Ware v. James City County, Virginia, Civil Action No. 4:08cv8.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtMark S. Davis
Citation652 F.Supp.2d 693
PartiesW. Walker WARE, IV, Plaintiff, v. JAMES CITY COUNTY, VIRGINIA, Officer E. James, Officer Miller, Senior Officer Sten, and Sergeant McMichael, Defendants.
Decision Date04 September 2009
Docket NumberCivil Action No. 4:08cv8.

Page 693

652 F.Supp.2d 693
W. Walker WARE, IV, Plaintiff,
v.
JAMES CITY COUNTY, VIRGINIA, Officer E. James, Officer Miller, Senior Officer Sten, and Sergeant McMichael, Defendants.
Civil Action No. 4:08cv8.
United States District Court, E.D. Virginia, Newport News Division.
September 4, 2009.

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Timothy M. Murphy, Kevin P. Shea, for Plaintiff.

Jeremy D. Capps, for Defendant.

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OPINION AND ORDER

MARK S. DAVIS, District Judge.


The plaintiff, W. Walker Ware, IV ("Ware" or "Plaintiff"), filed this civil rights action asserting claims under 42 U.S.C. § 1983 and Virginia law. This matter is before the Court on a Motion for Summary Judgment filed by defendants James City County ("County"), Officer E. James ("James"), Officer Miller ("Miller"), Senior Officer Sten ("Sten"), and Sergeant McMichael ("McMichael") (collectively, "Defendants"). The motion was fully briefed, and oral argument was held on August 4, 2009, the same morning that trial was scheduled to begin.1 At the hearing, the Court indicated that it intended to deny Defendants' motion in part and grant it in part. Because James stated that he planned to file an interlocutory appeal of the Court's stated intention to deny his motion for summary judgment, trial of the matter did not take place. The Court instead indicated that it would issue an order reflecting the reasons for its ruling. Having now had the opportunity to more carefully examine the summary judgment briefs and the evidence submitted to the Court, the Court has revised its originally-stated intentions and determined that Defendants' motions should be granted in their entirety.

I. Factual and Procedural History2
A. Sword incident

On the evening of January 31, 2009, Ware and Anthony Dail ("Dail") were involved in an incident at Dail's residence involving a sword. (Br. In Supp. Ex. 13, R. Cloyd Dep. 22:12-23:10, Docket No. 50.) While Ware had the sword in his hand and was discussing how he might defend himself with it, Dail suddenly flung his hand out and hit Ware. (Id.) A beer bottle that had been in Ware's hand somehow ended up hitting Ware's mouth, which upset Ware. (Id.) For reasons that are somewhat unclear, based on the events described above, Dail called the James City County Police Department around 6:00 p.m. to report that he had been assaulted by Ware with a sword. (Id. at 23:19-20; Ex. 1, Dispatch Summary, pg. 1.)

Officers Miller and Sten were dispatched to investigate Dail's complaint, and Dail stated that he had been assaulted by Ware. (Id. at Ex. 14, Miller Dep. 6:7-11; Ex. 11, Sten. Aff. 1.) Miller and Sten then went to Randy Cloyd's home, which is where Randy Cloyd and Ware were at the time, to investigate Dail's complaint. Randy Cloyd freely shared his version of the

Page 696

events with the officers, since he had been there at the time of the incident. Randy Cloyd stated that he did not believe that Dail ever came into contact with the sword. (Id. at Ex. 13, R. Cloyd Dep. at 23:19-20.) Ware, on the other hand, was uncooperative with the investigating officers and would not answer their questions. (Rebuttal Br., Ex. 1, Police Report, Docket No. 60.)3 The police report indicates that Ware had a small cut on his lip, and that Dail had a minor scratch on his hand, for which he declined medical attention. (Id.) Miller's police report also reflects that "[a]ll parties were highly intoxicated" and that he "was unable to determine what had occurred."4 (Id.) Miller having decided not to take further action, the parties were then "advised on the process to obtain warrants" for arrest from the Magistrate and the officers departed. (Id.)

B. Dail's complaint of harassment

Several hours later, around 11:25 p.m., Dail again called the police to report that he was being harassed by Ware and Randy Cloyd and requested that the police "remind them of what was said earlier by officer on [the] earlier call."5 (Br. In Supp. Ex. 3.) There is no evidence as to what specifically Dail wanted Ware and Randy Cloyd to be reminded of, nor is there any evidence as to which police officer Dail was referring. James was dispatched to respond to Dail's call since he had taken over the night shift. (Id. at Ex. 18, James Dep. 9:15-16.) James spoke by telephone to Dail, who advised that Ware and Randy Cloyd were harassing him. (Id. at 10:11-23.) Dail also advised James that Ware and Randy Cloyd might be located at a residence occupied by Daphne Tennille ("Tennille").6 (Id. at 10:24-11:3.)

The Tennille residence was across the street from Dail's home.7 (Id. at Ex. 15, Tennille Dep. 12:21-22.) After receiving a call from Ware earlier that evening, Tennille had invited Ware, Randy Cloyd, and Terry Cloyd to come over to her house. (Id. at Ex. 15, Tennille Dep. 26:9-13.) Tennille testified that Ware and the Cloyds arrived around 8:30 p.m. and brought a bottle of wine, and possibly some beer, with them when they came to her house. (Id. at 26:14-24; 27:21-24.)

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Although Tennille states that, during a telephone conversation around 7:00-7:30 p.m., Ware had requested permission "to stay at the house," (Id. at 24:1-10) the portions of Ware's deposition that were submitted to the Court do not clearly reflect Ware's intentions as to where he would stay the night, or how long he would stay (Ex. 16, Ware Dep. 71:5-25).

C. Interaction at Tennille's residence

The parties dispute the events that occurred when James arrived at the Tennille residence to investigate Dail's complaint, although the points most relevant to James' summary judgment argument have not been disputed by Plaintiff. James asserts that, when he arrived at the Tennille residence, he was investigating the Dail complaint of harassment and also a possible assault, although it is not completely clear as to when or how James learned of the previous incident involving the possible assault with the sword. (Id. at Ex. 18, James Dep. 8:21-25; 16:13-25.) When Tennille came to the door, James told her that he needed to talk to the two men in her house, and he wanted them outside.8 (Id. at Ex. 15, Tennille Dep. 35:17-20.) James would not answer any of Tennille's other questions such as what men he wanted, what he wanted them for, or provide her with any other information. (Id. at 35:24-36:1.) According to Tennille, James then "barged into the house" or "pushed the door open and came into the house."9 (Id. at 35:24-36:1; 47:18; 36:6-20.)

Ware was standing in the hallway with Tennille when she went to the door. (Id. at 31:19-32:1.) After entering the house, James told Ware that he wanted to talk to him, and his friend (presumably referring to Randy Cloyd), whereupon James alleges that Ware swore at him and refused. (Id. at Ex. 4, Police report, pg. 1.) James indicates that Ware then stepped into him in a lunging manner and pointed his finger in James' face. (Id.) James told Ware to take two steps back, which Ware refused to do and then Ware threatened James with bodily harm by saying "I'm not going to, I'll take you down!" (Id.) James advised Ware that he would be arrested for disorderly conduct and obstruction of justice if he continued his actions. (Id.) Ware nevertheless continued to refuse to speak to James, allegedly swore at him, and advised James to "go ahead and arrest me!" (Id.) James indicates that, at that point, he requested that another unit respond to the residence. (Id.)

Ware, Tennille, Randy Cloyd, and Terry Cloyd were all inside the Tennille residence when James came in. Ware testified that "[i]t was like an explosion into the house, and things started happening the second [James] broke through that door." (Id. at Ex. 16, Ware Dep. 100:6-9.) He testified that the occupants of the home were not even sure who James was looking for. (Id. at 116:3-17.) James could not see Randy Cloyd when he came in, and so

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Tennille, among others, kept asking for the names of the persons that James wanted to see, presumably because James had only indicated that he wanted to see the two men in the house. (Ex. 15, Tennille Dep. at 36:22-37:25.)

At some point during the incident, Tennille asked James if he had a warrant to come into her house, to which James allegedly responded that "he didn't need a warrant to come in the house, that he could come in any time he wanted to." (Id. at 46:4-20.) Tennille also ordered James to leave at some point during the incident, although it is not clear as to precisely when that occurred. (Id. at 46:21-25.) On the other hand, Tennille indicates that she told James at least once while he was in the house, and at least once when she spoke to James after he backed out of the house, that James could speak to Ware inside the house. (Id. at 49:1-24.)

Both Ware and Tennille indicate that, later in the incident, Ware actually did agree to speak with James, but only either inside the house or behind the house, and not by himself. (Id. at Ex. 15, Tennille Dep. 42:3-7; Ex. 16, Ware Dep. 110:4-11.) James, however, refused and insisted on speaking to Ware "outside," presumably in the front of the house. (Id. at Ex. 15, Tennille Dep. 42:8-16.) James apparently never said the names of the two persons he wished to speak to, so the occupants of Tennille's home were allegedly unaware, at the time James stepped back out of the home, exactly who James wanted to speak to. (Id. at 48:6-25.)

Some of the more minor details are disputed as to what occurred between James and Ware. Ware testified that he did not yell or raise his voice with James during the incident. (Id. at Ex. 16, Ware Dep. 106:1-12.) On the other hand, Tennille's testimony is that Terry Cloyd was yelling, and that Ware raised his voice when James came toward Tennille. (Id. at Ex. 15, Tennille Dep. 47:1-6.) She further testified that Ware was telling James to get out of the house unless he had a warrant. (Id. at 47:8-10.) Tennille testified that Ware got in James' face, and that James was in a "real rough state of mind" during the incident. (Id. at...

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  • White v. City of Burlington, 1:18-cv-00969
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 30, 2019
    ...that the exclusionary rule and the fruit of the poisonous tree doctrine simply do not apply in civil cases. Ware v. James City Cty., 652 F. Supp. 2d 693, 705-06 (E.D. Va. 2009) ("In other words, for this court to exclude the evidence of Plaintiff's criminal activity found by [the polic......
  • Vollette v. Watson, Civil Action No. 2:12cv231.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 1, 2013
    ...burden of proof and persuasion with respect to a defense of qualified immunity....” 8Id.; see Ware v. James City County, Virginia, 652 F.Supp.2d 693, 702 (E.D.Va.2009) (quoting Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.1992)) (“The qualified immunity determination should normally be m......
  • Guerrero v. Deane, No. 1:09cv1313 (JCC).
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 27, 2010
    ...qualified immunity determination should normally be made at the summary judgment stage in the litigation.” Ware v. James City County, 652 F.Supp.2d 693, 702 (E.D.Va.2009) (citing Schultz v. Braga, 455 F.3d 470, 476 (4th Cir.2006)). “Qualified immunity[, however,] does not override the ordin......
  • Chadwell v. Brewer, Civil Action No. 2:14–CV–00003.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • October 1, 2014
    ...S.Ct. 2014, 141 L.Ed.2d 344 (1998) (citations omitted). It is not applicable to this civil action. See Ware v. James City Cnty., Va., 652 F.Supp.2d 693, 705 (E.D.Va.2009) (“[T]he fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant”). To the extent that Chadwell......
  • Request a trial to view additional results
30 cases
  • White v. City of Burlington, 1:18-cv-00969
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 30, 2019
    ...that the exclusionary rule and the fruit of the poisonous tree doctrine simply do not apply in civil cases. Ware v. James City Cty., 652 F. Supp. 2d 693, 705-06 (E.D. Va. 2009) ("In other words, for this court to exclude the evidence of Plaintiff's criminal activity found by [the polic......
  • Vollette v. Watson, Civil Action No. 2:12cv231.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 1, 2013
    ...burden of proof and persuasion with respect to a defense of qualified immunity....” 8Id.; see Ware v. James City County, Virginia, 652 F.Supp.2d 693, 702 (E.D.Va.2009) (quoting Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.1992)) (“The qualified immunity determination should normally be m......
  • Guerrero v. Deane, No. 1:09cv1313 (JCC).
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 27, 2010
    ...qualified immunity determination should normally be made at the summary judgment stage in the litigation.” Ware v. James City County, 652 F.Supp.2d 693, 702 (E.D.Va.2009) (citing Schultz v. Braga, 455 F.3d 470, 476 (4th Cir.2006)). “Qualified immunity[, however,] does not override the ordin......
  • Chadwell v. Brewer, Civil Action No. 2:14–CV–00003.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • October 1, 2014
    ...S.Ct. 2014, 141 L.Ed.2d 344 (1998) (citations omitted). It is not applicable to this civil action. See Ware v. James City Cnty., Va., 652 F.Supp.2d 693, 705 (E.D.Va.2009) (“[T]he fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant”). To the extent that Chadwell......
  • Request a trial to view additional results

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