Tomashek v. Raleigh County Emergency Operating Center et al

Filing 63

MEMORANDUM OPINION AND ORDER granting in part and denying in part 15 MOTION to Dismiss; granting said motion as to Counts Eight, Ten, Fifteen, and Twenty, which are dismissed in their entirety; granting said motion in regards to Count Five, as to the West Virginia Regional Jail and Correctional Facility Authority and Southern Regional Jail and to the unnamed correctional officers in their official capacities, but denying as to the unnamed correctional officers in their individual capacities; granting in regards to Count Six as to the West Virginia Regional Jail and Correctional Facility Authority and Southern Regional Jail and Michael Francis and David Farmer in their official capacities, but denying as to Michael Franci s and David Farmer in their individual capacities; granting in regards to Count Seventeen as to the unnamed correctional officers in their official capacities, but denying as to the unnamed correctional officers in their individual capacities. Signed by Judge Joseph R. Goodwin on 1/22/2018. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
PHILIP J. TOMASHEK, II
v.

CIVIL ACTION NO. 2:17-cv-01904

RALEIGH COUNTY EMERGENCY
OPERATING CENTER, et al.,
MEMORANDUM OPINION AND ORDER
I.

Introduction
Pending before the court is Motion of West Virginia Regional Jail and

Correctional Facility Authority, David A. Farmer, Southern Regional Jail, Michael
Francis, and John Doe Correctional Officers to Dismiss [ECF No. 15]. The plaintiff
filed a response [ECF No. 24], and the defendants filed a reply [ECF No. 31]. This
matter is now ripe for adjudication. For the following reasons, the Motion is
GRANTED in part and DENIED in part.
II.

Factual Background
During the early morning of November 22, 2014, the plaintiff’s wife called 911

and requested that the dispatcher send an ambulance to transport the plaintiff,
Philip J. Thomashek, II, to the hospital because he “was exhibiting unusual
behavioral and mood changes and she feared he suffered an injury to his head or
inadvertent poisoning from the use of volatile automotive paint and cleaners in his
garage.” Not. Removal Ex. A Part 1, at ¶ 17 (“Am. Compl.”) [ECF No. 1-1]. A short

time later, the plaintiff’s wife called 911 again and canceled the request for medical
assistance, advising the dispatcher she was taking the plaintiff to the hospital herself.

Id. ¶ 18.
Despite the wife’s second call, the dispatcher dispatched two detectives, A.S.
Meadows and J.D. Johnson, to the plaintiff’s home. Id. ¶¶ 19–20. When they arrived,
the plaintiff was closing the driveway gate, and his wife and their daughters were in
the vehicle, already en route to take the plaintiff to the hospital. Id. ¶ 20. One of the
officers asked the plaintiff to get into his vehicle, and when he refused, the officer
grabbed him, “twisted his arm behind his back and painfully bent his fingers back.”

Id. ¶¶ 22–24. The other officer then tased and pepper sprayed him. Id. ¶ 25.
The plaintiff was arrested on two counts of assault of an officer and
obstructing. Id. ¶ 28. The plaintiff was later taken to the Southern Regional Jail
(“SRJ”) where he was accepted into custody by one or more correctional officers. Id. ¶
31. During his detention at SRJ, “he experienced severe chest pains, a racing heart,
and excruciating muscle pains.” Id. ¶¶ 31–32.“On one or more occasion[s] while
detained, he was unnecessarily restrained in a manner causing extreme pain,
discomfort, emotional distress, and fear.” Id. ¶ 31.
The plaintiff made multiple requests for medical care to the correctional
officers as well as other officials. Id. ¶ 32. The plaintiff’s wife also “called SRJ on
numerous occasions to stress her concern for his health and his need for immediate
medical care.” Id. The evening after he was arrested, the plaintiff was transported to
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the hospital. Id. ¶ 37. He was admitted there for ten days and diagnosed with
encephalopathy, acute liver injury, and acute rhabdomyolysis. Id. ¶ 38.
The assault and obstruction charges brought against the plaintiff were
eventually dropped. Id. ¶ 41. Thereafter, the plaintiff brought this civil action against
several parties. The defendants that are relevant to this motion include: the West
Virginia Regional Jail and Correctional Facility Authority (“WVRJCFA”), SRJ, David
A. Farmer, Michael Francis, and John Doe Correctional Officers, who are all sued in
both their individual and official capacities.
III.

Legal Standard

The defendants move for dismissal with prejudice pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
Mot. WVRJCFRA, Farmer, SRJ, Francis, & John Doe Corr. Officers Dismiss 1 (“Defs.’
Mot.”) [ECF No. 15].
The defendants attached one exhibit to their motion. Id. Ex A [ECF No. 15-1].
Under Federal Rule of Civil Procedure Rule 12(d), “[i]f, on a motion under Rule
12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56.” The
mere submission or service of extraneous materials, however, does not by itself
convert a motion to dismiss into a motion for summary judgment. Finley Lines Joint

Protective Bd. Unit 200 v. Norfolk S. Corp., 109 F.3d 993, 995–96 (4th Cir. 1997)
(citations omitted) (internal quotation marks omitted). Instead, a 12(b)(6) motion
3

supported by extraneous materials is only regarded as one for summary judgment if
the district court converts “the motion by indicating that it will not exclude from its
consideration of the motion the supporting extraneous materials.” Id. at 997. Thus, it
is within the court’s discretion to consider the matters outside of the pleadings, or
“wholly ignore[] such attachments and rel[y] exclusively on the complaint.” Covey v.

Assessor of Ohio Cnty., 777 F.3d 186, 193 n.7 (4th Cir. 2015). Here, the court declines
to consider the exhibit attached to the defendants’ motion. Therefore, the defendants’
motion will be regarded as one to dismiss.
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a
complaint or pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). A
pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This standard “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). When “faced with a
Rule 12(b)(6) motion to dismiss . . . courts must . . . accept all factual allegations in
the complaint as true.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007).
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, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). To achieve facial
4

plausibility, the plaintiff must plead facts allowing the court to draw the reasonable
inference that the defendant is liable, moving the claim beyond the realm of mere
possibility. Id. Mere “labels and conclusions” or “formulaic recitation[s] of the
elements of a cause of action” are insufficient. Twombly, 550 U.S. at 555.
IV.

Discussion
a. Unnamed Correctional Officers
The defendants argue that the plaintiff’s claims against unnamed John Doe

correctional officers must be dismissed because “[p]leading a claim against such
unnamed parties is in direct contravention to pleading standards.” Mem. Law Supp.
9 (“Defs.’ Mem.”) [ECF No. 16]. The defendants rely mainly on Price v. Marsh, No.
2:12-cv-05442, 2013 WL 5409811 (S.D. W. Va. Sept. 25, 2013). In Price, the plaintiff
asked the court for leave to amend his complaint in order to add the identity of
defendants who were previously unidentified. 2013 WL 5409811, at *2. The court
denied the plaintiff’s motion, finding that the plaintiff was not diligent in seeking
leave to amend. Id. at *3. The court went on to dismiss the counts against the
unnamed defendants, holding that judgment cannot be entered against an unnamed
party. Id. at *4–6.
As Judge Chambers explained in Sweat v. West Virginia, No. 3:16-5252, 2016
WL 7422678, at *3 (S.D. W. Va. Dec. 22, 2016), the holding in Price is not applicable
in cases that are “still in the beginning stages with time for [p]laintiffs to discover”

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who the unnamed defendants are. “This Court allows John Doe defendants if the
names can be found in discovery and complaints are timely amended.” Id.
Here, the plaintiff has explained that he has “had little way of discovering
exactly what correctional officers were responsible for” the actions at issue in his
complaint. Philip J. Tomashek II’s Omnibus Resp. Opp’n to Defs.’ Mots. Summ. J.
(“Pl.’s Resp.”) 8 [ECF No. 24]. The plaintiff is entitled to the opportunity to discover
who these defendants are. If after adequate time the plaintiff fails to amend his
complaint, then dismissal may be proper. For now, however, dismissal is not
warranted based on the plaintiff’s failure to name specific correctional officers in his
complaint.
b. Sovereign Immunity
i. The WVRJCFA
The Eleventh Amendment provides that “[t]he 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.” U.S. Const. amend. XI. “The immunity
created by the Amendment protects both the State itself and its agencies, divisions,
departments, officials, and other ‘arms of the State.’” Holbrook v. West Virginia Reg’l

Jail & Corr. Facility Auth., No. 3:16-cv-3705, 2016 WL 7645588, at *7 (S.D. W. Va.
Dec. 6, 2016). “It is well established that the WVRJ[CF]A is an agency of the State of
West Virginia.” Cantley v. West Virginia Reg’l Jail & Corr. Facility Auth., 728 F.
6

Supp. 2d 803, 818 (S.D. W. Va. 2010). “Three narrow exceptions to Eleventh
Amendment immunity exist.” Holbrook, 2016 WL 7645588, at *8. None of these
exceptions, however, apply here. Therefore, WVRJCFA has Eleventh Amendment
sovereign immunity from all claims asserted both directly and indirectly against it in
this matter.
ii. SRJ
This court has previously held that SRJ
is not a legal entity. It is simply a “facility operated by the
[West Virginia Regional Jail and Correctional Facility
Authority] and used jointly by two or more counties for the
confinement, custody, supervision or control of adult
persons convicted of misdemeanors or awaiting trial or
awaiting transportation to a state correctional facility.” As
such, it is not an entity capable of being sued.

Edwards v. West Virginia, No. 2:00-cv-0775, 2002 WL 34364404, at *6 (S.D. W. Va.
Mar. 29, 2002) (citing W. Va. Code § 31–20–2(o)). The court has further explained
that even if SRJ was an entity capable of being sued, it would receive Eleventh
Amendment sovereign immunity. Id. Therefore, dismissal is warranted as to all
claims asserted both directly and indirectly against SRJ in this matter.
iii. Official Capacity Claims Against Individual Defendants
The plaintiff’s complaint states that he is “su[ing] all public employees in their
official and individual capacities.” Am Compl. ¶ 15. An individual defendant who is
employed by an arm of the state and “sued in his official capacity is also immune from
suit in federal court under the Eleventh Amendment.” Edwards, 2002 WL 34364404,
7

at *5. The unnamed correctional officers are employed by the state. Am. Compl. ¶ 14.
(“John Doe Correctional Officers . . . were at all times relevant hereto officers for the
SRJ.”). Francis and Farmer are also employed by the state. Id. ¶¶ 11, 13 (“David A.
Farmer . . . is and was . . . at all times relevant hereto, Executive Director of
WVRJCFA. . . . Michael Francis . . . is and was . . . at all times relevant hereto,
Administrator of SRJ.”).1 Therefore, dismissal is warranted as to all counts asserted
against Francis, Farmer, and the unnamed correctional officers in their official
capacities.
c. Count Six – Negligence
Count Six alleges that Francis and Farmer were negligent. Am. Compl. ¶¶ 84–
91. Francis and Farmer argue that they are entitled to qualified immunity for the
plaintiff’s negligence claims.2 Defs.’ Mem. 6–8.
The West Virginia Supreme Court has held that “an immunity standard for a
public official needs to encompass all types of public official liability, not just the

Moreover, state employees sued in their official capacity are not considered people subject to suit
under 42 U.S.C. § 1983. Edwards, 2002 WL 34364404, at *5. Therefore, notwithstanding their
Eleventh Amendment immunity, dismissal is also warranted as to the plaintiff’s 42 U.S.C. § 1983
claims against the state defendants in their official capacities.
1

The plaintiff argues that “these are questions for a fact-finder and certainly [are] not amenable to
decision on a Rule 12(b)(6) motion.” Pl.’s Resp. 7. The plaintiff is wrong. In Jarvis v. W. Va. State
Police, 711 S.E.2d 542, 551 (W. Va. 2010), the West Virginia Supreme Court had to determine whether
the lower court erred by not granting the defendants’ motion to dismiss based on the defendants’
invocation of qualified immunity regarding the plaintiff’s negligence claims. The court found that the
lower court erred by not granting the motion to dismiss and remanded the case for entry of an order
granting the defendants’ motion. Id. at 552. Thus, qualified immunity is appropriately considered on
a Rule 12(b)(6) motion, and the court must determine whether the defendants are entitled to it at this
stage.
2

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range of cases covered by Section 1983 suits.” Clark v. Dunn, 465 S.E.2d 374, 379 (W.
Va. 1995) (quoting State v. Chase Sec., Inc., 424 S.E.2d 591, 599 (W. Va. 1992)). Under
the doctrine of qualified immunity for a state law3 claim, “the discretionary actions
of government agencies, officials and employees performed in an official capacity are
shielded from civil liability so long as the actions do not violate a clearly established
law or constitutional duty.” West Virginia State Police v. Hughes, 796 S.E.2d 193,
198 (W. Va. 2017).
Here, the plaintiff alleges that Francis and Farmer were negligent by: (1)
failing to adequately investigate officers before hiring them; (2) failing to provide
appropriate training and enforce compliance therewith; (3) failing to provide
sufficient oversight and supervision; and (4) failing to develop policies to safeguard
the plaintiff and the public from injury due to the negligence of correctional officers.
Am. Compl. ¶ 86. These acts may involve discretionary governmental functions, in
which case the defendants may be entitled to qualified immunity. They may also,
however, “have merely been the result of omissions to act, a failure to decide or to
even be aware of the problem.” Wood v. Harshbarger, No. 3:13-21079, 2013 WL
5603243, at *11 (S.D. W. Va. Oct. 11, 2013) (quoting Hess v. West Virginia Div. of

Corr., 705 S.E.2d 125, 130 (W. Va. 2010)). The court lacks sufficient facts to determine
the nature of the governmental acts that give rise to these claims. Therefore, Francis

The parties seem to confuse federal qualified immunity which applies to 42 U.S.C. § 1983 claims,
and qualified immunity which applies to state law claims.
3

9

and Farmer are not entitled to qualified immunity at this time for the plaintiff’s
negligence claims.
d. Count Eight – Outrage
Count Eight alleges outrage against the unnamed correctional officers. Am.
Compl. ¶¶ 98–103. West Virginia recognizes a cause of action for outrage, which is
the equivalent of intentional infliction of emotional distress. Kerr v. Marshall Univ.

Bd. Governors, No. 2:14-cv-12333, 2015 WL 1405537, at *14 (S.D. W. Va. Mar. 26,
2015). In order to recover for outrage in West Virginia,
[i]t must be shown: (1) that the defendant’s conduct was
atrocious, intolerable, and so extreme and outrageous as to
exceed the bounds of decency; (2) that the defendant acted
with the intent to inflict emotional distress, or acted
recklessly when it was certain or substantially certain
emotional distress would result from his conduct; (3) that
the actions of the defendant caused the plaintiff to suffer
emotional distress; and (4) that the emotional distress
suffered by the plaintiff was so severe that no reasonable
person could be expected to endure it.

Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 425 (W. Va. 1998).
“Whether conduct may reasonably be considered outrageous is a legal
question, and whether conduct is in fact outrageous is a question for jury
determination.” Id. (citations omitted). Thus, the trial court first determines “whether
the defendant’s conduct may reasonably be regarded as so extreme and outrageous
as to constitute the intentional or reckless infliction of emotional distress.” Kerr, 2015
WL 1405537, at *14 (citations omitted). In order for conduct be considered
outrageous, it “must be ‘so outrageous in character, and so extreme in degree, as to
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go beyond all possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community.’” Id. (quoting Harless v. First Nat’l Bank

Fairmont, 289 S.E.2d 692, 705 (W. Va. 1982)). Cases involving the tort of outrage
illustrate that “is a difficult fact pattern to prove.” Id.
Here, the plaintiff alleges that the defendants acted outrageously by “accepting
custody of the [p]laintiff despite him being in clear need of medical attention
requir[ing] treatment by a physician, injuring the [p]laintiff while in the course of
holding him as a pre-trial detainee, denying him necessary medical care and refusing
to promptly present the [p]laintiff to the magistrate for arraignment.” Am. Compl. ¶
100. The plaintiff has not alleged any actions by the defendants that are “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious and utterly intolerable in a civilized
community.” Kerr, 2015 WL 1405537, at *14 (citations omitted). Therefore, dismissal
is warranted as to Count Eight.
e. Count Ten – Negligent Infliction of Emotional Distress
Count Ten alleges negligent infliction of emotional distress against the
unnamed correctional officers. Am. Compl. ¶¶ 109–13. “West Virginia currently
recognizes two types of negligent infliction of emotional distress: 1) emotional distress
based upon the fear of contracting a disease, and 2) emotional distress based upon
‘witnessing a person closely related to the plaintiff suffer critical injury or death.’”

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Wood, 2013 WL 5603243, at *9 (citations omitted). Neither type applies here. Thus,
dismissal is warranted as to Count Ten.
f. Count Fifteen – Excessive Force
Count Fifteen is a 42 U.S.C. § 1983 claim which alleges that the unnamed
correctional officers used excessive force against the plaintiff in violation of the
Fourteenth Amendment. Am. Compl. ¶¶ 148–61. The defendants argue that they are
entitled to qualified immunity. Defs.’ Mem. 13. At this stage, the defendants are
entitled to qualified immunity if the complaint fails to state facts that present a
plausible violation of the Fourteenth Amendment.
Under the doctrine of federal qualified immunity, “[g]overnmental officials
performing discretionary functions are shielded from liability for money damages so
long ‘as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Maciariello v. Sumner, 973
F.2d 295, 298 (4th Cir. 1992) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The Supreme Court has established a two-step sequence for determining whether a
government official is entitled to qualified immunity:
First, a court must decide whether the facts that a plaintiff
has alleged . . . make out a violation of a constitutional
right. . . . Second, if the plaintiff has satisfied this first step,
the court must decide whether the right at issue was
“clearly established” at the time of defendant’s alleged
misconduct.

12

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194,
201 (2001)). The answer to both questions must be in the affirmative in order for a
plaintiff to defeat dismissal on qualified immunity grounds.
“Under the first prong, a court must determine whether the facts as alleged,
taken in the light most favorable to plaintiff, demonstrate the violation of a
constitutional right.” Cline v. Auville, No. 1:09-0301, 2010 WL 1380140, at *3 (S.D.
W. Va. Mar. 30, 2010). It is well established that “the Due Process Clause [of the
Fourteenth Amendment] protects a pretrial detainee from the use of excessive force
that amounts to punishment.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015)
(quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). In this context,
“punishment” includes “actions taken with an ‘expressed intent to punish.’” Id.
(quoting Bell v. Wolfish, 441 U.S. 520, 538 (1979)). “[I]n the absence of an expressed
intent to punish, a pretrial detainee can nevertheless prevail by showing that the
actions are not ‘rationally related to a legitimate nonpunitive governmental purpose’
or that the actions ‘appear excessive in relation to that purpose.’” Id. (quoting Bell,
441 U.S. at 561).
When a pretrial detainee brings an excessive force claim, he must show “that
the force purposely or knowingly used against him was objectively unreasonable.”

Aliff v. West Virginia Reg’l Jail, No. 2:15-cv-13513, 2016 WL 5419444, at *6 (S.D. W.
Va. Sept. 26, 2016) (quoting Kingsley, 135 S. Ct. at 2473). The Supreme Court has

13

provided several factors for courts to consider when determining the reasonableness
of a correctional officer’s actions including:
the relationship between the need for the use of force and
the amount of force used; the extent of the plaintiff’s injury;
any effort made by the officer to temper or to limit the
amount of force; the severity of the security problem at
issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.

Kingsley, 135 S. Ct. at 2473 (citing Graham, 490 U.S. at 396).
Here, the plaintiff alleges that the defendants used excessive force in two ways
including: (1) accepting custody of him when he needed medical treatment, and (2)
“physically and brutally” restraining him. Am. Compl. ¶ 154. The court has no trouble
finding that merely accepting custody of the plaintiff cannot amount to “punishment”
for purposes of an excessive force claim. The plaintiff’s second allegation, i.e. that the
correctional officer defendants physically restrained him, also fails to state an
excessive force claim. “[T]he amended complaint does not detail the force that was
actually applied” to the plaintiff in any meaningful way. Aliff, 2016 WL 5419444, at
*6. The most that is offered is that “[o]n one or more occasion[s] while detained, he
was unnecessarily restrained in a manner causing extreme pain, discomfort,
emotional distress and fear.” Am. Compl. ¶ 31. The amended complaint does not even
say how the plaintiff was restrained. Nor has the plaintiff offered any facts regarding
when he was restrained, how many times he was restrained, why he was restrained,
how he was injured by the restraint, any effort made by the officers to temper or limit
the amount of force, or whether he was resisting. In sum, the plaintiff has failed to
14

offer any detail that would allow the court to gauge the reasonableness of the
correctional officer’s use of restraints.
Excessive force claims are “a highly contextual area of law that eschews per se
rules” and therefore “court[s] must have some knowledge of the circumstances
surrounding a given use of force—beyond the unadorned accusation that it was
excessive . . . in order to draw the inference that such use of force was constitutionally
unreasonable.” Aliff, 2016 WL 5419444, at *7. The plaintiff’s complaint fails to both
provide this context and state any facts showing a plausible claim that the defendants
violated the plaintiff’s Fourteenth Amendment rights. Therefore, the plaintiff failed
the first prong of the qualified immunity analysis, and the defendants are entitled to
qualified immunity as to the plaintiff’s claim in Count Fifteen.
g. Count Seventeen – Procedural Due Process
Count Seventeen is also a 42 U.S.C. § 1983 claim which alleges that the
unnamed correctional officers denied the plaintiff procedural due process in violation
of the Fourteenth Amendment by failing to bring the plaintiff before a magistrate for
an assessment of probable cause after he was arrested without a warrant. Am Compl.
¶¶ 175–186. “The Supreme Court has established that when a particular Amendment
provides an explicit textual source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.” Morris v.

United States, No. 12-2926, 2014 WL 1272104, at *8 (D. N.J. Mar. 27, 2014) (quoting
15

Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal quotation marks omitted).
Courts have extended the ruling to apply to procedural due process claims. Id.
The Supreme Court has previously held that the Fourth Amendment requires
“a post-arrest judicial determination of probable cause in cases of warrantless
arrests.” King v. Jones, 824 F.2d 324, (4th Cir. 1987) (citing Gerstein v. Pugh, 420
U.S. 103, 114 (1975)).
The plaintiff’s grievance in Count Seventeen is that the correctional officers
failed to bring him before a magistrate for an assessment of probable cause after he
was arrested without a warrant. This claim is really one for violation of his Fourth
Amendment right to a Gerstein hearing, not one for procedural due process under the
Fourteenth Amendment. Therefore, the court will treat the plaintiff’s claim in Count
Seventeen as one under the Fourth Amendment. See Souk v. City Mount Hope, No.
2:14-cv-26442, 2015 WL 5698509, at *6 (S.D. W. Va. Sept. 28, 2015). The plaintiff was
arrested sometime during the morning of November 22, 2014 and was not arraigned
until December 8, 2014. The court is aware that there are circumstances that
occurred between these periods that may have made the delay reasonable. Based on
the facts available at this time, however, dismissal is not warranted.
h. Count Twenty – Constitutional Violations
In Count Twenty, the plaintiff alleges “constitutional violations” against
Francis and Farmer. The court construes this claim to be one for supervisory liability.
This count is void of a single factual allegation regarding what Francis and Farmer
16

did that amounts to a constitutional violation. Instead, the pleading amounts to mere
“labels and conclusions.” Twombly, 550 U.S. at 545. It “tenders naked assertions
devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 575) (internal quotation marks omitted). Therefore, the dismissal of Count
Twenty is warranted.
V.

Conclusion
For the reasons stated herein, Motion of West Virginia Regional Jail and

Correctional Facility Authority, David A. Farmer, Southern Regional Jail, Michael
Francis, and John Doe Correctional Officers to Dismiss [ECF No. 15] is GRANTED
in part and DENIED in part. The motion is GRANTED as to Counts Eight, Ten,
Fifteen, and Twenty, which are dismissed in their entirety.
In regards to Count Five, the motion is GRANTED as to the West Virginia
Regional Jail and Correctional Facility Authority and Southern Regional Jail and to
the unnamed correctional officers in their official capacities, but DENIED as to the
unnamed correctional officers in their individual capacities.
In regards to Count Six, the motion is GRANTED as to the West Virginia
Regional Jail and Correctional Facility Authority and Southern Regional Jail and
Michael Francis and David Farmer in their official capacities, but DENIED as to
Michael Francis and David Farmer in their individual capacities.

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In regards to Count Seventeen, the motion is GRANTED as to the unnamed
correctional officers in their official capacities, but DENIED as to the unnamed
correctional officers in their individual capacities.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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January 22, 2017