Professional Documents
Culture Documents
Plaintiffs,
v. Civil Action No. 2:19-cv-00639
Honorable Joseph R. Goodwin
S.R. MORRIS, C.A. YOUNG, individually,
and FAYETTE COUNTY COMMISSION, a
political subdivision of the State of West
Virginia, TOWN OF OAK HILL, a political
subdivision of the State of West Virginia,
Defendants.
COME NOW these Defendants, S.R. Morris (“Sgt. Morris”) and the Fayette County
Commission, by counsel John P. Fuller, Adam K. Strider, and the law firm of Bailey & Wyant,
PLLC, and hereby offers for this Court’s consideration the following Memorandum of Law in
support of their contemporaneously-filed Motion to Dismiss under Rule 12(b)(6) of the Federal
This case arises from a search warrant obtained on the house of Plaintiff Keith Allen
Sizemore in Oak Hill, Fayette County, West Virginia, to search for drugs. This warrant was
obtained by the officers who are now Defendants in this matter, Sergeant S. R. Morris of the Fayette
County Sheriff’s Department and Detective C. A. Young of the Oak Hill Police Department, in
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On or about July 10, 2017, the Defendants conducted a traffic stop search of Mr. Sizemore’s
vehicle upon the belief that heroin could be found therein. See ECF Doc. No. 1 at ¶¶ 6. At the time
of the search, Melissa Figueroa, the significant other of Mr. Sizemore’s daughter, was a passenger in
the car. See id. at ¶ 7. While the search did not uncover the heroin they believed to be present, it did
uncover a small amount of marijuana belonging to Ms. Figueroa. Id. The vehicle was towed to a
garage for further searches. Id. at ¶ 8. Mr. Sizemore later admitted that there had, in fact, at the time
been heroin in the vehicle that he and Ms. Figueroa had purchased in Detroit, but that the officers
had not found it. See United States v. Sizemore, 2:18-cr-198, ECF Doc. No. 58 at pg. 6 (Mar. 1,
2019). After the search, Ms. Figueroa walked to Mr. Sizemore’s house. See id. at pg. 3.
At an unspecified time thereafter, the Complaint states that the Defendants, along with
unnamed federal Drug Enforcement Agency (“DEA”) agents, travelled to Mr. Sizemore’s house to
interview him. See ECF Doc. No. 1 at ¶ 9. When they arrived at his house, Ms. Figueroa was also
present there. Id. After the interview, Mr. Sizemore’s vehicle was returned to him. Id. at ¶ 10.
On September 7, 2017, Sgt. Morris and Det. Young observed Ms. Figueroa sell an amount of
heroin to a buyer in a Dollar Tree parking lot. Id. at ¶ 11. Thereafter, they approached the buyer,
who agreed to serve as a confidential informant, and arranged a controlled buy from Ms. Figueroa.
Id. at ¶¶ 12-13. On the date of the controlled buy, Ms. Figueroa was observed leaving Mr.
Sizemore’s residence in a Dodge Neon. Id. at ¶ 14. Ms. Figueroa travelled straight to the Dollar
Tree in that vehicle, where the controlled buy took place. Id. at ¶¶ 14-15. The Dodge Neon then
Based on those observations, Sgt. Morris and Det. Young sought a search warrant for Mr.
Sizemore’s residency, believing that there could be heroin present. Id. at ¶ 16. In the warrant
application, one of the supporting facts relied upon was that Ms. Figueroa either resided or stayed at
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Mr. Sizemore’s home, which was later revealed to be untrue. Id. at ¶ 18. After the search warrant
was approved by a magistrate, a search was undertaken on the Plaintiff’s residence. Id. at ¶ 20. In
the course of this search, heroin, firearms, and cash were discovered. Id. at ¶ 21. Mr. Sizemore was
then arrested.
In the course of the subsequent prosecution, the search warrant was found to have been
insufficiently supported, and the evidence discovered in Mr. Sizemore’s home was suppressed. Id.
at ¶ 31. In so concluding, the presiding judge stated that the Defendants’ observations of Ms.
Figueroa were insufficient to conclude that she resided at Mr. Sizemore’s home. Id. The charges
were subsequently dropped. Id. at ¶ 32. However, prior thereto, Mr. Sizemore’s home and vehicle
had been seized and civilly forfeited pursuant to the West Virginia Contraband Forfeiture Act, W.
Based on the foregoing, the Plaintiffs have brought the instant law suit, asserting two (2)
counts against these Defendants. First, the Plaintiffs assert a 42 U.S.C. § 1983 claim against Sgt.
Morris for alleged violations of the Fourth Amendment involved in securing the search warrant. Id.
at ¶¶ 34-44. Second, they assert a claim of negligent training and supervision against the Fayette
County Commission. Id. at ¶¶ 45-49. For the reasons stated in the forthcoming sections, these
“In general, a motion to dismiss for failure to state a claim should not be granted unless it
appears certain that the plaintiff can prove no set of facts which would support its claim and would
entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded
allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130 (1993) (citing De Sole v. United States, 947 F.2d 1169, 1171 (4th Cir.
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1991)). Nonetheless, the Fourth Circuit has noted, “[t]he court need not, however, accept
factual allegations devoid of any reference to actual events.” Eastern Shore Mkts., Inc. v. J.D.
Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). “The inclusion of conclusory legal terms,
however, does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in
the complaint do not support the legal conclusion, ‘since the purpose of Rule 12(b)(6) is to test the
legal sufficiency of the complaint.’” Randall v. U.S., 30 F.3d 518, 522 (4th Cir.1994); Trulock v.
When considering a motion to dismiss pursuant to Rule 12(b)(6), a court follows a two-step
approach: (1) “begin by identifying pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth,” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009), and then (2) “[w]hen there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Id.
For the first step, the complaint must provide the plaintiff's “grounds of . . . entitlement to
relief” in more factual detail than mere “labels and conclusions.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (internal quotation marks omitted). “[A]
formulaic recitation of the elements of a cause of action will not do.” Id. at 555. “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
For the second step, a court must take the remaining factual allegations in the complaint as
true, and view them in the light most favorable to the plaintiff. See Twombly at 555-56. The
complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at
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555, 570 (internal quotation marks omitted). Plausibility is established “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal at 678. “The plausibility standard . . . asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short of the line between possibility and plausibility of
III. ARGUMENTS
Plaintiff’s 42 U.S.C. § 1983 claim against Sgt. Morris must be dismissed due to the
application of qualified immunity. The most that can be said of Sgt. Morris’s application for and
execution of the search warrant at issue is that it was based on a mistaken belief that Ms. Figueroa
resided or temporarily stayed at the Plaintiff’s house. A reasonable officer, after witnessing Ms.
Figueroa come and go from that house on more than one occasion, could arrive at this belief in good
faith, which is sufficient to apply qualified immunity to the decision to seek a search warrant based
thereon.
from liability for civil damages to the extent that their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Rish v. Johnson,
131 F.3d 1092, 1094 (4th Cir. 1997). Qualified immunity exists to protect officers in the
performance of their duties unless they are “plainly incompetent” or they “knowingly violate the
law.” Doe v. Broderick, 225 F.3d 440, 446 (4th Cir. 2000).
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“Taken in the light most favorable to the party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.
2151, 150 L. Ed. 2d 272 (2001). If the allegations do not give rise to a constitutional violation, no
further inquiry is necessary. Id. If, on the other hand, a violation can be shown, then the court must
determine whether the right was clearly established in the specific context of the case. See id.
(Emphasis added).
The applicable test for qualified immunity is one of “objective reasonableness,” and takes the
form of an inquiry into whether a government official has violated “clearly established statutory or
constitutional rights of which a reasonable person would have known.” See, e.g., Malley v. Briggs,
475 U.S. 335, 344, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986); Harlow v. Fitzgerald, 457 U.S. 800,
818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Thereunder, even if a plaintiff proves a violation of
his rights, an official is nonetheless entitled to qualified immunity if a reasonable person in the
“official’s position could have failed to appreciate that his conduct would violate” the same. Gott at
998. “If reasonable mistakes were actionable, difficult questions of discretion would always be
resolved in favor of inaction, and effective law enforcement would be lost.” Torchinsky v. Siwinski,
The U.S. Supreme Court has long emphasized that qualified immunity is designed “to spare a
defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those
defending a long drawn out lawsuit.” Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009).
“The entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to
liability[.]” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.
Ct. 684 (1993). “Unless a plaintiff's allegations state a claim of violation of clearly established law,
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discovery.” Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir. 2009).
The most that can be said of Sgt. Morris’s conduct, as it is alleged in the Complaint, is that he
sought a search warrant premised in part upon a reasonable mistake about Ms. Figueroa’s residency.
Based on the number of times that Ms. Figueroa was observed at Mr. Sizemore’s residence, or
otherwise in his company, it was not a difficult mistake to make to believe that she resided or
Ms. Figueroa, who was the significant other of Mr. Sizemore’s daughter, was in the vehicle
with the Plaintiff when it was stopped based on a tip that he was transporting heroin. After the
search, Ms. Figueroa left the Sheriff’s office and made her way to Mr. Sizemore’s home. Ms.
Figueroa was also at his home when police went there to interview him. Finally, when she went to a
controlled buy, she was observed leaving Mr. Sizemore’s house, and the car she rode in returned
there afterward. While Sgt. Morris was incorrect about her residing or otherwise staying there, the
What’s more, there was sufficient cause to believe heroin could be found at Mr. Sizemore’s
home even if Sgt. Morris had known that Ms. Figueroa did not reside there. In Torchinsky, cited
supra, the Fourth Circuit addressed the question of whether an officer had acted unreasonably in
obtaining a warrant. In finding that the plaintiffs therein had failed to overcome qualified immunity,
the Court emphasized that “only where the warrant application is so lacking in indicia of probable
cause as to render official belief in its existence unreasonable will the shield of immunity be lost.”
Torchinsky at 261 (quoting Malley v. Briggs, 475 U.S. 335, 344-345, 89 L. Ed. 2d 271, 106 S. Ct.
1092 (1986)). The Court elaborated the public policy behind such a view as follows:
Permitting damages suits against government officials can entail substantial social
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costs, including the risk that fear of personal monetary liability and harassing
litigation will unduly inhibit officials in the discharge of their duties." […] These
concerns are particularly acute when the officials are police officers investigating a
crime of violence. The police must have the ability to move quickly to solve the
crime before the evidence becomes stale, a victim-witness dies, or the perpetrator has
a chance to repeat the crime. The ability of police officers to protect the public can be
severely hampered, however, if their every decision is subject to second-guessing in
a lawsuit.
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)).
However, the warrant at issue in this case was a search warrant, rather than an arrest warrant,
which does not require a showing of probable cause. Rather, when deciding whether to issue a
search warrant, a Magistrate must “simply make a practical common-sense decision whether, given
all the circumstances set forth in the affidavit before him . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S.
213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). In order to satisfy the Fourth Amendment, the
magistrate must merely conclude that a search would uncover evidence of wrongdoing. See Jones v.
United States, 362 U.S. 257, 269-71, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960). An application for a
search warrant can be supported by hearsay information, and the applying officer need not have
personally observed the evidence giving rise to the warrant application. See id. However, the
In this matter, Ms. Figueroa was observed leaving the Plaintiff’s residence directly for a
controlled buy. She had also been observed there on prior occasions, and had a known association
with Mr. Sizemore’s daughter. The car she was transported in then directly returned to Mr.
Sizemore’s home. This is sufficient to create a reasonable belief in an officer’s mind that there may
be drugs in the residence, even if it may have objectively fallen short of sufficient information to
uphold a search warrant in a criminal proceeding. Of course, as Plaintiff asserts in his Complaint,
there are numerous innocent alternative possibilities for why Ms. Figueroa may have been at Mr.
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Sizemore’s residence on each of these occasions. This is the case with nearly any observed
behavior. While this information may, looking backwards, be arguably insufficient to support a
search warrant, it does not warrant the conclusion that Sgt. Morris sought a search warrant knowing
the evidence to be insufficient. Thus, he is entitled to qualified immunity, and the Plaintiff’s § 1983
The U.S. Supreme Court was unmistakable in Tombly v. Bell Atlantic and Ashcroft v. Iqbal,
cited supra, that bare allegations of unlawfulness are insufficient to state a claim for relief. The
Plaintiff’s allegations against the Fayette County Commission for failing to train Sgt. Morris is just
The Twombly plaintiffs alleged that the defendants had entered into unlawful agreements
with the goal of inflating telephone carrier prices. The only allegation contained in that complaint
which supported the existence of such a conspiracy was an allegation “that [the defendants] have
entered into a contract, combination or conspiracy to prevent competitive entry into their . . . markets
and have agreed not to compete with one another.” Twombly at 564. The remaining allegations
regarded instances of seemingly parallel conduct, which the Court concluded did not give rise to an
inference that the seemingly parallel conduct was pursuant to a conspiracy. See id. Thus, the
Twombly Court concluded that the above-quoted allegation was conclusory and unsupported, and the
Likewise, no facts are alleged about the training programs allegedly offered by the Fayette
County Commission, or what deficiencies in training may have existed. The claim of negligent
training is presented as wholly conclusory. Further, allegorical to the Court’s reasoning in Twombly,
an allegation that individual deputy sheriffs purportedly committed misconduct or acted negligently
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Accordingly, the Plaintiff’s claim that the Fayette County Sheriff negligently trained Sgt.
Morris, purportedly resulting in the Plaintiff’s injuries, is presented solely as a legal conclusion, and
Both of Plaintiff’s claims include allegations that the conduct of these Defendants resulted in
the civil forfeiture of his house and truck, and seeks compensation for the loss of these items of
property. These claims are unwarranted. Under the West Virginia Contraband Forfeiture Act, W.
Va. Code § 60A-7-701, et seq., the following relevant categories of items are subject to forfeiture:
(5) All conveyances, including aircraft, vehicles or vessels, which are used, have
been used, or are intended for use, to transport, or in any manner to facilitate the
transportation, sale, receipt, possession or concealment of [illegal contraband].
(8) All real property, including any right, title and interest in any lot or tract of land,
and any appurtenances or improvements, which are used, or have been used, or are
intended to be used, in any manner or part, to commit or to facilitate the commission
of a violation of this chapter punishable by more than one year imprisonment[…]
W. Va. Code § 60A-7-703(a)(8), (10). The Plaintiff has not disputed that his forfeited property
“The most notable distinction between civil and criminal forfeiture is that civil forfeiture
proceedings are brought against property, not against the property owner; the owner's culpability is
irrelevant in deciding whether property should be forfeited.” United States v. Cherry, 330 F.3d 658,
668 n.16 (4th Cir. 2003); see also United States v. Sandini, 816 F.2d 869, 872 (3d Cir. 1987) (“Civil
forfeiture is an in rem proceeding. The property is the defendant in the case, and the burden of proof
rests on the party alleging ownership. The innocence of the owner is irrelevant -- it is enough that the
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It is admitted in the Complaint that Mr. Sizemore’s home contained heroin. Further, the
Court found in the criminal matter that the forfeited vehicle was used to transport heroin. Mr.
Sizemore’s property was forfeited because it was used in the commission of drug offenses, not
because of any alleged negligence on the part of law enforcement. Under the applicable statute, that
forfeiture was therefore proper. If any negligence did occur, it was error in drafting the search
warrant, which resulted in Mr. Sizemore’s acquittal. Any negligence on the part of law enforcement,
rather than depriving Mr. Sizemore of his property, saved him from conviction and incarceration.
Therefore, any claims made in the Complaint premised upon civilly forfeited property must be
dismissed.
IV. CONCLUSION
WHEREFORE, based on the foregoing, these Defendants respectfully pray this Honorable
Court GRANT their Motion to Dismiss, and grant such other relief as the Court deems just and
proper.
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Plaintiffs,
v. Civil Action No. 2:19-cv-00639
Honorable Joseph R. Goodwin
S.R. MORRIS, C.A. YOUNG, individually,
and FAYETTE COUNTY COMMISSION,
a political subdivision of the State of West
Virginia, TOWN OF OAK HILL, a
political subdivision of the State of West
Virginia,
Defendants.
CERTIFICATE OF SERVICE