Brown v. Belt et al

Filing 81

MEMORANDUM OPINION AND ORDER granting the State Defendants' 73 MOTION for Summary Judgment; further directing that all claims against Trooper Demaske are dismissed with prejudice. Signed by Judge John T. Copenhaver, Jr. on 4/15/2019. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DAN BROWN,
Plaintiff,
v.

Civil Action No. 2:15-cv-11549

ROBERT BELT, Deputy Sheriff,
Clay County Sheriff’s Office;
GARRETT SAMPLES, JR., Sheriff,
Clay County Sheriff’s Office;
TYLER CARUTHERS, Deputy Sheriff,
Clay County Sheriff’s Office; CLAY
COUNTY COMMISSION; COLONEL C.R. “JAY”
SMITHERS, Superintendent, WV State
Police; STEVEN DEMASKE, Trooper, WV
State Police; and TYLER DANA MCFEELEY,
Trooper, WV State Police,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the joint motion for summary judgment,
filed March 6, 2019 by defendants Tyler McFeeley (“Trooper
McFeeley”) and C.R. “Jay” Smithers (“Colonel Smithers”)
(collectively, the “State Defendants”).

I.

Background

In the companion order this day entered granting the
joint motion for summary judgment by the County Defendants,1 the
court set forth the factual allegations and legal claims in the
plaintiff’s First Amended Complaint as well as much of the
procedural history of this case.
In the court’s March 21, 2019 memorandum opinion and
order, the court granted in part and denied in part the State
Defendants’ motion to dismiss.

ECF No 76.

The court dismissed

the Fifth and Fourteenth Amendment claims against Colonel
Smithers in Count 5, the state law wrongful arrest claim against
Trooper McFeeley in Count 10, the 42 U.S.C. § 1983 retaliation
claim against Trooper McFeeley and Colonel Smithers in Count 15,
and the intentional infliction of emotional distress (“IIED”)
claim in Count 16 against Trooper McFeeley and Colonel Smithers,
but only to the extent the claim relates to the July 23, 2016
arrest.

Id. at 31.
In the plaintiff’s First Amended Complaint, he brings

claims against the West Virginia State Police, not named as a
party to this action and for whom the plaintiff has not issued a

1

The County Defendants consist of Deputy Robert Belt, Deputy
Tyler Caruthers, Sherriff Garrett Samples, Jr., and the Clay
County Commission.
2

summons.

Accordingly, the court does not address claims against

that entity, but does treat the reference to the West Virginia
State Police as an indication that the named state defendants
are being sued in their official capacity.

The plaintiff also

asserts claims against Trooper Steven Demaske and issued summons
as to him on April 19, 2018, after being made aware of the lack
of service upon Demaske in the court’s order of March 21, 2018;
but there is no proof that service has been perfected.
The seven surviving counts against one or more of
Trooper Demaske, Trooper McFeeley or Colonel Smithers are as
follows:

Count 2, discrimination and failure to provide

reasonable accommodations under Title II of the ADA, 42 U.S.C. §
12132, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794,
during the second DUI traffic stop, on May 22, 2015, against
Trooper Demaske and Colonel Smithers, who is a supervising
officer of the West Virginia State Police, and naming the West
Virginia State Police; Count 4, negligent supervision and/or
training arising from the May 22, 2015 DUI arrest against
Colonel Smithers and naming the West Virginia State Police;
Count 5, violation of the Fourth and Fourteenth Amendments under
42 U.S.C. § 1983 arising from the May 22, 2015 DUI arrest
against Colonel Smithers and Trooper Demaske, and naming the
West Virginia State Police; Count 7, wrongful arrest for DUI on

3

May 22, 2015 against Trooper Demaske; Count 8, wrongful arrest
for burglary, destruction of property and providing false
information to state police on January 15, 2016 against Trooper
McFeeley; Count 12, retaliation under the First and Fourteenth
Amendments and 42 U.S.C. § 1983 for “targeting” Mr. Brown in the
DUI arrest on May 22, 2015 against Trooper Demaske and Colonel
Smithers, and naming the West Virginia State Police; Count 13,
retaliation under the First and Fourteenth Amendments and 42
U.S.C. § 1983 for wrongful arrest for burglary, destruction of
property, and providing false information to state police on
January 15, 2016 against Trooper McFeeley; and Count 16, IIED
against Trooper Demaske, Trooper McFeeley, and Colonel Smithers
arising out of the arrests on May 22, 2015 and January 15, 2016.
The County Defendants filed their joint motion for
summary judgment on March 6, 2019, along with a motion to
dismiss for failure to prosecute.

The State Defendants filed

their motion for summary judgment later that same day.

Instead

of filing any response in opposition, plaintiff’s counsel filed,
on March 20, 2019, a motion to withdraw as counsel.

The court

held a hearing on March 28, 2019, on plaintiff’s counsel’s
motion to withdraw, at which hearing the plaintiff, though
directed by order to appear in person, failed to appear.

At the

hearing the court deferred judgment on the motion to withdraw

4

and informed plaintiff’s counsel that it would consider the
plaintiff’s response to the above-listed dispositive motions, if
such responses were filed, though late, by March 29, 2019.

No

response has been provided by plaintiff to any of the pending
dispositive motions.

II.

Standard of Review

A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”

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

Material facts are

those necessary to establish the elements of a party’s cause of
action.

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

(1986).
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant. Id.

The

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

Celotex Corp. v. Catrett,

If the movant satisfies this burden,
5

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.
322-23.

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

A party is entitled to summary judgment if the record

as a whole could not lead a rational trier of fact to find in
favor of the non-movant.

Williams v. Griffin, 952 F.2d 820, 823

(4th Cir. 1991).
Conversely, summary judgment is inappropriate if the
evidence is sufficient for a reasonable fact-finder to return a
verdict in favor of the non-moving party.
248.

Anderson, 477 U.S. at

Even if there is no dispute as to the evidentiary facts,

summary judgment is also not appropriate where the ultimate
factual conclusions to be drawn are in dispute.

Overstreet v.

Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).
A court must neither resolve disputed facts nor weigh
the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239
(4th Cir. 1995), nor make determinations of credibility.
Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986).

Rather,

the party opposing the motion is entitled to have his or her
version of the facts accepted as true and, moreover, to have all
internal conflicts resolved in his or her favor.

Charbonnages

de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
Inferences that are “drawn from the underlying facts . . . must
6

be viewed in the light most favorable to the party opposing the
motion.”

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

(1962).

III. Discussion

A. Count 2 (ADA and Rehabilitation Act claims for the May
22, 2015 DUI arrest)

In the companion memorandum opinion and order entered
on the County Defendants’ motion for summary judgment, the court
found that the plaintiff had failed to establish that he had a
disability and was therefore not entitled to the protection of
the ADA and Rehabilitation Act.
The court incorporates that same reasoning herein and
finds that Colonel Smithers’ motion for summary judgment on
Count 2 is granted.2

2

While the State Defendants do not expressly argue in their
motion for summary judgment that the plaintiff has failed to
establish that he has a disability, they do incorporate by
reference the arguments made by the County Defendants in their
motion for summary judgment. State Defs.’ Mem. Supp. Mot.
Summary J. (“State Defs.’ Mem.”), ECF No. 74, at 20 n.91.
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B. Count 4 (negligent supervision and training arising from
the May 22, 2015 DUI arrest)

Here, the plaintiff asserts that Colonel Smithers
failed to train and supervise officers on the requirements of
the ADA to prevent plaintiff from being discriminated against
based on his disabilities.

First Am. Compl. (“Compl.”), ECF No.

30, at ¶¶ 61, 71.
To the extent Count 4 is a failure-to-train claim
brought under Title II of the ADA, such a claim fails for the
same reasons that plaintiff’s other ADA claims fail – he has not
established that he meets the statutory definition of disabled.
To the extent that the claims in Count 4 are grounded
in negligence, the court applies West Virginia law.
Under West Virginia law, claims of negligent training
and supervision are governed by general negligence principles.
See Pruitt v. W. Va. Dep't of Pub. Safety, 664 S.E.2d 175, 179,
181–83 (W. Va. 2008) (allowing claims of negligent failure to
train and supervise to proceed to trial); Neiswonger v.
Hennessey, 601 S.E.2d 69, 73, 73 n.3 (W. Va. 2004) (recognizing
negligent hiring, training, and supervising as a cause of action
grounded in state law and distinct from claims asserted under §
1983); Taylor v. Cabell Huntington Hosp., Inc., 538 S.E.2d 719,
8

725 (W. Va. 2000) (“The appellant's claim of negligent
supervision must rest upon a showing that the hospital failed to
properly supervise [an employee] and, as a result, [that
employee] committed a negligent act which proximately caused the
appellant's injury.”).
Here, the plaintiff has offered no facts to support
the contention that Colonel Smithers negligently trained or
supervised Trooper Demaske.

In fact, in the deposition of the

plaintiff, when asked if he knew why he sued Colonel Smithers,
or if he knew anything that Colonel Smithers did to harm him,
the plaintiff responded, “I don’t know who Jay Smithers is.
don’t know what you’re talking about.”
1, at pp. 8-9.

I

Pl.’s Dep., ECF No. 69-

Additionally, the plaintiff stated that he was

not aware that he had sued Trooper Demaske, but that “If I sued
[Trooper Demaske], it’s probably over harassment.”

Id. at 9.

However, the plaintiff could not recall anything that Trooper
Demaske had done to harass him.

Id. at 9-10.

The plaintiff

also admitted that he knew nothing about Trooper Demaske’s
training.

Id. at 33.
There is a total absence of evidence regarding Trooper

Demaske’s training or Colonel Smithers’s supervision of Trooper
Demaske.

For these reasons, Colonel Smithers is entitled to

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summary judgment on the negligent supervision and training
claims in Count 4.

C. Section 1983 claims against Colonel Smithers in Counts 5
and 12 arising from the May 22, 2015 arrest

In Count 5, the plaintiff brings a claim against
Colonel Smithers and Trooper Demaske for a violation of § 1983
under the Fourth and Fourteenth Amendments for the May 22, 2015
DUI arrest.

In Count 12, he brings a § 1983 retaliation claim

against those same defendants under the First and Fourteenth
Amendments for that same arrest.
While the plaintiff stated in his deposition that he
did not know who Colonel Smithers was, the First Amended
Complaint only states that Colonel Smithers, among others,
“failed to . . . provide reasonable accommodations; create
policies or procedures; and properly train employees and staff
to prevent the Plaintiff from being discriminated against based
upon his disabilities.”

Compl., ECF No. 30, at ¶ 61.

Thus, it

appears that the plaintiff is suing Colonel Smithers in Counts 5
and 12 for supervisory liability.
“Because vicarious liability is inapplicable to . . .
§ 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual
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actions, has violated the Constitution.”
U.S. 662, 676 (2009).

Ashcroft v. Iqbal, 556

Supervisory liability may be established

against a defendant for § 1983 claims.

See Shaw v. Stroud, 13

F.3d 791, 799 (4th Cir. 1994).
The Fourth Circuit has set forth the elements that a
plaintiff must meet to establish supervisory liability under §
1983:
(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.
Id.
Here, the plaintiff cannot meet the first element.
The plaintiff has presented no evidence, testimony, or even an
allegation to suggest that Colonel Smithers knew about any
actions taken by Trooper Demaske.

See Pl.’s Dep., ECF No. 69-1,

Ex. A, at p. 8-9.
Further, to the extent that Colonel Smithers is being
sued in these counts in his official capacity, those claims are
more properly classified as suits against the entity – in this
case, the State of West Virginia – which is not a “person” under
11

§ 1983.

See Will v. Mich. Dep’t of State Police, 491 U.S. 58,

71 (1989) (“[N]either a State nor its officials acting in their
official capacities are ‘persons’ under § 1983.”)).
For these reasons, Colonel Smithers is entitled to
summary judgment on the § 1983 claims against him in Counts 5
and 12.

D. Count 13 (§ 1983 retaliation claim arising from the
January 15, 2016 arrest).

Count 13 asserts a § 1983 retaliation claim under the
First and Fourteenth Amendments against Trooper McFeeley for the
January 15, 2016 arrest.

The plaintiff contends that when

Trooper McFeeley arrested him on this date for burglary,
destruction of property and providing false information to the
police, that it was done in retaliation for his filing the
original complaint in this lawsuit.
21.

See Compl., ECF No. 30, at

Trooper McFeeley asserts that he is entitled to qualified

immunity for the January 15, 2016 arrest.
It is well established that government officials are
shielded “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.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
12

Qualified immunity provides police officers with “‘ample room
for mistaken judgments’ by protecting ‘all but the plainly
incompetent or those who knowingly violate the law.’”

Hunter v.

Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)).

Officers “are not liable for bad guesses

in gray areas,” but “they are liable for transgressing bright
lines.”

Maciarello v. Sumner, 973 F.2d 295, 298 (4th Cir.

1992).
In determining whether an officer is entitled to
qualified immunity, the court “asks first whether a
constitutional violation occurred and second whether the right
violated was clearly established.”

Melgar v. Greene, 593 F.3d

348, 353 (4th Cir. 2010) (citing Pearson v. Callahan, 555 U.S.
223, 241 (2009); Saucier v. Katz, 533 U.S. 194 (2001)).
“The Supreme Court ‘has never recognized a First
Amendment right to be free from a retaliatory arrest that is
supported by probable cause.’”

Pegg v. Herrnberger, 845 F.3d

112, 119 (4th Cir. 2017) (quoting Reichle v. Howards, 566 U.S.
658, 666 (2012).
It is Trooper McFeeley’s contention that inasmuch as
he had probable cause to arrest the plaintiff on January 15,
2016, he is entitled to qualified immunity for the § 1983 claim

13

which arises out of that arrest.

State Defs.’ Mem., ECF No. 74,

at 13-15.
The Fourth Amendment permits a police officer to
arrest a suspect without a warrant if there is probable cause to
believe that the suspect committed a felony.
Watson, 423 U.S. 411, 417 (1976).

United States v.

That officer may even make

the arrest if the felony was not committed in the officer’s
presence.

Id. at 418.

Burglary is a felony offense in West

Virginia.

W. Va. Code § 61-3-11(a).
The Court of Appeals for the Fourth Circuit has

explained that “[a]n officer has probable cause for arrest when,
at the time the arrest occurs, the facts and circumstances
within the officer’s knowledge would warrant the belief of a
prudent person that the arrestee had committed or was committing
an offense.”

United States v. Manbeck, 744 F.2d 360, 376 (4th

Cir. 1984).
The only evidence provided by either party regarding
the January 15, 2016 arrest is the deposition of the plaintiff.
While it is difficult to discern the plaintiff’s version of
events based on his testimony, it appears that the incident
proceeded in the following fashion.

14

On what appears to have been January 15, 2016, Mr.
Pearson, a neighbor of the plaintiff, kicked in the plaintiff’s
door in the tenant building where plaintiff lived, and Trooper
McFeeley responded to the incident.
at p. 10-11.

Pl.’s Dep., ECF No. 69-1,

The plaintiff told Trooper McFeeley that he was

the manager of the property, while the owner, an eighty-eightyear-old man who the plaintiff suggested often becomes confused,
conversely said that he was the manager.

Id. at 13.

The

plaintiff also stated that he had the keys, collected rent and
did repairs at the building for the owner.

Id.

Additionally, the plaintiff acknowledges that Mr.
Pearson had reported that the plaintiff had taken property out
of his apartment.

Id. at 15.

The plaintiff denied having

taken property, but he did admit to letting someone else into
the Pearson apartment sometime between 10:00 and 11:00 p.m.,
presumably that same day, to remove items from it.

Id. at 16.

According to the plaintiff’s testimony, the man the plaintiff
let into Mr. Pearson’s apartment, Mr. Sizemore, was the father
of another individual living in that same Pearson apartment, and
the father only took clothes that belonged to his son.

Id.

According to the plaintiff’s testimony, Mr. Pearson may have
told police that the plaintiff let Mr. Sizemore into the
apartment and that Mr. Sizemore stole Mr. Pearson’s personal

15

property.

Id. at 19.

It is not shown in the record whether the

plaintiff communicated any of these circumstances to Trooper
McFeeley.
Even if the plaintiff was the manager of the property,
he would not have had permission to unlock another tenant’s
apartment and allow someone to remove personal property
belonging to that tenant without permission.

From the

information it seems Trooper McFeeley received, the plaintiff
let another man into the apartment of a resident at the tenant
house to take personal property from that apartment.

A

reasonable and prudent officer could have found probable cause
to arrest the plaintiff for burglary.
For these reasons Trooper McFeeley is entitled to
qualified immunity, and accordingly, his motion for summary
judgment as to plaintiff’s § 1983 retaliation claim in Count 13
is granted.
In further support of this conclusion, the State
Defendants note that the plaintiff has not set forth any
evidence, other than his own belief, that Trooper McFeeley was
retaliating against him for the filing of the original complaint
in this lawsuit.

State Defs.’ Mem., ECF No. 74, at 13 (citing

Pl.’s Dep., ECF No. 69-1, Ex. A, at p. 27-29).

Further, the

plaintiff is deemed to have admitted that Deputy Belt did not
16

retaliate against him by communicating to other officers to
arrest the plaintiff.

See ECF Nos. 64-65.

E. Count 8 (state law wrongful arrest claim for the January
15, 2016 arrest)

In Count 8, the plaintiff brings a state law wrongful
arrest claim against Trooper McFeeley for the January 15, 2016
arrest just described in Section III.D.
“[T]he gist of the action for false imprisonment [also
called false arrest] is illegal detention of a person without
lawful process or by an unlawful execution of such process.”
Riffe v. Armstrong, 477 S.E.2d 535, 549 (W. Va. 1996).
For the same reasons stated above, Trooper McFeeley’s
arrest of the plaintiff on January 15, 2016 was supported by
probable cause.

Accordingly, the plaintiff was not detained

without lawful process and Trooper McFeeley is entitled to
summary judgment on Count 8.

17

F. Count 16 (IIED)
The only remaining claims for IIED against the State
Defendants arise out of the May 22, 2015 and January 15, 2016
arrests by Trooper Demaske and Trooper McFeeley, respectively.
The Supreme Court of West Virginia has set forth the
elements necessary to plead IIED:
(1) That 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.
Philyaw v. E. Associated Coal Corp., 633 S.E.2d 8, 13 (W. Va.
2006) (quoting Syllabus Point 3, Travis v. Alcon Labs., 504
S.E.2d 419 (W. Va. 1998)).

Courts are to play a “gate-keeping”

role in determining whether, as a matter of law, asserted
conduct could reasonably satisfy the element of “atrocious,
intolerable, and so extreme and outrageous as to exceed the
bounds of decency.”

Id.

Conduct which is merely “unreasonable,

unkind or unfair” is insufficient to state a claim for IIED.
Id. at 258.
Trooper McFeeley claims that he is entitled to summary
judgment on this claim inasmuch as the plaintiff has “failed to
18

provide any details that show Defendant McFeeley engaged in
‘intentional, extreme, or outrageous’ conduct.”
Mem., ECF No. 74, at 16.

He is correct.

State Defs.’

Executing the January

15, 2016 arrest of the plaintiff when he had probable cause to
do so cannot be said to be conduct by Trooper McFeeley that
exceeds the bounds of decency.

He is therefore entitled to

summary judgment on Count 16 as it relates to the January 15,
2016 arrest.
As mentioned above, inasmuch as there are no specific
factual allegations pled as to Colonel Smithers’s conduct, and
the plaintiff does not even know who Colonel Smithers is, it
appears that he is being sued in connection with the actions of
his employees – Trooper Desmaske on May 22, 2015 and Trooper
McFeeley on January 15, 2016.

Colonel Smithers asserts that the

plaintiff has failed to establish supervisory liability and
refers in support to the standards for establishing supervisory
liability in § 1983 claims.

State Defs.’ Mem., ECF No. 74, at

17-18 (citing Shaw, 13 F.3d at 799).

While this standard is not

expressly applicable to state law claims of IIED, the court need
not evaluate such arguments inasmuch as the plaintiff has failed
to demonstrate that either of Colonel Smithers’s subordinates
engaged in outrageous conduct.

19

First, since there is no surviving IIED claim against
Trooper McFeeley, there can be no claim for supervisory and
training liability for IIED against Colonel Smithers arising out
the January 15, 2016 arrest.
Next, the plaintiff has presented absolutely no
evidence or testimony regarding the circumstances of the May 22,
2015 arrest or any of the actions of Trooper Demaske during that
arrest.

The plaintiff also admitted that he knew nothing about

Trooper Demaske’s training.

In light of these factors, an IIED

claim for supervisory and training liability against Colonel
Smithers cannot survive his motion for summary judgment.
Accordingly, the State Defendants are entitled to
summary judgment on the IIED claims against them arising out of
the May 22, 2015 and January 15, 2016 arrests.

G. Remaining claims against Trooper Demaske

At this point, the only claims against any defendant
remaining in this matter are those against Trooper Demaske in
Counts 2, 5, 7, 12 and 16, each of which arises out of the DUI
arrest by Trooper Demaske and two other troopers not sued, on

20

May 22, 2015,3 when plaintiff was also found driving left of
center and without insurance.

The court reiterates that in his

deposition, when the plaintiff was asked why he sued Trooper
Demaske, he responded “Didn’t know that I did.”
No. 69-1, Ex. A, at p. 9.

Pl.’s Dep., ECF

When asked if he could think of

anything Trooper Demaske had done that would justify suit
against him, the plaintiff said, “If I sued him, it’s probably
over harassment.”

Id.

However, the plaintiff stated that he

could not recall how Trooper Demaske harassed him.

Id. at p. 9-

10.
As set forth above, inasmuch as the plaintiff has not
established that he is disabled, plaintiff’s claim for
discrimination and failure to provide reasonable accommodations
under Title II of the ADA and Rehabilitation Act in Count 2
cannot stand against any party, including Trooper Demaske.
Further, the § 1983 claims for wrongful arrest and
retaliation in Counts 5 and 12, the state law wrongful arrest
claim in Count 7 and the IIED claim in Count 16, each of which
arises out of the May 22, 2015 DUI arrest, fail because the

3

As noted above, service has still not been perfected against
Trooper Demaske, despite the plaintiff’s being made aware of
this fact in the court’s March 21, 2018 memorandum opinion and
order on the State Defendants’ motion to dismiss. ECF No. 76,
at 8.
21

plaintiff could not describe or even name any action, let alone
unlawful action, taken by Trooper Demaske beyond plaintiff’s
speculation that, “If I sued him, it’s probably over
harassment.”
Accordingly, the claims against Trooper Demaske are
dismissed with prejudice.

IV.

Conclusion

For all of the foregoing reasons, it is ORDERED that
the State Defendants’ motion for summary judgment be, and it
hereby is, granted.

It is further ORDERED that all claims

against Trooper Demaske be, and hereby are, dismissed with
prejudice.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and any
unrepresented parties.
Enter: April 15, 2019

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