Preast v. McGill

• Decision Date: 10 September 1999
• Docket Number: No. CIV. A. 2:98-1089.,CIV. A. 2:98-1089.
• Citation: 65 F.Supp.2d 395
• Parties: Ronald PREAST, Plaintiff, v. Brian McGILL & John Gainer, Defendants.
• Court: U.S. District Court — Southern District of West Virginia

65 F.Supp.2d 395

Ronald PREAST, Plaintiff, v. Brian McGILL & John Gainer, Defendants.

No. CIV. A. 2:98-1089.

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

September 10, 1999.

COPYRIGHT MATERIAL OMITTED

Lisa A. Moncey, Campbell & Torkaly, Charleston, WV, for plaintiff.

Lisa Curry, Asst. U.S. Attorney, for defendant.

ORDER

HALLANAN, Senior District Judge.

Currently pending before the Court are Defendants United States Deputy Marshal John Gainer's ("Deputy Gainer") and United States Deputy Marshal Brian McGill's ("Deputy McGill") Motions to Dismiss or Alternatively for Summary Judgment which were filed separately and based upon separate grounds. Plaintiff, Ronald Preast filed a Response to Defendant McGill's Motion to Dismiss. However, it appears to the Court that Plaintiff's Response should be a response to Deputy Gainer's Motion to Dismiss and not Deputy McGill's as the grounds set forth therein respond only to Deputy Gainer's Motion. Preast has not addressed the issues advanced by Deputy McGill's Motion to Dismiss. Having reviewed said motions, as well as all memoranda and supplemental memoranda both in support and opposition, as well as all relevant case law, the Court is now prepared to issue its ruling.

Ronald Preast filed a Bivens¹ action in the District Court seeking damages while alleging that Deputy McGill and Deputy Gainer violated his constitutional rights on November 5, 1996, by using excessive force, causing bodily harm, falsely arresting and illegally incarcerating him, and finally, misleading a Magistrate Judge by filing fraudulent affidavits in support of Preast's arrest.

I. BACKGROUND

A. Plaintiff Preast's Account of Events on November 5, 1996

On November 5, 1996, Preast appeared, pro se, at the former United States District Courthouse, for the Southern District of West Virginia, located in Charleston, for a hearing before the Honorable Chief Judge Charles Haden. At the conclusion of said hearing, Preast proceeded to the Clerk's office and sat in a public area while talking on a telephone. Preast alleges that he was not interfering with the operation of said office, nor obstructing access, or the normal business activities. Compl. at 3. Preast next alleges that Deputy McGill and Deputy Gainer proceeded to the Clerk's office where they instructed Preast to leave the federal building. Id. Plaintiff contends that when the deputies arrived they "jerked" the phone out of his hand, was grabbed by both arms, "`carried' down the hallway, slammed against the wall, thrown into the elevator, and slammed against the elevator wall (both face first)." Id. Preast states that he indicated to the deputies that he did not wish to leave the Clerk's office, that he was in a public area and that he had done nothing wrong. Id. at 4. Despite Preast's plea, however, he contends that he was forcibly escorted to the front of the building where a television news crew happened to be videotaping the entrance of said building. The news crew caught the entire event on video.

In his Complaint, Preast next advances that he turned around and began to reenter the building while placing his hands into his pockets. According to Preast, when he reentered the building, he was grabbed by the deputies, beaten and wrestled to the floor. Id. Preast was arrested and subsequently charged with violating Title 18, United States Code, Section 111 (forcibly resisting, opposing, or impeding a U.S. Marshal who was engaged in the performance of his duties), and 41 C.F.R. § 101-20.305 (engaging in disorderly conduct and creating a nuisance).²

After said arrest and overnight incarceration, Preast states that the deputies submitted an affidavit to United States Magistrate Judge, Jerry Hogg, in support of the criminal Complaint against him.³ Preast alleges that the sworn affidavits given by the deputies are fraudulent in that said deputies' "falsely and deliberately testified that Preast charged at them, pushed them and tried to get past them." Id. at 4. Preast further contends that the deputies "falsely and deliberately stated that Preast wrestled the deputies to the ground." Id. As a result of said deputies alleged wrongs as set forth herein, Preast was incarcerated for one day, subjected to an indictment on felony charges, forced to undergo psychiatric testing and evaluation, and placed on probation two different times. Id. Therefore, Preast claims that he has been irreparably harmed as a result of the "deprivation of his constitutional rights," and further, Preast claims that "such harm can only be redressed by the judicial system and an award of monetary damages." Id. The deputies account of the aforementioned events are very different, however.

B. Defendants' Deputy Gainer and Deputy McGill's Accounts of Events on November 5, 1996

It is not disputed that on November 5, 1996, Preast attended a hearing in front of the Honorable Chief Judge Haden, however, that is about the only factual piece of information that the parties agree upon. According to Deputy Gainer, on said date, he was notified that Judge Haden had called the U.S. Marshals Service to report that a hearing had occurred that morning during which Preast had become very upset. Def. Mot. Dismiss Ex. G at 1 (Gainer Decl.) Judge Haden requested that the Marshals Service advise the Court Security Officers of the situation. Id. A few minutes later, Deputy Gainer was notified that Preast was sitting in the Clerk's office. Further, both deputies state that according to Deputy Clerk Nora Sims, Preast stated that he was going to sit in the Clerk's office until Judge Haden restored his rights.⁴ (Gainer Decl. at 1); see Def. McGill's Mot. Dismiss Ex. A at 1 (Aff.McGill).

According to Deputy McGill and Deputy Gainer, they approached Preast as he was talking on the phone in the hallway.⁵ The deputies then advised Preast that he would have to leave the building, at which point, "Preast became loud, belligerent and demanded that he be allowed to stay." (Gainer Decl. at 2); (Aff. McGill at 1). Preast allegedly continued his rant by stating that, "he was there for his trial and would not leave until Judge Haden restored his rights." (Aff. McGill at 1).

Because of Preast's explosive behavior towards the deputies, according to Deputy Gainer and Deputy McGill, they took Preast by the arm to escort him from the building. Deputy Gainer states that Preast was "visibly upset and his tone was excited and combative." (Gainer Decl. at 2). Deputy McGill states that when they escorted Preast from the building, Preast resisted their efforts and "screamed at [them]." (Aff. McGill at 2). Prior to escorting Preast from the Courthouse, however, the deputies advised Preast to get an attorney before he attempted to return, wherein Preast allegedly replied that "attorneys were the problem." (Gainer Decl. at 2).

After Preast was escorted through the front of the Courthouse, the deputies remained just inside the front doors waiting to see if Preast would leave. However, as Preast exited the building he noticed a television news cameraman. According to Deputy Gainer, the presence of the cameraman "appeared to fuel Preast's agitation." (Gainer Decl. at 2-3). Preast then turned and ran back toward the building grabbed the front door, threw it open using some force, and began to shout, inter alia, for the deputies to come outside onto the sidewalk. Id. at 3. Ignoring Preast's taunts, Deputy Gainer contends that he advised Preast if he came back into the building he would be placed under arrest. Id. Despite the warnings, however, Preast reentered the Courthouse at which time Deputy Gainer grabbed Preast by the arm. Id. Both deputies contend that Preast began to struggle and tried to pull away. Id.; (Aff. McGill at 3). A brief struggle ensued, where according to the deputies, Preast was able to pull both of them to the floor. After said struggle, the deputies were able to contain Preast and place him in handcuffs and then transport him to the cellblock located in the U.S. Marshals Service office.

Preast appeared at a detention hearing before Magistrate Judge, Jerry D. Hogg on November 6, 1996. Def. Gainer's Mot. Dismiss Ex. I. Preast asked to make a statement to the court. Preast did not make mention to the Judge that the deputies used excessive force during his arrest nor did he complain of any physical injuries as a result thereof. Id. However, Preast did apologize to the court, Judge Haden, and the deputies, stating that he had become obsessed with his case against IBM. Id. at 5. Preast specifically stated, however, "What I did yesterday evening was wrong." Id. at 6. Preast, who was represented by counsel in the criminal matter entered into a Pretrial Diversion Agreement. Def. Gainer's Mot. Dismiss Ex. B. In said Agreement, Preast specifically "accept[ed] responsibility" for his behavior on November 5, 1996. Id. at 1. After the successful completion of the Diversion Program, the criminal Complaint against Preast was dropped.

C. The Video of Events on November 5, 1996

Normally, in a case where individuals present different accounts of the same event, the Court is charged with the difficult assignment of determining which individuals are telling the truth. Had it not been for the video detailing the account of the encounter between Preast and said deputies, the Court would have had a much more difficult time rendering a decision. Fortunately, the video has provided the Court with a different lens to view the events that took place on said date.

The video provides a much different account of events than Preast has advanced to the Court. The video begins with a picture of the seal from the former United States District Courthouse. That picture runs approximately fifteen seconds. Unfortunately, there is no sound to the entire video. The video then breaks to the action scene of Preast abruptly turning away from the cameraman and hastily walking back to the entrance of the Courthouse in...