Pegg v. Klempa
| Decision Date | 31 July 2015 |
| Docket Number | Civil Action No. 5:13CV173. |
| Citation | 119 F.Supp.3d 488 |
| Parties | Brandon PEGG and Kristina Pegg, husband and wife, Plaintiffs, v. Nathan Tyler KLEMPA, individually and in his capacity as agent and employee of the City of Glen Dale Police Department and Grant Herrnberger, individually and in his capacity as an agent and employee of the West Virginia State Police, Defendants. |
| Court | U.S. District Court — Northern District of West Virginia |
Robert G. McCoid, McCamic, Sacco & McCoid, PLLC, Paul J. Harris, Harris Law Offices, Wheeling, WV, for Plaintiffs.
Keith C. Gamble, Kenneth Hopper, Pullin Fowler Flanagan Brown & Poe PLLC, Crystal I. Cutright, Deva A. Solomon, Monte L. Williams, Steptoe & Johnson, PLLC, Morgantown, WV, for Defendants.
Brandon Pegg ("Mr. Pegg") and Kristina Pegg ("Mrs. Pegg") (collectively, "plaintiffs"), assert claims for excessive force, unlawful detention/arrest, outrage/intentional infliction of emotional distress, battery, and civil conspiracy pursuant to 42 U.S.C. § 1983, the West Virginia Constitution, and other state statutes. These claims arise out of a traffic stop that occurred in December 2012 which was initially performed by defendant Nathan Tyler Klempa ("Klempa"). Defendant Grant Herrnberger ("Herrnberger") later arrived on the scene in response to Klempa's call for backup and thus claims against Herrnberger arise from that point forward.
Based on an amended scheduling order, motions in limine were due prior to dispositive motions. Thus, the parties filed several motions in limine. Thereafter, the plaintiffs filed a partial motion for summary judgment, Herrnberger filed a motion for summary judgment, and Klempa filed a motion for summary judgment. The plaintiffs' partial motion for summary judgment addresses the following claims: unlawful arrest of Mr. Pegg (Count III), unlawful detention and arrest of Mrs. Pegg (Count IV), excessive force toward Mr. Pegg (Count V), battery toward Mr. Pegg (Count VII), and battery toward Mrs. Pegg (Count VIII).
As this is a motion for summary judgment, and this Court will consider the defendants' qualified immunity defense, this Court will consider the facts in the light most favorable to the plaintiffs.
The parties agree that the traffic stop at issue occurred on New Year's Eve, 2012; around 7:00 p.m.; and that the initial stop was conducted because of a burned out license plate light on Mr. Pegg's vehicle. Mr. Pegg confirmed during his deposition that when Klempa requested his license and insurance information, instead of providing the information he responded "What have I done?" ECF No. 50–3 at 43. Mr. Pegg testified that Klempa responded, "Give me your driver's license and proof of insurance, and I will tell you." to which Mr. Pegg responded, "This is bullshit." Id. at 43–45. Further, Mr. Pegg testified that he could not recall exactly what was said but that Mr. Pegg was "immediately agitated" and that it was possible that when Klempa first asked for his license and insurance information Mr. Pegg also stated, Id. at 48–50. Mr. Pegg testified that after he provided the information to Klempa, Klempa then told him why he had been pulled over. Id. at 46–47. Mr. Pegg and Mrs. Pegg both stated that Klempa had not been rude or offensive during this initial interaction. Id. at 53; ECF No. 50–5 at 40.
Further, Mr. Pegg testified that at this point, Klempa would not have known who or what was in Mr. Pegg's car. ECF No. 50–3 at 51–52. Additionally, Mr. Pegg stated that when Klempa was talking to him at the car window Id. at 52. Mr. Pegg also testified that vehicles were passing by on the roadway at this time. Id.
Mr. Pegg then testified that after being stopped for approximately five minutes, more police officers arrived. Id. at 64–65. However, Mr. Pegg stated that he believed the entire stop took over twenty minutes to be completed. Id. at 65. After the other officers arrived, Mr. Pegg testified that he was asked to exit his vehicle by Klempa and that he responded "No." Id. at 65–66. Mr. Pegg further testified that his door was then opened and he was asked again, by Herrnberger this time, to exit the vehicle to which he responded "Why?" Id. Mr. Pegg stated that Klempa's request was in a lower tone and that Herrnberger's request was in a more aggressive tone. Id. at 68. Specifically, regarding the use of force by Herrnberger, Mr. Pegg confirmed that the officers opened the car door after Mr. Pegg refused their requests and that Herrnberger unbuckled his seat belt. ECF No. 50–3 at 66. Further, Mr. Pegg testified that he got out of the car on his "own free will" after "they" began to jerk him out of the car, or "grabbed" him. Id. at 71. Mr. Pegg then freely left the vehicle, and walked freely to the back of the vehicle. Id. at 67–80. During this interaction, Mr. Pegg stated that the officers were either on the fog line1 or over it. Id. at 72.
After moving to the rear of the vehicle, Mr. Pegg testified that at one point, Herrnberger stated, "When a police officer tells you to do something, you do it." Id. at 70. Mr. Pegg stated that after being removed from the vehicle, he followed all other instructions from the officers. Id. at 77–78. Mr. Pegg testified that once at the rear of his vehicle, he was asked by Herrnberger if he had anything illegal in the vehicle and he responded "No." Id. at 81. Mr. Pegg was then told, by Klempa, that he was under arrest for obstructing an officer to which he responded, "No. I don't feel like I have done anything." Id. at 81–82. Mr. Pegg testified that Klempa then placed Mr. Pegg's arms behind his back, handcuffed him, and placed him in Klempa's police cruiser. Id. at 82. Mr. Pegg testified after the removal from the vehicle, that other than being handcuffed, patted down, and placed in the police cruiser, he was able to walk freely and was otherwise not physically harmed by the police officers. Id. at 75–80.
Before Mr. Pegg was placed in the police cruiser, Mrs. Pegg had been yelling to officers through the vehicle window inquiring as to what was going on. ECF No. 50–5 at 51. Mrs. Pegg then opened the car door, stuck her head out, and asked why her husband was being placed in handcuffs because "no one was paying attention" to her when she was just speaking through the window. Id. Herrnberger then returned to the vehicle where Mrs. Pegg was still sitting and told her to shut her door or she might be arrested, that Mr. Pegg was being arrested because he did not do what the officers told him to do, and that officers "do things for our safety and for yours...." Id. at 50–52. Mrs. Pegg testified that she then shut her door and then opened it again. Id. at 52. Herrnberger then told Mrs. Pegg to shut the door or she would go to jail. Id. Herrnberger then asked Mrs. Pegg for her driver's license. ECF No. 48–4 at 83. Mrs. Pegg stated that her license was then run through a computer check and returned to her before Herrnberger asked her a second time for her license.Id. at 85. Mrs. Pegg's license was then returned to her a second time and Herrnberger then ordered her to get out of the vehicle. Id. at 87. Mrs. Pegg was then asked by Herrnberger to raise her shirt to reveal her waist and see if she had any weapons. Id. at 87–88.
Mrs. Pegg testified at her deposition that Herrnberger then completed a Terry2 frisk of her and also asked her if she had any weapons or drugs. Id. at 93; ECF No. 50–5 at 53. Thereafter, Mrs. Pegg asserts that a search of the truck was completed by both Herrnberger and Klempa without Mrs. Pegg's permission and a search of Mrs. Pegg's purse was completed by Klempa with Mrs. Pegg's permission. Id. at 100. Mrs. Pegg testified that Klempa completed a search of her purse, the passenger compartment, and passenger areas of the vehicle. Id. However, Mrs. Pegg stated that Herrnberger was on the driver's side and she could not see what he was doing. Id. Mr. Pegg testified at his deposition that Mrs. Pegg told him that her purse was searched and that the passenger compartment was searched. ECF No. 66–2 at 93–95. Mrs. Pegg also testified that the officers made disparaging remarks about Mr. Pegg's profession and about her father-in-law. ECF No. 50–5.
Mrs. Pegg further stated that Klempa came up to her with a bag of cookie crumbs and asked her if the crumbs in the bag were "shake" (marijuana), to which she replied it was not. Id. at 113. Mr. Pegg testified that Klempa repeated this question to him while he was in the police cruiser. ECF No. 50–3. Mrs. Pegg also testified that a bag of jalapeno peppers had been ripped open and that the bag was on the passenger side of the vehicle. ECF No. 484. No weapons or contraband were found in either the vehicle or Mrs. Pegg's purse. Mrs. Pegg was then free to drive away in the vehicle. Mr. Pegg's obstruction charge was later dismissed.
Based on the analysis that follows, this Court finds that the plaintiffs' partial motion for summary judgment should be denied and both defendants' motions for summary judgment granted. Consequently, all pending motions in limine are denied as moot.
The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex 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, 502 U.S. 1095, 112...
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