Suit over alleged assault on teen at mall narrowed

Where the father of a 14-year-old alleged that her face was smashed into the floor by Lynchburg police officers working off-duty at a mall, her suit was narrowed because the facts did not support claims for intentional infliction of emotional distress, or IIED, or negligent infliction of emotional distress, or NIED, and Virginia does not recognize a negligent supervision claim.

Background

Plaintiff has filed this suit over an incident occurring in the evening of March 7, 2020, at River Ridge Mall in Lynchburg. The complaint alleges that several Lynchburg police department officers, were “working at the mall off duty at the time of the incident.”

When one officer “joined other officers in aggressively pushing away juveniles and others standing nearby,” Ms. Hicks, who was 14 years old, “expressed her concern to Defendants about their hostile treatment of the juvenile, without interfering or causing any commotion.”

The officer allegedly “yelled at [Ms. Hicks] to get back and shoved her,” but she did not fall and “attempted to stand her ground.” He then allegedly “grabbed [her] right arm and swung her around tripping her and causing her to violently hit the floor.” When Ms. Hicks sat up “trying to get loose from Hughes’ grasp,” he “flipped [her] on to her stomach” and another officer “came over and unnecessarily smashed [her] face onto the floor.”

Plaintiff later filed this filed this nine-count complaint in federal district court, suing the City of Lynchburg and several officers. This matter is before the court on defendants’ motion to dismiss plaintiff’s amended complaint.

Standing

The amended complaint was brought by Vincent Ramon Hicks, individually and as her parent, as next friend of Ms. Hicks, a minor, as well as Ms. Hicks directly. The parties are now agreed that Ms. Hicks, as a minor, cannot sue directly. Accordingly, the court will dismiss, without prejudice, Ms. Hicks as a plaintiff from this action as she lacks capacity to sue directly, but any claims she may have may be brought by Vincent Ramon Hicks as a parent and next friend suing on her behalf.

Sovereign immunity

Plaintiff sued the City of Lynchburg for various torts, alleging claims of IIED, NIED and “negligent training and supervision.” Defendants argued in their motion to dismiss, and plaintiff conceded at oral argument, that plaintiff’s IIED and NIED tort claims against the city are barred by sovereign immunity. In addition, Virginia law does not recognize a negligent supervision claim. Accordingly, these claims are dismissed.

Municipal liability

Plaintiff raised a claim against the City of Lynchburg for “municipal liability – ratification” pursuant to 42 U.S.C. § 1983. Plaintiff argues that the city is liable under this theory because, upon information and belief, plaintiff alleges that the city “new of and specifically approved of the individual defendants’ acts,” and “has determined (or will determine) that the acts of the individual defendants were ‘within policy.’”

Defendants argue this claim fails because “[it] is impossible for the City’s alleged determination — made after the alleged excessive force — to have caused the excessive force,” and thus the ratification “could not have been the moving force behind the defendants’ alleged constitutional violations if the City’s actions followed the Police Officer Defendants’ actions.” Notwithstanding defendants’ cited authority from this court that had previously supported this argument, more recent published authority from the Fourth Circuit issued after the filing of the parties’ briefing undercuts the argument. Accordingly the court will deny defendants’ motion to dismiss this count at this time.

Tort claims

As previously described, plaintiff sued defendants for IIED and NIED. Because plaintiff does not plead injury and distress from a non-tactile tort, but rather expressly alleges several tactile torts (the basis of assault and battery claims, which survive), the court will grant defendants’ motions to dismiss plaintiff’s IIED and NIED claims.

Defendants’ motions to dismiss granted in part, denied in part.

Hicks v. City of Lynchburg, Case No. 6:21-cv-00043, May 31, 2022. WDVA at Lynchburg (Moon). VLW 022-3-232. 7 pp.