Woodruff v. Thornsbury et al
MEMORANDUM OPINION AND ORDER denying Mr. Woodruff's 142 MOTION for Summary Judgment Against Defendant Michael Thornsbury; denying Mr. Thornsbury's 144 MOTION for Summary Judgment; denying Trooper Moore's 140 MOTION for Summary Judgment. Signed by Judge John T. Copenhaver, Jr. on 10/17/2014. (cc: attys; any unrepresented parties) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 2:13-24001
MICHAEL THORNSBURY, individually and
in his official capacity, and
TROOPER BRANDON MOORE, individually and
in his official capacity,
MEMORANDUM OPINION AND ORDER
Pending are separate motions for summary judgment by
plaintiff Robert Woodruff against defendants Trooper Brandon Moore
and Michael Thornsbury, and by Trooper Moore and Mr. Thornsbury
against Mr. Woodruff, filed July 21, 2014.
General Allegations of the First Amended Complaint1
The court has used these allegations solely to provide
context into the factual circumstances surrounding Mr. Woodruff’s
claims. Assembling a factual recitation based upon the
evidentiary record has proven difficult for at least three
reasons. First, the parties have provided very little in the way
of citations to the discovery taken in the case. Where those
citations are offered, they constitute only bits and pieces of the
far-ranging and complicated conspiracies alleged. Second, the
current posture of the case -- on cross motions for summary
judgment -- causes difficulty in assembling a nonmovant-based
On September 30, 2013, plaintiff Robert Woodruff
instituted this action.
He is a resident of Mingo County, West
Defendant Michael Thornsbury was, at all relevant
times, serving as a judge on the Circuit Court of Mingo County.
Former defendant Jarrod Fletcher was, at all times relevant, the
foreperson of the Mingo County grand jury.
member of the West Virginia State Police.
Trooper Moore is a
Former defendant Jeff
Cline is a close friend and confidant of Mr. Thornsbury.
Mr. Woodruff is married to Kimberly Woodruff.
formerly employed at Hampton Coal Company, a Mingo County coal
According to the first amended complaint, from
approximately January 2008 through spring 2009, Ms. Woodruff was
Mr. Thornsbury’s administrative assistant.
She endured his
various forms of sexual harassment during this time, alleging she
refused his proposed liaisons.
From approximately 2007 through early 2010, then-Judge
Thornsbury cultivated a relationship with Trooper Moore with the
design of securing influence over him in the performance of
Trooper Moore’s official duties.
Mr. Thornsbury is also alleged
factual presentation. Third, multiple parties have invoked their
Fifth Amendment privilege during discovery.
to have gained influence and control over Mr. Fletcher, who was
Mingo County’s Director of Homeland Security and Emergency
Management when he was serving as foreman of the grand jury in
In 2008 and 2009, the two became business partners in
That relationship was not widely known until
The Alleged Conspiratorial Activities Aimed at Mr. Woodruff
1. The Cocaine Conspiracy
Mr. Thornsbury allegedly hatched a plan in the second
half of 2008 to have Mr. Woodruff incarcerated.
According to the
first amended complaint, Mr. Thornsbury instructed Mr. Fletcher to
relay information to Trooper Moore and other, unnamed members of
the West Virginia State Police that Mr. Woodruff had concealed
cocaine under his pickup truck.
Mr. Fletcher was selected for
this task based upon his influence as Director of Mingo County
Homeland Security and Emergency Management.
At a later unspecified date, Mr. Thornsbury summoned Mr.
Cline to his chambers.
Mr. Cline was instructed to attach a metal
box filled with cocaine under Mr. Woodruff’s vehicle.
Thornsbury explained that, with Mr. Woodruff out of the way, Ms.
Woodruff would be forced to have a romantic relationship with him
out of financial necessity.
Mr. Cline agreed to plant the drugs
as directed but never followed through.
The Scrap Metal Conspiracy
From 2006 through 2008, Mr. Woodruff salvaged scrap
mine-roof drill bits from his employer, Hampton Coal Company.
would then transport them to another facility for refurbishing.
Hampton Coal Company permitted him to do so.
In approximately the
second half of 2008, however, Mr. Thornsbury allegedly told
Trooper Moore that Mr. Woodruff was stealing the bits.
Thornsbury instructed Trooper Moore to file charges to that effect
but to conceal Mr. Thornsbury’s involvement.
Upon investigating the matter, Trooper Moore learned
that Mr. Woodruff was authorized to take the bits.
Moore informed Mr. Thornsbury, the latter nevertheless insisted
that Mr. Woodruff be charged with grand larceny.
On December 2,
2008, Trooper Moore filed a criminal complaint charging Mr.
Woodruff with three (3) felony counts arising out of his
authorized bit removal work.
He was charged with grand larceny,
receiving and transferring stolen goods, and obtaining money under
Following his arrest on the charges, Mr. Woodruff
was on bond from December 2, 2008, to January 9, 2009.
end date, the charges were dismissed pending further
On January 14, 2009, Trooper Moore, again allegedly at
Mr. Thornsbury’s direction, filed an additional criminal charge
against Mr. Woodruff for the same fraudulent scheme.
remained pending from January 14, 2009, until August 21, 2013.
that end date, it was dismissed with prejudice by the county
On January 20, 2009, Mr. Thornsbury appointed Mr.
Fletcher as the foreperson of the Mingo County grand jury.
grand jury was allegedly intended to indict Mr. Woodruff on
certain charges related to the bit removal work.
ostensibly permitted Mr. Thornsbury to control the grand jury.
That control allegedly resulted in the improper issuance of grand
jury subpoenas duces tecum to oppress Mr. Woodruff and procure his
indictment on felony charges.
have been served upon him.
Those subpoenas never appear to
Trooper Moore was, however, allegedly
called to testify before the grand jury against Mr. Woodruff on
this matter in the absence of the prosecuting attorney.
jury did not return an indictment.
3. The Assault and Battery Conspiracy
On or about January 25, 2012, Mr. Woodruff was involved
in an altercation at a convenience store in Gilbert.
report indicated that two other individuals started the conflict,
with one pulling a firearm.
Three eye witnesses reported as much.
Mr. Woodruff alleges that law enforcement reviewed a video
recording of the altercation and confirmed the accounts.
later, however, Mr. Thornsbury allegedly told Officer Nathan
Glanden, formerly a party to this action but dismissed at the Rule
12(b)(6) stage, to obtain an arrest warrant for Mr. Woodruff on
charges of assault and battery.
Officer Glanden was not involved
in the investigation up to that point.
On February 23, 2012,
Officer Glanden executed the warrant.
Between February 2012 and October 2012, during which
time Mr. Woodruff was on bond, Mr. Thornsbury instructed Mr. Cline
to visit the Mingo County Prosecuting Attorney.
Mr. Cline was
directed to tell the prosecutor to offer a plea agreement to Mr.
Woodruff requiring a six-month term of incarceration on the
assault and battery charge.
First time offenders on an offense of
that sort are typically offered the penalties of a nominal fine
and the payment of court costs.
The plea agreement offer was
refused by Mr. Woodruff and his lawyer.
On October 31, 2012, just
a few days before the scheduled trial, the case was dismissed.
Mr. Woodruff was only recently, prior to the filing of
the complaint in this case, made aware of the conspiratorial
activities directed against him.
The conspiracies were concealed
until uncovered by federal law enforcement agents.
The Claims Alleged
On September 30, 2013, Mr. Woodruff instituted this
The court recites only those counts which remain in
Count One is a claim pursuant to 42 U.S.C. § 1983
against Mr. Thornsbury and Trooper Moore for deprivation of his
due process rights, malicious prosecution and false imprisonment
arising out of the criminal proceedings relating to the bits and
the assault and battery.
Mr. Fletcher is also named in Count One.
The attempt to plant cocaine under Mr. Woodruff’s truck is also
Count Two asserts a conspiracy to pursue a malicious
prosecution under state law arising out of the criminal
proceedings relating to the bits and the plan to plant cocaine
under Mr. Woodruff’s truck.
The claim is pled pursuant to West
Virginia Code section 55-7-9, which creates a civil claim for the
violation of any West Virginia statute.
The predicate statutory
violation is said to be the criminal conspiracy to falsely impute
criminal liability to Mr. Woodruff.
Count Three alleges a claim for gross negligence arising
out of the entire factual predicate pled and summarized earlier.
Mr. Woodruff asserts that Mr. Thornsbury was obliged to adhere to
the Code of Judicial Conduct and was negligent in attempting to
produce a sexual liaison with Ms. Woodruff.
He asserts that
negligent act proximately caused the unlawful activities
thereafter directed toward Mr. Woodruff.
Count Five alleges negligent infliction of emotional
distress against all of the defendants without significant
Similarly, Count Six asserts a claim for intentional
infliction of emotional distress arising out of the events that
led to Mr. Woodruff’s incarceration and prosecution.
Count Seven pleads a false imprisonment claim resulting from Mr.
Woodruff’s incarceration on the trumped-up charges.2
The proposed integrated pretrial order filed October 2,
2014, recasts the claims slightly. The claims there found are as
follows: (1) a violation of section 1983 without elaboration on
the constitutional right allegedly violated, (2) a conspiracy in
violation of section 1983 also lacking elaboration, (3) a Fourth
Amendment unreasonable seizure claim, (4) false imprisonment, (5)
intentional infliction of emotional distress, and (5) negligent
infliction of emotional distress.
If entered by the court, those modified claims will be the
ones relied upon by Mr. Woodruff at trial. See Rockwell Intern.
Corp. v. United States, 549 U.S. 457, 474 (2007) (“Here, we have .
. . a final pretrial order that superseded all prior pleadings and
‘controll[ed] the subsequent course of the action . . . .”)
(quoting Fed. R, Civ. Proc. 16(e)) (citing, in part, Curtis v.
Loether, 415 U.S. 189, 190, n. 1 (1974) (where a claim was not
included in the complaint, but was included in the pretrial order,
noting it is irrelevant that the pleadings were never formally
The Prosecution of Mr. Thornsbury
On August 14, 2013, the United States filed an
indictment charging Mr. Thornsbury with multiple civil rights
conspiracies in violation of 18 U.S.C. § 241 arising out of the
alleged circumstances discussed heretofore.
On September 19,
2013, Mr. Thornsbury was additionally charged by information with
an entirely separate section 241 offense involving a different
On September 30, 2013, Mr. Thornsbury signed a plea
agreement in which he promised to plead guilty to the information
in exchange for the dismissal of the indictment.
accepted the plea of guilty and, on June 14, 2014, Mr. Thornsbury
was sentenced to fifty (50) months imprisonment.
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
amended); Syrie v. Knoll Int'l, 748 F.2d 304, 308 (5th Cir. 1984)
(“[I]ncorporation of a [new] claim into the pre-trial order ...
amends the previous pleadings to state [the new] claim.”)).
Fed. R. Civ. P. 56(c).
Material facts are those
establishing the elements of a claim.
Inc., 477 U.S. 242, 248 (1986).
Anderson v. Liberty Lobby,
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 fact-finder could return a verdict for the nonmovant. 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.”
v. Catrett, 477 U.S. 317, 325 (1986).
If the movant satisfies
this burden, then the non-movant must set forth specific facts as
would be admissible in evidence that demonstrate the existence of
a genuine issue of fact for trial.
Fed. R. Civ. P. 56(c); id. at
A party is entitled to summary judgment if the record as
a whole could not lead a rational trier of fact to find in favor
of the non-movant.
Williams v. Griffin, 952 F.2d 820, 823 (4th
Conversely, summary judgment is inappropriate if the
evidence is sufficient for a reasonable fact-finder to return a
verdict in favor of the non-moving party.
Anderson, 477 U.S. at
Even if there is no dispute as to the evidentiary facts,
summary judgment is also not appropriate where the ultimate
factual conclusions to be drawn are in dispute.
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.
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.”
v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Mr. Woodruff’s Motions for Summary Judgment
1. Against Trooper Moore
On February 21, 2014, Trooper Moore was deposed.
claimed his Fifth Amendment privilege for the questions posed to
him respecting his involvement with the claims alleged.
Mr. Woodruff asserts that the combination of an adverse
inference arising from invocation of the privilege, coupled with
other record evidence in the case including the timing of the
dismissal and refiling of the charges, and the charge of grand
larceny for property that was valued by him at less than the
$1,000 required for grand larceny, entitles him to judgment as a
matter of law against Trooper Moore.
The Fifth Amendment provides in material part that no
person “shall be compelled in any criminal case to be a witness
against himself . . . .” U.S. Const. Amend. V; United States v.
Under Seal, 737 F.3d 330, 333 (4th Cir. 2013).
“not only permits a person to refuse to testify against himself at
a criminal trial in which he is a defendant” -- it “also
privileges him not to answer official questions put to him in any
other proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.”
Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (internal quotation
Claiming the privilege in a civil case, however, carries
It permits the factfinder to draw an adverse
inference against the party choosing to remain silent.
v. Palmigiano, 425 U.S. 308, 319 (1976) (“[S]ilence in the face of
accusation is a relevant fact not barred from evidence by the Due
Process Clause.”); ePlus Technology, Inc. v. Aboud, 313 F.3d 166,
179 (4th Cir. 2002) (“In a civil proceeding, a fact-finder is
entitled to draw adverse inferences from a defendant's invocation
of the privilege against self incrimination.”).
A plaintiff’s entitlement to the inference, however,
does not necessarily warrant judgment as a matter of law.
is disagreement respecting whether the adverse inference should
even be drawn at the Rule 56 stage.
See ePlus Technology, Inc.,
313 F.3d at 179 (“a fact finder is entitled to draw adverse
inferences”) (emphasis added).
Some courts observe the inference
at summary judgment is incompatible with a trial court’s
obligation to draw all reasonable inferences in favor of the
See, e.g., Stichting Ter Behartiging Van de
Belangen Van Oudaandeel-houders In Het Kapitaal Van Saybolt
International B.V. v. Schreiber, 407 F.3d 34, 55 (2d Cir. 2005)
(“Even assuming that a jury might draw [adverse] inferences,
however, we are required at summary judgment to draw all
reasonable inferences in favor of the non-moving party . . . so we
cannot conclude that [the invocation of the Fifth Amendment]
resolves all genuine issues of fact[.]”); Parsons & Whittemore
Enters. v. Schwartz, 387 F. Supp. 2d 368 (S.D.N.Y. 2005) (same).
Other authorities suggest that an adverse inference may
be relevant to a summary judgment determination, even if it is not
the sole basis upon which summary judgment is granted.
v. Colello, 139 F.3d 674, 677–78 (9th Cir. 1998) (holding that
district court did not err in drawing an adverse inference against
defendant based on his Fifth Amendment invocation in a summary
judgment proceeding because there was “additional evidence” to
support the SEC's case); LaSalle Bank Lake View v. Seguban, 54
F.3d 387, 391 (7th Cir. 1995) (“although inferences based on the
assertion of the privilege are permissible, the entry of judgment
based only on the invocation of the privilege and ‘without regard
to the other evidence’ exceeds constitutional bounds.”) (quoted
authority omitted); S.E.C. v. Monterosso, 746 F. Supp. 2d 1253,
1261-62 (S.D. Fla. 2010) (“[A] motion for summary judgment cannot
be granted on an adverse inference alone; rather, the inference
must be weighed with other evidence in the matter in determining
whether genuine issues of fact exist.”) (quoting United States v.
Shuman, 684 F. Supp. 2d 378, 386 (S.D.N.Y. 2010)).
The divide appears to have taken root in district courts
within our own circuit.
Compare Custer Battles, LLC, 415 F. Supp.
628, 630 & n.1 (E.D. Va. 2006) (noting that the court declined to
resolve a pending motion for adverse inference at the summary
judgment stage, but returning to adjudicate the issue in the
context of proposed jury instructions), with Maryland v. Universal
Elections, Inc., 862 F. Supp. 2d 457, 464 (D. Md. 2012)
(concluding that an adverse inference corroborated evidence
concerning a party’s state of mind, thereby eliminating any
genuine dispute of material fact at the summary judgment stage),
aff’d, 729 F.3d 370 (4th Cir. 2013).
The court need not resolve the appropriate treatment of
the inference at the summary judgment stage.
inference desired by Mr. Woodruff, which he couples with other
record evidence in the case relating to the timing of the
dismissal and refiling of the charges, along with the charge of
grand larceny for property that was valued by him at less than the
$1,000 required for grand larceny, does not entitle him to
judgment as a matter of law on the claims alleged against Trooper
The disposition of those claims is thus left for the
trier of fact.
Mr. Woodruff also allegedly testified during his
deposition as follows:
Q Okay. Now, tell me about that. What happened? How did
you find out you were being charged with a crime?
A You talking about when the trooper come and picked me
up-Q Yeah, yeah.
A --at work?
Q Yeah, tell me about it.
A Trooper -- it was Trooper Boytek, I believe, come up
on a job at Raw Coal where I was working, said he had a
warrant for my arrest. I asked him, I said, "Was it" -I said, "Is it about the bits, the scrap bits?" He's
like "I can't comment on it," or something like that.
And I said, "well, I had permission to get them." And he
said, "Well," said, "I'm here to pick you up."
(Pl.’s Reply Mem. at 3). The quoted deposition testimony,
referenced for the first time in a reply brief, is not a part of
the record in the case. Also, there is no indication that Mr.
Woodruff’s exculpatory statement was passed on to Trooper Moore.
It is, accordingly, ORDERED that Mr. Woodruff’s motion
for summary judgment against Trooper Moore be, and hereby is,
2. Against Mr. Thornsbury
During Mr. Thornsbury’s sentencing hearing, the
presiding judge referenced the circumstances that are at the
center of this litigation.
Mr. Woodruff notes that the presiding
judge observed as follows at the June 9, 2014, sentencing hearing:
Unfortunately, as the relevant conduct in the
Presentence Report indicates, that crime is not even the
worst example in this case of your perversion of
justice, transforming government in Mingo County into
something unrecognizable as government.
As the only circuit judge in Mingo County, you
wielded tremendous power. And when you set your romantic
sights on your secretary, you abused that power and the
very justice system itself in an attempt to destroy her
husband so that you could have her for yourself.
You personally instigated and orchestrated an
effort to plant illegal drugs on his vehicle. When that
failed, you directed that he be charged with a crime
which you and others involved knew was false. You rigged
the entire system against this man, including the grand
jury. That is nothing short of appalling and
unacceptable in the United States of America.
Yet, where was this citizen -- your secretary's
falsely accused husband -- where was he to go for
justice? The court system in Mingo County no longer
existed for him. You made it a malevolent force bent on
his destruction. Where could he go? To him, liberty
ended. The Constitution became a dead letter for him.
You corruptly contorted the justice system into a
weapon to be wielded against a romantic rival. That is
the kind of thing one might expect, though still
condemn, in the regime of some third world dictator. It
is an ugly insult to the United States Constitution.
In the sorry history of Southern West Virginia
political corruption, you're not the first judicial
officer or circuit judge to face this Court for
sentencing. Thus, it is important for this sentence to
send the message that this crime is utterly unacceptable
and intolerable, and that serious penalties await those
who corrupt our system of justice.
(Trans. of Sent. Hrg. at 33-34).
Mr. Woodruff asserts that these
observations from the bench are sufficient to collaterally estop
Mr. Thornsbury from challenging the constitutional claims alleged
against him, especially inasmuch as he did not object to the
presentence report or address the court at sentencing concerning
the circumstances surrounding Mr. Woodruff.
The requirements for collateral estoppel are well
Syl. pt. 2, Conley v. Spillers, 171 W. Va. 584, 586,
301 S.E.2d 216, 217 (1983), provides that:
Collateral estoppel is designed to foreclose
relitigation of issues in a second suit which have
actually been litigated in the earlier suit even though
there may be a difference in the cause of action between
the parties of the first and second suit.
Id.; see Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach,
420 F.3d 322, 327 (4th Cir. 2005) (“Under 28 U.S.C. § 1738,
federal courts must give full faith and credit to state court
judgments. This includes the application of state preclusion rules
to determine whether a prior state court judgment has res judicata
effect in a § 1983 action.”).
Issue preclusion is strong
medicine, however, and subject to certain caveats.
the Supreme Court of Appeals of West Virginia has also observed as
But where the causes of action are not the same, the
parties being identical or in privity, the bar extends
to only those matters which were actually litigated in
the former proceeding, as distinguished from those
matters that might or could have been litigated therein,
and arises by way of estoppel rather than by way of
strict res ajudicata.
Lane v. Williams, 150 W. Va. 96, 100, 144 S.E.2d 234, 236 (1965);
see also Abadir v. Dellinger, 227 W. Va. 388, 393, 709 S.E.2d 743,
Overall, there are four criteria that must be
established in order for collateral estoppel to apply:
Collateral estoppel will bar a claim if four conditions
are met: (1) The issue previously decided is identical
to the one presented in the action in question; (2)
there is a final adjudication on the merits of the prior
action; (3) the party against whom the doctrine is
invoked was a party or in privity with a party to a
prior action; and (4) the party against whom the
doctrine is raised had a full and fair opportunity to
litigate the issue in the prior action.
Syl. pt. 1, State v. Miller, 194 W. Va. 3, 6, 459 S.E.2d 114, 117
(1995); see also Abadir, 227 W. Va. at 933, 709 S.E.2d at 748.
While the parties do not reference it, there is also
substantial scholarship directly on point.
See, e.g., Jonathan
Scott Baker, The Use of Sentencing Findings as a Collateral
Estoppel Weapon in Subsequent Civil Litigation, 85 Notre Dame L.
Rev. 713, 714 (2010); Wystan M. Ackerman, Note, Precluding
Defendants from Relitigating Sentencing Findings in Subsequent
Civil Suits, 101 Colum. L. Rev. 128 (2001).
It seems apparent that the doctrine should not be
invoked in this action.
Foremost, the issues Mr. Woodruff now
seeks to foreclose were not finally adjudicated on their merits.
The sentencer stated his conclusions from the bench during a
Mr. Thornsbury at that time was subject to
sentencing on an information that did not involve the issues in
A sentencing jurist’s dispositional observations
listed in support of the judgment imposed should not constitute
the final word on largely unrelated civil claims.
It is also questionable whether Mr. Thornsbury ought to
have been treated, in this later civil action, as having forfeited
a full and fair opportunity to litigate in his criminal case any
issues here involved.
He might have foregone his objections and
stood silent at sentencing solely in the hopes of assuring
acceptance of responsibility or securing a lighter sentence.
is not the same as a party in a civil case forfeiting defense of a
central issue in civil litigation where one’s liberty is not at
Mr. Thornsbury was never adjudicated guilty of the
circumstances here involved.
At Mr. Thornsbury’s sentencing,
there was apparently no mention of Mr. Woodruff until the
sentencer was about to enter his oral Judgment.
thus had no occasion following the imposition of sentence to
substantively address the judicial observations.
certainly not uncommon in federal criminal sentencing.
presiding judge did precisely what one would expect at sentencing
-- namely, enter a judgment after all parties have had an
opportunity to be heard and the judge has remarked on a number of
matters considered by him in reaching the sentenced imposed.
is another matter entirely, however, to treat the observations
made here as findings worthy of preclusive, and offensive, effect
in a later civil action.
That conclusion is not inconsistent with the mine run of
authority on point.
See, e.g., United States v. Certified
Environmental Services, Inc., 753 F.3d 72, 100 (2nd Cir. 2014)
(noting “[W]e have been wary of giving preclusive effect to
factual findings made in a criminal sentencing even when the
parties to the subsequent proceeding are the same, holding that
‘precluding relitigation on the basis of [sentencing] findings
should be presumed improper.’”) (quoting United States v. Currency
in the Amount of $119,984, 304 F.3d 165, 172 (2nd Cir. 2002)
(quoting SEC v. Monarch Funding Corp., 192 F.3d 295, 306 (2nd Cir.
1999)); Kosinski v. C.I.R., 541 F.3d 671, 677 (6th Cir. 2008)
(“The procedural ground rules for criminal-sentencing proceedings
differ considerably from the ground rules that govern civil
actions. At sentencing, the defendant . . . ‘has no absolute right
either to present his own witnesses or to receive a full-blown
evidentiary hearing,’ . . [a]nd he does not enjoy the protection
of the Federal Rules of Evidence, where the ‘judge is largely
unlimited either as to the kind of information he may consider, or
the source from which it may come, so long as the information has
sufficient indicia of reliability to support its probable
accuracy.’”); Jonathan Scott Baker, supra, 85 Notre Dame L. Rev.
at 727 (advocating a per se ban on extending preclusive effect to
a federal district court's sentencing findings and noting that,
“Three other circuits have essentially adopted the same rule as
Monarch Funding: sentencing findings are presumed improper for
collateral estoppel purposes, but their use is not per se
Mr. Woodruff makes clear in his reply brief that he
moves under Rule 56 solely on issue preclusion grounds.
5 (“The only issue raised by Plaintiff with respect to his motion
for summary judgment is the doctrine of ‘collateral estoppel.’”).
Under the circumstances, it is inappropriate to apply a preclusion
It is, accordingly, ORDERED that Mr. Woodruff’s
motion for summary judgment against Mr. Thornsbury be, and hereby
Mr. Thornsbury’s Motion for Summary Judgment
One can readily appreciate the substance of Mr.
Thornsbury’s Rule 56 argument from the introduction found in his
memorandum in support:
While the text of the amended complaint describes a
shocking set of tabloid worthy claims, the allegations
are nothing more than a near verbatim recitation of a
now dismissed federal indictment against Mr. Thornsbury.
Since the commencement of this civil suit, there has
been no discovery of credible evidence to suggest that
there was any conspiracy to wrongfully accuse Mr.
Woodruff of any crimes. In fact, Mr. Woodruff himself
concedes that his only knowledge of the allegations in
the Complaint is the now dismissed federal indictment:
(Mem. in Supp. at 1-2 (emphasis added) (footnote omitted)).
Mr. Woodruff points to evidence he has mustered
respecting each of the three alleged conspiracies.
cocaine conspiracy, defendant Jeff Cline testified during his
deposition that he reported to then-Judge Thornsbury’s office one
When he arrived, he saw then-Judge Thornsbury and a man
named Bill Davis.
Mr. Davis had brought a black box in and set it
on the corner of then-Judge Thornsbury’s desk.
Mr. Davis and
then-Judge Thornsbury had put some powdery residue into it.
Davis and then-Judge Thornsbury secured the box, Mr. Cline was
instructed to take Mr. Davis to Mr. Woodruff’s residence, and Mr.
Davis would plant the box apparently on Mr. Woodruff’s truck.
Mr. Cline then told Mr. Davis that Mr. Davis ought to
return home and let Mr. Cline affix the box.
Mr. Davis agreed.
Mr. Cline then left to affix the box but thought better of it.
disposed of the item in the Tug River.
called Mr. Cline the next morning and asked where the box was,
noting that Mr. Woodruff had not been arrested.
When asked during
his deposition about the reason behind the plot, Mr. Cline stated
that then-Judge Thornsbury told him “that he wanted Robert out of
(Trans. of Jeffrey Cline at 21).
Regarding the scrap metal conspiracy, Mr. Thornsbury
does not dispute that he appointed Mr. Fletcher as grand jury
foreman on January 20, 2009.
He also admitted his unusual
involvement in drafting the grand jury subpoenas duces tecum that
were contemplated to be issued as a result of foreperson
During Mr. Thornsbury’s deposition, the
following exchange occurred:
Q A11 right. Paragraph 32 of the indictment, it
alleges, “On or about January 22nd, 2009, Judge
Thornsbury provided Foreperson Fletcher with several
purported grand jury subpoenas that Judge Thornsbury had
created and caused to be created." Are you denying -A I gave him a form as to the format of the subpoenas.
The subpoenas, when I went over there to dinner, had
been predominantly prepared. There were many mistakes in
those. And if you're calling that drafting, then maybe
it's drafting. But I actually I think I absolutely had
the authority to do it. I said that's not appropriate.
That comes out. That comes out. That comes out. That's
wrong. That's the wrong language and whether you do it
now or have to quash it later, it's wrong. So, yes, I
did that. So, however you want to -- however you want to
(Trans. of Dep. of Michael Thornsbury at 51).
Regarding the assault and battery conspiracy, Mr. Cline
testified during his deposition that then-Judge Thornsbury told
him to carry a message to the county prosecutor that Mr. Woodruff
needed to be sentenced to six months in jail.
When Mr. Cline
delivered the message, the prosecutor told him he should speak
with an assistant, Matt Chandler.
When Mr. Cline carried the
message to Mr. Chandler, he conveyed then-Judge Thornsbury’s
wishes but then added a message of caution, namely, that Mr.
Chandler should actually dismiss the charges inasmuch as “there’s
more to this than you know. . . . Don’t get your hands dirty.”
(Trans. of Jeffrey Cline at 36).
Mr. Cline carried a similar
message to the presiding magistrate.
In addition to these items of evidence, it is
additionally the case that Trooper Moore invoked his Fifth
Amendment privilege in response to the following inquiries:
Whether then-Judge Thornsbury falsely reported to him
that Mr. Woodruff was stealing drill bits from Hampton
Coal Company and asked him to keep the source of the
Whether then-Judge Thornsbury insisted that Trooper
Moore pursue a grand larceny charge against Mr. Woodruff
arising out of the bits although by that time Trooper
Moore learned that Hampton Coal Company authorized Mr.
Woodruff to take the bits.
Whether he caused Mr. Woodruff to be arrested pursuant
to an arrest warrant on the false charges.
Whether then-Judge Thornsbury directed him and Jarrod
Fletcher to induce the Mingo County grand jury to issue
subpoenas regarding the meritless investigation of Mr.
Whether then-Judge Thornsbury coerced him into arresting
Whether he knew Mr. Thornsbury was having an affair with
Ms. Woodruff in or around 2008.
These excerpts from the evidentiary record and the
reasonable inferences to be drawn therefrom, taken in the light
most favorable to Mr. Woodruff, give rise to genuine issues of
material fact regarding the federal and state claims.
accordingly, ORDERED that Mr. Thornsbury’s motion for summary
judgment be, and hereby is, denied.4
Trooper Moore’s Motion for Summary Judgment
Trooper Moore moves for summary judgment on three
First, he asserts that Mr. Woodruff’s claims are time
Mr. Thornsbury also asserts that Mr. Woodruff is unable to
prove damages. The question of damages is reserved to the trier
Second, he contends that there is no evidence that he was
part of a conspiracy with Mr. Fletcher and Mr. Thornsbury.
he seeks qualified immunity for his actions.5
1. Limitations Defense
Regarding the limitations defense, Mr. Woodruff’s claims
are subject to either a one- or two-year limitations period.
Woodruff asserts that he was unaware of the conspiracy outlined in
the first amended complaint until 2013 and that the defendants
deliberately concealed its existence from him.
As noted at the
Rule 12(b)(6) stage of the case, the court construes these
assertions to give rise to an equitable tolling argument.
The same tolling rules apply to both the section 1983
and state tort claims.
See Wallace v. Kato, 549 U.S. 384, 394
(2007) (“We have generally referred to state law for tolling
rules, just as we have for the length of statutes of
limitations.”); Wade v. Danek Medical, Inc., 182 F.3d 281, 289
(4th Cir. 1999) (stating “in any case in which a state statute of
limitations applies -- whether because it is ‘borrowed’ in a
federal question action or because it applies under Erie in a
Trooper Moore additionally asserts that the mere invocation
of his Fifth Amendment privilege does not create a genuine issue
of material fact. The court has addressed that issue supra in the
context of Mr. Woodruff’s summary judgment briefing
diversity action -- the state's accompanying rule regarding
equitable tolling should also apply.”).
In syllabus point 5 of Dunn v. Rockwell, 225 W. Va. 43,
689 S.E.2d 255 (2009), the Supreme Court of Appeals of West
Virginia set forth the rubric governing limitations defenses.
analysis at step four is summarized below:
A five-step analysis should be applied to determine
whether a cause of action is time-barred. . . .
[Respecting the fourth step], if the plaintiff is not
entitled to the benefit of the discovery rule, then
determine whether the defendant fraudulently concealed
facts that prevented the plaintiff from discovering or
pursuing the cause of action. Whenever a plaintiff is
able to show that the defendant fraudulently concealed
facts which prevented the plaintiff from discovering or
pursuing the potential cause of action, the statute of
limitation is tolled. . . . Only the first step is
purely a question of law; the resolution of steps two
through five will generally involve questions of
material fact that will need to be resolved by the trier
Id. (emphasis added).
The question posed at step four relating to fraudulent
concealment is not susceptible of resolution at the Rule 12(b)(6)
stage under the circumstances presented.
Trooper Moore is thus
not entitled to summary judgment on limitations grounds.
Lack of Evidence of a Conspiracy and the
Availability of Qualified Immunity
Our court of appeals recently observed, in accordance
with its longstanding precedent, that a conspiracy claim under
section 1983 is established when a plaintiff “present[s] 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.”
Massey v. Ojaniit,
759 F.3d 343, 357-58 (4th Cir. 2014) (citing Hinkle v. City of
Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996)).
The analysis found in section II.C above notes a genuine
issue of material fact respecting whether Mr. Thornsbury and Mr.
Fletcher were part of a conspiracy to have Mr. Woodruff indicted
for his innocent taking of the drill bits.
Trooper Moore was
directly involved with the investigation and prosecution of the
criminal matters leading to that grand jury investigation.
On December 1, 2008, Trooper Moore is alleged to have
caused an arrest warrant to issue for Mr. Woodruff on three (3)
felony counts arising out of Mr. Woodruff’s authorized bit removal
Mr. Woodruff was charged at that time with grand larceny,
receiving and transferring stolen goods, and obtaining money under
Mr. Woodruff was on bond from December 2, 2008,
to January 9, 2009.
On that end date the charges were dismissed.
On January 14, 2009, Trooper Moore filed an additional
criminal charge against Mr. Woodruff for the same fraudulent
scheme and appears to have had another arrest warrant issued for
The charge remained pending for over four years from January
14, 2009, until August 21, 2013.
On that end date, the charge was
dismissed with prejudice on the motion of the county prosecutor.
This timeline of events, coupled with Trooper Moore’s
multiple invocations of his Fifth Amendment privilege during
questioning about the scrap metal conspiracy, are sufficient to
raise genuine issues of material fact respecting the three section
1983 conspiracy elements recited in Massey and Hinkle.
same reason, Trooper Moore is not entitled to the defense of
qualified immunity on that claim or any other.
It is, accordingly, ORDERED that Trooper Moore’s motion
for summary judgment be, and hereby is, denied.
Based upon the foregoing discussion, it is ORDERED as
That Mr. Woodruff’s motions for summary judgment be, and
hereby are, denied;
That Mr. Thornsbury’s motion for summary judgment be, and
hereby is, denied; and
That Trooper Moore’s motion for summary judgment be, and
hereby is, denied.
The Clerk is directed to transmit copies of this written
opinion and order to all counsel of record and any unrepresented
October 17, 2014
John T. Copenhaver, Jr.
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?