrived
at the Leonards’ home around 6:21 p.m. [Id.]. 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 he refused. [Id.].
The deputies then opened the front door, reached inside, and forcibly removed Mr.
Leonard from the residence. [Id.]. Once outside, the deputies handcuffed and searched
Mr. Leonard. [Id.]. The Leonards allege that one of the two deputies “intentionally and
maliciously choked” Mr. Leonard while he was restrained on the ground. [Id. at ¶ 7].1
After Mr. Leonard was restrained, Starkey, Ware, and Garvin entered the home and
seized personal property, without the consent of the Leonards or other authorization.2 [Id.].
The Leonards do not specify which of the deputies “intentionally and maliciously
choked” Mr. Leonard [Doc. 50 at ¶ 7].
It is unclear what was seized from the Leonards’ home, as the only fact alleged
in relation to this claim states that, “defendants Starkey, Walker [sic] and Garvin, working
in concert . . . seized items of personal . . . and they then left the residence with the
property” [Doc. 50 at ¶¶ 7-8]. Defendants, however, allude to taking the grandchildren’s
belongings in their brief. Plaintiffs’ More Definite Statement does, however, allege “Starkey,
Ware and Garvin . . . seized items of personal property belonging to the plaintiffs.” [Doc.
88 at 7].
Garvin and Shingleton took the children directly to the Harrison County Courthouse for
emergency removal proceedings pursuant to W.Va. Code § 49-6-3(c). [Id.].
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
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).
This matter was transferred to the undersigned judge on September 22, 2015
There is no “Count 5" listed in the Amended Complaint.
On May 1, 2015, defendants Medina and Shingleton filed the instant Motion to
Dismiss, arguing that the Leonards did not plead sufficient facts to state a claim upon which
relief can be granted, or to overcome the defendants’ statutory and qualified immunity.
In reviewing the sufficiency of a complaint under Fed. R. Civ. P. 12(b)(6), a district
court must accept the factual allegations in the complaint as true. Zak v. Chelsea, 780
F.3d 597, 601 (4th Cir. 2015)(citing Matrix Capital Mgmt. Fund, LP v. Bearing Point,
Inc., 576 F.3d 172, 176 (4th Cir. 2009)). While a complaint does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, courts
“are not bound to accept as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944 (1986).
A complaint must be dismissed if it does not allege “‘enough facts to state a claim
to relief that is plausible on its face.’ Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974
(2007) (emphasis added).” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id. However, when reviewing the sufficiency of a
complaint, a court may also consider “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A court may consider documents
attached to a motion to dismiss when they are “integral to and explicitly relied on in the
complaint and . . . the plaintiffs do not challenge [their] authenticity.” Am. Chiropractic
Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992). “But 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),” so long as “all facts necessary to the affirmative
defense ‘clearly appear on the face of the complaint.’” Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007) (quoting Richmond, Fredericksburg & Potomac R.R. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993)). The Supreme Court of the United States has
repeatedly stressed “the importance of resolving immunity questions at the earliest possible
stage in litigation . . ..” Hunter v. Bryant, 502 U.S. 224, 227 (1991); see Brockington v.
Boykins, 637 F.3d 503, 506 (4th Cir. 2011) (“Although a motion pursuant to Rule 12(b)(6)
invites an inquiry into the legal sufficiency of the complaint, not an analysis of potential
defenses to the claims therein, dismissal nevertheless is appropriate when the face of the
complaint clearly reveals the existence of a meritorious affirmative defense.”).
The Leonards’ Amended Complaint [Doc. 50] alleges the following claims against
defendants Shingleton and Medina: (1) violations of their Fourth and Fourteenth
Amendment rights pursuant to 42 U.S.C. § 1983; (2) intentional infliction of emotional
distress; (3) assault and battery; and (4) civil conspiracy. First, Shingleton and Medina
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 § 29-12a5(b) (the “Act”). Second, Shingleton and Medina contend that the Leonards have failed to
state a § 1983 claim, or in the alternative, that they are entitled to qualified immunity. Third,
they argue that the Leonards have failed to state plausible claims of intentional infliction of
emotional distress and assault and battery. Finally, Shingleton and Medina argue that
because the Leonards have failed to state any plausible tort claim, the claim of civil
conspiracy must fail as a matter of law.
As to any new allegations or claims raised in the Leonards’ response to the motion
to dismiss, this Court will not consider them for the purposes of resolving the pending
motion. See Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013) (“In resolving
a motion pursuant to Rule 12(b)(6) . . ., a district court cannot consider matters outside the
pleadings without converting the motion into one for summary judgment”); Imagine
Medispa, LLC v. Transformations, Inc., 999 F.Supp.2d 873, 879 (S.D. W.Va. 2014)
(refusing to consider new allegations in resolving a motion to dismiss where the plaintiffs
had not moved to amend their complaint to include such allegations). This Court will,
however, consider the Plaintiffs’ More Definite Statement [Doc. 88] as it was Court-ordered
and no defendant has challenged it.
Shingleton and Medina argue that they are entitled to statutory immunity as to the
state law claims pursuant to the Act. W.Va. Code § 29-12A-5(b). Statutory immunity “is
an immunity from suit rather than a mere defense to liability [that] . . . is effectively lost if
the case is erroneously permitted to go to trial.” Hutchison v. City of Huntington, 198 W.
Va. 139, 147, 479 S.E.2d 649, 657 (1996) (internal citations omitted). “[I]mmunities under
West Virginia law are more than a defense to a suit in that they grant governmental bodies
and public officials the right not to be subject to the burden of trial at all. The very heart of
the immunity defense is that it spares the defendant from having to go forward with an
inquiry into the merits of the case.” Id.
“The ultimate determination of whether . . . statutory immunity bars a civil action is
one of law for the court to determine.” State ex rel. Town of Pratt v. Stucky, 229 W. Va.
700, 706, 735 S.E.2d 575, 581 (2012). Under the Act, “[a] political subdivision is immune
from liability if a loss or claims results from . . . the failure to provide, or the method of
providing, police, law enforcement or fire protection.” W.Va. Code § 29-12A-5(a)(5). A
political subdivision is defined as follows:
[A]ny county commission, municipality and county board of education; any
separate corporation or instrumentality established by one or more counties
or municipalities, as permitted by law; any instrumentality supported in most
part by municipalities; any public body charged by law with the performance
of a government function and whose jurisdiction is coextensive with one or
more counties, cities or towns; a combined city-county health department
created pursuant to article two, chapter sixteen of this code; public service
districts; and other instrumentalities including, but not limited to, volunteer fire
departments and emergency service organizations as recognized by an
appropriate public body and authorized by law to perform a government
function: Provided, That hospitals of a political subdivision and their
employees are expressly excluded from the provisions of this article.
W.Va. Code § 29-12A-3(c).
The Harrison County Sheriff’s Department qualifies as a political subdivision under
the Act as a public body “charged by law with the performance of a government function.”
See State ex rel. City of Bridgeport v. Marks, 223 W. Va. 449, 455, 759 S.E.2d 192, 198
(2014). An employee of a political subdivision is immune from liability unless: “(1) his acts
or omissions were manifestly outside the scope of employment or official responsibilities;
(2) his . . . acts or omissions were with malicious purpose, in bad faith, or in a wanton or
reckless manner; or (3) liability is expressly imposed upon the employee by a provision of
this code.” W.Va. Code §§ 29-12A-5(b)(1)-(3).
An employee behaves in a wanton or reckless manner when he or she “has
intentionally done an act of an unreasonable character in disregard of a risk known to him
or so obvious that he must be taken to have been aware of it, and so great as to make it
highly probable that harm would follow.” Holsten v. Massey, 200 W. Va. 775, 789, 490
S.E.2d 864, 878 (1997). The Supreme Court of Appeals of West Virginia has previously
defined “malice” as “[t]he intentional doing of a wrongful act without just cause or excuse,
with an intent to inflict injury or under circumstances that the law will imply an evil intent .
. . A condition of the mind showing a heart regardless of social duty and fatally bent on
mischief.” State v. Burgess, 205 W. Va. 87, 89, 516 S.E.2d 491, 493 (1999) (quotations
In Hylton v. Bennett, No. 12-0194, 2012 WL 5834621, at *2 (W. Va. Nov. 16, 2012),
the Supreme Court of Appeals of West Virginia affirmed the circuit court’s dismissal with
prejudice where the defendants were entitled to statutory immunity from the claims. Id.
The Supreme Court concluded that, “[a]lthough petitioners allege in their complaint that
respondents [engaged in allegedly unlawful behavior] ‘maliciously and without probable
cause . . .’ the Complaint is devoid of any factual assertions to support this bald claim of
malice[,]” and thus the respondents were entitled to statutory immunity. Id.
The Leonards expressly allege that “at all times material to the Claims made herein
[defendants Medina and Shingleton were] employed by Harrison County, West Virginia as
. . . Harrison County Deputy Sheriff[s].” [Doc. 50 at ¶¶ 3, 11-12]. Accordingly, the
Leonards expressly “do not dispute that the defendant deputies are employees of a
‘political subdivision’ as defined by the statute.” [Doc. 81 at 6].
i. Assault & Battery
The Leonards contend that the “[a]ctions of defendants Medina and Shingleton
alleged above . . . were intentional and malicious acts engaged in by them to cause Mr.
Leonard to suffer imminent apprehension of harmful or offense physical contact and to
cause him to suffer harmful or offensive physical contact.” [Doc. 50 at ¶ 30]. The Leonards
further allege that “one of the deputies intentionally and maliciously choked Mr. Leonard.”
[Id. at ¶ 27].
The Leonards have alleged that Shingleton and Medina knew that they did not have
a warrant or other justification when they seized, handcuffed and choked Mr. Leonard.
Accepting the facts alleged in the Amended Complaint as true, the Leonards have pleaded
sufficient facts to support a plausible finding that the deputy defendants were acting with
malicious purpose or in bad faith. At this stage, the facts do not support a finding that the
deputy defendants are entitled to statutory immunity from this claim, and the Court DENIES
WITHOUT PREJUDICE Medina and Shingleton’s Motion to Dismiss based on this theory.
ii. Intentional Infliction of Emotional Distress
The Leonards allege that the “[a]ctions of defendants Medina and Shingleton alleged
above . . . were extreme and outrageous . . . [and] were engaged in by them for the
purpose of intentionally and maliciously inflicting emotional distress and outrage to the
Leonards or were engaged by them in reckless disregard that their conduct was substantial
[sic] certain to cause the Leonards emotional distress and outrage . . ..” [Doc. 50 at ¶ 30].
In support of this, the Leonards state that “based on the allegations in the Amended
Complaint- that without justifiable cause, the deputies invaded the sanctity of a private
home, grabbed the homeowner and forcibly pull [sic] him outside, took him to the ground
and put him in handcuffs, and then choked him . . ..” [Id. at ¶ 27].
The Leonards have alleged that Medina and Shingleton acted maliciously or with
reckless disregard that their conduct would cause the Leonards emotional distress. In
support, the Leonards contend that Medina and Shingleton knew that they did not have a
warrant, consent, or authorization when they seized Mr. Leonard inside his home, that
despite knowing that the Leonards had not and would not consent, and that one of the
deputies choked Mr. Leonard. On that basis, it could reasonably be inferred that Medina
and Shingleton had acted maliciously under West Virginia law, because they had
committed an unlawful act without just cause or authorization. Accordingly, at this point this
Court cannot determine that Medina and Shingleton are entitled to statutory immunity under
W.Va. Code § 29-12A-5(b), and it DENIES WITHOUT PREJUDICE the Motion to Dismiss
based on this theory.
iii. Civil Conspiracy
The Leonards argue that the “[a]ctions of defendants Medina and Shingleton alleged
above . . . were unlawful acts in furtherance of an unlawful conspiracy to commit such
unlawful acts between themselves and with defendants Starkey, Ware, and Garvin” and
that “the actions of defendants Medina, Shingleton, Starkey, Ware and Garvin at the
Leonard’s residence on March 14, 2012, as alleged above, were acts in furtherance of that
conspiracy.” [Doc. 50 at ¶¶ 8, 11].
A “civil conspiracy is 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. The cause of action is not created by the conspiracy but by the wrongful
acts done by the defendants to the injury of the plaintiff.” Kessel v. Leavitt, 204 W. Va.
95, 128, 511 S.E.2d 720, 753 (1998). Thus, Medina and Shingleton are entitled to statutory
immunity unless the Leonards have alleged facts to show that they conspired to commit
assault and battery, or conspired to commit intentional infliction of emotional distress, and
that this conduct was with malicious purpose, bad faith, or wanton or reckless behavior.
See Mallamo v. Town of Rivesville, 197 W. Va. 616, 623, 477 S.E.2d 525, 532 (1996)
(finding that police chief would not be immune from liability if a conspiracy to conceal the
facts surrounding a shooting incident were proven because such concealment would be
outside the scope of his employment, with malicious purpose, and in bad faith).
The Leonards allege that “defendants Starkey, Ware and Garvin met with defendant
Medina and/or with defendant Shingleton in the parking lot behind the Harrison County
Courthouse in Clarksburg, and they conspired and planned to carry out a surprise raid on
the Leonards at their home without any prior notice to either of the Leonards . . ..” [Doc.
50 at ¶ 20]. If the defendants conspired to commit either of the above torts, the action
would certainly be in bad faith or with malicious purpose. At this time, the defendants are
not entitled to statutory immunity, and the Court DENIES the Motion to Dismiss based on
B. Qualified Immunity
Medina and Shingleton argue that the Leonards’ § 1983 claims must be dismissed
because: (1) the Leonards’ allegations fail to support a § 1983 claim because they do not
identify a Constitutional right that was violated; 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
“Qualified immunity protects an officer from liability or, in many instances, from
having to stand trial when the officer makes a decision that even if constitutionally deficient,
‘reasonably misapprehends the law governing the circumstances she confronted.’”
Hutchinson v. Lemmon, 436 Fed.Appx. 210, 214 (4th Cir. 2011) (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004)). “[A] plaintiff may prove that an official has violated his
rights, but an official is nonetheless entitled to qualified immunity if a reasonable person in
the official’s position could have failed to appreciate that his conduct would violate those
rights.” Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991). This is particularly
important in the law enforcement field, where the ability of police officers “to protect the
public can be severely hampered . . . if their every decision is subject to second-guessing
in a lawsuit.” Id. Accordingly, qualified immunity acts to protect “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
As an initial matter, taking the well-pleaded facts in the Amended Complaint as true,
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., __ F.3d __,
2015 WL 3651646, at *4 (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).
1. Unreasonable Search
The Leonards allege that “[w]hen the deputies, without a warrant or exigent
circumstances as alleged, opened the door and entered the sanctity of the home of Mr.
Leonard and Mrs. Leonard in order to grab and pull Mr. Leonard from the home . . . the
deputies . . . violated the expectations of privacy [the Leonards] have in their home against
any warrantless intrusion.” [Doc. 81 at 16] (emphasis in original). On this basis, the
Leonards argue that Mrs. Leonard has plausibly alleged a Fourth Amendment violation
against the deputies under § 1983. [Id.].
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 Medina and Shingleton’s
admittedly minimal entry into the Leonards’ home without a warrant or exigent
ii. Violation of Constitutional Right
The Leonards claim that their constitutional rights were violated when Medina and
Shingleton, acting under color of state law, entered their home without a warrant, exigent
circumstances, or other authorization, in violation of the Fourth Amendment. “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. Notably, “[a]n action is ‘reasonable’ under the
Fourth Amendment, regardless of the individual officer’s state of mind, as long as the
circumstances, viewed objectively, justify the action.” Id. at 404 (citations omitted). “[A]
search or seizure carried out on a suspect’s premises without a warrant is per se
unreasonable, unless the police can show . . . the presence of ‘exigent circumstances.’”
Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971). An “exigent circumstance”
exists when “real immediate and serious consequence” could occur if the police delay their
action in order to obtain a warrant. Welsh v. Wisconsin, 466 U.S. 740, 751 (1984)
“In analyzing whether exigent circumstances justified a warrantless search, we ask
whether the circumstances would cause an officer to have an ‘objectively reasonable belief
that an emergency existed that required immediate entry to render assistance or prevent
harm to persons or property within.’” United States v. Hill, 649 F.3d 258, 265 (4th Cir.
2011) (quoting United States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992)). The Supreme
Court has specifically identified exigencies that may justify a warrantless search of a home.
Kentucky v. King, 563 U.S. 452 (2011); see, e.g., Ker v. California, 374 U.S. 23, 40
(need “to prevent the imminent destruction of evidence” is sufficient justification for a
warrantless search); Michigan v. Fisher, 558 U.S. 45, 47 (2009) (warrantless entry was
permissible to render emergency assistance to an injured person or to protect an occupant
from imminent injury); United States v. Santana, 427 U.S. 38, 42-43 (1976) (warrantless
entry permissible when officers are in hot pursuit of fleeing suspect).
In United States v. Turner, 650 F.2d 526 (4th Cir. 1981), the Fourth Circuit
provided enumerated factors relevant to a district court’s determination of exigent
(1) the degree of urgency involved and the amount of time necessary to
obtain a warrant; (2) the officers’ reasonable belief that the contraband is
about to be removed or destroyed; (3) the possibility of danger to police
guarding the site; (4) information indicating the possessors or the contraband
are aware that the police are on their trail; and (5) the ready destructibility of
Turner, 650 F.2d at 528 (citing United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973)).
The Fourth Circuit has also acknowledged a narrow class of constitutionally
permissible warrantless searches in the “preventative action” context. See Mora v. City
of Gaithersburg, 519 F.3d 216, 222 (4th Cir. 2008). “In circumstances that suggest a
grave threat and true emergency, law enforcement is entitled to take whatever preventative
action is needed to defuse it.” Id. at 225. In Mora, a warrantless search of a suspect’s
possessions and apartment was held to be constitutionally permissible based on an
overwhelming need to prevent harm to the public where the police had received a specific
tip that the suspect was planning to commit mass murder. Id. The Court emphasized that,
“[a]s the likelihood, urgency, and magnitude of a threat increase, so does the justification
for and scope of police preventative action.” Id. at 224.
However, in United States v. Yengel, 711 F.3d 392, 399 (4th Cir. 2013), the Fourth
Circuit held that an officer’s belief that there was a grenade in the home was insufficient to
justify a warrantless search. The Court held that “[t]he stable nature of the threat, the
immobile and inaccessible location of the threat, and the failure by police officers on site
to view the threat as serious enough to warrant evacuation of a nearby child, alone, support
our conclusion under the Turner factors that no exigency existed in this case.” Id. In
reaching this decision, the Court distinguished the case from Mora, and stated:
Key to our holding in Mora was that the police officers’ arrival at the scene
was predicated upon precise, articulable information that the suspect was
about to commit mass murder- a crime of extraordinary consequence. Here,
police officers were responding to a report of an armed domestic assault,
which, although certainly no less deplorable, is not accompanied by the same
gravity of harm as a mass killing. The heightened potential in Mora for
deliberate and massive public harm increased the exigency and distinguishes
it from the present case.
Yengel, 711 F.3d at 399.
The Court then concluded that in Mora the “police officers were concerned about
unknown variables that could reasonably accompany a threat of mass murder- bombs,
accomplices, and hostages- based on the information they had at the time,” while under
the facts of Yengel, “[t]here [was] no similar indication . . . that the domestic assault, in the
context of the facts as they unfolded, would carry with it these same dangers.” Id. at 400.
Medina and Shingleton were dispatched for an emergency removal pursuant to
W.Va. Code § 49-6-3(c), which applies when a child is in imminent danger of further abuse
and there are no available alternatives [Doc. 50 at ¶ 5].5 A social worker had informed the
dispatcher “that she anticipated problems at the residence,” and when Medina and
Shingleton 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 “forcibly pulled” Mr. Leonard outside to search and detain
him. [Id.]. Shingleton and Medina argue that their action falls within the “preventative
action” context. After accepting all factual allegations in the Amended Complaint as true,
“If a child . . . shall, in the presence of a child protective service worker, be in an
emergency situation which constitutes an imminent danger to the physical well being of the
child . . ., and if such worker has probable cause to believe that the child or children will
suffer additional child abuse or neglect . . ., the worker may, prior to the filing of a petition,
take the child or children into his or her custody without a court order . . ..” W.Va. Code
there is a factual question as to whether the defendants were faced with a “grave danger
and a true emergency.”
“[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent
exigent circumstances, that threshold may not reasonably be crossed without a warrant.”
Payton v. New York, 445 U.S. 573, 590 (1980). Based on the facts available on the face
of the Amended Complaint, Medina and Shingleton carried out a warrantless, nonconsensual, unauthorized entry into the Leonards’ home, with no exigent circumstances,
in violation of the Leonards’ Fourth Amendment right to be secure in their home from
Government intrusion. Accordingly, the plaintiffs have alleged a plausible claim under
Section 1983, and the Motion to Dismiss is DENIED WITHOUT PREJUDICE as to this
C. State Law Claims
Medina and Shingleton also argue that the Leonards have failed to state sufficient
facts to support their state law claims, having pleaded only conclusory statements and legal
allegations. The Leonards assert that, as to each count alleged, “[the Amended Complaint]
pleads all the elements . . ..” [Doc. 81].
1. Intentional Infliction of Emotional Distress
Under West Virginia law, to successfully plead a claim of intentional infliction of
emotional distress, the plaintiff must establish:
(1) that the defendant’s conduct was atrocious, intolerable, and
so extreme and outrageous as to exceed the bounds of
decency; (2) that the defendant acted with the intent to inflict
emotional distress . . . (3) that the actions of the defendant
caused the plaintiff to suffer emotional distress; and (4) that the
emotional distress suffered by the plaintiff was so severe that
no reasonable person could be expected to endure it.
Philyaw v. Eastern Associated Coal Corp., 219 W. Va. 252, 258, 633 S.E.2d 8, 14
(2006) (quoting Travis v. Alcon Laboratories, 202 W. Va. 369, 504 S.E.2d 419 (1998)).
“Whether conduct may reasonably be considered outrageous is a legal question, and
whether conduct is in fact outrageous is a question for jury determination.” Travis, Syl. Pt.
4, 202 W. Va. at 371, 504 S.E.2d at 421.
“It had not been enough that the defendant has acted with an
intent which is tortious . . . or that he has intended to inflict
emotional distress, or even that his conduct has been
characterized by ‘malice,’ . . . [l]iability has been found only
where the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”
Tanner v. Rite Aid of West Virginia, Inc., 194 W. Va. 643, 651, 461 S.E.2d 149, 157
(1995) (quoting Restatement (Second) of Torts § 46(1) cmt. j (1965)). “[C]onduct that is
merely annoying, harmful of one’s rights or expectations, uncivil, mean-spirited, or negligent
does not constitute outrageous conduct.” Courtney v. Courtney, 186 W. Va. 597, 602,
413 S.E.2d 418, 423 (1991).
The Leonards allege “that without justifiable cause, the deputies invaded the sanctity
of a private home, grabbed the homeowner and forcibly pull [sic] him outside, took him to
the ground and put him in handcuffs, and then choked him,” and that “a jury could
reasonably find . . . [that the deputy defendants’ conduct] ‘offends community notions of
acceptable conduct.’” [Doc. 81 at 17]. Further, the Leonards generally alleged that Medina
and Shingleton’s actions were intended to “intentionally and maliciously inflict emotional
distress and outrage to [sic] the Leonards or were engaged by them in reckless disregard
that their conduct was substantially certain to cause the Leonards emotional distress and
outrage.” [Doc. 50 at 8]. Assuming the factual allegations in the Amended Complaint are
true, the Leonards have minimally pleaded facts to support the first three elements of
intentional infliction of emotional distress, but none to establish the fourth.
Here, the Leonards merely allege that the “[a]ctions of defendants . . . Medina and
Shingleton alleged above . . . caused each of the plaintiffs damages in the form of severe
emotional distress and outrage” and that “Shingleton and/or Medina caused [the Leonards]
severe emotional distress.” [Doc. 50 at ¶¶ 11, 13]. These conclusory allegations of “severe
emotional distress” are no “more than labels and conclusions,” and merely provide a
“formulaic recitation of the elements,” rather than stating facts to support all elements of a
plausible cause of action. Twombly, 550 U.S. at 555; Travis v. JP Morgan Chase Bank,
N.A., No. 1:12-CV-89, 2012 WL 3193341, *5 (N.D. W.Va. Aug. 6, 2012) (holding that
statements like the plaintiff “suffered severe emotional and psychological pain and stress,”
were simply labels and conclusions, and insufficient to plead “severe emotional distress”).6
See Patrick v. PHH Mortg. Corp., 937 F.Supp.2d 773, 791 (N.D. W.Va. 2013)
(internal citations omitted) (“Although Plaintiffs state in a conclusory fashion that they
suffered extreme emotional distress that no reasonable person could endure, they plead
no facts describing such distress, any physical, mental, or emotional injuries, any
treatment, or the impact such suffering has had on their lives . . . Plaintiffs’ legal
conclusions and labels are insufficient to state a claim under Rule 8(a) of the Federal Rules
of Civil Procedure.”); see also Patrick v. Teays Valley Trs., LLC, No. 3:12-CV-39, 2012
WL 5993163 (N.D. W.Va. Nov. 30, 2012) (stating that where plaintiffs allege that
defendants’ actions caused the plaintiffs “severe emotional distress such that no
reasonable person could be expected to endure it,” with no supporting factual allegations,
Accordingly, this Court GRANTS Medina and Shingleton’s Motion to Dismiss Counts Three
and Four of the Amended Complaint.
2. Assault & Battery
Medina and Shingleton argue that Mr. Leonard has failed to state a claim upon
which relief can be granted because he did not allege any facts to show that Medina and
Shingleton used unnecessary force to detain him. In West Virginia, “[a]n actor is subject
to liability to another for battery if (a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third person, or an imminent apprehension of such
a contact, and (b) a harmful contact with the person of the other directly or indirectly
results.” W. Va. Fire & Cas. Co. v. Stanley, 216 W. Va. 40, 51, 602 S.E.2d 483, 494
2004) (quoting Restatement (Second) of Torts § 13 (Am. Law Inst. 1965)). “An activity that
would otherwise subject a person to liability in tort for assault and battery, however, does
not constitute tortious conduct if the actor is privileged to engage in such conduct.”
Hutchinson v. West Virginia State Police, 731 F.Supp.2d 521, 547 (S.D. W.Va. 2010)
(citations omitted) (emphasis added).
The Leonards allege that one of the deputy defendants intentionally choked Mr.
Leonard while he was handcuffed on the ground [Doc. 50 at ¶ 27]. Medina and Shingleton
assert that because the detention was a lawful, objectively reasonable measure, the force
used was reasonable, and thus, Mr. Leonard has failed to state a claim upon which relief
can be granted. Medina and Shingleton rely upon Lowe v. Spears, No. 3:06-cv-647, 2009
WL 1393860, at *6 (S.D. W.Va. May 15, 2009), which states that “[u]nder West Virginia law,
the plaintiffs do not allege “enough facts to state a claim to relief that is plausible on its
as under federal law an officer may use the amount of force necessary to bring an arrestee
under his control.” Id. (“Resistance of the sheriff’s lawful arrest was unlawful . . . when he
refused to submit, it was the officer’s right to continue his efforts, using such reasonable
force as was necessary to subdue”) (quoting State v. Weisengoff, 85 W. Va. 271, 101 S.E.
450, 455-56 (1919) (emphasis added)).
This authority refers to the use of reasonable force in an otherwise lawful arrest.
See Posey v. Davis, No. 11-1204, 2012 WL 5857309, at *5 (W. Va. Nov. 16, 2012)
(holding that “since the law recognizes that police are entitled to use a reasonable amount
of force when lawfully seizing a suspect, and the use of force against Plaintiff was
reasonable, the defendants are entitled to summary judgment as to any cause of action for
assault and battery” (emphasis added)). Based on the bare facts alleged in the Amended
Complaint, it is unclear whether an arrest, lawful or otherwise, occurred, and thus this
authority is not determinative at this stage. The Leonards have sufficiently pleaded a claim
of battery against Medina and Shingleton at this time, because they have alleged that
Medina and Shingleton acted with the intent to cause, and did directly cause, harmful
contact to Mr. Leonard when they forcibly pulled him outside, handcuffed him, and choked
him. Further, the defendants have done little to shed any light on whether Mr. Leonard
resisted the deputy after he was handcuffed, thereby making it questionable whether such
force was reasonable.
Next, “[a]n actor is subject to liability to another for assault if (a) he acts intending
to cause a harmful or offensive contact with the person of the other or a third person, or an
imminent apprehension of such a contact, and (b) the other is thereby put in such imminent
apprehension.” Stanley, 216 W. Va. at 51, 602 S.E.2d at 494. “Stated simply, assault
occurs when one person puts another in reasonable fear or apprehension of an imminent
battery . . ..” Hutchinson, 731 F.Supp.2d at 547.
In both the Amended Complaint and the Leonards’ response, it is unclear at what
point they allege facts supporting the elements of assault, and it appears that they have
not. In the response to Medina and Shingleton’s Motion to Dismiss, the Leonards state that
“Count 6 (there is no ‘Count 5’) of the Amended Complaint pleads all the elements of Mr.
Leonards’ state-law claim of assault and battery against the deputy defendants, and the
specific facts alleged clearly support this claim that the deputies intended to cause an
offensive contact with Mr. Leonard, and did so.” [Doc. 81 at 4]. Based on this, and the lack
of other allegations relating to the elements of assault, Mr. Leonard has only asserted a
claim for battery.
The Leonards have alleged the bare minimum necessary to plead a plausible claim
of battery, and have failed to state facts sufficient to support a plausible claim for assault,
and thus the Motion to Dismiss as to Count Six of the Amended Complaint is DENIED as
to the battery claim and GRANTED as to the assault claim.
3. Civil Conspiracy
The Leonards allege that Medina, Shingleton, 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, 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,
689 S.E.2d at 269.
The Court should grant a motion to 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 allege facts to support that allegation. Tucker
v. Thomas, 853 F.Supp.2d 576, 594 (N.D. W.Va. 2012). The Leonards allege that (1)
Medina and Shingleton 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) that the deputy defendants’ actions “were unlawful
acts in furtherance of an unlawful conspiracy to commit such acts between themselves and
with defendants Starkey, Ware and Garvin.” [Doc. 50 at pp. 5-6, 8].
The Leonards do not allege a specific tort underlying the civil conspiracy, and the
only remaining tort claim is battery in Count Six. The Leonards contend that:
Count 7 pleads all the elements of the plaintiffs’ joint claims against the
individual defendants for civil conspiracies under West Virginia law- i.e., that
the individual defendants joined together to accomplish an unlawful purpose
or to accomplish a lawful purpose by unlawful means, that acts were taken
in furtherance of said conspiracies by one or more of the defendants, and
caused both plaintiffs damages . . . The facts alleged in the Amended
Complaint clearly support a prima facie case of civil conspiracy.
[Doc. 83 at 4].
It is unclear how the Leonards’ allegations that Medina, Shingleton, and their codefendants met in a parking lot and “conspired and planned to carry out a surprise raid”
would support a prima facie case of civil conspiracy to commit battery, and how this claim
would be actionable by Mrs. Leonard given that she has no valid claim based on the only
available underlying tort of battery.
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].
On this basis, it appears the Leonards’ contend, in part, that Medina, Shingleton, and their
co-defendants conspired to violate W.Va. Code § 49-6-3(c) by unlawfully removing the
Leonards’ grandchildren from their custody. As an initial matter, “a ‘civil conspiracy’ is ‘a
combination to commit a tort.’” Dunn, 689 S.E.2d at 269. The Leonards have not pleaded
facts to support a violation of this statute or that a violation of this statute would create a
cause of action in tort. Rather, they make only a conclusory allegation that the statute was
violated; accordingly, civil conspiracy on this basis is not actionable. See Dixon, Syl. Pt.
1, 253 S.E.2d at 152 (“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”).
Next, the Leonards appear to assert that the defendants conspired to violate their
constitutional rights to be free from unreasonable searches and seizures. To successfully
assert this claim, the Leonards must plausibly state a claim that Medina and Shingleton
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, 2009)).
Here, the Leonards allege that Medina and Shingleton conspired with others to
deprive them of their constitutional right to be free from unreasonable searches and
seizures. In support, the Leonards allege that: (1) “defendants Starkey, Ware and Garvin
met with defendant Medina and/or defendant Shingleton in the parking lot . . . and they
conspired and planned to carry out a surprise raid on the Leonards at their home without
any prior notice”; (2) “on March 14, 2012 defendants Starkey, Ware, Garvin, Walker,
Medina and Shingleton each knew they did not personally have any such warrant or order
authorizing any such actions”; (3) “[w]orking in concert together at the Leonard residence
on March 14, 2012 for the unlawful purpose of aiding the entry of defendants Starkey, Ware
and Garvin into the home without [consent or permission for entry or removal of children],
and knowing they did not have a warrant or a court order authorizing [their actions, one of
the defendants reached into the home and removed Mr. Leonard, and handcuffed him]”;
(4) their co-defendants entered the home with the purpose of searching and removing the
children, and once inside “Starkey, Ware and Garvin, working in concert together, seized
items of personal and took custody of the two children”; and (5) the “[a]ctions of defendants
Medina and Shingleton alleged above were . . . unlawful acts in furtherance of an unlawful
conspiracy to commit such unlawful acts between themselves and [the other defendants]”.
[Doc. 50 at 5-8].
Together, these allegations may be read as to assert that defendants Medina and
Shingleton conspired or acted jointly with others to knowingly and unlawfully enter the
Leonards’ home without a warrant. On this basis, the plaintiffs have alleged a cognizable
§ 1983 claim against Medina and Shingleton for civil conspiracy to unreasonably search
the Leonards’ home. Accordingly, the Motion to Dismiss as to the § 1983 civil conspiracy
claim in Count Seven is DENIED.
For the reasons discussed above, the Court:
DENIES WITHOUT PREJUDICE Medina and Shingleton’s Motion to Dismiss
[Doc. 77], as to the § 1983 unlawful entry claims in Counts 1 and 2;
DENIES WITHOUT PREJUDICE the Motion to Dismiss based on immunity;
GRANTS Medina and Shingleton’s Motion to Dismiss and DISMISSES
Counts 3 and 4 insofar as these Counts pertain to the deputy defendants;
GRANTS Medina and Shingleton’s Motion to Dismiss and DISMISSES the
assault claim in Count 6;
DENIES Medina and Shingleton’s Motion to Dismiss the battery claim in
DENIES Medina and Shingleton’s Motion to Dismiss the civil conspiracy
claim in Count 7 insofar as it pertains to § 1983 conspiracy; and
GRANTS Medina and Shingleton’s Motion to Dismiss the civil conspiracy
claims in Count 7 insofar as they pertain to all other claims except the
Section 1983 conspiracy.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order to counsel of record.
DATED: December 8, 2015.
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