Woman sues state Department of Military Affiars and Public Safety, others for father's death

By Kyla Asbury | Feb 2, 2010

CHARLESTON -- A woman is suing the West Virginia Department of Military Affairs and Public Safety, the West Virginia State Police, the McDowell County Commission, McDowell County Sheriff's Department, McDowell County 911 and seven individuals after she claims they caused her father's death.

The seven individuals named in the case are James W. Spears, Col. Timothy S. Pack, an unknown state trooper, an unknown McDowell County deputy sheriff, an unknown 911 dispatcher, Robert Wayne Johnson Sr. and Pat Johnson.

Marilynn Mallory of Orchard Beach, Md., claims the defendants are liable for injury, death or loss due to negligent performance of acts, according to a complaint filed Jan. 14 in Kanawha Circuit Court.

On Jan. 20, 2008, Mallory's father, Joe Edward Mallory, made an emergency 911 call from his home in McDowell County. Marilynn Mallory claims the unknown 911 dispatcher spoke with her father and acknowledged hearing a man "banging and screaming" at Mr. Mallory's front door.

The man was later identified as Robert Wayne Johnson Jr., and it was from him that Mr. Mallory specifically requested police protections, according to the suit.

Later in the day the unknown 911 dispatcher called Mr. Mallory back and informed him a trooper wanted more information on what was happening at his residence. Mr. Mallory informed her that Johnson Jr. had left and the dispatcher informed him that a trooper would not be sent to his home, according to the suit.

Marilynn Mallory claims immediately after the dispatcher informed her father that a trooper would not be coming to his home, he was "audibly anxious and shaken," and "told the dispatcher he was going upstairs to load his shotgun in case Johnson Jr. returned." Marilynn Mallory claims because her father was elderly and lived alone, he was scared.

The dispatcher told Mr. Mallory to not load his shot gun, but to instead call 911 if he needed help.

Following the phone call, several dispatchers could be heard on 911 recordings joking with each other and a trooper about Mr. Mallory's call, according to the suit.

The next day McDowell County 911 was notified by Pat Johnson that Mr. Mallory had been murdered by Johnson Jr. earlier in the morning. Pat Johnson noted she was first notified of the murder at 5 a.m., but went back to sleep before calling 911 at 11:30 a.m., according to the suit.

Marilynn Mallory claims emergency responders found Mr. Mallory in his home "gruesomely stabbed to death."

Mariylnn Mallory claims Johnson Sr. and Pat Johnson knew that Johnson Jr. went to Mr. Mallory's residence and a reasonable chance of harm to Mr. Mallory would occur.

Marilynn Mallory is seeking compensatory and punitive damages for negligence and wanton and reckless conduct. She is being represented by JB Akers of Akers Law Offices.

The case has been assigned to Circuit Judge James C. Stucky.

Kanawha Circuit Court case number: 10-C-0072

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