Asbury v. Ritchie County Commission et al

Filing 60

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DKT. NO. 25 AND GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT DKT. NO. 27 . The Court DENIES the Plaintiff's 25 motion for summary judgment on Co unt Two; GRANTS the Defendants' 27 motion for summary judgment on Counts One, Two, Three, Four and Five; and DISMISSES this case with PREJUDICE and ORDERS it stricken from the Court's active docket. The Clerk is directed to enter a separate judgment order in this matter. Signed by Senior Judge Irene M. Keeley on 1/16/18. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES R. ASBURY,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:16CV132
(Judge Keeley)

RITCHIE COUNTY COMMISSION,
a political subdivision of
the State of West Virginia;
BRYAN BACKUS, individually;
RON BARNIAK, individually,

Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 25] AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 27]
This is § 1983 action that was removed from the Circuit Court
of Ritchie County (Dkt. No. 1). Now pending are the parties’ cross
motions for summary judgment. For the reasons that follow, the
Court DENIES the plaintiff’s motion (Dkt. No. 25), and GRANTS the
defendants’ motion (Dkt. No. 27).
I. BACKGROUND
The plaintiff, James R. Asbury (“Asbury”), was employed as a
deputy sheriff with the Ritchie County Sheriff’s Department(“RCSD”)
from

May

2011

until

May

2015,

when

he

was

placed

on

paid

administrative leave. Asbury was terminated from the RCSD effective
December 31, 2015. At all time relevant, defendant Bryan Backus
(“Backus”) was the Sheriff of Ritchie County, and defendant Ronald
Barniak (“Barniak”), the former Sheriff of Ritchie County, was

serving as the Chief Administrator of the RCSD.
As a deputy, Asbury was assigned to use a Dodge Durango as his
police cruiser. Vehicles used by RCSD deputies are owned by the
Ritchie County Commission (the “Commission”) and issued to the
deputies for use during their employment. According to RCSD policy,
deputies are not permitted to use their assigned vehicles for
personal or other non-governmental business.
During the course of Asbury’s employment as a deputy, Backus
and

Barniak

noticed

that

Asbury’s

reported

monthly

“activity

levels,” such as criminal investigations, citations, and service of
process,

were

substantially

lower

than

his

fellow

deputies’

reported levels. In an attempt to ascertain why Asbury’s activity
levels were below those of his fellow deputies, Backus and Barniak
decided to install a GPS unit on Asbury’s Durango in order to
monitor its whereabouts while Asbury was on duty.
The GPS unit tracked Asbury’s cruiser any time it was in use
and

thus

provided

data

to

the

RCSD

regarding

the

vehicle’s

location, the times it was being used, and its speed. Neither
Backus nor Barniak informed Asbury of the GPS installation. The GPS
monitoring took place from approximately October, 2013, through
May, 2014.
On or about May 22, 2014, Asbury became aware of the GPS
device after he was charged in a criminal complaint with the felony
offense of falsifying accounts, based on what the defendants

2

alleged were discrepancies in the duty logs submitted by Asbury and
the data recorded by the GPS unit in his cruiser. Backus testified
to a grand jury on January 26, 2015, following which the grand jury
indicted Asbury of eight felony counts of falsifying accounts in
violation of W. Va. Code § 61-3-22, and one misdemeanor count of
embezzlement in violation of W. Va. Code § 61-3-20.
During the course of the state criminal proceedings, Asbury
moved to suppress the GPS data. Relying primarily on United States
v. Jones, 565 U.S. 400 (2012), the Circuit Court of Ritchie County
suppressed the data gathered by the GPS device, ruling that its
installation in Asbury’s vehicle required a warrant (Dkt. No. 277). Following the suppression of the GPS data, the state moved to
dismiss the charges against Asbury.
On May 23, 2016, Asbury initiated this civil action against
the defendants by filing a complaint in the Circuit Court of
Ritchie County (Dkt. No. 1-2). The first count raises a state law
negligence claim against the Commission. The remaining four counts
assert a number of federal constitutional claims under 42 U.S.C. §
1983, consisting of an illegal search under the Fourth Amendment
related to the warrantless installation and monitoring of the GPS
unit

in

Asbury’s

vehicle,1

as

well

as

separate

but

related

1

Although not raised by the parties, the Court finds that the
doctrine of collateral estoppel does not apply to Asbury’s Fourth
Amendment claim. Where charges against a criminal defendant have
been abandoned following a suppression ruling adverse to the state
3

constitutional violations, namely that the Commission had customs
or policies that authorized the violation of RCSD employees’ Fourth
Amendment rights. On June 22, 2016, the defendants removed the case
to this Court.
Pursuant to 28 U.S.C. § 1331, the Court has jurisdiction over
Asbury’s federal claims inasmuch as Section 1983 is a federal
statute through which deprivation of constitutional rights may be
redressed. A district court properly invested with jurisdiction can
also exercise supplemental jurisdiction over state law claims that
“form part of the same case or controversy.” 28 U.S.C. § 1367, see
also United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966).
Accordingly, the Court has jurisdiction over all of Asbury’s
claims.
Now

pending

are

the

parties’

cross

motions

for

summary

judgment. Asbury has moved for summary judgment on his Fourth
Amendment claim. The defendants have moved for summary judgment on
all counts. The motions are fully briefed and ripe for disposition.
II. STANDARD OF REVIEW
Summary

judgment

is

appropriate

only

“if

the

pleadings,

in a prior criminal prosecution, the suppression ruling has no
preclusive effect in subsequent Section 1983 litigation. See, e.g.,
Bilida v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000)(no preclusion
where suppression ruling led simply to an abandonment of the
prosecution); Patzner v. Burkett, 779 F.2d 1363 (8th Cir.
1985)(upholding Section 1983 verdict for defendant officers where
criminal charges were dismissed based on state court ruling that
arrest was unconstitutional).
4

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When ruling on
a motion for summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving party. Providence
Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000). The Court must avoid weighing the evidence or determining
its truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

of

establishing

the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the
evidence

must

be

such

that

a

rational

trier

of

fact

reasonably find for the nonmoving party. Id. at 248–52.

5

could

III. APPLICABLE LAW
A. 42 U.S.C. § 1983 Claims
Several of Asbury’s claims stem from alleged violations of 42
U.S.C. § 1983, which provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission
taken in such officer's judicial capacity, injunctive
relief shall not be granted unless a declaratory decree
was violated or declaratory relief was unavailable. For
the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall
be considered to be a statute of the District of
Columbia.
To succeed on a § 1983 claim, a plaintiff must show that (1)
he was deprived of a right “secured by the Constitution and the
laws” of the United States, and (2) the individual who deprived him
of the right was acting under color of state law. Lugar v. Edmonson
Oil Co., 457 U.S. 922, 930 (1982) (internal citations omitted).
Generally, a public employee acts under color of law “while acting
in his official capacity or while exercising his responsibilities
pursuant to state law.” Conner v. Donnelly, 42 F.3d 220, 223 (4th
Cir. 1994) (quoting West v. Atkins, 487 U.S. 42, 50 (1988)).
Section 1983 “‘is not itself a source of substantive rights,’
6

but merely provides ‘a method for vindicating federal rights
elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, at 393-94
(1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)).
In order to determine what standard applies, courts must first
isolate “the specific constitutional right allegedly infringed.”
Baker, 443 U.S. at 140.
B.

Fourth Amendment
The Fourth Amendment provides that “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated ....”
U.S. Const. amend. IV. It is from the clear language of the Fourth
Amendment that courts derive the standard applicable to alleged
violations of it. See Graham, 490 U.S. at 394-95.
V. DISCUSSION
Asbury seeks summary judgment on Count II of the complaint
(Dkt. No. 25). The defendants seek summary judgment on all counts
(Dkt.

No.

indirectly

27).
to

Each
the

of

Asbury’s

individual

claims

relate

defendants’

directly

installation

or
and

monitoring of the GPS unit in his vehicle.
A. Count I - Negligence
In Count One of the complaint, Asbury asserts a negligence
claim against the defendants (Dkt. No. 1-2 at ¶¶ 27-30). During
discovery, Asbury clarified that this claim is solely against the
Commission (Dkt. No. 27-6 at 8-9).
7

Asbury alleges that the Commission negligently violated his
Fourth Amendment rights to be free from unreasonable search and
seizure by placing a GPS unit on his vehicle and monitoring him for
a period of five months, without a warrant. The Commission argues
that it is statutorily immune from liability on this claim.
The West Virginia Governmental Tort Claims and Insurance
Reform Act, W. Va. Code § 29-12A-1, et seq.(the “Act”) provides, in
pertinent part, that
[e]xcept as provided in subsection (c) of this section,
a political subdivision is not liable in damages in a
civil action for injury, death, or loss to persons or
property allegedly cause by any act or omission of the
political subdivision or an employee of the political
subdivision in connection with a governmental or
proprietary function.
W. Va. Code § 29-12A-4(b)(1). Thus, pursuant to West Virginia law,
political

subdivisions

are

immune

from

suit

for

common

law

negligence unless the claim falls within an exception provided in
subsection (c) of the Act. Those exceptions include: (1) the
negligent operation of any vehicle by employees within the scope of
their employment, (2) the negligent performance of acts by their
employees while acting within the scope of employment, (3) the
negligent maintenance of roads and sidewalks, (4) negligent act by
employees on subdivision property, and (5) any other liability
established by other sections of the code. Id. at § 29-12A-4(c).
In his response to the defendants’ motion, Asbury appears to
concede that none of the exceptions delineated in subsection (c)

8

applies to his claim, but nonetheless proceeds to cite part (2) of
that subsection, which provides:
Political subdivisions are liable for injury, death, or
loss to persons or property caused by the negligent
performance of acts by their employees while acting
within the scope of employment.
W. Va. Code § 29–12A–4(c)(2). He also argues that, even if none of
the exceptions in subsection (c) applies, his claim against the
Commission should be maintained under the Act because the conduct
alleged meets the general foreseeability standard of West Virginia
tort law.
A mere allegation of negligence, however, does not turn an
intentional tort into negligent conduct. Weigle v. Pifer, 139
F.Supp.3d 760, 780 (S.D. W.Va. 2015)(citing Benavidez v. United
States, 177 F.3d 927, 931 (10th Cir. 1999)). Conduct that supports
a negligence claim can be distinguished from conduct that supports
an intentional tort claim by examining the subjective intent of the
alleged tortfeasor. Id. (citing Kawaauhau v. Geiger, 523 U.S. 57,
62 (1998)(“Intentional torts, as distinguished from negligent or
reckless torts . . . generally require that the actor intend ‘the
consequences of an act,’ not simply ‘the act itself’.”)).
Here, Asbury fails to allege any conduct that supports a claim
of negligence against the Commission. It is apparent that Asbury’s
negligence claim stems from Backus and Barniak’s installation and
monitoring of a GPS tracking device on his vehicle (Dkt. No. 1-2 at

9

¶ 27-30). It is also clear from the allegations in the complaint,
and from the remainder of the record, that Backus and Barniak
intended the consequences of their actions during the time period
in which Asbury’s vehicle was tracked using a GPS unit. That is,
their conduct, including placing a GPS unit on Asbury’s cruiser,
was intentional and undertaken for the purpose of monitoring the
location

of

Asbury

and

his

vehicle.

Thus,

while

Backus

and

Barniak’s actions may give rise to an intentional tort, they cannot
support liability predicated on negligence.
Further, as noted earlier, the negligence claim against the
Commission alleged in Count One is, at best, predicated on W. Va.
Code

§

29-12A-4(c)(2),

which

extends

vicarious

liability

to

political subdivisions for certain negligent acts committed by
employees of the subdivision who are acting within the scope of
their

employment.

Because

the

negligence

claim

against

the

Commission is wholly dependent upon the conduct of Backus and
Barniak, Asbury’s negligence claim against the Commission cannot
proceed.
Accordingly, the Court GRANTS the Commission’s motion for
summary judgment as to the negligence claim against it in Count
One.
B.

Count Two - Unreasonable Search and Seizure
All parties believe they are entitled to summary judgment on

Asbury’s

claim

that

Backus

and
10

Barniak

violated

his

Fourth

Amendment right to be free from unreasonable search and seizure by
placing

a

GPS

unit

on

his

county-issued

police

vehicle

and

monitoring the physical location and speed of that vehicle without
a warrant.
Asbury argues that the defendants’ warrantless installation
and tracking of a GPS unit on his cruiser constitutes a search
implicating his Fourth Amendment rights, and that no exception to
the warrant requirement applies. Backus and Barniak argue that
Asbury’s claim is without merit because the government’s placement
and monitoring of a GPS unit to determine the location of its own
property does not violate the Fourth Amendment.
The Fourth Amendment prohibits “unreasonable searches and
seizures” by government agents, including government employers or
supervisors. U.S. Const. amend. IV; see O'Connor v. Ortega, 480
U.S. 709, 715 (1987) (plurality opinion). Warrantless searches are
per se unreasonable under the Fourth Amendment - subject only to a
few specifically established and well-delineated exceptions.” Katz
v. United States, 389 U.S. 347, 357 (1967).
It is undisputed that Backus and Barniak neither sought nor
obtained a warrant prior to secretly installing a GPS unit in the
police cruiser issued to Asbury. The issue therefore is whether the
warrantless installation and monitoring of the GPS unit in Asbury’s
cruiser constitutes a search implicating his Fourth Amendment
rights, and if so, whether that search was nonetheless reasonable

11

pursuant to the “special government needs” exception to the warrant
requirement.
1.

Physical Trespass on Property

A “search” may occur when the government intrudes upon a
person’s “reasonable expectation of privacy.” Katz, 389 U.S. at
361. Or, a search may occur when the government intrudes or
trespasses upon a constitutionally protected area for the purposes
of obtaining information. United States v. Jones, 565 U.S. 400, 408
n.5 (2012). In arguing that the installation and monitoring of a
GPS unit on his county-issued police cruiser constitutes a search
under the Fourth Amendment, Asbury argues that, because the case at
hand involves warrantless GPS tracking of a vehicle, the Court’s
analysis should be governed by U.S. v. Jones.
In Jones, the FBI and local law enforcement secretly installed
a GPS tracking device on a private vehicle and monitored the
vehicle's movements for 28 days. 565 U.S. at 403. The GPS device
established the vehicle's location within 50 to 100 feet and
communicated that location to a government computer. Id. The
Supreme Court concluded that the government had physically intruded
on the defendant's private property to install the GPS device, and
that its use of the device for the purpose of monitoring the
vehicle's movements constituted a search in violation of the Fourth
Amendment.
Relying on Jones, Asbury contends that the installation of a
12

GPS unit in his county vehicle amounted to an equivalent trespass
upon property for the purpose of gathering information, and thus
that the defendants’ use of that GPS unit to monitor his cruiser’s
movements constituted a Fourth Amendment search. Despite Asbury’s
attempt to expand Jones to all cases involving governmental use of
a GPS device, the holding in Jones was fact-dependent and narrow.
There, the Supreme Court emphasized the significance of the private
nature of the property in question, stating:
It is important to be clear about what occurred in this
case: The Government physically occupied private property
for the purpose of obtaining information. We have no
doubt that such a physical intrusion would have been
considered a “search” within the meaning of the Fourth
Amendment when it was adopted.
Id.

at

404-05

(emphasis

added).

Thus,

contrary

to

Asbury’s

contention, in Jones, the cause of the constitutional violation was
not the method of gathering information by GPS but the physical
trespass on a private vehicle.
This case is factually distinguishable from Jones.

Here, the

government did not attach a GPS unit to, or otherwise physically
occupy, Asbury’s private property. Rather, the government placed a
GPS unit on its own property. It is undisputed that the vehicle in
question was owned by the Commission and issued to Asbury solely
for

use

in

the

performance

of

his

assigned

duties

and

responsibilities as a sheriff’s deputy. On these undisputed facts,
most

notably

the

public--rather

13

than

private--nature

of

the

property at issue, the Court concludes that Jones is inapposite,
and that the installation and monitoring of the GPS unit on
Asbury’s government-owned and issued cruiser did not constitute a
search under Jones.
Having concluded that Asbury’s reliance on Jones is misplaced,
the Court must now determine whether Asbury had a reasonable
expectation of privacy in the location and speed of the vehicle.
2. Reasonable Expectation of Privacy
In order to prove a legitimate expectation of privacy, Asbury
must establish that his subjective expectation of privacy is one
that society is prepared to accept as objectively reasonable. See
California v. Greenwood, 486 U.S. 35, 39 (1988). And, “given the
great variety of work environments in the public sector, the
question whether an employee has a reasonable expectation of
privacy must be addressed on a case-by-case basis.” O’Connor, 480
U.S. at 718.
For

example,

government

employees

may

have

a

legitimate

expectation of privacy in their offices or in parts of their
offices such as their desks or file cabinets. Id. at 716-18;
Shields v. Burge, 874 F.2d 1201, 1203-04 (7th Cir. 1989)(concluding
that the holding of the O'Connor plurality governs). However,
office practices, procedures, or regulations may reduce legitimate
privacy expectations. See O'Connor, 480 U.S. at 717 (Blackmun, J.,
dissenting). Here, the burden is on Asbury to prove that he had a

14

legitimate expectation of privacy in the information collected by
the GPS unit. See Rusher, 966 F.2d at 874.
Asbury contends that he had a reasonable expectation of
privacy in the physical location and speed of his county-owned
police cruiser.

That contention, however, is belied by several

relevant provisions in RSCD’s “Policies and Procedures” manual (the
“Policy”).
Foremost, the Policy makes clear that the vehicle at issue was
assigned to Asbury solely for use in the scope of his employment as
a

Ritchie

County

deputy.

Policy

provisions

regarding

“Office

Property and Equipment” and “Vehicle Usage” provide that deputies
are assigned equipment, including motor vehicles, “for use in the
performance of [their] assigned duties and responsibilities” (Dkt.
No. 27-5 at 8, 9). The “Office Property and Equipment” provision
goes on to state that “[a]t no time shall any equipment belonging
to this office be used by any deputy sheriff . . . for personal
purposes.” Id. at 8. Moreover, Paragraph X of the Policy’s “General
Duty

Requirements”

makes

explicit

that

the

RCSD’s

general

prohibition against personal use of departmental equipment applies
with equal force to its vehicles:
Deputy Sheriff’s [sic] shall not use their assigned
vehicles for personal business or for the transportation
of unauthorized persons. Any request to use an assigned
police vehicle for other than official business is to be
directed to the Sheriff of Ritchie County.
Id. at 13. Also relevant to Asbury’s contention that he had a

15

reasonable expectation of privacy in the location of his cruiser is
Paragraph B of the General Duty Requirements, which provides that,
[w]hile on duty, Deputy Sheriff’s [sic] shall maintain
proper radio contact and communications with this office
and Central Communications, Inc. (911 Center). All deputy
sheriffs shall keep dispatch personnel informed of their
whereabouts. To this end, deputy sheriff’s [sic] shall
keep their assigned portable radios charged, turned on,
and in their immediate possession.
Id. at 11.
It is undisputed that the device installed in Asbury’s cruiser
provided data to the RCSD regarding the vehicle’s location, time of
use, and speed, and that it only recorded data while the vehicle
was

in

use.

Per

Paragraph

B

of

the

Policy’s

General

Duty

Requirements, the data recorded by the GPS device is the same
information Asbury was already required to provide to dispatch when
on duty. And, to the extent that Asbury claims the GPS unit tracked
his cruiser’s location when he was not on-duty, as already noted,
any personal use of the vehicle by Asbury was explicitly prohibited
under several Policy provisions.
The Court therefore concludes that, on this record and in
light of the Policy provisions cited, Asbury did not possess a
legitimate expectation of privacy in the information collected by
the GPS device at issue. At bottom, this case involves a government
employer monitoring the physical location and speed of a government
owned and issued vehicle while in use by a government employee in
the scope of his employment.

In that light, and for the reasons

16

discussed, the defendants’ actions do not constitute a search
within the meaning of the Fourth Amendment, whether under the Jones
physical trespass analysis or the Katz “reasonable expectation of
privacy” formulation. Therefore, Asbury’s Fourth Amendment claim
fails as a matter of law.
3. Reasonableness of Search
Finally, the Court concludes that even if the warrantless
installation and monitoring of the GPS unit in Asbury’s cruiser had
implicated a legitimate expectation of privacy, which it did not,
the defendants’ conduct was reasonable under the O’Connor exception
to the warrant requirement.
A search conducted without a warrant issued by a judge or
magistrate

upon

a

showing

of

probable

cause

is

“per

se

unreasonable” unless it falls within one of the “specifically
established

and

well-delineated

exceptions”

to

the

warrant

requirement. Katz v. United States, 389 U.S. 347, 357 (1967); see
United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en
banc). One exception arises when the requirement is rendered
impracticable by “special needs, beyond the normal need for law
enforcement.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653
(1995).
In determining the appropriate standard for a search conducted
by a public employer in areas in which an employee has a reasonable
expectation of privacy, what is a reasonable search “depends on the

17

context within which the search takes place,” and requires that the
Court balance “the employee's legitimate expectations of privacy
against the government's need for supervision, control, and the
efficient operation of the workplace.” O’Connor, 480 U.S. at 719720.
In

O'Connor,

the

Supreme

Court

held

that

a

government

employer's interest in “the efficient and proper operation of the
workplace” may justify warrantless work-related searches. O'Connor,
480 U.S. at 723; see id. at 720-25. The O'Connor Court further held
that when a government employer conducts a search pursuant to an
investigation of work-related misconduct the Fourth Amendment will
be satisfied if the search is reasonable in its inception and its
scope. See id. at 725-26.
A search normally will be reasonable at its inception “when
there are reasonable grounds for suspecting that the search will
turn up evidence that the employee is guilty of work-related
misconduct.” Id. at 726. “The search will be permissible in its
scope when ‘the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in light of
...

the

nature

of

the

[misconduct].’”

Id.

(alterations

in

original)(quoting New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)).
Here, the Court concludes that the defendants’ warrantless
installation

of

the

GPS

unit

in

Asbury’s

cruiser

and

their

subsequent monitoring of its location data, was reasonable under

18

the standard articulated in O’Connor. At the inception of the
search, the defendants had “reasonable grounds for suspecting” that
the information collected by the GPS device would yield evidence of
workplace misconduct because Asbury’s reported activity levels in
the community, including number of calls taken, citations issued,
process served, and hours spent in court, were significantly lower
than those of his fellow deputies (Dkt. No. 27-1 at 5-6; Dkt. No.
27-3 at 20, 27; Dkt. No. 27-4 at 2-3).
The search was also reasonable in scope. The measure adopted,
installing a GPS unit on Asbury’s cruiser, was reasonably related
to the objective of the search, determining Asbury’s whereabouts in
the community while on duty in a county vehicle. Nor was the search
excessively intrusive. As previously discussed, it is undisputed
that

the

GPS

device

installed

in

Asbury’s

cruiser

recorded

information pertaining to the vehicle’s physical location, time of
use, and speed. The GPS did not collect information regarding the
personal items Asbury may have kept in his cruiser, nor did it
monitor or record the conversations he may have conducted within
it. Rather, the device merely tracked and recorded the location and
speed of the vehicle while in use. Notably, this was the same
information that Asbury himself was required to report to dispatch
while on duty.
Under

these

circumstances,

the

Court

concludes

that

the

installation and monitoring of a GPS unit in Asbury’s cruiser is

19

conduct in which a reasonable employer might engage. See Vernonia
School Dist. 47J, 515 U.S. at 665 (characterizing the relevant
question as whether the intrusion by the government employer is one
in which a reasonable employer might engage). Therefore, even
assuming that Asbury had a legitimate expectation of privacy in the
information collected by the GPS unit, which he did not, his Fourth
Amendment claim still fails because any such search was reasonable
under the O’Connor exception.

Accordingly, the Court GRANTS the

defendants’ motion for summary judgment on Count Two and DENIES the
plaintiff’s motion for summary judgment on the same.
C.

Count Three - Bystander Liability
In Count Three of the complaint, Asbury alleges that other

RCSD deputies were aware of the installation and monitoring of the
GPS unit in his vehicle and failed to intercede (Dkt. No. 102 at ¶¶
39-40) In his response to the defendants’ motion, however, Asbury
abandoned his claim of bystander liability as alleged in the
complaint (Dkt. No. 33 at 22).

Consequently, the Court GRANTS the

defendants’ motion for summary judgment on Count Three.
D.

Count Four - Municipal Liability
In Count Four, Asbury alleges that the Commission is liable

for the actions of Backus and Barniak because it “instituted an
official policy, custom, and practice of violating the Fourth
Amendment rights of sheriff’s department employees in order to

20

gather evidence against them to use against them for adverse
employment reasons” (Dkt. No. 1-2 at ¶ 42).
It is well established that a municipality cannot be held
liable simply for employing a tortfeasor. Monell v. Dep’t of Soc.
Servs. of City of N.Y., 436 U.S. 658, 691 (1978). A municipality
may be subject to liability under § 1983 if the alleged injury was
caused by an identifiable municipal policy or custom. Bd. of

Cty.

Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 403 (1997). A
government policy or custom need not have received formal approval
through the municipality’s official decision making channels to
subject the municipality to liability. Rather, when an alleged
constitutional deprivation is caused by the official actions of
those individuals “whose edicts or acts may fairly be said to
represent

official

policy,”

the

government

as

an

entity

is

responsible under § 1983. Monell, 436 U.S. at 694.
Because § 1983 was not designed to impose municipal liability
under the doctrine of respondent superior, the “official policy”
requirement was “intended to distinguish acts of the municipality
from acts of employees of the municipality, and thereby make clear
that municipal liability is limited to action for which the
municipality

is

actually

responsible.”

Pembaur

v.

City

of

Cincinnati, 475 U.S. 469, 479 (1986).
Of course, not every decision by a municipal official will
subject a municipality to § 1983 liability. Rather, “[m]unicipal

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liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action
ordered.” Pembaur, 475 U.S., at 481. To qualify as a “final
policymaking

official,”

a

municipal

official

must

have

the

responsibility and authority to implement final municipal policy
with respect to a particular course of action. Id. at 482–83; see
also Spell v. McDaniel, 824 F.2d 1380, 1386 (4th Cir. 1987)
(“‘[P]olicymaking authority’ implies authority to set and implement
general goals and programs of municipal government, as opposed to
discretionary

authority

in

purely

operational

aspects

of

government.”). Therefore, to impose municipal liability on the
Commission, Asbury must identify municipal officials with “final
policymaking

authority”

to

implement

the

alleged

policy

of

acquiescence with respect to the alleged conduct.
The Fourth Circuit has explained that “to qualify as a ‘final
policymaking

official’

a

municipal

officer

must

have

the

responsibility and authority to implement final municipal policy
with respect to a particular course of action.” Riddick v. School
Bd. of Portsmouth, 238 F.3d 518, 523 (4th Cir. 2000). Thus, who
possesses final policymaking authority is a question of state law.
Pembaur, 475 U.S., at 483. In order to determine which officials
possess

final

policymaking

authority

for

the

allegedly

unconstitutional action in question, courts look to “the relevant
legal materials, including state and local positive law, as well as

22

‘custom or usage having the force of law.’” Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 737 (1989)(quoting City of St. Louis v.
Praprotnik, 485 U.S. 112, 124 n. 1 (1988)).
Article IX, Section II of the West Virginia Constitution
provides, in pertinent part, that the county commissions “have the
superintendence and administration of the internal police and
fiscal affairs of their counties.” Moreover, the Supreme Court of
Appeals of West Virginia has held that “[t]he sheriff, though an
important law enforcement officer, does not have the complete or
the exclusive control of the internal police affairs of the
county.” Syl. Pt. 5, State ex rel. Farley v. Spaulding, 507 S.E.2d
376 (W. Va. 1998)(citing Hockman v. Tucker Cnty. Ct., 75 S.E.2d 82,
85 (W. Va. 1953)). Therefore, under West Virginia law, Sheriff
Backus was not a final policymaker upon which liability may attach.
Rather, the final policy maker is the Commission itself.
Further, even if Backus had final policymaking authority,
“[t]he plaintiff must also demonstrate that, through its deliberate
conduct, the municipality itself is the ‘moving force’ behind the
plaintiff’s deprivation of federal rights.” Brown, 520 U.S., at 397
(quoting Monell, supra, at 649)(emphasis in original). Accordingly,
to impose § 1983 liability on a municipality, a claimant must first
establish

that

indifference

to

“a

municipal

decision

the

risk

a

that

reflects

violation

of

a

deliberate
particular

constitutional or statutory right will follow the decision.” Id. at

23

411. If a § 1983 claimant can demonstrate the requisite degree of
culpability, he must then show “a direct causal link between the
municipal action and the deprivation of federal rights.” Id. at
404.
Here, Asbury argues that Fourth Amendment violations such as
the GPS tracking at issue here have been a practice the defendants
have

utilized

to

deal

with

deputies

who

are

deemed

to

be

“problems.” The only evidence Asbury cites in support of such an
alleged practice is Backus and Barniak’s prior GPS tracking of a
former deputy and their search of another deputy’s departmentissued

cell

phone.

Neither

allegation,

however,

provides

a

sufficient basis for a finding of municipal liability against the
Commission.
Asbury’s municipal liability claim hinges on Fourth Amendment
allegations against Backus and Barniak. Asbury admitted that he has
no knowledge or information concerning any policies, practices or
customs of the Commission that caused the alleged violation (Dkt.
No.

27-2

at

85-86).

Further,

there

is

no

evidence

that

the

Commission sanctioned or ordered the installation of GPS units on
any county-owned vehicles, or the search of any department-owned
cell phones. These two incidents, together with the case at hand,
do not establish that a “deliberate action attributable to the
municipality itself is the ‘moving force’ behind the plaintiff’s
deprivation of federal rights.” Id. at 397.

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Therefore, for the reasons discussed, the Court finds that
neither Backus nor Barniak had final policymaking authority, and
that Asbury has failed to demonstrate that any deliberate action by
the Commission was the moving force behind the alleged deprivation
of his rights. His municipal liability claim against the Commission
thus fails as a matter of law, and the Court GRANTS the defendants’
motion for summary judgment as to Count Four.
E.

Count Five - Supervisor Liability
In Count Five of the complaint, Asbury alleges that Backus, as

Barniak’s supervisor, is liable for the actions of Barniak (Dkt.
No. 1-2 at ¶¶ 48-51). In his response to the defendants’ motion,
however, Asbury abandons this claim of supervisor liability (Dkt.
No. 33 at 25). The Court therefore GRANTS the defendants’ motion
for summary judgment as to Count Five.
V. CONCLUSION
For the reasons discussed, the Court:
•

DENIES the plaintiff’s motion for summary judgment on
Count Two;

•

GRANTS the defendants’ motion for summary judgment on
Counts One, Two, Three, Four, and Five;

•

DISMISSES

this

case

with

PREJUDICE,

stricken from the Court’s active docket.

25

and

ORDERS

it

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and to enter a separate judgment order.
DATED: January 16, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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