The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RALPH J. MULLINS,
Plaintiff,
v. CIVIL NO. 1:22cv98
(KLEEH)
CRANSTON DAVID JOHNSON,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 38]
Pending before the Court is Defendant’s Motion for Summary
Judgment [ECF No. 38]. For the reasons discussed herein, the Motion
is GRANTED IN PART and DENIED IN PART.
I. PROCEDURAL HISTORY
On September 23, 2022, Plaintiff Ralph J. Mullins
(“Plaintiff”), by counsel, filed a Complaint against Cranston D.
Johnson, Steve Andryzcik, Edie Viola, Gary Weber, Jeffery Friend,
Duane Tatar, Timothy Stranko, Sandy Weiss, and the City of
Westover. ECF No. 1. The Complaint alleged (1) 42 U.S.C. § 1983
retaliation in violation of the First Amendment; (2) 42 U.S.C. §
1983 violation of the Fourth Amendment; (3) 42 U.S.C. § 1983
violation of the Fourteenth Amendment; (4) 42 U.S.C. § 1983 Monell
Liability; (5) Slander; (6) Assault; (7) Battery; (8) violation of
the West Virginia Whistle-Blower Law; and (9) Intentional
Infliction of Emotional Distress. Id. Defendants moved for partial
dismissal of the Complaint [ECF Nos. 4, 15], which was granted in
part and denied in part, on March 26, 2024. ECF No. 46.
Defendants moved for summary judgment on January 19, 2024
[ECF No. 38]. Plaintiff responded in opposition to summary judgment
on February 9, 2024 [ECF No. 43] and Defendants replied in support
of their Motion on February 22, 2024 [ECF No. 44]. Pursuant to
this Court’s Memorandum Opinion and Order Granting in Part and
Denying in Part Defendants’ Motions to Dismiss [ECF Nos. 4, 15],
the only remaining claims in this case are Counts (VI) assault and
(VII) battery against Defendant Johnson and Count (VIII) violation
of the West Virginia Whistle-Blower Law against the City of
Westover, Defendant Johnson, and Defendant Stranko. ECF No. 46.
Thus, Defendants’ Motion for Summary Judgment has been fully
briefed regarding the remaining counts and is ripe for this Court’s
review.
II. FACTUAL BACKGROUND1
Plaintiff Ralph Mullins (“Plaintiff”) was appointed to the
Westover City Council in the Fall of 2016 and continued to serve
through the first months of 2022. ECF No. 1, Compl. at ¶ 43; ECF
No. 5, at p. 3;2 ECF No. 43, at p. 2. During his time in office,
1 The Court’s recitation of facts focuses on only the facts
presented by the parties relating to the assault, battery, and
Whistleblower claims.
2 Defendants incorporated the fact section from their motion to
dismiss into the subject motion. ECF No. 39, at p. 2.
Plaintiff alleged that he witnessed and spoke out regarding
troubling conduct involving the Westover City Council, Mayor
Cranston D. Johnson (“Defendant Johnson”), City Attorney Timothy
Stranko (“Defendant Stranko”), and the Westover Police Department.
ECF No. 43 at p. 2; ECF No. 5, at p. 3. Specifically, Plaintiff
spoke out on matters of public concern including “injustices,”
“misdealings,”, “government corruption,” and “police brutality,”
during City Council meetings, on at least five occasions. ECF No.
43, Ex. 2; ECF No. 5, at p. 3. See also, ECF No. 43-1, Tr. Pl.
Mullins, at p. 74: 14-16 (“Well, the violations of city charter
that I spoke out against were basically the abuses of power that
were being perpetrated by the mayor.”); Id. at p. 82: 4-5 (“I also
spoke out about citizens being targeted in Westover.”).
As a result of speaking out on matters of public concern,
Plaintiff contends he was retaliated against by the Defendants.
For example, Plaintiff alleges Defendant Johnson used the Westover
City ordinances as a form of harassment and retaliation. Id. at
96:16-100:4. Namely, on July 14, 2021, Plaintiff received a notice
of violation from Westover Code Enforcement stating Plaintiff
violated City Code 11111.07 by not cutting the grass at his home.
Id.; Compl. at ¶ 88. Then, on September 20, 2021, Plaintiff
received a second notice of City Code violation, stating he failed
to take down a sign for a closed business (City Code 1741.09).
Id.; Compl. at ¶ 93. Defendants do not contest that these code
enforcement violations were imposed but contend they were not
retaliatory. ECF No. 5 at p. 4.
Most of the facts relating to Plaintiff’s remaining claims
revolve around events which transpired at a Westover City Council
Meeting on February 22, 2022. The parties agree that at the
conclusion of the public meeting, the Council convened for an
executive session. At such time, Defendant Johnson asked Plaintiff
to turn off his recording device. ECF No. 38, Ex. J. However,
Plaintiff refused to stop recording the executive session because
he believed the West Virginia Ethics Commission ruled that he could
lawfully record the meeting. Id.; ECF No. 43, at p. 3; ECF No. 44-
1, Johnson Aff. at ¶ 3. Plaintiff and Defendant Johnson argued
back and forth regarding this issue. Both Plaintiff and Defendant
Johnson engaged in name-calling and raised their voices. At some
point during the verbal argument, Defendant Johnson rose from his
seat and approached Plaintiff’s desk and Plaintiff stepped in front
of his desk. ECF No. 43-1, at 113:22-114:13. The Westover Chief of
Police stepped between them. Id. at 114:11-12.
Plaintiff contends that Defendant Johnson reached around the
officer and struck Plaintiff in his right shoulder with enough
force to send him backwards and twist his knee. ECF No. 43, at p.
4; ECF No. 43-1 at 22:4-8. Plaintiff testified that he stood up
from his desk because Defendant Johnson is “known to fight,” and
he thought Defendant Johnson might strike him. ECF No. 43-1 at
114:3-9. After the incident, the audio recording reflects that
Plaintiff said, “that’s a battery,” and left the meeting. Id. at
113:2; ECF No. 38, Ex. J. The audio recording reflects that
Defendant Johnson told Plaintiff to stick around after the meeting
and not to leave. ECF No. 38, Ex. J. Plaintiff took this as
Defendant Johnson threatening another physical altercation. ECF
No, 43-1, at 112:21-24.
Meanwhile Defendant Johnson stated in his affidavit that
Plaintiff aggressively approached him, yelling and threatening him
– before Police-Chief Joe Adams stepped between them. ECF No. 44-
1, at ¶¶ 6-8. Defendant Johnson stated he put his hands up to
protect himself and that Plaintiff made contact with his hand
before stumbling backwards. Id. at ¶¶ 8-9. Defendant Johnson does
not believe the contact was forceful enough to make Plaintiff
stumble. Id. at ¶ 10. Plaintiff pressed charges against Defendant
Johnson for criminal battery, but he was found not guilty. ECF No.
38-1. Defendant Johnson further reported to the media that “there’s
no question it [the altercation] was started and caused by
Mullins.” ECF No. 38-2.
Following the February 22, 2022 altercation, Plaintiff did
not attend another City Council meeting. Id. Plaintiff Johnson
requested to attend the March 2022 City Council meeting remotely
but was not granted such permission. ECF No. 43-1, 124-25.3 During
the March meeting, the City Council unanimously voted to censure
Plaintiff regarding his conduct during the executive session at
the February 22, 2022, meeting. ECF No. 38-3. In censuring
Plaintiff, the City Council made the following findings:
1. Councilor Mullins' actions in contesting an
instruction from the Chair were agitated,
extreme and outrageous.
2. Councilor Mullins refused to remain seated
during Council deliberations.
3. Councilor Mullins addressed the Mayor and
other members of Council in a loud,
disorderly, and disrespectful manner.
4. Councilor Mullins made threats and
threatening gestures to the Chair as the
Chair was attempting to restore order.
Id. Defendant Johnson was not censured in relation to the February
2022 meeting. Id.; ECF No. 43-1, at 107:9-19.
III. LEGAL STANDARD
Summary judgment is appropriate if “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). The movant
“bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of
‘the pleadings, depositions, answers to interrogatories, and
3 During Plaintiff’s time on the Westover City Council, no one had
ever appeared by remote means. ECF No. 43-1, 124-25.
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
nonmoving party must “make a sufficient showing on an essential
element of its case with respect to which it has the burden of
proof.” Id. at 317–18. Summary judgment is proper “[w]here the
record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there [being] no ‘genuine issue for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The Court views the evidence in the light
most favorable to the non-moving party and draws any reasonable
inferences in the non-moving party’s favor. See Fed. R. Civ. P.
56(a); see Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en
banc).
IV. DISCUSSION
A. Defendants’ Motion for Summary Judgment is GRANTED as to the
Whistle-Blower Claim because Plaintiff is not an employee of
the City of Westover.
Plaintiff’s claim under the West Virginia Whistle-Blower Law,
W. Va. Code § 6C-1-1, et seq, fails as a matter of law because a
city council person is not an employee, and thus is not a protected
whistle-blower.4 The Whistle-Blower Law “prohibits an employer from
4 During the motion to dismiss stage, the Court assumed for pleading
purposes that Plaintiff was an employee under the Whistle-Blower
Law. Now that the parties have had the opportunity to conduct
discovery and the legal issue has been sufficiently briefed, the
making certain adverse employment changes in retaliation for an
employee's protected conduct.” State ex rel. W. Virginia Att'y-
Gen., Medicaid Fraud Control Unit v. Ballard, 249 W. Va. 304, 895
S.E.2d 159, 172 (2023). In relevant part, the Whistle-Blower Law
states:
(a) No employer may discharge, threaten, or
otherwise discriminate or retaliate against
an employee by changing the employee's
compensation, terms, conditions, location,
or privileges of employment because the
employee, acting on his or her own volition,
or a person acting on behalf of or under
the direction of the employee, makes a good
faith report, or is about to report,
verbally or in writing, to the employer or
appropriate authority, an instance of
wrongdoing or waste.
W. Va. Code § 6C-1-3(a). Relevant here, the statute defines the
following key terms:
(b) “Employee” means a person who performs a
full or part-time service for wages,
salary, or other remuneration under a
contract of hire, written or oral, express
or implied, for a public body.
(c) “Employer” means a person supervising one
or more employees, including the employee
in question, a superior of that supervisor,
or an agent of a public body.
. . .
(e) “Public body” means any of the following:
. . .
(2) A commission, council, department,
Court can properly consider whether Plaintiff’s claim fails as a
matter of law.
agency, board, court, in its
nonjudicial functions only,
official, special district,
corporation or other
instrumentality of a county or a
municipality or a regional or joint
governing body of one or more
counties or municipalities; or
. . .
W. Va. Code § 6C-1-2.
The Supreme Court of Appeals of West Virginia has not yet had
the opportunity to address the precise question of whether a city
councilperson is an “employee” under the Whistle-Blower Law.
However, the Court has discussed the definitions of “public
official” and “employee” in other contexts, which are instructive
here.
Among the criteria to be considered in
determining whether a position is an office or
a mere employment are whether the position was
created by law; whether the position was
designated an office; whether the
qualifications of the appointee have been
prescribed; whether the duties, tenure,
salary, bond and oath have been prescribed or
required; and whether the one occupying the
position has been constituted a representative
of the sovereign.
Syl. Pt. 5, State ex rel. Carson v. Wood, 154 W. Va. 397, 397–98,
175 S.E.2d 482, 483 (1970); State ex rel. Key v. Bond, 94 W. Va.
255, 118 S.E. 276 (1923). See also, Hartigan v. Bd. of Regents of
W. Virginia Univ., 49 W. Va. 14, 38 S.E. 698, 701 (1901) (“The
most important characteristic which distinguishes an office from
an employment or contract is that the creation or conferring of an
office involves a delegation to the individual of some of the
sovereign functions of government, to be exercised by him for the
benefit of the public . . .”).
“A member of the council of a municipal corporation, who is
elected for a term of years, and receives remuneration for his
services as a member of the council, is a public officer of the
municipal corporation.” State ex rel. Ralich v. Millsop, 138 W.
Va. 599, 600, 76 S.E.2d 737, 738 (1953), overruled on other
grounds. In contrast, “one who merely performs duties required of
him by a public officer or a public agent, under contract, though
his employment be in doing public work, is not himself a public
officer or public agent, but a mere ‘employee’.” State ex rel.
Key, 118 S.E. at 277.
Defendants argue that summary judgment is appropriate because
Plaintiff Mullins was not an employee of the City of Westover and
thus cannot bring a claim under the Whistle-Blower Law. ECF No.
39, at p. 21. Rather, Defendants contend that Plaintiff’s role as
a city councilperson meets the criteria for a public official. Id.
Additionally, Defendants assert that the City of Westover does not
meet the definition of “employer” under the Whistle-Blower Law and
that even if Plaintiff met the statutory requirements, he did not
blow any whistles. Id. at pp. 21-22.5
5 Because the Court finds that Plaintiff is not an employee under
the Whistle-Blower Law, the Court declines to address Defendants’
Notably, Plaintiff did not respond to Defendants’ arguments
regarding dismissal of the Whistle-Blower claim at the summary
judgment stage. However, Plaintiff did object to Defendant’s
Motion in Limine No. 8, which seeks to prohibit Plaintiff from
claiming that he is an employee of the City of Westover [ECF No.
52]. In Plaintiff’s objection, he claims that determination of his
employment status is a jury question and that there are sufficient
facts to support that he is outside the definition of a “public
officer.” ECF No. 66 at pp. 1-2.
While Plaintiff failed to respond to the Whistle-Blower claim
in his summary judgment response, as Rule 56 requires, this does
not automatically entitle Defendants to summary judgment on this
issue. See Segal v. Dinsmore & Shohl, LLP, No. 1:20-CV-267, 2023
WL 2752853, at *5 (N.D.W. Va. Mar. 31, 2023).
Section (c) of Rule 56 requires that the
moving party establish, in addition to the
absence of a dispute over any material fact,
that it is “entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). Although the
failure of a party to respond to a summary
judgment motion may leave uncontroverted those
facts established by the motion, the moving
party must still show that the uncontroverted
facts entitle the party to “a judgment as a
matter of law.” The failure to respond to the
motion does not automatically accomplish this.
Thus, the court, in considering a motion for
summary judgment, must review the motion, even
if unopposed, and determine from what it has
before it whether the moving party is entitled
remaining arguments and does not reach the issue of whether the
City of Westover is an employer under the Whistle-Blower Law.
to summary judgment as a matter of law. This
duty of the court is restated in section (e)
of the rule, providing, “if the adverse party
does not so respond, summary judgment, if
appropriate, shall be entered against the
adverse party.” Fed. R. Civ. P. 56(e)
(emphasis added).
Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993).
Thus, the court, in considering a motion for summary judgment,
must review the motion, even if unopposed, and determine from the
record before it whether the moving party is entitled to summary
judgment as a matter of law. This duty of the court is restated in
section (e) of the rule, providing, “if the adverse party does not
so respond, summary judgment, if appropriate, shall be entered
against the adverse party.” Fed. R. Civ. P. 56(e) (emphasis added).
In considering the record before the Court, as well as the
applicable law, summary judgment is appropriate because a city
council person is not an employee under the Whistle-Blower Law.
The relevant factors support that Plaintiff Mullins was a public
official when serving as a city council person for the City of
Westover. First, the position of city council person was created
by law. West Virginia Code §8-3-2 states that under a “Mayor-
Council Plan”
(1) There shall be a city council, elected
at large or by wards, or both at large
and by wards, by the qualified voters of
the city; a mayor elected by the
qualified voters of the city; and such
other elective officers as the charter
may prescribe; and
(2) The mayor and council shall be the
governing body and administrative
authority.
W. Va. Code §8-3-2. Furthermore, the Charter of the City of
Westover provides that “[t]here shall be a City Council of six
members.” Westover, W. Va. City Charter, art. III, § 3.01(a). Thus,
it is clear the position of city council member was created by law
and is an office. Second, the qualifications and eligibility for
councilmembers are similarly prescribed in the City Charter. Id.
at § 3.01(b) (“Only qualified voters of the State of West Virginia
shall be eligible to hold the office of councilmember.”). Third,
the City Charter similarly prescribes (1) councilmember duties
including “all duties and obligations imposed on the City by law”;
(2) the terms of the office – four years; and (3) that
councilmembers may receive a salary and expenses. Id. at §§ 3.01
– 3.03. Moreover, city council members are constituted as a
representative of the sovereign City of Westover because “[a]ll
powers of the City [are] vested in the Council.” Id. at § 3.03.
Thus, all the considerations clearly indicate that city council
members are not city employees.
Moreover, the City Charter further bolsters this position
because it prohibits council members from holding “any other
elected public office” or from being “employed by the City.” Id.
at § 3.04.
As Defendants note, Plaintiff was not performing his council
member services for wages under a contract for hire, as required,
to be deemed an “employee” under the Whistle-Blower Law. See W.
Va. Code § 6C-1-2 (b). Rather, he was appointed to the office of
city council and then elected for an additional term.
West Virginia jurisprudence clearly distinguishes public
officials from public employees. The Court cannot read the
definition of “employee” so broadly as to conclude Plaintiff falls
within the Whistle-Blower Law’s protection. Had the West Virginia
legislature intended to provide whistle-blower protection to
individuals serving in public office, it could have done so. For
example, the West Virginia Public Employees Retirement Act defines
“employee” to include “any person who serves regularly as an
officer or employee . . .” W. Va. Code § 5-10-2. Here, the
Legislature did not include such language in the Whistle-Blower
Law and the Court declines to broaden the definition of employee.
Accordingly, Plaintiff’s whistle-blower claim fails as a
matter of law because he is not an “employee” as defined by the
Whistle-Blower Law and West Virginia jurisprudence. Thus,
Defendants’ Motion for Summary Judgment [ECF No. 38] as to Count
VIII is GRANTED and Count VIII of Plaintiff’s Complaint [ECF No.
1] is DISMISSED WITH PREJUDICE.
B. Defendants’ Motion for Summary Judgment is DENIED as to the
Assault and Battery claims because disputes of material fact
exist.
A sufficient dispute of material fact exists as to Plaintiff’s
claims for Assault and Battery to preclude dismissal at the summary
judgment stage. “In West Virginia, assault and battery are separate
torts.” Weigle v. Pifer, 139 F. Supp. 3d 760, 776 (S.D.W. Va.
2015).
An actor is subject to liability to
another for assault if (a) he acts 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) the other is thereby put in such
imminent apprehension.
* * *
An actor is subject to liability to
another for battery if (a) he acts 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.
West Virginia Fire & Casualty Co. v. Stanley, 216 W.Va. 40, 51,
52, 602 S.E.2d 483 (2004) (quoting the Restatement (Second) of
Torts (1965)). See also, Pegg v. Herrnberger, 845 F.3d 112, 121
(4th Cir. 2017).
However, an activity which would normally subject a person to
liability for assault or battery may not constitute a tort if the
actor is privileged to engage in the conduct. Miller v. Rubenstein,
No. 2:16-CV-05637, 2018 WL 736044, at *16 (S.D.W. Va. Feb. 6,
2018). “[A] person who reasonably apprehends bodily harm by another
is privileged under our law to exercise reasonable force to repel
the battery. The amount of force used in defense must not be
excessive and must be reasonable in relation to the perceived
threat.” Collins v. Bennett, 199 W. Va. 624, 628, 486 S.E.2d 793,
797 (1997).
“Assault and battery are intentional acts under West Virginia
law.” Mull v. Griffith, No. 5:17-CV-94, 2019 WL 5295189, at *7
(N.D.W. Va. Oct. 18, 2019) (finding plaintiffs were not entitled
to summary judgement because there were issues of material fact
concerning defendant's intent to offend, harm, or place plaintiff
in reasonable fear). Importantly, “determining intent is fact-
intensive, and when the circumstantial evidence of a person's
intent is ambiguous, the question of intent cannot be resolved on
summary judgment.” Braswell v. Jividen, No. 2:20-CV-00872, 2022 WL
14068998, at *8 (S.D.W. Va. Oct. 24, 2022) (quoting Gen. Analytics
Corp. v. CNA Ins. Cos., 86 F.3d 51, 54 (4th Cir. 1996)). See also,
Miller, 2018 WL 736044 at *16 (denying summary judgment because a
genuine dispute existed as to whether defendant acted in good faith
or if use of force was excessive).
Here, Defendants argue that summary judgment is appropriate
because there is no evidence that either party intended to harm
the other. ECF No. 39, at pp. 19-20. Rather, Defendants contend
that both parties were taking steps to repel the other in self-
defense and were not actively preparing to engage in violence. Id.
In contrast, Plaintiff asserts that there are sufficient factual
questions to present to a jury based upon the audio recording and
Plaintiff’s deposition testimony. ECF No. 43, at pp. 14-15.
Specifically, Plaintiff claims he presented sufficient evidence to
support that Defendant Johnson was the aggressor and that Plaintiff
was in apprehension of a perceived threat. Id.
The Court agrees with Plaintiff that there are genuine
disputes of material fact that a jury must resolve. Defendants and
Plaintiff clearly do not agree on who was the aggressor on February
22, 2022, and the audio recording is not so easily discernable to
eliminate any question of fact. The Court is not persuaded by
Defendants’ dual self-defense argument. Rather, it is clearly a
dispute of fact if both parties believe the other was the aggressor
and themselves engaged in self-defense.
Furthermore, a dispute of material fact exists regarding
Defendant Johnson’s requisite intent for assault and battery.
Plaintiff is correct that the audio recording from the February
22, 2022 meeting creates a factual issue regarding intent.
Defendant Johnson’s conduct, language, and comments during the
council meeting could, or could not, be found by a jury to meet
the requisite intent for liability. Similarly, reasonable minds
could differ on whether Plaintiff was in imminent apprehension of
a harmful contact. Because determining intent is a fact-intensive
process and there are differing accounts of the altercation,
summary judgment is not appropriate. Thus, viewing the evidence in
the light most favorable to the non-moving party and drawing any
reasonable inferences in the non-moving party’s favor, Defendants’
Motion for Summary Judgment [ECF No. 38] as to Counts VI and VII
is DENIED.
Vv. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary
Judgment [ECF No. 38] is GRANTED as to Plaintiff’s claim under the
Whistle-Blower Law (Count VIII) and Count VIII of Plaintiff's
Complaint [ECF No. 1] is DISMISSED WITH PREJUDICE. As this was the
only remaining claim against the City of Westover and Timothy
Stranko, they are hereby DISMISSED as Defendants. Defendants’
Motion for Summary Judgment [ECF No. 38] is DENIED as_ to
Plaintiff’s claims for Assault (Count VI) and Battery (Count VII).
Accordingly, Plaintiff Ralph J. Mullins and Defendant Cranston
David Johnson will proceed to trial on May 20, 2024 on these two
discrete claims.
It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record by the CM/ECF system.
DATED: May 14, 2024
Tom 8 Klat-
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
18