WILLIAM IANNACONE v. J. D. ELLISON, et al.
CIVIL ACTION NO. 2:24-cv-00245
IN THE UNITED
March 25, 2025
THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE
Document 37, PageID #: 163
MEMORANDUM OPINION AND ORDER
Pending before the Court is defendants Nicholas County Commission (“the Commission“)
I. BACKGROUND
As explained in his complaint, Plaintiff was driving his car down a stretch of U.S. Route 19 on May 13, 2022.1 (ECF No. 1 at ¶ 4.) While traveling through a portion of the route crossing Nicholas County, West Virginia, Plaintiff noticed a parked law enforcement officer running radar to catch speeding motorists. (Id.) Plaintiff decided to send a warning to oncoming motorists that they were about to cross paths with the officer. (Id. at ¶ 5.) To send that message, Plaintiff began flashing his headlights at the passing cars. (Id.) Plaintiff‘s message got through to the oncoming motorists. (Id. at ¶ 5.) Unfortunately for Plaintiff, Deputy Ellison was among the recipients of that message. (Id. at ¶ 6.)
Ellison, a deputy of the Nicholas County Sheriff‘s Department, turned his vehicle around and initiated a traffic stop. (Id.) Deputy Ellison explained to Plaintiff that “he had pulled him over for flashing his headlights to warn other drivers of the officer running radar.” (Id. at ¶ 7.) Plaintiff then explained to Deputy Ellison that “he was unaware that flashing his headlights as a warning to other drivers was illegal.” (Id. at ¶ 8.) Plaintiff also stated that he believed he was “engaging in protected speech” by using his headlights in this way. (Id.)
Evidently, Deputy Ellison was unmoved by Plaintiff‘s constitutional appeal. He proceeded to write out two citations to Plaintiff: one for violating the “special restrictions on lamps” statute and another for “an unsigned registration card.” (Id. at ¶ 9.) Before he gave the citations to Plaintiff, Deputy Ellison proceeded to extend the traffic stop. (Id. at ¶ 10.) Deputy Ellison began explaining to Plaintiff that the maximum penalties for an unsigned registration card included “six months in jail and that [Deputy Ellison] could arrest him instead of giving him a citation.” (Id.) Plaintiff, apparently finding this suggestion absurd, began laughing. (Id.) According to Plaintiff, his “laughing infuriated Defendant Ellison who immediately retaliated by ordering him to get out of the vehicle whereupon he placed him in handcuffs and led him back to the cruiser.” (Id. at ¶ 11.) The pair engaged in an exchange, where Deputy Ellison took exception to being called “brother” by saying “I‘m not your brother and I‘ll [n]ever be your brother.” (Id.) Plaintiff was then “forced to stand handcuffed” for several minutes on Route 19 before “[Deputy] Ellison finally
Plaintiff filed this action on May 13, 2024 against both Deputy Ellison and the Commission. (See generally id.) The complaint alleges three causes of action under
II. LEGAL STANDARD
In general, a pleading must include “a short and plain statement of the claim[s] showing that the pleader is entitled to relief.”
III. DISCUSSION
Defendants seek dismissal of all three counts alleged by Plaintiff. The Court will initially address the Fourth Amendment claim (Count II) followed by the First Amendment claim (Count I) and finally the Monell claim (Count III).
A. Count II: Fourth Amendment Claims
1. The Initial Traffic Stop
The Fourth Amendment protects “[t]he right of the people to be secure . . . against unreasonable searches and seizures.”
Defendants argue that Deputy Ellison had reasonable suspicion that Plaintiff violated the restriction on special lamps. (ECF No. 6 at 6.) The Court has serious doubts that a reasonable officer could interpret the statute the way Defendants propose.2 That inquiry, however, is unnecessary at this juncture. Plaintiff contends that Deputy Ellison stated he initiated the stop because Plaintiff was signaling other drivers of the presence of another officer. (See ECF No. 1 at 26.) There does not appear to be a law in West Virginia that criminalizes such behavior.
Taking the facts as the Court must in the light most favorable to Plaintiff, Deputy Ellison allegedly initiated the stop without reasonable suspicion. Such a stop would violate the Fourth Amendment. Accordingly, Plaintiff has sufficiently pled that the initial seizure for flashing his headlamps was a violation of the Fourth Amendment.
2. The Seizure After Laughing
The second alleged seizure is a closer call. Both parties agree that, at the time of the encounter, West Virginia law made it a misdemeanor for driving a vehicle without a signed registration card. (See ECF No. 6 at 9 (citing
Fourth Amendment rights are not violated when an officer arrests a person for even a minor traffic offense when there is probable cause that the infraction
It is true that Deputy Ellison could have arrested Plaintiff for the unsigned registration card and not run afoul of the Fourth Amendment. However, Plaintiff‘s argument is that such actions were unreasonable given the totality of the circumstances. Plaintiff pleads that, even assuming Deputy Ellison had probable cause to arrest him on the unsigned registration card, his acts unnecessarily prolonged the encounter. By failing to hand over the already written citations and prolonging the encounter, Deputy Ellison arguably made the stop longer than necessary to effectuate its purpose. Further, Plaintiff contends—and Defendants do not dispute—that no other reasonable suspicion was observed by Deputy Ellison to justify prolonging the stop. True, the “mission” was not complete until Deputy Ellison handed over the citations. Yet if every officer could constitutionally prolong a stop by refusing to hand over citations, then Royer would mean very little for the protection of Fourth Amendment rights. Deputy Ellison may come back with better facts post-discovery that demonstrate his actions were reasonable under the circumstances. For purposes of the motion to dismiss, however, Plaintiff has sufficiently pled enough facts to overcome Defendants’ motion.
Defendants also claim that Deputy Ellison was “constitutionally permi[tted] to order Plaintiff out of the vehicle during the traffic stop.” (See ECF No. 6 at 9 (citing Michigan v. Long, 463 U.S. 1032, 1047 (1983)).) While it is true that an officer may order a suspect out of the car during a valid Terry stop, such order is only valid if an officer “possess[es] an articulable and objectively reasonable belief that the suspect is potentially dangerous.” Long, 463 U.S. at 1051. Defendants cite nothing to suggest that, between initiating the traffic stop and Plaintiff‘s laughter, Ellison noticed anything that would suggest that the encounter became dangerous to him. Without such justification, the act of ordering Plaintiff out of the car is arguably unjustified. For these reasons, a motion to dismiss at this stage would be improper.
For the last of the Fourth Amendment claims, Plaintiff plausibly pleads he was unlawfully searched incident to being ordered out of the vehicle. (See ECF No. 1 at ¶ 26.) Defendants argue Deputy Ellison was permitted to search Plaintiff in the interest of officer safety. (See ECF No. 6 at 7.) “The sole justification” of a protective search of a suspect “is the protection of the police officer and bystanders.” Terry v. Ohio, 392 U.S. 1, 29 (1968). Thus, when an officer “makes a lawful traffic stop and . . . has a reasonable suspicion that one of the automobile‘s occupants is armed,” he may frisk the stopped motorists. United States v. Robinson, 846 F.3d 694, 696 (4th Cir. 2017) (citation omitted). Again, there is nothing to suggest at this time that Deputy Ellison became aware of an evolving threat to his safety. Thus, even assuming this was a frisk of Plaintiff, it was arguably unjustified based on the facts alleged. Defendants further contend that Deputy Ellison‘s conduct can be justified as a search of Plaintiff‘s person incident to arrest. (See ECF No. 6 at 11 (citing Michigan v. DeFillippo, 443 U.S. 31, 35 (1979)).) It is true that an officer may search an arrestee incident to a lawful arrest. See Chimel v. California, 395 U.S. 752, 762-63 (1969). Of course, Plaintiff plausibly asserts that the arrest itself was unconstitutional. A search incident to an otherwise unconstitutional seizure is, itself, unconstitutional. Cf. Kyllo v. United States, 533 U.S. 27, 32 (2001). Thus, Plaintiff plausibly states claims for unconstitutional searches and seizures. Accordingly, the Court DENIES Defendants’ motion to dismiss Count II of the complaint.
B. Count I: First Amendment Retaliation Claims
Plaintiff further identifies two possible instances of unconstitutional retaliation by Deputy Ellison. The first claim arises out of Ellison‘s decision to initiate a traffic stop because Plaintiff flashed his headlights. (See ECF No. 1 at ¶ 15.) The second claim stems from Deputy Ellison‘s decision to order Plaintiff out of the car because he laughed at him. (Id.) Plaintiff alleges that neither decision was supported by probable cause or reasonable suspicion. (Id. at ¶ 27.)
“The First Amendment right of free speech includes not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). To make out a First Amendment retaliation claim, a plaintiff must allege (1) that he engaged in activity protected by the First Amendment, (2) that a defendant took action to adversely affect his First Amendment rights, and (3) that a causal relationship between the protected activity and a defendant‘s conduct can be established. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005). The Court will analyze each claim under each prong in turn.
1. The Initial Stop
i. Prong 1: Activity Protected by the First Amendment
The first prong requires Plaintiff to allege he engaged in activity protected by the First Amendment. The First Amendment does not exclusively protect the spoken or written word. Conduct that
There is little doubt that the Spence test can be satisfied here at the motion to dismiss stage. According to the complaint, Plaintiff flashed his headlights “to alert motorists of” the officer running radar. (ECF No. 1 at ¶¶ 4-5.) Upon seeing this display, Deputy Ellison “pulled [Plaintiff] over for flashing his headlights to warn other drivers of the officer running radar.” (Id. at ¶¶ 6-7.) Thus, Plaintiff intended to convey the very message that Deputy Ellison received and pulled him over for.
Defendants counter that the “law is far from settled about whether drivers have a First Amendment right to flash their headlights to convey a warning to oncoming vehicles.” (ECF No. 6 at 5 (citing Obriecht v. Splinter, 2019 WL 1779226, at *6 (W.D. Wis. Apr. 23, 2019)).) Insofar as that argument goes to Plaintiff‘s First Amendment rights, that is a nonstarter. “[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987). That has included, as the Second Circuit recently found, non-criminal warnings that police were present nearby. See Friend v. Gasparino, 61 F.4th 77, 91 (2d Cir. 2023).
In Obriecht, the Court concluded the law was “far from settled” by citing a law professor‘s article claiming that “crime facilitation” speech is categorically unprotected speech. Obriecht, 2019 WL 1779226 at *5 (citing Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1128 (2005)). It is true that some speech, such as incitement or fighting words, have been held to be categorically outside of the First Amendment. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). However, the Supreme Court has not recognized flashing headlights in this context as categorically outside of the First Amendment. At any rate, Defendants have not explained at all why Plaintiff‘s actions were categorically unprotected, only that the Magistrate Judge in the Western District of Wisconsin found that the “law [was] far from settled.” (ECF No. 6 at 5 (citing Obriecht, 2019 WL 1779226 at *6).) Given that Plaintiff contends that Deputy Ellison knew and understood the message he was attempting to send, the Court finds no reason to conclude that flashing one‘s headlights do not constitute protected speech.
ii. Prong 2: Defendant Took Adverse Action to Affect Plaintiff‘s First Amendment Rights
The next prong requires Plaintiff to plead that Deputy Ellison took adverse action to affect the exercise of his First Amendment rights. A retaliation claim is sufficiently made out if a defendant‘s “actions may tend to chill individuals’ exercise of constitutional rights.” ACLU of Md., Inc v. Wicomico County, 999 F.2d 780, 785 (4th Cir. 1993). “Not all retaliatory conduct tends to chill First Amendment activity, however, . . . and a plaintiff seeking to recover for retaliation must show that the defendant‘s conduct
Here, Plaintiff sufficiently pleads that a person of ordinary firmness would be deterred from exercising their potential First Amendment rights. Initiating a traffic stop because of protected speech and without probable cause would certainly deter a person from engaging in that protected speech. Thus, Plaintiff‘s allegations are enough to overcome a motion to dismiss.
iii. Prong 3: A Causal Connection Between the Protected Speech and Defendant‘s Conduct
The third prong of a retaliation claim requires Plaintiff to eventually prove that Deputy Ellison knew of Plaintiff‘s speech and retaliated against him because of it. See Constantine, 411 F.3d at 501. The alleged actions of Deputy Ellison must be “a ‘but-for’ cause,” such that “the adverse action against the plaintiff would not have been taken absent retaliatory motive.” Nieves v. Bartlett, 587 U.S. 391, 399 (2019). To meet the causal connection prong of a First Amendment retaliation claim when an arrest is involved, the plaintiff must “plead and prove the absence of probable cause.” Id. at 402. Without probable cause, a “retaliatory arrest” claim is made if the plaintiff shows that “retaliation was a substantial or motivating factor behind the [arrest]” and the defendant cannot show “that the [arrest] would have been initiated without respect to retaliation.” Id. at 404 (citation omitted). Although the existence of probable cause generally defeats a retaliatory arrest claim, the plaintiff can still meet their burden in a situation “where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” Id. at 406. A plaintiff “must produce evidence to prove that his arrest occurred in such circumstances.” Gonzalez v. Trevino, 602 U.S. 653, 658 (2024) (per curiam). However, a plaintiff need not demonstrate specific types of evidence, so long as the evidence is objective. See id.
Although Plaintiff was seized during the traffic stop, he was not necessarily “arrested” at that time. The Court has not found a case where the Fourth Circuit has addressed the proper standard for a “retaliatory detention” claim. However, the circuit courts that have addressed this issue have simply substituted the absence of “probable cause” standard with the absence of “reasonable suspicion” for retaliatory detention claims. See, e.g., Waters v. Madson, 921 F.3d 725, 742 (8th Cir. 2019) (“Therefore, to show that exercising his constitutional rights was the ‘but-for’ cause of a temporary detention, a plaintiff must show that the defendant officers lacked reasonable suspicion or arguable reasonable suspicion.“) (citing Allen v. Cisneros, 815 F.3d 239, 245-46 (5th Cir. 2016)).
Under this standard, Plaintiff plausibly pleads a lack of reasonable suspicion. As the Court has already found above, Deputy Ellison likely did not have reasonable suspicion to believe that Plaintiff violated the “special lamps” statute in the first place. Regardless, Plaintiff has plausibly pled the absence of reasonable suspicion. At this stage, the Court must take the facts alleged in Plaintiff‘s favor and, if they lead to an inference of causation,
2. The Seizure for Laughing
Next, the Court will consider Ellison‘s choice to detain Plaintiff because he laughed at him. The same standard for the First Amendment retaliation claim applies from above with one exception. The Court finds that the standard here is for a retaliatory arrest claim as opposed to a retaliatory detention. In order to justify the search of Plaintiff‘s person, Defendants concede that placing Plaintiff in handcuffs was a “limited search incident to arrest.” (ECF No. 9 at 11.) Thus, for Plaintiff to satisfy a causal relationship between the protected activity and Ellison‘s conduct he must “plead and prove the absence of probable cause for the arrest.” See Nieves, 587 U.S. at 402.
The first two prongs of a First amendment retaliation claim are easily satisfied. By laughing at the conclusion of the traffic stop, Plaintiff engaged in protected speech that was critical of Deputy Ellison. See City of Houston, 482 U.S. at 461. As to the second prong, “the threat of an arrest is ‘likely [to] deter a person of ordinary firmness from the exercise of First Amendment rights.‘” Nazario v. Gutierrez, 103 F.4th 213, 237 (4th Cir. 2024) (citing Constantine, 411 F.3d at 500). Actually arresting a person for their protected speech would certainly chill further exercise of that speech. Thus, Plaintiff sufficiently pleads facts to meet the second prong.
Defendants essentially counter that the actions of Deputy Ellison were supported by probable cause to make the arrest. (See ECF No. 6 at 6-8.) As the Court has already found, however, Plaintiff plausibly alleges that the act of ordering him out of the car and placing him in handcuffs was not consistent with the Fourth Amendment. Accordingly, Plaintiff plausible alleges the absence of probable cause to support Deputy Ellison‘s actions. Plaintiff‘s claim that it was the quick succession of laughter followed by arrest demonstrates causation. The Court can infer such causation at this stage and finds that the motion to dismiss Count I of the complaint should be DENIED.
3. Qualified Immunity
As the ultimate attack on the complaint, Defendants contend that Deputy Ellison is entitled to qualified immunity for his actions before and after the traffic stop. (See ECF No. 6 at 6-8.) Officers are entitled to qualified immunity “unless [his] conduct violated a clearly established constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). At the motion to dismiss stage, a court must “[f]irst decide whether the facts that a plaintiff has alleged make out a violation of a constitutional right” and “[s]econd, . . . the court must decide whether the right at issue was ‘clearly established’ at the time of defendant‘s alleged misconduct.” Id. For the following reasons, the Court finds qualified immunity is inapplicable here.
It is well settled that “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). Despite this well settled principle, Defendants assert that Deputy Ellison is entitled to qualified immunity because it is “debatable and thus not clearly established” that “flashing one‘s headlights to warn other motorists” is protected speech. (ECF No. 6 at 5.) That assertion, however, misses the point. Every reasonable officer in the United States is aware that retaliation for First Amendment speech is a violation of a person‘s constitutional rights. Where, as here, the allegation is that a defendant knew of the speech and reacted to it accordingly, qualified immunity cannot serve as a proper shield. If, just as Plaintiff alleges, Deputy Ellison knew of Plaintiff‘s speech, had no probable cause to initiate the stop, and stopped Plaintiff anyway because of that speech, then the actions make out a classic First Amendment retaliation claim.
The Defendants’ reliance on Obriecht is unpersuasive. In that case, state troopers in Wisconsin were deploying a department wide policy which interpreted their state law to prohibit flashing headlights to warn of a speed trap. Obriecht, 2019 WL 1779226 at *6. The Magistrate Judge determined that, because the question of whether that type of speech was protected was not “beyond debate” at the time of the arrest, the officer-defendants were entitled to qualified immunity. Id. at *6 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Respectfully, the Court disagrees with that Magistrate Judge‘s assessment. The right at issue here is of one‘s First Amendment right to engage in protected speech without the fear of official retaliation, not to flash headlights. Just because speech is understood, but stated in a novel medium, does not mean the protection to state one‘s beliefs without fear of retaliation is not “clearly established.” Because Plaintiff pleads the absence of reasonable suspicion, and that the actions were motivated my otherwise protected speech, he has plausibly alleged that Deputy Ellison violated clearly established rights. Therefore, qualified immunity is inapplicable with regards to the initial stop.
Similarly, qualified immunity is not applicable to the decision to order Plaintiff out of the car and handcuff him. Defendants argue that “there is no Supreme Court decision holding that an officer acts unlawfully if he decides to arrest an individual upon probable cause . . . but neglects to consider whether that such conduct might be protected by the First Amendment.” (ECF No. 6 at 7.) Maybe so, but it is clearly established that an officer may not arrest either absent probable cause or with sufficiently provable retaliatory animus. Cf. Nieves, 587 U.S. at 402, 404. Plaintiff sufficiently pled as much in his complaint and, therefore, qualified immunity should be denied.
C. Count III: The Commission‘s Liability for Deputy Ellison‘s Actions
Plaintiff has sufficiently established a claim to overcome Defendants’ motion to dismiss on Counts I and II. However, Plaintiff has failed to plead enough facts as to Count III of his complaint. Count III alleges that the Commission is liable for the actions of Deputy Ellison by claiming that the Commission failed to stop unconstitutional behavior through its “policies, training, and practices.” (ECF No. 1 at ¶¶ 34-38.) Aside from conclusory statements about the Commission‘s shortcomings, Plaintiff does not allege specific facts to allow the Court to draw any inference regarding any policy, training, or practice.
A municipality is not liable under § 1983 for the actions of its employees “on a respondent superior theory.” Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Instead, a plaintiff must “adequately plead and prove the existence of an official policy or custom that is fairly attributable to the municipality and that proximately caused the deprivation of their rights.” Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994). A “threadbare recital of the elements of a cause of action, supported by mere conclusory statements” is insufficient to plead a proper Monell claim. Cook v. Howard, 484 F. App‘x 805, 811 (4th Cir. 2012) (cleaned up).
Although Plaintiff plausibly alleges constitutional violations, he does not sufficiently connect those violations to the Commission. Failing to state any facts beyond the conclusory allegations in the complaint is not enough to meet the pleading requirements of Rule 12(b)(6). The Court agrees with Defendants’ argument that the rights violated here were not alleged to be “pursuant to an unconstitutional policy or custom fairly attributable to the [Commission].” (ECF No. 6 at 11.) The complaint is devoid of any allegation of an official policy, failure to train, or custom of the Commission that led to the alleged deprivation in Plaintiff‘s complaint. See Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003). Nowhere in the complaint does Plaintiff state what this policy is, who had rulemaking authority that adopted the official policy or custom, or how the failure to train Deputy Ellison was a “deliberate or conscious” choice. See Roberts v. City of Hagerstown, 2024 WL 640029, at *9 (D. Md. Feb. 14, 2024) (stating the test to prove a failure to train claim).
Plaintiff contends that his bare allegations are sufficient, and that the “allegations asserted in the Complaint[] are more properly addressed at the summary judgment stage.” (ECF No. 9 at 15.) However, the Fourth Circuit has cautioned against allowing such conclusory allegations to subject a municipality to a discovery process which would amount to little more than a fishing expedition. Jordan by Jordan, 15 F.3d at 340 (” . . . [D]istrict courts [should not] tolerate what will be for plaintiffs the temptation to seek unlimited discovery from municipal defendants in the mere hope of obtaining tidbits of information from which they can cobble together support for what were conclusory allegations of an impermissible municipal policy.“). Plaintiff‘s conclusory allegations fail to meet the pleading standards of Rule 12(b)(6). Accordingly, the Court must GRANT Defendants’ motion to dismiss Count III of the complaint.
IV. CONCLUSION
Plaintiff has plead enough facts to survive a motion to dismiss on his First and Fourth Amendment claims. However, Plaintiff has not pled sufficient, non-conclusory facts to plausibly allege a policy or custom to impart liability to the Commission. Accordingly, the Court GRANTS the motion to dismiss (ECF No. 5) as to Count III of the complaint and the Commission, but DENIES the motion with respect to Count I, Count II, and Deputy Ellison. (ECF No. 5.)
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.
ENTER: March 25, 2025
THOMAS E. JOHNSTON
UNITED STATES DISTRICT JUDGE