Lester v. City of Gilbert

• Decision Date: 04 February 2015
• Docket Number: Civil Action Nos. 2:13–cv–21447,2:13–cv–21448.
• Citation: 85 F.Supp.3d 851
• Parties: Bobby LESTER, Plaintiff, v. CITY OF GILBERT, et al., Defendants. Jimmy West, Plaintiff, v. City of Gilbert, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

85 F.Supp.3d 851

Bobby LESTER, Plaintiff

v.CITY OF GILBERT, et al., Defendants.

Jimmy West, Plaintiff

v.City of Gilbert, et al., Defendants.

Civil Action Nos. 2:13–cv–21447

2:13–cv–21448.

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

Signed Feb. 4, 2015.

Connor D. Robertson, Richard W. Weston, Weston Law Office, Huntington, WV, for Plaintiff.

Andrew R. Herrick, Charles R. Bailey, John P. Fuller, Bailey & Wyant, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, District Judge.

Lester West and Jimmy West (collectively, “Plaintiffs”) bring these companion cases¹ against several law enforcement officials and government entities: the City of Gilbert; Gilbert police officer Nathan Glanden, in both his personal capacity and as an officer; Mingo County Sheriff's Deputy Larry Thomas, in both his personal capacity and as an officer; the West Virginia State Police; West Virginia State Police troopers J.R. Tupper, C.A. Douglas, and J.T. Robinson, in both their personal capacity and as officers; and five Does (collectively, “Defendants”). Plaintiffs' Complaints stem from an alleged incident of police brutality against them both. As against the law enforcement officials, Plaintiffs allege § 1983 civil rights violations, assault, and battery. As against the government entities, Plaintiffs allege § 1983 municipal liability, negligent hiring and retention, and negligent supervision.

Pending before this Court are motions for summary judgment filed by Defendant Larry Thomas (ECF 51 in 2:14–cv–21447; ECF 57 in 2:14–cv–21448), motions for summary judgment filed by Defendant Nathan Glanden (ECF 53 in 2:14–cv–21447; ECF 59 in 2:14–cv–21448), motions for summary judgment filed by Defendant City of Gilbert (ECF 55 in 2:14–cv–21447; ECF 55 in 2:14–cv–21448), motions for summary judgment filed by Defendants C.A. Douglas, J.T. Robinson, J.R. Tupper, and West Virginia State Police (ECF 57 in 2:14–cv–21447; ECF 61 in 2:14–cv–21448), and motions by Plaintiffs to continue the deadline to respond to the summary judgment motions (ECF 60 in 2:14–cv–21447; ECF 64 in 2:14–cv–21448).

Defendants filed their motions for summary judgment on October 21, 2014. On November 4, 2014, the deadline for responses, Plaintiffs moved for a one-week continuance of the deadline to file their responses. Their motions were unopposed, and Plaintiffs filed their responses a week later. At this point Plaintiffs motions to continue [ECF 60 in 2:14–cv–21447; ECF 64 in 2:14–cv–21448] are DENIED AS MOOT, although the Court will proceed to consider Plaintiffs' responses.

With regard to Defendant Larry Thomas' motions for summary judgment [ECF 51 in 2:14–cv–21447; ECF 57 in 2:14–cv–21448] the Court GRANTS the motions, because they are unopposed. Therefore, Plaintiffs' claims against Defendant Larry Thomas are DISMISSED.

With regard to the motions for summary judgment filed by Defendants C.A. Douglas, J.T. Robinson, J.R. Tupper, and West Virginia State Police [ECF 57 in 2:14–cv–21447; ECF 61 in 2:14–cv–21448], the Court GRANTS IN PART the motions insofar as they seek summary judgment as to claims against Defendant West Virginia State Police, because Plaintiffs have agreed to its dismissal. Therefore, Plaintiffs' claims against Defendant West Virginia State Police are DISMISSED. However, for the reasons set forth below, the Court DENIES IN PART the motions insofar as they seek summary judgment as to claims against the individual officers.

Also for reasons set forth below, the summary judgment motions filed by Defendant City of Gilbert [ECF 55 in 2:14–cv–21447; ECF 55 in 2:14–cv–21448] are GRANTED, while the summary judgment motions filed by Defendant Nathan Glanden [ECF 53 in 2:14–cv–21447; ECF 59 in 2:14–cv–21448] are DENIED.

I. FACTUAL BACKGROUND²

When Defendant Larry Thomas, a deputy with the Mingo County Sheriff's Department, came home to his trailer in the Gilbert Creek, WV area on the night of August 19, 2011, he found his door kicked in and his duty gun and gun belt stolen. According to Defendant C.A. Douglas, this was “a pretty audacious crime.” To investigate the gun theft, Thomas enlisted the aid of Defendant Nathan Glanden, an officer with the City of Gilbert who grew up in Gilbert Creek and knew the area and its residents well, and J.R. Tupper and C.A. Douglas, troopers with the West Virginia State Police. The four of them set off together to obtain leads as to where the gun might be. Their first destination was the residence of Plaintiff Jimmy West and his uncle, Plaintiff Bobby Lester, who lived in a trailer a short distance up the creek from Thomas' trailer. The Plaintiffs were known to both Glanden and Douglas for various past run-ins with the law.³

Shortly after midnight on August 20, 2011, Plaintiffs West and Lester were laying on a mattress in their living room when Defendant Glanden came to their trailer door.⁴ The other three officers were with him.⁵ West went to the door, and Glanden questioned him about the stolen gun. Lester testified that the officers “looked at [his] nephew like he had something to do with it” and accused West of stealing the gun. West testified that Glanden “asked me to tell him where the gun was, did I know anything about it. Then he asked me to tell him where it was. If I didn't know where it was, to tell him—if I didn't have it, to tell him where it was.” West said he didn't know about the gun,⁶ and the officers left. To this much the parties generally agree, but from here their versions of events diverge rather significantly.

According to the Defendants' testimonies, the officers visited a series of other individuals until around 3:30 a.m. and did not return to the Plaintiffs' trailer.

According to the Plaintiffs' testimonies, upon departing Defendant Glanden stated that if the officers did not find the gun, “he will be back in a couple of hours and hell will be coming with him.” True to his word, Glanden reappeared about an hour later at Plaintiffs' trailer with several other officers. West testified that there were five officers and identified Defendant Glanden, Defendant Douglas, Defendant Robinson, and City of Gilbert police officer Brad Hatfield. Lester testified that there were about eight officers and identified Defendant Glanden, Defendant Robinson, Defendant Tupper, and Hatfield.⁷ The officers divided up into two roughly equal groups: one rushed in through the living room door, the other kicked in the bedroom door. They then commenced to beat the Plaintiffs savagely.

West estimated that the beating last fifteen to twenty minutes, while Lester estimated thirty. Both testified that it “felt like forever.”

During that time, West was called a “faggot,” and three or four officers beat him repeatedly with fists, a stick, and a slapjack in his ribs, his leg, and his head as he lay on his mattress trying to protect his ribs and head. The officers stopped hitting West long enough to hold his eyes open and pour liquid laundry detergent into his eyes. While one officer was hitting West in the head, which the laundry detergent had made slippery, the officer's hand slipped and broke West's nose. His head was put face-down into a mattress, and officers in boots stood on his head. A bear rug was pulled off the wall, its tongue was pulled out, and the tongue was stuck into West's mouth. After they had finished beating him, the officers sprayed West with pepper spray. Lester, laying beside West on the mattress, had one officer on each side of him, each one beating him. According to Lester, the officers called them “fags, queers, stuff. Just all kinds of vulgar talk.” While police stomped on Lester's disabled leg, Officer Glanden explained to him that “this ain't cops on TV. This is real cops.” Officers busted light bulbs and threw cans of food through the windows. Before leaving, the officers told Lester and West that if they told anyone about this, they would make their lives “a living hell.”

West and Lester went to a hospital at around 4:00 p.m. on August 20, 2011. West reported pain to the right side of his ribs, to his head, and to his lower back and was observed to have abrasions to his nose

and forehead, a nasal fracture, and a head injury. Lester was observed to have significant bruising around his eyes and nose and contusions of the face, nose, chest wall, left hip, and left knee. Lester stated to his treating physician that he was beaten up by the Gilbert Police, the State Police, and the Mingo County Police at 3:00 a.m. A nurse made the following notes in West's treatment report:

PT REPORTS ASSAULTED BY GILBER POLICE, STATE POLICE, MINGO CO. SHERIFF DEPART. ONSET BETWEEN 11 & 12 AM. PT REPT POLICE CAME TO MOM'S TRAILER QUESTIONED HIM ABOUT A BURGLARY. PT REPORTS HE TOLD OFFICE N. GLANDEN THAT HE AND HIS UNCLE HAD BEEN CAR RACES AT THUNDER VALLEY SPEEDWAY. REPORTS OFFICE LEFT THEN LATER RETURNED WITH 7 OR 8 STRATE TROOPERS. PT REPORTS OFFICERS PUT DISHWASHING LIQUID IN HIS EYES, BEGAN TO BEAT HIM AND HIS UNCLE. POUR POP ON BED, MACED HIM, PUNCHED REPEATEDLY IN HEAD AND FACE, KICKED IN RIBS THEN RAKE BOOT ACROSS HIS RT SIDE/RIB REGION REPEATEDLY. BROKE WINDWO IN TRAILER, TURNER OVER BOXES, TORE DOWN A BEAR RUG, RIPPED OUT TONGUE ON BEAR RUG, PT REPORTS HE WAS THEN TREATED NOT TO REPORT INCIDENT TO ANYONE. PT REPORTS HE WAS NOT ARRESTED, OR ANY CHARGES FILED AGAINST HIM.⁸

II. APPLICABLE LAW

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. That rule provides, in relevant part, that summary judgment should be granted if “there is no genuine issue as to any material fact.” Summary judgment is inappropriate, however, if there exist factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Facts are ‘material’ when they might affect the outcome of the case, and a ‘genuine issue’ exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.”...