Case 1:22-cv-00327 Document 38 Filed 09/21/23 Page 1 of 20 PageID #: 162

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

JASON B. TARTT, et al.,

Plaintiffs,

v. CIVIL ACTION NO. 1:22-00327

DALTON T. MARTIN, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is defendants’ partial motion to

dismiss. ECF No. 10. For the reasons explained below, the

motion is DENIED.

I. Background 1

On August 7, 2020, two McDowell County, West Virginia,

Sheriff’s Deputies, defendants Dalton T. Martin and Jordan A.

Horn, questioned a retired African American couple, plaintiffs

Donnie and Ventriss Hairston, about suspected marijuana plants

being grown several properties away from where the Hairstons

resided. See ECF No. 3 at ¶¶ 6-8, 11-12, 14, 27. The

questioning occurred outside the Hairstons’ residence, which

they rented from plaintiff Jason Tartt who is also an African

1
This factual background is based on plaintiffs’ allegations,
which the court accepts as true solely for purposes of this
motion. See, e.g., Merriweather v. Kijakazi, No. 1:21-00391,
2022 WL 4813305, at *1 (S.D.W. Va. Sept. 30, 2022).
 Case 1:22-cv-00327 Document 38 Filed 09/21/23 Page 2 of 20 PageID #: 163

American. See id. at ¶ 16. When the officers first arrived at

the residence, the Hairstons anticipated a friendly encounter

and nicely greeted them. See id. at ¶ 13. The Hairstons,

however, soon realized that it was not a friendly encounter when

the officers appeared agitated, questioned the Hairstons as to

whether they grew marijuana, and searched the exterior of their

home. See id. at ¶¶ 13, 16. As Officer Martin described it in

his police report, “[u]pon our arrival we incountered [sic] by

two elderly subjects who was [sic] on the porch and asked them

if they growed [sic] marijuana and they stated ‘No’.”. Id. at ¶

12.

During the encounter, the Hairstons summoned their landlord

and neighbor, Mr. Tartt, because they felt threatened by the

officers and wanted to notify him that the officers were

investigating his property. See id. at ¶ 16. When Mr. Tartt

arrived, he joined the Hairstons on their front porch and told

the officers his name when they asked. See id. at ¶ 18.

As the situation progressed, the officers grew more

agitated and demanding, and plaintiffs, none of whom had any

criminal history, quickly realized that the officers had no

legitimate reason to suspect them of any wrongdoing or to be

angry with them. See id. at ¶¶ 14-15, 19. Plaintiffs suspected

that the officers were racially profiling them and violating

their civil rights. See id. at ¶ 19. Because plaintiffs were

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“in a rural area with a history of police misconduct and

official corruption,” they felt that the officers endangered

them. Id.

Body camera footage of the interaction captured Mrs.

Hairston expressing her fear to the officers and her statement

that “in the season we’re living in,” she would like to know the

officers’ names. 2 Id. at ¶ 20. Officer Martin mockingly

responded, “I’ll see if I can find my name” and never provided

it. Id. The officers then became angrier and demanded Mr.

Tartt’s “name, date of birth and such.” Id. at ¶ 24. But Mr.

Tartt decided not to provide more than his name because, based

on his experience as a former Military Police officer, he

believed the officers were retaliating against him and the

Hairstons for complaining about their treatment. See id. at ¶¶

25, 28-29. To the shock of plaintiffs, Officer Martin entered

the front porch and seized Mr. Tartt through “physical force . .

. verbal intimidation and threats of violence.” See id. at ¶

30. Officer Martin also physically prevented the Hairstons from

filming the incident and shoved them into their home, partially

entering the home in the process. See id. at ¶ 31.

2 According to the complaint, “Mrs. Hairston was clearly

referring to the national proliferation of incidents of police
misconduct—especially those involving white police officers and
African American victims, such as the George Floyd and Breonna
Taylor incidents, among many others.” Id. at ¶ 20 n.1.
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The officers arrested Mr. Tartt and charged him with

obstruction of law enforcement officers. See id. at ¶¶ 32-33.

On their way to the police station, Officer Martin relayed the

events to his supervisors several times. See id. at ¶ 32. A

prosecuting attorney later dropped the obstruction charge

against Mr. Tartt because the officers failed to appear in court

as witnesses. See id. at ¶ 34.

Based on these allegations, the Hairstons and Mr. Tartt

sued (1) Officers Martin and Horn in their individual

capacities, (2) Officers Martin and Horns’ alleged supervisor,

James “Boomer” Muncy, in his individual capacity, and (3) the

McDowell County Commission (the “County Commission”). See id.

at ¶¶ 7-10. Plaintiffs allege various claims under 42 U.S.C. §

1983 against Officers Martin and Horn for alleged constitutional

violations, including unlawful seizure of Mr. Tartt, malicious

prosecution of Mr. Tartt, unlawful search and seizure of the

Hairstons, and unlawful retaliation against plaintiffs for

exercising their free speech rights. See id. at Counts I-IV.

Plaintiffs also claim that Officers Martin and Horn conspired to

deprive them of their equal protection rights in violation of 42

U.S.C. § 1985. See id. at Count V. Plaintiffs bring § 1983

claims against Officer Muncy under a “supervisory liability”

theory and against the County Commission for allegedly

implementing an unconstitutional policy or custom that caused

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their alleged constitutional injuries. See id. at Counts VI-

VII.

Defendants filed this motion to dismiss under Rule 12(b)(6)

of the Federal Rules of Civil Procedure. See ECF No. 10. They

challenge the sufficiency of plaintiffs’ allegations only as to

their (1) § 1983 claim against the County Commission, (2) § 1985

conspiracy claim against Officers Martin and Horn, and (3)

supervisory liability claim against Officer Muncy. See ECF No.

11. They do not contest the sufficiency of plaintiffs’

allegations for their § 1983 claims against Officers Martin and

Horn.

II. Legal Standard

“The purpose of a Rule 12(b)(6) motion is to test the

[legal] sufficiency of a complaint; importantly, [a Rule

12(b)(6) motion] does not resolve contests surrounding the

facts, the merits of a claim, or the applicability of defenses.”

Edwards v. City of Goldsboro, 178 F.3d 231, 243–44 (4th Cir.

1999) (citations and internal quotation marks omitted). A Rule

12(b)(6) defense asserts that even if all the factual

allegations in a complaint are true, they remain insufficient to

establish a cause of action. This court is also mindful that

“[w]hether a particular ground for opposing a claim may be the

basis for dismissal for failure to state a claim depends on

whether the allegations in the complaint suffice to establish

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that ground, not on the nature of the ground in the abstract.”

Jones v. Bock, 549 U.S. 199, 215 (2007).

Accordingly, Federal Rule of Civil Procedure 8(a)(2)

requires that “a pleading . . . contain a ‘short and plain

statement of the claim showing that the pleader is entitled to

relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677—78 (2009)

(citing Fed. R. Civ. P. 8(a)(2)). The purpose of Rule 8(a)(2)

is to ensure that “the defendant [receives] fair notice of what

the . . . claim is and the grounds upon which it rests.” Conley

v. Gibson, 355 U.S. 41, 47 (1957). A plaintiff must allege

“enough facts to state a claim to relief that is plausible on

its face” and “raise a right to relief above the speculative

level.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599,

615 n.26 (4th Cir. 2009).

The United States Supreme Court has maintained that

“[w]hile a complaint . . . does not need detailed factual

allegations, . . . 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.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (citations and internal quotation marks

omitted). The court need not “accept as true unwarranted

inferences, unreasonable conclusions, or arguments.” E. Shore

Mkts., Inc. v. J.D. Assocs. Ltd P’ship, 213 F.3d 175, 180 (4th

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Cir. 2000). Courts must also take care to avoid confusing the

veracity or even accuracy underlying the allegations that a

plaintiff has leveled against a defendant with the allegations’

likelihood of success. While “the pleading must contain

something more . . . than . . . a statement of facts that merely

creates a suspicion [of] a legally cognizable right of action,”

5 C. Wright & A. Miller, Federal Practice and Procedure § 1216

(3d ed. 2004), “assum[ing]” of course “that all the allegations

in the complaint are true (even if doubtful in fact),” Twombly,

550 U.S. at 555, it is also the case that “Rule 12(b)(6) does

not countenance . . . dismissals based on a judge’s disbelief of

a complaint’s factual allegations.” Neitzke v. Williams, 490

U.S. 319, 327 (1989). Therefore, courts must allow a well-

pleaded complaint to proceed even if it is obvious “that a

recovery is very remote and unlikely.” Scheuer v. Rhodes, 416

U.S. 232, 236 (1974).

III. Discussion

a. § 1983 Claim Against County Commission

Plaintiffs seek redress from the County Commission for

their alleged constitutional injuries. “Section 1983 provides a

federal cause of action to redress constitutional harms

committed under color of state law.” Smith v. Travelpiece, 31

F.4th 878, 882-83 (4th Cir. 2022) (citing 42 U.S.C. § 1983)).

The statute subjects “[e]very person” to civil liability to

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redress such harms. 42 U.S.C. § 1983. “Every person” includes

municipalities and other local government units. See Monell v.

Dep’t of Soc. Serv. of City of New York, 436 U.S. 658, 690

(1978). The County Commission is considered a municipality for

purposes of § 1983 claims. See Revene v. Charles Cty. Comm’rs,

882 F.2d 870, 874 (4th Cir. 1989).

Plaintiffs may not hold the County Commission liable on a

respondeat superior theory for the alleged acts of the

individual officers. See Monell, 436 U.S. at 691. Instead, to

state a valid § 1983 claim against the County Commission,

plaintiffs must plausibly allege that their claimed

constitutional injuries arose because the individual officers

implemented or executed a “policy statement, ordinance,

regulation or decision officially adopted and promulgated by

[the County Comission’s] officers[,]” in this case, the Sheriff.

Id. at 690; see also Frye v. Lincoln Cty. Comm’n, No. 2:20-cv-

00403, 2021 WL 243864, at *4 (S.D.W. Va. Jan. 25, 2021) (“The

Fourth Circuit has recognized that ‘in the realm of county law

enforcement,’ it is the ‘sheriff [who] is the duly delegated

policy maker for the county.’” (quoting Revene, 882 F.2d 874)).

Customs include a “governmental ‘custom’ even though such a

custom has not received formal approval through the body's

official decisionmaking channels.” Monell, 436 U.S. at 691.

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Plaintiffs can establish a policy or custom through one of four

means:

(1) [T]hrough an express policy, such

as a written ordinance or regulation; (2)
through the decisions of a person with final
policymaking authority; (3) through an
omission, such as a failure to properly
train officers, that manifest[s] deliberate
indifference to the rights of citizens; or
(4) through a practice that is so persistent
and widespread as to constitute a custom or
usage with the force of law.

Howard v. City of Durham, 68 F.4th 934, 952 (4th Cir. 2023).

In this case, plaintiffs allege that the County Commission,

through the Sheriff’s Office, implemented an unconstitutional

express policy and also established unconstitutional customs

through omissions and widespread practices of that office. See

ECF No. 3 at ¶ 86. Defendants, however, argue that these

allegations are insufficient to state a § 1983 claim because

plaintiffs allege only conclusory allegations of a specific

policy or practice and do not attribute that policy or practice

to the County Commission, the final policy maker. See ECF No.

11 at 7.

The court begins by addressing plaintiffs’ allegations that

the individual officers acted according to an express policy of

the County Commission. Plaintiffs allege that the County

Commission had a “policy and practice of authorizing general

searches of the curtilage of homes in the absence of probable

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cause . . . .” ECF No. 3 at ¶ 86. Plaintiffs do not cite to a

written policy or otherwise provide factual support for the

existence of such express policy. The court, therefore, finds

plaintiffs’ allegations of an express policy insufficient. See,

e.g., Inser v. City of Elkins, No. 2:21-CV-27, 2022 WL 1750630,

at *4 (N.D.W. Va. May 31, 2022) (finding insufficient

allegations of express policy where “[t]he Complaint includes

only a conclusory statement that such a policy exists and then

cites the facts at issue in this case.”). The court next

considers plaintiffs’ allegations that the individual officers

acted according to unofficial customs of the County Commission.

Plaintiffs allege that the County Commission established

unconstitutional customs that caused the alleged constitutional

injuries because (1) the County Commission knew of prior,

similar incidents of Sheriff’s Deputies violating individuals’

constitutional rights, see ECF No. 3 at ¶ 89, (2) the County

Commission knew of the specific incident and did nothing to

prevent the subsequent prosecution of Mr. Tartt or to prevent

future incidents, see id. at ¶¶ 87, 90, and (3) Officer Martin

served as Officer Horn’s supervisor and used the incident as

“field training” for him, id. at ¶ 88.

These theories represent plaintiffs’ efforts to plead a

“custom by condonation.” Bonner v. McDowell Cty. Comm’n, No.

1:21-00666, 2023 WL 2701427, at *3 (S.D.W. Va. Mar. 29, 2023)

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(cleaned up). In other words, plaintiffs allege that the County

Commission condoned the unconstitutional behavior, thereby

making it customary. “Prevailing under such a theory is no easy

task.” Id. To do so, plaintiffs must prove (1) a persistent

and widespread practice of municipal officials of a duration and

frequency indicating the policy makers (2) had actual or

constructive knowledge of the conduct, and (3) failed to correct

it due to their “deliberate indifference.” Id. (citing Spell v.

McDaniel, 824 F.2d 1380, 1386-91 (4th Cir. 1987)). While

plaintiffs must ultimately prove these elements, they must only

plausibly allege them at this stage; proving a policy or custom

under Monell is quite difficult, but pleading one is a lower

burden. See Owens v. Baltimore City State’s Attorneys Office,

767 F.3d 379, 403 (4th Cir. 2014).

This court recently found that a plaintiff alleged a valid

§ 1983 claim against a county commission under Monell because

(1) the county commission knew of similar alleged constitutional

violations but failed to address the cause of them, and (2)

failed to intervene to protect the plaintiff from the alleged

constitutional violation. See Bonner, No. 1:21-00666, 2023 WL

2701427, at *3-4. The court accepted the general allegations of

past events as true for purposes of the motion and, therefore,

found that the plaintiff alleged a valid Monell claim. See id.

at *4 (finding that the plaintiff’s allegations “that municipal

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officials have used excessive force on multiple occasions in the

recent past, which the court must accept as true, plausibly

support[s] his Monell claim because allegations of multiple

instances of the same constitutional violation can establish a

persistent, widespread pattern of practice that forms the basis

of an impermissible custom.”) (quoting Daniels v. City of

Charleston, No. 2:20-cv-00779, 2021 WL 3624696, at *5 (S.D.W.

Va. Aug. 16, 2021)).

Like Bonner, plaintiffs allege that the County Commission

knew of and condoned prior instances of similar unconstitutional

behavior and that it failed to correct the issues to prevent

plaintiffs’ alleged constitutional injuries. These allegations

alone may satisfy the pleading standard for a Monell claim,

because “[t]he recitation of facts need not be particularly

detailed, and the chance of success need not be particularly

high.” Owens, 767 F.3d at 403 (citing Iqbal, 556 U.S. at 678).

Plaintiffs, however, also allege that (1) Sheriff’s Office

supervisors knew of the allegedly unconstitutional conduct as it

transpired, (2) that the Sheriff’s Office failed to stop the

allegedly unlawful prosecution of Mr. Tartt, despite this actual

knowledge, and (3) that Officer Martin trained Officer Horn in

these unconstitutional practices. If plaintiffs prove these

allegations, a jury could find that the practices were customary

of the Sheriff’s Office, thereby establishing the County

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Commission’s liability. See, e.g., Spell v. McDaniel, 824 F.2d

1380, 1391 (4th Cir. 1987) (“Municipal fault for allowing such a

developed ‘custom or usage’ to continue requires (1) actual or

constructive knowledge of its existence by responsible

policymakers, and (2) their failure, as a matter of specific

intent or deliberate indifference, thereafter to correct or stop

the practices.”); see also Semple v. City of Moundsville, 195

F.3d 708, 713 (4th Cir. 1999) (“In order for a municipality to

be liable pursuant to § 1983 under a theory of deficient

training, those deficiencies in police training policies that

result from policymaker fault must rise to at least the degree

of deliberate indifference to or reckless disregard for the

constitutional rights of persons within police force

jurisdiction.”).

For these reasons, plaintiffs adequately allege a § 1983

against the County Commission. 3

b. § 1985 Conspiracy Claim

Claims brought under 42 U.S.C. § 1985 allow individuals to

recover civil damages from persons that conspire to deprive the

individuals of equal protection under the law. See Bray v.

3 Defendants also argue that plaintiffs fail to attribute this

custom to the County Commission. Plaintiffs, however, attribute
it to the county Sheriff’s Office, which is, as discussed above,
considered a final policy maker for the County Commission in
this respect. Plaintiffs therefore attribute the alleged custom
to the County Commission.
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Alexandria Women’s Health Clinic, 506 U.S. 263, 268 (1993)

(quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). To

establish a § 1985 conspiracy claim, plaintiffs must prove four

elements:

(1) a conspiracy of two or more

persons, (2) who are motivated by a specific
class-based, invidiously discriminatory
animus to (3) deprive the plaintiff of the
equal enjoyment of rights secured by the law
to all, (4) and which results in injury to
the plaintiff as (5) a consequence of an
overt act committed by the defendants in
connection with the conspiracy.

Unus v. Kane, 565 F.3d 103, 126 (4th Cir. 2009) (quoting Simmons

v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995)). These elements

require that “there must be some racial, or perhaps otherwise

class-based, invidiously discriminatory animus behind the

conspirators' action.” Alexandria Women’s Health Clinic, 506

U.S. at 268-69 (quoting Breckenridge, 403 U.S. at 102).

Plaintiffs claim that Officers Martin and Horn “conspired

for the purpose of depriving . . . plaintiffs of the equal

protection of the laws of the United States[,]” ECF No. 3 at ¶

79, because the officers suspected plaintiffs of growing

marijuana simply because they are African Americans and lived on

the street where someone allegedly grew marijuana. See id. at ¶

80. Plaintiffs argue that a factfinder could infer a

discriminatory animus from this incident because the officers

knew of only plaintiffs’ race and had no other cause for

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suspicion when the officers confronted plaintiffs, searched the

Hairstons’ property, and arrested Mr. Tartt. See ECF No. 13 at

10-11. Defendants, however, ask the court to dismiss this

claim, challenging only the sufficiency of plaintiffs’

allegations related to the first element of a § 1985 claim:

that Officers Martin and Horn formed a conspiracy. See ECF No.

11 at 10.

A conspiracy claim under § 1985 requires “an agreement or a

meeting of the minds by [the] defendants to violate the

[plaintiff's] constitutional rights.” A Soc'y Without A Name v.

Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (quoting Simmons, 47

F.3d at 1377). The standard required to prove a § 1985

conspiracy is “relatively stringent.” Simmons, 47 F.3d at 1377.

These claims rarely survive the summary judgment stage:

[The Fourth Circuit] has rarely, if

ever, found that a plaintiff has set forth
sufficient facts to establish a section 1985
conspiracy, such that the claim can
withstand a summary judgment motion. Indeed,
[the court has] specifically rejected
section 1985 claims whenever the purported
conspiracy is alleged in a merely conclusory
manner, in the absence of concrete
supporting facts.

Id. But this burden is necessarily lower at the pleading stage:

“[T]he nature of conspiracies often makes it impossible to

provide details at the pleading stage and . . . the pleader

should be allowed to resort to the discovery process and not be

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subject to dismissal of his complaint.” Brever v. Rockwell

Int’l Corp., 40 F.3d 1119, 1126 (10th Cir. 1994) (citing 5 C.

Wright & A. Miller, Federal Practice & Procedure, § 1233, at 257

(2d ed. 1990)). To establish a civil rights conspiracy,

plaintiffs need not identify an express agreement; they may

establish the conspiracy through circumstantial evidence showing

that the defendants acted jointly in concert toward the same

conspiratorial objective. See, e.g., Hinkle v. City of

Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996).

In this case, plaintiffs do not allege an express agreement

between Officers Martin and Horn, nor would they likely have

evidence of any such agreement before the discovery process.

Instead, plaintiffs put forth allegations that if proven,

represent circumstantial evidence that the officers acted in

concert to deprive plaintiffs of equal protection under the law.

According to plaintiffs’ allegations, Officers Martin and Horn

acted jointly to unlawfully seize the Hairstons and search their

home, to unlawfully arrest Mr. Tartt, and to unlawfully

retaliate against plaintiffs for asserting their constitutional

rights. Also, according to those allegations, the officers

suspected plaintiffs of wrongdoing solely because of their race

and attenuated proximity to the alleged marijuana plants. These

allegations, taken as true, support a plausible inference that

the officers acted in concert to discriminate against plaintiffs

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because of their race. Plaintiffs, therefore, sufficiently

allege a meeting of the minds between Officers Horn and Martin.

Plaintiffs allege a valid § 1985 claim.

c. Supervisory Liability Claim

Under specific circumstances, a plaintiff may sue a

supervisory official for constitutional injuries inflicted by

his subordinates. See Shaw v. Stroud, 13 F.3d 791, 798 (4th

Cir. 1994) (citing Slakan v. Porter, 737 F.2d 368 (4th Cir.

1984)). Although this is the case, the term “supervisory

liability” is a misnomer. See King v. Riley, 76 F.4th 259, 269

(4th Cir. 2023) (citing Iqbal, 556 U.S. at 677). Such liability

is not premised upon respondeat superior but upon “a recognition

that supervisory indifference or tacit authorization of

subordinates’ misconduct may be a causative factor in the

constitutional injuries they inflict on those committed to their

care.” Stroud, 13 F.3d at 798 (quoting Porter, 737 F.2d at 372-

73). In other words, a supervisor is liable only for his own

misconduct, but he may commit misconduct if: (1) the supervisor

knew of the subordinates’ misconduct and its pervasive and

unreasonable risk of constitutional injury, (2) the supervisor’s

response to that knowledge demonstrates deliberate indifference

to the risk of constitutional injury or a tacit authorization of

the conduct, and (3) there is an “affirmative causal link”

between the supervisor’s inaction and the plaintiff’s

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constitutional injury. See Timpson v. Anderson Cty.

Disabilities and Special Needs Bd., 31 F.4th 238, 257 (4th Cir.

2022) (citing Stroud, 13 F.3d at 799).

In any event, a supervisor must possess more than “mere

knowledge” that his subordinates are engaged in unconstitutional

conduct. Riley, 76 F.4th at 269. A complaint must contain

specific allegations of each individual’s conduct and state of

mind, and at the summary judgment stage, a plaintiff must offer

evidence to support the allegations. See id. When a plaintiff

alleges a supervisory liability claim, they assume a heavy

burden of proof that is not easily satisfied. See Timpson, 31

F.4th 258 (citing Porter, 737 F.2d 373).

In this case, plaintiffs allege (1) that Officer Muncy

supervised Officers Martin and Horn when he served as Chief

Deputy and later as Sheriff, see ECF No. 3 at ¶ 94, (2) that

Officer Muncy knew of a pattern of unconstitutional acts by his

subordinates, see id. at ¶ 96, (3) that Officers Martin and Horn

kept their supervisors apprised of their interaction with

plaintiffs as the allegedly unconstitutional events unfolded,

see id. at ¶ 32, (4) that Officer Muncy was “deliberately

indifferent in failing to train and/or supervise employees[,]”

id. at ¶ 98, and (5) that Officer Muncy’s alleged misconduct

caused plaintiffs’ alleged constitutional injuries, see id. at ¶

99. Defendants, however, ask the court to dismiss this

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supervisory liability claim, arguing that plaintiffs “have not

alleged any specific factual information regarding [Officer]

Muncy’s knowledge or response.” ECF No. 11 at 11.

These allegations, if proven, establish that Officer Muncy

knew that Officers Martin and Horn deprived plaintiffs of their

constitutional rights and had done so to other individuals.

They also establish that Officer Muncy was deliberately

indifferent to or tacitly approved the deprivation of the

alleged victims’ constitutional rights by failing to intervene

either to prevent the malicious prosecution of Mr. Tartt or to

prevent the entire incident from occurring. If true, these

allegations make Officer Muncy’s alleged inaction an affirmative

cause of plaintiffs’ alleged constitutional injuries.

Plaintiffs, therefore, plausibly allege every element of a

supervisory liability claim against Officer Muncy. While these

allegations may be difficult to prove, they are sufficient to

state a claim upon which relief may be granted. See, e.g., Hall

v. Putnam Cty. Comm’n, 637 F.Supp.3d 381, 400 (S.D.W. Va. 2022)

(“While Plaintiffs will need to further support the facts

asserted in the Complaint, as of now they would be sufficient to

allege supervisor liability against the specific supervisor(s)

of Defendant Deputies for the limited purposes of plausibility

pleading.”); Braley v. Thompson, No. 2:22-cv-00534, 2023 WL

2351881, at *6 (S.D.W. Va. Mar. 3, 2023) (denying motion to

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dismiss because plaintiff alleged deputies used excessive force

on prior occasions, that the supervisor knew of these incidents,

and that supervisors failed to intervene); Braswell v. Jividen,

No. 2:20-cv-00872, 2021 WL 5890667, at *4-5 (S.D.W. Va. Dec. 13,

2021) (denying motion to dismiss because plaintiff alleged that

supervisors knew of prior improper behavior and did not address

it); Gold v. Joyce, No. 2:21-cv-00150, 2021 WL 2593804, at *9

(S.D.W. Va. June 24, 2021) (denying motion to dismiss

supervisory liability claim because plaintiff alleged that

supervisor oversaw subordinates, directed some of their actions,

and was an affirmative causal link to the constitutional

injury).

Plaintiffs adequately allege a supervisory liability claim.

IV. Conclusion

For the above reasons, defendants’ motion to dismiss (ECF

No. 10) is DENIED. The Clerk is directed to send a copy of this

Memorandum Opinion to counsel of record.

IT IS SO ORDERED this 21st day of September, 2023.

ENTER:

David A. Faber
Senior United States District Judge

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