Smith v. Ray

• Decision Date: 28 February 2012
• Docket Number: Civil No. 2:08CV281.
• Citation: 855 F.Supp.2d 569
• Parties: Amanda Deanne SMITH, Plaintiff, v. Officer R.R. RAY and Officer Jay Keatley, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

855 F.Supp.2d 569

Amanda Deanne SMITH, Plaintiff,

v.Officer R.R. RAY and Officer Jay Keatley, Defendants.

Civil No. 2:08CV281.

United States District Court,

E.D. Virginia,

Norfolk Division.

Feb. 28, 2012.

Darren Marshall Hart, Hart & Associates PC, Richmond, VA, for Plaintiff.

Andrew Brian Pittman, Troutman Sanders LLP, Leslie Louis Lilley, Mark Douglas Stiles, Christopher Scott Boynton, Office of the City Attorney, Michael Angelo Beverly, Terry Lynn Jenkins, City of Virginia Beach City Attorney's Office, Andrew Brian Pittman, Troutman Sanders LLP, Virginia Beach, VA, for Defendants.

OPINION AND ORDER

DOUGLAS E. MILLER, United States Magistrate Judge.

Plaintiff, Amanda Deanne Smith (“Smith”), filed this action to recover for injuries arising from her arrest at the home of a friend on September 21, 2006. She has alleged state law tort claims, and constitutional claims under 42 U.S.C. § 1983 against two officers involved in the arrest, Officer R.R. Ray (“Officer Ray”) and Officer Jay Keatley (“Officer Keatley”). The matter is before the Court to resolve cross motions for summary judgment. On September 2, 2011, both parties filed a Consent to Jurisdiction by Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. (ECF No. 140). By Order filed November 7, 2011, the case was referred to the undersigned for all further proceedings. (ECF No. 200). The parties' cross motions are fully briefed and the Court heard oral argument on December 6, 2011. For the reasons set forth in detail below, the Court DENIES Smith's motion for summary judgment, and GRANTS in part and DENIES in part Officer Ray's motion for summary judgment and GRANTS Officer Keatley's motion for summary judgment.

I. PROCEDURAL HISTORY

An abbreviated review of the cases' long procedural history, which has included an appeal to the Fourth Circuit, is relevant and necessary to the summary judgment analysis. Plaintiff's original Complaint was filed in Virginia Beach Circuit Court, removed to this Court on June 18, 2008, and assigned case number 2:08cv281 (hereafter the “281–Complaint”). The 281–Complaint contained allegations against Officer Ray and another unknown City of Virginia Beach police officer, described in the style of the case as Unknown Officer, and in the body of the 281–Complaint as Second Officer. The claims relate to events that transpired when Smith was arrested by Officer Ray on September 21, 2006. (ECF No. 1–5). The 281–Complaint, which remains before the Court, asserts that Officer Ray used excessive force during Smith's arrest. (ECF No. 119). It also asserts that the Unknown Officer or Second Officer (now named as Officer Keatley) sexually assaulted her during a pat-down search. The 281–Complaint, as presently constituted, asserts claims against Officer Ray and Officer Keatley for assault, battery and constitutional claims under 42 U.S.C. § 1983. The Complaint also accuses Officer Ray of false imprisonment and malicious prosecution.

On September 22, 2008, Smith filed a separate action, which arose out of the same series of events. The second claim, which Smith filed directly in this Court, was assigned civil number 2:08cv449. The 449–Complaint contained all of the same factual allegations as the 281–Complaint It described the alleged actions of Officer Ray and the Unknown Officer, but did not contain the substantive claims which had been alleged against the two in the 281–Complaint. Instead, Smith named Officer Ray as well as new defendants, including a civilian, several additional officers (including Officer Keatley) their supervisors, and the City of Virginia Beach as their employer. The 449–Complaint asserted new theories of bystander, supervisory, and municipal liability under 42 U.S.C. § 1983, as well as state tort claims.

The two actions were consolidated on October 29, 2008, and eventually the Court entered an Order emphasizing that Smith's Second Amended 449–Complaint, which she filed after consolidation, would be the sole active complaint in the matter (ECF No. 52 at 2), effectively dismissing the 281–Complaint and its claims against Officer Ray and the Unknown Officer, which Smith had not included in the 449–Complaint either originally or after amendment.

The defendants filed a motion for summary judgment which was referred to a Magistrate Judge for a report and recommendation. Confirming the Magistrate Judge's recommendation, the Court granted judgment in favor of all the defendants on the federal claims set forth in the Second Amended 449–Complaint, including the claims of bystander liability against Officer Keatley and Officer Ray. The Court also declined jurisdiction of the state claims. (ECF No. 102). Smith appealed to the Fourth Circuit Court of Appeals. (ECF No. 103).

The Fourth Circuit, in an unpublished but detailed written opinion, concluded that this Court correctly dismissed Smith's claims of bystander, supervisory, and municipal liability in the Second Amended 449–Complaint and appropriately declined jurisdiction over the remaining state claims. Reviewing the evidence in the summary judgment record the Fourth Circuit identified three alleged constitutional claims underlying Smith's assertions of bystander and municipal liability. The Court first found no constitutional violation resulting from Smith's seizure as the evidence, even in the light most favorable to Smith, demonstrated that exigent circumstances and Officer Ray's reasonable suspicion that Smith was helping to harbor a missing minor child, justified Officer Ray's seizure. The opinion then noted, however, that a reasonable juror could have found constitutional violations in both Officer Ray's use of excessive force to effect the seizure and the Unknown Officer's alleged sexually invasive search. However, because none of the named defendants had sufficient notice of these alleged violations to stop them, the Fourth Circuit affirmed summary judgment on all of the bystander claims.

The Fourth Circuit also concluded that the Court erred by not considering the claims Smith originally raised in the 281–Complaint. According to the Fourth Circuit, the consolidation for trial of the 281– and 449–Complaints did not effect a merger, and the Court should have considered the constitutional and tort claims alleged against Officer Ray and the Unknown Officer. (ECF No. 107 at 11). It therefore remanded the case with instructions to revive the original Complaint for further proceedings.

After remand, Smith moved to Amend the 281–Complaint to specifically identify Officer Keatley as the Unknown Officer. The Court granted Smith's motion over the Defendant's objection. (ECF No. 120). The Court noted that Officer Keatley had notice that Smith believed he was the Second Officer on the basis of Smith's written motion filed January 23, 2009, (ECF No. 69 at 7) and on a hearing held the same day (ECF No. 94 at 10). With discovery now concluded all parties have moved for summary judgment.

II. FACTUAL ALLEGATIONS

Because all parties have moved for summary judgment, the Court reviews the facts as alleged by each. The source of Smith's encounter with the police is not disputed. On the afternoon of September 21, 2006, Officer Ray, a uniformed police officer for the City of Virginia Beach, arrived at a home on Adler Avenue to assist Tony Bullard, (“Bullard”) a private citizen, with finding T., Bullard's missing juvenile stepson. Bullard later testified that he was not married to T.'s mother and thus was not T.'s stepfather, however, this fact was not known to Officer Ray during the encounter. (Bullard Dep., ECF No. 164–3 at 1). Bullard believed that T. was staying at the Adler Avenue home, but was told by its residents that T. was now at another house on Marlewood Way. (Bullard Dep., ECF No. 148–4 at 2).

Arriving at the second address, Officer Ray and Bullard looked through a window and saw several young men standing together inside the house. Bullard tentatively identified one of the young men as his stepson. Officer Ray knocked on the door of the residence, and heard “scurrying” sounds coming from inside. (Ray Dep., ECF No. 134–1 at 6). Smith opened the door and exited the house after being instructed to do so by Officer Ray.

Officer Ray asked Smith for her name and age, and whether she was the homeowner. Smith gave the officer her first name, her age, then twenty-two, and explained that she did not reside there. Officer Ray then asked Smith if T. was inside the house.

At this point the parties' descriptions diverge. Smith claims that she answered that T. was not there. Officer Ray claims Smith made no response. Officer Ray and the civilian, Bullard, both claim that, throughout the encounter, Smith appeared unfocused and intoxicated. (Ray Dep., ECF No. 134–1 at 23) (Bullard Dep., ECF No. 148–4, at 23). Smith denies being impaired or otherwise unresponsive. No drug or alcohol tests were ever performed on Smith. Officer Ray next asked for “Joel,” an adult acquaintance of T. Smith claims she said that Joel was there, and told Officer Ray to “Hold on,” turning towards the door to get Joel. Officer Ray alleges that Smith did not respond when asked about the whereabouts of T. or Joel. As Smith turned away and opened the screen door, Officer Ray reached across her and shut it. (Smith Dep., ECF No. 134–2 at 3). Officer Ray agrees that he prevented Smith from opening the door, but claims he did so by holding it closed rather than shutting the door. (Ray Dep., ECF No. 134–1 at 11). According to Smith, Officer Ray's sudden movement to prevent her from re-entering the home startled her, and she took a step away from the house off the small stoop where they had been standing. (Smith Dep., ECF No. 134–2 at 3).

Officer Ray—allegedly concerned that Smith was attempting to flee—grabbed her arm, and Smith pulled her arm away. (Smith Dep., ECF No. 134–2 at 3; Ray Dep., ECF No. 134–1 at 20–21). Officer Ray claims that Smith then began hitting and kicking him. (Ray Dep.,...