Bradberry

CHARLESTON - Along with his cash, a New Jersey man is fighting to get a civil suit he filed against police for improperly seizing it returned to state court.

Two days before Assistant Kanawha County Prosecutor Reagan E. Whitmyer filed a petition in Kanawha Circuit Court to have $7,878 in cash police seized from John W. Bradberry and Shelli Haddad from the Microtel Inn on May 11, the city of South Charleston on Aug. 4 had a subsequent lawsuit Bradberry filed in circuit court removed to U.S. District Court. In their notice of removal, South Charleston's attorneys Jason Wandling and John F. McCuskey, with the Charleston law firm of Shuman, McCuskey and Slicer, said federal court was the proper venue since Bradberry raised constitutional claims of civil rights violations.

"The Plaintiff's Complaint does not limit his action to claims based on West Virginia law, and, instead, appears to advance claims based upon civil rights guaranteed by the Constitution of the United States of America.," Wandling and McCuskey said.

Also, Wandling and McCuskey argued the case should be dismissed on Bradberry's failure to state a claim on relief can be granted, and pursuant to the U.S. Supreme Court's 1989 opinion in Will v. Michigan. In Will, the Court stated that suits alleging civil rights violations had to be filed against individuals since "a suit against a state official in his or her official capacity is a suit against the official's office" and "neither a State nor its officials acting in their official capacities as 'persons' under Section 1983."

In their motion, Wandling and McCuskey make reference to both the city of South Charleston, and the West Virginia Division of Corrections.

In addition to expressing bewilderment as to how WVDOC got involved in the case, Bradberry's attorney Michael T. Clifford said the purpose of the suit was not to raise any civil rights claims. Instead, Bradberry is seeking damages caused him by the South Charleston police seizing the cash he had in possession, claiming it was used to purchase drugs but failing to charge him with any crime.

Any claim of civil rights violations are incidental, Clifford said in the response he filed three days later.

"What the agents, servants, and/or employees of the City of South Charleston was to commit a grand larceny of the plaintiff's property for which the City is vicariously liable," Clifford said. "They burst in his hotel room, searched him, and confiscated his cash without probable cause."

"No search warrant was obtained, no summons had been issued, and no arrest warrant was obtained either before or after the confiscation," Clifford added. "Therefore, inasmuch as no probable cause existed, the confiscation of the monies was little more than common theft."

In a response dated Aug 20 to Clifford's motion for remand, Wandling notes that any references to WVDOC was a mistake. Also, he argues the case should stay in federal court on jurisdictional grounds.

"As alleged in his Complaint, Mr. Bradberry is a citizen of New Jersey, not West Virginia. South Charleston is a West Virginia municipality," Wandling said.

"Though the Plaintiff does not make any allegations regarding the entire value of his claim, it is possible his claims exceeds $75,000, an amount sufficient to provide this Court with diversity jurisdiction over this matter," he added.

Furthermore, the city's claim for dismissal is bolstered by the fact that state law protects municipalities from the "intentional misconduct of its employees."

On Sept. 1, Clifford filed a supplemental motion to remand the case based on Whitmyer's forfeiture petition to retain the $7,110 police seized from Bradberry.

"Plaintiff requests the Court take judicial notice of such proceeding and avers that the filing of the same presents the rather unusual circumstance that, absent remand, plaintiff prosecutes his claim in federal court and the state prosecutes its claim in state court," Clifford said.

Bradberry's civil suit is assigned to Judge David A. Faber.

U.S. District Court for the Southern District of West Virginia, Case No. 09-cv-00894

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