Ali v. Raleigh County, et al

Filing 76

MEMORANDUM OPINION AND ORDER: GRANTING IN PART and DENYING IN PART Defendant Jason Redden in his Capacity as a Parole Officer with the West Virginia Division of Correction's 5 MOTION to Dismiss the Plaintiff's Complaint; dismissing all of the Plaintiff's claims against Defendant Jason Redden in his official capacity as a parole officer for the West Virginia Division of Corrections; granting the motion as to Count X, and dismissing this count against Jason Redden in his individual capacity; denying the motion except as noted herein. Signed by Judge Irene C. Berger on 3/29/2018. (cc: attys; any unrepresented party) (slr)

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 Defendant Jason Redden in His Capacity as a Parole Officer
with the West Virginia Division of Correction’s Motion to Dismiss the Plaintiff’s Complaint
(Document 5) and Memorandum of Law in Support (Document 6), the Plaintiff’s Response in
Opposition (Document 21), and Defendant Jason Redden’s Reply to the Plaintiff’s Response
(Document 27). 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 as more fully explained below.
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 or political subdivision 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 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.

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). “Threadbare recitals
6

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
Defendant Redden, having filed this motion specifically in his capacity as a parole officer
for the West Virginia Division of Corrections, sets forth several different grounds for dismissal.
A. Sovereign Immunity
Mr. Redden first argues that all of the Plaintiff’s claims against him, in his official capacity
as a parole officer, should be dismissed because he is entitled to sovereign immunity. Mr. Redden
was a parole officer working in an official capacity for the West Virginia Division of Corrections
at the time of the Plaintiff’s allegations, and he argues that claims against him in that capacity are
7

considered claims against the State itself. Because the State of West Virginia has sovereign
immunity, Mr. Redden argues that he also has sovereign immunity from any claims filed against
him in his official capacity.
In his response in opposition, the Plaintiff concedes that his claims against Defendant
Redden in his official, as opposed to his individual, capacity may be subject to dismissal on
grounds of sovereign immunity. The Plaintiff also concedes in his response that the Section 1983
claims against Defendant Redden in his official capacity as a parole officer with the West Virginia
Division of Corrections are subject to dismissal. The Court finds that all claims against Defendant
Redden in his official capacity as a parole officer for the West Virginia Division of Corrections
should be dismissed.
B. Qualified Immunity
Mr. Redden contends that the Plaintiff’s Section 1983 claims against him must be
dismissed because he is entitled to qualified immunity. He argues that the Plaintiff has failed to
establish that Mr. Redden violated any clearly established constitutional law and is therefore
entitled to qualified immunity. The Plaintiff counters that the “Amended Complaint sets forth
hundreds of detailed factual allegations” explaining how Defendant Redden played a role in the
unconstitutional plan to arrest him, and that Defendant Redden’s motion should therefore be
denied.
Under the doctrine of 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.’” Tomashek v. Raleigh Cty. Emergency Operating Ctr., No. 2:17-CV-01904,
8

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 231–32.
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.

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)).

9

The Plaintiff asserts that Mr. Redden 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. Accepting the alleged facts as true and drawing all
reasonable inferences in the Plaintiff’s favor, the Court finds that Defendant Redden is not entitled
to qualified immunity. The Plaintiff alleges that the Defendants sought to maliciously arrest and
prosecute him in retaliation for challenging his termination with the civil service commission and
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. The
Plaintiff admits that his cousin was on parole, was being monitored by an ankle bracelet, and that
at some point during the interaction the Defendants told him they were looking for his cousin in
reference to a hold and commit order by his parole officer.
However, the Plaintiff also alleges that Defendant Redden worked in conjunction with the
other individual Defendants to purposefully delay arresting the Plaintiff’s cousin until he was with
the Plaintiff, and that it was Defendant Redden’s delay that allowed the other Defendants to use
probable cause to initiate the traffic stop of the Plaintiff and his cousin. In other words, the
Plaintiff alleges that without Defendant Redden knowingly conspiring with the other Defendants,
there would have been no way to initiate the traffic stop in the first place. Mr. Ali further implies
that the Defendants potentially planted evidence in his car during the search. Accepting these
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 and/or obtain a warrant before making an arrest is a clearly established right. 5 While

5 In referencing the Plaintiff’s constitutional right to be free of arrest without probable cause, the Court does not
intend to exhaust all constitutional rights that may have been violated in this alleged scheme.

10

Defendant Redden in his capacity as a parole officer may have had sufficient probable cause to
arrest the Plaintiff’s cousin, that probable cause did not extend to the Plaintiff absent the unlawful
scheme that the Plaintiff alleges here. Conspiring together to initiate this scheme against the
Plaintiff in a malicious and retaliatory manner violates this clearly established constitutional right.
Defendant Redden’s qualified immunity defense should therefore be denied.
C. Failure to Satisfy the Pleading Standard
Defendant Redden argues that all of the remaining claims against him in his individual
capacity should be dismissed because the Plaintiff has failed to state claims which satisfy the
pleading standard.
1.

Warrantless Arrest

Defendant Redden argues that Count IV of the amended complaint should be dismissed
because the Plaintiff has failed to assert any factual allegations supporting the claim that Defendant
Redden is liable for warrantless arrest. Mr. Redden asserts that the Plaintiff has not alleged that
Mr. Redden filed a criminal complaint against him, filed a police report, placed him in handcuffs
or had any part in his arrest. Therefore, Defendant Redden argues that Count IV should be
dismissed against him.
The Plaintiff counters that Defendant Redden did play a critical role in his arrest. Mr. Ali
contends that, it was Defendant Redden who “provided the drug task force with a pretextual reason
to pull Mr. Ali out of his vehicle at gunpoint and detain and arrest him.” (Pl.’s Resp. in
Opposition, at 10.) Thus, Mr. Ali argues that he has satisfactorily pled sufficient facts for his
claim of warrantless arrest to survive Defendant Redden’s motion to dismiss.

11

In support of his claim of warrantless arrest, the Plaintiff asserts that Defendant Redden
intentionally and maliciously worked with the Defendants in waiting for Mr. Ali to be with his
cousin to provide the other Defendants with the pretextual probable cause necessary to search his
car and eventually arrest him. The Plaintiff further alleges that the Defendants arrested Mr. Ali
without any warrant or other legal process. The Plaintiff further asserts in his complaint that the
Defendants conducted these actions pursuant to a report they knew was erroneous and false.
Viewing these facts in the light most favorable to the Plaintiff, and drawing all reasonable
inferences in his favor, the Court finds that the Plaintiff has pled sufficient facts to state a claim
against Defendant Redden for a warrantless arrest under Section 1983. Defendant Redden’s
motion to dismiss this claim in Count IV should be denied.
2. Conspiracy to Violate Plaintiff’s Civil Rights
Defendant Redden also argues the Plaintiff has failed to properly plead a claim against him
for conspiracy to interfere with constitutional rights in violation of 42 U.S.C. § 1985. Defendant
Redden argues that Mr. Ali did not specifically plead how Defendant Redden coordinated his
sworn statements and testimony with the other Defendants, or what that testimony was. Further,
Defendant Redden argues that Mr. Ali claims that Defendant Redden was acting under the
authority of the Beckley Police, Raleigh County Sheriff’s Department, and West Virginia State
Police, when Defendant Redden was still employed as a parole officer by the West Virginia
Division of Corrections at the time. Thus, Defendant Redden contends Mr. Ali has failed to state
a claim for civil rights conspiracy against him.
The Plaintiff counters that he has appropriately pled a conspiracy between two or more
people, including Defendant Redden, because he pled that Defendants Redden and Epling were
12

motivated by specific class-based, discriminatory animus against him. He has further pled that
Defendant Redden and others deprived him of the equal enjoyment of rights under the law and
caused him injuries by their overt acts. Mr. Ali therefore claims he has sufficiently pled a
plausible claim for conspiracy to violate his civil 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).

13

Here, the Court finds that the Plaintiff has sufficiently alleged facts to state a claim for
conspiracy under 1985(3).

First, the Plaintiff has stated sufficient allegations to meet the

conspiracy elements. He claims that Defendants Redden, Pack, Epling, and Snuffer met together
to falsely create the probable cause necessary to arrest the Plaintiff and to coordinate testimony 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 his intent to sue
Defendant Tanner and Raleigh County in a discrimination lawsuit.
Assuming these allegations to be true, the Plaintiff has sufficiently stated a plausible claim
for relief pursuant to 42 U.S.C. § 1985(3). Defendant Redden’s motion to dismiss Count V should
be denied.
3. Neglect to Prevent Conspiracy
Defendant Redden argues that the Plaintiff’s claim in Count VI that Defendant Redden had
the power to prevent the conspiracy against Mr. Ali, but failed to do so, should be dismissed.
Defendant Redden claims that the Plaintiff’s allegations amount to little more than conclusions,
which are insufficient to state a claim, because there is no specific mention of any facts which
suggest Defendant Redden could have prevented the conspiracy. The Plaintiff counters that he
has clearly shown that each and every defendant had the power to prevent or aid in preventing the
commission of the illegal acts against him, and thus, the claim in Count VI should proceed against
Defendant Redden.

14

Although not specifically stated in his amended complaint, the Plaintiff brings the claim in
Count VI pursuant to 42 U.S.C. § 1986, which states, in pertinent part, that
[e]very person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this title, are
about to be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses so to do,
if such wrongful act be committed, shall be liable to the party injured
. . . for all damages caused by such wrongful act . . . .
To maintain a cause of action under Section 1986, a plaintiff must have sufficiently set forth a
cause of action under Section 1985, because Section 1986 “merely gives a remedy for misprision
of a violation of 42 U.S.C. § 1985.” Sellner v. Panagoulis, 565 F. Supp. 238, 249 (D. Md. 1982),
aff'd, 796 F.2d 474 (4th Cir. 1986).
Again, the Plaintiff has alleged that the Defendants, including Defendant Redden,
conspired together to use the Plaintiff’s cousin and a false tip in order to manufacture probable
cause to arrest the Plaintiff on drug charges without a warrant. Importantly, the Plaintiff has
alleged that Defendant Redden specifically postponed the arrest of the Plaintiff’s cousin, a parolee,
until the cousin was with the Plaintiff, so that the other Defendants would have the requisite
probable cause necessary to stop the Plaintiff’s vehicle. Further, the Plaintiff has alleged that the
Defendants, including Redden, conspired to coordinate their testimony, talked to witnesses and
hid evidence in an effort to wrongfully convict him in retaliation for his contesting his termination
from the Sheriff’s Department and his intent to file suit against Sheriff Tanner and the Raleigh
County Sheriff’s Department. Accepting the factual allegations as true, and drawing reasonable
inferences in the light most favorable to the Plaintiff, the Court finds that the Plaintiff has pled
sufficient facts to support the claim of neglect to prevent conspiracy contained in Count VI. The
motion to dismiss this claim against Defendant Redden should be denied.
15

4. False Arrest and Improper Investigation and Prosecution
Defendant Redden also requests dismissal of the Plaintiff’s claim in Count VII of wrongful
arrest and improper investigation pursuant to 42 U.S.C. § 1983. Defendant Redden argues that
the Plaintiff has failed to properly allege any facts that state how Defendant Redden falsely arrested
or improperly investigated and prosecuted the Plaintiff, and that, therefore, his claim in Count VII
amounts to mere conclusions such that it should be dismissed. The Plaintiff counters that he has
alleged Defendant Redden knew of and attempted to hide evidence that proved Mr. Ali was
innocent, and that he has stated sufficient facts to support this claim.
42 U.S.C. § 1983 states that “[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.”
The Fourth Amendment mandates that a warrantless arrest be based on probable cause.
Porterfield v. Lott, 156 F.3d 563, 567 (4th Cir. 1998); Park v. Shiflett, 250 F.3d 843, 850-51 (4th
Cir. 2001). An officer must evaluate probable cause based on the totality of the circumstances at
the time of the arrest, and establish it with “facts and circumstances within the officer’s knowledge
[which] would warrant the belief of a prudent person that the arrestee had committed or was
committing an offense.” Park, 250 F.3d at 851 (quoting United States v. Manbeck, 744 F.2d 360,
376 (4th Cir. 1984)).

16

Here, the Plaintiff has alleged that the Defendants, including Defendant Redden, conspired
together to use the Plaintiff’s cousin and a false tip in order to manufacture probable cause to arrest
the Plaintiff on drug charges without a warrant. As the Court has previously found, the Plaintiff
has alleged that Defendant Redden specifically postponed the arrest of the Plaintiff’s cousin, a
parolee, until he was with the Plaintiff, so that the other Defendants would have the requisite
probable cause necessary to stop the Plaintiff’s vehicle. Again, accepting the factual allegations
as true, and drawing reasonable inferences in the light most favorable to the Plaintiff, the Court
finds that the Plaintiff has pled sufficient facts to support the claim that Defendant Redden violated
his Fourth Amendment right to not be arrested without probable cause. The Defendant’s motion
to dismiss Plaintiff’s claims against Defendant Redden in Count VII should be denied.
5. Abuse of Process
Defendant Redden seeks dismissal of the Plaintiff’s claims in Count VIII for abuse of
process. He argues that the Plaintiff has alleged no specific facts regarding how Defendant
Redden, in his capacity as a parole officer with the West Virginia Division of Corrections,
unlawfully arrested, detained, or prosecuted the Plaintiff. Mr. Ali counters that he has sufficiently
pled the facts and elements required for an abuse of process violation. He further contends that,
although Defendant Redden did not specifically arrest him or draft a criminal complaint, the
Plaintiff has sufficiently pled that Defendant Redden conspired with the other Defendants and took
actions necessary to facilitate the other Defendants’ arrest of him such that Defendant Redden is
also liable under this claim.
“Generally, abuse of process consists of the willful or malicious misuse or misapplication
of lawfully issued process to accomplish some purpose not intended or warranted by that process.”
17

Preiser v. MacQueen, 352 S.E.2d 22, 28 (W.Va. 1985). “To properly state a claim for abuse of
process, a plaintiff must allege: first, an ulterior purpose, and second, a willful act in the use of the
process not proper in the regular conduct of the proceeding.” Westfield Ins. Co. v. Mitchell, No.
2:12-CV-00585, 2013 WL 4742832, at *4 (S.D.W. Va. Sept. 3, 2013) (internal citations omitted).
According to the West Virginia Supreme Court, “[t]he authorities are practically unanimous in
holding that to maintain the action [for abuse of process] there must be proof of a willful and
intentional abuse or misuse of the process for the accomplishment of some wrongful object—an
intentional and willful perversion of it to the unlawful injury of another.” Preiser, 352 S.E.2d at
28.
The Court finds that the Plaintiff has sufficiently pled the required elements of a cause of
action for abuse of process. The Plaintiff alleges in his complaint that the Defendants, with
Defendant Redden as a parole officer playing a critical part, conspired together to purposefully use
the Plaintiff’s cousin to provide the probable cause necessary to arrest the Plaintiff without a
warrant and charge him with drug offenses, knowing that he was not actually involved in the
trafficking of drugs. The Plaintiff further alleges that the Defendants arrested him in this improper
manner in retaliation for the Plaintiff’s challenge of his firing from the Raleigh County Sheriff’s
Department on grounds of racial discrimination. Viewing these allegations in the light most
favorable to the Plaintiff, Mr. Ali has stated a claim for relief that is plausible on its face. Defendant
Redden’s motion should be denied as to Count VIII.
6. Malicious Prosecution
Defendant Redden further seeks dismissal of the Plaintiff’s malicious prosecution claims
alleged against him in Count IX. Defendant Redden again argues that the claim should be
18

dismissed because the Plaintiff has failed to plead how Defendant Redden, in his individual
capacity as a parole officer, has caused or took part in a malicious prosecution against the Plaintiff.
The Plaintiff counters that he has sufficiently alleged the necessary elements for a malicious
prosecution claim.
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 different delineations of the

malicious prosecution elements, the same 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).
The Plaintiff has sufficiently pled facts to satisfy the elements of a malicious prosecution
claim. Mr. Ali alleges that Defendant Redden worked in concert with other Defendants to
facilitate false probable cause so that other Defendants could arrest and eventually prosecute him.
Mr. Ali alleges that Defendant Redden admitted under oath that he was responsible for delaying
the arrest of Mr. Ali’s cousin until he was with Mr. Ali, even though he had previous opportunities
to arrest the cousin. The Plaintiff further alleges that this was done with malice in response to the
19

Plaintiff’s stated intention to file suit against the Raleigh County defendants for racial animus and
discrimination. The prosecution by the Defendants terminated in Mr. Ali’s favor when the jury
found him not guilty. Again, viewing these allegations in the light most favorable to the Plaintiff,
the Court finds that the Plaintiff has sufficiently alleged a claim of malicious prosecution in Count
IX, such that Defendant Redden’s motion to dismiss should be denied.
7. Negligent Infliction of Emotional Distress
Defendant Redden moves for dismissal of the Plaintiff’s claims for negligent infliction of
emotional distress in Count X. He argues that the Plaintiff has failed to sufficiently plead the
elements for the claim or show that Defendant Redden in his capacity as a parole officer owed him
any duty. The Plaintiff counters that “Defendant Redden’s conclusory comment required no
rebuttal, other than to note that the Amended Complaint does in fact properly plead the elements
of negligent infliction of emotional distress as against Defendant Redden.”

(Pls.’ Resp. in

Opposition at 17.)
Negligent infliction of emotional distress claims require “a plaintiff [who] experience[s]
serious emotional distress, after the plaintiff witnesses a person closely related to the plaintiff
suffer critical injury or death as a result of the defendant's negligent conduct.” Syl. Pt. 1, Heldreth
v. Marrs, 425 S.E.2d 157, 158 (W.Va. 1992). Here, the Plaintiff has asserted no set of facts to
support such a claim, inasmuch as he alleges that the Defendant negligently caused him emotional
distress based on acts directed at the Plaintiff, himself. Count X of the amended complaint should
be dismissed.

20

8. Outrage
Finally, Defendant Redden seeks dismissal of the Plaintiff’s claim of outrage as alleged in
Count XI of the amended complaint. Defendant Redden argues that the Plaintiff fails to allege
such conduct that is so extreme and outrageous that it goes above and beyond conduct that was
tortious or criminal in nature to support the tort of outrage. The Plaintiff counters that Defendant
Redden and the other Defendants acted in a manner that was so extreme and outrageous that it
went beyond the bounds of decency. The Plaintiff contends that Defendant Redden played a
critical part in a conspiracy that forced the Plaintiff to face two criminal trials and, had it been
effective to its fullest extent, would have subjected the Plaintiff to several years in state prison for
a crime he did not commit—a crime that Mr. Redden and the other Defendants knew he did not
commit.

Mr. Ali argues the acts of Defendant Redden and the other actors were sufficiently

outrageous and extreme to support a claim for the tort of outrage.
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 for this claim:
(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.
21

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, by conspiring with the other Defendants, Defendant Redden
knowingly used false probable cause to facilitate the Defendants’ arrest of Mr. Ali without a
warrant. Mr. Ali alleges that the Defendants, including Defendant Redden, did so in order to
inflict emotional distress and scare him in retaliation for his intention to file a discrimination
lawsuit against Defendants Tanner and the Raleigh County Sheriff’s Department. The Plaintiff
further alleges that the Defendants falsely arrested and accused him, hid evidence from him, and
forced him to face trial twice, at the risk of facing several years in prison for crimes the Defendants
knew he did not commit. When viewing these allegations in the light most favorable to the
Plaintiff, the Court finds that he has stated conduct which can reasonably be viewed as outrageous
22

and sufficient to survive the motion to dismiss. The motion to dismiss as to Count XI should be
denied.
CONCLUSION
WHEREFORE, after careful consideration, the Court ORDERS that the Defendant Jason
Redden in his Capacity as a Parole Officer with the West Virginia Division of Correction’s Motion
to Dismiss the Plaintiff’s Complaint (Document 5) be GRANTED IN PART and DENIED IN
PART. Specifically, the Court ORDERS that all of the Plaintiff’s claims against Defendant
Jason Redden in his official capacity as a parole officer for the West Virginia Division of
Corrections be DISMISSED. The Court further ORDERS that the motion be GRANTED as to
Count X, and that this count be DISMISSED against Defendant Jason Redden in his individual
capacity. Otherwise, the Court ORDERS that the motion be DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

23

March 29, 2018