The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
OTHELLO THOMAS BYNDON,
Plaintiff,
v. Civil Action No. 5:16CV103
(STAMP)
GARRETT PUGH,
DOUG HOWELL and
THE CITY OF WHEELING,
a West Virginia
municipal corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS GARRETT PUGH
AND THE CITY OF WHEELING’S
MOTION FOR SUMMARY JUDGMENT
I. Background
The plaintiff, Othello Thomas Byndon (“Byndon”), originally
filed this civil action in the Circuit Court of Ohio County, West
Virginia. ECF No. 1-1 at 1. The defendants, Garret Pugh, Doug
Howell, and the City of Wheeling, removed the civil action to this
Court on June 27, 2016. ECF No. 1. On February 15, 2017, this
Court approved the parties’ stipulation of dismissal of defendant
Doug Howell. ECF No. 19. Therefore, Garret Pugh (“Officer Pugh”)
and the City of Wheeling (“City”) are the only remaining
defendants.
This case arises out of the alleged actions of a police
officer during a traffic stop in or around Wheeling, West Virginia.
The parties agree that on June 23, 2014, the plaintiff was pulled
over while traveling on I-470. ECF Nos. 1-1 at 2-3 and 5 at 4-5.
In the course of the traffic stop, the police officers searched the
plaintiff’s vehicle and forcibly removed the plaintiff from his
vehicle, including the use of a taser. ECF No. 1-1 at 5-6. The
plaintiff was arrested, but all charges were eventually dropped.
Id. at 8-9. The plaintiff initially brought claims for deprivation
of civil rights under 42 U.S.C. § 1983, intentional infliction of
emotional distress (“IIED”), battery, assault, negligent retention
and hiring, civil conspiracy, and negligent training and
supervision. Id. at 12-18.
On May 14, 2018, the defendants filed a motion for summary
judgment. ECF No. 24. The defendants argue that Officer Pugh, a
Wheeling police officer, is immune from both the § 1983 claim and
the state law claims, and that the plaintiff has failed to provide
supporting evidence for the state law claims. ECF No. 25 at 5, 16,
and 20-25. First, the defendants argue that Officer Pugh is immune
for purposes of § 1983 because qualified immunity protects public
officials for actions made in the course of their employment as
long as they acted reasonably. Id. at 5. The defendants argue
that throughout the traffic stop, arrest, and search of the
vehicle, Officer Pugh’s actions were reasonable and legal. Id. at
7-12.
Second, the defendants assert that Officer Pugh is immune from
liability for the claims of IIED, battery, and assault. Id. at 16.
2
Under West Virginia Code § 29-12A-5(b), the Governmental Tort
Claims and Insurance Reform Act:
An employee of a political subdivision is immune from
liability unless one of the following applies: (1) His or
her acts or omissions were manifestly outside the scope
of employment or official responsibilities; (2) His or
her acts or omissions were with malicious purpose, in bad
faith, or in a wanton or reckless manner; or (3)
Liability is expressly imposed upon the employee by a
provision of this code.
W. Va. Code § 29-12A-5. The defendants contend that Officer Pugh
was acting within the scope of his employment and that the
plaintiff has offered no evidence that Officer Pugh acted
maliciously. ECF No. 25 at 16. Thus, the defendants contend
Officer Pugh is immune from liability. Id.
Third, the defendants argue that the City cannot be held
liable for the claims of IIED, battery, and assault, because
“[state] law does not allow political subdivisions to be held
liable for ‘intentional malfeasance’ on the part of their
employees.” Id. at 17.
Fourth, the defendants argue that the plaintiff has provided
no evidence to support the negligent retention and hiring claim;
they contend this is merely a “boilerplate assertion” without any
specific evidence of a negligent hiring decision. Id. at 17-19.
The defendants similarly argue that the negligent training and
supervision claim, the supervisor liability claims, the municipal
liability claims, and the deliberate indifference claim likewise
must fail because the plaintiff has either merely asserted the
3
claims without offering supporting evidence or failed to fully
plead the claim. Id. at 20-25.
Fifth, the defendants argue that the civil conspiracy claim
must fail because the plaintiffs have not alleged any facts to show
that there was an agreement or understanding among the defendants.
Id. at 19. They state that the plaintiff must allege that there
was an “agreement of the minds” and that a state or federal
official willfully participated in a joint activity. Id. at 19-20.
Finally, the defendants assert that the plaintiff’s state
constitutional claims are moot because the West Virginia
Constitution does not contain any equivalent to 42 U.S.C. § 1983
that would allow the plaintiff to recover for money damages. Id.
at 21.
The plaintiff filed a response in opposition to the
defendants’ motion for summary judgment. ECF No. 28. In it, the
plaintiff first waives and concedes judgment on the claims of
negligent retention and hiring, assault, negligent training and
supervision, and deliberate indifference. Id. at 1. The plaintiff
then argues that the remaining claims are inappropriate for summary
judgment because they all rest on a disputed material fact-namely,
whether Officer Pugh was within his jurisdictional limits when he
observed the plaintiff’s driving. Id. at 11. Along the portion of
I-470 in question, the interstate passes through the city limits in
such a way that the interstate is within the city limits of
4
Wheeling, then proceeds into city limits of the Village of
Bethlehem, and then back into the city limits of Wheeling. ECF No.
28-1. Relying on the deposition of Officer Pugh, the plaintiff
contends that there is a genuine issue of material fact as to
whether Officer Pugh observed the plaintiff driving too closely to
the vehicle ahead of him in Wheeling or Bethlehem. ECF No. 28 at
1-2. Because Officer Pugh’s observation of plaintiff following too
closely was the probable cause by which he pulled over the
plaintiff, the plaintiff contends that the subsequent stop, search,
and arrest were unlawful if this observation occurred outside his
jurisdiction in Bethlehem. ECF No. 28 at 2.
The plaintiff then claims that Officer Pugh violated the
plaintiff’s clearly established rights under the First and Fourth
Amendments because the stop was illegal and “a jury might
reasonably conclude that [d]efendant Pugh summoned ‘back up’
because of Mr. Byndon and his front seat passenger [sic] spirited
criticism of [d]efendant Pugh’s stated basis for stopping him.”
Id. at 18-19. The plaintiff claims that this jurisdictional issue
is one of material fact for the claims of civil conspiracy, IIED,
battery, and the § 1983 claim. Id. at 21.
The defendants filed a reply. ECF No. 30. The defendants
contend that “[t]here is no genuine issue of material fact as to
where [d]efendant Pugh observed [p]laintiff’s illegal driving.”
Id. at 1. Citing Officer Pugh’s testimony, they maintain that
5
Officer Pugh first observed plaintiff’s driving around mile marker
5.4 or 5.5, well within the city limits of Wheeling. Id. at 1-2.
Thus, the defendants argue that the plaintiff’s claims must fail
because the plaintiff’s argument is “entirely dependent upon his
proposition that the traffic stop was illegal.” Id. at 3. Next,
they contend that even if the Court assumes that Officer Pugh did
not realize he was outside the city limits when he activated the
light bar on his police cruiser, it was reasonable for him to
believe he was still within Wheeling’s city limits. Id. at 5-6.
The defendants therefore argue that qualified immunity applies
because “[d]efendant Pugh’s actions were reasonable under the
circumstances.” Id. at 6.
Further, the defendants contend that the plaintiff’s First
Amendment argument is “senseless” because rather than Officer Pugh
calling for backup in response to plaintiff’s criticism, the
plaintiff himself called the police department to demand a
supervisor. Id. at 6.
In addition to the jurisdictional issue, the defendants note
that there are additional reasons the plaintiff’s state law claims
must be dismissed. First, the defendants argue that the civil
conspiracy claim must fail as a matter of law because the plaintiff
has still not alleged that any state official willfully
participated in a joint activity. Id. at 8. Next, the IIED claim
must fail because there is no evidence to establish any of the
6
elements of that claim. Id. at 9-10. Finally, the defendants
contend that the battery claim must fail because the plaintiff has
waived and conceded the assault claim, and that “the two claims go
hand in hand under the current facts.” Id. at 10.
II. Applicable Law
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c). The party seeking summary judgment bears
the initial burden of showing the absence of any genuine issues of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). “The burden then shifts to the nonmoving party to come
forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing
7
that there is a genuine issue for trial.” Anderson, 477 U.S. at
256. “The inquiry performed is the threshold inquiry of determining
whether there is the need for a trial—whether, in other words,
there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in
favor of either party.” Id. at 250; see also Charbonnages de
France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (“Summary
judgment ‘should be granted only in those cases where it is
perfectly clear that no issue of fact is involved and inquiry into
the facts is not desirable to clarify the application of the law.’”
(citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th
Cir. 1950))).
In Celotex, the Supreme Court stated that “the plain language
of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
In reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
8
III. Discussion
A. 42 U.S.C. § 1983 (Count I)
1. Plaintiff has failed to prove a claim of municipal
liability under 42 U.S.C. § 1983 and Monell against the City of
Wheeling, West Virginia
Pursuant to Monell v. Dep’t of Social Servs. Of City of New
York, 436 U.S. 658 (1978), § 1983 liability against a local
government or municipality may arise when execution of the
government’s unconstitutional policy or custom causes plaintiff’s
injury. See Walker v. Prince George’s Cnty., Md., 575 F.3d 426,
431 (4th Cir. 2009). Specifically, the plaintiff must demonstrate
the following: “(1) the municipality [has] actual or constructive
knowledge of the custom and usage by its responsible policymakers,
and (2) . . . failure by those policymakers, as a matter of
specific intent or deliberate indifference, to correct or terminate
the improper custom or usage.” Randall v. Prince George’s Cnty,
Md., 302 F.3d 188, 201 (4th Cir. 2002) (internal quotation marks
omitted). “A custom is a practice that, although not formally
approved by an appropriate decision maker is so widespread as to
have the force of law. Bd. of Cnty. Comm’rs v. Brown, 520 U.S.
397, 404 (1997).
Plaintiff names the City of Wheeling as a defendant in his
complaint. ECF No. 1-1 at 1. Additionally, he alleges that “in
permitting [d]efendant[] to continue to function as [a] law
enforcement officer[] in light of [his] prolific pattern of
9
constitutional violations and unlawful conduct under color of State
law . . . of which the City and its supervisory and managerial
agents had actual and extended knowledge, maliciously and
intentionally exhibited deliberate indifference to a pattern of
constitutional violations by [d]efendant[] Pugh . . . and other
Officers of the City of Wheeling . . . thus encouraging,
acquiescing in, and condoning their unlawful and unconstitutional
conduct.” Id. at 12-13. It is important to note that the
plaintiff has failed to address the defendant’s arguments in his
response to the defendants’ motion for summary judgment.
Therefore, the Court will consider this argument as waived by the
plaintiff. However, even if the Court were to consider this
argument, it would fail. The plaintiff alleges no other incident
of alleged police misconduct against the plaintiff and does not
present any facts or evidence supporting his contention that the
City’s alleged failure to investigate, supervise, or discipline its
police officers has resulted in a pattern of similar constitutional
violations. His allegations fall far short of “persistent and
widespread” misconduct constituting a “custom or usage with the
force of law.” Carter v. Morris, 164 F.3d 215, 217 (4th Cir.
1999).
2. Officer Pugh is entitled to qualified immunity as a matter
of law
“Government officials performing discretionary functions are
entitled to qualified immunity from liability for civil damages to
10
the extent that ‘their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’” Winfield v. Bass, 106 F.3d 525, 530 (4th Cir.
1997) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In
reviewing a qualified immunity defense, this Court must identify
the specific right that the plaintiff asserts was infringed by the
challenged conduct, recognizing that the right must be defined at
the appropriate level of particularity. Taylor v. Waters, 81 F.3d
429, 433 (4th Cir. 1996). This Court must then consider “whether,
at the time of the claimed violation, this right was clearly
established and ‘whether a reasonable person in the official’s
position would have known that his conduct would violate that
right.’” Winfield, 106 F.3d at 530 (internal quotations omitted).
a. Fourth Amendment Claims
(1) Jurisdictional Issue
(a) There is no genuine dispute of material fact as to
whether Officer Pugh observed Mr. Byndon outside of his
jurisdiction
It is undisputed that the stop that led to Mr. Byndon’s
eventual arrest occurred in Wheeling, West Virginia, within the
jurisdiction of Officer Pugh. As noted above, the relevant portion
of I-470 passes through the city limits in a way that the
interstate is within the city limits of Wheeling, then proceeds
into the city limits of the Village of Bethlehem, and then back
into the city limits of Wheeling. ECF No. 28-1. Mr. Byndon’s
11
complaint states that he was driving on I-70 West in West Virginia.
ECF No. 1-1 at 2. Officer Pugh was parked in one of two gravel
turnarounds on I-70-the one at mile marker 5.4 or the one at mile
marker 5.5. ECF No. 30-1. The plaintiff testified under oath that
he first saw Officer Pugh’s vehicle in the gravel turnaround in the
middle of I-70. ECF No. 30 at 2. Both of those markers are
located within Wheeling city limits. This admission tends to show
that Officer Pugh observed plaintiff’s alleged traffic infraction
before entering the Village of Bethlehem boundaries.
(b) Even if Officer Pugh’s observations that led to and
eventual stop and Mr. Byndon’s arrest were extra-jurisdictional,
such conduct likely does not violate the Fourth Amendment
The Fourth Amendment protects “the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. U.S. Const. amend. IV. A
seizure occurs when, under the totality of the circumstances, “a
reasonable person would not feel free to leave or otherwise
terminate the encounter with the police.” United States v.
Cunningham, 441 F. App’x 209 (4th Cir. 2011) (citing United States
v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002)).
The United States Court of Appeals for the Fourth Circuit has
addressed the issue of whether an officer’s arrest of an individual
based on an investigation that was conducted outside of his
territorial jurisdiction rises to the level of a constitutional
violation. Specifically, in Neal v. Luedtke, 713 F. App’x 177, 181
12
(2017), the Fourth Circuit upheld the trial court’s determination
that a city’s law enforcement officers were entitled to qualified
immunity for the search of the plaintiff’s residence that led to
his arrest and indictment and granted the defendant’s summary
judgment motion dismissing the plaintiff’s § 1983 complaint
alleging violations under the Fourth and Fourteenth Amendments to
the United States Constitution. In analyzing this particular
issue, the trial court had stated:
In United States v. Atwell, 470 F. Supp. 2d 554 (D. Md.
2007), this Court held that an officer’s arrest of an
individual outside of his territorial jurisdiction did
not, by itself, rise to the level of a constitutional
violation. Atwell, 470 F. Supp. 2d at 573 . . . [T]his
Court in Atwell observed that “[t]he majority view,
including decisions in the Courts of Appeal for the
Seventh and Eighth Circuits, and more recent decisions in
the Tenth Circuit, firmly rejects the notion that a lack
of state statutory authority to make an arrest
constitutes a per se violation of the Fourth Amendment.”
Id. (citing United States v. Mikulski, 317 F.3d 1228
(10th Cir. 2003); United States v. Baker, 16 F.3d 854,
856 n. 1 (8th Cir. 1994); Pasiewicz v. Lake County Forest
Preserve District, 270 F.3d 520 (7th. Cir. 2001)). ‘In
order to properly assess the reasonableness of an
extra-jurisdictional arrest, a court should consider a
number of factors.’ Id. The first and primary factor
(factor 1) is the ‘existence of probable cause.’ Id.
‘Other relevant factors . . . include the degree of the
officer’s compliance with state law (factor 2); the fact
that officers were acting between political subdivisions
of the same state (factor 3); the presence of exigent
circumstances or the lack thereof (factor 4); the
location where the offense or crime originated (factor
5); an officer’s knowledge that he was without authority
to make an arrest (factor 6); ‘[an officer’s] blatant
disregard of state law and the chain of command[;]’
(factor 7); the motivation behind the state statute
limiting territorial jurisdiction and whether it was
designed to protect against unreasonable police behavior
13
(factor 8); and the state’s interest in making a
particular type of arrest (factor 9).’ Id. at 574.
Neal, No. RDB-15-1030, 2016 WL 775406, at *6 (D. Md. Feb. 29,
2016).
Similar to Neal, here the plaintiff alleges that his Fourth
Amendment rights have been violated when Officer Pugh allegedly
observed Mr. Byndon commit a traffic infraction and seized the
plaintiff outside Officer Pugh’s lawful jurisdiction. Although
Neal is an unpublished opinion, and therefore is not regarded as
binding precedent,1 this Court believes that the Atwell multi-
factored test, applied in Neal, is an appropriate way to analyze
this particular issue.
i) Factor 1
Traffic stops, like arrests, implicate the Fourth Amendment.
U.S. v. Foreman, 369 F.3d 776 (4th Cir. 2004). A traffic stop is
constitutionally reasonable when a police officer has “probable
cause to believe that a traffic violation has occurred[,]” Whren v.
United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89
1Unpublished opinions are not precedential. Hogan v. Carter,
85 F.3 1113, 1118 (4th Cir. 1996); United States v. Ruhe, 191 F.3d
376, 392 (4th Cir. 1999). But see Collins v. Pond Creek Mining
Co., 498 F. 3d 213, 219 (4th Cir. 2006)(holding that unpublished
decisions do not have precedential value, but “are entitled only to
the weight they generate by the persuasiveness of their reasoning”
(citation omitted)); see also Fourth Circuit Local Rule 32.1 (“A
court may not prohibit or restrict the citation of federal judicial
opinions, orders, judgments or other written dispositions that have
been . . . designated as ‘unpublished’ . . . or issued on or after
January 1, 2007”).
14
(1996), or “reasonable articulable suspicion that criminal activity
may be afoot.” Terry v. Ohio, 392, U.S. 1, 88 S. Ct. 1868, 20
L.Ed.2d 889 (1968). More specifically, under this standard, an
officer is justified to “detain an automobile and its occupants
pending inquiry into a vehicular violation.” United States v.
Palmer, 820 F.3d 640, 648 (citing Arizona v. Johnson, 555 U.S. 323,
327, 129 S. Ct. 781) (internal quotation marks omitted). A stop
may also be justified when a driver fails to comply with traffic
laws. Id. (citing United States v. Green, 740 F.3d 275, 275, 279
n.1 (4th Cir. 2014). When assessing whether there is probable
cause or articulable suspicion, the Court does not inquire as to
the officer’s subjective intent for stopping a vehicle. United
States v. Branch, 537 F.3d 328, 340 (4th Cir. 2008). Rather, the
question is “viewed objectively.” Whren v. United States, 517 U.S.
806, 813, 116 S. Ct. 1769, 1774, 135 L.Ed.2d 89 (1996).
“Reasonable suspicion is a ‘commonsense, nontechnical’ standard
that relies on the judgment of experienced law enforcement
officers, ‘not legal technicians.’” Id. (citing Ornelas v. United
States, 517 U.S. 690, 695, 116 S. Ct. 1657, 134 L.Ed.2d 911
(1996)).
In this case, the Court finds that Officer Pugh had both
probable cause to believe that plaintiff Byndon had committed a
traffic violation as well as a constitutionally reasonable
suspicion that a traffic violation (driving too closely) was taking
15
place. First, plaintiff Byndon does not deny that Officer Pugh had
reasonable suspicion to pull him over; rather, he contends that
there is a genuine issue of material fact as to whether Officer
Pugh had “probable cause to pull over plaintiff within the
jurisdictional limits of the city.” ECF No. 28 at 1-2. Second,
Officer Pugh testified that he saw Byndon was “following too
closely,” in violation of West Virginia Code § 17C-7-10(a). ECF
No. 25 at 7-8. This provided Officer Pugh with probable cause to
believe that Byndon had violated the West Virginia traffic code.
As the Fourth Circuit has recognized, pulling over a vehicle and
citing a driver for such a traffic violation is permissible under
the Fourth Amendment. See United States v. Mimms, 155 F.3d 562
(4th Cir. 1998); Pennsylvania v. Mimms, 434 U.S. 106, 107 98 S. Ct.
330, 331, 54 L.Ed.2d 331 (1977) (concluding that an officer’s
practice of asking motorists to step out of a vehicle after a
lawful stop to be de minimis and “only a mere inconvenience against
“legitimate concerns for [] officer[] safety” since the driver is
being asked to “expose to view very little more than is already
exposed[,] [t]he police have already decided that the driver shall
be briefly detained; the only question is whether he shall spend
that period sitting in the driver’s seat of his car or standing
alongside it”). This Court thus finds that there was an
objectively reasonable basis for stopping Mr. Byndon’s vehicle.
16
ii) Factor 2
Analysis under the second factor, the degree of compliance
with State law, also suggests that no constitutional violation
occurred. It is undisputed that under West Virginia § 17C-7-10(a),
officers have authority to ensure that an operator of a motor
vehicle does not follow another vehicle more closely than
reasonably necessary. However, “[i]n order to arrest for the
violation of municipal ordinances and as to all matters arising
within the corporate limits and coming within the scope of his
official duties, the powers of any chief, policeman or sergeant
shall extend anywhere within the county or counties in which the
municipality is located, and any such chief, policeman or sergeant
shall have the same authority of pursuit and arrest beyond his
normal jurisdiction as has a sheriff.” W. Va. Code § 8-14-3.
While it may or may not be true that Officer Pugh violated
West Virginia Code § 8-1403, violation of that law does not
necessarily mean that Officer Pugh has violated the plaintiff’s
federal constitutional rights. While the Fourth Circuit has
provided general guidance, the Court has yet to address this
specific issue, namely-whether an officer violates the Fourth
Amendment when he observes a traffic violation outside of his
jurisdiction, unauthorized by state law, and then conducts a stop
and arrest based on that extra-jurisdictional conduct. However,
other Circuit Courts of Appeal have provided some guidance.
17
The United States Court of Appeals for the Tenth Circuit has
addressed a similar issue finding that compliance with state law
may be relevant for analyzing reasonableness under a Fourth
Amendment analysis, but such a violation does not mean there is a
per se violation of the plaintiff’s constitutional rights. Swanson
v. Town of Mountain View, Colo., 577 F.3d 1196, 1203 (10th Cir.
2009). Specifically, the Court in Swanson concluded that a traffic
stop outside the officers’ home jurisdiction, even if unauthorized
by state law, does not constitute an unlawful seizure under the
Fourth Amendment. The Court also found that a reasonable police
officer would not have known that the extra-jurisdictional, but
within the same state, traffic stop constituted clearly established
Fourth Amendment law, when no dispute exists that the officer
observed the traffic violation before effectuating the stop.
Moreover, the United States Court of Appeals for the Seventh
Circuit has addressed a similar issue when the plaintiff brought a
§ 1983 action against a county forest preserve district, individual
district police officers, and witnesses, asserting, inter alia,
claims based on the Fourth and Fourteenth Amendments. The Court
found that despite the forest preserve officers’ violation of state
statutes governing their jurisdiction with respect to arrests
outside a preserve, the arrest itself does not give rise to a
§ 1983 action for violation of the Fourth Amendment, without a
showing that it was made in “blatant disregard of state law and
18
thus unreasonable; federal government was not enforcer of state
law.” Pasiewicz v. Lake County Forest Preserve, 270 F.3d 520, 527
(7th Cir. 2001).
Also, although the case is factually different from the one at
hand, the Fourth Circuit has previously indicated that when
analyzing claims brought under § 1983, “the problem is not whether
state law has been violated but whether an inhabitant of a State
has been deprived of a federal right by one who acts under ‘color
of any law.’” Street v. Surdyka, 492 F.2d 368, 371 (4th Cir. 1974)
(citing Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031, 89
L.Ed. 1495 (1945)). Importantly, the Court noted that:
There is significant distinction between police action
which is unlawful because violative of constitutional
provisions and police action which merely fails to accord
with statute, rule or some other nonconstitutional
mandate. The protection against arrest without probable
cause, as well as that against unreasonable searches and
seizures, stems directly from the Fourth Amendment.
There is no such constitutional prohibition against
arrests for investigation where probable cause exists.
Certainly not every official impropriety gives rise to a
finding that due process has been denied.
Id.
Here, there is no indication that Officer Pugh was acting in
blatant disregard of his authorized jurisdiction. Further in light
of the other factors, especially factor 1, the weight falls in
favor of the reasonableness of the arrest, regardless of whether or
not Officer Pugh first saw the alleged traffic infraction in
19
Wheeling or Bethlehem, and regardless of where Officer Pugh seized
Plaintiff Byndon.
iii) Factor 3
Analysis under the third factor also suggests no
constitutional violation because Officer Pugh was acting between
two political subdivisions within the State of West Virginia. In
fact, there is no dispute that Officer Pugh stopped and arrested
plaintiff Byndon within the State; rather, the main contention is
with respect to whether Officer Pugh was within his jurisdictional
limits when he observed plaintiff’s alleged traffic infraction that
provided justification for Officer Pugh to stop plaintiff Byndon’s
vehicle. Even if Officer Pugh acted extra-territorily, “[c]ourts
have viewed as mitigating if the law enforcement officer acting
extra-territorily was simply from another political subdivision
within the same state.” Neal, No. RDB-15-1030, 2016 WL 775406, at
*6 (D. Md. Feb. 29, 2016) (citing Atwell, 470 F. Supp. 2d at 576
n.34).
iv) Remaining Factors
Additionally, analysis under factors 4, 5, 6, 7, 8, and 9
weigh in favor of the reasonableness of the arrest. As mentioned
above, there is sufficient evidence demonstrating that Officer Pugh
witnessed the alleged traffic infraction within his jurisdiction
(factor 5). Moreover, there is no evidence to indicate that
Officer Pugh intended to act outside of his territorial
20
jurisdiction or that he was in blatant disregard of the law (factor
7). Lastly, Officer Pugh saw what seemed to be an emergency
situation with the defendant allegedly traveling dangerously close
to another vehicle (ECF No. 28 at 9) (factor 4), in violation of
the purpose behind the creation of West Virginia Code § 17C-7-10(a)
(factor 9).
All these factors speak to the reasonableness of Officer
Pugh’s conduct. Therefore, Officer Pugh is entitled to qualified
immunity as a matter of law.
3. Even assuming Officer Pugh committed a constitutional
violation, such violation was not clearly established at the time
of the stop and arrest
As a starting point, the plaintiff relies on basic Fourth
Amendment search and seizure jurisprudence. The plaintiff also
asserts that Officer Pugh, by observing plaintiff’s wrongful
driving outside of his jurisdictional limits and effectuating a
stop based on those observations, violated West Virginia Code
§ 8-14-3 that defines the powers of a municipal officer. ECF No.
28 at 1-11. However, without addressing whether Officer Pugh
violated West Virginia law, such a violation does not necessarily
mean the defendants violated the plaintiff’s federal constitutional
rights. Moreover, the plaintiff has failed to provide precedent to
support his conclusion that the officers have committed a
constitutional violation. As indicated, the Fourth Circuit holds
that “there is significant distinction between police action which
21
is unlawful because violative of constitutional provisions and
police action which merely fails to accord with statute, rule or
some other nonconstitutional mandate.” Surdyka, 492 F.2d at 371.
In the context of traffic stops, Atwell demonstrates that
compliance with state law is only one factor that may be relevant
in the overall analysis. In short, relevant precedent does not
establish that a traffic stop that was based on observing an
alleged traffic infraction outside an officer’s home jurisdiction,
even if unauthorized by state law, constitutes an unlawful seizure
under the Fourth Amendment. A reasonable police officer would not
have known at the time of this incident that extra-jurisdictional,
but within the same state, observations that establish probable
cause or reasonable suspicion to stop a vehicle would constitute a
violation of clearly established Fourth Amendment law.
(2) Officer Pugh lawfully arrested plaintiff Byndon
The second issue is whether Officer Pugh had probable cause to
arrest plaintiff Byndon. Probable cause is determined by a
“totality-of-the circumstances” approach. Smith v. Munday, 848
F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates, 462 U.S.
213, 230, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983)). Probable cause
requires greater than “bare suspicion,” and less than “evidence
necessary to convict.” Id. (citing United States v. Gray, 137 F.3d
765, 769 (4th Cir. 1998)). “It is an objective standard of
probability that reasonable and prudent persons apply in everyday
22
life.” Id. (citing United States v. Gray, 137 F.3d 765, 769 (4th
Cir. 1998) (internal quotation marks omitted)). The main question
is whether based on “known facts and circumstances,” and “a common
sense determination, there is a fair probability that evidence of
a crime will be found.” Neal v. Luedtke, No. RDB-15-1030, 2016 WL
775406, at *6 (D. Md. Feb. 29, 2016).
Here, the defendants have provided dashboard and body camera
videos establishing that the plaintiff incorrectly accuses Officer
Pugh of being a fake police officer despite facts demonstrating
that the stop occurred during the daytime and that the officer was
in full uniform with standard issue tactical gear, and his vehicle
was a fully marked cruiser with a K9 unit. ECF Nos. 25-10 at 1-5
and 25-11 at 11-12. Moreover, the evidence demonstrates that the
plaintiff repeatedly refused to produce his license, registration,
and proof of insurance. He also refused to step out of his
vehicle. ECF No. 25-11 at 7-8. For these reasons, the defendant
had probable cause to arrest the plaintiff for obstruction of a law
enforcement officer.
(3) Excessive force
The next issue is whether Officer Pugh improperly used
excessive force in conducting the arrest in violation of the Fourth
Amendment of the United States Constitution. The plaintiff asserts
that “any force used during an unlawful stop and arrest is per se
23
excessive.” ECF No. 28 at 15 (emphasis omitted). This argument
fails for the following reasons.
The Fourth Amendment prohibits police officers from using
excessive force in seizing a citizen. Smith v. Murphy, 634 F.
App’x 914, 916 (4th Cir. 2015). “A court determines whether an
officer has used excessive force to effect a seizure based on a
standard of ‘objective reasonableness.’” Jones v. Buchanan, 325
F.3d 520, 524 (4th Cir. 2003) (citing Graham v. Connor, 490 U.S.
386, 395, 109 S. Ct. 1865, 104 L.Ed.2d 443 (1989)). The Court
should pay careful attention to the facts of each case, including:
(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 the suspect is actively resisting arrest or
attempting to evade arrest by flight. Smith, 634 F. App’x at 916.
Specifically, tasing a suspect who was acting belligerently and is
refusing to provide his license and registration has been found to
not constitute excessive force. Draper v. Reynolds, 369 F.3d 1270,
1277-1278 (11th Cir. 2004); Hagans v. Franklin Cty. Sheriff’s
Office, 695 F.3d 505, 509 (6th Cir. 2012).
In this case, viewing the facts in the light most favorable to
plaintiff Byndon, no objectively reasonable officer could conclude
that Officer Pugh’s conduct constituted excessive force. Regarding
the first factor, Officer Pugh allegedly witnessed plaintiff Byndon
violate a traffic law and after lawfully stopping plaintiff
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Byndon’s vehicle, plaintiff Byndon failed to provide any standard
and requisite information to Officer Pugh while actively resisting
his orders. The second factor likewise weighs in favor of Officer
Pugh, as Officer Pugh had reason to believe that plaintiff Byndon
could react violently and be confrontational. As for the third
factor, resistance from plaintiff Byndon was not merely
instinctive, but rather the evidence demonstrates that Officer Pugh
attempted to reason with plaintiff Byndon and that plaintiff Byndon
continuously refused to cooperate and retaliated, only feet away
from a highway.
(b) First Amendment Claim
The plaintiff asserts, for the first time in his response to
the defendants’ motion for summary judgment, that “a jury might
reasonably conclude that [d]efendant Pugh summoned ‘back up’
because of plaintiff Byndon and his front seat passenger spirited
criticism of [d]efendant Pugh’s stated basis for stopping him.”
ECF No. 28 at 19.
The First Amendment does not provide a right to be free from
a retaliatory arrest that is supported by probable cause. Reichle
v. Howards, 566 U.S. 658, 665, 132 S. Ct. 2088, 2094, 182 L.Ed.2d
985 (2012). The Supreme Court has held that the “right allegedly
violated must be established, ‘not as a broad general proposition,’
. . . but in a ‘particularized’ sense so that the ‘contours’ of the
right are clear to a reasonable official.” Id. (citing Hartman v.
25
Moore, 547 U.S. 250, 256 126 S. Ct. 1695, 164 L.Ed.2d 441 (2006);
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L.Ed.2d
583 (2004) (per curiam)).
Again, as noted above, the defendants have provided evidence
establishing that the plaintiff falsely accused Officer Pugh of
being a fake police officer despite facts demonstrating that the
stop occurred during the daytime and that the officer was in full
uniform with standard issue tactical gear, and his vehicle was a
fully marked cruiser with a K9 unit. Moreover, the evidence
demonstrates that the plaintiff repeatedly refused to produce his
license, registration, and proof of insurance. He also refused to
step out of his vehicle after Officer Pugh lawfully requested him
to do so. For these reasons, the defendant had probable cause to
arrest the plaintiff for obstruction of a law enforcement officer.
Therefore, this claim cannot be the reason Officer Pugh is not
entitled to qualified immunity. Moreover, the plaintiff has failed
to allege that a particular right has been violated; rather, the
defendant simply makes broad general propositions without
identifying any particular right.
(c) Right to interstate travel and moving interstate
The plaintiff, for the first time during this litigation, has
made an argument based on the constitutionally protected right of
interstate travel and movement, solely alleging that this right was
“impaired by [d]efendant’s actions unlawfully stopping him.” ECF
26
No. 28 at 20-21. This Court finds this argument to be without
merit. The constitutional right to travel is not a right to travel
in any manner, without regulation, and does not provide travelers
a right to ignore state traffic laws. United States v. Hare, 308
F. Supp. 2d 955 (D. Neb. 2004). Therefore, it cannot serve as a
reason why Officer Pugh would not be entitled to qualified
immunity.
B. Tort of Outrage/Intentional Infliction of Emotional Distress
(Count II)
Count II of the complaint raises a claim of intentional
infliction of emotional distress. This claim is insufficiently
supported by facts and must be dismissed. The only support that
plaintiff Byndon provides for this claim in opposing summary
judgment is in a brief paragraph which states that the defendants’
contention is “mere ipse dixit argument, not a factual one.
Certainly, initiating a false arrest and battering an arrestee can
rise to the level of outrageous conduct.” ECF No. 28 at 22-23.
However, the plaintiff fails to provide any facts to support the
claim that emotional distress actually occurred.
Intentional infliction of emotional distress claims require
that a plaintiff provide evidence that he suffered “severe
emotional distress” in order to be successful. Marlin v. Bill Rich
Constr., 198 W. Va. 635, 652 (1996) (“A claim for emotional
distress without an accompanying physical injury can only be
27
successfully maintained upon a showing by the plaintiffs in such an
action of facts sufficient to guarantee that the claim is not
spurious and upon a showing that the emotional distress is
undoubtedly real and serious.”). Plaintiff Byndon has not even
attempted to make such a factual showing in this case. Simply
stating that “initiating a false arrest and battering an arrestee
can rise to the level of outrageous conduct” is insufficient and is
not supported by any facts. See Price v. City of Charlotte, 93 F.
3d 1241 (4th Cir. 1996) (cert. denied) (reversing award for
emotional distress because the evidence did not show any
demonstrable emotional injury outside of the plaintiff’s own
testimony).
Further, this Court finds that, as a matter of law, Officer
Pugh’s actions in this case did not rise to the high level of
“outrageousness” which is “more than unreasonable, unkind or
unfair, [but which] truly offend[s] community notions of acceptable
conduct” that is required to support this claim. Philyaw v. E.
Associated Coal Corp., 219 W. Va. 252, 258 (2006).
Furthermore, even if the plaintiff properly alleged a claim
for intentional infliction of emotional distress, Officer Pugh
would be immune from liability due to West Virginia Code
§ 29-12A-5(b) of the Governmental Tort Claims and Insurance Reform
Act. The plaintiff has not provided any evidence that Officer Pugh
acted maliciously and there is no dispute that Officer Pugh was
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acting within the scope of his employment or official
responsibilities at the time of the incident. Therefore, Officer
Pugh is immune from liability.
Moreover, this intentional tort claim against the City should
be dismissed since the law does not allow political subdivisions to
be held liable for “intentional malfeasance” on the part of their
employees. Poe v. Town of Gilbert, 2012 U.S. Dist. LEXIS 125602
(S.D. W. Va. 2012) (citing Mallamo v. Town of Rivesville, 197 W.
Va. 616, 477 S.E.2d 525, 533-34 (1996)). Thus, summary judgment
must be granted to the defendants on this count.
Lastly, as this claim is based solely on West Virginia law,
and as this Court has determined that plaintiff Byndon’s federal
claim must be dismissed, this Court declines to exercise
supplemental jurisdiction over the state law claim, pursuant to 28
U.S.C. § 1367(c)(3), and this claim will be dismissed.
C. Battery (Count III)
In West Virginia, the tort of battery consists of (a) an
action “intending to cause a harmful or offensive contact with the
person of the other or a third person, or an imminent apprehension
of such a contact, and (b) a harmful contact with the person of the
other directly or indirectly results.” W. Va. Fire & Cas. Co. v.
Stanley, 602 S.E.2d 483, 494 (W. Va. 2004) (quoting Restatement
(Second) of Torts, § 13 (1965)). Further, that court has found
that “[i]n order to be liable for a battery, an actor must act with
29
the intention of causing a harmful or offensive contact with a
person.” Id. (citation omitted).
Here, the plaintiff has failed to explain why the elements of
battery have been met in its response to defendants’ motion for
summary judgment. However, even if the plaintiff did argue that
Officer Pugh committed a battery against plaintiff Byndon, it would
fail. Although plaintiff Byndon did indeed engage in physical
contact with plaintiff Byndon, the contact with plaintiff Byndon
was not unlawful and there is no evidence that plaintiff Byndon was
actually harmed by the contact. Further, such contact was not
offensive as Officer Pugh did not use excessive force in this
action. Thus, this claim must also fail. Moreover, the plaintiff
has already waived his claim for assault, and since battery and
assault go hand in hand, the plaintiff’s waiver of his assault
claim supports dismissal of the battery claim.
Also, as mentioned under the analysis for Count II, even if
the plaintiff properly alleged a claim for battery, Officer Pugh
would be immune from liability due to West Virginia Code
§ 29-12A-5(b) of the Governmental Tort Claims and Insurance Reform
Act. The plaintiff has not provided any evidence that Officer Pugh
acted maliciously and there is no dispute that Officer Pugh was
acting within the scope of his employment or official
responsibilities at the time of the incident. Therefore, Officer
Pugh is immune from liability.
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Lastly, as this claim is based solely on West Virginia law,
and as this Court has determined that plaintiff Byndon’s federal
claim must be dismissed, this Court declines to exercise
supplemental jurisdiction over the state law claim, pursuant to 28
U.S.C. § 1367(c)(3), and this claim will be dismissed.
D. Civil Conspiracy (Count IV)
To establish a civil conspiracy, a plaintiff must prove that
two or more persons were acting jointly in concert and that some
overt act was done in furtherance of the conspiracy, which resulted
in the plaintiff’s deprivation of a constitutional right. Hinkle
v. City of Clarksburg, W. Va., 81 F.3d 416 (4th Cir. 1996). A
plaintiff has a “weighty burden to establish a civil rights
conspiracy.” Id. at 421. While the plaintiff does not need to
“produce direct evidence of a meeting of the minds, [he] must come
forward with specific circumstantial evidence that each member of
the alleged conspiracy shared the same conspiratorial objective.”
Id.
This Court finds that the plaintiff did not allege any facts
leading to an inference of a conspiracy. Speculation and
conjecture are not sufficient to state a claim for conspiracy.
Puglise v. Cobb County, 4 F. Supp. 2d 1172, 1181 (N.D. Ga. 1998).
Thus, the claim must be dismissed.
Lastly, as this claim is based solely on West Virginia law,
and as this Court has determined that plaintiff Byndon’s federal
31
claim must be dismissed, this Court declines to exercise
supplemental jurisdiction over the state law claim, pursuant to 28
U.S.C. § 1367(c)(3), and this claim will be dismissed.
E. Waived Claims
The plaintiff has waived and conceded judgment on Count V
(Negligent Retention and Hiring), Count IV (Assault), Count VII
(Negligent Training and Supervision) and Count VIII (Deliberate
Indifference). ECF No. 28 at 1. Therefore, this Court also
dismisses these claims.
IV. Conclusion
For the reasons set forth above, the defendants’ motion for
summary judgment (ECF No. 24) is GRANTED. It is further ORDERED
that this civil action be DISMISSED and STRICKEN from the active
docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED: October 4, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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