State Police not timely served with lawsuit against it, judge rules

By Kyla Asbury | Nov 18, 2013

BECKLEY - A lawsuit against the West Virginia Department of State Police has been dismissed from federal court.

Col. C.R. "Jay" Smithers and Sgt. Trooper B.R. Moore were also named as defendants in the suit.

On Nov. 14, the lawsuit was dismissed with prejudice from the U.S. District Court for the Southern District of West Virginia at Beckley.

The defendants sought dismissal of the complaint on multiple grounds, including improver service, failure to file the complaint within the applicable statute of limitations, failure to state a claim upon which relief could be granted and qualified immunity.

The plaintiff did not serve the defendants until Aug. 15 and Sept. 16, approximately five and six months after the complaint was initially filed.

"Thus, because the plaintiff failed to timely serve the defendants, and there has been no showing of good cause which would otherwise excuse this failure, this court lacks personal jurisdiction over the defendants and the complaint should be dismissed without prejudice," District Judge Irene C. Berger's opinion states.

Because the alleged incident occurred on Feb. 14, 2011, and the suit was not filed until March 18, the plaintiff also failed to file the suit within the applicable two-year statute of limitations, according to Berger's order.

On Feb. 14, 2011, Moore arrived at Robert Andy Tiller's residence in Raleigh County to arrest him for certain alleged crimes, according to a complaint filed March 18 in the U.S. District Court for the Southern District of West Virginia at Beckley.

Tiller claimed prior to Moore arriving at his residence, Moore and another trooper had been allegedly conducting routine road patrol and had allegedly observed two dirt bikes being operated on W.Va. 99 in Raleigh County.

Within his criminal complaint filed against Tiller, Moore alleged that the motorcycle in which he observed Tiller driving did not have registration and that the driver of the other dirt bike identified the other driver as Tiller and led the officers to Tiller's residence, according to the suit.

Tiller claimed Moore ran through his yard and threatened him while his children were present.

Moore then handcuffed Tiller and threw him off of his porch and down approximately eight steps and repeatedly struck him, according to the suit.

Tiller claimed Moore inflicted excessive corporal punishment upon him and, after doing so, went inside his residence and looked through his personal property without a search warrant, exigent circumstances or permission from Tiller to conduct a search on his residence.

Moore was acting within the scope of his employment with the West Virginia State Police, according to the suit.

Tiller claimed he sustained severe injuries, including injuries to his back, wrists, shoulders and elbow; abrasions and contusions; pain and suffering; mental anguish; medical bills and expenses; emotional distress; violations of his civil and constitutional rights; and other injuries.

The defendants engaged in conduct with the requisite intent to constitute oppression, outrage, malice, conspiracy and conscious disregard, according to the suit.

Tiller was seeking compensatory and punitive damages with pre- and post-judgment interest. He was being represented by Kyle G. Lusk and Matthew A. Bradford of Kyle G. Lusk & Associates.

The defendants were represented by Kevin J. Robinson and J. Victor Flanagan of Pullin, Fowler, Flanagan, Brown & Poe PLLC.

U.S. District Court for the Southern District of West Virginia at Beckley case number: 5:13-cv-05385

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