PARKERSBURG - A motion to dismiss was filed in response to a lawsuit filed late in 2012 against former Wood County Sheriff Jeff Sandy.
On Dec. 27, former Wood County sheriff's deputy Jim Asbury filed a lawsuit against Sandy, alleging Sandy promised to fire him in exchange for political support in the 2008 election.
Sandy won the election by defeating incumbent Sheriff Ken Merritt. In the 2012 election, Merrritt defeated Sandy. His last day in office was Dec. 31, 2012.
In the motion to dismiss, Sandy's attorney Robert J. Kent said Asbury cannot claim relief for alleged violation of election statutes. He said Asbury has not presented any details as to how the statutes were violated.
Kent said that left Asbury with a claim of retaliatory discharge.
"While the claim fails under Rule 8 for its lack of any detail on required elements such as work environment, it more importantly leaves the defendant wondering to what alleged pattern of retaliation Asbury refers. In sum West Virginia law gives much leeway to complaints without factual details, but it does require at least some."
Kent said while West Virginia adheres to the liberal "no set of facts" standard regarding the sufficiency of a complaint, it nonetheless requires more than "the bald statement that the plaintiff has a valid claim of some type against the defendant." He said Asbury has baldly accused Sandy of engaging in a "pattern of retaliation.
"Such a claim has no merit and should be dismissed," Kent said.
Kent said Sandy is entitled to immunity in regard to his capacity as sheriff and that he is entitled to immunity from punitive damages.
"For these reasons the allegations, even if true, could never give rise to any form of relief for the plaintiff," Kent stated.
A hearing on the motion has been set for 2 p.m. Feb. 19 before Circuit Court Judge Robert Waters.
In his lawsuit, Asbury stated during the course of his employment he responded to several complaints by neighbors of Leanda Atkinson near Vienna concerning alleged abuse by her boyfriend Matthew Dickel. In the suit he states she refused to cooperate on several occasions and no charges of domestic violence or petitions were filed until her May 2004 death. Thereafter, the family complained of the lack of action on the part of the department in preventing her death, the lawsuit states.
In the suit it is stated that during the 2008 campaign, Sandy allegedly made promises to the Atkinson family that if they would support him the department would "get rid of" Asbury as a law enforcement officer. This information was not provided to Asbury until October 2012, the suit states.
In April 2010 Asbury alleged Sandy began a pattern of retaliation against him and that Sandy told Asbury he could resign or be fired. Under the alleged threats, Asbury resigned, which in reality was a constructive discharge, the suit states.