Wolfe v. Green
| Citation | 660 F.Supp.2d 738 |
| Decision Date | 09 April 2009 |
| Docket Number | Civil Action No. 2:08-01023. |
| Parties | Roger WOLFE, Plaintiff, v. Paul A. GREEN, Jason S. Crane, J.K. Rapp, Kristy L. Layne, D.L. Lemmon, West Virginia State Police, Jason A. Tackett, Emergency Medicine Physicians of Kanawha County, PLLC, and John Does 1-3, Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
Benjamin L. Bailey, Eric B. Snyder, Jonathan R. Marshall, Bailey & Glasser, Charleston, WV, for Plaintiff.
Michael D. Mullins, Natalie C. Schaefer, Robert Lee Bailey, Steptoe & Johnson, Gary E. Pullin, Pullin Fowler Flanagan Brown & Poe, Don R. Sensabaugh, Jr., J. Dustin Dillard, Jeffrey M. Wakefield, Michael Bonasso, Flaherty Sensabaugh & Bonasso, Charleston, WV, John A. Hoyer, Virginia G. Lanham, State Police Legal Counsel, South Charleston, WV, for Defendants.
Pending is plaintiff Roger Wolfe's motion to remand filed September 24, 2008, contending that two of the defendants failed to consent to the removal of this action from state court within the thirty-day period prescribed by 28 U.S.C. § 1446(b). While the rule of unanimity, applicable here, requires the consent of all defendants in due course served, each defendant has thirty days from service upon him in which to consent. McKinney v. Bd. of Trs. of Md. Cmty. Coll., 955 F.2d 924, 928 (4th Cir.1992).
Mr. Wolfe instituted this action by filing a complaint in the Circuit Court of Kanawha County, West Virginia on July 21, 2008. A statement of the facts alleged in the complaint, while unnecessary to a decision on the motion to remand, may be helpful. The allegations, as set forth in the complaint, follow.
At approximately 11:40 p.m. on June 16, 2007 Mr. Wolfe was pulled over on suspicion of driving under the influence. (Compl. ¶ 13). Later that evening, at approximately 12:30 a.m., he was arrested, handcuffed with his hands behind his back, and taken to the West Virginia State Police barracks in South Charleston, West Virginia. (Id. ¶ 14). Upon arrival at the barracks, Mr. Wolfe was placed in a hallway with several other detainees. (Id. ¶ 15). At some point Mr. Wolfe, still rear cuffed, was seated in the "booking office" where West Virginia State Trooper, Kristy L. Layne ("Trooper Layne") was filling out paperwork. (Id. ¶¶ 6, 16, 17). Trooper Layne became irritated because Mr. Wolfe was smiling and asked what he was smiling about. (Id. ¶ 18). After receiving no response, Trooper Layne left her desk, stated that "she would take the smile off his face," and told Mr. Wolfe to stand up. (Id.) When Mr. Wolfe complied, Trooper Layne grabbed and shook him, and then shoved him back into his chair. (Id.)
Following the altercation between Mr. Wolfe and Trooper Layne, West Virginia State Trooper Paul A. Green ("Trooper Green") entered the booking office and began talking with Trooper Layne. (Id. ¶ 19). Trooper Green then told Mr. Wolfe that he "would take the smile off his face," grabbed him, and took him into an empty room adjoining the booking office. (Id. ¶ 20). The complaint states, upon information and belief, that West Virginia State Trooper Jason S. Crane ("Trooper Crane") was also in the empty room, and that without provocation Trooper Green, aided by Trooper Crane, "unnecessarily, unreasonably, and excessively assaulted and battered Mr. Wolfe, while he had his hands handcuffed behind his back." (Id. ¶¶ 4, 22). Mr. Wolfe contends that Troopers Green's and Crane's use of force was not in a good faith effort to maintain or restore discipline. (Id. ¶ 23). While due to severe head trauma, Mr. Wolfe has no memory of the events leading up to, during, or immediately after his beating, (Id. ¶ 26), Mr. Wolfe asserts upon information and belief that as a result of the beating, he began to bleed from his head and nose and that an unknown trooper was ordered to clean up the blood with a mop. (Id. ¶ 22). When Trooper Green exited the room where the beating occurred he asked the other detainees in the booking room "if anyone else wanted to be a smart ass," and threatened to take them into the adjoining room. (Id. ¶ 24). The complaint states that for several months prior to, and on the night of Mr. Wolfe's beating, none of the surveillance cameras in the barracks were working and that West Virginia State Police officials and troopers had knowledge of this state of affairs. (Id. ¶ 25).
At 1:13 a.m. on June 17, 2007, Mr. Wolfe was admitted to Thomas Memorial Hospital. (Id. ¶ 27). The complaint states, upon information and belief, that rather than immediately treating Mr. Wolfe's injuries, the treating doctor, Jason A. Tackett ("Dr. Tackett"),1 allowed a supervisory West Virginia State Trooper, Sergeant J.K. Rapp ("Sergeant Rapp"), to interview and take statements from Mr. Wolfe regarding the circumstances of his beating. (Id. ¶ 28). Mr. Wolfe contends that this interview was conducted in an attempt to exonerate officers of the West Virginia State Police from liability for the beating and had nothing to do with his arrest. (Id.) According to the complaint, Dr. Tackett acted in furtherance of a conspiracy and joint venture to deprive Mr. Wolfe of his rights. (Id.)
During the course of his interview of Mr. Wolfe, Sergeant Rapp wrote down questions, and Mr. Wolfe's answers, on a sheet of paper. (Id. ¶ 29). Mr. Wolfe was then required to initial next to each question and answer. (Id.) The complaint states that Mr. Wolfe's initials are illegible and made randomly, at times above the lines Sergeant Rapp drew next to the questions, and at times below. (Id.) Due to his head trauma, Mr. Wolfe has no recollection of the interview which ended at approximately 2:10 a.m. (Id.) Mr. Wolfe contends that Sergeant Rapp acted in an attempt to "cover up the assault and battery of Mr. Wolfe and further deprive him of his civil rights." (Id. ¶ 30).
At the conclusion of the interview, Mr. Wolfe underwent a CT scan and radiological testing. (Id. ¶ 32). His head wounds were also sutured. (Id.) The CT scan and x-rays revealed several fractured bones in Mr. Wolfe's nose and face, including to bones around his eyes. (Id. ¶ 33). Despite these injuries, and severe head trauma, Mr. Wolfe was released to the custody of Trooper Green at approximately 4:15 a.m. on June 17, 2007 and taken to the South Charleston Regional Jail. (Id. ¶ 34). Later that morning, Mr. Wolfe went before a magistrate judge for arraignment via video conference. After several hours he was arraigned and then released. (Id. ¶¶ 35-36).
On June 18, 2007, the day after his release, Mr. Wolfe went to his primary care physician complaining of pain and watery discharge from his nose. (Id.) Mr. Wolfe's primary care physician determined that Mr. Wolfe's injuries were potentially life threatening and told him to go to the hospital immediately. (Id. ¶¶ 36, 37). Mr. Wolfe went to the Charleston Area Medical Center where doctors determined that the watery discharge from his nose was spinal fluid and confirmed the several fractures in his nose and face. (Id. ¶ 37). Given his injuries, Mr. Wolfe was admitted to Charleston Area Medical Center that day and discharged on June 23, 2007. (Id. ¶ 38).
Mr. Wolfe's ten count complaint names Trooper Green, Trooper Crane, Trooper Layne, Sergeant Rapp, Dr. Tackett and EMP, as well as the Superintendent of the West Virginia State Police, D.L. Lemmon ("Superintendent Lemmon"), the West Virginia State Police ("WVSP"), and John Does 1-3 as defendants.2 The following claims are set forth: Count I, Violation of 42 U.S.C. § 1983 for Excessive Force (against defendants Green and Crane); Count II, Violation of 42 U.S.C. § 1983 for Unnecessary Infliction of Pain and Suffering (against defendants Green and Crane); Count III, Violation of 42 U.S.C. § 1983 for Failure to Intervene to Prevent the Use of Excessive Force or the Unnecessary Infliction of Pain and Suffering (against defendants Green, Crane, and Layne); Count IV, Violation of 42 U.S.C. § 1983 for Coercive Questioning and Conduct that Shocks the Conscious (against defendant Rapp); Count V, Conspiracy to Violate 42 U.S.C. § 1983 for Coercive Questioning and Conduct that Shocks the Conscious (against defendants Green, Crane, Layne, Rapp, Tackett, and EMP); Count VI Conspiracy to Violate 42 U.S.C. § 1983 (against defendants Green, Crane, Layne, Rapp, Tackett, and EMP); Count VII, Common Law Assault and Battery (against defendants Green, Crane, and Layne); Count VIII, Common Law Intentional or Negligent Infliction of Emotional Distress (against defendants Green, Crane, Layne, and WVSP); Count IX, Violation of 42 U.S.C. § 1983 for Failure to Train, Supervise, and have Adequate Policies (against defendants Rapp and Lemmon), Count X, Common Law negligent Supervision, Hiring, Training, Discipline, and Retention (against defendants Rapp, Lemmon and, WVSP). Mr. Wolfe seeks both damages at law and equitable relief, in addition to fees, costs and any other relief the court deems equitable and just. (Id. at 16-17).
On July 31, 2008, Benjamin Bailey, counsel for Mr. Wolfe, wrote a letter to John Hoyer, a West Virginia Assistant Attorney General, seeking to determine the name of counsel for the WVSP and the West Virginia State Trooper defendants other than Crane. In pertinent part, the letter reads,
I represent Roger Wolfe in the above referenced matter. A courtesy copy of the complaint is enclosed. My office has been notified by Gary Pullin that he is representing Jason Crane and will accept service on behalf of Trooper Crane.
I write to inquire who counsel is for the West Virginia State Police and the remaining Troopers and to see if they will accept service or if we need to serve the Troopers individually.
(7/31/08 Bailey Letter, Mot. to Remand, ex. 1). By letter dated August 12, 2008, Mr. Hoyer responded. The relevant portion of Mr. Hoyer's letter reads, "Please be advised as counsel for the West Virginia State Police I will...
To continue reading
Request your trial
- McCoy v. Norfolk S. Ry. Co.
- Redleski v. Plumley
- Rutan v. State Bd. of Risk & Ins. Mgmt., Civil Action No. 5:15-09264
-
Lee v. City of Fayetteville
...sufficiency of plaintiff's attempted service is judged under North Carolina law. See Fed. R. Civ. P. 81(c)(1); Wolf v. Green, 660 F. Supp. 2d 738, 745-46 (S.D. W. Va. 2009); see also Wallace v. Microsoft Corp., 596 F.3d 703, 706-07 (10th Cir. 2010); Lee v. City of Beaumont, 12 F.3d 933, 936......