CHARLESTON — The plaintiff in a case alleging excessive force against the Kanawha County Commission responded to a motion to dismiss, arguing that her claims against the commission do not fall within the Federal Tort Claims Act.
The defendants in the case are law enforcement officials Joshua Martin, Scott Lowther, Mike King, the federal government and the Kanawha County Commission.
Amy Deavers argues the motion should be denied.
Deavers argues that with respect to the Kanawha County Commission, questions of fact were injected into the motion when the commission states that “they [individual defendants] were not acting under the supervision of the Kanawha County Commission simply because the arrest incurred in Kanawha County.”
"Discovery is necessary before the court can reach this conclusion," Deavers argues. "Moreover, the allegations in the complaint as to the Kanawha County Commission are far beyond that as presented in the motion."
The plaintiff has alleged that the Kanawha County Commission owed her a duty to ensure that its deputies were properly trained, supervised and engaging in lawful activities.
"Plaintiff claims that that the negligent conduct on the part of the Kanawha County Commission exceeds activity which may be defined as failure to provide, or the method of providing, police or law enforcement protection," she argues. "Claims against the Kanawha County Commission do not fall within the Federal Tort Claims Act because it is not a federal agency and the Kanawha County Commission did not provide any legal support to suggest anything different."
Deavers claims the court has subject matter jurisdiction over her constitutional claims against Martin.
"This is true regardless of whether he was a federal or state actor," Deavers claims. "To the extent that Defendant Martin was a federal actor, Plaintiff may proceed against him individually and is not required to bring an action under the FTCA. The claims against the Kanawha County Commission are for negligence and do not fall within the FTCA."
Deavers argues the motion should be denied.
The defendants arrived at Deavers' home in the morning hours of June 15, 2020, in an attempt to apprehend Florence Kiewra, a fugitive who had violated the terms of her furlough for prior crimes, according to a complaint.
Deavers claims the night before Kiewra had stayed at the plaintiff's residence with the plaintiff's daughter, who was visiting the plaintiff and does not live with her. Deavers acknowledged that Kiewra was present and when the deputies attempted to enter her home, she asked if they had a warrant, which one of the defendants said he did not need a piece of paper to enter the home.
Deavers claims one of the deputies grabbed her and forcefully threw her face down onto the porch and handcuffed her while the other deputies detained Kiewra.
Deavers is seeking compensatory and punitive damages.
The Kanawha County Commission removed the case to federal court. King and Lowther filed a motion to dismiss the complaint last month. On November 15, the commission and Martin filed a motion to join that motion to dismiss.
Deavers is represented by Stephen Hastings and David Nelson of Hendrickson & Long. The commission and Martin are represented by Cy Hill and Allison Subacz of Cipriani & Werner in Charleston. Lowther and King are represented by Fred Westfall of the U.S. Attorney's Office for the Southern District of West Virginia.
U.S. District Court for the Southern District of West Virginia case number 2:21-cv-423 (Kanawha Circuit Court case number: 21-C-497)
