Case 5:23-cv-00143-JPB Document 9 Filed 07/10/23 Page 1 of 13 PageID #: 66

IN THE UNITED STATES DISTRICT COURT

KANDI WOOD,

Plaintiff,
v. CIVIL ACTION NO. 5:23-CV-143
Judge Bailey

JASON JOHNSON, individually and

Defendants.

ORDER

Pending before this Court is Defendants’ Motion to Dismiss [Doc. 2], filed June 16,

2023. Therein, defendants move this Court to dismiss all claims against defendants for

three (3) reasons. First, defendant Johnson’s actions did not constitute excessive force

under the Constitution. Second, Marshall County Commission did not have an

unconstitutional policy or practice in place which caused a violation of plaintiff’s

constitutional rights. Third, defendant Johnson is entitled to qualified immunity. A

Response [Doc. 5] was filed on June 29, 2023. A Reply [Doc. 7] was filed on July 7, 2023.

The Motion has been fully briefed and is ripe for adjudication. For the reasons that follow,

this Court will deny defendants’ Motion to Dismiss.

I. Background

This case arises from the alleged actions of defendant Jason Johnson against

plaintiff Kandi Wood while in her residence on or about April 14, 2021. Plaintiff, and her

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guest, Bobbi Dennis, were in her residence at 2300 7th Street, Lot 93, Moundsville, West

Virginia 26041. [DoG. 1 at ~J 4]. Plaintiff was under the supervision of the Marshall County

Probation Department and had an outstanding warrant for an alleged probation violation.

[Id. at 5]. Defendant Johnson and Detective Smith arrived at plaintiff’s residence to serve

the warrant on her. Defendant Johnson began knocking loudly on the front door of

plaintiff’s residence, calling on her to open the door. [Id. at ¶ 7]. Plaintiff did not come to

the door. After several minutes, defendant Johnson kicked plaintiff’s door in and he and

Detective Smith entered the residence and began searching for plaintiff. [Id. at ¶ 8].
Defendant Johnson and Detective Smith were unable to locate plaintiff, but they did locate

plaintiff’s guest, Bobbi Dennis, in the bathroom. [Id. at ¶ 9]. Defendant handcuffed Ms.

Dennis and took her out to the porch and left her in the custody of another deputy. [Id.].

Upon re-entering the residence, defendant Johnson announced in a loud voice that

if plaintiff did not show herself, he was going to bring his K9 into the residence and that

plaintiff would be bitten. [Id. at ¶ 10]. Defendant Johnson brought his K9 into the
residence and released his K9 to run free throughout the residence in search of plaintiff.

[Id. atl[ 11]. The K9 located plaintiff where she had been hiding under a pile of clothing

in her bedroom. [Id. at ¶ 12]. The K9 bit plaintiff on various parts of her body and the K9

did not respond to defendant Johnson’s commands to disengage with plaintiff. [Id.].

Plaintiff asserts she suffered “bite injuries to the right side of her ear, the back of her

head, and up and down the length of her right arm to the wrist.” [Id. at ¶ 14]. Plaintiff’s

injuries “required extensive stitches and surgery” and she “continues to suffer from loss of

feeling in her arm, and is unable to grasp things with her right hand.” [Id.]. Moreover,

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plaintiff asserts she continues to undergo therapy, and suffers from PTSD as a result of

the incident. [Id.].

In her Complaint, plaintiff asserts two (2) causes of action: (1) Excessive Force

Under 42 U.S.C. 1983 Violation of the Fourth Amendment [id. at 4—6]; and (2) Monell
-

Claim / Failure to Properly Train and/or Supervise the Use of a K9 [id. at 6—7]. For relief,

plaintiff requests damages against the individual defendants in an amount to be

determined at trial which will fairly and reasonably compensate plaintiff for all

compensatorydamages proven attrial; punitive damages againstthe individual defendants

in an amount to be determined at trial; and reasonable afforney fees and costs. [Id. at 8].

II. Standard of Review

A complaint must be dismissed if it does not allege “enough facts to state a claim

to relief that is plausible on its face.” Bell AtI. Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (applying the

Twombly standard and emphasizing the necessity of plausibility). When reviewing a

motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the

Court must assume all of the allegations to be true, must resolve all doubts and inferences

in favor of the plaintiff, and must view the allegations in a light most favorable to the

plaintiff. Edwards v. City of Goldsboro, 178 F.3d 231, 243—44 (4th Cir. 1999).

When rendering its decision, the Court should consider only the allegations

contained in the Complaint, the exhibits to the Complaint, matters of public record, and

other similar materials that are subject to judicial notice. Anheuser-Busch, Inc. v.

Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995). In Twombly, the Supreme Court, noted

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that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do. . . .“ Twombly, 550 u.s. at 555, 570 (upholding the dismissal of a

complaint where the plaintiffs did not “nudge[} their claims across the line from conceivable

to plausible.”).

This Court is well aware that “[M]atters outside of the pleadings are generally not

considered in ruling on a Rule 12 Motion.” Williams v. Branker, 462 F. App’x 348, 352

(4th Cir. 2012). “Ordinarily, a court may not consider any documents that are outside of

the Complaint, or not expressly incorporated therein, unless the motion is converted into

one for summary judgment.” Witthohn v. Fed. Ins. Co., 164 F. App’x 395, 396 (4th Cir.

2006). However, the Court may rely on extrinsic evidence if the documents are central to

a plaintiff’s claim or are sufficiently referred to in the Complaint. Id. at 396—97.

Ill. Analysis

A. Qualified Immunity

“Qualified immunity shields government officials performing discretionary functions

from personal-capacity liability for civil damages under § 1983, insofar as their conduct
does not violate a clearly established statutory or constitutional rights of which a

reasonable person would have known.’ Ridpath v. Board oI Governors Marshall

University, 447 F.3d 292, 306 (4th Cir.2006) (quoting Wilson v. Layne, [526 u.s. 603,
609 (1999) (internal quotes omitted)]. Officials will receive immunity unless the § 1983
claim satisfies a two-prong test: (1) the allegations, if true, substantiate a violation of a

federal statutory or constitutional right and (2) the right was ‘clearly established’ such that

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a reasonable person would have known his acts or omissions violated that right. Id.; see

also Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by Pearson v. Callahan, 555

U.s. 223 (2009) (setting up this two-pronged framework).” Brockington v. Boykins, 637

F.3d 503, 506 (4th Cir. 2011).

In this case, the allegations contained throughout plaintiff’s Complaint are sufficient

at this stage to state a claim for relief. Thus, at this stage, qualified immunity is not

appropriate.

B. Count One: Excessive Force Under 42 U.S.C. 1983 - Violation of the

Plaintiff is seeking relief pursuant to 42 U.S.C. § 1983. Section 1983 states in

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for

redress, except that in any action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated or declaratory relief was

unavailable. For the purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to be a statute of

the District of Columbia.

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42 U.S.C. § 1983. Therefore, in order to state a claim under 42 U.S.C. § 1983, plaintiff
must demonstrate that a person acting under color of state law deprived her of the rights

guaranteed by the constitution or federal laws. Rendall-Baker v. Kahn, 547 U.S. 830,

838 (1982).

“The Fourth Amendment prohibits police officers from ‘using excessive force to

seize a free citizen.” Hupp v. Cook, 931 F.3d 307, 321 (4th Cir. 2019) (citing Jones v.

Buchanan, 325 F.3d 520, 527(4th Cir. 2003) and Graham v. Connor, 490 U.S. 386, 395,

109 S.Ct. 1865, 104 L.Ed.2d 443 (1998)). “Rather, police officers are constitutionally

permitted to use only that force which is reasonable under the circumstances.” id.; see

also Betton v. Belue, 942 F.3d 184, 191 (4th Cir. 2019). The standard of review for

allegations of unreasonable force under the Fourth Amendment is “an objective one,” and

“the question is whether a reasonable officer in the same circumstances would have

concluded that a threat existed justifying the particular use of force.” Elliott v. Leavitt, 99

F.3d 640, 642 (4th Cir. 1996).

The Fourth Circuit has cautioned that “a reviewing court may not employ ‘the 20/20

vision of hindsight’ and must make ‘allowance for the fact that police officers are often

forced to make split-second judgments — in circumstances that are tense, uncertain, and

rapidly evolving.” Id. at 642. “The court’s focus should be ... on the fact that officers on the

beat are not often afforded the luxury of armchair reflection.” Id.

The court must pay “careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively resisting

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arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396, 109

S.Ct. 1865, 104 L.Ed.2d 443 (1989). The Fourth Circuit has also instructed consideration

of the extent of the plaintiff’s injuries. Rowland v. Perry, 41 F.3d 167, 174(4th Cir. 1994).

Assuming all of the allegations to be true, plaintiff has sufficiently alleged enough

facts to state a claim to relief that is plausible on its face. At the time of the incident,

plaintiff had an outstanding warrant for a probation violation. Plaintiff made no threats

against herself or others. Even though plaintiff appeared at first to be unwilling to comply

with law enforcement, neither plaintiff nor her house guest offered any real or active

restraint after being discovered. At this stage of the proceedings, this Court denies

defendants’ motion to dismiss plaintiff’s excessive force claim.

C. Count Two: Monell Claim I Failure to Properly Train andlor Supervise

A municipality is liable under § 1983 if it follows a custom, policy, or practice by

Servs. of City of New York, 436 U.S. 658, 694 (1978). “[T}he substantive requirements

for establishing municipal liability for police misconduct are stringent indeed. The critical

Supreme Court decisions have imposed this stringency in a deliberate effort to avoid the

indirect or inadvertent imposition of forms of vicarious liability rejected in Monell.” Spell

v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987). Courts have required plaintiffs to

demonstrate “persistent and widespread ... practices of [municipal] officials,” along with the

“duration and frequency” which indicate that policymakers (1) had actual or constructive
—

knowledge of the conduct, and (2) failed to correct it due to their “deliberate indifference.”

Spell, 824 F.2d at 1386—91. Sporadic or isolated violations of rights will not give rise to

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Monell liability; only “widespread or flagrant” violations will. Owens v. Baltimore City

State ‘~s Attorneys Office, 767 F.3d 379, 402—03(4th Cir. 2014) (citing Spell, 824 F.2d at

1387).

Municipal liability results only when policy or custom is “(1) fairly attributable to the

municipality as its ‘own,’ and is (2) the ‘moving force’ behind the particular constitutional

violation.” Spell, 924 F.2d at 1386—87 (citations omitted). “Custom and usage” require a

showing that the “duration and frequency of the practices warrants a finding of either actual

orconstructive knowledge bythe municipal governing bodythatthe practices have become

customary among its employees.” Id. at 1387. The actual knowledge can be established

by reports or discussions. Id. Constructive knowledge may be shown by the practices

being “so widespread orflagrant that in the proper exercise of its official responsibilities the

governing body should have known of them.” Id. In other words, the “deliberate

indifference” standard under Spell requires that a municipality either knew or should have

known about the deficiency in training, so it could remedy that deficiency. Estate ofJones

by Jones v. City ofMartinsburg, West Virginia, 961 F.3d 661, 672(4th Cir. 2020). Such

a developed “custom or usage” may then become the basis of municipal liability, but only

if its continued existence can be laid to the fault of municipal policymakers, and a sufficient

• causal connection between the “municipal custom and usage” and the specific violation

can then be established. Id. at 1390.

To attach liability to a municipality for failure to train under Monell, the plaintiff must

show the “deliberate indifference” on the part of the municipality, keeping in mind that

“[w]ithout notice that a course of training is deficient in a particular respect, decisionmakers

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can hardly be said to have deliberately chosen a training program that will cause violations

of constitutional rights.” Connick v. Thompson, 563 U.S. 51, 62 (2011). As the United

States District Court for the Eastern District of New York explained,

the mere fact that a number of lawsuits have been filed, without any

information as to whether the suits are meritorious or spurious, or

alternatively, any evidence that the municipality ignored such complaints

such that it constituted deliberate indifference to any potential problem of

excessive force, does not assist a fact-finder in determining whether the

[municipality] actually has a historical problem of its police officers using

unconstitutionally excessive force in the performance of their duties.

Ostroski v. Town of Southold, 443 F.Supp.2d 325, 346 (E.D.N.Y. 2006). “A passing

reference to an isolated lawsuit in which no liability was established or admiffed is hardly

sufficient to support a failure-to-train Monell claim.” Frye v. Lincoln County

Commission, 2021 WL 243864, at *1, *8 (S.D.W. Va. Jan. 25, 2021) (Johnston, C.J.).

In Carter v. Morris, 164 F.3d 215 (4th Cir. 1999), the plaintiff brought suit against

the Danville Police Department. The Fourth Circuit found that the plaintiff’s allegations were

insufficient to establish Monell liability. The court boiled down plaintiff’s cited incidents to

two instances — in addition to the instance at issue in the case — of “even arguably

unlawful arrests” or unreasonable searches and seizures by the Danville Police

Department. Id. at 219. The court referred to this evidence as a “meager history of

isolated incidents” that does not reach the required “widespread and permanent” practice

necessary to establish a municipal custom. Id. at 220. The court also noted that the

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plaintiff showed no relevant incident prior to her own case in which the City could have had

knowledge and could have acquiesced. Id.

However, Courts have also held that Monell liability can attach to municipalities

when the policy and custom is based upon a single incident. See Pembaur v. City of

Cincinnati, 475 U.S. 469 (1986). The Court was presented with the following question:

“[w]hether, and in what circumstances, a decision by municipal policymakers on a single

occasion may satisfy this requirement,” to which it answered:

[l]t is plain that municipal liability may be imposed for a single decision by

municipal policymakers under appropriate circumstances. No one has ever

doubted, for instance, that a municipality may be liable under § 1983 for a

single decision by its properly constituted legislative body—whether or not

that body had taken similar action in the past or intended to do so in the

future—because even a single decision by such a body unquestionably

constitutes an act of official government policy.

Id. at 471, 480.

Here, plaintiff has not alleged that the Marshall County Commission has

promulgated any formal unconstitutional policy, Instead, plaintiff alleges:

26. Defendant Marshall County Commission (MCC), a political subdivision

of the State of West Virginia, is constitutionally charged with the

responsibility of ensuring proper training and supervision of officers

employed by the Marshall County Sheriff’s Department. This includes

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training and supervision regarding the constitutionally proper handling and

deployment of the Department’s K9 Units.

27. Plaintiff submits that Defendant MCC has failed to properly train and

supervise Defendant Johnson in the constitutionally appropriate use of his

K9, and this failure to properly train him directly and proximately resulted in

the injuries suffered by Plaintiff for which she is entitled to recover.

28. Defendant MCC’S said failure to properly train and supervise

Defendant Johnson’s use of his K9 was effected pursuant to the adoption

and implementation of an official policy, custom and practice of unnecessary

and excessive use of police K9s, such as occurred in the subject incident to

the Plaintiff.

29. Defendant MCC’s training was inadequate for the tasks performed, in

that the MCC was deliberately indifferent to the fact that its failure to properly

train Defendant Johnson would likely cause violation of the Fourth

Amendment by engaging in excessive force against arrestees, such as

occurred to the Plaintiff.

30. Specifically, Defendant Johnson was trained to release his K9 to bite

an arrestee, even where constitutionally impermissible, so long as he gives

multiple warnings prior to doing so. Defendant Johnson released his K9 to

locate and attack the Plaintiff under circumstances where she posed no

physical safety threat to any individual, and where she was not actively

resisting or attempting to flee. Moreover, he did so at a time when the

Plaintiff was contained inside her home and surrounded by multiple police

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officers. In so doing, Defendant Johnson acted in violation of the Fourth

Amendment. In so doing, Defendant Johnson was acting within the

established K9 policies utilized by the MCC, to which he had been trained.

31. MCC’s policy and training of sending a police dog into a home to

apprehend a suspect that had given no indication that she presented a

danger to others, and was not actively resisting but laying on the ground, is

unreasonable and excessive under clearly established federal case law,

including within the Fourth Circuit.

[Doc. I at ¶flJ 26—31].

Defendant Marshall County Commission argues that plaintiff’s Monell claim fails

because Marshall County Commission did not have an unconstitutional policy or practice

in place which caused a violation of plaintiff’s constitutional rights. Assuming all of the

allegations to be true and at this stage of the proceeding1, plaintiff has sufficiently alleged

that the Marshall County Commission may be liable under Monellfor adopting a policy or

custom which expressly authorizes a constitutional violation against citizens by police

officers. See Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994) (MoneII liability may exist

where a city equips its officers with K9’s known to bite in unnecessary situations). The

Complaint sets forth sufficient facts to establish that the Marshall County Commission

mandated or condoned the conduct of defendant Johnson, in violation of plaintiff’s Fourth

Amendment rights. Moreover, the Complaint sets forth sufficient allegations, when taken

as true, establish that the Marshall County Commission is constitutionally charged with the

1 Defendants’ arguments are more properly addressed at the summary judgment

responsibility of ensuring proper training and supervision of officers employed by the

Marshall County Sheriff’s Department, including the training and supervision regarding the

constitutionally proper handling and deployment of the K9 Units.

IV. Conclusion

Given the standard at the motion to dismiss stage and assuming all of plaintiff’s

allegations to be true, this Court DENIES Defendants’ Motion to Dismiss [Doc. 2].

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to all counsel of record herein.

DATED: July 10, 2023.

J~AlL~~
UNITED STATES DISTRICT JUDGE

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