Kelly v. West Virginia Regional Jail Correctional Facility Authority et al

Filing 53

MEMORANDUM OPINION AND ORDER directing that the 16 MOTION to Dismiss and the 10 MOTION to Dismiss are denied as to Counts I and IV and granted as to Count II which is dismissed. Signed by Judge John T. Copenhaver, Jr. on 7/2/2019. (cc: attys; any unrepresented party, plaintiff) (lca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
FARRELL G. KELLY,
Plaintiffs,
v.

Civil Action No. 2:18-cv-01074

WEST VIRGINIA REGIONAL JAIL
AND CORRECTIONAL FACILITY
AUTHORITY; CORRECTIONAL
OFFICERS BARRETT; GRAHAM;
DILLARD; WOOD; MILLER;
CHANNELL; AND JOHN/JANE DOE,
Defendants.
MEMORANDUM OPINION AND ORDER

Pending is a motion to dismiss (ECF No. 10), filed
July 30, 2018 by defendant Correctional Officers Channel and
Miller, and a motion to dismiss (ECF No. 16), filed August 21,
2018 by defendant Correctional Officers Barrett, Dillard,
Graham, and Wood.

Those six correctional officers constitute

all of the identified individual defendants in this case.
I. Background

This is an excessive force case originally brought by
the plaintiff, Farrell G. Kelly (“Kelly”), in the Circuit Court
of Kanawha County, West Virginia.

Kelly filed his amended

complaint on April 20, 2018 and the defendants removed on June
22, 2018.
Kelly was a pre-trial detainee at Tygart Valley
Regional Jail, located in Belington, West Virginia, when he
claims the defendant correctional officers used excessive force
against him.

Amended Compl. ¶ 1.

The plaintiff was acquitted

by a jury of the offense for which he was being detained on or
around March 31, 2016 and released thereafter.

Id.

On or about March 24, 2016, Kelly, a pre-trial
detainee at the jail, claims the defendants told him to “cuff
up.”

Id. ¶ 13.

He asserts that he complied with the order and

his hands were handcuffed behind his back.

Id.

Once

handcuffed, the defendants allegedly “entered [Kelly’s] cell and
accosted [him] and used excessive force against [him] by, among
other things, slamming [him] into the ground and hitting and
kicking” him.

Id. ¶ 14.

According to the plaintiff, he was

“kicked in the face with such force that he chipped/damaged his
front teeth” and “suffered bruising, abrasions, and injury to
his back” from the use of excessive force by the defendants.
Id.

The plaintiff claims that “[a]t no time was [he] a threat

to the defendants and at no time did [he] threaten any of the
defendants.”

Id. ¶ 15.

Plaintiff adds that his injuries

required medical treatment that he was denied.
2

Id. at ¶ 17.

Plaintiff further alleges that the officers’ conduct was carried
out without just cause, was outrageous and intentional,
proximately caused him to suffer severe bodily injuries, and was
done to inflict unnecessary harm upon him when he posed no
threat or harm.

Id. ¶

21, 22.

Kelly asserts that the defendants’ conduct violated
West Virginia C.S.R. 95-1-15.9, which imposes a duty upon
employees to protect inmates from harm and to comply with the
use of force policy adopted by WVRJCFA.

Id. ¶ 15.

In addition,

the plaintiff claims the conduct alleged violated his Fourteenth
Amendment right to be free from excessive force.
As a result, Kelly filed this five-count action
consisting of Counts I, II, IV, V, and VI (there is no Count
III).

Counts V and VI are only against WVRJCFA, and Count VI

(vicarious liability) has been dismissed by prior order of the
court.1
At issue here are the remaining three counts that
charge the individual correctional officers as follows: Count I,
assault and battery; Count II, intentional infliction of
emotional distress/outrageous conduct; and Count IV, violation

Count V alleges reckless/gross negligence in supervision/training/hiring
against WVRJCFA.
1

3

of 42 U.S.C. § 1983.

The individual correctional officers now

seek to dismiss Counts I, II, and IV.
II. Discussion

A. Counts I and IV
In Count IV, Kelly alleges a Section 1983 claim
against the six individual defendant correctional officers,
Barrett, Graham, Dillard, Wood, Miller, and Channel, claiming
that the conduct alleged violated his constitutional rights
under the Fourteenth Amendment.

He also alleges state law

assault and battery in Count I.

The defendants move to dismiss

both counts on the basis of qualified immunity.
Qualified immunity shields a correctional officer from
allegations of constitutional violations and civil liability in
situations where the officer was engaged in acts which
constitute a discretionary function, were carried out “within
the scope of his authority,” and which “did not violate clearly
established laws of which a reasonable official would have
known.”

Syl. pt. 5, W. Virginia Reg'l Jail & Corr. Facility

Auth. v. A.B., 766 S.E.2d 751 (2014).

Qualified immunity does

not cover acts that are “fraudulent, malicious, or otherwise
oppressive.”

Id.

4

The Due Process Clause of the Fourteenth Amendment
“protects a pretrial detainee from the use of excessive force
that amounts to punishment.”
395 n.10 (1989).

Graham v. Connor, 490 U.S. 386,

To establish that an officer’s force was

excessive, a plaintiff must show “only that the force purposely
or knowingly used against him was objectively unreasonable.”
Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015).

[“I]n

determining whether the force used was objectively unreasonable,
a court considers evidence ‘from the perspective of a reasonable
officer on the scene.’”

Duff v. Potter, 665 Fed. Appx. 242, 244

(4th Cir. 2016).
To prove that an employee has violated a clearly
established right of the plaintiff, one must make a
“particularized showing” that a “reasonable official would
understand that what he is doing violated that right” or that
“in light of preexisting law the unlawfulness” of the act was
“apparent.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

“[T]he question of whether the constitutional or statutory right
was clearly established is one of law for the court.”
Hutchinson v. City of Huntington, 479 S.E.2d 649, 659 n.11 (W.
Va. 1996).
Kelly asserts that he was harassed, assaulted, and
battered when he was slammed to the ground, forcefully pinned
5

down by his head and neck, and kicked in the face by the
defendant correctional officers after they handcuffed his hands
behind his back.

He claims to have suffered bruising,

abrasions, injury to his back, and that he was kicked with such
force that his teeth were chipped and damaged.

Kelly further

asserts that the defendants denied him necessary medical
treatment, and that they used verbal threats of violence during
the course of the alleged events.

Plaintiff repeatedly alleges

that such acts were unwarranted, unnecessary and unjustified,
and rendered with excessive force.

He asserts that those acts

were done with the “intent to inflict unnecessary harm and
humiliation, embarrassment, [] and emotional distress.”

Amended

Compl. ¶ 26.
Kelly’s Fourteenth Amendment right, as a pre-trial
detainee awaiting trial, to be free from excessive force while
detained was violated as a result of the alleged actions of the
defendants.

Under the facts alleged, the defendants entered his

cell and forcefully beat and kicked the handcuffed plaintiff in
the face, inflicting severe bodily injury, at a time when he was
both successfully restrained and had neither threatened nor
posed a threat to the officers.

Because this conduct is alleged

to have been purposeful, excessive, and in violation of clearly
established rights of a pre-trial detainee such as plaintiff to

6

be free of such unwarranted attack and abuse, the defendant
correctional officers, who are charged with misconduct that went
far beyond their discretionary function, are not at this
juncture on this record entitled to qualified immunity.
Accordingly, dismissal of the Count I assault and battery claim
and the Count IV § 1983 claim as to defendants Barrett, Graham,
Dillard, Wood, Miller, and Channel is denied.
B. Count II
The plaintiff’s outrage/intentional and/or reckless
infliction of emotional distress claims (Count II) are emotional
damages claims which must be dismissed because they are
duplicative of the plaintiff’s assault and battery claims for
which he can recover damages resulting from emotional distress.
The West Virginia Supreme Court of Appeals “treats
claims for outrage and assault battery arising from the same
events duplicative.”

Searls v. W. Virginia Reg'l Jail, 2016 WL

4698547, at *4 (S.D. W. Va. 2016) (citing Criss v. Criss, S.E.2d
Syl. Pt. 4 (W. Va. 1987)) (“Because an action for assault and
battery allows for recovery of damages due to resulting
emotional distress, a claim for the tort of outrageous conduct
is duplicitous of a claim for assault and battery where both
claims arise from the same event.”).

Because the “law does not

permit a double satisfaction for a single injury,” the plaintiff
7

“may not recover damages twice for the same injury simply
because he has two legal theories.”

Harless v. First Nat'l

Bank, 289 S.E.2d 692, Syl. Pt. 7 (1982).
In Count I, plaintiff claims the defendant
correctional officers committed an assault and battery.

Under

that count Kelly may recover damages resulting from the
emotional distress caused by the intentional torts committed by
the defendant correctional officers.

Accordingly, plaintiff's

Count II claim for intentional infliction of emotional distress
or outrageous conduct is duplicative and is dismissed as to all
defendants.
III. Conclusion

For the reasons stated herein, it is ORDERED that the
motion to dismiss of defendant Correctional Officers Graham,
Barrett, Dillard, and Wood (ECF No. 16) and the motion to
dismiss of defendant Correctional Officers Channel and Miller
(ECF No. 10) be, and hereby are, denied as to Counts I and IV
and granted as to Count II, which is dismissed.

8

The Clerk is directed to transmit copies of this order
to all counsel of record, the plaintiff, and to any
unrepresented parties.
ENTER: July 2, 2019

9