Spry v. Virginia, CIVIL ACTION NO. 2:16-cv-01785

DONNA M. SPRY, et al., Plaintiff, v. THE STATE OF WEST VIRGINIA, et al., Defendants.

CIVIL ACTION NO. 2:16-cv-01785

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

February 1, 2017

MEMORANDUM OPINION AND ORDER

Pending are four Motions to Dismiss, filed separately by Defendants Colonel C. R. "Jay" Smithers, (ECF No. 7), Sergeant R. L. Frye, (ECF No. 9), Trooper Silas A. Belt, (ECF No. 11), and the West Virginia Department of Public Safety and the West Virginia State Police ("WVSP"), (ECF No. 13). For the reasons that follow, Colonel Smithers and Sergeant Frye's motions are GRANTED. The remaining two motions are GRANTED IN PART and DENIED IN PART.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs Donna Spry and Britney Spry are mother and daughter. They bring this action seeking redress for the killing of their husband and father, Curly Spry, at the hands of the WVSP. The following facts are drawn from the Complaint and, for purposes of the Motions to Dismiss, are assumed to be true.

On January 29, 2014, Donna Spry called decedent Spry's doctor from their shared residence in Logan County, West Virginia. Her husband had been threatening suicide and she needed help. Instructed by the doctor's staff to call 911, Ms. Spry called the Logan County 911 operator and reported that her husband was depressed over a death in the family and had not been taking his prescribed medication. (Compl. ¶ 39.) Ms. Spry requested an ambulance. A short while later, the 911 operator returned a call to the Spry residence to advise Ms. Spry that WVSP officers had been dispatched to the home. Ms. Spry told the operator that "her husband was delusional and crying." (Id. ¶ 38.)

Sergeant R. L. Frye, a WVSP trooper supervisor in Logan County, accepted the initial 911 dispatch. Sergeant Frye forwarded the call to Trooper Silas A. Belt, who made his way to the Spry residence. (Id. ¶¶ 39-40.) Upon his arrival at the Spry home, Trooper Belt, along with an unnamed John Doe trooper, stood at the front stoop, yelled "West Virginia State Police!", opened the front door, and entered the home. (Id. ¶¶ 44-45.) Decedent Spry was present within, lying in bed with a handgun at his side. (Id. ¶ 63.) Ms. Spry and her seventeen-year-old daughter Britney were also present. The troopers approached, armed with AR-15 assault weapons and outfitted in SWAT gear. Decedent Spry's response to the arrival of the troopers is left unclear. The Complaint alleges that the troopers "react[ed] . . . with intimidation, which caused [decedent Spry] to fear them," and that by "point[ing] their . . . AR 15 style weapons at him," the troopers "escalated the volatility [of] the situation they created." (Id. ¶ 49-50.) Although the Complaint alleges that the troopers would later claim that decedent Spry "pointed a handgun" at them, it does not actually allege that he did so. (Id. ¶ 60.)

Whatever the decedent's reaction, which is not described further, the Complaint alleges that the troopers opened fire, shooting the decedent eleven times and killing him within 23 seconds of their entry into the home. (Id. ¶¶ 45, 51.) Decedent Spry was still in bed underneath thebedcovering when he was shot and killed. (Id. ¶ 54.) His own firearm, which Plaintiffs allege had not been touched from the time the troopers arrived, remained beside him.

Immediately after the shooting, Trooper Belt turned to Donna Spry and, realizing she was still on the phone with the 911 dispatcher, forcibly took the phone and disconnected the call. (Id. ¶ 57.) Trooper Belt then instructed Ms. Spry and her daughter to exit the home while the troopers secured the scene. Plaintiffs allege that they were not permitted to even grab their coats before they were forced out into the cold, where they stood for hours in freezing weather before being permitted reentry.

Plaintiffs bring eighteen claims for relief on their own behalf and on behalf of the decedent, challenging what they perceive as an unjustified and extreme law enforcement response to a mentally ill man. The named defendants are Colonel Smithers, Sergeant Frye, Trooper Belt, the State of West Virginia, the WVSP, the West Virginia Department of Public Safety, and the unnamed John Doe trooper who participated in the shooting.¹ Defendants Smithers, Frye, and Belt are named in their individual and official capacities. Plaintiffs describe their claims as follows:²

Count I: 42 U.S.C. § 1983—Violation of Decedent Spry's Rights—Excessive Force;

Count II: Violation of Constitutional Right to Not Be Deprived of Life without Due Process of Law Guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Art. 3, § 10 of the West Virginia Constitution;Count III: Violation of Constitutional Right to Not Be Subjected to Cruel and Unusual Punishment Guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Art. III, § 5 of the West Virginia Constitution;

Count IV: Violation of Constitutional Right to Keep and Bear Arms Guaranteed by the Second and Fourteenth Amendments to the United States Constitution and Art. 3, § 22 of the West Virginia Constitution;

Count V: Violation of Constitutional Right to be Free from Unreasonable Searches and Seizures Guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Art. 3, § 6 of the West Virginia Constitution—For Illegally Entering and Damaging Premises;

Count VI: Violation of Constitutional Right to be Free from Unreasonable Searches and Seizures Guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Art. 3, § 6 of the West Virginia Constitution—For Illegally Seizing Plaintiff;

Count VII: Violation of Constitutional Right to Not Be Deprived of Liberty without Due Process of Law Guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Art. 3, § 10 of the West Virginia Constitution;

Count VIII: Violation of Constitutional Right to Enjoy Life and Liberty, and to Pursue and Obtain Happiness and Safety[,] Guaranteed by Art. 3, § 1 of the West Virginia Constitution;

Count IX: Wrongful Death;

Count X: Battery;

Count XI: Wrongful Trespass;

Count XII: False Arrest/Imprisonment;

Count XIII: Intentional Infliction of Emotional Distress;

Count XIV: Outrageous Conduct;

Count XV: 42 U.S.C. § 1983—Violation of Decedent Spry's Family Rights;

Count XVI: 42 U.S.C. § 1983;

Count XVII: Negligent Hiring, Training, and Supervision; andCount XVIII: 42 U.S.C. § 1983 Supervisor Liability.

Count I is brought against Trooper Belt and the unnamed "Trooper Doe 1." Counts II through XVI are brought against the WVSP, Trooper Frye, Trooper Belt, and Trooper Doe 1. Plaintiffs bring Counts XVII and XVIII against the WVSP.

Originally filed in West Virginia state court, Defendants removed this action on February 23, 2016, citing the Court's federal question jurisdiction. There are four motions to dismiss pending, filed by Colonel Smithers, Sergeant Frye, Trooper Belt, and the WVSP. Colonel Smithers moves to dismiss because apart from naming him as a defendant in its introductory paragraphs, the Complaint does not mention him. Colonel Smithers' motion aside, the arguments in support of dismissal overlap considerably. The WVSP and Trooper Belt move to dismiss Counts II through IX, XII, and XIV through XVI. The WVSP also moves to dismiss Counts XVII and XVIII. Sergeant Frye moves to dismiss each count alleged against him (Counts II through XVI). Plaintiffs filed a response to Trooper Belt's motion and proceeded to copy their memorandum, nearly verbatim, in response to the other motions.³ Defendants filed a collective reply.⁴

II. LEGAL STANDARD

A motion to dismiss for failure to state a claim upon which relief may be granted tests the legal sufficiency of a civil complaint. Fed. R. Civ. P. 12(b)(6). A complaint must contain only"a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court observed that a case should be dismissed for failure to state a claim upon which relief can be granted if, viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the plaintiff, the complaint does not contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. While the complaint need not assert "detailed factual allegations," it must contain "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. at 555.

The Supreme Court elaborated on its holding in Twombly in Ashcroft v. Iqbal, 556 U.S. 662 (2009), a civil rights case. There, the Court wrote:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Twombly, 550 U.S.] at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" . . . ). Rule 8 . . . does not unlock the doors of discovery for a Plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 556.

Id. at 678-79. A court decides whether this standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer that "the defendant is liable for the misconduct alleged." Id. A plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level," thereby "nudg[ing][the] claims across...