Weigle v. Pifer et al
Filing
75
MEMORANDUM OPINION AND ORDER granting in part and denying in part 36 MOTION by City of Vienna, City of Vienna Police Department, Brian Ingraham, R. L. Pifer for Summary Judgment as more fully set forth herein. Signed by Judge John T. Copenhaver, Jr. on 10/14/2015. (cc: counsel of record; any unrepresented parties) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JAMES P. WEIGLE,
Plaintiff,
v.
Civil Action No. 2:14-cv-15087
R.L. PIFER, individually and
in his capacity as an officer
with the City of Vienna Police Department, and
BRIAN INGRAHAM, individually and
in his capacity as an officer
with the City of Vienna Police Department, and
CITY OF VIENNA POLICE DEPARTMENT, a political
subdivision of the State of West Virginia, and
the CITY OF VIENNA, a political
subdivision in the State of West Virginia
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the defendants’ motion for summary
judgment, filed April 24, 2015.
I.
Background
Plaintiff James P. Weigle (“Weigle”) is a West
Virginia citizen who lives in Parkersburg, West Virginia.
The
City of Vienna (“the City”) is a municipality geographically
adjacent to Parkersburg.
The City, its police department, and
Vienna police officers R.L. Pifer (“Pifer”) and Brian Ingraham
(“Ingraham”)(collectively “the officers”), are each named
1
defendants in this action.1
This suit arises from an incident that occurred on
April 21, 2012.
That morning, at around 8 a.m., Weigle was
driving southbound on Grand Central Avenue in Vienna.
As he
approached the intersection of Grand Central Avenue and 34th
Street he became mired in traffic.
Frustrated by the delay,
Weigle sounded his car’s horn.
The traffic delaying Weigle was the byproduct of a 5K
footrace that was producing an intermittent stream of
pedestrians on several of Vienna’s thoroughfares, including 34th
Street.
To ensure the safety of these runners, members of both
the Vienna Police Department and the Vienna Volunteer Fire
Department were directing traffic at various locations along the
course of the race.
Pifer and Ingraham were two of the police
1
The defendants argue that the Vienna police department is not a
proper party because the department is “merely the vehicle
through which the City government fulfills its policing
functions” and “under West Virginia law, a police department is
not a separate suable entity.” Def. Mem. of Law in Supp. Mot.
for Summ. J at * 25 (citing W. Va. Code § 8-14-1 and Tofi v.
Napier, No. 2:10-CV-01121, 2011 WL 3862118, at * 4 (S.D.W. Va.
Aug. 31, 2011)). Weigle concedes that the police department is
not a proper party. See Pl. Resp. in Opp’n at * 16.
Accordingly, the court concludes that the Vienna police
department is not a proper party and should be dismissed. This
dismissal does not affect the validity of Weigle’s claims
against the City, including those predicated on the actions of
police officers or other employees of the police department.
2
officers engaged in traffic control for the race.
The parties agree generally on what happened next,
though several important details are in dispute.
It is
undisputed that at least one, and perhaps several, motorists
near the intersection of Grand Central Avenue and 34th Street
sounded their horn.
Weigle admits that he sounded his horn, but
states that he did so only once, and only after he heard other
drivers sound theirs.
The defendants claim that Weigle was
sounding his car’s horn “repeatedly.”
Patrolman Joshua Cole (“Cole”) who, along with Pifer,
was directing traffic at the intersection of Grand Central
Avenue and 34th Street, went to investigate the horn sounding.
Walking along the line of stopped or slowly moving vehicles,
Cole eventually determined that Weigle had sounded his horn.
He
approached Weigle’s small vehicle, a “Smart car,” and instructed
him to pull over to the side of the road.
comply.
Weigle did not
Weigle claims that he did not comply because he did not
recognize that Cole, who was wearing rain gear that obscured his
police uniform and did not prominently display a badge, was a
police officer.
Shortly thereafter, Cole returned to the
intersection and spoke with Pifer.
After speaking with Cole,
Pifer made his way to Weigle’s vehicle.
Weigle concedes that he
knew Pifer to be a policeman when he saw Pifer approaching.
3
When Pifer arrived, he knocked on Weigle’s driver-side
window, and Weigle rolled down his window in response.
After
Weigle lowered the window, Pifer asked Weigle to produce his
driver’s license.
He also instructed Weigle to pull his vehicle
out of the line of traffic and into the parking lane.
Weigle
complied with the latter request and, after pulling into the
parking lane, exited the vehicle.
Weigle produced his driver’s
license, although the parties disagree about the manner in which
it was produced.
Weigle then began expressing his
dissatisfaction with being stuck in traffic and Pifer offered
commiserations.
The parties agree that shortly thereafter Weigle
attempted to reenter his vehicle.
from doing so by Pifer.
He was physically prevented
The parties disagree about the exact
sequence of events that follow, but a physical altercation
ensued.
During this altercation Pifer initiated an arrest of
Weigle.
Sometime after Weigle had exited his vehicle, but
before the arrest began, Ingraham, who had been directing
traffic at a different intersection along the course of the
race, arrived at the scene in his police cruiser.
Ingraham, in
response to a signal from Pifer, had just begun to exit his
cruiser when Pifer initiated the arrest.
4
Ingraham began
assisting Pifer in his attempts to secure Weigle.
Although the
parties offer different accounts concerning the amount of force
employed by the officers, it is undisputed that Pifer forcibly
wedged Weigle against the hood of Ingraham’s police cruiser
during the arrest.
The officers were initially unable to
handcuff Weigle, whose hands were positioned underneath his
torso near his abdomen.
Eventually, with the assistance of
Ingraham, who threatened to use pepper spray against Weigle,
Pifer was able to secure handcuffs on Weigle and complete the
arrest.
Weigle was processed, then eventually charged with
obstructing a police officer.
He appeared before a county
magistrate and was convicted.
He appealed that conviction,
seeking de novo review in the Circuit Court of Wood County, West
Virginia.
After a bench trial, the magistrate conviction was
overturned and Weigle was acquitted.
Weigle initiated this action by filing a ten count
complaint on April 21, 2014.
The first seven counts raise six
state law claims against the officers (negligence, outrage,
negligent infliction of emotional distress, assault, battery,
and malicious prosecution) and one against the City (negligent
retention).
The complaint’s last three counts assert a number
of federal constitutional claims arising under 42 U.S.C § 1983,
5
consisting of excessive force claims under the Fourth Amendment2
against the officers related to their conduct during the arrest,
and separate but related constitutional violations against the
City, namely, that it had customs or policies that contributed
to or caused the injuries inflicted by the officers during the
arrest (the “Monell claims”).
The defendants have moved for summary judgment on all
counts.
The defendants advance a number of theories with
respect to the state law claims, including insufficiency of the
evidence, common law privilege, and statutory immunity.
2
With
Wiegle’s complaint alleges two separate excessive force claims
against both Pifer and Ingraham. Count Eight alleges a
violation of the Fourth Amendment, while Count Nine alleges a
violation of the Fourteenth Amendment. Although both amendments
can support an excessive force claim, they do so in different
contexts. Orem v. Rephann, 523 F.3d 442, 446 (4th Cir.
2008)(explaining that “[t]he Fourth Amendment [only] governs
claims of excessive force during the course of an arrest,
investigatory stop, or other ‘seizure’ . . . [w]hereas
excessive force claims of a pretrial detainee [or arrestee] are
governed by the Due Process Clause of the Fourteenth
Amendment.”)(internal quotation marks and citations omitted).
In their briefing the defendants contend, and Weigle concedes,
that Weigle’s Fourteenth Amendment claim is inappropriate
because the complaint does not allege that either officer used
excessive force at any time other than during the arrest. See
Def. Mem. of Law in Supp. Mot. for Summ. J. at * 20 (“[Weigle’s]
only allegations of excessive use of force pertain to the
actions of the officers during the arrest process.”), Pl. Resp.
in Opp’n at * 13 (“Plaintiff voluntarily withdraws his claim
under the Fourteenth Amendment”). Accordingly, the defendants
are entitled to judgment as a matter of law with respect to
Count Nine’s Fourteenth Amendment claim, and the court need not
further address it.
6
respect to the federal claims, the defendants both invoke the
protection of qualified immunity and argue that Weigle’s claims
are substantively meritless because the force used by officers
during the arrest was objectively reasonable.
The court is properly invested with jurisdiction over
the federal claims inasmuch as Section 1983 is a federal statute
through which deprivation of constitutional rights may be
redressed.
28 U.S.C. § 1331.
A district court properly
invested with jurisdiction can also exercise supplemental
jurisdiction over state law claims that “form part of the same
case or controversy.”
28 U.S.C. § 1367, see also United Mine
Workers of Am. v. Gibbs, 383 U.S. 715 (1966).
Accordingly, the
court has jurisdiction over all of Weigle’s claims.
II.
The Summary Judgment Standard
A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”
Fed. R. Civ. P. 56(c).
Material facts are
those necessary to establish the elements of a party’s cause of
action.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
7
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant.
Id.
The
moving party has the initial 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).
Celotex Corp.
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.
56(c); id. at 322-23.
Fed. R. Civ. P.
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.
F.2d 820, 823 (4th Cir. 1991).
Williams v. Griffin, 952
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.
III. Discussion
A.
With the exception of the malicious prosecution claim
set forth in Count Seven and two of the four infliction of
emotional distress claims in Counts Three and Four, each of
8
Weigle’s claims relates either directly or indirectly to the
force employed by the officers during his arrest.
The officers
have asserted qualified immunity with respect to Weigle’s
Section 1983 claims and analogous state law statutory immunity
with respect his state law claims.
“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)),
immunity is a threshold issue which the court addresses before
considering any of the defendants’ proffered substantive bases
for summary judgment.
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.”), Hunter v. Bryant, 502 U.S. 224, 227 (1991)(per
curiam)(“We repeatedly have stressed the importance of resolving
immunity questions at the earliest possible stage in
litigation.”); accord Robinson v. Pack, 223 W. Va. 828, 831
(2009)(“‘ We agree with the United States Supreme Court to the
extent it has encouraged, if not mandated, that claims of
immunities, where ripe for disposition, should be summarily
decided before trial.’”)(quoting Hutchison v. City of
Huntington, 198 W.Va. 139 (1996)).
9
1. Qualified Immunity of Officers Pifer and Ingraham with
Respect to the Section 1983 Claims
“The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known.’”
Pearson, 555 U.S. at 231 (2009)(quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
It is clearly
established that the Fourth Amendment confers upon individuals a
constitutional right to be free from excessive force during the
course of an arrest.
Graham v. Connor, 490 U.S. 386 (1989),
accord Turmon v. Jordan, 405 F.3d 202, 207 (4th Cir. 2005)(“ The
Fourth Amendment's right to be free from unreasonable seizures
includes the right to be free from seizures carried out with
excessive force.”).
Thus, whether or not qualified immunity
shields Pifer and/or Ingraham from Section 1983 liability
depends upon whether or not the force employed during Weigle’s
arrest was excessive.
“Determining whether the force used to effect a
particular seizure is reasonable under the Fourth Amendment
requires a careful balancing of the nature and quality of the
intrusion on the individual's Fourth Amendment interests against
the countervailing governmental interests at stake.”
Graham,
490 U.S. at 396 (internal citations and quotation marks
10
omitted).
This inquiry into reasonableness is an objective one.3
“[T]he question is whether the officers' actions are
‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.”
Id. at 397.
Although the test for reasonableness of the force used
during an arrest is an objective one, our Court of Appeals has
explained that the exact contours of the inquiry are “not
capable of precise definition or mechanical application.”
Bailey v. Kennedy, 349 F.3d 731, 743 (4th Cir. 2003).
In
general, “[t]he nature of the intrusion on a plaintiff's Fourth
Amendment rights is generally measured by the amount of force
employed to affect [sic] the seizure. The extent of the
plaintiff's injuries is also a relevant consideration.”
Turmon,
405 F.3d 202, 207 (4th Cir. 2005)(internal citations omitted).
That intrusion is weighed against several factors representing
the governmental interests at stake, including the “‘severity of
the crime at issue, whether the suspect pose[d] an immediate
3
Last term, in City and County of San Francisco, Calif. V.
Sheehan, the Supreme Court clarified that Graham cannot be
applied at an overly broad level to make officers liable for all
“unreasonable searches and seizures.” 135 S.Ct. 1765, 1776
(2015). But the Court has also made clear that Graham continues
to supply the framework of analysis in excessive force cases.
See id. at 1775-76 (stating that Graham “holds . . . that the
objective reasonableness test applies to excessive-force claims
under the Fourth Amendment”)(internal quotations omitted); see
also Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015).
11
threat to the safety of the officer or others, and whether [he]
. . .
actively resist[ed] arrest or attempt[ed] to evade arrest
by flight.’”
at 396).
Bailey, 349 F.3d. at 743 (quoting Graham, 490 U.S.
Balancing these “Graham factors” against the amount of
force exerted by the arresting officers “requires careful
attention to the facts and circumstances of each particular
case.”
Id.
Moreover, in Graham, the Supreme Court explained
that:
The reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of
hindsight. . . . Not every push or shove, even if it may
later seem unnecessary in the peace of a judge's
chambers, violates the Fourth Amendment. The calculus of
reasonableness must embody allowance for the fact that
police officers are often forced to make split-second
judgments — in circumstances that are tense, uncertain,
and rapidly evolving — about the amount of force that is
necessary in a particular situation.
Graham, 490 U.S. at 396-97 (internal citations and quotation
marks omitted).
As outlined above, the parties agree, at least in
broad strokes, about the events that occurred immediately before
and then during Weigle’s arrest.
It is undisputed that Weigle
was stuck in traffic, sounded his horn at least once, took his
car out of the flow of traffic at Pifer’s request, exited the
vehicle in order to display his driver’s license, and was
forcibly arrested after trying to reenter his vehicle.
12
However,
the parties offer materially different accounts concerning
various details which provide the necessary context for
determining if the force employed by the officers was reasonable
or excessive.
Pifer states that Weigle exited his vehicle without
being asked to do so.
Pifer Dep.4 at 61.
Weigle contends that
he exited the vehicle because Pifer asked him to produce his
driver’s license and he could not retrieve the license from his
wallet (which was in his pants pocket) without exiting the
vehicle, and that he informed Pifer of this.
Weigle Dep.5 at 28,
see also Cir. Ct. Tr.6 at 95, 107 (testimony of Charles
Noffsinger corroborating Weigle’s explanation for exiting the
vehicle).
The parties agree that Weigle then produced his
license, but disagree on the manner of its production.
Pifer
claims Weigle “aggressive[ly] placed his driver’s license under
Sgt. Pifer’s nose.”
Def. Mem. of Law in Supp. Mot. for Summ. J.
4Excerpts
of Pifer’s deposition are attached as “Exhibit 1” to
the defendants’ motion for summary judgment. (ECF 36-1(a) and
36-1(b)). The entirety of Pifer’s deposition is attached as
“Exhibit A” to Weigle’s response in opposition. (ECF 46-1).
5 Excerpts of Weigle’s deposition are attached as “Exhibit 5” to
the defendants’ motion for summary judgment. (ECF 36-6). The
entirety of Weigle’s deposition is attached as “Exhibit C” to
Weigle’s response in opposition. (ECF 46-3).
6 Excerpts of the transcript of Weigle’s non-jury criminal trial
in the Circuit Court of Wood County, West Virginia are attached
as “Exhibit 2” to the defendants’ motion for summary judgment.
(ECF 36-3). The entirety of the trial transcript is attached as
“Exhibit B” to Weigle’s response in opposition. (ECF 46-2).
13
at * 3 (citing Pifer Dep. at 61).
handed his license to Pifer.
Weigle contends he merely
Weigle Dep. at 33, see also Cir.
Ct. Tr. at 110 (testimony of Charles Noffsinger that he did not
see Weigle shove the license under Pifer’s nose, and did not see
any other behavior that would constitute assault).
The parties
agree that immediately after the license was produced, Pifer and
Weigle engaged in conversation.
While both acknowledge that
they discussed the reason underlying Weigle’s decision to sound
his horn as well as his general frustration with being stuck in
traffic, they disagree about what was said immediately before
the sequence of events that precipitated the arrest.
Pifer provides the following version of events.
After
Weigle presented his driver’s license to Pifer, Weigle began
expressing his dissatisfaction with being stuck in traffic.
Pifer Dep. at 64-65.
Pifer engaged Weigle in conversation in an
attempt to “disarm him emotionally.”
Id. at 66.
Weigle
remained agitated and eventually told Pifer that, “[t]his is all
bull---t, and I’m f----ng leaving.”
Id. at 68.
Pifer,
concerned that Weigle might do something reckless, “slammed the
door of [Weigle]’s car and said ‘No, you’re not leaving.’”
Id.
at 68-69, see also Cir. Ct. Tr. at 140 (testimony of Kerry
Miller describing Weigle “aggressively” opening the car door,
and then Pifer “slamm[ing] the door” shut).
14
Concerned that
Weigle was “not calming down,” Pifer then signaled to Ingraham,
who was in his police cruiser in the line of traffic a few cars
behind where Weigle had been, to pull into the parking lane.
Pifer Dep. at 70.
As Ingraham was pulling into the parking lane, Weigle
said either “F--k this. I’m leaving” or “F--k you. I’m leaving”
and tried to reenter his vehicle.
Id. at 73.
As Weigle moved
toward the driver’s side door, he struck Pifer with his
shoulder.
Id. at 73-74 (Pifer testifying that “[Weigle] had –
for lack of a better term, he had muscled past me . . . [y]ou
know, struck me with his left shoulder.”), see also Cir. Ct. Tr.
at 37 (testimony of Pifer: “I closed the door of his car and
said, ‘No. . . [y]ou’re not free to leave.’
tried to bull past me”).
And then he kind of
Pifer then “grabbed [Weigle’s] left
elbow . . . and grabbed [Weigle’s] right shoulder . . . and
walked him back towards Sergeant Ingraham’s car and placed him
across the hood to be arrested.”
told Weigle, “That’s it.
Pifer Dep. at 73.
You’re under arrest.”
He also
Id. at 76.
Although Pifer grabbed Weigle by the elbow and
shoulder as he placed him on the hood of Ingraham’s police
cruiser, Weigle’s hands were not secured and became lodged
underneath his abdomen, near his stomach.
Id. at 75.
Weigle
began “actively trying to stand upright and come off the hood,”
15
Id. at 77, so Pifer, who is six foot four inches tall and weighs
over 300 pounds, id. at 124, leaned against Weigle to “forc[e]
him to remain on the hood.”
Id. at 76.
Pifer placed his right
hand on Weigle’s “upper back” in order to “apply the maximum
amount of equal pressure against his back so that [Weigle] could
not raise up off the car.”
Id. at 80.
At this point Ingraham
became involved in the arrest by attempting to take “control . .
. [of] Weigle’s right arm.”
Id.
Pifer then verbally directed
Weigle to “remove his hands out from under himself” so he could
be handcuffed.
Id. at 77, 82-83.
When Weigle did not comply
with that request, Ingraham “announced” that he was going to
pepper spray Weigle.
Id. at 83.
Pifer then told Weigle to “[p]ut your hands behind
your back and you won’t be sprayed” but Weigle did not comply.
Id. at 85.
Instead, he “immediately jerked his head to the
left[,] away from the pepper spray canister.”
Id. at 84.
Pifer
responded by placing his forearm underneath of Weigle’s nose and
“used it as a pressure point to move [Weigle’s] head . . . so
that [Weigle] was looking directly at [the pepper spray
canister].”
Id. at 85.
At that point, Weigle said “Okay” and
released his hands from underneath his body, allowing Pifer and
Ingraham to place his hands behind his back and handcuff him.
Id. at 87, see also Cir. Ct. Tr. at 38 (testimony of Pifer:
16
“When I placed him on the hood of Officer Ingraham’s car, Mr.
Weigle refused to place his hands behind his back. I stated he
was being arrested . . . [and said] ‘Place your hands behind
your back,’ and he refused. I believe he clasped his hands
underneath of his stomach laying against there, and then we had
to, frankly, force him to raise his head. And Sergeant Ingraham
stated he was going to pepper spray him, and that’s when we got
his hands out. He released his hands, and we placed him under
arrest.”).
Pifer denies using a taser on Weigle during the
arrest, and states that neither he nor Ingraham were carrying a
taser on the day of the incident.
Pifer Dep. at 107-108.
Ingraham’s account of the incident generally corroborates the
account given by Pifer.
See Ingraham Dep.7 at 43-49, see also
Cir. Ct. Tr. at 76-77.
Weigle offers a different account of the events both
leading up to and during his arrest.
According to Weigle, after
knocking on the car window, Pifer asked to see his driver’s
license.
See Cir. Ct. Tr. at 218.
Only after Weigle exited the
vehicle and handed Pifer his driver’s license did Pifer ask to
see Weigle’s vehicle registration and insurance card.
7
Weigle
Excerpts of Ingraham’s deposition are attached as “Exhibit 6”
to the defendants’ motion for summary judgment. (ECF 36-7). The
entirety of Ingraham’s deposition is attached as “Exhibit F” to
Weigle’s response in opposition. (ECF 46-6).
17
Dep. at 33, Cir. Ct. Tr. at 281.8
Because those documents were
in the glove box of his car, Weigle opened the driver’s side
door so he could reenter the vehicle in order to obtain them.
Weigle Dep. at 33.
As soon as he opened the door, Pifer
“slam[med] the [car] door shut.”
Id.
Weigle looked at Pifer
and said, “[S]ir, the registration card and insurance card is in
the glove box.
You’re going to have to let me in the car if you
want to see them.”
Id.
In response, Pifer made a motion,
apparently to Ingraham, and then told Weigle “get in that
cruiser.”
Id.
Weigle inquired if he was under arrest, and
Pifer either didn’t give a response, or Weigle, who suffers from
hearing loss, didn’t hear it.
Id.
Weigle then “turned to go
get in the cruiser,” Cir. Ct. Tr. at 206, and it is at that
point that Pifer “pile drive[d]” him “right over the hood of
[Ingraham’s] car.”
Weigle Dep. at 34.
Pifer “mashed his weight
8
It is worth noting that Pifer admitted, during his deposition,
that he asked Weigle to produce his registration and insurance
card at this point in the encounter:
Question: Did you ask him again at some point – for
verification of insurance? . . .
Answer: I believe I did ask him again for his
registration and insurance card.
Question: Do you remember at what point in your
interaction you would have asked for it again?
Answer: It was during the time when we were beginning
to verbally spar whenever he was being very aggressive
and hostile in action and verbage [sic].
Pifer Dep. at 78-79.
18
down” on Weigle, causing him “severe pain.”
Id.
Weigle claims
he “rotated” and said, “don’t mash me like that . . . I had
stomach surgery.”
See Cir. Ct. Tr. at 206, Weigle Dep. at 34.
Pifer responded with a “forearm [to Weigle’s] neck” and began
“mashing the living hell out of” Weigle, causing him
“excruciating pain.”
Weigle Dep. at 34.
Then another
policeman, presumably Ingraham, began trying to “rip [Weigle’s
right arm] over [his] shoulder” in such a manner that it felt
like the arm was being “pull[ed] out of [its] joint.”
Id.
Weigle explains that had he known he was under arrest
he “would have complied” and that Pifer’s use of force was a
“big surprise.”
Id. at 41.
He also states that the specific
way the officers attempted to subdue him was the cause of his
failure to comply with the requests to put his hands behind his
back.
Weigle Dep. at 40 (testimony of Weigle that the officers
placed handcuffs on him “[a]s soon as [Pifer] let up on my neck
so I could pick my shoulder up to – you can’t rotate your arm if
you’re mashed.
arm.
You can’t get your shoulder up to rotate your
So as soon as he let up on my neck – I twisted up like
this to put my hand behind my back.”); Cir. Ct. Tr. at 208-09
(testimony of Weigle: “I was laying flat on the hood, and my
shoulders was [sic] smashed.
And I’ll want to watch anybody
rotates [sic] their arm behind you when you can’t raise your
19
shoulder to twist your arm to put it behind you.”).
Weigle also
claims that the officers used a taser on him at some point
during the encounter.
Weigle Dep. at 60, 126, see also Cir. Ct.
Tr. at 209.
The differences in these two accounts are material.
The actions of the officers, and those of Pifer in particular,
can be cast in a wildly different light.
If Pifer acted out of
concern for his own safety, or the safety of others, his
decision to use force may be constitutionally reasonable.
See
Morrison v. Bd. Of Trustees Of Green Twp., 583 F.3d 394, 405
(6th Cir. 2009)(“[ A] police officer's use of force against a
suspect is justified by the threat posed by the suspect to the
safety of the officer or others.”)(citation omitted), Weigel v.
Broad, 544 F.3d 1143, 1152 (10th Cir. 2008)(“ Where [an] officer
has probable cause to believe that [a] suspect poses a threat of
serious physical harm, either to the officer or others, it is
not constitutionally unreasonable to prevent escape [through the
use of] force.”)(citation omitted).
In his deposition, Pifer states that he initiated the
arrest because he was worried that if Weigle drove off he would
endanger others in the area, most notably the participants in
the footrace.
Pifer Dep. at 68-69.
Officer safety is also a
paramount consideration during traffic stops, given the ease
20
with which weapons can be concealed within an automobile and the
ready access drivers and passengers have to such weapons.
See
Michigan v. Long, 463 U.S. 1032, 1047-48 (1983)(recognizing that
“investigative [situations] involving suspects in vehicles are
especially fraught with danger to police officers” as well as
noting that “suspects may injure police officers and others by
virtue of their access to weapons, even though they may not
themselves [appear to] be armed”), see also Pennsylvania v.
Mimms, 434 U.S. 106 (1977)(per curiam)(holding that officer
safety was a sufficient justification for police officers’
standard practice of ordering drivers to exit their vehicle
during traffic stops).
During his deposition, Pifer testified
that he was cognizant of the danger associated with allowing a
suspect to reenter a vehicle during a traffic stop.
at 148-149.
Pifer Dep.
The risk was not hypothetical in this case, given
that Weigle had a loaded .380 caliber pistol in his car “next to
the driver’s seat,” Weigle Dep. at 44-45, although there is no
indication that the officers were aware of it at the time.
In contrast, if Pifer initiated the arrest in response
to Weigle’s brusque demeanor and use of profanity, his use of
force may be deemed unconstitutional.
Cf United States v. Cobb,
905 F.2d 784, 789 (4th Cir. 1990)(“[W]e do not agree with [the
government] that mere words . . . can justify the use of
21
physical force by a police officer.”).
Similarly, a jury could
conclude that Pifer’s proffered concerns about the safety of
himself or others are not credible given that he had asked
Weigle to produce his registration and insurance card,
implicitly inviting Weigle to reenter the vehicle in order to
obtain items that are customarily kept inside a vehicle’s glove
compartment.
Moreover, Pifer and Ingraham’s account of the arrest
repeatedly emphasizes that Weigle refused to put his hands
behind his back and submit to being handcuffed.
If Weigle was
resisting arrest – that is, if he was intentionally refusing to
allow his hands to be cuffed behind his back – his failure to
comply is taken into account when evaluating the reasonableness
of the force used.
See Graham, 490 U.S. at 396.
However, if
the manner in which the officers were applying force caused
Weigle’s inability to comply, and that, in turn, prolonged the
period for which he was subjected to such force, a jury could
reasonably determine that Weigle was not resisting, and if such
a finding were made, the force employed by the officers against
a non-resisting suspect would likely qualify as excessive.
See
e.g., Bennett v. Krakowski, 671 F.3d 553, 562 (6th Cir.
2011)(noting that “no force” is necessary to restrain a suspect
who is not resisting arrest).
Additionally, if the jury
22
determines that Ingraham used a taser against Weigle after he
stopped resisting, that use of force could be considered
excessive.
See Meyers v. Baltimore County, Md., 713 F.3d 723
(4th Cir. 2013)(officer’s use of a taser against an arrestee no
longer actively resisting violated arrestee’s clearly
established constitutional rights).
The injuries Weigle suffered during the arrest are
also relevant to the reasonableness inquiry, and they too are in
dispute.
Weigle claims to suffer from a variety of injuries
that were caused or exacerbated by the arrest, including
abdominal tenderness, a cervical strain, a low back strain,
damage to his right shoulder, damage to his esophagus and
bowels, and numerous complications related to his 1996 Nissen
fundoplication surgery.9
See Pl. Compl ¶ 25-27; Weigle Dep. at
125; Cir. Ct. Tr. at 207-11.
He also claims to have had a taser
used on him during the arrest, causing him to lose control of
his bowels.
See Weigle Dep. at 61.
In contrast, Pifer states
that after taking Weigle to the police station for processing he
asked Weigle “a couple times” if he was injured or if he wanted
medical personnel to take a look at him and that “every time
9
As described by Weigle, a Nissen Fundoplication is a surgical
procedure, intended to combat severe acid reflux disease, which
involves wrapping a portion of an individual’s stomach around
the bottom of their esophagus. See Weigle Dep. at 108-13.
23
[Weigle] told me no.”
Pifer Dep. at 96.
And, as noted above,
Pifer categorically denies that a taser was used on Weigle
during the arrest.
The preceding paragraphs outline the parties’
disagreements concerning the facts.
material.
These disagreements are
These material disagreements preclude the application
of qualified immunity to the officers at this juncture.
The
right to be free from excessive force during an arrest is a
clearly established constitutional right.
Our Court of Appeals
has explained that, in circumstances where qualified immunity is
invoked, if there is a “genuine question of material fact
regarding ‘[w]hether the conduct allegedly violative of [such a
clearly established] right actually occurred,’” the necessary
fact-finding “must be reserved for trial.”
Willingham v.
Crooke, 412 F.3d 553, 559 (4th Cir. 2005)(citations omitted).
Accordingly, neither Pifer nor Ingraham is entitled to summary
judgment on the issue of qualified immunity.10
10
Defendants’ reply brief refers to, and is accompanied by, an
opinion from an expert, Samuel Faulkner. See Def. Repl. to Pl.
Resp. to Mot. for Summ. J. and Suppl. Br. in Supp. of Mot. for
Summ. J. at * 13. The opinion from the expert is largely a
conclusion about the appropriate use of force. It does nothing
to bridge the difference between the plaintiff’s and the
defendants’ account of the incident in question. Moreover, the
defendants acknowledge that their new evidence and arguments,
including the conclusions of Samuel Faulkner, constitute a
“Supplemental Brief in Support of [the] Motion for Summary
24
2. Qualified Immunity of Officers Pifer and Ingraham with
respect to Weigle’s state law claims.
Pifer and Ingraham invoke the statutory immunity
provided by West Virginia’s Governmental Tort Claims and
Insurance Reform Act, W. Va. Code § 29-12A-5, against Weigle’s
state law negligence, outrage, negligent infliction of emotional
distress, assault, and battery claims.
The statute, which
provides qualified immunity to employees of political
subdivisions, provides in pertinent part:
(b) An employee of a political subdivision is immune
from liability unless one of the following applies:
(1)
(2)
(3)
His or her acts or omissions were manifestly
outside the scope of employment or official
responsibilities;
His or her acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless
manner; or
Liability is expressly imposed upon the employee
by a provision of this code.
W. Va. Code § 29-12A-5(b).
As the West Virginia Supreme Court of Appeals noted in
City of Saint Albans v. Botkins, 228 W. Va. 393, 398 (2011),
Judgment.” See Def. Repl. to Pl. Resp. to Mot. for Summ. J. and
Suppl. Br. in Supp. of Mot. for Summ. J. at * 1. The court need
not consider new evidence or arguments raised in a reply, since
the other party has had no opportunity to rebut them. Cf. Hunt
v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995)(noting that the
“appellate courts generally will not address new arguments
raised in a reply brief because it would be unfair to the
appellee and would risk an improvident or ill-advised opinion on
the legal issues raised”).
25
“[West Virginia’s] approach to matters concerning immunity
historically has followed federal law.”
Consequently, much of
the same analysis applicable to Pifer and Ingraham’s invocation
of qualified immunity against Weigle’s Section 1983 claims
applies with equal force to their invocation of statutory
immunity against the state law claims.
Weigle’s state law claims are, with three exceptions,11
predicated on the same facts as his Section 1983 claims.
facts, as discussed above, are in dispute.
Those
Although it is clear
that a police officer engaged in an arrest is acting within the
scope of his employment, determining whether or not an officer’s
conduct during such an arrest was undertaken with malicious
purpose, in bad faith, or in a wanton or reckless manner
necessarily depends upon the nature of the officer’s conduct and
the context in which it occured.
When the parties have, as
here, a genuine disagreement about the material underlying facts
necessary to engage in this inquiry, summary judgment is
11
The most notable of the three exceptions is the malicious
prosecution claim set forth in Count Seven, which is entirely
predicated on Pifer’s involvement in the pursuit of criminal
charges against Weigle. The other two exceptions are set forth
in Counts Three and Four, which contain Weigle’s claims for
outrage and negligent infliction of emotional distress. Each of
those two counts sets forth two claims: one based on the conduct
of Pifer and Ingraham during the arrest, and the other based on
a subsequent incident in which Pifer is alleged to have followed
Weigle to his home and verbally harassed him. See part III
section B.2 and B.4, infra.
26
inappropriate.
See Syl. pt. 1, Hutchison v. City of Huntington,
198 W. Va. 139 (1996)(“The ultimate determination of whether
qualified or statutory immunity bars a civil action is one of
law for the court to determine. Therefore, unless there is a
bona fide dispute as to the foundational or historical facts
that underlie the immunity determination, the ultimate questions
of statutory or qualified immunity are ripe for summary
disposition.”).
As set forth at length in part III section A.1
above, a bona fide dispute exists as to whether the conduct of
either officer was undertaken maliciously or in bad faith or
wantonly or recklessly.
Accordingly, Pifer and Ingraham are not
entitled to summary judgment with respect to Weigle’s state law
claims on the basis of statutory immunity.
B.
Having determined that the officers are not entitled
to summary judgment on the basis of their invocation of
qualified immunity, the court turns to defendants’ substantive
arguments for summary judgment.
1.
Assault and Battery
West Virginia permits a plaintiff who has asserted a
Section 1983 claim against a law enforcement officer to pursue
27
an independent claim for assault, battery or other common law
intentional tort even if those claims arise from the same facts
as the Section 1983 claim.
Neiswonger v. Hennessey, 215 W. Va.
749, 753 (2004)(holding that collateral estoppel did not bar
plaintiff from asserting state law claims, including assault,
battery, and intentional infliction of emotional distress,
against a police officer despite federal district court’s
ruling, in a case arising from the same incident, that there was
no viable Section 1983 excessive force claim because the
defendant police officer’s use of force was objectively
reasonable).
In West Virginia, assault and battery are separate
torts.
As the West Virginia Supreme Court of Appeals explained
in West Virginia Fire & Casualty Co. v. Stanley:
An actor is subject to liability to another 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.
* * *
An actor is subject to liability to another for battery
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) a
harmful contact with the person of the other directly or
indirectly results.
West Virginia Fire & Casualty Co. v. Stanley, 216 W. Va. 40, 51,
28
52 (2004)(quoting the Restatement (Second) of Torts (1965)), see
also State v. Cunningham, 160 W. Va. 582, 593 (1977)(Miller, J.,
dissenting) (“An assault is, of course, the threat to do
violence as distinguished from the actual doing of violence,
which is a battery.”).
Counts Five and Six of Weigle’s complaint set forth
common law assault and battery claims against the officers.
Compl. ¶ 62-63, 67-68.
Pl.
The facts, as discussed above, render
Weigle’s assault claim superfluous.
The officers did not merely
threaten offensive contact with Weigle – they forcibly arrested
him.
Although there may be instances where a completed assault
leads immediately to completed battery and two separately viable
claims remain, this case is not one of them.
Here, Weigle’s
assault claim is entirely subsumed by his claim for battery.
The officers argue that, their lack of immunity
notwithstanding, they cannot be held liable for a battery
because they were privileged to use force to complete the
arrest.
See Def. Mem. of Law in Supp. Mot. for Summ. J at * 13
(citing Hutchinson v. W. Virginia State Police, 731 F. Supp. 2d
521, 547 (S.D.W. Va. 2010)(“An activity that would otherwise
subject a person to liability in tort for assault and battery,
however, does not constitute tortious conduct if the actor is
privileged to engage in such conduct.”) aff'd sub nom.
29
Hutchinson v. Lemmon, 436 F. App'x 210 (4th Cir. 2011).
Although there is no West Virginia case which directly
acknowledges a law enforcement privilege for battery in the
course of an arrest, it is evident from Stanley that West
Virginia adheres to the definition of battery set forth in the
Restatement (Second) of Torts.
Section 118 of the Restatement
announces the “general principle” that an individual engaged in
an arrest is afforded a privilege that precludes a battery
claim.
See Restatement (Second) of Torts at § 118.
When that
section is read in concert with § 121, which provides law
enforcement officers a privilege to engage in arrests within the
limit of their jurisdiction, there is no question that the
Restatement definition embraced by Stanley contains a law
enforcement privilege to use force during the course of an
arrest.
See Lee v. City of S. Charleston, 668 F. Supp. 2d 763,
779 (S.D.W. Va. 2009)(“[A] peace officer acting within the
limits of his appointment is privileged to arrest another”),
That privilege is not absolute.
The Restatement
articulates several provisions that limit or abrogate the
privilege.
Notably, the Restatement explicitly states that
force that would otherwise constitute a battery is not
privileged if that force is excessive.
Restatement (Second) at
§ 132 (“The use of force against another for the purpose of
30
effecting the arrest . . . is not privileged if the means
employed are in excess of those which the actor reasonably
believes to be necessary.”); accord Gray v. Board of County
Commissioners of Frederick County, 551 F. App'x 666, 677 (4th
Cir. 2014)(“[law enforcement] officers are privileged to commit
a battery pursuant to a lawful arrest, subject to the excessive
force limitation.”)(citation omitted).
As discussed with respect to the officer’s immunity
claims, the reasonableness of the force used during Weigle’s
arrest cannot be properly evaluated on this motion because of
the material disputes of fact concerning both the specific
amount of force applied and the context surrounding its
application.
Thus, the propriety of the officers’ invocation of
privilege is dependent upon the resolution of the disputed
factual questions.
Accordingly, while summary judgment in favor of the
officers on the assault count is appropriate, summary judgment
on the battery count is not.
2.
Outrage12
12
“Intentional or reckless infliction of emotional distress [is]
also called the ‘tort of outrage.’” Travis v. Alcon Labs.,
Inc., 202 W. Va. 369, 374 (1998).
31
West Virginia recognizes outrage as a viable cause of
action.
Syl. pt. 6, Harless v. First Nat. Bank in Fairmont, 169
W.Va. 673 (1982).
In Travis v. Alcon Laboratories, Inc., the
West Virginia Supreme Court of Appeals set forth a four-part
test by which outrage is proven:
[I]n order for a plaintiff to prevail on a claim for
intentional or reckless infliction of emotional
distress, four elements must be established. [The four
elements are]: (1) that the defendant's conduct was
atrocious, intolerable, and so extreme and outrageous as
to exceed the bounds of decency; (2) that the defendant
acted with the intent to inflict emotional distress, or
acted recklessly when it was certain or substantially
certain emotional distress would result from his
conduct; (3) that the actions of the defendant caused
the plaintiff to suffer emotional distress; and, (4)
that the emotional distress suffered by the plaintiff
was so severe that no reasonable person could be
expected to endure it.
Travis v. Alcon Laboratories, 202 W. Va. 369, 375 (1998).
To
qualify as legally outrageous, a defendant’s conduct must be
“‘more than unreasonable, unkind or unfair; it must truly offend
community notions of acceptable conduct.’”
citation omitted).
Id.(internal
“Liability clearly does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or
other trivialities.”
Tanner v. Rite Aid of West Virginia, 194
W.Va. 643, 651 (1995)(citing the Restatement (Second) of Torts §
46(1) (1965)).
The Restatement definition used in Tanner goes
on to explain that for behavior to be actionable it must be “so
extreme in degree[] as to go beyond all possible bounds of
32
decency[] and [thus] be regarded as atrocious, and utterly
intolerable in a civilized community.”
Id.
The initial
decision as to whether complained-of conduct qualifies as
legally outrageous is a question of law to be decided by the
trial court.
Hatfield v. Health Mgmt. Associates of W.
Virginia, 223 W. Va. 259, 268 (2008)(explaining that a court
evaluating the viability of an outrage claim must “first
determine whether the defendant's conduct may reasonably be
regarded as so extreme and outrageous as to constitute the
intentional or reckless infliction of emotional distress.
Whether conduct may reasonably be considered outrageous is a
legal question, and whether conduct is in fact outrageous is a
question for jury determination.”).
Count Three of Weigle’s complaint sets forth two
claims for outrage.
The first is predicated on the actions
undertaken by both officers during the arrest.
50.
See Pl. Compl. ¶
The second involves an incident involving Pifer and Weigle
that occurred about two months after Weigle’s arrest, in which
Weigle alleges that Pifer followed Weigle to his home and
verbally harassed him.
See id. at 28-29, 51.
The defendants argue that they are entitled to summary
judgment with respect to these outrage claims because the
“conduct of the officers falls well short of the high standard
33
of proof” required to succeed on an outrage claim.
Law in Supp. Mot. for Summ. J. at * 11.
Def. Mem. of
They are plainly
correct with respect to Weigle’s second outrage claim, the one
predicated on Pifer’s alleged verbal harassment of Weigle near
his home.
During that encounter, Weigle claims Pifer followed
him home, unnecessarily initiated a traffic stop, and then
verbally threatened him, all because Pifer believed Weigle had
driven by his home.
See Weigle Dep. at 54-56.
Pifer admits
that, during the incident, he told Weigle, “Don’t you ever come
back around me or my kids.”
Pifer Dep. at 117.
The incident
did not result in criminal charges against Weigle, and no formal
complaint was lodged against Pifer.
Pifer’s conduct during the incident, at worst,
involved minor abuse of his law enforcement authority and the
issuance of a thinly veiled threat against Weigle.
While far
from laudable, such behavior does not satisfy the high standard
necessary to sustain a claim of outrage.
As the Supreme Court
of Appeals explicitly stated in Tanner, an outrage claim cannot
be predicated on “threats . . . [or] petty oppressions.”
Accordingly, Pifer is entitled to summary judgment with respect
to Weigle’s second outrage claim.
Weigle’s first outrage claim, the one predicated on
the conduct of the officers leading up to and during his arrest,
34
is a closer question.
Courts applying West Virginia law have,
on several occasions, considered outrage claims against law
enforcement officers predicated on their conduct during an
arrest or other seizure.
Most have determined that the actions
of the law enforcement officer, even if otherwise actionable,
did not qualify as legally outrageous.
See e.g., Woods v. Town
of Danville, W.V., 712 F. Supp. 2d 502 (S.D.W. Va.
2010)(mistaken arrest of wrong suspect, during which police
officer lifted the arrestee off the ground by the chain of his
handcuffs, was held to be not outrageous); Lee v. City of S.
Charleston, 668 F. Supp. 2d 763 (S.D.W. Va. 2009) (public strip
search which exposed arrestee’s genitals, but only to the
arresting officer, was not legally outrageous), Lowe v. Spears,
No. CIV.A. 3:06-0647, 2009 WL 1393860, at * 6 (S.D.W. Va. May
15, 2009)(officer’s decision to arrest individual for a minor
offense, possibly in response to arrestee’s use of profanity
toward the officer, was not legally outrageous); cf. Hutchinson
v. W. Virginia State Police, 731 F. Supp. 2d 521, 531 (S.D.W.
Va. 2010)(female suspect who was forcibly removed from the
shower during the execution of a search warrant and forced to
lie down, naked, for at least 45 minutes in the presence of
eleven male law enforcement officers, one of whom slapped her
behind, had legally cognizable claim for outrage) aff'd sub nom.
Hutchinson v. Lemmon, 436 F. App'x 210 (4th Cir. 2011).
35
Viewing the evidence in the light most favorable to
the non-moving party, the court concludes that the officers are
not entitled to summary judgment on the outrage claim flowing
from their conduct during the arrest.
If Weigle’s version of
events is accepted, at some point one of the officers needlessly
used a taser on him, though that assertion is sharply disputed.
A number of federal courts have held that the unnecessary use of
a taser by law enforcement officers can be the basis for a state
law outrage or intentional infliction of emotional distress
claim.
See e.g., Cardall v. Thompson, 845 F. Supp. 2d 1182 (D.
Utah 2012), Ciampi v. City of Palo Alto, 790 F. Supp. 2d 1077
(N.D. Cal. 2011), Russ v. Causey, 732 F. Supp. 2d 589 (E.D.N.C.
2010) aff'd in part, 468 F. App'x 267 (4th Cir. 2012), Campos v.
City of Merced, 709 F. Supp. 2d 944 (E.D. Cal. 2010).
Accordingly, the defendants are not entitled to summary judgment
on Weigle’s first outrage claim.
3. Negligence
To succeed on a negligence claim in West Virginia, a
plaintiff must “show four basic elements: duty, breach,
causation, and damages.”
Hersh v. E-T Enterprises, Ltd. P'ship,
232 W. Va. 305, 310 (2013) superseded by statute on other
grounds as recognized in Tug Valley Pharmacy, LLC v. All
Plaintiffs Below In Mingo County, --- S.E. 2d --- (W. Va. May
36
13, 2015).
As evidenced by the court’s prior discussion of
Weigle’s assault, battery, and outrage claims, not all tortious
acts which injure a plaintiff constitute negligence.
See also
Mandolidis v. Elkins Indus., Inc., 161 W. Va. 695, 705
(1978)(“The law of this jurisdiction recognizes a distinction
between negligence, including gross negligence, and wilful,
wanton, and reckless misconduct. The latter type of conduct
requires a subjective realization of the risk of bodily injury
created by the activity and as such does not constitute any form
of negligence.”), superseded by statute on other grounds as
recognized in Wetzel v. Employers Service Corp. of West
Virginia, 221 W. Va. 610 (2007); Criss v. Criss, 177 W. Va. 749,
751 (1987)(recognizing a distinction between “an intentional
tort” and “a negligent tort”).
Weigle’s complaint contains several counts which
purport to set forth negligence claims.
Count One begins by
stating that “[the officers] owed Plaintiff a duty of reasonable
care.”
Pl. Compl. ¶ 35.
It then describes this duty, stating
that “[the Officers] are liable for negligently failing to
comply with federal constitutional standards for use of force
against a suspect[.]”
Id. ¶ 38.
Count One also sets forth a negligence claim against
the City, stating “[p]ursuant to West Virginia Code § 29-12A37
4(c)(2) . . . the City of Vienna [is] liable for the injury to
Plaintiff caused by [the officers] while acting within the scope
of their employment.”
The code section cited by Weigle reads
pertinently:
Political subdivisions are liable for injury, death, or
loss to persons or property caused by the negligent
performance of acts by their employees while acting
within the scope of employment.
W. Va. Code § 29-12A-4(c)(2).
In his briefing, Weigle states that the negligence
claim against the officers flows from their “bad faith and
reckless disregard” for Weigle’s “well-being and his Fourth
Amendment rights.”
Pl. Resp. in Opp’n at * 7.
Weigle also
suggests that the officers’ decision to “escalat[e]” the traffic
stop could be deemed “reckless” or constitute an act done “in
bad faith.”
Id.
These arguments are clearly an effort to
characterize the officers’ conduct as falling within the ambit
of W. Va. Code § 29-12A-5, which provides that the employee of a
political subdivision is immune from civil liability unless,
inter alia, “his or her acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner.”
W.
Va. Code § 29-12A-5(b)(2).
However, “a mere allegation of negligence does not
turn an intentional tort into negligent conduct.”
38
Benavidez v.
United States, 177 F.3d 927, 931 (10th Cir. 1999).
Conduct that
supports a negligence claim can be distinguished from conduct
that supports an intentional tort claim by examining the
subjective intent of the alleged tortfeasor.
“Intentional
torts, as distinguished from negligent or reckless torts . . .
generally require that the actor intend ‘the consequences of an
act,’ not simply ‘the act itself.’”
Kawaauhau v. Geiger, 523
U.S. 57, 62 (1998)(emphasis in original)(quoting Restatement
(Second) of Torts § 8A, Comment a, p. 15 (1964)).
It is apparent, from both the allegations in the
complaint and from the remainder of the record, that the
officers intended the consequences of their actions during
Weigle’s arrest.
That is, their efforts, including the
complained-of use of force, were undertaken for the purpose of
completing Weigle’s arrest.
Thus, while the officers’ actions
may give rise to an intentional tort, they cannot support
liability predicated on negligence.
See e.g., Brown v. J.C.
Penney Corp., 521 F. App'x 922, 924 (11th Cir. 2013)(per
curiam)(“A claim for negligence cannot be premised solely on a
defendant's alleged commission of an intentional tort.”).
Accordingly, both Pifer and Ingraham are entitled to summary
judgment on the negligence claim against them set forth in Count
One.
39
The negligence claim against the City alleged in Count
One is, as noted above, predicated on W. Va. Code § 29-124(c)(2), which extends vicarious liability to political
subdivisions for negligent acts committed by employees of the
subdivision acting within the scope of their employment.
Because the negligence claim against the City is wholly
dependent upon the unviable negligence claim against the
officers, Weigle’s negligence claim against the City cannot
proceed.
Accordingly, summary judgment in favor of the City is
appropriate.
4.
Negligent infliction of emotional distress
Count Four of Weigle’s complaint asserts a claim for
negligent infliction of emotional distress.
Pl. Compl. ¶ 56-59.
The complaint alleges that the officers were “negligent in
physically assaulting [Weigle]” and that Pifer was also
negligent “in appearing at [Weigle]’s home . . . verbally
assaulting . . . and intimidating him.”
Id. ¶ 57.
West Virginia recognizes negligent infliction of
emotional distress as a viable cause of action.
Heldreth v. Marrs, 188 W. Va. 481 (1992).
See Syl. pt. 1,
However, as discussed
above, the conduct of the officers during Weigle’s arrest (and
Pifer’s conduct during the incident two months after Weigle’s
40
arrest) was not only intentional, it was purposeful.
Simply
put, the complained-of conduct might serve as the basis of an
intentional tort claim but it cannot sustain a claim based on
negligence.
Accordingly, summary judgment in favor of the
defendants on Weigle’s negligent infliction of emotional
distress claims is warranted.
5.
Malicious Prosecution
Weigle originally brought malicious prosecution claims
against both Pifer and Ingraham in Count Seven, see Pl. Compl. ¶
74, but Weigle now concedes that Ingraham is not liable.
See
Pl. Resp. in Opp’n at * 11 (“Plaintiff concedes that Sgt.
Ingraham is not liable under a claim of malicious prosecution.
However, under the law set forth in Defendants’ memorandum, Sgt.
Pifer clearly is.”).
The count will thus be dismissed to the
extent that it pertains to Ingraham, leaving the court to
consider the plaintiff’s claim against Pifer.
In West Virginia, malicious prosecution has four
elements.
Syl. pts. 1-2, Norfolk S. Ry. Co. v. Higginbotham,
228 W. Va. 522, 523 (2011).
To succeed on such a claim, a
plaintiff must show that the prosecution was: 1) malicious, 2)
unsupported by reasonable or probable cause, 3) terminated in
favor of the plaintiff, and 4) procured by the defendant.
41
Id.
(citing Syl. pt. 1, Preiser v MacQueen, 177 W. Va. 273 (1985)
and Syl. pt. 3, Truman v Fidelity & Casualty Co. of New York,
146 W.Va. 707 (1961)).
The defendants contend that the “procurement” element
was not satisfied in this case.
Mot. for Summ. J. at * 15.
See Def. Mem. of Law in Supp.
In Higginbotham, the Supreme Court
of Appeals explained that:
[I]t is apparent that procurement within the meaning of
a malicious prosecution suit requires more than just the
submission of a case to a prosecutor; it requires that a
defendant assert control over the pursuit of the
prosecution.
228 W. Va. at 528 (citing Vinal v. Core, 18 W.Va. 1 (1881)).
Looking to Vinal for further guidance as to what sort of conduct
constituted procurement, the Court explained that, “to prove
procurement . . . [a plaintiff] must . . . show[] that the
defendant[] engaged in consult[ation]. . . regarding the
prosecution, . . . participated in the prosecution, and that the
prosecution was carried out under the defendants’ countenance
and approval.
Higginbotham, 228 W.Va. at 528.
However, the
court also noted that “the level of control necessary to prove
procurement is not explicitly delineated in our case law.”
Id.
The record here reveals that Pifer was significantly
involved in the process of initiating the prosecution of Weigle.
42
He started the process by completing a “CDR . . . that explains
the – the [identity of] defendant, [and] the charges against the
defendant” which was “for Wood County Magistrate Court.”
Dep. at 97.
Pifer
He also filed a criminal complaint containing both
“the legal language . . . and the narration of the incident”
that “detailed the charges.”
Id. at 98.
Based on exchanges
during his deposition, he also appears to have had some amount
of control over the nature of the charge that was filed.
Question: So you completed a criminal complaint . . .
. [t]hat detailed the charges?
Answer: Yes.
Question: Which were what?
Answer: I believe the charge was obstruction . . . I’d
have to look.
Question: At some point did you charge Mr. Weigle with
failing to provide his license?
Answer: That was the obstruction charge I believe I
ended up with.
Question: Okay. But he did provide his license?
Answer: I’m sorry. You’re – you’re correct. Not his
license, his registration and insurance.
Question: Did – did the charges ever change? Did you
amend the charges against Mr. Weigle at some point?
Answer: No.
Id. at 98-99.
Subsequently, Pifer testified on behalf of the
prosecution in Weigle’s trial in magistrate court, see Mag. Ct.
43
Tr.13 at 28, then again in his appeal in Wood County Circuit
Court, see Cir. Ct. Tr. at 33.
This level of involvement,
particularly the fact that Pifer drafted the criminal complaint
that resulted in Weigle facing criminal charges in magistrate
court, seems sufficient to be the participation, countenance,
and approval that was found to constitute control by the Supreme
Court of Appeals in Vinal and found to be lacking in
Higginbotham.
But even if Pifer’s involvement was insufficient to
establish the requisite amount of control over the prosecution
to satisfy the definition set forth in Vinal and cited
approvingly by Higginbotham, it is possible for a malicious
prosecution claim against Pifer to survive.
In Higginbotham,
the Supreme Court of Appeals noted that West Virginia precedent
“regarding the amount of control over a prosecution a defendant
must have before it can be found to have procured that
prosecution” is “admittedly limited.”
228 W.Va. at 529.
Rather than providing a comprehensive definition of the sort of
conduct that represented control sufficient to constitute
procurement, the court looked to other jurisdictions that had
13
The full transcript of the bench trial before Wood County
Magistrate Robin Waters is attached as “Exhibit D” to Weigle’s
response in opposition. (ECF 46-4).
44
“explored the topic in more detail,” to provide examples of
conduct that would qualify, and in doing so, delineated several
exceptions to control-based procurement.
Most prominently, the
court cited a decision of the Supreme Court of Texas for the
proposition that there is:
no procurement when ‘the decision whether to prosecute
is left to the discretion of another person, a law
enforcement officer or the grand jury. [. . .] An
exception [. . .] occurs when a person provides
information which he knows is false to another to cause
a criminal prosecution.’
Higginbotham, 228 W. Va. at 529 (quoting Browning–Ferris
Industries, Inc. v. Lieck, 881 S.W.2d 288, 292 (Tex.1994))
(emphasis omitted).
The court also cited a case from Ohio for
the proposition that “there is no procurement when ‘an informer
merely provides a statement of his belief of criminal activity
and leaves the decision to prosecute entirely to the
uncontrolled discretion of the prosecutor.’”
Id. (quoting
Robbins v. Fry, 72 Ohio App.3d 360, 594 (1991)).
The citations in Higginbotham make it clear that West
Virginia embraces the “false information” exception articulated
in Lieck.
Higginbotham, 228 W. Va. at 529 (quoting Lieck, 881
S.W.2d at 292).
This exception is also discussed in the other
cases cited in Higginbotham, cases which are described as
complementing “the meaning and spirit of our law.” See Weststar
45
Mortg. Corp. v. Jackson, 133 N.M. 114, 121 (2002)(noting that a
“defendant can be regarded as an instigator of a proceeding if
he . . . communicates material information falsely or
inaccurately and the prosecutor relies on his statement”),
Robbins, 72 Ohio App. 3d at 362 (noting that an individual’s
protection from malicious prosecution liability “can be lost” if
he “provides false information.”)(both cited in Higginbotham,
228 W. Va. at 529).
The parties in this case disagree about the exact
nature and sequence of the events that occurred before and
during the officers’ arrest of Weigle.
The difference in the
two accounts is not great, but neither is it immaterial.
If the
jury chooses to completely credit Weigle’s version of events,
they could also conclude that the differences between that
account and Pifer’s were the product of Pifer’s intentional
misrepresentations.
If the jury so believed, then Pifer’s
conduct would fit within the “false information” exception
articulated in Higginbotham and Lieck.
Pifer’s role in the
initiation and prosecution of the magistrate court proceedings
consisted of his drafting and filing of the criminal complaint,
his initial exercise of discretionary authority concerning which
charge to file, and his subsequent testimony.
Even if these
efforts were found not to constitute procurement, a reasonable
46
jury adopting Weigle’s account of events could conclude that
Pifer knowingly provided false information to the prosecutor and
thereby procured Weigle’s prosecution.
Pifer also contends that Weigle’s claim cannot succeed
because the prosecution was supported by probable cause.
Def. Mem. of Law in Supp. Mot. for Summ. J. at * 15.
See
He claims
that the existence of probable cause is supported by the Wood
County Prosecuting Attorney’s Office decision “not only to
prosecute the case in magistrate court” but also to “pursue the
case through a de novo . . . appeal in circuit court.”
Id.
Under West Virginia law regarding malicious
prosecution, “[p]robable cause . . . is such a state of facts
and circumstances known to the prosecutor personally or by
information from others as would in the judgment of the court
lead a man of ordinary caution, acting conscientiously, in the
light of such facts and circumstances, to believe that the
person charged is guilty.”
Syl. Part 3, Morton v. Chesapeake
and Ohio Ry. Co., 184 W. Va. 64, 65 (1990)(citation omitted).
“[T]he question of the existence of probable cause depends on
the defendant’s honest belief of guilt on reasonable grounds,”
rather than whether a court or other authorities believed that
probable cause existed.
See Morton, 184 W. Va. 64, 67; see also
Restatement (Second) of Torts § 662 and comments (a), (f)
47
(noting that standard of probable cause is assessed based on
procurer’s beliefs, and noting that “[t]he question of probable
cause is to be determined in the light of those facts that the
accuser knows or reasonably believes to exist at the time when
he acts”)(emphasis added).
In Morton, for example, the court
considered whether a private individual who notified authorities
that a crime had been committed, and thereby led those
authorities to issue arrest warrants, had probable cause to
believe that crime was afoot.
Id. at 67-68.
In this case, the element of probable cause refers to
what Pifer reasonably believed about Weigle’s behavior.
As
described in detail above, Pifer’s position is that he himself
saw Weigle committing a criminal act.
If so, Pifer plainly had
probable cause to believe that a crime had been committed.
Weigle contends that the officers, including Pifer, are lying
about what happened, and he insists that no criminal act was
committed.
When there are inconsistent accounts of the same
factual occurrence, the jury, exercising its role as the arbiter
of credibility, must determine which account to believe.
See
United States v. Tate, 633 F.3d 624, 629 (8th Cir.
2011)(describing the jury as “the final arbiter of witness
credibility” and noting, therefore, that they were “free to
believe” the testimony of one witness and “disbelieve” the
48
testimony of others).
If a jury believes Weigle’s testimony,
and is convinced that Pifer is not being truthful, then it could
find that Pifer did not have an “honest belief of [Weigle’s]
guilt on reasonable grounds,” and thus that he had no probable
cause to believe that Weigle had committed a crime.
In Pifer’s view, the evidence shows that he “did not
maliciously file the charges.”
Mot. for Summ. J. at * 15.
See Def. Mem. of Law in Supp.
In an action for malicious
prosecution, “malice” is “any sinister or improper motive other
than a desire to punish the party alleged to have committed the
offense.”
Truman, 146 W. Va. at 722.
West Virginia courts have
repeatedly ruled that “malice may be inferred by a lack of
probable cause.”
W. Va. at 723-24).
Morton, 184 W. Va. at 67 (citing Truman, 146
Since the jury in this case may find that
Pifer lacked probable cause, it may also infer, based on that
finding, that he acted with malice.
Thus, all elements of malicious prosecution could be
established at trial.
Given Pifer’s actual involvement in
preparing documents for Weigle’s prosecution, as well as West
Virginia’s acceptance of the “false information” exception, a
jury could find that Pifer procured Weigle’s prosecution.
Because a jury could believe Weigle’s version of events rather
than Pifer’s, and thereby find that Pifer lied about the
49
incident, it could find that he had no probable cause when he
procured the prosecution.
And since it is undisputed that the
prosecution of Weigle terminated in his favor, and a jury could
find that Pifer acted “maliciously,” it is possible for Weigle
to satisfy all four requirements in the test set forth in
Higginbotham.
Accordingly, Pifer is not entitled to summary
judgment on the malicious prosecution claim.
6.
Excessive Force
In Counts Eight and Nine, Weigle raises excessive
force claims under Section 1983 based on violations of the
Fourth and Fourteenth Amendments.
As explained in n.2, supra,
Weigle now concedes that his claims are not cognizable under the
Fourteenth Amendment because the relevant conduct that he has
alleged took place during an arrest.
The court will thus
dismiss the excessive force claims brought in Count Nine.
The officers contend that they are entitled to summary
judgment on the Fourth Amendment claim brought in Count Eight
because the amount of force used was objectively reasonable.
As
discussed at length with respect to the officers’ invocation of
qualified immunity, there are genuine issues of material fact
that preclude the court from making a determination respecting
the reasonableness of the force used during Weigle’s arrest.
50
Accordingly, the officers are not entitled to summary judgment
with respect to Weigle’s excessive force claim based on Fourth
Amendment violations.
7.
Negligent Retention
Count Two of Weigle’s complaint alleges a common law
negligence claim against the City, one best characterized as a
claim for negligent retention.
See Pl. Compl. ¶ 42-45.
In McCormick v. W. Virginia Dep't of Pub. Safety, the
West Virginia Supreme Court of Appeals explained that a claim of
negligent retention involves the following inquiry:
[W]hen the employee was hired or retained, did the
employer conduct a reasonable investigation into the
employee's background vis a vis the job for which the
employee was hired and the possible risk of harm or
injury to co-workers or third parties that could result
from the conduct of an unfit employee? Should the
employer have reasonably foreseen the risk caused by
hiring or retaining an unfit person?
McCormick v. W. Virginia Dep't of Pub. Safety, 202 W. Va. 189,
193 (1998)(per curiam), see also State ex rel. W. Virginia State
Police v. Taylor, 201 W. Va. 554, 560 n. 7 (1997)(noting that
“[t]his Court has recognized a cause of action based upon
negligent hiring” and collecting authority), cited in McCormick,
202 W. Va. at 193.
The court also stated that the outcome of
this inquiry would depend upon “the nature of the employee’s job
51
assignment, duties and responsibilities,” and that “the
employer’s duty with respect to hiring or retaining increas[ed]
as the risks to third persons associated with a particular job
increase.”
McCormick, 202 W. Va. at 194.
Weigle’s negligent retention claim focuses on the
City’s actions with respect to Pifer.
The City contends that
Weigle’s claim “has no merit” because Weigle cannot establish
that Pifer “acted unlawfully in the first place.”
Law in Supp. Mot. for Summ. J. at * 9.
Def. Mem. of
This argument is
unavailing at this juncture, because as discussed above, there
is a material dispute of fact as to whether or not Pifer’s
actions during Weigle’s arrest constitute an unconstitutional
use of excessive force.
The City also contends that Weigle’s
claim cannot succeed because he “failed to present any credible
evidence that the City had notice that Sgt. Pifer was an unfit
employee such that it should have foreseen that he would injure
third-parties such as [Weigle].”
Id. at * 10.
Weigle counters
that the City should have “reasonably foreseen the risk that
Sgt. Pifer would exert excessive force against citizens” because
Pifer “received more complaints against him than did other
officers.”
Pl. Resp. in Opp’n at * 9.
Weigle also highlights
Pifer’s “inability to control his temper” and “propensity to
violence” by making reference to the “Matt Darling incident.”
52
Pl. Resp. in Opp’n at * 9.
The Matt Darling incident was a specific complaint
lodged against Pifer that concerned allegations of a verbal and
physical altercation in which Pifer and Darling were involved in
2010.
See Pifer Dep. at 130-33.
Pifer accused Darling of
having an affair with his wife and causing his divorce.
Id.
Pifer, who was off-duty at the time, confronted Darling outside
of Darling’s parent’s house and admits to having “called
[Darling] a few choice names.”
Id.
Darling attempted to
retreat from the confrontation and Pifer followed him.
Id.
Pifer caught up with Darling and “got into his face,”
confronting Darling about ruining his family and marriage, and
telling Darling that he “hope[d] he rotted in hell.”
Id.
Darling’s parents filed a complaint against Pifer, in which they
alleged that Pifer “shoved down [Darling]’s mother . . . roughed
up [Darling’s] father, and . . . beat up [Darling.].”
Id.
The
complaint was investigated by the West Virginia State Police and
no criminal charges were ever filed, but Pifer was suspended by
the Chief of the Vienna Police Department for four days due to
“conduct unbecoming of a police officer.”
Id.
The risk to third parties posed by police work is
considerable.
See Woods v. Town of Danville, W.V., 712 F. Supp.
2d 502, 514 (S.D.W. Va. 2010)(holding that a West Virginia
53
police department had a “heightened” duty to investigate when
making hiring or retention decisions “due to the nature of
police work,” and making note of the risk that arises from the
fact that police officers are “permitted to carry guns, use
necessary force to effect arrest, and enter civilian residences
in certain circumstances.”).
Thus, the duty to investigate
potentially dangerous applicants and review the questionable
activities of current police employees is commensurably high.
Nevertheless, to the extent Weigle’ negligent
retention claim is predicated on the City’s decision to hire
Pifer, the claim is not sufficiently supported by the facts in
the record.
Although the record does not provide details of the
City’s process for hiring police officers, even the most
meticulous, thorough review of an applicant’s background cannot
reveal risks that do not exist.
The record contains no evidence
related to Pifer’s background that should have raised red flags
for the City during the hiring process.
After graduating from
high school in 1987, Pifer obtained an associate’s degree from
Parkersburg Community College, then a bachelor’s degree from
West Liberty University, both in criminal justice.
at 7.
Pifer Dep.
He spent one semester pursuing a master’s degree in
criminal justice at Marshall University, but cut short his
studies to take a job as a counselor at the West Central
54
Regional Juvenile Detention Center in Parkersburg.
Id. at 9.
After working for approximately a year at the Juvenile Detention
Center, he applied for, was offered, and accepted a position at
the Vienna Police Department.
Id. at 13.
There is no evidence
that Pifer had a criminal record, or that he had been the
subject of any complaints during his time working at the
Juvenile Detention Center.
Id. at 12.
Moreover, at some
unspecified time after he was hired by Vienna, he was
subsequently contacted by the police department of Baltimore,
Maryland, where he had previously applied, “to see if [he]
wanted to pursue a career there.”
Id. at 14.
At worst, this
evidence demonstrates that there was nothing remarkable or
noteworthy in Pifer’s background that might have put the City on
notice that Pifer potentially posed a danger to third parties if
hired as a police officer.
At best it suggests he was a highly
attractive candidate for such a position.
Accordingly, to the
extent Weigle’s negligent retention claim is predicated on the
City’s decision to hire Pifer, it fails as a matter of law.
The City’s decision to retain Pifer after the various
complaints lodged against him is also justified.
In addition to
the Darling incident, there is evidence in the record that the
City was aware that Pifer had, on several occasions, acted
unprofessionally during traffic stops.
55
See Pifer Dep. at 19
(explaining that the chief of police investigated potential
disciplinary issues by meeting with individual officers on an
“as-needed” basis and explaining that “the chief would bring you
into the office and speak to you” if “there was a complaint
against you”; Pifer was asked if he “ever had one of those
meetings” and he answered, “Oh, I had more than one.”), id. at
26 (acknowledging that the “general[] context of the complaints”
made against Pifer “usually revolved around people being upset
with how [he] would conduct a traffic stop”), id. at 21-22
(discussing the verbal warnings issued to Pifer by his
superiors, including the chief of police, to “be polite and
professional on all traffic stops, and not use profanity.”), id.
at 40-43 (Pifer stated that he was the subject of “generally
about three – two to three” of such complaints “about [his]
demeanor” per year and admitted that it seemed that he was the
subject of more such complaints than his fellow officers).
However, there is also evidence that the number of
complaints against Pifer, while relatively high compared to his
colleagues, was more a byproduct of the fact that Pifer’s
primary duty was traffic patrol, where he spent “the majority”
of his time.
See id. at 26 (Pifer explaining that he conducted
a high number of traffic stops because “the majority of patrol
in Vienna” involved making traffic stops), id. at 31 (noting
56
that Pifer’s superiors placed an emphasis on the quantity of
traffic stops and that they were constantly encouraging him to
“do more traffic,” which he explained meant they wanted him to
make “more traffic stops”).
Additionally, other than the
complaints concerning his comportment during traffic stops and
the Darling incident (which occurred while Pifer was off-duty),
the record contains no evidence that Pifer was prone to violence
or was otherwise likely to use excessive force during the course
of his official duties.
Consequently, the court finds that the
City could not have reasonably foreseen that continuing to
employ Pifer represented a sufficiently abnormal risk that the
decision to do so is actionable.
Accordingly, the City is entitled to judgment as a
matter of law as to the common law negligent retention claim set
forth in Count Two.
8.
The Monell Claims
Section 1983 provides a cause of action to individuals
whose constitutional or federal statutory rights have been
violated by a person acting under the purported authority of one
of the sovereign states.
42 U.S.C. § 1983 (“Every person who .
. . causes . . . [a] deprivation of any rights . . . secured by
the Constitution and laws, shall be liable to the party
57
injured”), see Hafer v. Melo, 502 U.S. 21, 27 (1991)(“Through §
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)).
A state’s political subdivisions, including
municipalities and other local governmental units, are
considered “persons” for the purposes of Section 1983.
v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
Monell
Although local
governments are amenable to suit under Section 1983, they cannot
be held vicariously liable.
Id. at 694 (“[A] local government
may not be sued under § 1983 for an injury inflicted solely by
its employees or agents.”).
A local government only faces
liability under Section 1983 when:
[The] execution 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 that the government as an entity is
responsible under § 1983.
Id.
That is, for Section 1983 liability to extend to a local
government, the government’s policy or custom must be the
“moving force” that resulted in the constitutional violation.
Id., see also Bd. of County Comm'rs of Bryan County, Oklahoma v.
Brown, 520 U.S. 397, 404 (1997)(“As our § 1983 municipal
liability jurisprudence illustrates . . . it is not enough for a
58
§ 1983 plaintiff merely to identify conduct properly
attributable to [a] municipality. The plaintiff must also
demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged.”)
“A policy or custom for which a municipality may be
held liable can arise in four ways: (1) through an express
policy, such as a written ordinance or regulation; (2) through
the decisions of a person with final policymaking authority; (3)
through an omission, such as a failure to properly train
officers, that ‘manifest[s] deliberate indifference to the
rights of citizens’; or (4) through a practice that is so
‘persistent and widespread’ as to constitute a ‘custom or usage
with the force of law.’”
Lytle v. Doyle, 326 F.3d 463, 471 (4th
Cir. 2003)(internal citations omitted).
In Count Ten of his complaint, Weigle lays out his
Monell claims against the City.
He states that the City
“developed and maintained policies or customs,” including the
“tacit[] approv[al] of the improper use of excessive force [and]
the improper use of pepper spray and taser guns.”
100.
Pl. Compl. ¶
Count Ten also alleges that it was “the policy and custom
of the [City] to inadequately and improperly hire, train or
supervise its police officers, including [Pifer and Ingraham].”
Id. ¶ 101.
Specifically, the City “improperly tolerated and
59
implicitly approved of acts of misconduct by its officers; did
not require appropriate in-service training or re-training of
officers who were known to have engaged in police misconduct;
and failed to properly investigate complaints against said
officers.”
Id.
Weigle further alleges that “as result of the
above-described policies and customs, [Vienna] police officers .
. . including [Pifer and Ingraham] . . . believed that their
actions would not be properly monitored by supervisory officers
and that misconduct would not be investigated or sanctioned, but
rather would be tolerated.”
Id. ¶ 103.
Finally, Weigle
contends that the City, “acting under color of law and pursuant
to official policy or custom . . . knowingly, recklessly, or
with gross negligence, failed to train, supervise, control and
discipline[,] on a continuing basis[,] the Defendant police
officers.”
Id. ¶ 104.
This pleading reveals that Weigle has
alleged three separate Monell claims: one based on the decision
to hire the officers, one based on the alleged failure to train
them, and one based on the inadequacies of the City’s
supervisory policies.
a. Hiring
A political subdivision can face Section 1983
liability based on its decision to hire an employee who
subsequently violates a plaintiff’s constitutional rights.
60
See
Brown, 520 U.S. 397.
Indeed, “constitutional injuries allegedly
traceable to an ill-considered hiring decision pose the greatest
risk that a municipality will be held liable for an injury that
it did not cause.”
Id. at 415.
Because Section 1983 does not
permit local governments to be held vicariously liable, such
claims are only permissible if the plaintiff can satisfy
“rigorous standards of culpability and causation.”
Id. at 405.
To succeed, the plaintiff must show that the local government’s
hiring process would lead a “reasonable policymaker to conclude
that the plainly obvious consequence of the decision to hire
[an] applicant” would likely be the “deprivation of a third
party's federally protected right.”
Id. at 411.
Speaking
specifically about a Monell claim in which the plaintiff alleged
that the decision to hire a police officer resulted in the
plaintiff being subjected to unconstitutionally excessive force,
the Brown court said:
[A] finding of [local government] culpability simply
cannot depend on the mere probability that any officer
inadequately screened will inflict any constitutional
injury. Rather, it must depend on a finding that th[e]
officer [who used excessive force] was highly likely to
inflict the particular injury suffered by the plaintiff.
The connection between the background of the particular
applicant and the specific constitutional violation
alleged must be strong.
Id. at 412.
That is, to assert a cognizable Monell claim in
this context requires the plaintiff to proffer evidence
61
demonstrating that the government official responsible for the
hiring decision should have concluded, after a review of the
officer’s record at the time of hiring, that it was highly
likely that hiring that person would result in a future
constitutional violation.
Id. at 412-13.
As discussed in section 7, Weigle has not put forth
any evidence concerning the process that the City employed when
it made the decision to hire Pifer or Ingraham, and nothing in
the record suggests that either officer’s background presented
the obvious risk that their hiring would result in the
deprivation of citizens’ constitutional rights.
Thus, Weigle
has not and cannot meet the “highly likely” evidentiary burden
articulated above.
The City is entitled to summary judgment on
Weigle’s Monell claim arising from the decision to hire either
Pifer or Ingraham.
b. Failure to Train
In City of Canton, Ohio v. Harris, the Supreme Court
held “that the inadequacy of police training may serve as the
basis for § 1983 liability” in cases where “such inadequate
training can justifiably be said to represent ‘city policy.’”
489 U.S. 378, 388, 390 (1989).
The Court explained that,
because liability under Monell must be based on a “city policy,”
62
it could attach “where — and only where — a deliberate choice to
follow a course of action is made from among various
alternatives by city policymakers.”
omitted).
Id. at 389 (citation
In the failure-to-train context, a city “policy” can
be discerned “only where the failure to train amounts to
deliberate indifference to the rights of persons with whom the
police come into contact.”
Id. at 388.
The Court elaborated on the “deliberate indifference”
standard, writing that:
[I]t may happen that in light of the duties assigned
to specific officers or employees the need for more or
different training is so obvious, and the inadequacy
so likely to result in the violation of constitutional
rights, that the policymakers of the city can
reasonably be said to have been deliberately
indifferent to the need.
Id. at 390.
The Court gave an example of a situation where
police officers who were not trained regarding the
“constitutional limitations on the use of deadly force.”
390 n.10.
Id. at
Because “city policymakers know to a moral certainty
that their police officers will be required to arrest fleeing
felons . . . the need to train officers” on this matter “can be
said to be ‘so obvious’ that failure to do so could properly be
characterized as ‘deliberate indifference’ to constitutional
rights.”
Id.
The Court’s suggestion is that the city would be
liable under its “policy” of failing to provide training in this
63
situation because of an “obvious need,” even if it had no direct
knowledge of particular constitutional violations by officers.
The Court separately pointed out that, in a second
type of situation, “[i]t could also be that the police . . . so
often violate constitutional rights that the need for further
training must have been plainly obvious to the city
policymakers.”
Id.
Thus, where the city has actual awareness
of widespread constitutional violations, its failure to rectify
the situation by training may also rise to the level of
“deliberate indifference” to its citizens’ constitutional
rights.
See id.
The Fourth Circuit has employed the Canton opinion
several times, most recently in Lytle v. Doyle.
In Lytle, the
court stated that “a failure to train can only form a basis for
liability if ‘it can be shown that policymakers were aware of,
and acquiesced in, a pattern of constitutional violations.’”
326 F.3d at 474 (quoting Canton, 489 U.S. at 397 (O’Connor, J.,
concurring in part and dissenting in part)).
not been shown here.
Such a pattern has
Subsequently, a district court has
observed that “the text cited in Lytle . . . is at odds with
that part of [Canton] where the majority explained” that
liability may also arise where “the need for more or different
training is so obvious, and the inadequacy so likely to result
64
in the violation of constitutional rights, that the
policymakers” were “deliberately indifferent” on the grounds of
“failing to implement new or better training.”
Brown v.
Mitchell, 308 F.Supp.2d 682, 704 (E.D.Va. 2004) (internal
citations and quotations omitted).
The Brown opinion noted that “the failure to train
claim in [Lytle] was based on the alleged presence of a pattern
of constitutional deprivations, not on the alternative mode of
satisfying the deliberate indifference standard sanctioned by
the [Canton] majority and made explicit by Justice O’Connor’s
separate [Canton] opinion.”
Id. at 705.
Thus, in the view of
the Brown court, the Lytle opinion described the failure-totrain standard as “only” being satisfied by a pattern of
violations because it was referring just to the context in which
a plaintiff claims that there was a pattern of constitutional
violations — not a situation where policymakers should have
known training was required because of an “obvious need.”
In short, although the Lytle opinion focuses on the
second scenario described in Canton, where policymakers have
actual knowledge of constitutional violations, it does not
thereby foreclose liability in a situation where policymakers
fail to institute training for officers who will plainly be
engaged in duties that may affect citizens’ constitutional
65
rights.
See Canton, 489 U.S. at 390 n.10.
Accordingly, in the
present case, plaintiff may prevail on a theory that the city
provided inadequate training “in light of the duties assigned to
specific officers,” and that “the inadequacy [was] so likely to
result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.”
The court indeed finds a genuine dispute over the
adequacy of the city’s training of its officers.
Weigle
contends that there is “ample evidence that the City of Vienna
Police Department provided inadequate training.”
Opp’n at * 15.
Pl. Resp. in
The evidence in the record, taken in the light
most favorable to Weigle, supports this statement.
Although it is undisputed that Pifer attended the
police academy, there is little information in the record
regarding what he learned while there.
Ingraham does state that
the academy trained him on “how to make proper traffic stops”
and “interact with the public.”
Ingraham Dep. at 12-13.
By
contrast, the deposition of George Young,14 the Chief of Police,
suggests that attendance at a police academy is not especially
helpful for dealing with real-world situations that arise in
14
Attached as Exhibit “E” to Weigle’s response in opposition.
(ECF 46-5).
66
policing.
Young Dep. at 18 (“[I]f you have a kid that graduates
from college who has never even rode in a police car, he is not
going to know the first thing. You get out of the Academy, and
you think you know everything until you are faced with that
first call, and then you realize how much you don't know.”).
Pifer states that he went directly from the academy to
his work as a Patrolman, and that the training he received from
the Department was limited to “basic rudimentary information
from the officers for about a week” through a “ride-along
familiarization with the city boundaries” and activities such as
how “the gas pumps work” before he was “turned out on [his]
own.”
Pifer Dep. at 15.
Although Pifer suggested that the
Department’s policies have changed, and that officers who
graduate from the academy may now receive additional training
before work, see Pifer Dep. at 14-15, he does not say of what
this training consists.
He also does not suggest that the
Department provided any kind of remedial instruction for
officers who did not receive post-academy training in the first
instance.
Moreover, Ingraham’s deposition suggests that he did
not receive any post-academy training that related to proper
conduct at traffic stops or while “interact[ing] with the
public.”
Ingraham Dep. at 12-13.
Chief Young suggests that he
received no training at all between the police academy and the
67
start of his job.
See Young Depo. at 16 (“I graduated on a
Friday and they gave me the keys to a cruiser and a couple
clipboards, one had a ticket book in it and one was report
forms, and basically told me to have at it.”).
Chief Young’s testimony, like Pifer’s, suggests that
the Department has improved its training policies for new
officers, but his description also suggests that the training
program focuses on practical aspects of the job, and may not
include any information regarding constitutional rights of
suspects.
See Young Depo. at 17-18 (“[W]e will take this new
recruit and typically have him ride around with the other
officers for a few days or a week to observe. . . . Then after
that first few days or a week of observation, then we will put
the new recruit behind the wheel and the [designated training
officer] will, you know, basically they will work together. . .
. They will ride together, go to calls, let the new recruit take
care of the calls.
If there's any questions, he is there, and
then there is a form that we can fill out, you know, basically
check off, okay, he made five traffic stops today, you know, he
did good here, he didn't do this, you know, things of that
nature.).
Chief Young’s deposition also refers to the
Department’s annual training requirements, which he says include
68
16 hours per year.
Young Dep. at 14.
But Young then suggests
that the officers have wide discretion in choosing the type of
training they undergo, stating that “It can be anything. It can
be firearms instruction. It can be domestic violence training.
It can be anything like that, anything approved by the state,
and I mean, they have a list of it.”
Id. at 15.
If so, an
officer might be able to avoid training regarding the
constitutional rights of suspects under investigation if he
instead preferred to learn about firearms.
Ingraham’s
deposition also suggests that the ongoing training did not
include any material on “how to make a stop or interact with the
public,” Ingraham Dep. at 12-13, although he said that he did
receive training on the use of pepper spray and tasers, id. at
19, 21.
The testimony clearly points both ways.
But a jury
could infer that the officers were given inadequate training
regarding the constitutional rights of suspects who are being
questioned at traffic stops or in similar settings, and, in
particular, on the proper use of force during such interactions.
Based on the doubt raised by Young regarding whether the police
academy supplied adequate training, as well as the merely
rudimentary and practical training from the Department before
assigning officers to duty, a jury could infer that they were
69
inadequately trained when they began work.
And the ongoing
training at the department may not have covered these subjects,
or it may have allowed officers to avoid them.15
The specific duties of officers such as Pifer may
allow a jury to find liability in light of the Department’s
inadequate training.
Pifer’s role includes a heavy amount of
interaction with the public, and the Department has encouraged
him to escalate minor incidents into more significant ones.
See
Pifer Dep. at 31-32 (noting that departmental evaluations
encouraged him to “do more traffic,” because it will give Pifer
“more contact with people violating the law, people carrying
drugs, people drinking and driving” and that “minor traffic
stops . . . could lead to more larger crimes being apprehended,”
and agreeing with statement that “traffic stop[s] can
escalate”).
A jury could infer that, “in light of the duties
assigned to” publicly-engaged officers such as Pifer, the
inadequate training was “so likely to result in the violation of
constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the
need.”
Canton, 489 U.S. at 390.
15
To illustrate this theory of
The jury could also determine that the City had a policy
requiring the relevant training, but that it was its custom to
not enforce that policy. Cf Marriott v. County of Montgomery,
426 F. Supp. 2d 1, 9 (N.D.N.Y. 2006)(“Constitutional words
cannot erase unconstitutional conduct”).
70
liability in Canton, the Supreme Court gave a much more serious
example of a city failing to train officers in the use of deadly
force against “fleeing felons.”
But the rule in Canton focuses
on the likelihood of constitutional violations, not on the
harmfulness or severity of those violations.
Given that Pifer
may have received no relevant training regarding constitutional
conduct during frequent public interactions – interactions that
he was encouraged to escalate – a reasonable jury could find
that constitutional violations were apt to result.
In Canton, the Court also described a causation
requirement for failure-to-train liability:
[F]or liability to attach . . . the identified
deficiency in a city's training program must be closely
related to the ultimate injury. Thus . . . [an injured
plaintiff] must still prove that the deficiency in
training actually caused the police officers'
[constitutional violation]. Would the injury have been
avoided had the employee been trained under a program
that was not deficient in the identified respect?
Id. at 391.
The requirement that the “deficiency in training”
be “closely related” to the injury, and “actually cause[]” the
violation, can be satisfied here.
In this case, a reasonable
jury could conclude that officers who were better-trained
regarding citizens’ constitutional rights would not have
escalated a minor traffic stop into a situation involving a
forcible arrest, or that they would have used force
71
appropriately during the incident.
It should be noted, however, that Weigle’s suggestion
that the officers had “no training on local policies and
procedures,” Pl. Resp. in Opp’n at * 15, will not ground a
failure-to-train claim because it cannot satisfy the causation
requirement.
Although Pifer’s deficient training in
constitutional rights, if proven, may well have contributed to
constitutional harm, it is difficult to see how a lack of
knowledge of the department’s policies could have done so.
Certainly the plaintiffs have raised no persuasive argument
suggesting how this may have happened.
Thus, to be successful
in this case, a failure-to-train claim must rest on deficient
training in constitutional rights.
Accordingly, the City is not entitled to summary
judgment on Weigle’s failure to train claim.
c. Failure to Supervise
A political subdivision can be subjected to Section
1983 liability for failing to supervise its employees properly.
See Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), Wellington v.
Daniels, 717 F.2d 932 (4th Cir. 1983).
This liability is “not
premised upon respondeat superior but upon ‘a recognition that
72
supervisory indifference or tacit authorization of subordinates'
misconduct may be a causative factor in the constitutional
injuries they inflict on those committed to their care.’”
Shaw,
13 F.3d at 798 (quoting Slakan v. Porter, 737 F.2d 368, 376 (4th
Cir. 1984)).
Supervisory liability can be borne by a
governmental entity even if the plaintiff does not name a
specific supervisory official as a defendant.
v. Burke County, 660 F.2d 111 (4th Cir. 1981).
See, e.g., Avery
However, when
advancing a failure to supervise claim, “liability ultimately is
determined ‘by pinpointing the persons in the decisionmaking
chain whose deliberate indifference permitted the [underlying]
constitutional abuses to continue unchecked.’” Shaw v. Stroud,
13 F.3d 791, 798 (4th Cir. 1994)(quoting Slakan, 737 F.2d at
376.).
In Shaw, our Court of Appeals explained that there are
“three elements necessary to establish supervisory liability
under § 1983.”
Shaw, 13 F.3d at 799.
Those elements are:
(1) that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct
that posed ‘a pervasive and unreasonable risk’ of
constitutional injury to citizens like the plaintiff;
(2) that the supervisor's response to that knowledge was
so inadequate as to show ‘deliberate indifference to or
tacit authorization of the alleged offensive
practices,’; and
(3) that there was an ‘affirmative causal link’ between
the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.
73
Id.; see also Wilkins v. Montgomery, 751 F.3d 214, 226-26 (4th
Cir. 2014)(quoting test articulated in Shaw).
Evidence in the record does suggest that members of
the Vienna police department with supervisory power were aware
that Pifer had been the subject of numerous complaints.
The
evidence illustrates, for example, that Pifer had been subjected
to oral evaluations because of complaints from the public about
his policing.
See Pifer Dep. At 19.
As previously noted, there
is evidence suggesting that many of these complaints involved
Pifer’s alleged unprofessional attitude and demeanor during
traffic stops.
Pifer Dep. at 22.
The following excerpt from
Pifer’s deposition describes the complaints:
Question: Did [Chief Deem] ever give you any warnings
just verbally in the office or tell you that you
should . . . handle something differently? Do you
remember what those were or what the context of those
were?
Answer: I believe he told me that I needed to be
polite and professional on all traffic stops, and not
use profanity.
Question: Okay. So I’m going to assume that one of
those complaints was about the use of profanity?
Answer: Yes.
Question: Okay. And is –
a similar nature? Was it
attitude toward a person
citation or who had been
were the other complaints of
– did it have to do with your
who was receiving the
stopped?
Answer: Generally, yes.
74
Pifer Dep. at 22. Pifer also stated elsewhere that these
complaints typically revolved around persons who were upset that
they had received traffic citations.
See id. at 25-26
(“Generally, [complaints] usually revolved around people being
upset with how I would conduct a traffic stop prior to or if I
did issue a citation.”)
And Pifer agreed with the suggestion
that he had “more complaints come in about [him] than other
officers” did.
See id. at 40-43.
These facts, however, do not satisfy the first prong
of the test for supervisory liability that was articulated in
Shaw.
Nothing in the record suggests that the complaints
against Pifer described “conduct that posed ‘a pervasive and
unreasonable risk of constitutional injury.’”
at 799.
See Shaw, 13 F.3d
The complaints about Pifer that were mentioned in the
record are largely related to lack of politeness at traffic
stops.
Pifer’s questionable acts as a police officer, at worst,
appear to have involved “the use of profanity.”
22.
Pifer Dep. at
The plaintiffs have not suggested that an officer’s use of
profanity, without more, could rise to the level of a
constitutional injury.
Cf. Holland ex rel. Overdorff v.
Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001)(noting, in the
Fourth Amendment context, that “it seems unlikely that harsh
language alone would render a search or seizure
75
‘unreasonable’”).
And nothing in the record refers to any
previous complaint that Pifer had inappropriately used force
against a suspect in the course of his police work.
Pifer allegedly used force in his altercation with
Matt Darling, which is discussed above.
33.
See Pifer Dep. at 130-
But “[e]stablishing a ‘pervasive’ and ‘unreasonable’ risk
of harm requires evidence that the conduct is widespread, or at
least has been used on several different occasions.” Shaw, 13
F.3d at 799.
Thus, even if a future “risk of constitutional
injury” was indicated when Pifer acted as a private citizen who
was upset about his impending divorce, which is itself
questionable, this one incident cannot alone establish a
“pervasive” and “unreasonable” risk under the test in Shaw.
What is more, the department appears to have taken steps to
discipline him for his conduct in that singular incident.
Pifer Dep. at 130-33.
See
Supposing, again for the sake of
argument, that the Darling incident showed a “risk of
constitutional injury,” the department’s response appears not to
have been “so inadequate as to show deliberate indifference to
or tacit authorization of the alleged offensive practices.”
Shaw, 13 F.3d at 799.
Plaintiff focuses on the Department’s “inadequate
practices for handling citizen complaints and internal
76
See
investigations.”
Pl. Resp. in Opp’n at * 15.
The problem with
their theory is that prior complaints were largely minor and
would not rise to the level of constitutional injuries, as
explained above.
Had there been a pattern of previous
constitutional violations, a defective system of handling
complaints might help to show that the Department’s “response to
[the violations] was so inadequate as to show ‘deliberate
indifference to or tacit authorization of the alleged offensive
practices.’”
Shaw, 13 F.3d at 799.
But in the absence of a
supervisor’s knowledge of a subordinate’s constitutional
violations “at least . . . on several different occasions,” a
defective system of complaint investigation cannot, by itself,
ground a claim.16
Plaintiff also mentions, in a heading of its brief,
that “additional discovery is necessary to adequately respond to
Defendants’ motion as to Plaintiff’s Monell claim.”
in Opp’n at * 13.
Pl. Resp.
But plaintiff then provides no further
comments on “additional discovery,” and does not give any reason
16
Weigle discusses, in his deposition, a great number of other
situations in which he believes, largely based on comments from
other persons in the community, that members of the Department
(particularly Pifer) may have committed violations of
individuals’ rights. Weigle Dep. 80-106. Despite the
seriousness of some of the allegations, they are not developed
or discussed in the briefing on this motion, and, in particular,
do not appear as part of the plaintiff’s argument regarding the
Monell claims. The court will thus not consider them here.
77
why more discovery would be necessary or helpful in responding.
A bald assertion that more facts will be helpful cannot ground a
request for more discovery at the time a motion for summary
judgment is brought.
See Fed. R. Civ. P. 56(d)(allowing
additional discovery upon a party’s “affidavit or declaration
that, for specified reasons, it cannot present facts essential
to justify its opposition)(emphasis added).
Accordingly, the City is entitled to summary judgment
on the Monell claim predicated on its failure to supervise
Pifer.
IV.
Conclusion and Order
For the reasons set forth above, the defendants’
motion for summary judgment is granted in part, and denied in
part.
The court summarizes its conclusions below:
The factual record evinces several material disputes
of fact.
These factual disputes prevent the court from being
able to engage in the objective analysis necessary to determine
if the force used by the officers was objectively reasonable or
excessive.
Accordingly, the court concludes that the officers
are not entitled to summary judgment on the basis of qualified
immunity.
78
The court concludes that the defendants are entitled
to summary judgment on the following claims:
All claims against the City of Vienna Police Department as
a named party defendant are dismissed, but this dismissal
does not affect the claims against the City of Vienna and
its police officers, Pifer and Ingraham;
All the negligence claims set forth in Count One;
The negligent retention claim set forth in Count Two;
The outrage claim in Count Three stemming from Pifer’s
verbal harassment and threatening statements made to Weigle
two months after the arrest;
All the negligent infliction of emotional distress claims
set forth in Count Four;
The assault claim set forth in Count Five;
The malicious prosecution claim set forth in Count Seven as
it pertains to Ingraham;
The Section 1983 excessive force claims relying on the
Fourteenth Amendment set forth in Count Nine; and
The Monell claim predicated on the City’s decision to hire
or retain and to supervise either officer set forth in
Count Ten.
In all other respects the motion for summary judgment is denied.
79
The Clerk is directed to transmit copies of this order
to counsel of record and any unrepresented parties.
ENTER: October 14, 2015
John T. Copenhaver, Jr.
United States District Judge
80
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