Deakins v. Pack

• Decision Date: 12 July 2013
• Docket Number: Civil Action No. 1:10–cv–01396.
• Citation: 957 F.Supp.2d 703
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Harry E. DEAKINS, Sr., et al., Plaintiffs, v. T.S. PACK, et al., Defendants.

957 F.Supp.2d 703

Harry E. DEAKINS, Sr., et al., Plaintiffs,
v.
T.S. PACK, et al., Defendants.

Civil Action No. 1:10–cv–01396.

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

July 12, 2013.

[957 F.Supp.2d 709]

Harry E. Deakins, Sr., Princeton, WV, pro se.

Kay F. Deakins, Princeton, WV, pro se.

Michael D. Mullins, Peter J. Raupp, Steptoe & Johnson, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER
IRENE C. BERGER, District Judge.

The Court has reviewed Defendants' Motion for Partial Summary Judgment Against Harry Deakins (Document 179), Defendants' Motion for Summary Judgment Against Kay Deakins (Document 181), attached exhibits, memoranda in support and in opposition, and the replies. By Standing Order (Document 4) entered on December 21, 2010, this action was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

On April 22, 2013, the Magistrate Judge submitted his Proposed Findings and Recommendation (“PF & R”) (Document 224), wherein he recommends that the Court grant in part and deny in part Defendants' Motion for Partial Summary Judgment Against Harry Deakins and grant in part and deny in part Defendants' Motion for Summary Judgment Against Kay Deakins.

[957 F.Supp.2d 710]

On May 8, 2013, Defendants timely filed their objections to the PF & R (Document 235) together with attached exhibits (Document 235–1). After thorough review and consideration, the Court finds, for the reasons stated herein, that Defendants' objections should be overruled and the Magistrate Judge's PF & R should be adopted.

I. BACKGROUND AND PROCEDURAL HISTORY

Magistrate Judge VanDervort's PF & R provides a detailed account of the parties' previous and current motions. The Court now incorporates by reference those facts and procedural history. To provide context for the ruling herein, the Court provides the following brief summary.

On December 21, 2010, Plaintiffs, Harry E. Deakins, Sr. (“Mr. Deakins”) and Kay F. Deakins (“Mrs. Deakins”) filed their Complaint in the United States District Court for the Southern District of West Virginia at Bluefield. (Document 1.) On December 28, 2010, Plaintiffs filed their First Amended Complaint (Document 7) and then on January 3, 2011, they filed their Second Amended Complaint (Document 11). On August 18, 2011, Plaintiffs filed their Motion for Leave to File Third Amended Complaint (Document 60) and memorandum in support (Document 61). By Order entered January 25, 2012, 2012 WL 242859, the Court granted Plaintiffs' motion. (Document 88.) Plaintiffs filed their Third Amended Complaint on the same day. (“Third Am. Compl.”) (Document 90.)

In their Third Amended Complaint, Plaintiffs name the following Defendants: (1) T.S. Pack, Superintendent of the West Virginia State Police; (2) J.C. Long, West Virginia State Trooper; (3) R.J. Jackson, West Virginia State Trooper; (4) J.R. Baker, West Virginia State Trooper; (5) C.M. Wade, West Virginia State Trooper; (6) P.H. Shrewsbury, West Virginia State Trooper; (7) D.B. Rogers, West Virginia State Trooper and Assistant Detachment Commander; (8) D.W. Miller, West Virginia State Trooper; (9) Robin Marvin, West Virginia State Police Telecommunicator; and (10) John and Jane Does 1–7. ( Id. at 3–4.) ¹ Plaintiffs allege that on or about April 22, 2010, Defendants forcefully entered their home without identifying themselves as West Virginia State Troopers and without presenting Plaintiffs with a search warrant. ( Id. at 5–6.) Mr. Deakins alleges that Defendant Jackson, without issuing any commands, used unnecessary and excessive force in arresting him. ( Id. at 6.) Similarly, Mrs. Deakins alleges that Defendant Baker, without provocation, used excessive force in arresting her. ( Id. at 7.) Furthermore, she asserts that her arrest was unlawful due to the lack of probable cause. ( Id.) Plaintiffs also allege that Defendants Long, Jackson, Baker, Wade, Shrewsbury and John Does 1–7 illegally seized a digital camera and two personal computers. ( Id. at 9.) Mr. Deakins alleges that in transport to the police station, Defendant Jackson sprayed him twice with pepper spray when he was handcuffed in the back seat of the police cruiser. ( Id. at 10.)

Plaintiffs allege that they both requested medical attention upon their arrival at the Princeton State Police Detachment. ( Id.) Subsequently, Mr. Deakins alleges

[957 F.Supp.2d 711]

that Defendant Long repeatedly hit him in the face, without provocation, while Defendant Jackson choked him and violently twisted his nose. ( Id. at 11.) He further alleges that Defendants Long and Jackson made several derogatory remarks regarding his appearance and religion. ( Id. at 10–12.) He asserts that Defendant Rogers was present at the Detachment and had explicit knowledge of the beatings but did “absolutely nothing to intervene or assist him.” ( Id. at 12.) Plaintiffs allege that they were both transported to Princeton Community Hospital emergency room to be treated for injuries sustained as a result of Defendants Jackson, Long, and Baker's use of excessive force. ( Id. at 12–13.) Mr. Deakins further alleges that in transport to the hospital, Defendant Jackson, again, sprayed him with pepper spray, without provocation. ( Id.) Based upon the foregoing, Plaintiffs contend that Defendant Pack failed to adequately train and supervise his employees and was negligent in his hiring, disciplining and retention. ( Id. at 16.) Moreover, Plaintiffs allege that Defendant Pack was negligent in failing to have a written policy in effect or one that was followed by the Princeton Detachment of the West Virginia State Police and all named defendants. ( Id.)

Plaintiffs contend that Defendants' aforementioned actions constitute an unreasonable search and seizure, excessive force, assault and battery and false arrest of Mrs. Deakins. ( Id. at 2.) As a result of Defendants' conduct, Plaintiffs allege that they suffered physical injuries as well as humiliation, shame, degradation, embarrassment and monetary loss. ( Id. at 14.) Plaintiffs assert that Defendants' actions violated their rights under the Fourth, Fifth and Fourteenth Amendments as well as the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, and 1988, West Virginia common law, and Article III, Sections 1, 6 and 10 of the Constitution of the State of West Virginia. ( Id. at 1.)

On November 5, 2012, Defendants Pack, Long, Jackson, Baker, Wade, Shrewsbury, and Rogers filed their Motion for Partial Summary Judgment Against Harry Deakins (Document 179), attached exhibits ² and a memorandum in support (Document 180.) ³ Defendants argue that they are

[957 F.Supp.2d 712]

entitled to summary judgment against Mr. Deakins on: (1) his allegations of unlawful arrest, (2) all claims against Defendant Pack, (3) his claim based upon illegal seizure of two computers and a camera and (4) any bystander liability claims against Defendants Rogers and Shrewsbury. ( Id. at 4–13.) First, Defendants explain that Mr. Deakins' arrest was lawful because there was a valid warrant for his arrest, the Troopers knew that he was inside the house and he attacked Defendant Jackson. ( Id. at 4–5.) Moreover, Defendants contend that his claim of unreasonable search and seizure is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). ( Id. at 6–7.) Second, Defendants contend that there is no evidence that Defendant Pack had any personal involvement in the alleged incident or that he negligently trained or supervised the Defendant Troopers. (Document 180 at 7–9.) Third, Defendants argue that the electronics were legally seized because they believed that they may contain footage of the attack against them. ( Id. at 9–12.) Finally, Defendants argue that there is no evidence to support claims of bystander liability against Defendants Rogers and Shrewsbury. ( Id. at 13.)

On November 19, 2012, Mr. Deakins filed his Response in Opposition (Document 186) and attached exhibits.⁴ As a preliminary matter, Mr. Deakins asserts that contrary to Defendants' contentions, he did not sue Defendants for false arrest or for intentional infliction of emotional distress. ( Id. at 2.) ⁵ He also states that the claims against Defendants Shrewsbury and Rogers are not for “bystander liability” as Defendants allege, but are for conspiracy pursuant to 42 U.S.C. § 1983. ( Id. at 11–12.) Next, Mr. Deakins objects to and moves to strike all eight of the exhibits attached to Defendants' motion for partial summary judgment because they have not been properly authenticated, constitute hearsay, are irrelevant and inadmissible and are not “proper summary judgment evidence.” ( Id. at 3.) Finally, Mr. Deakins argues that Defendants' motion should be denied because there is sufficient evidence to create a genuine issue of material fact as to his claims. ( Id. at 10–11.) Specifically, he contends that there are material facts in dispute concerning Defendants entry into his home and the seizure of his computers and digital camera. ( Id. at 13–16.) Mr. Deakins also asserts that the exhibits attached to his response in opposition contradict Defendants' evidence and, therefore, Defendants are not entitled to qualified immunity and their motion should be denied. ( Id. at 10–11, 17–18.) In closing,

[957 F.Supp.2d 713]

Mr. Deakins notes that Defendants did not specifically contest Plaintiffs' state law pendent claims, pursuant to W. Va.Code 61–6–21(b). ( Id. at 18–19.) Therefore, he argues that summary judgment is inappropriate. ( Id. at 19.)

On November 27, 2012, Defendants filed their reply to Harry Deakins' response in opposition and attached exhibit.⁶ (Document 188.) First, Defendants argue that Mr. Deakins' request to strike all of the exhibits attached to their motion for partial summary judgment should be denied because the exhibits are proper under Rule 56(c)(1)(A) of the Federal Rules of...