Greaser et al v. Preston County Board of Education et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GREASER ET AL.,
Plaintiff,
v.
PRESTON COUNTY BOARD OF
EDUCATION ET AL.,
Defendant.
CIVIL ACTION NO. 1:25-CV-112
(KLEEH)
MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN
PART DEFENDANT CASSANDRA SISLER’S MOTION TO DISMISS [ECF NO. 11]
Pending 	before 	the 	court 	is 	Defendant 	Cassandra 	Sisler’s
partial 	motion 	to 	dismiss 	the 	Plaintiffs’ 	Amended 	Complaint
pursuant 	to 	Federal 	Rules 	of 	Civil 	Procedure 	8 	and 	12(b)(6) 	[ECF
No. 11]. For the reasons that follow, Defendant Cassandra Sisler’s
Partial 	Motion 	to 	Dismiss 	[ECF 	No. 	11] 	is 	DENIED 	IN 	PART 	and
GRANTED IN PART.
I. 	INTRODUCTION AND PROCEDURAL BACKGROUND
Plaintiffs 	Trella 	Greaser 	and 	William 	Greaser, 	both
Individually 	and 	as 	Guardian 	and 	Next 	Friend 	of 	U.G., 	a 	minor
(“Plaintiffs”), 	filed 	their 	Complaint 	in 	the 	Circuit 	Court 	of
Preston 	County. 	ECF 	No. 	1. 	Defendants 	Preston 	County 	Board 	of
Education 	(“PCBOE”) 	and 	Cassandra 	Sisler 	(“Ms. 	Sisler”) 	removed
the case to this Court on October 20, 2025. Id.
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Plaintiffs 	filed 	their 	Amended 	Complaint 	on 	November 	20,
2025. ECF No. 8. Plaintiffs allege five causes of action:
 	Count 	I: 	Negligent 	Hiring, 	Retention, 	Training, 	and
Supervision (against PCBOE)
 	Count II: Assault (against Ms. Sisler)
 	Count III: Battery (against Ms. Sisler)
 	Count 	IV: 	Intentional 	Infliction 	of 	Emotional 	Distress
(“IIED”) (against Ms. Sisler)
 	Count 	V: 	Violation 	of 	42 	U.S. 	Code 	§ 	1983 	(against 	all
Defendants)
Ms. 	Sisler 	filed 	the 	subject 	Partial 	Motion 	to 	Dismiss 	the
Amended Complaint on December 4, 2025. ECF No. 5. 1 Ms. Sisler moved
to dismiss three of the four counts alleged against her (Count II,
Count 	III, 	and 	Count 	IV), 	as 	well 	as 	Plaintiffs’ 	request 	for
punitive 	damages 	and 	Plaintiffs 	Trella 	and 	William 	Greaser’s
claims 	for 	filial 	consortium 	and 	emotional 	distress 	damages. 	ECF
No. 11. In response, Plaintiffs ask this Court to deny Ms. Sisler’s
Partial Motion to Dismiss in its entirety. ECF No. 13.
II. 	FACTUAL BACKROUND 2
This case arises out of alleged improper and wrongful conduct
concerning 	a 	teacher 	and 	her 	minor 	student 	in 	October 	of 	2023.
Plaintiffs allege that Ms. Sisler, Plaintiff U.G.’s teacher and an
employee 	of 	Defendant 	PCBOE, 	“used 	duct 	tape 	to 	cover 	Plaintiff
1 The remaining Defendant, PCBOE, filed an Answer to the Amended Complaint
on December 4, 2025. ECF No. 10.
2 The following facts are taken from the Amended Complaint. For purposes
of deciding this motion, the Court assumes well-pled facts are true.
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U.G.’s 	mouth 	and 	bind 	his 	wrists.” 	Amended 	Compl., 	ECF 	No. 	8, 	at
¶ 	7. 	Plaintiffs 	further 	allege 	that 	on 	four 	consecutive 	school
days, Ms. Sisler required Plaintiff U.G. “to perform physical labor
such 	as 	moving 	chairs 	within 	the 	classroom 	while 	bound 	with 	duct
tape” in front of the entire classroom. Id. at ¶¶ 9–13. According
to 	Plaintiffs, 	U.G. 	sustained 	injury 	when 	the 	duct 	tape 	was
removed. 	Id. 	at 	¶ 	12. 	Ms. 	Sisler 	and 	a 	teacher’s 	aide 	were 	the
only two adults that witnessed the alleged conduct. Id.
At some point during those four days, Plaintiff U.G. reported
Ms. 	Sisler’s 	conduct 	to 	the 	school 	principal. 	The 	principal
allegedly 	told 	Plaintiff 	U.G. 	to 	“return 	to 	class,” 	and 	took 	no
further 	action 	regarding 	U.G.’s 	report. 	Id. 	at 	¶ 	13. 	Plaintiffs
Trella Greaser and William Greaser learned of Ms. Sisler’s alleged
conduct and made a report to both the school and the West Virginia
State 	Police. 	Id. 	at 	¶ 	14. 	Ms. 	Sisler’s 	alleged 	conduct 	was 	also
recorded 	by 	another 	student. 	Id. 	In 	its 	policy 	manual, 	PCBOE
prohibits 	certain 	conduct 	by 	teachers 	directed 	towards 	students.
Id. 	at 	¶ 	20 	n.2. 	This 	includes, 	but 	is 	not 	limited 	to, 	the
following:
 	hitting 	or 	striking 	a 	student 	on 	their
physical person;
 	requiring physical activity as a punishment
(this 	does 	not 	apply 	to 	physical 	activity
within 	the 	structure 	and 	context 	of
extracurricular activities);
 	use 	of 	noxious 	stimuli 	(e.g., 	pepper
spray), 	denial 	of 	food 	or 	water, 	or 	other
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negative 	physical 	actions 	to 	control
behavior; and
 	seclusion - a removal in which a student is
left 	unsupervised 	in 	any 	space 	as 	an
intervention 	or 	consequence 	to
inappropriate behavior.
Id.
In 	June 	of 	2024, 	Ms. 	Sisler 	was 	indicted 	for 	four 	counts 	of
“child neglect creating risk of bodily injury,” pursuant to W. Va.
Code 	§ 	61-8D-4(d)(1). 	ECF 	No. 	8, 	at 	¶ 	17. 	Ms. 	Sisler 	later 	pled
guilty to a lesser charge based on the same facts. Id.
Plaintiffs insist that U.G. was not an unruly or “disorderly”
student as defined under W. Va. Code § 18A-5-1(c), id. at ¶ 8, and
that 	Ms. 	Sisler’s 	actions 	constituted 	“physical 	and 	emotional
abuse” because they were “brutal, demeaning, and harmful.” Id. at
¶¶ 	14, 	15. 	The 	extent 	of 	Plaintiffs’ 	claimed 	damages 	include
“emotional distress, medical expenses, loss of enjoyment of life,
pain and suffering, and loss of parental consortium.” Id. at ¶ 16.
III. LEGAL STANDARD
Rule 	12(b)(6) 	allows 	a 	defendant 	to 	move 	for 	dismissal 	upon
the 	ground 	that 	a 	complaint 	does 	not 	“state 	a 	claim 	upon 	which
relief can be granted.” In ruling on a 12(b)(6) motion to dismiss,
a 	court 	“must 	accept 	as 	true 	all 	of 	the 	factual 	allegations
contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d
181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,
94 	(2007)). 	A 	court 	is 	“not 	bound 	to 	accept 	as 	true 	a 	legal
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conclusion 	couched 	as 	a 	factual 	allegation.” 	Papasan 	v. 	Allain,
478 U.S. 265, 286 (1986).
A 	court 	should 	dismiss 	a 	complaint 	if 	it 	does 	not 	contain
“enough facts to state a claim to relief that is plausible on its
face.” 	Bell 	Atlantic 	Corp. 	v. 	Twombly, 	550 	U.S. 	544, 	570 	(2007).
Plausibility 	exists 	“when 	the 	plaintiff 	pleads 	factual 	content
that 	allows 	the 	court 	to 	draw 	the 	reasonable 	inference 	that 	the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 	U.S. 	662, 	678 	(2009). 	A 	motion 	to 	dismiss 	“does 	not 	resolve
contests 	surrounding 	the 	facts, 	the 	merits 	of 	a 	claim, 	or 	the
applicability 	of 	defenses.” 	Republican 	Party 	of 	N.C. 	v. 	Martin,
980 F.2d 942, 952 (4th Cir. 1992). 	Dismissal is appropriate only
if 	“it 	appears 	to 	be 	a 	certainty 	that 	the 	plaintiff 	would 	be
entitled 	to 	no 	relief 	under 	any 	state 	of 	facts 	which 	could 	be
proven in support of its claim.” Johnson v. Mueller, 415 F.2d 354,
355 (4th Cir. 1969).
IV. 	DISCUSSION
For the reasons discussed below, the Court DENIES IN PART and
GRANTS IN PART the partial motion to dismiss. It DENIES the motion
as to Count II: Assault and Count III: Battery as they pertain to
Ms. Sisler, as well as DENIES the motion to dismiss as to punitive
damages 	and 	emotional 	distress 	damages 	for 	Plaintiff 	U.G. 	only.
The Court GRANTS the motion as to Count IV: IIED as it pertains to
Ms. 	Sisler, 	as 	well 	as 	GRANTS 	the 	motion 	to 	dismiss 	as 	to 	Trella
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and William Greaser’s claims for filial consortium. To the extent,
Plaintiffs William and Trella Greaser’s claims are all derivative
of 	the 	filial 	consortium 	claim, 	they 	are 	hereby 	DISMISSED 	as
plaintiffs in their individual capacity.
A. The 	Court 	DENIES 	the 	motion 	to 	dismiss 	the 	assault 	and
battery 	claims 	because 	Plaintiffs 	sufficiently 	pled 	the
elements 	of 	these 	claims, 	Ms. 	Sisler’s 	conduct 	was 	not
privileged, and Ms. Sisler is not immune from liability.
Plaintiffs have sufficiently alleged actions for assault and
battery. 	First, 	Plaintiffs 	provided 	enough 	detail 	and 	factual
allegations 	to 	support 	their 	claims 	for 	Ms. 	Sisler’s 	tortious
conduct. 	Second, 	while 	governmental 	entities 	and 	their 	employees
enjoy 	statutory 	immunity, 	Ms. 	Sisler’s 	alleged 	malicious, 	bad
faith, 	or 	wanton 	and 	reckless 	conduct 	disqualifies 	her 	from
statutory immunity. Finally, Ms. Sisler’s alleged conduct exceeds
her privilege to use reasonable force against students.
1. Plaintiffs’ 	allegations 	of 	assault 	and 	battery
contain enough specific, factual support to survive a
motion to dismiss.
In 	West 	Virginia, 	a 	person 	is 	liable 	for 	assault 	if 	(1) 	“he
acts 	intending 	to 	cause 	a 	harmful 	or 	offensive 	contact 	with 	the
person of the other or a third person, or an imminent apprehension
of 	such 	a 	contact,” 	and 	(2) 	“the 	other 	is 	thereby 	put 	in 	such
imminent 	apprehension.” 	W. 	Va. 	Fire 	& 	Cas. 	Co. 	v. 	Stanley, 	602
S.E.2d 	483, 	495 	(W. 	Va. 	2004). 	“If 	the 	plaintiff 	never 	perceived
the 	harmful 	or 	offensive 	contact 	before 	it 	happened, 	no 	assault
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occurred.” 	Crawford 	v. 	Daniels, 	No. 	2:23-cv-00585, 	2024 	WL
1895105, at *7 (S.D. W. Va. Apr. 30, 2024) (citation omitted).
A 	person 	is 	liable 	for 	battery 	if 	(1) 	“he 	acts 	intending 	to
cause a harmful or offensive contact with the person of the other
or a third person, or an imminent apprehension of such a contact,”
and 	(2) 	“a 	harmful 	contact 	with 	the 	person 	of 	the 	other 	directly
or indirectly results.” Stanley, 602 S.E.2d at 494.
When 	“evaluating 	a 	Rule 	12(b)(6) 	motion 	to 	dismiss, 	a 	court
accepts 	all 	well-pled 	facts 	as 	true 	and 	construes 	these 	facts 	in
the light most favorable to the plaintiff . . . .” Nemet Chevrolet,
Ltd. 	v. 	Consumeraffairs.com, 	Inc., 	591 	F.3d 	250, 	255 	(4th 	Cir.
2009). 	Courts 	in 	this 	District 	have 	held 	that 	battery 	is
sufficiently pled when the complaint alleges specific actions that
were 	intended 	to 	cause 	and 	did 	cause 	harmful 	contact. 	See, 	e.g.,
Conklin 	v. 	Jefferson 	Cnty. 	Bd. 	of 	Educ., 	205 	F.Supp.3d 	797, 	819
(N.D.W. Va. 2016) (finding allegations of “choking and pushing the
plaintiff 	against 	a 	bookcase” 	to 	be 	sufficient 	for 	pleading 	a
battery); Leonard v. Starkey, No. 1:14-cv-42, 2015 WL 8474533, at
*11 	(N.D.W. 	Va. 	Dec. 	8, 	2015) 	(finding 	that 	battery 	was
sufficiently pled where the complaint alleged defendants “forcibly
pulled [plaintiff] outside, handcuffed him, and choked him”).
Ms. 	Sisler 	argues 	that 	Plaintiffs 	failed 	“to 	plead 	the
essential 	factual 	elements 	underlying” 	the 	assault 	and 	battery
claims. 	ECF 	No. 	11. 	Specifically, 	she 	disputes 	the 	existence 	of
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the 	intent 	element 	of 	Plaintiffs’ 	tort 	claims. 	ECF 	No. 	11-1. 	In
response, 	Plaintiffs 	insist 	that 	Ms. 	Sisler’s 	“affirmative 	and
intentional 	conduct 	satisfies 	the 	elements 	of 	both 	assault 	and
battery.” 	ECF 	No. 	13. 	ECF 	No. 	13. 	According 	to 	Plaintiffs, 	the
intent 	element 	was 	demonstrated 	by 	Ms. 	Sisler’s 	repeated 	conduct
“on at least four separate occasions.” Id.
Here, 	the 	Court 	agrees 	with 	Plaintiffs. 	When 	viewed 	in 	the
light 	most 	favorable 	to 	Plaintiffs, 	the 	facts 	alleged 	in 	the
Amended Complaint are sufficiently specific. Plaintiffs alleged -
on 	particular 	dates 	- 	that 	Ms. 	Sisler 	used 	duct 	tape 	to 	cover
U.G.’s mouth, forced him to move chairs within the classroom, and
caused injury to him when the duct tape was removed. ECF No. 8. In
doing 	so, 	Plaintiffs 	sufficiently 	alleged 	a 	claim 	for 	battery
against Ms. Sisler.
By pleading that Ms. Sisler used duct tape to cover Plaintiff
U.G.’s 	wrists 	and 	mouth, 	see 	Amended 	Compl. 	¶¶ 	9-12, Plaintiffs
sufficiently 	alleged 	her 	intent 	to 	cause 	a 	harmful 	or 	offensive
contact. 	Furthermore, 	the 	alleged 	conduct 	occurred 	over 	a 	period
of four days, which bolsters Ms. Sisler’s intentions. The resulting
alleged contact was both harmful, in that it caused physical injury
to 	Plaintiff 	U.G., 	and 	offensive, 	because 	“[t]hese 	actions
occurred in view of the entire classroom.” Id. Like the plaintiffs
in 	Conklin 	and 	Leonard 	whose 	allegations 	of 	“choking 	and 	pushing
. . . against a bookcase” and “forcibly pull[ing], handcuff[ing],
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and chok[ing]” were sufficient to plead battery, here Plaintiffs’
allegations of “us[ing] duct tape to cover Plaintiff U.G.’s mouth
and bind his wrists . . . [and] forc[ing] Plaintiff U.G. to perform
physical labor . . . while bound with duct tape” is specific enough
to state a cause of action for battery.
The 	same 	is 	true 	for 	Plaintiffs’ 	assault 	claim. 	Plaintiffs
alleged that Ms. Sisler “placed the victim, Plaintiff U.G., in the
reasonable 	apprehension 	of 	imminent 	harmful 	contact 	by
threatening, preparing, and applying unlawful corporal punishment”
in 	the 	form 	of 	the 	duct 	taping 	and 	physical 	labor. 	ECF 	No. 	8, 	at
¶ 37. As discussed above, Ms. Sisler intended to cause the contact.
Thus, 	the 	factual 	allegations 	were 	specific 	enough 	to 	allege 	an
assault.
2. Ms. 	Sisler 	has 	no 	statutory 	immunity 	under 	the 	West
Virginia 	Governmental 	Tort 	Claims 	and 	Insurance
Reform 	Act 	because 	her 	conduct 	falls 	into 	at 	least
one of the exceptions to immunity.
Ms. 	Sisler 	argues 	that 	even 	if 	she 	had 	engaged 	in 	tortious
conduct, 	she 	is 	immune 	under 	the 	West 	Virginia 	Governmental 	Tort
Claims and Insurance Reform Act (the “Act”). However, this argument
fails because Ms. Sisler’s alleged conduct falls into at least one
of the three exceptions for statutory immunity.
“[I]n resolving a motion to dismiss, the court is limited to
the well-pleaded allegations of the complaint itself . . . .” Folse
v. Huntington, No. 3:22-cv-00415, 2023 WL 6566575, at *2 (S.D. W.
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Va. 	Mar. 	8, 	2023)(citing 	Goines 	v. 	Valley 	Cmty. 	Servs. 	Bd., 	822
F.3d 159, 165-66 (4th Cir. 2016)). “[W]hen a civil claim implicates
statutory immunity, the court must insist on a heightened pleading
standard.” Monongalia Cnty. Comm’n v. Stewart, 914 S.E.2d 677, 692
(W. 	Va. 	2024). 	An 	employee 	of 	a 	political 	subdivision 	is 	immune
from liability unless one of the following applies:
(1) 	His 	or 	her 	acts 	or 	omissions 	were
manifestly outside the scope of employment or
official responsibilities;
(2) 	His 	or 	her 	acts 	or 	omissions 	were 	with
malicious 	purpose, 	in 	bad 	faith, 	or 	in 	a
wanton or reckless manner; or
(3) 	Liability 	is 	expressly 	imposed 	upon 	the
employee by a provision of this code.
W. Va. Code § 29-12A-5(b)(1)–(3). The Supreme Court of Appeals of
West 	Virginia 	has 	held 	that 	in 	the 	context 	of 	this 	statute, 	the
terms “willful,” “wanton,” and “reckless” mean that:
the actor has intentionally done an act of an
unreasonable character in disregard of a risk
known 	to 	him 	or 	so 	obvious 	that 	he 	must 	be
taken 	to 	have 	been 	aware 	of 	it, 	and 	so 	great
as to make it highly probable that harm would
follow. 	It 	usually 	is 	accompanied 	by 	a
conscious 	indifference 	to 	the 	consequences,
amounting 	almost 	to 	willingness 	that 	they
shall 	follow; 	and 	it 	has 	been 	said 	that 	this
is indispensable.
Holsten v. Massey, 490 S.E.2d 864, 877 (W. Va. 1997).
To 	meet 	this 	standard, 	Plaintiffs 	must 	“[show] 	by 	specific
allegations that the immunity does not apply.” Stewart, 914 S.E.2d
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at 692. The court will consider “whether the facts alleged in [the]
complaint, and the inferences arising from them, when viewed most
favorably 	to 	[Plaintiffs], 	convey 	that 	[Defendant]’s 	‘acts 	or
omissions were with malicious purpose, in bad faith, or in a wanton
or reckless manner.’” Id. (emphasis added). These allegations must
be “sufficiently specific to communicate” Plaintiffs’ claims. Id.
at 	693. 	However, 	the 	Federal 	Rules 	of 	Civil 	Procedure 	permit
“[m]alice, 	intent, 	knowledge 	and 	other 	conditions 	of 	a 	person’s
mind 	[to] 	be 	alleged 	generally.” 	Fed. 	R. 	Civ. 	P. 	9(b); 	but 	see
Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d
369, 377 (4th Cir. 2012) (“G]enerally’ is a relative term. Rule 9
merely 	excuses 	a 	party 	from 	pleading 	discriminatory 	intent 	under
an 	elevated 	pleading 	standard. 	It 	does 	not 	give 	him 	license 	to
evade the less rigid — though still operative — strictures of Rule
8.”).
Ms. 	Sisler 	first 	argues 	that 	as 	an 	employee 	of 	a 	political
subdivision, 	she 	is 	immune 	from 	liability, 	and 	none 	of 	the
statutory 	exceptions 	apply. 	ECF 	No. 	11-1. 	In 	fact, 	Ms. 	Sisler
claims “there is no reason to conclude that [she] is not entitled
to 	immunity 	. 	. 	. 	.” 	Id. 	Second, 	by 	failing 	to 	state 	that 	Ms.
Sisler’s 	conduct 	was 	manifestly 	outside 	of 	the 	scope 	of 	her
employment, Ms. Sisler argues, Plaintiffs have ignored the precise
language 	of 	the 	statute. 	ECF 	No. 	14. 	Finally, 	Ms. 	Sisler 	rejects
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Plaintiffs allegations as legal conclusions that are insufficient
to overcome a Rule 12(b)(6) motion. Id.
In contrast, Plaintiffs argue, pursuant to W. Va. Code § 29-
12A-5(b)(1)–(3), 	that 	Ms. 	Sisler 	is 	not 	immune 	from 	liability
because 	(1) 	Ms. 	Sisler 	exceeded 	the 	scope 	of 	her 	employment; 	(2)
Ms. 	Sisler 	acted 	maliciously, 	or 	alternatively, 	in 	a 	wanton 	and
reckless 	manner; 	and 	(3) 	liability 	is 	expressly 	imposed 	upon 	Ms.
Sisler 	by 	W. 	Va. 	Code 	§ 	18A-5-1(f), 	which 	prohibits 	corporal
punishment of any student by a teacher. ECF No. 8.
Here, 	the 	Court 	agrees 	with 	Plaintiffs 	that 	Ms. 	Sisler’s
alleged 	conduct 	falls 	into 	all 	of 	the 	exceptions 	outlined 	in 	W.
Va. 	Code 	§ 	29-12A-5(b). 	First, 	as 	discussed 	supra, 	Ms. 	Sisler’s
alleged 	conduct 	falls 	well 	outside 	the 	scope 	of 	reasonable
discipline.
Second, Ms. Sisler’s alleged actions would constitute malice
because 	she 	intended 	to 	bind 	and 	restrain 	Plaintiff 	U.G. 	without
regard 	for 	the 	risk 	of 	injury. 	Forcing 	a 	student 	to 	perform
physical 	labor 	while 	bound 	at 	the 	mouth 	and 	wrists 	creates 	an
exceptional risk of harm. Ms. Sisler argues that Plaintiffs “merely
restate and reemphasize their bare legal assertions.” ECF No. 14.
However, 	because 	inferences 	are 	made 	in 	favor 	of 	Plaintiffs 	and
Plaintiffs 	have 	properly 	pled 	a 	cause 	of 	action 	for 	assault 	and
battery, 	Ms. 	Sisler’s 	argument 	fails. 	Further, 	malicious 	intent
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may 	be 	alleged 	generally, 	thereby 	making 	Plaintiffs’ 	allegations
sufficient to survive a motion to dismiss.
Third, perhaps the most applicable exception to Ms. Sisler’s
conduct 	is 	W. 	Va. 	Code 	§ 	29-12A-5(b)(3), 	which 	imposes 	liability
upon 	the 	tortfeasor 	through 	W. 	Va. 	Code 	§ 	18A-5-1(f), 	which
expressly prohibits corporal punishment of any student by a school
employee. 	There 	is 	little 	doubt 	that 	the 	conduct 	alleged 	in 	the
Complaint 	– 	forcible 	binding 	of 	a 	student’s 	mouth 	and 	wrists 	and
mandatory performance of physical labor while bound - falls within
the realm of corporal punishment. See Smith v. W. Va. State Bd. of
Educ., 295 S.E.2d 680, 687 (W. Va. 1982).
3. Ms. 	Sisler’s 	conduct 	was 	not 	privileged 	because 	the
alleged act of restraining a student is excessive and
unreasonable.
Lastly, Ms. Sisler argues that public school teachers in West
Virginia 	possess 	a 	certain 	privilege 	to 	use 	reasonable 	force
against 	disruptive 	students. 	While 	this 	is 	true, 	Ms. 	Sisler’s
alleged 	forcible 	use 	of 	restraints 	on 	Plaintiff 	U.G., 	if 	true,
qualifies as excessive and unreasonable.
An activity which would normally subject a person to liability
for 	assault 	or 	battery 	may 	not 	constitute 	a 	tort 	if 	the 	actor 	is
privileged 	to 	engage 	in 	the 	conduct. 	Miller 	v. 	Rubenstein, 	No.
2:16-cv-05637, 	2018 	WL 	736044, 	at 	*16 	(S.D.W. 	Va. 	Feb. 	6, 	2018).
As 	Ms. 	Sisler 	correctly 	suggests, 	teachers 	carry 	a 	privilege 	to
use 	“such 	force 	as 	[the] 	teacher 	or 	administrator 	‘reasonably
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believes to be necessary for the child’s proper control, training,
or 	education.’” 	Ingraham 	v. 	Wright, 	430 	U.S. 	651, 	661 	(1977)
(emphasis added).
However, 	West 	Virginia 	law 	prohibits 	“[c]orporal 	punishment
of 	any 	student 	by 	a 	school 	employee.” 	W. 	Va. 	Code 	§ 	18A-5-1(f).
Teachers who use “excessive or unreasonable” force to punish their
students 	waive 	their 	privilege 	and 	will 	be 	subject 	to 	civil
liability. 	Ingraham, 	430 	U.S. 	at 	661. 	For 	instance, 	the 	use 	of
restraints 	on 	a 	student, 	even 	by 	a 	police 	officer, 	“is 	not
reasonably 	expected 	in 	the 	school 	context 	because 	it 	is
counterproductive to the mission of schools and school personnel.”
E.W. 	v. 	Dolgos, 	884 	F.3d 	172, 	184 	(4th 	Cir. 	2018). 	“[T]he 	school
setting 	— 	especially 	an 	elementary 	school 	— 	weighs 	against 	the
reasonableness 	of 	using 	handcuffs.” 	Id. 	Lastly, 	if 	“defendants
have done little to shed any light on” their alleged use of force,
the 	reasonableness 	of 	defendant’s 	actions 	should 	be 	brought 	into
question. Leonard, 2015 WL 8474533, at *11.
Here, 	Ms. 	Sisler 	argues 	that 	“[p]ublic 	school 	teachers 	in
West 	Virginia 	are 	entitled 	to 	impose 	appropriate 	discipline,
including physical responses to disruptive students.” ECF No. 11-
1. 	Ms. 	Sisler 	acknowledges 	that 	these 	physical 	responses 	may 	not
be “excessive or unreasonable,” but she does not attempt to argue
that her conduct was reasonable. Id.
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Plaintiffs 	allege 	that 	Ms. 	Sisler’s 	conduct 	was 	both
intentional and unprivileged. ECF No. 13. Specifically, Plaintiffs
state 	that 	Ms. 	Sisler’s 	conduct 	was 	not 	intended 	to 	impose
“reasonable discipline.” Id.
The 	Court 	agrees 	with 	Plaintiffs 	and 	DENIES 	the 	motion 	to
dismiss as it pertains to assault and battery. First, Ms. Sisler’s
alleged act of binding Plaintiff U.G.’s mouth and wrists, if true,
would be excessive and unreasonable.
Second, 	Ms. 	Sisler 	has 	failed 	to 	shed 	any 	light 	on 	whether
U.G. 	was 	an 	unruly 	or 	“disorderly” 	student. 	Aside 	from 	merely
denying 	the 	allegation 	that 	U.G. 	was 	not 	unruly, 	Ms. 	Sisler 	does
not address any mitigating characteristics of U.G. or his behavior
to 	justify 	Ms. 	Sisler’s 	use 	of 	any 	force. 	Instead, 	Ms. 	Sisler
merely argues she had a privilege to use force and is “absolutely
immune” from tortious claims. ECF No. 14. As discussed supra, this
argument fails at this stage of litigation.
B. The Court GRANTS the motion as to Count IV (IIED) because
state law prevents Plaintiffs from recovery.
“Because an action for assault and battery allows for recovery
of 	damages 	due 	to 	resulting 	emotional 	distress, 	a 	claim 	for 	the
tort 	of 	outrageous 	conduct 	is 	duplicitous 	of 	a 	claim 	for 	assault
and battery where both claims arise from the same event.” Criss v.
Criss, 356 S.E.2d 620 Syl. Pt. 4 (W. Va. 1987).
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Ms. 	Sisler 	argues 	that 	Plaintiffs’ 	claim 	for 	IIED 	is 	a
conclusory 	legal 	allegation. 	ECF 	No. 	11-1. 	Most 	notably, 	though,
Ms. 	Sisler 	notes 	that 	“West 	Virginia 	law 	prohibits 	the 	assertion
of 	both 	civil 	battery 	and 	outrage 	claims 	for 	the 	same 	conduct.”
Id. 	Plaintiffs 	argue 	that 	neither 	the 	Federal 	Rules 	of 	Civil
Procedure nor the Criss decision prevent the alternative pleading
of both claims. ECF No. 13. Plaintiffs acknowledge, however, that
their 	claims 	for 	the 	two 	torts 	arise 	from 	the 	same 	set 	of 	facts.
Id.
Here, Plaintiffs allege IIED, as well as assault and battery,
under 	the 	same 	set 	of 	facts. 	Plaintiff 	cites 	no 	additional
authority recognizing the ability for both tort claims to survive
a motion to dismiss. Because West Virginia law prevents this double
recovery, 	the 	Court 	GRANTS 	Ms. 	Sisler’s 	motion 	to 	dismiss 	as 	to
Count IV.
C. The 	Court 	DENIES 	the 	motion 	as 	it 	pertains 	to 	punitive
damages 	because 	Plaintiffs 	have 	adequately 	pled 	their
claims for such relief.
West Virginia law allows for an award of punitive damages:
against a defendant if a plaintiff establishes
by 	clear 	and 	convincing 	evidence 	that 	the
damages 	suffered 	were 	the 	result 	of 	the
conduct that was carried out by the defendant
with 	actual 	malice 	toward 	the 	plaintiff 	or 	a
conscious, 	reckless 	and 	outrageous
indifference to the health, safety and welfare
of others.
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W. Va. Code § 55-7-29. “Given that it cannot be determined at [the
motion 	to 	dismiss] 	stage 	whether 	punitive 	damages 	are 	justified,
the 	Court 	[should] 	look 	at 	only 	whether 	the 	plaintiffs 	have
adequately pled their claims such that there are plausible grounds
for 	relief 	under 	West 	Virginia 	law. 	Frye 	v. 	Marshall 	Cnty. 	Coal
Co., 	No. 	5:17CV88, 	2017 	WL 	3326762, 	at 	*2 	(N.D.W. 	Va. 	Aug. 	3,
2017).
Ms. 	Sisler 	argues 	that 	the 	immunity 	afforded 	to 	her 	by 	the
Act 	prevents 	an 	award 	of 	punitive 	damages. 	ECF 	No. 	11-1. 	Even 	if
she were given no immunity, Ms. Sisler continues, “Plaintiffs have
utterly 	failed 	to 	make 	any 	factual 	allegations 	from 	which 	motive
or 	intent 	could 	be 	adduced.” 	Id. 	In 	contrast, 	Plaintiffs 	respond
that 	because 	Ms. 	Sisler 	is 	sued 	in 	her 	individual 	capacity, 	the
Act’s bar on punitive damages does not apply. ECF No. 13. Further,
Plaintiffs 	argue 	that 	the 	complaint 	need 	only 	“give 	rise 	to 	a
plausible 	claim 	for 	punitive 	damages 	relief.” 	Id. 	(quoting
Kuykendall v. Miller Transporting, Inc., No. 1:19-cv-137, 2020 WL
1430469, at *5-6 (N.D.W. Va. Mar. 23, 2020)).
Here, 	understanding 	that 	discovery 	will 	be 	required 	to
determine 	whether 	punitive 	damages 	are 	appropriate 	in 	this 	case,
the Court finds that, taking the complaint as a whole, Plaintiffs
adequately 	pleaded 	plausible 	grounds 	for 	punitive 	damages 	under
West Virginia law and DENIES Ms. Sisler’s motion to dismiss as it
pertains to Plaintiffs’ claim for punitive damages.
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D. 	The 	Court 	GRANTS 	the 	motion 	as 	it 	pertains 	to 	Plaintiffs
Trella 	and 	William 	Greaser’s 	claims 	for 	filial 	consortium
and emotional distress.
West 	Virginia 	limits 	a 	parent’s 	recovery 	for 	loss 	of 	filial
consortium 	to 	“the 	value 	of 	services 	which 	the 	child 	is 	disabled
in 	performing 	during 	its 	minority.” 	G.B. 	v. 	Wood 	Cnty. 	Bd. 	of
Educ., No. 	2:24-cv-00220, 	2025 	WL 	898075, 	at 	*7 	(S.D.W. 	Va. 	Mar.
24, 2025) (quoting Restatement (First) of Torts § 703 (1938)). The
rationale 	is 	“parents 	were 	not 	understood 	to 	depend 	on 	the 	love
and 	companionship 	of 	their 	children 	in 	the 	same 	manner 	in 	which
children would depend upon parents.” Losh v. Teton Transp., Inc.,
No. 3:09-1495, 2010 WL 5343216, at *2 (S.D.W. Va. Dec. 21, 2010).
West 	Virginia 	has 	refused 	to 	“recogniz[e] 	filial 	consortium
claims 	for 	loss 	of 	society 	and 	companionship.” 	Id. 	at 	*8. 	As 	the
Southern 	District 	of 	West 	Virginia 	identified 	last 	year, 	“in 	the
[15] 	years 	since 	Losh 	first 	announced 	this 	‘matter 	of 	first
impression 	in 	West 	Virginia,’ 	neither 	the 	West 	Virginia
Legislature 	nor 	the 	Supreme 	Court 	of 	Appeals 	has 	recognized 	the
right of parents to recover non-economic damages for loss of filial
consortium.” 	G.B., 	2025 	WL 	898075, 	at 	*8 	(quoting 	Losh, 	2010 	WL
5343216, at *3). This Court additionally declines to do so.
Plaintiffs 	William 	and 	Trella 	Greaser 	insist 	that 	West
Virginia law recognizes damages for filial consortium in the form
of “loss of services and earnings . . . for the child’s injuries.”
State ex rel. Packard v. Perry, 655 S.E.2d 548, 556 (W. Va. 2007).
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However, Ms. Sisler correctly noted that in the Amended Complaint,
Plaintiffs 	William 	and 	Trella 	Greaser 	explicitly 	request 	damages
for 	losing 	“the 	consortium, 	society, 	companionship, 	affection,
support, 	and 	services 	of 	[their] 	son.” 	ECF 	No. 	8, 	at 	¶¶ 	91–92.
This is the exact relief that courts in West Virginia continuously
refuse to award.
Finally, 	Plaintiffs 	William 	and 	Trella 	Greaser’s 	claimed
“emotional 	distress” 	is 	derivative 	of 	their 	filial 	consortium
claim. 	See 	ECF 	No. 	8, 	at 	¶¶ 	91–92 	(“[Plaintiffs 	have] 	lost 	the
consortium . . . of [their] son, Plaintiff U.G., causing [them] to
experience 	severe 	and 	lasting 	mental 	and 	emotional 	distress.”)
(emphasis added). Because their filial consortium claim fails, so
too must any claim for emotional distress damages. Thus, the Court
GRANTS the motion as it pertains to Plaintiffs Trella and William
Greaser’s 	claims 	for 	loss 	of 	filial 	consortium 	and 	emotional
distress.
E. The 	Court 	DENIES 	the 	motion 	as 	it 	pertains 	to 	Plaintiff
U.G.’s claim for emotional distress.
Plaintiff 	U.G. 	claims 	damages 	for 	“emotional 	distress,
medical 	expenses, 	loss 	of 	enjoyment 	of 	life, 	pain 	and 	suffering,
and 	loss 	of 	parental 	consortium.” 	ECF 	No. 	8, 	at 	¶ 	16. 	Plaintiff
U.G. alleges they experienced emotional distress as a consequence
to the alleged assault and battery by Ms. Sisler. These requested
damages 	are 	separate 	and 	distinct 	from 	Plaintiffs’ 	failed 	IIED
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claim. Accordingly, Plaintiff U.G. has adequately pled damages for
emotional distress at this stage in the litigation. Thus, the Court
DENIES 	the 	motion 	as 	it 	pertains 	to 	Plaintiff 	U.G.’s 	claim 	for
emotional distress damages.
V. 	CONCLUSION
For 	the 	reasons 	discussed 	herein, 	the 	Court 	DENIES 	Ms.
Sisler’s partial motion to dismiss [ECF No. 11] as to Plaintiffs’
claims for assault (Count II) and battery (Count III), as well as
DENIES the motion to dismiss as to punitive damages and emotional
distress damages for Plaintiff U.G. The Court GRANTS Ms. Sisler’s
partial motion to dismiss [ECF No. 11] as to Plaintiffs’ claim for
IIED 	(Count 	IV), 	as 	well 	as 	GRANTS 	the 	motion 	to 	dismiss 	as 	to
Plaintiffs William and Trella Greaser’s loss of consortium. To the
extent, 	Plaintiffs 	William 	and 	Trella 	Greaser’s 	claims 	are 	all
derivative 	of 	the 	filial 	consortium 	claim, 	they 	are 	hereby
DISMISSED as plaintiffs in their individual capacity.
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion and Order to counsel of record.
DATED: September 25, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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