Cottrell ex rel. Cottrell v. Stepp
| Decision Date | 12 March 2019 |
| Docket Number | CIVIL ACTION NO. 2:18-cv-01281 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | BRADELY COTTRELL, on behalf of the Estate of BERNARD DALE COTTRELL, Plaintiff, v. NATHAN SCOTT STEPP, Individually as a member of the West Virginia State Police, et al., Defendants. |
Plaintiff Bradely Cottrell ("Plaintiff") brings this action on behalf of the estate of his deceased father, Bernard Dale Cottrell ("Mr. Cottrell"), pursuant to 42 U.S.C. § 1983 and West Virginia state law against Defendants Nathan Scott Stepp ("Stepp"), Zach W. Hartley ("Hartley"), Okey S. Starsick ("Starsick"), the West Virginia State Police ("WVSP") (collectively, "State Police Defendants"), Robert B. Hickman ("Hickman") and the Roane County Sheriff's Department ("RCSD") (collectively, "Roane County Sheriff Defendants"). (ECF No. 1.) Before this Court are motions to dismiss filed by State Police Defendants, (ECF No. 10), and by RCSD, (ECF No. 13). For the reasons explained more fully herein, State Police Defendants' motion, (ECF No. 10), is GRANTED IN PART and DENIED IN PART. RCSD's motion, (ECF No. 13), is GRANTED.
This case arises out of the September 6, 2016 death of Mr. Cottrell at the hands of WVSP and RCSD officers during a high-speed pursuit. (ECF No. 1 at 5-8.) The complaint alleges that Mr. Cottrell's family contacted law enforcement to report that Mr. Cottrell had brandished a shotgun and was mentally ill. (Id. at 5.) That afternoon, the officers "pursued Mr. Cottrell []at a high rate of speed" and were able to disable his vehicle by "block[ing] him in" when he attempted to "evade pursuit" by making "a three-point turn to change direction." (Id.) Immediately afterward, Stepp, Hartley, and Hickman exited their cruisers and began firing their weapons at Mr. Cottrell, whom they claim was armed. (Id. at 5-6.) The officers fired a total of 29 shots, 8 of which hit Mr. Cottrell, killing him. (Id. at 6.)
State Police Defendants filed a motion to dismiss several of Plaintiff's claims on October 2, 2018. (ECF No. 10.) Plaintiff filed a timely response, (ECF No. 18), and State Police Defendants filed a timely reply, (ECF No. 20). RCSD filed a motion to dismiss all of Plaintiff's claims against it on October 3, 2018. (ECF No. 13.) Plaintiff filed a timely response, (ECF No. 19), and RCSD filed a timely reply, (ECF No. 21). As such, the motions to dismiss are fully briefed and ripe for adjudication.
In general, 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) (). However, to withstand a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint mustplead 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 has facial 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). A complaint that alleges enough facts "to satisfy the elements of a cause of action created by [the relevant] statute" will survive a motion to dismiss. Id. at 648 (quoting McCleary-Evans, 780 F.3d at 585).
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 allegations in great detail, but the allegations must contain sufficient factual heft to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of that which is alleged." Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (internal quotation marks omitted).
WVSP contends that Plaintiff's 42 U.S.C. § 1983 claim against it should be dismissed because the Eleventh Amendment to the United States Constitution bars such claims against states and their agencies. (See ECF No. 11 at 5-7.) Indeed, the Eleventh Amendment prohibits actions for money damages against states, their instrumentalities, and their agents in most circumstances. See Lee-Thomas v. Prince George's Cty. Pub. Schs., 666 F.3d 244, 248-49 (4th Cir. 2012). This sovereign immunity applies to § 1983 claims; thus, a state and its instrumentalities are not considered "persons" that may be sued under § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 65-67 (1989). Plaintiff concedes that Count III, his § 1983 claim against WVSP, should be dismissed "on sovereign immunity grounds." (ECF No. 18 at 2 n.1.) Accordingly, Count III is DISMISSED WITH PREJUDICE.
Stepp and Hartley argue that they are entitled to immunity from suit with respect to Plaintiff's negligence claims against them. (ECF No. 11 at 8-10.) "Under the doctrine of qualified immunity, the discretionary actions of government agencies, officials and employees performed in an official capacity are shielded from civil liability so long as the actions do not violate a clearly established law or constitutional duty." W. Va. State Police v. Hughes, 796 S.E.2d 193, 198 (W. Va. 2017).1 This rule operates even when the "discretionary acts" that are the subject of the complaint were "committed negligently." Maston v. Wagner, 781 S.E.2d 936,948 (W. Va. 2015). Therefore, in determining whether qualified immunity applies, the principal inquiry is whether a public official's conduct "violate[s] clearly established laws of which a reasonable official would have known" or is "fraudulent, malicious, or otherwise oppressive." W. Va. Reg'l Jail & Corr. Facility Auth. v. A.B., 766 S.E.2d 751, 762 (W. Va. 2014) (quoting Syllabus, State v. Chase Sec., Inc., 424 S.E.2d 591 (W. Va. 1992)). If so, then the official is not entitled to qualified immunity. See Syl. Pt. 5, Maston, 781 S.E.2d 936.
On the other hand, if the public official's alleged conduct does not "violate a clearly established statutory law or constitutional right" and is not "fraudulent, malicious, or otherwise oppressive"—i.e., the claim is one of "mere negligence"—then the public official is entitled to qualified immunity "[i]n the absence of an insurance contract waiving the defense." A.B., 766 S.E.2d 751 at 762-64 (alterations and internal quotation marks omitted); see Clark v. Dunn, 465 S.E.2d 374, 380-81 (W. Va. 1995). Stepp and Hartley argue that Plaintiff's claims fall within the "mere negligence" category and should thus be dismissed. (See ECF No. 11 at 8; ECF No. 20 at 4.) However, despite the "negligence" label the complaint gives to those claims, Plaintiff alleges that Stepp's and Hartley's actions were "reprehensible, willful and wanton, malicious, and in blatant and intentional disregard for the rights owed to Mr. Cottrell." (ECF No. 1 at 14.) Plaintiff further "incorporates by reference the allegations made in" his previously alleged claims, including those for excessive force and battery. (Id.) In other words, Plaintiff alleges that Stepp and Hartley engaged in "malicious" conduct that may constitute a violation of Mr. Cottrell's constitutional rights. (See id.) Accordingly, this Court finds it inappropriate to dismiss the "negligence" claims as barred by qualified immunity at this time. State Police Defendants' motion to dismiss Count VI of Plaintiff's complaint is DENIED.
Stepp and Hartley also assert that Plaintiff's claim made pursuant to Article III, Section 10 of the West Virginia Constitution must be dismissed because he makes a claim under Article III, Section 6 of the West Virginia Constitution. (ECF No. 11 at 10-11.) Stepp and Hartley argue that Plaintiff cannot bring a substantive due process claim when another, more specific constitutional provision covers the allegedly violated right. Count IV of Plaintiff's complaint is based on Stepp's and Hartley's use of "excessive and deadly force . . . during the shooting of Mr. Cottrell on September 6, 2016, resulting in his death." (ECF No. 1 at 12.) It alleges claims based on Article III, Section 10 of the West Virginia Constitution, which corresponds with the federal Constitution's due process clause, and Article III, Section 6 of the West Virginia Constitution, which corresponds with the federal Constitution's Fourth Amendment protections against unreasonable searches and seizures. (See id.)
Plaintiff contends that West Virginia law recognizes a private right of action for state constitutional violations, including claims brought pursuant to Article III, Section 10. (ECF No. 18 at 4.) However, Plaintiff's response fails to address the Supreme Court's instruction that "all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other...
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