Jones v. White et al

Filing 38

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' 9 12 MOTIONS TO DISMISS. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 6/5/18. (lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAVID JONES,
Plaintiff,
v.

Civil Action No. 5:17CV100
(STAMP)

MICHAEL S. WHITE, II, individually
and in his capacity as a representative
of the West Virginia State Police,
COLONEL J.L. CAHILL, in his official
capacity as Superintendent of
the West Virginia State Police,
JAMES W. DAVIS, JR., ESQ., individually
and in his official capacity
as a representative of the
Hancock County Prosecutor’s Office
JACK WOOD, ESQ., individually
and in his official capacity
as a representative of the
Hancock County Prosecutor’s Office
and HANCOCK COUNTY, WEST VIRGINIA,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTIONS TO DISMISS
I.

Background

The plaintiff, David Jones, filed a complaint in this Court,
in which he asserts five counts under 42 U.S.C. § 1983 against the
five

defendants.

The

complaint

arises

out

of

posts

on

the

plaintiff’s Facebook page that complain about local law enforcement
officers and were viewed as an online threat made to multiple
public officials. Defendant Michael S. White, II (“Trooper White”)
learned of a Facebook post about several public officials from
another law enforcement officer, and then went to the plaintiff’s

house to ask him about the post.

The plaintiff admitted that he

had made the post, and Trooper White then arrested the plaintiff
and charged him with one felony count of making terroristic
threats.

The initial charge was based on a Facebook post dated

June 24, 2015.

On the date of the preliminary hearing on the

initial charge, the State voluntarily dismissed the initial charge
and instead charged the plaintiff with two felony counts of
retaliation against public officials.
The two new charges were based on two of the plaintiff’s
Facebook posts from the previous year.

Trooper White obtained

arrest warrants from the magistrate on the two new charges.
Defendants James W. Davis, Jr., Esq. (“Mr. Davis”) and Jack Wood,
Esq. (“Mr. Wood”), the prosecutor and assistant prosecutor, issued
a subpoena to have the plaintiff’s nephew, an attorney, testify at
the preliminary hearing on the two new charges.

The plaintiff’s

nephew had visited the plaintiff in jail along with two other
individuals.

At the preliminary hearing on the two new charges,

the magistrate found that there was probable cause to believe the
plaintiff had committed both offenses and bound the case over to
the Circuit Court of Hancock County, West Virginia.

The plaintiff

alleges that his bail was set at $200,000.00 for the initial charge
and $50,000.00 for the two new charges.
plaintiff were later dismissed.

2

All charges against the

Count I of the complaint alleges violations of the First
Amendment of the United States Constitution and Article III, § 7 of
the West Virginia Constitution; Count II alleges violations of the
Fourth Amendment of the United States Constitution and Article III,
§ 6 of the West Virginia Constitution; Count III alleges violations
of the Sixth Amendment to the United States Constitution; Count IV
alleges vindictive prosecution in violation of the Fourteenth
Amendment of the United States Constitution; and Count V alleges
excessive bail in violation of the Eighth Amendment to the United
States Constitution and Article III, § 5 of the West Virginia
Constitution.

For relief, the plaintiff seeks a declaratory

judgment that the defendants’ alleged actions were unlawful and
violated his rights, an injunction to prohibit the defendants from
subjecting the plaintiff to the conduct alleged in the complaint in
the future, compensatory damages, and attorneys’ fees and costs.
Defendants Mr. Davis, Mr. Wood, and Hancock County, West
Virginia (“Hancock County”) have filed a motion to dismiss all
counts against them in this matter.

Defendants Trooper White and

Colonel J. L. Cahill (“Colonel Cahill”) (collectively, the “State
Police defendants”) have also filed a motion to dismiss with
prejudice all claims against them.

Both of the motions to dismiss

are fully briefed and ripe for review.

For the following reasons,

both motions to dismiss must be granted.

3

II.

Applicable Law

In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true.

Nemet Chevrolet, Ltd v.

Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).
However, “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes.”

Id.

(citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)).

This

Court

also

declines

to

consider

“unwarranted

unreasonable conclusions, or arguments.”

inferences,

Wahi v. Charleston Area

Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).
The purpose of a motion under Rule 12(b)(6) is to test the
formal sufficiency of the statement of the claim for relief; it is
not a procedure for resolving a contest about the facts or the
merits of the case.

5B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1356 (3d ed. 1998).

The Rule

12(b)(6) motion also must be distinguished from a motion for
summary judgment under Federal Rule of Civil Procedure 56, which
goes to the merits of the claim and is designed to test whether
there is a genuine issue of material fact.

Id.

For purposes of

the motion to dismiss, the complaint is construed in the light most
favorable to the party making the claim and essentially the court’s
inquiry

is

directed

to

whether

4

the

allegations

constitute

a

statement of a claim under Federal Rule of Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Facial

plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S.Ct. at 1949).

Detailed

factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.
III.

A.

Discussion

Mr. Davis, Mr. Wood, and Hancock County’s Motion to Dismiss
This motion to dismiss first argues that the plaintiff has

failed to plead any cognizable claim against Hancock County, and
that the claims against Hancock County should be dismissed as a
matter of law because the plaintiff has not satisfied the federal
pleading standard. Next, the motion argues that all claims against
Mr. Davis and Mr. Wood, who are and were county prosecutors at all
relevant times, must be dismissed due to absolute prosecutorial
immunity.

The motion then contends that the defendants are also

entitled to qualified immunity as to all claims.

5

Lastly, the

motion asserts that monetary damages are not available in regard to
the West Virginia state constitutional claims, and that those
claims are thus moot.
The plaintiff filed a response in opposition to the motion to
dismiss.
Sixth

As a preliminary matter, the plaintiff withdraws his

and

Eighth

Amendment

claims

against

the

prosecutor

defendants. The plaintiff then argues that his Facebook posts were
protected speech because the posts were nearly a year old, made in
the context of political speech, and do not satisfy the test for
incitement to imminent lawless action under Brandenburg v. Ohio,
395 U.S. 444 (1969), or any criminal statute.

The plaintiff

contends that, despite clearly established law protecting the
plaintiff’s speech, the prosecutors conspired to cause him to be
kept in custody with no charges pending and advised Trooper White
of the additional protected speech in other Facebook posts.
Specifically,

the

plaintiff

contends

that

the

motion

to

dismiss should be denied because (1) the complaint establishes the
required elements of a § 1983 claim for retaliation in violation of
the First Amendment; (2) the complaint states § 1983 claims for
false arrest and malicious prosecution in violation of the Fourth
Amendment because neither Facebook post constitutes probable cause
for the commission of a crime; (3) the prosecutors are not entitled
to prosecutorial immunity because of well-established law that
prosecutors

are

not

entitled

6

to

absolute

immunity

for

investigations and other non-prosecutorial functions; (4) the
prosecutors are not entitled to qualified immunity because there
was no evidence that the Facebook posts met the requirements of any
criminal

statute,

the

plaintiff’s

First

Amendment

rights

are

clearly established, and the magistrate’s issuance of a warrant did
not insulate them; (5) Hancock County is a proper defendant in this
action because the prosecutors’ action were taken in accordance
with the practices, policies, and procedures of Hancock County; (6)
the complaint states a claim that Hancock County violated the
plaintiff’s Sixth Amendment rights by attempting to interfere with
his right to the counsel of his choice; (7) the complaint states a
claim that Hancock County violated his Eighth Amendment rights by
setting his bail at an unconstitutionally high amount as part of a
pattern, practice, or custom of Hancock County; (8) the complaint
adequately states a claim for injunctive relief against Hancock
County; and (9) the complaint adequately alleges violations of the
West Virginia Constitution.
The defendants filed a reply to the plaintiff’s response in
opposition.

In

reply,

the

defendants

argue

that

(1)

the

plaintiff’s First Amendment claims must be dismissed because the
defendants are immune from any claim based upon “giving legal
advice” or their alleged involvement in any investigation, and they
cannot be held liable in connection with allegations that the
plaintiff was inappropriately held in jail; (2) the plaintiff’s

7

Sixth Amendment claim against Hancock County must be dismissed
because the plaintiff had no constitutional right to be represented
by his nephew, the plaintiff did not sufficiently plead a Sixth
Amendment claim against Hancock County, and the plaintiff’s Sixth
Amendment claim is not viable simply based upon the alleged facts;
(3) the plaintiff’s Eighth Amendment claim against Hancock County
must be dismissed because the plaintiff does not allege any such
wrongdoing on the part of Hancock County; (4) any claim for
injunctive relief is moot and cannot proceed in this case because
the alleged damages do not amount to “irreparable harm” and it is
unclear how any form of injunctive relief could provide a remedy in
connection with the alleged damages; and (5) monetary damages are
not available in connection with the West Virginia constitutional
claims.
1.

Hancock County

This Court finds that Hancock County is not a proper defendant
in this action because the plaintiff does not allege that the
prosecutors’ actions were taken in accordance with any specific
practice, policy, or procedure of Hancock County.

Under Monell v.

Department of Social Services of City of New York, “[l]ocal
governing bodies . . . can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief where . . . the action
that is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially

8

adopted and promulgated by that body’s officers.”

436 U.S. 658,

690 (1978).
The United States Court of Appeals for the Fourth Circuit has
set forth the following pleading standard for a Monell claim:
To prevail on a Monell claim, [the plaintiff] “must point
to a persistent and widespread practice[] of municipal
officials, the duration and frequency of which indicate
that policymakers (1) had actual or constructive
knowledge of the conduct, and (2) failed to correct it
due to their deliberate indifference.”
Holloman v. Markowski, 661 F. App’x 797, 799 (4th Cir. 2016)
(quoting Owens v. Balt. City State’s Attorney’s Office, 767 F.3d
379, 402 (4th Cir. 2014)).
Here,

the

plaintiff

does

not

allege

any

persistent

or

widespread practice on the part of Hancock County in connection to
his Sixth Amendment, Eighth Amendment, or any other claim.

The

plaintiff also does not allege that Hancock County policymakers had
any actual or constructive knowledge of unconstitutional conduct,
or that the policy makers were deliberately indifferent to any
unconstitutional conduct.

Thus, Hancock County cannot be sued

under § 1983, and the plaintiff’s claims against Hancock County
fail under Twombly.
2.

Mr. Davis and Mr. Wood
a.

First and Fourth Amendment Claims
i.

Prosecutorial Immunity

This Court finds that Mr. Davis and Mr. Wood are entitled to
prosecutorial immunity as to the First and Fourth Amendment claims
9

against them.

“In initiating a prosecution and in presenting the

State’s case, the prosecutor is immune from a civil suit for
damages under [§] 1983.”
(1976).

Imbler v. Pachtman, 424 U.S. 409, 431

The United States Court of Appeals for the Fourth Circuit

has recently described prosecutorial immunity as follows:
Absolute immunity protects “the vigorous and fearless
performance of the prosecutor’s duty” that is so
essential to a fair, impartial criminal justice system.
Imbler v. Pachtman, 424 U.S. 409, 427-28, 96 S.Ct. 984,
47 L.Ed.2d 128 (1976). As representatives of the people,
prosecutors have a responsibility to enforce the laws
evenhandedly and to exercise independent judgment in
seeking justice. See id. at 423-24, 96 S.Ct. 984. “The
public trust of the prosecutor’s office would suffer if
he were constrained in making every decision by the
consequences in terms of his own potential liability in
a suit for damages.” Id. at 424-25, 96 S.Ct. 984. No
matter how conscientious a prosecutor may be, “a
defendant often will transform his resentment at being
prosecuted into the ascription of improper and malicious
actions to the State’s advocate.” Id. at 425, 96 S.Ct.
984.
Without immunity from suit, this threat of
retaliatory litigation would predispose prosecutors to
bring charges based not on merit but on the social or
political capital of prospective defendants. See id. at
438, 96 S.Ct. 984 (White, J., concurring) (“[T]he fear of
being harassed by a vexatious suit, for acting according
to their consciences would always be greater where
powerful men are involved.” (internal quotation marks
omitted)).
The protection that absolute immunity affords “is not
grounded in any special ‘esteem for those who perform
[prosecutorial] functions, and certainly not from a
desire to shield abuses of office.’” Kalina v. Fletcher,
522 U.S. 118, 127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)
(quoting Malley v. Briggs, 475 U.S. 335, 342, 106 S.Ct.
1092, 89 L.Ed.2d 271 (1986)).
Rather, it stems from
courts’ recognition that “any lesser degree of immunity
could impair the judicial process itself.” Id. (quoting
Malley, 475 U.S. at 342, 106 S.Ct. 1092).

10

Because absolute immunity safeguards the process, not the
person, it extends only to actions “intimately associated
with the judicial phase of the criminal process.”
All other
Imbler, 424 U.S. at 430-31, 96 S.Ct. 984.
actions are entitled only to qualified immunity. Buckley
v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125
L.Ed.2d 209 (1993). To determine whether a particular
act is “intimately associated with the judicial phase,”
Imbler, 424 U.S. at 430, 96 S.Ct. 984, we employ a
functional approach.
We look to “the nature of the
function performed,” without regard to “the identity of
the actor who performed it,” “the harm that the conduct
may have caused,” or even “the question whether it was
lawful.” Buckley, 509 U.S. at 269, 271, 113 S.Ct. 2606
(internal quotation marks and citation omitted).
The
official claiming absolute immunity “bears the burden of
showing that such immunity is justified for [each]
function in question.” Burns v. Reed, 500 U.S. 478, 486,
111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).
Nero v. Mosby, No. 17-1166, 2018 WL 2090902, at *4-5 (4th Cir. May
7, 2018).
Here, the plaintiff’s allegations are based on Mr. Davis and
Mr. Wood’s actions as prosecutors and, thus, “fall squarely under
the umbrella of absolute immunity.”

Id. at *5.

Thus, Mr. Davis

and Mr. Wood would be absolutely immune from this civil action even
if

they

acted

plaintiff.

maliciously

or

improperly

in

prosecuting

the

Accordingly, this Court finds that the plaintiff’s

claims against Mr. Davis and Mr. Wood cannot proceed.
This

Court

notes

that

the

plaintiff

has

raised

several

arguments for the first time in his response. First, the plaintiff
argues in his response that his First Amendment claims against the
prosecutors

should

not

be

dismissed

because

the

prosecutors

provided legal advice to the State Police defendants. However, the

11

plaintiff did not allege in his complaint that the prosecutors
provided legal advice, and, thus, this Court cannot consider the
argument in ruling on the motion to dismiss. Second, the plaintiff
argues

in

his

response

that

his

claims

are

based

upon

the

prosecutors’ involvement in the investigation of his charges.

The

plaintiff also did not allege in his complaint that the prosecutors
were involved in the investigation.

Thus, that argument also

fails.
Additionally, the plaintiff argues in his response that his
claims should not be dismissed because they are based on the
prosecutors holding him in jail for “hours” while new complaints
against him were being prepared.

This Court finds that this claim

must be dismissed because it was not unconstitutional to hold the
plaintiff in jail for several hours while the complaint was being
prepared.

See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 53-54

(1991) (“[T]he Fourth Amendment does not compel an immediate
determination of probable cause upon completing the administrative
steps incident to arrest.”); Lund v. Hennepin Cty., 427 F.3d 1123,
1127 (8th Cir. 2005) (finding no due process violation where “the
County’s outprocessing procedures delayed [the plaintiff’s] release
for

twelve

hours

with

the

knowledge

officials”).

12

of

the

County

and

its

ii.
Even

Mr.

if

Qualified Immunity
Davis

and

Mr.

Wood

were

not

entitled

to

prosecutorial immunity, they would still be entitled to qualified
immunity. “Government officials performing discretionary functions
are entitled to qualified immunity from liability for civil damages
to

the

extent

established

that

‘their

statutory

or

conduct

does

constitutional

reasonable person would have known.’”

not

violate

rights

of

clearly
which

a

Winfield v. Bass, 106 F.3d

525, 530 (4th Cir. 1997) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).

In reviewing a qualified immunity defense, this

Court must identify the specific right that the plaintiff asserts
was infringed by the challenged conduct, recognizing that the right
must be defined at the appropriate level of particularity.
v. Waters, 81 F.3d 429, 433 (4th Cir. 1996).

Taylor

This Court must then

consider “whether, at the time of the claimed violation, this right
was clearly established and ‘whether a reasonable person in the
official’s position would have known that his conduct would violate
that right.’”

Winfield, 106 F.3d at 530 (internal quotations

omitted).
Here, the plaintiff has not alleged that Mr. Davis and Mr.
Wood clearly violated the law when they prosecuted the plaintiff
for violations of West Virginia Code § 61-5-27(c)(1).

Section

61-5-27(c)(1) provides that it is illegal for individuals to cause
or threaten to cause harm to public officials in retaliation for

13

the public official’s performance or nonperformance of an official
duty.

This Court finds that the plaintiff’s Facebook posts

establish

probable

cause

that

the

plaintiff

violated

§ 61-5-27(c)(1).
The July 7, 2014 Facebook post includes a link to an article
about Judge Martin J. Gaughan’s work with teenage drug addicts.
Above the link, the plaintiff writes in the post that “Hancock
County Judge Martin J. Gaughan feels sympathetic to heroin users”
and urges “heroin users” to go to Judge Gaughan’s home, “take what
you want, trash the place and terrorize HIS family.”
also

urges

the

“heroin

users”

to

not

“forget

the

That post
nasty

New

Cumberland mayor on Ridge Ave who hides behind her home security
system.”

ECF No. 1-5.

The August 24, 2014 Facebook post provides

a link to an article about Representative Randy Swartzmiller’s
involvement with the State Dangerous Wild Animals Board.

Along

with the link to the article, the plaintiff includes in the post
Representative Swartzmiller’s home address and instructions to
“criminals and crackheads” to go to the home and “do everything you
have done to terrorize other citizens of Hancock County.
yourself to his stuff . . . .
as you like.”

Help

Camp out in woods and stay as long

ECF No. 1-7.

After reviewing both of these posts, this Court finds that the
plaintiff did, in violation of the West Virginia statute, express
dissatisfaction with public officials and then threaten to harm

14

those public officials.

Thus, the defendant prosecutors properly

prosecuted the plaintiff for violating the statute.

The plaintiff

does not allege any facts that might show that Mr. Davis and Mr.
Wood violated clearly established statutory or constitutional
rights in prosecuting the plaintiff under the statute.

Instead,

the facts show that Mr. Davis and Mr. Wood had probable cause to
believe that the plaintiff violated the statute.

Accordingly, Mr.

Davis and Mr. Wood are entitled to qualified immunity.
c.

Inflammatory Statements

The plaintiff has alleged that Mr. Davis and Mr. Wood made
inflammatory statements to the press.

Specifically, the plaintiff

alleges prosecutors made inflammatory statements in a certain
newspaper article in which the prosecutors were asked to comment on
the charges filed against the plaintiff.

The article in question

states:
Neither Wood nor Hancock County Prosecutor Jim Davis
would elaborate on why the terrorist threat charges were
dropped.
“It’s just that the ones we’re pursuing are much more
specific and are very appropriate,” Davis said. “It’s
just a better way to go.”
Davis said the case is not so much about free speech than
about the proper use of free speech.
“People have free speech, but you can’t yell ‘fire’ in a
crowded theater . . . You have to be responsible about
it,” he said.
ECF No. 1-11.

This Court finds that none of the prosecutors’

statements in the article can be characterized as inflammatory.
15

The statements are simply a generic report to the press about the
nature of the charges filed against the plaintiff.

Thus, the

plaintiff’s inflammatory statements claim fails under Twombly and
must be dismissed.
d.

Sixth Amendment Claim

The plaintiff has withdrawn his Sixth Amendment claim as to
Mr. Wood and Mr. Davis, but maintains it as to Hancock County.

For

the reasons discussed previously, Hancock County is not a proper
defendant in this case and all claims against it must be dismissed,
including the Sixth Amendment claim.

Even if Hancock County were

not dismissed from the case and the plaintiff had not withdrawn the
claim against Mr. Davis and Mr. Wood, the claim would still fail as
to all three defendants on the merits.
In his Sixth Amendment claim, the plaintiff alleges that the
defendants

violated

his

constitutional

right

to

counsel

subpoenaing his nephew, Jerry Krzys, who is an attorney.

by

Jerry

Krzys had visited the plaintiff in jail while he was being held on
the two felony counts of retaliation under West Virginia Code
§ 61-5-27.

However, at the time the subpoena was issued, attorney

Philip Sbrolla, not Jerry Krzys, was the plaintiff’s attorney of
record.

Furthermore, Jerry Krzys was not licensed to practice law

in the state of West Virginia at the time the subpoena was issued.
Thus, any conversation that Jerry Krzys had with the plaintiff at
the jail was not protected by attorney-client privilege, and the

16

plaintiff’s Sixth Amendment right to counsel was not violated by
the subpoena.
e.

Eighth Amendment Claim

In his Eighth Amendment claim, the plaintiff alleges that the
defendants conspired to set his bail at an unconstitutionally high
amount in violation of the Eighth Amendment. However, Mr. Wood and
Mr. Davis are prosecutors and, thus, do not set bail.
presiding

judge

set

the

plaintiff’s

bail.

See

Rather, the
W.

Va.

Code

§ 62-1C-3 (“The amount of bail shall be fixed by the court or
justice with consideration given to the seriousness of the offense
charged,
financial

the

previous

ability,

and

criminal
the

record

of

probability

of

the

defendant,

his

his

appearance.”).

Accordingly, this Eighth Amendment conspiracy claim against the
prosecutor defendants fails under Twombly.
f.

Monetary Damages

The plaintiff has requested monetary damages in connection
with his West Virginia state constitutional claims.

However, the

West Virginia Constitution does not contain any provision allowing
for monetary damages as a result of alleged state constitutional
violations.

See Smoot v. Green, No. 2:13-10148, 2013 WL 5918753,

at *4 (S.D. W. Va. Nov. 1, 2013) (“[The defendants] assert that
Article III of the West Virginia Constitution does not give ruse to
claims for money damages against them. They are correct.”). Thus,

17

the plaintiff’s claim for monetary damages in connection with the
alleged state constitutional violations fails under Twombly.
g.

Injunctive Relief

The plaintiff has also requested an order enjoining the
defendants from “subjecting [the plaintiff] to the conditions set
forth in the Complaint.”

ECF No. 1 at 15.

This Court first notes

that
[t]he United States Supreme Court has ruled that
“[n]either a state nor its officials acting in their
official capacities are persons under Section 1983.”
Will v. Michigan Department of State Police, 491 U.S. 58,
71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Litigants are
not provided a forum by Section 1983 when they seek a
remedy against a state for alleged deprivation of civil
liberties.
Orum v. Haines, 68 F. Supp. 2d 726, 730 (N.D. W. Va. 1999).
“[C]laims

for

back

pay,

monetary

damages,

and

retrospective

declaratory relief are barred by the Eleventh Amendment . . . .
However . . . the Eleventh Amendment does not prohibit a suit in
federal

court

to

enjoin

prospectively

a

state

official

from

violating federal law.” Meiners v. Univ. of Kansas, 359 F.3d 1222,
1232 (10th Cir. 2004) (citing Ex parte Young, 209 U.S. 123, 159–60
(1908)).
As

to

the

claim

against

the

prosecutor

defendants

prospective injunctive relief, the Fourth Circuit has stated:
Where a § 1983 plaintiff also seeks injunctive relief, it
will not be granted absent the plaintiff’s showing that
there is a “real or immediate threat that [he] will be
wronged again . . . in a similar way.” Simmons [v. Poe],
47 F.3d [1370,] 1382 [4th Cir. 1995] (quoting City of Los
18

for

Angeles v. Lyons, 461 U.S. 95, 111 . . . (1983)). Even
assuming [the plaintiff] could make out a violation of
his constitutional rights, “past wrongs do not in
themselves amount to that real and immediate threat of
injury.” Simmons, 47 F.3d at 1382 (quoting Lyons, 461
U.S. at 103 . . .).
Raub v. Campbell, 785 F.3d 876, 885–86 (4th Cir. 2015).
Here, this Court finds that the plaintiff has not shown any
real or immediate threat that he will be wronged again in a similar
way

absent

injunctive

relief.

Even

assuming

the

prosecutor

defendants had violated the plaintiff’s constitutional rights, the
past violation would not amount to a real and immediate threat of
further

constitutional

violations.

Thus,

the

plaintiff’s

allegation that he will be similarly injured in the immediate
future is merely speculative and does not entitle him to injunctive
relief.
B.

State Police Defendants’ Motion to Dismiss
In their motion to dismiss, the State Police defendants argue

that the plaintiff pleads no facts that show that he has a
plausible claim to relief against them under the Sixth and Eighth
Amendments.
Trooper

Additionally, the State Police defendants argue that

White

plaintiff’s

is

entitled

to

against

him

claims

qualified
under

immunity

the

First

from
and

the

Fourth

Amendments because he had at least arguable probable cause to
arrest the plaintiff.

Lastly, the State Police defendants contend

that the official capacity claims against them fail as a matter of
law

because

the

plaintiff

cannot
19

seek

monetary

damages

or

retrospective declaratory relief against government officials sued
in their official capacities, and he has pled no facts to show that
there is an imminent threat of future harm to him that would
warrant prospective injunctive relief.
The plaintiff filed a response in opposition to the motion to
dismiss.

As a preliminary matter, the plaintiff withdraws his

Sixth and Eighth Amendment claims, but not his West Virginia
constitutional claims, against Trooper White in his individual
capacity. The plaintiff states that, with respect to those claims,
he seeks only injunctive relief against the State Police defendants
in their official capacities for their federal constitutional
violations.

The plaintiff then argues that Trooper White ignored

fundamental First Amendment principles by arresting the plaintiff
without a warrant for allegedly making a conditional threat in a
political Facebook post. Next, the plaintiff argues that, after it
was determined that the complaint would be dismissed, Trooper White
looked for additional protected speech to retaliate against the
plaintiff and conspired to keep the plaintiff in custody when no
charges were pending.

The plaintiff further contends that the

State Police defendants fail to offer a single case supporting the
conclusion that any of the speech at issue is unprotected or that
the plaintiff could be twice arrested and incarcerated for engaging
in protected speech.

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Specifically,

the

plaintiff

contends

that

the

motion

to

dismiss should be denied because (1) the complaint establishes the
required elements of a § 1983 claim for retaliation in violation of
the First Amendment; (2) the complaint states § 1983 claims for
false arrest and malicious prosecution in violation of the Fourth
Amendment because neither Facebook post constitutes probable cause
for the commission of a crime; (3) Trooper White is not entitled to
qualified immunity because there was no evidence that the Facebook
posts met the requirements of any criminal statute, the plaintiff’s
First

Amendment

rights

are

clearly

established,

and

the

magistrate’s issuance of a warrant did not insulate him; (4) the
complaint states a claim that the State Police defendants violated
the plaintiff’s Sixth Amendment rights by attempting to interfere
with his right to the counsel of his choice; (5) the complaint
states a claim that the plaintiff’s Eighth Amendment rights were
violated because his bail was set at an unconstitutionally high
amount as part of a pattern, practice, or custom of the State
Police; (6) the complaint adequately states a claim for injunctive
relief against the State Police defendants; and (7) the West
Virginia Constitution allows for monetary damages.
The State Police defendants filed a reply to the plaintiff’s
response in opposition.

In reply, the State Police defendants

argue that (1) the plaintiff does not allege any facts to overcome
Trooper White’s qualified immunity from his claims under the First

21

and Fourth Amendments; (2) the plaintiff does not allege any facts
to state a claim under the Sixth or Eighth Amendments against them;
(3) the plaintiff does not allege any facts that would entitle him
to injunctive relief; and (4) the plaintiff does not allege any
claims under the West Virginia Constitution.
1.

First and Fourth Amendment Claims
a.

Qualified Immunity

Like the prosecutor defendants, the State Police defendants
are entitled to qualified immunity from the plaintiff’s First and
Fourth Amendment claims against them.

The plaintiff alleges that

the State Police defendants violated his First Amendment rights by
arresting him in retaliation for engaging in constitutionallyprotected speech.

The plaintiff alleges that the State Police

defendants violated his Fourth Amendment rights because he was
arrested without a warrant or exigent circumstances.
The Fourth Circuit has stated:
Qualified immunity protects [police] officers who commit
constitutional violations but who, in light of clearly
established law, could reasonably believe that their
actions were lawful. Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (en banc). When evaluating whether a
right was clearly established at the time of a violation,
courts do not ask whether the right allegedly violated
was established “as a broad general proposition” but
whether “it would be clear to a reasonable official that
his conduct was unlawful in the situation he confronted.”
Raub v. Campbell, 785 F.3d 876, 882 (4th Cir. 2015)
(quoting Saucier v. Katz, 533 U.S. 194, 201–202, 121
S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

22

Pegg

v.

Herrnberger,

845

F.3d

112,

117

(4th

Cir.

2017).

“[Q]ualified immunity protects law officers from ‘bad guesses in
gray areas,’ and it ensures that they may be held personally liable
only ‘for transgressing bright lines.’”

Gomez v. Atkins, 296 F.3d

253, 261 (4th Cir. 2002) (quoting Maciariello v. Sumner, 973 F.2d
295, 298 (4th Cir. 1992)).
Here, the State Police defendants are entitled to qualified
immunity because they had probable cause to support the arrest of
the plaintiff and, thus, reasonably believed that their actions
were lawful.

See Pegg, 845 F.3d at 119 (finding that the police

officers were entitled to qualified immunity where probable cause
existed for the arrest).

West Virginia’s terroristic threat

statute makes it a felony to “knowingly and willfully threaten[] to
commit a terrorist act, with or without the intent to commit the
act.” W. Va. Code § 61-6-24(b). The plaintiff admitted to Trooper
White that he made a Facebook post threatening to “hunt [four
police officers] down and put a bullet in their head” because he
was “sick of the corruption.”

ECF No. 1-1, 1-2.

Under the West

Virginia statute, a terroristic act includes an act “[l]ikely to
result in serious bodily injury or damage to property or the
environment” and intended to “[r]etaliate against a branch or level
of

government

for

a

policy

or

§ 61-6-24(a)(3)(B)(iv).

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conduct

of

the

government.”

Furthermore,

the

First

Amendment

does

not

protect

threats, even if the threat is conditional in nature.

true

See United

States v. Armel, 585 F.3d 182, 185 (4th Cir. 2009) (“Statements
constitute a ‘true threat’ if ‘an ordinary reasonable recipient who
is familiar with the[ir] context . . . would interpret [those
statements] as a threat of injury.’” (quoting United States v.
Roberts, 915 F.2d 889, 891 (4th Cir. 1990))); Virginia v. Black,
538 U.S. 343, 359 (2003) (“[T]he First Amendment also permits a
State to ban a ‘true threat.’” (citing Watts v. United States, 394
U.S. 705, 708 (1969))).
Based on the plaintiff’s admission regarding the Facebook
post, this Court finds that the State Police defendants had
probable cause to believe the plaintiff had violated the West
Virginia terroristic threat statute.

Because the State Police

defendants had probable cause for the arrest, they are entitled to
qualified immunity from the plaintiff’s First and Fourth Amendment
claims against them.
2.

Sixth and Eighth Amendment Claims

Also like with the prosecutor defendants, this Court finds
that the plaintiffs’ Sixth and Eighth Amendment claims against the
State Police defendants fail under Twombly. In his Sixth Amendment
claim, the plaintiff alleges that the prosecutor defendants issued
the subpoena to Jerry Krzys, his nephew who visited him in jail.
The plaintiff does not mention in his complaint how the State

24

Police defendants are involved in the alleged Sixth Amendment
violation.

Even so, Jerry Krzys was not licensed to practice law

in the state of West Virginia at the time the subpoena was issued,
and, thus, the plaintiff’s Sixth Amendment right to counsel was not
violated by the subpoena.
In his Eighth Amendment claim, the plaintiff alleges that his
bail

was

set

at

an

unreasonably

high

amount.

However,

the

plaintiff also does not allege any facts to how the State Police
defendants are were involved in setting the plaintiff’s bail. Even
if the plaintiff had alleged that the State Police defendants were
involved, police officers do not have the authority to set bail.
Rather, judges set bail.
plaintiff’s

Eighth

W. Va. Code § 62-1C-3.

Amendment

claim

against

the

Thus, the

State

Police

defendants also fails.
3.

Monetary Damages

As is discussed above regarding the prosecutor defendants’
motion to dismiss, the West Virginia Constitution does not contain
any provision allowing for monetary damages as a result of alleged
state constitutional violations.
monetary

damages

in

Thus, the plaintiff’s claim for

connection

with

the

alleged

state

constitutional violations also fails under Twombly as to the State
Police defendants.

25

4.

Injunctive Relief

The plaintiff’s claim for prospective injunctive relief also
fails against the State Police defendants for the same reasons it
failed against the prosecutor defendants.

Under Raub, a claim in

a § 1983 action for injunctive relief “will not be granted absent
the plaintiff’s showing that there is a ‘real or immediate threat
that [he] will be wronged again . . . in a similar way.’”
785 F.3d at 885 (quoting Simmons, 47 F.3d at 1382).

Raub,

Here, this

Court finds that the plaintiff has not shown any real or immediate
threat that he will be wronged again in a similar way absent
injunctive relief. The plaintiff has not pled any facts suggesting
that

he

will

be

subjected

to

future

prosecutions based on his Facebook posts.

arrests

and

criminal

Thus, the plaintiff’s

allegation that he will be similarly injured in the immediate
future is merely speculative and does not entitle him to injunctive
relief.
IV.

Conclusion

For the reasons set forth above, J.L. Cahill and Michael S.
White, II’s motion to dismiss (ECF No. 9) and James W. Davis, Jr.,
Esq., Jack Wood, Esq. and Hancock County, West Virginia’s motion to
dismiss (ECF No. 12) are GRANTED.

Additionally, Hancock County,

West Virginia, James W. Davis, Jr., Esq., and Jack Wood, Esq.’s
motion for a protective order (ECF No. 28) is DENIED AS MOOT.

26

It

is further ORDERED that this civil action be DISMISSED and STRICKEN
from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

June 5, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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