Maston v. Wagner

• Decision Date: 10 November 2015
• Docket Number: No. 14–1113.,14–1113.
• Citation: 781 S.E.2d 936
• Parties: Deputy J.K. MASTON, Tyler County Sheriff's Department, Trooper S. Curran, and West Virginia State Police, Defendants below, Petitioners v. Thomas Jefferson WAGNER, Plaintiff below, Respondent.
• Court: West Virginia Supreme Court

781 S.E.2d 936

Deputy J.K. MASTON, Tyler County Sheriff's Department, Trooper S. Curran, and West Virginia State Police, Defendants below, Petitioners

v.Thomas Jefferson WAGNER, Plaintiff below, Respondent.

No. 14–1113.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 2015.

Decided Nov. 10, 2015.

Gary E. Pullin, Esq., Emily L. Lilly, Esq., Michelle Rae Johnson, Esq., Pullin, Fowler, Flanigan, Brown & Poe, PLLC, Charleston, WV, Counsel for the Petitioners.

David A. Jividen, Esq., Chad D. Haught, Esq., Jividen Law Offices, PLLC, Wheeling, WV, Counsel for the Respondent.

KETCHUM, Justice:

In this appeal from the Circuit Court of Tyler County, a plaintiff contends that he was improperly arrested by a deputy sheriff and a state trooper. The plaintiff claims that a reasonable jury could find that the law enforcement officers arrested him without probable cause to do so, and that they unreasonably used excessive force that injured him during the arrest, in violation of his constitutional and statutory rights. The law enforcement officers (and their employers) contend that their actions were protected by the doctrine of qualified immunity.

In an order dated September 24, 2014, the circuit court refused to afford the law enforcement officers qualified immunity and denied the officers' motion for summary judgment. The circuit court determined that there were numerous disputes about the material facts supporting the immunity determination, disputes that should be resolved by a jury.

On appeal by the law enforcement officers (and their employers), we too find substantial questions of material fact exist in the record for jury resolution. As set forth below, we affirm the circuit court's order declining to afford the officers qualified immunity.

I.FACTUAL AND PROCEDURAL BACKGROUND

Shortly after midnight on Saturday, April 11, 2009, plaintiff Thomas J. Wagner walked out of Big C's Lounge in the small town of Middlebourne, West Virginia. Mr. Wagner was then a fifty-year-old, heavy-set, balding boilermaker who owned the apartment building across from the Tyler County courthouse and owned and operated a local feed store. Mr. Wagner lived in his apartment building. Both Mr. Wagner and a bartender say he had two or three beers in the two or three hours he was at the bar. Both also attested that it was raining when he left.

Big C's Lounge is located on Main Street about 70 yards north of Mr. Wagner's apartment. The bar is at 212 Main Street; Mr. Wagner's residence was one block down at 120 Main Street, across from the courthouse.

Mr. Wagner walked south on the sidewalk until he reached the intersection of Main and a crossroad. On Mr. Wagner's side of Main, the crossroad is named Dodd Street; on the opposite side of Main, it is called Court Street. Mr. Wagner stopped to look for traffic before crossing Dodd Street and saw a State Police cruiser parked on Court Street with two officers inside who were watching him. He contends that he turned to the police cruiser and asked "[i]f everything was okay" or if something was wrong that he should be aware of for himself and his tenants. As Mr. Wagner testified in his deposition, "There's the cruiser with the engine running, [head]lights on. Hasn't budged an inch since the whole time I get down the street. I own this apartment building right here (indicating [on map] ). My concern is for these people here. Is there something I should be aware of[?]" When he did not receive a response to his inquiry, Mr. Wagner "[a]sked again, is everything all right[?]" Mr. Wagner observed the police cruiser window come halfway down, but heard no response.

At this point, it began to rain harder. Mr. Wagner says he pulled his sweatshirt hood up over his head and "hustled down the street" to his residence that was 15 to 20 yards down the sidewalk. As he reached the apartment building, he turned down a gravel driveway that paralleled the building's porch.

The next thing Mr. Wagner recalled was someone "crashing" into his back, simultaneously grabbing his right arm and slamming his face into the spindles of the porch railing. As his arm was being pulled behind his back, Mr. Wagner said he felt an explosion of extreme pain. Mr. Wagner quickly realized that he was being confronted by the two law enforcement officers he had seen moments before.

Defendant Joshua Maston, a sheriff's deputy working for the Tyler County Sheriff's Department, was the individual who had pushed and grabbed Mr. Wagner. Defendant Shaun Curran, a trooper (now corporal) working for the West Virginia State Police, had been driving the State Police cruiser and helped Deputy Maston handcuff Mr. Wagner.

A tenant of the apartment building, Lillian (Burch) Leeson, heard a commotion and went out on the porch to investigate. According to her deposition testimony, Mr. Wagner was pressed up tight to the porch by the officers. She said, "He couldn't have moved if he wanted to." At the same time, she heard Mr. Wagner ask the officers why they were hurting him. She also heard Mr. Wagner tell the two officers he lived in the building and was going home. Mrs. Leeson said it was pouring down rain; when the officers asked Mr. Wagner "why he was running" he replied "that he was trying to get in out of the rain." Mrs. Leeson never heard Mr. Wagner yell at the officers.

Mr. Wagner said he believed the officers had broken his arm and asked them to take him to the hospital. Thereafter, the officers transported him to a hospital where blood was cleaned from his face. Mr. Wagner also received an injection of pain medication and an arm sling. Mr. Wagner then spent the remainder of the night in a regional jail before appearing before a magistrate in the morning.

Subsequent medical testing revealed that Mr. Wagner had suffered a complete tear of the common extensor tendon and radial collateral ligament in his right elbow. He later underwent reconstructive surgery on his elbow with an allograft cadaver Achilles tendon, and healed wearing a cast and elbow brace.

Deputy Maston and Trooper Curran offer an account of the arrest that conflicts with that of Mr. Wagner. Additionally, factual differences exist between the story told by Deputy Maston and the one told by Trooper Curran, and between each officer's written statement made shortly after the arrest and the officer's later deposition testimony.

Deputy Maston and Trooper Curran received a call at 12:07 a.m. of an altercation at 301 Main Street in Middlebourne, about a block north of Big C's Lounge. They responded in Trooper Curran's police cruiser with Deputy Maston riding as a passenger. Upon arriving at the scene they found no altercation and no people. By 12:19 a.m., the officers told the dispatcher they had cleared the scene and found nothing. However, as the officers drove south down Main Street they noticed a man and woman leaving Big C's Lounge, in an intoxicated state, walking toward a vehicle. Trooper Curran turned onto Court Street, turned around, and parked in a position to watch Big C's Lounge and see if the intoxicated couple attempted to drive the vehicle.¹ The intoxicated couple, likely seeing the police cruiser, then walked back into the bar.

Several minutes later, Mr. Wagner walked out of Big C's Lounge. Deputy Maston "had a pretty good idea [ ] from the physical features" that it was Mr. Wagner, and "[f]or sure I knew who it was when he got to the corner" of Dodd and Main Street. Mr. Wagner's sister was employed as a Tyler County magistrate assistant, and his brother owned a local medical supply business. Deputy Maston had exchanged pleasantries with Mr. Wagner in the courthouse (when Mr. Wagner visited his sister) and around town on a number of occasions, and never knew him to be violent or a danger to others. Deputy Maston said to Trooper Curran, "I believe that's Mr. Wagner." Trooper Curran testified that he too recognized Mr. Wagner from talking to him at the magistrate court but was not as familiar with him as Deputy Maston.

Trooper Curran's written report described Mr. Walker as "walking" from the bar to the intersection of Dodd and Main Streets, and his criminal complaint said Mr. Walker was "traveling on foot south along the sidewalk." Only Deputy Maston's report said he was "staggering." However, neither officer had any intention of stopping or arresting him. Both officers agree that Mr. Wagner stopped to look for traffic, but then turned toward the police cruiser, raised his arms, and said something. The officers testified they heard sound but could not understand what Mr. Wagner was saying because their windows were up, so Trooper Curran rolled down his window. Deputy Maston wrote that Mr. Wagner "yelled if we need anything," but Trooper Curran said he heard Mr. Wagner "shouting profanities and acting in a manner to provoke an altercation." Again, at this point the officers said they had no intention of stopping or arresting Mr. Wagner.

The officers say that Trooper Curran told Mr. Wagner to go home,² and both agree the trooper had to yell in an attempt for Mr. Wagner to hear him. The officers assert that Mr. Wagner yelled something back and threw his arms up in the air. Trooper Curran may have again told Mr. Wagner to go home. According to the officers, Mr. Wagner did not move and yelled something toward the cruiser. Trooper Curran testified to clearly hearing obscenities and immediately telling Deputy Maston what he heard; Deputy Maston says the trooper said nothing about hearing obscenities until several days later.

Next, Trooper Curran allegedly told Mr. Wagner to "stay right there," but again both officers testified they had no intention of stopping or arresting him.³ Mr. Wagner, however, began to jog or run south down the sidewalk. At this point, the officers decided to stop Mr. Wagner because, as Deputy Maston said, "Whenever somebody starts running from you after we tell them to stay there, then something's not right." Trooper Curran decided to arrest Mr. Wagner "when he started to run" b...