Woodruff v. Thornsbury et al

Filing 114

MEMORANDUM OPINION AND ORDER denying as moot 17 MOTION by Brandon Moore to Dismiss 1 Complaint; denying as moot 35 MOTION by Nathan Glanden to Dismiss 1 Complaint; denying as moot 38 MOTION by City of Gilbert, West Virginia to Dismiss 1 C omplaint; denying as moot 40 MOTION by Robert Woodruff to Find 22 MOTION by Michael Thornsbury to Dismiss 1 Complaint Due to Insufficient Service of Process Moot Under Principles of Res Judicata and Collateral Estoppel; granting 80 MOTION by Robert Woodruff to Amend 1 Complaint; directing that the 63 First Amended Complaint is filed nunc pro tunc on 1/31/2014; denying as moot 74 MOTION by Michael Thornsbury to Dismiss 63 First Amended Complaint; denying without prejudice 89 MOT ION by Robert Woodruff to Dismiss Defendant Jeff Cline re: 1 Complaint; granting conditionally 66 MOTION by Nathan Glanden to Dismiss 63 First Amended Complaint; by 5/23/2014, Mr. Wooodruff may attempt to amend the operative pleading to allege further facts that would state a plausible state or federal claim against Officer Glanden; granting conditionally 95 MOTION by Michael Sparks to Dismiss 1 Complaint and 98 AMENDED MOTION by Michael Sparks to Dismiss 1 Complaint; by 5/23/2014 , Mr. Woodruff may attempt to amend the operative pleading to allege further facts that would state a plausible state or federal claim against Mr. Sparks; granting 6 MOTION by Jay Smithers to Dismiss 1 Complaint; granting 28 MOTION by Steven D. Canterbury to Dismiss 1 Complaint; denying 70 MOTION by Brandon Moore to Dismiss 63 First Amended Complaint except to the extent that he is not liable under federal or state law for any claims directly based upon his grand jury testimony. Signed by Judge John T. Copenhaver, Jr. on 5/8/2014. (cc: attys; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

ROBERT WOODRUFF,
Plaintiff,
v.

Civil Action No. 2:13-24001

MICHAEL THORNSBURY, individually and
in his official capacity, and
JARROD FLETCHER, individually and
in his official capacity, and
STEVEN D. CANTERBURY, in his official
capacity as Administrator of the
West Virginia Supreme Court of Appeals, and
TROOPER BRANDON MOORE, individually and
in his official capacity, and
COLONEL JAY SMITHERS, in his official capacity
as Commander of the West Virginia State Police,
JEFF CLINE and
POLICE OFFICER NATHAN GLANDEN,
individually and in his official capacity, and
COMMISSIONERS OF THE MINGO COUNTY COMMISSION,
in their official capacity, and MICHAEL SPARKS,
in his official capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are separate motions to dismiss filed by
defendant Colonel Jay Smithers on October 14, 2013, by defendant
Administrator Steven D. Canterbury on October 30, 2013, by
defendant Officer Nathan Glanden on February 10, 2014, by
defendant Trooper Brandon Moore on February 12, 2014, by defendant

Michael Thornsbury on February 14, 2014, and by defendant Michael
Sparks, respectively, on April 7 and April 9, 2014 (original and
amended versions, hereinafter referred to as Mr. Sparks’ “motion
to dismiss”).1
Also pending are plaintiff Robert Woodruff’s motion to
file the first amended complaint, filed February 14, 2014, and Mr.
Woodruff’s motion to dismiss defendant Jeff Cline, filed February
21, 2014.

The motion to amend was presented following the

unauthorized filing of the first amended complaint on January 31,
2014.

That unauthorized filing is the sole basis for Mr.

Thornsbury’s motion to dismiss.

1

Inasmuch as leave to amend should

Colonel Smithers and Administrator Canterbury moved to
dismiss the initial pleading prior to the filing of the first
amended complaint. They have not so moved following presentment
of the first amended complaint. The court treats these two
earlier filed motions to dismiss as lodged against the first
amended complaint.
Trooper Moore and Officer Glanden also moved to dismiss prior
to presentment of the first amended complaint but moved anew
against the first amended complaint, as noted, respectively, on
February 10 and 12, 2014. The court ORDERS that the two earlier
filed motions to dismiss by Trooper Moore and Officer Glanden,
found respectively at docket entries 17 and 35 be, and hereby are,
denied as moot.
The City of Gilbert, formerly named as a defendant under the
initial pleading, has since been voluntarily dismissed.
Accordingly, the court ORDERS that the City of Gilbert’s
previously filed motion to dismiss, found at docket entry 38, be,
and hereby is, denied as moot. Further, inasmuch as the court
previously denied a motion to dismiss filed by Mr. Thornsbury
respecting a service of process issue, it is ORDERED that Mr.
Woodruff’s related “MOTION TO FIND DEFENDANT MICHAEL THORNSBURY’S
MOTION TO DISMISS MOOT UNDER PRINCIPLES OF RES JUDICATA AND
COLLATERAL ESTOPPEL,” found at docket entry 40 be, and hereby is,
denied as moot.
2

be freely granted, and the proposed amendment is within the
applicable deadline specified in the scheduling order, it is
ORDERED that the motion to amend be, and hereby is, granted.

It

is further ORDERED that the first amended complaint be, and hereby
is, filed nunc pro tunc on January 31, 2014.

It is additionally

ORDERED that Mr. Thornsbury’s motion to dismiss be, and hereby is,
denied as moot.
Respecting Mr. Woodruff’s motion to voluntarily dismiss
Mr. Cline, it is asserted that Mr. Cline has no assets to satisfy
a judgment.
Cline.

Mr. Woodruff thus seeks to voluntarily dismiss Mr.

Colonel Smithers, the Mingo County Commission, and Jarrod

Fletcher oppose dismissal, asserting, inter alia, that Mr. Cline
is an indispensable party, that his absence would prejudice them,
and that the proper apportionment of liability depends upon Mr.
Cline remaining a party defendant.

Mr. Woodruff has not replied.

Inasmuch as it appears at this juncture that the proper
apportionment of liability and the award of complete relief among
the parties depends upon Mr. Cline remaining in the action as a
party defendant, it is ORDERED that Mr. Woodruff’s motion to
dismiss Mr. Cline be, and hereby is, denied without prejudice.

3

I.

A.

The Defendants

On September 30, 2013, plaintiff Robert Woodruff
instituted this action.
Virginia.

He is a resident of Mingo County, West

Defendant Michael Thornsbury was, at all relevant

times, serving as a judge on the Circuit Court of Mingo County.
Mr. Woodruff alleges that the unlawful actions engaged in by Mr.
Thornsbury occurred while he was acting in his official capacity.
Colonel Smithers commands the West Virginia State
Police.

Administrator Canterbury is the operations director of

the Supreme Court of Appeals of West Virginia.
Defendant Jarrod Fletcher was, at all times relevant,
the foreperson of the Mingo County grand jury.

Mr. Woodruff

alleges that all actions complained of by Mr. Fletcher occurred
while he was acting in his official capacity on behalf of the
Mingo County Commission.
Trooper Moore is a member of the West Virginia State
Police.

Officer Glanden is, or formerly was, a member of the City

of Gilbert Police Department.

Defendant Jeff Cline is a close

friend and confident of Mr. Thornsbury.

4

The Mingo County

Commission is the municipal seat of government for Mingo County.
Mr. Sparks is the former Prosecuting Attorney of Mingo County.

B.

General Allegations of the First Amended Complaint

Mr. Woodruff is married to Kimberly Woodruff.

He was

employed at H. Coal Co., a Mingo County coal mining facility.
From approximately January 2008 through spring 2009, Ms. Woodruff
was Mr. Thornsbury’s administrative assistant.

She endured his

various forms of sexual harassment during this time, refusing his
proposed liaisons.

Mr. Thornsbury told Ms. Woodruff that, if her

husband were ever arrested, he would be forced to terminate her
employment.

She continued to rebuff his advances.

From approximately 2007 through early 2010, then-Judge
Thornsbury cultivated a relationship with Trooper Moore with the
design of securing influence over him in the performance of
Trooper Moore’s official duties.

Mr. Thornsbury is also alleged

to have gained influence and control over Mr. Fletcher, who was
Mingo County’s Director of Homeland Security and Emergency
Management when he was serving as foreman of the grand jury.

Mr.

Fletcher is a close friend of Mr. Thornsbury and, in 2008 and
2009, the two became business partners in multiple ventures.
relationship was not widely known until mid-2009.

5

That

C.

The Alleged Conspiratorial Activities Aimed at Mr. Woodruff

Ms. Woodruff’s refusal to engage in a sexual liaison
with Mr. Thornsbury caused him, in the second half of 2008, to
devise a scheme to have Mr. Woodruff incarcerated.

Mr. Thornsbury

instructed Mr. Fletcher to relay information to Trooper Moore and
other, unnamed members of the West Virginia State Police that Mr.
Woodruff had concealed cocaine under his pickup truck.

Mr.

Fletcher was selected for this task based upon his influence as
Director of Mingo County Homeland Security and Emergency
Management.

Both Mr. Fletcher and Trooper Moore were aware of the

fact that Mr. Thornsbury was obsessed with Ms. Woodruff at the
time.
At a later unspecified date, Mr. Thornsbury summoned Mr.
Cline to his chambers.

Mr. Cline was instructed to attach a metal

box filled with cocaine under Mr. Woodruff’s vehicle.

Mr.

Thornsbury explained that, with Mr. Woodruff out of the way, Ms.
Woodruff would be forced to have a romantic relationship with him
out of financial necessity.

Mr. Cline agreed to plant the drugs

as directed but never followed through.
From 2006 through 2008, Mr. Woodruff salvaged scrap
mine-roof drill bits from his employer, H. Coal Co.
6

He would then

transport them to another facility for refurbishing.
permitted him to do so.

H. Coal

In approximately the second half of 2008,

however, Mr. Thornsbury told Trooper Moore that Mr. Woodruff was
stealing the bits.

Mr. Thornsbury instructed Trooper Moore to

file charges to that effect but to conceal Mr. Thornsbury’s
involvement.
Upon investigating the matter, Trooper Moore learned
that Mr. Woodruff was authorized to take the bits.

When Trooper

Moore informed Mr. Thornsbury, the latter nevertheless insisted
that Mr. Woodruff be charged with grand larceny.

On December 2,

2008, Trooper Moore arrested Mr. Woodruff on three (3) felony
counts arising out of Mr. Woodruff’s authorized bit removal work.
He was charged with grand larceny, receiving and transferring
stolen goods, and obtaining money under false pretense.

Mr.

Woodruff was on bond from December 2, 2008, to January 9, 2009.
On that end date the charges were dismissed.
On January 14, 2009, Trooper Moore, at Mr. Thornsbury’s
direction, filed an additional criminal charge against Mr.
Woodruff for the same fraudulent scheme.

The charge remained

pending from January 14, 2009, until August 21, 2013.

On that end

date, it was dismissed.
On January 20, 2009, Mr. Thornsbury appointed Mr.
Fletcher as the foreperson of the Mingo County grand jury.
7

That

act is alleged to have contravened West Virginia Code section 521-8(d), which prohibits a state officeholder from serving on a
state grand jury.

The appointment ostensibly permitted Mr.

Thornsbury to control the grand jury.

That control allegedly

resulted in the improper issuance of grand jury subpoenas duces
tecum to oppress Mr. Woodruff and procure his indictment on felony
charges.

Trooper Moore was called to testify against Mr. Woodruff

on this matter in the absence of the prosecuting attorney.

The

grand jury did not return an indictment.
On or about January 25, 2012, Mr. Woodruff was involved
in an altercation at a convenience store in Gilbert.

A police

report indicated that two other individuals started the conflict,
with one pulling a firearm.

Three eye witnesses reported as much.

Law enforcement review of a video recording of the altercation
confirmed the accounts.

A month later, however, Mr. Thornsbury

told Officer Glanden to obtain an arrest warrant for Mr. Woodruff
on charges of assault and battery.

Officer Glanden was not

involved in the investigation up to that point.

On February 23,

2012, Officer Glanden executed the warrant as instructed.
Between February 2012 and October 2012, during which
time Mr. Woodruff was on bond, Mr. Thornsbury instructed Mr. Cline
to visit the Mingo County Prosecuting Attorney.

Mr. Cline was

directed to tell the prosecutor to offer a plea agreement to Mr.
8

Woodruff requiring a six-month term of incarceration on the
assault and battery charge.

First time offenders on an offense of

that sort are typically offered the penalties of a nominal fine
and the payment of court costs.

The plea agreement offer was

refused by Mr. Woodruff and his lawyer.

On October 31, 2012, just

a few days before the scheduled trial, the case was dismissed.
Mr. Woodruff was only recently made aware of the conspiratorial
activities directed against him.

The conspiracy was concealed

until uncovered by federal law enforcement agents on a date
unknown.
On September 30, 2013, Mr. Woodruff instituted this
action.

The January 31, 2014, first amended complaint alleges in

Count One a claim pursuant to 42 U.S.C. § 1983 against Mr.
Thornsbury, Mr. Fletcher, Officer Glanden, and Trooper Moore for
deprivation of his due process rights, malicious prosecution and
false imprisonment arising out of the criminal proceedings
relating to the bits and the assault and battery.

The attempt to

plant cocaine under Mr. Woodruff’s truck is also mentioned.
Count Two asserts a conspiracy to pursue a malicious
prosecution under state law arising out of the criminal
proceedings relating to the bits and the plan to plant cocaine
under Mr. Woodruff’s truck.

The claim is pled pursuant to West

Virginia Code section 55-7-9, which creates a civil claim for the
9

violation of any West Virginia statute.

The predicate statutory

violation is said to be the criminal conspiracy to falsely impute
criminal liability to Mr. Woodruff.
Count Three alleges a claim for gross negligence arising
out of the entire factual predicate pled and summarized earlier.
Mr. Woodruff asserts that Mr. Thornsbury was obliged to adhere to
the Code of Judicial Conduct and was negligent in attempting to
produce a sexual liaison with Ms. Woodruff.

He asserts that

negligent act proximately caused the unlawful activities
thereafter directed toward Mr. Woodruff.
Count Four alleges a gross negligence claim against Mr.
Fletcher.

Mr. Fletcher is alleged to have negligently failed to

recognize his statutory ineligibility to serve as a grand jury
foreman in light of the Mingo County Commission appointed office
that he held at the time.
Count Five alleges negligent infliction of emotional
distress against all of the defendants without significant
elaboration.

Similarly, Count Six asserts a claim for intentional

infliction of emotional distress arising out of the events that
led to Mr. Woodruff’s incarceration and prosecution.

So, too,

Count Seven pleads a false imprisonment claim resulting from Mr.
Woodruff’s incarceration on the trumped-up charges.

10

Count Eight accuses recently added party Michael Sparks
of negligence.
County.

Mr. Sparks is the former prosecutor of Mingo

The first amended complaint alleges that he knew of Mr.

Thornsbury’s intentions respecting Ms. Woodruff, and the influence
the then-Judge exercised over Trooper Moore, but nevertheless
negligently and recklessly pursued the charges relating to the
bits.

Mr. Woodruff asserts that Mr. Sparks failed to diligently

investigate the allegations against Mr. Woodruff and then, in
December 2008, simply disqualified himself from the proceedings.
He is alleged to have done so in order to distance himself from
the false charges.

It is further alleged that Mr. Sparks (1) knew

that Mr. Fletcher was improperly appointed to serve as the grand
jury foreperson, (2) negligently allowed the grand jury to
continue its investigation of Mr. Woodruff, and (3) knew of Mr.
Fletcher’s friendship and business association with Mr.
Thornsbury.
Mr. Woodruff.

Count Nine claims Mr. Sparks maliciously prosecuted
The supporting allegations are essentially along

the same lines as those pled in Count Eight.
Mr. Woodruff seeks compensatory and punitive damages.
Neither Colonel Smithers nor Administrator Canterbury is mentioned
in the factual allegations of the first amended complaint.

As

noted, Colonel Smithers, Administrator Canterbury, Trooper Moore,
Officer Glanden, Mr. Thornsbury, and Mr. Sparks move to dismiss.

11

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).
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).

12

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).

B.

Colonel Smithers and Administrator Canterbury

Counts Five, Six, and Seven are alleged against all
“Defendants” generally.

For example, the Count Five negligent

infliction of emotional distress claim states as follows:
78. All Defendants’ actions were grossly negligent in
that they failed to think through the logical
consequences of their respective actions.
79. As a result of the Defendants’ gross negligence,
plaintiff Woodruff suffered extreme depression, anxiety,
and thoughts of suicide.
(First Am. Compl. ¶¶ 78-79).

In seeking dismissal, Colonel

Smithers notes (1) the absence of any well-pled factual
allegations against him to support these three claims, (2) the
only claims pled against him are in his official capacity and
13

hence barred by the Eleventh Amendment, and that (3) Mr. Woodruff
cannot prevail on an individual capacity claim based upon his
inability to demonstrate the elements for supervisory liability
found in Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir 1994).
The grounds relied upon by Administrator Canterbury are
similar.

He asserts that (1) the Eleventh Amendment bars the

claims pled against him, (2) respondeat superior provides no basis
for liability under Section 1983, (3) Mr. Thornsbury’s actions
were outside the scope of his employment, and (4) Administrator
Canterbury was not his employer, and thus respondeat superior is
unavailable.
Respecting the Eleventh Amendment immunity defense, Mr.
Woodruff’s response confirms that “Col[onel] Smithers has been
sued in his official capacity as Commander of the West Virginia
State Police . . . .”

(Resp. at 1).

The same is true respecting

his response to Administrator Canterbury’s motion.

(Resp. at 3

(“Mr. Canterbury has been sued in his official capacity as
Administrator of the West Virginia Supreme Court of Appeals”)).2

2

Mr. Woodruff also appears to assert that West Virginia has
essentially waived Eleventh Amendment immunity by permitting
claims against it up to the limits of its insurance coverage.
That argument appears to be foreclosed by Westinghouse Elec. Corp.
v. West Virginia Dept. of Highways, 845 F.2d 468, 471 (4th Cir.
1988).
14

First, it is well-settled that “neither a State nor its
officials acting in their official capacities are ‘persons' under
§ 1983.”
(1989).

Will v. Michigan Dep't of State Police, 491 U.S. 58, 71
For this reason, the Section 1983 claim does not lie

against either Colonel Smithers or Administrator Canterbury.
Second, the Eleventh Amendment states, “The Judicial
power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.”

The immunity protects unwilling

states from damage suits in federal court, along with their agents
and instrumentalities.

See Regents of the Univ. of Cal. v. Doe,

519 U.S. 425, 429 (1997); Will v. Michigan Dep't of State Police,
491 U.S. at 70–71; Edelman v. Jordan, 415 U.S. 651, 662–63 (1974);
Bland v. Roberts, 730 F.3d 368, 389-90 (4th Cir. 2013).
The official capacity suit against Colonel Smithers and
Administrator Canterbury is, “‘in effect, . . . against the
governmental entit[ies] employing’” them.

Nivens v. Gilchrist,

444 F.3d 237, 249 (4th Cir. 2006) (quoting Kentucky v. Graham, 473
U.S. 159, 166 (1985).

It is thus apparent that the Eleventh

Amendment bars the official capacity claims alleged against them.
It is, accordingly, ORDERED that Colonel Smithers’ and

15

Administrator Canterbury’s separate motions to dismiss be, and
they hereby are, granted.

C.

Trooper Moore

Trooper Moore offers many grounds for dismissal.
he asserts Mr. Woodruff’s claims are time barred.

First,

Second, he

asserts he is immune for any claims arising out of his grand jury
testimony.

Third, he contends that the Count Three malicious

prosecution claim and the Count Six tort of outrage claim fail the
Twombly plausibility test.

Fourth, he challenges the

applicability of West Virginia Code section 55-7-9.

Fifth, he

asserts that there is no basis for an official capacity claim
against him.

Sixth, he asserts that the Count Five claim for

negligent infliction of emotional distress is legally deficient.3

3

In his response, Mr. Woodruff disavows any intention to
name Trooper Moore in the Count Two claim for conspiracy to pursue
a malicious prosecution. He also notes that he has not alleged an
official capacity claim against Trooper Moore. The court thus
need not reach Trooper Moore’s underlying arguments on those two
points. Additionally, the applicability of West Virginia Code
section 55-7-9 is governed by a multifactor test. The parties
have not discussed how those factors bear on the circumstances of
this case or the alleged criminal activities at issue. The matter
awaits further factual and legal development.
16

1.

The Limitations Defense

Trooper Moore contends that Mr. Woodruff’s claims are
time barred.

All of the claims are subject to either a one- or

two-year limitations period.

As noted, however, Mr. Woodruff

specifically alleges that he was, until 2013, unaware of the
conspiracy outlined in the complaint.

He further alleges that the

defendants deliberately concealed the conspiracy from him.

The

court construes this allegation to give rise to an equitable
tolling argument.
The same tolling rules apply to both the section 1983
and state tort claims.

See Wallace v. Kato, 549 U.S. 384, 394

(2007) (“We have generally referred to state law for tolling
rules, just as we have for the length of statutes of
limitations.”); Wade v. Danek Medical, Inc., 182 F.3d 281, 289
(4th Cir. 1999) (stating “in any case in which a state statute of
limitations applies -- whether because it is ‘borrowed’ in a
federal question action or because it applies under Erie in a
diversity action -- the state's accompanying rule regarding
equitable tolling should also apply.”).
In syllabus point 5 of Dunn v. Rockwell, 225 W. Va. 43,
689 S.E.2d 255 (2009), the Supreme Court of Appeals of West

17

Virginia set forth the rubric governing limitations defenses.

The

analysis at step four is summarized below:
A five-step analysis should be applied to determine
whether a cause of action is time-barred. . . .
[Respecting the fourth step], if the plaintiff is not
entitled to the benefit of the discovery rule, then
determine whether the defendant fraudulently concealed
facts that prevented the plaintiff from discovering or
pursuing the cause of action. Whenever a plaintiff is
able to show that the defendant fraudulently concealed
facts which prevented the plaintiff from discovering or
pursuing the potential cause of action, the statute of
limitation is tolled. . . . Only the first step is
purely a question of law; the resolution of steps two
through five will generally involve questions of
material fact that will need to be resolved by the trier
of fact.
Id. (emphasis added).
The question posed at step four relating to fraudulent
concealment is not susceptible of resolution at the Rule 12(b)(6)
stage under the circumstances presented.

Trooper Moore is thus

not entitled to dismissal at this point on limitations grounds.

2. Grand Jury Testimony Immunity

Trooper Moore contends that he is entitled to immunity
for any claims arising out of his grand jury testimony.

The court

notes that very recent, binding federal precedent imposes the
immunity bar.

See Rehberg v. Paulk, 132 S. Ct. 1497, 1506 (2012)

(stating “a grand jury witness has absolute immunity from any §
18

1983 claim based on the witness' testimony. In addition, . . .
this rule may not be circumvented by claiming that a grand jury
witness conspired to present false testimony or by using evidence
of the witness' testimony to support any other § 1983 claim
concerning the initiation or maintenance of a prosecution.”).
State law does not appear to be to the contrary.

See Davis ex

rel. Davis v. Wallace, 211 W. Va. 264, 267, 565 S.E.2d 386, 389
(2002) (“Historically, in West Virginia and in other
jurisdictions, witnesses have been regarded as having an absolute
immunity regarding their testimony given during a trial.”).
Based upon the decisions in Paulk and Wallace, it is
ORDERED that Trooper Moore’s motion to dismiss be, and hereby is,
granted insofar as he is not liable under federal or state law for
any claims directly based upon his grand jury testimony.

3.

Count Five Negligent Infliction of Emotional Distress

Trooper Moore asserts that Mr. Woodruff has failed to
plead facts that would give rise to a claim for negligent
infliction of emotional distress.

Trooper Moore appears to assert

that a viable claim depends upon Mr. Woodruff suffering a personal
injury or witnessing someone closely related to him suffer the
same type of injury or death.

The principal case relied upon by

19

Trooper Moore, Heldreth v. Marrs, 188 W. Va. 481, 425 S.E.2d 157
(1992), is no longer a complete statement of the law in this area.
The supreme court of appeals has observed that “‘[a]n
individual may recover for negligent infliction of emotional
distress absent accompanying physical injury upon a showing of
facts sufficient to guarantee that the emotional damages claim is
not spurious.” Marlin v. Bill Rich Const., Inc., 198 W. Va. 635,
482 S.E.2d 620, 637 (1996) (citing Ricottilli v. Summersville
Memorial Hosp., 188 W. Va. 674, 425 S.E.2d 629 (1992)).

At the

same time, the West Virginia court has noted that “cases will
obviously be infrequent in which ‘mental disturbance,’ not so
severe as to cause physical harm, will clearly be a serious wrong
worthy of redress and sufficiently attested by the circumstances
of the case.” Id. (quoting Ricottilli, 425 S.E.2d at 635).
Mr. Woodruff pleads that he was targeted by a judicial
and law enforcement conspiracy, on multiple occasions, designed to
put him behind bars so that one of the principals could pursue a
romantic liaison with Mr. Woodruff’s spouse.

The conspiracy

involved multiple unlawful directives to law enforcement,
including Trooper Moore, the empanelment of a grand jury and
issuance of its process, an indictment, the arrest of Mr. Woodruff
and multiple other allegedly baseless efforts aimed to result in

20

his wrongful incarceration.

He has successfully pled a claim for

negligent infliction of emotional distress.

D.

Officer Glanden

Officer Glanden also urges a number of grounds for
dismissal.

Foremost is his asserted entitlement to qualified

immunity, the analysis of which may dispose of both the federal
and state claims alleged against him.
Officer Glanden asserts that he is alleged only to have
obeyed Mr. Thornsbury’s directive to obtain an arrest warrant
against Mr. Woodruff.

He notes that state circuit court judges

are vested with the authority to issue warrants and that Mr.
Thornsbury was essentially exercising that authority.

He further

notes as follows:
Plaintiff has not articulated any "facts" that establish
Defendant Glanden "conspired" with Defendant Thornsbury
in a "scheme" to unjustly arrest and cause
constitutional injury to Plaintiff. Plaintiff has
asserted no "facts" against Defendant Glanden
demonstrating that he maliciously and in bad faith
obtained an arrest warrant for Plaintiff and/or that he
maliciously and in bad faith arrested Plaintiff.
The factual averments articulated by Plaintiff
demonstrate nothing other than Defendant Glanden, a
Police Officer, acted in accordance with the order of a
Circuit Court Judge to arrest an individual for alleged
criminal act(s).
(Memo. in Supp. at 12).
21

Qualified immunity “shields government officials
performing discretionary functions from personal-capacity
liability for civil damages under § 1983, insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”

Ridpath v.

Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)
(internal quotation marks omitted).

The defense does not protect

government officials when they are “plainly incompetent or . . .
knowingly violate the law.”
(1986).

Malley v. Briggs, 475 U.S. 335, 341

It is instead “where the law is unsettled or murky,

[that] qualified immunity affords protection to [a government
official] who takes an action that is not clearly forbidden —even if the action is later deemed wrongful.”

Rogers v.

Pendleton, 249 F.3d 279, 286 (4th Cir. 2001) (internal quotation
marks omitted).

In sum, “Government officials are entitled to the

defense of qualified immunity unless a § 1983 claim satisfies the
following two-prong test: “‘1) the allegations underlying the
claim, if true, substantiate a violation of a federal statutory or
constitutional right; and (2) this violation was of a clearly
established right of which a reasonable person would have known.’”
Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th Cir. 2013)
(Ridpath, 447 F.3d at 306 (internal quotation marks omitted)).

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The material allegations against Officer Glanden are as
follows:
54. On or about January 25, 2012, plaintiff Woodruff was
involved in an altercation at a convenience store in or
about Gilbert, Mingo County, West Virginia. A police
report authored by a Gilbert police officer indicated
that two men started an altercation with plaintiff
Woodruff, and that one of the men pulled a gun on
plaintiff Woodruff.
55. Three eye witnesses to the altercation reported to
the police that the two men were the aggressors, and one
witness testified that he saw one of the men pull a gun
on plaintiff Woodruff. Police reviewed a video recording
of the altercation from the store’s security system and
confirmed that the two men were the aggressors.
56. Upon information and belief, and subject to
confirmation during discovery, approximately a month
after the altercation described in paragraph 55,
defendant Thornsbury instructed defendant Officer Nathan
Glanden of the Town of Gilbert Police Department, who
was not part of the original investigation into the
altercation described in paragraph 55, to obtain an
arrest warrant for plaintiff Woodruff on charges of
assault and battery. Defendant Glanden obtained the
arrest warrant on February 23, 2012, and arrested
plaintiff Woodruff.
(First Am. Compl. ¶ 54-56).

In his response to the motion to

dismiss, Mr. Woodruff offers the following factual assertions and
argument:
What is alleged is that Officer Glanden participated in
the conspiracy, and in factual support of that
allegation, Plaintiff pled that the officers who had
reviewed the security tapes concluded that it was the
two other individuals, and not Plaintiff, who were the
aggressors. From the fact that the arrest was utterly
frivolous, this Honorable Court may reasonably infer
that further discovery may well reveal that Officer
Glanden was part of a conspiracy falsely to arrest and
prosecute the Plaintiff in furtherance of Defendant
Thornsbury’s scheme or plan sexually to harass the
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Plaintiff’s wife in a number of different ways.
Most convincingly, inherent in the whole process of
obtaining a warrant is the act of swearing out a
complaint, which complaint must allege “facts” upon
which the magistrate can find probable cause. If,
indeed, the investigating officers concluded that the
Plaintiff was entirely innocent, where did Officer
Glanden get the information for his warrant? The obvious
inference is that Officer Glanden knowingly falsified
the sworn affidavit in support of warrant. Officer
Glanden had no personal knowledge from which he could
compose an affidavit, and the investigating officers
would never have sworn to facts contrary to what their
investigation had revealed. In any event, that is a
subject for further discovery, but as of now a
sufficient case has been made against Officer Glanden to
withstand a motion to dismiss. Willful, intentional,
knowing malicious actions on the part of a police
officer have no immunity!
(Resp. at 5).
Mr. Woodruff has not pointed the court to that portion
of the first amended complaint where Officer Glanden is
specifically accused of participating in the alleged conspiracy.
It is true that Officer Glanden’s investigating colleagues found
little support to charge Mr. Woodruff.

Mr. Woodruff, however,

does not connect the knowledge of those officers to the
information possessed by Officer Glanden when he pursued the
arrest warrant at the direction of then-Judge Thornsbury.
operative pleading actually contends otherwise.

The

(See First Am.

Compl. ¶ 56 (noting Officer Glanden “was not part of the original
investigation into the altercation described in paragraph 55”)).

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Mr. Woodruff has alleged nothing more than Officer
Glanden’s innocent compliance with a judicial directive to obtain
an arrest warrant.

That bare allegation does not give rise to a

state, much less a federal constitutional, claim.
The court, accordingly, ORDERS that Officer Glanden’s
motion to dismiss be, and hereby is, granted conditionally.

Mr.

Woodruff may, no later than May 23, 2014, attempt to amend the
operative pleading to allege further facts that would state a
plausible state or federal claim against Officer Glanden.

In the

absence of such an amendment, the motion to dismiss will be
formally granted.

E.

Mr. Sparks

Mr. Sparks urges that he is entitled to absolute
immunity for the claims alleged by Mr. Woodruff.

In his response,

Mr. Woodruff puts a fine point on the nature of those claims:
[T]he gravamen of Plaintiff’s claim against Defendant
Sparks arises from his administrative activities, namely
failing to do his ministerial duty to prevent the grand
jury process from being polluted by being controlled by
a foreperson unauthorized by law to serve as a
foreperson, and for failing to do his administrative
duty and require all grand jury subpoenas to be issued
through the prosecuting attorney’s office . . . .
(Resp. at 5).

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Based upon the time line found in the operative
pleading, the court need not at this time analyze the immunity
doctrine relied upon by Mr. Sparks.

On December 18, 2008, Mr.

Sparks disqualified himself from the matters relating to Mr.
Woodruff.

It was not until January 20, 2009, that Mr. Thornsbury

appointed Mr. Fletcher as the grand jury foreman, after which the
challenged subpoenas issued.

Inasmuch as Mr. Sparks had

disqualified himself from the proceedings relating to Mr. Woodruff
prior to the material events identified in the response to the
motion to dismiss, it is presently unclear whether there is a
basis for the claims alleged and the extent to which the doctrine
of absolute immunity might apply.
The court, accordingly, ORDERS that Mr. Spark’s motion
to dismiss be, and hereby is, granted conditionally.

Mr. Woodruff

may, no later than May 23, 2014, attempt to amend the operative
pleading to allege further facts that would state a plausible
state or federal claim against Mr. Sparks.

In the absence of such

an amendment, the motion to dismiss will be formally granted.

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III.

Based upon the foregoing discussion, it is ORDERED as
follows:
1.

That the motion to amend be, and hereby is, granted, and
that the first amended complaint be, and hereby is, filed
nunc pro tunc on January 31, 2014;

2.

That Mr. Thornsbury’s motion to dismiss be, and hereby is,
denied as moot;

3.

That Colonel Smithers’ and Administrator Canterbury’s
motions to dismiss be, and hereby are, granted;

4.

That Trooper Moore’s motion to dismiss be, and hereby is,
denied except to the extent that he is not liable under
federal or state law for any claims directly based upon
his grand jury testimony;

5.

That Officer Glanden’s and Mr. Sparks’ motions to dismiss
be, and hereby are, granted conditionally; and

6.

That Mr. Woodruff be, and hereby is, permitted no later
than May 23, 2014, to attempt to amend the operative pleading
to allege further facts that would give rise to plausible

27

state or federal claims against Officer Glanden and Mr.
Sparks.
The Clerk is directed to transmit copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
ENTER:

May 8, 2014

John T. Copenhaver, Jr.
United States District Judge

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