Sleboda v. Puskas et al
Filing
32
MEMORANDUM OPINION AND ORDER granting plaintiff's 31 MOTION to Add Raymond Andrew Williams in his Capacity as Supervisor of George Michael Puskas II as Party Defendant; directing that the proposed second amended complaint be filed; granting 15 MOTION to Dismiss 5 First Amended Complaint conditionally as to Count Seven under the terms more fully set forth herein, and denied in all other respects; the stay earlier entered is continued, with the exception of effectuating the relief granted herein and with leave to Ms. Sleboda to serve the second amended complaint and the defendants permitted to respond thereto in accordance with the Federal Rules of Civil Procedure. Signed by Judge John T. Copenhaver, Jr. on 6/11/2014. (cc: attys; any unrepresented parties) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KATELYN GRACE SLEBODA,
Plaintiff,
Civil Action No. 2:13-30805
2:14-30805
v.
GEORGE MICHAEL PUSKAS, II,
individually and in his capacity
as a police officer for the
Town of Ripley, West Virginia,
RAYMOND ANDREW WILLIAMS, in his capacity
as a police officer for the
Town of Ripley, West Virginia,
THE TOWN OF RIPLEY POLICE DEPARTMENT and
RIPLEY YOUTH SOCCER CLUB
(a Soccer Association) and
SHERRI STAHLMAN, in her capacity as
Registrar and District Representative, and
CLYDE KENNY, in his capacity as
a Police Officer of and for
The Town of Ripley Police Department
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are plaintiff Katelyn Grace Sleboda’s motion
to amend the complaint and to add Officer Raymond Andrew
Williams as a party defendant, filed April 24, 2014, and
defendants Town of Ripley and Clyde Kenny’s motion to dismiss,
filed February 12, 2014, which ripened with Ms. Sleboda’s
response thereto on April 24, 2014, as permitted by the court.1
The court ORDERS that the motion to amend and to add
Officer Williams be, and hereby is, granted, with the style to
be amended as reflected above.
It is further ORDERED that the
proposed second amended complaint be, and hereby is, filed
today.
The factual discussion that follows is taken from the
second amended complaint.
Ms. Sleboda’s allegations must be
treated as entirely accurate at this stage of the case, in
accordance with the well-settled precedent attached to Rule
12(b)(6).
At the outset, the court notes that “a plaintiff need
not plead expressly the capacity in which he is suing a
defendant in order to state a cause of action under § 1983.”
Biggs v. Meadows, 66 F.3d 56, 60 (4th Cir. 1995).
When capacity
is not pled specifically, the court is obliged to “examine the
nature of the plaintiff's claims, the relief sought, and the
course of proceedings to determine whether a state official is
being sued in a personal capacity.”
1
Id. at 61.
The Town of Ripley Police Department named in the
style is not an entity subject to suit. The Clerk is directed
to amend the style to reflect the proper party defendant,
namely, the Town of Ripley.
2
Having analyzed the operative pleading, the court
concludes that Ms. Sleboda has pled both official and individual
capacity actions against the named officers.
While the style of
the action indicates official capacity claims are at issue, the
request for punitive damages suggests a judgment is sought as
well against the officers personally.
The analysis will proceed
on that basis.
I.
Ms. Sleboda is a West Virginia resident living in
Jackson County.
Defendant George Michael Puskas, II, formerly
employed as a law enforcement officer for the Town of Ripley, is
presently incarcerated at the Federal Correction Institution in
Yazoo City, Massachusetts.2
Officer Williams is a West Virginia
resident living in Jackson County.
officer with the Town of Ripley.
He is a law enforcement
Defendant Ripley Youth Soccer
Club (the “Club”) is an unincorporated association and a member
of The West Virginia Soccer Association.
Defendant Sheri
Stahlman served at relevant times as the Club Registrar and
2
Mr. Puskas is serving a one year and a day sentence of
incarceration following his guilty plea and conviction for
possessing child pornography in violation of 18 U.S.C. § 2252A
(a)(5)(B) and 2252A(b)(2). The offense conduct involved
pornographic images taken of Ms. Sleboda by Mr. Puskas.
3
District Representative.
in Jackson County.
the Club.
She is a West Virginia resident living
Mr. Puskas also served as a volunteer for
Defendant Clyde Kenny resides in West Virginia as
well, living in Jackson County and serving as a law enforcement
officer for the Town of Ripley.
Ms. Sleboda was born in April 1993.
approximately 11 years her senior.
Mr. Puskas is
At age 8, Ms. Sleboda began
playing soccer in a youth league in Jackson County.
It was
during this time that she became acquainted with Mr. Puskas, who
served as a Club coach.
Mr. Puskas groomed Ms. Sleboda over a
period of years when, after she reached age 12, he carried her
to a concession area following an injury she sustained in play
and placed her on the ground.
He told her that he loved her and
kissed her on the lips.
Following that incident, Mr. Puskas began aggressively
texting and calling Ms. Sleboda, purchased her various items,
including a Trac Phone to facilitate clandestine discussions
with her, and continued generally his grooming efforts.
Ms.
Sleboda alleges that this pattern of conduct was known or should
have been known by the Club.
Following her 14th birthday in 2007, Mr. Puskas
discussed the subject of intercourse with Ms. Sleboda.
4
His
contact with her at this time included transmitting nude
pictures of himself to her via electronic means and requesting
that she reciprocate.
She reluctantly did so.
He frequently
cautioned her not to disclose their contacts or they would both
be in trouble.
After June 2008, Mr. Puskas worked as a police officer
with The Town of Ripley.
When Ms. Sleboda was approximately 15
years old, Mr. Puskas began taking nude pictures of her with his
Department-issued camera.
Department-issued computer.
He then loaded the images onto his
He increased the time spent with
her as well, even visiting her in his police cruiser during the
early morning hours and asking her to meet him outside.
Prior to turning 16, Ms. Sleboda was told by Mr.
Puskas that they would engage in intercourse when she reached
that age.
Soon after she met that benchmark, he rented a hotel
room in Ripley and had intercourse with her.
He continued to
victimize her with picture taking, moviemaking, and sexual
intercourse at a variety of locations over the next two years.
During these events, he used his police cruiser and Departmentissued camera and computer.
He also at times handcuffed her to
the steering wheel during intercourse.
5
Mr. Puskas’ victimization of Ms. Sleboda progressed to
the point that he became more physically abusive of her during
their sexual encounters.
He forced sexual acts on her numerous
times, often threatening her with physical harm or death while
displaying his gun and Taser™.
He said he would do likewise if
he ever learned that she was involved sexually with another man.
During the period when Ms. Sleboda was in high school,
Mr. Puskas would drive his personal vehicle to the school and
take her with him to have sex before 8:00 a.m.
to stay with him all day.
a result.
He required her
Her attendance and grades suffered as
On one occasion, after she reached her 16th or 17th
birthday, he told her he would not be coming to the school
anymore.
He advised that the Chief of Police had questioned
him, stating that he knew about the school visits, that Mr.
Puskas was picking someone up there, and that he must cease or
face termination of his employment.
Following that incident, Mr. Puskas required Ms.
Sleboda to meet him at remote locations during the day for
purposes of sexual intercourse or picture taking.
When Ms.
Sleboda attempted to terminate the encounters, Mr. Puskas
verbally abused and intimidated her, threatening to kill or harm
her or kill himself.
6
When she was between 16 and 18 years old, Mr. Puskas
also required Ms. Sleboda to meet him numerous times while he
was on duty after school and during the evening hours.
The
encounters were sexual in nature and involved, at times, both
picture taking and moviemaking.
On many of these occasions Mr.
Puskas’ supervisor, Officer Williams, was present for at least
some part of the meeting.
Ms. Sleboda knew that Officer
Williams was aware of both the sexual acts and the picture
taking.
Following her 18th birthday, Ms. Sleboda left West
Virginia in an attempt to sever all ties to Mr. Puskas.
moved to a suburb of Roanoke, Virginia.
She
She took this step
after Mr. Puskas intimidated and harassed her during work hours
at a local Kroger in Ripley.
leave on one occasion.
The store manager asked him to
Prior to departing West Virginia, her
then-boyfriend reported Mr. Puskas’ stalking and harassing
behavior to Officer Williams.
No follow-up by law enforcement
occurred.
During one of two meetings between Officer Williams
and the boyfriend, the boyfriend was required to sign a
statement identifying harassing text messages.
It was also
during one of these two meetings that Officer Williams admitted
that Mr. Puskas and Ms. Sleboda had an ongoing sexual
7
relationship lasting approximately four years.
Officer Williams
additionally stated that Ms. Sleboda “was no good for” Mr.
Puskas and “that he should leave her alone.”
29).
(Sec. Am. Compl. ¶
He also told the boyfriend that both Ms. Sleboda and Mr.
Puskas “were getting something out of the relationship and that
he should back out of it.”
(Id.).
Officer Williams also
admitted to Ms. Sleboda’s boyfriend that he had seen pictures of
Ms. Sleboda, which the boyfriend concluded in context were
sexually suggestive or nude while she was a minor.
Officer Williams had an interaction with Ms. Sleboda
at approximately Thanksgiving time in 2011.
As paraphrased by
Ms. Sleboda, Officer Williams stated, “A pretty girl like you
should never get a ticket in Ripley. . . ,” which was
“communicated in a very sexually suggestive manner, predisposing
prior knowledge of the sexual exploitation of her by . . . [Mr.]
Puskas.”
(Id. ¶ 36).
Upon her arrival in Virginia in October 2011, Mr.
Puskas tracked her down.
her.
He traveled there and demanded to see
He threatened to kill her and the boyfriend and continued
to pressure her for sexual favors and photographs.
Following
the visit, the boyfriend phoned the Town of Ripley Police
Department again and sought protection.
8
Mr. Puskas continued throughout to threaten or
intimidate her via electronic means if she disclosed his
activities with her over the years.
On one occasion during the
Christmas season in 2011, when she was visiting her family, he
sent text messages during the early morning hours wanting to
meet with her.
He became enraged when she refused and told or
texted her that he knew where she was and that he would come get
her if she did not meet with him.
never hide from him.
He advised that she could
As a result, Ms. Sleboda and her boyfriend
immediately left West Virginia and fled again to Virginia.
In January 2013, after Ms. Sleboda had apparently
returned to Ripley and began working at City National Bank,
defendant Sherri Stahlman on at least two occasions visited the
Bank.
She began cursing at Ms. Sleboda and calling her obscene
names that related to the events with Mr. Puskas.
The situation with Ms. Stahlman culminated in Ms.
Sleboda contacting the United States Attorney’s Office.
That
Office reached out to the West Virginia State Police, which then
undertook efforts to halt Ms. Stahlman’s harassment.
On May 22,
2013, City National Bank closed Ms. Stahlman’s accounts.
On December 3, 2013, Ms. Sleboda instituted this
action.
On December 9, 2013, the defendant Town of Ripley
9
Police Department was served with the complaint.
Later that
same week, and continuing through the afternoon of December 19,
2013, defendant Officer Clyde Kenny engaged in a pattern of
harassment directed at Ms. Sleboda.
On at least three separate
occasions while she was at a stop light he followed her, winked
at her,
waved her over to his cruiser.
II.
Count One of the second amended complaint alleges a
supervisory liability claim under 42 U.S.C. § 1983 against
Officer Williams.3
Count Two alleges unspecified intentional
tort and negligence claims against Mr. Puskas arising out of his
sexual and physical abuse of Ms. Sleboda.
Count Three rests on
an unspecified legal theory arising out of Mr. Puskas’
intimidation, harassment, control, and abuse of Ms. Sleboda.
Count Four asserts a respondeat superior claim against
Officer Williams arising out of Mr. Puskas’ misconduct.
Count
Five alleges a Section 1983 conspiracy between Officer Williams
and Mr. Puskas and includes additional language suggesting an
3
As noted, the claims alleged against Officer Williams
arise in both his individual and official capacities. While
Officer Williams has not been served, and has not moved to
dismiss, the official capacity claims against him would be, in
effect, claims against the Town of Ripley, which has so moved.
10
intention to hold Officer Williams liable for negligence.
Count
Six alleges a direct negligence claim, and one for respondeat
superior liability, against the Club arising out of Mr. Puskas’
misconduct at a time when he served as a coach and referee.
Count Seven is a single, substantive paragraph mentioning
Officer Kenny, but drawn such that the court cannot divine the
claim alleged.
As stated, the Town of Ripley and Officer Kenny move
to dismiss.4
First, the Town of Ripley contends that Count One
neither contains a sufficient factual predicate nor identifies a
constitutional injury.
Second, it asserts immunity from
liability respecting Counts Four and Five pursuant to the
Governmental Tort Claims and Insurance Reform Act, West Virginia
Code §§ 29–12A–1, et seq.
Third, Officer Kenny contends that
Count Seven does not give rise to a claim for relief or state a
constitutional injury.
4
The motion to dismiss was originally directed toward the
first amended complaint. Inasmuch as the court has now
authorized the filing of a second amended complaint, the motion
to dismiss will be addressed as it relates to that superseding,
operative pleading.
As noted, the individual capacity claims alleged against
Officer Williams implicate the Town of Ripley as well, to the
extent they are also pled against him in his official capacity.
Counts On
have been dually pled in this fashion, and
so are considered for dismissal purposes under the Town of
Ripley’s arguments mentioned above relating to Counts One
respectively.
11
Ms. Sleboda does not mention the Act.
Based upon
Counts Four and Five of the first amended complaint, however,
the Town of Ripley attributes to Ms. Sleboda an intention to
allege a respondeat superior claim against it based solely upon
the intentional actions of Mr. Puskas alone.
This reading of
the complaint may immunize the Town of Ripley, based upon this
excerpt from Mallamo v. Town of Rivesville, 197 W. Va 616, 477
S.E.2d 525 (1996), which notes the Act
provides that political subdivisions are liable for
injury or loss to persons “caused by the negligent
performance of acts by their employees while acting
within the scope of employment.” (emphasis added). In
that conspiracy is an intentional act, not a negligent
one, the Town of Rivesville would not be liable for
any intentional malfeasance on the part of Wilson.
Id. at 624, 477 S.E.2d at 533 (emphasis in original).
The Town of Ripley’s reading of the first amended
complaint, however, is an unduly narrow one respecting the
tortfeasor’s identity.
(See First Am. Compl. ¶ 63 (noting in
Count Four the Town of Ripley is “vicariously responsible for
the conduct of both Puskas and its Supervisor(s), all of which
said conduct proximately caused all manner of injuries . . . .”)
(emphasis added); id. ¶ 66 (noting in addition to Mr. Puskas’
intentional misconduct that liability under Count Five is based
upon “supervisory personnel inaction” in the face of the damage
caused to Ms. Sleboda).
12
Further, the supervisory allegations found in Counts
Four and Five of the second amended complaint are even more
precise than those in the predecessor pleading, naming Officer
Williams specifically and providing additional allegations
suggesting his liability in negligence rather than just the
intentional acts of Mr. Puskas.
(See Sec. Am. Compl. ¶¶ 62, 65
(respectively alleging Officer Williams’ “gross negligence” and
his failure to conduct “a reasonable investigation” of Mr.
Puskas’ activities).
Inasmuch as the Town of Ripley’s argument
unduly telescopes the allegations of the first amended
complaint, and disregards the revised allegations of the second
amended complaint, dismissal of Counts Four and Five is
inappropriate.
A discussion of the remaining two arguments for
dismissal follows.
III.
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.”
13
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).
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)).
14
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.
Analysis
Respecting the Count One supervisory liability claim,
our court of appeals has established the following three
elements of proof:
(1) that the supervisor had actual or constructive
knowledge that h[er] subordinate was engaged in
conduct that posed “a pervasive and unreasonable risk”
of constitutional injury to citizens like the
plaintiff;
(2) that the supervisor's response to that knowledge
was so inadequate as to show “deliberate indifference
to or tacit authorization of the alleged offensive
practices,”; and
(3) that there was an “affirmative causal link”
between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.
Wilkins v. Montgomery, No. 13–1579, --- F.3d ----, ----, 2014 WL
1759083 (4th Cir. May 5, 2014) (internal quotation marks
omitted) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.
1994)).
In Wilkins, the court of appeals elaborated upon each
of the foregoing proof requirements:
15
As to the first element, “[e]stablishing a ‘pervasive’
and ‘unreasonable’ risk of harm requires evidence that
the conduct is widespread, or at least has been used
on several different occasions and that the conduct
engaged in by the subordinate poses an unreasonable
risk of harm of constitutional injury.” As to the
second element, a plaintiff “may establish deliberate
indifference by demonstrating a supervisor's continued
inaction in the face of documented widespread abuses.”
Finally, as to the third element, “proof of causation
may be direct ... where the policy commands the injury
of which the plaintiff complains ... or may be
supplied by the tort principle that holds a person
liable for the natural consequences of his actions.”
Wilkins, No. 13–1579, --- F.3d at ----, 2014 WL 1759083.
The second amended complaint alleges that Officer
Williams knew that Mr. Puskas had been illegally exploiting a
minor sexually, along with engaging in stalking and harassing
behavior toward her.
It is further alleged that, despite that
knowledge, Officer Williams’ response was so inadequate as to
demonstrate deliberate indifference or tacit authorization.
Officer Williams’ inaction is further said to have caused the
constitutional injury, namely, continuing physical, mental and
emotional injuries, and economic harm.
The factual allegations supporting these elements
include reference to Officer Williams being present, during some
portion of the meetings, when Ms. Sleboda, between 16 and 18
years-old, was required by Mr. Puskas to engage in sexual
activities involving both picture taking and moviemaking.
16
She
further alleges that Officer Williams was aware of the sexual
acts and the picture taking.
Although other factual allegations
support the supervisory liability claim, these isolated
references are sufficient for Count One to withstand a Rule
12(b)(6) motion.
Respecting the allegations of Count Seven, as noted,
the single substantive paragraph mentioning Officer Kenny is
simply too opaque to assess.
In its present form, that portion
of the second amended complaint found under Count Seven is
deemed not well pled and insufficient to state a claim.
It is,
accordingly, ORDERED that the motion to dismiss as to Count
Seven be, and hereby is, granted conditionally.
Ms. Sleboda
may, no later than June 23, 2014, attempt to amend the operative
pleading to allege further facts that would state a plausible
state or federal claim against Officer Kenny.
In the absence of
such an amendment, the motion to dismiss as to Count Seven will
be formally granted.
17
IV.
Based upon the foregoing discussion, it is ORDERED as
follows:
1.
That the motion to amend and to add Officer Williams
be, and hereby is, granted, with the style to be
amended as reflected above;
2.
That the proposed second amended complaint be, and
hereby is, filed today;
3.
That the motion to dismiss be, and hereby is, granted
granted conditionally as to Count Seven under the
terms more fully set forth supra, and denied in all
other respects;
4.
That the stay earlier entered, be, and hereby is,
continued in effect, with the exception of
effectuating the relief granted herein and with leave
to Ms. Sleboda to serve the second amended complaint
and the defendants permitted to respond thereto in
accordance with the Federal Rules of Civil Procedure.
18
The Clerk is directed to transmit a copy of this
written opinion and order to all counsel of record and any
unrepresented parties.
ENTER:
June 11, 2014
John T. Copenhaver, Jr.
United States District Judge
19
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