Patterson v. City of South Charleston, West Virginia et al

Filing 163

ORDER adopting the 162 Proposed Findings and Recommendation as modified and incorporated more fully herein; granting the plaintiff's 153 Motion to amend the complaint to the extent set forth herein and otherwise denying said motion; th e Clerk is directed to docket the reformed second amended complaint, attached hereto as "Exhibit A", as the operative complaint in this action; the Clerk to prepare summonses for defendants L.S. Thomas and R.P. McFarland using those last k nown addresses, and to prepare a summons for Magistrate Julie Yeager using her address at the Kanawha County Magistrate Court; further directing the summonses and a copy of the reformed second amended complaint ("Exhibit A") shall be serve d upon each of these new defendants by certified mail, return receipt requested, with delivery restricted to the addressee; defendant R.T. Yeager's answer or other response to the reformed second amended complaint to be made within 14 days afte r electronic service of this Order and the reformed second amended complaint; defendants L.S. Thomas, R.P. McFarland and Magistrate Julie Yeager shall have 21 days from receipt of service of process to serve and file an answer or other response to the reformed second amended complaint; should delivery at the last known addresses fail, the Clerk is directed to make a second attempt to serve defendants Thomas and McFarland, under the conditions prescribed herein, using any available alternative address. Signed by Judge John T. Copenhaver, Jr. on 6/10/2015. (cc: counsel of record; any unrepresented parties) (taq)

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

WAYNE PATTERSON,
Plaintiff,
v.

Civil Action No: 2:12-1964

LIEUTENANT R.T. YEAGER,
individually and in his official
capacity, South Charleston Police,
JOHN DOE 1-7,
individually and in their official
capacities,
Defendants.

ORDER
Pending is the plaintiff’s motion seeking leave to
amend the first amended complaint, filed September 15, 2014.
The motion was referred to Dwane L. Tinsley, United States
Magistrate Judge, who submitted his Proposed Findings and
Recommendation (“PF&R”) on April 24, 2015.

Neither the named

defendant nor the plaintiff, Wayne Patterson, has objected to
the PF&R, which recommends that Patterson’s motion be granted in
part and denied in part as noted below.

The original complaint in this case charged the City
of South Charleston (the “City”), Lieutenant R.T. Yeager,
Officer T.A. Bailes, Officer A.R. Lindell, and John Does 1-7
with improperly arresting the plaintiff in violation of his

constitutional rights and in derogation of the common law.

On

March 29, 2013, the court adopted a PF&R recommending summary
judgment in the defendants’ favor as to those claims, but
permitted the plaintiff to proceed on the basis of an amended
complaint alleging that Yeager and John Does 1-7 “trespassed
upon PATTERSON’S property in violation of the 4th and 14th
Amendments of the United States Constitution, the West Virginia
Constitution, West Virginia statute and West Virginia common
law.”

In addition to that relatively narrow theory of recovery,

the plaintiff now seeks to amend the complaint to assert over a
dozen claims against twenty-four defendants.

The proffered

basis for the amendments is information contained in certain
materials disclosed during the discovery process.

The proposed second amended complaint spans 194
extremely cumbersome pages, to which thirty-one exhibits are
attached and add another 100 pages.

Nine of the plaintiff’s

theories of liability are repeated verbatim, in seriatim
fashion, against each of the twenty-four proposed defendants,
without any factual differentiation as to any particular
defendant.

Still other claims are presented in lettered lists

with no factual elaboration whatsoever.

The proposed complaint

also includes several theories of recovery that have already

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been adjudicated against the plaintiff or previously deemed
futile.
Despite the proposed amendment’s unwieldy length and
format, and notwithstanding the pro se plaintiff’s clear
disregard for Rule 8’s requirement that a complaint contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief,” Fed. R. Civ. P. 8(a)(2), the magistrate
judge has carefully and thoroughly reviewed the proposed second
amended complaint and recommends that most, but not all, of the
proposed amendments should be rejected as futile.

Specifically,

Judge Tinsley recommends that the plaintiff be allowed to amend
his complaint to plead only the following: (1) causes of action
against R.T. Yeager, L.S. Thomas, R.P. McFarland, and Magistrate
Julie Yeager under 42 U.S.C. § 1983 for violating or conspiring
to violate the plaintiff’s rights under the Fourth and
Fourteenth Amendment by entering the property at 825 Barrett
Street on July 1, 2011 and removing the plaintiff therefrom; (2)
causes of action against those same four defendants for
committing “common law trespass”; and (3) a cause of action
against R.T. Yeager for assault.

No objection to the PF&R has

been filed.
The court will adopt that recommendation, subject to
the following modifications:

First, as noted, the PF&R

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recommends that the plaintiff be granted leave to amend the
complaint to include claims against Lieutenant Yeager, L.S.
Thomas, R.P. McFarland, and Magistrate Yeager under 42 U.S.C. §
1983 for violating the plaintiff’s rights under the Fourth
Amendment.

Those claims are redundantly asserted, styled

separately and alternatively as causes of action for “Violation
of Unreasonable Search and Seizure” and “Violation of Reasonable
Expectation of Privacy.”

The text of each count is, however,

identical, alleging that the defendants “entered, seized and
searched Patterson’s house without reasonable suspicion . . . in
violation of the Fourth Amendment reasonable expectation of
privacy and guarantee against unreasonable searches and
seizures.”

It is clear that the plaintiff intends to assert

claims under § 1983 for violations of his Fourth Amendment
rights.

He need not, and may not, do so twice.

Counts LI, LV,

LIX, and LXIX (found at ¶¶ 306-08, 318-20, 330-32, and 360-62 of
the proposed second amended complaint) are stricken as
redundant.

See Fed. R. Civ. P. 12(f)(1) (“The court may strike

from a pleading . . . any redundant, immaterial, impertinent, or
scandalous matter.”).
Second, the proposed second amended complaint alleges
that Lieutenant Yeager received advice from his sister,
Magistrate Julie Yeager, about the ongoing dispute over the

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property located at 825 Barrett Street.

Patterson suggests that

it was only “after receiving advice from his sister” that
Lieutenant Yeager, L.S. Thomas, and R.P. McFarland undertook to
remove Patterson from the Barrett Street property.

As the

magistrate judge noted, however, a “review of the allegations
contained in the proposed [s]econd [a]mended [c]omplaint and the
exhibits provided therewith,” reveals “that the only defendants
who entered the property and removed the plaintiff on July 1,
2011 were Lt. R.T. Yeager, Sgt. L.S. Thomas and Officer R.P.
McFarland.”

PF&R at 21.

In other words, apart from the

boilerplate legal conclusion that all twenty-four of the
proposed defendants “entered, seized and searched Patterson’s
house” in violation of the Fourth Amendment, there are no
factual allegations that plausibly suggest Magistrate Yeager
entered the Barrett Street property on July 1, 2011.

Compare,

e.g., Proposed Second Am. Compl. ¶¶ 56-61 (referring to police
activity logs showing Lieutenant Yeager, Thomas, and McFarland
at the Barrett Street property on July 1 and alleging that “Lt.
Yeager, Sgt. Thomas and Officer McFarland ejected Patterson from
the premises”) and ¶¶ 128, 130 (alleging that Lieutenant Yeager,
Thomas, and McFarland “turn[ed] the knob [to] . . . Patterson’s
unlocked front door and walk[ed] into Patterson’s house without
knocking”), with id. ¶ 114 (“[I]t appears that on July 1, 2011,
after receiving advice from his sister, Lt. Yeager then called

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his co-conspirators” to “hatch[] a plan to dispossess and
humiliate Patterson” (emphasis added)) and ¶ 122 (alleging that
Magistrate Yeager “gave Lt. Yeager and the other officers the
wrong advice, which appears to have directly contributed to
Patterson’s deprivations”).

As a result, Counts XXVII, LI, and

XCIX (found at ¶¶ 234-36, 306-08, and 452-55 of the proposed
second amended complaint), alleging that Magistrate Yeager
committed the tort of trespass or violated Patterson’s Fourth
Amendment rights by herself physically entering the Barrett
Street property are futile.

Leave to amend the complaint to

include those claims against Magistrate Yeager is denied.
The court has undertaken to reform the plaintiff’s
proposed second amended complaint to reflect the limitations
described above.

Causes of action not permitted and immaterial

factual pleadings related to claims deemed futile by the PF&R as
modified have been removed.

The reformed complaint retains the

proposed second amended complaint’s original pagination and
paragraph numbers to the extent so preserved, but several pages
consisting of stricken material have been omitted partially or
in their entirety.

The surviving counts have been relabeled

sequentially as Counts One through Eleven rather than using
Roman numerals, as explained parenthetically in the paragraph
next below.

Finally, Exhibit 31 -- the complaint in Lee v. City

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of South Charleston, No. 08-289 (S.D. W. Va. May 2, 2008) -which is irrelevant to the surviving causes of action has also
been removed.
To be clear, the reformed second amended complaint now
consists of the following: (1) causes of action against R.T.
Yeager, L.S. Thomas, and R.P. McFarland under 42 U.S.C. § 1983
for violating the plaintiff’s Fourth Amendment Rights (relabeled
as Counts One, Two, and Three, and found at ¶¶ 246-48, 258-60,
and 288-90 of the proposed second amended complaint); (2) causes
of action against R.T. Yeager, L.S. Thomas, and R.P. McFarland
for common law trespass (relabeled as Counts Four, Five, and
Six, and found at ¶¶ 468-71, 484-87, and 524-27 of the proposed
second amended complaint); (3) causes of action against R.T.
Yeager, L.S. Thomas, R.P. McFarland, and Magistrate Julie Yeager
under 42 U.S.C. § 1983 for conspiring to violate Patterson’s
Fourth Amendment rights (relabeled as Counts Seven, Eight, Nine,
and Ten, and found at ¶¶ 619-21, 631-33, 643-45, and 673-75 of
the proposed second amended complaint); (4) a cause of action
against R.T. Yeager for assault (relabeled Count Eleven, and
found at ¶¶ 692-694 of the proposed second amended complaint);
and (5) attached Exhibits 1-30.
In light of the foregoing, the court accordingly
ORDERS as follows: (1) that the PF&R of the magistrate judge be,

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and hereby is, adopted by the court as modified above and
incorporated herein; (2) that the plaintiff’s motion to amend
the complaint be, and hereby is, granted to the extent set forth
above and otherwise denied; and (3) that the Clerk be, and
hereby is, directed to docket the reformed second amended
complaint, attached hereto as “Exhibit A”, as the operative
complaint in this action.
The plaintiff is proceeding in forma pauperis.

Pursuant to

28 U.S.C. § 1915(d), the officers of the court shall issue and
serve all process and perform all duties in such cases.
Counsel for Lieutenant Yeager has indicated that defendants
L.S. Thomas and R.P. McFarland are no longer employed by the
City of South Charleston Police Department, but has provided the
court with the last known addresses for those defendants as set
forth below.

It is hereby ORDERED that the Clerk shall prepare

summonses for defendants L.S. Thomas and R.P. McFarland using
those last known addresses, and shall prepare a summons for
Magistrate Julie Yeager using her address at the Kanawha County
Magistrate Court.

It is further ORDERED that these summonses

and a copy of the reformed second amended complaint (“Exhibit
A”) shall be served upon each of these new defendants by
certified mail, return receipt requested, with delivery
restricted to the addressee.

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In accordance with Rule 15(a)(3), it is hereby ORDERED
that defendant R.T. Yeager’s answer or other response to the
reformed second amended complaint shall be made within 14 days
after electronic service of this Order and the reformed second
amended complaint.

In accordance with Rule 12(a)(1)(A)(i), it

is further ORDERED that defendants L.S. Thomas, R.P. McFarland
and Magistrate Julie Yeager shall have 21 days from receipt of
service of process to serve and file an answer or other response
to the reformed second amended complaint.
The last known address of L.S. Thomas is 4018 Seymour
Lane, Cross Lanes, West Virginia, 25313.

R.P. McFarland’s last

known address is 5404 Doc Bailey Road, Cross Lanes, West
Virginia, 25313.

Should delivery at those addresses fail, the

Clerk is directed to immediately make a second attempt to serve
defendants Thomas and McFarland, under the conditions prescribed
above, using any available alternative address.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER: June 10, 2015

John T. Copenhaver, Jr.
United States District Judge

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EXHIBIT A

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