Libert v. Parkersburg city Police, CIVIL ACTION NO. 6:10-cv-00558
| Decision Date | 29 June 2011 |
| Docket Number | CIVIL ACTION NO. 6:10-cv-00558 |
| Court | United States District Courts. 4th Circuit. Southern District of West Virginia |
| Parties | DOUGLAS LIBERT, Plaintiff, v. PARKERSBURG CITY POLICE, et al., Defendants. |
Pending before the court is the defendants' Motion for Summary Judgment [Docket 16]. Pursuant to 28 U.S.C. § 636(b)(1)(B), this civil case was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for proposed findings of fact and recommendations for disposition. On March 11, 2011, the Magistrate Judge submitted proposed findings [Docket 29] and recommended that the court grant the defendants' Motion for Summary Judgment. On April 13, 2011, the plaintiff timely filed objections to the proposed findings and recommendations ("PF&R") [Docket 32].1
The court has reviewed de novo those portions of the PF&R to which the plaintiff specifically objects and FINDS that the objections lack merit. Accordingly, the court ADOPTS and incorporates herein the Magistrate Judge's Proposed Findings and Recommendation and GRANTS the defendants' Motion for Summary Judgment [Docket 16].
After de novo review of those portions of the Magistrate Judge's report to which objections were filed, the court ADOPTS the statement of facts set forth in the PF&R. The detailed account provided by the Magistrate Judge therein requires only a brief summary here.
The claims in this case arise out of a long-term, neighborhood dispute between the plaintiff, Douglas Libert, and both the Banky family and Donald Lucas, Jr. The plaintiff states that the Banky family and Donald Lucas, Jr., regularly harassed and antagonized him. As a consequence of this ongoing quarrel, the police were called on multiple occasions.
The plaintiff asserts that on September 28, 2008, he was in his car on his way home when he encountered Lucas, who was in his own car. The plaintiff alleges that Lucas threatened him through the car window and then, after the plaintiff arrived home and parked, assaulted him. The plaintiff asserts that throughout the altercation he was merely defending himself on his own property. Defendant Dallas Donaldson, a Parkersburg City police officer, responded to the plaintiffs report of this incident, but the plaintiff was unhappy with the investigation.
Due to these ongoing conflicts, and his concern about possible burglars, the plaintiff, prior to the incident described above, had installed security cameras in his house. The day after Lucas's alleged assault on the plaintiff, the plaintiff's neighbors called the Parkersburg police to complain about one of the cameras. At approximately 8 p.m., an officer arrived at the plaintiffs house. The officer's account of what ensued differs from the plaintiffs account. According to the plaintiff, who was unaware that the police had been called, the officer began pounding on the door and, when the plaintiff asked who it was, allegedly replied that it was "Santa Claus." The plaintiff initially thought it was the neighbors and prepared to defend himself. Upon looking out the window, however, theplaintiff saw a fully-uniformed police officer and opened the door, permitting Police Officer Benjamin Ward to enter. According to the plaintiff, Officer Ward then began screaming at him and acting belligerently. Officer Ward purportedly demanded to see the security camera, to which the plaintiff led him, and then Officer Ward instructed the plaintiff to remove it. Officer Ward allegedly told the plaintiff that he might come back with an arrest warrant. The plaintiff states that this incident was very upsetting to him, and, after Officer Ward left, the plaintiff called the police to report it.
In an affidavit attached to the defendant's motion for summary judgment, Officer Ward denied calling himself "Santa Claus," and states that he solely identified himself as a member of the Parkersburg Police Department. Officer Ward states that the plaintiff invited him into his home, and that he himself did not use force or threats to enter the residence. According to Officer Ward, the plaintiff voluntarily showed him the camera and voluntarily removed it when asked by Officer Ward.
When the plaintiff called the police to follow up about the camera two days later, the police informed him that Lucas would be pressing charges for battery against the plaintiff as a result of the September 28, 2008 fight. The plaintiff was arrested later on the battery charge, which was dismissed in March or April of 2009. Lucas had alleged that the plaintiff sprayed him with pepper spray and then "engauged [sic] in a physical fight during a heated argument over a car accident." (Def.'s Mot. Summ. J. Ex. 3 [Docket 16-3], at 3.)
On April 22, 2010, the plaintiff filed the instant Complaint against the Parkersburg City Police, Officer Benjamin Ward, and Officer Dallas Donaldson. The first two claims, brought under 42 U.S.C. § 1983, assert violations of the plaintiff's Fourth Amendment rights. The third, state lawclaim asserts a violation of W. Va. Code § 29-12A-4(c)(2). Specifically, the Complaint alleges: (1) that Officer Ward conducted an unconstitutional search of the plaintiffs house in violation of the Fourth Amendment; (2) that the plaintiff was maliciously prosecuted for battery in violation of the Fourth Amendment, and (3) that the defendants, in general, failed to protect the plaintiff from Lucas in violation of W. Va. Code § 29-12A-4(c)(2). (Compl. [Docket 2].) On November 15, 2010, the defendants filed a Motion for Summary Judgment [Docket 16]. The Magistrate Judge submitted her PF&R [Docket 29] to the court on March 11, 2011. After being granted an extension, the plaintiff timely filed specific objections on April 13, 2011 [Docket 32].2 The matter is now ripe for review.
When a Magistrate Judge issues a recommendation on a dispositive matter, the court reviews de novo those portions of the Magistrate Judge's report to which specific objections are filed. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). This court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). The court will consider the fact that Plaintiff is acting pro se, and his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the court will not "weigh the evidence and determine the truth of the matter." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some "concrete evidence from which a reasonable juror could return a verdict in his [or her] favor." Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence" in support of his or her position. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987); Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), abrogated on other grounds, 490 U.S. 228 (1989).
The Magistrate Judge recommends granting the defendants' Motion for Summary Judgment in its entirety. According to the Magistrate Judge, the plaintiff has failed to show "that a genuine issue of material fact exists" as to his Fourth Amendment unlawful search and malicious prosecution claims. (PF&R, at 11, 13.) The Magistrate Judge additionally recommends that the court find that the plaintiff has "failed to make an evidentiary showing sufficient to establish a special duty of care" necessary to support his claim, pursuant to W. Va. Code § 29-12A-4(c)(2), that the police failed to protect him. (PF&R, at 19.) Each of the plaintiff's objections are addressed below.
The Magistrate Judge recommends granting summary judgment to the defendants as to the Fourth Amendment unlawful search claim because, based on "the totality of the circumstances, the plaintiff consented to [Officer] Ward's search." (PF&R, at 11.) The plaintiff objects and argues that his consent was not voluntary. In support of his position, the plaintiff alleges that Officer Ward identified himself only as "Santa Claus" when he knocked on the plaintiffs door. Once the plaintiff opened the door, Officer Ward allegedly told the plaintiff there was an "emergency situation" and acted aggressively and belligerently toward the plaintiff. (Objections, at 1.) The plaintiff maintains that Officer Ward had acted in a similarly belligerent and aggressive manner during prior encounters with the plaintiff, and the plaintiff feared Officer Ward would injure him if he refused the Officer's "demand" to enter the house. (Id.) Finally, the plaintiff asserts...
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