Fisher et al v. Morrison et al
MEMORANDUM OPINION AND ORDER denying defendants' 3 MOTION to Dismiss; granting the City of Ravenswood's and the Ravenswood Police Department's 7 MOTION to Dismiss; the Court DISMISSES Plaintiffs' Complaint against Defendan t Ravenswood Police Department and DISMISSES Plaintiffs' intentional infliction of emotional distress claim and Plaintiffs' section 1983 claim against the City of Ravenswood. Signed by Judge Thomas E. Johnston on 9/8/2014. (cc: attys; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
ARGYLE D. FISHER, II, in his personal
capacity, and in his representative capacity
as the Executor for the Estate of MAXINE
CIVIL ACTION NO. 2:13-cv-31140
LANCE MORRISON, et al.,
MEMORANDUM OPINION AND ORDER
Pending are the motion to dismiss of Defendants Lance Morrison, Bernard Fox, the City
of Ravenswood (“the City”), and the Ravenswood Police Department (“RPD”) (collectively
“Defendants”) and the partial motion to dismiss of the City and RPD. For the reasons that
follow, the Defendants’ motion to dismiss [ECF 3] is DENIED and the City’s and RPD’s partial
motion to dismiss [ECF 7] is GRANTED.
On October 28, 2013, Plaintiffs 1 filed this civil action in the Circuit Court of Jackson
County, West Virginia. (ECF 1-1 at 15.) On December 4, 2013, Defendants removed this action
On August 11, 2014, the Court granted Plaintiffs’ motion to substitute Argyle D. Fisher in his representative
capacity into the place of Plaintiff Maxine Speece Fisher, deceased. (ECF 20.) Accordingly, the current Plaintiffs
in this civil action are Argyle D. Fisher, in his personal capacity, and Argyle D. Fisher in his representative capacity
as the Executor for the Estate of Maxine Speece Fisher.
on the basis of federal question jurisdiction because Plaintiffs have asserted claims pursuant to
42 U.S.C. § 1983. (ECF 1; ECF 1-3.)
Plaintiffs’ claims stem from the October 26, 2011, arrest of Maxine Speece Fisher, now
deceased, by defendant Chief Lance Morrison (“Morrison”) and Captain Bernard Fox
(“defendant Fox”), both of whom are members of the RPD. (ECF 1-1 at 15−17.) As relevant
here, Plaintiffs allege that defendants Morrison and Fox beat and wrongfully arrested Maxine
Speece Fisher and that their acts were in accordance with a custom approved by the City. (ECF
1-1 at 17−18.)
For purposes of the instant motion to dismiss, the Court takes as true the well-pleaded
factual allegations in Plaintiffs’ Complaint. In light of the City’s and RPD’s legal arguments in
support of their partial motion to dismiss, however, many of Plaintiffs’ factual allegations are of
limited significance to the Court’s consideration of the instant motion. Where necessary, the
relevant facts are addressed in the discussion below.
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Allegations “must be
simple, concise, and direct” and “[n]o technical form is required.” Fed. R. Civ. P. 8(d)(1). A
motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a civil complaint.
See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). “[I]t does not resolve
contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Republican Party of N. C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A C. Wright &
A. Miller, Federal Practice and Procedure § 1356 (1990)).
“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, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
court decides whether this standard is met by separating the legal conclusions from the factual
allegations, assuming the truth of only the factual allegations, and then determining whether
those allegations allow the court to reasonably infer that “the defendant is liable for the
misconduct alleged.” Id. A motion to dismiss will be granted if, “after accepting all wellpleaded allegations in the plaintiff’s complaint as true and drawing all reasonable factual
inferences from those facts in the plaintiff’s favor, it appears certain that the plaintiff cannot
prove any set of facts in support of his claim entitling him to relief.” Edwards, 178 F.3d at 244.
A. Defendants’ Motion to Dismiss
The pending “Motion to Dismiss and Answer” (ECF 3) appears to have been filed in state
court and was still pending at the time of removal. (ECF 1-1 at 2; ECF 1-1 at 5; ECF 3.) The
motion to dismiss consists of a single paragraph with no citation to legal authority. It argues that
Defendants “enjoy qualified immunity” and that the RPD is not a properly-named defendant.
Because the Court cannot meaningfully evaluate such sparse and conclusory arguments and,
moreover, because the motion is unaccompanied by a memorandum of law as required by Local
Rule of Civil Procedure 7.1(a)(2)(11), the Defendants’ motion [ECF 3] is DENIED.
B. The City’s and RPD’s Partial Motion to Dismiss
The City and RPD have also filed in this Court a partial motion to dismiss (ECF 7; ECF
8) accompanied by a memorandum of law. In this motion and memorandum, the RPD argues
that it is not an entity capable of being sued and the City argues that the Complaint fails to state a
claim upon which relief can be granted with respect to Plaintiffs’ intentional infliction of
emotional distress and section 1983 claims. Plaintiffs have filed a response, addressing some of
the arguments raised by the City and the RPD. The Court considers each argument in turn.
1. Proper Party
RPD argues that it is not a legal entity capable of being sued. Beyond a conclusory
assertion that the City and the RPD should not be awarded the dismissals they seek, Plaintiffs’
response is silent as to this argument.
Under West Virginia law, police departments are “subject to the authority, control and
discipline” of the municipalities that create them. W. Va. Code § 8–14–1. Accordingly, this
Court has previously held that under West Virginia law a city police department is not a separate
suable entity from the City but merely a subdivision of the City. Tofi v. Napier, 2:10-CV-01121,
2011 WL 3862118, at *4 (S.D. W. Va. Aug. 31, 2011) (concluding that the City of Charleston
Police Department is not a separate suable entity from the City of Charleston); see also Polk v.
Town of Sophia, 5:13-CV-14224, 2013 WL 6195727, at *4 (S.D. W. Va. Nov. 27, 2013)
(holding that the Sophia Police Department was not a separate entity capable of being sued
because it was an instrumentality or extension of the Town of Sophia and dismissing with
prejudice all counts against police department); Campbell v. Beckley Police Dep't, CIV.A.5:06CV-00659, 2007 WL 2318056, *2 (S.D. W. Va. Aug. 8, 2007) (adopting recommendations of
magistrate judge to grant Beckley Police Department’s motion to dismiss as to all claims because
it was not an entity capable of being sued).
For these reasons, the Court GRANTS the partial motion to dismiss [ECF 3] with respect
to the RPD and DISMISSES all counts contained in Plaintiffs’ Complaint against the RPD.
2. Intentional Infliction of Emotional Distress Claims Against the City
The City argues that Plaintiffs claim of intentional infliction of emotional distress against
the City should be dismissed because it is well-settled law in West Virginia that political
subdivisions such as the City are immune from liability for the intentional acts of employees
pursuant to W. Va. Code. 29-12A-4(c)(2). Again, beyond a conclusory assertion that the City
and the RPD should not be awarded the dismissals they seek, Plaintiff has not responded to this
As this Court has previously explained:
Generally, political subdivisions are immune from being sued in a
civil action for “injury, death, or loss to persons or property
allegedly caused by any act or omission of the political
subdivision.” W. Va. Code § 29–12A–4(b)(1). Subsection (c)
recognizes some instances where political subdivisions are liable:
“injury, death or loss to persons or property caused by the
negligent performance of acts by their employees while acting
within the scope of employment.” W. Va. Code § 29–12A–
4(c)(2). This subsection makes political subdivisions liable for
negligent acts, not intentional ones. Mallamo v. Town of
Rivesville, 197 W.Va. 616, 477 S.E.2d 525 at 533 (W. Va. 1996).
Thus, political subdivisions are not liable for intentional torts
committed by their employees.
Tofi v. Napier, 2:10-CV-01121, 2011 WL 3862118, at *3 (S.D. W. Va. Aug. 31, 2011).
Plaintiff asserts a claim of intentional infliction of emotional distress, which tort is an
intentional tort. Because the City is immune from intentional tort claims, Plaintiff has failed to
state a claim against the City on this count. Therefore, the partial motion to dismiss [ECF 3] is
GRANTED with respect to Plaintiffs’ intentional infliction of emotional distress count against
the City and such count is DISMISSED. See Buhro v. Dent, 5:13-CV-81, 2014 WL 460937, at
*6 (N.D. W. Va. Feb. 5, 2014) (dismissing intentional tort claims, including intentional infliction
of emotional distress, against the City of Wheeling because the city was immune from liability
for its employees’ intentional torts); Poe v. Town of Gilbert, W. Va., 2:11-CV-00645, 2012 WL
3853200, at *8 (S.D. W. Va. Sept. 5, 2012) (granting motion to dismiss claims that alleged
intentional torts, including the intentional infliction of emotional distress, against Town of
Gilbert); Mallamo v. Town of Rivesville, 477 S.E.2d 525, 533–34 (1996) (holding that the Town
of Rivesville could not be held vicariously liable for an alleged conspiracy by its police officers).
Section 1983 Claims Against the City
Finally, the City argues that Plaintiffs’ section 1983 claims fail set forth specific facts and
grounds for the liability of a political subdivision or government employer as required pursuant
to Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658 (1978). Plaintiffs respond
that the Complaint sufficiently alleges an informal or unofficial “custom” of “the proclivity and
tendency for violence, excessive force, abusiveness, and intemperance.” (ECF 14 at 4−5.)
“A municipality or other local government may be liable under [section 1983] if the
governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be
subjected’ to such deprivation.” Connick v. Thompson, ___ U.S. ___, 131 S.Ct. 1350, 1359
(quoting Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 692 (1978)). Under §
1983, local governments are responsible only for “their own illegal acts.”
Cincinnati, 475 U.S. 469, 479 (1986) (citing Monell, 436 U.S. at 665–683). They are not
vicariously liable under § 1983 for their employees’ actions. See id. at 691; Canton, 489 U.S. at
392; Board of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (collecting cases).
To prove a § 1983 claim against a municipality, a plaintiff must prove that “action
pursuant to official municipal policy” caused their injury. Monell, 436 U.S. at 691, 694. “To
state a cause of action against a municipality, a section 1983 Plaintiff must plead (1) the
existence of an official policy or custom; (2) that the policy or custom is fairly attributable to the
municipality; and (3) that the policy or custom proximately caused the deprivation of a
constitutional right.” Alexander v. City of Greensboro, 762 F. Supp. 2d 764, 781 (M.D.N.C.
2011) (quoting Pettiford v. City of Greensboro, 556 F. Supp. 2d 512, 530 (M.D.N.C. 2008)); see
Jordan ex. rel Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994). A “policy or custom for
which a municipality may be held liable can arise in four ways: (1) through an express policy,
such as a written ordinance or regulation; (2) through the decisions of a person with final
policymaking authority; (3) through an omission, such as a failure to properly train officers, that
manifests deliberate indifference to the rights of citizens; or (4) through a practice that is so
persistent and widespread as to constitute a custom or usage with the force of law.” Lytle v.
Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (internal quotation marks omitted) (citing Carter v.
Morris, 164 F.3d 215, 218 (4th Cir. 1999)).
Such customs may be attributed to a local
government if the duration and frequency of the practices rises to a level such that the governing
body may be deemed to have constructive knowledge that the practices have become customary
among its employees. Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987). “Constructive
knowledge may be evidenced by the fact that the practices have become so widespread and
flagrant that in the proper exercise of its official responsibilities the governing body should have
known of them.” Id.
Policy or custom may be shown in a number of ways, such as in “persistent practices of
municipal officials having the de facto force of law.” Milligan v. City of Newport News, 743
F.2d 227, 229 (4th Cir. 1984) (internal quotation marks omitted). “[L]ocal governments . . . may
be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though
such a custom has not received formal approval through the body’s official decisionmaking
channels.” Monell, 436 U.S. at 690–91.
Policy or custom may also “be inferred from continued inaction in the face of a known
history of widespread constitutional deprivations on the part of city employees.” Milligan, 743
F.2d at 229–30. Under narrow circumstances, policy may also be inferred “from the manifest
propensity of a general, known course of employee conduct to cause constitutional deprivations
to an identifiable group of persons having a special relationship to the state.” Id. at 230.
However, “a municipal policy or custom giving rise to § 1983 liability will not be inferred
merely from municipal inaction in the face of isolated constitutional deprivations by municipal
Here, Plaintiffs argue that they have alleged an informal or unofficial “custom” for “the
proclivity and tendency for violence, excessive force, abusiveness, and intemperance.” (ECF 14
at 4−5.) In support of their contention, Plaintiffs point to the following paragraphs from the
7. At all times relevant hereto, [the City] knew, or should have
known, of the proclivity and tendency for violence, excessive
force, abusiveness, and intemperance of Chief Lance Morrison;
Captain Bernard Fox; and the Ravenswood Police Department, in
general, nevertheless, permitted and authorized them to continue in
their capacities as police officers and law enforcement officers and
retained them as such, thereby ratifying their conduct punctuated
by routine unlawful use of their authority and abusiveness. [The
City] had both actual and constructive notice of the individual
tendencies toward intemperance, use of excessive force, and
violence of Chief Lance Morrison; Captain Bernard Fox; and the
Ravenswood Police Department, in general.
8. On or about October 26, 2011, Chief Lance Morrison and
Captain Bernard Fox under color and by virtue of their office and
official position, maliciously, unlawfully and without reasonable or
probable cause, and without permission, consent, or a warrant and
in the absence of exigent circumstances arrested and beat [Maxine
Speece Fisher], within the city limits of Ravenswood, West
9. Chief Lance Morrison and Captain Bernard Fox without
warrant or process, acted in concert to commit an unlawful act or
to commit a lawful act through unlawful means by engaging in an
overt act, to-wit: Bernard Fox accosted Maxine Speece Fisher on
her front porch; shouted and spit in her face; insulted the plaintiff
as to her familial relationship with the former police chief; and
invaded the plaintiff’s personal space.
Plaintiffs’ allegations do not satisfy the pleading standards as interpreted by Iqbal and
Twombly because they are alternately recitals of the applicable legal standard and conclusory
assertions. Even viewing these assertions in the light most favorable to Plaintiff, there are no
facts alleged that, taken as true, would plausibly demonstrate that the alleged custom of the
proclivity of violence existed, let alone that the City knew or should have known of it or that
such policy caused the deprivation of Plaintiffs’ rights.
In Poe v. Town of Gilbert, this Court found that a plaintiff had plausibly stated a
municipal liability claim by alleging facts that certain officers alleged to have violated the
plaintiff’s constitutional rights were acting in accordance with a policy or custom of the Town of
Gilbert. 2012 WL 3853200 at *6−7. This was so because the plaintiff alleged facts that the
Town knew that the officers in question had a longstanding history of physical violence toward
citizens, had received complaints regarding these officers’ conduct, and did not require training
or re-training of police officers known to engage in police misconduct. Id. at *7. The Court
concluded that these allegations (taken as true) plausibly demonstrated that the Town was on
either actual or constructive notice that a particular omission in its training program caused its
employees to violate citizens’ constitutional rights. Id. Here, in contrast, Plaintiffs simply make
the conclusory assertion that the City had actual or constructive knowledge of a custom of
“violence, excessive force, abusiveness, and intemperance.” 2
The Court further observes that elsewhere in the Complaint, in portions not relied upon by Plaintiffs in support of
their response, Plaintiffs have also asserted that defendants Morrison and Fox acted in accordance with this custom
during the disputed period of Maxine Speece Fisher’s arrests. (ECF 1-1 at 15 ¶¶ 13, 21, 25.) Again, however, in
those sections Plaintiffs have also not pled any facts in support of any such a custom. Rather, Plaintiffs simply make
the conclusory assertion that such a custom existed and that Morrison and Fox were “implementing, complying
with, executing, following, and fulfilling” that custom when they allegedly beat and arrested Maxine Speece Fisher.
Accordingly, the Court GRANTS the partial motion to dismiss [ECF 7] with respect to
Plaintiffs’ section 1983 claim against the City and that claim is DISMISSED.
4. Supplemental Jurisdiction
Although the Court finds that Plaintiffs’ only federal claim against the City must be
dismissed, the Court will continue to exercise supplemental jurisdiction over Plaintiffs’
remaining state claims against the City.
District courts “enjoy wide latitude in determining whether or not to retain jurisdiction
over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d
106, 110 (4th Cir. 1995). The Court may decline to exercise supplemental jurisdiction over a
claim for reasons listed in 28 U.S.C. § 1367(c). See Brookshire Bros. Holding, Inc. v. Dayco
Prods., Inc., 554 F.3d 595, 601–02 (5th Cir. 2009); see also Arrington v. City of Raleigh, 369 F.
App’x 420, 423 (4th Cir. 2010) (applying section 1367(c) factors in a review of a district court’s
decision to exercise jurisdiction in a removed action). Section 1367(c) provides that the district
court may decline to exercise supplemental jurisdiction if “(1) the claim raises a novel or
complex issue of State law, (2) the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction, (3) the district court has dismissed all
claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.”
In addition to these statutory considerations, other “factors that inform this discretionary
determination are convenience and fairness to the parties, the existence of any underlying issues
of federal policy, comity, and considerations of judicial economy.” Shanaghan, 58 F.3d at 110;
see also Arrington, 369 F. App’x at 423−24.
Here, although Plaintiffs’ section 1983 claims must be dismissed against the City,
Plaintiffs’ section 1983 claims against defendants Morrison and Fox remain pending. Moreover,
Plaintiffs’ remaining claims against the City generally flow from the same underlying
circumstances as these claims and the remaining claims do not raise particularly novel or
complex issues of West Virginia law.
Furthermore, the parties are currently engaging in
discovery, and discovery appears to be proceeding appropriately toward the discovery cutoff date
of September 15, 2014.
Although sensitive to concerns of comity, under these circumstances the Court finds that
none of the statutory factors provided in Section 1367(c) strongly counsel in favor of declining to
continue to exercise jurisdiction over Plaintiffs’ state law claims against the City. The interests of
judicial economy, convenience, and fairness to the parties are best served by the Court exercising
jurisdiction. Cf. Harris v. Fort Bend Indep. Sch. Dist., CIV.A. H-07-635, 2007 WL 7238944, at
*3 (S.D. Tex. Aug. 14, 2007) (exercising supplemental jurisdiction over state-law claims against
defendants where a federal claim was still pending against another defendant after the granting of
a partial motion to dismiss).
For these reasons, the Court DENIES Defendants motion to dismiss [ECF 3] and
GRANTS the City of Ravenswood’s and the Ravenswood Police Department’s partial motion to
dismiss [ECF 7]. Therefore, the Court DISMISSES Plaintiffs’ Complaint against Defendant
Ravenswood Police Department and DISMISSES Plaintiffs’ intentional infliction of emotional
distress claim and Plaintiffs’ section 1983 claim against the City of Ravenswood.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
Sept. 8, 2014
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