Patterson v. City of South Charleston, West Virginia et al

Filing 276

MEMORANDUM OPINION AND ORDER granting defendant Magistrate Julie Yeager's 248 MOTION for Summary Judgment; granting in part and denying in part defendants' Lieutenant R.T. Yeager, Sergeant L.S. Thomas, and Officer R.P. McFarland 249 MOT ION for Summary Judgment with respect to plaintiffs official capacity claims under 42 U.S.C. § 1983, as set forth above, but otherwise denied; denying Plaintiff's 254 MOTION for Summary Judgment; granting in part and denying in part Plaintiff's 264 MOTION to strike the sworn statement of Gail Reid. Signed by Judge John T. Copenhaver, Jr. on 2/11/2016. (cc: attys; any unrepresented party) (tmr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WAYNE PATTERSON,
Plaintiff,
v.

Civil Action No. 12-01964

MAGISTRATE JULIE YEAGER,
individually,
LIEUTENANT R.T. YEAGER,
individually and in his
official capacity,
SERGEANT L.S. THOMAS,
individually and in his
official capacity, and
OFFICER R.P. MCFARLAND,
individually and in his
official capacity,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending are the parties’ cross-motions for summary
judgment, filed by: defendant Magistrate Julie Yeager on
December 2, 2015; defendants Lieutenant R.T. Yeager, Sergeant
L.S. Thomas, and Officer R.P. McFarland (collectively, “the
police defendants”) jointly on December 2, 2015; and plaintiff
Wayne Patterson (“plaintiff”) on December 3, 2015.

Also pending

is plaintiff’s motion to strike the sworn statement of Gail
Reid, filed on December 21, 2015.

I. Factual background
A. The events of June 29, 2011
Josephine Patterson died intestate on March 26, 2011.
See Wayne Patterson Affidavit of August 15, 2012 (“Patt. Aff.”),
¶ 15.

She was survived by four children, all grown --

plaintiff, his brother George Patterson, and their sisters Gail
Reid and Alzerita Munlin.

Patt. Dep. 18:11-17.

In life,

Josephine owned a house on Barrett Street in South Charleston,
West Virginia (“the Barrett Street house,” or “the house”).
Patt. Aff. ¶ 5.

The house is at the center of this case.

Of the four siblings, only Gail lived in the
Charleston area, in an apartment not far from the Barrett Street
house.

Reid Statement 7:19-20, 10:3-16.

After Josephine died

in South Carolina, where she had been living with or near George
for the year prior, Reid Statement 9:8-12, the house remained
unoccupied, though it was fully furnished, Reid Statement 9:2023. Having been advised by the South Charleston police that it
was unwise to leave the house unoccupied, Reid Statement 9:2010:11, Gail invited her daughter Danaya, along with Danaya’s
husband Joe Steiner and their children, to live in the house,
Reid Statement 11:22-12:7.

It appears that Danaya and her

family moved into the house in the late spring of 2011.

Soon

after, Gail invited Jaime Adkins, a friend of Danaya’s, to stay
2

at the house while she started a new job in the area.
Dep. 93:10-94:22; Adkins Letter, p. 1.

Adkins

Danaya, Joe, Gail, and

Jaime are collectively referred to in this memorandum opinion as
“the Reid group.”
Plaintiff was living in Illinois when his mother died,
and had been for some time.
15.

Patt. Aff. ¶ 2; Patt. Dep. 15:14-

In late June of 2011, plaintiff travelled to South

Charleston after getting a report that someone had broken into
the Barrett Street house.

Patt. Dep. 22:20-21.

The break-in

report came from plaintiff’s brother George, who in turn had
“received a telephone call informing [him] that [Gail’s daughter
Danaya] had broken into the house[.]”

Patt. Dep. 68:8-69:70;

George Patterson Affidavit (“George Patt. Aff.”), ¶ 9.

The

person who called George has not been identified.
On June 29, 2011, plaintiff, George, and plaintiff’s
teenaged son Eros (collectively, “the Patterson group”) met in
the parking lot of a convenience store not far from the Barrett
Street house.

Patt. Dep. 37:4-38:4.

Their goal: to “occupy,

secure, and protect the house and its contents.”
Aff. ¶ 10.

George Patt.

Before they went to the house, though, George called

the South Charleston Police Department’s dispatch line and asked
for a police officer to meet them there.

Patt. Dep. 37:10-

38:18; George Patt. Aff. ¶ 15; see also CAD Operations Report,
3

Compl. Ex. 2, p. 1.

During the call, George professed to be

concerned that the “prev[ious] tenants” were still living there.
CAD Operations Report, p. 1.
South Charleston police officer A.R. Lindell responded
to the call and was waiting outside the house for the three of
them when they arrived.

Patt. Dep. 31:14-24.

Plaintiff and

George told Officer Lindell that “this is our house,” and that
they had “come here because our niece [Danaya] broke into the
house and was planning to occupy it . . . against our will.”
Patt. Aff. ¶¶ 15-16.

Plaintiff added that they “were concerned

and afraid that Danaya would say that [she] was assaulted . . .
in an effort to gain an advantage in taking our house.”
Aff. ¶ 16.

Patt.

It turned out that the house was locked, and

plaintiff’s key didn’t work, so plaintiff had Eros crawl through
a window and unlock the door from inside while Officer Lindell
observed.

Patt. Dep. 31:14-24, 63:15-67:24; Patt. Aff. ¶ 18.

Nobody was home, but inside the house plaintiff noticed signs of
recent occupation, including “pizza on the bathroom floor” and
cigars bearing the “very smelly” aroma of marijuana.

Patt. Aff.

¶¶ 19-23.
While the Patterson group was inside with Officer
Lindell, Jaime Adkins arrived home by car and saw that two
unfamiliar civilian cars and one police car were parked outside
4

the house.

Adkins Dep. 97:5-98:4.

Concerned, she called Gail

who told Jaime that “it was probably [Gail’s] brother” and asked
Jaime to come get her, which Jaime did.

Adkins Dep. 97:17-22.

Gail and Jaime then drove back to the house, by which time
Officer Lindell had departed.

Adkins Dep. 97:24-98:3.

Gail and Jaime entered the house together and found
the Patterson group within, whereupon the two groups quarreled.
Patt. Aff. ¶¶ 26-27.

Someone called the police, Patt. Aff. ¶

27; Adkins Dep. 98:17-21, and Jaime retreated outside, Adkins
Dep. 98:19-24.

When the police arrived, Gail and Jaime accused

plaintiff of attacking them with a baseball bat, shoving and
choking Gail, and pushing Jaime to the ground while she was
holding the infant Dylan, whom she dropped.
27; Adkins Letter, p. 1.

Patt. Aff. ¶¶ 26-

After speaking with plaintiff and Gail

inside the house, the police ordered Gail, Jaime, and Joe
(Danaya’s husband, who by then had also arrived) to vacate the
premises forthwith, which they did, leaving their various
possessions behind.

Patt. Aff. ¶¶ 29-32; Adkins Dep. 99:13-23.

Gail Reid later claimed that plaintiff used a “fake power of
attorney” to convince the police on June 29 that his right of
possession was superior and that the Reid group were
trespassers.

See Reid Statement 17:20-18:17 (“[T]hey were

taking the Power of Attorney -- like you know okay, this is

5

their right. . . . And you know that’s what he was saying.
[‘]They’re not supposed to be here.[’]”).
then spent June 29 and 30 in the house.
Adkins Letter, pp. 2-3.

The Patterson group

Patt. Dep. 42:21-43:12;

On July 1, the police kicked them out.

B. The events of July 1, 2011
On July 1, two days after the Reid group had been
removed from the house, South Charleston police lieutenant R.T.
Yeager (“Lieutenant Yeager”) telephoned the Kanawha County
Magistrate Court, where he spoke to Magistrate Julie Yeager.
Mag. Yeager Dep. 23:1-22.

Lieutenant Yeager asked her whether

“there were any orders that would have removed anyone from the
[Barrett Street] residence,” such as a “wrongful occupation
order or a domestic violence protective order.”
Dep. 23:22-24:20.

Mag. Yeager

During the conversation, Magistrate Yeager

volunteered that plaintiff had been to the magistrate court on
June 29, 2011, and that she had spoken with him about the
Barrett Street house and Josephine Patterson’s estate.
Yeager Dep. 24:1-25:23.

Mag.

Gail, who was present during the call,

remembers Magistrate Yeager telling Lieutenant Yeager, in
apparent reference to plaintiff, that “he should not be in that
house.”

Reid Statement 18:22-24.
Around the same time on July 1, Jaime “received a

phone call from Danaya stating that [the Reid group] had been
6

asked to meet the SCPD at their station at 3:00 p.m. because
[the police] planned to remove [the Patterson group] from [the]
house.”

Adkins Dep. 30:12-24.

Jaime felt that “it was really

strange how [the police] simply changed their mind[s.]”
Letter, p. 3.

Adkins

Nevertheless, that afternoon she met the rest of

the Reid group, including Gail, and Lieutenant Yeager at the
police station.

See Lt. Yeager’s Supp. Resp. to Plaintiff’s

First Request for Admissions, Supp. Resp. # 11; Adkins Dep.
34:2-20; Adkins Letter, pp. 2-3.

From there, they drove to a

location near the Barrett Street residence, where they
rendezvoused with Sergeant Thomas and Officer McFarland.

Adkins

Dep. 35:23-37:7.
Once at the house, Lieutenant Yeager, Sergeant Thomas,
and Officer McFarland entered through an unlocked door,
accompanied by Danaya.

Patt. Aff. ¶ 37; Patt. Dep. 90:1-91:22.

Inside, Lieutenant Yeager “told [plaintiff, George, and Eros] to
‘[g]et out now, right now!’”
94:5.

Patt. Aff. ¶ 37; Patt. Dep. 88:1-

Lieutenant Yeager’s face was “very red,” Reformed Second

Amended Complaint (“Compl.”), p. 2, and plaintiff “was afraid of
him.”

Patt. Dep. 54:1-2.

Plaintiff told Lieutenant Yeager

“this is our house, sir,” Patt. Dep. 44:14-16, 91:8-11, and
“began to explain that [Danaya, Joe, and Jaime] had broken in
[and] were not actually living there yet.”

7

Patt. Aff. ¶¶ 38-39.

In response, Lieutenant Yeager threatened to pepper spray
plaintiff, “placed his hand on his belt,” and “angrily stated
‘[d]on’t come back inside!’”
Aff. ¶¶ 25-25.

Patt. Aff. ¶¶ 38-39; George Patt.

Plaintiff, George, and Eros complied and left

the house in haste.

Patt. Aff. ¶¶ 40-42.
II. Procedural background
A.

Plaintiff initiated this action on June 11, 2012.
Then, as now, plaintiff was proceeding pro se, wherefore the
matter was referred to a magistrate judge pursuant to 28 U.S.C.
§ 636 and standing order in this district.

At least in its

present form, this civil action arises from the defendants’
participation, directly or indirectly, in removing plaintiff
from the Barrett Street house, as described above.
In the original complaint, plaintiff named as
defendants the City of South Charleston, Lieutenant Yeager,
South Charleston police officer T.A. Bailes, and seven other,
unidentified South Charleston police officers.

Those defendants

jointly moved to dismiss the complaint on July 23, 2012.
Magistrate Judge Stanley issued her proposed findings and
recommendation ("PF&R") on October 30, 2012, in which she
recommended that the defendants' motion to dismiss be granted.
8

Plaintiff filed timely objections to the PF&R, and also sought
leave to amend the complaint.

In its order of March 29, 2013,

the court adopted the magistrate judge’s PF&R and granted the
defendants’ motion to dismiss the original complaint.

However,

the court granted in part plaintiff’s motion to amend,
specifically with respect to the claims for civil trespass
proposed therein.
After several extensions of the discovery period, the
parties filed cross-motions for summary judgment.

On October

11, 2013, Magistrate Judge Tinsley issued another PF&R, this
time recommending that the court deny the parties’ motions.

The

court adopted the magistrate judge’s recommendation on January
22, 2014.

Nine months later, on September 15, 2014, plaintiff

sought leave to amend the first amended complaint.

The

magistrate judge issued a PF&R on April 24, 2015, in which he
recommended that the court permit plaintiff to do so.
The proposed second amended complaint consisted of 194
extremely cumbersome and prolix pages, and contained a great
deal of redundant and immaterial matter.

The court struck the

offending portions, pursuant to Rule 12(f)(1) of the Federal
Rules of Civil Procedure, and entered the reformed second
amended complaint on June 10, 2015.

9

The reformed second amended complaint -- now the
operative complaint in this action -- contains eleven counts
against four defendants, out of an original 179 counts against
twenty-four defendants.

Specifically, the complaint consists of

the following: (1) causes of action against the police
defendants under 42 U.S.C. § 1983 for alleged violations of
plaintiff’s Fourth Amendment rights (relabeled as Counts One,
Two, and Three, and found at paragraphs 246-48, 258-60, and 28890 of the complaint); (2) causes of action against the police
defendants for common law trespass (relabeled as Counts Four,
Five, and Six, and found at paragraphs 468-71, 484-87, and 52427); (3) causes of action against the police defendants and
Magistrate Yeager under 42 U.S.C. § 1983 for conspiracy to
violate plaintiff’s Fourth Amendment rights (relabeled as Counts
Seven, Eight, Nine, and Ten, and found at paragraphs 619-21,
631-33, 643-45, and 673-75); and (4) a cause of action against
Lieutenant Yeager for common law assault (relabeled as Count
Eleven, and found at paragraphs 692-94).
By its order of July 9, 2015, the court withdrew the
aforementioned reference to the magistrate judge.

Discovery

concluded as scheduled, after a forty-five day extension at
plaintiff’s request, on November 13, 2015.

Subsequently, on

December 2, 2015, the defendants filed their respective motions

10

for summary judgment, and on December 3, 2015, plaintiff filed
his.

Plaintiff also moves to strike all, or at least portions,

of the sworn statement of Gail Reid submitted by the police
defendants in support of their motion.
B.
The district courts of the United States “shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
U.S.C. § 1331.

28

The court is properly invested with original

jurisdiction over plaintiff’s section 1983 claims inasmuch as
section 1983 is a federal statute through which deprivation of
constitutional rights may be redressed.
Pursuant to 28 U.S.C. § 1367(a), a district court
properly invested with jurisdiction over one claim is empowered
to exercise supplemental jurisdiction over “all other claims
that are so related to claims in the action within [the court’s]
original jurisdiction that they form part of the same case or
controversy.”

Because plaintiff’s remaining state law claims

are based on the same set of facts as his federal claims,
supplemental jurisdiction over the remaining claims is warranted
under section 1367(a).

11

III. Standard governing summary judgment
Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“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); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010) (same).

A “genuine” dispute 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 fact-finder could return a
verdict for the non-moving party.

Anderson, 477 U.S. at 248.

On the other hand, “[f]actual disputes that are irrelevant or
unnecessary will not be counted.”

Id.

The moving party has the initial burden of showing -“that is, pointing out to the district court -- that there is an
absence of evidence to support the non-moving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the

moving party satisfies this burden, then the non-moving party
must set forth specific facts, admissible in evidence, that
demonstrate the existence of a genuine issue of material fact
for trial.

See id. at 322-23; Fed. R. Civ. P. 56(c), (e).
12

When examining the record, the court must neither
resolve disputes of material fact 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).

Instead, 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).

Along those lines,

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).
At bottom, a party is entitled to summary judgment if
the record as a whole could not lead a rational trier of fact to
find for the non-moving party.
820, 823 (4th Cir. 1991).

Williams v. Griffin, 952 F.2d

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 248.

13

IV. Plaintiff’s motion to strike
A.
Plaintiff moves to strike the “sworn statement of Gail
Lynette Reid,” which was obtained by counsel for the defendants
on November 13, 2015.

Inasmuch as the police defendants have

submitted the sworn statement in support of their motion for
summary judgment, the court first considers plaintiff’s motion
to strike.
Plaintiff contends that the sworn statement falls
short of the “technical requirements for sworn statement[s],”
“is not supported by decisional law,” and “fails to meet any of
the elements required by Rule 56.”

Strike Mot., pp. 2, 4.

In

his reply to the police defendants’ response in opposition,
plaintiff, for the first time, states a general objection to
“pages 1-10, 12-18, 21-32, 34-40, 43-46, and 48-57” of the
statement as being outside Gail Reid’s personal knowledge,
Reply, p. 2, while adopting some of her statements as supporting
his position, Reply, pp. 5-6.

Plaintiff also objects to the

admissibility of the sworn statement on the grounds that he was
not present when it was taken.

Strike Mot., p. 5.

In their response, the police defendants maintain that
the sworn statement may be considered at the summary judgment
14

stage, plaintiff’s objections notwithstanding, because it is the
“substantial equivalent of an affidavit under Rule 56(c).”
Response, p. 4 (citing Curnow ex rel. Curnow v. Ridgecrest
Police, 952 F.2d 321, 324 (9th Cir. 1991)).

The police

defendants further contend that plaintiff’s absence during the
statement does not affect its admissibility as an “affidavit.”
Response, pp. 4-5.
B.
As observed in the previous section, Rule 56(a)
mandates summary judgment if “there is no genuine dispute as to
any material fact and . . . the movant is entitled to judgment
as a matter of law.”

Rule 56(c)(1)(A), in turn, provides that

“[a] party asserting that a fact cannot be or is genuinely
disputed must support the assertion by . . . citing to
particular parts of materials in the record, including
depositions . . . affidavits[,] or declarations. . . .”
Gail Reid’s sworn statement was taken in the guise of
a deposition, through questioning by counsel for the defendants.
It is clear, however, that the statement cannot be used as a
“deposition” as that term is defined in the Federal Rules of
Civil Procedure.

To wit, Rule 32(a) provides that, “upon the

hearing of a motion . . . any part or all of a deposition . . .
may be used against any party who was present or represented at
15

the taking of the deposition or who had reasonable notice
thereof. . . .”

Fed. R. Civ. P. 32(a)(1)(A).

Yet the police

defendants filed their “notice of deposition” electronically on
the morning of November 12, 2015, one day before the scheduled
date, and mailed plaintiff notice on the same day.

Perhaps

unsurprisingly under the circumstances, the pro se plaintiff -who continues to reside in Illinois -- did not appear at the
appointed place and time here in Charleston at Realtime
Reporters.
One day’s notice, when the parties are of diverse and
distant locations, ordinarily cannot be called “reasonable.”
Cf. Fed. R. Civ. P. 32(a)(5)(A) (defining a “deposition taken on
short notice” as one taken with “less than 14 days’ notice”).
Lacking reasonable notice, plaintiff naturally had no
opportunity to be present, much less to cross-examine the
“deponent.”

See Fed. R. Civ. P. 32(a)(1)(B).

Accordingly, the

record demonstrates that plaintiff neither had “reasonable
notice” of the deposition, nor was “present or represented,” nor
had the opportunity to cross-examine Ms. Reid.
P. 32(a)(1)(A), (C).

See Fed. R. Civ.

Under circumstances such as these, the

sworn statement cannot be used against plaintiff as a
“deposition.”

16

C.
Although the sworn statement cannot be used as a
deposition, Rule 56 allows for consideration of other materials
in the record, explicitly including “affidavits.”
P. 56(c)(1).

Fed. R. Civ.

The court finds nothing which requires the term

“affidavit[]” to be construed within the narrow limitations of
Rule 32(a).

See Fed. R. Civ. P. 56(c)(1)(A); see also, e.g.,

Hoover v. Switlik Parachute Co., 663 F.2d 964, 966-67 (9th Cir.
1981) (treating procedurally deficient deposition as an
“affidavit” for purposes of summary judgment motion).

Moreover,

Rule 56 does not require that anything more than affidavits be
submitted in support of a Rule 56 motion.

See Fed. R. Civ. P.

56(c)(1)-(4).
Under Rule 56(c), “[a]n affidavit or declaration used
to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify
on the matters stated.”

Fed. R. Civ. P. 56(c)(4).

In other

words, an affidavit must present evidence in substantially the
same form as if the affiant were testifying in court.

See

Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (evidence
submitted at summary judgment stage must be admissible and based
on personal knowledge); see also Wright & Miller, Federal
17

Practice and Procedure § 2738 (3d ed.).

Consequently, summary

judgment affidavits cannot be conclusory, Rohrbough v. Wyeth
Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990), or based upon
hearsay, conjecture, or supposition, Md. Hwy. Contractors Ass’n
v. Maryland, 933 F.2d 1246, 1251-52 (4th Cir. 1991), cert.
denied, 502 U.S. 939.
The court would begin by observing that plaintiff’s
specific objections were substantially overbroad.
2.

See Reply, p.

For instance, “pages 1-10,” which are included in

plaintiff’s objections, contain, among other things, Gail Reid’s
attestation that she is 60 years old -- surely an admissible
matter about which she is both competent to testify and
personally aware.

Plaintiff “was required to do more than swing

[his] bludgeon wildly.”

Perma Research & Dev. Co. v. Singer

Co., 410 F.2d 572, 579 (2d Cir. 1969).
Turning to plaintiff’s substantive arguments, he
claims that the “sworn statement is, in fact, “unsworn.”
Mot., p. 2.

Strike

Accordingly, he concludes that it is inadmissible.

Yet, the document is called a “sworn statement,” and is
subtitled the “[s]worn statement of Gail Lynette Reid[.]”
Statement, p. 1.

Reid

The first lines of the transcript indicate

that “Gail Lynette Reid, having been first duly sworn to tell
the truth, testified as follows[.]”
18

Reid Statement, 4:1-3.

On

the final page of the transcript, the court reporter
“certif[ies] that the foregoing statement of Gail Lynette Reid
[was] duly taken by me and before me . . . the said witness
having been by me first duly sworn.”

Reid Statement, p. 58.

Plaintiff offers no plausible basis for concluding that these
representations are false or mistaken, or that Gail Reid was
unaware of the significance of swearing to testimony.

Curnow,

952 F.2d at 324 (holding that “[t]he district court properly
considered [a witness’s unsigned] statement pursuant to Rule
56(c) because her answers to the questions were given under
oath.”).
In addition, as noted, plaintiff objects to the
material on “pages 1-10, 12-18, 21-32, 34-40, 43-46, and 48-57”
of the statement as being outside Gail Reid’s personal
knowledge.

Reply, p. 2.

Upon review, it appears that several

sections of the sworn statement are not within Gail Reid’s
personal knowledge, or are based on inadmissible hearsay, or
both.

These portions will be disregarded, and the court will

not consider them in ruling on the pending motions for summary
judgment.

See Akin v. Q-L Investments, Inc., 959 F.2d 521, 529-

31 (5th Cir. 1992) (striking offending portions of affidavit but
leaving compliant remainder for consideration); see also 6
Moore, Federal Practice 2817 (2d ed. 1965) (“Even if an

19

affidavit does contain some inadmissible matter, the whole
affidavit need not be stricken or disregarded; the court may
disregard the inadmissible parts and consider the rest of the
affidavit.”).
When the sworn statement is carefully read as a whole,
it is evident that many of Gail Reid’s statements are within her
personal knowledge, as for instance when she recounts the events
of June 29 and July 1, 2011, as she remembers them, Reid
Statement, 13:9-15:23, 47:6-49:15, or attests that the Barrett
Street house was furnished as of June 29, 2011, Reid Statement
9:20-23.

Such testimony would be admissible under the Federal

Rules of Evidence, and Gail Reid appears to be competent to
provide it.

The admissible portions of the sworn statement

satisfy the requirements of an affidavit as set forth in Rule
56(c)(4) and are at least as reliable as statements made in an
affidavit, and accordingly the court will consider them as such.
V. The cross-motions for summary judgement
Plaintiff, in his motion for summary judgment, asserts
in somewhat conclusory fashion that he is entitled to judgment
as a matter of law on all counts.

The police defendants, in

response and in their motion, claim the protection of qualified
immunity with respect to plaintiff’s section 1983 claims, invoke
analogous state law statutory immunity with respect to his
20

common law assault claim, and maintain that plaintiff fails to
state a viable claim for trespass.

For her part, Magistrate

Yeager claims the absolute protection of judicial immunity.

She

maintains, in the alternative, that plaintiff has not offered
evidence of her participation in the conspiracy sufficient to
survive summary judgment.
A. The police defendants
1. Plaintiff’s constitutional claims
Plaintiff alleges that the police defendants “seized
and searched [his] house . . . in violation of the Fourth
Amendment,” and seeks redress under 42 U.S.C. § 1983.
Compl. ¶¶ 247, 259, 289.

See

Section 1983 provides, in relevant

part, that “[e]very person who . . . causes . . . [a]
deprivation of any rights . . . secured by the Constitution and
laws[] shall be liable to the party injured.”

42 U.S.C. § 1983;

see also Hafer v. Melo, 502 U.S. 21, 27 (1991) (“Through
[section] 1983, Congress sought ‘to give a remedy to parties
deprived of constitutional rights, privileges[,] and immunities
by a [state] official’s abuse of his position.’”) (quoting
Monroe v. Pape, 365 U.S. 167, 172 (1961)).
As noted, the police defendants claim qualified
immunity from plaintiff’s section 1983 claims.
21

Because

qualified immunity is “‘an immunity from suit rather than a mere
defense to liability,’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)),
it is a threshold issue that the court resolves at the outset.
Saucier v. Katz, 533 U.S. 194, 200 (2001) (“Where [a] defendant
seeks qualified immunity, a ruling on that issue should be made
early in the proceedings so that the costs and expenses of trial
are avoided where the defense is dispositive.”) (receded from on
other grounds by Pearson, 555 U.S. 223).
Qualified immunity shields government officials from
liability in their individual capacities so long as they do not
violate “clearly established statutory or constitutional rights
of which a reasonable person would have known.”
Fitzgerald, 457 U.S. 800, 818 (1982).

Harlow v.

To overcome the police

defendants’ assertion of qualified immunity, plaintiff must show
(1) that the facts, when viewed in the light most favorable to
him, demonstrate the deprivation of a statutory or
constitutional right, and (2) that the right was “clearly
established” at the time of the deprivation.
at 199.

Saucier, 533 U.S.

The court is “permitted to exercise [its] sound

discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the

22

circumstances in the particular case at hand.”

Pearson, 555

U.S. at 236.
a.
The Supreme Court has explained the “clearly
established” prong of the qualified immunity inquiry as follows:
For a constitutional right to be clearly established,
its contours must be sufficiently clear that a
reasonable official would understand that what he is
doing violates that right.
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).

In defining the relevant

constitutional question, the court must be specific, for “[t]he
general proposition . . . that an unreasonable search or seizure
violates the Fourth Amendment is of little help in determining
whether the violative nature of particular conduct is clearly
established.”

Ashcroft v. Al-Kidd, 563 U.S. 731, ---, 131 S.

Ct. 2074, 2084 (2011).

Once the constitutional question is

appropriately defined, the court asks whether existing precedent
places the question “beyond debate.”

Stanton v. Simms, --- U.S.

---, 134 S. Ct. 3, 5 (2013) (per curiam); Creighton, 483 U.S. at
640 (same).

Simply put, “[q]ualified immunity protects ‘all but

the plainly incompetent or those who knowingly violate the
law.’”

Mullenix v. Luna, 577 U.S. ---, 136 S. Ct. 305, 308

(2015) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
23

The Fourth Amendment, made applicable to the states by
the Fourteenth, Mapp v. Ohio, 367 U.S. 643 (1961), states that
“[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated[.]”

By its terms, the Fourth

Amendment protects against both “searches and seizures,” and one
may be present without the other.

See Presley v. City of

Charlottesville, 464 F.3d 480, 484 (4th Cir. 2006).

Likewise,

the Fourth Amendment covers both real and personal property,
United States v. James Daniel Good Real Prop., 510 U.S. 43, 52
(1993), and applies in the civil context as well as the
criminal, Soldal v. Cook Cty., Ill., 506 U.S. 56, 66-67, 67 n.
11 (1992); Nixon v. Montgomery Cty., Md., 251 F. App’x 141, 14445 (4th Cir. 2007).

A “seizure” of real property occurs when

“there is some meaningful interference with an individual’s
possessory interests in [his] property.”

United States v.

Jacobsen, 466 U.S. 109, 113 (1984); see also Good Real Prop.,
510 U.S. at 53-54 (“The seizure deprived Good of valuable rights
of ownership, including the right of sale, the right of
occupancy, the right to unrestricted use and enjoyment, and the
right to receive rents.”); Kaiser Aetna v. United States, 444
U.S. 164, 179-80 (1979) (same).

A “search,” on the other hand,

occurs when the police invade an expectation of privacy in the

24

place or thing searched that society is prepared to recognize as
reasonable.

See Jacobsen, 466 U.S. at 113.

Importantly, a search or seizure alone does not
constitute a Fourth Amendment violation; rather, only searches
and seizures that are “unreasonable” under the circumstances are
unlawful.

See United States v. Place, 462 U.S. 696, 703 (1983).

Supreme Court precedent establishes that the Fourth Amendment is
violated unless the “governmental interests” in effectuating a
particular kind of seizure outweigh the “‘nature and quality of
the intrusion on the individual's Fourth Amendment interests.’”
Scott v. Harris, 550 U.S. 372, 383 (2007) (quoting United States
v. Place, 462 U.S. 696, 703 (1983)); see also Tennessee v.
Garner, 471 U.S. 1, 8 (1985) (There must be a “governmental
interes[t]” not only in effectuating a seizure, but also in “how
[the seizure] is carried out.”).

Similarly, the special

protection to be afforded a person’s right to privacy within his
own home -- the right to the “sanctity of [a] private dwelling”
-- is the right “ordinarily afforded the most stringent Fourth
Amendment protection.”

United States v. Martinez-Fuerte, 428

U.S. 543, 561 (1976); see also Payton v. New York, 445 U.S. 573,
585 (1980) (“‘[P]hysical entry of the home is the chief evil
against which the wording of the Fourth Amendment is
directed.’”) (quoting United States v. United States Dist. Ct.,

25

407 U.S. 297, 313 (1972)).

It is violated when the police

conduct a search in the absence of a warrant, exigent
circumstances, or some other basis making the search reasonable
under the circumstances.

See Kyllo v. United States, 533 U.S.

27, 31 (2001) (citing Illinois v. Rodriguez, 497 U.S. 177, 181
(1990) and Payton, 445 U.S. at 586).
b.
To begin, the “capacity to claim the protection of the
Fourth Amendment depends . . . upon whether the person who
claims the protection . . . has a legitimate expectation of
privacy in the invaded place.”
133-34 (1978).

Rakas v. Illinois, 439 U.S. 128,

When examining whether a person has a legitimate

expectation of privacy, the court considers, among other things,
“‘whether that person claims an ownership or possessory interest
in the property[] and whether he has established a right[,] or
taken precautions[,] to exclude others from the property.’”
United States v. Castellanos, 716 F.3d 828, 833-34 (4th Cir.
2013) (quoting United States v. Rusher, 966 F.2d 868, 875 (4th
Cir. 1992), cert. denied, 506 U.S. 926).
It appears that plaintiff may have had both a
reasonable expectation of privacy and a cognizable property
interest in the Barrett Street house as of July 1, 2011.
Josephine Patterson had no will when she died.
26

Patt. Aff. ¶ 5.

As a result, her real property, including the Barrett Street
house, passed to her four children -- plaintiff, George, Gail,
and their sister Alzerita Munlin, who lived in South Carolina,
Reid Statement 10:14-15 -- in “equal shares.”

See W. Va. Code

§§ 42-1-3, 42-1-3a, and 42-1-3d(b)(i) (establishing the
procedure for intestate succession); see also § 42-1-2(a) (“Any
part of a decedent’s estate not effectively disposed of by will
passes by intestate succession to the decedent’s heirs. . . .”).
Further, although plaintiff did not seek permission from any of
the Reid group to enter the house on June 29, plaintiff, George,
Gail, and Alzerita shared “a mutual right to possession of the
[property as a] whole.”

Eagle Gas Co. v. Doran & Assocs., Inc.,

182 W. Va. 194, 198 (1989); see also Bergin & Haskell, Estates
in Land and Future Interests, Preface, p. 54 (2d ed. 1984)
(observing that “[t]he central characteristic of a tenancy in
common is simply that each tenant is deemed to own, by himself,
with most of the attributes of independent ownership, a
physically undivided part of the entire parcel”).

Finally, by

July 1, 2011, plaintiff had been living in the house for two
days and nights.

Cf. Minnesota v. Olson, 495 U.S. 91, 95-96

(1990) (conferring a reasonable expectation of privacy on
overnight guests).

His presence there is tainted only by the

fact that he gained possession by persuading the police that he
was entitled to occupy the house to the exclusion of the Reid
27

group.

The police ousted the Reid group but allowed the

Patterson group to enter and remain.

Once installed in the

house, though, plaintiff’s legitimate property interest in the
premises appears to have been accompanied by a reasonable
expectation of privacy.
c.
It is clearly established that the police violate the
Fourth Amendment when they remove a cotenant from jointly owned
premises without a reasonable basis for doing so.

See Soldal,

506 U.S. at 61, 71; see also Thomas v. Cohen, 304 F.3d 563, 574
(6th Cir. 2002) (“Forcible eviction . . . is by its very nature
a meaningful interference with [a person’s] property interests
and is therefore . . . a deprivation of [his] constitutional
rights when carried out by law enforcement officers in the
absence of a legal basis for doing so.”).

The question is

whether the police defendants had a reasonable basis for
entering the Barrett Street house two days later, on July 1,
2011, without a warrant and ejecting plaintiff by threat of
force.
It was not until then that the police made any serious
effort to inform themselves of the circumstances surrounding the
Patterson group’s occupation of the Barrett Street house two
days earlier.

Specifically, at some point on July 1, Lieutenant
28

Yeager, who had not been on duty on June 29 or 30, placed a
telephone call to the Kanawha County Magistrate Court, as set
forth above.

See Lt. Yeager’s Supp. Resp., Resp. # 11 (showing

the dates Lieutenant Yeager was on duty); Mag. Yeager Dep.
24:15-20 (stating that Lieutenant Yeager telephoned the Kanawha
County Magistrate Court on July 1, 2011, and spoke with
Magistrate Yeager).

During the conversation, Lieutenant Yeager

asked Magistrate Yeager whether the magistrate court had any
record that “there was a wrongful occupation order or a domestic
violence protective order that had been entered that would have
removed individuals from th[e] property.”
24:3-6.

Mag. Yeager Dep.

When Lieutenant Yeager mentioned the names of plaintiff

and George in connection with his inquiry, Magistrate Yeager
“recognized [plaintiff’s] name” and told Lieutenant Yeager “that
[she] had met [plaintiff] a couple nights prior to [sic] and
that [she] had given [plaintiff] the information with respect to
the fiduciary commissioner’s office and how to file for the
estate, to head the estate.”

Mag. Yeager Dep. 28:4-21.

Magistrate Yeager is claimed to have added, in apparent
reference to plaintiff, that “he should not be in that house.”
See Reid Statement 18:22-24.
In the absence of exigent circumstances, adherence to
the Fourth Amendment would dictate that the police make a

29

reasonable investigation before removing plaintiff.

Indeed, it

would seem that the other policemen who had escorted plaintiff
into the home on June 29 and ousted the Reid group ought to have
left that eviction for determination by a court of law.

Though

the matter is in some dispute, there is little indication that
the Reid group, at the time it was removed, was engaged in a
breach of the peace or other misconduct warranting arrest.

The

question remains as to whether plaintiff himself may have
deceived or misled the police when eliciting their aid in
obtaining possession of the house in the first instance.
The police defendants assert that “[i]t would have
been unwise for [the other policemen] to leave [Danaya and the
others] at the mercy of the plaintiff in light of complaints of
physical abuse.”

Def. Mem., p. 12.

If so, was the proper

remedy one that allowed the perpetrator of the alleged
complaints to remain while ousting the allegedly innocent
victims?
It is not clear whether the police defendants were
aware of the alleged violent acts by the plaintiff that
allegedly occurred on June 29, 2011.

Lieutenant Yeager has

stated that he “does not recall having any meeting, discussions,
talks, and communication” on July 1, 2011, with Officer Lindell
or any other officer present at the house on June 29, each of
30

whom presumably knew about the allegations of domestic violence.
See Lt. Yeager Supp. Resp., Resp. # 12.

Jaime also testified

that she found it strange that the police had simply “changed
their minds” about who was entitled to possess or occupy the
Barrett Street house.

See Adkins Letter, p. 3 (“I thought it

was really strange how they simply changed their mind[s] and
were going to let us back in. . . .”).

Whatever the reason for

the police defendants’ decision, apparently it was not
explained.
Once plaintiff, together with his son Eros and his
brother George, had been installed in the house by the police,
the police defendants ought to have considered, in the absence
of exigent circumstances, letting the matter take its natural
course through the judicial process.

Instead, they apparently

concluded that they should rectify the previous ouster of the
Reid group by removing the plaintiff and his son and brother so
that the Reid group could reoccupy the house.
The inconsistencies, unanswered questions, and gaps in
the record prevent the court from being able to rule objectively
on the police defendants’ assertion of qualified immunity.

To

be sure, “[q]ualified immunity gives government officials
breathing room to make reasonable but mistaken judgments about
open legal questions.”

Al-Kidd, 131 S. Ct. at 2085.
31

However,

the record is insufficient to permit a conclusion as to whether
the police defendants’ conduct on July 1, 2011, was reasonable
and in keeping with the strictures of the Fourth Amendment.
Because the record does not permit the court to rule objectively
on the question of qualified immunity, neither can the court
conclude that the police defendants are entitled to qualified
immunity as to plaintiff’s conspiracy claims.

Consequently,

summary judgment on the basis of qualified immunity is
inappropriate.
2. Plaintiff’s official capacity claims
The second amended complaint appears to contain claims
against the police defendants in their official capacities.
See, e.g., Compl. ¶¶ 9, 10, 13.

However, as discussed more

fully below, plaintiff’s official capacity claims find no
support in the record.
Section 1983 provides a cause of action to an
individual whose constitutional or federal statutory rights have
been violated by a “person” acting under the purported authority
of one of the sovereign states.

See 42 U.S.C. § 1983.

A

state’s political subdivisions, including municipalities and
other units of local government, are considered “persons” under
section 1983.

Monell v. Dep’t of Soc. Servs. of the City of New

York, 436 U.S. 658, 690 (1978).

In Kentucky v. Graham, 473 U.S.
32

159 (1985), the Supreme Court observed that official-capacity
suits “generally represent only another way of pleading an
action against an entity of which an officer is an agent.”
at 165-66.

Id.

Suits against government officials in their official

capacities therefore should be treated as suits against the
government.

Id. at 166.

Because the real party-in-interest in an official
capacity suit is the governmental entity and not the named
official, “the entity's ‘polic[ies] or custom[s]’ must have
played a part in the violation of federal law.”
Monell, 436 U.S. at 690 n. 55).

Id. (citing

Consequently, although local

governments are amenable to suit under section 1983, they cannot
be held vicariously liable.

Monell, 436 U.S. at 694 (“[A] local

government may not be sued under § 1983 for an injury inflicted
solely by its employees or agents.”).

A local government

instead faces liability under section 1983 when:
[E]xecution of [the] 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,
inflicts the injury[.]
Id.; see also Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown,
520 U.S. 397, 403-04 (1997) (same).
Here, the second amended complaint contains numerous
allegations that the police defendants acted pursuant to
33

official policies or customs of the City of South Charleston.
See Compl. ¶¶ 9, 10, 13 (“Each [d]efendant . . . was probably
acting pursuant to the official policy, practice, or custom of
the SCPD and the City of South Charleston.”); Compl. ¶ 133
(“[T]he police officers appeared to be unsupervised, not
properly trained, negligent and incompetent[.]”); Compl. ¶ 143
(The “defendant police officials . . . were not properly trained
by the City, and were apparently not being unswervingly
compelled by the City to comply with the basic constitutional
laws[.]”).

Yet plaintiff has pointed to no evidence in the

record regarding the policies, procedures, customs, or practices
of the City of South Charleston, unconstitutional or otherwise.
In the absence of any evidence on this issue, no reasonable jury
could find in plaintiff’s favor.

Accordingly, the police

defendants are entitled to judgment as a matter of law on
plaintiff’s official capacity claims.
3. Plaintiff’s state law claims
In addition to the constitutional claims discussed
above, plaintiff charges the police defendants with committing
common law trespass, and charges Lieutenant Yeager alone with
common law assault.1

1
In plaintiff’s briefing, he makes repeated reference to the
tort of conversion, although no claim for conversion appears in
34

a. Common law trespass2
The common law tort of trespass to property consists
in “ent[ering] on another[’s] ground without lawful authority[]
and doing some damage, however inconsiderable, to his real
property.”

Whiteman v. Chesapeake Appalachia, LLC, 729 F.3d

381, 386 (4th Cir. 2013) (citing Hark v. Mountain Fork Lumber
Co., 127 W. Va. 586, 591-92 (1945)).

The requisite damage may

be physical, or it may be abstract, in the form of an
“interfere[ence] with the [plaintiff’s] use of his real

the reformed second amended complaint. To be clear, conversion
may not be asserted with respect to real property, except in
limited circumstances not present here. See Denke v. Mamola, 437
N.W.2d 205, 207 (S. Dakota 1989) (citing 18 Am. Jur. 2d, Conversion
§ 19, at p. 156 (1985)); see also Restatement (Second) of Torts §
223 (1965) (same). Plaintiff does not, for instance, allege that
the dwelling at issue has been “severed and removed from the real
estate.”
Denke, 437 N.W.2d at 207.
Of more immediate
significance,
perhaps,
plaintiff’s
conversion
claims
were
conclusively rejected as a matter of law in an earlier order of
the court. See March 29, 2013, Memorandum Opinion and Order, at
pp. 10-11.
They retain no vitality at this stage, and hence
require no further discussion.
2 The police defendants argue that plaintiff’s trespass claim is
not actionable under section 1983. See Def. Mem., pp. 13-14. West
Virginia permits a plaintiff who has asserted a section 1983 claim
against a law enforcement officer to pursue an independent claim
for assault, battery, or other common law intentional torts as
well, even if those claims arise from the same facts as the section
1983 claim. Neiswonger v. Hennessey, 215 W. Va. 749, 753 (2004).
Inasmuch as the court finds that plaintiff’s trespass causes of
action seek to hold the police defendants liable under the common
law and not under section 1983, summary judgment on that basis is
inappropriate.
35

property.”

Hark, 127 W. Va. at 592; see also Rhodes v. E.I. du

Pont de Nemours and Co., 636 F.3d 88, 94 (4th Cir. 2011) (same).
Nobody disputes that the police defendants physically
entered onto the Barrett Street property, and it is clear, as
discussed above, that plaintiff had a legally cognizable
interest in the Barrett Street house.

The undisputed entry

interfered with his use of the property inasmuch as it resulted
in his being summarily ejected.
at 53-54.

See Good Real Prop., 510 U.S.

Nevertheless, the police defendants assert that they

had lawful authority to enter the premises.

First, they claim

that plaintiff consented on June 29 to their later entry on July
1.

See Def. Mem., p. 14.

The police defendants also claim, in

the alternative, that they had consent to enter from Gail Reid.
See Def. Mem., pp. 14-15.
It’s true that consent, when given by a person with
the power to do so, is one source of lawful authority to enter
private property.

See Perrine v. E.I. du Pont de Nemours and

Co., 225 W. Va. 482, 513 (2010) (citing Restatement (Second) of
Torts § 892A(1) (1979)); see also Patrick v. PHH Mortg. Corp.,
2013 U.S. Dist. LEXIS 43468, at *15 (N.D. W. Va. Mar. 27, 2013)
(Groh, J.) (“If an owner has consented to an alleged trespass
[he] cannot recover . . . for the harm resulting from [the
alleged trespass].”) (citing Perrine, 225 W. Va. at 513).
36

Nonetheless, the police defendants’ argument that plaintiff
impliedly consented on June 29 to the entry two days later on
July 1 is doubtful.

If, however, plaintiff is shown to have

deceived the police officers on June 29 into falsely believing
that his right of possession was superior to that of co-tenant
Gail Reid and that the Reid group were trespassers who should be
ejected and replaced by plaintiff and his brother, the original
consent so given by him for entry by the police may be deemed to
have continued until a just resolution of the right to
possession was achieved.

See Reid Statement 17:20-18:17

(claiming that plaintiff used a “false power of attorney” to
convince the police on June 29 of his superior right of
possession).
Turning to the police defendants’ second argument, it
appears to be the case in West Virginia that one co-owner cannot
consent to an entry that injures or encroaches upon the
possessory rights of another co-owner.

See Provident Life &

Trust Co. v. Wood, 96 W. Va. 516, ---, 123 S.E. 276, 281-82 (W.
Va. 1924) (A cotenant has no right, without the consent of the
other co-owner, to cut and remove the timber growing upon a
large area owned in common); Smith v. United Fuel Gas Co., 113
W. Va. 178, ---, 166 S.E. 533, 534-35 (W. Va. 1932) (Where one
or more joint tenants extract natural gas from the common

37

property without the consent of the other joint tenants, waste
of the common property is thereby committed, and he or they may
be compelled to account therefor to the other joint tenants.).
After all, “the gist of the tort [of trespass] is intentional
interference with rights of exclusive possession[.]”

Dan Dobbs

et al., 5A Dobbs’ Law of Torts § 49 (2d ed.).
Because the police are involved here, and are alleged
to have committed constitutional violations during their alleged
trespass, the court finds it meet to look to Fourth Amendment
jurisprudence in considering plaintiff’s trespass claims.

In

the Fourth Amendment context, the consent of one co-tenant is
valid as against an absent, non-objecting co-tenant.
States v. Matlock, 415 U.S. 164, 170-72 (1974).

United

On the other

hand, a present co-tenant may object, even if another co-tenant
consents, and the objecting cotenant will prevail.

Georgia v.

Randolph, 547 U.S. 103, 122-23 (2006).
It is apparent that plaintiff was not an “absent” cotenant during the relevant period.

Although he may not have

been present when Gail consented to the police entering the
premises, he obviously was present when the police entered the
house and removed him.
Accordingly, the police defendants’ second argument is
unavailing, though the issue of consent raised by their first
38

argument persists and requires factual resolution at trial.
Summary judgment on the common law trespass claim is
inappropriate.
b. Common law assault
In West Virginia, a person is subject to liability for
assault if:
(a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third person,
or an imminent apprehension of such a contact, and (b)
the other is thereby put in such imminent apprehension.
W. Va. Fire & Cas. Co. v. Stanley, 216 W. Va. 40, 51 (2004)
(quoting Restatement (Second) of Torts § 21 (1965)); see also
State v. Cunningham, 160 W. Va. 582, 593 (1977) (Miller, J.,
dissenting) (observing, in the criminal context, that “[a]n
assault is, of course, the threat to do violence as
distinguished from the actual doing of violence, which is a
battery.”); Hutchinson v. W. Va. State Police, 731 F. Supp. 2d
521, 547 (S.D. W. Va. 2010) (Chambers, J.) (“Stated simply, an
assault occurs when one person puts another in reasonable fear
or apprehension of an imminent battery and battery is any
harmful or offensive contact.”), aff'd sub nom. Hutchinson v.
Lemmon, 436 F. App'x 210 (4th Cir. 2011).

On the other hand,

the police may be entitled to commit what would otherwise be an
assault in the legitimate exercise of their authority.
39

Hutchinson, 731 F. Supp. 2d at 547 (“An activity that would
otherwise subject a person to liability in tort for assault and
battery . . . does not constitute tortious conduct if the actor
is privileged to engage in such conduct.”).
Here, plaintiff alleges that Lieutenant Yeager
threatened him with injury and “caused [him] to be in imminent
fear for his life[, and to] fear . . . bodily injury.”
693.

Compl. ¶

In support of these allegations, plaintiff has testified

that Lieutenant Yeager threatened to pepper spray him, Patt.
Aff. ¶¶ 36, 39, and that he was frightened.

See Patt. Dep.

54:1-2 (“I was afraid of him.”), 54:6-9 (“[W]hen he put his hand
on that gun, I was really afraid.”).
Lieutenant Yeager has not disputed plaintiff’s
testimony.

Instead, he invokes the protection of West Virginia

statutory immunity for government officials.

The statute in

question provides as follows:
(b)

An employee of a political subdivision is immune
from liability unless one of the following applies:

(1)

His or her acts or omissions were manifestly
outside the scope of employment or official
responsibilities;

(2)

His or her acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless
manner; or

40

(3)

Liability is expressly imposed upon the employee by
a provision of this code.

W. Va. Code § 29-12A-5(b).
The parties appear to agree that Lieutenant Yeager, as
a South Charleston police officer, is an “employee of a
political subdivision.”

There is no claim that liability is

expressly imposed on Lieutenant Yeager by a provision of the
West Virginia Code.

Thus, the question is whether his acts were

manifestly outside the scope of his duties or malicious, wanton,
or reckless.
As discussed above in reference to plaintiff’s section
1983 claims, the record precludes an objective analysis of the
reasonableness of the police defendants’ conduct, including that
of Lieutenant Yeager.

This is in large part because the police

defendants have not explained why they believed it was necessary
to remove plaintiff from the house, or to threaten to use force
in doing so.

Because it is unclear whether their decision to do

so was based on a reasonable investigation, it is not possible
to determine whether Lieutenant Yeager’s particular conduct at
issue -- threatening to pepper spray plaintiff -- was within the
scope of his duties and not reckless, malicious, or in bad
faith, or manifestly beyond the scope of his duties.

If the

entire action was unreasonable, any use of force to support it
41

would be unreasonable, too.

In the absence of sufficient

factual matter to rule on the question objectively, Lieutenant
Yeager’s motion for summary judgment on plaintiff’s common law
assault claim must be denied.
B. Magistrate Yeager
The complaint alleges that Magistrate Yeager joined
the police defendants, particularly her brother Lieutenant
Yeager, in a conspiracy to violate plaintiff’s constitutional
rights.

See Compl. ¶¶ 619-21.

Specifically, plaintiff claims

that “[a]t the 3:00 p.m. meeting [on July 1, 2011] at the [South
Charleston] police station, Jaime Adkins, Lieutenant Yeager,
[Magistrate] Yeager, [and the other defendants] likely hatched a
plan to dispossess and humiliate [plaintiff],” Compl. ¶ 114, and
that Magistrate Yeager “appeared to advise [the police
defendants]” in their scheme, Compl. ¶ 122.
In response, Magistrate Yeager invokes the protection
of absolute judicial immunity, asserting that her actions were
at all relevant times “clearly judicial and within the duties
and jurisdiction of a [state] magistrate.”
2.

Mag. Yeager Mot., p.

In the alternative, Magistrate Yeager maintains that

plaintiff has failed to produce sufficient evidence of her
participation in the conspiracy, and that she is therefore

42

entitled to judgment as a matter of law.

Mag. Yeager Mem., pp.

17-18.
1. Judicial immunity
a.
Judicial immunity is an absolute defense to suit,
Stump v. Sparkman, 435 U.S. 349, 356 (1978), so long as the
judge’s alleged wrongful conduct was “performed in [the judge’s]
judicial capacit[y],” Supreme Court of Virginia v. Consumers
Union, 446 U.S. 719, 734-35 (1980).

The scope of judicial

immunity is broad indeed, for it reaches judges of “both
superior and inferior courts,” King v. Myers, 973 F.2d 354, 356
(4th Cir. 1992), and applies even to serious misconduct such as
bribery, Mireles v. Waco, 502 U.S. 9, 11 (1991), and corruption,
Dennis v. Sparks, 449 U.S. 24, 27 (1980).
Even so, the Supreme Court has recognized that
“[a]bsolute immunity . . . is ‘strong medicine, justified only
when the danger of [officials’ being] deflect[ed] from the
effective performance of their duties] is very great.’”
Forrester v. White, 484 U.S. 219, 230 (1988) (quoting Forrester
v. White, 792 F.2d 647, 660 (7th Cir. 1986) (Posner, J.,
dissenting)).

Consequently, the inquiry focuses upon the nature

43

of the act in question rather than the identity of the actor.
The Supreme Court has explained as follows:
Whether the act done by [the judge] was judicial or not
is to be determined by its character, and not by the
character of the agent. Whether he was a county judge
or not is of no importance. The duty of selecting jurors
might as well have been committed to a private person as
to one holding the office of a judge. . . . That the
jurors are selected for a court makes no difference. So
are court criers, tipstaves, sheriffs, [et cetera]. Is
their election or their appointment a judicial act?
Forrester, 484 U.S. at 228 (quoting Ex parte Virginia, 100 U.S.
(10 Otto) 339 (1889)).

In other words, it is a judge’s “truly

judicial acts” which afford judicial immunity, not those acts
that are administrative, legislative, or executive, or simply
ordinary.

Id. at 227-28 (“Administrative decisions, even though

they may be essential to the very functioning of the courts,”
are not regarded as truly judicial acts.).

In determining

whether a given act is “truly judicial,” the court must examine
whether the act “is a function normally performed by a judge,
[as well as] the expectation of the parties[;] i.e., whether
they dealt with the judge in his judicial capacity.”
U.S. at 362.

44

Stump, 435

b.
It is undisputed that Magistrate Yeager spoke on the
telephone with Lieutenant Yeager about plaintiff at some point
on July 1, 2011.

As discussed more comprehensively in the next

subsection below, the record is devoid of any evidence upon
which a reasonable jury could conclude that Magistrate Yeager
and Lieutenant Yeager (or any other police defendant) met in
person between June 29 and July 1, 2011.

Consequently, for

purposes of determining the applicability of absolute judicial
immunity to Magistrate Yeager’s conduct during the relevant
period, the court confines its inquiry to the July 1, 2011,
telephone call.
Lieutenant Yeager called the magistrate court to see
whether “there were any orders that would have removed anyone
from the [Barrett Street] residence.”
24:20.

Mag. Yeager Dep. 23:22-

Magistrate Yeager also “mentioned to Lieutenant Yeager

that [she] had met [plaintiff] a couple nights prior to [sic]
and that [she] had given [plaintiff] the information with
respect to the fiduciary commissioner’s office and how to file
for the [administration of Josephine Patterson’s] estate.”
Yeager Dep. 28:17-21.

Mag.

Gail Reid stated that while she was

meeting with Lieutenant Yeager on July 1, Lieutenant Yeager
“happened to call up the magistrate’s office.”
45

Reid Statement

18:19-20.

Gail recalled that the magistrate with whom

Lieutenant Yeager spoke -- “a lady” -- said of plaintiff, “‘I
told him the night he came up here that he had no standing. And
he should not be in that house.’”

Reid Statement 18:22-24.

The Supreme Court’s decision in Forrester is of some
aid in evaluating the nature of Magistrate Yeager’s acts here.
There the Court declined to extend judicial immunity to Judge
Howard Lee White, an Illinois state court judge, in a suit
brought against him under section 1983 for his demotion and
discharge of Forrester, a probation officer.

The Supreme Court

concluded that Judge White was acting in an administrative
capacity, rather than a judicial one, when he demoted and
dismissed Forrester, reasoning that “[t]he decisions at issue
. . . were not themselves judicial or adjudicative.”
at 227.

484 U.S.

As a result, the Court treated Judge White as it would

any other employer being subjected to suit under section 1983.
The act of checking whether an order has been entered,
like the hiring of a subordinate member of the clerk’s office,
might as well be done by a non-judicial employee of the
magistrate court as by a judge or magistrate.

Indeed,

Magistrate Yeager explained that “when you’re in that day court
area, it’s so crazy, just whoever can grab it grabs the phone”
when someone calls.

Mag. Yeager Dep. 27:10-12.
46

It is not clear

that some other court employee could not have answered the phone
and checked the court’s records for orders pertaining to the
Barrett Street house.

On the other hand, it is clear that

Magistrate Yeager’s volunteered statements about plaintiff’s
visit were not made in her judicial capacity, as it is not one
of the functions of a judge to volunteer information to the
police.

Magistrate Yeager’s conduct, even as she describes it,

was not “adjudicative,” but rather was administrative or
ministerial at best.

Accordingly, Magistrate Yeager is not

entitled to summary judgment on the basis of absolute judicial
immunity.
2. Entitlement to judgment as a matter of law
Although Magistrate Yeager is not entitled to judicial
immunity under the circumstances, she is entitled to judgment as
a matter of law on plaintiff’s conspiracy claim withal, as the
record is insufficient for a reasonable jury to find that she
entered into a conspiracy with the police defendants to deprive
plaintiff of his constitutional rights.
a.
A civil conspiracy is “a combination of two or more
persons by concerted action to accomplish an unlawful purpose or
to accomplish some purpose, not in itself unlawful, by unlawful
47

means.”

Syl. Pt. 8, Dunn v. Rockwell, 225 W. Va. 43 (2009).

“The cause of action is not created by the conspiracy but by the
wrongful acts done by the defendants to the injury of the
plaintiff.”

Id.

In the context of a section 1983 action, a plaintiff
alleging a conspiracy to violate his constitutional rights “must
present evidence that the defendants acted jointly in concert
and that some overt act was done in furtherance of the
conspiracy which resulted in [the] deprivation of a
constitutional right.”

Hinckle v. City of Clarksburg, 81 F.3d

416, 421 (4th Cir. 1996) (emphasis supplied); see also Hafner v.
Brown, 983 F.2d 570, 577 (4th Cir. 1992) (same).

Plaintiff

consequently has a “heavy burden to establish a civil rights
conspiracy,” for while he “need not produce direct evidence of a
meeting of the minds, [he] must come forward with specific
circumstantial evidence that each member of the alleged
conspiracy shared the same conspiratorial objective.”
81 F.3d at 421.

Hinkle,

In other words, to survive a properly supported

summary judgment motion, plaintiff’s evidence must, at least,
reasonably lead to the inference that the defendants positively
or tacitly came to a mutual understanding to try to accomplish a
common and unlawful plan.

See Hafner, 983 F.2d at 576–77; see

also Abercrombie v. City of Catoosa, Okl., 896 F.2d 1228, 1230–

48

31 (10th Cir. 1990) (same); Fonda v. Gray, 707 F.2d 435, 438
(9th Cir. 1983) (same).
b.
Plaintiff initially claimed that the alleged
conspiracy was formed at the South Charleston police station
during a meeting attended by Jamie Adkins, Lieutenant Yeager,
Magistrate Yeager, Sergeant Thomas, and Officer McFarland.
Compl. ¶ 114.

These allegations appear to be based on a letter

written by Jamie Adkins on or around July 2, 2011, which
plaintiff obtained during discovery on the first amended
complaint.

See Adkins Letter, Compl., Ex. 1.

It is undisputed that at least one meeting occurred at
the station on July 1.

See Lt. Yeager Supp. Resp., p. 9.

However, there is simply no evidence whatsoever in the record
that Magistrate Yeager attended.

Nevertheless, plaintiff has

adopted an alternative theory of Magistrate Yeager’s rôle in the
conspiracy -- that she met with Lieutenant Yeager at the
Magistrate Court on July 1, 2011, while he was on duty.

In

support of this alternate theory, plaintiff points to a
reference in Lieutenant Yeager’s police logs to a code “44,”
which plaintiff believes to be code for “permission to leave
patrol.”

See Compl. ¶ 58.

Lieutenant Yeager’s July 1, 2011,

police log states, verbatim, “HQ TO BARRETT ST, PROP. DISP. 44
49

TO MAG. CT.”

See Compl., Ex. 13.

From this, plaintiff deduces

that Lieutenant Yeager must have asked for permission to leave
patrol to go to the magistrate court, whereupon he and
Magistrate Yeager conspired.

Compl. ¶¶ 58, 63, 64.

But

plaintiff does not present any evidence to counter Magistrate
Yeager’s testimony that she never met Lieutenant Yeager in
person at the courthouse on July 1, 2011.

See Mag. Yeager Dep.

49:17-50:3 (“I don’t recall him at the courthouse.”).

Nor does

plaintiff offer evidence to contradict Lieutenant Yeager’s
statement in his December 1, 2015, affidavit that “[c]learance
code ‘44’ is the designation that an individual was referred to
another agency,” and that “[i]n this instance, the clearance
code ‘44’ was used to denote that the individuals involved in
the property dispute were referred to the Kanawha County
Magistrate Court.”

Lieutenant Yeager Aff. ¶¶ 5-6.

There is

thus no evidence in the record that Lieutenant Yeager and
Magistrate Yeager met in person, either at the police station or
the magistrate court, during the relevant time period.
Plaintiff offers still another theory -- namely,
that the conspiracy occurred during Lieutenant Yeager’s July 1
phone call to the magistrate court.

As already discussed, it is

undisputed that during the call Lieutenant Yeager asked
Magistrate Yeager whether the magistrate court had any record of

50

an order respecting the ownership or possession of the Barrett
Street house.

Mag. Yeager Dep. 24:2-20.

During the call,

Lieutenant Yeager mentioned plaintiff’s name.
24:20-25, 28:10-16.

Mag. Yeager Dep.

This prompted Magistrate Yeager to tell

Lieutenant Yeager that plaintiff had come to the magistrate
court on June 29, 2011, while Magistrate Yeager was on duty, and
had spoken with her about the Barrett Street house.
Dep. 28:17-23.

Mag. Yeager

Although Magistrate Yeager’s statement that

plaintiff “should not be in that house” may have emboldened
Lieutenant Yeager to remove plaintiff, it was not conspiratorial
in nature.

The record is clear that Magistrate Yeager did not

learn that plaintiff had been removed from the Barrett Street
house, or that her brother Lieutenant Yeager had effected the
removal, until plaintiff’s arraignment on domestic battery
charges in Magistrate Yeager’s court on July 2, 2011.

See Mag.

Yeager Dep. 45:13-46:4.
The court is mindful of the fact that plaintiff need
produce no more than “circumstantial evidence that each member
of the conspiracy shared the same conspiratorial objective,” and
that “direct evidence of a meeting of the minds” is not
required.

Hinkle, 81 F.3d at 421.

It is also mindful that it

must view the facts in the light most favorable to plaintiff and
resolve all inconsistencies in his favor.

51

Diebold, 369 U.S. at

655; Charbonnages de France, 597 F.2d at 414.

Nevertheless,

there is no evidence in the record upon which a reasonable jury
could base a finding of “common purpose” or a “meeting of the
minds” between Magistrate Yeager and any of the police
defendants.

Simply because they briefly talked on the telephone

on July 1, 2011, about plaintiff’s visit to the magistrate
court, plaintiff asks the court to find a reasonable inference
that Magistrate Yeager and Lieutenant Yeager shared a common
conspiratorial objective.

But with only the phone call to

support it, such an inference would be unreasonable.

Conspiracy

“is a legal doctrine under which liability is imposed on people
who did not actually commit a tort themselves but who shared a
common plan for its commission with the actual perpetrator(s).”
Syl. Pt. 9, Dunn v. Rockwell, 225 W. Va. 43.

There is no

evidence of a common plan here.
“[T]he law is well settled that merely conclusory
allegations of conspiracy, unsupported by a factual showing of
participation in a joint plan of action” are insufficient as a
matter of law to preclude summary judgment.
F.3d 1370, 1376 (4th Cir. 1995).

Simmons v. Poe, 47

Rule 56 mandates the entry of

summary judgment against a party who fails to make a showing
sufficient to establish the existence of an essential element
for which that party bears the burden of proof at trial.

52

Fed.

R. Civ. P. 56(a).

In order to do so, “a party must present more

than mere speculation or conjecture.”

Sybron Transition Corp.

v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir.
1997).

Plaintiff’s failure to offer any evidence of Magistrate

Yeager’s misconduct, beyond his own supposition, is sufficient
basis for entry of summary judgment against him on this claim.
Accordingly, Magistrate Yeager is entitled to judgment as a
matter of law, and plaintiff’s motion for summary judgment as to
her must be denied.
VI. Conclusion
For the foregoing reasons, it is ORDERED as follows:
1. That the motion to strike filed by plaintiff Wayne
Patterson on December 21, 2015, be, and it hereby is, granted in
part, as set forth above, but otherwise denied;
2. That the motion for summary judgment filed jointly by
defendants Lieutenant R.T. Yeager, Sergeant L.S. Thomas, and
Officer R.P. McFarland on December 12, 2015, be, and it hereby
is, granted with respect to plaintiff’s official capacity claims
under 42 U.S.C. § 1983, as set forth above, but otherwise
denied;

53

3. That the motion for summary judgment filed by defendant
Magistrate Julie Yeager on December 12, 2015, be, and it hereby
is, granted; and,
4. That the motion for summary judgment filed by plaintiff
on December 13, 2015, be, and it hereby is, denied.
The Clerk is requested to transmit copies of this
order to all counsel of record and any unrepresented parties.
DATED: February 11, 2016

John T. Copenhaver, Jr.
United States District Judge

54