Poling v. Ferguson, Civ. A. No. 2:94-cv-110.

• Decision Date: 17 March 1995
• Docket Number: Civ. A. No. 2:94-cv-110.
• Citation: 878 F. Supp. 880
• Parties: Mark R. POLING, Plaintiff, v. Patrolman Philip FERGUSON and Patrolman Clifford Keller, Individually and in their official capacities as Members of the City Police Department of Belington, Barbour County, West Virginia and the City of Belington, a West Virginia Municipal Corporation, Defendants.
• Court: U.S. District Court — Northern District of West Virginia

878 F. Supp. 880

Mark R. POLING, Plaintiff, v. Patrolman Philip FERGUSON and Patrolman Clifford Keller, Individually and in their official capacities as Members of the City Police Department of Belington, Barbour County, West Virginia and the City of Belington, a West Virginia Municipal Corporation, Defendants.

Civ. A. No. 2:94-cv-110.

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

March 17, 1995.

James F. Cain, Elkins, WV, for plaintiff.

Michael Kozakewich, Jr., Steptoe & Johnson, Clarksburg, WV, for defendants.

ORDER

MAXWELL, District Judge.

Plaintiff seeks to pursue his remedies in this Court pursuant to 42 U.S.C. § 1983. He alleges that defendants Ferguson and Keller, police officers employed by the defendant City of Belington, used excessive force during an unlawful arrest. Plaintiff has also alleged a cause of action against defendant City of Belington, based upon the doctrine of respondeat superior.

On December 15, 1994, defendants filed a Motion to Dismiss, and a memorandum of law in support of the motion. In support of the motion, defendants also submitted two exhibits, namely, the affidavit of Gary W. Morris, II, and a Release. Essentially, defendants urge that a release-dismissal agreement was voluntarily entered into by the plaintiff in November 1992 which precludes initiation of the instant action. Alternatively, defendant City of Belington suggests that a § 1983 action cannot be maintained upon the doctrine of respondeat superior.

By Order entered December 19, 1994, the Court advised the parties that it would consider the exhibits and that it would dispose of the motion in accordance with Rule 56, Federal Rules of Civil Procedure. Plaintiff was provided with notice of an opportunity to respond to the motion for summary judgment.

On January 20, 1995, plaintiff filed a memorandum of law in opposition to the motion. Plaintiff concedes that he executed the release-dismissal agreement but urges that his decision to execute the release-dismissal agreement was not informed or voluntary.

Release-dismissal agreements are not per se invalid as contrary to public policy. Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987). Rather, the validity of such agreements must be analyzed on a "case-by-case approach which appropriately balances the important interests on both sides of the question of the enforceability of these agreements." Id. at 399, 107 S.Ct. at 1195 (O'Connor, J., concurring in part and in the judgment).

The federal courts have had many occasions since the Rumery decision to review release-dismissal agreements and have uniformly concluded that three important interests should be considered by a court when determining whether a specific agreement should be enforced. Rumery permits enforcement of a release-dismissal agreement if (1) it was voluntary; (2) there is no evidence of prosecutorial misconduct; and (3) enforcement would not adversely affect the public interest. Coughlen v. Coots, 5 F.3d 970, 973 (6th Cir.1993); Cain v. Darby Borough, 7 F.3d 377, 380 (3rd Cir.1993); Berry v. Peterson, 887 F.2d 635, 636 (5th Cir.1989); Lynch v. City of Alhambra, 880 F.2d 1122, 1126 (9th Cir.1989); Haynesworth v. Miller, 820 F.2d 1245, 1256 (D.C.Cir.1987); Hall v. Ochs, 817 F.2d 920, 923 (1st Cir.1987) (release-dismissal agreement must be voluntary); see also, pre-Rumery case of Bushnell v. Rossetti, 750 F.2d 298, 302 (4th Cir.1984) (release-dismissal agreements can only be enforced if the decision to release was voluntary, deliberate, and informed).

From the text of Rule 56(c) of the Federal Rules of Civil Procedure, it is clear that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Motions for summary judgment impose a difficult standard on the movant; for, it must be obvious that no rational trier of fact could find for the nonmoving party. Miller v. Federal Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir.1990).

However, the "mere existence of a scintilla of evidence" favoring the nonmoving party will not prevent entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). To withstand such a motion, the nonmoving party must offer evidence from which "a fair-minded jury could return a verdict for the party." Id. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). Such evidence must consist of facts which are material, meaning that the facts might affect the outcome of the suit under applicable law, as well as genuine, meaning that they create fair doubt rather than encourage mere speculation. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985). It is well recognized that any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986).

The burden of proving the enforceability of a release-dismissal agreement is upon the party asserting it as a defense to a § 1983 claim. Coughlen v. Coots, 5 F.3d at 973.¹ In support of their motion for summary judgment, defendants cite facts which show that plaintiff's execution of the release was voluntary, that there was no prosecutorial misconduct, and that enforcement of the release will not adversely affect relevant public interests.

In particular, defendants rely on the affidavit of Gary W. Morris, II, Prosecuting Attorney for Barbour County, West Virginia. The affidavit establishes that plaintiff was not in custody at the time the release was negotiated or executed; plaintiff was represented in the criminal matter by an experienced criminal attorney; plaintiff's criminal counsel approached the prosecuting attorney about dismissal of the pending criminal charges; the prosecuting attorney agreed to dismiss the criminal charges after considering the most efficient way to utilize the resources of the Office of Prosecuting Attorney; and the plaintiff conferred with his attorney prior to executing the release. These facts, if uncontested, meet defendants' burden of asserting the release as a valid defense to plaintiff's claims.

To counter these facts, plaintiff has submitted an affidavit which denies that he knowingly and voluntarily executed the release. Plaintiff has also submitted the affidavit of R. Mike Mullens, an experienced attorney who represented plaintiff on the criminal charges. Defense counsel's affidavit does not corroborate the representations made by plaintiff in his affidavit. Moreover, Mr. Mullens' affidavit does not, in any significant manner, contradict the affidavit of Prosecutor Morris.

The first critical interest which must be considered is whether plaintiff's execution of the release agreement was voluntary. At least six factors have been identified as relevant to this inquiry: (1) the sophistication of the criminal defendant; (2) whether the defendant was in custody when he made the agreement; (3) whether the defendant was represented by counsel who drafted the agreement; (4) whether the defendant had ample time to consider the agreement before signing it; (5) the nature of the criminal charges; and (6) whether the agreement was formed under judicial supervision. Rumery, 480 U.S. at 394, 401-402, 107 S.Ct. at 1192-93, 1196-97; Hill v. City of Cleveland, 12 F.3d 575, 578 (6th Cir.1993).

In considering all matters of record, the Court finds that plaintiff knowingly and voluntarily released the claims he now seeks to prosecute. While the record establishes that plaintiff was youthful at the time the incident occurred (age 22), he was an adult. In addition, he is a high school graduate, and although he has not received advanced formal education, his affidavit reflects that he is articulate and capable of comprehending the consequences of signing a release. The release language used is simple and easy to comprehend; it is not, by any standards, a complex legal document typical of liability releases. Moreover, plaintiff's "lack of sophistication was offset by the presence of a knowledgeable and experienced defense attorney." Hill v....