Settle et al v. Hall et al
MEMORANDUM OPINION AND ORDER denying defendants' 22 MOTION for Partial Summary Judgment. Signed by Judge John T. Copenhaver, Jr. on 5/18/2012. (cc: attys; any unrepresented parties) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
JAMES SETTLE and
Civil Action No. 2:11-00307
NICHOLAS HALL and
PAUL MICHAEL MCGRAW
MEMORANDUM OPINION AND ORDER
Pending is defendants' motion for partial summary
judgment filed March 6, 2012.
On March 25, 2010, plaintiffs James and Thomas Settle
were visiting Big Willie's Bar in Fayette County.
on participating in a pool tournament scheduled for later that
Defendant Deputies Nicholas Hall and Paul Michael
McGraw were at the time both employed by the Fayette County
Plaintiffs allege that Deputy Hall and
Deputy McGraw assaulted them at or near the Bar at some point
during the evening.
On May 4, 2011, plaintiffs instituted this civil
They allege claims for (1) violation of the Eighth and
Fourteenth Amendments ("Count One"), (2) assault and battery
("Count Two"), (3) intentional infliction of emotional distress
arising out of, inter alia, the use of excessive force, the
malicious filing of false criminal charges against plaintiffs
for battery on, and obstruction of, a police officer, and their
delay in securing arrest warrants for plaintiffs in an effort to
maliciously take them into custody over the Easter holiday
weekend ("Count Three"), and (4) conduct of a fraudulent
official proceeding in violation of West Virginia Code section
61-5-27a(c) ("Count Four").
Defendants seek partial summary judgment.
assert that the assault and battery allegations found in Count
Three should be dismissed inasmuch as it may result in a double
recovery if the jury finds for plaintiffs on both Counts Two and
They next assert that Count Four should be dismissed
inasmuch as the statute there pled does not apply to sheriff
A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”
Fed. R. Civ. P. 56(c).
Material facts are
those necessary to establish the elements of a party’s cause of
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant. Id.
moving party has the burden of showing -- “that is, pointing out
to the district court -- that there is an absence of evidence to
support the nonmoving party’s case.”
477 U.S. 317, 325 (1986).
Celotex Corp. v. Catrett,
If the movant satisfies this burden,
then the non-movant must set forth specific facts as would be
admissible in evidence that demonstrate the existence of a
genuine issue of fact for trial.
Fed. R. Civ. P. 56(c); id. at
A party is entitled to summary judgment if the record
as a whole could not lead a rational trier of fact to find in
favor of the non-movant.
Williams v. Griffin, 952 F.2d 820, 823
(4th Cir. 1991).
Conversely, summary judgment is inappropriate if the
evidence is sufficient for a reasonable fact-finder to return a
verdict in favor of the non-moving party.
Anderson, 477 U.S. at
Even if there is no dispute as to the evidentiary facts,
summary judgment is also not appropriate where the ultimate
factual conclusions to be drawn are in dispute.
Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).
A court must neither resolve disputed facts nor weigh
the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239
(4th Cir. 1995), nor make determinations of credibility.
Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986).
the party opposing the motion is entitled to have his or her
version of the facts accepted as true and, moreover, to have all
internal conflicts resolved in his or her favor.
de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
Inferences that are “drawn from the underlying facts . . . must
be viewed in the light most favorable to the party opposing the
United States v. Diebold, Inc., 369 U.S. 654, 655
1. Count Three
Respecting the alleged duplicative nature of Counts
Two and Three, the Supreme Court of Appeals of West Virginia
observed as follows in Criss v. Criss, 177 W. Va. 749, 356
S.E.2d 620 (1987):
In the present case, the claim for the tort of
outrageous conduct is duplicitous of the claim for
assault and battery. As noted above, if a jury finds
that the proof sustains the appellant's complaint, she
will be able to recover compensatory and punitive
damages against the appellee as a result of the
assault and battery, including elements of emotional
distress. Therefore, it would be inappropriate to
allow her to also recover damages based on the tort of
Id. at 751-52, 356 S.E.2d at 622-23.
In Criss, it appears that
the plaintiff alleged that the assault and battery and the
intentional infliction of emotional distress arose out of the
To the extent plaintiffs would assert that the March
25, 2010, assault and battery by defendants also amounted to the
intentional infliction of emotional distress, the latter claim
is barred by Criss.
In their response brief, however,
profess that the intentional infliction claim arises
from later events:
As may be gleaned from Defendants['] own recitation of
facts in their Motion For Partial Summary Judgment,
there is [sic] two distinct causes of action -- the
first being assault and battery which is of an
instantaneous nature that occurred on March 25, 2010,
and the second is the tort [sic] of Outrage and Filing
A Fraudulent Official Proceeding that began March 26,
2010 and ran through December 8, 2010 with the
dismissal of the criminal [sic] filed by the
Defendants that was ultimately dismissed when
Defendant McGraw filed [sic] to appear for the trial
of the matter.
(Resp. in Oppos. at 6).
Defendants do not reply to this characterization by
With this limiter, a Criss redundancy does not
Defendants are thus not entitled to judgment as a matter
of law respecting Count Three.
2. Count Four
Defendants next request dismissal of Count Four.
They assert that the statute giving rise to the claim does not
apply to sheriff deputies.
That statute, West Virginia Code
section 61-5-27a(c), provides as follows:
It is unlawful for a person to knowingly cause a
public official or employee to file, record or deliver
a fraudulent claim of indebtedness, common law lien or
other lien, financial statement, complaint, summons,
judgement, warrant or other legal process, including
those issued as the result of a fraudulent official
W. Va. Code § 61-5-27a(c) (emphasis added).
The term "person"
is expansively defined in West Virginia Code section 61-527(a)(4): "'Person' means an individual, group, association,
corporation or any other entity."
The term "public
official or employee" is defined as follows:
“Public official or employee” means an elected or
appointed official or employee, of a state or federal
court, commission, department, agency, political
subdivision or any governmental instrumentality.
West Virginia Code § 61-5-27(a)(5).
Defendants assert, in essence, that they cannot
qualify as both "person[s]" under the statute and as "public
official[s] or employee[s]."
They conclude consequently that
the statute does not contemplate a claim against them.
Plaintiffs counter that the statute should be read broadly and,
absent an exclusion, reach the wrongful acts allegedly
First, it is difficult to imagine a more encompassing
definition of the term "person."
Second, there is no indication
in the statute that law enforcement officers are excluded from
the statute's reach.
Just the opposite seems true.
party cites a provision found later in the statute at
subdivision (k), which states as follows: "Nothing in this
section prohibits or in any way limits the lawful acts of a
legitimate public official or employee."
27a(k) (emphasis added).
W. Va. Code § 61-5-
If subdivision (k) was deemed
necessary to immunize "the lawful acts" of public officials or
employees, a natural reading would seem to leave their unlawful
acts within the statute's reach.
It is the case that subsection (c) requires the
offending "person" take the step of "caus[ing] a public official
or employee to" commit one of the enumerated acts found in the
In their response brief, plaintiffs assert
that defendants "fraudulently induce[d] both the Fayette County
Prosecutor's office and the Fayette County Magistrate's office
to issue a complaint, warrant or other legal process against the
(Resp. at 8).
Inasmuch as defendants have not
replied to that assertion and shown otherwise, they are not
entitled to judgment as a matter of law respecting Count Four.
Based upon the foregoing discussion, it is ORDERED
that defendants' motion for partial summary judgment be, and it
hereby is, denied.
The Clerk is directed to transmit copies of this
written opinion and order to all counsel of record and any
ENTER: May 18, 2012
John T. Copenhaver, Jr.
United States District Judge
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