Harless v. McCann et al

Filing 21

MEMORANDUM OPINION AND ORDER granting defendants Charles McCann, Thomas Ramey Jr., Dr. Charles Vance, Judy Johnson, and the County Commission of Lincoln County, West Virginia's 12 MOTION to Dismiss; directing that the claims against defendants McCann, Ramey, Vance, and Johnson in their official capacities and against the County Commission of Lincoln County, West Virginia are DISMISSED. Signed by Judge Joseph R. Goodwin on 9/4/2012. (cc: attys; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

MARIA PHOEBE HARLESS,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-01480

CHARLES MCCANN, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is defendants Charles McCann, Thomas Ramey Jr., Dr. Charles
Vance, Judy Johnson, and the County Commission of Lincoln County, West Virginia’s Motion to
Dismiss [Docket 12]. For the reasons discussed below, this motion is GRANTED.
I.

Background
This case arises from allegations by the plaintiff, Maria Phoebe Harless, that the defendants

conspired and engaged in misconduct relating to the 2010 primary and election for Lincoln County
Commissioner. The complaint names the following defendants: Charles McCann, individually
and in his capacity as Lincoln County Commissioner; Thomas Ramey Jr., individually and in his
capacity as Lincoln County Commissioner; Dr. Charles Vance, individually and in his capacity as
Lincoln County Commissioner; Judy Johnson, individually and in her capacity as Secretary to the
Lincoln County Commission; Donald Whitten, individually and in his capacity as Sherriff of
Lincoln County; Jerry Bowman, individually and as Sheriff of Lincoln County, West Virginia;
Rocky Adkins; The County Commission of Lincoln County (“County Commission”); and the

West Virginia Counties Group Self Insurance Risk Pool as surety on the bonds of defendants
McCann, Ramey, Vance, Whitten, and Bowman.
According to the complaint, both Harless and Thomas Ramey Jr. were candidates in the
May 11, 2010 primary election seeking the Democratic nomination for the office of County
Commissioner of Lincoln County, West Virginia. (Compl. ¶ 6). When the polls closed on May
11, 2010, Harless had received more in-person votes than Ramey. (Id. ¶ 8). Following a recount
of absentee ballots, however, Thomas Ramey Jr. was declared to have won the nomination. (Id.
¶ 9). Harless initiated an election contest challenging the manner in which the absentee ballots
were collected, but was ultimately disqualified as a candidate based on reasons allegedly relating
to her residency. (Id. ¶ 10; Pl.’s Resp. Mot to Dismiss [Docket 14], at 2).
The complaint alleges that the manner in which absentee ballots were collected and voted
in the May 11, 2010 primary “was illegal and unlawful and the result of a conspiracy between [the
defendants].” (Id. ¶ 12). Harless alleges that defendants Bowman, Ramey, Whitten, and Adkins
“visited the homes of a select group of Lincoln County residents . . . for the purpose of having
those individuals sign applications for absentee ballots despite the fact that [the defendants] had
actual knowledge that the reasons given for the voting of absentee ballots by the mail set forth in
those applications were false.”

(Id. ¶ 17).

The complaint alleges that the actions of the

defendants ultimately “rendered the election and election contest fundamentally unfair.” (Id.
¶ 57).
Defendants McCann, Ramey, Vance, Johnson, and the County Commission filed the
instant motion, seeking to dismiss the claims against them for failure to state a claim upon which

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relief can be granted. The plaintiff has responded, and the defendants have filed a reply. This
motion is now ripe for review.
II.

Legal Standard
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint or

pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil
Procedure 8 requires that a pleading contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8. As the Supreme Court recently reiterated in
Ashcroft v. Iqbal, that standard “does not require ‘detailed factual allegations’ but ‘it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.’” 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

“[A] plaintiff’s

obligation to provide the grounds of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) for the proposition
that “on a motion to dismiss, courts ‘are not bound to accept as true a legal conclusion couched as
a factual allegation’”). A court cannot accept as true legal conclusions in a complaint that merely
recite the elements of a cause of action supported by conclusory statements. Iqbal, 556 U.S. at
677-78. “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting
Twombly, 550 U.S. at 570). To achieve facial plausibility, the plaintiff must plead facts that allow
the court to draw the reasonable inference that the defendant is liable, and those facts must be more
than merely consistent with the defendant’s liability to raise the claim from merely possible to
probable. Id.

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In determining whether a plausible claim exists, the court must undertake a
context-specific inquiry, “[b]ut where the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged but it has not ‘show[n] that the
pleader is entitled to relief.’” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)). A complaint must
contain enough facts to “nudge[] [a] claim cross the line from conceivable to plausible.”
Twombly, 550 U.S. at 570.
The Iqbal court suggested a two-pronged inquiry to determine if the complaint survives a
motion to dismiss as set forth by Iqbal, which I will follow here. First, I will identify any
pleadings that are not entitled to the assumption of truth because they are conclusory and
unsupported by factual allegations.

See Iqbal, 129 S. Ct. at 1949-50.

Where there are

well-pleaded factual allegations, I will assume the veracity of those facts and then determine
whether they plausibly give rise to a valid claim for relief. See id.
III.

Discussion
The defendants argue that the claims against McCann, Ramey, Vance, and Johnson in their

official capacities must be dismissed because the real party in interest is the County Commission,
and claims against the County Commission are barred by the West Virginia Tort Claims Insurance
Reform Act. The plaintiff argues that her claims should not be dismissed, but does not provide
any legal explanation for her position.
A lawsuit against a government official in his or her official capacity is a suit against the
governmental entity itself. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (explaining
that “an official-capacity suit is, in all respects other than name, to be treated as a suit against the

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entity”). Accordingly, claims against the individual officials in their official capacities are claims
against the County Commission.
The West Virginia Tort Claims Insurance Reform Act (“Tort Claims Act”) limits the
circumstances under which a political subdivision is liable in a civil action for “injury, death, or
loss to persons or property allegedly caused by an act or omission of the political subdivision or an
employee of the political subdivision.” W. VA. CODE § 29-12A-4(b)(1). Specifically, the Tort
Claims Act provides that a political subdivision cannot be held liable unless the “loss to persons or
property [is] caused by the negligent performance of acts by their employees while acting within
the scope of employment.” W. VA. CODE § 29-12A-4(b)(1), (c)(2). The complaint does not
allege that McCann, Ramey, Vance, or Johnson acted negligently within the scope of his or her
employment. Rather, the complaint alleges that the defendants engaged in a conspiracy, and
acted “with malicious purpose, in bad faith and in a wanton and reckless manner.” (Compl. ¶ 66).
Accordingly, the claims against McCann, Ramey, Vance, and Johnson in their official capacities
are barred by the West Virginia Tort Claims Act and are hereby DISMISSED. See, e.g.,
Mallamo v. Town of Rivesville, 197 W. Va. 616 (1996) (holding that a town was immune from
liability for conspiracy and intentional misconduct by its employees).
All of the factual allegations in the complaint relate to the conduct of individual
defendants. As explained above, the County Commission is not liable under West Virginia law
for intentional acts of its employees. Additionally, there is no respondeat superior liability under
42 U.S.C. § 1983, and the complaint does not allege a policy, custom, or other action attributable
to the County Commission. Accordingly, the claims against the County Commission are hereby
DISMISSED.

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IV.

Conclusion
For the reasons discussed above, the court GRANTS the defendants’ motion and

ORDERS that the claims against defendants McCann, Ramey, Vance, and Johnson in their
official capacities and against the County Commission of Lincoln County, West Virginia are
hereby DISMISSED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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September 4, 2012