Carder v. Tinney et al

Filing 54

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS (DKT NOS. 25 , 28 , 41 , and 48 ). The Court GRANTS Tinney's motion (dkt. no. 28) and DISMISSES WITH PREJUDICE all claims against him; GRANTS Thompson's, Fitz gerald's, and Murphy' s motions (dkt. nos. 25, 41, and 48), DISMISSES WITH PREJUDICE Counts One, Two, and Three against them, and DISMISSES WITHOUT PREJUDICE Counts Four and Five against them; and DIRECTS the clerk to strike this case from the Court's active docket. The Court directs the Clerk to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 8/10/2017. (kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOSH CARDER,
Plaintiff,
v.

CIVIL ACTION NO. 1:16CV204
(Judge Keeley)

BRADLEY TINNEY,
Circuit Court Probation Officer;
BRIAN THOMPSON,
State Parole and Probation Officer;
BENITA MURPHY, Chairperson,
West Virginia Sate Parole Board;
UNKNOWN EMPLOYEES OF THE WEST
VIRGINIA DIVISION OF CORRECTIONS; and
UNKNOWN EMPLOYEES OF THE WEST
VIRGINIA REGIONAL JAIL AUTHORITY,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
Pending before the Court are motions to dismiss filed by each
of the named defendants seeking to dismiss the amended complaint
filed by the plaintiff, Josh Carder (“Carder”). For the reasons
that follow, the Court GRANTS the defendants’ motions (dkt. nos.
25, 28, 41, and 48) and DISMISSES this case.
I. BACKGROUND
On February 10, 2012, the Circuit Court of Lewis County, West
Virginia, convicted the plaintiff, Josh Carder (“Carder”), of a
third or subsequent offense of driving under the influence of
alcohol, and sentenced him to an indeterminate term of one to three
years. Carder began a period of home confinement on February 16,

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
2012, that lasted until February 8, 2013. During that time, he
served ten days of incarceration for violating the conditions of
his home confinement. On February 9, 2013, Carder was released on
parole and remained on parole until a curfew violation occurred on
January 15, 2014. At Carder’s sentencing on the parole violation,
the defendant, Bradley Tinney (“Tinney”), a probation officer for
the Circuit Court, calculated Carder’s time served to that point.
Carder alleges that Tinney miscalculated his time served as only
278 days, which caused his effective date of sentence to be
incorrectly set as May 5, 2013.
Carder remained incarcerated on his parole violation from
January 15, 2014, until August 15, 2014. Upon his release, Carder
alleges that authorities erroneously placed him on parole again and
that, on November 14, 2014, he was again revoked for another parole
violation. This revocation resulted in his incarceration for an
additional thirty days. Following his release on December 15, 2014,
Carder again was placed on parole, but yet again was revoked on
January 12, 2015, for another parole violation.
According to Carder, during his last period of incarceration,
beginning

January

12,

2015,

he

realized

that

his

effective

sentencing date was incorrect and that his sentence should have
been discharged on July 28, 2014. He further alleges that he
2

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
reported this error to the defendant, Brian Thompson (“Thompson”),
who allegedly stated that “[Carder] would not be under parole if he
was not supposed to be.” Dkt. No. 7 at 5. Additionally, in an
attempt to resolve the error, Carder’s girlfriend, Michele Hickman
(“Hickman”), made phone calls to the defendant, Benita Murphy
(“Murphy”), the chairperson of the West Virginia State Parole
Board,

and

defendant

Judy

Fitzgerald

(“Fitzgerald”),

former

Director of Parole Services. Allegedly, Murphy and Fitzgerald told
Hickman that, “even if there was an error, there was nothing [they]
could do until a court ordered his release.” Id. Carder asserts
that

neither

Murphy

nor

Fitzgerald

attempted

to

investigate

Hickman’s complaint.
After continued efforts by Hickman, the error finally was
addressed by the Lewis County Prosecuting Attorney’s Office and,
pursuant to the circuit court’s amended sentencing order, Carder
ultimately was released on April 10, 2015. He alleges that he is
credited for 393 days beyond his original sentence of three years
and that his liberty was deprived by either wrongful incarceration
or parole for 257 days.1

1

In his complaint, Carder is unclear as to why he alleges his
liberty was deprived for 257 days, while he simultaneously alleges
that he served 393 days more than his original maximum sentence.
3

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
After filing his original complaint in this Court against
Tinney,

Murphy,

Thompson,

and

unknown

employees

of

the

West

Virginia Division of Corrections and the West Virginia Regional
Jail Authority on October 26, 2016 (dkt. no. 1), Carder amended his
complaint on December 15, 2016, to add Judy Fitzgerald as a
defendant(dkt. no. 7).
Carder’s amended complaint asserts two causes of action under
42 U.S.C. § 1983 and § 1988 for violations of his Eighth and
Fourteenth Amendment rights under the United States Constitution.
In addition, he alleges three state law claims, including reckless
infliction of emotional distress, battery, and assault. Id. Each of
the four individual defendants has filed motions to dismiss based
on immunity, the applicable statute of limitations, and for failure
to state a claim (dkt. no. 25, 28, 41, and 48).
II. STANDARD OF REVIEW
In reviewing the sufficiency of a complaint, a district court
“‘must accept as true all of the factual allegations contained in
the complaint.’” Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th
Cir. 2007)(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
However,

while

a

complaint

does

not

need

detailed

factual

allegations, a plaintiff’s obligation to provide the grounds of his

4

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MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
entitlement

to

relief

requires

more

than

mere

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 (1986). In considering whether the facts alleged are
sufficient, “a complaint must contain ‘enough facts to state a
claim to relief that is plausible on its face.’” Anderson, 508 F.3d
at 188 (quoting Twombly, 550 U.S. at 547). “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).
III. DISCUSSION
All of the defendants argue that they are entitled either to
absolute or qualified immunity, that Carder’s claims are barred by
the applicable statute of limitations, or that he has failed to
state a claim. Because the statute of limitations is an affirmative
defense, the Court declines to address this argument at this early
stage. See Fluharty v. City of Clarksburg, 2015 WL 2341727, at *3

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
(N.D.W.Va. 2015) (“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.” (quoting Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992)). Nevertheless, as
discussed below, all of the defendants are entitled to either
absolute or qualified immunity as to the constitutional violations
asserted in Counts One and Two. Furthermore, Carder has failed to
state a claim as to his state law claims in Counts Three, Four, and
Five.
A.

The
Defendant’s
are
Entitled
to
Immunity
from
the
Constitutional Violation Claims in Count One and Count Two
1. Tinney is Entitled to Absolute Immunity
Tinney has moved to dismiss the claims against him, arguing

that, because “the doctrine of judicial immunity [] extends to
probation

officers

when

assisting

the

court

in

carrying

out

judicial functions,” he is immune from suit. The long-standing
doctrine of judicial immunity entitles judges to absolute immunity
for their judicial decisions, even when those decisions are clearly
erroneous and without regard to the severity of the consequences.
See Forrester v. White, 484 U.S. 219, 225 (1988); Pierson v. Ray,
386 U.S. 547 (1967); Bradley v. Fisher, 80 U.S. 335 (1871). The
6

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Supreme Court of the United States has extended this absolute
immunity to non-judges who perform functions integral to the
judicial process. See Imbler v. Pachtman, 424 U.S. 409 (1986)
(extending judicial immunity to prosecutors and grand jurors);
Briscoe v. LaHue, 460 U.S. 325 (1983) (extending judicial immunity
to witnesses, including police officers); Butz v. Economou, 438
U.S. 478 (1978) (extending judicial immunity to Executive Branch
officials performing “quasi-judicial” functions). Building on this
precedent,
immunity

district
to

courts

“probation

have

extended

officers

sued

this

for

quasi-judicial

performing

tasks

‘intimately associated with the judicial phase of the criminal
process.’” Gant v. U.S. Probation Office, 994 F.Supp. 729, 733
(S.D.W.Va. 1998) (quoting Imbler, 424 U.S. at 430).
In determining whether a government official is entitled to
quasi-judicial immunity, the Supreme Court of the United States has
adopted a “‘functional’ approach” that examines the nature of the
functions rather than the defendant’s “rank or title or ‘location
within the Government.’” Cleavinger v. Saxner, 474 U.S. 193, 201
(U.S. 1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807
(1982);

Butz,

438

U.S.

at

511).

Six

non-exhaustive

determine whether absolute immunity exists.

7

factors

These include:

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MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
(a) [T]he need to assure that the individual can perform
his functions without harassment or intimidation; (b) the
presence of safeguards that reduce the need for private
damages
actions
as
a
means
of
controlling
unconstitutional conduct; (c) insulation from political
influence; (d) the importance of precedent; (e) the
adversary
nature
of
the
process;
and
(f)
the
correctability of error on appeal.
Cleavinger, 474 U.S. at 203 (citing Butz, 438 U.S. at 512).
“Functions most apt to be accorded absolute, rather than qualified,
immunity are those integrally related to the judicial process.”
Dorman v. Higgins, 821 F.2d 133, 136 (2d Cir. 1987).
Federal courts applying this functional test uniformly have
concluded that probation officers act “as an arm of the court” when
providing information to carry out sentencing obligations. Gant,
994 F.Supp. at 733 (S.D.W. Va. 1998) (citing Dorman, 821 F.2d at
137). Here, Tinney, the probation officer, at the behest of the
Circuit Court, calculated Carder’s time served following his first
parole revocation on January 15, 2014. It is this calculation that
Carder alleges was incorrect and deprived him of his liberty for
257 days.
Whether or not Tinney miscalculated Carder’s time served, it
is beyond debate that the nature of the function he performed was
integrally

related

to

the

judicial

process.

Tinney

provided

information to his supervising court for the purpose of determining
8

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MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
Carder’s

sentence

following

his

parole

revocation.

This

task

directly served the court for sentencing purposes; both parties
agree Tinney performed the task “for the court.” See Dkt. No. 7 at
4.
Because Tinney’s conduct was in furtherance of the sentencing
judge’s ability to carry out judicial duties and his actions were
integrally related to the judicial process, he was acting as an arm
of the court. Gant, 944 F.Supp. at 733. He therefore is entitled to
absolute immunity for his quasi-judicial functions. Accordingly,
the Court GRANTS his motion and DISMISSES WITH PREJUDICE the claims
asserted

against

him

in

Counts

One

and

Two

of

the

amended

complaint.
2.

Thompson, Fitzgerald,
Qualified Immunity

and

Murphy

are

entitled

to

The remaining defendants, Thompson, Fitzgerald, and Murphy,
contend that they are entitled to qualified immunity.2 Under the

2

Murphy additionally contends that she is entitled to absolute
quasi-judicial immunity because she was performing a function
integral to the judicial process. This argument is unavailing as
the functions that Carder requested her to perform, mainly,
reviewing his sentencing records to check their accuracy, were
merely administrative. See Osborne v. King, 2006 WL 2371186, at *5
(S.D.W.Va. 2006) (noting that judicial immunity is for adjudicative
decisions only and not for “administrative functions for which
judges should not be given absolute immunity” (quoting Forrester,
484 U.S. at 222)).
9

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
defense of qualified immunity, individual officials performing
discretionary functions are immune from liability for civil damages
insofar as their conduct does not violate “clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow, 457 U.S. at 818; Covey v. Assessor of
Ohio Cty., 777 F.3d 186, 195 (4th Cir. 2015). The qualified
immunity doctrine “balances two important interests—the need to
hold

public

officials

accountable

when

they

exercise

power

irresponsibly and the need to shield officials from harassment,
distraction,

and

liability

when

they

perform

their

duties

reasonably.” Pearson v. Callahan, 555 U.S. 223 (2009).
Qualified immunity is not just an immunity from liability, it
“is an entitlement not to stand trial or face the other burdens of
litigation.” Willingham v. Crooke, 412 F.3d 553, 558-59 (4th Cir.
2005) (internal quotations omitted). The doctrine of qualified
immunity “protects officers who commit constitutional violations
but who, in light of clearly established law, could reasonably
believe that their actions were lawful.” Estate of Armstrong ex
rel. Armstrong v. Village of Pinehurst, 810 F.3d 892, 898 (4th Cir.
2016) (quoting Henry, 652 F.3d at 531). “The qualified immunity
standard ‘gives ample room for mistaken judgments’ by protecting
‘all but the plainly incompetent or those who knowingly violate the
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law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986)). Society forgives officers for
reasonable errors because “‘officials should not err always on the
side of caution’ for fear of being sued.” Id. (quoting Davis v.
Scherer, 468 U.S. 183, 195 (1984)).
Finally, “[t]he protection of qualified immunity applies
regardless of whether the government official’s error is ‘a mistake
of law, a mistake of fact, or a mistake based on mixed questions of
law and fact.’ ” Pearson, 555 U.S. at 231 (quoting Groh v. Ramirez,
540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). Indeed,
“[q]ualified immunity is meant to protect against liability for
‘bad guesses in gray areas.’ ” Bellotte v. Edwards, 629 F.3d 415,
424 (4th Cir. 2011) (quoting Maciariello v. Sumner, 973 F.2d 295,
298 (4th Cir. 1992)).
In Saucier v. Katz, the Supreme Court of the United States
laid out a two-step sequential analysis for courts to apply when
determining whether an official is entitled to qualified immunity.
533 U.S. 194, 200-01 (2001). The first part of the analysis asks
whether the alleged facts, when taken in the light most favorable
to the injured party, establish that the conduct at issue violated
a constitutional right. Id. at 201. The second question is “whether
the right was clearly established.” Id. at 201.
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MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
In Pearson v. Callahan, the Supreme Court concluded that the
mandatory sequential aspect of Saucier was unnecessarily rigid.
The judges of the district courts and the courts of
appeals should be permitted to exercise their sound
discretion in deciding 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.
555 U.S. at 236. Accordingly, courts have discretion to determine
which prong to address first; a defendant meeting either prong is
entitled to summary judgment. Id.
To

determine

whether

a

constitutional

right

is

clearly

established, it is critical to articulate with specificity the
constitutional right allegedly violated. See Saucier, 533 U.S. at
201.

Courts must determine the particular right “in light of the

specific context of the case, not as a broad general proposition .
. . .” Id. A plaintiff cannot simply point to a particular
constitutional amendment and allege a violation of the overarching
right it preserves, but instead must define the “right allegedly
violated . . . at the appropriate level of specificity.” Id. at
201-02 (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)). For
example, framing a claim as a violation of the Fourth Amendment
right to be free from unreasonable search and seizure is far too
broad, but framing the claim as a violation of the “right not to be
12

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MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
tasered, after having broken away from police officers but while
not threatening others or actively resisting arrest,” would provide
sufficient specificity. Brown v. Chapman, 814 F.3d 447, 461 (6th
Cir. 2016).
Any claim that Thompson, Fitzgerald, and Murphy violated
Carder’s right against over-incarceration is unavailing. Not only
would such an overly broad framing of the right allegedly violated
lack the necessary specificity, but the undisputed facts establish
that Tinney’s miscalculation, not these defendants’ actions or
inactions, caused Carder’s over-incarceration.
Here, although not well articulated, the right allegedly
violated by the defendants is Carder’s right to have the defendants
investigate his claims of over-incarceration. Nevertheless, Carder
does not point to, nor could the Court find, a clearly established
right requiring probation officers or parole board members to
investigate an inmate’s claim of over-incarceration in the face of
a valid court order mandating a period of incarceration. These
defendants were not “plainly incompetent,” nor did they “knowingly
violate the law” when they declined to investigate Carder’s claim.
Hunter, 502 U.S. at 229 (quoting Malley, 475 U.S. at 341). It was
perfectly reasonable for them to presume that a facially valid
court order, entered after a hearing at which Carder appeared,
13

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
presumably with counsel, was correct and that no further inquiry
was warranted. Probation officers and parole board members are not
only instructed but are required to follow court orders. The remedy
here for Tinney’s miscalculation was not to complain to the
defendants, but to seek an amended court order, which was the
advice given by Murphy that Carder and his girlfriend, Ms. Hickman,
eventually followed.
In conclusion, there is no clearly established constitutional
right requiring Thompson, Fitzgerald, or Murphy, in the face of a
valid court order, to investigate whether Carder’s sentence was
correctly calculated. For this reason, the defendants are entitled
to qualified immunity and the Court GRANTS their motions and
DISMISSES WITH PREJUDICE Count One and Count Two of the amended
complaint.
B.

The State Law Claims in Counts Three, Four, and Five Fail to
State a Claim Against the Defendants
The amended complaint contains three state law claims against

the defendants, including (1) reckless infliction of emotional
distress, (2) battery, and (3) assault. The Court will address each
claim in turn.

14

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MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
1.

Reckless Infliction of Emotional Distress

Carder is unable to establish all of the elements of a prima
facie claim of reckless infliction of emotional distress. To
prevail

on

such

a

claim

in

West

Virginia,

a

plaintiff

must

establish the following four elements:
(1) conduct by the defendant which is atrocious, utterly
intolerable in a civilized community, and so extreme and
outrageous as to exceed all possible bounds of decency;
(2) the defendant acted with intent to inflict emotional
distress or acted recklessly when it was certain or
substantially certain such distress would result from his
conduct; (3) the actions of the defendant caused the
plaintiff to suffer emotional distress; and (4) the
emotional distress suffered by the plaintiff was so
severe that no reasonable person could be expected to
endure it.
Travis v. Alcon Laboratories, 202 W.Va. 369, 375 (1998). Here,
Carder’s allegations against the defendants fall far short of
actions or inactions that were “atrocious, utterly intolerable in
a civilized community, and so extreme and outrageous as to exceed
all possible bounds of decency.” Id.
Tinney were not reckless but negligent in calculating the
amount of time Carder had served. His mistake, while unfortunate,
does not rise to the requisite level of reckless infliction of
emotional distress.3 See, e.g., Herbert J. Thomas Memorial Hospital
3

Although the Court concludes that Carder has failed to
adequately plead his state law claim against Tinney, Tinney would
15

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MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
Assoc. v. Nutter, 795 S.E.2d 530, 545 (W.Va. 2016) (holding that
even a “grievous mistake” was not “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of
decency,” thus it did not rise to the level of reckless infliction
of emotional distress).
As to Thompson, Carder has alleged only that “he dismissed
[Carder’s] concerns, stating that [Carder] would not be under
parole if he was not supposed to be.” See Dkt. No. 7 at 5. Given a
facially valid court order placing Carder on parole, Thompson’s
disbelief and inaction hardly rises to a level that is “atrocious,
utterly intolerable in a civilized community, and so extreme and
outrageous as to exceed all possible bounds of decency.” Travis,
202 W.Va. at 375.
As to Fitzgerald and Murphy, Carder has alleged that they
informed Hickman, his girlfriend, that “even if there was an error,
there was nothing [they] could do until a court ordered his
also be entitled to quasi-judicial immunity for those claims under
West Virginia law. See, e.g., Parkulo v. West Virginia Bd. of
Probation and Parole, 483 S.E.2d 507, 525 (W.Va. 1996) (holding
that “Board of Probation and Parole, being a quasi-judicial body,
is entitled to absolute immunity from tort liability for acts or
omissions in the exercise of its judicial function”). Thus, the
Court finds as an alternative grounds for dismissal that Tinney is
entitled to quasi-judicial immunity for Carder’s state law claims
of reckless infliction of emotional distress, as well as for
battery and assault, which are discussed below.
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release.” His ire is particularly focused on the fact that they
“made no attempts to investigate Ms. Hickman’s report.” Again, this
conduct is not so extreme and outrageous as to exceed all possible
bounds of decency. Not only were Fitzgerald and Murphy operating
under the reasonable presumption that the circuit court’s order was
correct, but they also advised Hickman about what she needed to do
to secure Carder’s release — advice she and Carder ultimately
followed.
Thompson, Fitzgerald, and Murphy may not have believed Carder
and Hickman, but their skepticism and inaction in the face of a
facially valid court order mandating Carder’s sentence is simply
not “atrocious, utterly intolerable in a civilized community, and
so extreme and outrageous as to exceed all possible bounds of
decency.”

Id.

Consequently,

the

Court

GRANTS

the

defendants’

motions and DISMISSES WITH PREJUDICE Carder’s state claims against
them in Count Three.
2.

Battery and Assault

A defendant commits a 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

17

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indirectly results.” Tolliver v. Kroger Co., 498 S.E.2d 702, 711
(W.Va. 1997) (quoting Syl. Pt. 1, Funeral Services by Gregory, Inc.
v. Bluefield Community Hosp., 413 S.E.2d 79 (W.Va. 1991)). A
defendant is guilty of 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.” W. Va.
Fire & Cas. Co. v. Stanley, 602 S.E.2d 483, 495 (W.Va. 2004).
As to his battery claim, Carder alleges that “the Defendants
either

directly

caused,

or

created

a

situation

substantially

certain to result in, harmful and offensive contact with the
Plaintiff during his time wrongfully incarcerated.” See Dkt. No. 7
at 9. As to his assault claim, he alleges that “[t]he Defendants
either

directly

caused,

or

created

a

situation

substantially

certain to result in, the Plaintiff’s reasonable apprehension of
harmful

and

offensive

contact

during

his

time

wrongfully

incarcerated.” Id. at 10. And in response to the defendants’
motions to dismiss, Carder attempts to argue that the defendants’
actions

“placed

[him]

in

a

position

where

each

tort

was

substantially certain to result.” See, e.g., Dkt. No. 32 at 5.
What Carder has failed to allege, however, is that any of the
defendants possessed the requisite intent that Carder suffer a
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CARDER v. TINNEY, ET. AL.

1:16CV204

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
harmful or offensive touching or an imminent apprehension of such.
Carder’s legal conclusions and recitations of the elements of the
offense do not meet the pleading requirements of Iqbal and Twombly.
To reiterate, Thompson, Fitzgerald, and Murphy did not directly
cause

or

create

Carder’s

over-incarceration,

which

was

a

consequence of Tinney’s mistake. Moreover, Carder has not pleaded
that any of the defendants intended by any of their actions or
inactions to commit a battery or an assault, nor has he made any
factual allegations, beyond a lone conclusory statement, that he
actual

did

suffer

a

harmful

or

offensive

touching,

or

an

apprehension of such. Finally, as to his bare contention that a
battery and assault were substantially likely to occur, and that
this alone can constitute a battery or assault, he cites no legal
support

for

this

assertion,

nor

could

the

Court

find

any.

Consequently, Carder’s claims of battery and assault are legally
inadequate, and the Court GRANTS the defendants’ motions and
DISMISSES WITHOUT PREJUDICE Carder’s state claims against Thompson,
Fitzgerald, and Murphy in Counts Four and Five. As to Tinney,
because he would be entitled to quasi-judicial immunity under West
Virginia law, the Court DISMISSES Carder’s state claims against him
in Counts Four and Five WITH PREJUDICE.

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CARDER v. TINNEY, ET. AL.

1:16CV204

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]
IV. CONCLUSION
For the reasons discussed, the Court concludes that each of
the

defendants

is

entitled

to

immunity

as

to

Carder’s

constitutional claims against them in Counts One and Two. Further,
pursuant

to

Fed.

R.

Civ.

P.

12(b)(6),

Carder

has

failed

to

adequately plead his state law claims in Counts Three, Four, and
Five. Consequently, the Court:
•

GRANTS Tinney’s motion (dkt. no. 28) and DISMISSES WITH
PREJUDICE all claims against him;

•

GRANTS Thompson’s, Fitzgerald’s, and Murphy’s motions (dkt.
nos. 25, 41, and 48), DISMISSES WITH PREJUDICE Counts One,
Two, and Three against them, and DISMISSES WITHOUT PREJUDICE
Counts Four and Five against them; and

•

DIRECTS the clerk to strike this case from the Court’s active
docket.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this

Memorandum Opinion and Order to counsel of record and to enter a
separate judgment order.
DATED: August 10, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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