Myers v. City of Charleston, CIVIL ACTION NO. 2:19-cv-00757

WALTER R. MYERS, et al., Plaintiffs, v. CITY OF CHARLESTON, et al., Defendants.

CIVIL ACTION NO. 2:19-cv-00757

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

July 21, 2020

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants City of Charleston, Job Ouma, Erick Miller, and Steve Cooper's Motion to Dismiss. (ECF No. 5.) For the reasons set forth below, Defendants' Motion is GRANTED.

I. BACKGROUND

This civil action arises from two incidents requiring law enforcement response from the City of Charleston on September 11 and 12, 2017. (ECF No. 1-1.) Plaintiffs filed this action against the City of Charleston, and Officers Job Ouma, Erick Miller, and Chief of Police Steve Cooper individually and in their capacity as police officers and Chief of Police, respectively, for the City of Charleston (collectively, "Defendants"). (Id.) Plaintiffs additionally name 25 "John Does" in the Complaint. (Id.)

The following factual allegations are taken from Plaintiffs' Complaint.¹ On or about September 11, 2017, Plaintiffs Walter ("Walter") and Vivian ("Vivian") Myers (collectively, "Plaintiffs") contacted emergency services through 9-1-1 and requested assistance for their son, Adam Myers ("Adam"). (Id. at ¶ 16.) Adam allegedly suffered from mental illness, including schizoaffective disorder which displays symptoms of schizophrenia and a mood disorder, such as hallucinations, delusions, depression, and mania. (Id. at ¶ 13.) On September 11, Adam experienced an exacerbation of his symptoms, and Plaintiffs called emergency services requesting to have Adam taken to the hospital for treatment and observation. (Id. at ¶ 16.) Plaintiffs allege that the responding officers "merely questioned" Adam and determined him to be "competent." (Id. at ¶ 17.) Therefore, the responding officers, identified as "John Does 1-10," refused to take Adam into custody. (Id. at ¶¶ 17-18.)

Plaintiffs then allege that Adam's conditioned worsened through the evening and into the morning of September 12. (Id. at ¶ 19.) During the early afternoon of September 12, Adam began to physically struggle with his father, Walter Myers, while his mother, Vivian Myers, called emergency services again for assistance. (Id. at ¶ 20.) Defendants Ouma and Miller responded to the scene at approximately 12:18 P.M. (Id. at ¶ 21.) Plaintiffs assert that Defendants Ouma and Miller found Adam with his back against the wall and arms at his side. (Id. at ¶ 22.) Plaintiffs further allege that Adam "brandish[ed] no weapon and [made] no threats" to the officers, yet the officers handcuffed Adam and "violently tripped" him. (Id. at ¶¶ 23-25.) While Adam was prone on the floor, Defendant Ouma placed his "right lower leg into the small of" Adam's back,trapping Adam to the floor. (Id. at ¶ 25.) Adam allegedly began "gasping for breath," while the officers "carried on a conversation." (Id. at ¶ 26.)

Defendants Ouma and Miller than left Adam in a prone position and began speaking with Walter. (Id. at ¶ 28.) After a "brief conversation," Defendants Ouma and Miller returned to Adam and attempted to get his attention. (Id. at ¶¶ 27-28.) Adam was unresponsive. (Id. at ¶ 30.) At that time, Vivian Myers fled the room, and Walter Myers lay "stunned and injured." (Id. at ¶ 31.) EMT's arrived and transported Adam to the Charleston Area Medical Center, where he was pronounced dead. (Id. at ¶ 34.)

Plaintiffs allege that Vivian was prohibited from remaining in the home and was directed to the Charleston Police Department, where she was subjected to questioning. (Id. at ¶ 35.) She was not allowed to return home for six (6) hours. (Id.) Plaintiffs allege that, during the time Vivian was not allowed to return home, Detective W.R. Anderson obtained a search warrant based upon the "malicious wounding" of Walter by Adam. (Id. at ¶ 36.) Officer A. Kuhner executed this search warrant at approximately 4:30 p.m. (Id. at ¶ 39.) Plaintiffs finally assert that the execution of this search warrant was an attempt by "the Defendants to obfuscate the circumstances surrounding Adam Myers' death at the hands of agents, servants, employees and/or law enforcement officers." (Id. at ¶ 40.)

Plaintiffs filed their Complaint in the Circuit Court of Kanawha County, West Virginia, on September 11, 2019, asserting fourteen (14) counts.² Count I is asserted under 42 U.S.C. § 1983 and against Defendants Ouma, Miller, and John Does 1-10 for (a) unreasonable search and seizure; (b) deprivation of life or liberty without due process of law; (c) excessive force; (d) equalprotection; (e) interference with the "zone of privacy, as protected by the Fourth and Ninth Amendments;" and (f) malicious prosecution. (Id. at ¶¶ 43-44.) Count II is asserted under 42 U.S.C. § 1983 and against Defendants the City of Charleston, Cooper, and John Does 11-25 for "approv[ing], ratif[ying], condon[ing] [sic] encourage[ing]and/or tacitly authoriz[ing]" the (a) unreasonable search and seizure; (b) deprivation of life or liberty without due process of law; (c) excessive force; (d) equal protection; (e) interference with the "zone of privacy, as protected by the Fourth and Ninth Amendments;" and (f) malicious prosecution, as described in Count I. (Id. at ¶¶ 45-51). Count III is asserted against Defendants the City of Charleston, Cooper, and John Does 11-25 for "a custom, policy or repeated practice of condoning and/and [sic] tacitly encouraging the abuse of police authority, and disregard for the constitutional rights of citizens" and for "municipal customs and/or policies of deliberate indifference in the training, supervision and/or discipline of" Charleston's police officers, again leading to the alleged violations described in Count I. (Id. at ¶¶ 52-59). Count IV is asserted against all Defendants for violations under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132. (Id. at ¶¶ 60-64.) Count V is asserted against Defendants Ouma, Miller, and the City of Charleston for the use of excessive force in violation of Article III, § 6 of the West Virginia Constitution. (Id. at ¶¶ 65-69.) Count VI is asserted against Ouma, Miller, and the City of Charleston for common law assault and battery. (Id. at ¶¶ 70-74.) Count VII is asserted against Defendants Ouma, Miller, and the City of Charleston for common law intentional infliction of emotional distress. (Id. at ¶¶ 75-79.) Count VIII is asserted against Defendants Ouma, Miller, and the City of Charleston for "conduct excepted from immunity pursuant to WV Code §29-12A-5(b)." (Id. at ¶¶ 80-83.) Count IX is asserted against Defendants Ouma, Miller, and the City of Charleston for negligence. (Id. at ¶¶ 84-88.)

Count X is asserted against Defendants Ouma, Miller, and the City of Charleston for the negligent infliction of emotional distress. (Id. at ¶¶ 89-94.) Count XI is asserted against Defendants the City of Charleston, Cooper, and John Does 11-25 for negligent training, supervision, and retention. (Id. at ¶¶ 95-103.) Count XII is asserted against Defendants the City of Charleston, Cooper, and John Does 11-25 for common law negligent training and supervision. (Id. at ¶¶ 104-110.) Count XIII is asserted against Defendants the City of Charleston and Cooper for "vicarious liability." (Id. at ¶¶ 111-114.) Finally, Count XIV is asserted against all Defendants for "violation of policy." (Id. at ¶¶ 115-120.)

This case was removed to this Court on October 18, 2019. (ECF No.1.) On November 4, 2019, Defendants moved to dismiss all counts except for Counts I(a), I(b), I(c), and X. (ECF No. 5.) Plaintiffs filed their response on November 18, (ECF No. 8), and Defendants filed their reply on November 25. (ECF No. 9.) As such, this motion is fully briefed and ripe for adjudication.

II. LEGAL STANDARD

A pleading must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement exists "to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests") (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To withstand a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough facts "to state a claim to relief that is plausible on its face." Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A claim hasfacial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Stated another way, the factual allegations in the complaint "must be sufficient 'to raise a right to relief above the speculative level.'" Woods v. City of Greensboro, 855 F.3d 639, 647 (4th Cir. 2017) (quoting Twombly, 550 U.S. at 555). Well-pleaded factual allegations are required; labels, conclusions, and a "formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; see also King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) ("Bare legal conclusions 'are not entitled to the assumption of truth' and are insufficient to state a claim." (quoting Iqbal, 556 U.S. at 679)).

In evaluating the sufficiency of a complaint, this Court first "identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. This Court then "assume[s] the[ ] veracity" of the complaint's "well-pleaded factual allegations" and "determine[s] whether they plausibly give rise to an entitlement to relief." Id. Review of the complaint is "a context-specific task that requires [this Court] to draw on its judicial experience and common sense." Id. "[T]o satisfy the plausibility standard, a plaintiff is not required to plead factual...