Farrar v. Worrell

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

MICHAEL HAYS FARRAR, )

)

Plaintiff, ) Case No. 7:19CV00626

)

v. ) OPINION AND ORDER

)

WILLIAM JACOB WORRELL, ET AL., ) JUDGE JAMES P. JONES

)

Defendants. )

Michael Hays Farrar, Pro Se Plaintiff; Jim H. Guynn, Jr., and Julian F. Harf,

GUYNN, WADDELL, CARROLL & LOCKABY, P.C., Salem, Virginia, for

Defendants.

The plaintiff Michael Hays Farrar, proceeding pro se, filed this civil rights

action under 42 U.S.C. § 1983 against five current or former deputies with the

Carroll County, Virginia, Sheriff’s Office: William Jacob Worrell, William Lyons

II, Bradley Hoffman, Trevor Carico, and Jason Helton. Farrar contends that the

defendants used, or permitted the use of, excessive force against him during his arrest

and that they denied him medical care thereafter. After review of the record, I

conclude that the defendants’ Motion for Summary Judgment must be granted in

part and denied in part.

I. BACKGROUND.

The following summary of the evidence is derived from the verified Amended

Complaint, the defendants’ declarations, and exhibits submitted by the parties. For

purposes of summary judgment,1 all reasonable inferences are drawn in Farrar’s

favor.

At the time of the events in question, Farrar was living in a trailer in Hillsville,

Virginia, which is in Carroll County. He was on probation for a conviction in Pulaski

County Circuit Court for failing to return rental property. On November 15, 2018,

the Pulaski County Sheriff’s Office issued a teletype requesting assistance in serving

Farrar with an arrest warrant for an alleged probation violation. The teletype

indicated that Farrar was dangerous and possibly armed. Each of the defendants

responded to the call for assistance.

The defendants arrived at Farrar’s trailer at approximately 9:30 p.m. Worrell

and Hoffman went to the front door of the trailer, while Lyons, Helton, and Carico

went to the back door. Farrar’s girlfriend, Sheryl Cecil, opened the front door after

Hoffman and Worrell knocked on it. The defendants told Cecil they were there to

serve an arrest warrant on Farrar. Cecil directed them to a back bedroom on the left

side of the trailer, which had an attached bathroom.

At this point, the parties’ accounts diverge. According to the verified

Amended Complaint, Farrar was in the bathroom when he saw Hoffman coming into

1 The defendants offer in support of their Motion for Summary Judgment, the

following declarations with other attached records: Mem. Supp. Mot. Summ. J. Ex. 1

(Hoffman Decl.), ECF No. 56-1; Ex. 2 (Worrell Decl.), ECF No. 56-2; Ex. 3 (Helton Decl.),

ECF No. 56-3; Ex. 4 (Carico Decl.), ECF No. 56-4; Ex. 5 (Lyons Decl.), ECF No. 56-5;

and Ex. 6 (Bowman Decl.), ECF No. 56-6.

the room.2 Farrar turned around, pulled down his pants, sat down on the toilet, and

began removing a disposable catheter. Farrar alleges that Hoffman then grabbed

him by the head and punched him in the face and back, while dragging him across

the floor. Farrar was naked from the waist down with his pants around his ankles,

and he “landed face down with [Hoffman] on [his] back hitting [him] in [his] face

and head.” Am. Compl. 3, ECF No. 8. When Farrar attempted to block the punches

by turning his head, Hoffman allegedly hit him on the other side of his head and

face, as well as his ears and neck.

Farrar further alleges that at some point during this “initial assault,” Lyons

entered the room, pinned Farrar’s legs, and began hitting him on his “bare butt and

back.” Id. When Lyons asked Hoffman why Farrar was bleeding, Hoffman falsely

stated that Farrar had hit a nail. Farrar asserts that Hoffman then “landed another

round of knees and punches to [his] head, face, ears, and wherever else he could hit,”

while Lyons struck his back and legs. Id. at 4. Farrar avers that he was already

2 In the Amended Complaint, Farrar alleged that Lyons and another officer he

identified as “First Officer” entered the trailer through the front door and that First Officer

initially entered the bedroom, followed by Lyons. Am. Compl. 3, ECF No. 8. Farrar later

submitted additional evidence and information (ECF Nos. 29, 37, 38, 46, and 47) that the

court construed and granted as amendments to his pleading to identify the First Officer as

Hoffman, and to clarify that Hoffman was accompanied by Worrell, while Lyons and the

other officers entered later to assist. Farrar also submitted a statement from Cecil, signed

under penalty of perjury, ECF No. 72-1. Although the magistrate judge denied his motion

seeking submission of this statement, I have considered it as part of Farrar’s case.

handcuffed at this point and that he was “completely hobbled by Lyons standing on

[his] pants.” Id.

Farrar alleges that while he was “still face down, handcuffed, pants down,

bleeding and getting random punches or kicks,” screaming in pain, the other

defendants and Cecil entered the room. Id. While one defendant removed Cecil

from the bedroom and another began searching drawers, Farrar “was hit in [his] butt

with a stick, rod, baton, or maglight [sic]” and he “started crying rape as loud as [he]

could.” Id. In response, the defendants laughed at him, while he was “crying lying

naked and bleeding on the floor.” Id. At no point, according to Farrar, did the

defendants identify themselves or explain why they were there or what they were

doing.

Farrar asserts that Hoffman and Lyons eventually stood him up and pulled up

his pants. Once Farrar was standing, Hoffman allegedly said, “I will kill you next

time.” Id. Hoffman then started to cover Farrar’s head with a bag or fabric. By this

point, Farrar “was completely loosing [sic] it.” Id. at 5. He begged the defendants

not to cover his head because of his mental issues. Additionally, Farrar was having

difficulty seeing because his prescription glasses had been “broken off [his] face,”

he was “bleeding into both eyes,” and an “eye was swelling shut.” Id.

At this point, an officer escorted Farrar to Lt. Lyons’s patrol car and placed

him inside it. Lyons drove Farrar to the Carroll County Sheriff’s Office and took

him before a magistrate. The magistrate issued warrants charging Farrar with

possession of a controlled substance with intent to distribute and obstruction of

justice by threats or force. Even though Farrar was “still bleeding” and “slumped

over,” no one in the Carroll County Sheriff’s Office examined his injuries. Id.

After the warrants were issued at approximately 11:15 p.m., officers from the

New River Valley Regional Jail transported Farrar to the jail. Upon seeing Farrar, a

nurse informed the officers that Farrar needed to be taken to the hospital. Id.

Farrar was examined in the emergency department of Carilion New River

Valley Medical Center shortly after midnight. Amend. Compl. 12, ECF No. 37-5.

Hospital records indicate that Farrar reported being involved in a physical altercation

with police officers and complained of facial wounds, right ear pain, and right rib

pain. Physical examination notes describe Farrar as having “[c]rusted blood over

entirety of face” and “2 cm lacerations to the R and L lateral eyebrows,” each of

which required three sutures. Id. at 13. A CT scan of Farrar’s head revealed no

mass, hemorrhage, or acute stroke, and a CT scan of his cervical spine revealed no

acute abnormalities. The examining physician expressed his final impression as

follows:

1. Examination for medicolegal reason Acute

2. Alleged assault Acute

3. Facial laceration, initial encounter Acute

4. Closed head injury, initial encounter Acute

5. Neck pain Acute

Id. at 19.

Farrar also underwent a forensic examination at the hospital, during which he

provided an account of his encounter with the deputies. The forensic nurse examiner

(“FNE”) photographed Farrar’s injuries and reported her physical findings. In

addition to describing the dried blood and lacerations observed by the examining

physician, the FNE noted skin discoloration, abrasions, and bruising on Farrar’s left

forehead, left elbow, left thumb, right earlobe, right chest, right buttock, and right

hip. Id. at 32. Farrar was discharged from the hospital at 4:25 a.m. on November

16, 2018, and returned to the jail.

On September 16, 2019, Farrar appeared in the Carroll County Circuit Court

and entered pleas of guilty to the offenses for which he was arrested on November

15, 2018: possession of a Schedule II controlled substance with intent to distribute

and obstruction of justice. The court sentenced Farrar to five years imprisonment,

with three years and ten months suspended, for the drug offense, and to twelve

months, all suspended, on the obstruction offense.

The defendants’ account of what transpired in the trailer is quite different than

Farrar’s version. The deputies contend that Farrar refused to comply with repeated

commands to show his hands as he sat on the toilet with one of his hands out of sight

between his legs. Consequently, “[Hoffman] believed Farrar was either reaching for

a weapon or flushing drugs,” and for that reason, “[he] pulled [Farrar] to the floor

and told him he was under arrest.” Hoffman Decl. ¶ 4, ECF No. 56-1. At that point,

according to the defendants, “Farrar was flailing his body, kicking his legs, and

banging his head against the ground,” and all five defendants attempted to subdue

him. Id. at ¶ 5. Farrar actively resisted the officers’ efforts to subdue him and

ignored their commands for him to put his hands behind his back. Each of the

defendants feared Farrar might have a weapon. “To urge Farrar to give up his hands,

[Hoffman admittedly] issued hand strikes to his right side.” Id. However, Hoffman

denies striking Farrar in the face or head, and Lyons denies striking Farrar at all.

According to the defendants, Farrar began bleeding from his head after he banged it

against the floor and wall, and he continued banging his head on the floor after being

handcuffed, screaming, “Cheryl they’re raping me.” Id.

At some point during the interactions with Hoffman, Farrar spit at the deputy

and said that he had Hepatitis C or HIV (Hoffman does not recall which). As a

result, after Farrar was handcuffed, Hoffman retrieved a “spit mask” from his patrol

car and placed it on Farrar. Id. at ¶ 8. The mask allowed Farrar to breathe, see, and

have normal range of motion.3

3 Farrar denies that Hoffman placed a spit mask on him that night. Resp. 11, ECF

No. 58 (“[A spit mask] was never on me just trying to cover my head like a hostage &

when I told them about my Mental Condition & Meds that stopped.”).

After Farrar was handcuffed and he calmed down, Lyons searched his person

and found marijuana in his pocket. Farrar’s girlfriend consented to a search of the

trailer. Inside a nightstand in the back bedroom, the deputies found a black bag

containing five plastic baggies filled with white crystals, a bag with four orange pills,

and several empty baggies. They also found a set of digital scales. The girlfriend

told the deputies that the items belonged to Farrar. Field testing revealed that the

white crystals were positive for methamphetamine, and the orange pills were

identified as Schedule III drugs.

Farrar commenced this action under 42 U.S.C. § 1983 in early September

2019. In mid-October 2019, he filed a verified Amended Complaint that he later

amended. He sued Lyons, Hoffman, Worrell, Carico, and Helton, the officers listed

on the police report. Liberally construed, Farrar’s pleadings, ECF Nos. 1, 8, 29, 37,

38, 46, and 47, assert the following claims: (1) Hoffman and Lyons used excessive

force in violation of the Fourth Amendment; (2) Hoffman and Lyons committed

assault and battery under Virginia law; (3) Hoffman and Lyons committed

intentional infliction of emotional distress under Virginia law when they tried to

“hood” Farrar; (4) all five deputies acted with deliberate indifference to his serious

medical needs in violation of the Fourteenth Amendment; (5) all five deputies

violated the Americans with Disabilities Act (“ADA”) “by not treating [Farrar]

medically”; (6) all five deputies failed to protect Farrar from acts of excessive force

by others and/or were deliberately indifferent to Farrar’s condition after such uses

of force, in violation of the Fourteenth Amendment and the Virginia Constitution;

and (7) Hoffman and Lyons were deliberately indifferent under the Fourteenth

Amendment and intentionally inflicted emotional distress in violation of Virginia

law when they failed to provide Farrar access to medical care at the Carroll County

Sheriff’s Office. Amend. Compl. 1, 2, ECF No. 37. As relief, Farrar seeks monetary

damages.4

As discussed, the defendants have moved for summary judgment. Farrar has

responded to their motion, making it ripe for a decision.

II. DISCUSSION.

A. Standards of Review.

The Federal Rules of Civil Procedure provide that a court should grant

summary judgment “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A dispute is genuine if ‘a reasonable jury could return a verdict for the

4 As relief, Farrar also requested “protection from retaliation from said Deputies &

friends,” which I construe as a request for injunctive relief. Amend. Compl., ECF 37-2.

Farrar notified the court in May 2020 that he is no longer incarcerated. Accordingly, I

conclude that his request for injunctive relief against these defendants is moot. See

Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) (“[A]s a general rule, a prisoner’s

transfer or release from a particular prison moots his claims for injunctive . . . relief with

respect to his incarceration there.”).

nonmoving party.’” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir.

2013).5 “A fact is material if it ‘might affect the outcome of the suit under the

governing law.’” Id. (quoting Henry v. Purnell, 652 F.3d 524, 548 (4th Cir. 2011)).

In considering a motion for summary judgment, the court must view the evidence in

the light most favorable to the nonmoving party. Id. at 312-13. To withstand a

summary judgment motion, the nonmoving party must produce sufficient evidence

from which a reasonable jury could return a verdict in his favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

The defendants have filed declarations and other documentation in support of

their motion. Accordingly, to avoid summary judgment, Farrar must present

sufficient evidence that could carry the burden of proof of his claims at trial. His

submissions must “set forth specific facts showing that there is a genuine [factual]

issue for trial” on which the jury could find in his favor. Id. “[I]t is well established

that a verified complaint is the equivalent of an opposing affidavit for summary

judgment purposes, when the allegations contained therein are based on personal

knowledge.” Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021).6

5 I have omitted internal quotation marks, citations, and alterations throughout

unless otherwise noted.

6 “A complaint is ‘verified’ if it is ‘signed, sworn, and submitted under penalty of

perjury.’” Goodman, 986 F.3d at 495 n.2. Farrar’s Amended Complaint satisfies these

verification requirements.

B. Claims under Section 1983.

Section 1983 permits an aggrieved party to file a civil action against a person

for actions taken under color of state law that violated his constitutional rights.

Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). The defendants do not contest

that they acted under the color of state law during the events on which Farrar alleges

his § 1983 claims of excessive force, bystander liability, and denial of medical care.

1. Excessive Force on Arrest.

An officer’s use of force on arrest is weighed under the Fourth Amendment

and does not violate the Constitution if it is objectively reasonable in light of the

facts and circumstances. Graham v. Connor, 490 U.S. 386, 388 (1989). This

analysis requires “a careful balancing of the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” Id. at 396. Three factors guide the court’s objective

reasonableness inquiry: (1) “the severity of the crime”; (2) “whether the suspect

pose[d] an immediate threat to the safety of the officers or others”; and (3) whether

the suspect was actively resisting arrest or attempting to flee. Id. Importantly, the

court must judge the defendant’s actions “from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Id. The court’s

reasonableness assessment must make “allowance for the fact that police officers are

often forced to make split-second judgments — in circumstances that are tense,

uncertain, and rapidly evolving — about the amount of force that is necessary in a

particular situation.” Id. at 397.

Hoffman and Lyons contend that there is no genuine issue of material fact on

which a reasonable jury could find that they used excessive force against Farrar in

violation of the Fourth Amendment. I disagree.

Viewing the evidence in the light most favorable to Farrar, the use of force

occurred after the defendants entered Farrar’s residence to serve an arrest warrant

for a probation violation. According to the Amended Complaint, Hoffman grabbed

Farrar from the toilet by the head, punched him in the face and back, and dragged

him across the bedroom floor with his pants around his ankles. Farrar states that

even after he was pinned face-down on the floor and placed in handcuffs, Hoffman

continued to punch him in the head, face, and ears, while Lyons repeatedly struck

Farrar’s back, butt, and legs. Farrar suffered injuries to his face and head during the

incident, including lacerations that required sutures. I conclude that under the Fourth

Amendment standard, a reasonable jury could find that Hoffman and Lyons used

excessive force.

The defendants’ declarations paint a sharply different picture of what

transpired in the residence, suggesting that they only used as much force as necessary

to ensure safety of all participants when apprehending a suspect described to them

as dangerous and possibly armed who was actively resisting the officers’ orders and

efforts to arrest him. At summary judgment stage of the proceedings, however,

Farrar’s verified Amended Complaint “carries the same weight” as the defendants’

declarations and has “the same force and effect.” El Bey v. Roop, 530 F.3d 407, 414

(6th Cir. 2008); see also Goodman, 986 F.3d at 498. Based on Farrar’s sworn

allegations, I find that a reasonable jury could be persuaded that Hoffman and Lyons

used excessive force both before and after handcuffing Farrar. See Young v. Prince

George’s Cnty., 355 F.3d 751, 758 (4th Cir. 2004) (holding that the district court

erred in granting summary judgment on the plaintiff’s Fourth Amendment excessive

force claim where the plaintiff was struck in the head and back while lying face-

down on the ground in handcuffs), abrogated on other grounds by Wilkins v. Gaddy,

599 U.S. 34 (2010). Accordingly, I must deny summary judgment for Hoffman and

Lyons on the merits of the excessive force claim.

2. Heck v. Humphrey Bar of § 1983 Claim.

The defendants also argue that the excessive force claims implicate the validity

of Farrar’s conviction for obstruction of justice and is therefore barred by Heck v.

Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that

when a state prisoner seeks damages in a § 1983 suit, the district court

must consider whether a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence; if it

would, the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been

invalidated. But if the district court determines that the plaintiff's

action, even if successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff, the action should

be allowed to proceed.

Id. at 487. “The Heck analysis requires a close factual examination of the underlying

conviction.” Riddick v. Lott, 202 F. App’x 615, 616 (4th Cir. 2006) (unpublished).

A § 1983 claim is not barred under Heck unless “it is clear from the record that its

successful prosecution would necessarily imply that the plaintiff’s earlier conviction

was invalid.” Id.

In this case, the record establishes that Farrar pleaded guilty to a charge of

obstruction of justice in violation of Virginia Code § 18.2-460. However, it is not

clear from the record that success on Farrar’s § 1983 excessive force claim would

necessarily call into question the validity of his conviction for obstruction. The

defendants have presented no evidence regarding the factual basis for Farrar’s guilty

plea. Without such evidence, the court “cannot determine whether his claim of

police brutality would necessarily imply invalidity of his earlier conviction.” Id.;

see also id. at 617 (recognizing that even a conviction for assaulting an officer while

resisting arrest “may coexist with a finding that the officer’s alleged attack was

unprovoked and occurred independently of” plaintiff’s resistance); Reese v. Cnty. of

Sacramento, 888 F.3d 1030, 1046 (9th Cir. 2018) (holding that without the specific

factual basis for plaintiff’s prior conviction, the court could not determine if

plaintiff’s excessive force claim would call into question the validity of the

conviction); Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008) (explaining that “a

§ 1983 claim would not necessarily imply the invalidity of a resisting arrest

conviction, and therefore would not be barred by Heck, if the factual basis for the

conviction is temporally and conceptually distinct from the excessive force claim”).

Accordingly, I conclude from the record that none of the defendants is entitled to

summary judgment under Heck.

3. Bystander Liability.

In the Amended Complaint as amended or supplemented by later submissions,

Farrar contends that all five deputes were present in the bedroom to witness or also

to participate in the efforts by Hoffman and Lyons to subdue and restrain him, but

did nothing to help him.7 I construe these allegations as asserting claims of bystander

liability under § 1983 against all five deputies for failing to prevent some of the

alleged uses of excessive force by other defendants.

The concept of bystander liability is premised on a law officer’s duty

to uphold the law and protect the public from illegal acts, regardless of

who commits them. . . . Therefore, if a bystanding officer (1) is

confronted with a fellow officer’s illegal act, (2) possesses the power

to prevent it, and (3) chooses not to act, he may be deemed an

accomplice and [be] treated accordingly.

7 The defendants argue that when Farrar amended his pleading after their Motion

to Dismiss, he abandoned his claim of bystander liability. The docket reflects, however,

that Farrar did not label these later submissions as a Second Amended Complaint and that

the court granted them as amendments to the existing Amended Complaint. Thus, the

defendants’ abandonment argument lacks merit.

Randall v. Prince George’s Cnty., 302 F.3d 188, 203 (4th Cir. 2002) (citing O’Neill

v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988) (observing that officer who stands

by and does not seek to assist victim could be “tacit collaborator”); Tarashuk v.

Orangeburg Cnty., No. 5:19-CV-02495-JMC, 2022 WL 969749, at *8 (D.S.C. Mar.

30, 2022) (applying Randall bystander liability standard to claim by pretrial

detainee).

Liberally construed, Farrar’s allegations describe a scene where at least two

deputies are hitting him, a sick man in his fifties who is face down on the floor,

screaming in pain, crying rape, and bleeding, and they continue doing so even after

he is in handcuffs. The deputies’ own declarations indicate that they each

participated in some way in a joint attempt to physically subdue and restrain Farrar.

The deputies all state that they were so focused on their individual portion of that

task that they could not observe uses of force by other deputies. On this record, I

find genuine disputes of material fact on which Farrar could persuade a jury that one

or more of the deputies knew that another deputy was using excessive force, had a

reasonable opportunity to intervene to protect Farrar, and failed to do so. I will deny

summary judgment as to the bystander liability claim as to all five defendants.

4. Deliberate Indifference to Serious Medical Needs.

Claims that state officials deprived a pretrial detainee of medical care are

addressed under the Fourteenth Amendment, using the familiar deliberate

indifference standard. Shover v. Chestnut, 798 F. App’x 760, 761–62 (4th Cir. 2020)

(unpublished) (citing Patten v. Nichols, 274 F.3d 829, 834 (4th Cir. 2001). To

prevail with such a claim, the detainee plaintiff must first demonstrate that the injury

suffered is both apparent and serious. Id. (citing Grayson v. Peed, 195 F.3d 692,

695 (4th Cir. 1999)). A medical condition is sufficiently serious when it is “so

obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).

The plaintiff must also state facts showing that each defendant exhibited

deliberate indifference. Grayson, 195 F.3d at 695. “Deliberate indifference is a very

high standard — a showing of mere negligence will not meet it.” Id. First, the

plaintiff must show the defendant’s actual knowledge of the risk of harm that the

injury or medical condition posed to the plaintiff; and second, the detainee must

show that the defendant “recognized that his actions were insufficient to mitigate the

risk of harm to the [detainee] arising from his medical needs.” Iko, 535 F.3d at 241.

Moreover, “an inadvertent failure to provide adequate medical care” does not satisfy

the deliberate indifference standard, and thus, mere negligence in diagnosing or

providing treatment for a medical condition is insufficient. Estelle v. Gamble, 429

U.S. 97, 105–06 (1976). Rather, for liability under § 1983 for a constitutional

violation, the defendant must have responded inappropriately to a “serious” medical

condition or acted intentionally to delay or deny the prisoner access to adequate

medical care. Id. at 104–05. A constitutional claim and potential liability under §

1983 arise only when the plaintiff establishes that medical care or a denial of medical

care was “so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness.” Moon v. Mueller, No.

CIV.A. 1:12-1225-TMC, 2013 WL 2352441, at *1 (D.S.C. May 29, 2013) (quoting

Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990)).

Farrar has submitted copies of two photographs of himself, taken early on the

morning of November 16, 2018, when officials booked him into the jail, about three

and a half hours after his encounter with the defendants. Amend. Compl. 1–2, ECF

No. 38-1. Farrar claims that at this time, he was still bleeding from a cut above his

right eye. He argues that given his injuries, the defendants should have known after

the altercation that he needed immediate medical care. Instead, the defendants took

him before the magistrate to be charged and let him wait, unattended, for jail officials

to take custody of him at the Sheriff’s Office.

The defendants state in their declarations that they saw only some cuts and

light bleeding on Farrar’s face that night. They also declare their understanding that

according to procedure, Farrar would soon be transported to the jail, where officials

would ensure that he received an assessment by medical professionals and

appropriate medical care. Only Lyons transported Farrar from his trailer to the

Sheriff’s Office, where jail officials would retrieve him. None of the other deputies

saw or could have obtained medical care for Farrar after he left with Lyons. All of

the deputies, including Lyons, have stated their belief that Farrar’s injuries were not

serious enough to require medical attention before he reached the jail.

While the photographs are grim and Farrar alleges suffering more than de

minimis injuries, I must agree that neither the photos nor the allegations and medical

records depict injuries likely to cause death or permanent disability if not

immediately addressed. Moreover, as the defendants expected, within hours of the

altercation, jail officials ensured that Farrar received professional assessment and

treatment of his injuries at the local hospital. He underwent diagnostic imaging tests

and received sutures for lacerations as the medical staff deemed necessary. On this

record, I find no material disputed fact on which a reasonable jury could find that

any of the defendants were deliberately indifferent to a serious medical need for

more prompt or different medical care than Farrar received that night. I conclude

that the defendants are entitled to summary judgment as a matter of law as to this

claim and will grant that portion of their motion.

5. Americans with Disabilities Act.

Farrar states: “All Deputies violation [sic] of Americans with Disabilities Act

by not treating me medically.” Amend. Compl. 2, ECF No. 37. This claim fails.

“[T]he ADA cannot be used to assert a claim of inadequate medical care.” Baxley

v. Jividen, 508 F. Supp. 3d 28, 62 (S.D.W. Va. 2020). “Although the Fourth Circuit

has not addressed this issue in a published opinion, unpublished cases from this

circuit, as well as published and unpublished cases from other circuits, indicate that

a prisoner may not state a claim under the ADA for a lack of medical treatment.”

Mondowney v. Balt. Cnty. Det. Ctr., No. ELH-17-1538, 2019 WL 323900 at *21 (D.

Md. July 18, 2019) (citing other cases). I will grant the defendants’ motion as to

Farrar’s ADA claim.8

6. Qualified Immunity.

The defendants argue that as to the federal claims, they should be granted

qualified immunity against Farrar’s claims for damages. I cannot agree.

The doctrine of qualified immunity shields government officials from civil

damages liability “so long as their conduct ‘does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’”

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Pearson v. Callahan,

555 U.S. 223, 231 (2009)). To prevail under this defense, the defendants must “show

either that no constitutional violation occurred or that the right violated was not

8 I also note that Farrar fails to support a discrimination claim under the ADA.

“[T]o state a cause of action under Title II [of the ADA], an individual must plausibly

allege (1) that he has a disability or has been regarded as having a disability; (2) that he is

otherwise qualified to receive the benefits provided by a public entity; and (3) that he was

denied those benefits or was otherwise discriminated against on the basis of his disability.”

Fauconier v. Clarke, 966 F.3d 265, 276 (4th Cir. 2020). The defendants deny knowing

that Farrar was disabled for purposes of the ADA, and Farrar does not describe any action

or inaction by any defendant taken because of Farrar’s mental or medical condition.

clearly established at the time it was violated.” Hunter v. Town of Mocksville, 789

F.3d 389, 396 (4th Cir. 2015); see also Meyers v. Baltimore Cnty., 713 F.3d 723,

731 (4th Cir. 2013) (“The burden of proof and persuasion with respect to a defense

of qualified immunity rests on the official asserting that defense.”). “At summary

judgment, in the qualified immunity context as in others, courts must view the

evidence in the light most favorable to the party opposing summary judgment.”

Brown v. Elliott, 876 F.3d 637, 641 (4th Cir. 2017).

Here, I have already determined that the record, when viewed in the light most

favorable to Farrar, contains sufficient evidence from which a reasonable jury could

find that Hoffman and Lyons used excessive force against Farrar and that all

defendants failed to protect him from such force by others. The defendants argue

that I should grant them qualified immunity on the second prong — “whether it

would be clear to a reasonable officer that the conduct was unlawful in the situation

he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). Their arguments rest,

however, on the accounts set forth in their own declarations, rather than considering

the facts in the light most favorable to Farrar, as I must at this stage of the case. They

do not attempt to prove with legal precedent that under clearly established law, the

deputies’ conduct as Farrar describes it could reasonably have been considered

lawful. I conclude that the disputed versions of events in this case bar the entry of

summary judgment on the ground of qualified immunity. Buonocore v. Harris, 65

F.3d 347, 359-60 (4th Cir. 1995) (“If a plaintiff has alleged a clearly established

right, summary judgment on qualified immunity grounds is improper as long as there

remains any material factual dispute regarding the actual conduct of the

defendants.”).

C. State Law Claims.

Farrar asserts four claims under state law: assault and battery by Hoffman and

Lyons; intentional infliction of emotional distress by these defendants when

Hoffman tried to place a sort of hood on Farrar; cruel and unusual punishment by all

defendants for leaving him naked and panicking on the floor, in violation of the

Virginia Constitution; and intentional infliction of emotional distress by Hoffman

and Lyons by leaving him without medical attention at the sheriff’s office for hours.

The defendants do not argue for summary judgment as to the first of these claims —

alleged assault and battery by Hoffman and Lyons. Thus, these claims will go

forward to trial. As to the other state law claims, however, I conclude that the

defendants are entitled to summary judgment.

The tort recognized as the intentional infliction of emotional distress (“IIED”)

is also called the “tort of outrage.” Russo v. White, 400 S.E.2d 160, 162 (Va. 1991).

The term outrageous does not define a prohibited “act or series of acts; rather, it

represents an evaluation of behavior,” and accordingly, the law does not favor this

tort. Id. Under Virginia law, an IIED claim arising from a “non-tactile tort may be

compensated if the plaintiff alleges, and proves by clear and convincing evidence,

that: the wrongdoer’s conduct is intentional or reckless; the conduct is outrageous

and intolerable; the alleged wrongful conduct and emotional distress are causally

connected; and, the distress is severe.” Id.

Initially, the court must “determine whether the facts alleged will support a

finding of both outrageousness and severe emotional distress,” the second and fourth

prongs. Id. Criminal or malicious intent alone is insufficient for an IIED claim,

which requires a finding that “the conduct has been so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” Id.

Similarly, for an IIED claim, the plaintiff must show that “the emotional distress

[was] extreme” and that “the distress inflicted [was] so severe that no reasonable

person could be expected to endure it.” Id. at 163. I am satisfied that Farrar has not

made the necessary factual showings to state an IIED claim against any defendant

for the acts he describes.

First, Farrar denies that anyone placed a spit mask on him to protect the

officers from Hepatitis C or HIV, as Hoffman states.9 Resp. 5-6, ECF No. 58.

9 I also agree with the defendants that if Hoffman did place a spit mask on Farrar

simply because he had just announced that he had a contagious, serious disease, such

conduct could not be considered outrageous or intolerable in civilized society so as to

support an IIED claim.

Rather, Farrar alleges that after the officers stood him up, Hoffman threatened to kill

him the “next time,” took a shirt or similar item from the laundry on the floor and

tried to cover Farrar’s head with it. Am. Compl. 4–5, ECF No. 8. Farrar alleges that

he begged the deputies to stop because of his mental issues, and Hoffman “quit trying

to bag [Farrar’s] head.” Id. 5. Hoffman did not have any further contact with Farrar.

I find nothing here that must be regarded as “atrocious, and utterly intolerable

in a civilized community.” Russo, 400 S.E.2d at 162. Indeed, Farrar does not allege

that Lyons participated in any way in the alleged, attempted hooding. I also find no

evidence that Farrar experienced emotional distress so extreme that no one could be

expected to bear it. Indeed, Hoffman stopped his actions when Farrar simply

complained that he was growing distressed. I conclude that Hoffman and Lyons are

entitled to summary judgment as a matter of law as to this claim.

Second, Farrar has not shown facts stating an IIED claim regarding the delays

in medical treatment for which he blames the defendants. Common sense dictates

that it was not outrageous or unacceptable in civilized society for the deputies to

determine that Farrar did not need immediate medical care for his cuts and bruises,

when they knew that jail officials would soon ensure him access to medical care at

the jail or a nearby hospital. Furthermore, Farrar presents no evidence of emotional

injury, let alone a severe emotional injury, resulting from the delay in medical

treatment. Id. I conclude that the defendants are entitled to summary judgment as a

matter of law as to this state law claim.

Finally, I must grant the defendants’ motion as to Farrar’s separate claims of

cruel and unusual punishment in violation of the Virginia Constitution.

For a constitutional provision to be operative, it must be self-executing

or have associated legislation that allows for a cause of action. A

provision is generally not self-executing if it merely indicates

principles, without laying down rules by means of which those

principles may be given force of law. First, Va. Const. Art. I § 9 states

only the principle that cruel and unusual punishment ought not to be

inflicted, without any attendant rules; therefore, § 9 is not self-

executing.

Delk v. Moran, No. 7:16CV00554, 2019 WL 1370880, at *4 (W.D. Va. Mar. 26,

2019). Thus, in relying on § 9, a constitutional provision that is not self-executing,

Farrar has stated no actionable civil claim for damages under state law against the

defendants under this section. I will grant the defendants’ motion as to these claims.

III. CONCLUSION.

In accordance with the foregoing, it is ORDERED as follows:

1. The defendants’ Motion for Summary Judgment, ECF No. 55, is

GRANTED IN PART AND DENIED IN PART. The motion is granted as to Claim

3, alleging intentional infliction of emotional distress; Claim 4, alleging deliberate

indifference to serious medical needs; Claim 5, alleging ADA violations; Claim 6,

to the extent that it alleges a violation of the Virginia Constitution; and Claim 7,

alleging deliberate indifference to medical needs and intentional infliction of

emotional distress. The motion is denied as to Claim 1, alleging use of excessive

force by defendants Hoffman and Lyons in violation of the Fourth Amendment;

Claim 2, alleging assault and battery by Hoffman and Lyons; and Claim 6, alleging

bystander liability claims against all five defendants.

2. The defendants are DIRECTED to answer these remaining claims

within 30 days from the date of entry of this Order; and

3. The Clerk is DIRECTED to set this matter for a jury trial at the United

States Courthouse in Abingdon, Virginia.

ENTER: May 9, 2022

/s/ JAMES P. JONES

Senior United States District Judge