Compton et al v. West Virginia State Police et al

Filing 37

MEMORANDUM OPINION AND ORDER granting in part and denying in part the 31 MOTION for Partial Summary Judgment; Ms. Pauley's claims are dismissed; Mr. Compton's claims against Sergeant O'Bryan, Trooper Minor, Trooper Yarber, and Tr ooper Powers are dismissed; Counts II, V, VII, and X against Sergeant Berry, Trooper Lowe, and Trooper Comer are dismissed; Count IX against Trooper Comer is dismissed; Trooper Lowe and Trooper Comer's motion for partial summary judgment on Count VI is granted; and Trooper Lowe's motion for partial summary judgment on Count IX is denied; the following causes of action remain: Mr. Compton's Counts I (excessive force), III (battery), and IV (assault) against Sergeant Berry, Trooper Lowe, and Trooper Comer and Count IX (bystander liability) against Sergeant Berry and Trooper Lowe. Signed by Judge John T. Copenhaver, Jr. on 2/9/2018. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
STEVEN W. COMPTON and CRYSTAL
PAULEY,
Plaintiffs,
v.

Civil Action No. 2:16-cv-09298

SGT. LARRY G. O’BRYAN,
individually; SGT. TRAVIS BERRY,
individually; TROOPER JOSEPH M.
COMER, individually; TROOPER
BRADLEY LOWE, individually;
TROOPER ROBERT MINOR,
individually; TROOPER S.L.
YARBER, individually; and
TROOPER J.R. POWERS,
individually,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is a motion for partial summary judgment,
filed by defendants Larry O’Bryan, Joseph Comer, Bradley Lowe,
Robert Minor, S.L. Yarber, and J.R. Powers on September 21,
2017.

Defendant Travis Berry does not join in this motion

because this action is stayed as to him, pursuant to the court’s
August 21, 2017, order.

(See Mem. Supp. 1.)

Sergeant Berry

“was ordered to active military duty and was not able to be
deposed prior to his deployment, despite a good faith attempt by
the parties to do so.”
#28).

Court’s August 21, 2017, order (ECF

As an initial matter, after the court’s December 28,
2016, order of dismissal, nine of the plaintiffs’ original ten
claims remained.

In response to the pending motion, the

plaintiffs now stipulate to various dismissals of their
remaining claims.
Plaintiff Crystal Pauley stipulates to the dismissal
of all [c]ounts against all defendants. Plaintiff
Steven Compton stipulates to the dismissal of all
counts against Defendant Larry O’Bryan, Defendant
Robert Minor, Defendant S.L. Yarber, and Defendant
J.R. Powers.
(Resp. Opp’n 1.)

Furthermore, Mr. Compton also stipulates to

the dismissal of Counts II, V, VII, and X against Sergeant
Berry, Trooper Lowe, and Trooper Comer and to the dismissal of
Count IX against Mr. Comer.

(See id. 3, 6-7.)

Thus, in accordance with the plaintiffs’ stipulations,
Ms. Pauley’s claims are dismissed; Mr. Compton’s claims against
Sergeant O’Bryan, Trooper Minor, Trooper Yarber, and Trooper
Powers are dismissed; Counts II, V, VII, and X against Sergeant
Berry, Trooper Lowe, and Trooper Comer are dismissed; and Count
IX against Trooper Comer is dismissed.

Only Mr. Compton remains

as a plaintiff in this action, and his surviving claims are as
follows: Counts I (excessive force), III (battery), IV
(assault), and VI (intentional infliction of emotional distress)
against Sergeant Berry, Trooper Lowe, and Trooper Comer and

2

Count IX (bystander liability) against Sergeant Berry and
Trooper Lowe.

I. Background

Mr. Compton was a resident of South Charleston, West
Virginia, at all times relevant herein.
1-2.)

(Mem. Supp., Ex. 1 at

Sergeant Berry and Trooper Lowe were members of the

“Special Response Team,” which is activated when police
anticipate facing a “high risk” situation.
Trooper Lowe (“Lowe Dep.”) 6-7.)

(Deposition of

Trooper Comer was a member of

a separate special operations team.

(Id. 7.)

Sometime prior to October 8, 2014, Mr. Compton’s exgirlfriend, Kimberly Derkin, reported to the police that Mr.
Compton was planning to murder Trooper Minor in retaliation for
a prior arrest and that Mr. Compton was a drug dealer.

(Lowe

Dep. 10-11; Deposition of Steven W. Compton (“Compton Dep.”) 39;
Deposition of Crystal Pauley (“Pauley Dep.”) 34.)

According to

Ms. Derkin, Mr. Compton had recently acquired a gun, was
violent, had been following Trooper Minor to his home, and had
been calling Trooper Minor’s police detachment in an effort to
learn his schedule.

(Lowe Dep. 10-11; Compton Dep. 39.)

Ms.

Derkin evidently gave the police “a description roughly” of
where Trooper Minor lived based on Mr. Compton’s alleged
3

activities.

(Deposition of Trooper Minor (“Minor Dep.”) 8.)

Mr. Compton does not deny calling Trooper Minor’s police
detachment, but he claims that he called attempting to retrieve
some of his belongings, such as his driver’s license, that were
confiscated during the prior arrest.

(Compton Dep. 39.)

On October 8, 2014, Sergeant Berry, Trooper Lowe, and
Trooper Comer (together, the “Troopers”) executed arrest and
search warrants for Mr. Compton.
Lowe Dep. 7, 10-11.)

(See Mem. Supp., Ex. 1 at 1-2;

The Troopers, donning tactical “kits”

including vests and helmets, waited for Mr. Compton near his
home address, with Sergeant Berry and Trooper Lowe in a van and
Trooper Comer in a marked police car.
Trooper Comer (“Comer Dep.”) 6-7.) 1

(See Deposition of

From this point forward, the

parties recount starkly divergent stories of what happened
during and after the arrest.
In his description of the events, Mr. Compton states
that he cannot remember who attacked him, just that the

1

Evidently, additional officers – Sergeant Larry O’Bryan,
Trooper S.L. Yarber, and Trooper J.R. Powers, as well as
officers Hensley and Barker - may have been present at the scene
on October 8, either during or after Mr. Compton was taken into
custody. (See Lowe Dep. 6-9; Pauley Dep. 49-51; Affidavit of
Larry O’Bryan ¶¶ 2-3; Affidavit of J.R. Powers ¶¶ 2-3.) Each of
these officers either were not named as defendants in this
action or have been voluntarily dismissed by the plaintiffs.
Thus, the recitation of the facts focuses solely on the
remaining defendants.
4

attackers were police officers.

(Compton Dep. 66.)

The

officers told him to put up his hands and pulled him from his
vehicle.

(Id.)

Then, the officers threw him face-first onto

the ground, hit him in the back of the head with the butt of a
shotgun, and cuffed his hands behind his back.

(Id.)

He cannot

recall the sequence of those three events because “it knocked
[him] out for a few seconds.”

(Id. 66-67, 69).

Mr. Compton

regained consciousness to the officers having sicced a dog on
his left arm while he was unconscious, where the dog held its
bite and “chew[ed]” for five minutes.

(Id. 67-69.)

Additionally, Mr. Compton claims that, while
handcuffed, the officers kicked him in the ribs “[a] couple” of
times and punched or struck him in the head with an object
“about three times.”

(Id. 67-68.)

The blows to the head

occurred as the officers interrogated him, asking questions such
as whether he knew Trooper Minor and Ms. Derkin.

(Id. 68-69.)

The officers also berated Mr. Compton during the beating, raving
“you know Trooper Minor[,] . . . I trained him, I worked with
him, he’s a good friend of ours, you know, you think you’re
going to treat one of our, you know, police, you know, brothers
this way.”

(Id. 68.)
According to Troopers Lowe and Comer, Sergeant Berry

and Trooper Lowe approached Mr. Compton’s vehicle, where Trooper
5

Lowe opened the door, announced their presence, and instructed
Mr. Compton to show his hands and exit the vehicle.
18.)

Mr. Compton refused.

(Id.)

(Lowe Dep.

Sergeant Berry then tried to

pull Mr. Compton out of the vehicle, but Mr. Compton grabbed the
steering wheel and “slapp[ed] at Sergeant Berry’s arms.”

(Id.)

Sergeant Berry continued to struggle with Mr. Compton, pulling
on and striking at Mr. Compton’s arms.

(Id. 18-20.)

Since

Sergeant Berry could not by himself remove Mr. Compton from the
vehicle, one of Sergeant Berry or Trooper Lowe shouted “dog up”
– a command used both to request the assistance of a police dog
and to announce the police dog’s approach.

(Id. 19; see Comer

Dep. 6-8.)
From Trooper Comer’s perspective, he “hook[ed] up the
dog” while Sergeant Berry and Trooper Lowe approached Mr.
Compton’s vehicle.

(Comer Dep. 6-7.)

As he approached, Trooper

Comer could hear the others shouting commands at Mr. Compton.
(Id.)

He stopped next to the front driver’s side tire of the

police van, which was parked behind Mr. Compton’s vehicle, until
he heard Sergeant Berry shout “dog up.”
19.)

(Id. 7-8; see Lowe Dep.

Trooper Comer confirmed with his own “dog up,” approached

the vehicle, and sicced the dog onto Mr. Compton’s left arm
after Mr. Compton refused Trooper Comer’s command to exit the
vehicle.

(Comer Dep. 7-8; see Lowe Dep. 19.)

6

Although the dog had latched onto Mr. Compton’s arm,
he still refused to exit the vehicle.

(Comer Dep. 11.)

Sergeant Berry and the dog then forcefully removed Mr. Compton
from the vehicle and onto the ground.
19.)

(Id. 11-12; Lowe Dep.

Mr. Compton tucked his arms under his body, and Trooper

Lowe assisted Sergeant Berry in getting Mr. Compton’s arms
behind his back and handcuffing him.
20.)

(Comer Dep. 12; Lowe Dep.

After the handcuffs were on, Trooper Comer gave the dog

the release command, and the dog released its bite.
12.)

(Comer Dep.

Finally, the Troopers searched Mr. Compton and waited for

additional officers to arrive and transport him away.

(Lowe

Dep. 23.)
The Troopers deny using against Mr. Compton anything
other than physical presence, verbal commands, “empty hand
tactics” to the torso area, and a police dog.
Comer Dep. 12-13.)

(See id. 23-24;

“Empty hand tactics” are essentially the use

of hands without a weapon.

(See Lowe Dep. 19-20.)

Troopers

Comer and Lowe deny that Mr. Compton was ever struck on the
head.

(Id. 23; Comer Dep. 12-13.)

Trooper Comer denies ever

personally touching Mr. Compton, although the police dog bit and
released upon his command.

(See Comer Dep. 9-12.)

For her part, Ms. Pauley, who was also arrested that
night, claims that she never saw the Troopers strike Mr.
7

Compton, although she did witness the police dog on Mr.
Compton’s arm.

(Pauley Dep. 43-44.)

However, Trooper Powers

had “slammed [her] down onto the road” and arrested her about
fifty or sixty feet from Mr. Compton, preventing her from seeing
Mr. Compton until she was loaded into a police car.
36-39, 44, 50.)

(See id.

Trooper Powers denies being at the scene when

Ms. Pauley was arrested.

(Affidavit of J.R. Powers ¶ 2.)

As a result of his arrest, Mr. Compton suffered a
laceration to his head and various injuries to his left arm.
(See Resp. Opp’n, Ex. 4 Pictures of Mr. Compton’s Injuries.)
The head laceration required stapling, and the injuries to his
left arm required stiches.

(Compton Dep. 81.)

Dr. Michael

Sitler, an emergency medicine physician, swears as follows
regarding Mr. Compton’s head laceration:
To a reasonable degree of medical certainty, it is my
opinion that the laceration on Mr. Compton’s head was
caused by the blunt force trauma of an object with a
rounded end or edge. In my opinion, Mr. Compton’s
head injury was caused by an object, not a closed
fist, elbow, or dog bite.
(Affidavit of Dr. Michael Sitler ¶¶ 1-3.)
Mr. Compton filed suit against the Troopers in this
court on October 3, 2016.

As earlier described, five of Mr.

Compton’s claims have survived to this point.

Against the

Troopers, Mr. Compton brings claims of excessive force (Count
I), battery (Count III), assault (Count IV), and intentional
8

infliction of emotional distress (Count VI).

Against Sergeant

Berry and Trooper Lowe, Mr. Compton brings a claim of bystander
liability (Count IX).

Mr. Compton seeks, inter alia, damages,

attorney’s fees and costs, injunctive relief, and declaratory
judgment.

(Compl. WHEREFORE Clause).
Troopers Lowe and Comer move the court for entry of

summary judgment on Count VI. 2

They argue that Mr. Compton has

failed to allege that he has suffered any emotional distress as
a consequence of his arrest, (Mem. Supp. 18; Reply Supp. 2-3),
and, at any rate, Mr. Compton’s intentional infliction of
emotional distress claim is “duplicative” of his assault and
battery claims, (Reply Supp. 3-4).

If the court rejects these

arguments, Troopers Lowe and Comer insist that qualified
immunity otherwise shields them from liability.
18.)

(Mem. Supp.

Additionally, Trooper Lowe moves the court for entry of

summary judgment on Count IX, asserting that Mr. Compton cannot
claim that Trooper Lowe simultaneously attacked him and
passively observed his attack.

(Id. 23; Reply Supp. 4-5.)

Mr.

Compton maintains that genuine disputes of material fact persist
regarding both claims.

(Resp. Opp’n 5-7.)

2

This action is stayed as to Sergeant Berry, as earlier noted.
See Court’s Order of August 21, 2017.
9

II. Motion for Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56(a),
summary judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
“As to materiality, . . . [o]nly disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be
counted.”

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

(1986) (citing 10A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2725 (2nd ed. 1983)).
Regarding genuineness, “summary judgment will not lie
if the dispute about a material fact is ‘genuine,’ that is, if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”

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.”

Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986); see also Dash v. Mayweather, 731 F.3d 303, 311
(4th Cir. 2013).

If the movant carries its burden, the non-

movant must demonstrate that “there is sufficient evidence

10

favoring [it] for a jury to return a verdict” in its favor.
Anderson, 477 U.S. at 249 (citation omitted); see also Dash, 731
F.3d at 311.

“Although the court must draw all justifiable

inferences in favor of the nonmoving party, the nonmoving party
must rely on more than conclusory allegations, mere speculation,
the building of one inference upon another, or the mere
existence of a scintilla of evidence.”

Dash, 731 F.3d at 311

(citing Anderson, 477 U.S. at 252, and Stone v. Liberty Mut.
Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997)).

III. Discussion

A. Intentional Infliction of Emotional Distress

To prove intentional infliction of emotional distress
(“IIED”) in West Virginia, a plaintiff must establish
(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.

11

Syl. Pt. 7, Hatfield v. Health Mgmt. Assocs. of W. Va., 223 W.
Va. 259, 262 (2008) (quoting Syl. Pt. 3, Travis v. Alcon Labs.,
Inc., 202 W. Va. 369 (1998)).
In Criss v. Criss, 177 W. Va. 749 (1987), the Supreme
Court of Appeals of West Virginia observed the following in
regards to the “duplicitous” nature of claims for assault and
battery and for IIED:
In the present case, the claim for the tort of [IIED]
is duplicitous of the claim for assault and battery.
As noted above, if a jury finds that the proof
sustains the appellant's complaint, she will be able
to recover compensatory and punitive damages against
the appellee as a result of the assault and battery,
including elements of emotional distress. Therefore,
it would be inappropriate to allow her to also recover
damages based on the tort of [IIED].
Id. at 751 (citing Bankhead v. City of Tacoma, 23 Wash. App.
631, 638 (1979); Todd v. S.C. Farm Bureau Mut. Ins. Co., 283
S.C. 155 (S.C. Ct. App. 1984), quashed in part on other grounds,
287 S.C. 190 (1985)).

This maxim is not targeted simply at

impermissible double-recovery, as Criss may imply.

Rather, from

the outset of a case, an “assault claim encompass[es] claims for
[IIED] arising out of the assault,” such that a “plaintiff may
present his claim for intentional infliction of emotional
distress as a part of his assault claim.”

Bankhead, 23 Wash.

App. at 638; see also Todd, 283 S.C. at 173 (“The tort of
outrage was designed not as a replacement for the existing tort

12

actions.

Rather, it was conceived as a remedy for tortious

conduct where no remedy previously existed.”).

For example, in

Searls v. West Virginia Regional Jail, the court dismissed a
claim for IIED where the underlying conduct also formed the
foundation for the plaintiff’s claims for “sexual battery, civil
battery, sexual assault, and assault.”

No. 3:15-cv-09133, 2016

WL 4698547, at *4 (S.D. W. Va. Sept. 7, 2016) (Chambers, J.);
see also Settle v. Hall, No. 2:11-cv-00307, 2012 WL 1831845, at
*2 (S.D. W. Va. May 18, 2012) (Copenhaver, Jr., J.) (permitting
a claim for IIED to proceed where the conduct underlying the
IIED claim occurred after the alleged assault and battery).
Troopers Lowe and Comer argue that Mr. Compton’s claim
for IIED is barred by Criss inasmuch as the alleged facts
underlying the claim also are the foundation for his surviving
claims of assault and battery.

To be sure, Mr. Compton frames

the events engendering his emotional distress as the alleged
events of his arrest – the alleged assault and battery - on
October 8, 2014.
WL 1831845, at *2.

(See Resp. Opp’n 4-5.)

Compare Settle, 2012

Accordingly, Troopers Lowe and Comer’s

motion for summary judgment on Count VI is granted.

B. Bystander Liability

42 U.S.C. § 1983 subjects to liability
13

[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws.
The Fourth Circuit “recognizes a cause of action [under § 1983]
for bystander liability ‘premised on a law officer's duty to
uphold the law and protect the public from illegal acts,
regardless of who commits them.’”

Stevenson v. City of Seat

Pleasant, 743 F.3d 411, 416-17 (4th Cir. 2014) (quoting Randall
v. Prince George’s Cty., 302 F.3d 188, 203 (4th Cir. 2002)).

To

prevail, a plaintiff must show that the defendant police officer
“(1) knows that a fellow officer is violating an individual’s
constitutional rights; (2) has a reasonable opportunity to
prevent the harm; and (3) chooses not to act.”

Randall, 302

F.3d at 204 (footnote omitted); see also Thomas v. Holly, 533 F.
App’x 208, 221 (4th Cir. 2013) (“[A]ny bystander liability . . .
must be based upon being a bystander to the unconstitutional
conduct of [the offending officers].”).
The record reveals that the Troopers arrested Mr.
Compton on October 8, 2014.

Otherwise, the parties recall

significantly different stories.

Mr. Compton claims that he was

ambushed, beaten, interrogated, and tortured by unknown police
officers.

Troopers Lowe and Comer admit that they, along with

14

Sergeant Berry, were Mr. Compton’s arresting officers.

Mr.

Compton evidently does not dispute that no other officers were
involved, since he has dismissed his claims against the other
officers.

However, Troopers Lowe and Comer paint a starkly

different image than Mr. Compton, alleging that the Troopers
used only an amount of force necessary to apprehend Mr. Compton
against his resistance.
Despite the parties’ competing accounts, Trooper Lowe
nonetheless insists that he is insulated from bystander
liability based upon a statement made by our circuit court,
(Mem. Supp. 23): “The very essence of bystander liability . . .
is premised on an individual's passivity and nonparticipation
while another individual violates a person's constitutional
rights — not on the bystander actively causing the harm,”
Stevenson, 743 F.3d at 419 (citation omitted).

According to

Trooper Lowe, “[Mr. Compton] cannot simultaneously claim that
[Trooper] Lowe passively observed [Mr. Compton] being injured
while also holding him responsible for excessive force, assault,
and battery due to the manner in which the officers arrested and
interrogated [Mr. Compton].”

(Reply Supp. 4-5.)

In other

words, Trooper Lowe contends that, because Mr. Compton accuses
him of excessive force, assault, and battery related to the
events of Mr. Compton’s arrest, he ipso facto cannot also be a

15

bystander during the arrest.

(See Mem. Supp. 23; Reply Supp. 4-

5.)
At the outset, Trooper Lowe errs to the extent he
argues that Mr. Compton cannot pursue relief against him under
alternate theories.

On the contrary, according to the Federal

Rules of Civil Procedure, alternative theories of relief “may
properly be pleaded, and if sufficiently supported by evidence,
analyzed by the trier of fact as alternative grounds of relief.”
Wright v. Nat’l Archives & Records Serv., 609 F.2d 702, 711 (4th
Cir. 1979) (citing Fed. R. Civ. P. 8(e)(2), 41(b)).

Thus,

inasmuch as Trooper Lowe argues that Mr. Compton cannot proceed
under alternate theories, his argument is without merit. 3
The issue then becomes whether a reasonable jury could
conclude that Trooper Lowe was a bystander to a deprivation of
Mr. Compton’s rights.

Ostensibly, Trooper Lowe also argues that

he cannot be a bystander to the alleged deprivation of Mr.

3

Of course, Mr. Compton cannot ultimately doubly recover under
two separate theories of a single § 1983 claim:
Obviously, as alternative theories and not separate
claims they may not be applied to establish multiple
violations on the same facts, but short of this no
procedural election between them is required of a
claimant at either pre-trial, trial, or appellate
stages.
Id.
16

Compton’s rights by Trooper Comer and, at the same time,
actively participate in harming Mr. Compton, albeit within
constitutional limits.

See Stevenson, 743 F.3d at 419.

That

assertion is superficially appealing inasmuch as an active
participant in an event arguably cannot be considered a
bystander to the distinct and similar actions therein.

Cf.

Bystander, Black’s Law Dictionary (10th ed. 2014) (“Someone who
is present when an event takes place, but who does not become
directly involved in it.”).

As explained below, however, this

argument is also meritless.
The purpose of bystander liability is to extend the
radius of culpability to those police officers who fail to act
in the presence of another officer’s unconstitutional behavior.
See Randall, 302 F.3d at 203.

Of course, the bystander officer

also must have knowledge of the unconstitutional act and “a
reasonable opportunity to prevent the harm,” id. at 204,
apparently leading most litigation to focus on officers simply
at the scene or outskirts of an incident, see, e.g., Gunsay v.
Mozayeni, 695 F. App’x 696, 702-03 (4th Cir. 2017) (discussing
the bystander liability claims against two officers who “were in
the immediate vicinity” and “also were present during” alleged
deprivations of the plaintiff’s constitutional rights by other
officers); Thomas, 533 F. App’x at 221-23 (discussing the

17

bystander liability claims against officers who were generally
at the scene but had no contact with the plaintiff); Dunn v.
Nicholas Cty, 2:14-cv-25532, 2015 WL 6964693, at *5-6 (S.D. W.
Va. Nov. 10, 2015) (analyzing the bystander liability claim
against an officer who was outside the house in which alleged
constitutional violations were perpetrated).

But bystander

liability is not limited to an officer who idly stands watch,
wholly separated from the victim: it also applies to an officer
who actively participates in a larger incident yet whose conduct
otherwise falls short of a constitutional violation.
The Fourth Circuit’s recent opinion in Thompson v.
Virginia is instructive here.

878 F.3d 89 (4th Cir. 2017).

In

that case, the court concluded that an inmate, Mr. Thompson,
possessed a viable claim against an officer “under the
deliberate indifference standard,” id. at 107, “which is similar
in principle” to bystander liability, id. at 107 n.5 (citing
Randall, 302 F.3d at 204).

Two officers, Officer Cooper and

Officer Diming, allegedly gave Mr. Thompson “a so-called ‘rough
ride’ . . . in a [prison] van.”

Id. at 94.

The officers

restrained Mr. Thompson such that he could not buckle his
seatbelt; the officers refused to buckle Mr. Thompson’s
seatbelt; and Officer Cooper allegedly “drove erratically,”
causing Mr. Thompson to be thrown around the back of the van and

18

inflicting upon him multiple injuries to “his forehead, hands,
and arms.”

See id. at 94-95.
Specifically, regarding Officer Diming’s role, the

court stated as follows:
[Officer] Diming refused to buckle [Mr. Thompson’s]
seatbelt, ignored his pleas for help, failed to
intervene to stop [Officer] Cooper's unlawful use of
force, and instead verbally taunted and harassed him.
Unlike [Officer] Cooper, who drove the van, [Officer]
Diming did not use unlawful force against Mr. Thompson
— rather, he failed to do anything to stop it.
Id. at 107.

Thus, despite Officer Diming’s active participation

in preparing Mr. Thompson for transportation, the Fourth Circuit
nonetheless recognized that Officer Diming was, in principle, a
bystander to the alleged deprivation of Mr. Thompson’s rights by
Officer Cooper.
Additionally, the district case Lester v. City of
Gilbert shines further light on the bystander issue in the
present case.
J.).

85 F. Supp. 3d 851 (S.D. W. Va. 2015) (Johnston,

In Lester, two plaintiffs alleged that a group of police

officers, including an Officer Glanden, kicked in the doors of
their trailer and “beat [them] savagely.”

See id. at 855-56.

Over the course of litigation, the plaintiffs could not
“affirmatively identify [Officer] Glanden as one of the officers
who used force against them.

At best, . . . Plaintiffs [could]

merely show that [Officer Glanden] was present during the
19

alleged beating.”

Id. at 858.

Nevertheless, the court in

Lester found that the plaintiffs retained a viable bystander
liability claim against Officer Glanden.

See id. at 859.

Officer Glanden insisted “that [he] had no reasonable
opportunity to prevent the alleged beating” because he could not
have overpowered the other police officers.

Id.

The district

court rejected that argument, concluding as follows:
Plaintiffs testified that [Officer] Glanden had told
them he would be bringing “hell” with him when he came
back to their trailer. [One of the plaintiffs]
testified that, while officers stomped on his disabled
leg, [Officer] Glanden told him that “this ain't cops
on TV. This is real cops.” Plaintiffs further
testified that [Officer] Glanden came into their
trailer together with the other officers and was in or
near their small trailer over the course of the entire
fifteen to thirty minutes during which the alleged
beatings took place. Based on this evidence a
reasonable jury could find that [Officer] Glanden was,
far from a powerless bystander, in fact a ringleader
who instigated the alleged beatings, who made no
attempt to prevent the officers from initiating their
attack, who actively encouraged the beatings, and who
made no attempt to persuade the other officers to stop
their attack despite ample time and opportunity to do
so. At the very least, a genuine issue of material
fact remains as to whether [Officer] Glanden had a
reasonable opportunity to intervene.
Id.
As Thompson and Lester demonstrate, passivity –
strictly speaking – is not a predicate to bystander liability.
Rather, for his bystander liability claim against Trooper Lowe
to lie, Mr. Compton need only prove that Trooper Lowe “(1)
20

kn[ew] that a fellow officer [was] violating [his]
constitutional rights; (2) ha[d] a reasonable opportunity to
prevent the harm; and (3) ch[ose] not to act.”
F.3d at 204 (footnote omitted).

Randall, 302

The fact that Trooper Lowe had

an active role in Mr. Compton’s arrest is of no moment if he
also stood by while another officer deprived Mr. Compton of his
constitutional rights.
Reading the record in the light most favorable to Mr.
Compton, a reasonable jury could conclude that Trooper Lowe
indeed used only a constitutional level of force, while at the
same time find that, for example, Trooper Comer’s employment of
the police dog was plainly excessive and in violation of Mr.
Compton’s constitutional rights.

Mr. Compton’s excessive force

claim against Trooper Lowe would thus fail; his bystander
liability claim against Trooper Lowe would be preserved.
Although Mr. Compton cannot identify his alleged
attackers, (Compton Dep. 66), Troopers Lowe and Comer
sufficiently describe their respective roles.

Trooper Lowe

acknowledges his presence at the time the dog was used,
testifying that he helped handcuff Mr. Compton while the dog was
on Mr. Compton’s arm.

(Lowe Dep. 20.)

Trooper Comer also

testifies that he alone controlled the dog.

(Comer Dep. 9.)

Troopers Lowe and Comer contest the nature of the dog bite, but
21

the court is ill-equipped to resolve that dispute at this
juncture.

Indeed, Mr. Compton insists that the dog initially

bit him after he had been ambushed and while he was unconscious,
and that the dog bite persisted for five minutes.
67-69.)

(Compton Dep.

At this point, it suffices that Trooper Lowe was

present during and adjacent to the incident.

Consequently,

taken in the light most favorable to Mr. Compton, Trooper Lowe’s
proximity afforded him a reasonable opportunity to intervene
while Trooper Comer allegedly sicced the dog on an unconscious
Mr. Compton’s arm, where it “chew[ed]” him for five minutes.
(See Compton Dep. 67-69.)
Trooper Lowe thus stands squarely in the shoes of
Officers Diming and Glanden.

Just as those officers had active

roles adjacent to direct constitutional violations, so too did
Trooper Lowe arrest Mr. Compton and allegedly stand by while
another officer, as related by Mr. Compton, deprived Mr. Compton
of his constitutional rights.

Accordingly, there exist genuine

disputes of material fact sufficient for a jury to find in favor
of Mr. Compton’s bystander liability claim against Trooper Lowe.
Finding that Mr. Compton’s bystander liability claim
against Trooper Lowe survives summary judgment does not
necessarily end the matter.

Trooper Lowe failed to assert the

defense of qualified immunity as to bystander liability, but the
22

court finds good cause to address it anyway because of the
strong public interests buttressing the defense.

Harlow v.

Fitzgerald, 457 U.S. 800, 813-14 (1982) (discussing the public’s
interest in the qualified immunity defense); see also Williams
v. Benjamin, 77 F.3d 756, 770-71 (4th Cir. 1996) (Hamilton, J.,
concurring) (stating that a district judge could consider on
remand the defense of qualified immunity despite the defendants’
failure to assert it); Brickyard Holdings, Inc. v. Beaufort
Cty., 586 F. Supp. 2d 409, 414 (D.S.C. 2007) (addressing
qualified immunity when it was not asserted).

But see Mobley v.

Greensboro City Police Dep’t, No. 1:17CV114, 2017 WL 3128106, at
*4 n.2 (M.D.N.C. July 21, 2017) (“ . . . Defendants failed to
raise qualified immunity as a defense . . . .
court declines to address [it] . . . .”).

Therefore, the

Nevertheless, the

court has no difficulty concluding that the defense fails.
“[Any] reasonable officer would have understood, under the
circumstances at hand” – siccing a police dog on an unconscious
and handcuffed individual, and allowing the dog to “chew” for
five minutes – “that [such] behavior violated” Mr. Compton’s
constitutional rights.
(4th Cir. 2003).

Bailey v. Kennedy, 349 F.3d 731, 741

Trooper Lowe’s motion for summary judgment on

bystander liability is denied.

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Accordingly, the following causes of action remain:
Mr. Compton’s Counts I (excessive force), III (battery), and IV
(assault) against Sergeant Berry, Trooper Lowe, and Trooper
Comer and Count IX (bystander liability) against Sergeant Berry
and Trooper Lowe.

IV. Conclusion

For the foregoing reasons, the court ORDERS as
follows:
1. that Ms. Pauley’s claims be, and hereby are, dismissed;
2. that Mr. Compton’s claims against Sergeant O’Bryan, Trooper
Minor, Trooper Yarber, and Trooper Powers be, and hereby
are, dismissed;
3. that Counts II, V, VII, and X against Sergeant Berry,
Trooper Lowe, and Trooper Comer be, and hereby are,
dismissed;
4. that Count IX against Trooper Comer is dismissed;
5. that Trooper Lowe and Trooper Comer’s motion for partial
summary judgment on Count VI be, and hereby is, granted;
and

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02/08/2016

Last day for Rule 26(f) meeting.

02/15/2016

Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.

02/22/2016
Scheduling conference at partial summary Robert C.
6. that Trooper Lowe’s motion for 4:30 p.m. at the judgment on
Byrd United States Courthouse in Charleston, before
Count the be, and hereby is, denied.
IX undersigned, unless canceled. Lead counsel
directed to appear.
02/29/2016

Entry of scheduling to forward copies of this
The Clerk is directed order.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
memorandum opinion and order to all counsel of record and to any
The Clerk is requested to transmit this Order and
unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.

ENTER: February 9, 2018
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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