Case 6:10-cv-01256 Document 42 Filed 04/04/12 Page 1 of 20 PageID #: 598

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA PARKERSBURG DIVISION BRIAN SAWYER, Plaintiff, v. JIM R. ASBURY, et al., Defendants. CIVIL ACTION NO. 6:10-cv-01256

MEMORANDUM OPINION & ORDER Pending before the court is the defendants Motion for Summary Judgment [Docket 24]. For the reasons discussed below, this Motion is GRANTED in part and DENIED in part. I. Background A. Facts

The instant case arises out of a domestic disturbance call on October 29, 2010, which involved Mr. Sawyer and his girlfriend. (Am. Compl. [Docket 31], 6.) Mr. Sawyer had consumed Klonopin and approximately four or five beers on that day. (Sawyer Dep. [Docket 242], at 63-64.) The defendant Mr. Asbury responded to the domestic disturbance call from Mr. Sawyers girlfriend. After speaking to Mr. Sawyers girlfriend at the house, Mr. Asbury claims that he heard Mr. Sawyer threaten his girlfriend by saying, Wait until they leave, Ill take care of you then. (Asbury Dep. [Docket 24-3], at 45.) Mr. Asbury claims that once he heard Mr. Sawyer threaten his girlfriend he decided to arrest Mr. Sawyer. It is undisputed that Mr. Asbury then handcuffed Mr. Sawyer in the house. (Am. Compl. [Docket 31], 7.)

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The parties have advanced two competing versions of the events that followed the handcuffing. Mr. Sawyer claims that Mr. Asbury forcefully moved him out of the house and, as Mr. Sawyer was being moved, Mr. Sawyer tried to kick the bottom part of the door glass. (Resp. to Def.s Mot. Summ. J. [Docket 27], at 4.) Mr. Sawyer asserts that his kick only hit the doorframe. (Id.) Once Mr. Sawyer and Mr. Asbury were on the porch and while Mr. Sawyer was still handcuffed, Mr. Sawyer claims that Mr. Asbury grabbed him by the throat and shoved him back against the guard rail on the front porch. (Id.) Mr. Sawyer claims that Mr. Asbury had him by the throat for approximately one minute and that he began to blackout during that time. (Id.) Mr. Sawyer asserts that Mr. Asbury only relinquished his hold on Mr. Sawyers throat when another police cruiser pulled up and when Mr. Sawyers girlfriend asked Mr. Asbury to stop. (Id.) According to Mr. Sawyer, after Mr. Asbury removed his hand from his throat, Mr. Asbury pushed him aggressively down the front steps of the porch and threw him into the rear passenger side of Defendant Asburys SUV police cruiser. (Id.) Mr. Asburys version of the events in the house and on the porch differs significantly from that asserted by the plaintiff. Mr. Asbury claims that after he initiated Mr. Sawyers arrest, the plaintiff began to curse and threaten the defendant and resisted walking out of the house. (Mem. Supp. Mot. Summ. J. [Docket 25], at 3.) Additionally, Mr. Asbury alleges that the plaintiff tried to kick him while they were still in the house. (Id.) Mr. Asbury also emphasizes that Mr. Sawyer pled guilty to assaulting an officer. (Id.) After the incident at the house, Mr. Asbury drove the plaintiff to the Wood County holding facility, where the second incident at issue in this case occurred. (Id. at 4.) The parties

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also disagree as to what took place at the holding facility, but there is a recording of the events submitted into evidence by the parties. Mr. Sawyers version of the events is described first. Mr. Sawyer claims that Mr. Asbury removed the handcuffs as Mr. Sawyer continued to curse at Mr. Asbury. (Resp. to Mot. Summ. J. [Docket 27], at 5.) During this exchange, Mr. Sawyer was seated on a concrete bench in the holding facility. (Id.) After the handcuffs were removed, Mr. Sawyer claims that Mr. Asbury and he exchanged words and that [s]uddenly and violently, Defendant Asbury grabbed the plaintiff by the throat. (Id. at 6.) Mr. Sawyer also claims that Mr. Asbury punched him in the face while holding him by the throat. (Id. at 7.) The other officers in the room became involved and helped bring the plaintiff to the ground in an area largely outside of the view of the recording device. While Mr. Sawyer was out of the cameras range, he claims that Mr. Asbury sat on his back and punched him repeatedly in the face while the other officers held him to the ground. (Id.) As a result of Mr. Asburys alleged actions, Mr. Sawyer sustained a broken nose and two black eyes, which required medical treatment. (Id.) The defendants present a different version of the events at the holding center. Mr. Asbury claims that after he removed Mr. Sawyers handcuffs, Mr. Sawyer became increasingly agitated and non-compliant. (Mem. Supp. Mot. Summ. J. [Docket 25], at 4.) Specifically, he claims that he requested that Mr. Sawyer stand up and provide identification, but Mr. Sawyer refused to obey. (Id.) Mr. Sawyer then allegedly leaned forward on the bench, which caused Mr. Asbury to believe that Mr. Sawyer was going to lunge at him and to perceive that he was at risk. (Id.) Because of this perceived threat, Mr. Asbury claims that he held his arm out

pushing plaintiff against the wall, which he claimed prevented Mr. Sawyer from lunging at him. (Id. at 5.) Mr. Asbury then claims that the other officers assisted him in taking Mr. -3-

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Sawyer to the ground. According to Mr. Asbury, Mr. Sawyer continued to resist attempts to handcuff him and no officer struck Mr. Sawyer in the face during the efforts to subdue him. (Id.) As a result of the events at the home and the holding center, Mr. Sawyer was charged with battery of an officer, three counts of obstruction, destruction of property, and public intoxication. (Sawyer Dep. [Docket 24-2], at 129, 11-13.) Eventually, Mr. Sawyer entered a guilty plea for battery of an officer for his actions towards Mr. Asbury. (Id. at 129, 15-16.) B. Procedural History

The plaintiff initiated the instant action by filing the Complaint on October 26, 2010 [Docket 1]. The defendants filed the Motion for Summary Judgment on January 9, 2012, and this Motion is now ripe for review. II. Summary Judgment Standard of Review To obtain summary judgment, the moving party must 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. FED. R. CIV. P. 56(a). In considering a motion for summary judgment, the court will not weigh the evidence and determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Radio Corp., 475 U.S. 574, 587-88 (1986). Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some concrete evidence from which a reasonable juror could return a verdict in his [or her] favor. Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of -4Matsushita Elec. Indus. Co., Ltd. v. Zenith

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proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere scintilla of evidence in support of his or her position. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987); Ross v. Commns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), abrogated on other grounds, 490 U.S. 228 (1989). III. Claims Against Mr. Asbury 42 U.S.C. 1983 subjects any person who, acting under color of state law, deprives an individual of his constitutional rights to civil liability. 42 U.S.C. 1983. An officer sued in his or her individual capacity pursuant to 1983 is entitled to assert the defense of qualified immunity. A. Fourth Amendment Claim: Incident at the Plaintiffs House

Mr. Sawyer claims that Mr. Asburys actions at his house constituted excessive force in violation of the Fourth Amendment. (Am. Compl. [Docket 31], 40.) In response, the

defendants claim that Mr. Asburys actions at Mr. Sawyers house did not violate the Fourth Amendment. (Am. Compl. [Docket 25], at 15.) Furthermore, the defendants argue that no reasonable officer would have believed that he was violating the plaintiffs rights under the Fourth Amendment by his actions at the house, and thus Mr. Asbury is entitled to qualified immunity. (Id. at 16.)

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The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It represents a balance between two significant interests: the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. Id. A police officer may assert qualified immunity when a plaintiff claims that the police officer used excessive force during an arrest. Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). Traditionally, determining the existence of qualified immunity required a two-part analysis by the court. Saucier v. Katz, 533 U.S. 194, 201-02 (2001). First, a court was required to determine if [t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officers conduct violated a constitutional right? Scott v. Harris, 550 U.S. 372, 377 (2007). If the court determined that the officers conduct violated a constitutional right, the court was required to determine whether the right was clearly established . . . in light of the specific context of the case. Id. However, courts are no longer required to adhere to this rigid two-step inquiry. The U.S. Supreme Court held that the sequence of analysis to determine whether qualified immunity exists is no longer mandatory, and it was committed to the discretion of the court to determine which prong of the qualified immunity test the court would consider first. Pearson, 555 U.S. at 243. The Fourth Amendment governs allegations of excessive force by a police officer during an arrest. Graham v. Connor, 490 U.S. 386, 394 (1989). The Fourth Amendment guarantees -6-

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individuals the right to be secure in their persons . . . against unreasonable seizures. U.S. CONST. AMEND. IV. A court must consider several factors when determining if an officers use of force is reasonable in light of the factual circumstances of the particular case. Graham, 490 U.S. at 396. These factors are: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. Id. The reasonableness standard is an objective evaluation and a court must determine whether the officers actions are objectively reasonable in light of the facts and circumstances confronting him, without regard to his own subjective intent or motivation. Martin v. Gentile, 849 F.2d 863, 869 (4th Cir. 1988).

However, courts are cautioned that [t]he calculus of reasonableness must embody allowance for the fact that officers are often forced to make split-second judgmentsin circumstances that are tense, uncertain, and rapidly evolvingabout the amount of force that is necessary in a particular situation. Graham, 490 U.S. at 396. The court must take the plaintiffs version of the events at the house as true when determining if there was a constitutional violation and if Mr. Sawyer is entitled to qualified immunity because the plaintiff is the non-moving party. The existence of competing versions of the facts is not sufficient to survive summary judgment; the court must determine whether Mr. Asbury violated Mr. Sawyers clearly established constitutional right in light of Mr. Sawyers version of the events. See Rowland, 41 F.3d at 174. In this case, Mr. Sawyer admits that he kicked at the door while Mr. Asbury was arresting him. Mr. Sawyer also pled guilty to assaulting a police officer. (Mem. Supp. Mot. Summ. J. [Docket 25], at 3.) Whether an individual is resisting arrest is an important consideration in -7-

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determining if an officers actions were objectively reasonable. In Mr. Sawyers recitation of the facts, he admits that he kicked at Mr. Asbury was placing him under arrest. When this admission is combined with the fact that Mr. Sawyer pled guilty to assaulting an officer, it is clear that a reasonable officer could have believed that Mr. Sawyer was resisting arrest at the house. See Elufe v. Aylward, No. 09-cv-458, 2011 WL 477685, at *6 (S.D.N.Y. Feb. 4, 2011). In light of the plaintiffs resistance and the fact that Mr. Asbury could reasonably have perceived that Mr. Sawyer posed a threat, Mr. Asburys use of force was a reasonable response to the circumstances presented during Mr. Sawyers arrest, and a reasonable officer in Mr. Asburys place would not have known that his actions violated the Fourth Amendment. See Graham, 490 U.S. at 396. Thus, the court FINDS that Mr. Asbury is entitled to qualified immunity on the plaintiffs excessive force Fourth Amendment claim because when taking Mr. Sawyers version of events, Mr. Asbury did not violate Mr. Sawyers Fourth Amendment right to be free from excessive force. B. Due Process Claim: Incident at Wood County Holding Center

The plaintiff has also claimed that Mr. Asburys actions at the Wood County Holding Center violated the Due Process Clause. In response, Mr. Asbury denies that his actions at the holding center violated due process. (Mem. Supp. Mot. Summ. J. [Docket 25], at 18.) Mr. Asbury also asserts the defense of qualified immunity, claiming that no reasonable officer would have known that such actions violated the plaintiffs due process rights because such rights were not clearly established. (Id.) The parties have offered competing versions of the events at the holding center. Because the plaintiff is the non-moving party, the court must accept the plaintiffs version of events at the -8-

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center when determining whether the plaintiffs due process rights were violated and whether Mr. Asbury is entitled to qualified immunity. However, the parties have also submitted a videotape that contains footage of the events at the holding center. The U.S. Supreme Court has found that when a videotape exists of the incident, the court may not accept the non-moving partys version of events if that version is so utterly discredited by the record such that no reasonable jury would believe it. See Scott v. Harris, 550 U.S. 372, 380 (2007) (When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that versions of the facts for purposes of ruling on a motion for summary judgment.). Thus, this court will adopt Mr. Sawyers version of the events at the holding center to the extent that those events are not blatantly contradicted by the videotape exhibits submitted by the parties. The qualified immunity analysis that the court must conduct for the incident at the holding center involves the same two-prong inquiry outlined above. The court must determine whether Mr. Asburys actions violated due process and whether that right was clearly established in light of the circumstances of the instant case. Pearson, 555 U.S. at 231. The Due Process Clause governs excessive force claims by pretrial detainees. Carr v. Deeds, 453 F.3d 593, 605 (4th Cir. 2006). A plaintiff must prove that Defendants inflicted unnecessary and wanton pain and suffering upon the detainee. Id. (quoting Taylor v. McDuffe, 155 F.3d 479, 483 (4th Cir. 1997)). The proper inquiry is whether the force applied was in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Id. (quoting Taylor v. McDuffe, 155 F.3d 479, 483 (4th Cir. 1997)). -9-

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When determining whether an officers actions violate due process, courts must consider the need for the application of force, the relationship between the need and the amount of force used, the extent of the injury inflicted, and whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm. Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008). The plaintiff is not required to demonstrate that his injuries are not de minimis. Wilkins v. Gaddy, 130 S. Ct. 1175, 1179 (2010) (This Courts decision did not . . . merely serve to lower the injury threshold for excessive force claims from significant to non-de minimis . . . .). But a court must consider the extent of the injury when determining whether the force used was necessary and when evaluating the actual force that was applied. Id. at 1178. Importantly, an officer is not justified in using physical force against a pretrial detainee solely because the pretrial detainee has verbally threatened the officer. United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990) ([W]e do not agree with appellants that mere words by a pretrial detainee can justify the use of physical force by a police officer.). When viewed in the light most favorable to Mr. Sawyer, the facts show that Mr. Asbury inflicted unnecessary and wanton pain and suffering on Mr. Sawyer while he was a detainee. According to Mr. Sawyer, the defendant Mr. Asbury grabbed him by the throat without provocation and pushed him up the wall. (Pl.s Resp. to Mot. Summ. J. [Docket 27], at 20.) Mr. Sawyer emphasizes that he did not physically assault any of the officers present at the holding center and claims that Mr. Asburys actions were unprovoked and without warning. (Id.) The videotape of the incident does not blatantly contradict Mr. Sawyers version of the events. In fact, it supports Mr. Sawyers recollection. The videotape shows that a verbal exchange

occurred between Mr. Sawyer and Mr. Asbury, which is followed by Mr. Sawyer leaning - 10 -

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forward on the cement step. Subsequently, Mr. Asbury lunges at the plaintiff and grabs him around the throat. Quickly after Mr. Asbury grabs Mr. Sawyer around the throat, the other officers surround the plaintiff. It does not appear from the videotape that Mr. Asburys actions were in response to any physical resistance or threatening actions by the plaintiff. The plaintiff was not actively resisting Mr. Asbury or physically threatening him and has only admitted to running his mouth at Mr. Asbury. Verbal threats alone, however, are insufficient to justify the use of physical force against a pretrial detainee. See Cobb, 905 F.2d at 789. When Mr. Asbury grabbed the plaintiff by the throat he was not acting in good faith to restore discipline because Mr. Sawyer was not physically resisting or threatening Mr. Asbury. Viewed in the light most favorable to the plaintiff, Mr. Asbury was acting maliciously and sadistically to cause Mr. Sawyer harm, which is shown by the fact that he grabbed Mr. Sawyer around the throat. After Mr. Asbury grabbed Mr. Sawyer by the throat, Mr. Asbury and several other officers took Mr. Sawyer down to the ground. The movement during the takedown resulted in the officers and Mr. Sawyer moving behind a wall, which blocked the camera. The plaintiff claims that Mr. Asbury was sitting on his back when Mr. Asbury punched him in the face repeatedly. While Mr. Sawyer claims that this was occurring, the placement of Mr. Sawyers feet on the videotape reveals that Mr. Sawyer was on his stomach. Three other officers in addition to Mr. Asbury surrounded the plaintiff and were beating his extremities as he was on the ground. (Sawyer Dep. [Docket 24-2], at 114-20.) Courts have found that officers may not punch pretrial detainees or prisoners in the face, and if an officer throws a punch under those circumstances, that action was intended to inflict unnecessary and wanton pain and suffering. See, e.g., Chambers v. Cnty. of Macomb, No. 03-73342, 2006 WL 1791398, at *7 (E.D. Mich. - 11 -

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June 27, 2006); Leland v. Vought, No. 4:07-cv-20, 2008 WL 4525113, at *7; see also Jones v. Buchanan, 325 F.3d 520, 529-31 (4th Cir. 2003) (finding no qualified immunity on Fourth Amendment claim against officer who knocked individual to the ground and jumped on him in holding center); Bailey v. Kennedy, 349 F.3d 731, 744 (4th Cir. 2003) (finding no qualified immunity for officer on Fourth Amendment claim arising from actions at holding center when plaintiff was hit and kicked while unarmed and lying on floor). Although those cases often involve handcuffed prisoners or pretrial detainees and Mr. Sawyer was not handcuffed, the rationale is the same in this instance because Mr. Sawyer was restrained by the other officers. Additionally, according to Mr. Sawyers version of the events, Mr. Sawyer was not resisting or kicking at the time Mr. Asbury was hitting him in the face. (Sawyer Dep. [Docket 24-2], at 120, 8-22.) Adopting Mr. Sawyers version of the events, the defendant Mr. Asbury was sitting on his back and punched him in the face at the same time that the other officers were hitting his other extremities. Punching Mr. Sawyer in the face was not necessary to control the plaintiff. The only purpose Mr. Asbury had in punching Mr. Sawyer in the face while on his back was to inflict wanton and malicious pain. The punches were not intended to restore discipline because Mr. Asbury was on Mr. Sawyers back and the other officers were at his limbs. Thus, taking the facts in the light most favorable to the plaintiff, the court FINDS that Mr. Asburys actions inflicted unnecessary and wanton pain and suffering on the plaintiff and violated Mr. Sawyers due process rights as a pretrial detainee. The court must next determine whether a reasonable officer in Mr. Asburys circumstances would have known that his actions violated Mr. Sawyers due process rights. The - 12 -

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right of a pretrial detainee to not be subject to excessive force is clearly established. Orem v. Rephann, 523 F.3d 442, 447-48 (4th Cir. 2008) (In 2005, it was clearly established that an arrestee or pretrial detainee is protected from the use of excessive force.). Additionally, courts have found that officers may not hit pretrial detainees in the face when the pretrial detainee is not resisting or is restrained. See, e.g., Simms v. Bruce, 104 Fed. Appx. 853, 857 (4th Cir. 2004) (slip op.) ([I]n September of 1998, it was clearly established that pre-trial detainees were protected from wanton beatings that exceeded good faith efforts to restore order.); Mesmer v. St. Marys Cnty., No. 10-1053, 2010 WL 4791884, at *8 (D. Md. Nov. 18, 2010). A reasonable officer in Mr. Asburys circumstances would have recognized that he was violating a clearly established right when he punched Mr. Sawyer in the face at the holding center. Thus, the court FINDS that Mr. Sawyers right to be free from excessive force while being held as a pretrial detainee was clearly established. Because a reasonable jury could conclude that Mr. Asbury violated Mr. Sawyers due process rights and because this right was clearly established, the court cannot, at the summary judgment phase, find that Mr. Asbury is entitled to qualified immunity. Accordingly, the court DENIES the defendants Motion for Summary Judgment as to the due process claims arising out of the incident at the holding center. III. Claims Against Mr. Asbury in His Official Capacity Mr. Sawyer has also brought claims against Mr. Asbury in his official capacity as a deputy with the Wood County Sheriffs Department. Claims against an official in his official capacity are treated as claims against the entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985).

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Thus, the court will treat Mr. Sawyers claims against Mr. Asbury in his official capacity as claims against the Wood County Commission.1 The U.S. Supreme Court has held that entities can be liable under 1983. However, an entity is only liable under 1983 if the entity was the moving force behind the deprivation of the plaintiff's rights. Id. In an official capacity suit, the entitys policy or custom must have played a part in the violation of federal law. Id. In this case, Mr. Sawyers Complaint recited a general claim against the Commission, alleging it allowed Mr. Asbury and other deputies to commit constitutional violations. (Am. Compl. [Docket 31], 20.) However, Mr. Sawyer has failed to offer any evidence to support his claim that there existed a pattern and practice of misconduct and untruthfulness by Defendant Asbury and Captain Woodyard of using excessive force and committing other rights violations and criminal infractions. (Id.) Thus, the court FINDS that there is no genuine issue of material fact on the issue of whether a policy or custom existed at the Sheriffs Department or the Commission condoning constitutional violations by its officers. Accordingly, the court

GRANTS summary judgment to the Commission on the official capacity claim for violations of 1983. IV. State Law Negligence Claim Against Wood County Commission Mr. Sawyer has also brought a state law negligence claim against the Wood County Commission. (Am. Compl. [Docket 31], 22-24.) The plaintiff claims that the Commission breached its duty by: (1) negligently hiring Defendant Asbury in the first place; (2)

The court will not treat the plaintiffs claims against Mr. Asbury in his official capacity as claims against the Wood County Sheriffs Department because the Sheriffs Department is not an entity capable of being sued, and the Sheriffs Department is not a defendant in the instant case. See Webb v. Raleigh Cnty. Sheriffs Dept., 761 F. Supp. 2d 378, 387 n.8 (2010).

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negligently training Defendant Asbury; (3) negligently supervising Defendant Asbury; (4) negligently allowing Defendant Asbury to use excessive force against the Plaintiff; and (5) negligently failing to comply with federal constitutional standards for use of force against a suspect and a pretrial detainee. (Id. at 23.) A. Negligent Hiring Claim

West Virginia recognizes a cause of action for negligent hiring. See State ex rel. W. Va. State Police v. Taylor, 201 W. Va. 554, 560 n.7 (1997). The test used to determine whether an employer negligently hired an employee is: When the employee was hired or retained, did the employer conduct a reasonable investigation into the employees background vis a vis the job for which the employee was hired and the possible risk of harm or injury to co-workers or third parties that could result from the conduct of an unfit employee? Should the employer have reasonably foreseen the risk caused by hiring or retaining an unfit person? McCormick v. W. Va. Dept. of Public Safety, 202 W. Va. 189, 193 (1998). Courts must consider the nature of the employees job assignment, duties, and responsibilities. Id. at 194. The employers duty in hiring individuals increases as the risk to third persons associated with a particular job increase. Id. In this case, the Commissions duty was heightened because of the nature of the work performed by sheriffs deputies. Deputies carry guns, enter civilian homes in certain

circumstances, and sometimes use force to effect arrest. Mr. Sawyer presents no evidence suggesting that the Commission should have foreseen that Mr. Asbury was unfit to act as a deputy. Despite the Commissions heightened duty, Mr. Sawyer has failed to present facts sufficient to create a genuine issue of material fact as to whether the Commission breached its

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duty of care in hiring Mr. Asbury.

Thus, the court GRANTS summary judgment to the

Commission on the negligent hiring claim. B. Negligent Training Claim

Mr. Sawyer claims that the defendants negligently trained Mr. Asbury and that this negligence proximately caused the plaintiffs injuries. (Am. Compl. [Docket 31], 23-24.) West Virginia courts have not found state authority for a stand-alone claim for negligent training . . . . Webb v. Raleigh Cnty. Sheriffs Dept., 761 F. Supp. 2d 378, 397 (S.D. W. Va. 2010). Thus, the court GRANTS summary judgment to the Commission on the state law negligent training claim. C. Negligent Supervision Claim

Mr. Sawyer has also brought a claim asserting that the defendants negligently supervised Mr. Asbury. (Am. Compl. [Docket 31], 23.) Under West Virginia law, a negligent supervision claim requires that the plaintiff demonstrate that the Commission failed to properly supervise the officer and, as a result, the deputy proximately caused injury to the plaintiff[]. See Woods v. Town of Danville, W. Va., 712 F. Supp. 2d 502, 515 (S.D. W. Va. 2010). In this case, Mr. Sawyer has not provided evidence of a pattern of misconduct that the Commission was aware of and failed to stop. There is no evidence that the Commission failed to properly supervise Mr. Asbury and that its actions resulted in the injuries to Mr. Sawyer. Thus, the court FINDS that there is no genuine issue of material fact and GRANTS the Commission judgment as a matter of law on the state law negligent supervision claim. D. Negligently Allowing Use of Excessive Force and Constitutional Violations

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Mr. Sawyer also claims that the Commission negligently allowed Mr. Asbury to violate Mr. Sawyers constitutional rights and use excessive force upon him. (Am. Compl. [Docket 31], 23.) Mr. Sawyer alleges that during the incident at the holding center, the other deputies in the room negligently allowed the defendant Mr. Asbury to violate his constitutional rights. (Resp. Mot. Summ. J. [Docket 27], at 24.) Because the deputies are employees of the Commission, Mr. Sawyer argues that the Commission is vicariously liable under the theory of respondeat superior for the alleged negligence of the other deputies in the holding center room. (Id.) Under the West Virginia Tort Claims Act (WVTCA), a political subdivision may be held liable for its employees negligence. The WVTCA 29-12A-4(c)(2) states: Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees when the employees were acting within the scope of their employment and authority. W. VA. CODE 29-12A-4(c)(2). The WVTCA defines scope of employment stating in pertinent part that: Scope of employment means performance by an employee acting in good faith within the duties of his or her office of employment or tasks lawfully assigned by a competent authority but does not include corruption or fraud. W. VA. CODE 29-12A-3(d). A political subdivisions liability under the WVTCA is direct liability for its employees negligence, and it is not based on a theory of respondeat superior. See Brooks v. City of Weirton, 202 W. Va. 246, 257 (1998) ([T]his statutory subsection may be read as a whole, and as prohibiting only the naming of an employee of a political subdivision acting within the scope of employment as a defendant, in order to establish the direct liability of the political subdivision.).

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To establish a claim, Mr. Sawyer must prove that the other deputies were acting within the scope of their employment when they failed to intervene at the holding center. See W. VA. CODE 29-12A-4(c)(2). Mr. Sawyer has brought a claim against the Commission based on the alleged negligence of the other deputies in the room. Accordingly, the plaintiff must also establish that the other deputies in the room (1) owed him a duty of care, (2) breached that duty of care, (3) the breach proximately caused his injuries, and (4) that he was damaged by the other deputies breach of their duty. 13B MICHIES JURISPRUDENCE OF VIRGINIA AND WEST VIRGINIA 3, at 245 (1988). The deputies were acting within the scope of their employment when they were assisting Mr. Asbury at the holding center. Part of a deputys duty is to help with the intake of arrestees and that is the duty that the other defendants were performing when the incident at the holding center occurred. The deputies were acting in good faith and carrying out the tasks they were lawfully assigned when they assisted Mr. Asbury in the intake of Mr. Sawyer, and thus they were acting within the scope of their employment at the time of their alleged negligence. See W. VA. CODE 29-12A-3(d). Next, the court must determine if the other deputies owed Mr. Sawyer a legal duty to affirmatively intervene when Mr. Asbury was violating Mr. Sawyers due process rights at the holding center. See Holsten v. Massey, 200 W. Va. 775, 780 (1997). In the context of 1983 actions, courts have established that an officer has an affirmative duty to intervene when another officer is violating a citizens constitutional rights. Browning v. Snead, 886 F. Supp. 547, 552 (S.D. W. Va. 1995) (A police officer may not stand by idly while a citizens constitutional rights are violated by another officer; he has an affirmative duty to intercede on the citizens - 18 -

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behalf.). However, West Virginia courts have not recognized the existence of an affirmative duty by police officers to intervene in the negligence context. Instead, West Virginia courts have repeatedly relied upon the public duty doctrine when addressing a police officers duty to affirmatively act to prevent a harm.2 The public duty doctrine states that a breach of a general duty owed by the local governmental entity to the public as a whole, such as to provide police protection, is not actionable. Holsten, 200 W. Va. at 780. A plaintiff may not hold a local government liable for breaching its general duty to the public as a whole; a local government is only liable for breaching a duty it owes to the particular plaintiff. Randall v. Fairmont City Police Dept., 186 W. Va. 336, 346 (1991). Thus, to bring a negligence claim for failure to provide police

protection, the plaintiff must establish that the police department owed a special duty to him. See id. at 347. The West Virginia Supreme Court of Appeals (WVSCA) has established a four part test to determine whether a local governmental entity, owed a plaintiff a special duty. See id. Specifically, the WVSCA held that: To establish that a special relationship exists between a local governmental entity and an individual, which is the basis for a special duty of care owed to such individual, the following elements must be shown: (1) an assumption by the local governmental entity, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the local governmental entitys agents that inaction could lead to harm; (3) some form of direct contact between the local governmental entitys agents and the injured party; and (4) that partys justifiable reliance on the local governmental entitys affirmative undertaking.
Some states have drawn a distinction between negligence that results in public harm and negligence that causes private harm. See, e.g., Jones v. State, -- A.3d --, 2012 WL 555569, at *11 (Md. 2012). In those cases, courts have refused to apply the public duty doctrine in cases in which the officials negligence resulted in harm to the plaintiff by another governmental actor. Id. Courts in West Virginia have not specifically addressed this issue. However, the WVSCA has interpreted the public duty broadly. Additionally, at least one court in West Virginia has applied the public duty doctrine when the alleged harm was committed by an official. See Berry v. Rubenstein, No. 1:07-00535, 2008 WL 1899907, at *3-4 (S.D. W. Va. Apr. 25, 2008).
2

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Id. (quoting Wolfe v. City of Wheeling, 182 W. Va. 253, 254, syl. pt. 2 (1989)). Mr. Sawyer must demonstrate those four elements to establish that the police department owed him a special duty, and thus was required to act affirmatively and intervene when another officer was violating his constitutional rights. See id. In this case, Mr. Sawyer has failed to present evidence that creates a genuine issue of material fact as to whether the sheriffs department owed him a special duty. Specifically, he has not introduced any evidence that the sheriffs department assumed through its promises and actions an affirmative duty to intervene on his behalf, knowledge on the part of the deputies that their inaction could lead to harm, or that he justifiably relied on any affirmative undertaking by the sheriffs department. See id. There is no evidence that a special relationship existed, and the sheriffs department did not owe Mr. Sawyer a duty to act affirmatively. Thus, the court FINDS that Mr. Sawyer has failed to create a genuine of material fact as to the elements of his negligence claim, and the defendants are entitled to judgment as a matter of law. Accordingly, the court GRANTS the defendants Motion for Summary Judgment as to Mr. Sawyers claims that the defendant negligently allowed Mr. Asbury to use excessive force and commit constitutional violations. V. Conclusion For the reasons discussed above, the defendants Motion for Summary Judgment is GRANTED in part and DENIED in part. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: - 20 April 4, 2012