Case 5:23-cv-00143-JPB Document 1 Filed 04/14/23 Page 1 of 8 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF WEST VIRGINIA
AT WHEELING ELECTRONICALLY
KANDI WOOD FILED
4/14/2023
Plaintiff, U.S. DISTRICT COURT
Northern District of WV

vs. Civil Action No. 5:23-cv-143 (Bailey)

JASON JOHNSON, individually,

MARSHALL COUNTY COMMISSION,
a political subdivision of the State of West
Virginia,

Defendants.

COMPLAINT

This complaint, brought pursuant to 42 U.S.C. Section 1983, the Fourth Amendment to

the United States Constitution, arises out of the Defendants’ use of excessive force upon the

Plaintiff on or about April 14, 2021in the town of Moundsville, Marshall County, West Virginia,

within the Northern District of West Virginia.

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343.

PARTIES

1. The Plaintiff, Kandi Wood, was at all times relevant hereto a resident of

Moundsville, Marshall County, West Virginia.

2. Defendant, Jason Johnson, was at all times relevant hereto, a law enforcement

officer holding the rank of Deputy with the Marshall County Sheriff’s Department, and was at all

times relevant hereto acting under the color of law, having an address of 700 7th Street,

Moundsville, West Virginia, 26041.

1
 Case 5:23-cv-00143-JPB Document 1 Filed 04/14/23 Page 2 of 8 PageID #: 2

3. Defendant Marshall County Commission (“MCC”) is a political subdivision of

the State of West Virginia. See West Virginia Governmental Tort Claims and Insurance Reform

Act, W. Va. Code § 29-12A-1, et seq.

FACTS

4. On or about April 14, 2021, Plaintiff, and her guest, Bobbi Dennis, were in her

residence at 2300 7th Street, Lot 93, Moundsville, West Virginia 26041.

5. At the time, Plaintiff was under the supervision of the Marshall County Probation

Department, and also had an outstanding warrant for an alleged probation violation.

6. On April 14, 2021, at approximately 1415 hours Defendant Johnson and Detective

Smith arrived at Plaintiff’s residence serve the warrant on her. Defendant Johnson approached

Plaintiff’s front door while Smith questioned another party who was standing outside of the

residence.

7. Defendant Johnson began knocking loudly on the front door of Plaintiff’s

residence, and calling on her to open the door.

8. Plaintiff did not come to the door, and after several minutes, Defendant Johnson

kicked Plaintiff’s door in and he and Detective Smith entered the residence and began searching

for Plaintiff.

9. Defendant Johnson and Detective Smith were unable to immediately locate

Plaintiff, but they did locate Plaintiff’s houseguest, Bobbi Dennis, in the bathroom. Defendant

Johnson handcuffed Ms. Dennis, and proceeded to take her out to the porch and leave her in the

custody of another Deputy.

2
 Case 5:23-cv-00143-JPB Document 1 Filed 04/14/23 Page 3 of 8 PageID #: 3

10. Defendant Johnson then re-entered the residence and announced in a loud voice

that if Plaintiff didn’t show herself he was going to bring his K9 into the residence and that she

would be bitten.

11. Defendant Johnson then proceeded to bring his K9 into the residence, but rather

than keeping it leashed in order to keep it controlled, he released it to run free throughout the

residence searching for Plaintiff knowing that it would attack her.

12. The K9 ultimately located Plaintiff where she had been hiding under a pile of

clothing in her bedroom. The animal, being off-leash, and beyond the control of Defendant

Johnson, proceeded to viciously attack Plaintiff, biting her over and over again on various parts

of her body. The K9 did not respond to Defendant Johnson’s commands to disengage with

Plaintiff, and neither did Defendant Johnson have physical control of the animal. The K9 attack

was completely unprovoked, and Plaintiff was neither fighting back nor being aggressive toward

Defendant Johnson or the K9 in any way during entire encounter.

13. Despite Plaintiff’s cries and pleas for help and the failure of verbal commands to

control the K9, Defendant Johnson initially hesitated to physically regain control of the K9.

When he finally did try to pull it off of Plaintiff, he was unable to do so in his first few attempts.

Defendant Johnson was eventually able to regain control of the K9 and remove it from Plaintiff

14. As a direct result of the vicious and unnecessary K9 attack, Plaintiff suffered bite

injuries to the right side of her ear, the back of her head, and up and down the length of her right

arm to the wrist. Plaintiff’s injuries required extensive stitches and surgery. Plaintiff continues to

suffer from loss of feeling in her arm, and is unable to grasp things with her right hand. Plaintiff

continues to undergo therapy, and suffers from PTSD as a result of the K9 attack.

3
 Case 5:23-cv-00143-JPB Document 1 Filed 04/14/23 Page 4 of 8 PageID #: 4

COUNT ONE - EXCESSIVE FORCE UNDER 42 U.S.C. 1983

VIOLATION OF THE FOURTH AMENDMENT

15. Plaintiff incorporates by reference all the allegations contained in the previous

paragraphs.

16. Defendant Johnson, under color of state law, used excessive and violent force

against the Plaintiff in her residence by intentionally and unnecessarily releasing his K9 off-leash

in the residence and by failing to properly control the K9 thus allowing it to attack Plaintiff as

described above in detail, on or about April 14, 2021.

17. When Defendant Johnson intentionally and unnecessarily released his K9 in

Plaintiff’s residence to attack her no objectively reasonable officer could have perceived the

Plaintiff as posing an immediate threat to the safety of any of the Defendant, or any other

individual, so as to require the use of violent physical force.

18. The Defendant had no legitimate reason to believe that releasing his K9 to attack

the Plaintiff was necessary and proper under the circumstances as presented.

19. At no time did the Plaintiff attack or assault any police officer, or any individual.

Nor did she resist in any way. Throughout the incident, Plaintiff was only pleading and begging

Defendant Johnson to get the K9 off of her. Plaintiff was always compliant and not physically

resisting or attempting to flee.

20. “Objective reasonableness” is the test to determine whether a particular use of

force to effect an arrest is excessive. Graham v. Conner, 490 U.S. 386 (1989). Here, the

Defendant’s actions were objectively unreasonable, unlawful, unwarranted, and in violation of

4
 Case 5:23-cv-00143-JPB Document 1 Filed 04/14/23 Page 5 of 8 PageID #: 5

the Plaintiff’s clearly established procedural and substantive rights, including the right to be free

from excessive force under the Fourth Amendment of the United States Constitution. A

reasonable officer would not have had probable cause to feel in any way threatened by the

Plaintiff.

21. The Defendant officer’s actions were willful, wanton, intentional, malicious and

done with a callous and reckless disregard for the Plaintiff’s Fourth Amendment right to be free

from excessive force. In the event that this Court determines that the use of force, or any portion

of the use of force, against the Plaintiff was performed at a time was when she was a pretrial

detainee, the Plaintiff pleads excessive force, in the alternative, under the Fourteenth Amendment

of the U.S. Constitution.

22. The Defendant is not entitled to qualified immunity. There are numerous

examples in the case law of the Fourth Circuit establishing that the use of violent physical force

under similar circumstances as occurred here was unreasonable. Plaintiff submits that the use of

force in this case, i.e. the releasing of a K9, is synonymous with the use of force discussed in the

cases below. In Yates v. Terry, 817 F.3d 877 (4th Cir. 2016), the Court described many different

similar examples of unreasonably physical force, establishing that as of 2008 that it was clearly

established that a police officer was not entitled to use unnecessary, gratuitous, or

disproportionate force by repeatedly tasing a nonviolent misdemeanant who presented no threat

to the safety of the officer or the public and who was compliant and not actively resisting arrest

or fleeing. See Meyers v. Baltimore County, 713 F.3d 723, 734–35 ; Jones 325 F.3d at 532–34 ;

Bailey v. Kennedy, 349 F.3d 731, 745 (4th Cir. 2003) ; Rowland, 41 F.3d at 174 ; see also Parker

v. Gerrish, 547 F.3d 1, 9–11 (1st Cir.2008) ; Casey, 509 F.3d at 1282, 1284–86.

5
 Case 5:23-cv-00143-JPB Document 1 Filed 04/14/23 Page 6 of 8 PageID #: 6

23. The Court further noted that, “though our decisions in Meyers, Bailey, and Jones

dealt with individuals who were secured when they were subjected to excessive force, our

precedent nonetheless provided Terry with fair notice that the force he used against Yates under

the facts of this case was unconstitutionally excessive.” Yates v. Terry, 817 F.3d 877 (4th Cir.

2016).

24. As a direct and proximate result of Defendant’s actions set forth above, Plaintiff

suffered harm, including personal injury, extreme emotional distress, severe pain, attorney fees

and expenses, and is entitled to recover for the same.

COUNT 2- MONELL CLAIM / FAILURE TO PROPERLY TRAIN AND/OR SUPERVISE

THE USE OF A K9

25. Plaintiff incorporates by reference all of the allegations contained in the previous

paragraphs.

26. Defendant Marshall County Commission (MCC), a political subdivision of the

State of West Virginia, is constitutionally charged with the responsibility of ensuring proper

training and supervision of officers employed by the Marshall County Sheriff’s Department. This

includes training and supervision regarding the constitutionally proper handling and deployment

of the Department’s K9 Units.

27. Plaintiff submits that Defendant MCC has failed to properly train and supervise

Defendant Johnson in the constitutionally appropriate use of his K9, and this failure to properly

train him directly and proximately resulted in the injuries suffered by Plaintiff for which she is

entitled to recover.

6
 Case 5:23-cv-00143-JPB Document 1 Filed 04/14/23 Page 7 of 8 PageID #: 7

28. Defendant MCC’s said failure to properly train and supervise Defendant

Johnson’s use of his K9 was effected pursuant to the adoption and implementation of an official

policy, custom and practice of unnecessary and excessive use of police K9s, such as occurred in

the subject incident to the Plaintiff.

29. Defendant MCC’s training was inadequate for the tasks performed, in that

the MCC was deliberately indifferent to the fact that its failure to properly train Defendant

Johnson would likely cause violation of the Fourth Amendment by engaging in excessive force

against arrestees, such as occurred to the Plaintiff.

30. Specifically, Defendant Johnson was trained to release his K9 to bite an arrestee,

even where constitutionally impermissible, so long as he gives multiple warnings prior to doing

so. Defendant Johnson released his K9 to locate and attack the Plaintiff under circumstances

where she posed no physical safety threat to any individual, and where she was not actively

resisting or attempting to flee. Moreover, he did so at a time when the Plaintiff was contained

inside her home and surrounded by multiple police officers. In so doing, Defendant Johnson

acted in violation of the Fourth Amendment. In so doing, Defendant Johnson was acting within

the established K9 policies utilized by the MCC, to which he had been trained.

31. MCC’s policy and training of sending a police dog into a home to apprehend a

suspect that had given no indication that she presented a danger to others, and was not actively

resisting but laying on the ground, is unreasonable and excessive under clearly established

federal case law, including within the Fourth Circuit.

7
 Case 5:23-cv-00143-JPB Document 1 Filed 04/14/23 Page 8 of 8 PageID #: 8

PRAYER

WHEREFORE, based on the above stated facts, the Plaintiff respectfully requests that

this Honorable Court award:

1. Damages against the individual Defendants in an amount to be determined at trial

which will fairly and reasonably compensate the Plaintiff for all compensatory damages to be

proven at trial;

2. Punitive damages against the individual Defendants in an amount to be

determined at trial; and

3. Reasonable attorney fees and costs.

PLAINTIFF DEMANDS A TRIAL BY JURY

KANDI WOOD
By Counsel

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