Opinion
No. 3:02CV4
August 7, 2002
REPORT AND RECOMMENDATION
I. PROCEDURAL HISTORY
A. Introduction
This matter is pending before me for initial review and report and recommendation pursuant to Standing Order of Reference for Prisoner Litigation Filed Pursuant to 42 U.S.C. § 1983(Standing Order No. 3) and the March 29, 2002 Order of Reference issued by the Honorable W. Craig Broadwater, United States District Court Judge.
On January 17, 2002, the plaintiff, Todd Hunter Rankin, ["Plaintiff"], by his attorney, Laura Rose, filed this civil rights complaint pursuant to 42 U.S.C. § 1983 against the above-named defendants alleging that the defendants violated his constitutional rights guaranteed by the West Virginia and United States Constitutions. Plaintiff seeks compensatory damages, punitive damages, prejudgment and postjudgment interest, his costs, including reasonable attorney's fees associated with prosecuting this matter, and any other relief that the Court may deem proper.
In response to the complaint, the Berkeley County Commission ["County Commission"], Berkeley County Prosecuting Attorney's Office, Berkeley County Sheriff's Department ["Sheriffs Department"], Pamela Games-Neely ["Games-Neely"], and Lynn Nelson ["Nelson"] moved to dismiss the complaint pursuant to Rule 12(b)(6).
The remainder of the defendants, Ronald Jones ["Jones"], Christopher S. McCulley ["McCulley"], Ronald Gardner ["Gardner"], and John Vanorsdale, Jr. ["Vanorsdale"], have filed answers to the complaint, but have not moved for dismissal of the complaint.
This Report and Recommendation addresses the motions to dismiss that have been filed to date.
B. Plaintiff's Alleged Facts
On or about January 17, 2000, Plaintiff was involved in an altercation with his employer, Larry Schroyer, at Schroyer's home. After the altercation ceased, Schroyer called the police and requested that a warrant be issued for Plaintiff's arrest. Plaintiff alleges that on or about January 17, 2000, while acting in their official capacity for the Berkeley County Sheriff's Department, Defendants McCulley, Gardner and Vanorsdale, Jr., in conspiracy with one another, individually and collectively, assaulted, beat, kicked, and otherwise inflicted serious bodily injury upon him. After the alleged assault, Plaintiff was hospitalized for ten days at City Hospital for a collapsed lung.
The Sheriff's Department charged Plaintiff with maliciously wounding Schroyer. However, on August 24, 2000, the magistrate found no probable cause and dismissed the charge. According to Plaintiff, he then requested that Games-Neely investigate the activity of McCulley, Gardner and Vanorsdale, but she refused. Subsequently, Plaintiff's attorney sought to appear before the Berkeley County Grand Jury to present evidence of crimes committed by the arresting deputies against Plaintiff Rarikin. The grand jury returned 15 indictments against McCulley, Gardner, and Vanorsdale. However, the charges were eventually dismissed without prejudice. Thereafter, Games-Neely sought an indictment against Plaintiff for unlawfully wounding Schroyer. The October 2000 term of the Berkeley County grand jury returned a true bill against Plaintiff. Plaintiff pled no contest to simple assault.
C. Plaintiff's Complaints
Plaintiff makes the following complaints against the defendants:
1. Berkeley County Sheriff's Department and Ronald Jones
2. McCulley, Gardner and Vanorsdale, Jr.
(a) Refused to initiate any sort of criminal investigation into the conduct of the individually named Defendants to the lawsuit; and
(b) Breached their duty to the Plaintiff, on January 17, 2000, to insure his safety even while under arrest or within the custody of the Berkeley County Sheriff's epartment and to further protect and preserve his state and federal constitutional rights by:
(1) failing to properly train its officers and members, including Defendants McCulley, Gardner, and Vanorsdale, Jr., in such a way as to perform their missions without violating the law by exercising correctional powers over any person by violence;
(2) failing to seek out, negate and prevent the execution of any policy or a agreement, written or unwritten, wherein its members physically assault and beat up any person accused of a criminal offense;
(3) failing to discipline its members who have engaged in violent and physically assaultive conduct in the past;
(4) failing to exercise supervision over its members so as to preclude the intentional violent and physically assaultive conduct towards criminal suspects;
(5) failing to appropriately investigate the criminal backgrounds and give the necessary consideration to that investigation as it pertains to the prior criminal record, particularly that of a violent nature of prospective deputies;
(6) hiring Defendant McCulley with a known criminal background of a violent nature to the extent that the Honorable Christopher Wilkes denied Defendant McCulley a concealed weapon permit prior to the time that Defendant McCulley was employed as a deputy with the Berkeley County Sheriff's Department without requiring any sort of sensitivity training, monitoring, or testing; and
(7) failing to appropriately reprimand or supervise Defendant Vanorsdale, Jr., with respect to that Defendant's actions of exposing himself to women in and around the Martinsburg Mall area while employed as a deputy for the Berkeley County Sheriff's Department, with such actions directly resulting in that Defendant's inability to return to the Martinsburg Mall.
(a) Breached their duty of care to provide for Plaintiff's safety while in their custody on or about January 17, 2000 by:
(1) failing to properly perform their missions without violating the law by exercising correctional powers over any person by violence;
(2) engaging in or encouraging other members to engage in any policy or agreement, written or unwritten, wherein the Defendants physically assault and beat up any person accused of a criminal offense;
(3) engaging in or encouraging other members to engage in violent or physically assaultive conduct toward any person accused of a criminal offense;
(4) intentionally assaulting and battering the Plaintiff
(b) Violated state and federal criminal statutes.
3. Berkeley County Commission
Breached its duty to provide for reasonable hiring, training, and supervision of deputies to work with the Berkeley County Sheriff's Department:
(a) By failing to require the Sheriff's Department to do the following:
(1) properly train its officers and members, including Defendants McCulley, Gardner, and Vanorsdale, Jr., in such a way as to perform their missions without violating the law by exercising correctional powers over any person by violence;
(2) seek out, negate, and prevent the execution of any policy or agreement, written or unwritten, wherein its members physically assault and beat up any person accused of a criminal offense;
(3) discipline its members who have engaged in violent and physically assaultive conduct in the past;
(4) exercise supervision over its members so as to preclude the intentional, violent, and physically assaultive conduct towards criminal suspects;
(5) investigate the criminal backgrounds of candidates for deputy sheriff, and
(6) reprimand or supervise Defendant Vanorsdale, Jr., with respect to that Defendant's actions of exposing himself to women in and around the Martinsburg Mall area while employed as a deputy for the Berkeley County Sheriff's Department, with such actions directly resulting in that Defendant's inability to return to the Martinsburg Mall.
(b) By permitting the hiring of McCulley, who has a known criminal background of a violent nature; and
(c) By indemnifying or paying for the criminal defense fees and costs of the indicted deputies.
4. Berkeley County Prosecuting Attorney's Office and Games-Neely
5. Nelson
(a) Vindictively prosecuted the Plaintiff for the charge of unlawful wounding solely because the Plaintiff was in the process of gaining access to the Berkeley County Grand Jury for purposes of presenting information that led to the indictments of the individually named Deputies to the lawsuit;
(b) Vindictively prosecuted the Plaintiff on the charge of unlawful wounding in an attempt to coerce and intimidate the Plaintiff into abandoning his State and Federal Constitutional rights to pursue the criminal prosecution of the Defendant Deputies who beat him on January 17, 2000;
(c) Refused to initiate any sort of criminal investigation into the conduct of the individually named Defendants to this lawsuit when Plaintiff's counsel's office requested these Defendants do so prior to embarking upon any effort to seek redress from the Berkeley County Grand Jury;
(d) Breached their duty to the Plaintiff to guarantee him, and not interfere with, his full free and unfettered access to the Berkeley County Circuit Court system and to represent his interest as a victim of a crime as opposed to protecting the special interests of the individually named deputies to this lawsuit and the Berkeley County Sheriff's Department; and
(e) Breached their duty to the Plaintiff to protect his state and federal constitutional rights to due process and equal protection under the law as it relates to the criminal charges sought against him by Defendants Berkeley County Sheriff's Department and the individually named Defendant Deputies to this lawsuit and to further protect the Plaintiff from vindictive prosecution.
Nelson, who was appointed special prosecutor by the West Virginia Prosecutor's Institute to prosecute the deputies, breached his duty to Plaintiff to guarantee him, and not interfere with, his full, free and unfettered access to the Berkeley County Circuit Court system and to represent his interest as a victim of crime as opposed to protecting the special interests of the individually named deputies to this lawsuit and the Berkeley County Sheriff's Department and to protect the Plaintiff's right of due process of law and equal protection under the law by:
(a) misleading the Circuit Court of Berkeley County regarding his recommendation that the indictments against McCulley, Gardner and Vanorsdale be dismissed;
(b) failing to communicate with the Plaintiff
(c) failing to voluntarily recuse himself in light of the pending the ethics committee complaint Plaintiff filed against him with the West Virginia State Bar;
(d) failing to perform a NCIC request for the indicted deputies; and
(e) failing to file a copy of his motion to dismiss the indictments as required by law.
6. All Defendants
Conspired to and violated the rights guaranteed to the Plaintiff by 42 U.S.C. § 1983 by:
(a) violating his due process and equal protection rights under the West Virginia and Federal Constitutions;
(b) conspiring to conceal the wrongful acts of the Defendant Deputies individually named in this lawsuit;
(c) acting and participating as accessories after the fact to the criminal conduct of the individually named deputies to this lawsuit; and
(d) failing to discharge their public and official duties as required by law.
7. Punitive Damages
1. Games-Neely/The Berkeley County Prosecuting Attorney's Office
Plaintiff further argues that he is entitled to punitive damages because the defendants have acted in an "outrageous manner."D. Defendants' Responses/Plaintiff's Replies
Games-Neely and the Berkeley County Prosecuting Attorney's Office moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because Plaintiff has failed to state a claim upon which relief may be granted, Plaintiff has only made a "bare allegation of conspiracy" which "fails to satisfy Rule 8 notice pleading requirements," and they are entitled to either absolute or qualified immunity from suit pursuant to W. Va. Code § 29-12A-5(a)(2) and various federal cases. Games-Neely asserts that she and the Berkeley County Prosecuting Attorney's Office are one and the same "as there is no separate entity known as the Berkeley County Prosecuting Attorney's Office."
W. Va. Code § 29-12A-5(a)(2) provides that "a political subdivision is immune from liability if a loss or claim results from. . . . judicial, quasi-judicial or prosecutorial functions."
Games-Neely further argues that Plaintiff has not identified a constitutional right to be heard before the grand jury or to have another person investigated or prosecuted. Games-Neely also requests that she be awarded costs and attorney's fees.
Plaintiff replied that his allegations of vindictive prosecution state a claim and that Games-Neely is not entitled to absolute immunity because she "never exercised a judicial function." Specifically, Plaintiff asserts that the gravamen of his complaint against Games-Neely is that:
she refused to do her job in refusing and failing to investigate Schroyer's allegations against Rankin and Rankin's allegations of excessive use of force and to her crimes committed against him by the Deputies named as Defendants in this lawsuit. Instead, Plaintiff asserts this Defendant vindictively and maliciously prosecuted him for a crime that was unsupported and unsupportable by the evidence (to the extent that she ultimately coerced Todd Rankin into accepting a plea of no contest to the charge of simple assault after and only after the sitting trial judge gutted Todd Rankin's defense in refusing to allow certain questioning of Schroyer and in refusing to allow Todd Rankin to call one single law enforcement officer during the presentation of his case in-chief). All of this, the Plaintiff alleges violated his civil rights in that this Defendant used her office for the improper purpose of harassing, intimidating and impunging the integrity of Todd Rankin merely and soley to protect the criminal acts of the individually named Defendants to this lawsuit. (Plaintiff's Memorandum in Opposition, p. 12).
Plaintiff further asserts that Games-Neely's immunity is defeated by W.Va. Code § 29-12A-5(b) and that the "October 17, 2000 indictment is the product of prosecutorial vindictiveness which contravenes the Due Process Clause of the Fourteenth Amendment to the United States Constitution." (Plaintiff's Memorandum in Opposition, p. 17).
W. Va. Code § 29-12A-5(b) provides that: An employee of a political subdivision is immune from liability unless one of the following applies:
(1) His or her acts or omissions were manifestly outside the scope of employment or official responsibilities;
(2) His or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by a provision of this code.
Plaintiff also submitted the March 6, 2002 affidavit of William Wenitsky, an in-house investigator for the Law Offices of Laura Rose Associates. Mr. Wenitsky states that he personally asked Games-Neely to "conduct an independent investigation of the facts and circumstances surrounding the injuries which Mr. Rankin had sustained by law enforcement during his arrest." According to Mr. Wenitsky, he was advised that an investigation would not be performed because there was no independent investigator who could conduct the investigation.
2. Nelson
Nelson moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted and because he has absolute or qualified immunity under various federal cases and The Governmental Tort Claims and Insurance Reform Act. Nelson further asserts that Rankin has no standing to allege misprosecution of the deputies. Nelson also requested that he be awarded attorney's fees and costs. Rankin replied that he has stated a claim against Nelson because Nelson "refused to exercise any judicial function of his job." (Plaintiff's Memorandum in Opposition, pp 18-19). He further argues that Nelson failed to investigate his allegations and failed to prosecute the defendant deputies, thus, denying him his right to "free and unfettered access to the courts of our state." Further, Plaintiff argues that Nelson's immunity is defeated by W. Va. Code § 29-12A-5(b).
3. The Berkeley County Commission
The County Commission moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure asserting that (1) it is immune from liability pursuant to state law; (2) the duty to hire, train and supervise deputies is not within the duties of the County Commission but, pursuant to W. Va. Code § 29-6-9, is the responsibility of the Sheriff and the State Personnel Board; (3) pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978) it is not liable on the basis of respondeat superior; and (4) "there is absolutely no possible factual scenario that could support that `the policy makers' of the County `deliberately chose a training program which would prove inadequate' since the County Commission does not choose the training program for the deputies." (County Commission's Motion to Dismiss p. 12).
On June 3, 2002, the County Commission filed an amended motion to dismiss to correct counsel's inadvertent reference to the West Virginia Rules of Civil Procedure, specifically in the Conclusion section of the original document.
The County Commission cites W. Va. Code §§ 29-12A-5(a)(5), 29-12A-7(a), § 29-12A-13(b) and Randall v. Fairmont City Police Dep't, 186 W. Va. 336, 412 S.E.2d 737(1991).
W. Va. Code § 29-12A-5(a)(5) provides that "a political subdivision is immune from liability if a loss or claim results from. . . civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection."
W. Va. Code § 29-12A-7(a) provides as follows: "[n]otwithstanding any other provisions of this code or rules of a court to the contrary, in an action against a political subdivision or its employee to recover damages for injury, death, or loss to persons or property for injury, death, or loss to persons or property caused by an act or omission of such political subdivision or employee (a) In any civil action involving a political subdivision or any of its employees as a party defendant, an award of punitive or exemplary damages against such political subdivision is prohibited."
W. Va. Code § 29-12A-13(b) provides that "[s]uits instituted pursuant to the provisions of this article shall name as defendant the political subdivision against which liability is sought to be established. In no instance may an employee of a political subdivision acting within the scope of his employment be named as defendant."
According to the County Commission, Randall holds that the County Commission is immune from tort liablity for "failure to provide or the method of providing police, law enforcement or fire protection."
Rankin replied that (1) he has not failed to state a claim; (2) that the County Commission does not have immunity pursuant to Randall v. Fairmont City Police Dep't, 186 W. Va. 336, 412 S.E.2d 737(1991) because the County Commission owed a special duty to him to provide for the reasonable hiring, training and supervision of deputies who work with the Berkeley County Sheriff's Department; (3) the County Commission's immunity claim is defeated by W. Va. Code §§ 29-12A-4(c)(2) and 29-12A-5(b); (4) the County Commission does have the duty to hire, train, and supervise the deputy sheriffs; and (5) Monell does not preclude liability because the County Commission was deliberately indifferent to his rights.
W. Va. Code § 29-12A-4(c)(2) provides as follows: Subject to sections five and six [§§ 29-12A-5 and 29-12A-6] of this article, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
(2) Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees while acting within the scope of employment.
The County Commission responded with its prior arguments. The County Commission also argued that no special duty existed because it has no official duty to act on behalf of the Plaintiff and there was no direct contact between the County Commission and Plaintiff.
4. Sheriff's Department
The Sheriff's Department moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because the office is not a cognizable legal entity and cannot be sued under 42 U.S.C. § 1983. See Revene v. Charles County Commissioners, 882 F.2d 870(4th Cir. 1989). Plaintiff replied that the Sheriff's Department should not be dismissed based on duties the Sheriff owed Plaintiff.
5. Joint Motion to Dismiss Claim For Tort of Outrage
The defendants have argued, in a joint Motion to Dismiss, that Plaintiff's claim regarding the tort of outrage is time barred. Defendants argue that, while § 1983 claims are governed by a two year statute of limitations, pursuant to W. Va. Code § 55-2-12 andRicottilli v. Summersville Mem. Hosp., 188 W. Va. 674, 425 S.E.2d 629(1992), the tort of outrage, is a state claim and is governed by a one year statute of limitations period. The defendants argue that the fact that the tort of outrage claim was filed in conjunction with a § 1983 claim does not mean that the two year statute of limitations period applies to such tort claim. Plaintiff argues that all claims filed pursuant to § 1983 have a two year statute of limitation and that his tort of outrage claim was timely filed.
E. Recommendation
Having reviewed all of the pleadings, I recommend that the Motions to Dismiss of the Berkeley County Sheriff's Department, The Berkeley County Commission, the Berkeley County Prosecuting Attorney's Office, Pamela Games-Neely, and Lynn Nelson be GRANTED with relation to Plaintiff's federal claims. I further recommend that the Court refuse to exercise supplemental jurisdiction over the state law claims and that the state law claims be dismissed without prejudice.
II. ANALYSIS
A. Standard of Review
When pleading a claim under 42 U.S.C. § 1983, the plaintiff must allege facts sufficient to show deprivation, by virtue of state action, of a right secured by the Constitution or other law of the United States. Ogilbee v. Western Dist. Guidance Ctr. Inc., 658 F.2d 257, 258(4th Cir. 1981).
The Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which he bases his claim, but instead require only a "short and plain statement of the claim showing that the plaintiff is entitled to relief" Conley v. Gibson, 355 U.S. 41, 47(1957). However, "[c]onclusory allegations in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing expedition."Migdal v. Rowe Price-Felming Int'l, 248 F.3d 321, 326 (4th Cir. 2001) (quoting DM Research v. College of Am. Pathologists, 170 F.3d 53, 55(1st Cir. 1999)).
In ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept as true all well-pleaded material factual allegations.Advanced Health-Care Services. Inc. v. Radford Community Hosp., 910 F.2d 139, 143(4th Cir. 1990). Furthermore, dismissal for failure to state a claim is properly granted where, assuming the facts alleged in the complaint to be true, and construing the allegations in the light most favorable to the plaintiff, it is clear, as a matter of law, that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Hishon v. King Spalding, 467 U.S. 69, 73(1984); Conley v. Gibson, 355 U.S. at 45-46.
I recommend that all of the Motions to Dismiss filed in this case be granted with regard to Plaintiff's federal claims.
B. Motion to Dismiss of Games-Neely Should Be Granted
1. Failure to state a claim
Plaintiff asserts that his due process rights and equal protection rights which are guaranteed by the Fourteenth Amendment were violated. However, the facts as Plaintiff alleged do not reveal that Games-Neely violated Plaintiff's rights to equal protection or due process. Prosecuting attorneys have absolute immunity for their decisions regarding when to prosecute, even if the decision to prosecute is malicious. Thus, Plaintiff's claim of vindictive prosecution is barred by Games-Neely's absolute immunity.
Further, a private citizen has no constitutional, statutory or common law right to have a public official investigate or prosecute a crime.Stattler v. Johnson, 857 F.2d 224(4th Cir. 1988). Nor does a private citizen suffer any injury related to the failure to prosecute. Doe v. Mayor and City Council of Pocomoke City, 745 F. Supp. 1137(D. Md. 1990). Thus, while Plaintiff may view the failure of Games-Neely to investigate and prosecute the deputies as a refusal to do her job, the decision whether to prosecute is within her discretion. Plaintiff has no standing to bring a failure to prosecute claim against Games-Neely. See Doe, 745 F. Supp. at 1137. Therefore, Plaintiff has failed to state a claim that his due process rights and right to equal protection were violated by the alleged failure of Games-Neely to investigate and prosecute the defendant deputies.
Lastly, Plaintiff has not stated a claim for conspiracy. The allegation of a conspiracy must be more than a naked assertion; there must be supportive operative facts to sustain an action under 42 U.S.C. § 1983.Phillips v. Mashburn, 746 F.2d 782(11th Cir. 1984). To state a conspiracy, the complaint must include adequate allegations of "a combination, agreement, or understanding among all or between any of the defendants." Ammlung v. City of Chester, 494 F.2d 811, 814(3d Cir. 1974). Where a complaint does not contain factual allegations "that defendants plotted, planned, or conspired together to carry out the alleged chain of events," the conspiracy claim must fail. Id.
Plaintiff does not set forth any facts whatsoever to support a claim of conspiracy under 42 U.S.C. § 1983. He only makes bare allegations. Thus, Plaintiff has not stated a conspiracy claim. Consequently, I conclude that Plaintiff has failed to state a claim against Games-Neely that she violated his rights guaranteed by the United States Constitution or federal statutes.
2. Immunity
Even if Plaintiff had stated a claim against Games-Neely, his claims are barred by Games-Neely's immunity. Prosecuting attorneys who are sued under 42 U.S.C. § 1983 are absolutely immune from individual liability when performing prosecutorial functions. Imbler v. Pachtman, 424 U.S. 409(1976); Ostrzenski v. Seigel, 177 F.3d 245(4th Cir. 1999). There is an exception to the absolute prosecutorial immunity rule, however, if the prosecuting attorney acts in the role of administrator or investigative officer, rather than as a prosecutor. Imbler, 424 U.S. at 430. Thus, when a court determines whether a prosecuting attorney is entitled to absolute immunity, it must examine the type of activity performed, not the identity of the individual who performed it. Forrester v. White, 484 U.S. 219, 229(1988); Kalina v. Fletcher, 522 U.S. 118(1997).
A prosecuting attorney has absolute immunity "for initiating a prosecution and in presenting the State's case," Imbler, 424 U.S. at 431, including preparing and filing charging documents. Kalina, 522 U.S. at 129. Prosecuting attorneys are entitled to immunity when deciding whether to prosecute, even if the decision to prosecute is malicious. Imbler, 424 U.S. at 427.
Further, prosecutors are absolutely immune for failing to independently investigate matters that are referred to them for prosecution. Van Cleave v. City of Marysville Kansas, 185 F. Supp.2d 1212 (D. Kan. 2002). Thus, Games-Neely has absolute immunity for her prosecution of Plaintiff, whether vindictive or not.
Prosecuting attorneys are also entitled to absolute immunity for decisions not to prosecute. Roe v. City of San Francisco, 109 F.3d 578(9th Cir. 1997); Harrington v. Almy, 977 F.2d 37(1st Cir. 1993); Wellman v. West Virginia, 637 F. Supp. 135(S.D. W. Va. 1986). The decision whether or not to prosecute and what charges to bring rests entirely within the prosecutor's discretion. Wellman, 637 F. Supp. at 138. Consequently, Games-Neely has absolute immunity for her decision not to prosecute the deputies.
While a prosecuting attorney has absolute immunity for her decision not to prosecute, she has qualified immunity for deciding not to investigate the deputies. Langworthy v. Dean, 37 F. Supp.2d 417(D. Md 1999). Thus, Games-Neely is entitled to qualified immunity for not investigating the deputies alleged wrongdoing against Plaintiff. Because no constitutional right exists to have individuals investigated, Plaintiff's claim against Games-Neely for failure to investigate the deputies is barred by Games-Neely's qualified immunity.
Accordingly, I find that all of Plaintiff's federal claims against Games-Neely to be barred by her absolute and qualified immunity.
3. State claims
Supplemental jurisdiction allows federal courts to hear and decide state-law claims along with federal-law claims when they "are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a); Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 387(1998). Discretion rests with the district court to decline to exercise supplemental jurisdiction when:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c).
The Fourth Circuit Court of Appeals has provided additional guidance as to when a district court should exercise jurisdiction over state law claims, stating:
A district court may exercise its discretion over state law claims made in the case through supplemental jurisdiction pursuant to 28 U.S.C. § 1367 when there is a federal basis for jurisdiction. See Shanaghan v. Cahill, 58 F.3d 106, 109(4th Cir. 1995). A district court exercises its discretion by considering factors that include convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, or considerations of judicial economy. Semple v. City of Moundsville, 195 F.3d 708, 714(4th Cir. 1999).
I have recommended that the federal claims be dismissed; and, in the interests of comity, I recommend that the Court not exercise supplemental jurisdiction over the state law claims. I believe a state court would be in a better position to determine whether the parties are immune from liability under the Governmental Tort Claims and Insurance Reform Act. Therefore, I recommend that the state law claims be dismissed without prejudice.
4. Attorney's Fees
The Court has the discretion to award attorney fees under 42 U.S.C. § 1988. However, prevailing defendants are not entitled to fees under § 1988 unless the defendants show that the plaintiffs claims were objectively frivolous, unreasonable, groundless, or that the plaintiff continues to litigate after his claim clearly became so.Introcaso v. Cunningham, 857 F.2d 965, 967(4th Cir. 1988). While Plaintiff has failed to state a claim against Games-Neely, I do not find the claims to be objectively frivolous, unreasonable or groundless, although the issue may be a closer one than counsel for Plaintiff might prefer. Therefore, I recommend that Games-Neely's request for attorney fees be denied.
5. Recommendation
Based upon the foregoing, I recommend that Games-Neely's motion to dismiss be granted for failure to state a claim and because Plaintiff's claims are barred by the absolute and qualified immunity of Games-Neely. I further recommend that Plaintiff's state claims be dismissed without prejudice and that Games-Neely's request for attorney's fees be denied.
C. Motion to Dismiss of Nelson Should Be Granted
1. Failure to state a claim
An individual does not have a constitutional right to have a public official investigate or prosecute a crime. Stattler v. Johnson, 857 F.2d 224(4th Cir. 1988). Thus, any wrongdoing Nelson allegedly committed in failing to investigate and prosecute the deputies does not involve Plaintiff and does not violate Plaintiff's constitutional rights. Therefore, Plaintiff has no standing to bring this claim. Doe v. Mayor and City Council of Pocomoke City, 745 F. Supp. 1137 (D. Md. 1990).
Plaintiff's allegations that Nelson misled the court, failed to communicate with him, failed to recuse himself, failed to perform a NCIC request on the deputies and failed to file a copy of the Motion to Dismiss do not state a claim against Nelson. Further, as previously discussed, Plaintiff has not pled sufficient facts to support a claim of conspiracy. Therefore, Plaintiff has not stated a claim against Nelson.
2. Immunity
Even if Plaintiff could state a claim against Nelson, such claims are barred by Nelson's prosecutorial immunity. With regards to Plaintiff's allegations of Nelson's failure to prosecute and investigate, I have applied the same analysis that I used in discussing Games-Neely's Motion to Dismiss and find that Plaintiff's claims are barred by Nelson's absolute immunity for his decision not to prosecute the defendant deputies, and qualified immunity for failing to investigate Plaintiff's claim against the defendant deputies.
3. State claims
For the same reasons set forth above, I recommend that the Court not exercise its supplemental jurisdiction and that the state law claims against Nelson be dismissed without prejudice.
4. Attorney's Fees
While Plaintiff has failed to state a claim against Nelson, I do not find the claims to be objectively frivolous, unreasonable or groundless. Therefore, I recommend that Nelson's request for attorney fees be denied.
5. Recommendation
Plaintiff has failed to state a claim and, even if he had stated a claim, such claims are barred by either absolute or qualified immunity. I recommend that Nelson's Motion to Dismiss be granted with regards to Plaintiff's federal claims. I further recommend that Plaintiff's state law claims against Nelson be dismissed without prejudice and that Nelson's request for attorney's fees be denied.
D. Berkely County Commission's Motion to Dismiss Should Be Granted
1. Failure to state a claim
For § 1983 purposes, a county is considered a municipal entity. Revene v. Charles County Commissioners, 882 F.2d 870, 874(4th Cir. 1989). Municipal entities are absolutely immune from punitive damages.City of Newport v. Fact Concerts, 453 U.S. 247(1981). Additionally, a municipality is not liable under the theory of respondeat superior.Monell v. Department of Social Services, 436 U.S. 658(1978). In order for a municipal entity to be liable for monetary, declaratory, and injunctive relief under § 1983, the execution of a municipal policy or custom must be "the moving force for the violation of constitutional rights."Id.
"Plaintiffs seeking to impose liability on a municipality under § 1983 must, therefore, adequately plead and prove the existence of an official policy or custom that is fairly attributable to the municipality and that the policy proximately caused the deprivation of their rights."Semple v. City of Moundsville, 195 F.3d 708, 712(4th Cir. 1999) (quotingJordan by Jordan v. Jackson, 15 F.3d 333, 338(4th Cir. 1994)).
The term "policy" was defined by the United States Supreme Court inCity of Oklahoma City v. Tuttle, 471 U.S. 808, 841(1985) as "a course of action consciously chosen from among various alternatives." A policy can be made in a "policy statement, ordinance, regulations, or decision officially adopted and promulgated," Monell 436 U.S. at 690, by an act of a municipal official with final policymaking authority, City of St. Louis v. Praprotnik, 485 U.S. 112(1988), or by widespread custom or practice which constitutes a de facto policy. Monell, 436 U.S. at 691.
A municipal policy or custom must be involved in cases such as this one, where Plaintiff asserts that the defendants failed to adequately train and supervise their deputy sheriffs and permitted the hiring of McCulley.
A municipality can be liable under § 1983 for failure to train its employees "only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388(1989). "Only where a municipality's failure to train its employees in a relevant respect evidences a `deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city `policy or custom' that is actionable under § 1983." Id. at 389. Further, Plaintiff must prove that the deficiency in training caused the defendant deputies to be deliberately indifferent to his safety. See Canton 489 U.S. at 391; Spell v. McDaniel, 824 F.2d 1380, 1391(4th Cir. 1987), cert. denied, 484 U.S. 1027(1988).
Moreover, the "deliberate indifference" standard applies to claims regarding deficiencies in hiring. "Only where adequate scrutiny of the applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute `deliberate indifference.'" Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 411(1997). Further, in order for a municipality to be liable under § 1983 for failure to supervise, there must be a history of widespread abuse. Wellington v. Daniels, 717 F.2d 932, 936(4th Cir. 1983).
The County Commission argues that it provides final approval for new hires and provides a budget to the Sheriff's Department, but that it does not have a duty to train or supervise the deputy sheriffs. However, the West Virginia Supreme Court of Appeals noted in Mozingo v. Barnhart, 169 W. Va. 31, 285 S.E.2d 497(1981) that, while the sheriff is responsible for supervising and training the deputies, it may be argued that W. Va. Code § 7-14-16(1976 Replacement Vol.) requires the County Commission to train the deputies. Id. at 498. Relying on Mozingo v. Barnhart, this Court determined in Miller v. Anderson, 594 F. Supp. 640(N.D. W. Va. 1984) that both the County Commission and the sheriff have a duty to hire and train the deputies.
According to the County Commission, it no longer has such duties because the civil service commission was abolished by W. Va. Code § 29-6-9. Contrary to the County Commission's argument, the deputy civil service commission has not been abolished. Only the state civil service commission has been abolished by W. Va. Code § 29-6-9.
In fact, Berkeley County has a deputy civil service commission as is evidenced by the county's website www.berkeleycountycomm.org.
Nonetheless, Plaintiff has not adequately pled a policy of inadequate training, supervising, and hiring. While Plaintiff states that his complaint illustrates that the County Commission was deliberately indifferent, such is not the case. Plaintiffs allegation that the County Commission failed "to require the Defendant Berkeley County Sheriff's Department to seek out, negate, and prevent the execution of any policy or agreement, written or unwritten, wherein its members physically assault and beat up any person accused of a criminal offense" does not state a claim. Nor does Plaintiff's assertion that "the factual scenario set forth by Plaintiff's complaint clearly illustrates such a deliberate indifference as contemplated by City of Canton." Plaintiff has pointed to no actual policy regarding the hiring, training and supervising the deputies and, instead, only makes conclusory statements.
Further, because Plaintiff makes no allegations that people other than him were the subject of alleged beatings for being accused of a crime, there does not appear to be a custom which could constitute a policy of inadequate supervision, hiring and training. "Proof of a single incident of the unconstitutional activity charged is not sufficient to prove the existence of a municipal custom." Semple, 195 F.3d at 713.
Additionally, the County Commission is not liable for the hiring of McCulley because Plaintiff has not demonstrated that the hiring decision reflected a "conscious disregard for an obvious risk" that McCulley would use excessive force in violation of Plaintiff's federally protected rights. Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 415 (1997).
Lastly, the County Commission's indemnification of the defendant deputies does not "constitute a ratification of the deputies alleged wrongs." Brown v. City of Chicago, 573 F. Supp. 1375(ND. III. 1983);Trevino v. Gates, 99 F.3d 911(9th Cir. 1996), cert. denied, 520 U.S. 1117(1997).
Accordingly, Plaintiff's complaint does not set forth sufficient facts to demonstrate that his federal rights were denied because of a policy or custom of the Berkeley County Commission.
2. State claims
As previously discussed, I recommend that the Court not exercise supplemental jurisdiction over the state law claims.
3. Recommendation
I recommend that the Motion to Dismiss of the Berkeley County Commission be granted with regards to Plaintiff's federal claims for failure to state a claim. I further recommend that Plaintiff's state law claims be dismissed without prejudice.
E. Sheriff's Motion to Dismiss Should Be Granted
The Sheriff's Department "is not a cognizable legal entity separate from the Sheriff in his official capacity and the county government."Revene v. Charles County Commissioners, 882 F.2d 870, 874(4th Cir. 1989). Thus, Plaintiff's suit against the Berkeley County Sheriff's Department must be dismissed. Accordingly, I recommend that the Motion to Dismiss of the Sheriff's Department granted.
F. Joint Motion to Dismiss Tort of Outrage Should Be Granted
The statute of limitations for filing an action pursuant to 42 U.S.C. § 1983 is based on the state limitations period applicable to personal injury actions. Wilson v. Garcia, 471 U.S. 261 (1985). However, the time of accrual for a § 1983 cause of action is a matter of federal law. Nasim v. Warden. Md. House of Correction, 64 F.3d 951, 955(4th Cir. 1995), cert. denied, 516 U.S. 1177(1996). "Under federal law, a cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action." Id.
In West Virginia, there is a two year statute of limitations for personal injury actions. W. Va. Code § 55-2-12; see Sattler v. Johnson, 857 F.2d 224(4th Cir. 1988); McCausland v. Mason County Bd. of Educ., 649 F.2d 278(4th Cir. 1981), cert. denied, 454 U.S. 1098 (1981). Accordingly, a two years statute of limitations applies to § 1983 cases.
However, pursuant to W. Va. Code § 55-2-12, and Ricottilli v. Summersville Mem. Hosp., 188 W. Va. 674, 425 S.E.2d 629(1992), the tort of outrage, a state law claim, is governed by a one year statute of limitations. Thus, while § 1983 claims are governed by a two year statute of limitations, such does not change of the statute of limitations for the state law claim of the tort of outrage. Thus, based on the facts alleged, Plaintiff's claim of the tort of outrage is untimely and should be dismissed.
III. RECOMMENDATION
Based on the foregoing, it is my recommendation that the Motions to Dismiss of the Berkeley County Commission, Berkeley County Prosecuting Attorney's Office, Berkeley County Sheriff's Department, Pamela Games-Neely, and Lynn Nelson be GRANTED in relation to Plaintiff's federal claims and that Plaintiff's state claims be dismissed without prejudice.
Any party may file within ten (10) days after being served with a copy of this Recommendation, with the Clerk of the Court written objections identifying the portions of the Recommendation to which objections are made, and the basis for such objections. A copy of such objections should also be submitted to the Honorable W. Craig Broadwater, United States District Judge. Failure to timely file objections to the Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such Recommendation.
28 U.S.C. `636(b)(1); United States v. Schronce, 727 F.2d 91(4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841(4th Cir. 1985); Thomas v. Arn, 474 U.S. 140(1985).
The Clerk of the Court is directed to mail a copy of this Report and Recommendation to all parties appearing herein.