Byndon v. Pugh

• Decision Date: 04 October 2018
• Docket Number: Civil Action No. 5:16CV103
• Citation: 350 F.Supp.3d 495
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Othello Thomas BYNDON, Plaintiff, v. Garrett PUGH, Doug Howell and the City of Wheeling, a West Virginia Municipal Corporation, Defendants.

350 F.Supp.3d 495

Othello Thomas BYNDON, Plaintiff,

v.Garrett PUGH, Doug Howell and the City of Wheeling, a West Virginia Municipal Corporation, Defendants.

Civil Action No. 5:16CV103

United States District Court, N.D. West Virginia.

Signed October 4, 2018

Donald J. Tennant, Jr., Tennant Law Offices, Martin P. Sheehan, Sheehan & Nugent, PLLC, Wheeling, WV, for Plaintiff.

Mark A. Kepple, Bruce Michael Clark, Thomas E. Buck, Bailey & Wyant, PLLC, Wheeling, WV, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTSGARRETT PUGH AND THE CITY OF WHEELING'S MOTION FOR SUMMARY JUDGMENT

FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE

I.Background

The plaintiff, Othello Thomas Byndon("Byndon"), originally filed this civil action in the Circuit Court of Ohio County, West Virginia.ECF No. 1-1at 1.The defendants, Garret Pugh, Doug Howell, and the City of Wheeling, removed the civil action to this Court on June 27, 2016.ECF No. 1.On February 15, 2017, this Court approved the parties' stipulation of dismissal of defendantDoug Howell.ECF No. 19.Therefore, Garret Pugh("Officer Pugh") and the City of Wheeling("City") are the only remaining defendants.

This case arises out of the alleged actions of a police officer during a traffic stop in or around Wheeling, West Virginia.The parties agree that on June 23, 2014, the plaintiff was pulled over while traveling on I-470.ECF Nos. 1-1at 2-3 and 5 at 4-5.In the course of the traffic stop, the police officers searched the plaintiff's vehicle and forcibly removed the plaintiff from his vehicle, including the use of a taser.ECF No. 1-1at 5-6.The plaintiff was arrested, but all charges were eventually dropped.Id. at 8-9.The plaintiff initially brought claims for deprivation of civil rights under 42 U.S.C. § 1983, intentional infliction of emotional distress ("IIED"), battery, assault, negligent retention and hiring, civil conspiracy, and negligent training and supervision.Id. at 12-18.

On May 14, 2018, the defendants filed a motion for summary judgment.ECF No. 24.The defendants argue that Officer Pugh, a Wheeling police officer, is immune from both the § 1983 claim and the state law claims, and that the plaintiff has failed to provide supporting evidence for the state law claims.ECF No. 25at 5, 16, and 20-25.First, the defendants argue that Officer Pugh is immune for purposes of § 1983 because qualified immunity protects public officials for actions made in the course of their employment as long as they acted reasonably.Id. at 5.The defendants argue that throughout the traffic stop, arrest, and search of the vehicle, Officer Pugh's actions were reasonable and legal.Id. at 7-12.

Second, the defendants assert that Officer Pugh is immune from liability for the claims of IIED, battery, and assault.Id. at 16.Under West Virginia Code § 29-12A-5(b), the Governmental Tort Claims and Insurance Reform Act:

An employee of a political subdivision is immune from liability unless one of the following applies: (1) His or her acts or omissions were manifestly outside the scope of employment or official responsibilities; (2) His or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or (3) Liability is expressly imposed upon the employee by a provision of this code.

W. Va. Code § 29-12A-5.The defendants contend that Officer Pugh was acting within the scope of his employment and that the plaintiff has offered no evidence that Officer Pugh acted maliciously.ECF No. 25at 16.Thus, the defendants contend Officer Pugh is immune from liability.Id.

Third, the defendants argue that the City cannot be held liable for the claims of IIED, battery, and assault, because "[state] law does not allow political subdivisions to be held liable for ‘intentional malfeasance’ on the part of their employees."Id. at 17.

Fourth, the defendants argue that the plaintiff has provided no evidence to support the negligent retention and hiring claim; they contend this is merely a "boilerplate assertion" without any specific evidence of a negligent hiring decision.Id. at 17-19.The defendants similarly argue that the negligent training and supervision claim, the supervisor liability claims, the municipal liability claims, and the deliberate indifference claim likewise must fail because the plaintiff has either merely asserted the claims without offering supporting evidence or failed to fully plead the claim.Id. at 20-25.

Fifth, the defendants argue that the civil conspiracy claim must fail because the plaintiffs have not alleged any facts to show that there was an agreement or understanding among the defendants.Id. at 19.They state that the plaintiff must allege that there was an "agreement of the minds" and that a state or federal official willfully participated in a joint activity.Id. at 19-20.

Finally, the defendants assert that the plaintiff's state constitutional claims are moot because the West Virginia Constitution does not contain any equivalent to 42 U.S.C. § 1983 that would allow the plaintiff to recover for money damages.Id. at 21.

The plaintiff filed a response in opposition to the defendants' motion for summary judgment.ECF No. 28.In it, the plaintiff first waives and concedes judgment on the claims of negligent retention and hiring, assault, negligent training and supervision, and deliberate indifference.Id. at 1.The plaintiff then argues that the remaining claims are inappropriate for summary judgment because they all rest on a disputed material fact-namely, whether Officer Pugh was within his jurisdictional limits when he observed the plaintiff's driving.Id. at 11.Along the portion of I-470 in question, the interstate passes through the city limits in such a way that the interstate is within the city limits of Wheeling, then proceeds into city limits of the Village of Bethlehem, and then back into the city limits of Wheeling.ECFNo. 28-1.Relying on the deposition of Officer Pugh, the plaintiff contends that there is a genuine issue of material fact as to whether Officer Pugh observed the plaintiff driving too closely to the vehicle ahead of him in Wheeling or Bethlehem.ECF No. 28at 1-2.Because Officer Pugh's observation of plaintiff following too closely was the probable cause by which he pulled over the plaintiff, the plaintiff contends that the subsequent stop, search, and arrest were unlawful if this observation occurred outside his jurisdiction in Bethlehem.ECF No. 28at 2.

The plaintiff then claims that Officer Pugh violated the plaintiff's clearly established rights under the First and Fourth Amendments because the stop was illegal and "a jury might reasonably conclude that [d]efendant Pugh summoned ‘back up’ because of Mr. Byndon and his front seat passenger [sic] spirited criticism of [d]efendant Pugh's stated basis for stopping him."Id. at 18-19.The plaintiff claims that this jurisdictional issue is one of material fact for the claims of civil conspiracy, IIED, battery, and the § 1983 claim.Id. at 21.

The defendants filed a reply.ECF No. 30.The defendants contend that "[t]here is no genuine issue of material fact as to where [d]efendant Pugh observed [p]laintiff's illegal driving."Id. at 1.Citing Officer Pugh's testimony, they maintain that Officer Pugh first observed plaintiff's driving around mile marker 5.4 or 5.5, well within the city limits of Wheeling.Id. at 1-2.Thus, the defendants argue that the plaintiff's claims must fail because the plaintiff's argument is "entirely dependent upon his proposition that the traffic stop was illegal."Id. at 3.Next, they contend that even if the Court assumes that Officer Pugh did not realize he was outside the city limits when he activated the light bar on his police cruiser, it was reasonable for him to believe he was still within Wheeling's city limits.Id. at 5-6.The defendants therefore argue that qualified immunity applies because "[d]efendant Pugh's actions were reasonable under the circumstances."Id. at 6.

Further, the defendants contend that the plaintiff's First Amendment argument is "senseless" because rather than Officer Pugh calling for backup in response to plaintiff's criticism, the plaintiff himself called the police department to demand a supervisor.Id. at 6.

In addition to the jurisdictional issue, the defendants note that there are additional reasons the plaintiff's state law claims must be dismissed.First, the defendants argue that the civil conspiracy claim must fail as a matter of law because the plaintiff has still not alleged that any state official willfully participated in a joint activity.Id. at 8.Next, the IIED claim must fail because there is no evidence to establish any of the elements of that claim.Id. at 9-10.Finally, the defendants contend that the battery claim must fail because the plaintiff has waived and conceded the assault claim, and that "the two claims go hand in hand under the current facts."Id. at 10.

II.Applicable Law

Under Rule 56(c) of the Federal Rules of Civil Procedure,

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ... admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c).The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact.SeeCelotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986)."The burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact."Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718(4th Cir.1991), cert. denied, ...