Weigle v. Pifer, 139 F.Supp.3d 760, 776 (S.D. W.Va. 2015). Whether a defendant is liable for battery largely depends on whether he made a harmful or offensive contact with the plaintiff:
Because immunity is a "threshold issue," the Court must address its applicability before considering any of the "proffered substantive bases for summary judgment." Weigle v. Pifer, 139 F.Supp.3d 760, 768 (S.D. W. Va. 2015) (citing Saucier v. Katz, 533 U.S. 194, 200 (2001) ("Where [a] defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.")). 1. Qualified Immunity
As a rule, a plaintiff "[cannot] prevail on a claim of simple negligence based on [a defendant's] intentional act." Smith v. Lusk, 533 F. App'x 280, 284 (4th Cir. 2013) (citing Stone v. Rudolph, 32 S.E.2d 742, 748 (W. Va. 1944) (noting that "intentional acts are not encompassed by general negligence principles")); Weigle v. Pifer, 139 F.Supp.3d 760, 780 (S.D. W. Va. 2015) ("A mere allegation of negligence does not turn an intentional tort into negligent conduct.") (citations omitted).
C. Assault and Battery claims In West Virginia, a person is liable for battery if: “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.” Weigle v. Pifer, 139 F.Supp.3d 760, 776 (S.D. W.Va. 2015) (quoting Restatement (Second) of Torts § 13 (1965)). A person is liable for assault if: “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” Id. “An activity that would otherwise subject a person to liability in tort for assault and battery, however, does not constitute tortious conduct if the actor is privileged to engage in such conduct.” Hutchinson v. W.Va. State Police, 731 F.Supp.2d 521, 547 (S.D. W.Va. 2010).
Jafary v. City of Beckley, No. 5:20-CV-647, 2021 WL 6125831, at *7 (S.D. W.Va. Dec. 28, 2021) (finding sufficient procurement for a malicious prosecution claim where a plaintiff alleged an officer wrote the narrative and criminal complaint); see also Weigle v. Pifer, 139 F.Supp.3d 760, 782 (S.D. W.Va. 2015) (finding a law enforcement officer sufficiently caused a malicious prosecution where he drafted a criminal complaint and testified on behalf of the prosecution in magistrate and circuit court). However, this case is distinguishable because the only allegedly unlawful conduct attributed to Defendant Craigo in the Complaint relates to his testimony in grand jury proceedings.
Smith v. Lusk, 533 Fed.Appx. 280, 284 (4th Cir. 2013) (citations omitted); Weigle v. Pifer, 139 F.Supp.3d 760, 780 (S.D. W.Va. 2015) (“A mere allegation of negligence does not turn an intentional tort into negligent conduct.”)
It is well established that a plaintiff "[cannot] prevail on a claim of simple negligence based on [a defendant's] intentional act." Smith v. Lusk, 533 F. App'x 280, 284 (4th Cir. 2013) (citing Stone v. Rudolph, 32 S.E.2d 742, 748 (W. Va. 1944) (noting that "intentional acts are not encompassed by general negligence principles")); Weigle v. Pifer, 139 F.Supp.3d 760, 780 (S.D. W. Va. 2015) ("A mere allegation of negligence does not turn an intentional tort into negligent conduct.") (citations omitted).
It is well established that a plaintiff "[cannot] prevail on a claim of simple negligence based on [a defendant's] intentional act." Smith v. Lusk, 533 F. App'x 280, 284 (4th Cir. 2013) (citing Stone v. Rudolph, 32 S.E.2d 742, 748 (W. Va. 1944) (noting that "intentional acts are not encompassed by general negligence principles")); Weigle v. Pifer, 139 F.Supp.3d 760, 780 (S.D. W. Va. 2015) ("A mere allegation of negligence does not turn an intentional tort into negligent conduct.") (citations omitted).
SeeWeigle v. Pifer, 139 F.Supp.3d 760, 767 (S.D. W.Va. 2015) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Cf.Dargis v. Sheahan, 526 F.3d 981, 991 (7th Cir.2008) (finding survival of one federal due-process claim does not require court to retain jurisdiction over seven state-law claims).
Historically, West Virginia has followed federal law in matters concerning immunity. Weigle v. Pifer, 139 F.Supp.3d 760, 775 (S.D. W.Va. 2015) (quoting Saint Albans v. Botkins, 719 S.E.2d 863 (W.Va. 2011)). Because of this, the analysis carried out in Section III.B., supra, regarding Defendant's qualified immunity under § 1983 claims applies to his contention of immunity against state law claims.