Conley v. Ryan

Decision Date13 March 2015
Docket NumberCivil Action No. 2:13–cv–32654.
Citation92 F.Supp.3d 502
CourtU.S. District Court — Southern District of West Virginia
PartiesCarl CONLEY, an individual, Plaintiff, v. A.J. RYAN, an individual, and Ryan & Ryan, Attorneys at Law and Michael Sparks, individually and in his official capacity as the Prosecutor of Mingo County, and Does 1 through 60, inclusive, Defendants.

John Patrick L. Stephens, Mark F. Underwood, Underwood & Proctor Law Offices, Huntington, WV, for Plaintiff.

Daniel C. Cooper, Jamison H. Cooper, Cooper Law Offices, Bridgeport, WV, Tim J. Yianne, Mannion & Gray, Philip B. Sword, William R. Slicer, Shuman McCuskey & Slicer, Emily L. Lilly, Gary E. Pullin, Pullin Fowler Flanagan Brown & Poe, Charleston, WV, for Defendants.


JOHN T. COPENHAVER, JR., District Judge.

Pending is the individual motion to dismiss of defendant Michael Sparks, filed March 18, 2014, and a joint motion to dismiss by defendants A.J. Ryan and Ryan & Ryan, Attorneys at Law, filed March 18, 2014.

I. Background

Plaintiff Carl Conley (Conley) is a resident of Mingo County, West Virginia. He was formerly employed by the West Virginia Department of Transportation Division of Highways (“DOH”). Defendant Michael Sparks (Sparks) was the elected county prosecuting attorney of Mingo County, West Virginia. Defendant A.J. Ryan (Ryan) is an attorney who maintains his law office, Ryan & Ryan, Attorneys at Law, in Williamson, in Mingo County. Ryan & Ryan is also a defendant. The parties' memoranda reveal that Ryan & Ryan is the trade name of a firm of which Ryan is the sole proprietor. As the claims alleged against the individual and the firm are identical, when the court refers to Ryan, both are included.

Conley instituted this action on December 19, 2013. It initially included several other defendants, against whom claims have been voluntarily dismissed, including Dallas Toler, a Mingo County magistrate, Norman Mines, a Mingo County deputy sheriff, and Michael Thornsbury, a West Virginia circuit court judge sitting in Mingo County. Conley contends that he was arrested on a “bogus” drug charge after he reported the improper use of state property by one of Judge Thornsbury's business partners. See Pl. Compl. ¶¶ 11–20. The allegations of the plaintiff that follow are taken as true for purposes of the motion to dismiss.

Conley's story begins in the summer of 2010. On July 19, 2010 he was injured in a car accident in which he was apparently faultless inasmuch as he was a passenger in a vehicle that was rear-ended. Id. ¶¶ 11–12. His injuries caused him to miss about a month of work at the DOH. Id. ¶ 14. Sometime after returning to work Conley became aware that a DOH vehicle was being used for non-governmental purposes by the Thornsbury business partner. Id. ¶ 15. During this non-governmental use, the vehicle became stuck in the mud and DOH employees were dispatched to assist in its retrieval. Id. ¶ 16. Following this incident, Conley filed an internal complaint concerning the private use of government property. Id. After filing the complaint, Conley was summoned to a meeting with DOH supervisors and told to “stop running his mouth” and that the nongovernmental use of the machine was “none of his f–––ing business.” Id. ¶ 18.

A month after that meeting, Conley was arrested on “bogus drug charges” involving pain medication that is not otherwise described. Id. ¶ 19, ¶ 20. One of Conley's neighbors stole the medication out of his truck and immediately thereafter Conley was “surrounded by law enforcement officers” and arrested. Id. Conley was then “coerced ... into confessing to the crime on video” by his friend, Deputy Joe Smith, after being promised that he could go home if he confessed. Id. ¶ 21. The charge led the DOH to fire Conley, and the confession was used against him at his hearing for unemployment benefits. Id. ¶ 22, ¶ 23.

According to Mingo County public records relating to Conley's criminal proceeding, he was arrested, committed and arraigned on October 20, 2010, on two state felony drug offenses occurring on that same date, consisting of possession of controlled substances with intent to deliver and conspiracy to do so, and designated as case numbers 10F–638 and 10F–639. See Ex. 3 Def. Ryan's Mot. for Summ. J. He was represented by court-appointed counsel, Lauren Thompson. Id. He was scheduled for a preliminary hearing on October 27, 2010, but he waived preliminary hearing and was released on bond on October 27, 2010. Id. On the same date, he was bound over to Mingo County Circuit Court on both charges, which then became criminal action number 10–B–79. Id. See Philips v. Pitt County Mem'l Hosp., 572 F.3d 176, 180 (4th Cir.2009) ( [When] reviewing a Rule 12(b)(6) dismissal, [the reviewing court] may properly take judicial notice of matters of public record.”).

In his complaint, Conley alleges that, prior to his arrest, he had retained Ryan to pursue a civil suit seeking damages for the injuries he suffered in the July 2010 car accident. Pl. Compl. ¶ 26. Conley further alleges that when he reported to “Home Confinement” for the fitting of his ankle collar, presumably as a condition of his bond, Sparks told Conley that his criminal counsel, Lauren Thompson, was “not good for his case,” and asked him if he had any money. Id. ¶ 25. When Conley then told Sparks that he was being represented by Ryan in his civil case, Sparks told him that switching to Ryan “would be good for him on this case.” Id. ¶ 27. Sparks also told Conley, when he appeared for his arraignment, that if he “proceeded with a preliminary hearing at the arraignment, there would be no deals in the future.” Id. ¶ 29. Then, at the arraignment, Sparks “threatened” him “by telling him that you cannot find a Mingo County jury that would not convict anyone on a drug charge.” Id.

Conley later met with Ryan and discussed having him become his defense counsel. Id. at ¶ 30. Ryan informed Conley that he could get a misdemeanor conviction and time served if he paid $3,000.00.” Ryan further told him, ‘For $3,000, I can get it down to a misdemeanor. You were getting 2 to 20,’ apparently meaning years in prison. Id. Ryan told Conley that the $3,000 attorney's fee for the criminal case could be deducted from any settlement money obtained in the civil suit he was already handling for him. Id. ¶ 31. Conley retained Ryan for what was then criminal action No. 10–B–79. Id. ¶ 40.

Ryan advised Conley that he should settle the civil case because “the felony charges could lead to the dismissal” of the civil case. Id. ¶ 34. Following this advice, Conley chose to settle the civil case. Id. ¶ 33. He received a sum that did not satisfy his already-accrued medical expenses of $14,562.00 and his lost wages of $3,427.20, and did not cover the cost of surgery to repair a shoulder injury caused by the accident.Id. ¶¶ 32–33.

Conley remained on home confinement, perhaps for over a year, before the criminal case was finally resolved on January 12, 2012, when Conley pled guilty before Magistrate Toler to two misdemeanor drug charges (possession and conspiracy to possess), filed that same day as case numbers 12M–57 and 12M–58. Id. ¶¶ 36, 85. He was represented on that occasion by Diane Carter Wiedel whom he says “permitted him to plead guilty” to misdemeanor charges that were filed that very day, “more than one year after they were alleged to have occurred.” Id. ¶ 86. Though not alleged, Wiedel may have been appearing for Ryan.

Conley was apparently sentenced to the twelve months of home confinement that he had already served. Id. ¶ 35 ¶ 36. Conley contacted Ryan at some point to “get him off of home confinement.” Id. ¶ 37. Despite his requests, Conley remained on home confinement for an “additional four months.” Id. ¶ 38.

Conley's complaint contains nine counts. The first six counts set forth claims solely against Ryan. Count Seven contains two tort of outrage claims alleged separately against Ryan and Sparks. Count Eight names only Diana Carter Wiedel, Conley's counsel at the hearing on January 12, 2012, where he plead guilty to two misdemeanor charges. She has already been dismissed but Count Eight otherwise remains. Count Nine initially contained claims against Norman Mines, Dallas Toler, Michael Thornsbury, and Michael Sparks; only the claim against Sparks remains. Each count incorporates by reference the allegations contained in all paragraphs preceding it.

Count One alleges that Ryan committed legal malpractice while representing Conley in both the civil and criminal matters. Id. ¶ 40. Counts Two and Three are contract-based reformulations of the malpractice claims: Count Two alleges breach of contract, while Count Three alleges a breach of the duty of good faith. Id. ¶ 45, ¶ 52–53.

Count Four alleges that Ryan committed fraud when he advised Conley that his civil case “would be dismissed because felony charges had been filed against him.” Id. ¶ 57–59, ¶ 61. Count Five sets forth essentially the same claim as Count Four, but is styled as a claim of intentional misrepresentation. Id. ¶ 65, ¶ 68–69. Count Six relies on the same theory as the previous two counts, but is formulated as a claim for negligent misrepresentation. Id. ¶ 73–75.

Count Seven assert claims for outrage, one against Ryan for the way in which he handled Conley's legal representation, and the other against Sparks for his handling of the criminal prosecution. Id. ¶ 79–82.

Count Eight alleges that Conley's counsel at his plea hearing, Diana Carter Wiedel, committed malpractice by allowing him to “plead guilty to misdemeanor charges that were filed more than one year after they were alleged to have occurred.” Id. ¶ 86.

Count Nine contends that Sparks deprived Conley of his constitutional rights and asserts a claim under 42 U.S.C. § 1983 (“Section 1983 ”). Id. ¶¶ 90–95. Specifically, Conley asserts that Sparks' unconstitutional conduct resulted in him “spending 16 months on home confinement for crimes he did not commit”. Id. ¶ 94.

II. ...

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