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Case 2:19-cv-00639 Document 6 Filed 11/19/19 Page 1 of 13 PageID #: 41

IN THE UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

KEITH ALLEN SIZEMORE, SHANE


ALLEN SIZEMORE,

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.

MEMORANDUM IN SUPPORT OF DEFENDANTS S.R. MORRIS AND


THE FAYETTE COUNTY COMMISSION’S MOTION TO DISMISS

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

Rules of Civil Procedure.

I. STATEMENT OF THE CASE

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

cooperation with the Central West Virginia Drug Task Force.

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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

returned straight to Mr. Sizemore’s residence. Id.

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.

Va. Code § 60A-7-701, et seq. Id. at ¶¶ 32-33.

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

Defendants now move to dismiss.

II. STANDARD OF REVIEW

“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

unsupported legal conclusions, legal conclusions couched as factual allegations, or conclusory

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.

Freeh, 275 F.3d 391, 405, n. 9 (4th Cir.2001)).

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

allegations.” Iqbal 679.

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

entitlement to relief.” Id. (internal quotation marks omitted).

III. ARGUMENTS

A. Sgt. Morris is entitled to qualified immunity from Plaintiff’s 42 U.S.C. § 1983


claim.

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.

1. Standards for applying qualified immunity.

“Government officials performing discretionary functions are entitled to qualified immunity

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).

In ruling on an issue of qualified immunity, a court must consider a threshold question:

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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,

942 F.2d 257, 261 (4th Cir. 1991).

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,

a defendant pleading qualified immunity is entitled to dismissal before the commencement of

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discovery.” Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir. 2009).

2. Sgt. Morris is entitled to qualified immunity for his decision to seek a


search warrant based on the information stated in Plaintiff’s Complaint.

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

otherwise stayed at his home.

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

preceding information makes the mistake a reasonable one to make.

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

information, in total, must possess sufficient “indicia of reliability.” Gates at 233.

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

claims must be dismissed.

B. Plaintiff’s Negligence claim should be dismissed, because the Complaint is


entirely lacking in factual support beyond bare conclusory allegations.

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

such an inadequate claim.

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

Complaint failed to satisfy federal pleading standards, and dismissed it.

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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is not proof that they were not trained otherwise.

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

should thus be dismissed.

C. Plaintiff’s claims as they pertain to the civil forfeiture proceeding must be


dismissed, as civil forfeiture does not depend on the criminal guilt of the
property owner.

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

meets these definitions.

“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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property was involved in a violation to which forfeiture attaches.”).

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.

THE FAYETTE COUNTY COMMISSION


and S.R. MORRIS,
By Counsel,

/s/ Adam K. Strider ______________


John P. Fuller (WV Bar #9116)
Adam K. Strider (WV Bar #12483)
BAILEY & WYANT, PLLC
500 Virginia Street, East, Suite 600
Post Office Box 3710
Charleston, West Virginia 25337-3710
T: 304.345.4222
F: 304.343.3133
jfuller@baileywyant.com
astrider@baileywyant.com

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IN THE UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

KEITH ALLEN SIZEMORE, SHANE


ALLEN SIZEMORE,

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

I HEREBY CERTIFY that a true and correct copy of foregoing MEMORANDUM IN


SUPPORT OF DEFENDANTS S.R. MORRIS AND THE FAYETTE COUNTY
COMMISSION’S MOTION TO DISMISS was served upon the following parties through the
Court’s Electronic Case Filing (ECF) system on this day, Tuesday, November 19, 2019:

John H. Bryan, Esquire


Law Office of John H. Bryan
PO Box 366
Union, WV 24983
Email Address: jhb@johnbryanlaw.com
Counsel for Plaintiffs

Chip E. Williams, Esquire


Jared C. Underwood, Esquire
Pullin, Fowler, Flanagan, Brown & Poe, PLLC
252 George St.
Beckley, WV 25801
Email Address: cwilliams@pffwv.com
Email Address: junderwood@pffwv.com
Counsel for C.A. Young and Town of Oak Hill
Case 2:19-cv-00639 Document 6 Filed 11/19/19 Page 13 of 13 PageID #: 53

/s/ Adam K. Strider ______________


John P. Fuller (WV Bar #9116)
Adam K. Strider (WV Bar #12483)
BAILEY & WYANT, PLLC
500 Virginia Street, East, Suite 600
Post Office Box 3710
Charleston, West Virginia 25337-3710
T: 304.345.4222
F: 304.343.3133
jfuller@baileywyant.com
astrider@baileywyant.com

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