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

Filing 40

MEMORANDUM OPINION AND ORDER directing that the 36 Proposed Findings and Recommendation are adopted; the defendants' 15 MOTION to Dismiss is granted and the claims set forth in the original complaint are dismissed; further directing that plaintiff's 37 MOTION to Amend Complaint is granted with respect to the trespass claim and otherwise denied and the amended complaint presented on 11/5/2012 is filed as of this date. This action shall proceed only on the basis of the trespas s claim; further directing that this case is again referred to the United States Magistrate Judge for further proceedings on that claim. Signed by Judge John T. Copenhaver, Jr. on 3/29/2013. (cc: attys; pro se plaintiff; United States Magistrate Judge) (lca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WAYNE PATTERSON,
Plaintiff,
v.

Civil Action No. 2:12-01964

CITY OF SOUTH CHARLESTON,
a municipal corporation;
LIEUTENANT R.T. YEAGER,
individually and in his official
capacity, South Charleston Police;
OFFICER T.A. BAILES,
individually and in his official
capacity, South Charleston Police;
OFFICER A.R. LINDELL,
individually and in his official
capacity, South Charleston Police; and
seven unknown JOHN DOES 1-7, individually and in their official
capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are the plaintiff’s motion to amend his
complaint, filed November 5, 2012, and the plaintiff’s
objections to the proposed findings and recommendation of the
United States Magistrate Judge, filed November 16, 2012.

I.

Factual and Procedural Background

The pro se plaintiff, Wayne Patterson, initiated this
action in the United States District Court for the Southern
District of West Virginia on June 11, 2012.

The complaint

asserts numerous causes of action against the City of South
Charleston, West Virginia, and ten individual police officers,
arising in connection with two purportedly unconstitutional
arrests on July 2, 2011 and September 7, 2011, respectively.
See Compl. ¶ 3.

Pursuant to standing order, these pro se

proceedings were referred to United States Magistrate Judge Mary
E. Stanley.

On July 23, 2012, the defendants filed a motion to

dismiss the complaint, which the magistrate judge subsequently
converted to a motion for summary judgment.
2012.

See Order, July 27,

On October 30, 2012, Judge Stanley entered her proposed

findings and recommendation, wherein it is recommended that the
court grant the defendant’s motion.
Recommendation (“PF&R”) 19.

Proposed Findings and

In response, the plaintiff filed

objections to the proposed findings and a motion to amend his
complaint.

II.

A.

Analysis

Objections to the Proposed Findings and Recommendation of
the United States Magistrate Judge

In her proposed findings and recommendation, the
magistrate judge concluded that the defendant’s motion for
summary judgment should be granted and this matter dismissed

2

from the docket, to which the plaintiff has filed his
objections.

When objections are raised to findings and
recommendations proposed by a magistrate judge, the supervising
district court must conduct a de novo review.
636(b)(1).

28 U.S.C. §

Review, however, may be limited to “those portions

of the report or specified proposed findings . . . to which
objection is made.”

Id.; United States v. Midgette, 478 F.3d

616, 621 (4th Cir. 2007) (citing § 636(b)(1)) (“Section
636(b)(1) does not countenance a form of generalized objection
to cover all issues addressed by the magistrate judge; it
contemplates that a party's objection to a magistrate judge's
report be specific and particularized.”).

The plaintiff first objects to the finding that his
two arrests for battery and domestic battery, both stemming from
events that occurred on June 29, 2011, were supported by
probable cause, arguing that the defendant officers determined
at the scene of the alleged batteries that no report need be
generated, thereby indicating that no unlawful conduct had
occurred.

Objections to the Findings and Recommendations of

Magistrate Judge Stanley (“Pl.’s Objections”) 7, 9-10.

His

objection merely restates arguments soundly rejected by the
magistrate judge, who noted that the police were not present at
3

the time of the alleged assaults, had “witnessed the siblings
feuding over the property,” and filed criminal complaints based
on subsequent statements made by the victims at the South
Charleston Police Department.

PF&R 17-18.

The plaintiff’s

objection is thus meritless.

Second, the plaintiff objects by contending that a
municipal corporation must be held liable for negligence “in the
performance of functions assumed by it.”
17.

Pl.’s Objections 16-

The complaint, however, asserts no claim for negligent

provision of public services, beyond a single conclusory
statement that “[t]he CITY’s failure to adequately train and
supervise its officers in basic arrest procedures and the laws .
. . was a moving force behind the PLAINTIFF’s two illegal arrest
[sic].”

Compl. ¶ 51.

Section 636(b)(1) authorizes only written

objections to the proposed findings and objections of the
magistrate judge, and requires de novo review only of the
portions of the magistrate judge’s report to which specific
objection is made.

The court need not consider any causes of

action asserted for the first time in the plaintiff’s
objections.1

1

The magistrate judge was also under no obligation to analyze
similar arguments initially asserted in the plaintiff’s response to
the defendant’s motion to dismiss. See Morgan Distrib. Co. v.
Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (quoting Car

4

Third, the plaintiff objects to the dismissal of his
claims for malicious prosecution under both state law and 42
U.S.C. § 1983.

Pl.’s Objections 17-23.

Specifically, the

plaintiff argues that a judicial determination of probable cause
does not insulate the officer who sought the warrant without
probable cause.

Id. at 22.

The magistrate judge did not base

her recommendation concerning the claims of malicious
prosecution on the existence of an arrest warrant.
18.

See PF&R 17-

Rather, she concluded that the defendant officers did not

lack probable cause to obtain the arrest warrants.

Id.

The

court has already affirmed the validity of that finding in
response to the plaintiff’s first objection.

The plaintiff’s

objection is without merit.

Fourth, the plaintiff objects that the magistrate
judge failed to address his claims of conversion, trespass,
fraud, and civil conspiracy.

Pl.’s Objections 23-26.

Those

causes of action are not raised in the complaint, which is
devoid of any reference to fraud or civil conspiracy.2

As proof

that he pled conversion and trespass, the plaintiff cites two

Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.
1984)) (“[I]t is axiomatic that a complaint may not be amended by
the briefs in opposition to a motion to dismiss.”).
2

As discussed infra in Part II.B, the plaintiff does assert fraud
in his amended complaint. For the reasons discussed in that
section, the claim fails as a matter of law.

5

sentences in the “Facts” section of the complaint, which state:
31.
On June 23, 2011, at approximately 5:55 pm
edt the South Charleston police personnel departed the
premises.
32. On or about June 29, 2011, at approximately
4:30pm edt, LT. YEAGER, JOHN DOE #3, JOHN DOE #4 and
JOHN DOE #5 all uniformed officers of the SCPD, came
to the premises and ordered PLAINTIFF, George and Eros
to immediately leave (vacate) the premises; whereupon
PLAINTIFF, George and Eros promptly vacated the
premises.
See id. (citing Compl. ¶¶ 31-32).

The language identified

contains no indication that the plaintiff intended to assert the
claims described.

The plaintiff’s objections cite no specific

portion of the complaint that would allow the court to conclude
otherwise.

See id. at 26.

The objection is thus meritless.

Fifth, the plaintiff objects to the magistrate judge’s
conclusions concerning his claims for abuse of process.

Id.

He

raises no specific objections, however, to her analysis or to
her finding that the defendant officers had sufficient probable
cause to seek arrest warrants, see id., which has already been
discussed by the court in response to the plaintiff’s first
objection.

Sixth, and finally, the plaintiff asserts a cause of
action for outrage, or intentional infliction of emotional
distress.

Id. at 26-28.

The complaint does not assert

intentional infliction of emotional distress as a cause of
6

action.

The magistrate judge specifically noted that

“plaintiff’s references to humiliation, embarrassment and
emotional distress appear to be descriptions of his feelings
about the events, rather than specific claims for relief, and
they do not merit further discussion.”

PF&R 18-19.

Even

assuming that the complaint, liberally construed, asserted
intentional infliction of emotional distress, the conduct
alleged cannot, as a matter of law, be reasonably regarded as
sufficiently extreme or outrageous given the existence of both
facially valid arrest warrants and probable cause for seeking
those warrants.

See Travis v. Alcon Labs., Inc., 504 S.E.2d 419

syllabus ¶ 4 (W. Va. 1998) (providing the trial court with the
authority to “determine whether the defendant’s conduct may
reasonably be regarded as so extreme and outrageous as to
constitute the intentional or reckless infliction of emotional
distress.”).

The objection is therefore meritless.

In summary, having reviewed the record and the
plaintiff’s various objections, the court concludes that the
magistrate judge’s recommendation to grant the defendant’s
motion for summary judgment should be adopted.

7

B.

Motion to Amend the Complaint

In his motion to amend, the plaintiff seeks leave to
submit a complaint that provides “a more definite statement” of
the facts and law underlying his claims.
L. in Supp. of Leave to Am. Compl. ¶ 5.

Pl.’s Mot. and Mem. of
The amended complaint

essentially reasserts the same causes of action raised in the
original complaint, as well as causes of action for civil
conversion, common law fraud, and civil trespass against all
defendants.

See Am. Compl. ¶¶ 129-359.

The defendants, without

specifically addressing the new claims asserted in the amended
complaint, respond that the proposed amendments would be
prejudicial and futile given the magistrate judge’s proposed
findings and recommendation regarding the claims raised in the
original complaint.

Def.’s Resp. to Pl.’s Mot. for Leave to Am.

Compl.

Federal Rule of Civil Procedure 15(a)(2) provides that
an amended complaint may not be filed without the court’s leave.
See Fed. R. Civ. P. 15(a)(2).

Leave to amend should be granted

“freely . . . when justice so requires,” id., but should be
denied when delay is coupled with prejudice, bad faith, or
futility, Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th
Cir. 1999) (citing Johnson v. Oroweat Foods Co., 785 F.2d 503,
509 (4th Cir. 1986)).

An amendment is futile if the proposed
8

claim would not withstand a motion to dismiss.

Perkins v.

United States, 55 F.3d 910, 917 (4th Cir. 1995).

Thus, leave to amend must be predicated in significant
part upon the movant alleging "enough facts to state a claim to
relief that is plausible on its face."
Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp. v.

The court must “‘accept as

true all of the factual allegations contained in the
complaint,’” id. at 572 (quoting Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 508 n.1 (2002)), and must “draw[] all reasonable .
. . inferences from those facts in the plaintiff's favor,”
Edwards, 178 F.3d at 244.
construed liberally.
(4th Cir. 1978).

Moreover, pro se complaints must be

See Gordon v. Leeke, 574 F.2d 1147, 1151

Ultimately, however, “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 555).

As a threshold matter, the court notes that the
amended complaint contains no new facts or allegations that
would alter the court’s decision granting summary judgment in
favor of the defendant, with respect to the claims asserted in
the original complaint and reasserted in the amended complaint.
Leave to amend those claims is therefore denied as futile.

9

The court further observes that the claims asserted
for the first time in the amended complaint are poorly pled,
each consisting of a conclusory statement without reference to
specific facts or elements of the relevant cause of action.
See, e.g., Am. Compl. ¶¶ 143-49.

Claims of fraud, in

particular, are subject to heightened pleading requirements.3
Fed. R. Civ. P. 9(b).

Construing the pleadings liberally,

however, the plaintiff has provided sufficient information for
the court to address the newly raised causes of action for
conversion, common law fraud, and civil trespass.

Two of those causes of action are substantively
flawed.

First, conversion may not be asserted with respect to

real property, except in limited circumstances.4

Denke v.

Mamola, 437 N.W.2d 205, 207 (S.D. 1989) (citing 18 Am. Jur. 2d
Conversion § 19, at 156 (1985)); see Restatement (Second) of
Torts § 223 (1965).

Given that the disputed property in this

3

Even plaintiffs proceeding pro se must comply with the stricter
standard espoused in Federal Rule of Civil Procedure 9(b). See,
e.g., Breeden v. Richmond Cmty. College, 171 F.R.D. 189, 198
(M.D.N.C. 1997). Pro se litigants should generally be granted
leave to amend, rather than suffer outright dismissal of their
claims, for failure to comply with the strictures of Rule 9(b).
See id. As discussed infra, however, the plaintiff’s claim for
fraud suffers from substantive deficiencies rendering further
opportunity to amend unnecessary.
4

The plaintiff does not, for example, allege that the dwelling at
issue has been “severed and removed from the real estate.” See
Denke, 437 N.W.2d at 207.

10

matter is a home, affixed to real property, see Am. Compl. ¶¶
51-69, the plaintiff’s claim for conversion is precluded as a
matter of law.

Second, under West Virginia law, the “essential
elements” of fraud are:
(1) that the act claimed to be fraudulent was the act
of the defendant or induced by him; (2) that it was
material and false; that plaintiff relied upon it and
was justified under the circumstances in relying upon
it; and (3) that he was damaged because he relied upon
it.
Lengyel v. Lint, 280 S.E.2d 66, 69 (W. Va. 1981) (quoting Horton
v. Tyree, 139 S.E. 737, 738 (W. Va. 1927)).

In this case, the

plaintiff’s allegations of fraud are predicated on the
assumption that defendants Bailes and Lindell, as well as the
City of South Charleston, filed “false and fraudulent” reports
leading to the issuance of two arrest warrants.
¶¶ 89-95, 99, 117-28.

See Am. Compl.

By the plaintiff’s own admission,

however, the defendants “made the sworn representation[s] to the
court . . . with the intent that the Court should . . . rely and
act on . . . [them], and should be deceived and defrauded.”
Compl. ¶ 121 (emphasis added).

Am.

Thus, the plaintiff tacitly

acknowledges that he did not rely on the potentially fraudulent
statements, as required by West Virginia law.

Accordingly, his

claims for fraud also fail as a matter of law.

The court must

therefore conclude that the proposed amendment is futile, with
11

respect to the claims of conversion and fraud.

Finally, the plaintiff seeks leave to assert a claim
for civil trespass.

West Virginia law defines trespass as

“entry on another man’s ground without lawful authority, and
doing some damage, however inconsiderable, to his real
property.”

Hark v. Mountain Fork Lumber Co., 34 S.E.2d 348,

352-53 (W. Va. 1945) (internal quotation marks omitted).

The

amended complaint alleges that on July 1, 2011, defendants
Yeager and John Does 1 through 7 entered property located at 825
Barrett Street in South Charleston, West Virginia and summarily
ordered the plaintiff to vacate the premises.
51.

Am. Compl. ¶¶ 25,

The amended complaint further states that the plaintiff

continues to be deprived of his right to possess the home in
question.

It is undisputed that the plaintiff shares the

property with his siblings as tenants in common, id. ¶ 25, and
that the officers were informed of the plaintiff’s rights in the
property, id. ¶ 63.

Thus, despite the ongoing feud between the

plaintiff and his sister and tenant in common Gail Reid, the
plaintiff had a clearly defined right to possess the property as
a whole.

See Eagle Gas Co. v. Doran & Assocs., Inc., 387 S.E.2d

99, 103 (W. Va. 1989) (“Both [parties] . . . were tenants-incommon of the property, each with the right to possession of the
whole.”).

Although law enforcement officers are privileged to

12

commit trespass when exercising lawful authority in a reasonable
manner, see, e.g., 75 Am. Jur. 2d Trespass § 78 (2007), the
defendants suggest no legal basis for their entry onto the
plaintiff’s property or for his subsequent ejection.5

Therefore,

the plaintiff has established a plausible claim that the
defendant officers entered his property without lawful
authority.6

Accordingly, amending his complaint to include a

cause of action for trespass against defendants Yeager and John
Does 1 through 7 would not be futile.7

5

As noted earlier, the defendants fail to address the trespass
claim entirely, contending only that the magistrate judge’s
findings and recommendation with respect to the claims asserted in
the original complaint render amendment prejudicial and futile. At
no point, however, does the defendant explain why amendment with
respect to claims not raised before the magistrate judge would be
prejudicial or futile.
6

The plaintiff acknowledges that Gail Reid was present when the
purported trespass occurred. Aff. of Wayne Patterson ¶ 41, ECF No.
19. It is unclear, however, whether Reid’s implied consent to the
entry, as co-owner of the property, would insulate the defendants
from liability for trespass. See Restatement (Second) of Torts §
167 cmt. g (1965) (“The effect of consent by one or more tenants in
common . . . depends upon the mutual rights of such co-tenants and,
therefore, is not within the scope of the Restatement of this
Subject.”). Furthermore, the court is precluded from considering
information not contained in the complaint and accompanying
documents when resolving a motion to dismiss. Am. Chiropractic
Ass’n, Inc. v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.
2004).
7

The plaintiff also seeks to hold the City of South Charleston
liable for the alleged trespass, arguing that his “ejection”
occurred as a result of the city’s “policies, customs, and
practices” and its “failure to adequately train and supervise its
officers.” Am. Compl. ¶¶ 103-04. The plaintiff provides nothing,
however, beyond conclusory allegations. Furthermore, W. Va. Code §

13

III.

Conclusion

It is accordingly ordered that the proposed findings
and recommendation of the magistrate judge be, and hereby are,
adopted; the defendant’s motion for summary judgment be, and
hereby is, granted; and the claims set forth in the original
complaint are hereby ordered dismissed.

It is further ordered that the plaintiff’s motion to
amend his complaint is granted with respect to the trespass
claim and otherwise denied; and the amended complaint presented
by the plaintiff on November 5, 2012 is hereby ordered filed as
of this date.

This action shall proceed only on the basis of

the trespass claim set forth therein.

It is further ordered that this case be, and hereby
is, again referred to the United States Magistrate Judge for
further proceedings on that claim.

29-12A-4(c)(2) only abrogates the immunity afforded political
subdivisions for the negligent acts of employees acting within the
scope of employment. The amended complaint unambiguously describes
the defendants’ acts of trespass as intentional and premeditated.
See, e.g., Am. Compl. ¶ 73. Thus, the plaintiff is prohibited from
asserting trespass as a cause of action against the City of South
Charleston. See Mallamo v. Town of Rivesville, 477 S.E.2d 525,
533-34 (W. Va. 1996) (refusing to impose liability on a municipal
entity for the intentional acts of its police chief, given the
“plain meaning” of W. Va. Code § 29-12A-4(c)(2)).

14

The Clerk is directed to forward copies of this written
opinion and order to the pro se plaintiff, all counsel of
record, and the United States Magistrate Judge.
DATED:

March 29, 2013

John T. Copenhaver, Jr.
United States District Judge

15