IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

KEITH ALLEN SIZEMORE,

SHANE ALLEN SIZEMORE,

Plaintiff,

vs. Civil Action No. : 2:19-cv-00639

Honorable Joseph R. Goodwin

S.R. MORRIS, C.A. YOUNG,

individually, and FAYETTE
COUNTY COMMISSION,
a political subdivision of the
State of West Virginia, TOWN
OF OAK HILL, a political
subdivision of the State of
West Virginia,

Defendants.

PLAINTIFFS’ RESPONSE TO DEFENDANT MORRIS AND FAYETTE

COUNTY COMMISSION’S MOTION TO DISMISS

Comes now the plaintiffs, Keith and Shane Sizemore, by and through counsel, John H.

Bryan, and for their response to the motion to dismiss filed by defendants Morris, and the Fayette

County Commission (“FCC”), respectfully requests that the motion to dismiss be denied, and in

support thereof, submits their response as follows:

Defendants Morris and FCC are seeking qualified immunity for Defendant Morris, under

Rule 12(b)(6), for engaging in conduct which the Southern District of West Virginia has already

found, following his sworn testimony to the Court, consisted of lying under oath for the purpose

of violating a citizen’s civil rights, under color of law. They furthermore seek dismissal for the

FCC because the Complaint’s allegations are “lacking in factual support,” which is inappropriate

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for a motion to dismiss, as it argues against the facts in the Complaint, rather than assuming they

are true.

Morris and the FCC’s motion, which even Defendant Young and the Town of Oak Hill

did not join, illustrates the outlandish nature of the argument in their memorandum. Morris and

the FCC are seeking to justify their conduct by pointing out that illegal drugs were found in

plaintiffs’ home, and that therefore defendants caught a “drug dealer,” or even the more dastardly

“heroin dealer.” Indeed, in recent days and months, opiate drugs are in fact a scourge of modern-

day Appalachia, and are a legitimate epidemic across the country. Such arguments would have

been, and probably were, brought up in the underlying criminal proceedings. But in the instant

case, we are solely analyzing the legality, or illegality, of a search and seizure.

As the Court well knows, even if jurors generally have a difficult time understanding the

“justice should be blind” concept, it matters not under the law if the plaintiff is the most ugly,

nasty, dangerous, and unpopular citizen in the nation. Justice is blind, and all citizens who are

not pretrial detainees, or prisoners of some category, are entitled to equal rights under the

Constitution. If we, as a nation, allow exceptions to civil rights for un-convicted “drug dealers,”

or “sex offenders,” or whomever, it’s a slippery slope from that point, to the dark place at the

bottom. In short, we protect the civil rights of all of us - or none of us.

INTRODUCTION

This civil action arises from a criminal prosecution in the Southern District of West

Virginia, which occurred before the Honorable John T. Copenhaver, wherein the Court issued a

suppression order which was found that the defendant police officers engaged in an illegal search

and seizure of the plaintiffs’ home, by way of obtaining a search warrant through making false

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statements to the magistrate judge who reviewed the search warrant application. It is not in

dispute that the officers searched the plaintiffs’ home, and that as a result they found illegal

drugs, and arrested and charged Keith Sizemore. His son, Plaintiff Shane Sizemore, was also

living in the home at that time. He is not alleged to have been involved in the possession of the

drugs found in the home, and is now in college, no longer living with his father.

Within the criminal case proceedings, testimony was given and evidence was presented to

the Court. Following this presentation of evidence, the Court made findings which were deeply

troubling to the integrity of the criminal justice system within the Southern District: that the

defendant police officers made false statements to a judge in order to obtain a search warrant for

a home which they did not otherwise have probable cause to search - at least not without making

false statements. This civil action is the direct result of the Court’s findings in the Court’s March

1, 2019 Memorandum Opinion and Order which is referenced extensively in the Complaint. 42

U.S.C. § 1983 entitles citizens to civil relief for constitutional violations committed under color

of law.

FACTS ALLEGED IN THE COMPLAINT

Defendant police officers Young and Morris are members of one of the “Central West

Virginia Drug Task Force,” or sometimes called the “Central West Virginia Task Force,” or even

the “Central West Virginia Drug and Violent Crimes Task Force,” which is unit of multi-agency

police officers who work together to investigate drug activity within their region of operations.

Accordingly, each of the two officers were involved in this underlying case, in turn had two

different employers, the Town of Oak Hill, as to Young, and the Fayette County Commission -

since Morris is a deputy sheriff employed by the Fayette County Sheriff’s Office. The “task

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force” itself is neither a political subdivision, nor a state agency, and while it may have its own

leadership structure, it is incapable of serving as a defendant in a Section 1983 action. As

alleged in the Complaint, Morris and Young were still ostensibly under the supervision and

control of their two political subdivision employers. Also, for purposes of legal analysis, which

will be discussed supra, they are also considered federal investigators, for purposes of analyzing

their involvement in the criminal prosecution of Mr. Sizemore, as their task force is by definition,

multi-jurisdictional, involved in both state and federal investigations and prosecutions.

According to the findings in the prior criminal case, Morris and Young claimed to have

received an anonymous tip regarding a woman named Melissa Figueroa, and they began to

investigate her. She happened to be the significant other, and/or friend, of Keith Sizemore’s

daughter, Amber Evans. After observing Figueroa’s behavior, and finding a small amount of

marijuana on her, the officers believed that she was involved in selling drugs, and had observed

that she had visited the Sizemore residence on two occasions. But otherwise, the defendant

officers had gathered little, if any, evidence to connect Figueroa’s activities to Keith Sizemore,

nor to his home. Nevertheless, false statements were submitted by the defendant officers, under

oath, to the magistrate judge, in the form of an application for a search warrant of the Mr.

Sizemore’s home, which also at the time was the home of his son, Shane Sizemore. The

subsequent exposure of the defendant officers’ actions by the Court was fatal to the criminal

prosecution of Mr. Sizemore, which was dismissed.

The Court’s findings in the March 1, 2019 order suppressing all evidence from the search

of the Sizemore home are overwhelming in their castigation of the investigators, leaving one to

wonder how defendants Morris and FCC could request in good faith that this Court bestow

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Morris qualified immunity - especially following the commission of what is probably the

“cardinal sin” of being a police officer: making false statements to a court.

According to the criminal Court’s findings, as alleged in the Complaint, Defendant

Morris prepared a search warrant application for the Sizemore residence, and in doing so, made

numerous false statements to the magistrate judge. According to the U.S. District Court for the

Southern District of West Virginia, “[i]n reality, neither of those two officers had any such

prior knowledge” as they attested to having (Case 2:18-cr-00198, Document 58, at 6).

According to the Court, “[t]he officers simply made another drive-by of the home, and didn’t

actually see what they represented that they saw. They did not see Figueroa exit that vehicle or

enter the residence,” contradicting the statements submitted to the magistrate in the warrant

application (Case 2:18-cr-00198, Document 58, at 6) (See also Complaint at paragraphs 18-31).

The Court found that Defendant Morris’ affidavit, in which twice he claimed that he and

defendant Young had prior knowledge that Figueroa “lived and stayed at ‘the defendant’s Wood

Avenue address . . . is not supported by the limited observations they had made,” (Case 2:18-

cr-00198, Document 58, at 7), and that “the officers had no basis whatever from those bare

observations to conclude that Figueroa ‘lived or stayed at’ the plaintiff’s residence.” (Case 2:18-

cr-00198, Document 58, at 7). The Court concluded that “Sgt. Morris’ false statement that the

officers had prior knowledge that Figueroa ‘lived or stayed at’ the [plaintiff’s] residence”

was calculated to mislead the magistrate into the belief that there was probable cause to

believe heroin could be found at that location.” (Case 2:18-cr-00198, Document 58, at 9).

Morris further omitted from his warrant affidavit that there was a small amount of heroin

involved in the two transactions involving Figueroa. The initial buy was $80.00 of heroin, which

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is approximately a fraction of a gram. The Court made a finding that the second buy of $80.00

indicates the same small amount. The factual implication of the small amounts, the Court

concluded, is that Morris had knowledge that such a small amount of heroin could have easily

been transported on Figueroa’s person in her clothing, rather than having utilized plaintiff’s

residence to enable the transactions. Given that the probable cause analysis requires a judge to

look at the “totality of the circumstances,” search warrant applicants cannot omit, or ignore

material exculpatory details, and the Court felt that such information should have been included.

Lastly, the Court also found that the affidavit by Morris “states that ‘we’ had prior knowledge

where Figueroa lived or stayed when neither knew that to be true. The use of ‘we’ was

designed to fortify the false allegation being made.” (Case 2:18-cr-00198, Document 58, at 9).

As the Court stated in the suppression order, the sole supporting basis for the search

warrant affidavit, turns on the sale of a meager amount of heroin by one who, “in the course of

making the sale, has paid a visit to the home of another,” which of course falls far short of

probable cause. Armed only with that limited circumstance, defendant Morris sought a search

warrant of the place visited by the “small time dealer.” Doubtless recognizing the weakness of

the premise for a search of the home, the Court wrote, Morris added the following

unsubstantiated paragraph:

Members of the Central West Virginia Drug Task Force have received numerous
complaints about the sale and distribution of heroin from this residence. Members of the
Task Force have received numerous complaints about other subjects who are known to
live or stay at the residence described. Those subjects are Keith Sizemore and Amber
Evans.

(Case 2:18-cr-00198, Document 58, at 10-11). According to the Court, “[t]here is not an iota of

evidence to support that gratuitous allegation.” Moreover, the allegation that there were

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complaints about the plaintiff and Amber Evans, “[t]hat too, is alleged without a whit of

evidence.” (Case 2:18-cr-00198, Document 58, at 11).

The Court also found that “just as Figueroa was falsely stated by Sgt. Morris to have

lived or stayed at the Sizemore residence, so too is the unproved allegation that Amber Evans

lived or stayed there. She did not, the Court found. Sgt. Morris has since admitted (presumably

in testimony before the Court) that he did not know where Evans lived or stayed and, as with

Figueroa, he had made no investigation to find out. Rather, the Court found, he simply saw

Evans there on the evening of July 12th and made the same unwarranted assumption about Evans

as he had made about Figueroa, which made its way into the warrant application, though not true

(Case 2:18-cr-00198, Document 58, at 12).

In the March 1, 2019 Memorandum Opinion and Order, the Southern District of West

Virginia found that the search warrant for the plaintiff’s residence was a clear violation of both

plaintiffs’ clearly established constitutional rights under the Fourth Amendment of the

Constitution, to be free from unreasonable searches and seizures. The District Court found that:

Under a totality of the circumstances analysis, the only facts of which Sgt. Morris had
knowledge that were in any sense relevant to the issuance of the search warrant sought,
were the two small-time sales in the Dollar Tree parking lot. Only one of those sales
significantly related, however obscurely, to the Sizemore house in that the officers
witnessed Figueroa leave from that point while on her way to make the second sale.

In particular, without the false statement that Figueroa lived or stayed at the Sizemore
house, coupled with the false statement that the officers had prior knowledge of that
allegation, there was simply no adequate ground on which to base the search of another
man’s house.

The [plaintiff] was the sole owner of that residence searched. It was his home, as well as
that of his 16-year-old son, and he had a legitimate expectation of privacy in it. The
search warrant obtained for his residence was sought without any basis for it, and

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 its execution was a clear violation of the Fourth Amendment to the United States
Constitution as an unreasonable search and seizure . . . .

As a consequence, the Motion to Suppress Evidence is granted as to the evidence seized

from the [plaintiff’s] home, as well as the [plaintiff’s] confession that soon followed that
same evening.”

(Case 2:18-cr-00198, Document 58, at 13-14.)

WHETHER DEFENDANT MORRIS IS ENTITLED TO QUALIFIED IMMUNITY

Defendants Morris and FCC claim that Morris must be dismissed due to the application

of qualified immunity, as a matter of law.1 However, taking the allegations in the Complaint to

be true, which may actually be true as a matter of law given the Court’s prior findings on the

matter, Morris intentionally lied under oath to a judge in order to violate a citizen’s civil rights.

Such actions are at the far end of the horizon of scenarios where any federal court has ever

applied qualified immunity to the actions of a law enforcement officer. Even to suggest the

application of qualified immunity under this scenario is to ask this Court not only to weigh and

consider the merit of the factual allegations in the Complaint, but also to ignore and discount the

prior findings and orders of itself, both the prior criminal prosecution, and the civil action herein

both being before the Southern District of West Virginia.

Qualified immunity is an affirmative defense intended to shield public officials from civil

suits arising out of their performance of job-related duties. See, e.g., Pearson v. Callahan, 555

U.S. 223, 231–32 (2009). Defendants asserting a qualified immunity defense first bear the

burden of “demonstrating that the conduct of which the plaintiff complains falls within the scope

of the defendant’s duties.” In re Allen, 106 F.3d 582, 594 (4th Cir. 1997) The defense of qualified

1 Defendant FCC cannot receive qualified immunity because it’s not an individual.

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immunity is available unless the official “knew or reasonably should have known that the action

he took within his sphere of official responsibility would violate the constitutional rights of the

plaintiff....” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). Officials are protected even if they

make reasonable mistakes of fact or law, so long as they do not violate a clearly established

statutory or constitutional right. Pearson, 555 U.S. at 231–32. “A constitutional right is ‘clearly

established’ when its contours are sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013).

Assuming that Morris intentionally provided false information under oath, to a

magistrate, resulting in the issuance of a search warrant for the plaintiffs’ home, which in fact

resulted in a search of the plaintiffs’ home, every court and litigant in the nation would agree that

Morris violated a clearly established rights belonging to the plaintiffs (See pages 4-7, infra for

discussion of specific allegations in the Complaint). And of course, the underlying court

presiding over the criminal action made that very finding, placing Morris and the FCC in the

position of arguing that the Court was wrong, at which point they’ve gone far aloft from the

scope of Rule 12(b)(6).

The very foundation of the Fourth Amendment to the Constitution is the prohibition of

the government searching a citizen’s home without a valid search warrant. No right guaranteed

under the Constitution is more clearly established, nor more closely linked to the underlying

purpose of the Bill of Rights, than is the prohibition of unreasonable searches and seizures

breaching the privacy of an individual’s home. Defendants argue that there’s some lower and

somewhat vague, or meaningless, standard for issuance of search warrants under the current

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behemoth of Fourth Amendment federal caselaw, which somehow enshrouds their conduct in a

quasi-absolute type of immunity, protecting even perjury by police officers.

To the contrary, defendants should read the Constitution, because the actual text of the

Fourth Amendment unambiguously says the exact opposite:

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.

Amendment IV, The U.S. Bill of Rights.

Defendants appear to be confusing the types of evidence generally sought when law

enforcement generally attempts to support the application of a search warrant, with the actual

probable cause threshold itself, which the reviewing judge must analyze and find has been

satisfied by the evidence submitted in the petition. There can be no doubt that probable cause is

the basic legal threshold for issuance of a search warrant under the Constitution, and will always

be the requirement, short of another constitutional amendment modifying the same:

The Fourth Amendment protects "the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures." U.S. Const.
amend. IV. It is well established that the constitutional protection against an unreasonable
search is distinct from the protection against an unreasonable seizure. "A search
compromises the individual interest in privacy; a seizure deprives the individual of
dominion over his or her person or property." Horton v. California, 496 U.S. 128, 133,
110 S.Ct. 2301 2305, 110 L.Ed.2d 112 (1990). U.S. v. Jackson, 131 F.3d 1105 (4th Cir.,
1997).

U.S. v. Jackson, 131 F.3d 1105, 1108 (4th Cir., 1997).

"[I]n all cases outside the exceptions to the warrant requirement the Fourth Amendment
requires the interposition of a neutral and detached magistrate between the police and the
persons, houses, papers, and effects of citizens." Thompson v. Louisiana, 469 U.S. 17, 20
(1984) (per curiam) (internal quotation marks omitted). In evaluating whether probable
cause exists, it is the task of the issuing magistrate to decide "whether, given all the

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 circumstances set forth in the affidavit . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213,
238 (1983). Information contained in the affidavit and critical to such a finding of
probable cause must "be `truthful' in the sense that the information put forth is
believed or appropriately accepted by the affiant as true." Franks v. Delaware, 438
U.S. 154, 165 (1978).

USA. v. Simons, 206 F.3d 392 (4th Cir., 1999). The Wilhelm case, is particularly instructive:

Search warrants must be supported by probable cause to satisfy the dictates of the
Fourth Amendment. United States v. Harris, 403 U.S. 573, 577, 91 S.Ct. 2075 2079, 29
L.Ed.2d 723 (1971). The Supreme Court addressed "the application of the Fourth
Amendment to a magistrate's issuance of a search warrant on the basis of a partially
corroborated anonymous informant's tip" in Illinois v. Gates, 462 U.S. 213, 217, 103
S.Ct. 2317 2321, 76 L.Ed.2d 527 (1983). An Illinois police department received an
anonymous letter alleging that a Bloomington couple was involved in drug dealing; the
letter specifically detailed how the couple travelled to Florida to buy drugs. Id. at 225,
103 S.Ct. at 2325. The police surveilled the couple and substantially corroborated the
information in the letter. Id. at 225-27, 103 S.Ct. at 2325-26.

The Supreme Court agreed with the Illinois Supreme Court that the letter standing alone
could not provide probable cause to believe that drugs could be found in the couple's car
and home: "The letter provides virtually nothing from which one might conclude that its
author is either honest or his information reliable; likewise, the letter gives absolutely no
indication of the basis for the writer's predictions regarding the Gateses' criminal
activities." Id. at 227, 103 S.Ct. at 2326; see also United States v. Miller, 925 F.2d 695,
698 (4th Cir.) ("An informant's tip is rarely adequate on its own to support a finding of
probable cause."), cert. denied, 502 U.S. 833, 112 S.Ct. 111, 116 L.Ed.2d 80 (1991).

The Court then adopted a "totality-of-the-circumstances" test to determine whether

probable cause supported a search warrant. Id. at 238, 103 S.Ct. at 2332. Two factors are
key to this analysis: the informant's "veracity" or "reliability" and his or her "basis of
knowledge." Id. at 233, 103 S.Ct. at 2329. Appellate courts should pay "great deference"
to magistrates' findings of probable cause. Id. at 236, 103 S.Ct. at 2331. But this does not
mean that warrants based on conclusory allegations should be upheld: "Sufficient
information must be presented to the magistrate to allow that official to determine
probable cause; his action cannot be a mere ratification of the bare conclusions of others."
Id. at 239, 103 S.Ct. at 2332.

U.S. v. Wilhelm, 80 F.3d 116 (4th Cir., 1996).

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 Wilhelm reiterated the sort of analysis that is supposed to be occurring when magistrates

review search warrant applications, thoughtfully and critically analyzing them under the probable

cause standard mentioned in the Constitution. The Founders of our country did not intend

“probable cause” to be some meaningless rubber-stamp for assumptions, generalizations, or bare

suspicions. And certainly not false statements. The Fourth Circuit found in Wilhelm that the

warrant issued in that case was unsupported by probable cause, and thus unreasonable:

We conclude that this affidavit fell far short of providing probable cause for a search
warrant. Upholding this warrant would ratify police use of an unknown, unproven
informant--with little or no corroboration--to justify searching someone's home. The right
to privacy in one's home is a most important interest protected by the Fourth Amendment
and a continuing theme in constitutional jurisprudence. See, e.g., Payton v. New York,
445 U.S. 573, 585, 100 S.Ct. 1371 1379, 63 L.Ed.2d 639 (1980) (" 'physical entry of the
home is the chief evil against which the wording of the Fourth Amendment is directed'
" (quoting United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125
2135, 32 L.Ed.2d 752 (1972)));

United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074 3084, 49 L.Ed.2d
1116 (1976) (the right to "sanctity of private dwellings," has been held to be the right
"ordinarily afforded the most stringent Fourth Amendment protection"); Silverman v.
United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961) ("At the very
core [of the Fourth Amendment] stands the right of a man to retreat into his own home
and there be free from unreasonable governmental intrusion.”).

The minimal corroboration provided in this case simply was insufficient. The conclusion
that an informant is reliable and mature based only on brief telephone conversations is
dubious, and the affidavit does not disclose any basis for Proctor's conclusion that her
tipster was a "concerned citizen." Moreover, the only corroboration Proctor provided was
that the informant's directions to Wilhelm's home were correct. Almost anyone can give
directions to a particular house without knowing anything of substance about what goes
on inside that house, and anyone who occasionally watches the evening news can make
generalizations about what marijuana looks like and how it is packaged and sold.

U.S. v. Wilhelm, 80 F.3d 116, 120 (4th Cir., 1996).

The probable cause standard must have some teeth to it if the Fourth Amendment is to

have any protection for the individual. How many warrant applications has the “task force” sent

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for rubber-stamping by local magistrates with vague inclusions of “prior knowledge” without

specifics, or bare generalizations couched in terms of specific observations of real people? At

some point the federal court had to step in and address the problem.

Perhaps the Court’s March 1, 2019 Memorandum Opinion and Order said it best, as to

the facts regarding the search of the Sizemore home:

While the court must give deference to the sworn statement of the officer seeking a
search warrant, the warrant must be supported by substantial evidence from reliable
sources and there must be a fair probability that the contraband or related incriminating
evidence will be found. Here, the only disclosed prior criminal activity of the target
Figueroa was her mere possession of a small quantity of marijuana two months earlier
along with the seat belt violation.

Under a totality of the circumstances analysis, the only facts of which Sgt. Morris had
knowledge that were in any sense relevant to the issuance of the search warrant sought,
were the two small-time sales in the Dollar Tree parking lot. Only one of those sales
significantly related, however obscurely, to the Sizemore house in that the officer
witnessed Figueroa leave from that point while on her way to the second sale.

In particular, without the false statement that Figueroa lived or stayed at the Sizemore
house, coupled with the false statement that the officers had prior knowledge of that
allegation, there was simply no adequate ground on which to base the search of another
man’s home.

The defendant was the sole owner of the residence searched. It was his home, as well as
that of his 16-year-old son, and he had a legitimate expectation of privacy in it. The
search warrant obtained for his residence was sought without any basis for it, and its
execution was a clear violation of the Fourth Amendment to the United States
Constitution as an unreasonable search and seizure.

(Case 2:18-cr-00198, Document 58, at 12-13).

If Morris and Young intentionally made material false statements in the warrant

application, resulting in the presiding federal court invalidating the warrant, and suppressing all

evidence seized in the search, then by definition, there was no probable cause, and there was no

valid warrant. If the officers made only “reasonable mistakes,” then the evidence seized by the

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officers in the search would have still been admissible against Mr. Sizemore, and would not have

been suppressed.2 To the contrary, the Court found that Morris proactively “calculated to

mislead” the magistrate with false statements. (Case 2:18-cr-00198, Document 58, at 9). If

qualified immunity should be granted following such behavior, it would have to be granted for

every behavior, since there’s probably none worse for a society which values equal justice.

Legitimacy and integrity has always been the currency of the courts, which possesses no

standing army to enforce its holdings, and it must be the subject of relentless protection.

There’s also the “800 pound gorilla” in the room: the fact that this very Court has already

taken evidence, and examined the evidence surrounding the Sizemore search warrant and

execution, and reached conclusions which are likely dispositive as to liability in the present civil

action. In 1980, the U.S. Supreme Court applied the doctrines of res judicata and collateral

estoppel to Section 1983 actions. See Allen v. Curry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308

(1980). However, even prior to Allen, the Fourth Circuit had already established the same

holding. See Rimmer v. Fayetteville Police Dept., 567 F.2d 273 (4th Cir., 1977) (“There is

nothing new in the concept that full litigation of an issue in a criminal proceeding forecloses

subsequent relitigation of the issue in a civil proceeding when resolution of the issue was

essential to the conviction.”).

Usually the estoppel/preclusion analysis pertains to the question of whether state court

judgments afford a preclusive effect in a subsequent Section 1983 action as to issues which were

previously decided in the state court litigation. See Migra v. Warren City Sch. Dist. Bd. of Educ.,

2The exclusionary rule is subject to a good-faith exception, crafted by the Supreme Court in Davis, 131 S.Ct. 2419; see, e.g.,
Pearson v. Callahan, 129 S.Ct. 808, 821-822 (2009) (“Most of the constitutional issues that are presented in § 1983 damages
actions and Bivens cases also arise in cases in which [qualified immunity] is not available, such as criminal cases . . . .”)

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465 U.S. 75, 85 (1984) ("We hold, therefore, that petitioner's state-court judgment in this

litigation has the same claim preclusive effect in federal court that the judgment would have in

the Ohio state courts.”) (cited by Gilliam v. Sealey No. 18-1366, No. 18-1402 (4th Cir., 2019)).

This almost always arises where the underlying criminal case resulted in a conviction, or plea,

for a crime which includes as an essential element, a material issue to be decided in the

subsequent 1983 civil action. However, here, there was no conviction - only a dismissal with a

finding that plaintiffs’ civil rights were violated.

Although it must be a rare scenario, there exists a prior order of this Court, involving the

same witnesses and the same issues, which can be introduced as prima facie evidence for

disposition of the entire Fourth Amendment issue now in dispute. It is well established that a

prior criminal judgment or decree may be used to establish prima facie all matters of fact and

law adjudicated in the criminal litigation. See Emich Motors Corporation v. General Motors

Corporation 8212 1951, 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951). Whereas in some

cases it can be difficult to determine exactly which issues were actually adjudicated following a

plea in a criminal case, in the matter of the Sizemore search, no such problem exists. The Court

issued a detailed memorandum opinion and order reaching specific findings on identical issues in

dispute herein, which if in dispute as to their nature, are issues of law. See Id., 8212 1951, 340

U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951).

Nor does the fact that defendants Morris and Young not being the literal named parties

(i.e., “nonparties”) to the underlying criminal litigation, prevent the application of estoppel/

preclusion. The Supreme Court has also long held that even “nonparties” are subject to collateral

estoppel and res judicata, so long as they are substantially involved in the criminal litigation:

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 These interests are similarly implicated when nonparties assume control over litigation in
which they have a direct financial or proprietary interest and then seek to redetermine
issues previously resolved. As this Court observed in Souffront v. Compagnie des
Sucreries, 217 U.S. 475, 486-487, 30 S.Ct. 608, 612, 54 L.Ed. 846 (1910), the persons for
whose benefit and at whose direction a cause of action is litigated cannot be said to be
"strangers to the cause. . . . [O]ne who prosecutes or defends a suit in the name of another
to establish and protect his own right, or who assists in the prosecution or defense of an
action in aid of some interest of his own . . . is as much bound . . . as he would be if he
had been a party to the record." See Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260,
262, n. 4, 81 S.Ct. 557, 559, 5 L.Ed.2d 540 (1961); cf. Zenith Radio Corp. v. Hazeltine
Research, Inc., 395 U.S. 100, 111, 89 S.Ct. 1562 1570, 23 L.Ed.2d 129 (1969).

Preclusion of such nonparties falls under the rubric of collateral estoppel rather than res
judicata because the latter doctrine presupposes identity between causes of action. And
the cause of action which a nonparty has vicariously asserted differs by definition from
that which he subsequently seeks to litigate in his own right. See G. & C. Merriam Co. v.
Saalfield, 241 U.S. 22, 29, 36 S.Ct. 477, 480, 60 L.Ed. 868 (1916); Restatement (Second)
of Judgments § 83, comment b, p. 51 (Tent. Draft No. 2, Apr. 15, 1975); 1B Moore ¶
0.411[6], pp. 1553-1554; Note, Developments in the Law—Res Judicata, 65 Harv.L.Rev.
818, 862 (1952).

Montana v. United States, 440 U.S. 147, 154 (1979). Being that Morris and Young were acting

as members of the “Central West Virginia Drug Task Force” their involvement in the criminal

litigation cannot be disputed, as their membership in a “task force” by definition provides a

substantial connection with all potential government actors in the jurisdiction, including those

involved in the criminal prosecution of Mr. Sizemore. Furthermore, it’s obvious that they were

substantially involved in the prosecution of Mr. Sizemore, since they provided testimony against

him which formed the sole basis of the prior court order. They weren’t just “substantially

involved,” they appear to have been the only people involved. The “task force” is an

investigative arm of both state and federal prosecutors, rendering them involved in every

possible scenario under which Mr. Sizemore could have been prosecuted.

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 The plaintiff in the underlying criminal case, being a federal criminal indictment, was the

United States of America, represented by the U.S. Attorney’s Office for the Southern District of

West Virginia. According to the Southern District’s section of the U.S. Department of Justice

website:

To enforce federal law, many major cases of the U.S. Attorney’s Office work closely with
the West Virginia State Police, local police departments, county sheriff’s offices, and drug
task forces consisting of representatives of federal, state, and local law enforcement.
These task forces are specifically intended to target a particular criminal activity, often in
a particular geographical location.

See https://www.justice.gov/usao-sdwv/task-forces-0. Moreover, on the same page, the Central

West Virginia Task Force is listed as one of the task forces operating with the Southern District

of West Virginia. In the search warrant affidavit for the Sizemore home, Defendant Morris wrote

that he was a “sworn law enforcement officer, employed with the Fayette County Sheriff’s

Department” and furthermore that he was “currently assigned to the Central West Virginia Drug

and Violent Crime Task Force,” and moreover that he is “currently deputized with the West

Virginia State Police.”

Defendant Morris also states in his affidavit for the search warrant, that his past narcotics

investigations have been in both state and federal investigations. In the instant case, neither is it

necessary for the Court to analyze the underlying criminal prosecution for factual findings as to

Morris and Young’s level of involvement in the federal prosecution of Mr. Sizemore (which

yielded the finding for which preclusive effect is sought). See, e.g., U.S. v. Davis, 906 F.2d 829

(2nd Cir., 1990) (Analyzing whether there was “substantial participation” by federal law

enforcement officials in an unsuccessful state prosecution, so as to apply collateral estoppel

against the subsequent federal prosecution.) Due to Morris and Young’s status as “task force”

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members, they work across jurisdictions, and across both state and federal levels. There can be

no dispute that they were involved in the underlying litigation against Mr. Sizemore. They were

quoted, and discussed, extensively by the Court the March 1, 2019 suppression order. Other than

the prosecutors themselves, they appear to be the only individuals who were mentioned as being

involved in the investigation and prosecution of Mr. Sizemore.

NEGLIGENCE CLAIM

Defendant argues, very briefly, that plaintiffs’ negligence claims are insufficient under

general pleading requirements. However, the Complaint contains a large amount of specific

allegations, by design, in order to avoid inefficient litigation over pleading standards. The

factual allegations in the Complaint are incorporated by reference into Count Two via paragraph

45. Additionally, the paragraphs encapsulated within Count Two are adequately specific. For

instance, paragraph 46 alleged that,

It was reasonably foreseeable to the said political subdivisions that plaintiff and other
individuals would be damaged by being subjected to unreasonable searches and seizures
based on a pattern, practice and activity of providing false information to the Magistrate
Court of Fayette County in order to secure search warrants unsupported by the law. It
was furthermore reasonably foreseeable to the defendants that allowing police officers to
operate outside the bounds of the U.S. Constitution, with little to no supervision and
training, in order to seize assets for profit, through misuse of the West Virginia state civil
forfeiture statute, is going to harm citizens

Complaint at paragraph 46. Then the next paragraph alleges that:

Morris and Young, respectively, as detailed above and incorporated herein, committed an
unreasonable search and seizure of the plaintiff and his home on September 7, 2017, in
violation of the Fourth Amendment of the U.S. Constitution, by making false statements
and material omissions in their affidavit to the Magistrate Court of Fayette County. In so
doing, the officers were acting in accordance with their training and supervision, which
was effectively negligent in that it consisted of a pattern, practice, and activity of acting
outside the law for purpose of pecuniary gain via the state civil forfeiture statute.
Effectively unsupervised and undertrained by their employers, the defendant officers

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 were operating outside the bounds of the U.S. Constitution, in a scheme primarily
concerned with seizing assets to be converted to their own ownership (the FCC and
Town of Oak Hill) through the civil forfeiture statute. Since the political subdivision
defendants themselves were profiting from the scheme, they instituted an official policy
of “turning a blind eye” to the officers’ activities, and allowed an environment of
lawlessness to exist, with no supervision, and no concern towards training.

Complaint at paragraph 47.

Lastly, paragraph 48 of the Complaint goes above and beyond the mere allegations

necessary to satisfy pleading standards, and also alleged the motive of the defendant political

subdivisions possessed, in order to explain the resulting financial benefit received by the

subdivision for allowing the defendant officers to act outside the bounds of the law. So long as

they find the drugs, they get the assets. And by prosecuting the civil forfeiture case first, before

the criminal prosecution, they get to use it as a device of extortion to force both a criminal plea,

and a civil settlement in regards to the assets. The pattern and practice of this behavior goes

hand-in-hand with the defendant officers’ feeling empowered to provide false information in

search warrant applications. Moreover, since the FCC and Morris are both represented by the

same counsel, it will not prejudice the FCC to remain as a party through the discovery period,

after which time they can of course file a dispositive motion arguing the development of the facts

at that time.

CIVIL FORFEITURE

Defendant argues for dismissal of “Plaintiff’s claims as they pertain to the civil forfeiture

proceeding,” when in fact there are only two counts in the Complaint - none of which were filed

under the West Virginia Contraband Forfeiture Act, cited by the defendants in their

memorandum. To the extent that the defendants’ actions pertain to their intentions, motivations,

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and actions in carrying out activity they believed to be lawful under the said act, or as they apply

to the plaintiffs’ damages, any such evidence is relevant under the two counts filed by the

plaintiffs, and in any event, are irrelevant to a motion to dismiss. The defendants can address

those arguments where they belong, in motions in limine, at the pretrial stage.

CONCLUSION

Rule 12(b)(6) provides for a defense to a claim by motion for “failure to state a claim

upon which relief can be granted.” In deciding motions under 12(b)(6), federal courts can take

judicial notice of all matters of public record, such as the March 1, 2019 memorandum opinion

and order finding that the defendants engaged in the exact conduct alleged in the Complaint. See

Hall v. Virginia, 385 F.3d 421, 424 (4th Cir. 2004). That Order is an obstacle which prevents

qualified immunity from being granted to Defendant Morris at any stage, much less in a motion

to dismiss. As such the motion, for all of the reasons aforesaid, must be denied.

KEITH ALLEN SIZEMORE,

SHANE ALLEN SIZEMORE,
By Counsel

/s John H. Bryan
John H. Bryan (WV Bar No. 10259)
JOHN H. BRYAN, ATTORNEYS AT LAW
411 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
jhb@johnbryanlaw.com

for the Plaintiffs

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 IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

KEITH ALLEN SIZEMORE,

SHANE ALLEN SIZEMORE,

Plaintiff,

vs. Civil Action No. : 2:19-cv-00639

Honorable Joseph R. Goodwin

S.R. MORRIS, et al.

Defendants.

CERTIFICATE OF SERVICE

I, John H. Bryan, do hereby certify that I have delivered a true copy of the foregoing

PLAINTIFFS’ RESPONSE TO DEFENDANT MORRIS AND FAYETTE COUNTY

COMMISSION’S MOTION TO DISMISS has been served upon counsel of record by using the

CM/ECF System, this the 3rd day of December, 2019 and addressed as follows:

Adam K. Strider, Esq. Chip E. Williams, Esq.

John P. Fuller, Esq.
Bailey & Wyant, PLLC
500 Virginia Street, East, Suite 600
PO Box 3710
Charleston, WV 25337-3710
Counsel for Morris and FCC
Jared C. Underwood, Esq.
Pullin Fowler Flanagan, Brown & Poe, PLLC
252 George Street
Beckley, WV 25801
Counsel for Young and Oak Hill

/s John H. Bryan
John H. Bryan (WV Bar No. 10259)
JOHN H. BRYAN, ATTORNEYS AT LAW
411 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
jhb@johnbryanlaw.com

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