CHARLESTON – U.S. Congress candidate and state Senator Richard Ojeda has filed a motion to dismiss the federal lawsuit against him claiming he violated a man’s civil rights.
Ojeda filed his motion June 4 in U.S. District Court in the case filed against him April 30 by David Woolsey of Logan.
Woolsey accused Ojeda, a Democrat, of violating his civil rights. The complaint said Ojeda used his influence and power to hinder Woolsey’s right to free speech and to have him fired from McCormick’s Furniture after the video was posted on social media.
In his motion, Ojeda says Woolsey does not meet the standard necessary to state a claim for constitutional violations.
“Plaintiff failed to state a claim upon which relief can be granted,” Ojeda’s motion states. “Because the alleged retaliation is in the nature of speech … the plaintiff must allege facts sufficient to prove defendant affirmatively made threats, used coercion or intimidation that intimated that punishment, sanction or adverse regulatory action by the government will imminently follow.
“Moreover, for the plaintiff’s complaint to survive it also must allege facts that will allow the court to draw the reasonable inference that the defendant acted within his capacity as a state senator when the defendant engaged in conduct allegedly violating plaintiff’s First Amendment speech rights.”
Woolsey first posted a video April 20 of Ojeda driving a red Jeep passing Woolsey and former coworker John Miller across double yellow lines in a curve on rural W.Va. 10 in Logan County.
“It has a reputation as a very dangerous road, with frequent severe wrecks,” the complaint states. “The speed limit is 55 mph on Route 10.”
The complaint states that Miller was driving and Woolsey was in the passenger seat as they drove north toward Huntington when Miller “mentions that someone is coming up behind them driving extremely fast. At that point, a red two door Jeep Wrangler JK passed their truck in a no passing zone with double yellow lines, obviously speeding.”
Woolsey said he knew it was Ojeda.
“As the Jeep speeds past, the plaintiff seeks Ojeda for Congress stickers covering the Jeep’s hard-top windows, as well as a blue West Virginia Senate vanity plate which reads ‘Sapper,’” the complaint states. “Plaintiff immediately stated to his coworker, ‘That’s Senator Ojeda.’”
“Sapper” is a term used in the United States Army for combat engineers and other personnel who support the front-line infantry. Ojeda is an Army veteran.
Woolsey says he thought there might be some sort of emergency or that Ojeda was headed to the hospital.
“However, a short time later, the plaintiff and his co-worker approach Harts Middle School,” the complaint states. “They see defendant Ojeda, and his red Jeep, on the side of the road putting one of his campaign signs in front of the school.”
A short time later, as they continued along W.Va. 10, Woolsey and Miller saw Ojeda coming up from behind them again, according to the complaint. Woolsey said he then took out his smartphone to film Ojeda illegally passing them a second time.
“He’s back, and he’s gonna pass us like a bat out of hell on a double line in a curve,” Woolsey says to the camera before showing Ojeda speed past them. “That’s your state Senator, folks.”
Woolsey posted the video to Facebook. Later that night, Ojeda posted a video response on Facebook.
In his response, according to the complaint, Ojeda called Woolsey “some absolute oxygen thief” and said Woolsey and Miller were purposely trying to get a response from Ojeda.
“He knew I was behind him, and he was speeding up, slowing down,” the complaint quotes Ojeda’s response. “He was doing what he was doing specifically to make me either hit him in the rear of his vehicle or make me go around him, which is what I did.
“He was doing what he was doing specifically to get me to pass him on that double line so he could say, ‘Look at Ojeda out here doing these horrible things.’
“But make no mistake. This guy’s mad at me because I beat his person (Ark Kirkendoll) in the last political race. I beat the guy that had his favorite flavor of shoe polish.”
Ojeda continued to talk about Woolsey in the video response.
“That’s the caliber of person he is,” Ojeda said. “It’s absolutely sickening. This guy’s mad because obviously he hasn’t made his parents proud in life. So he wants to do everything in his power to throw stones at someone like himself. That’s the kind of garbage that goes on in these places where politics is sometimes as dirty as it gets.
“So, that’s what I wanted to do. I wanted to get on here and let people know that you’re going to see a video of Richard Ojeda speeding past someone on a double line. Yes, I did it. But that was because the person driving and recording the video was being a complete jackass on the road, and I’m not going to put up with that garbage.”
Ojeda also said he was going to talk to McCormick’s Furniture, Woolsey’s employer, about the incident.
In his complaint, Woolsey says he wasn’t involved in a rival political campaign. He says he knew Ojeda, but they had a falling out a few years ago involving the friendship of their daughters. He says Ojeda threatened to beat Woolsey up.
“Based on experience, Mr. Woolsey held a personal opinion that Mr. Ojeda was unfit for public office,” the complaint states. “Plaintiff’s opinion was reinforced now that he saw Mr. Ojeda flagrantly violating traffic and safety laws on a dangerous stretch of road in the course of placing campaign signs along the highway.”
Ojeda called store owner David McCormick the following day. Two days later, on Monday, April 23, McCormick fired Woolsey from his job.
“You shouldn’t have posted the video,” Woolsey claims McCormick told him. “You are interfering in a federal election.”
The lawsuit contends Ojeda's video was retaliation by a public official because it was posted on his official Facebook page. It also claims Ojeda’s phone call to McCormick also was retaliation.
Ojeda represents Logan, Boone and Lincoln counties as well as parts of Wayne and Mingo counties in the state Senate. He is running for the U.S. House seat currently held by Evan Jenkins, who is running for U.S. Senate.
Ojeda served 25 years in the Army, rising to the rank of major. He first drew national attention in 2016 when he was assaulted at a primary election event in May 2016. He also sponsored the state Medical Cannabis Act, which was signed into law. And this session, he became even more famous for calling for energy companies to pay more taxes so teachers could get better benefits and pay. And when teachers walked out a month later, he was viewed as a hero to teachers.
On May 1, Ojeda said he hadn't been served yet, but dismissed Woolsey's lawsuit.
"Isn't it great to be in a country where anyone can file a frivolous lawsuit?" Ojeda told The West Virginia Record. "Listen, it's a political stunt by a person who has been attacking me for a long time. I'm not worried about it. ... I'm not going to focus on this garbage."
In his motion to dismiss, Ojeda says Woolsey fails to allege any facts regarding the content of the call between he and McCormick.
“The complaint alleges only the existence of the phone call, but makes no mention of what was said during the phone call,” it states. “This curious omission may be because plaintiff and his counsel are acutely aware that defendant called Mr. McCormick only ‘to apologize for putting the business in the middle of an argument.’
“Significantly absent from plaintiff’s complaint is any allegation concerning what pertaining to plaintiff, if anything, the defendant and plaintiff’s employer discussed. Stated otherwise, not only is the complaint bereft of any allegation that defendant invoked his status as a government actor or otherwise acted under color of state law in his alleged phone call to plaintiff’s employer, the complaint fails to allege that plaintiff was even the topic of conversation in the purported phone call.”
Woolsey seeks compensatory damages for loss of his job and income, pain and suffering, loss of enjoyment of life, emotional distress, court costs, attorney fees and other relief. He also seeks punitive damages.
Woolsey is being represented by attorney John H. Bryan of Union. Ojeda is being represented by Teresa Toriseva of Toriseva Law Offices in Wheeling, Robert G. McCoid of McCamic Sacco & McCoid PLLC in Wheeling and Sean P. McGinley of DiTrapano Barrett DiPiero McGinley & Simmons in Charleston.
U.S. District Court case number 2:18-cv-00745
