George et al v. Kanawha County Sheriffs Dept. et al

Filing 151

PROPOSED FINDINGS AND RECOMMENDATION (recommending that the plaintiffs' 125 DISPOSTIVE MOTION be denied, and that the 127 MOTION by Kanawha County Sheriffs Dept., Mike Rutherford, J. M. Vernon for Summary Judgment be granted in part as to th e KCSD, Sheriff Rutherford, and the strobe light claims against Deputy Vernon, and denied in part as to the other claims against Deputy Vernon). Objections to Proposed F&R due by 12/27/2010. Signed by Magistrate Judge Mary E. Stanley on 12/8/2010. (cc: plaintiffs; attys) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DAVID A. GEORGE and
TINA N. GEORGE,
Plaintiffs,
v.

Case No. 2:08-cv-00141

KANAWHA COUNTY SHERIFF’S DEPARTMENT,
SHERIFF MIKE RUTHERFORD, OFFICER
J. M. VERNON, OFFICER DICK COLL,
Defendants.

PROPOSED FINDINGS AND RECOMMENDATIONS
This civil action was filed on March 3, 2008.

The Plaintiffs

demand damages for harms allegedly caused by the Defendants’
unlawful

acts,

which

allegedly

took

place

at

their

home

on

September 17, 2007, and at other locations and dates.
The Plaintiffs filed the pending “Dispositive Motion,” which
is being construed as a motion for summary judgment, on March 4,
2010

(#125).

Defendants

Kanawha

County

Sheriff’s

Department

(“KCSD”), Sheriff Mike Rutherford (“Sheriff Rutherford”), and
Deputy J. M. Vernon (“Deputy Vernon”) responded (#131) on March 22,
2010,1 to which the Plaintiffs replied on April 1, 2010 (#134).
Defendant Humane Officer Dick Coll (“Officer Coll”) responded in
1

This filing also included a motion to strike plaintiffs’
Dispositive Motion. However, the undersigned denied this motion
on October 14, 2010. See Docket #144.

opposition (#132) to the Plaintiffs’ Dispositive Motion on March
22, 2010, but did not file a Motion for Summary Judgment of his
own.

The Plaintiffs replied to Officer Coll (#135) on April 1,

2010.

In their response, the Plaintiffs state, in part, that the

Affidavit of Officer Coll was dated March 22, 2010, approximately
five and one-half weeks after the close of discovery on February
12, 2010.

(#135 at 1).

Defendants KCSD, Sheriff Rutherford, and Deputy Vernon have
also

pending

their

Motion

for

Summary

Judgment

(#127)

and

Memorandum (#128) in support, which were filed on March 5, 2010.
The Plaintiffs responded (#130) on March 19, 2010, noting, in part,
that the Affidavit of Deputy Vernon was dated February 26, 2010,
fourteen days after the close of discovery on February 12, 2010.
(#130

at

1).2

The

Plaintiffs

also

provided

additional

documentation on April 8, 2010, and May 20, 2010 (##137 & 138).

On

November 22, 2010, they also filed a document outlining their
objections

to

certain

testimony

from

the

Defendants

at

the

of

the

evidentiary hearing (#149).
Upon

review

of

these

documents,

and

in

light

Plaintiffs’ limited litigation expertise, the court determined that
an evidentiary hearing was necessary to determine whether there are

2

The undersigned notes these concerns of the Plaintiffs. However,
affidavits submitted for the purpose of summary judgment are not
considered discovery; therefore, the affidavits in question were
timely submitted by the Defendants.
2

genuine issues of material fact.

Accordingly, the court conducted

an evidentiary hearing on Wednesday, October 13, 2010, with all
parties present in person except for Tina George.

Upon review of

the parties’ briefing and the testimony adduced at the hearing, the
pending motions are now ripe for review.
I. RELEVANT FACTS AND ALLEGATIONS
A. The Plaintiffs’ Complaint
The Plaintiffs’ Complaint alleges that, at approximately 11:30
a.m. on September 17, 2007, Tina N. George was at the residence
that she shares with her ex-husband, David A. George, located at
561 Campbells Creek Drive, Charleston, West Virginia.

At that

time, Officer Coll, a representative of the Kanawha County Humane
Association (“KCHA”), arrived at the residence and complained that
Plaintiff’s dog, a Chihuahua named “Baby,” was chained outside
without a doghouse.

(Complaint, #1, at 7).

Tina George alleges

that she informed Officer Coll that the dog is an inside dog and
that no outside doghouse was necessary.

She states that this was

the second time Officer Coll had visited regarding the alleged
animal cruelty.
cruelty.

Tina George was not cited either time for animal

Id.

At approximately 12:00 p.m., Tina George called the Kanawha
County 911 service to report that Coll was harassing her.

Id.

Shortly thereafter, Deputy Vernon of the KCSD arrived at the
residence.

Tina George alleges that Officer Coll remained at the

3

residence, which contributed to her “agitated state.” Id., at 2-3.
Deputy Vernon handcuffed her after her agitation persisted.

As

Deputy Vernon was placing her in the backseat of the cruiser, Tina
George “head-butted” the door, leaving a dent in the driver’s side
rear door, which buckled the paint.

Id., at 3-4.

Tina George

continued to curse and scream, now directing her attention to
Deputy Vernon.

Id., at 4.

The Plaintiffs allege that after she

was arrested, Officer Coll illegally entered the house without
permission and took the dog.

Id., at 8.

Tina George made her initial appearance on September 17, 2007.
Bond of $250.00 was set; David George posted the bond on September
18, 2007, and Tina George was released. She was notified to appear
on December 5, 2007 for a bench trial.

Deputy Vernon did not

appear and the charges were dismissed.
It appears that David George was not present during the
September 17, 2007 incident.

However, the Plaintiffs allege that

on October 10, 2007, Deputy Vernon wrongfully cited David George
for driving on an invalid license and, during the traffic stop,
left his cruiser’s flashing lights on, although he knew that Tina
George had a seizure disorder which may be triggered by flashing
lights.

Id. at 5-6.

That Plaintiffs further allege that on February 27, 2008,
Deputy Vernon conducted a traffic stop of a vehicle driven by David
George, wherein Tina George was a passenger.

4

During the traffic

stop, Deputy Vernon again left his cruiser’s flashing lights on,
and cited David George for a stop sign violation and for failure to
change address on a driver’s licence.

(#1-2 at 30-33).

David George wrote five letters to “Kanawha County Sheriff”
dated September 22, 2007, September 30, 2007, October 13, 2007,
October 28, 2007, and February 28, 2008 regarding the incidents and
alleging that Deputy Vernon was “intentionally and maliciously
harassing both my ex and myself.”

Id. at 1-33, 31.

These letters

were attached to the Plaintiffs’ Complaint filed on March 3, 2008
(#1, 1-2).
On April 10, 2008, Deputy Vernon re-filed the charges against
Tina George, which were identical to the September 17, 2007
charges.

State v. George, Case Nos. 08M5298 and 08M5299.

It is

not clear whether a warrant was issued for Tina George’s arrest.
Trial was set for October 27, 2008.

Once again, no officer

appeared and the charges were dismissed.
B. Facts Adduced at the October 13, 2010, Evidentiary Hearing
As

noted

earlier,

the

undersigned

determined

that

an

evidentiary hearing was necessary to determine whether there are
genuine issues of material fact in this case, and held such a
hearing on Wednesday, October 13, 2010.

While Tina George was

unable to attend, David George, Sheriff Rutherford, Deputy Vernon,
and Officer Coll were present and detailed their differing accounts
of the events that led to this case.

5

On September 11, 2007, Officer Coll responded to a complaint
from one of the George’s neighbors that their dogs, the Chihuahua
named “Baby” and a beagle puppy, did not have proper shelter.
(#147 (hereinafter “Tr.”) at 11).

At the time he arrived, Officer

Coll stated that both dogs were outside in the pouring rain without
shelter.

(Tr. at 14).

Officer Coll informed Tina George of the

requirements of West Virginia law, and also stated that he would
return in a week to check whether the Georges had brought things up
to code.

(Tr. at 14 & 16).

Officer Coll testified at the hearing

that it was on this date when he had a telephone conversation with
David George to inform him, too, about animal shelter legal
requirements; David George requested that a copy of the animal
shelter law be mailed to him.

He noted that Tina George dialed the

phone for him, and that he was unaware that David George also
resided at the house.

(Tr. at 14 &15).

David George disputes the

timing of the phone call, which he testifies was made on September
17, 2007.

(Tr. at 31-32).

He also stated that he was unaware of

the September 11th visit until “a later time.”

(Tr. at 15).

Officer Coll returned to the George’s residence on September
17, 2007, and he stated at the hearing that there was still no
shelter.

(Tr. at 16).

Officer Coll further stated that when he

asked Tina George when he could expect for her to obtain a shelter

6

for Baby,3 she informed him that Baby was an inside dog and that
she had a little carrying box with louvers on the side.
18).

(Tr. at

Tina George became belligerent, and Officer Coll stated that

it was probably fifteen minutes before Tina George called 911 from
the front yard, upon which he separated himself from her and waited
for Deputy Vernon in front of his truck.

(Tr. at 17 & 19).

Deputy Vernon had previously made contact with the Georges,
perhaps as much as a year prior, when he apparently pulled them
over and warned David George that he needed to get a West Virginia
driver’s license and vehicle registration.

(Tr. at 21).

When

Deputy Vernon arrived at the George residence on September 17,
2007, he found Officer Coll waiting by or in his truck and Tina
George outside in the yard.

Vernon states that Tina George had a

phone in her hand and was “just irate . . . . [and] was just
screaming and carrying on.”

Id.

Deputy Vernon stated that as he

needed to determine what was going on, he attempted to separate
Officer Coll and Tina George and initially tried to get information
from the latter.

(Tr. at 22).

Deputy Vernon became aware that the

query under discussion was whether Baby was an inside dog, and he
stated that while he tried to converse with Officer Coll, who
remained calm, Tina George continued to yell, scream, and interrupt
them, also stating that she had a shelter.

3

(Tr. at 23).

The beagle puppy was no longer a resident of the George
household at that time.
7

The parties diverge on what happened next.

Deputy Vernon and

Coll state that a still upset Tina George, by her own consent, took
them into the house to show them the shelter/carrier that she had
for

the

dog.

(Tr.

at

23),

while

Tina

George

testified

at

deposition that she only took Officer Coll and Deputy Vernon onto
the porch/threshold of the house to point out to them a travel case
that was inside the house, and that they never entered at house at
any time.

(See, e.g., #145, ex. 5, at 64-65).

Deputy Vernon

testified that Tina George kept “escalating and escalating” things
(Tr.

at 23) and screaming (Tr. at 24).

Vernon states that he

warned her at least three times that he would have to detain her if
she didn’t calm down. After Tina George swung her finger and hands
near his face, Vernon placed her in handcuffs and removed her from
the

house,

during

which

she

remained

very

emotional;

Vernon

described her as “screaming and hollering and pulling away from my
arm.”

(Tr.

obstruction

at
of

27).
an

He

officer

testified
was

that

appropriate

arresting

her

for

because

she

was

obstructing him
from calming the situation down to try to keep Mr. Coll
safe, as well as her own [safety]. She refused to follow
any orders, for lack of better words, to calm down . . .
That’s all it was, a simple request, “Ma’am, calm down
for me,” I mean, language like that. Like I said, it was
just such abnormal, erratic behavior; I mean, it’s not an
everyday basis you see that. I mean, it was just out of
control, for lack of a better word . . . . When I went to
initially restrain her, she pulled away from me. You
know, as I tried to, you know, get her arm in restraint
she eventually pulled away from me, and I was able to
regain control of her hands to restrain her, so that is
8

well documented as also part
(Tr. at 72).

Vernon

of the obstructing[.]

also testified that Tina George obstructed

his investigation. He stated that he “couldn’t figure out what was
going on with the initial harassment or involvement.
figure out anything. I

I couldn’t

mean, due to her behavior, both verbally

and physically, I couldn't figure out what was going on.

She

totally obstructed my investigation to figure out the facts of what
the allegations were on the scene.”

(Tr. at 73-74).

Tina George

testified at her deposition that she was arrested in the driveway
of her house.

(#145, ex. 5, at 71).

As Vernon unlocked the door

to his police cruiser, Tina George then headbutted the vehicle,
thus damaging it.

(Tr. at 29).

With Tina George handcuffed inside the house, Officer Coll
testified that he then picked up Baby, followed George and Coll out
of the house, and put Baby in his truck after securing the house.
He testified that he did not leave the house and then come back in
to get the dog after Tina George was arrested.
&81).

(Tr. at 30- 31

Despite the fact that he had previously spoken with David

George, who had requested that the applicable statute be sent to
him at the house, Officer Coll testified that he was unaware that
David George also lived there, and that he, Coll, did not know who
would care for the dog if it were not seized.

(Tr. at 81).

Tina

George, however, testified at deposition that while she was being
handcuffed in the driveway, Officer Coll went into the house, came

9

out with Baby, and put the dog in his truck.
84).

(#145, ex. 5, at 83-

According to her, Deputy Vernon had instructed Coll to

retrieve the dog. Id. at 85. Deputy Vernon, however, testified at
the evidentiary hearing that he had no knowledge about the dog, as
he “was too busy watching [Tina George] and taking care of other
things to watch the dog.”

(Tr. at 78).

David George testified that he arrived home from work around
a quarter after one in the afternoon, and found out from a neighbor
at approximately 2 p.m. that Tina had been arrested.

David George

picked her up at the county jail the following day, and picked up
Baby as well.
On September 22, 2007, Tina George sent a letter written by
David George to the KCSD complaining about the events of the 17th.
Sheriff Rutherford testified that he eventually received it, and
referred it to the Department’s law enforcement division as well as
its attorney.

(Tr. at 39-40).

Before the KCSD had responded, it

then received a second letter that had been mailed by David George
on

September

30th;

this

Department’s attorney.

letter

was

also

referred

to

the

Then, on October 10, 2007, Deputy Vernon

pulled over David George for his out-of state registration and
license.

Deputy Vernon testified at the hearing that he was

unaware of the Georges’ correspondence to the KCSD at the time od
the stop . (Tr. at 42).

David George accordingly sent a letter on

October 13, 2007, to the KCSD, complaining that this traffic stop

10

was in retaliation for his earlier letters, and that the police
cruiser’s strobe lights were left on despite Tina George’s seizure
condition.

However, at the evidentiary hearing David George did

not testify as to any direct indication from Deputy Vernon to him
that

the

stop

was

indeed

retaliatory

(Tr.

at

45).

Sheriff

Rutherford also testified that he was unaware of any conversations
that John Rutherford, the KCSD’s chief deputy for law enforcement,
the KCSD’s attorney, or that anybody else may have had with Deputy
Vernon about the letters.

(Tr. at 45-47).

On October 28th, the

Georges sent their fourth letter to the KCSD; Sheriff Rutherford
recalled sending it to the KCSD’s attorney, but could not remember
whether the letter was sent to anybody else.

(Tr. at 47-48).

Deputy Vernon testified that Sheriff Rutherford mentioned the
letters to him once “in passing” (Tr. at 52), but that he didn’t
remember when that conversation had taken place, and that it may
have taken place after the traffic stops.

Id.

Tina George’s trial for obstruction of an officer and property
damage had been scheduled for December 7, 2007.

However, Deputy

Vernon failed to appear, and the charges were dismissed. According
to Deputy Vernon, he did not appear due to not having received a
proper subpoena. (Tr. at 56). On February 27, 2008, Deputy Vernon
pulled over David and Tina George once again.

He cited David

George for an alleged stop sign violation, which David George
contests (Tr. at 49), as well as David George’s continued failure

11

to update his driver’s license and registration to West Virginia.
Deputy Vernon stated that the conversation between him and David
George only regarded the citation.

(Tr. at 51).

The next day,

February 28, David George sent another letter to the KCSD, again
complaining about retaliation by Deputy Vernon and the latter’s
use

of

the

police

cruiser’s

strobe

lights

during

the

stop.

However, Sheriff Rutherford testified that he never received this
letter, and that he only heard about the February 27 traffic stop
until shortly before the evidentiary hearing in this case. (Tr. at
53).

He also noted that, in his thirty-eight years as a police

officer, he had never heard of police strobe lights instigating a
seizure, and that it was KCSD policy to use cruiser strobe lights
during traffic stops (Tr. at 54). David George also testified that
Tina George did not have any seizures directly after either stop by
Deputy Vernon.
On March 3, 2008, the Georges filed the instant civil action.
A month later, on April 10, 2008, Deputy Vernon refiled the charges
against Tina George that had arisen from the September 17, 2007,
incident at her home and that were dismissed on December 7, 2007,
due to Deputy Vernon’s failure to appear; according to Deputy
Vernon, he learned from the KCSD’s attorneys about the dismissal
shortly before he refiled the charges.

(Tr. 56).

He also

stipulated that he re-filed the charges after the instant civil
suit was filed, and after he was made aware of it.

12

(Tr. at 57).

While he admitted that the timing looks bad, id., Deputy Vernon
testified that the charges were “absolutely not” refiled because he
was mad at Tina George for suing him.

Id.

He further testified

that the last thing that he wanted to do was arrest Tina George,
and that he has declined to pull over the Georges on other
occasions.

(Tr. 58).

He testified that he was advised by counsel

to refile the charges, id., and that he believed in good faith at
the time of the refiling that Tina George had committed the
offenses in question.

(Tr. at 84).

On April 15, 2008, the February 27, 2008 traffic citations
against David George were dismissed.

Deputy Vernon testified that

he was never given notice of the hearing that day, (Tr. at 60),
while David George testified that Deputy Vernon had been present
and had instructed the magistrate to dismiss the citations.
at 61-62).

A bench trial on Tina George’s refiled charges

been scheduled for October 27, 2008.

(Tr.
had

However, the trial was first

continued to November 6, 2008, and then the charges were dismissed,
after Deputy Vernon failed to show on either date.

Deputy Vernon

testified that both absences were, again, due to the fact that he
had not been notified about either date.

(Tr. at 64).

Sheriff

Rutherford affirmed that this is a problem that has beset numerous
law enforcement agencies in the area, and not just his.

(Tr. at

64-65).
Rutherford also testified that, in his tenure as Sheriff,

13

there have only been “one or two minor complaints” against Deputy
Vernon, as well as “one possible excessive force complaint” that
would have been brought three or four years ago.

(Tr. at 66).

He

also stated that there have been no other lawsuits filed against
Vernon; no disciplinary action has been taken against Vernon; the
chief deputy for law enforcement has never come to him with
concerns that Vernon was engaging in unconstitutional conduct; and
that he had no knowledge or belief as to any constitutional
violations by Vernon.

(Tr. at 67).
II. APPLICABLE LAW

A. Standard of Review
To obtain summary judgment, the moving party must 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.
Civ. P. 56(c).

Fed. R.

In considering a motion for summary judgment, the

court will not “weigh the evidence and determine the truth of the
matter.”
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
Instead, the court will draw any permissible inference

from the underlying facts in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
Although the court will review all underlying facts and
inferences in the light most favorable to the nonmoving party, the
nonmoving party nonetheless must offer some “concrete evidence from

14

which a reasonable juror could return a verdict in his [or her]
favor.”

Anderson,

477

U.S.

at

256.

Summary

judgment

is

appropriate when the nonmoving party has the burden of proof on an
essential element of his or her case and does not make, after
adequate time for discovery, a showing sufficient to establish that
element.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The nonmoving party must satisfy this burden of proof by offering
more than a mere “scintilla of evidence” in support of his or her
position.
allegations

Anderson, 477 U.S. at 252.
or

unsupported

speculation,

Likewise, conclusory
without

more,

are

insufficient to preclude the granting of a summary judgment motion.
See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.
1987); Ross v. Comm’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.
1985), abrogated on other grounds, 490 U.S. 228 (1989).
B. Suits Brought Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 states that “[e]very 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.”

15

A local government cannot be sued under 42 U.S.C. § 1983 for
injuries caused by its employees or agents unless it is the
“execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy” that causes the injury. Monell v.
Department of Social Services, 436 U.S. 658, 694 (1978).
The Fourth Circuit does not employ a presumption that an
individual

defendant

is

sued

only

in

his

official

capacity.

Instead, the Court must consider a complaint in its totality to
make this determination.
Cir. 1995).
was

sued

in

Biggs v. Meadows, 66 F.3d 56, 61 (4th

Here, the complaint suggests that Sheriff Rutherford
his

official

capacity

only,

since

there

are

no

allegations that Sheriff Rutherford himself was either aware of the
alleged unlawful conduct, or that he in any way participated
therein.

Instead, the allegations in the complaint relate only to

the actions of Deputy Vernon and Humane Officer Dick Coll. A claim
against

an

official

in

his

or

her

official

capacity

simply

represents another way of pleading an action against the entity of
which the officer is an agent, and thus is to be treated as a suit
against the entity only.

Kentucky v. Graham, 105 S.Ct. 3099, 3105

(1985).
However, the Plaintiffs may be attempting to hold Sheriff
Rutherford personally liable under a supervisory liability theory.
The Supreme Court has recently rewritten the law of supervisory

16

liability.
and

§

“Because vicarious liability is inapplicable to Bivens

1983

suits,

Government-official

a

plaintiff

defendant,

must

through

plead

the

that

official’s

individual actions, has violated the Constitution.”

each
own

Ashcroft v.

Iqbal, --- U.S. ---, ---, 129 S. Ct. 1937, 1948 (2009). Therefore,
“[i]n a § 1983 suit or a Bivens action—where masters do not answer
for the torts of their servants—the term “supervisory liability” is
a misnomer.

Absent vicarious liability, each Government official,

his or her title notwithstanding, is only liable for his or her own
misconduct . . . . [P]urpose rather than knowledge is required to
impose Bivens liability on the subordinate for unconstitutional
discrimination; the same holds true for an official charged with
violations

arising

from

his

or

her

superintendent

responsibilities.” Id. at 1949. See also id. at 1957 (Souter, J.,
dissenting) (stating that “[l]est there be any mistake, in these
words the majority is not narrowing the scope of supervisory
liability; it is eliminating Bivens supervisory liability entirely.
The nature of a supervisory liability theory is that the supervisor
may be liable, under certain conditions, for the wrongdoing of his
subordinates, and it is this very principle that the majority
rejects.”).

To

survive

summary

judgment,

the

Georges

must

therefore adduce evidence that Sheriff Rutherford himself purposely
acted

or

failed

to

act

in

violation

of

the

Plaintiffs’

constitutional rights, not merely that Deputy Vernon did so.

17

See

Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir.
2010).

Under Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994), a

supervisor who was not personally involved in the alleged wrong
doing,

but

who

had

knowledge

of

a

subordinate's

prior

unconstitutional actions, may still face §1983 liability under
certain conditions for constitutional injuries inflicted by a
subordinate.

The essential elements of a supervisory liability

claim are as follows:
(1) the supervisor had actual or constructive knowledge
that his subordinate was engaged in conduct that posed a
pervasive and unreasonable risk of constitutional injury
to citizens like the plaintiff; (2) the supervisor's
response to that knowledge was so inadequate as to show
deliberate indifference to or tacit authorization of
alleged offensive practices, and (3) there was an
affirmative causal link between the supervisor's inaction
and the particular constitutional injury suffered by the
plaintiff.
When

defendants

in

civil

rights

cases

invoke

qualified

immunity, federal courts apply the qualified immunity principles
set forth in Pearson v. Callahan, --- U.S. ---, ---, 129 S. Ct.
808, 818 (2009); Saucier v. Katz, 533 U.S. 194, 200-02 (2001),
Anderson v. Creighton, 483 U.S. 635, 639-641 (1987), Harlow v.
Fitzgerald, 457 U.S. 800, 817-819 (1982), and many other cases.
Government

officials

performing

discretionary

functions

are

generally protected from civil damages liability if their “conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”

Harlow v.

Fitzgerald, 457 U.S. at 818; Taylor v. Waters, 81 F.3d 429, 433
18

(4th Cir. 1996).
In a case in which the defense of qualified immunity is
raised, the court looks to the evidence before it in the light most
favorable to the plaintiff and asks whether the facts alleged show
the officer’s conduct violated a constitutional right, and whether
the right was clearly established.

Saucier, 533 U.S. at 201.

It

is up to the sound discretion of judges to decide which of these
two questions should be addressed first.

Pearson, 129 S. Ct. at

818.
C. Search and Seizure
The Fourth Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. Amend. IV. “At the
very core” of this guarantee “stands the right of a man to retreat
into his own home and there be free from unreasonable governmental
intrusion.”

Silverman v. United States, 365 U.S. 505, 511 (1961).

Indeed, the “physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.”

United

States v. U.S. Dist. Ct., 407 U.S. 297, 313 (1972). Thus, “[i]t is
a basic principle of Fourth Amendment law that searches and
seizures

inside

unreasonable.”

a

home

without

a

warrant

are

presumptively

Payton v. New York, 445 U.S. 573, 586 (1980)

(internal quotation marks omitted).
D. Probable Cause for Arrest

19

The Fourth Amendment requires probable cause for an arrest.
Probable

cause

under

the

Fourth

Amendment

“means

‘facts

and

circumstances within the officer’s knowledge that are sufficient to
warrant

a

believing,

prudent

person,

in

circumstances

the

or

one

of

shown,

reasonable
that

the

caution,

in

suspect

has

committed, is committing, or is about to commit an offense.’”
Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992) (quoting
Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61
L.Ed.2d 343 (1979)).

The charging statute applicable to the

obstruction charges filed against Tina George is relevant to
determining whether there was probable cause for her arrest.

West

Virginia Code § 61-5-17(a) provides that “[a]ny person who by
threats, menaces, acts or otherwise, forcibly or illegally hinders
or

obstructs,

or

attempts

to

hinder

or

obstruct,

any

law-enforcement officer . . . [shall be guilty of an offense
against the State].”
E. Malicious Prosecution / Retaliation
To

maintain

an

action

for

malicious

prosecution

it

is

essential to prove (1) that the prosecution was malicious, (2) that
it was without reasonable or probable cause, and (3) that it
terminated favorably to plaintiff.”

Syl. Pt. 1, Lyons v. Davy-

Pocahontas Co., 75 W. Va. 739, 84 S.E. 744 (1915).

“The term

malicious is defined as ‘[s]ubstantially certain to cause injury’
and ‘without just cause or excuse’ . . . . This definition implies

20

an improper or evil intent or motive or the intent to do harm.”
Clark v. Druckman, 218 W. Va. 427, 433-34,
(W.

Va.

2005)

prosecution

is

(internal
an

citations

actionable

form

624 S.E.2d 864, 870-71

omitted).
of

malicious

“[R]etaliatory
prosecution.”

Jarvis v. West Virginia State Police, --- W. Va. ---, ---, --S.E.2d ---, ---, 2010 Westlaw 4730972, 2010 W. Va. Lexis 139
(November 18, 2010).

“A plaintiff who brings a cause of action

alleging that he or she was criminally prosecuted in retaliation
for

exercising

a

right

protected

by

the

state

or

federal

constitution must plead and prove as an element of the cause of
action that there was an absence of probable cause to support the
criminal prosecution.”

Id. at Syl. Pt. 4.

III. ARGUMENT AND DISCUSSION
A. The Plaintiffs’ Claim Against the KCSD
The Plaintiffs argue that the KCSD had knowledge of and failed
to respond to the Plaintiff’s complaints regarding the September
17, 2007 arrest and alleged retaliatory traffic stops on October
10, 2007 and February 27, 2008 by Deputy Vernon subsequent to that
arrest. This knowledge arose from five letters sent to the KCSD by
the Plaintiffs regarding the initial arrest and the subsequent
traffic stops by Deputy Vernon.

(#1-2, p. 1-33).

The Plaintiffs

argue that [h]aving knowledge and did [sic] absolutely nothing,
makes Sheriff Rutherford a conspirator, after the facts.” (#130 at
17).

The Plaintiffs further state:

21

Had Sheriff Rutherford personally inquired as to
complaints filed against Officer Vernon, and properly
investigated, Sheriff Rutherford could have possibly
prevented the traffic stops of 10-10-07 and 2-27-08, of
which were unlawfully done.
Plaintiffs have filed 5
separate complaints against Officer Vernon, before
Plaintiffs filed civil actions in the Federal Court...
Responses by Sheriff Rutherford and/or legal counsels
validates that Sheriff Rutherford did have ongoing
knowledge of Officer Vernon and/or Officer Coll’s illegal
actions, and still, to date, to Plaintiffs knowledge has
done absolutely nothing, period...
Plaintiffs repeat, if legal counsels and Sheriff
Rutherford have actually read all five complaints filed
against Officers Vernon and Coll, it demonstrates a
pattern of criminal acts/intents...
Obviously, Sheriff Rutherford was aware of Officers
Vernon and Cols unlawful actions, by fact that he
contacted Law Firm of Bowles & Rice. All 5 complaints
filed against Officer Vernon, obviously, provide proofs
to a pattern of constitutional violations, criminal
offenses, conspiracies between Vernon and Coll to defraud
plaintiffs... Plaintiffs have shown proofs to 3 separate
distinct instances.
(#130 at 19-20).

Additionally:

Plaintiffs had filed 2 complaints against Officer Vernon,
9-22-07 and 9-30-07, even before the traffic stop of 1010-07.
A third complaint was filed dated 10-13-07,
pertaining to the traffic stop of 10-10-07. A fourth
complaint was filed dated 10-28-07. A fifth complaint
was filed dated 2-28-08 pertaining to the traffic stop of
2-27-08.
Plaintiffs have presented a pattern of
complaints/concerns/issues.
To validate, that had
Sheriff Rutherford taken some form(s) of actions against
Officer Vernon may have prevented one, or both traffic
stops...(which were) not lawfully done. In that Officer
Vernon wanted to check my drivers license and
registration of vehicle and submit fabricated charges
within citations in which to attempt to obtain money for
the county, under totally fraudulent pretenses. Thus,
violating U. S. Constitution 4th Amendment strongly
indicating that Officer Vernon would have reasons in
which to retaliate against Plaintiffs.
22

(#130 at 22).
KCSD asserts, however, that the Plaintiffs have no evidence
that any purported constitutional deprivation resulted from a KCSD
policy or custom, therefore, the complaint fails to state a claim
against KCSD. (#128 at 7-8). It further argues that the underlying
traffic stops were effectuated based upon probable cause, that is,
various

criminal

statute

violations.

KCSD

states

that

the

Plaintiffs concede that David George was in violation of several
statutes requiring an operator to register his vehicle in West
Virginia if he is a West Virginia resident and obtaining a West
Virginia license: David George did not change his driver’s license
address to West Virginia from Tennessee despite living in West
Virginia for years prior and he failed to obtain a valid West
Virginia operator’s license.

Also, the KCSD notes that Deputy

Vernon stated that the second stop was also effectuated due to
David George’s failure to stop at a stop sign. It therefore argues
that these circumstances give rise to probable cause for both
traffic stops. Accordingly, KCSD asserts it is entitled to summary
judgment as a matter of law. (#128 at 8-9).
The undersigned proposes that the presiding district judge
FIND that the Plaintiffs have not shown that a genuine issue of
material fact exists as to their claims against the KCSD.

As

required by Monell, the Plaintiffs have not presented any evidence
that an official policy or custom of the KCSD led to their alleged

23

injuries.

The Plaintiffs arguments are merely speculative and are

not sufficient to survive summary judgment.

Accordingly, the

Defendants’ motion for summary judgment as to the KCSD should be
granted.
B. The Plaintiffs’ Claim Against Sheriff Mike Rutherford
The

Plaintiffs

assert

that

Sheriff

Mike

Rutherford

had

knowledge of and failed to respond to Plaintiff’s complaints
regarding the September 2007 arrest and alleged retaliatory traffic
stops subsequent to that arrest on October 10, 2007 and February
27, 2008.

This knowledge arose from five letters sent to the KCSD

by the Plaintiffs regarding the initial arrest and the subsequent
traffic stops by Deputy Vernon.

(#1-2, p. 1-33).

The Plaintiffs

argue that [h]aving knowledge and did [sic] absolutely nothing,
makes Sheriff Rutherford a conspirator, after the facts.” (#130 at
17).

The Plaintiffs state that the complaints were “not responded

to, nor disputed, in a timely manner, in any way.”
18).

(#125 at 16-

The Plaintiffs further state:
Had Sheriff Rutherford personally inquired as to
complaints filed against Officer Vernon, and properly
investigated, Sheriff Rutherford could have possibly
prevented the traffic stops of 10-10-07 and 2-27-08, of
which were unlawfully done.
Plaintiffs have filed 5
separate complaints against Officer Vernon, before
Plaintiffs filed civil actions in the Federal Court...
Responses by Sheriff Rutherford and/or legal counsels
validates that Sheriff Rutherford did have ongoing
knowledge of Officer Vernon and/or Officer Coll’s illegal
actions, and still, to date, to Plaintiffs knowledge has
done absolutely nothing, period...

24

Plaintiffs repeat, if legal counsels and Sheriff
Rutherford have actually read all five complaints filed
against Officers Vernon and Coll, it demonstrates a
pattern of criminal acts/intents...
Obviously, Sheriff Rutherford was aware of Officers
Vernon and Cols unlawful actions, by fact that he
contacted Law Firm of Bowles & Rice. All 5 complaints
filed against Officer Vernon, obviously, provide proofs
to a pattern of constitutional violations, criminal
offenses, conspiracies between Vernon and Coll to defraud
plaintiffs... Plaintiffs have shown proofs to 3 separate
distinct instances.
(#130 at 19-20).
Plaintiffs had filed 2 complaints against Officer Vernon,
9-22-07 and 9-30-07, even before the traffic stop of 1010-07.
A third complaint was filed dated 10-13-07,
pertaining to the traffic stop of 10-10-07. A fourth
complaint was filed dated 10-28-07. A fifth complaint
was filed dated 2-28-08 pertaining to the traffic stop of
2-27-08.
Plaintiffs have presented a pattern of
complaints/concerns/issues.
To validate, that had
Sheriff Rutherford taken some form(s) of actions against
Officer Vernon may have prevented one, or both traffic
stops...(which were) not lawfully done. In that Officer
Vernon wanted to check my drivers license and
registration of vehicle and submit fabricated charges
within citations in which to attempt to obtain money for
the county, under totally fraudulent pretenses. Thus,
violating U. S. Constitution 4th Amendment strongly
indicating that Officer Vernon would have reasons in
which to retaliate against Plaintiffs.
(#130 at 22).
Defendant Sheriff Mike Rutherford asserts that the claim
against him is properly considered as a claim against the KCSD.
Consequently, for the reasons relating to the dismissal of the
KCSD, he argues that the claim against him in his official capacity
likewise fails as a matter of law.

(#128 at 9)..

Further, it is

asserted that there is no evidence that Sheriff Rutherford had any
25

personal knowledge of Vernon’s subsequent traffic stops.

Even if

he did have such knowledge, however, Sheriff Rutherford states that
his actions did not violate any federal right.
Sheriff Rutherford also argues that the Plaintiffs’ complaint
fails to allege the necessary elements of supervisory liability
theory. (#128 at 9-10). First, he states that the Plaintiffs rely
entirely upon a series of five letters they purportedly “sent to
Sheriff Rutherford.”

These five letters were attached to the

Plaintiffs’ complaint.
whom it may concern.”

Four of the letters are addressed to “To
The other letter (dated September 30, 2007)

does not include a salutation.

These letters are inadequate to

establish a supervisory liability claim because, he says, in order
to establish a supervisor’s knowledge of a pervasive risk, a
plaintiff

must

allege

that

the

supervisor

was

aware

of

his

subordinate’s “widespread” constitutional violations occurring “on
several different occasions.”

Shaw, supra at 799 (Stating that

“ordinarily, [the plaintiff] cannot satisfy his burden of proof by
pointing to a single incident or isolated incidents” to establish
supervisory liability.).

Secondly, he states that the Plaintiffs

have failed to allege an “affirmative causal link” between their
claimed constitutional injuries and his alleged failure to take
corrective action against Deputy Vernon because each of the five
letters were sent only after Deputy Vernon’s September 17, 2007
run-in with Tina George.

Moreover, to the extent that the Court

26

may find that the pleadings make such allegations, he argues that
Deputy

Vernon’s

conduct

that

serves

as

the

basis

of

that

correspondence was not “wrongful.”
Finally, to the extent that the Plaintiffs are claiming that
Sheriff Rutherford failed to protect them from future retaliatory
conduct by Vernon, he asserts that Vernon’s subsequent traffic
stops were legal and based on probable cause.

Accordingly, he

argues that such claims against him fail as a matter of law.

(#1,

#128 at 11-12).
The undersigned proposes that the presiding district judge
FIND that the Plaintiffs have not shown that a genuine issue of
material fact exists as to their official capacity claims against
Sheriff Rutherford.

Any claims against him in his official

capacity fail as such claims are, as noted earlier, merely claims
against the KCSD.
Further, claims by the Plaintiffs against Sheriff Rutherford
in his personal capacity fail as well.

Even when taking into

consideration the inferences that they are due on summary judgment,
the Plaintiffs have not shown that a genuine issue of material fact
exists as to whether Sheriff Rutherford violated the Constitution
through his own actions, or that he acted with the requisite
forbidden purpose.

See Iqbal, supra.

Moreover, the Plaintiffs

have also not met the supervisory liability requirements of Shaw.
The undersigned notes that testimony adduced at the evidentiary

27

hearing indicated that Sheriff Rutherford was aware of some of the
Plaintiff’s

various

letters,

even

though

none

of

them

were

specifically addressed to Sheriff Rutherford himself. However, the
Plaintiffs have failed to show a genuine issue of material fact
that there is an “affirmative causal link” between their alleged
injuries

and

Sheriff

Rutherford’s

corrective

action

against

speculation

and

conjecture

permissible inference.

Deputy
is

not

alleged
Vernon.

failure
The

sufficient

to

take

Plaintiffs’

to

create

a

Accordingly, the Defendants’ motion for

summary judgment as to Sheriff Rutherford should be granted.
C. The Plaintiffs’ Claims Against Deputy Vernon
1. Unlawful Arrest
The Plaintiffs assert that Deputy Vernon’s arrest of Tina
George for obstruction was without probable cause and thereby
violated her civil rights.

Tina George asserts that her verbal

objections are protected by the First Amendment and that she was
unreasonably seized, which violated her Fourth Amendment rights.
Tina George has consistently maintained that she was “arrested
outside of the house, in the driveway and the dog was inside of the
house, before Officer Vernon’s arrival.” (#125 at 21).
Plaintiffs take issue with Officer Vernon’s Affidavit, which
was introduced outside of the time line for discovery:4

4

As noted above, affidavits are considered discovery, and the
Plaintiff’s concerns are therefore misplaced.
28

Within Affidavit by Officer Vernon #5 “Tina George
invited Officer Coll and myself into her home...”...
There is absolutely nothing documented/indicated/
implicated/stated, period, that Officer Vernon was ever
in Plaintiffs residence on 9/17/07, until 12/23/09,
nothing in statement dated 9/17/07...
Within Affidavit of Officer Vernon #9 “Plaintiff Tina
George then stepped toward me in an aggressive manner and
pointed her finger in my face.”... How is pointing ones
finger in someone’s face 1) menacing, 2) obstructing an
officer, 3) nothing ever stated to this specific effect
until 2-11-10, if indeed, it actually did happen. No
physical proof to substantiate defendant’s statement.
(#130 at 1-3).
The Plaintiffs further state that in his statement from the
day of the arrest, Officer Vernon referred to Tina George as “the
suspect” when, in fact, she was the complainant who had placed the
911 call.

(#130 at 11-12).

The Plaintiffs assert that this shows

that Officer Vernon had a bias against Tina George and “validates
the officers’ attitudes towards Tina” as being negative

(#130 at

12) and that “he has already decided that Tina is guilty of
something.” (#125 at 10).

The Plaintiffs further state that

“[n]othing documented by either Officer Coll and/or Officer Vernon,
as that Tina was using any forms of fighting words.

No proof by

Officer Vernon as to what constitutes and/or defines, as to what an
aggressive stance is/was, by Tina, if done.”

(#125 at 4).

Deputy Vernon asserts in response that his arrest of Tina
George was not for her verbal threats but was due to her menacing
and obstructive behavior.

He states that, in his professional

independent judgment, he and Officer Coll were at risk for physical
29

assault given Tina George’s escalating aggressiveness, and that
there was clear probable cause for her detention and arrest. (#128
at 13-15).
The undersigned proposes that the presiding district judge
FIND that Plaintiff Tina George has shown that genuine issues of
material fact exist as to her unlawful arrest claims against Deputy
Vernon.

First, there is the issue of where the incident with

Deputy Vernon occurred. Tina George has averred from the beginning
that the parties never entered her home, while Deputy Vernon and
Officer Coll have made claims to the contrary and have stated that
Tina George was arrested inside her house.

More importantly, the

undersigned will not “weigh the evidence and determine the truth”
of whether Tina George’s behavior constituted probable cause for
the violation of West Virginia Code § 61-5-17, Anderson, 477 U.S.
at 249, as her actions may or may have been constitutionally
protected.
&

463

n.12

See, e.g., City of Houston v. Hill, 482 U.S. 451, 461
(1987)

(noting

“the

First

Amendment

protects

a

significant amount of verbal criticism and challenge directed at
police officers,” but also recognizing that the “freedom verbally
to challenge police action is not without limits . . . fighting
words which by their very utterance inflict injury or tend to
incite an immediate breach of the peace are not constitutionally
protected.”) (internal citations and quotations omitted).

Whether

or not Deputy Vernon had probable cause to arrest Tina George for

30

obstruction is a question for the jury, and summary judgment on
this matter would be inappropriate.5
2. Malicious Prosecution / Retaliation
The Plaintiffs assert that Officer Vernon’s arrest of Tina
George for obstruction was malicious.

The Plaintiffs also allege

that Deputy Vernon retaliated against her/them by stopping David
George on two occasions subsequent to her initial arrest for
various traffic violations, and for refiling the charges against
her relating to her arrest on September 17, 2007.
22, 26, 39).

(#130 at 10, 15,

The Plaintiffs state:

Within
Malicious
Prosecution
(standard,
it
is
required)...that it terminated favorably to Plaintiff.
Charges against Tina were dismissed, in essence on 12-507,
10-27-08,
11-6-08...In
that
Officer
Vernon
intentionally
submitted
false
and/or
fabricated
statements within his statement of 9-17-07, with the sole
intentions of having the courts and/or prosecutors to
rely on statement... (that is) malicious.
(#130 at 26).
[Regarding] the traffic stop of 10-10-07...[Officer
Vernon intentionally turned on] strobe lights [knowing
that they] can induce seizure activity...There had
already been two complaints filed against Officer Vernon
even before this traffic stop demonstrating an intent of
ill will/evil intents/maliciousness towards Plaintiffs.
(#130 at 27).(See also #125 at 15-16).
Regarding

the

traffic

stop

5

of

February

27,

2008,

the

However, the undersigned notes that the denting of the cruiser
occurred after Tina George was arrested and placed in hand-cuffs.
Accordingly, it is irrelevant to a determination of whether
probable cause for the obstruction arrest existed.
31

Plaintiffs again assert that Officer Vernon did not have probable
cause to stop them and was acting in a retaliatory manner. Officer
Vernon allegedly stopped David George for failing to stop at a stop
sign:
Plaintiffs sent legal counsels photos of stop sign and
that of sign directly beneath stating ‘Except When
Turning Right.’
Officer Vernon personally dismissed
citation of 2-27-08 on date of 4-15-08.
As well as
Officer Vernon tore citation at number and submitted an
entirely different number on side. Thus, nothing within
Plaintiffs complaint of 2-28-08 was disposed within a
timely manner. Thus legal counsel, as well as Officer
Vernon, personally knew, for fact, that he altered
citation number, and submitted false charge of “stop sign
violation” providing absolute proofs that citations
written by Officer Vernon were indeed maliciously done.
And definitely can be construed as being retaliatory
towards Plaintiffs.
(#130 at 29-30). (See also #125 at 17-18).
Regarding the refiling of charges against Tina George, the
Plaintiffs assert that it was retaliation/malicious prosecution
because there were no new facts to justify refiling the charges
which were legally dismissed on December 5, 2007 and that Officer
Vernon failed to discuss his reasoning for refiling the charges
against Tina George in his affidavit (presumably the Plaintiffs are
asserting that this is an admission of guilt).

(#130 at 39-41).

Specifically, the Plaintiffs state:
Charges against Tina were legally dismissed on 12-5-07...
Charges against Tina were again legally dismissed on 1027-08. Charges against Tina were again legally dismissed
on 11-6-08 in that neither Officers Vernon nor Coll were
present for any/all 3 court dates.
Thus, Tina was
provingly (sic) illegally arrested.
As well as, by
refiling charges against Tina on 4-10-08 was indeed an
32

attempt to maliciously prosecute her for same already
dismissed charges.
(#125 at 19).
The Plaintiffs also state that Officer Vernon failed to
discuss in his affidavit why he dismissed his February 27, 2008
citation against David George on April 15, 2008 (presumably the
Plaintiffs are asserting that this is an admission of guilt). (#130
at 42).
With respect to the initial arrest for obstruction, Deputy
Vernon asserts that his conduct was not malicious but was based on
reasonable, professional judgment given Tina George’s aggressive
and menacing conduct.

He states that Tina George has admitted to

cursing him, her menacing conduct, and her intentional damage to
his cruiser.

Deputy Vernon asserts that he had probable cause to

detain Plaintiff to protect officer safety, as well as to prevent
her continued and repeated hindrance of his investigation. (#128 at
15).

As it relates to the subsequent traffic stops, he asserts

that Tina George has no claim as it relates to these stops, as she
was not the driver, nor was she harmed in any manner as a result of
the stops.

Likewise, Vernon asserts that David George cannot

sustain a malicious prosecution claim because Deputy Vernon’s
conduct was objectively reasonable because he had probable cause to
believe that David George violated several West Virginia motor
vehicle statutes, i.e. failing to change his driver’s license from
a Tennessee driver’s license to a West Virginia operator’s license
33

and failing to register his vehicle in West Virginia, despite
residing in West Virginia for years prior to these traffic stops
(§17B-2-13), failing to have a valid operator’s license (§17B-2-2),
and failure to properly stop at a stop sign (§17C-12-5).
15-16, 24-26).

(#128 at

Vernon states that he engaged his emergency lights

for public safety as required by West Virginia Code §17C-2-5.
Vernon concludes that he “relied on his independent professional
judgment in determining that he had sufficient probable cause to
stop the subject vehicle . . . . Accordingly, Vernon is entitled to
qualified immunity.”

(#128 at 25-26).

The undersigned proposes that the presiding district judge
FIND that the Plaintiffs have shown that genuine issues of material
fact

exist

as

to

part

of

their

malicious

retaliation claims against Deputy Vernon.
the

malicious

prosecution

claim,

the

prosecution

and

First, with regards to

undersigned

has

already

proposed that the presiding judge find that whether Deputy Vernon
had probable cause for the arrest of Tina George is a question for
the jury.

Moreover, there is a genuine issue of material fact as

to whether Deputy Vernon had probable cause for the two traffic
stops of David George. First, as to the February 27, 2008, traffic
stop, David George has demonstrated a question of fact as to the
stop sign violation.

Moreover, given the inferences that the

Plaintiffs are due on summary judgment, there is a broader question
of fact as to probable cause, given that the two traffic stops

34

occurred after the Plaintiffs sent their letters to the KCSD
complaining about Deputy Vernon, and that Deputy Vernon refiled the
charges against Tina George after being sued by her.

The Court

should not “weigh the evidence and determine the truth” of whether
Deputy Vernon was acting out of probable cause or, instead,

with

Anderson, 477 U.S. at 249.

a malicious or retaliatory intent.

Therefore, summary judgment would be inappropriate.
However, the undersigned proposes that the presiding judge
FIND that there are no genuine issues of material fact as to Deputy
Vernon’s

use

of

the

strobe

lights

on

his

police

car.

The

Plaintiffs have not produced even a scintilla of evidence that
Deputy Vernon used the strobe lights with the intent of harming
Tina George.

Rather, all the evidence available to the court

suggests that he was merely following KCSD policy, and even David
George admitted that the strobe lights did not cause his ex-wife to
have a seizure.

Accordingly, Deputy Vernon’s motion for summary

judgment on this issue should be granted.
3. Illegal Seizure of Property
The Plaintiffs allege that Deputy Vernon and Humane Officer
Coll conspired to “illegally” take the dog in violation of her
federal property rights under the due process clause of the
Fourteenth

Amendment

and

that

she

was

protected

against

unreasonable searches and seizures under the Fourth Amendment.
Tina George has consistently maintained that she was “arrested

35

outside of the house, in the driveway and the dog was inside of the
house, before Officer Vernon’s arrival.” (#125 at 21).

Plaintiffs

further state: “Neither Plaintiff gave Officer Coll nor Officer
Vernon permission in which to physically enter residence at any
time on 9-17-07.” (#125 at 3). The Plaintiffs state: “Upon Tina’s
arrest, Officer Vernon advised Officer Coll to enter Plaintiffs’
residence to take dog on 9-17-07.”

(#125 at 11).

The Plaintiffs also argue
[i]n that Tina was arrested outside of house in driveway,
Officer
Vernon
did
not
request
a
warrant
for
search/seizure to be done inside of residence to obtain
dog.
Officer Coll did not request a warrant for
search/seizure to be done inside of residence to obtain
dog...
Officer Coll entered residence in which to obtain dog in
Officer Vernon’s presence. Officer Coll exited residence
with dog in Officer Vernon’s presence. Search and/or
seizure of the dog was not incident to Tina’s arrest,
thus, a warrant was mandatory by Officer Coll in which to
enter residence and/or seizure of the dog.
(#125 at 13-14).
The Plaintiffs further assert:
[t]here are numerous discrepancies within statements of
Officer Coll dated 10-5-07 and that of Officer Vernon
dated 9-17-07. Legal Counsels failed to mention that
numerous pertinent/relevant and material points/facts
were withheld from 1) Officer Vernon’s statement of 9-1707, 2) Officer Vernon’s Affidavit of 2-26-10, 3) Officer
Coll’s statement of 10-5-07, 4) Officer Colls Affidavit
of 3-22-10, 5) As well as their own statements do not
consistently coordinate with their own affidavits...
Defendant clients have intentionally perjured themselves.
Defendant legal counsels have intentionally perjured
themselves.

36

(#135 at 13-15).
The Plaintiffs state “Legal Counsel David Nelson documented
within response dated 12-23-09 #9 ‘When Deputy Vernon last took
note of the animal, it was still chained and on the front porch of
the Plaintiffs home.’

Statements by legal counsel David Nelson

totally contradict each other, and from within the very same
document.”

(#125 at 25).

Deputy Vernon asserts in his defense that Officer Coll was
statutorily authorized to remove the dog from Tina George’s exhusband’s home once she was taken into custody and arrested per
West Virginia Code §7-10-4, which outlines the process due an owner
whose animal has been taken into possession thereunder. He further
asserts that the complaint contains no allegation that this process
was not followed, or that the extent of the process available is
constitutionally inadequate.

(#128 at 16).

If the statute under which Humane Officer Coll acted were
found to be unconstitutional, Deputy Vernon asserts that he would
not be subject to liability pursuant to the doctrine of qualified
immunity, since he could not reasonably have known that an activity
authorized

by

a

unconstitutional.

valid

statute

might

later

be

determined

See Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)(“[G]overnment officials... are shielded from liability for
civil damages insofar as their conduct does not violate clearly
established

statutory

or

constitutional

37

rights

of

which

a

reasonable person would have known.”).
Deputy Vernon states that there is no allegation that he
illegally entered the residence to seize the Plaintiffs’ dog.

An

illegal seizure requires a seizure, and he asserts that his alleged
“complicity” in Coll’s alleged improper seizure is insufficient to
proceed on such a claim.

He claims that the Plaintiffs never

alleged that he himself unlawfully entered the residence to seize
the dog.

To the contrary, at the time the dog was seized by Coll,

Deputy Vernon states that he and Tina George were at his cruiser.
(#128 at 19).
To the extent Coll’s alleged wrongful conduct is being imputed
to Deputy Vernon, in addressing West Virginia Code §7-10-4 (which
allows the seizure “of any animal...known to be abandoned [or]
neglected...”), Deputy Vernon states that the Plaintiffs do not
contend

that

this

statute

provides

insufficient

procedural

safeguards so as to run afoul of the Due Process Clause.

Instead,

he states that they claim only (1) that the dog was not actually
abandoned or neglected, and (2) that Officer Coll failed to
strictly follow the statute’s notice requirements by not providing
Tina George with written notification that her dog had been seized.
(#128 at 19-20).
Vernon states that the Fourth Amendment does not protect
against all searches and seizures, but only against “unreasonable
searches and seizures.”

To the extent that the Plaintiffs intend

38

to assert a Fourth Amendment conspiracy claim against Deputy Vernon
due to Officer Coll’s entry into David George’s residence to
retrieve Tina George’s dog, Vernon argues that Officer Coll did not
act unreasonably because he was legally authorized to enter the
property to fulfill his statutory obligation under West Virginia
Code § 7-10-2 and § 7-10-4 of taking into possession abandoned or
neglected animals.

(#128 at 22).

Further, he states that it is

undisputed that he had no supervisory authority over Coll.

Thus,

even if he told Coll to seize the dog, there is no official conduct
by Deputy Vernon that is actionable simply by that purported
instruction.
Virginia

Code

(#128 at 23).
§

7-10-2

Moreover, regardless of whether West

might

ultimately

be

struck

down

as

unconstitutionally permitting warrantless searches and seizures, it
was objectively reasonable at the time (given that the validity of
this statute has not been called into question) for Officer Coll to
enter David George’s residence.

(Id).

The undersigned proposes that the presiding district judge
FIND that the Plaintiffs have shown that genuine issues of material
fact exists as to Deputy Vernon’s involvement in a Fourth Amendment
conspiracy

claim,

inapplicable.

and,

moreover,

that

qualified

immunity

is

While Deputy Vernon testified at the evidentiary

hearing that he had no involvement with Officer Coll’s removal of
Baby from the George household, Tina George testified to the
contrary at her deposition; there is also, of course, a dispute

39

over where the arrest of Tina George occurred.

Moreover, despite

Deputy Vernon’s arguments, it is clearly established that there is
no canine welfare exception to the Fourth Amendment, and the claim
that a reasonable person would not have been aware that the United
States Constitution trumps West Virginia animal welfare law is
without merit, see Altman v. City of High Point, NC, 330 F.3d 194,
203 (4th Cir. 2003), as is Deputy Vernon’s claim that there could
not

have

been

supervisory

an

actionable

authority

over

conspiracy

Officer

Coll.

because

he

Therefore,

had

no

summary

judgment on this matter would be inappropriate.
D. The Plaintiffs’ Claims Against Humane Officer Dick Coll
The Plaintiffs claim that Humane Officer Dick Coll unlawfully
entered their residence without consent or a warrant and thereupon
unlawfully seized their dog in violation of their constitutional
rights.

Tina George has consistently maintained that she was

“arrested outside of the house, in the driveway and the dog was
inside of the house, before Officer Vernon’s arrival.” (#125 at
21).

The Plaintiffs further state: “[n]either Plaintiff gave

Officer Coll nor Officer Vernon permission in which to physically
enter residence at any time on 9-17-07.”

(#125 at 3).

The

Plaintiffs also state that “Officer Coll had personally talked with
David over the phone, 30 minutes or so before Officer Vernon’s
arrival.

That David requested W. Va. Codes be sent to the

Plaintiffs’ residence [so] that by all reasonable appearances . .

40

. David also lived at residence on 9-17-07 and that Tina did not
live at residence alone on 9-17-07.”

(#125 at 13).

The Plaintiffs also take issue with Officer Coll’s Affidavit.
Absolutely nothing stated within Affidavit as to having
talked with David over the phone on 9-11-07 or 9-17-07.
Within Response to Plaintiffs’ Discovery #4, Officer Coll
and/or legal counsels agree that Officer Coll spoke with
David on 9-17-07.
Within Officer Coll’s “Statement”
dated 10-5-07, he states that he spoke with David over
the phone on 9-11-07. Officer Coll’s Statement did not
come into existence, period, to Plaintiffs’ knowledge
until 9-20-08... Officer Coll has absolutely no way
legally in which to prove his statement that he wasn’t
harassing Tina.
(#135 at 1-3).
The Plaintiffs assert that because Richard Coll had spoken to
David George twice, he was fully aware that David George resided in
the house: “Plaintiff David George normally arrives home between
1:15 PM and 1:30 PM daily.
by Coll/legal counsel.
etc.”

(#135 at 5).

inside dog.

Thus, dog was not abandoned as implied

Thus, dog would have been fed, watered,
The Plaintiffs state that the “dog is an

No outside shelter was needed/mandatory.

Nor, was it

concluded that the dog was cruelly treated, and/or neglected, just
by reason of being on a chain.”
However, Officer

(#135 at 6).

Coll has maintained throughout this case

that he was statutorily authorized to remove Tina George’s dog once
she was taken into custody and arrested. He asserts that he seized
the dog in accordance with his duties under W. Va. Code §61-8-19,
which imposes a duty on animal owners to provide their animals with

41

adequate shelter and sustenance; W. Va. Code §7-10-1 and §7-10-2,
which impose a duty on Officer Coll to prevent the perpetration of
any act of animal cruelty or neglect and W. Va. Code §7-10-3 and
§7-10-4, which impose a further duty on Officer Coll to seize an
animal if he believes that it has been abandoned and will thereby
be denied sustenance and shelter.

Pursuant to these statutory

duties imposed upon him, he asserts that he lawfully seized the dog
in question upon the arrest of Tina George on September 17, 2007.
He states that he has maintained throughout this case that he was
inside the residence of Tina George, along with Deputy Vernon of
the

Kanawha

County

Sheriff’s

Department,

at

the

request

and

invitation of Tina George to view various objects to offer an
opinion on whether they would provide a suitable outside shelter
for her dog, to determine whether Tina George was providing
adequate shelter for the dog while it was outside.

As such, he

maintains that he entered her home with her consent.

Officer Coll

submitted his Affidavit and that of Deputy Vernon, in which both
attested under oath that they did have Plaintiff Tina George’s
consent to enter the home on September 17, 2007 and that she was
arrested in the living room of her home.

(#132 at 2-4; #132-1;

#132-2).
Tina George has asserted throughout the case that she did not
ever consent to entry of Officer Coll and Deputy Vernon into her
residence, that they never entered her home prior to her arrest,

42

and that she was arrested outside her home in her driveway.

Tina

George maintained those assertions during her deposition taken on
February 11, 2010. Counsel for Officer Coll states that given that
Tina George has maintained those factual allegations throughout the
pendency of this case, there is a genuine issue of material fact to
be determined by the jury.

As a result, Officer Coll did not file

a dispositive motion and the dispositive motion filed by the
Plaintiffs must be denied.

(#132 at 3)

The undersigned proposes that the presiding district judge
FIND that Officer Coll has shown that genuine issues of material
fact exists as to the Plaintiffs allegations against him.

As

Officer Coll has noted, there are genuine issues of material fact
as to where the arrest of Tina George occurred.

Accordingly, the

Plaintiffs’ motion for summary judgment should be denied as to the
seizure of the dog and Officer Coll’s alleged entry into the home.
Further, as the undersigned indicated above, qualified immunity is
not applicable.
IV. RECOMMENDATION
For the reasons stated above, it is respectfully RECOMMENDED
that the Plaintiff’s Dispositive Motion (#125) be denied, and that
the Motion for Summary Judgment (#127) of Defendants KCSD, Sheriff
Rutherford, and Deputy Vernon be granted in part as to the KCSD,
Sheriff Rutherford, and the strobe light claims against Deputy
Vernon, and denied in part as to the other claims against Deputy
43

Vernon.

The parties are notified that this Proposed Findings and

Recommendations is hereby FILED, and a copy will be submitted to
the Honorable John T. Copenhaver, Jr., United States District
Judge. Pursuant to the provisions of Title 28, United States Code,
Section 636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of
Civil Procedure, the Plaintiff shall have seventeen (17) days
(fourteen

days,

filing

of

objections

and

three

days,

mailing/service) from the date of filing this Proposed Findings and
Recommendations within which to file with the Clerk of this Court,
specific

written

objections,

identifying

the

portions

of

the

Proposed Findings and Recommendation to which objection is made,
and the basis of such objection. Extension of this time period may
be granted for good cause shown.
Failure to file written objections as set forth above shall
constitute a waiver of de novo review by the District Court and a
waiver of appellate review by the Circuit Court of Appeals. Snyder
v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S.
140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United
States v. Schronce, 727 F.2d 91 (4th Cir. 1984); United States v.
Brodnik, 710 F. Supp.2d 526 (S.D. W. Va. 2010).

Copies of such

objections shall be served on the United States Attorney, Judge
Copenhaver, and this Magistrate Judge.
The Clerk is directed to mail a copy of this Order to the
Plaintiffs and to transmit it to counsel of record.
ENTER: December 8, 2010

44