Moore v. Wilson et al
Filing
47
MEMORANDUM OPINION AND ORDER denying the West Virginia Regional Jail and Correctional Facility Authority's 21 MOTION to Dismiss; and denying defendant William Wilson's 24 MOTION join in the motion to dismiss; the limitations challenge may be raised anew at the dispositive motions stage of the case. Signed by Judge John T. Copenhaver, Jr. on 4/7/2014. (cc: attys; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KATRINA MOORE,
Plaintiff,
v.
Civil Action No. 2:13-cv-14393
C.O. WILLIAM WILSON, individually and in
his official capacity as a correctional
officer of The West Virginia Regional Jail
and Correctional Facility Authority, and
CHIEF CORRECTIONAL OFFICER LT. LARRY BUNTING,
individually and in his official capacity, and
THE WEST VIRGINIA REGIONAL JAIL AND
CORRECTIONAL FACILITY AUTHORITY
an agency of the State of West Virginia, and
JOHN DOE, unknown person or persons,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are a motion to dismiss filed November 6,
2013, by the West Virginia Regional Jail and Correctional
Facility Authority and the motion by defendant William Wilson to
join in the motion to dismiss, filed November 13, 2013.
I.
On March 8, 2013, plaintiff Katrina Moore instituted
this action.
She alleges that she was sexually harassed,
abused, and exploited by defendant William Wilson while she was
in custody at the Southern Regional Jail (“jail”).
Mr. Wilson
was formerly employed as a correctional officer at the jail.
The defendant West Virginia Regional Jail and Correctional
Facility Authority (“the Authority”) is the governmental body
which has operated the jail since its inception.
Ms. Moore
alleges that, since the jail commenced operations, there has
been a continuing practice and pattern of sexual harassment,
abuse, and assault visited upon women inmates at the hands of
correctional staff.
The complaint alleges many claims, including causes of
action pursuant to the Fourth, Eighth, Ninth, and Fourteenth
Amendments, various provisions of the West Virginia
Constitution, and common law claims for assault and battery,
intentional infliction of emotional distress, negligent hiring,
negligent retention, negligent supervision, and others.
The Authority moves to dismiss.
It asserts that Ms.
Moore’s claims for a period of time are barred by the applicable
limitation period.
It appears to believe that a two-year
limitations bar applies.
Discovery has revealed that Ms. Moore
was incarcerated at the jail for two separate time periods.
The
first period included the time frame of September through
October 2009.
The second period began sometime after November
2
2011.
Ms. Moore was victimized during both the September
through October 2009 time frame and the 2011 time frame.
The
Authority asserts the acts complained of in the first period are
not actionable as falling outside the limitations time frame.
In response, Ms. Moore relies upon the continuing tort
theory.
She also asserts that the limitation period should be
tolled “under the doctrine of equitable modification and under
the doctrine of obstruction of prosecution per W. Va. Code § 552-17.”
(Pl.’s Resp. at 5).
Neither the Authority nor any other
defendant has replied.
II.
A.
Governing Standard
Federal Rule of Civil Procedure 8(a)(2) requires that
a pleader provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.”
Fed. R. Civ. P.
8(a)(2); Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007).
Rule
12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which relief
can be granted . . . .”
Fed. R. Civ. P. 12(b)(6).
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The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957),
overruled on other grounds, Twombly, 550 U.S. at 563); see also
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007).
In order 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.’”
Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S.
at 570); see also Monroe v. City of Charlottesville, 579 F.3d
380, 386 (4th Cir. 2009).
Application of the Rule 12(b)(6) standard requires
that the court “‘accept as true all of the factual allegations
contained in the complaint . . . .’”
Erickson, 127 S. Ct. at
2200 (quoting Twombly, 127 S. Ct. at 1965); see also South
Carolina Dept. Of Health And Environmental Control v. Commerce
and Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004)
(quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)).
The court must also “draw[] all reasonable . . . inferences from
th[e] facts in the plaintiff's favor . . . .”
Edwards v. City
of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
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B.
Analysis
In Casto v. Dupuy, 204 W. Va. 619, 515 S.E.2d 364, 368
(1999), the Supreme Court of Appeals of West Virginia observed
as follows concerning the continuing tort theory:
Under the continuing tort theory, when a tort involves
a continuing or repeated injury, the cause of action
accrues at the date of the last injury. This Court
observed in Ricottilli v. Summersville Memorial
Hospital, 188 W.Va. 674, 677, 425 S.E.2d 629, 632
(1992), that “the concept of a continuing tort
requires a showing of repetitious, wrongful conduct.”
Moreover, we said in Ricottilli that “a wrongful act
with consequential continuing damages is not a
continuing tort.” Id. (citing Spahr v. Preston County
Bd. of Educ., 182 W.Va. 726, 729, 391 S.E.2d 739, 742
(1990)). In the instant proceeding, the continuing
tort theory must fail. The single act of the alleged
negligent hiring by M.A. & W. or the alleged negligent
inspection by Mr. Dupuy clearly present purported
consequential continuing damages. In this case there
is no showing of repetitious wrongful conduct.
Id. at 623, 515 S.E.2d at 368.
Later in Roberts v. West Virginia American Water Co.,
221 W. Va. 373, 655 S.E.2d 119 (2007), the supreme court of
appeals elaborated further:
To be clear, the distinguishing aspect of a continuing
tort with respect to negligence actions is continuing
tortious conduct, that is, a continuing violation of a
duty owed the person alleging injury, rather than
continuing damages emanating from a discrete tortious
act. It is the continuing misconduct which serves to
toll the statute of limitations under the continuing
tort doctrine.
Id. at 378, 655 S.E.2d at 124 (emphasis added).
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The circumstances in this case are distinct from those
in the mine run of cases.
Those cases routinely involve either
(1) a clear case of merely continuing damages or, (2) an obvious
continuing tort, such as an uninterrupted physical trespass by
placement of an object on another’s land.
In view of the
difficulty of the issue presented, and without reaching the
additional tolling doctrines raised by Ms. Moore, the better
course is to await development of the entire evidentiary record.
The court, accordingly, ORDERS that the motion to
dismiss be, and hereby is, denied.
The limitations challenge
may be raised anew at the dispositive motions stage of the case.
The Clerk is directed to forward copies of this order
to all counsel of record and any unrepresented parties.
DATED: April 7, 2014
John T. Copenhaver, Jr.
United States District Judge
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