Haines v. Sheriff Robert "Bobby" Shirley et al

Filing 65

MEMORANDUM OPINION AND ORDER GRANTING MOTION 61 TO DISMISS PLAINTIFF'S OFFICIAL CAPACITY CLAIM. Signed by Chief Judge John Preston Bailey on 4/16/2013. (tlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

MARK HAINES,
Plaintiff,
v.

Civil Action No. 3:12-CV-51
(BAILEY)

SHERIFF ROBERT “BOBBY” SHIRLEY,
in his official and individual capacity,
DEPUTY JOSEPH FORMAN, in his individual capacity,
DEPUTY TERRY PALMER, in his individual capacity,
LT. CHARLES LYNCH, in his individual capacity,
SGT. W.M. SPESSART, in his individual capacity,
TROOPER JOSEPH BUSH, in his individual capacity,
DEPUTY J.H. JENKINS, in his individual capacity,
DEPUTY C. MERSON, in his individual capacity,
DEPUTY COREY WELCOME, in his individual capacity, and
DEPUTY T.A. SHERMAN, in his individual capacity,
Defendants.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
PLAINTIFF’S OFFICIAL CAPACITY CLAIM
Currently pending before this Court is Defendant, Sheriff Robert “Bobby” Shirley’s,
Motion to Dismiss Plaintiff’s Official Capacity Claim [Doc. 61], filed on March 6, 2013.
Plaintiff Mark Haines filed his response in opposition [Doc. 63] on March 20, 2013.
Defendant Shirley filed his reply brief [Doc. 64] on March 27, 2013. This matter is now ripe
for decision. For the reasons set out below, this Court hereby GRANTS the Motion to
Dismiss [Doc. 61].

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BACKGROUND
I.

Factual Allegations
The challenged Amended Complaint [Doc. 18] contains the following allegations.

Defendant Robert “Bobby” Shirley is the Sheriff of Jefferson County, West Virginia.1 (Id.
at ¶ 3). He is being sued in both his individual and official capacities.2 (Id.). Following a
high speed chase after an attempted bank robbery, the plaintiff drove his vehicle into a field
located off of Files Cross Road in Berkeley County, West Virginia. (Id. at ¶¶ 13, 15).
Plaintiff stepped out of the vehicle with his hands raised in the air and offered no resistance.
(Id. at ¶ 16). Plaintiff was turned around by the defendants and handcuffed with his hands
behind his back. (Id. at ¶ 17). Defendants Forman, Palmer, Bush and others pushed
plaintiff’s body partially over the bed of the truck and began punching him repeatedly with
their closed fists. (Id. at ¶ 18). Then, defendant Shirley climbed onto the bed of the truck
and kicked the plaintiff repeatedly in the head with a deliberate and sadistic intention to
inflict injury on the plaintiff. (Id. at ¶ 19). Eventually, the plaintiff was thrown to the ground
by the defendants. (Id. at ¶ 20). While the plaintiff was on the ground, defendant Shirley
stomped on the plaintiff’s face with a deliberate and sadistic intention to inflict injury on the
plaintiff. (Id. at ¶ 21).

1

Subsequent to the alleged incident, Defendant Shirley was re-elected as Sheriff;
however, Shirley has since resigned from this position.
2

Pursuant to Federal Rule of Civil Procedure 25(d), “[a]n action does not abate
when a public officer who is a party in an official capacity . . . resigns . . . while the action
is pending. The officer’s successor is automatically substituted as a party.” However, to
the extent that the official capacity claim is now dismissed, this Court hereby dispenses with
any need to name the successor Sheriff as a party to this action.
2

II.

Procedural History
The plaintiff filed his original Complaint [Doc. 1] in this Court on May 29, 2012. On

November 30, 2012, the plaintiff amended his Complaint primarily to name the previously
unidentified police officers, John Does 1-14.3 The Amended Complaint [Doc. 18] alleges
violations of 42 U.S.C. § 1983, arising from the plaintiff’s December 27, 2010, arrest,
alleging excessive use of force in violation of the Fourth Amendment, as well as State
common law claims for assault, battery, and intentional infliction of emotional distress.4
LEGAL STANDARD
A.

Fed. R. Civ. P. 12(b)(6)

A complaint must be dismissed if it does not allege “‘enough facts to state a claim
to relief that is plausible on its face.’ Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974
(2007) (emphasis added).” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
When reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court must assume all of the allegations to be true, must resolve all doubts
and inferences in favor of the plaintiff, and must view the allegations in a light most
favorable to the plaintiff. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.
1999).
When rendering its decision, the Court should consider only the allegations
contained in the Complaint, the exhibits to the Complaint, matters of public record, and

3

Since the identification of the John Does, two have been dismissed per plaintiff’s
voluntary dismissal. See Docs. 40 and 50.
4

Plaintiff does not assert State common law claims against defendant Shirley in his
official capacity.
3

other similar materials that are subject to judicial notice. Anheuser-Busch, Inc. v.
Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995). In Twombly, the Supreme Court, noting
that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do,” id. at 1964-65, upheld the dismissal of a complaint where the plaintiffs did not
“nudge[ ] their claims across the line from conceivable to plausible.” Id. at 1974.
DISCUSSION
A.

Section 1983 Liability

“[S]ection 1983 creates a cause of action against any ‘person’ who, under color of
state law, violates a party's federally protected rights . . .. Municipalities, such as the
County Commission, are ‘persons’ subject to suit under section 1983.

Monell v.

Department of Social Services, 436 U.S. 658, 690 (1978); see also Smallwood v.
Jefferson County, 753 F.Supp 657, 659 (W.D. Ky. 1991) (‘Because cities are “persons”
and because counties are much like cities, then logically, counties are “persons.”’).
However, ‘a municipality can be found liable under § 1983 only where the municipality itself
causes the constitutional violation at issue. Respondeat superior or vicarious liability will
not attach under § 1983.’ City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)
(emphasis in original).

To prove that a municipality itself was responsible for a

constitutional deprivation, a plaintiff is required ‘to identify a municipal “policy” or “custom”
that caused the plaintiff's injury.’ Board of County Com'rs of Bryan County, Okl. v.
Brown, 520 U.S. 397, 403-04 (1997).” Gilco v. Logan Cty. Comm., 2012 WL 3580056
(S.D. W.Va. August 17, 2012) (Copenhaver, J.).

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Official-capacity suits “generally represent only another way of pleading an action
against an entity of which an officer is an agent.” Monell v. New York City Dept. of Soc.
Servs., 436 U.S. 658, 690, n. 55 (1978). As long as the government entity receives notice
and an opportunity to respond,5 an official-capacity suit is, in all respects other than name,
to be treated as a suit against the entity. Brandon v. Holt, 469 U.S. 464, 471-472 (1985).
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. Id.
The Supreme Court has held that "a municipality may not be held liable under
§ 1983 solely because it employs a tortfeasor." Monell, 436 U.S. at 689. The Court found
that in light of the language of the statute presupposing liability on one who "subjects [a
person], or causes [that person] to be subjected, to a deprivation of federal rights," the
statute "cannot be easily read to impose liability vicariously on governing bodies solely on
the basis of the existence of an employer-employee relationship with a tortfeasor." Id. at
692 (internal quotations omitted). Liability cannot be based solely on the unauthorized acts
of an employee. See Monell, 436 U.S. at 691. The Court has consistently refused to hold

5

While the issue is not raised in the defendant’s Motion to Dismiss, this Court notes
that the record is completely devoid of any actual service upon the entity in interest,
presumably Jefferson County Commission. The docket reflects that the Complaint and
summons were served on all the individually-named defendants, but the Commission itself
was never served. It follows that the Jefferson County Commission has neither been given
an opportunity to respond, nor has it filed any answer or other responsive materials. Nor
has the plaintiff filed a motion to amend. See Brandon v. Holt, 469 U.S. 464, 471-472
(1985), citing F. R. Civ. P. 15(b).
5

municipalities liable under a theory of respondeat superior. See Oklahoma City v. Tuttle,
471 U.S. 808, 818 (1985); Pembaur v. Cincinnati, 475 U.S. 469, 478-79 (1986); St. Louis
v. Praprotnik, 485 U.S. 112, 122 (1988) (plurality opinion); Canton v. Harris, 489 U.S.
378, 392 (1989). Instead, the plaintiff must identify a municipal "policy" or "custom" that
caused the plaintiff’s injury. See Monell, at 694; Pembaur, at 480-81; Canton, at 389.
"Locating a 'policy' ensures that a municipality is held liable only for those
deprivations resulting from the decisions of its duly constituted legislative body or of those
officials whose acts may fairly be said to be those of the municipality." Bryan County v.
Brown, 520 U.S. 397, 403-404 (1997) (citing Monell, 436 U.S. at 694). Furthermore, the
plaintiff must "demonstrate that, through its deliberate conduct, the municipality was the
'moving force' behind the injury alleged. That is, a plaintiff must show that the municipal
action was taken with the requisite degree of culpability and must demonstrate a direct
causal link between the municipal action and the deprivation of federal rights." Brown, 520
U.S. at 404.
In this case, the defendants argue that the plaintiff has failed to identify any
municipal policy or custom of the Jefferson County Commission which violated plaintiff
Haines’ rights under § 1983. Additionally, defendants argue that the plaintiff has presented
this Court with no evidence that would causally link any act or omission on the part of the
Jefferson County Commission with any alleged deprivation of plaintiff’s rights under § 1983.
This Court agrees.
The plaintiff concedes that he does not contend that a policy or custom of
inadequate training or supervision was the moving force behind the alleged constitutional

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deprivation. (See [Doc. 63] at 2). Rather, the plaintiff’s theory against defendant Shirley
in his official capacity appears to be grounded in plaintiff’s assertion that the defendant is
the final policy maker for the County in the area of law enforcement. (Id.). In support, the
plaintiff cites to Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), wherein the Court
held that a single decision by an official with policy making authority in a given area can
constitute official policy and be attributed to the Government itself. This Court finds that the
plaintiff’s official capacity claim is premised on a simple misreading of Pembaur.
In Pembaur, the Supreme Court held that “[t]he fact that a particular official – even
a policymaking official – has discretion in the exercise of particular functions does not,
without more, give rise to municipal liability based on an exercise of that discretion. See
e.g., Oklahoma City v. Tuttle, 471 U.S. at 822-824 . . ..” 475 U.S. at 482. “The official
must also be responsible for establishing final government policy respecting such activity
before the municipality can be held liable. Authority to make municipal policy may be . . .
delegated by an official who possesses such authority, and of course, whether an official
had final policymaking authority is a question of state law.” Id. at 483. The Court cautioned
that, “[h]aving said this much, we hasten to emphasize that not every decision by municipal
officers automatically subjects the municipality to § 1983 liability.” Id. at 481. The Court
went on to hold that “municipal liability under § 1983 attaches where – and only where –
a deliberate choice to follow a course of action is made from among various alternatives
by the official [ ] responsible for establishing final policy with respect to the subject matter
in question. See Tuttle, supra, at 823.” Id. at 483. “Neither the existence of such a policy
or custom nor the necessary causal connection can be established by proof alone of the

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single violation charged.” Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987), citing Tuttle,
supra.
The single act which gave rise to municipal liability in Pembaur is easily
distinguishable from the case at bar. In Pembaur, municipal liability attached under § 1983
where the Sheriff and other officers forced entry into a third-party premises to serve
capiases. Such forceful entries, however, were not forbidden at the time, and the sheriff
contacted the prosecutor for advice on how to proceed. As such, the Court found that “the
Sheriff [ ] chose a course that was not forbidden by any applicable law, a choice that [he]
then had the authority to make. This was county policy . . ..” 475 U.S. 486-87 (White, J.,
concurring). In essence, while this act was an isolated incident, it was not contrary to the
county’s policy at the time, and was “a deliberate choice to follow a course of action [ ] from
among various alternatives . . ..” Id. at 483. Accordingly, Pembaur contemplates a single
act not contrary to existing policy.
“Two basic theories have emerged for imposing municipal liability in the more typical
situation where fault and causation cannot be laid to a municipal policy ‘itself
unconstitutional.’ The principal theory locates fault in deficient programs of police training
and supervision which are claimed to have resulted in constitutional violations by untrained
or mis-trained police officers.” Spell v. McDaniel, 824 F.2d at 1389. In the case at bar,
there is no allegation that the use of excessive force was county policy or that it was
condoned by the County Commission.

“A second theory, sometimes imprecisely

subsumed within the first, locates fault in irresponsible failure by municipal policymakers
to put a stop to or correct a widespread pattern of unconstitutional conduct by police

8

officers of which the specific violation is simply an example.” Id. (emphasis added). “[T]he
most relevant Supreme Court decisions now require that each of the theories be carefully
controlled at critical points to avoid imposing liability flatly rejected by Monell. Those critical
points are (1) identifying the specific ‘policy’ or ‘custom’; (2) fairly attributing the policy and
fault for its creation to the municipality; and (3) finding the necessary ‘affirmative link’
between identified policy or custom and specific violation. See Tuttle, 471 U.S. at 822-24.”
Id.
Practically speaking, courts are aware that “without having been directly authorized,
or tacitly encouraged, or inadequately trained in specific ways by responsible municipal
policymakers, police officers . . . may fall into patterns of unconstitutional conduct in their
encounters with . . . arrestees.

This may result in origin to any fault of municipal

policymakers to warrant treating the conduct as a reflection of ‘municipal policy’ in the
Monell sense.” Id. at 1390 (emphasis in original). “If these constitutional practices become
sufficiently widespread, however, they may assume the quality of ‘custom or usage’ . . ..”
Id., citing Adickes v. S. H. Kress & Co., 398 U.S. at 167-68. “Such a developed ‘custom
or usage’ may then become the basis of municipal liability, but only if its continued
existence can be laid to the fault of municipal policymakers, and a sufficient causal
connection between the ‘municipal custom and usage’ and the specific violation can then
be established.” Id. “[J]ust as proof of a single violation will not support the inference that
the violation resulted from a municipal ‘policy’ of deficient training, see Tuttle [ ], so it
obviously cannot support an inference that the violation resulted from a municipally
condoned custom of comparable practices, see Wellington [v. Daniels, 717 F.2d 932, 936

9

(4th Cir. 1983)].” Id. at 1391.
In this case, plaintiff Haines has asked this Court to find that a county policy arose
instantaneously from the single act of excessive force alleged in this case. This is the exact
type of “back-door vicarious liability principle” the Supreme Court has sought to avoid.
Tuttle, supra (overly tolerant concepts of policy and causation would impose municipal
liability “simply because the municipality hired one ‘bad apple.’”). As detailed above, such
a theory of liability cannot survive. In essence, the plaintiff asks this Court to adopt the very
theory that the Fourth Circuit has rejected: “a single isolated act is insufficient to establish
a de facto policy.” Spell, 824 F.2d at 1398. Instead, this Court finds the plaintiff’s claim
seeks to expose the County Commission to liability on the basis of respondeat superior.

B.

Plaintiff Fails to State Sufficient Facts to Support an Official Capacity Claim
Under 12(b)(6)

To sustain a claim against Jefferson County Commission, a municipality, Haines
must establish that it caused deprivation of a federally protected right through the use of
a custom or policy which permitted Sheriff Shirley to use excessive force. “Municipal
policies can be found in written ordinances and regulations, in certain affirmative decisions
of individual policymaking officials, or in certain omissions on the part of policy making
officials that manifest indifference to the rights of citizens.” Hessami v. Corp. of Ranson,
170 F.Supp.2d 626, 632 (N.D. W.Va., Oct. 3, 2001)(Broadwater, J.), citing Carter v.
Morris, 164 F.3d 215 (4th Cir. 1999). “A municipal custom, however, may arise if a
practice is so persistent and widespread and so permanent and well settled as to constitute
a custom or usage with the force of law.” Id. at 632-33. In City of St. Louis v. Praprotnik,
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485 U.S. 112, 108 S.Ct. 915 (1988), the Supreme Court further defined when a
governmental entity can be held liable for a single constitutional violation, municipalities
may be held liable under § 1983 only for acts for which the municipality itself is actually
responsible, “that is, acts which the municipality has officially sanctioned or ordered.”
In this case, like in Hessami, the plaintiff has produced no records of complaints
against defendant Shirley or the County Commission that suggests a pattern of behavior
that may be characterized as a custom. Therefore, because no propensity has been
established, the plaintiff cannot prove that the Jefferson County Commission had
knowledge that such existed. Furthermore, unlike Hessami, the plaintiff in this case has
failed to even allege that the County Commission had such knowledge.
In this case, the plaintiff alleges that Sheriff Shirley was the final policymaking
authority. The question of who exercises final policymaking authority is a question of state
law to which the Court can apply its independent judgment. City of St. Louis, 485 U.S.
at 124-26; see also Hall v. Marion School Dist. No. 2, 31 F.3d 183, 196 (4th Cir. 1994).
This Court will assume, without deciding, that Sheriff Shirley was a municipal policymaker.
See e.g., Wellington, 717 F.2d at 936 (delegation of law enforcement policymaking
authority to police chief assumed). Nevertheless, the plaintiff has not only failed to identify
a policy or custom that would be sufficient to impose liability on the County Commission,
he has failed to state any facts from which this Court could infer such a cause of action.
The plaintiff asks this Court to infer liability from a single decision taken by the highest
official responsible, defendant Shirley, for setting a policy condoning the alleged excessive
force. While the Amended Complaint alleges that defendant Shirley, as Sheriff, was the

11

ranking official present at the time of the alleged incident, the plaintiff provides little more
from which this Court can infer. Notably, the Complaint is devoid of any factual allegations
that defendant Shirley instructed the officers to use excessive force. This is unlike
Pembaur, where the prosecutor instructed the Sheriff and officers to “go in and get” the
witnesses, and who subsequently chopped down the door with an axe. 475 U.S. at 473.
Rather, the Complaint only makes a general allegation that all of the defendants were in
a position to stop the excessive force, but did nothing to prevent it. The Amended
Complaint does not even allege that defendant Shirley was the first to use excessive force,
and that the other officers were simply following suit. Instead, while it is not clear from the
face of the Complaint, it appears that the alleged excessive force was initiated by
defendants Forman, Palmer, Bush and others, but not by defendant Shirley [Doc. 18 at ¶¶
18-19].
This Court has read the Amended Complaint as liberally as it can, yet finds it falls
well short of stating a plausible claim against defendant Shirley in his official capacity.
While the Amended Complaint does state that defendant Shirley “is being sued in both his
individual and official capacities,” [Doc. 18 at 2], it does not even plead a “formulaic
recitation of the elements” to support that claim. Twombly, 550 U.S. at 555. Nor does the
Amended Complaint allege “bald assertions” or “conclusions” related to an official capacity
claim. Id. The Complaint fails to identify any evidence which would tend to show that
Sheriff Shirley and his subordinates’ alleged conduct followed a custom or policy or that it
is widespread. See Carter v. Morris, 164 F.3d 215. The Amended Complaint simply
makes no such allegations. Therefore, this Court finds that any claim against defendant

12

Shirley in his official capacity not only fails the plausibility standard, the same is simply
inconceivable. See Twombly, supra.
CONCLUSION
For the foregoing reasons, this Court finds that Defendant, Sheriff Robert “Bobby”
Shirley’s, Motion to Dismiss Plaintiff’s Official Capacity Claim [Doc. 61] should be, and
hereby is, GRANTED. Accordingly, the official capacity claim is hereby DISMISSED.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: April 16, 2013.

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