Ali v. Raleigh County, et al

Filing 217

MEMORANDUM OPINION AND ORDER: Granting in part and denying in part Defendants West Virginia State Police and Corporal Kenneth L. Pack's 38 MOTION to Dismiss; dismissing all the claims against the West Virginia State Police and Defendant Pack in his official capacity as an officer of the West Virginia State Police; directing that the motion be GRANTED as to Counts III, VI, and X, and that those counts be DISMISSED; ordering that the motion be DENIED otherwise; terminating as moot the Defendants' 41 MOTION to Stay Discovery Pending the Resolution of their Motion to Dismiss. Signed by Judge Irene C. Berger on 8/28/2018. (cc: attys; any unrepresented party) (btm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
MARQUEL ALI,
Plaintiff,
v.

CIVIL ACTION NO. 5:17-cv-03386

RALEIGH COUNTY, et al.
Defendants.

MEMORANDUM OPINION AND ORDER
The Court has reviewed the Defendants West Virginia State Police and Corporal Kenneth
Pack’s Motion to Dismiss (Document 38) and Memorandum in Support (Document 39), the
Plaintiff’s Response in Opposition (Document 43), and the Defendants’ Reply (Document 45).
The Court has also reviewed the Plaintiff’s Complaint (Document 1), Amended Complaint
(Document 23), and all attached exhibits. For the reasons stated herein, the Court finds that the
motion should be granted in part and denied in part.

FACTUAL ALLEGATIONS
The Plaintiff, Marquel Ali, initiated this action with a complaint filed in this Court on June
23, 2017. The Plaintiff originally named the following entities as Defendants: Raleigh County,
a municipal corporation organized under the laws of the State of West Virginia, Raleigh County
Sheriff’s Department (Sheriff’s Department), a law enforcement agency established, maintained,
and controlled by Raleigh County, the City of Beckley, a municipal corporation organized under
1

the laws of the State of West Virginia, Beckley Police Department (BPD), a law enforcement
agency established, maintained, and controlled by the City of Beckley, and the West Virginia State
Police (WVSP), a state law enforcement agency organized under the laws of the State of West
Virginia. Mr. Ali also named several individuals as Defendants, in both their individual and
official capacities: Mr. Steven Tanner, a resident of Raleigh County, West Virginia, and the Sheriff
of Raleigh County during the applicable time frame, Mr. Gary Epling, a resident of Raleigh
County, West Virginia, and a detective with the Raleigh County Sheriff’s Department, Mr.
Kenneth Pack, a resident of Raleigh County, West Virginia, and an officer with the WVSP, Mr.
David Snuffer, a resident of Raleigh County, West Virginia, and an officer with the BPD, and Mr.
Jason Redden, a citizen of Raleigh County, West Virginia, and, during the applicable time, a parole
officer with the West Virginia Department of Corrections.1 (Amended Compl. at ¶ ¶ 2-13.)2
The Plaintiff alleges that “all acts of the Defendants were done . . . under the color and pretense of
[the law] of the State of West Virginia and under the authority of the office” by which they were
employed. (Id. at ¶ 14.)
Mr. Ali, “an African American male with a dark complexion,” was hired by the Defendant
Raleigh County Sheriff’s Department as a deputy and began his employment on March 18, 2014.
(Id. at ¶ 1, 17.) The Sheriff’s Department requires all new hires to complete a probationary year

1 Subsequent to the time period in which most of the Plaintiff’s allegations took place, Mr. Redden became a deputy
with the Defendant Raleigh County Sheriff’s Department. The Plaintiff does not specifically allege when Mr. Redden
became a deputy sheriff.
2 On June 7, 2017, Mr. Ali filed a Motion for Leave to File Amended Complaint (Document 4). While that motion
was pending, the parties proceeded to brief the pending motions to dismiss. While those motions were being fully
briefed, this Court issued its Order (Document 22) granting the motion and ordering the Plaintiff’s amended complaint
to be filed. After the granting of this motion, the Defendants proceeded to fully brief their motions to dismiss the
original complaint. Because arguments presented by the parties in the motions to dismiss were not substantively
altered by the filing of the amended complaint, the Court applies those arguments to the Plaintiff’s amended complaint.

2

during which they receive on-the-job training and attend the West Virginia State Police Academy.
According to the Plaintiff, four other new deputies were hired at the same time as him, and one of
them was also an African American. The other African American had a “very light complexion,”
as alleged by Mr. Ali. (Id. at ¶ 19.) Mr. Ali alleges that he was, in fact, “the only African
American officer employed with the Defendant Sheriff’s Department who had a dark complexion.”
(Id. at ¶ 21.)
Mr. Ali alleges that, throughout his employment with the Defendant Sheriff’s Department,
he was frequently subjected to racial slurs and other inappropriate treatment. Defendant Tanner
would often call him “boy” or refer to him as a “thug,” other white officers would place bets on
whether he would make it through his training at the police academy, and he would often receive
write-ups while white officers “who engaged in the same activity were not issued any form of
reprimand or other discipline.” (Id. at ¶ 23-28.) On March 16, 2015, Mr. Ali was subjected to
an interrogation regarding allegations by someone he had arrested. A white officer was present
with Mr. Ali when he made the arrest but was not subjected to the same interrogation and
investigation. On the following day, “one day prior to the end of his one-year probationary
period,” Mr. Ali was terminated from his employment by Defendant Tanner. (Id. at ¶ 38.) Mr.
Ali appealed his termination to the Raleigh County Civil Service Commission and attended a
hearing on June 2, 2015. The parties were required to submit proposed findings of fact and
conclusions of law to the Commission by June 22, 2015.
On June 23, 2015, one day after the submission of those findings of fact, the Plaintiff’s
cousin contacted him and asked for a ride. The Plaintiff’s cousin was on parole at the time and
owned no vehicle, so the Plaintiff agreed to pick him up. Prior to picking up his cousin, Mr. Ali
3

received a phone call from a State Trooper regarding a case he had worked on while a deputy.
The trooper asked the Plaintiff if he was currently in Beckley. Mr. Ali stated that he was in
Beckley and proceeded to pick up his cousin some twenty minutes later. While in route to do so,
“[a]pproximately one-half mile from the residence . . . Plaintiff noticed several unmarked police
cars parked in a car wash parking lot.” (Id. at ¶ 53.) Mr. Ali proceeded to his cousin’s house
where, after waiting several minutes, his cousin placed a bag in the trunk and got in the car. The
two decided to go to Burger King, and when exiting the drive through with their food, the
Plaintiff’s car was “barricaded in by several unmarked police cars, including the cars Mr. Ali had
seen near the residence when he picked up his cousin.” (Id. at ¶ 61.) “The officers who were
involved in the traffic stop knew Mr. Ali and the vehicle he drove,” and also “knew that [Mr. Ali]
owned a personal firearm . . .” (Id. at ¶ 62.)
One of the officers approached Mr. Ali at gunpoint and asked him if he had a firearm.
Although Mr. Ali responded that he did not have a firearm in the car, he was forced to the ground
and handcuffed. After the Defendant officers had begun searching his car, Mr. Ali was asked to
sign a consent form, and signed it, although it “had been previously completed by Defendants
and/or agents of Defendants and was also incorrectly dated ‘6-22-2015.’” (Id. at ¶ 70.) After
signing the form, the Plaintiff saw Defendant Epling “approach the back of the car carrying a midto-large sized brown or manila color envelope/package.” (Id. at ¶ 73.) Upon completing the
search of the vehicle, the Defendants allegedly found illegal drugs in the trunk and a small amount
of marijuana on the Plaintiff’s cousin. Both the Plaintiff and his cousin were arrested. The
Plaintiff was charged with two counts of possession of a controlled substance with intent to deliver
and conspiracy to commit a felony. “After Mr. Ali was arrested, the State Trooper who had called
4

[him] less than an hour earlier to confirm [he] was in Beckley, arrived at the scene and transported
Mr. Ali to the Beckley State Police office, then to jail.” (Id. at ¶ 80.) According to Mr. Ali, the
Defendants conspired together to wrongfully and maliciously arrest and prosecute him in
retaliation for his intent to bring a discrimination lawsuit against Defendant Raleigh County
Sheriff’s Department and Defendant Tanner.
The Defendants interrogated Mr. Ali and his cousin and conducted a criminal investigation
of the charges, during which time the Defendants proactively “took steps to hide [] exculpatory
evidence from Mr. Ali for nearly two years.” (Id. at ¶ 100.) “Over the nearly two years
following Mr. Ali’s arrest, Defendants failed and/or refused to disclose or produce material
evidence related to Mr. Ali’s case despite repeated requests by Mr. Ali’s counsel.” (Id. at ¶ 103.)
The Defendants also made various false claims regarding why they pulled the Plaintiff over in the
Burger King parking lot. On February 13, 2017, Mr. Ali’s first criminal trial began in the Circuit
Court of Raleigh County, West Virginia. On February 15, after being informed that certain
individuals in court had been seen speaking with potential defense witnesses in the hallway, the
court declared a mistrial sua sponte. On May 22, 2017, a second criminal trial began on the same
charges. On May 26, 2017, after a four-day trial, the jury returned a defense verdict, finding Mr.
Ali not guilty on all charges. Not quite three months later, Mr. Ali filed this action.
Mr. Ali’s amended complaint sets forth eleven counts: Count I - Race Discrimination,
Count II - Color Discrimination, 3 Count III - Discrimination and Interference with Plaintiff’s
Right to Equal Benefit of the Law in Violation of 42 U.S.C. § 1981, Count IV - Warrantless Arrest
Pursuant to False Tip in Violation of 42 U.S.C. § 1983, Count V - Conspiracy to Interfere with

3 The Plaintiff asserts the first two causes of action only against the Raleigh County Sheriff’s Department and
Defendant Tanner, rendering those claims irrelevant to these Defendants and their motion to dismiss.

5

Constitutional Rights in Violation of 42 U.S.C. § 1985(3), Count VI - Neglect to Prevent
Conspiracy to Interfere with Plaintiff’s Rights, Count VII - False/Wrongful Arrest and Improper
Investigation and Prosecution in Violation of 42 U.S.C. § 1983, Count VIII - Abuse of Process,
Count IX - Malicious Prosecution, Count X - Negligent Infliction of Emotional Distress, and Count
XI - Outrage.
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of a complaint. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009);
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).

“[T]he legal sufficiency of a

complaint is measured by whether it meets the standard stated in Rule 8 [of the Federal Rules of
Civil Procedure] (providing general rules of pleading) . . . and Rule 12(b)(6) (requiring that a
complaint state a claim upon which relief can be granted.)” Id. Federal Rule of Civil Procedure
8(a)(2) requires that 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).
In reviewing a motion to dismiss under Rule 12(b)(6) for failure to state a claim, the Court
must “accept as true all of the factual allegations contained in the complaint.” Erikson v. Pardus,
551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual inferences from
those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.
1999). However, statements of bare legal conclusions “are not entitled to the assumption of
truth” and are insufficient to state a claim.

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

Furthermore, the Court need not “accept as true unwarranted inferences, unreasonable conclusions,
or arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
6

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice… [because courts] ‘are not bound to accept as true a legal conclusion couched as a
factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (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.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570.) In other words, this “plausibility standard requires a
plaintiff to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 570.) In
the complaint, a plaintiff must “articulate facts, when accepted as true, that ‘show’ that the plaintiff
has stated a claim entitling him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S.
at 557.) “Determining whether a complaint states [on its face] a plausible claim for relief [which
can survive a motion to dismiss] will ... be a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

DISCUSSION
The West Virginia State Police and Corporal Kenneth Pack move for dismissal of the
Plaintiff’s amended complaint on several grounds.
A.

Sovereign Immunity

The WVSP and Defendant Pack first argue that all the Plaintiff’s claims against the WVSP
specifically and Defendant Pack in his official capacity as an officer with the WVSP should be
dismissed based on the doctrine of sovereign immunity. The Defendants argue because the
WVSP is an agency of the State of West Virginia, any suit against it or against Defendant Pack in
7

his official capacity are suits against the state, and such suits are prohibited by the doctrine of
sovereign immunity pursuant to Will v. Michigan Department of State Police, 491 U.S. 58 (1989).
The Plaintiff concedes in his response in opposition that his Section 1983 claims against
the West Virginia State Police and Defendant Pack in his official capacity as a state police officer
are subject to dismissal on sovereign immunity grounds. He contends, however, that his state
claims against the Defendants that fall outside of the purview of Section 1983 are not barred by
sovereign immunity. According to Mr. Ali, the United States Supreme Court’s opinion in Will
only bars Section 1983 suits, but all other claims not brought pursuant to Section 1983 may
continue so long as he has pled sufficient facts to state a claim for which relief may be granted, a
standard he argues he has satisfied. Mr. Ali further argues that Will does not apply to Defendant
Pack in this instance. Although employed by the West Virginia State Police, Mr. Ali argues
Defendant Pack was working as a member of the Beckley/Raleigh County Drug and Violent Crime
Unit, rendering whatever sovereign immunity might normally apply to the West Virginia State
Police inapplicable here pursuant to West Virginia Code § 15-10-4(b). Thus, the Plaintiff argues
that Defendant Pack is not entitled to sovereign immunity under Will.
The Court finds that sovereign immunity is applicable to the Plaintiff’s claims against the
West Virginia State Police and Defendant Pack in his official capacity as a state trooper. As the
Plaintiff has conceded, his Section 1983 claims against the WVSP and Defendant Pack in his
official capacity are barred under sovereign immunity, and they must therefore be dismissed. The
Court further finds, however, that any remaining counts against the WVSP and Defendant Pack in
his official capacity must also be dismissed. “The Eleventh Amendment traditionally ‘bars
citizens from bringing suits in federal court against their own states.’” Hupp v. Cook, 2:17-CV8

00926, 2017 WL 3392780, at *3 (S.D.W. Va. Aug. 7, 2017) (Johnston, C.J.) (quoting Bragg v.
W.Va. Coal Ass’n., 248 F.3d 275. 291 (4th Cir. 2001)). This bar extends to “state officials sued
in their official capacities for retrospective money damages,” as they are considered arms of the
state.

Id.; see also, Will, 491 U.S. at 70-71.

“Where, as here, ‘a State’s federal-court

participation is involuntary’ . . . the State retains the full protection of the Eleventh Amendment.”
Hupp, 2017 WL 3392780 at *3. Thus, because the Plaintiff brought this action in federal court,
and because the Defendants have not waived their Eleventh Amendment right to sovereign
immunity, sovereign immunity is applicable here as to the West Virginia State Police and
Defendant Pack in his official capacity as an officer of the West Virginia State Police.
Moreover, the Plaintiff’s argument that Defendant Pack is not entitled to sovereign
immunity in his official capacity as a state trooper pursuant to West Virginia Code § 15-10-4(b) is
without merit.

According to West Virginia law,
[w]hile temporarily assigned to work with another law-enforcement
agency or agencies, criminal justice enforcement personnel and
other state and local law-enforcement officers shall have the same
jurisdiction, powers, privileges and immunities, including those
relating to the defense of civil actions, as such criminal justice
enforcement personnel would enjoy if actually employed by the
agency to which they are assigned, in addition to any
corresponding or varying jurisdiction, powers, privileges and
immunities conferred by virtue of their continued employment
with the assisting agency.

W. Va. Code § 15-10-4(b) (emphasis added). Mr. Ali relies on this statutory language providing
that the assisting officer with a temporary assignment “shall have the same jurisdiction, powers,
privileges and immunities as . . . the agency to which they are assigned” in arguing that Defendant
Pack as an officer with the West Virginia State Police assigned to the Drug and Violent Crime
Unit is not part of the state agency when acting as a member of the Drug and Violent Crime Unit.
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The Plaintiff ignores the end of the statutory language, however, which states that the
officer assigned to the cooperating unit has the same privileges and immunities as the unit to which
he is assigned “in addition to any corresponding or varying . . . privileges and immunities
conferred by virtue of [his] continued employment with the assisting agency.” Id. (emphasis
added). Here, because the officer in question is a trooper with the WVSP, the assisting agency
would be the WVSP, and the assisting officer assigned to the DVCU would retain the same
immunity he has as an officer with the WVSP. In other words, the WVSP does not lose its
immunity from Section 1983 suits as a state agency simply because one of its troopers works in
conjunction with another law enforcement agency, and neither does Defendant Pack as an officer
of the WVSP.
In sum, the Court finds that all the Plaintiff’s claims against the West Virginia State Police
and Defendant Pack in his official capacity as a state trooper should be dismissed.
B.

Qualified Immunity

Defendant Pack also argues that he is entitled to qualified immunity from the Plaintiff’s
claims. He asserts a general qualified immunity to all the Plaintiff’s claims and a qualified
immunity from the Plaintiff’s negligence claims in particular. Defendant Pack first asserts that
qualified immunity bars the Plaintiff’s claims in Counts VI and X wherein the Plaintiff alleges
negligent acts on Defendant Pack’s behalf. Relying on Clark v. Dunn, 465 S.E.2d 374 (W.Va.
1995), he argues that West Virginia law bars negligence claims against a state agency not within
the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act. Because
the West Virginia State Police is not subject to this act, Defendant Pack argues that the negligence
claims against him are barred by qualified immunity. Defendant Pack further argues that all the
10

remaining claims against him are barred by his qualified immunity because, in all the facts alleged
against him, he was attempting in good faith to carry out discretionary duties as an officer of the
West Virginia State Police. He asserts that the Plaintiff’s claims turn on his subjective intent and
are thus barred under the qualified immunity standard.
The Plaintiff counters that Defendant Pack is not entitled to qualified immunity. With
respect to the negligence claims specifically, Mr. Ali argues that he has sufficiently pled that
Defendant Pack’s acts, along with the acts of the other Defendants, were malicious in nature.
Thus, Mr. Ali contends that Clark v. Dunn does not apply, and Defendant Pack is not shielded
from his negligence claims. Mr. Ali further counters that qualified immunity does not shield
Defendant Pack from the remainder of the claims because he has sufficiently pled that Defendant
Pack did not act in good faith. He claims that he has asserted “numerous violations of his rights,
including . . . equal protection, freedom from discrimination and warrantless and false arrest,” and
that the facts he alleges establish a plausible claim that Defendant Pack, in working with the other
Defendants, did not act in good faith. (Pl.’s Resp. in Opp., at 12.)
“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.’” Hupp, 2017 WL 3392780 at *4. According to the West Virginia Supreme
Court of Appeals,
[i]n 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.
11

Syl. Pt. 6, Clark, 465 S.E.2d at 374; Syl. Pt. 7, Jarvis v. W. Virginia State Police, 711 S.E.2d 542,
544 (W.Va. 2010). Because the West Virginia State Police is not a political subdivision, but a
state agency and thus an arm of the State of West Virginia, “the State Police is not subject to the
West Virginia Governmental Tort Claims and Insurance Reform Act [].” Hupp, 2017 WL
3392780 at *5. Because Defendant Pack as a State Police officer is not subject to the West
Virginia Governmental Tort Claims and Insurance Reform Act, and because the Plaintiff’s claims
against him in Counts VI and X allege mere negligence, qualified immunity bars those claims and
they must be dismissed. See Sweat v. W. Virginia, No. CV 3:16-5252, 2016 WL 7422678, at *8
(S.D.W. Va. Dec. 22, 2016) (Chambers, J.) (“The doctrine of [of qualified immunity] protects all
government officials who exercise their discretion in fulfilling their duties . . . Negligence simply
is not sufficient for liability to be imposed under this standard.”) (emphasis in original).
As for the remaining counts not alleging negligence, the doctrine of qualified immunity
holds that “[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.’” Tomashek v. Raleigh Cty.
Emergency Operating Ctr., No. 2:17-CV-01904, 2018 WL 522420, at *3 (S.D.W. Va. Jan. 23,
2018) (Goodwin, J.) (quoting Maciariello v. Sumner, 973 F.3d 295, 298 (4th Cir. 1992)).
Defendants asserting a qualified immunity defense first bear the burden of “demonstrating that the
conduct of which the plaintiff complains falls within the scope of the defendant’s duties.” In re
Allen, 106 F.3d 582, 594 (4th Cir. 1997) (internal quotation marks omitted.)
Officials are protected even if they make reasonable mistakes of fact or law, so long as they
do not violate a clearly established statutory or constitutional right. Pearson, 555 U.S. at 231–
12

32. Courts are advised to “ask first whether a constitutional violation occurred and second
whether the right violated was clearly established.” 4 Id. “A constitutional right is ‘clearly
established’ when its contours are sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013)
(internal quotation marks and citations omitted); Anderson v. Creighton, 483 U.S. 635, 640 (1987)
(“This is not to say that an official action is protected by qualified immunity unless the very action
in question has previously been held unlawful . . . but . . . that in the light of pre-existing law the
unlawfulness must be apparent.”).

The reasonableness analysis is objective.

Courts must

“examine[] only the actions at issue and measure[] them against what a reasonable police officer
would do under the circumstances,” but the inquiry “must be filtered through the lens of the
officer’s perceptions at the time of the incident.” Rowland v. Perry, 41 F.3d 167, 172-73 (4th
Cir. 1994). “[T]he officer's subjective state of mind is not relevant to the qualified immunity
inquiry but his perceptions of the objective facts of the incident in question are.” Id. at 173.
Accepting the allegations as true and drawing all reasonable inferences in the Plaintiff’s
favor, the Court finds that Defendant Pack has not shown that he is entitled to qualified immunity
on the remaining non-negligence claims. The Plaintiff asserts that Defendant Pack, in concert
with the other individual Defendants, participated in a warrantless arrest pursuant to a false tip, a
false or wrongful arrest and improper investigation, abuse of process, and malicious prosecution
in violation of Section 1983. He alleges that the Defendants sought to maliciously arrest and
prosecute him in retaliation for challenging his termination to the civil service commission and

4 “Courts are ‘permitted to exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at hand.’” Smith v.
Ray, 781 F.3d 95, 106, fn 3 (4th Cir. 2015) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

13

because he intended to sue the Raleigh County Defendants regarding his termination. He states
that his cousin was in the vehicle when the Defendants initiated the interaction in question, and
admits that his cousin was on parole and being monitored by an ankle bracelet. At some point
during the interaction, the Plaintiff claims the Defendants informed him they were looking for his
cousin in reference to a hold and commit order by his parole officer.
However, Mr. Ali also alleges that the Defendant knowingly worked in conjunction with
Defendant Redden to purposefully delay arresting the Plaintiff’s cousin until he was with the
Plaintiff, and that it was this delay that allowed the Defendants to ascertain the improper probable
cause to initiate the traffic stop of the Plaintiff.

In other words, the Plaintiff alleges that

Defendant Pack and the other Defendants worked with Defendant Redden as a parole officer to
stop the Plaintiff when they knew they had no other legitimate reasonable suspicion or probable
cause to stop and eventually arrest him. Mr. Ali further implies that the Defendants potentially
planted evidence in his car during the search and continued to take part in the conspiracy by
coordinating their testimony and assisting in the other Defendants’ failure to turn over exculpatory
evidence.
Accepting those allegations as true, the Plaintiff has appropriately stated causes of action
under Section 1983 for several constitutional violations. The requirement that law enforcement
officers have probable cause before making an arrest is a clearly established right.

While

Defendant Pack may have had sufficient probable cause to arrest the Plaintiff’s cousin, that
probable cause did not extend to the Plaintiff without the scheme that the Plaintiff alleges here.
Further, Mr. Ali alleges that Defendant Pack continued to be involved in the alleged improper
investigation and prosecution after the arrest. Conspiring together to initiate this scheme against
14

the Plaintiff in a malicious and retaliatory manner violates clearly established constitutional rights,
and the Defendants’ qualified immunity defense should be denied as to the remaining nonnegligence claims.
C.

Heightened Pleading Standard

Defendant Pack argues that any remaining civil rights claims against him should be
dismissed because the Plaintiff has failed to satisfy the heightened pleading standard in civil rights
cases. According to Defendant Pack, the plaintiff must “allege the specific conduct violating the
plaintiff’s right, the time and place of that conduct, and the identity of the responsible officials.”
(Defs.’ Mem. in Supp., at 7.) He asserts that the Plaintiff has failed to satisfy that standard here,
because the Amended Complaint only refers to actions taken generally by a group of “Defendants.”
Defendant Pack argues that the Plaintiff’s complaint fails to identify precisely who removed
Plaintiff from his vehicle, handcuffed him, asked him to sign a consent to the search warrant, and
several other actions that Defendant Pack argues are necessary for the Plaintiff to specify in detail
to allow his civil rights claims to survive the motion to dismiss stage. Because the Plaintiff has
failed to plead the appropriate facts, Defendant Pack argues that all the civil rights claims should
be dismissed.
The Plaintiff counters that he has not failed to adequately plead his civil rights claims.
Mr. Ali contends that he only needs to allege facts supporting a plausible claim under the holdings
established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S.
662 (2009). He argues that he has done so here, asserting that his complaint does allege specific
allegations that Defendant Pack was involved in his arrest and the search of his car. He further
claims that his complaint contains allegations that Defendant Pack provided contradictory
15

testimony during his criminal trials. Thus, Mr. Ali argues that he has satisfied any and all
pleading standards imposed on his civil rights claims, and they should not be dismissed.
As previously stated, 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.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570.) In other words, this “plausibility standard
requires a plaintiff to demonstrate more than ‘a sheer possibility that a defendant has acted
unlawfully.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550
U.S. at 570.) Further, “[i]n civil rights cases against government officials, the ‘complaint can
survive a motion to dismiss only if it . . . alleges the specific conduct violating the plaintiff’s right,
the time and place of that conduct, and the identity of the responsible officials.’” Souk v. City of
Mount Hope, No. 2:14-CV-26442, 2015 WL 5698509, at *2 (S.D.W. Va. Sept. 28, 2015) (Johnson,
C.J.) (quoting Preast v. McGill, 65 F.Supp.2d 395, 403 (S.D.W. Va. 1999)). Mr. Ali has alleged
that on the morning of June 23, 2015, Defendant Pack specifically worked in concert with the other
named Defendants to create a false probable cause against him in order to arrest him and charge
him with drug crimes. He further alleges in his amended complaint that Defendant Pack worked
with the other named Defendants to provide false testimony throughout the legal proceedings
against him.

These allegations set forth specific conduct that violated the Plaintiff’s

constitutional rights, the time and place of that conduct, and the identity of the responsible parties.
Thus, the Plaintiff has properly pled his civil rights claims against Defendant Pack, and his civil
rights claims should not be dismissed for failure to state a claim given the appropriate pleading
standard.

16

D.

42 U.S.C. § 1981 Claims

Defendant Pack next seeks dismissal of the Plaintiff’s claims in Count III brought pursuant
to 42 U.S.C. § 1981. Mr. Pack argues that the Plaintiff has failed to state any facts indicating that
he had any racial animus toward the Plaintiff or took any personally discriminatory action.
Moreover, Defendant Pack argues that the Plaintiff’s claim for discrimination and interference
with his rights to equal benefits under the law should have been brought pursuant to 42 U.S.C. §
1983 as opposed to 42 U.S.C. § 1981, because Section 1981 does not provide for a remedy against
state actors. Defendant Pack bases this argument on the United States Supreme Court holding,
in Jett v. Dallas Independent School District, that Section 1983 is the exclusive remedy for a claim
against a state actor accused of violating rights secured under Section 1981. Defendant Pack
argues that this holding was adopted by the Fourth Circuit in Dennis v. County of Fairfax, 55 F.3d
151, 156 (4th Cir. 1995), and that the Plaintiff’s claim for relief under Section 1981 should
therefore be dismissed.
The Plaintiff disagrees. He first counters that Dennis does not apply to Defendant Pack
because he was working with the Beckley/Raleigh County Drug and Violent Crime Unit and was
thus not a state actor. Moreover, Mr. Ali contends that the holding in Jett is inappropriate based
on the 1991 amendments to the Civil Rights Act. He asks this Court to disregard both the holding
in Jett and the Fourth Circuit’s affirmation of it in Dennis and to find that the Plaintiff can plead a
claim for discrimination under Section 1981 against state actors in their individual capacities.
Insofar as the Court has already addressed the Plaintiff’s arguments regarding Defendant
Pack’s work with the Drug and Violent Crime Unit and how that work affects Defendant Pack’s
immunity, the Court need not address that issue again here and finds that it does not undermine
17

Defendant Pack’s status as a state actor. Regarding the Section 1981 argument specifically, in
Jett, the Supreme Court found that Section 1983 of the Civil Rights Act provides the only remedy
for violations of the rights guaranteed in Section 1981 of the same Act. See, Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 733 (1989). The Fourth Circuit affirmed this ruling in Dennis v. County
of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995). There, the Fourth Circuit held that discrimination
claims against state actors, specifically a county government in that case, must be brought under
Section 1983, as that “is the ‘exclusive remedy for violation of the rights guaranteed in § 1981.’”
Id. (quoting Jett, 491 U.S. at 733). The Dennis court specifically explained in its finding that it
“[did] not believe that this aspect of Jett was affected by the Civil Rights Act of 1991 . . . We think
the correct reading of the amendment . . . recognizes that [the addition of] subsection (c) [to §
1981] did not purport to overrule Jett’s holding with respect to municipal liability . . . .” Dennis,
55 F.3d at 56; see also, Toomer-Frazier v. Columbia, City of, 680 F. App'x 244, 245 (4th Cir.
2017).
The Plaintiff argues that the Court should disregard the holdings of Jett and Dennis. In
reliance on Stout v. Reuschling, a case from the United States District Court for the District of
Maryland, the Plaintiff argues that Jett and Dennis merely stand for the proposition that Section
1981 claims cannot be asserted as independent causes of action against a state or municipal entity
only. See, Stout v. Reuschling, No. CIV.A. TDC-14-1555, 2015 WL 1461366, at *7 (D. Md.
Mar. 27, 2015).
The Court is not persuaded by the ruling in Stout. While the Stout court’s analysis is
based on the 1991 amendments to the Civil Rights Act, the Fourth Circuit specifically explained
in Dennis that it did not believe those amendments altered the Supreme Court’s holding in Jett.
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Given the rulings of the Supreme Court and the Fourth Circuit, the Court finds that Section 1981
does not provide an independent cause of action. The Plaintiff’s claims in Count III should
therefore be dismissed.
E.

Warrantless Arrest Pursuant to False Tip in Violation of 42 U.S.C. § 1983

Defendant Pack seeks dismissal of the Plaintiff’s claims brought in Count IV alleging a
warrantless arrest pursuant to a false tip in violation of 42 U.S.C. § 1983. Defendant Pack argues
that Mr. Ali has failed to allege sufficient facts to satisfy the pleading standard of such a claim.
Defendant Pack argues that the Plaintiff has failed to allege that there was a false tip at all, and that
if there was, Defendant Pack did not receive it. Moreover, Defendant Pack argues that he had no
duty to second guess the police work of other officers, so that even if they were relying on a false
tip as alleged by the Plaintiff, he was entitled to rely on the information he received from them.
Because he was permitted to rely on the probable cause established by the drugs found in the car
to aid in the arrest of the Plaintiff, Defendant Pack argues that the warrantless arrest claim should
be dismissed as to him. The Plaintiff counters that he has alleged facts sufficient to sustain his
claim in Count IV.
The Court finds that the Plaintiff has sufficiently alleged facts to support a claim against
Defendant Pack in Count IV. To state a claim for warrantless arrest under Section 1983, the
Plaintiff must show that he was arrested without probable cause. Here, The Plaintiff has alleged
that Defendant Pack worked in concert with the other named Defendants to arrest him when no
warrant was obtained, and that Defendant Pack had knowledge of the alleged employment dispute
between the Plaintiff and the Raleigh County Sheriff’s Department. The Plaintiff has further
alleged that Defendant Pack worked in concert with the other named Defendants in arresting him
19

with the knowledge that the alleged illegal activity was falsely made up by other named Defendants
in order to create probable cause. Accepting these allegations to be true, the Plaintiff has
satisfactorily alleged a claim of warrantless arrest against Defendant Pack and his motion to
dismiss Count IV should be denied.
F.

Conspiracy to Interfere Pursuant to 42 U.S.C. § 1985(3)

Defendant Pack further seeks to dismiss the Plaintiff’s claim in Count V brought pursuant
to 42 U.S.C. § 1985(3). Defendant Pack argues that he acted as a member of the Drug Task
Force, one entity comprised of officers from several different agencies. Because this group acted
in concert in making the arrest of the Plaintiff, Defendant Pack argues that the intracorporate
conspiracy doctrine prevents the Plaintiff from bringing his Section 1985 conspiracy claim against
individual defendants who are a part of that task force, since one legal entity cannot be liable for a
conspiracy. Defendant Pack also argues that, even if the intracorporate conspiracy doctrine does
not apply, Mr. Ali has failed to plead sufficient facts to state a claim under Section 1985, and this
count must therefore be dismissed.
The Plaintiff first counters that the intracorporate conspiracy doctrine does not apply to
Defendant Pack. He asserts that he has named as defendants multiple, non-state entities as
opposed to one single entity, negating the doctrine. He further contends that he has sufficiently
plead the necessary facts for his Section 1985 claim to continue. He argues that he has alleged a
plan by the Defendants, including Defendant Pack, to wait until it was known Mr. Ali was with
his cousin in order to use the arrest of his cousin as a knowingly, false source of probable cause to
arrest Mr. Ali himself. Mr. Ali contends that he has appropriately alleged that the Defendants
were motivated by specific class-based, discriminatory animus against him in retaliation for
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challenging his termination and because of his intent to sue certain Defendants for racial
discrimination, thus putting forth a plausible claim for a conspiracy to violate his constitutional
rights.
Section 1985(3) provides:
If two or more persons in any State or Territory conspire…for the
purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws[.]…[I]n any case of
conspiracy set forth in this section, if one or more persons engaged
therein do, or cause to be done, any act in furtherance of the object
of such conspiracy, whereby another is injured in his person or
property, or deprived of having and exercising any right or privilege
of a citizen of the United States, the party so injured or deprived may
have an action for the recovery of damages occasioned by such
injury or deprivation, against any one or more of the conspirators.
42 U.S.C. § 1985(3). This cause of action is directed at those who conspire to deprive
protected classes of people of their rights. Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985).
The federal remedy, construed broadly, is for “conspiracies involving invidious animus toward a
class of persons” who are not adequately protected by the state. Id. at 1258 (internal quotation
marks omitted). The elements of proof for a § 1985(3) cause of action are: “(1) a conspiracy of
two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory
animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4)
and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the
defendants in connection with the conspiracy.” Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir.
1995) (citing Buschi, 775 F.2d at 1257).
At the outset, the Court finds that the Plaintiff has sufficiently alleged facts to state a claim
for a conspiracy under Section 1985(3). First, the Plaintiff has stated sufficient allegations to
meet the conspiracy elements. He claims that Defendants Pack, Redden, Epling, and Snuffer met
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together to falsely create the probable cause necessary to arrest the Plaintiff and to coordinate
testimony in order to deprive the Plaintiff of equal enjoyment of his lawful rights in a manner that
resulted in his injury as a consequence of an overt act.

The Plaintiff also satisfies the

discriminatory animus element because he alleges that the Defendants committed these actions at
the behest of Defendant Tanner, who was acting with discriminatory animus relating to the
Plaintiff’s race and Plaintiff’s intent to sue Defendant Tanner and Raleigh County in a
discrimination lawsuit.
Further, the Court finds that the intracorporate conspiracy doctrine does not apply here,
and even if it did, the actions of Defendant Pack and his co-defendants as alleged in the complaint
would satisfy one of the doctrine’s exceptions. The intracorporate conspiracy doctrine “holds
that acts of corporate agents are attributed to the corporation itself, thereby negating the
multiplicity of actors necessary for the formation of a conspiracy.” Roberts v. Ballard, No. 2:15CV-15458, 2017 WL 896983, at *5 (S.D.W. Va. Mar. 7, 2017) (Johnston, C.J.) (citing Chavez v.
McIntyre, 424 F.Supp.2d 858, 861 (W.D. Va. 2006)). “The doctrine provides that an employer
‘cannot conspire with its employees, and its employees, when acting in the scope of their
employment, cannot conspire amongst themselves.’” Id. (citing McAndrew v. Lockheed Martin
Corp., 206 F.3d 1031, 1036 (11th Cir. 2000)). Courts have applied this doctrine in the arena of
civil rights cases, and “the Fourth Circuit has consistently applied it in other contexts, including
actions brought under [Sections] 1983 and 1985.” Veney v. Ojeda, 321 F. Supp. 2d 733, 748
(E.D. Va. 2004).
“The Fourth Circuit has [also] recognized two exceptions to the general rule that agents of
a principal cannot conspire with one another or the principal itself.” Roberts, 2017 WL 896983,
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at *6. The first exception holds that the immunity found in the doctrine is not available if an
agent performs an unauthorized act in furtherance of a conspiracy. Id. (citing Buschi, 775 F.2d
at 1252-53.) The second exception applies to defendants who have “an independent personal
stake in achieving the corporation’s illegal objective.” Id. (quoting Greenville Pub. Co. v. Daily
Reflector, Inc., 496 F.2d 391, 399 (4th Cir. 1974). This second exception is satisfied where “the
agent [has] a personal interest in the illegal activity wholly separable and independent of his
relationship with the corporation,” and “stand[s] to benefit personally from the conspiracy’s
unlawful objective.” Roberts, 2017 WL 896983, at *6.
Here, Defendant Pack was an officer with the West Virginia State Police assigned to work
with other officers as part of the Drug and Violent Crime Unit. The other individual defendants
named as part of the conspiracy include a member of the Raleigh County Sheriff’s Department
and the Beckley Police Department, all members of the same unit but employed by different
agencies. The Plaintiff therefore does not allege that one agency’s employees conspired together
to interfere with his rights, but rather members of several different agencies working as one unit.
The Defendant’s reliance on Ziglar v. Abbasi in support of his position that this doctrine should
apply is specious at best. In Ziglar, the Supreme Court of the United States found that, while the
law surrounding the doctrine is unsettled, agents in several different agencies, all of which fell
under the purview of the Department of Justice, were entitled to immunity under the doctrine.
Ziglar v. Abbasi, 137 S.Ct. 1843, 1868 (2017). Here, however, the named Defendants were
employed by several different state or local government agencies and were all assigned by those
employers to work as a unit. That they worked as a unit did not undo their employment by

23

separate agencies and thus the alleged acts do not constitute a conspiracy by several employees of
one corporate entity.
Moreover, even if the doctrine did apply here, Defendant Pack’s alleged actions were
unauthorized. According to the Plaintiff’s allegations, Defendant Pack knowingly met with other
law enforcement officers to put together a scheme creating probable cause, the Defendants knew
was false, in order to inappropriately arrest the Plaintiff and charge him with crimes, and further
that the Defendants worked in concert to plant evidence in his car. Accepting these allegations
as true, Defendant Pack’s conduct was not authorized. Thus, even if the Drug and Violent Crime
Unit could be considered one legal entity for the purposes of the intracorporate conspiracy
doctrine, the Defendant’s actions were not authorized and would fall into an exception of that
doctrine.
In sum, because the Plaintiff has sufficiently alleged facts to state a claim for a conspiracy
under Section 1985(3), and because the intracorporate conspiracy doctrine does not apply to
immunize Defendant Pack, the Defendant’s motion to dismiss the claim in Count V of the amended
complaint should be denied.
G.

False Arrest and Improper Investigation Pursuant to 42 U.S.C. § 1983

Defendant Pack also seeks dismissal of Count VII of the Plaintiff’s complaint, arguing that
this claim is barred pursuant to a one-year statute of limitations. Here, the Plaintiff was arrested
on June 23, 2015, but did not bring this claim for false arrest until more than a year later. Thus,
according to Defendant Pack, his claim is time barred and must be dismissed. The Plaintiff
counters that, because he brings this claim pursuant to 42 U.S.C. § 1983, a two-year statute of
limitations applies and his claim in Count VII is not time barred.
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Section 1983 itself has no federally-provided statute of limitations. However, the United
States Supreme Court has “expressly rejected the practice of drawing narrow analogies between §
1983 claims and state causes of action.” Owens v. Okure, 488 U.S. 235, 248 (1989) (citing
Wilson v. Garcia, 471 U.S. 261, 272 (1985)). Instead, the Supreme Court held, “where state law
provides multiple statutes of limitations for personal injury actions, courts considering § 1983
claims should borrow the general or residual statute for personal injury actions.” Id. at 249-50.
In short, the statute of limitations in § 1983 cases “is that which the State provides for personalinjury torts.” Wallace v. Kato, 549 U.S. 384, 387 (2007). As both this Court and the West
Virginia Supreme Court have recognized, West Virginia’s two-year general personal injury statute
of limitations is applicable to § 1983 actions. See W. Va. Code § 55-2-12(b); Rodgers v. Corp.
of Harpers Ferry, 371 S.E.2d 358, 362 (W.Va. 1988), abrogated on other grounds by Courtney v.
Courtney, 437 S.E.2d 436 (W.Va. 1993); Ali v. Raleigh Cty., No. 5:17-CV-03386, 2018 WL
1582722, at *9 (S.D.W. Va. Mar. 29, 2018); Morales v. Robinson, No. CIV A 205-0509, 2007 WL
1074836, at *4 (S.D.W. Va. Apr. 6, 2007) (Copenhaver, J.); Bell ex rel. Bell v. Bd. of Educ. of Cty.
of Fayette, 290 F. Supp. 2d 701, 709–10 (S.D.W. Va. 2003) (Haden, J.). The Plaintiff filed suit
on June 23, 2017, within two years of the incident, and the Court therefore finds that Defendant
Pack’s motion to dismiss Count VII of the amended complaint should be denied.
H.

Abuse of Process

Defendant Pack moves for dismissal of the Plaintiff’s claim for abuse of process in Count
VIII of the amended complaint. Defendant Pack argues that this claim is also barred by the oneyear statute of limitations for state law claims for abuse of process. The Plaintiff was arrested on
June 23, 2015, and the criminal complaint was filed against him the same day. These are the
25

processes which the Plaintiff claims were abused by the Defendants, and he was required to file
his complaint within a year of these actions. Because he did not bring suit until June 2017,
Defendant Pack asserts the claim should be dismissed. The Plaintiff counters that the statute of
limitations did not begin to accrue until his acquittal on the criminal charges, which did not occur
until May 26, 2017. Thus, he contends he had a year from that date, not from June 23, 2015.
The Plaintiff’s claim for abuse of process is not barred by the statute of limitations. As
the Defendant correctly points out, the statute of limitations on an abuse of process claim in West
Virginia is one year, and that action must be brought within one year from the termination of the
acts which constitute the abuse complained of. Preiser, 352 S.E.2d at 29. Here, however, the
Plaintiff alleges that the Defendants not only committed an abuse of process when they wrongfully
arrested the Plaintiff, but continued to do so as they conspired to coordinate their testimonies and
failed to disclose exculpatory evidence to the Plaintiff. Thus, the alleged abuse of process
continued well past the Plaintiff’s arrest and was not terminated until the Plaintiff’s acquittal in
May 2017. Given these allegations, the Plaintiff’s abuse of process claim is not barred by the
statute of limitations, and the motion to dismiss Count VIII should be denied.
I.

Malicious Prosecution

Defendant Pack also seeks dismissal of the Plaintiff’s claim for malicious prosecution
alleged in Count IX. He argues that the Plaintiff has put forth no allegations indicating Defendant
Pack’s personal involvement in the prosecution in any manner, and further argues that the Plaintiff
clearly states that his complaint is against Raleigh County, thus failing to state a valid claim. The
Plaintiff counters that Defendant Pack attempts to impose a higher standard than is necessary in

26

pleading his malicious prosecution claim, and that he has satisfactorily alleged facts that should
allow his claim to survive a motion to dismiss.
According to the West Virginia Supreme Court,
[i]n an action for malicious prosecution, plaintiff must show: (1) that
the prosecution was set on foot and conducted to its termination,
resulting in plaintiff’s discharge; (2) that it was caused or procured
by defendant; (3) that it was without probable cause; and (4) that it
was malicious. If plaintiff fails to prove any of these, he can not
recover.
Syl. Pt. 3, Hines v. Hills Dep't Stores, Inc., 454 S.E.2d 385, 387 (W.Va. 1994). In a separate line
of cases, the West Virginia Supreme Court held that the requisite elements for a malicious
prosecution were only three and included “(1) that the prosecution was malicious, (2) that it was
without reasonable or probable cause, and (3) that it terminated favorably to plaintiff.” Syl. Pt.
1, Preiser, 352 S.E.2d at 22. However, in examining these two statements regarding the elements
of malicious prosecution, the court held that they were the same, and that “procurement [of the
prosecution by the defendant] is an inherent element in both.”

Norfolk S. Ry. Co. v.

Higginbotham, 721 S.E.2d 541, 546 (W.Va. 2011). Further, “the meaning of procurement is not
that the defendants jointly applied to the justice of the peace to issue the warrant against the
plaintiff, but that they consulted and advised together, and both participated in the prosecution,
which was carried on under their countenance and approval.” Id. (emphasis added).
The Plaintiff has sufficiently pled facts to satisfy the elements of a malicious prosecution
claim. He alleges that Defendant Pack conspired with Defendant Snuffer and the other Defendant
officers to improperly arrest him and to coordinate statements and testimony to secure a conviction
against him.

Specifically, with respect to the procurement, the Plaintiff has alleged that

Defendant Snuffer consulted with and conspired together with the other Defendants, including
27

Defendant Pack, to ensure their testimony was consistent during the Plaintiff’s prosecution. The
Plaintiff further alleges that this was done with malice in response to Mr. Ali’s intention to file suit
against the Raleigh County Defendants for racial animus and discrimination, and that the
prosecution by the Defendants terminated in Mr. Ali’s favor when the jury found him not guilty
of the crimes charged by the Defendants. Viewing these allegations in the light most favorable
to the Plaintiff, the Court finds that Mr. Ali has sufficiently pled a claim of malicious prosecution
in Count IX.
J.

Outrage

Finally, Defendant Pack seeks to dismiss the Plaintiff’s claim for outrage brought in Count
XI. He argues that the Plaintiff has failed to provide sufficient evidentiary support of any
atrocious or intolerable actions by Defendant Pack to adequately claim outrage against him. The
Plaintiff counters that he has sufficiently alleged outrageous acts on the part of Defendant Pack
such that his outrage claim should survive a motion to dismiss.
In West Virginia, the tort of outrage, or intentional infliction of emotional distress, follows
the Restatement of Torts (Second): “One who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily harm.” Syl. pt. 6, Harless
v. First Nat. Bank in Fairmont, 289 S.E.2d 692, 694 (W. Va. 1982). The West Virginia Supreme
Court has established the following elements:
(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;
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and, (4) that the emotional distress suffered by the plaintiff was so
severe that no reasonable person could be expected to endure it.
Syl. pt. 3, Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 421 (W. Va. 1998) (reaffirmed in Hatfield
v. Health Mgmt. Associates of W. Virginia, 672 S.E.2d 395, 404 (W. Va. 2008). The court further
explained that “whether conduct may reasonably be considered outrageous is a legal question, and
whether conduct is in fact outrageous is a question for jury determination.” Syl. pt. 4, id.
Courts have struggled to determine whether conduct may reasonably be considered
outrageous. Courtney v. Courtney, 413 S.E.2d 418, 422 (W. Va. 1991) (reviewing several cases
considering the question). Plaintiffs must make a showing that “the defendant’s actions toward
the plaintiff were atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of
decency” and be viewed as intolerable in a civilized society.

Travis, 504 S.E.2d at 425.

“[C]onduct that is merely annoying, harmful of one's rights or expectations, uncivil, mean-spirited,
or negligent does not constitute outrageous conduct. On the other hand, outrageous conduct can
include physical violence that causes bodily harm and emotional distress.” Courtney, 413 S.E.2d
at 423–424 (internal citations removed).
The Plaintiff has alleged that Defendant Pack and the other named Defendants conspired
together to knowingly use false probable cause to arrest him without a warrant. He alleges that
the Defendants did so to inflict emotional distress and scare him in retaliation for his intention to
file a discrimination lawsuit against Defendant Tanner and the Raleigh County Sheriff’s
Department. The Plaintiff further alleges that the Defendants, including Defendant Pack, falsely
accused him of illegal drug activity, planted evidence in his car, hid evidence from him, and forced
him to face trial twice, at the risk of serving years in prison for crimes the Defendants knew Mr.
Ali did not commit. Accepting these allegations as true, the Court finds that the alleged conduct
29

could reasonably be considered outrageous. The Plaintiff has therefore stated a claim for outrage
sufficiently plausible on its face, to defeat dismissal of Count XI.
CONCLUSION
WHEREFORE, after thorough review and careful consideration, the Court ORDERS that
the Defendants West Virginia State Police and Corporal Kenneth L. Pack’s Motion to Dismiss
(Document 38) be GRANTED IN PART and DENIED IN PART. Specifically, the Court
ORDERS that all the claims against the West Virginia State Police and Defendant Pack in his
official capacity as an officer of the West Virginia State Police be DISMISSED. The Court
further ORDERS that the motion be GRANTED as to Counts III, VI, and X, and that those counts
be DISMISSED. Otherwise, the Court ORDERS that the motion be DENIED.
Lastly, the Court ORDERS that the Defendants’ Motion to Stay Discovery Pending the
Resolution of their Motion to Dismiss (Document 41) be TERMINATED AS MOOT.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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August 28, 2018