Hupp et al v. Cook et al
MEMORANDUM OPINION AND ORDER granting the 22 MOTION to Amend; the Court ORDERS that the First Amended Complaint, (ECF No. 22-1), be FILED as the operative pleading in this matter; granting in part and denying in part the 8 Motion to Dismiss; Counts IV, VI, VII, and VIII of the First Amended Complaint are DISMISSED to the extent brought against the State Police and its officers in their official capacities; Count VI is further DISMISSED en toto; the Fourteenth Amendment "maliciou s prosecution" claim alleged in Count III is also DISMISSED; as a natural consequence of these findings, directing that the State Police be removed as a party to this action. Signed by Judge Thomas E. Johnston on 8/7/2017. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
TIFFANIE HUPP, et al.,
CIVIL ACTION NO. 2:17-cv-00926
STATE TROOPER SETH COOK, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendants’ Motion to Dismiss, (ECF No. 8), and Plaintiffs’
Motion to Amend, (ECF No. 22). The Motion to Amend is GRANTED and the First Amended
Complaint will be filed as the operative pleading in this matter. With the consent of the parties,
the Court treats the Motion to Dismiss as challenging the sufficiency of the First Amended
Complaint. For the reasons set forth below, the Motion to Dismiss is GRANTED IN PART and
DENIED IN PART.
The following facts are drawn from the First Amended Complaint.1 For purposes of the
Motion to Dismiss, they will be regarded as true.
Defendants’ directed their Motion to Dismiss to Plaintiff’s original Complaint. After the filing of the
Motion to Dismiss and well in advance of the deadline for amending the pleadings, Plaintiffs moved for
leave to amend. Plaintiffs’ First Amended Complaint makes minor alterations to more accurately reflect
Trooper Cook’s testimony at Plaintiff Tiffanie Hupp’s criminal trial. Defendants do not oppose the Motion
to Amend and Plaintiffs consent to have the Court treat the Motion to Dismiss as applying to the First
Amended Complaint. Mindful of the policy favoring liberal amendment of pleadings, Fed. R. Civ. P.
On May 9, 2015, Cliff Myers contacted the West Virginia State Police (State Police) from
his home in Waverly, West Virginia to report an altercation with a neighbor. Troopers Seth Cook
and S.S. Michael responded to the call.2 After conversing with the neighbors and confirming their
quarrel had subsided, Trooper Cook entered Myers’ front yard and began walking toward the
residence. Myers’ stepdaughter Tiffanie Hupp and her son, three-year-old Riley Hupp, were
playing in the front yard. Myer’s dog was also in the yard, restrained by a length of chain. The
dog began to bark at Trooper Cook’s approach. Though the dog had reached the end of its chain
and could not approach within two feet of the officer, Trooper Cook suddenly drew his firearm
and pointed the weapon at the dog’s head. He yelled to Tiffanie Hupp to control the animal.
Hupp ran toward the dog, exclaiming, “Don’t do that!” and placed her body between dog and
officer. Hupp alleges that Trooper Cook grabbed her, threw her to the ground, and placed her
under arrest. Hupp’s young son witnessed the entire episode. Trooper Cook then entered the
Myers residence and confiscated four electronic devices that had been used to record the conflict.
Hupp’s husband Ryan, for example, recorded the incident on his cellular phone. The State Police
retained possession of this and the three other devices for over one month before returning them.
West Virginia prosecutors charged Tiffanie Hupp with obstructing an officer, a
misdemeanor offense. On February 29, 2016, the case was tried to a jury in the magistrate court
of Wood County, West Virginia. Trooper Cook testified at the trial that he had felt threatened by
a crossbow observed at the Myers residence. He confirmed Hupp’s contention that she had used
her body as a shield to protect the dog, but claimed that he placed Hupp under arrest only after she
15(a)(2), the Court GRANTS the Motion to Amend. (ECF No. 22.)
Trooper S.S. Michael has not been named as a Defendant.
threatened or attempted to grab him. At the conclusion of testimony, the jury returned a verdict
of acquittal within an hour.
On January 25, 2017, Plaintiffs Cliff Myers, Tiffanie Hupp, and Riley Hupp filed suit in
this Court against Trooper Cook, Colonel C.R. “Jay” Smithers, and the State Police. The First
Amended Complaint consists of eleven counts,3 with the central claims arising under 42 U.S.C. §
1983. The claims are summarized as follows:
Count I: Unlawful arrest in violation of the Fourth and Fourteenth Amendments
(Tiffanie Hupp against Trooper Cook in his individual capacity);
Count II: Excessive force in violation of the Fourth and Fourteenth Amendments
(Tiffanie Hupp against Trooper Cook in his individual capacity);
Count III: Malicious prosecution in violation of the Fourth and Fourteenth
Amendments (Tiffanie Hupp against Trooper Cook in his individual capacity);
Count IV: State tort claim for malicious prosecution (Tiffanie Hupp against the
WVSP and Trooper Cook in his individual and official capacities);
Count V: Deliberate indifference and supervisory liability in violation of the Fourth
and Fourteenth Amendments (Tiffanie Hupp against Colonel Smithers in his
Count VI: State tort claim for negligent training, supervision, and retention
(Tiffanie Hupp against the State Police and Colonel Smithers in his individual and
Count VII: Intentional infliction of emotional distress (Tiffanie and Riley Hupp
against the State Police and Trooper Cook in his individual and official capacities);
Count VIII: Battery (Tiffanie Hupp against Trooper Cook in his individual and
Count IX: Unlawful search in violation of the Fourth and Fourteenth Amendments
(Clifford Myers against Trooper Cook in his individual capacity),
The Complaint originally contained a claim for slander against Trooper Cook. (Compl. Count IX.)
Plaintiffs abandoned this claim in the First Amended Complaint and the Court need not address Defendants’
arguments as they related to this claim.
Count X: Unlawful seizure in violation of the Fourth and Fourteenth Amendments
(Clifford Myers against Trooper Cook in his individual capacity), and
Count XI: Unlawful seizure in violation of the Fourth and Fourteenth Amendments
(Clifford Myers against Trooper Cook in his individual capacity).
Plaintiffs invoke the Court’s federal question jurisdiction over the § 1983 claims alleged in Counts
I through III, V, and IX through XI. They ask the Court to exercise supplemental jurisdiction
over the remaining state-law based claims.
Defendants moved for partial dismissal on April 11, 2017. Having been fully briefed, the
motion is ready for disposition.
A motion to dismiss for failure to state a claim upon which relief may be granted tests the
legal sufficiency of a civil complaint. Fed. R. Civ. P. 12(b)(6). In Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), the Supreme Court observed that a case should be dismissed for
failure to state a claim upon which relief can be granted if, viewing the well-pleaded factual
allegations in the complaint as true and in the light most favorable to the plaintiff, the complaint
does not contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Defendants move to dismiss all state-law tort claims against the State Police and Trooper
Cook and Colonel Smithers in their official capacities, arguing these claims are barred by Eleventh
The Eleventh Amendment traditionally “bars citizens from bringing suits in federal court
against their own states.” Bragg v. W. Va. Coal Ass’n, 248 F.3d 275, 291 (4th Cir. 2001).
Further, “[s]tate officials sued in their official capacities for retrospective money damages have
the same sovereign immunity accorded to the State.” Hutto v. S.C. Ret. Sys., 773 F.3d 536, 549
(4th Cir. 2014) (citations omitted). Here, Counts IV, VI, VII, and VIII allege state tort claims for
monetary damages against the State Police and its officers in their official capacities. Plaintiffs
admit that the state agencies and their officers are typically entitled to Eleventh Amendment
protection in these circumstances. The issue is whether the State Police waived that protection in
Eleventh Amendment immunity is waived where a State, having consented to suit for state
law claims in state court, removes a state lawsuit to federal court. Lapides v. Bd. of Regents, 535
U.S. 613 (2002); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985) (“[I]f a
State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not
bar the action.”).
Lapides recognized the need to avoid the “inconsistency, anomaly, and
unfairness” that results where a state defendant who has invoked federal jurisdiction is
Although there are other exceptions to Eleventh Amendment immunity, none are applicable here. See Dellmuth v.
Muth, 491 U.S. 223, 227 (1989) (recognizing Congress may abrogate the States’ Eleventh Amendment immunity by
clearly specifying its intention by statute); Ex Parte Young, 209 U.S. 123 (1908) (finding the Eleventh Amendment
does not preclude suits against state officers for injunctive relief)
subsequently permitted to challenge that jurisdiction. 535 U.S. at 621–22. Lapides has no
application in this case because Defendants did not remove the instant suit from state to federal
court. Plaintiffs sought the federal forum of their own accord. Still, Plaintiffs contend that
because the State Police often seeks removal of cases from state to federal court, “it cannot now
be heard to complain when a plaintiff chooses to save the time and trouble of removal and just
start the case there.” (Pls.’ Resp. to Mtn. to Dismiss at 5.) The gist of Plaintiffs’ argument is
that once a State voluntarily removes a case to federal court, it forfeits Eleventh Amendment
immunity not only as to that case but also as to all other cases going forward.
Plaintiffs’ argument, though inventive, lacks merit. A State waives immunity under the
Eleventh Amendment on a case-by-case basis. See Katz v. Regents of the Univ. of Cal., 229 F.3d
831, 834 (9th Cir. 2000). Where, as here, “a State’s federal-court participation is involuntary,”
Lapides, 535 U.S. at 622, the State retains the full protection of the Eleventh Amendment.
Stretching the holding in Lapides in the manner suggested by Plaintiffs—that is, to find waiver
whenever a State that has previously removed a case to federal court is later sued in the federal
forum—would eviscerate the Eleventh Amendment’s protections entirely. Sovereign immunity
therefore bars Plaintiffs’ state tort claims against the State Police as well as their claims against
Trooper Cook and Colonel Smithers in their official capacities. Counts IV, VI, and VII against
the State Police are dismissed. Counts IV, VI, VII, VIII are dismissed to the extent they seek
monetary damages from Trooper Cook or Colonel Smithers in their official capacities.
Qualified Immunity for Negligent Training, Supervision, and Retention Claim
Count VI alleges negligent training, supervision, and retention against the State Police and
Colonel Smithers in his individual and official capacities.
Only the claim against Colonel
Smithers in his individual capacity has survived the Eleventh Amendment challenge, and the Court
limits the following discussion accordingly. Defendants seek dismissal of this negligence claim
on grounds that state law immunizes public officers who commit negligence while performing
discretionary functions. Plaintiffs respond that immunity is no obstacle to recovery because
Tiffanie Hupp only seeks damages up to the limits of the applicable liability insurance policy.
The parties’ arguments implicate two distinct types of immunity available, at least
potentially, to State agencies and their employees. Plaintiffs’ arguments relate exclusively to
sovereign immunity, not qualified immunity. The State of West Virginia and its employees enjoy
a grant of sovereign immunity from Section 35, Article VI of the West Virginia Constitution,
which provides that “[t]he State of West Virginia shall never be made a defendant in any court of
law or equity.” The Supreme Court of Appeals of West Virginia recognized an exception where
a state agency has acquired liability insurance with legislative authorization and the plaintiff suing
the agency seeks recovery only “under and up to the limits” of the available insurance coverage.
Syl. Pt. 2, Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 310 S.E.2d 675 (W. Va. 1983).
Colonel Smithers cannot invoke sovereign immunity when sued in his individual capacity,
however, and Plaintiffs’ arguments are therefore irrelevant.
“Qualified immunity is ‘a different kind of limited immunity to the State and its law
enforcement officer for discretionary acts negligently committed within the scope of his
employment.’” Hess v. W. Va. Dep’t of Corr., 705 S.E.2d 125, 128 (W. Va. 2010) (quoting Clark
v. Dunn, 465 S.E.2d 374, 379 (W. Va. 1995)). In syllabus point six of Clark, the Supreme Court
of Appeals held:
In the absence of an insurance contract waiving the defense, the doctrine of
qualified or official immunity bars a claim of mere negligence against a State
agency not within the purview of the West Virginia Governmental Tort Claims and
Insurance Reform Act, W. Va. Code § 29–12A–1, et seq., and against an officer of
that department acting within the scope of his or her employment, with respect to
the discretionary judgments, decisions, and actions of the officer.
465 S.E.2d at 376. Based on Clark, the first question in determining whether qualified immunity
applies is “whether the relevant insurance policy waives the defense of qualified immunity.”
Hess, 705 S.E.2d at 130 (citation omitted). The Court concludes that it does not. The State
Police has provided its Certificate of Liability Insurance for the period during which the subject
events are alleged to have occurred. 5 The Certificate expressly provides that “the additional
insured [the State Police] does not waive any statutory or common law immunity conferred upon
it.” (Defs.’ Reply to Mot. to Dismiss Ex. B.); see Lavender v. W. Va. Reg’l Jail and Corr. Facility
Auth., Civil Action No. 3:06-1032, 2008 WL 313957, at *9 (S.D. W. Va. Feb. 4, 2008) (reviewing
identical liability insurance policy to conclude that there was no waiver of statutory or common
The Court also notes that the State Police is not subject to the West Virginia Governmental
Tort Claims and Insurance Reform Act (the Act). The Act makes political subdivisions statutorily
liable for damages “caused by the negligent performance of acts by their employees while acting
within the scope of employment.” W. Va. Code § 29-12A-4(b)(1); see § 29-12A-3 (defining
“political subdivision”). The State Police is a state agency, not a political subdivision. See Jarvis
The Court may consider documents attached to a motion to dismiss so long as they are “integral to and
explicitly relied on in the complaint and . . . the plaintiffs do not challenge [their] authenticity.” Am.
Chiropracic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (citation omitted). This
rule “prevent[s] parties from surviving a motion to dismiss by artful pleading or by failing to attach relevant
documents.” 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002) (citation omitted). The
State Police’s insurance policy, including the Certificate of Liability Insurance, is both integral to and
explicitly relied on in the First Amended Complaint. As Plaintiffs do not challenge the authenticity of
these documents, the Court finds it proper to consider them in ruling on the Motion to Dismiss.
v. W. Va. State Police, 711 S.E.2d 542, 551–52 (W. Va. 2010) (“[T]he West Virginia State Police
is a State Agency that is not within the purview of the [Act], and . . . the individual State Troopers
in this case are officers of that State agency.”).
Given the lack of waiver in the governing insurance contract, the next question is whether
employee training, supervision, and retention, as broadly alleged by Plaintiffs, qualify as
discretionary governmental functions.
Clearly, the answer is yes.
The Supreme Court of
Appeals has held that “the broad categories of training, supervision, and employee retention . . .
easily fall within the category of ‘discretionary’ governmental functions.” W. Va. Reg’l Jail and
Corr. Facility Auth. v. A.B., 766 S.E.2d 751, 773 (W. Va. 2014); see also Cochran v. W. Va. Reg’l
Jail and Corr. Facility Auth., Civil Action No. 3:13-10176, 2014 WL 2973486, at *7 (S.D.W. Va.
July 2, 2014) (supervision, training, and retention of employees involve discretionary duties).
Having found the judgments, decisions, and actions giving rise to Count VI are
discretionary in nature, the Court must determine whether Plaintiff has alleged that Colonel
Smithers violated a clearly established statutory or constitutional right with respect to his training,
supervision, or retention of Trooper Cook. A.B., 766 S.E.2d at 774 (reasoning that even if the
complained-of actions are discretionary in nature, an agency is not immune if the actions violate
“clearly established laws of which a reasonable official would have known”) (quoting Payne).
Plaintiffs neglect to allege how Colonel Smithers carried out his training, supervision, and
retention duties in a manner that conflicted with clearly established statutory or constitutional
rights or laws of which a reasonable person would have known. Nor do they identify any such
clearly established rights in their Response.
Thus, the Court finds that Colonel Smithers is entitled to qualified immunity over the
negligent training, supervision, and retention claim alleged in Count VI.
Count VI is
Motion to Dismiss § 1983 Claims Relying on the Fourteenth Amendment
Lastly, Defendants seek dismissal of all § 1983 claims to the extent those claims rely on
the Fourteenth Amendment as a source of substantive rights. As this Court has observed, “the
Court may not entertain a due process claim where [a plaintiff] allege[s] a Fourth Amendment
claim arising from the same abusive government conduct.” Spry v. West Virginia, No. 2:16-cv01785, 2017 WL 440733, at *6 (S.D. W. Va. Feb. 1, 2017) (citing Graham v. Connor, 490 U.S.
386, 394 (1989)). Plaintiffs clarify in response that except for Count III, they cite the Fourteenth
Amendment merely as the means to enforce the Fourth Amendment against the states.
Count III alleges a § 1983 action for malicious prosecution in violation of the Fourth and
Fourteenth Amendments. Plaintiffs claim that a distinct malicious prosecution claim lies under
the Fourteenth Amendment where the prosecution has suborned perjured testimony or
manufactured evidence at trial. In Castellano v. Fragozo, the lone case cited by Plaintiffs, the
Fifth Circuit held that “a state’s manufacturing of evidence and knowing use of that evidence along
with perjured testimony to obtain a wrongful conviction deprives a defendant of his long
recognized right to a fair trial secured by the Due Process Clause.” 352 F.3d 939, 942 (5th Cir.
While the Fifth Circuit recognizes a constitutional claim for malicious prosecution under
the Fourteenth Amendment, the Fourth Circuit does not. After noted the “embarrassing diversity
of judicial opinion” on the subject, the Fourth Circuit held in Lambert v. Williams that a malicious
prosecution claim under § 1983 is properly understood as a claim for unreasonable seizure that
arises exclusively under the Fourth Amendment, not the Fourteenth. 223 F.3d 257, 262 (4th Cir.
2000). The court held:
Our . . . precedent makes clear that there is no such thing as a §1983 malicious
prosecution claim. What we termed a ‘malicious prosecution’ claim in Brooks is
simply a claim founded on a Fourth Amendment seizure that incorporates elements
of the analogous common law tort of malicious prosecution—specifically, the
requirement that the prior proceeding terminate favorably to the plaintiff. It is not
an independent cause of action.
Id. (citing Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996)); see also Evans v.
Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (“A malicious prosecution claim under § 1983 is
properly understood as a Fourth Amendment claim for unreasonable seizure which incorporates
certain elements of the common law tort.”) (internal citations and quotations omitted).
This Court has historically followed Lambert’s guidance. Brodnik v. Lanham, No. CV
1:11-0178, 2016 WL 4087361, at *7 (S.D. W. Va. Aug. 1, 2016) (“[T]o the extent that plaintiff’s
complaint alleges a constitutional malicious prosecution claim under the . . . Fourteenth
Amendment, [that] claim [is] dismissed.”); Tofi v. Napier, No. 2:10-cv-01121, 2011 WL
3862118, at *3–4 (S.D. W. Va. Aug. 31, 2011) (applying Lambert). The Court will continue to
do so here. Fifth Circuit precedent does not bind this Court, and its persuasive value is negligible
where Fourth Circuit law speaks to the contrary. Accordingly, the Fourteenth Amendment
“malicious prosecution” claim alleged in Count III fails to state a claim upon which relief can be
granted. In that respect, the Court GRANTS the Motion to Dismiss Count III. Because the
remaining § 1983 claims do not allege substantive violations of the Fourteenth Amendment, the
Motion to Dismiss Counts I, II, V, IX, X, and XI is DENIED.
For the foregoing reasons, the Motion to Amend is GRANTED. (ECF No. 22.) The
Court ORDERS that the First Amended Complaint, (ECF No. 22-1), be FILED as the operative
pleading in this matter. The Motion to Dismiss is GRANTED IN PART and DENIED IN
PART. (ECF No. 8.) Counts IV, VI, VII, and VIII of the First Amended Complaint are
DISMISSED to the extent brought against the State Police and its officers in their official
capacities. Count VI is further DISMISSED en toto. The Fourteenth Amendment “malicious
prosecution” claim alleged in Count III is also DISMISSED. As a natural consequence of these
findings, the Court ORDERS that the State Police be removed as a party to this action.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
August 7, 2017
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