Brandon Pegg v. Grant Herrnberger

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cv-00116-JPB. [999997475]. [15-1999]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1999

BRANDON PEGG,
Plaintiff - Appellee,
v.
GRANT HERRNBERGER, individually and in his capacity as agent
and employee of the West Virginia State Police,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
John Preston Bailey,
District Judge. (5:14-cv-00116-JPB)

Argued:

October 27, 2016

Decided:

January 4, 2017

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Reversed and remanded with instructions by published opinion.
Judge Agee wrote the opinion, in which Judge Niemeyer and Judge
King joined.

ARGUED: Monte Lee Williams, STEPTOE & JOHNSON PLLC, Morgantown,
West Virginia, for Appellant. Robert G. McCoid, MCCAMIC, SACCO
& MCCOID, P.L.L.C., Wheeling, West Virginia, for Appellee.
ON
BRIEF: Deva A. Solomon, Robert L. Bailey, STEPTOE & JOHNSON
PLLC, Morgantown, West Virginia, for Appellant. Paul J. Harris,
HARRIS LAW OFFICES, Wheeling, West Virginia, for Appellee.

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AGEE, Circuit Judge:
Brandon

Pegg

sued

West

Virginia

State

Trooper

Grant

Herrnberger, alleging that Herrnberger used excessive force in
effectuating
federal law.

the

arrest

of

Pegg,

in

violation

of

state

and

Herrnberger appeals the district court’s denial of

his motion for summary judgment based upon that court’s holding
Herrnberger was not, as a matter of law, entitled to qualified
immunity.

For the reasons that follow, we reverse the district

court’s order denying Herrnberger’s motion for summary judgment
and

remand

with

instructions

to

enter

judgment

in

favor

of

Herrnberger.

I. Factual Background
On August 4, 2013, Herrnberger and another trooper, William
Beck, were examining an abandoned vehicle on the side of the
road when Brandon Pegg drove by slowly in his truck with the
driver’s side window open.

Herrnberger noticed the truck had an

expired inspection sticker and called out to Pegg to stop the
vehicle.

Pegg did not stop and sped away.

The troopers then

left in pursuit of Pegg’s truck and eventually pulled him over.
Beck

approached

the

driver’s

side

of

Pegg’s

vehicle

to

speak with Pegg while Herrnberger approached the passenger side
to

speak

with

the

front

passenger,

2

Robert

Beever.

When

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Herrnberger asked to see Beever’s identification, Pegg asked why
Beever needed to produce identification.
Herrnberger contends that Pegg then reached for something
between his legs, a claim Pegg denies.

Herrnberger asserts that

Pegg’s reaching motion appeared suspicious, so he approached the
driver’s door and ordered Pegg out of his truck.
and

followed

Herrnberger

Herrnberger

then

instructed

to

the

Pegg

rear
face

to

of
the

Pegg complied
Pegg’s
truck,

hands behind his back, and lock his hands together.
turned

to

face

the

truck,

Herrnberger

truck.
put

his

Before Pegg

demonstrated

how

Pegg

should lock his hands together.
Pegg placed his left hand at the small of his back and
began

to

bring

his

right

arm

behind

interlock his hands as instructed.
right arm.

his

back,

but

did

not

Herrnberger grabbed Pegg’s

Pegg then turned and said “Why is this happening or

something along those lines” to Herrnberger and pulled his right
arm away from the trooper.

J.A. 46.

Herrnberger then pushed

Pegg against the truck with his left arm, and attempted to pull
Pegg’s right arm back, which Pegg resisted.

Herrnberger then

took Pegg to the ground, and both troopers pinned Pegg there and
handcuffed him in an event that took less than forty seconds
before Pegg was helped to his feet.
suffered

minor

scrapes

and

As a result, Pegg claims he

abrasions

3

on

his

head,

which

he

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treated with peroxide and Neosporin, but did not seek medical
attention.
The troopers arrested Pegg for assaulting a police officer
(W. Va. Code § 61-2-10b(e)), obstructing an officer (W. Va. Code
§ 61-5-17(a)), and driving with an expired inspection sticker
(W. Va. Code § 17C-16-9).
released.

Pegg was jailed for 8–12 hours before

A magistrate judge dismissed the assault charge for

lack of probable cause, and the prosecuting attorney dismissed
the rest of the charges for reasons not apparent on the record.
Pegg then filed a complaint in the U.S. District Court for
the

Northern

District

of

West

Virginia

against

Herrnberger,

individually and in his official capacity pursuant to 42 U.S.C.
§

1983.

arrest,

The

complaint

retaliatory

alleged

arrest,

and

federal
excessive

claims

of

force,

unlawful

and

state

claims of outrage/intentional infliction of emotional distress
and battery.

Herrnberger filed a motion for summary judgment,

arguing that the suit was barred against him in his official
capacity

based

on

sovereign

immunity

and

in

his

individual

capacity because of qualified immunity.
The district court granted Herrnberger’s motion for summary
judgment in part and denied it in part.

All claims against

Herrnberger in his official capacity were dismissed as barred by
sovereign

immunity.

Pegg

does

4

not

challenge

the

district

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court’s

ruling

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as

to

the

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official

capacity

claims. 1

The

district court denied summary judgment for the claims against
Herrnberger

in

his

individual

capacity,

ruling

he

was

not

entitled to qualified immunity.
Herrnberger filed a timely appeal, and we have jurisdiction
of the appeal under 28 U.S.C. § 1291. See Am. Civil Liberties
Union, Inc. v. Wicomico Cty., 999 F.2d 780, 784 (4th Cir. 1993)
(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)) (stating
questions of law surrounding qualified immunity are appealable
as final decisions within the meaning of § 1291).

II.

Analysis

“We review de novo a district court’s denial of summary
judgment and qualified immunity, construing all facts in the
light most favorable to the nonmovant.”
F.3d 442, 445 (4th Cir. 2008).

Orem v. Rephann, 523

Thus, for purposes of our review

here, we construe all facts in the light most favorable to Pegg
as non-moving party.

For issues concerning qualified immunity,

we have jurisdiction to consider purely legal questions, but not
over

the

district

court’s

“determination

that

the

summary

judgment record in this case raised a genuine issue of fact”
1

A fifth claim, for false imprisonment, was dismissed as
barred by the statute of limitations and is also not at issue on
appeal.

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because that is not a final decision for purposes of 28 U.S.C. §
1291.

Johnson v. Jones, 515 U.S. 304, 313 (1995). 2

Put another

way, “we possess no jurisdiction over a claim that a plaintiff
has not presented enough evidence to prove that the plaintiff’s
version

of

the

events

actually

occurred,

but

we

have

jurisdiction over a claim that there was no violation of clearly
established law accepting the facts as the district court viewed
them.”

Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997).

Consequently,

we

accept

the

facts

as

the

district

court

articulated them when it determined whether summary judgment was
appropriate,

and

then

we

determine

“whether,

based

on

those

facts, a reasonable person in the defendant’s position could
have believed that he or she was acting in conformity with the
clearly established law at the time.”

Gray-Hopkins v. Prince

George’s Cty., 309 F.3d 224, 229 (4th Cir. 2002).
“Qualified
constitutional
established

immunity
violations

law,

were lawful.”

could

“whether

the

but

who,

reasonably

officers
in

believe

who
of

light
that

commit
clearly

their

actions

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc).
established

protects

at

the

right

When evaluating whether a right was clearly
time

of

allegedly

a

violation,
violated

2

was

courts

do

not

established

ask

‘as

a

The opinion omits internal quotation marks, alterations,
and citations here and throughout, unless otherwise noted.
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broad general proposition’ but whether ‘it would be clear to a
reasonable

official

that

his

situation he confronted.’”

conduct

was

unlawful

in

the

Raub v. Campbell, 785 F.3d 876, 882

(4th Cir. 2015) (quoting Saucier v. Katz, 533 U.S. 194, 201–202
(2001)).
A.

Qualified Immunity for Unlawful Arrest

The district court determined that Herrnberger’s arrest of
Pegg

was

unlawful

because

it

believed

Herrnberger

did

not

“principally” arrest Pegg for the expired inspection sticker.
Instead,

the

obstructing

district

an

court

officer

only

opined
after

question during the traffic stop.”
Herrnberger
argues

that

denies

purported

that

the

he

asked

was

“for

[Herrnberger]

a

J.A. 376.

motivation

subjective

arrest

reasons

and,
for

in

any

event,

arresting

Pegg

should not enter into the qualified immunity analysis because
Pegg’s violation of West Virginia law constituted probable cause
for

the

arrest.

Therefore,

with

probable

cause

to

arrest,

Herrnberger contends he is entitled to qualified immunity.

We

agree with Herrnberger.
The Supreme Court has stated unequivocally that “[i]f an
officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he
may,

without

offender.”

violating

the

Fourth

Amendment,

arrest

the

Atwater v. City of Lago Vista, 532 U.S. 318, 354
7

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(2001).

In

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Atwater,

the

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arrestee

committed

violation punishable only by a fine.
Court

held

that

the

Fourth

Pegg

admits

Amendment

does

forbid

a

Id.

inspection sticker in violation of West Virginia law. 3

See W.

Herrnberger’s

vehicle

not

expired

in

his

belt

an

Va. Code § 17C-16-9.

that

seat

Nonetheless, the Supreme

warrantless arrest for such a minor violation.
Here,

a

had

Further, he admits this violation occurred

presence.

Therefore,

just

as

in

Atwater,

though Pegg’s offense was minor, the Fourth Amendment does not
forbid a warrantless arrest for such a violation.
The

Supreme

Court

specifically

rejected

in

Atwater

the

argument Pegg makes here: that the Fourth Amendment would forbid
“custodial

arrest,

even

upon

probable

cause,

when

could not ultimately carry any jail time . . . .”
U.S. at 346.

conviction

Atwater, 532

Under Atwater, therefore, whether or not a § 17C-

16-9 violation is a jailable offense is irrelevant for purposes
of the application of qualified immunity.
Pegg attempts to distinguish Atwater by arguing that unlike
the Texas seatbelt statute at issue in that case, § 17C-16-9 is
not an offense subject to a custodial arrest or punishable by
incarceration.

He argues that § 17C-16-9 is not among the list

3

“Request No. 1: Admit that on August 4, 2013, at
approximately 11:30 a.m., you were operating a vehicle that had
an expired inspection sticker. Response: Admitted.” J.A. 101.

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traffic

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offenses

that

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a

separate

enumerates as warranting arrest.

statute,

§

17C-19-3,

But that contention –- even if

a correct recitation of state law –- is of no consequence under
Atwater for Fourth Amendment qualified immunity purposes.

Id.

In any event, under West Virginia law, police officers have
the authority to effect an arrest for minor traffic violations,
including the one at issue here.

The language of § 17C-19-3

does not support the reading of the statute that Pegg advances.
See § 17C-19-3 (prescribing arrest for traffic violations in
“any of the following cases,” not in “only the following cases”)
(emphasis

added).

Similarly,

the

statute

that

controls

the

procedure for issuing traffic citations, § 17C-19-4, does not
prohibit an officer from making an arrest instead of issuing a
citation.

That these two provisions do not prohibit an officer

from making arrests for certain minor offenses is supported by
yet

another

regulations,

West
§

Virginia

17C-19-5,

statute

which

pertaining

provides

that

to

“the

traffic
procedure

prescribed [in Chapter 17] shall not otherwise be exclusive of
any

other

method

prescribed

by

law

for

the

arrest

prosecution of a person for an offense of like grade.”
alternative
empowers

method

West

is

Virginia

described
State

in

§

Troopers

15-2-12(b)(1),
to

make

and
Such
which

warrantless

arrests when witness to “any offense or crime” (emphasis added).
As

noted

earlier,

Pegg

does

not
9

deny

that

his

offense

of

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operating a motor vehicle with an expired inspection sticker
occurred in the presence of Herrnberger.

As a result, under

Atwater and the West Virginia statutes, Herrnberger had probable
cause

to

arrest

Pegg

for

the

expired

inspection

sticker

violation.
The

district

court’s

determination

that

Herrnberger

arrested Pegg “in practicality” for assault and obstruction of
justice,

instead

ultimately

of

the

irrelevant.

expired
J.A.

inspection

375.

The

sticker,

proper

is

focus

also

of

the

inquiry is not any subjective reason for arresting Pegg, but
only the objective facts surrounding the arrest.
Court

has

previously

explained,

the

As the Supreme

“subjective

reason

for

making the arrest need not be the criminal offense as to which
the known facts provide probable cause.”
543

U.S.

146,

153

(2004).

Instead,

Devenpeck v. Alford,
the

Fourth

Amendment

requires an analysis under which a police officer’s action is
not

invalidated

objectively,

“‘as

justify

long

that

as

the

action.’”

circumstances,
Id.

(quoting

viewed

Whren

United States, 517 U.S. 806, 813 (1996)) (emphasis added).

v.
The

objective and undisputed fact of Pegg’s violation of § 17C-16-9
is fully sufficient, in and of itself, to justify his arrest. 4

4

Pegg’s violation of § 17C-16-9 established probable cause
for his arrest and a search incident to that arrest.
Accordingly, we need not consider whether Herrnberger’s actions
(Continued)
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Thus, Herrnberger did not violate the Fourth Amendment and he is
entitled to qualified immunity on this claim as a matter of law.
The district court erred in failing to grant summary judgment to
Herrnberger on Pegg’s claim of unlawful arrest.
B.

Qualified Immunity for Retaliatory Arrest

The probable cause inherent in Pegg’s violation of § 17C16-9 also defeats his First Amendment retaliatory arrest claim.
The Supreme Court “has never recognized a First Amendment right
to

be

free

from

probable cause.”
(2012).

a

retaliatory

arrest

that

is

supported

by

Reichle v. Howards, 132 S. Ct. 2088, 2093

Since the Reichle decision, no such right has been

recognized, so the Reichle principle is fully controlling here.
Pegg’s violation of § 17C-16-9 gave Herrnberger probable cause
to arrest Pegg; therefore his arrest was not retaliatory.
Contrary

to

the

district

court’s

conclusion,

it

is

not

enough, that Pegg “simply plead ‘an absence of probable cause’”
for his claim to survive summary judgment.

J.A. at 377 (citing

Tobey v. Jones, 706 F. 3d 379, 392 (4th Cir. 2013)).

The basis

for that rule is the assumption that “‘probable cause or its

were also permitted under Terry v. Ohio, 392 U.S. 1 (1968). See
United States v. Robinson, 414 U.S. 218, 235 (1973) (“A
custodial arrest of a suspect based on probable cause is a
reasonable intrusion under U.S. Const. amend. IV; that intrusion
being lawful, a search incident to the arrest requires no
additional justification.”).

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absence will be at least an evidentiary issue in practically all
cases.’”

Tobey v. Jones, 706 F.3d 379, 392 (4th Cir. 2013)

(quoting Hartman v. Moore, 547 U.S. 250, 265 (2006)).

But in

distinction from the appeal in Tobey from the denial of a motion
to dismiss, the instant case is a decision on summary judgment.
This case is not one where probable cause remains an evidentiary
issue; it is undisputed that Pegg violated § 17C-16-9 in the
arresting officer’s presence, thereby establishing the probable
cause for his arrest.

Herrnberger is thus entitled to qualified

immunity on this claim as well and the district court erred in
not granting his motion for summary judgment.
C.
The

Qualified Immunity for Excessive Force

district

court

concluded

that

Herrnberger

was

not

entitled to qualified immunity for Pegg’s claim of excessive
force

on

the

“potentially
[Pegg].”

.

basis
.

.

of

its

finding

pre-disposed

to

that
using

Herrnberger
force

to

was

arrest

Herrnberger denies any such subjective predisposition,

but argues again that any subjective motivations in the mind of
the police officer do not factor into the qualified immunity
analysis.

We again agree with Herrnberger.

An inquiry into any predisposition for force on the part
of Herrnberger is an improper mode of analysis for a Fourth
Amendment excessive force claim.

12

“Subjective factors involving

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the

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officer’s

relevant.”
To

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motives,

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intent,

or

propensities

are

not

Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994).

determine

whether

a

police

officer

applied

excessive

force in violation of the Fourth Amendment, we instead examine
officers’

actions

“in

light

of

the

facts

and

circumstances

confronting them, without regard to their underlying intent or
motivation.”

Graham

v.

Connor,

490

U.S.

386,

397

(1989).

Specifically, we examine “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.”

Id. at 396.

As when examining the lawfulness of an arrest, “[w]hether an
officer has used excessive force is analyzed under a standard of
objective reasonableness.”

Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011).
Though

Pegg’s

resisted arrest. 5
than

necessary

crime

was

not

severe,

he

admits

that

he

We conclude Herrnberger applied no more force
to

overcome

that

resistance.

Viewing

the

evidence in the light most favorable to Pegg, after Pegg placed
his left hand behind his back he failed to interlock his hands
as Herrnberger had just demonstrated to him seconds earlier.
5

“Request No. 6: Admit that you resisted Trooper
Herrnberger’s attempt to secure your hands behind your back.
Response: Admitted.” J.A. 101.

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Pegg then attempted to withdraw his right arm from Herrnberger's
grasp.

Herrnberger then briskly, but safely, took Pegg to the

ground.
no

Pegg remained on the ground for less than a minute and

longer

than

the

time

Herrnberger

needed

to

handcuff

him.

According to Pegg’s own statements, Herrnberger did not strike,
kick, or verbally abuse him.
simple maneuver
handcuffed,

to

ensure

Herrnberger

Instead, Herrnberger performed a

Pegg’s

assisted

compliance.
Pegg

back

Once
to

Pegg

a

was

standing

position and refrained from any further physical contact.

As a

result of the encounter, Pegg claims abrasions minor enough that
he treated them at home with Neosporin and peroxide and did not
seek

medical

resisting
minimis

assistance.

suspect

that

injuries

Herrnberger’s

An

causes

does

actions

efficient,
the

not

were

lawful

suspect

constitute

objectively

to

arrest

suffer

excessive

reasonable

entitled to qualified immunity as a result.

and

of

only

a
de

force.
he

is

The district court

erred in holding to the contrary.
D.

Qualified Immunity for West Virginia State Law Claims

Pegg’s
claims

for

complaint
battery

also
and

alleged

outrage

West

Virginia

(intentional

emotional distress) against Herrnberger.

state

infliction

law
of

Under West Virginia

law, a police officer is not entitled to qualified immunity when
his

or

her

conduct

results

in

constitutional or statutory violation.
14

a

clearly

established

See Hutchinson v. City

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of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996).

A police

officer is also not entitled to qualified immunity under West
Virginia law if his or her conduct is “fraudulent, malicious, or
otherwise oppressive.”

Id.
1.

Battery

Battery under West Virginia law tracks the elements set
forth

in

the

Restatement

(Second)

of

Torts:

an

individual

commits battery when “(a) 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 (b) a
harmful

contact

with

indirectly results.”

the

person

of

the

other

directly

W. Va. Fire & Cas. v. Stanley, 602 S.E.2d

483, 494 (W. Va. 2004) (quoting the Restatement).
lawful

arrests

are

or

excluded

from

the

scope

of

Moreover,

West

Virginia

battery.

A person lawfully performing an arrest is afforded a

privilege

to

jurisdiction,

engage
so

in

long

arrests
as

within

the

force

is

the

limit
not

of

their

excessive.

Restatement (Second) at § 118; 132.
Relying on its analysis of the claims for unlawful arrest
and excessive force, the district court held that a reasonable
trier of fact could conclude “the force [Herrnberger] used was
unreasonable in the instant case.”
evident

from

our

analysis

of

the

J.A. 383.
foregoing

As should be
federal

claims,

Herrnberger did not apply excessive force when arresting Pegg.
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Accordingly,

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his

contact

Pg: 16 of 19

with

Pegg

would

be

privileged

for

qualified immunity purposes so long as it was not fraudulent,
malicious,

or

otherwise

oppressive.

Pegg

has

made

no

such

argument and there is nothing in the record that would allow a
conclusion that Herrnberger’s alleged actions were malicious or
oppressive.

Herrnberger

remained

calm

throughout

the

interaction and applied no more force than necessary to effect a
lawful arrest.

Moreover, that force was momentary and slight.

Herrnberger is thus entitled to qualified immunity on this claim
as well.
2.

The district court erred in finding otherwise.

Outrage, or Intentional Infliction of Emotional Distress
Pegg

argued,

and

the

district

court

agreed,

that

Herrnberger effected an unlawful arrest with excessive force,
which Pegg characterized as a violation of the special trust
society bestows upon law enforcement officers egregious enough
to support an outrage claim.

Herrnberger responded that the

arrest was lawful and performed with only the necessary force
and

therefore

cannot

form

the

basis

of

an

outrage

claim.

Herrnberger is correct.
Under West Virginia law, to establish the tort of outrage,
more

commonly

known

as

intentional

infliction

of

emotional

distress, the plaintiff must establish four elements:
(1)

that the defendant’s conduct was atrocious,
intolerable, and so extreme and outrageous as to
exceed the bounds of decency;
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(2)

that the defendant acted with the intent to
inflict emotional distress, or acted recklessly
when it was certain or substantially certain
emotional distress would result from his conduct;

(3)

that the actions of the defendant caused
plaintiff to suffer emotional distress and;

(4)

that the emotional distress suffered by the
plaintiff was so severe that no reasonable person
could be expected to endure it.

the

Loudin v. Nat’l Liab. & Fire Ins., 716 S.E.2d 696, 705 (W. Va.
2011).
It

is

difficult

to

overstate

the

high

burden

of

proof

required to sustain a tort claim for intentional infliction of
emotional

distress/outrage.

West

Virginia

courts

only

find

liability for outrage “‘where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.’
standard indeed.”

This is a high

Keyes v. Keyes, 392 S.E.2d 693, 696 (W. Va.

1990) (quoting Harless v. First Nat’l Bank, 289 S.E.2d 692, 703–
04, n. 20 (W. Va. 1982)).
Viewed objectively and in the light most favorable to Pegg,
his

outrage

threshold.
battery,
outrage.

claim

does

not

come

close

to

meeting

the

legal

Herrnberger’s conduct does not rise to the level of

much

less

clear

the

much

higher

bar

required

for

A lawful arrest performed without excessive force is,

at worst, conduct that is “merely annoying, harmful of one’s
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rights or expectations, uncivil, mean-spirited, or negligent.”
Courtney v. Courtney, 413 S.E.2d 418, 423 (W. Va. 1991), rev’d
on other grounds, Courtney v. Courtney, 437 S.E.2d 436 (W. Va.
1993)).

Herrnberger’s arrest of Pegg was lawful and without

excessive force and does not “constitute outrageous conduct.”
Id.

The facts of this case are markedly milder than the kind of

conduct courts applying West Virginia law have found necessary
to

support

claim.

an

intentional

infliction

of

emotional

distress

See, e.g., Heldreth v. Marrs, 425 S.E.2d 157, 161–62 (W.

Va. 1992) (allowing an outrage claim to proceed when a husband
suffered a heart attack after witnessing his wife get struck by
a car and die); Hutchinson v. W. Virginia State Police, 731 F.
Supp.

2d

521,

531

(S.D.

W.

Va.

2010)

(finding

a

legally

cognizable claim for outrage for a female suspect who was pulled
from the shower by the hair during the execution of a search
warrant and forced to lie down naked for at least 45 minutes in
the presence of eleven male law enforcement officers, one of
whom slapped her behind) aff’d sub nom. Hutchinson v. Lemmon,
436 F. App’x 210 (4th Cir. 2011).

But see Keyes, 392 S.E.2d at

694 (disallowing an outrage claim when a family excluded a son
from his father’s obituary, burial plans, and the car ride to
the funeral); Lee v. City of S. Charleston, 668 F. Supp. 2d 763,
779 (S.D. W. Va. 2009) (disallowing outrage claim based on a
roadside public strip search that exposed arrestee’s genitals to
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the arresting officer); Lowe v. Spears, 2009 WL 1393860, at * 6
(S.D. W. Va. May 15, 2009) (disallowing outrage claim when an
officer arrested an individual for a minor offense, possibly in
response to arrestee’s use of profanity toward the officer).
Herrnberger is entitled to qualified immunity on this claim
and the district court erred in concluding otherwise.

III. Conclusion
For the foregoing reasons, we reverse the district court’s
order denying Herrnberger’s motion for summary judgment.

He was

entitled to qualified immunity for all claims as a matter of
law.

The case is therefore remanded to the district court for

the entry of judgment in favor of Herrnberger on all claims.

REVERSED AND REMANDED
WITH INSTRUCTIONS

19