Runyon v. Hannah et al

Filing 84

MEMORANDUM OPINION AND ORDER denying plaintiff's 53 MOTION for Partial Summary Judgment; denying defendant's 56 MOTION for Summary Judgment; The court grants summary judgment in favor of the defendants with respect to the purported Coun t II violation of § 1983 and the Fourth Amendment, arising from the plaintiffs allegations that he was subjected to excessive force during his initial seizure and arrest. The court also finds summary judgment in favor of defendant Hannah appropriate regarding the Count I cause of action for negligent training with respect to the use of force and for negligent supervision. Signed by Judge John T. Copenhaver, Jr. on 5/16/2013. (cc: attys; any unrepresented party) (tmr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ARVIL RUNYON,
Plaintiff,
v.

Civil Action No. 2:12-1394

LONNIE HANNAH, in his individual
capacity and official capacity as
Sheriff of the Mingo County Sheriff’s Dept.,
JOE SMITH, in his individual capacity and
official capacity as Sergeant of the Mingo
County Sheriff’s Dept.,
MICHAEL MILLER, in his individual capacity
and official capacity as a Deputy of the Mingo
County Sheriff’s Dept., and the
MINGO COUNTY COMMISSION, a political
subdivision of the State of West Virginia,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are a motion for partial summary judgment
filed by the plaintiff on February 6, 2013, and a motion for
summary judgment filed by individual defendants Hannah, Smith,
and Miller on February 7, 2013.
I.

Factual and Procedural Background

On February 21, 2012, the plaintiff, Arvil Runyon,
Sr., visited the Mingo County Sheriff’s Department, intent upon
securing the release of his impounded vehicle.

Compl. ¶¶ 9-11.

He met with defendant Lonnie Hannah, then sheriff of Mingo

County,1 in his office in the Mingo County Courthouse.
sheriff was unable to locate the vehicle’s keys.

The

Pl.’s Mot. for

Partial Summ. J. and Att’ys’ Fees (“Pl.’s Mot.”) Ex. B, at 4.
The parties offer divergent descriptions of subsequent events.
The plaintiff claims that after “a brief exchange of
words” with defendant Hannah, he was forcibly escorted to the
door by defendant Joe Smith, a sergeant with the Mingo County
Sheriff’s Department.

Compl. ¶¶ 12-15; Pl.’s Mot. Ex. C, at 3.

Defendant Smith’s grip was allegedly so strong that “blood was
running down . . . [the plaintiff’s] arms.”
at 9.

Pl.’s Mot. Ex. A,

According to the plaintiff, he was then deprived of his

cane and dragged down the hallway by defendant Smith, defendant
Michael Miller, a deputy with the Sheriff’s Department, and an
unidentified third officer.

Id.

The plaintiff claims to have

been choked, beaten, slammed to the ground, and pinned with his
arms twisted painfully behind his back, all without provocation.
Id. at 9-10; see also Compl. ¶¶ 18-24.
The defendants, however, portray the plaintiff as
incensed, spewing colorful epithets and inviting defendant
Hannah to “step outside and take off his gun and badge.”
1

See

Defendant Hannah served as sheriff at all times relevant to
this matter. See Pl.’s Mem. of Law in Supp. of Mot. for Partial
Summ. J. and Att’ys’ Fees (“Pl.’s Mem.”) 2 n.1. Having held
office for two consecutive terms, he was precluded from seeking
a third term in the most recent elections. Id.
2

Defs.’ Mem. of Law in Supp. of Mot. for Summ. J. (“Defs.’ Mem.”)
Ex. C, at 4.

According to defendant Smith, the plaintiff

continued his tirade in the hallway outside the sheriff’s
office, refusing repeated requests to leave the courthouse and
eventually prompting defendant Smith to issue him a citation for
“profanity, swearing, [and] obstructing an officer.”
at 4-5.

Id. Ex. C,

When informed of the citation, the plaintiff allegedly

pushed defendant Smith, raised his cane, and threatened to
“‘knock . . . [his] f.....g brains out’ [or] something to that
effect.”

Id. Ex. C, at 5.

The defendants contend that a

struggle ensued as deputies attempted to relieve the
recalcitrant plaintiff of his cane.

Id. at 3.

Officers were

purportedly forced to bring the plaintiff “to the ground,” given
his continuing resistance to being handcuffed.2

2

See id.

The parties have each submitted video recordings of the initial
confrontation between the plaintiff and the deputies. See Pl.’s
Mot. Ex. H; Defs.’ Mem. Ex. F. The recordings, which lack
audio, corroborate the version of events presented by the
defendants. The plaintiff, for example, can be seen repeatedly
exchanging words with defendant Smith and ignoring his apparent
exhortations to continue walking down the hallway. See, e.g.,
Defs.’ Mem. Ex. F, clip “joe 1st floor,” at 0:20-1:45. During
the final such exchange, the plaintiff resists defendant Smith’s
attempts to seat him on a bench, placing his hand on the
deputy’s chest and suddenly gripping his cane with both hands.
Id. at 1:50-2:00. The plaintiff then vigorously resists for
almost thirty seconds as defendant Smith and two other officers
attempt to remove the cane from his grasp. Id. 1:55-2:35.
After a brief respite, during which the plaintiff appears to
confer with the officers, he can be seen struggling as deputies
attempt to handcuff him. Id. at 3:00-4:00. The plaintiff
3

Neither party disputes that the plaintiff was
eventually arrested for battering an officer, requiring him to
be arraigned before a magistrate.
3.

See Compl. ¶ 27; Defs.’ Mem.

The magistrate’s court was located next door on the third

floor of the adjacent Memorial Building.
Mem. 13.

Integrated Pretrial

Defendants Smith and Miller, among others, transported

the plaintiff to the Memorial Building.

The parties concede

that the plaintiff was provided with a wheelchair, as his
various disabilities prevented him from walking without a cane.
Compl. ¶¶ 25-27; Defs.’ Mem. 3; see also Pl.’s Mot. Ex. A, at
23.

Defendants Smith and Miller then exited the courthouse with

the plaintiff, wheeling him to the rear entrance of the Memorial
Building.

Pl.’s Mot. Ex. C, at 6.

Upon arriving at the

Memorial Building, the plaintiff and the transporting officers
were informed that the primary elevator was inoperative and that
the secondary elevator3 provided no access to the third floor, on
which the magistrate’s chambers were located.

Id.

Again, the parties offer contrasting accounts of the
events that followed.

Defendants Smith and Miller state that

they offered to have the plaintiff arraigned in the basement, so
ceased resistance only after officers laid him on the ground and
cuffed his hands behind his back. Id. at 4:00-4:30.
3

During the deposition of defendant Smith, the secondary
elevator was alternately referred to as a “service elevator” and
a “handicapped elevator.” See Pl.’s Mot. Ex. C, at 6.
4

that he might avoid ascending several flights of stairs to the
magistrate’s usual courtroom.

See Joint Resp. of Defs. to Pl.’s

Mot. for Summ. J. (“Defs.’ Joint Resp.”) Ex. B, at 2; Defs.’
Mem. Ex. C, at 6.

Both defendants agree that the plaintiff

refused the proposed accommodation, declaring himself able to
use the staircase with some assistance from the deputies.
Defs.’ Joint Resp. Ex. B, at 2; Defs.’ Mem. Ex. C, at 6.
Defendants Smith and Miller state that the plaintiff traversed
the stairs without incident, using the handrail to support
himself.

Defs.’ Mem. Ex. C, at 6; id. Ex. D, at 5.
The plaintiff denies being offered an alternate

location for his arraignment, but acknowledges agreeing to use
the stairs if the deputies would provide him with his cane and
time to rest.

Pl.’s Mot. Ex. A, at 12.

He accuses defendants

Smith and Miller of repeatedly kicking, pushing, and shoving him
in the stairwell.

Id.

Once before the magistrate, it is undisputed that the
plaintiff pled guilty to battering a police officer.

See id.

Ex. A, at 13.
On May 3, 2012, the plaintiff initiated suit in the
United States District Court for the Southern District of West
Virginia.

The complaint pleads four causes of action.

5

Count I

alleges negligent training and supervision under state law.4
Compl. ¶¶ 33-37.

Count II

asserts a violation of 42 U.S.C. §

1983 arising from the use of purportedly excessive force by
defendants Smith and Miller.

Compl. ¶¶ 38-43.

Count III sets

forth a claim pursuant to Title II of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Count IV raises
a similar claim under the Rehabilitation Act of 1973, 29 U.S.C.
§ 794(a).

Compl. ¶¶ 44-56.

28 U.S.C. § 1331 vests the court

with original jurisdiction over the federal claims and 28 U.S.C.
§ 1367(a) grants supplemental jurisdiction over the sole cause
of action arising under state law.
The plaintiff has moved for partial summary judgment
with respect to the alleged violations of the ADA, 42 U.S.C. §
12132, and the Rehabilitation Act, 29 U.S.C. § 794(a), in Counts
III and IV.

The three individual defendants have moved for

summary judgment with respect to the negligence cause of action
and the potential violations of 42 U.S.C. § 1983 in Counts I and
II.

4

Count I is drafted broadly, setting forth numerous instances of
“negligence.” See Compl. ¶ 35 (alleging, among other things,
negligent failure to comply with the state and federal
constitutions). The subsequent arguments of the parties,
however, suggest that Count I was intended primarily to assert a
claim for negligent training and supervision.
6

II.

Analysis

A. Governing Standard
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
action.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).
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.

The

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.
Celotex, 477 U.S. at 322-23.

Fed. R. Civ. P. 56(c);

A party is entitled to summary

7

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.
248.

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.

Overstreet v.

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).

Rather,

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.

Charbonnages

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
motion.”

United States v. Diebold, Inc., 369 U.S. 654, 655

(1962).

8

B.

The Plaintiff’s Motion for Partial Summary Judgment
The plaintiff requests summary judgment with respect

to the claims brought under the ADA, 42 U.S.C. § 12132, and the
Rehabilitation Act, 29 U.S.C. § 794(a), arguing that by failing
to arraign him in the basement of the Memorial Building housing
the magistrate, the defendants did not reasonably accommodate
his disability.

Pl.’s Mem. 17-21.

In response, the defendants

note the concurring testimony of Deputies Smith and Miller,
which indicates that the plaintiff expressly refused to be
arraigned in the basement.

Defs.’ Mem. 8-11.

The ADA is intended to “provide clear, strong,
consistent, enforceable standards addressing discrimination
against individuals with disabilities.”
12101(b)(2).

42 U.S.C. §

Title II of the Act, 42 U.S.C. §§ 12131-12165,

under which the plaintiff frames his claim, prohibits
discrimination by public entities.5

The statute provides that

“no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a

5

Title I, 42 U.S.C. §§ 12111-12117, governs discrimination
claims involving various aspects of employment. Title III, 42
U.S.C. §§ 12182-12189, bars discrimination by public
accommodations.
9

public entity, or be subjected to discrimination by any such
entity.”

Id. § 12132.
The Rehabilitation Act of 1973 contains analogous

language, stating that:
No otherwise qualified individual with a disability
. . . shall, solely by reason of her or his
disability, be excluded from the participation in, be
denied
the
benefits
of,
or
be
subjected
to
discrimination under any program or activity receiving
Federal financial assistance or under any program or
activity conducted by any Executive agency or by the
United States Postal Service.
29 U.S.C. § 794(a).
The substantial similarities between Title II of the
Americans with Disabilities Act and the Rehabilitation Act
generally permit alleged violations of the two statutes to be
analyzed jointly.6

Seremeth v. Bd. of Cnty. Comm’rs Frederick

Cnty., 673 F.3d 333, 336 n.1 (4th Cir. 2012) (citing Doe v.
6

The statutory requirements, however, are not identical. See
Paulone v. City of Frederick, 787 F. Supp. 2d 360, 370-71 (D.
Md. 2011). The Rehabilitation Act, for example, establishes a
stricter standard of causation than Title II. Id. Furthermore,
the Rehabilitation Act is more limited in scope, applying only
to federal agencies and non-federal programs or activities that
receive federal funding. Id. at 371. In contrast, a cause of
action under Title II may be asserted against any public entity.
Id. In this case, the documents cited by the plaintiff to prove
that the Mingo County Commission and Sheriff’s Department
received federal funding contain no such evidence. See Pl.’s
Mem. 11-12 (citing Exhibit E, interrogatories 1 and 2, which
make no mention of federal funding). The court need not address
the potential insufficiency, however, given the three
defendants’ concession that both acts are applicable. Defs.’
Joint Resp. 8.
10

Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 (4th Cir.
1995)); Baird ex rel. Baird v. Rose, 192 F.3d 462, 468-69 (4th
Cir. 1999).

Discrimination under Title II, and presumably the

Rehabilitation Act, includes the “failure to make reasonable
accommodations.”

See A Helping Hand, LLC v. Balt. Cnty., Md.,

515 F.3d 356, 362 (4th Cir. 2008) (“[C]ourts have construed
Title II of the ADA to allow a plaintiff to pursue three
distinct grounds for relief: (1) intentional discrimination or
disparate treatment; (2) disparate impact; and (3) failure to
make reasonable accommodations.”); Rogers v. Dep’t of Health &
Envtl. Control, 174 F.3d 431, 433-34 (4th Cir. 1999) (permitting
the application of relevant Rehabilitation Act precedent to
claims arising under Title II); Paulone, 787 F. Supp. 2d at 371
(assuming the preceding definition of discrimination applicable
to claims under both Title II and the Rehabilitation Act); see
also Waller v. City of Danville, Va., 556 F.3d 171, 174 (4th
Cir. 2009) (citing Gohier v. Enright, 186 F.3d 1216, 1220-21
(10th Cir. 1999); Gorman v. Bartch, 152 F.3d 907, 912-13 (8th
Cir. 1998)) (noting that “in the context of arrests, courts have
recognized two types of Title II claims . . . [the pertinent one
here being] reasonable accommodation, where police properly
arrest a suspect but fail to reasonably accommodate his
disability during the investigation or arrest, causing him to
suffer greater injury or indignity than other arrestees”).
11

Moreover, regulations promulgated under both the ADA and the
Rehabilitation Act require reasonable accommodations or
modifications to be made for those with disabilities.

See 28

C.F.R. §§ 35.130(b)(7), 41.53.
Determining whether an accommodation is reasonable
“requires a fact-specific, individualized analysis of the
disabled individual’s circumstances.”

Wong v. The Regents of

the Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 1999) (citing
Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th Cir. 1996)); see
Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 833 (4th Cir. 1994)
(declaring the various elements of a Rehabilitation Act claim
alleging employment discrimination, including the reasonableness
of any accommodations, to be questions of fact).
In this case, the parties vigorously dispute whether
any accommodation was offered.

The plaintiff contends that,

once the elevator was discovered to be inoperative, he was given
no choice but to climb several flights of stairs.
Ex. A, at 12.

Pl.’s Mot.

Conversely, defendants Smith and Miller testified

that they offered to have the plaintiff arraigned in the
basement, see Defs.’ Joint Resp. Ex. B, at 2; Defs.’ Mem. Ex. C,
at 6, an accommodation the plaintiff concedes would have been
reasonable, see Pl.’s Mem. 17-18.

The court, then, is presented

with a genuine dispute as to whether the plaintiff was extended
12

an accommodation, an essential element of the cause of action
asserted.
The plaintiff’s motion, which essentially requests
that the court weigh evidence and make determinations concerning
the credibility of the defendants’ testimony, disregards wellestablished legal principles to which this court must adhere.
See Russell, 65 F.3d at 1239 (“The court’s function at the
summary judgment stage is not ‘to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.’” (quoting Anderson, 477 U.S. at
252)); Sosebee, 797 F.2d at 182 (precluding the court from
making determinations of credibility); Charbonnages de France,
597 F.2d at 414 (stating that the party opposing summary
judgment is entitled to have his or her version of the facts
accepted as true and to have all internal conflicts resolved in
his or her favor).

Given the genuine dispute concerning a

material fact, summary judgment is inappropriate.

See Fed. R.

Civ. P. 56(c).
The plaintiff briefly contends that Rule 5 of the West
Virginia Rules of Criminal Procedure, which mandates that
arresting officers “shall take the arrested person without
unnecessary delay before a magistrate,” W. Va. R. Crim. P.
5(a), somehow deprives officers of the ability to communicate
13

with disabled arrestees concerning the extent of their
disabilities and the potential need for accommodation.
Mem. 19-20.

Pl.’s

The plaintiff’s conclusion is both unsupported by

precedent and undesirable as a matter of public policy.

Cf. 28

C.F.R. § 35.160(b)(2) (“In determining what types of auxiliary
aids and services are necessary, a public entity shall give
primary consideration to the requests of individuals with
disabilities.”).

Accordingly, his motion for partial summary

judgment with respect to the claims asserted in Counts III and
IV under Title II of the ADA and the Rehabilitation Act is
denied.
C.

The Defendants’ Motion for Summary Judgment
The three individual defendants have moved for summary

judgment with respect to the claims asserted in Counts I and II
under 42 U.S.C. § 1983 for excessive force and the claim of
negligent training and supervision.
1.

Count II - 42 U.S.C. § 1983 and Excessive Force
The defendants assert that summary judgment concerning

the alleged civil rights violations is appropriate because the
force exerted upon the plaintiff was objectively reasonable
under the governing interpretation of the Fourth Amendment.
Defs.’ Mem. 5-13.

In response, the plaintiff contests the
14

defendants’ characterization of the relevant events and argues
that summary judgment is an improper mechanism for resolving the
factual disputes in issue.

Pl.’s Resp. 1-8.

The plaintiff

suggests that the protections of the Fourth Amendment, which
relate to the arrest, do not extend to allegations of excessive
force subsequent to an arrestee being taken into custody.
at 7-8.

Id.

The plaintiff asserts that although his claim of

excessive force during his arrest must be analyzed under the
Fourth Amendment, his claim that he was accosted by defendants
Smith and Miller a second time, while in custody, in the
stairwell of the Memorial Building is subject to scrutiny under
the Fourteenth Amendment.

Id. at 7-8.

The defendants filed no

reply.
Any person who, “under color of any statute,
ordinance, regulation, custom, or usage, of any State” deprives
another of “any rights, privileges, or immunities secured by the
Constitution and laws” may be held civilly liable.7
1983.

42 U.S.C. §

The federal statute itself, however, creates no

substantive rights.

Graham v. Connor, 490 U.S. 386, 393-94

(1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3

7

Municipalities, such as the defendant Mingo County Commission,
are “persons” subject to suit under § 1983. Monell v. Dep’t of
Social Servs., 436 U.S. 658, 690 (1978). The court need not
address municipal liability under § 1983, however, as the Mingo
County Commission has not moved for summary judgment.
15

(1979)).

Addressing allegations of excessive force under § 1983

requires first “identifying the specific constitutional right
allegedly infringed by the challenged application of force.”
Id. at 394.

In this case, the plaintiff contends that he was

subject to excessive force both during his arrest and while
detained before arraignment.
a.

Pl.’s Resp. 5-8.

Excessive Forcing During Arrest
The Fourth Amendment guarantees freedom from

unreasonable seizures.
Cir. 1996).

Lowery v. Stovall, 92 F.3d 219, 222 (4th

Seizures effected by force may be declared

unreasonable, depending upon “[1] the severity of the crime at
issue, [2] whether the suspect poses an immediate threat to the
safety of the officers or others, and [3] whether [the arrestee]
is actively resisting arrest or attempting to evade by flight.”
Id. (quoting Graham, 490 U.S. at 396).

The application of force

must be judged objectively “from the perspective of a reasonable
officer on the scene.”

Graham, 490 U.S. at 396 (citing Terry v.

Ohio, 392 U.S. 1, 20-22 (1968)).

Moreover, the court should

remain cognizant that “officers are often forced to make splitsecond judgments -- in circumstances that are tense, uncertain,
and rapidly evolving -- about the amount of force that is
necessary in a particular situation.”

16

Id. at 396-97.

First, regarding the severity of the crime at issue,
it is undisputed that the plaintiff was arrested for and pled
guilty to battering a police officer, a crime involving physical
violence.8

Pl.’s Mot. Ex. A, at 13.

Second, given the admitted

battery, the plaintiff presented an immediate threat to the
defendants.

Although he contends that his infirmities

essentially rendered him harmless to the able-bodied deputies,
see Pl.’s Resp. 7, video recordings of the plaintiff’s initial
arrest depict a vigorous struggle, with three officers
eventually being required to subdue the plaintiff and relieve
him of his cane.

See, e.g., Defs.’ Mem. Ex. F, clip “joe 1st

floor,” at 1:55-2:35.

Third, the same recordings show the

plaintiff continuing to intermittently resist arrest until
placed on his stomach and handcuffed.

Id. at 3:00-4:00.

The

videos provide no indication of the gratuitous violence,
including being choked and kicked, that the plaintiff complains
of during his initial arrest.

Although the court must generally

accept as true the factual narration of the party opposing
summary judgment, see Charbonnages de France, 597 F.2d at 414,
it need not adopt a version of the facts that is “blatantly
8

The plaintiff now insinuates that he was not actually guilty,
suggesting that his plea was instead the result of intimidation,
poor literacy, and lack of counsel. Pl.’s Resp. 4. Judicial
estoppel may well preclude the plaintiff from tacitly protesting
his innocence. See Lowery, 92 F.3d at 223-24. The court need
not decide the issue, though, as the defendants have not
asserted the doctrine.
17

contradicted by the record.”

Scott v. Harris, 550 U.S. 372, 380

(2009) (concluding, in the context of a § 1983 claim alleging
excessive force, that the Eleventh Circuit erred by not giving
dispositive weight to video evidence discrediting a plaintiff’s
“fictional” account of a high-speed chase).

Thus, all three

factors indicate the defendants’ application of force during the
initial arrest was reasonable under the circumstances.
Accordingly, because no rational fact-finder could conclude
otherwise, the defendants’ motion for summary judgment with
respect to the claims of excessive force arising from the
plaintiff’s initial arrest is granted.
b.

Excessive Force Subsequent to Arrest
The Fourth Amendment applies only to “the initial act

of seizing.”

Riley v. Dorton, 115 F.3d 1159, 1163 (4th Cir.

1997) (quoting Wilkins v. May, 872 F.2d 190, 192 (7th Cir.
1989)), overruled on other grounds by Wilkins v. Gaddy, 559 U.S.
34 (2010).

Indeed, the Fourth Circuit has expressly repudiated

the notion that the Fourth Amendment’s protections extend to
“the period the suspect remains with the arresting officers”
before arraignment.

See id. at 1163-64.

Instead, pretrial

detainees must bring claims of excessive force under the
auspices of the Fourteenth Amendment.

Id. at 1166.

Under the

Due Process Clause of the Fourteenth Amendment, excessive force
18

involves the infliction of “unnecessary and wanton pain and
suffering.”

Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008)

(quoting Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998),
overruled on other grounds by Wilkins, 559 U.S. 34).

The court

must consider “such factors as the need for the application of
force, the relationship between the need and the amount of force
used, the extent of the injury inflicted, and whether the force
was applied in a good faith effort to maintain and restore
discipline or maliciously and sadistically for the very purpose
of causing harm.” Id. (quoting Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir.1973)).
In their motion for summary judgment, the defendants
seem incorrectly to assume that the Fourth Amendment governs the
plaintiff’s allegations that defendant Miller and Smith
physically abused him in the stairwell of the Memorial Building,
subsequent to his arrest.

See Defs.’ Mem. 5-10.

Moreover, even

after the plaintiff highlighted the point, see Pl.’s Resp. 7,
the defendants failed to frame their arguments concerning the
allegations of excessive force during pretrial detainment, or
their qualified immunity from the attendant Fourteenth Amendment
violations, under the proper constitutional rubric.9

9

Thus, the

The defendants’ initial decision to address the plaintiff’s
claims of abuse during pretrial detainment under the Fourth,
rather than Fourteenth, Amendment may be due, in part, to the
19

defendants have failed to establish their entitlement to
judgment as a matter of law.

See Fed. R. Civ. P. 56(a).

Accordingly, the defendants’ motion for summary judgment with
respect to the claims concerning any abuse suffered by the
plaintiff, while in custody, in the stairwell of the Memorial
Building is denied.
2.

Count I - Negligent Training and Supervision
The three individual defendants have moved for summary

judgment with respect to the Count I causes of action for
negligent training and supervision.

The defendants raise a

general argument that the plaintiff has failed to produce
sufficient evidence of negligent training or supervision, and
specifically argue that defendants Miller and Smith received
both academy training and written instructions governing the use

manner in which the complaint is drafted. Although the initial
paragraph of the complaint references § 1983 and both
constitutional amendments, see Compl. ¶ 1, the section of the
pleading that sets forth the excessive force claims specifically
references only the Fourth Amendment, id. ¶¶ 38-43. The first
unambiguous indication that the plaintiff asserts a concurrent
violation of the Fourteenth Amendment arguably appears in his
response to the defendants’ motion for summary judgment. See
Pl.’s Resp. 7-8; cf. Bridgeport Music, Inc. v. WB Music Corp.,
508 F.3d 394, 400 (6th Cir. 2007) (citing multiple decisions)
(stating that new claims or theories cannot be asserted in
response to a motion for summary judgment). The defendants,
however, in their reply have not challenged the plaintiff’s
assumption that his pleading properly asserts a violation of the
Fourteenth Amendment. Consequently, the court need not consider
the issue further.
20

of force.

Defs.’ Mem. 13-15.

The plaintiff responds that

defendants Miller and Smith admitted to receiving no training
regarding the handling of disabled arrestees.
12.

Pl.’s Resp. 11-

Furthermore, the plaintiff contends that defendant Sheriff

Hannah observed the use of excessive force as the plaintiff was
arrested.

Id.
Under West Virginia law, claims of negligent training

and supervision are governed by general negligence principles.
See Pruitt v. W. Va. Dep’t of Pub. Safety, 664 S.E.2d 175, 179,
181-83 (W. Va. 2008) (allowing claims of negligent failure to
train and supervise to proceed to trial); Neiswonger v.
Hennessey, 601 S.E.2d 69, 73 & n.3 (W. Va. 2004) (recognizing
negligent hiring, training, and supervising as a cause of action
grounded in state law and distinct from claims asserted under §
1983); Taylor v. Cabell Huntington Hosp., Inc., 538 S.E.2d 719,
725 (W. Va. 2000) (“The appellant's claim of negligent
supervision must rest upon a showing that the hospital failed to
properly supervise Nurse Grim and, as a result, Nurse Grim
committed a negligent act which proximately caused the
appellant's injury.”).
First, the plaintiff asserts that defendant Sheriff
Hannah negligently trained defendants Smith and Miller with
respect to both the use of force and the handling of disabled
21

arrestees.10

Regarding instruction in the use of force, both

defendant Smith and defendant Miller trained at the state police
academy, see Defs.’ Mem. Ex. C, at 3; id. Ex. D, at 6, and
defendant Miller was provided with written materials setting
forth the Mingo County Sheriff’s Department “Use of Force
Policy” upon rejoining the department, id. Ex. D, at 6.

The

plaintiff provides no indication that the training was
inadequate or that any proposed deficiency contributed to his
injuries.11

See Mrotek c. Coal River Canoe Livery, Ltd., 590

S.E.2d 683, 685 (W. Va. 2003) (quoting Walton v. Given, 215
S.E.2d 647, 651 (W. Va. 1975)) (observing that negligence must
not be inferred based on the existence of an injury alone).
Thus, the plaintiff fails to establish that defendant Hannah
breached his duty to train or that any potential breach
proximately caused the plaintiff’s injuries, thereby rendering
summary judgment in favor of defendant Hannah appropriate with
respect to any claim of negligent training in the use of force.

10

It is unclear whether the complaint also asserts a similar
claim against the defendant Mingo County Commission. See Compl.
¶ 36 (identifying only defendant Hannah and his chief deputy as
responsible for the “training and supervision of deputies within
the Sheriff’s Department”). The court need not decide the
issue, as the municipal defendant has not moved for summary
judgment.
11

Indeed, the court has already held that excessive force was
not applied during the plaintiff’s initial arrest. See infra
Part II.B.
22

In contrast, the plaintiff conclusively establishes
that the defendants received no training with regard to
accommodating disabled arrestees.

Defendant Hannah openly

acknowledged that no such training had ever been conducted, id.
Ex. A, at 8, and defendant Miller admitted that he would
consider such training helpful.

Id. Ex. D, at 5.

Furthermore,

the complete lack of training could easily be construed as the
proximate cause of the defendants’ alleged failure to reasonably
accommodate the plaintiff’s disability, assuming that the
defendants are determined to have violated the ADA or the
Rehabilitation Act at trial.

As a result, the plaintiff has

presented sufficient evidence to avert summary judgment
concerning his claim of negligent training with respect to
accommodating disabled individuals.
Second, the plaintiff’s negligent supervision claim is
predicated entirely upon the assertion that defendant Hannah
witnessed the excessive force employed to arrest the plaintiff
and failed to intervene.

Pl.’s Resp. 12.

Again, the court has

already concluded that the force exerted to initially subdue and
detain the plaintiff was objectively reasonable.
II.B.

See infra Part

Defendant Hannah’s decision not to intercede at the point

of arrest cannot be construed as a breach of his duty to
properly supervise his deputies.

23

Accordingly, the court grants

the defendants’ motion for summary judgment with respect to
negligent supervision.
III.

Conclusion

In summary, the plaintiff’s motion for partial summary
judgment with respect to his Counts III and IV claims asserted
under the ADA and Rehabilitation Act (ECF No. 53) is denied.
The defendants’ motion for summary judgment (ECF No.
56) is denied with respect to the alleged Count II violations of
the Fourteenth Amendment and § 1983, which are predicated upon
the plaintiff’s claims that he was physically abused in the
stairwell of the Memorial Building, while in custody, and the
Count I claim that defendant Hannah negligently trained
defendants Smith and Miller regarding the handling of disabled
arrestees.
The court grants summary judgment in favor of the
defendants with respect to the purported Count II violation of §
1983 and the Fourth Amendment, arising from the plaintiff’s
allegations that he was subjected to excessive force during his
initial seizure and arrest.

The court also finds summary

judgment in favor of defendant Hannah appropriate regarding the
Count I cause of action for negligent training with respect to
the use of force and for negligent supervision.
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Thus, the following claims involving the three
individual defendants have survived the various motions for
summary judgment:
1) Negligent training with respect to the handling of
disabled arrestees, asserted against defendant Hannah;
2) Excessive force pursuant to 42 U.S.C. § 1983 and
the Fourteenth Amendment, only as relating to claims
that the plaintiff was physically abused after his
arrest and during his pretrial detainment; and
3) Potential violations of the ADA, 42 U.S.C. § 12132,
and the Rehabilitation Act, 29 U.S.C. § 794(a).
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and any
unrepresented parties.
ENTER: May 16, 2013
John T. Copenhaver, Jr.
United States District Judge

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