Tolliver v. City of Dunbar, Civil Action 2:21-cv-00011

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
PartiesKHRISTOPHER TOLLIVER, Plaintiff, v. CITY OF DUNBAR, et al., Defendants.
Docket NumberCivil Action 2:21-cv-00011
Decision Date01 November 2021


CITY OF DUNBAR, et al., Defendants.

Civil Action No. 2:21-cv-00011

United States District Court, S.D. West Virginia, Charleston Division

November 1, 2021



Pending before the Court is the motion to dismiss filed by Defendants City of Dunbar and Officer Lester (collectively "Defendants"). (ECF No. 4.) For the reasons discussed below, the Court GRANTS IN PART and DENIES IN PART the motion


This action arises out of an incident where Defendant Officer Lester ("Officer Lester") allegedly injured Plaintiff Khristopher Tolliver ("Plaintiff) during the course of an arrest. According to the Complaint, on or about April 29, 2021, Officer Lester stopped Plaintiff in the parking lot of City National Bank, where Plaintiff was working as a night cleaner. (ECF No. 1 at 2, ¶¶ 6, 9.) Plaintiff claims he "ask[ed] why he had been stopped," but Officer Lester commanded him to "get back in the vehicle[.]" (Id. at ¶ 9.) Then, Plaintiff alleges he was "informing Defendant Lester that he [was] just going to work and ha[d] not broken any laws," when Officer Lester "charge[d]," "tackle[d]," "violently assault[ed]," and arrested Plaintiff. (Id. at ¶ 10.)


After the arrest, Plaintiff was taken to the Dunbar Police Station and charged with Obstructing an Officer. (Id. at 3, ¶ 12.) However, Plaintiff asserts that another officer wrote the police report, which did not list Officer Lester as the arresting officer. (Id.) Plaintiff alleges this police report states he was stopped for "suspicious activity" because "a vehicle had been seen at the Super 8 Motel," which he contends is not in the vicinity of City National Bank. (Id. at ¶ 13). Plaintiff was later informed that "his vehicle had been mistaken for another." (Id. at ¶ 14.) As a result of this incident, Plaintiff claims he suffered "a severe wrist injury," several lacerations and bruises, and "severe emotional and mental trauma[.]" (Id. at ¶¶ 15, 17.)

Plaintiffs Complaint alleges violations of the West Virginia Constitution, 42 U.S.C. § 1983 civil rights violations, battery, and intentional infliction of emotional distress ("IIED") against Officer Lester. As against Defendant City of Dunbar ("the City"), Plaintiff alleges violations of the West Virginia Constitution, as well as § 1983 municipal liability and negligent hiring, retention, and supervision. On April 15, 2021, Defendants filed the pending Motion to Dismiss. (ECF No. 4.) Plaintiff responded, (ECF No. 9), and Defendants timely replied, (ECF No. 10). As such, this motion is fully briefed and ripe for adjudication.


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 plaintiff must allege sufficient facts, which, if proven, would entitle him to relief under a cognizable legal claim. BellAtl. Corp. v. Twombly, 550 U.S. 544, 554-55 (2007). A case should be dismissed 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. In applying this standard, a court must utilize a two-pronged approach. First, it must separate the legal conclusions in the complaint from the factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Second, assuming the truth of only the factual allegations, the court must determine whether the plaintiffs complaint permits a reasonable inference that "the defendant is liable for the misconduct alleged." Id. 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)). A plaintiffs "[f]actual allegations must be enough to raise a right to relief above the speculative level," thereby "nudg[ing] [the] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 555, 570.


Plaintiffs Complaint alleges eleven causes of action. Defendants attack all counts in the pending Motion to Dismiss. As an initial matter, Plaintiff agreed to dismiss Count X (racial discrimination), as well as all claims brought under the West Virginia Constitution, other than those brought under Article III, Section 10. (ECF No. 9 at 1, 8.) As such, Count X and all claims brought under Article III, Sections 1, 5, 6, 14 of the West Virginia Constitution are DISMISSED. All remaining claims are addressed in turn.

A. Violations of Article III, Section 10 of the West Virginia Constitution

Defendants contend that Plaintiffs claim made pursuant to Article III, Section 10 of the West Virginia Constitution must be dismissed because Section 10 does not serve as an adequate vehicle for Plaintiff s excessive force claim. (See ECF No. 5 at 5.) In response, Plaintiff cites to


Fields v. Mellinger, 851 S.E.2d 789 (W.Va. 2020), in which the West Virginia Supreme Court of Appeals ("WVSCA") held that there are no private causes of action for monetary damages arising out of Article III, Section 6 of the West Virginia Constitution. (ECF No. 9 at 2.) Plaintiff argues that Fields permits a private cause of action under Article III, Section 10, by reasoning that the WVSCA's analysis "heavily involved 'alternative remedies' for raising these claims instead of creating a new cause of action under [Section] 6." (Id.)

Article III, Section 10 of the West Virginia Constitution states, "No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers." This mirrors the Fourteenth Amendment of the United States Constitution. Nutter v. Mellinger, 2020 WL 401790, at *6 (S.D. W.Va. 2020). Thus, the protections afforded to West Virginia citizens under the search and seizure provisions of the West Virginia Constitution "are coextensive with those provided for in the Fourth and Fourteenth Amendments to the United States Constitution." State v. Clark, 752 S.E.2d 907, 920-21 (W.Va. 2013). To that extent, the Supreme Court of the United States has instructed that "all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other' seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach." Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original); see United States v. Lanier, 520 U.S. 259, 272 n.7 (1997).

This Court has held that "the rule stated in Graham and reinforced in Lanier applies to state constitutional claims as well-i.e., the protections afforded by substantive due process are at best redundant of those afforded by the more specific provisions of Article III, Section 6." Cottrell on behalf of Est. of Cottrell v. Stepp, No. 2:18-CV-01281, 2019 WL 1140198, at *3 (S.D. W.Va.


Mar. 12, 2019) (citations omitted). However, the WVSCA subsequently held that "West Virginia does not recognize a private right of action for monetary damages for a violation of Article III, Section 6 of the West Virginia Constitution." See Fields, 851 S.E.2d at 789. Thus, the same question is before this Court again: "whether Plaintiff['s] Article III, Section 10 claim can still be considered redundant if Article III, Section 6 is no longer a viable cause of action in West Virginia." See Cottrell on behalf of Est. of Cottrell v. Stepp, No. 2:18-CV-01281, 2021 WL 1966830, at *2 (S.D. W.Va. May 17, 2021). This Court has entered an Order of Certification wherein it certified this question to the WVSCA, (see id.), and is awaiting an answer.

Accordingly, Defendants' motion is DENIED WITHOUT PREJUDICE as it relates to Plaintiff s claim under Article III, Section 10 of the West Virginia Constitution, pending an answer from the WVSCA to this Court's certified question. Once that answer is received, the Court will revisit this Count accordingly.

B. Count III for Negligent Hiring, Retention, and Supervision

Count III of the Complaint alleges that (1) the City "failed to exercise reasonable care in the hiring, retention, and/or supervision" of Officer Lester, and (2) the City is "vicariously liable" for Officer Lester's actions. (ECF No. 1 at 6, ¶ 30.) Defendants first argue that Plaintiff has failed to plead sufficient factual allegations to support his claim of negligence against the City.[1](See ECF No. 5 at 7.) Second, Defendants argue that the City cannot be held liable for intentional acts committed by its employees under W.Va. Code § 29-12A-4(c)(2). (Id. at 9.)


Plaintiff responds in a conclusory fashion by stating that his claim is adequately pled and that "the law does not require [him] to show all of the facts and evidence that [he] intends on obtaining during discovery." (ECF No. 9 at 3, 5.) He further argues that Defendants are not entitled to statutory immunity under W.Va. Code § 29-12A-5(b) because Officer Lester's actions "were done with a malicious purpose and in bad faith." (Id. at 3.)

To start, Plaintiff has failed to plead sufficient factual allegations to support a claim of negligent hiring, retention, and supervision. A negligent hiring, retention, and supervision claim focuses on an employer's liability for hiring, supervising, or retaining an employee "whom the employer knew, or should have known, posed a risk to third parties." Radford v. Hammons, Civ. Action No. 2:14-24854, 2015 WL 738062 at *6-*7 (S.D. W.Va. Feb. 20, 2015). The analysis focuses on whether (1) the employer (a) was on notice of...

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