Mullins v. Johnson et al
Filing
46
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS [ECF NO. 4 , 15 ]. Plaintiff's Complaint [ECF No. 1 ] is DISMISSED as to Counts I, II, III, IV, V, and IX. The only remaining claims in t his case are Counts (VI) assault and (VII) battery against Defendant Johnson and Count (VIII) violation of the West Virginia Whistle-Blower Law against City of Westover, Defendant Johnson, and Defendant Stranko. Thus, Steve Andryzcik, Edie Viola, Gary Weber, Jeffery Friend, Duane Tatar, and Sandy Weiss are hereby DISMISSED as Defendants. Signed by Chief District Judge Thomas S. Kleeh on 3/26/2024. (jb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
RALPH J. MULLINS,
Plaintiff,
v.
Civ. Action No. 1:22-CV-98
(Judge Kleeh)
CRANSTON D. JOHNSON, STEVE ANDRYZCIK,
EDIE VIOLA, GARY WEBER, JEFFERY FRIEND,
DUANE TATAR, TIMOTHY P. STRANKO,
SANDY WEISS, and THE CITY OF WESTOVER,
WEST VIRGINIA,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
Pending before the Court are Defendants Timothy Stranko,
Sandy Weiss, and the City of Westover’s Motion to Dismiss [ECF No.
4] and Defendants Cranston David Johnson, Steve Andryczik, Jeffrey
Friend, and any other served Defendants’ Motion to Dismiss [ECF
No. 15]. For the reasons discussed herein, the Motions [ECF Nos.
4, 15] are GRANTED IN PART and DENIED IN PART.
I.
On
September
PROCEDURAL HISTORY
23,
2022,
Plaintiff
Ralph
J.
Mullins
(“Plaintiff”), by counsel, filed a Complaint against Cranston D.
Johnson, Steve Andryzcik, Edie Viola, Gary Weber, Jeffery Friend,
Duane
Tatar,
Timothy
Stranko,
Sandy
Weiss,
and
the
City
of
Westover. ECF No. 1. The Complaint alleges (1) 42 U.S.C. § 1983
MULLINS v. JOHNSON, et al.
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
retaliation in violation of the First Amendment; (2) 42 U.S.C. §
1983 violation of the Fourth Amendment; (3) 42 U.S.C. § 1983
violation of the Fourteenth Amendment; (4) 42 U.S.C. § 1983 Monell
Liability; (5) Slander; (6) Assault; (7) Battery; (8) violation of
the
West
Virginia
Whistle-Blower
Law;
and
(9)
Intentional
Infliction of Emotional Distress.
On October 26, 2022, Defendants Timothy Stranko (“Stranko”),
City of Westover (“Defendant Westover”), and Sandy Weiss (“Weiss”)
moved to dismiss Plaintiff’s Complaint. ECF No. 4. Plaintiff
responded in opposition to the Motion to Dismiss on November 16,
2022 [ECF No. 6] and Defendants Stranko, Westover, and Weiss
replied
in
support
of
their
Motion
to
Dismiss
(ECF
No.
7].
Subsequently on April 17, 2023, Defendants Cranston David Johnson
(“Johnson”),
Steve
Andryczik
(“Andryczik”),
Jeffrey
Friend
(“Friend”), and any other served Defendants also moved to dismiss
the Complaint, incorporating the previously filed memorandum in
support of dismissal [ECF No. 5]. ECF No. 15. On May 16, 2023,
Plaintiff responded in opposition, incorporating its previously
filed memorandum response [ECF No. 6]. ECF No. 16.1 The Motions to
Dismiss [ECF Nos. 4, 15] are thus briefed and ripe for review.
Appearing that all Defendants were served, the Court construes the two
motions to seek dismissal of Plaintiff’s Complaint as to all named
Defendants, excluding Count VI and Count VII against Defendant Johnson.
1
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II.
FACTUAL ALLEGATIONS
Plaintiff Ralph Mullins was appointed to the Westover City
Council in the Fall of 2016 and continued to serve through the
first months of 2022. ECF No. 1, Compl. at ¶ 43. During his time
in office, Plaintiff alleges there were instances of corruption
and
police
misconduct
involving
Mayor
Cranston
D.
Johnson
(“Johnson”) and the Westover Police Department (“WPD”) Id. at ¶¶
44-45. Plaintiff believed that as a councilmember, “he was in a
unique position to speak out against the injustices and misdealings
he saw throughout the municipality.” Id. at ¶ 44.
Between December 31, 2018, and August 28, 2019, Plaintiff
contends that Westover Police Officer Aaron Dalton engaged in acts
of police brutality. Id. at ¶ 49. Plaintiff requested and was
granted documents relating to the subject events. Id. at ¶ 50. On
October 5, 2020, Plaintiff claimed he called Westover City Attorney
Timothy Stranko (“Stranko”) regarding his conduct as City Attorney
and his alleged involvement in a sexual harassment case involving
Officer Dalton, but his call went unanswered. Id. at ¶ 51-52.
Following the resignation of Westover’s Chief of Police,
Plaintiff called for an investigation into the Westover City
Council and Johnson. Id. at ¶ 53. As reason for the investigation,
Plaintiff alleges that the City Council attempted to cover-up
Officer Dalton’s “wrongful arrest and beating” of Andre P. Howton.
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Id. at ¶ 54. As part of the “cover-up”, Plaintiff contends he,
along with other councilmembers, was delayed information regarding
a letter from members of the WPD calling for Officer Dalton’s
removal. Id. at ¶¶ 60-66. Moreover, Stranko denied Plaintiff access
to the letter. Id. at ¶¶ 67-70. The letter was ultimately published
in the news after being obtained via a Freedom of Information Act
request. Id. at ¶ 72.
Due to his “outspoken nature”, Plaintiff claims Defendant
Johnson harassed him, utilizing his power and influence as Mayor.
Id. at ¶ 85. For example, Plaintiff alleges Johnson used the
Westover City ordinances as a form of harassment and retaliation.
Id. at ¶ 87. Namely, on July 14, 2021, Plaintiff received a notice
of violation from Westover Code Enforcement stating Plaintiff
violated City Code 11111.07 by not cutting the grass at his home.
Id. at ¶ 88. Though the City of Westover had previously cut the
subject grass, the Director of Public Works informed Plaintiff
that he was responsible for cutting the grass on the embankment at
his house. Id. at ¶¶ 89-92. Then, on September 20, 2021, Plaintiff
received a second notice of City Code violation, stating he failed
to take down a sign for a closed business (City Code 1741.09). Id.
at ¶ 93. Plaintiff contends the violation was improper because his
carwash business was only temporarily closed due to COVID-19. Id.
at ¶ 94. Plaintiff also claims that City Clerk Sandra Weiss
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(“Weiss”) filed a false employee grievance against him, which the
City Council used to take “public action” against him. Id. at ¶¶
96-99.
The bulk of Plaintiff’s allegations culminated at a Westover
City Council Meeting on February 22, 2022. See generally, ECF No.
1. During the meeting, Plaintiff and Defendant Johnson “exchanged
words in a contentious debate,” regarding Plaintiff’s right to
record the meeting. Id. at ¶¶ 100-04. Plaintiff contends he was
wrongfully refused the opportunity to record the meeting regarding
“the handling of the police misconduct cases in Westover.” Id. at
¶ 104. Upon Plaintiff and Defendant Johnson exchanging words,
Plaintiff alleges Johnson stood up, approached Plaintiff’s desk,
and “began attempting to shove” him. Id. at ¶¶ 101-02. The Chief
of Police tried to put himself between Plaintiff and Johnson, but
“Johnson was able to make contact with the Plaintiff’s right
shoulder by shoving in the Plaintiff’s direction, causing him to
stagger backwards and twist his knee.” Id. at ¶ 103. As a result,
Plaintiff claims he tore his meniscus. Id. at ¶ 109. Defendant
Johnson was further charged with misdemeanor battery following the
February 22, 2022, City Council Meeting. Id. at ¶ 107.
Following the altercation, Plaintiff sought an accommodation
from Defendant Stranko to attend the March 2022 City Council
meeting remotely, but the request was denied. Id. at ¶¶ 111-112.
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Plaintiff wanted to attend the meeting remotely because he “was
advised to keep his person away from City Council meetings by his
physician.” Id. at ¶ 216. Because he was unable to attend remotely,
Plaintiff did not attend the March 21, 2022, City Council meeting.
Id.
at
¶
unanimously
112.
During
voted
to
the
censure
March
meeting,
Plaintiff
the
regarding
City
Council
his
conduct
during the executive session at the February 22, 2022, meeting.
Id. at ¶¶ 119-23. Plaintiff believes the censure was based on false
accusations and procedurally improper. Id. at ¶¶ 113-18.
Additionally, Plaintiff contends City Councilmember, Edie
Viola (“Defendant Viola”) attempted to defame him, and harm his
reputation by visiting Plaintiff’s mother’s place of work and
stating that “[h]e is nothing but a big fat, lying, son of a
bitch.” Id. at ¶ 175.
III. LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to move for dismissal upon the ground that a Complaint
does not “state a claim upon which relief can be granted.” In
ruling on a motion to dismiss, a 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)). A court is “not bound to accept
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as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
A motion to dismiss under Rule 12(6)(b) tests the “legal
sufficiency of a Complaint.” Francis v. Giacomelli, 588 F.3d 186,
192 (4th Cir. 2009). A court should dismiss a Complaint if it does
not contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Plausibility exists “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).
The
factual
allegations “must be enough to raise a right to relief above a
speculative level.” Twombly, 550 U.S. at 545. The facts must
constitute more than “a formulaic recitation of the elements of a
cause of action.” Id. at 555. A motion to dismiss “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 942, 952 (4th Cir. 1992).
IV.
DISCUSSION
Defendants move to dismiss Counts I, II, III, IV, V, VIII,
and IX alleging Plaintiff failed to state claims upon which relief
can
be
granted.
ECF
Nos.
4,
15.
Defendants
also
argue
that
Defendants are entitled to certain immunities. The Court will
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discuss each claim in turn.
A. 42 U.S.C. § 1983 Constitutional Claims – Counts I, II, III
Under 42 U.S.C. § 1983, Plaintiff alleges retaliation in
violation of the First Amendment to the Constitution, unlawful
seizure in violation the Fourth Amendment to the Constitution, and
deprivation of equal protection under law in violation of the
Fourteenth Amendment to the Constitution. See ECF No. 1.
Proper application of [§ 1983 suits] against public
officials requires careful adherence to the distinction
between personal- and official-capacity action suits.
Personal-capacity
suits
seek
to
impose
personal
liability upon a government official for actions he
takes under color of state law. Official-capacity suits,
in contrast, generally represent only another way of
pleading an action against an entity of which an officer
is an agent. As long as the government entity receives
notice and an opportunity to respond, an officialcapacity suit is, in all respects other than name, to be
treated as a suit against the entity. It is not a suit
against the official personally, for the real party in
interest is the entity. Thus, while an award of damages
against an official in his personal capacity can be
executed only against the official’s personal assets, a
plaintiff seeking to recover on a damages judgment in
an official-capacity suit must look to the government
entity itself.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal quotation
marks and citations omitted).
i. Official capacity
Because an official-capacity suit is “essentially a claim
against
the
[entity],”
official-capacity
claims
“should
be
dismissed as duplicative” when the entity is also named as a
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defendant. Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004)
(citing Kentucky, 473 U.S. at 165-66). Plaintiff has brought the
same § 1983 claims against Defendants Johnson, Andryzcik, Viola,
Weber,
Friend,
Tatar,
Stranko,
and
Weiss
in
their
official
capacities as he asserted against Defendant City of Westover.
Accordingly, this court finds that these claims are duplicative
and hereby DISMISSES all official-capacity § 1983 First, Fourth,
and
Fourteenth
Amendment
claims
against
the
named
individual
Defendants.
ii. Individual capacity
“[T]o establish personal liability in a § 1983 action, it is
enough to show that the official, acting under color of state law,
caused the deprivation of a federal right.” Kentucky, 473 U.S. at
166 (internal citation omitted). Here, the alleged deprivation of
Plaintiff’s federal rights is three-fold: (1) Defendant Johnson
and
“other
council
persons”
violated
his
First
Amendment
“constitutional rights by retaliating against him for speaking
mere words of public concern.” [ECF No. 1, at ¶ 132]; (2) Defendant
Johnson
violated
Plaintiff’s
Fourth
Amendment
constitutional
rights by “unreasonably seizing Plaintiff” at the February 22,
2022, city council meeting [Id. at ¶ 144]; and (3) the Defendant
City of Westover denied Plaintiff equal protection of the law [Id.
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at ¶ 150]. The Court will address each of Plaintiff’s claims under
§ 1983 in turn.
1. Count I: § 1983 First Amendment Claim
Plaintiff’s First Amendment claim fails to state a claim upon
which relief can be granted. The First Amendment provides that
“Congress shall make no law ... abridging the freedom of speech.”
U.S. CONST. amend. I. The First Amendment right to free speech
includes not only the affirmative right to speak, but also the
right to be free from retaliation by a public official for the
exercise of that right. See ACLU v. Wicomico County, Md., 999 F.2d
780, 785 (4th Cir. 1993) (“Retaliation, though it is not expressly
referred to in the Constitution, is nonetheless actionable because
retaliatory actions may tend to chill individuals’ exercise of
constitutional rights.”).
[T]o state a colorable retaliation claim under
Section 1983, a plaintiff ‘must allege that
(1) he engaged in protected First Amendment
activity, (2) the defendant took some action
that adversely affected his First Amendment
rights,
and
(3)
there
was
a
causal
relationship between his protected activity
and the defendant's conduct.’
Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d
474, 499 (4th Cir. 2005)).
Public employees are “entitled to be protected from firings,
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demotions and other adverse employment consequences resulting from
the exercise of their free speech rights, as well as other First
Amendment rights.” Alderman v. Pocahontas Cty. Bd. of Educ., 675
S.E.2d 907, 916 (W. Va. 2009) (citing Pickering v. Board of
Education, 391 U.S. 563 (1968)). In cases involving a public
employee’s speech, courts apply the Pickering standard. Pickering,
391 U.S. 563.
“To determine if a public employee has a
cognizable
First
Amendment
claim
for
retaliatory discharge, we apply a test derived
from Pickering v. Bd. of Educ., 391 U.S. 563
(1968), in which we consider: [‘](1) whether
the public employee was speaking as a citizen
upon a matter of public concern or as an
employee about a matter of personal interest;
(2) whether the employee's interest in
speaking upon the matter of public concern
outweighed the government's interest in
providing effective and efficient services to
the public; and (3) whether the employee's
speech was a substantial factor in the
employee's termination decision.[’] McVey v.
Stacy, 157 F.3d 271, 277–78 (4th Cir. 1998).”
Billioni v. Bryant, 998 F.3d 572, 576 (4th Cir. 2021). “Speech
involves a matter of public concern if it affects the social,
political, or general well-being of a community.” Bloom v. Bd. of
Educ. of Monongalia Cnty., No. 1:13CV128, 2013 WL 5966398, at *3
(N.D.W. Va. Nov. 8, 2013) (quoting Edwards v. City of Goldsboro,
178
F.3d
grievances,
231,
246
(4th
complaints
Cir.
about
1999)).
conditions
11
However,
of
“[p]ersonal
employment,
or
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expressions
about
other
matters
constitute
speech
about
matters
of
personal
of
public
interest
concern
do
not
that
are
protected by the First Amendment.” Id.
Importantly, “when public employees make statements pursuant
to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does
not
insulate
their
communications
from
employer
discipline.”
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). “Specifically, a
public employee with ‘a confidential, policymaking, or public
contact role’ who ‘speaks out in a manner that interferes with or
undermines the operation of the agency’ enjoys ‘substantially less
First Amendment protection than does a lower level employee.’”
Austin v. Preston Cnty. Comm'n, No. 1:13CV135, 2014 WL 5148581, at
*6 (N.D.W. Va. Oct. 14, 2014) (quoting McVey v. Stacy, 157 F.3d
271, 278 (4th Cir. 1998)).
If a public employee is speaking as a citizen on a matter of
public
concern,
“[t]he
question
becomes
whether
the
relevant
government entity had an adequate justification for treating the
employee differently from any other member of the general public.”
Austin, 2014 WL 5148581, at *5 (quoting Garcetti, 547 U.S. at 418).
The plaintiff also “bears the initial burden of proving that his
exercise of his First Amendment rights ‘was a “substantial” or
“motivating” factor in the employer's decision” to alter the
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plaintiff’s conditions of employment. Bland v. Roberts, 730 F.3d
368, 375 (4th Cir. 2013), as amended (Sept. 23, 2013) (quoting
Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993); Sales v. Grant,
158 F.3d 768, 775–76 (4th Cir. 1998)). Furthermore, “a plaintiff
pursuing a First Amendment retaliation claim must show, among other
things, that the government took an ‘adverse action’ in response
to
his
speech
that
‘would
not
have
been
taken
absent
the
retaliatory motive’.” Houston Cmty. Coll. Sys. v. Wilson, 595 U.S.
468, 477 (2022) (internal quotations omitted).
Here, Plaintiff asserts that Johnson and “City Council, in
their official capacity” violated his First Amendment rights by
retaliating against him for expressing “concerns for the safety
and welfare of the citizens of Westover as it pertains to the
Westover Police Department.” Id. at ¶ 137. Because the Court has
already
dismissed
the
official-capacity
claims
against
the
councilmembers and none of the facts in support of the First
Amendment claim specifically identify any of the councilmembers,
the Court construes Count I to be raised only against Defendant
Johnson in his individual capacity. Plaintiff also argues that
Defendant Johnson violated his First Amendment rights “when he
assaulted, battered, and censured the Plaintiff for his mere use
of words, which were intended to address an issue of public
concern.” Id. at ¶ 140.
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Defendants contend that the First Amendment claim should be
dismissed for several reasons: (1) Plaintiff does not identify the
particular speech which he contends is protected [ECF No. 5 at pp.
8-10] and (2) the Defendants’ alleged retaliatory action did not
adversely affect Plaintiff’s freedom of speech [ECF No. 5 at pp.
10-13].
Viewing the Complaint in the light most favorable to the
Plaintiff,
the
subject
speech,
which
Plaintiff
contends
is
protected, can be understood as the “expression of concerns for
the safety and welfare of the citizens of Westover as it pertains
to the Westover Police Department.” ECF No. 1, at ¶ 137. Plaintiff
contends this speech is protected because he spoke as a citizen on
a matter of public concern, and not as a councilman. Id. at ¶¶
133-34. Issues of police misconduct can be reasonably viewed as a
matter of public concern because they affect the social, political,
and general well-being of the community of Westover.
However, given that the statements appear to have been made,
at least in part, during a council meeting and to other elected
officials, there is reason to believe that the statements were
made pursuant to Plaintiff’s official duties. Moreover, Plaintiff
states
that
as
“a
Council
Member
for
the
City
of
Westover,
Plaintiff was in a unique position to speak out against the
injustices and misdealings he saw throughout the municipality.”
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Id. at ¶ 45. Given that a city council member is a public employee
with
“a
confidential,
Plaintiff’s
speech
policymaking,
could
“enjoy[]
or
public
contact
‘substantially
less
role”,
First
Amendment protection.’” Austin, 2014 WL 5148581, at *6 (quoting
McVey, 157 F. at 278).
Regardless, assuming only for argument’s sake that Plaintiff
spoke as a private citizen on a matter of public concern, the First
Amendment claim still fails at the 12(b)(6) stage because Plaintiff
did not plead sufficient facts to support that Defendant Johnson
adversely affected his First Amendment rights or that there was a
causal relationship between his speech and the alleged retaliatory
conduct. Plaintiff alleges adverse employment action in the form
of “City Code violations, public censure, verbal and physical
violence, and . . . freezing his [councilmember] privileges.” ECF
No. 1, at ¶ 135.
First,
the
City
Code
violations
from
Westover
Code
Enforcement and Public Works for the City of Westover are neither
conditions of Plaintiff’s employment nor related to Plaintiff’s
alleged protected speech. The City of Westover has a legitimate
interest in enforcing its codes regarding uncut grass (City Code
1111.07) and inactive businesses (City Code 1741.09). Moreover,
Plaintiff’s Complaint does not readily dispute that he did in fact
violate the provisions. While he contends his car wash business
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was not permanently closed, it had been temporarily closed for a
year and a half when he was cited for the violation. See Id. at ¶¶
93-94. Enforcing the City Codes did not adversely affect or deter
Plaintiff’s free speech and Plaintiff has not plead a causal
relationship between the code violations and his speech. Rather,
the code violations occurred in July and September of 2021, and
Plaintiff’s claimed protected speech occurred and/or continued
through at least February 2022. See Id. at Count I.
Second, the Court is persuaded by Defendants’ argument that
the censure is not a First Amendment violation and thus, cannot
serve as a materially adverse action in support of Plaintiff’s
claim. The Supreme Court of the United States recently concluded
that a governing body’s censure does not qualify “as a materially
adverse action,” in a First Amendment retaliation claim. Houston
Cmty. Coll. Sys., 595 U.S. at 479. In Houston Cmty. Coll. Sys.,
the Court found that an elected official’s right to speak was not
materially deterred by an elected board’s censure of the public
official due to his own conduct. Id. at 478-79. The Court reasoned
that “we expect elected representatives to shoulder a degree of
criticism about their public service from their constituents and
their peers and to continue exercising their free speech rights
when the criticism comes.” Id. at 478. Moreover, the Court noted
that
“[t]he
First
Amendment
16
surely
promises
an
elected
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representative . . . the right to speak freely on questions of
government policy. But just as surely, it cannot be used as a
weapon to silence other representatives seeking to do the same.”
Id. (emphasis added). Ultimately, the Court found that the censure
did not infringe upon the public official’s First Amendment rights
because the censure itself “was a form of speech by elected
representatives”; “it concerned the public conduct of another
elected representative”; “[e]veryone involved was an equal member
of the same deliberative body”; and did not prevent the official
from doing his job. Id. at 478.
Here, the censure cannot support Plaintiff’s claim because
the censure was itself protected speech and the Complaint and its
attached
exhibits
Plaintiff’s
show
claimed
that
protected
the
censure
speech
was
regarding
unrelated
the
to
Westover
police. As an initial matter, Houston Cmty. Coll. Sys. supports
the councilmembers’ right to censure Plaintiff based upon his
conduct and the facts alleged do not support that the censure
otherwise deterred Plaintiff’s speech.
Regardless,
the
censure
was
unrelated
to
the
claimed
protected speech. Plaintiff’s Complaint states that the Westover
City Council voted to censure him based upon his “actions during
the executive session on February 22, 2022.” ECF No. 1, at ¶¶ 11523. Moreover, the news article Plaintiff attached to his Complaint
17
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
as Exhibit O states that Plaintiff “refused when asked to turn off
his recording device” during the City Council’s executive session.
ECF No. 1, Ex. O.2 By Plaintiff’s own pleading, the censure was
not retaliation for him speaking out on matters of public concern
but was a response to him refusing to cease recording the executive
session. Plaintiff does not plead the existence of a rule or
practice of allowing such recordings. Rather, executive sessions
are commonly understood to be for private or sensitive matters,
which cannot be discussed publicly on the record. There is again
a
legitimate
interest
in
maintaining
the
confidentiality
of
executive session discussions and prohibiting the recording of
such conversations. Accordingly, Plaintiff cannot rely upon the
censure in support of his First Amendment retaliation claim.
Plaintiff relies upon, and attaches to his Complaint as Exhibit M.,
Advisory Opinion 2021-22 from the West Virginia Ethics Commission, to
argue he was permitted to record the executive session and thus contends
the censure was improper. However, the Advisory Opinion provides in
pertinent part:
that the Ethics Act does not prohibit a city
council from barring a public official or public
employee from recording executive sessions. If a
city council allows its members to record its
executive session, the Requester and other City
Officials may not, however, improperly disclose
confidential
information
contained
in
the
recordings or use confidential information to
further their own interests or the interests of
other persons.
ECF No. 1, Ex. M (emphasis added). Based upon the clear language of the
Advisory Opinion, the Westover City Council is permitted to bar a public
official from recording an executive session. Moreover, Plaintiff could
not disclose the recording, if permitted to record the executive session.
2
18
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
Third, the same is true regarding the alleged retaliatory
acts of violence. By Plaintiff’s own pleading, Defendant Johnson’s
alleged violence towards him during the February 22, 2022, City
Council meeting was not caused by Plaintiff’s claimed protected
speech. See ECF No. 1, at ¶ 104 (“Defendant Johnson committed this
battery over a dispute with Plaintiff as to whether he could record
a meeting . . .”); Id. at ¶ 166 (“Defendant Johnson physically
assaulted and battered Plaintiff because Plaintiff was recording
the City Council executive session.”). Thus, these allegations do
not support the necessary retaliatory causation.
Fourth and finally, the Complaint does not adequately allege
that Plaintiff was stripped of his councilmember privileges due to
his
expression
of
protected
speech.
Plaintiff
alleges
that
following the February 2022 meeting, “he was advised to keep his
person away from City Council meetings by his physician.”
ECF No.
1, at ¶ 216. Assuming this is true, Plaintiff chose to not attend
the bi-weekly City Council meetings. Defendants did not refuse
Plaintiff entry at the meetings. Rather, Plaintiff elected to not
attend the meetings and argues that he was retaliated against
because the City Council decided “to not make a decision regarding
Plaintiff’s ability to video conference or call into the bi-weekly
City Council meetings.” Id. at ¶ 219. As alleged, Plaintiff does
not offer facts to support that other councilmembers were permitted
19
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
to
participate
remotely.
And
ultimately,
Plaintiff
was
not
stripped of the privileges of his position because he was not
prohibited from physically attending the meetings.
Accordingly, Defendants’ Motions to Dismiss as to Count I are
GRANTED [ECF No. 4, 15] and Plaintiff’s First Amendment claim,
Count I, is DISMISSED.
2. Count II: § 1983 Fourth Amendment Claim
Plaintiff claims that Defendant Johnson,3 while acting under
the
color
of
law,
violated
his
Fourth
Amendment
rights
by
unreasonably seizing him [ECF No. 1, at ¶ 244] and using excessive
force [ECF No. 6 at p. 11] at the February 22, 2022, City Council
meeting. The Fourth Amendment to the United States Constitution
provides,
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
U.S. Const. amend. IV. “A person is ‘seized’ only when, by means
of physical force or a show of authority, his freedom of movement
is restrained.” Trulock v. Freeh, 275 F.3d 391, 400 (4th Cir.
The Court construes Count II to only assert claims against Defendant
Johnson.
3
20
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
2001).
“To
state
an
excessive
force
claim
under
the
Fourth
Amendment, a plaintiff must show that he was seized and that the
force used was objectively unreasonable.” Est. of Green v. City of
Annapolis, No. 1:22-CV-03198-JRR, 2023 WL 6381453, at *12 (D. Md.
Sept. 30, 2023); Graham v. Connor, 490 U.S. 386, 395 (1989)).
“The
Fourth
Amendment
prohibits
government
actors
from
committing unreasonable seizures. . . . the Supreme Court has made
clear that “the [Fourth] Amendment[ ] ... applies in the civil
context as well.” Meeks v. McClung, No. 2:20-CV-00583, 2023 WL
8791686, at *8 (S.D.W. Va. Dec. 19, 2023) (quoting Soldal v. Cook
Cnty., 506 U.S. 56, 67 (1992)).
“Only rarely ... has the [Supreme] Court considered the nature
of fourth amendment restrictions on the conduct of government
officials in noncriminal investigations.” United States v. Attson,
900 F.2d 1427, 1430 (9th Cir. 1990) (internal citation omitted).
Yet, while the reach of the fourth amendment
has been extended to include various types of
governmental
conduct
outside
the
traditionally
recognized
area
of
law
enforcement, the Court has been careful to
limit this expansion to governmental conduct
that can reasonably be said to constitute a
“search” or a “seizure” within the meaning of
the fourth amendment. The types of non-law
enforcement conduct to which the Court has
extended the scope of the amendment are thus
typically
motivated
by
some
sort
of
investigatory
or
administrative
purpose
designed to elicit a benefit for the
government.
21
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
Id. See also, United States v. Andrews, No. 1:12CR100-1, 2014 WL
1663369,
at
*2
(N.D.W.
Va.
Apr.
23,
2014)
(noting
“non-law
enforcement governmental conduct only constitutes a search if
‘such conduct has as its purpose the intention to elicit a benefit
for the government in either its investigative or administrative
capacities.’”). “The question whether one is a private actor for
Fourth Amendment purposes ‘necessarily turns on the degree of the
Government's participation in the private party's activities.”
Horton v. Vinson, No. 1:14CV192, 2015 WL 4774276, at *18 (N.D.W.
Va. Aug. 12, 2015) (quoting Skinner v. Ry. Labor Execs. Ass'n, 489
U.S. 602, 614 (1989)).
Furthermore, in the context of a § 1983 claim, “a person acts
under color of state law only when ‘acting with power possessed by
virtue of [his] employment with the state’”. Mull v. Griffith, No.
5:17-CV-94, 2019 WL 5295189, at *3 (N.D.W. Va. Oct. 18, 2019)
(internal quotation omitted). The Fourth Circuit has established
“[a]s a general rule, ‘a public employee acts under color of state
law while acting in his official capacity or while exercising his
responsibilities pursuant to state law.’” Conner v. Donnelly, 42
F.3d 220, 223 (4th Cir. 1994). Importantly, “the under-color-ofstate-law element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation
22
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
marks and citations omitted).
A Puerto Rico Federal District Court previously analyzed
whether a mayor’s alleged violent conduct could qualify as an
action under color of law. Rodriguez-Rodriguez v. Ortiz-Velez, 405
F. Supp. 2d 162, 166–67 (D.P.R. 2005). In Rodriguez-Rodriguez, a
mayor was sued under § 1983 following an incident in which a mayor
hit the plaintiff, a former police officer, in the eye with a metal
object. Id. at 164. In assessing the totality of the circumstances,
the Court noted that “plaintiff's own evidence describe[d] a sudden
occurrence which ballooned into an uncontrolled, irrational and
violent scenario.” Id. at 167. The Court found that the mayor’s
actions were private ones, and that he just happened to be mayor.
Id. at 168. In reaching its conclusion, the Court reasoned that
there was “no indication that this activity was related in any
manner to the position he held or to his duties, nor [was] there
any
evidence
that
[the
mayor’s]
involvement
in
the
physical
confrontation with [Plaintiff] was related to either of these, or
that he could not have engaged in that same conduct had he not
been Mayor.” Id. at 167-68. Thus, the Court concluded that “the
circumstances
surrounding
the
incident
established
that
his
actions were personal in nature and unrelated to his position as
Mayor or to the performance of the duties of that office.” Id. at
168.
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
Plaintiff’s Fourth Amendment claim here offers little more
than a conclusory restatement of law. Specifically, Plaintiff does
not provide facts to support the assertions that Defendant Johnson
was acting under color of law, as required for a § 1983 claim, or
that he was in fact “seized” in violation of the Fourth Amendment.
Viewing the allegations in the light most favorable to Plaintiff,
the only fact supporting that Defendant Johnson was acting under
color of law is that the altercation occurred at a City Council
meeting. Plaintiff does not offer any other facts to show that
Defendant Johnson’s conduct related in any manner to his position
or his mayoral duties. Rather, the alleged conduct was personal in
nature and beyond the scope of a mayor’s role and responsibilities.
Regarding the seizure, Plaintiff does not any allege facts to
support that his freedom of movement was restricted by Defendant
Johnson at the February 22, 2022, City Council meeting. No facts
indicate that Plaintiff felt that he was not free to leave the
meeting. Furthermore, to the extent Plaintiff tried to stretch its
factual pleadings through its reply briefing to include excessive
force allegations, the claim still fails. In addition to providing
no facts to support he was in fact seized, the facts do not support
that “shoving in the Plaintiff’s direction” [ECF No. 1, ¶ 103]
qualifies as objectively unreasonable and an excessive use of
force.
24
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
Accordingly, Plaintiff’s § 1983 Fourth Amendment claim fails
because Plaintiff did not plead sufficient facts to support that
Defendant Johnson acted under color of law or that Plaintiff was
seized in violation of the Fourth Amendment. Thus, Defendants’
Motions to Dismiss [ECF Nos. 4, 15] as to Count II are GRANTED and
the § 1983 Fourth Amendment claim, Count II, is DISMISSED.
3. Count III: § 1983 Fourteenth Amendment Claim
The Fourteenth Amendment to the Constitution provides United
States citizens the right to be treated equally under the law. “No
State shall . . . deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1.
The equal protection clause “secure[s] every person within
the
State's
jurisdiction
against
intentional
and
arbitrary
discrimination.” Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000) (quotation marks and alteration omitted). The equal
protection clause “requires that the states apply each law, within
its scope, equally to persons similarly situated, and that any
differences
of
application
must
be
justified
by
the
law’s
purpose.” Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 818
(4th Cir. 1995). “To succeed on an equal protection claim, a
plaintiff
must
first
demonstrate
that
he
has
been
treated
differently from others with whom he is similarly situated and
that the unequal treatment was the result of intentional or
25
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648,
654
(4th
Cir.
2001).
The
court
then
considers
“whether
the
disparity in treatment can be justified under the requisite level
of scrutiny.” King v. Rubenstein, 825 F.3d 206, 220 (4th Cir.
2016).
A plaintiff may bring a “class of one” equal protection claim
by alleging “that []he has been intentionally treated differently
from others similarly situated and that there is no rational basis
for the difference in treatment.” Willis v. Town of Marshall, N.C.,
426 F.3d 251, 263 (4th Cir. 2005) (quoting Olech, 528 U.S. at 564);
see also Sansotta v. Town of Nags Head, 724 F.3d 533, 542–44 &
n.13 (4th Cir. 2013).
Plaintiff alleges that he was treated differently than other
councilmembers, and thus discriminated against, because of his
beliefs regarding police brutality. ECF No. 1, at ¶¶ 150-52.
Defendants contend that the Fourteenth Amendment claim must fail
because
Plaintiff’s
discriminated
Complaint
against,
differently
under
irrational.
ECF
law,
No.
5,
does
does
not
or
that
at
pp.
not
identify
specify
how
enforcement
14-15.
The
he
of
how
he
was
treated
any
Court
law
agrees
was
was
that
Plaintiff has not pled a legally cognizable claim under the Equal
Protection
Clause
of
the
Fourteenth
Amendment.
Plaintiff
has
failed to even allege that anyone in his same or similar situation
26
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
was treated differently under the law, or that any such alleged
treatment
was
not
“rationally
related
to
a
legitimate
state
interest.”
While Plaintiff claims he was treated differently than the
other
councilmembers,
he
does
not
point
to
a
law
which
was
differently enforced against him because of his views on police
brutality. Furthermore, he does not offer facts to support that
any alleged difference in treatment was not rational.
Moreover, the only laws discussed in Plaintiff’s Complaint
relate to City Codes discussing business signage and unkept grass.
The facts as alleged by Plaintiff do not support that Westover’s
enforcement of these codes deprived him of equal protection under
the law. Plaintiff’s violation or believed-violation of the City
Codes provides a rational basis for the City’s enforcement, which
is completely unrelated to the issue of police brutality. Thus,
Defendants’ Motions to Dismiss [ECF Nos. 4, 15] as to Count III
are GRANTED and Count III of Plaintiff’s Complaint is DISMISSED.
In conclusion, Plaintiff has failed to allege facts showing that
these Defendants personally acted to deprive Plaintiff of any
constitutional rights. Therefore, Plaintiff’s § 1983 claims in
Counts I, II and III against Defendants in their individual
capacities fail and must be dismissed. Defendants’ Motions to
Dismiss Counts I, II, and III are GRANTED. ECF Nos. 4, 15.
27
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
B. Count IV: § 1983 Monell Claim
To prevail in suit against a municipality on a § 1983 claim,
a plaintiff must plausibly allege that the state actor defendant
(1) deprived plaintiff of a constitutional right and (2) acted
under color of state law. Philips v. Pitt County Mem’l Hosp., 572
F.3d 176, 180 (4th Cir. 2009). “Local governing bodies . . . can
be
sued
directly
under § 1983 for
monetary,
declaratory,
or
injunctive relief where . . . the action that is alleged to be
unconstitutional
ordinance,
implements
regulation,
or
or
executes
decision
a
policy
officially
statement,
adopted
and
promulgated by that body’s officers.” Monell v. Dep’t of Social
Servs.
of
City
of
New
York,
436
U.S.
658,
690
(1978).
A
municipality is liable under § 1983 if it follows a custom, policy,
or
practice
by
which
local
officials
violate
a
plaintiff’s
constitutional rights. Id. at 694.
A local government establishes a “policy or custom” in four
ways:
(1) through an express policy, such as a
written ordinance or regulation; (2) through
the decisions of a person with final
policymaking
authority;
(3)
through
an
omission, such as a failure to properly train
officers,
that
“manifest[s]
deliberate
indifference to the rights of citizens”; or
(4) through a practice that is so “persistent
and widespread” as to constitute a “custom or
usage with the force of law.”
28
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter
v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)). Plaintiff contends
Defendant Westover is liable under Monell through the decisions or
conduct of Defendants Johnson and Stranko who are “high enough in
the [City of Westover] government” such that their “actions can be
said to represent a government decision.” ECF No. 1, at ¶ 161.
The Supreme Court of the United States has held that Monell
liability can attach to municipalities when the policy and custom
is based upon a single incident. See Pembaur v. City of Cincinnati,
475 U.S. 469 (1986).
[I]t is plain that municipal liability may be
imposed for a single decision by municipal
policymakers under appropriate circumstances.
No one has ever doubted, for instance, that a
municipality may be liable under § 1983 for a
single decision by its properly constituted
legislative body—whether or not that body had
taken similar action in the past or intended
to do so in the future—because even a single
decision by such a body unquestionably
constitutes an act of official government
policy.
Id.
at
480.
policymaking
“The
fact
official
that
—
has
a
particular
discretion
official
in
the
—
even
exercise
a
of
particular functions does not, without more, give rise to municipal
liability based on an exercise of that discretion.” Id. at 481-82
(internal citation omitted). Accordingly, the Court must determine
whether Plaintiff plausibly alleged that the City of Westover
29
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
established a policy or custom through the decisions of persons
with final policymaking authority.
1. Final Policymaking Authority
The
pleaded
threshold
that
Mayor
matter
is
Johnson
whether
or
Plaintiff
Attorney
sufficiently
Stranko
had
“final
policymaking authority.” “A final policymaker for the purposes of
municipal liability is someone who has the responsibility and
authority to implement final municipal policy with respect to a
particular
course
of
action.”
Lytle,
326
F.3d
at
472
(quoting Riddick v. School Bd. of City of Portsmouth, 238 F.3d
519, 523 (4th Cir. 2000)). “The question of who possesses final
policymaking authority is one of state law.” Riddick, 238 F.3d at
523 (internal citation omitted).
“In
order
to
determine
which
officials
possess
final
policymaking authority for the allegedly unconstitutional action
in
question,
we
must
look
to
the
relevant
legal
materials,
including state and local positive law, as well as custom or usage
having the force of law.” Id. (internal quotation marks omitted),
(citing Jett v. Dallas Independent School District, 491 U.S. 701,
737 (1989)).
Helpful in determining whether an official is
a final decisionmaker is an inquiry into: (1)
whether the official is constrained by
policies of other officials or legislative
bodies; (2) whether the official’s decision on
30
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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
the issue in question is subject to meaningful
review; and (3) whether the policy decision
purportedly made by the official is within the
realm of the official’s grant of authority.
Valentino v. Village of South Chicago Heights, 575 F.3d 664, 676
(7th Cir. 2009) (internal quotation marks omitted).
Plaintiff names the City of Westover, West Virginia, in his
Complaint,
and
specifically
alleges
that
“the
Constitutional
violations complained of were decisions made by Defendant City of
Westover’s Mayor, Defendant Dave Johnson, and/or its attorney,
Defendant
Timothy
Stranko.”
ECF
No.
1,
Compl.,
¶
160.
The
Constitutional violations alleged are in Counts I, II, and III:
retaliation in violation of the First Amendment, unlawful seizure
in
violation
of
the
Fourth
Amendment,
and
denial
of
equal
protection under the Fourteenth Amendment to the Constitution.
Plaintiff further alleges that Defendants Johnson and Stranko’s
decision-making “can be said to represent a government decision.”
Id. at ¶ 161.
The Court must determine whether Plaintiff has sufficiently
pled
final
policymaking
authority
by
Defendants
Johnson
and
Stranko regarding the alleged constitutional violations. First,
there are no allegations in the Complaint that Defendant Stranko
had “final policymaking authority.” Instead, Plaintiff stopped
short at alleging Stranko was “high enough” in the City of Westover
31
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government for his decision to represent a government decision Id.
at ¶ 161. Such an allegation is necessary to establish a municipal
policy or custom. Pembaur, 475 U.S. at 471. Without it, the Monell
claim as it relies upon Defendant Stranko’s authority and conduct
fails.
As to Defendant Johnson, Plaintiff states that the “final
policymaker is the Mayor of Westover, Defendant Johnson, with
respect
to
the
Westover
City
Council
as
an
executive,
administrative, legislative body.” Id. at ¶ 157. Thus, Plaintiff
has sufficiently alleged, at the pleading stage, that Defendant
Johnson
possessed
final
policymaking
authority.
Regardless,
however, the Monell claim still fails because Plaintiff cannot
show that the City of Westover, through Defendant Johnson, deprived
him of a constitutional right. As discussed supra, Plaintiff has
not stated a viable claim under the First, Fourth, or Fourteenth
Amendments, upon which to attach municipal liability. Because none
of
the
underlying
conduct
pled
supports
a
constitutional
violation, it follows that such conduct can similarly not support
an
unlawful
government
decision,
policy,
or
custom.
Thus,
Defendants’ Motions to Dismiss [ECF Nos. 4, 15] are GRANTED as to
Count IV and the Monell claim, Count IV, is DISMISSED.
C. Count V: Slander Claim
Plaintiff’s
slander
claim
(Count
32
V)
fails
to
allege
an
MULLINS v. JOHNSON, et al.
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actionable defamatory statement, and thus Defendants’ Motions to
Dismiss [ECF Nos. 4, 15] are GRANTED as to Count V.4
Under West Virginia law, slander is “defamation through oral
means.” Spears v. Cable News Network, CNN, No. 1:18-CV-162, 2019
WL 3752921, at *2 (N.D.W. Va. Aug. 8, 2019). Slander is “[a] false
. . . oral statement that damages another's reputation.” Pritt v.
Republican Nat. Comm., 210 W.Va. 446, 557 S.E.2d 853, 861 n.12
(2001)
(quoting
Black's
Law
Dictionary
(7th
ed.
1999)).
“Plaintiffs who are public officials or public figures must prove
by clear and convincing evidence that the defendants made their
defamatory statement with knowledge that it was false or with
reckless disregard of whether it was false or not,” – i.e., actual
malice. Haught v. Fletcher, 246 W. Va. 424, 429, 874 S.E.2d 27, 32
(2022) (citing Syl. Pt. 2, State ex rel. Suriano v. Gaughan, 198
W. Va. 339, 342, 480 S.E.2d 548, 551 (1996); New York Times Co. v.
Sullivan, 376 U.S. 254, 280 (1964)).
“A court must decide initially whether as a matter of law the
challenged statements in a defamation action are capable of a
defamatory meaning.” Syl. Pt. 6, Long v. Egnor, 176 W.Va. 628, 346
S.E.2d 778, 780 (1986). See Blankenship v. Trump, 558 F. Supp. 3d
316, 327 (S.D.W. Va. 2021). As such, the Court must initially
The Court construes Count V as only being alleged against Defendant
Viola.
4
33
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determine whether a “statement is one of fact or opinion,” because
a “statement of opinion which does not contain a provably false
assertion of fact is entitled to full constitutional protection.”
Ballengee v. CBS Broad., Inc., 331 F. Supp. 3d 533, 545 (S.D.W.
Va. 2018), aff'd, 968 F.3d 344 (4th Cir. 2020) (quoting Pritt, 210
W.Va. at 557); Syl. Pt. 4, Maynard v. Daily Gazette Co., 191 W.
Va. 601, 447 S.E.2d 293 (1994). See Hupp v. Sasser, 200 W. Va.
791, 798, 490 S.E.2d 880, 887 (1997) (finding defendant’s opinion
that plaintiff was a “bully” is not provably false and is totally
subjective); Giles v. Kanawha Cnty. Bd. of Educ., No. 17-0139,
2018 WL 300605, at *4 (W. Va. Jan. 5, 2018) (finding respondent’s
“feelings
and
opinions
regarding
his
own
judgment
about
petitioner, do not include provably false assertions of fact, are
protected under the First Amendment, and cannot form the basis of
a defamation claim.”).
Here, Plaintiff, recognizes that as a member of the Westover
City
Council,
he
was
a
public
official
at
the
time
of
the
allegations in his Complaint. ECF No. 1, at ¶ 5. Accordingly, to
plausibly plead slander against Defendant Viola, he would need to
show facts which support Viola acted with actual malice. However,
the
Court
need
not
reach
this
question,
because
Plaintiff’s
complained-of statements are opinions and thus he has failed to
plead a defamatory statement.
34
MULLINS v. JOHNSON, et al.
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
In support of his slander claim, Plaintiff asserts that
Defendant Viola told Plaintiff’s mother that “He is nothing but a
big fat, lying, son of a bitch.” ECF No. 1, at ¶ 175. The
complained-of statement, while unflattering, is clearly a matter
of opinion, which does not contain a clearly provable assertion of
fact.
Assuming
at
the
12(b)(6)
stage,
that
Viola
did
go
to
Plaintiff’s mother’s place of work and make this comment, the
statement is constitutionally protected speech. Viola’s thoughts
and feelings regarding Plaintiff are her subjective opinion and
the asserted statement did not include any specific fact which
could be proven as demonstrably false. Just as calling someone a
“bully” is not defamatory, calling someone a “big fat, lying, son
of a bitch” is not actionable slander. Accordingly, Defendants’
Motions to Dismiss [ECF Nos. 4, 15] are GRANTED as to Count V and
Count V is hereby DISMISSED.
D. Count VIII: Whistle-Blower Claim
Accepting all the well-pled facts as true, Plaintiff has
sufficiently stated a claim under the West Virginia Whistle-Blower
Law.
W.
Va.
Code
§
6C-1-1,
et
seq.
The
Whistle-Blower
Law
“prohibits an employer from making certain adverse employment
changes in retaliation for an employee's protected conduct.” State
ex rel. W. Virginia Att'y-Gen., Medicaid Fraud Control Unit v.
Ballard, 249 W. Va. 304, 895 S.E.2d 159, 172 (2023). In relevant
35
MULLINS v. JOHNSON, et al.
1:22-CV-98
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
part, the Whistle-Blower Law states:
(a)
No employer may discharge, threaten, or
otherwise discriminate or retaliate against
an employee by changing the employee's
compensation, terms, conditions, location,
or privileges of employment because the
employee, acting on his or her own volition,
or a person acting on behalf of or under
the direction of the employee, makes a good
faith report, or is about to report,
verbally or in writing, to the employer or
appropriate authority, an instance of
wrongdoing or waste.
W. Va. Code § 6C-1-3(a) (emphasis added). The statute further
defines key terms:
(d)
“Good faith report” means a
conduct defined in this article as
or waste which is made without
consideration of personal benefit
the person making the report has
cause to believe is true.
report of
wrongdoing
malice or
and which
reasonable
. . .
(f)
“Waste” means an employer or employee's
conduct
or
omissions
which
result
in
substantial abuse, misuse, destruction or loss
of funds or resources belonging to or derived
from federal, state or political subdivision
sources.
(g)
“Whistle-blower” means a person who
witnesses or has evidence of wrongdoing or
waste while employed with a public body and
who makes a good faith report of, or testifies
to, the wrongdoing or waste, verbally or in
writing, to one of the employee's superiors,
to an agent of the employer or to an
appropriate authority.
(h)
“Wrongdoing” means a violation which is
36
MULLINS v. JOHNSON, et al.
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
not of a merely technical or minimal nature of
a federal or state statute or regulation, of
a
political
subdivision
ordinance
or
regulation or of a code of conduct or ethics
designed to protect the interest of the public
or the employer.
W. Va. Code § 6C-1-2. “[P]roof of retaliation under the Act does
not require proof of the unlawfulness of the underlying action,”
Austin, 2014 WL 5148581, at *10 (denying summary judgment because
there was a dispute of material fact as to whether the plaintiff’s
allegations
waste,
and
via
if
email
it
regarding
was
misuse
causally
of
funds,
connected
to
constituted
plaintiff’s
termination). Thus, a plaintiff need not show the employer broke
any laws in alleging retaliation. Id. Moreover, a plaintiff “need
only prove waste or wrongdoing to prevail under the statute” and
does not need to show a violation of federal or state law. Id.
However, reports or communications which are not made to an
employer cannot support a Whistle-Blower Law claim. Id. at *9
(rejecting argument that Facebook post accessible to the general
public was directed to plaintiff’s employer or an appropriate
authority).
Here, Plaintiff alleges that as an elected official serving
the City of Westover, he made a “good faith report” of “wrongdoing”
regarding violations of law and ethics by Defendant Johnson and
Officer Dalton. ECF No. 1, at ¶¶ 194-96. Plaintiff also alleges
37
MULLINS v. JOHNSON, et al.
1:22-CV-98
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
that his reports included concerns regarding the City of Westover’s
“omissions
[which]
could
have
resulted
in
substantial
abuse,
misuse, destruction or loss of funds or resources . . . through
lawsuits or other legal action.” Id. at ¶ 197. Plaintiff contends
that such good faith reports were made to the City Council of
Westover, Defendant Johnson, and Defendant Stranko. Id. at ¶¶ 199201. Finally, Plaintiff contends Defendants retaliated against him
by
changing
his
privileges
of
employment,
“in
the
forms
of
municipal violations from the City itself, official censure from
City Council, essential removal of his rights as a City Council
member, public humiliation through both print and social media,
and emotional distress.” Id. at ¶ 212.
In
contrast
Defendants
contend
that
Count
IX
should
be
dismissed because “Plaintiff did not blow any whistles on anything
at all.” ECF No. 5, Motion to Dismiss at p. 20. Rather, Defendants
characterize Plaintiff’s conduct as, at best, “complaining and
noisemaking.” Id. However, viewing the allegations in the light
most
favorable
to
the
Plaintiff,
the
facts
highlighted
in
Defendants’ motion, alone, amount to sufficient pleading of “goodfaith reports” of “wrongdoing” or “waste”. See Id.; ECF No. 1, at
¶¶ 50-53, 67-69, 101-104. For example, Plaintiff pleaded that he
attempted to make a report to Defendant Stranko, as the City
Attorney,
concerning
a
sexual
harassment
38
case
and
the
City
MULLINS v. JOHNSON, et al.
1:22-CV-98
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
Attorney’s involvement [Id. at ¶ 51]; Plaintiff further alleges he
asked for an investigation into Defendant Johnson and the City
Council [Id. at ¶ 53], and that such reports were made to the City
Council of Westover and Mayor Johnson [Id. at ¶ 199].
Plaintiff additionally pled sufficient facts, which if true,
would
amount
to
retaliation
in
the
form
of
changes
in
his
privileges and conditions of employment. Namely, Plaintiff alleges
he was physically injured following his reports; was censured by
the Westover City Council following the February 22, 2022, City
Council meeting, and was deprived of the ability to attend counsel
meetings. These allegations are sufficient to survive dismissal at
the 12(b)(6) stage of litigation.5 Accordingly, the Court DENIES
Defendants’ Motions to Dismiss [ECF Nos. 4, 15] as to Count VIII,
as they relate to Defendant City of Westover, Defendant Johnson,
and Defendant Stranko. For clarity, Plaintiff did not allege any
facts supporting Whistle-Blower Act liability against any of the
remaining Defendants in their individual capacity, to the extent
Plaintiff asserts such causes of actions, they are DISMISSED.
The Court notes that reports made on social media or to the news media
do not support the Whistle-Blower Act claim.
5
39
MULLINS v. JOHNSON, et al.
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
E. Count IX: Intentional Infliction of Emotional Distress Claim
A plaintiff must establish the following elements to prevail
on
a
claim
of
intentional
infliction
of
emotional
distress
(“IIED”):
(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, or acted
recklessly
when
it
was
certain
or
substantially certain emotional distress
would result from his conduct;
(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.
Syl. Pt. 3, Travis v. Alcon Lab’ys, Inc., 504 S.E.2d 419 (W. Va.
1998). The conduct must be “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.” Harless v. First Nat. Bank in Fairmont, 289
S.E.2d 692, 705 (W. Va. 1982). “Whether conduct may reasonably be
considered outrageous is a legal question . . .” O'Dell v. Stegall,
40
MULLINS v. JOHNSON, et al.
1:22-CV-98
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
703 S.E.2d 561, 594 (W. Va. 2010) (quoting Syl. Pt. 4, Travis, 504
S.E.2d 419).
The standard for proving such a claim is very high, and
“conduct that is merely annoying, harmful of one's rights or
expectations,
constitute
uncivil,
outrageous
mean-spirited,
conduct.
On
the
or
negligent
other
hand,
does
not
outrageous
conduct can include physical violence that causes bodily harm and
emotional distress.” Courtney v. Courtney, 413 S.E.2d 418, 423-24
(W. Va. 1991); Pegg v. Herrnberger, 845 F.3d 112, 122 (4th Cir.
2017) (“It is difficult to overstate the high burden of proof
required to sustain a tort claim for intentional infliction of
emotional distress/outrage.”).
In support of his IIED claim, Plaintiff alleges that Defendant
Johnson attacked him during a city council meeting on February 22,
2022, which resulted in Plaintiff tearing his meniscus. ECF No. 1,
at ¶ 223. Specifically, Plaintiff claims that “Defendant Johnson’s
actions caused Plaintiff to suffer severe emotional distress as he
was attacked at his place of work, while performing a civil duty.”
Id. at ¶ 225. Plaintiff further contends that prior to the alleged
altercation, “Defendant Johnson proceeded to stand up from his
seat and approach the desk of the Plaintiff,” and in response,
“Plaintiff also stood up from his desk and prepared to defend
himself.” Id. at ¶¶ 101-02.
41
MULLINS v. JOHNSON, et al.
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
The facts as alleged are insufficient to support a claim for
IIED as a matter of law. Defendant Johnson’s alleged conduct of
shoving at Plaintiff’s shoulder during the City Council meeting
does not reasonably rise to the level of conduct which “was
atrocious, intolerable, and so extreme and outrageous as to exceed
the bounds of decency.” Syl. Pt. 3, Travis, 504 S.E.2d 419. The
alleged shove is more appropriately characterized as uncivil or
mean-spirited conduct. While this interaction could reasonably be
defined as embarrassing and unprofessional, the entirety of the
altercation, including the alleged physical violence, does not
constitute outrageous conduct. Merely alleging emotional distress
in connection with bodily injury does not meet the high burden of
supporting a claim for IIED. If that were the case, any assault or
battery claim would naturally attach an IIED cause of action.
Moreover, Plaintiff failed to plead any facts evidencing he
actually suffered emotional distress – beyond the fact that this
altercation occurred during a council meeting. Plaintiff claims he
was advised to keep “his person away from City Council meetings by
his physician,” [ECF No. 1, at ¶ 216]; he does not allege that he
stayed away due to emotional distress.6 Accordingly, Defendants’
In support of his Monell claim, Plaintiff alleges that he began taking
anxiety medication due to “the harassment he endured while serving on
the City Council because of his condemnation of the conduct of the City
Council, Defendant Johnson, and Defendant Stranko.” ECF No. 1, at ¶ 165.
6
42
MULLINS v. JOHNSON, et al.
1:22-CV-98
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
Motions to Dismiss [ECF Nos. 4, 15] as to Count IX are GRANTED and
Plaintiff’s IIED claim, Count IX, is DISMISSED.
F. The Court denies as moot the remainder of the Defendants’
Motions.
In addition to asserting that Plaintiff’s claims in Counts I,
II, III, IV, V, VIII, and IX are insufficiently pled and lack
merit, the Defendants also contend that (1) qualified immunity
shields the individual defendants from liability for Plaintiff’s
claims and (2) that the City of Westover is not liable for any
alleged intentional torts pursuant to W.Va. Code, 29–12A–4(b)(1)
of the West Virginia Governmental Tort Claims and Insurance Reform
Act. ECF No. 5 at pp 22-24. Based on its rulings herein, the Court
DENIES AS MOOT the remainder of these arguments. Defendants may
raise these arguments later if they believe them relevant to claims
which Defendants did not move to dismiss, such as the assault and
battery claims.
V.
CONCLUSION
For the foregoing reasons, Defendants’ Motions to Dismiss
[ECF Nos. 4, 15] are GRANTED as to Plaintiff’s claims for (I)
retaliation in violation of the First Amendment; (II) 42 U.S.C. §
1983 violation of the Fourth Amendment; (III) 42 U.S.C. § 1983
This fact alone does not support the IIED claim because Plaintiff does
not allege that he began taking the anxiety medication following the
February 22, 2022, altercation due to emotional distress.
43
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]
violation of the Fourteenth Amendment; (IV) 42 U.S.C. § 1983 Monell
Liability;
(V)
Slander;
and
(IX)
Intentional
Infliction
of
Emotional Distress. Defendants’ Motions to Dismiss [ECF Nos. 4,
15] are DENIED as to Plaintiff’s claim for (VIII) violation of the
West
Virginia
Whistle-Blower
Law
against
City
of
Westover,
Defendant Johnson, and Defendant Stranko. Accordingly, Plaintiff’s
Complaint [ECF No. 1] is DISMISSED as to Counts I, II, III, IV, V,
and IX.
Based on the Court’s rulings, the only remaining claims in
this case are Counts (VI) assault and (VII) battery against
Defendant Johnson and Count (VIII) violation of the West Virginia
Whistle-Blower Law against City of Westover, Defendant Johnson,
and Defendant Stranko. Thus, Steve Andryzcik, Edie Viola, Gary
Weber, Jeffery Friend, Duane Tatar, and Sandy Weiss are hereby
DISMISSED as Defendants.
It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record by the CM/ECF system.
DATED:
March 26, 2024
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
44
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