Stanton v. Elliott et al, No. 2:2019cv00049 - Document 51 (N.D.W. Va. 2021)
Court Description: ORDER GRANTING DEFENDANTS 43 MOTION FOR SUMMARY JUDGMENT and this matter is DISMISSED WITH PREJUDICE. The Clerk is directed to enter judgment in favor of defendants and STRIKE this matter from the active docket of the Court. Signed by District Judge John Preston Bailey on 1/21/21. (njz)
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Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 1 of 18 PageID #: 521 Stanton v. Elliott et al Doc. 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Elkins JEFFERY L. STANTON, as Administrator of the Estate of Spencer Lee Crumbley, Deceased, Plaintiff, CIVIL ACTION NO. 2:19-CV-49 V. Judge Bailey CORY E. ELLIOH, Trooper First Class, Individually as Member of the West Virginia State Police, and JAMES J. CORNELIUS, Trooper First Class, Individually as Member of the West Virginia State Police, Defendants. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Pending before this Court is Defendants’ Motion forSummaryJudgment [Doc. 431 and accompanying Memorandum in Support of Defendants’ Motion for Summary Judgment [Doc. 44], filed on December2, 2020. Plaintiff filed his Opposition to Defendants’ Motion for Summary Judgment [Doc. 48] on December 23, 2020. Defendants filed their Reply to Plaintiff’s Response to Defendants’ Motion for Summary Judgment [Doc. 49] on January 6, 2021. Accordingly, this matter is ripe for consideration. Forthe reasons more fully articulated herein, this Court will grant the Motion. 1 Dockets.Justia.com Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 2 of 18 PageID #: 522 BACKGROUND This action stems from a Complaint brought by plaintiff Jeffrey L. Stanton as the administrator of the Estate of Spencer Lee Crumbley. IDoc. 1]. The action is based on the fatal shooting of decedent Crumbley bytwo former members of the West Virginia State Police who were dispatched to investigate a domestic disturbance occurring on decedent Crumbley’s property. [Id.]. The aforementioned shooting occurred at 616 Simmons Cemetery Road in Valley Head, West Virginia. See [Doc. 44]. At that property, two houses were situated: an A-frame where decedent Crumbley lived, and a house where decedent Crumbley’s son (plaintiff). decedent Crumbley’s daughter(Ashley Vazquez), hertwo young children, and her boyfriend resided. [Id.]. According to Vazquez, decedent Cmmbley was “a real bad meth head” who would use drugs “[eJvery day if he had it.” See [Doc. 44-1]. Further, Vazquez noted that on the date in question, decedent Crumbleywas coming down from methamphetamine use, which, in turn, caused him to exhibit violent behavior. [Id.]. Vazquez, her boyfriend, Trooper Elliott, and Trooper Cornelius noted the following sequence of events leading up to the shooting. See [Docs. 44-1, 44-6, 44-11, & 44-12]. Decedent Cmmbley had been threatening Vazquezforseveral days leading up to the shooting on December 17, 2017. When decedent Crumbley learned about frozen piping at the property, he struck Vazquez in the head. See [Doc. 44-1]. Fearing fortheir safety, Vazquez and her boyfriend decided to take the children and leave decedent Crumbley’s property. 2 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 3 of 18 PageID #: 523 See [Id.; Doc. 44-6]. However, Vazquez was unable to do so because decedent Crumbley had flattened hervan’s tires and stayed at the propertyto prevent herfrom leaving. [Id.]. After an unsuccessful attempt to report decedent Cwmbleythrough 89-1-1 call1 Vazquez sent a text message to her mother asking for help. See [Doc. 44-1]. Subsequently, Vazquez’s mother and an anonymous friend telephoned law enforcement, and the substance of the callers’ reports were relayed to defendants. See [Docs. 44-2 & 44-9]) Moreover, defendants were already familiarwith decedent Crumbley because he had been the subject of a prior visit from a drug eradication task force related to the distribution of methamphetamine. See [Doc. 44-10]. As defendants drove towards the subject property in response to the phone calls, plaintiff had snuck off the propertyto head down the mountain in an attemptto avoid decedent Crumbley and place anothercall to 9-1-1. See IDoc. 44-7]. Notably, the transcript of said call contains the following pertinent conversation: 9-1-1: Randolph County 911. Stanton: Yes this is Jeffrey Stanton[.] I need some assistance up here at Valley Head, at ah 616 Simmons Cemetery Road. My sisterand her kids are stuck up in the hofl[ow] and my Dad will not letthem out. within the record indicates that this information revealed several key pieces of information to defendants concerning decedent Cwmbley’s activity leading up to the shooting, including that decedent Cwmbley was “throwing guns around”; had “put his hands on” Vazquez; was “on drugs” and “slap crazy”; and would not let Vazquez get to the phone. 3 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 4 of 18 PageID #: 524 9-1-1: What’s your name? Stanton: Jeffrey Stanton . . And make sure to—make sure they are prepared because he is armed and he is dangerous, and he said if he sees a cop, he will shoot. 9-1-1: Okay, what exactly is going on, Sir? Stanton: My sister and us was up here for Christmas and I have no clue, he flipped out, he went and flattened ourtires last night, and we can’t get out from up there. I had to walk clear down here in Valley Head. 9-1-1: Okay, does he have like a history of, like altered mental status? Stanton: Oh, yeah, he’s got a bad history. 9-1-1: Ok, like what, Sir? I need to know what exactly is going on, so I can tell them. Stanton: Well he has my sister and her kids trapped up there. We was trying to go to the store this morning and he went and flattened the tires on her van so we can’t leave. 9-1-1: Ok, so does your father have any weapons? Stanton: Yes, he’s armed. 9-1-1: Do you know what type of firearms he has? 4 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 5 of 18 PageID #: 525 Stanton: [I’m] not for sure what he’s got. But I know he’s got—I know he’s got weapons. 9-1-1: Ok. Stanton: And he done said if he sees a cop come up there, he will shoot. 9-1-1: Do you know why he’s holding them hostage there? Stanton: He’s—he’s just flipping out. 9-1-1: So, do you know if he has any, like mental history? Stanton: No, huh uh, he just don’t like the cops. He don’t like authorities—at all. 9-1-1: Ok, but do you know why he’s holding them hostage there? Stanton: No 9-1-1: What’s his name? Stanton: SpencerCrumbley. . . . he’s done this numerous times. . . The man needs help. We’re trying to get him to go to a rehab orsomething, but he won’t do it. He refuses any help. 9-1-1: Is he, like, drinking, or is he on drugs, or what’s the situation? Stanton: He’s not drinking. He’s not on drugs. I think that’s the problem: He ain’t got no drugs. 9-1-1: Do you think he’s, like, withdrawing? Stanton: Yeh, probably so. But, I need some assistance 5 . . Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 6 of 18 PageID #: 526 9-1-1: You just stay right there, and we’ll send someone up, ok? Stanton: Alright. Make sure you send back up, now. See [Doc. 44-7]. Afterarriving atthe subject property, defendant Elliott retrieved a rifle from the trunk of the police cruiser “to be prepared.” See [Doc. 44-3]. Defendant Elliott then approached Vazquez to speak with her. See [Dcc. 44-10]. Notably, Vazquez informed defendant Elliott that decedent Crumbley had a handgun inside hisA-frame. [Id.]. Moments later, defendant Elliott saw decedent Cwmbley exit the A-frame, at which time he began yelling at defendants and threatening to engage in a “shootout.” See [Id.; Dcc. 44-6]. Defendants asked decedent Crumbley to stop, calm down, allow himself to be frisked, and talk, but decedent Crumbleydid not comply. See [Docs. 44-1 & 44-10]. On at least two occasions, Cwmbley returned to the A4rame and specifically assured defendants that he was going to retrieve a gun, despite being issued repeated commands and warnings from defendants. See [Id.]. Decedent Cwmbleythen began to move awayfrom his A-frame toward the other house where Vazquez and herchildren were hiding, prompting defendants to attempt to intercept. See [Docs. 46-1 & 46-6]. During such time, decedent Crumbley picked up a shovel, swung it and threw it at defendants, then again retreated to his A-frame. [Id.]. As defendants attempted to tackle decedent Crumbley before entering the A-frame, defendant Cornelius slipped in the snow and fell. See [Doc. 44-10]. Defendant Elliott then reached the porch of the A-frame, drew his firearm, and observed decedent Crumbley turn around and reach both hands into the couch on the porch. See [Doc. 44-3]. It was at this moment that 6 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 7 of 18 PageID #: 527 defendant Elliott shot decedent Crumbley once in the hand and once in the back. See [Id.]. Defendants then attempted to perform first aid on decedent Cwmbley but, ultimately, he died from his injuries. See IDocs. 44-1 & 44-3]. A search of decedent Crumbley and the couch revealed no weapons. [Id.]. PROCEDURAL HISTORY Based on the foregoing, Stanton (as the administratorof decedent Crumbley’s estate) sued defendants in their individual capacities. See [Doc. 4]. More specifically, Stanton sued defendant Elliott for shooting decedent Crumbley and defendant Cornelius for failing to intervene. [Id.]. Count I is brought pursuant to U.S.C. § 1983 against both defendants for excessive force and failure to intervene. Count II is an analogous claim forviolating the West Virginia Constitution. Count Ill is a state common law claim for battery. Count IV is a common law claim for negligence. See [Id.]. STANDARD OF REVIEW Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, togetherwith the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a mailer of law.” The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex Corp. v. Catreft, 477 u.s. 317,322—23(1986). If the moving party meets this burden, the nonmoving party “may not rest upon the mere allegations or denials of its pleading, but must set forth specific facts showing there is a genuine issue for trial.” 7 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 8 of 18 PageID #: 528 Anderson v. Libefly Lobby, Inc., 477 u.s. 242, 248(1986). A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The inquiry performed is the threshold inquiry of determining whetherthere is the need fora trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250. In reviewing the supported underlying facts, all inferences must be viewed in the light mostfavorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US. 574, 587(1986). Additionally, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586. That is, once the movant has met its burden to show absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence demonstrating there is indeed a genuine issue for trial. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323—25; Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted). Although all justifiable inferences are to be drawn in favor of the non-movant, the non-moving party “cannot create a genuine issue of material fact through mere speculation of the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213,214(4th Cir. 1985). Further, “the plain language of Rule 56(c) mandates the entry of summary judgment. . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that partywill bearthe burden of proof at trial.” Celotex Corp., 477 U.S. at 322. 8 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 9 of 18 PageID #: 529 DISCUSSION This Court will discuss the applicable legal standard and law with respect to each individual count. Given its particular import in this case, this Court begins with a recitation concerning the doctrine of qualified immunity. Qualified immunity serves to protect: government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory orconstitutional rights of which a reasonable person would have know.”... The protection ofqualified immunity applies regardless of whether the government official’s error is “a mistake of law, a mistake of fact, ora mistake based on mixed questions of lawand fact.” Pearson v. Callahan, 555 U.S. 223,231(2009) (citations omitted) (citing Groh v. Ramirez, 540 u.s. ssi,567 (2004) (quoting Butz v. Economou, 438 U.S. 478, 507(1978)); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine affords law enforcement officers “‘ample room for mistaken judgements’ by protecting ‘all butthe plainly incompetent orthose who knowingly violate the law.” Hunter v. Bryant, 502 U.s. 224,229(1991) (quoting Malley v. Briggs, 475 U.S. 335,341(1966)). Qualified immunity insulates law enforcement officers from “bad guesses in gray areas,” ensuring that they are only liable “fortransgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). “This accommodation for reasonable error exists because ‘officials should not err always on the side of caution’ because theyfear being sued.” Hunter, 502 U.S. at 229. “Where there is a legitimate question asto whether the officer’s conduct would objectively violate the plaintiffs right, qualified immunity ‘gives police officers the necessary latitude to pursue their [duties] without having to anticipate, on the pain of civil 9 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 10 of 18 PageID #: 530 liability, future refinements or clarifications of constitutional law.” Slaftery v. Rizzo, 939 F.2d 213,216(4th Cir. 1991). “A police officershould prevail on an assertion of qualified immunity if a reasonable officer possessing the same information could have believed that his conduct was lawful.” Id. “This inquiry is a pure question of law and ‘hence always capable of decision at the summary judgment state.” DiMegIio v. Haines, 45 F.3d 790, 794(4th Cir 1995) (citations omitted). I. DEFENDANT ELLIOTT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON COUNT I. Count lot plaintiffs Amended Complaint alleges a violation of 42 U.S.C. § 1983, which provides that: Every person who, undercolorof any statute, ordinance, regulation, custom or usage, of any State orTerritoryorthe District of Columbia, subjects, orcauses 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 See [Doc. 4]. Additionally, plaintiff alleges violations of the Fourth, Fifth, Eight, and Fourteenth Amendments. [Id.]. In response to this count, defendants argue that they are protected bythe aforementioned doctrine of qualified immunity. See [Doc. 44]. As identified by defendants, plaintiff does not state with any particulahtywhat sub-provisions of the foregoing amendments were purportedly violated bydefendants. Because the Eighth Amendment proscribes cruel and unusual punishment, it is clearthat decedent Crumbley’s EightAmendment rights were 10 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 11 of 18 PageID #: 531 not violated here because he was not incarcerated at the time of the incident giving rise to this matter. See Graham v. Connor, 490 u.s. 386, 392 n. 6(1989). To the extent plaintiff cites the Fourteenth Amendment for anything other than a means of incorporating the Fourth Amendment against state actions, Count l’s Fourteenth Amendment basis lacks merit as a matter of law as well. See Spry v. West Virginia, 2017 WL 440733, at *6 (S.D. W.Va. Feb 1,2017). Instead, it appears that Count I states a claim for excessive force under the Fourth Amendment. The Fourth Amendment does not proscribe all force, only “unreasonable” force. Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (“Claims that law enforcement officers used excessive force when making an arrest ‘should be analyzed under the Fourth Amendment and its “reasonableness” standard.”) (citation omitted). “The standard of review 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.” Id. (citation omitted). “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. (citations omitted). “The court’s focus should be ... on the fact that officers on the beat are not often afforded the luxury of armchair reflection.” Id. (citations omitted). In analyzing Fourth Amendment claims, ‘[w]hat matters is whetherthe officers acted reasonably upon there ports available to them and whether they undertook an objectively reasonable investigation with respect to that information in light ofthe exigent circumstances theyfaced.” Sigman v. Town of Chapel Hill, 161 F.3d 782, 787 (4th Cir. 1998) (quotations and citations omitted). 11 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 12 of 18 PageID #: 532 “[I]n determining objective reasonableness, the court must considerwhat a ‘reasonable officer on the scene’ would have done, taking into account such factors as ‘the severity of the crime at issue, whetherthe suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest byflight.” Id. at 786—87 (citations omitted). Importantly, “[t]his evaluation is guided by the pragmatic considerations of the moment and not by those that can be hypothesized from an armchair.” Id. “In determining the constitutionality of the use ofdeadlyforce, a court must decide ‘whether the totality of the circumstances justified’ the use of deadly force in the particular circumstances of the case before it. But the use of deadly force is justified only in circumstances where it ‘it is necessary to preventthe escape [of the suspect] and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Mflstead v. Kibler, 243 F.3d 157, 162—63 (4th Cir. 2001) (citations omitted). Based on the foregoing body of law, defendants argue thatthey acted reasonably given the circumstances and are thus entitled to qualified immunity. See [Doc. 44]. In response to this argument, plaintiff asserts several arguments which this Courtwill discuss in turn. First, plaintiff suggests that the continued vitality of the doctrine of qualified immunity has been questioned in various Courts, and requests this Court to abandon the requirement that liability under 1983 requires a showing that a clearly established legal standard was violated. See [Doc. 48]. Citing Tennessee v. Garner, 471 U.S. 1, 11—12(1985), plaintiff also argues that defendants’ actions constituted a violation of a clearly established constitutional standard 12 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 13 of 18 PageID #: 533 governing the use of deadly force. See [Doc. 48]. Additionally, plaintiff contends that there is a genuine issue of material fact as to whether defendant Elliot acted reasonably. [Id.]. Initially, this Court is not persuaded by plaintiff’s argumentthat it should deviate from clearly established precedent recognizing the viability of the doctrine of sovereign immunity. Absent some novel, controlling precedent from the United States Court of Appeals for the Fourth Circuit or the Supreme Court of the United States, this Court will not sway from the doctrine’s applicability based on plaintiffs public policy argument. This Court is similarly not persuaded by plaintiffs argument that defendants’ actions violated one of decedent Crumbley’s clearly established constitutional rights, nor does this Court find that there is a genuine issue of material fact in that regard based on a review of the totality of the record. Much of plaintiffs argument in this respect centers on the factthat a weapon was never actuallyfound on decedent Cwmbley or in the couch. However, the lack of a weapon is of little moment with respect to reasonableness in these circumstances. In Sigman v. Town of Chapel Hill, 161 F.3d 782, 788 (4th Cir. 1998), the Fourth Circuit noted: Notwithstanding the possibility of a dispute about whether a knife was actually in Sigman’s hand at the moment of the shooting, Officer Riddle, and the other officers present, acted on the perception that Sigman had a knife in his hand. Where an officer is faced with a split-second decision in the context of a volatile atmosphere about howto restrain a suspect who is dangerous, who has been recently—and potentially still is—armed and who is coming towards the officer 13 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 14 of 18 PageID #: 534 despite officers’ commands to halt, we conclude that the officer’s decision to fire is not unreasonable. Id. This case is factually analagous to Sigman, and it is unmistakably clearfrom the record that at the time of the shooting, defendants had been told that (1) decedent Crumbley had a gun and was upset; (2) decedent Crumbley was experiencing a ‘come-down” from methamphetamine; and (3) decedent Crumbley had prevented his family from leaving the property. Additionally, decedent Crumbley had also attacked defendants with a shovel and repeatedly threatened to shoot them. Given the totality of these circumstances, any objectively reasonable officercould easily have believed that decedent Crumbley presented an immediate threat justifying the use of deadlyforce. As such, this Courtfinds that defendant Elliott could have reasonably believed deadly force was required and is thus entitled to qualified immunity. As such, Count I of plaintiffs Amended Complaint, insofaras it pertains to defendant Elliott, must be dismissed as a matter of law. II. DEFENDANT CORNELIUS IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON COUNT I. Plaintiff argues that defendant Cornelius failed to intervene to prevent defendant Elliott from shooting decedent Crumbley. See [Doc. 4]. In orderto prevail on such a claim, plaintiff must demonstrate that defendant Cornelius: (1) knew that defendant Elliott was violating decedent Cwmbley’s constitutional rights, (2) had a reasonable opportunity to prevent the harm, and (3) chose not to act. Randallv. Prince George’s Cty., Md., 302 F.3d 188,204 (4th Cir. 2002). 14 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 15 of 18 PageID #: 535 Defendants assert a variety of arguments in support of their argument that Count I should be dismissed insofar as it pertains to defendant Cornelius. Namely, defendants assert that defendant Cornelius could not have known that defendant Elliottwas violating decedent Crumbley’s constitutional rights.2 Plaintiff argues in opposition that a genuine issue of material fact exists as to whether defendant Cornelius failed to act reasonably in failing to prevent defendant Elliott from shooting decedent Cwmbley. See [Doc. 48]. In supportthereof, plaintiff correctly notes that law enforcement officers have a dutyto intervene when they see that a fellow officer is using, orabout to use, excessive force. See Randall, 302 F.3d at 204. However, as articulated above, this Court has found that defendant Elliott’s actions were not unreasonable or excessive given the circumstances and, as such, Count I of plaintiffs Amended Complaint, insofaras it pertains to defendant Cornelius, must be dismissed as a matter of law. Ill. DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW ON COUNT II. Count II sets forth a West Virginia state-law analog to Count I. However, plaintiff concedes in responsive briefing [Doc. 48] that subsequent to the filing of the Amended Complaint, the Supreme Court of Appeals of West Virginia issued an opinion in which it refused to recognize a private cause of action for monetary damages underArticle III, Section 6 of the West Virginia Constitution. See Syl. Pt. 3, Fields v. Mellinger, 2020 WL 7223433 2Because this Court finds this argument dispositive, it dispenses with addressing defendants’ remaining arguments concerning this count. 15 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 16 of 18 PageID #: 536 (W.Va. 2020). As such, Count II of plaintiff’s Amended Complaint must be dismissed as a matter of law with respect to both defendants. IV. DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW ON COUNTS Ill AND IV. In Count Ill, plaintiff alleges a state common law claim for battery. [Doc. 4]. Count IV is a common law claim for negligence. See [Id.]. Defendants assert that both these counts fail to state a claim forwhich any relief could be granted. See [Doc. 44]. In support thereof, defendants relyon W.Va. Code § 55-7-8a(a), which provides, in part, that “[i]n addition to the causes of action which survive at common law, causes of action for... injuries to the person and not resulting in death . . . also shall survive; and such actions may be brought notwithstanding the death of the person entitled to recoverorthe death of the person liable.” See W.Va. Code § 55-7-8a(a). Based on this statutory language, defendants claim that it is well-settled that causes of action for injuries that do result in death do not survive. See [Doc. 44]. With this standard in mind, defendants assert that the alleged battery and negligence caused decedent Cwmbley’s death and therefore, even if those claims had underlying merit, would not survive. (Id.]; see also Spryv. West Virginia, 2017 WL 1483370, at 9 (S.D. W.Va. Apr.24, 2017) (“The battery claim brought by [Adam Myers’s] estate cannot proceed because West Virginia claims for battery do not survive death.”); Hoover v. Trent, 2008 WL 2992987, at *5 (N.D. W.Va. Aug. 1, 2008) (Keeley, J.) (“Hoover’s state claims for assault and battery [and] negligence. . . abate under state law. As already noted, under West Virginia’s survival statute only injuries not resulting in death survive. W.Va. Code 16 § 55-7-8a. Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 17 of 18 PageID #: 537 Because Hoover’s complaint states that her claims resulted in Tomasic’s death, they abate ). Plaintiff argues against dismissal of Counts Ill and IV by asserting that these claims were actually brought pursuantto West Virginia’s Wrongful Death Act and thus survive. See [Doe. 49]. But this is not what plaintiff has pled with respect to these counts. Plaintiffs only mention of the Wrongful Death Act in the Amended Complaint is located at ¶ 12, and states that: “[t]he beneficiaries of the Estate of SpencerLee Crumbley, his son, Jeffery L. Stanton, his daughter, Ashley Crumbley Vasquez, and such other as may be within the purview of the West Virginia Wrongful Death Act, have suffered losses and are entitled to recover all damages permitted by law within the applicable insurance coverage as a result of the wrongful death of Mr. Cwmbley [ld.J. This language is insufficient to properly plead a cognizable cause of action under the Wrongful Death Act because plaintiff has instead plead common law claims for battery and negligence, which, as identified by defendants, do not survive as causes of action in instances involving death. As such, Counts III and IV must be dismissed as a matterof lawwith respect to both defendants. CONCLUSION For the reasons contained herein, Defendants’ Motion for Summary Judgment [Doc. 43) is GRANTED, and this matter is DISMISSED WITH PREJUDICE. The Clerk is 17 Case 2:19-cv-00049-JPB Document 51 Filed 01/21/21 Page 18 of 18 PageID #: 538 directed to enterjudgment in favordefendants and STRIKE this matterfrom the active docket of the Court. It is so ORDERED. The Clerk is directed to transmit copies of this Order to all counsel of record herein. DATED: januaryZ), 2021. JOHN TON BAILEY UNITED STATES DISTRICT JUDGE 18
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