Asbury v. Ritchie County Commission

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JAMES R. ASBURY,

Plaintiff,

v. // CIVIL ACTION NO. 1:16CV132

(Judge Keeley)

RITCHIE COUNTY COMMISSION,

a political subdivision of

the State of West Virginia;

BRYAN BACKUS, individually;

RON BARNIAK, individually,

Defendants.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION

FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 25] AND GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 27]

This is § 1983 action that was removed from the Circuit Court

of Ritchie County (Dkt. No. 1). Now pending are the parties’ cross

motions for summary judgment. For the reasons that follow, the

Court DENIES the plaintiff’s motion (Dkt. No. 25), and GRANTS the

defendants’ motion (Dkt. No. 27).

I. BACKGROUND

The plaintiff, James R. Asbury (“Asbury”), was employed as a

deputy sheriff with the Ritchie County Sheriff’s Department(“RCSD”)

from May 2011 until May 2015, when he was placed on paid

administrative leave. Asbury was terminated from the RCSD effective

December 31, 2015. At all time relevant, defendant Bryan Backus

(“Backus”) was the Sheriff of Ritchie County, and defendant Ronald

Barniak (“Barniak”), the former Sheriff of Ritchie County, was

serving as the Chief Administrator of the RCSD.

As a deputy, Asbury was assigned to use a Dodge Durango as his

police cruiser. Vehicles used by RCSD deputies are owned by the

Ritchie County Commission (the “Commission”) and issued to the

deputies for use during their employment. According to RCSD policy,

deputies are not permitted to use their assigned vehicles for

personal or other non-governmental business.

During the course of Asbury’s employment as a deputy, Backus

and Barniak noticed that Asbury’s reported monthly “activity

levels,” such as criminal investigations, citations, and service of

process, were substantially lower than his fellow deputies’

reported levels. In an attempt to ascertain why Asbury’s activity

levels were below those of his fellow deputies, Backus and Barniak

decided to install a GPS unit on Asbury’s Durango in order to

monitor its whereabouts while Asbury was on duty.

The GPS unit tracked Asbury’s cruiser any time it was in use

and thus provided data to the RCSD regarding the vehicle’s

location, the times it was being used, and its speed. Neither

Backus nor Barniak informed Asbury of the GPS installation. The GPS

monitoring took place from approximately October, 2013, through

May, 2014.

On or about May 22, 2014, Asbury became aware of the GPS

device after he was charged in a criminal complaint with the felony

offense of falsifying accounts, based on what the defendants

2

alleged were discrepancies in the duty logs submitted by Asbury and

the data recorded by the GPS unit in his cruiser. Backus testified

to a grand jury on January 26, 2015, following which the grand jury

indicted Asbury of eight felony counts of falsifying accounts in

violation of W. Va. Code § 61-3-22, and one misdemeanor count of

embezzlement in violation of W. Va. Code § 61-3-20.

During the course of the state criminal proceedings, Asbury

moved to suppress the GPS data. Relying primarily on United States

v. Jones, 565 U.S. 400 (2012), the Circuit Court of Ritchie County

suppressed the data gathered by the GPS device, ruling that its

installation in Asbury’s vehicle required a warrant (Dkt. No. 27-

7). Following the suppression of the GPS data, the state moved to

dismiss the charges against Asbury.

On May 23, 2016, Asbury initiated this civil action against

the defendants by filing a complaint in the Circuit Court of

Ritchie County (Dkt. No. 1-2). The first count raises a state law

negligence claim against the Commission. The remaining four counts

assert a number of federal constitutional claims under 42 U.S.C. §

1983, consisting of an illegal search under the Fourth Amendment

related to the warrantless installation and monitoring of the GPS

unit in Asbury’s vehicle,1 as well as separate but related

1

Although not raised by the parties, the Court finds that the

doctrine of collateral estoppel does not apply to Asbury’s Fourth

Amendment claim. Where charges against a criminal defendant have

been abandoned following a suppression ruling adverse to the state

3

constitutional violations, namely that the Commission had customs

or policies that authorized the violation of RCSD employees’ Fourth

Amendment rights. On June 22, 2016, the defendants removed the case

to this Court.

Pursuant to 28 U.S.C. § 1331, the Court has jurisdiction over

Asbury’s federal claims inasmuch as Section 1983 is a federal

statute through which deprivation of constitutional rights may be

redressed. A district court properly invested with jurisdiction can

also exercise supplemental jurisdiction over state law claims that

“form part of the same case or controversy.” 28 U.S.C. § 1367, see

also United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966).

Accordingly, the Court has jurisdiction over all of Asbury’s

claims.

Now pending are the parties’ cross motions for summary

judgment. Asbury has moved for summary judgment on his Fourth

Amendment claim. The defendants have moved for summary judgment on

all counts. The motions are fully briefed and ripe for disposition.

II. STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings,

in a prior criminal prosecution, the suppression ruling has no

preclusive effect in subsequent Section 1983 litigation. See, e.g.,

Bilida v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000)(no preclusion

where suppression ruling led simply to an abandonment of the

prosecution); Patzner v. Burkett, 779 F.2d 1363 (8th Cir.

1985)(upholding Section 1983 verdict for defendant officers where

criminal charges were dismissed based on state court ruling that

arrest was unconstitutional).

4

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, 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(c). When ruling on

a motion for summary judgment, the Court reviews all the evidence

“in the light most favorable” to the nonmoving party. Providence

Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.

2000). The Court must avoid weighing the evidence or determining

its truth and limit its inquiry solely to a determination of

whether genuine issues of triable fact exist. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).

The moving party bears the initial burden of informing the

Court of the basis for the motion and of establishing the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Once the moving party has made the

necessary showing, the non-moving party “must set forth specific

facts showing that there is a genuine issue for trial.” Anderson,

477 U.S. at 256 (internal quotation marks and citation omitted).

The “mere existence of a scintilla of evidence” favoring the non-

moving party will not prevent the entry of summary judgment; the

evidence must be such that a rational trier of fact could

reasonably find for the nonmoving party. Id. at 248–52.

5

III. APPLICABLE LAW

A. 42 U.S.C. § 1983 Claims

Several of Asbury’s claims stem from alleged violations of 42

U.S.C. § 1983, which provides as follows:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory

or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress, except that in any action

brought against a judicial officer for an act or omission

taken in such officer's judicial capacity, injunctive

relief shall not be granted unless a declaratory decree

was violated or declaratory relief was unavailable. For

the purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia shall

be considered to be a statute of the District of

Columbia.

To succeed on a § 1983 claim, a plaintiff must show that (1)

he was deprived of a right “secured by the Constitution and the

laws” of the United States, and (2) the individual who deprived him

of the right was acting under color of state law. Lugar v. Edmonson

Oil Co., 457 U.S. 922, 930 (1982) (internal citations omitted).

Generally, a public employee acts under color of law “while acting

in his official capacity or while exercising his responsibilities

pursuant to state law.” Conner v. Donnelly, 42 F.3d 220, 223 (4th

Cir. 1994) (quoting West v. Atkins, 487 U.S. 42, 50 (1988)).

Section 1983 “‘is not itself a source of substantive rights,’

6

but merely provides ‘a method for vindicating federal rights

elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, at 393-94

(1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)).

In order to determine what standard applies, courts must first

isolate “the specific constitutional right allegedly infringed.”

Baker, 443 U.S. at 140.

B. Fourth Amendment

The Fourth Amendment provides that “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated ....”

U.S. Const. amend. IV. It is from the clear language of the Fourth

Amendment that courts derive the standard applicable to alleged

violations of it. See Graham, 490 U.S. at 394-95.

V. DISCUSSION

Asbury seeks summary judgment on Count II of the complaint

(Dkt. No. 25). The defendants seek summary judgment on all counts

(Dkt. No. 27). Each of Asbury’s claims relate directly or

indirectly to the individual defendants’ installation and

monitoring of the GPS unit in his vehicle.

A. Count I - Negligence

In Count One of the complaint, Asbury asserts a negligence

claim against the defendants (Dkt. No. 1-2 at ¶¶ 27-30). During

discovery, Asbury clarified that this claim is solely against the

Commission (Dkt. No. 27-6 at 8-9).

7

Asbury alleges that the Commission negligently violated his

Fourth Amendment rights to be free from unreasonable search and

seizure by placing a GPS unit on his vehicle and monitoring him for

a period of five months, without a warrant. The Commission argues

that it is statutorily immune from liability on this claim.

The West Virginia Governmental Tort Claims and Insurance

Reform Act, W. Va. Code § 29-12A-1, et seq.(the “Act”) provides, in

pertinent part, that

[e]xcept as provided in subsection (c) of this section,

a political subdivision is not liable in damages in a

civil action for injury, death, or loss to persons or

property allegedly cause by any act or omission of the

political subdivision or an employee of the political

subdivision in connection with a governmental or

proprietary function.

W. Va. Code § 29-12A-4(b)(1). Thus, pursuant to West Virginia law,

political subdivisions are immune from suit for common law

negligence unless the claim falls within an exception provided in

subsection (c) of the Act. Those exceptions include: (1) the

negligent operation of any vehicle by employees within the scope of

their employment, (2) the negligent performance of acts by their

employees while acting within the scope of employment, (3) the

negligent maintenance of roads and sidewalks, (4) negligent act by

employees on subdivision property, and (5) any other liability

established by other sections of the code. Id. at § 29-12A-4(c).

In his response to the defendants’ motion, Asbury appears to

concede that none of the exceptions delineated in subsection (c)

8

applies to his claim, but nonetheless proceeds to cite part (2) of

that subsection, which provides:

Political subdivisions are liable for injury, death, or

loss to persons or property caused by the negligent

performance of acts by their employees while acting

within the scope of employment.

W. Va. Code § 29–12A–4(c)(2). He also argues that, even if none of

the exceptions in subsection (c) applies, his claim against the

Commission should be maintained under the Act because the conduct

alleged meets the general foreseeability standard of West Virginia

tort law.

A mere allegation of negligence, however, does not turn an

intentional tort into negligent conduct. Weigle v. Pifer, 139

F.Supp.3d 760, 780 (S.D. W.Va. 2015)(citing Benavidez v. United

States, 177 F.3d 927, 931 (10th Cir. 1999)). Conduct that supports

a negligence claim can be distinguished from conduct that supports

an intentional tort claim by examining the subjective intent of the

alleged tortfeasor. Id. (citing Kawaauhau v. Geiger, 523 U.S. 57,

62 (1998)(“Intentional torts, as distinguished from negligent or

reckless torts . . . generally require that the actor intend ‘the

consequences of an act,’ not simply ‘the act itself’.”)).

Here, Asbury fails to allege any conduct that supports a claim

of negligence against the Commission. It is apparent that Asbury’s

negligence claim stems from Backus and Barniak’s installation and

monitoring of a GPS tracking device on his vehicle (Dkt. No. 1-2 at

9

¶ 27-30). It is also clear from the allegations in the complaint,

and from the remainder of the record, that Backus and Barniak

intended the consequences of their actions during the time period

in which Asbury’s vehicle was tracked using a GPS unit. That is,

their conduct, including placing a GPS unit on Asbury’s cruiser,

was intentional and undertaken for the purpose of monitoring the

location of Asbury and his vehicle. Thus, while Backus and

Barniak’s actions may give rise to an intentional tort, they cannot

support liability predicated on negligence.

Further, as noted earlier, the negligence claim against the

Commission alleged in Count One is, at best, predicated on W. Va.

Code § 29-12A-4(c)(2), which extends vicarious liability to

political subdivisions for certain negligent acts committed by

employees of the subdivision who are acting within the scope of

their employment. Because the negligence claim against the

Commission is wholly dependent upon the conduct of Backus and

Barniak, Asbury’s negligence claim against the Commission cannot

proceed.

Accordingly, the Court GRANTS the Commission’s motion for

summary judgment as to the negligence claim against it in Count

One.

B. Count Two - Unreasonable Search and Seizure

All parties believe they are entitled to summary judgment on

Asbury’s claim that Backus and Barniak violated his Fourth

10

Amendment right to be free from unreasonable search and seizure by

placing a GPS unit on his county-issued police vehicle and

monitoring the physical location and speed of that vehicle without

a warrant.

Asbury argues that the defendants’ warrantless installation

and tracking of a GPS unit on his cruiser constitutes a search

implicating his Fourth Amendment rights, and that no exception to

the warrant requirement applies. Backus and Barniak argue that

Asbury’s claim is without merit because the government’s placement

and monitoring of a GPS unit to determine the location of its own

property does not violate the Fourth Amendment.

The Fourth Amendment prohibits “unreasonable searches and

seizures” by government agents, including government employers or

supervisors. U.S. Const. amend. IV; see O'Connor v. Ortega, 480

U.S. 709, 715 (1987) (plurality opinion). Warrantless searches are

per se unreasonable under the Fourth Amendment - subject only to a

few specifically established and well-delineated exceptions.” Katz

v. United States, 389 U.S. 347, 357 (1967).

It is undisputed that Backus and Barniak neither sought nor

obtained a warrant prior to secretly installing a GPS unit in the

police cruiser issued to Asbury. The issue therefore is whether the

warrantless installation and monitoring of the GPS unit in Asbury’s

cruiser constitutes a search implicating his Fourth Amendment

rights, and if so, whether that search was nonetheless reasonable

11

pursuant to the “special government needs” exception to the warrant

requirement.

1. Physical Trespass on Property

A “search” may occur when the government intrudes upon a

person’s “reasonable expectation of privacy.” Katz, 389 U.S. at

361. Or, a search may occur when the government intrudes or

trespasses upon a constitutionally protected area for the purposes

of obtaining information. United States v. Jones, 565 U.S. 400, 408

n.5 (2012). In arguing that the installation and monitoring of a

GPS unit on his county-issued police cruiser constitutes a search

under the Fourth Amendment, Asbury argues that, because the case at

hand involves warrantless GPS tracking of a vehicle, the Court’s

analysis should be governed by U.S. v. Jones.

In Jones, the FBI and local law enforcement secretly installed

a GPS tracking device on a private vehicle and monitored the

vehicle's movements for 28 days. 565 U.S. at 403. The GPS device

established the vehicle's location within 50 to 100 feet and

communicated that location to a government computer. Id. The

Supreme Court concluded that the government had physically intruded

on the defendant's private property to install the GPS device, and

that its use of the device for the purpose of monitoring the

vehicle's movements constituted a search in violation of the Fourth

Amendment.

Relying on Jones, Asbury contends that the installation of a

12

GPS unit in his county vehicle amounted to an equivalent trespass

upon property for the purpose of gathering information, and thus

that the defendants’ use of that GPS unit to monitor his cruiser’s

movements constituted a Fourth Amendment search. Despite Asbury’s

attempt to expand Jones to all cases involving governmental use of

a GPS device, the holding in Jones was fact-dependent and narrow.

There, the Supreme Court emphasized the significance of the private

nature of the property in question, stating:

It is important to be clear about what occurred in this

case: The Government physically occupied private property

for the purpose of obtaining information. We have no

doubt that such a physical intrusion would have been

considered a “search” within the meaning of the Fourth

Amendment when it was adopted.

Id. at 404-05 (emphasis added). Thus, contrary to Asbury’s

contention, in Jones, the cause of the constitutional violation was

not the method of gathering information by GPS but the physical

trespass on a private vehicle.

This case is factually distinguishable from Jones. Here, the

government did not attach a GPS unit to, or otherwise physically

occupy, Asbury’s private property. Rather, the government placed a

GPS unit on its own property. It is undisputed that the vehicle in

question was owned by the Commission and issued to Asbury solely

for use in the performance of his assigned duties and

responsibilities as a sheriff’s deputy. On these undisputed facts,

most notably the public--rather than private--nature of the

13

property at issue, the Court concludes that Jones is inapposite,

and that the installation and monitoring of the GPS unit on

Asbury’s government-owned and issued cruiser did not constitute a

search under Jones.

Having concluded that Asbury’s reliance on Jones is misplaced,

the Court must now determine whether Asbury had a reasonable

expectation of privacy in the location and speed of the vehicle.

2. Reasonable Expectation of Privacy

In order to prove a legitimate expectation of privacy, Asbury

must establish that his subjective expectation of privacy is one

that society is prepared to accept as objectively reasonable. See

California v. Greenwood, 486 U.S. 35, 39 (1988). And, “given the

great variety of work environments in the public sector, the

question whether an employee has a reasonable expectation of

privacy must be addressed on a case-by-case basis.” O’Connor, 480

U.S. at 718.

For example, government employees may have a legitimate

expectation of privacy in their offices or in parts of their

offices such as their desks or file cabinets. Id. at 716-18;

Shields v. Burge, 874 F.2d 1201, 1203-04 (7th Cir. 1989)(concluding

that the holding of the O'Connor plurality governs). However,

office practices, procedures, or regulations may reduce legitimate

privacy expectations. See O'Connor, 480 U.S. at 717 (Blackmun, J.,

dissenting). Here, the burden is on Asbury to prove that he had a

14

legitimate expectation of privacy in the information collected by

the GPS unit. See Rusher, 966 F.2d at 874.

Asbury contends that he had a reasonable expectation of

privacy in the physical location and speed of his county-owned

police cruiser. That contention, however, is belied by several

relevant provisions in RSCD’s “Policies and Procedures” manual (the

“Policy”).

Foremost, the Policy makes clear that the vehicle at issue was

assigned to Asbury solely for use in the scope of his employment as

a Ritchie County deputy. Policy provisions regarding “Office

Property and Equipment” and “Vehicle Usage” provide that deputies

are assigned equipment, including motor vehicles, “for use in the

performance of [their] assigned duties and responsibilities” (Dkt.

No. 27-5 at 8, 9). The “Office Property and Equipment” provision

goes on to state that “[a]t no time shall any equipment belonging

to this office be used by any deputy sheriff . . . for personal

purposes.” Id. at 8. Moreover, Paragraph X of the Policy’s “General

Duty Requirements” makes explicit that the RCSD’s general

prohibition against personal use of departmental equipment applies

with equal force to its vehicles:

Deputy Sheriff’s [sic] shall not use their assigned

vehicles for personal business or for the transportation

of unauthorized persons. Any request to use an assigned

police vehicle for other than official business is to be

directed to the Sheriff of Ritchie County.

Id. at 13. Also relevant to Asbury’s contention that he had a

15

reasonable expectation of privacy in the location of his cruiser is

Paragraph B of the General Duty Requirements, which provides that,

[w]hile on duty, Deputy Sheriff’s [sic] shall maintain

proper radio contact and communications with this office

and Central Communications, Inc. (911 Center). All deputy

sheriffs shall keep dispatch personnel informed of their

whereabouts. To this end, deputy sheriff’s [sic] shall

keep their assigned portable radios charged, turned on,

and in their immediate possession.

Id. at 11.

It is undisputed that the device installed in Asbury’s cruiser

provided data to the RCSD regarding the vehicle’s location, time of

use, and speed, and that it only recorded data while the vehicle

was in use. Per Paragraph B of the Policy’s General Duty

Requirements, the data recorded by the GPS device is the same

information Asbury was already required to provide to dispatch when

on duty. And, to the extent that Asbury claims the GPS unit tracked

his cruiser’s location when he was not on-duty, as already noted,

any personal use of the vehicle by Asbury was explicitly prohibited

under several Policy provisions.

The Court therefore concludes that, on this record and in

light of the Policy provisions cited, Asbury did not possess a

legitimate expectation of privacy in the information collected by

the GPS device at issue. At bottom, this case involves a government

employer monitoring the physical location and speed of a government

owned and issued vehicle while in use by a government employee in

the scope of his employment. In that light, and for the reasons

16

discussed, the defendants’ actions do not constitute a search

within the meaning of the Fourth Amendment, whether under the Jones

physical trespass analysis or the Katz “reasonable expectation of

privacy” formulation. Therefore, Asbury’s Fourth Amendment claim

fails as a matter of law.

3. Reasonableness of Search

Finally, the Court concludes that even if the warrantless

installation and monitoring of the GPS unit in Asbury’s cruiser had

implicated a legitimate expectation of privacy, which it did not,

the defendants’ conduct was reasonable under the O’Connor exception

to the warrant requirement.

A search conducted without a warrant issued by a judge or

magistrate upon a showing of probable cause is “per se

unreasonable” unless it falls within one of the “specifically

established and well-delineated exceptions” to the warrant

requirement. Katz v. United States, 389 U.S. 347, 357 (1967); see

United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en

banc). One exception arises when the requirement is rendered

impracticable by “special needs, beyond the normal need for law

enforcement.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653

(1995).

In determining the appropriate standard for a search conducted

by a public employer in areas in which an employee has a reasonable

expectation of privacy, what is a reasonable search “depends on the

17

context within which the search takes place,” and requires that the

Court balance “the employee's legitimate expectations of privacy

against the government's need for supervision, control, and the

efficient operation of the workplace.” O’Connor, 480 U.S. at 719-

720.

In O'Connor, the Supreme Court held that a government

employer's interest in “the efficient and proper operation of the

workplace” may justify warrantless work-related searches. O'Connor,

480 U.S. at 723; see id. at 720-25. The O'Connor Court further held

that when a government employer conducts a search pursuant to an

investigation of work-related misconduct the Fourth Amendment will

be satisfied if the search is reasonable in its inception and its

scope. See id. at 725-26.

A search normally will be reasonable at its inception “when

there are reasonable grounds for suspecting that the search will

turn up evidence that the employee is guilty of work-related

misconduct.” Id. at 726. “The search will be permissible in its

scope when ‘the measures adopted are reasonably related to the

objectives of the search and not excessively intrusive in light of

... the nature of the [misconduct].’” Id. (alterations in

original)(quoting New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)).

Here, the Court concludes that the defendants’ warrantless

installation of the GPS unit in Asbury’s cruiser and their

subsequent monitoring of its location data, was reasonable under

18

the standard articulated in O’Connor. At the inception of the

search, the defendants had “reasonable grounds for suspecting” that

the information collected by the GPS device would yield evidence of

workplace misconduct because Asbury’s reported activity levels in

the community, including number of calls taken, citations issued,

process served, and hours spent in court, were significantly lower

than those of his fellow deputies (Dkt. No. 27-1 at 5-6; Dkt. No.

27-3 at 20, 27; Dkt. No. 27-4 at 2-3).

The search was also reasonable in scope. The measure adopted,

installing a GPS unit on Asbury’s cruiser, was reasonably related

to the objective of the search, determining Asbury’s whereabouts in

the community while on duty in a county vehicle. Nor was the search

excessively intrusive. As previously discussed, it is undisputed

that the GPS device installed in Asbury’s cruiser recorded

information pertaining to the vehicle’s physical location, time of

use, and speed. The GPS did not collect information regarding the

personal items Asbury may have kept in his cruiser, nor did it

monitor or record the conversations he may have conducted within

it. Rather, the device merely tracked and recorded the location and

speed of the vehicle while in use. Notably, this was the same

information that Asbury himself was required to report to dispatch

while on duty.

Under these circumstances, the Court concludes that the

installation and monitoring of a GPS unit in Asbury’s cruiser is

19

conduct in which a reasonable employer might engage. See Vernonia

School Dist. 47J, 515 U.S. at 665 (characterizing the relevant

question as whether the intrusion by the government employer is one

in which a reasonable employer might engage). Therefore, even

assuming that Asbury had a legitimate expectation of privacy in the

information collected by the GPS unit, which he did not, his Fourth

Amendment claim still fails because any such search was reasonable

under the O’Connor exception. Accordingly, the Court GRANTS the

defendants’ motion for summary judgment on Count Two and DENIES the

plaintiff’s motion for summary judgment on the same.

C. Count Three - Bystander Liability

In Count Three of the complaint, Asbury alleges that other

RCSD deputies were aware of the installation and monitoring of the

GPS unit in his vehicle and failed to intercede (Dkt. No. 102 at ¶¶

39-40) In his response to the defendants’ motion, however, Asbury

abandoned his claim of bystander liability as alleged in the

complaint (Dkt. No. 33 at 22). Consequently, the Court GRANTS the

defendants’ motion for summary judgment on Count Three.

D. Count Four - Municipal Liability

In Count Four, Asbury alleges that the Commission is liable

for the actions of Backus and Barniak because it “instituted an

official policy, custom, and practice of violating the Fourth

Amendment rights of sheriff’s department employees in order to

20

gather evidence against them to use against them for adverse

employment reasons” (Dkt. No. 1-2 at ¶ 42).

It is well established that a municipality cannot be held

liable simply for employing a tortfeasor. Monell v. Dep’t of Soc.

Servs. of City of N.Y., 436 U.S. 658, 691 (1978). A municipality

may be subject to liability under § 1983 if the alleged injury was

caused by an identifiable municipal policy or custom. Bd. of Cty.

Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 403 (1997). A

government policy or custom need not have received formal approval

through the municipality’s official decision making channels to

subject the municipality to liability. Rather, when an alleged

constitutional deprivation is caused by the official actions of

those individuals “whose edicts or acts may fairly be said to

represent official policy,” the government as an entity is

responsible under § 1983. Monell, 436 U.S. at 694.

Because § 1983 was not designed to impose municipal liability

under the doctrine of respondent superior, the “official policy”

requirement was “intended to distinguish acts of the municipality

from acts of employees of the municipality, and thereby make clear

that municipal liability is limited to action for which the

municipality is actually responsible.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 479 (1986).

Of course, not every decision by a municipal official will

subject a municipality to § 1983 liability. Rather, “[m]unicipal

21

liability attaches only where the decisionmaker possesses final

authority to establish municipal policy with respect to the action

ordered.” Pembaur, 475 U.S., at 481. To qualify as a “final

policymaking official,” a municipal official must have the

responsibility and authority to implement final municipal policy

with respect to a particular course of action. Id. at 482–83; see

also Spell v. McDaniel, 824 F.2d 1380, 1386 (4th Cir. 1987)

(“‘[P]olicymaking authority’ implies authority to set and implement

general goals and programs of municipal government, as opposed to

discretionary authority in purely operational aspects of

government.”). Therefore, to impose municipal liability on the

Commission, Asbury must identify municipal officials with “final

policymaking authority” to implement the alleged policy of

acquiescence with respect to the alleged conduct.

The Fourth Circuit has explained that “to qualify as a ‘final

policymaking official’ a municipal officer must have the

responsibility and authority to implement final municipal policy

with respect to a particular course of action.” Riddick v. School

Bd. of Portsmouth, 238 F.3d 518, 523 (4th Cir. 2000). Thus, who

possesses final policymaking authority is a question of state law.

Pembaur, 475 U.S., at 483. In order to determine which officials

possess final policymaking authority for the allegedly

unconstitutional action in question, courts look to “the relevant

legal materials, including state and local positive law, as well as

22

‘custom or usage having the force of law.’” Jett v. Dallas Indep.

Sch. Dist., 491 U.S. 701, 737 (1989)(quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 124 n. 1 (1988)).

Article IX, Section II of the West Virginia Constitution

provides, in pertinent part, that the county commissions “have the

superintendence and administration of the internal police and

fiscal affairs of their counties.” Moreover, the Supreme Court of

Appeals of West Virginia has held that “[t]he sheriff, though an

important law enforcement officer, does not have the complete or

the exclusive control of the internal police affairs of the

county.” Syl. Pt. 5, State ex rel. Farley v. Spaulding, 507 S.E.2d

376 (W. Va. 1998)(citing Hockman v. Tucker Cnty. Ct., 75 S.E.2d 82,

85 (W. Va. 1953)). Therefore, under West Virginia law, Sheriff

Backus was not a final policymaker upon which liability may attach.

Rather, the final policy maker is the Commission itself.

Further, even if Backus had final policymaking authority,

“[t]he plaintiff must also demonstrate that, through its deliberate

conduct, the municipality itself is the ‘moving force’ behind the

plaintiff’s deprivation of federal rights.” Brown, 520 U.S., at 397

(quoting Monell, supra, at 649)(emphasis in original). Accordingly,

to impose § 1983 liability on a municipality, a claimant must first

establish that “a municipal decision reflects deliberate

indifference to the risk that a violation of a particular

constitutional or statutory right will follow the decision.” Id. at

23

411. If a § 1983 claimant can demonstrate the requisite degree of

culpability, he must then show “a direct causal link between the

municipal action and the deprivation of federal rights.” Id. at

404.

Here, Asbury argues that Fourth Amendment violations such as

the GPS tracking at issue here have been a practice the defendants

have utilized to deal with deputies who are deemed to be

“problems.” The only evidence Asbury cites in support of such an

alleged practice is Backus and Barniak’s prior GPS tracking of a

former deputy and their search of another deputy’s department-

issued cell phone. Neither allegation, however, provides a

sufficient basis for a finding of municipal liability against the

Commission.

Asbury’s municipal liability claim hinges on Fourth Amendment

allegations against Backus and Barniak. Asbury admitted that he has

no knowledge or information concerning any policies, practices or

customs of the Commission that caused the alleged violation (Dkt.

No. 27-2 at 85-86). Further, there is no evidence that the

Commission sanctioned or ordered the installation of GPS units on

any county-owned vehicles, or the search of any department-owned

cell phones. These two incidents, together with the case at hand,

do not establish that a “deliberate action attributable to the

municipality itself is the ‘moving force’ behind the plaintiff’s

deprivation of federal rights.” Id. at 397.

24

Therefore, for the reasons discussed, the Court finds that

neither Backus nor Barniak had final policymaking authority, and

that Asbury has failed to demonstrate that any deliberate action by

the Commission was the moving force behind the alleged deprivation

of his rights. His municipal liability claim against the Commission

thus fails as a matter of law, and the Court GRANTS the defendants’

motion for summary judgment as to Count Four.

E. Count Five - Supervisor Liability

In Count Five of the complaint, Asbury alleges that Backus, as

Barniak’s supervisor, is liable for the actions of Barniak (Dkt.

No. 1-2 at ¶¶ 48-51). In his response to the defendants’ motion,

however, Asbury abandons this claim of supervisor liability (Dkt.

No. 33 at 25). The Court therefore GRANTS the defendants’ motion

for summary judgment as to Count Five.

V. CONCLUSION

For the reasons discussed, the Court:

• DENIES the plaintiff’s motion for summary judgment on

Count Two;

• GRANTS the defendants’ motion for summary judgment on

Counts One, Two, Three, Four, and Five;

• DISMISSES this case with PREJUDICE, and ORDERS it

stricken from the Court’s active docket.

25

It is so ORDERED.

The Court DIRECTS the Clerk to transmit copies of this Order

to counsel of record and to enter a separate judgment order.

DATED: January 16, 2018.

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE

26