Robinson v. Miller, CIVIL ACTION NO. 2:14-cv-00330

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Docket NumberCIVIL ACTION NO. 2:14-cv-00330
PartiesGREGORY ROBINSON, Plaintiff, v. S.W. MILLER, et al., Defendants.
Decision Date10 September 2015

S.W. MILLER, et al., Defendants.

CIVIL ACTION NO. 2:14-cv-00330


September 10, 2015


Pending before the Court are Defendants S.W. Miller, E.M. Peterson, E.R. Moyer, and City of South Charleston's Motion for Summary Judgment ("Defendants' Motion"), (ECF No. 34), and Plaintiff's Motion for Partial Summary Judgment Against Defendants S.W. Miller, E.M. Peterson, and E.R. Moyer, (ECF No. 36). For the reasons discussed herein, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion, (ECF No. 36), and DENIES Defendants' Motion, (ECF No. 34), in its entirety.

I. Background

This case arises out of the actions of Defendants Miller, Peterson, and Moyer (together, the "Individual Defendants") seeking arrest warrants for Plaintiff and then executing those warrants. "Plaintiff . . . resides in Charleston, Kanawha County, West Virginia, and is a citizen of the State of West Virginia." (ECF No. 1, Ex. 1 ¶ 1.) Defendant Miller "is a patrolman with the South Charleston Police Department" (the "Police Department"). (Id. ¶ 2.) Defendants Peterson and

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Moyer are "detective[s] with the [Police Department]." (Id. ¶¶ 3-4.) Defendant City of South Charleston ("Defendant City") "is a political subdivision of the State of West Virginia located in Kanawha County, West Virginia." (Id. ¶ 5.) Defendant City "operates the [Police Department] and employs, oversees, and supervises the conduct of its officers, consisting primarily of patrol officers and detectives." (Id. ¶ 5.)

Defendant Miller "was dispatched to the Walmart Supercenter in South Charleston, West Virginia" (the "Walmart Store") on "July 16, 2012 . . . in response to a report of employee theft." (ECF No. 39 at 2; see ECF No. 97 at 1.) When he arrived at the Walmart Store, Defendant Miller met with Paul Higginbotham—the Walmart Store's Asset Protection Manager (the "Walmart APM"). (ECF No. 39 at 2; ECF No. 97 at 1.) The Walmart APM reported to Defendant Miller that surveillance video showed three employees stealing Apple iPods. (ECF No. 39 at 2; ECF No. 97 at 1.) The Walmart APM then showed Defendant Miller surveillance video of two thefts. (ECF No. 39 at 3.)

The first surveillance video was of a theft that occurred on July 6, 2012. (ECF No. 97 at 1.) This video included images of two Walmart Store employees—Jeremy Hartwell and Jirald Davis—and shows Hartwell removing iPods from a display case at the Walmart Store. (Id. at 1-2.)

The second video showed an additional theft that occurred on July 10, 2012. (Id. at 2.) This video included images of three Walmart Store employees—Hartwell, Davis, and Plaintiff—and again showed Hartwell removing iPods from a display case.1 (Id.; see ECF No. 39 at 3.)

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"Shortly after reviewing the videotape, [Defendant] Miller interviewed . . . Davis at the [Walmart Store]." (ECF No. 39 at 3.) Defendant Miller later testified that Davis provided a statement to him at this time, in which Davis noted that "he knew . . . Hartwell was taking the iPods and even offered to give [Davis] one." (ECF No. 34, Ex. C (Miller Dep.) 42:19-43:22.) Defendant Miller did not speak with either Hartwell or Plaintiff before leaving the Walmart Store, as they "were both off work that day." (ECF No. 39 at 3.)

On July 18, 2012, Defendant Miller "applied for a warrant for . . . Hartwell." (ECF No. 97 at 2.) "[Defendant] Miller executed the warrant and arrested Hartwell on" the same date. (Id.) Either on or after this date, Hartwell provided the following signed statement on a Police Department investigative statement form (the "Hartwell Statement"):

[Plaintiff] and [Davis] talked me into doing it again. They were suppose [sic] to cover me and block the cameras under the agreement I would give them each one of the Ipods.

(ECF No. 34, Ex. G.) The Hartwell Statement is not dated. (See id.)

Defendant Miller "applied for arrest warrants for Davis and Plaintiff on July 19, 2012." (ECF No. 97 at 2; ECF No. 37 at 2.) To procure a warrant for Plaintiff's arrest, Defendant Miller submitted a criminal complaint with an accompanying affidavit (the "First Warrant Application"). (ECF No. 34, Ex. A (providing the First Warrant Application, which lists Plaintiff as the "Defendant" and Defendant Miller as the "Complainant").) This criminal complaint alleges that, "[o]n or about 07-12-2012 in Kanawha County, West Virginia," Plaintiff committed the offenses of embezzlement in violation of West Virginia Code § 61-3-20 and fraudulent schemes in violation of West Virginia Code § 61-3-24d. (Id. at 1.) This criminal complaint further states that the

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"complaint is based on" an attached affidavit (the "First Warrant Affidavit"). (See id.) The First Warrant Affidavit "was in all respects identical" to the affidavits Defendant Miller submitted to procure the arrests of Hartwell and Davis. (ECF No. 97 at 2.) The First Warrant Affidavit provides the statutory language for the offenses of embezzlement and fraudulent schemes. (ECF No. 34, Ex. A at 2.) The First Warrant Affidavit also includes a "facts" section, which provides the following, in its entirety:

On Monday 16th day of July 2012, I was dispatched to Wal-Mart located at 2700 Mountaineer Blvd. for a report of employee stealing. Upon arrival I spoke with listed comp. Paul Higginbotham the store APM who stated that 3 employees had been stealing Apple IPods and accessories from the electronic department. Mr. Higginbotham stated that when he reviewed the surveillance videos on Thursday 12th day of July and saw that on Friday July 6th he saw [sic] listed suspect #1 Jeremy Hartwell and listed suspect #2 Jirald Davis were observed [sic] proceeding towards the MP3 player display case. At around 11:54 hours, both suspects begin to look around the department and act in a suspicious manner. Mr. Davis then turns his back to Mr. Hartwell who uses the department keys and enters the MP3 display case. While Mr. Hartwell enters the case Mr. Davis begins to stretch and places his arms above his head and continues to look around the department. As a customer's [sic] approaches Mr. Davis proceeds to their location and directs then [sic] away from the electronics counter and MP3 player display case.
Mr. Hartwell then enters the display case and begins to select Apple IPods where he is then observed concealing the merchandise into his left pocket. Mr. Davis then turns around and observes the activity taken [sic] place and selection and concealment of the merchandise. Mr. Hartwell continues to select additional IPods, also placing them into his pant pocket. After Mr. Hartwell finishes his selection and concealment both suspects walks [sic] away from the area.
The second incident happened on Tuesday July 10th were [sic] Mr. Hartwell was standing by the same display case. Mr. Hartwell then proceeded towards the MP3 display case around 2114 hours along with suspect #3 [Plaintiff] and Mr. Hartwell enters the case at 2115 hours and Mr. Davis immediately proceeds over to the same location where he begins to talk to [Plaintiff]. At 2116 hours Mr. Hartwell begins to select merchandise (IPods) from the display case concealing them into the right pants pocket and Mr. Davis continues to observe him and distract the other associate from noticing the activity. After concealing the items Mr. Hartwell closes the display case at 2117 hours and Mr. Davis proceeds to walk away towards the electronics register.
Mr. Higginbotham stated after reviewing several other days of surveillance video from Mr. Hartwell's shifts over previous weeks and Asset Protection working

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with ZMS Seth McCormick to verify on-hands and PI accuracy of Apple IPods in the display case and comparing to surveillance video of the selection and concealment of merchandise, an event value was entered into the case file of $1975.00 for a total of 8 items. I spoke with Mr. Davis in the LP office at Wal-Mart and before he could be given his Miranda's Warning he stated he knew Mr. Hartwell was taking the items and even offered to give him one but Mr. Davis stated he didn't take any and didn't help Mr. Hartwell. There are videos of all the items that were taken by Mr. Hartwell. I will be obtaining warrants on all 3 suspects for Embezzlement and Fraudulent Schemes.
On Tuesday 17th day of July 2012, I spoke with Greg Eads who works at Kanawha Valley Fine Jewelry #4 in Dunbar and he stated that Jeremy Hartwell had sold them a [sic] Apple Touch 64GB IPod and the numbers match with the ones that he stole from Wal-Mart. While looking at his other IPod in the case I found one that was similar to the one that Mr. Hartwell had sold them, the numbers match the ones that were stolen by Mr. Hartwell. Mr. Eads stated that a girl name [sic] Billie Joe Jones Ohio ID# RP283283 had sold it to them the same day that Mr. Hartwell sold his. This occurred at Wal-Mart located at 2700 Mountaineer Blvd. South Charleston, WV 25309 Kanawha County.

(Id. at 2-3.) Defendant Miller did not provide any additional oath or affirmation detailing the facts surrounding these incidents other than the First Warrant Affidavit—and the accompanying criminal complaint—when procuring an arrest warrant for Plaintiff. (See ECF No. 35 at 2; ECF No. 97 at 2.)

A Kanawha County magistrate judge subsequently issued warrants for Hartwell, Davis, and Plaintiff. (ECF No. 35 at 2.) The magistrate...

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