Brown v. Belt

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

DAN BROWN,

Plaintiff,

v. Civil Action No. 2:15-cv-11549

ROBERT BELT, Deputy Sheriff,

Clay County Sheriff’s Office;

GARRETT SAMPLES, JR., Sheriff,

Clay County Sheriff’s Office;

TYLER CARUTHERS, Deputy Sheriff,

Clay County Sheriff’s Office; CLAY

COUNTY COMMISSION; COLONEL C.R. “JAY”

SMITHERS, Superintendent, WV State

Police; STEVEN DEMASKE, Trooper, WV

State Police; and TYLER DANA MCFEELEY,

Trooper, WV State Police,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is the joint motion for summary judgment,

filed March 6, 2019, by defendants Robert Belt (“Deputy Belt”),

Tyler Caruthers (“Deputy Caruthers”), Garrett Samples, Jr.

(“Sheriff Samples”) and the Clay County Commission (the

“Commission”) (collectively, “the County Defendants”). Also

pending is their motion to dismiss for failure to prosecute,

filed March 6, 2019.

I. Facts as Alleged

While the court is ruling on the County Defendants’

motion for summary judgment, in the interest of thoroughness,

the plaintiff’s allegations in the First Amended Complaint are

set forth below.

Plaintiff Dan Brown is a resident of Clay, West

Virginia. First Am. Compl. (“Compl.”) ¶ 4. On July 26, 2013,

defendant Deputy Robert Belt, a deputy sheriff of Clay County,

West Virginia saw Mr. Brown on the side of the road with a flat

tire. Id. ¶ 10. Deputy Belt then approached Mr. Brown,

allegedly without any reasonable suspicion, began to conduct a

traffic stop for driving under the influence (“DUI”) and

searched his vehicle. Id. ¶ 11. Mr. Brown alleges that Deputy

Belt caused the blowout of his tire that resulted in the officer

pulling him over, id. ¶ 33, and that Deputy Belt knew of Mr.

Brown’s whereabouts due to information obtained from Shonda

Tanner, a mutual acquaintance, id. ¶¶ 30-33.

When Deputy Belt ordered Mr. Brown to undergo three

field sobriety tests, the “Horizontal Gaze Nystagmus,” the “Walk

and Turn,” and the “One-Leg Stand,” Mr. Brown pointed out that

he suffered from several physical disabilities that prevented

him from being able to adequately complete the tests. Id. ¶¶

12-17. In particular, he has long had nystagmus, an eye

condition, as well as a leg injury that makes him unable to

place weight on his leg. Id. ¶¶ 15-16. Mr. Brown has been

determined by the United States Social Security Administration

to be fully disabled. Id. ¶ 25. Although Mr. Brown told

Deputy Belt that he was “100% disabled” and “could not take the

normal tests for DUI,” Deputy Belt continued to administer the

three tests without offering accommodations. Id. ¶¶ 12, 21.

Following the tests, Deputy Belt arrested Mr. Brown for DUI.

Id. ¶ 21.

Mr. Brown did take a preliminary breath test, and the

result showed a blood alcohol level of 0.0. Id. ¶ 18. He asked

to be given a blood test to provide further proof of his

sobriety, but Deputy Belt failed to request or administer one.

Id. ¶¶ 19-20.

The DUI charge was later dismissed, and when Mr. Brown

contested the revocation of his driver’s license in an

administrative hearing, Deputy Belt admitted to being negligent

when filling out the DUI information sheet. Id. ¶¶ 22-23. Also

at this hearing, Deputy Belt is said to have stated that he had

never received training on compliance with the Americans with

Disabilities Act (“ADA”) or on how to provide reasonable

accommodations to disabled individuals whose disability impairs

their ability to pass field sobriety tests. Id. ¶ 23.

Over a year and a half after the July 2013 incident,

on or about February 20, 2015, Mr. Brown reported a robbery of

over $40,000 worth of tools from his property. Id. ¶¶ 26-27.

Deputy Belt responded to Mr. Brown’s call to the authorities yet

did not file a police report or investigate the robbery. Id. ¶¶

26-27. Because Deputy Belt did not file a police report, Mr.

Brown’s insurance claim was made more difficult to support. Id.

¶¶ 28-29. Additionally, the tools were never recovered. Id. ¶

29. Mr. Brown believes this failure to investigate to be

retaliation for the original DUI charge being dismissed. Id. ¶

26.

On May 22, 2015, Mr. Brown was once again arrested for

DUI. Id. ¶ 36. Mr. Brown alleges on good faith information and

reasonable belief that Deputy Belt communicated to members of

the West Virginia State Police to “target” the plaintiff and

charge him with DUI. Id. ¶ 35. West Virginia State Troopers

Huff, Tallman and defendant Demaske were the arresting officers

for charges of DUI, left of center driving, and no proof of

insurance. Id. ¶ 36. Mr. Brown informed the officers of his

disability and subsequently failed the three standard field

sobriety tests. Id. ¶¶ 64, 67. He later took a breath test

which revealed that he had a blood alcohol level of 0.0. Id. ¶

65. All three charges were later dismissed after the officers

failed to appear or present any proof of impairment. Id. ¶ 37.

On January 15, 2016, Mr. Brown called the police to

report a man invading his home and battering him. Id. ¶ 38.

Defendant Trooper McFeeley, a West Virginia State Trooper,

responded to the call and arrested Mr. Brown for burglary,

destruction of property, and providing false information to the

state police, all without prosecuting the alleged crimes that

Mr. Brown called to report. Id. ¶ 39. Mr. Brown asserts that

this arrest was in retaliation for filing the original complaint

in this lawsuit on July 27, 2015 against defendants Deputy Belt,

Clay County Sheriff Garrett Samples, Jr., and the Clay County

Commission (“the Commission”). Id. at 21-22.

Later, on July 5, 2016, Mr. Brown was driving in

downtown Clay when he was in a minor car accident. Id. ¶ 43.

Deputy Belt responded to the accident along with Deputy Tyler

Caruthers, a fellow Clay County deputy sheriff. Id. ¶ 44. They

conducted DUI field sobriety tests and charged Mr. Brown with

DUI. Id. ¶¶ 44-45, 48. Mr. Brown had informed the deputies

that he was physically unable to pass the field sobriety tests,

yet the officers continued to conduct the same three field

sobriety tests as had been conducted by Deputy Belt at a

previous stop. Id. ¶¶ 47-48, 67. Mr. Brown participated in a

breath test which again showed that he had a blood alcohol level

of 0.0. Id. ¶ 65. Mr. Brown admitted to taking his daily

prescription medications but also stated that no one had ever

told him they might impair his ability to drive. Id. ¶ 49. Mr.

Brown requested a blood test to prove that he had only taken his

prescribed medications, but the officers refused. Id. ¶ 50.

Upon arriving at the police station, Mr. Brown was

taken to a dark closet and held there for approximately four

hours while waiting for an expert from the Charleston, West

Virginia detachment who was to conduct specialized testing of

the plaintiff. Id. ¶¶ 46, 51-52. During that time, he was

placed under a “red light” for further testing of impairment.

Id. ¶ 52. This treatment triggered a migraine, and the officers

would not allow Mr. Brown to take his medication to alleviate

it. Id. This charge for DUI was still pending as of

plaintiff’s filing of his motion to amend the complaint on

September 15, 2016. Id. ¶ 54; ECF No. 23.

On July 23, 2016, Trooper McFeeley arrested Mr. Brown

for another burglary. Id. ¶ 53. Mr. Brown claims that upon

arrest, Trooper McFeeley elected not to believe Mr. Brown’s

story regarding the incident and that the officer’s choice was

motived by retaliatory intent for the filing of this lawsuit on

July 27, 2015. Id. ¶¶ 105, 151.

The court notes that the details of the July 26, 2013

arrest that the plaintiff provides in his deposition vary

meaningfully from the allegations contained in the First Amended

Complaint. The plaintiff states that as he drove past Deputy

Belt on that date his tire started to go flat, which led to his

pulling over at a nearby service station. Pl.’s Dep., ECF No.

69-1, at p. 49. While stopped at the service station, Deputy

Belt pulled in behind the plaintiff and inquired as to why he

was driving on a flat tire. Id. While the plaintiff alleged in

his complaint that Deputy Belt caused his tire to go flat, he

admits that he has no “direct evidence” that Deputy Belt caused

his tire to go flat. Id. at 52.

The plaintiff further states that after speaking with

Deputy Belt about the flat tire, the plaintiff pulled out his

registration, insurance card, and driver’s license. Id. at 53.

Upon taking those items out (it is not specified from where),

Deputy Belt saw a pill bottle and the plaintiff said the

officer’s whole demeanor changed. Id.. After seeing the pill

bottle, Deputy Belt remarked on the changing conditions of

plaintiff’s eyes and informed the plaintiff that he was going to

conduct field sobriety tests. Id. at 54.1

The plaintiff also stated that he was taking

Oxycodone, Valium and Adderall daily at the time the original

complaint was filed on July 27, 2015, id. at 36, and that he

carried these pill bottles in his glove compartment, id. at 44.

II. Procedural Posture

On July 27, 2015, plaintiff filed his original

complaint with the court against Deputy Belt, Sheriff Samples,

and the Commission for the actions taken by Deputy Belt during

the July 26, 2013 DUI arrest. The complaint contained five

“causes of action” which the court treated as Counts 1 through

5, namely, Count 1, failure to provide reasonable accommodation

under Title II of the ADA, 42 U.S.C. § 12132, and § 504 of the

Rehabilitation Act, 29 U.S.C. § 794; Count 2, negligent hiring,

supervision, and/or training; Count 3, Fourth and Fourteenth

Amendment due process violations; Count 4, wrongful arrest; and

Count 5, intentional infliction of emotional distress (“IIED”).

On October 13, 2017, the court ruled on the joint motion to

1 The court notes the plaintiff states in his deposition

testimony that Deputy Belt thought the plaintiff was “drunk”

instead of believing that plaintiff had a disability which

caused him to fail the field sobriety tests. Id. at 53-56.

dismiss of Deputy Belt, the Commission and Sheriff Samples, the

only defendants then charged in the complaint. ECF No. 26.

Pursuant to that motion, the court dismissed the negligent

hiring prong of Count 22 and all of Counts 4 (wrongful arrest)

and 5 (IIED) but did not dismiss any other claims. Id. at 15.

On September 15, 2016, the plaintiff filed for leave

to amend the complaint. The court granted the motion on March

30, 2018, and the First Amended Complaint with the named

defendants as set forth in the case caption above was deemed

filed on that same day, thereby adding as defendants Deputy

Tyler Caruthers, Trooper Steven Demaske, Trooper McFeeley,

Colonel Smithers and Magistrate Jeffrey Boggs. The court at the

same time ordered that the negligent hiring claim, now in Count

4, be dismissed; that the July 26, 2013 action for wrongful

arrest against Deputy Belt, now in Count 6, was time barred due

to the one-year statute of limitations and was dismissed; and

that Magistrate Boggs, named in several counts, be dismissed

from the action. ECF No. 29, at 6.

The First Amended Complaint raises sixteen “causes of

action,” which the court treats as Counts 1 through 16. One or

2 Also, in Count 2, the court construed the plaintiff’s negligent

supervision and training claim against the Commission as a claim

for failure to train under Title II of the ADA for the July 26,

2013 arrest. ECF No. 26, at 9-11.

more of the County Defendants is the subject of the following

nine counts: Count 1, discrimination and failure to provide

reasonable accommodations under Title II of the ADA and § 504 of

the Rehabilitation Act, during the first DUI traffic stop, on

July 26, 2013, against Deputy Belt, the Commission and Sheriff

Samples, the former Clay County Sheriff; Count 3, discrimination

and failure to provide reasonable accommodations, as in Count 1,

during the third DUI traffic stop, on July 5, 2016, against

Deputy Belt, Deputy Caruthers, the Commission and Sheriff

Samples; Count 4, negligent supervision and/or training against

Sheriff Samples and the Commission arising from the July 26,

2013 and July 5, 2016 DUI arrests; Count 5, violation of Due

Process Rights under the Fourth, Fifth, and Fourteenth

Amendments of the Constitution under 42 U.S.C. § 1983 arising

from the July 26, 2013, and July 5, 2016 DUI arrests against

Deputy Belt, Deputy Caruthers, the Commission and Sheriff

Samples; Count 9, wrongful arrest for DUI on July 5, 2016

against Deputy Belt, Deputy Caruthers, the Commission and

Sheriff Samples; Count 11, retaliation claim under the First and

Fourteenth Amendments and 42 U.S.C. § 1983 for failure to

investigate the robbery of Mr. Brown’s property on February 20,,

2015 against Deputy Belt, Sheriff Samples and the Commission;

Count 12, retaliation claim under the First and Fourteenth

Amendments and 42 U.S.C. §1983 for “targeting” Mr. Brown in the

DUI arrest on May 22, 2015 against Deputy Belt; Count 14,

retaliation claim under the First and Fourteenth Amendments and

42 U.S.C. § 1983 for wrongful arrest and “torture” in the DUI

arrest of July 5, 2016 against Deputy Caruthers, Deputy Belt,

Sheriff Samples, and the Commission; and Count 16, intentional

infliction of emotional distress/outrage against all defendants

for all of the allegations contained in the First Amended

Complaint.

On December 17, 2018, the County Defendants filed a

motion to compel plaintiff’s responses to discovery requests.

ECF No. 64. The plaintiff failed to respond to this motion. On

January 4, 2019, Magistrate Judge Dwane L. Tinsley granted the

County Defendants’ motion to compel and further ordered that

each of the “Requests for Admissions contained in the Defendant

Robert Belt’s Request for Admissions to Plaintiff served on or

about October 18, 2018, shall be deemed admitted.” ECF No. 65,

at 2-3 (emphasis added). The requests for admission were as

follows:

1. Admit that plaintiff failed all three field sobriety tests

on July 26, 2013.

2. Admit that Deputy Belt had probable cause to arrest

Plaintiff on July 26, 2013 based upon Plaintiff’s failure

on all three field sobriety tests.

3. Admit that Plaintiff was not arrested based upon his

disabilities on July 26, 2013.

4. Admit that Plaintiff failed all three field sobriety tests

on July 5, 2016.

5. Admit that Deputy Belt had probable cause to arrest

Plaintiff on July 5, 2016 based on Plaintiff’s failure on

all three field sobriety tests.

6. Admit that Plaintiff was not arrested based upon his

disabilities on July 5, 2016.

7. Admit that Deputy Belt did not retaliate against Plaintiff

by failing to investigate a robbery/burglary.

8. Admit that Deputy Belt did not retaliate against Plaintiff

by communicating with other officers to arrest Plaintiff.

9. Admit that Deputy Belt did not retaliate against Plaintiff

by arresting him following the July 5, 2016 traffic

accident.

10. Admit that Deputy Belt did not request an expert from

Charleston, West Virginia to come interrogate Plaintiff

following the July 5, 2016 traffic accident.

11. Admit that Deputy Belt did not deny Plaintiff medications

following the July 5, 2016 traffic accident.

12. Admit that Plaintiff was not “tortured” following the

July 5, 2016 traffic accident.

ECF No. 64-1, Ex. A, at 18-20.3

The County Defendants filed their joint motion for

summary judgment on March 6, 2019, along with a motion to

dismiss for failure to prosecute. Defendants Colonel Smithers

and Trooper McFeeley filed their motion for summary judgment

later that same day. Instead of filing any response in

opposition, plaintiff’s counsel filed, on March 20, 2019, a

motion to withdraw as counsel. The court held a hearing on

March 28, 2019, on plaintiff’s counsel’s motion to withdraw, at

which hearing the plaintiff, though directed by order to appear

in person, failed to appear. At the hearing the court deferred

judgment on the motion to withdraw and informed plaintiff’s

counsel that it would consider the plaintiff’s response to the

above-listed dispositive motions, if such responses were filed,

3 “[A]dmissions obtained under Rule 36, including matters deemed

to be admitted by a party's failure to respond to a request for

admissions, can form the basis for granting Summary Judgment.”

Gardner v. Borden, Inc., 110 F.R.D. 696, 697 (S.D.W. Va. 1986),

cause dismissed, 812 F.2d 1400 (4th Cir. 1987) (quoting Freed v.

Plastic Packaging Materials, Inc., 66 F.R.D. 550, 552 (E.D. Pa.

1975)).

though late, by March 29, 2019. No response has been provided

by plaintiff to any of the pending dispositive motions.

III. Standard of Review

A party is entitled to summary judgment “if the

pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Material facts are

those necessary to establish the elements of a party’s cause of

action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

A genuine issue of material fact exists if, in viewing

the record and all reasonable inferences drawn therefrom in a

light most favorable to the non-moving party, a reasonable fact-

finder could return a verdict for the non-movant. Id. The

moving party has the burden of showing -- “that is, pointing out

to the district court -- that there is an absence of evidence to

support the nonmoving party’s case.” Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986). If the movant satisfies this burden,

then the non-movant must set forth specific facts as would be

admissible in evidence that demonstrate the existence of a

genuine issue of fact for trial. Fed. R. Civ. P. 56(c); id. at

322-23. A party is entitled to summary judgment if the record

as a whole could not lead a rational trier of fact to find in

favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823

(4th Cir. 1991).

Conversely, summary judgment is inappropriate if the

evidence is sufficient for a reasonable fact-finder to return a

verdict in favor of the non-moving party. Anderson, 477 U.S. at

248. Even if there is no dispute as to the evidentiary facts,

summary judgment is also not appropriate where the ultimate

factual conclusions to be drawn are in dispute. Overstreet v.

Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).

A court must neither resolve disputed facts nor weigh

the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239

(4th Cir. 1995), nor make determinations of credibility.

Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Rather,

the party opposing the motion is entitled to have his or her

version of the facts accepted as true and, moreover, to have all

internal conflicts resolved in his or her favor. Charbonnages

de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).

Inferences that are “drawn from the underlying facts . . . must

be viewed in the light most favorable to the party opposing the

motion.” United States v. Diebold, Inc., 369 U.S. 654, 655

(1962).

IV. Discussion

A. Counts 1 and 3 (ADA and Rehabilitation Act violations

during the July 26, 2013 and July 5, 2016 DUI Arrests)

Counts 1 and 3 are brought against all County

Defendants under Title II of the ADA and § 504 of the

Rehabilitation Act and arise out of the July 26, 2013 DUI arrest

by Deputy Belt and the July 5, 2016 DUI arrest by Deputy Belt

and Deputy Caruthers. The plaintiff asserts that the deputies

discriminated against him based upon his disabilities and failed

to provide reasonable accommodations to him during the arrests.

Title II of the ADA provides that “no qualified

individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity.”

42 U.S.C. § 12132. Similarly, § 504 of the Rehabilitation Act

states that “[n]o otherwise qualified individual with a

disability . . . shall, solely by reason of her or his

disability, be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under any program

or activity receiving Federal financial assistance.” 29 U.S.C.

§ 794(a). “Claims under the ADA’s Title II and the

Rehabilitation Act can be combined for analytical purposes

because the analysis is ‘substantially the same.’” Seremeth v.

Bd. of Cty. Comm’rs Frederick Cty., Md., 673 F.3d 333, 336 n.1

(4th Cir. 2012) (citation omitted).

The Court of Appeals for the Fourth Circuit has held

that “[u]nder the ADA and similar statutes, liability may be

imposed on a principal for the statutory violations of its

agent,” instead of just for policies that encourage

discrimination. Rosen v. Montgomery Cty., Md., 121 F.3d 154,

157 n.3 (4th Cir. 1997) (citations omitted).

The Fourth Circuit has also noted:

In the context of arrests, courts have recognized two

types of Title II claims: (1) wrongful arrest, where

police arrest a suspect based on his disability, not

for any criminal activity; and (2) reasonable

accommodation, where police properly arrest a suspect

but fail to reasonably accommodate his disability

during the investigation or arrest, causing him to

suffer greater injury or indignity than other

arrestees.

Waller ex rel. Estate of Hunt v. Danville, VA, 556 F.3d 171, 174

(4th Cir. 2009).

“In general, a plaintiff seeking recovery for

violation of either statute must allege that (1) she has a

disability, (2) she is otherwise qualified to receive the

benefits of a public service, program, or activity, and (3) she

was excluded from participation in or denied the benefits of

such service, program, or activity, or otherwise discriminated

against, on the basis of her disability.” Constantine v.

Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th

Cir. 2005) (citations omitted).

The Fourth Circuit has recognized the three following

forms of a disability as defined in the ADA:

(1) “a physical or mental impairment that

substantially limits one or more major life

activities” (the “actual-disability” prong);

(2) “a record of such an impairment” (the “record-of”

prong); or

(3) “being regarded as having such an impairment” (the

“regarded-as” prong).

Summers v. Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir.

2014) (quoting 42 U.S.C. § 12102(1)). “For purposes of

paragraph (1), major life activities include, but are not

limited to, caring for oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating, thinking,

communicating, and working.” 42 U.S.C. § 12102(2)(A).

To be successful on an ADA or Rehabilitation Act

claim, a plaintiff must show: “(1) that he has a physical or

mental impairment, (2) that this impairment implicates at least

one major life activity, and (3) that the limitation is

substantial.” Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249,

254 (4th Cir. 2006). To establish that impairments are

substantially limiting, a plaintiff must show that the

impairment “substantially limits the ability of an individual to

perform a major life activity as compared to most people in the

general population.” 29 C.F.R. § 1630.2(j)(ii).

Here, the plaintiff alleges that he is disabled due to

his having nystagmus4 and a leg injury. Compl., ECF No. 30, ¶¶

14-16. While not expressly stated, it appears that the

plaintiff is alleging a disability under the “actual disability”

and “record-of” prongs, inasmuch as he stated that the Social

Security Administration found him to be “100% disabled” and that

his leg injury and nystagmus prevented him completing the three

standard field sobriety tests. Id. ¶¶ 14-16, 25.

The County Defendants argue that the plaintiff has

failed to establish that he is disabled, and thus, his claims

for discrimination and failure to provide reasonable

accommodations under the ADA and Rehabilitation Act fail as a

matter of law. County Defs.’ Mem. Supp. Mot. Summary J.

(“County Defs.’ Mem.”), ECF No. 70, at 7.

4 Nystagmus is defined as “[a]n abnormal and involuntary movement

of the eyeballs either from side to side or up and down, but

usually from side to side. It is a sign of a number of

ailments, usually of nervous origin. It may, however, be due to

simple fatigue of the eye muscles, as when watching a tennis

game.” 4 J.E. Schmidt, M.D., Attorney’s Dictionary of Medicine

and Word Finder N-175 (2018).

As an initial matter, the court determines that the

plaintiff has not established that he has a record of

impairment. Despite his claims that the Social Security

Administration classified the plaintiff as disabled, he has

presented no documentation, nor any other evidence, to support

that assertion. Indeed, after the plaintiff stated in his

initial Rule 26(a)(1) disclosures that he was in possession of

or was in the process of obtaining such evidence, he has not

produced any of that information. ECF No. 71-3.

The court now turns to the actual disability prong to

determine whether the plaintiff’s purported leg injury and

nystagmus substantially limit one or more major life activity.

Regarding his leg injury, the plaintiff stated in his

deposition that prior to the July 26, 2013 arrest, he did not

“recall ever having a problem out of that leg. I don’t recall

every having pain in . . . the leg.” Pl.’s Dep., ECF No. 69-1,

at p. 46-48. The only issue he claimed to have ever had with

the leg is that he could not pivot on it. Id. at 48. However,

the plaintiff noted that he never had any difficulty walking or

standing for long periods of time. Id. at 46.

Next, when asked if his nystagmus “affect[s] any

activity that you would do on a daily basis, besides reading,”

the plaintiff responded, “[n]o, it does not, no.” Pl.’s Dep.,

ECF No. 69-1, at p. 56. The plaintiff further stated that his

nystagmus only affects him when he is trying to focus on things

close to eyes, like reading. See id. at 55.

The plaintiff has failed to offer any evidence to

suggest that either his leg injury or nystagmus substantially

interferes with a major life activity. In fact, his deposition

suggests the contrary – that neither impairment has any

meaningful impact on his everyday life. Inasmuch as the

plaintiff has not demonstrated that he is disabled, his claims

for discrimination and failure to provide reasonable

accommodations under Title II of the ADA and § 504 of the

Rehabilitation Act against all defendants fail as a matter of

law. Accordingly, the County Defendants are entitled to summary

judgment on Counts 1 and 3.

B. Count 4 (negligent supervision and training arising from

the July 26, 2013 and July 5, 2016 arrests)

Count 4 asserts a negligent supervision and training

claim against Sheriff Samples and the Commission arising out of

the July 26, 2013 and July 5, 2016 arrests by Deputy Belt and

Deputy Caruthers. Plaintiff contends that the Commission and

Sheriff Samples failed to adequately fund training or train the

officers on the requirements of the ADA, which led to the

plaintiff being discriminated against based on his disabilities.

Compl., ECF No. 30, at ¶¶ 76-77.

While not addressed in the County Defendants’ motion

for summary judgment, in its October 13, 2017 memorandum opinion

and order in which it ruled on the joint motion of Deputy Belt,

Sheriff Samples and the Commission to dismiss the original

complaint, the court found that in his charge for negligent

supervision and training, the plaintiff had stated a claim for

failure to train under Title II of the ADA. ECF No. 26, at 10.

However, for the reasons set forth above, the plaintiff has

failed to establish that he is disabled and therefore entitled

to the protection of the ADA.5 Accordingly, any claims for

failure to train under that statute fail as a matter of law.

To the extent that the claims in Count 4 are grounded

in negligence, the court applies West Virginia law.

Under West Virginia law, claims of negligent training

and supervision are governed by general negligence principles.

See Pruitt v. W. Va. Dep't of Pub. Safety, 664 S.E.2d 175, 179,

181–83 (W. Va. 2008) (allowing claims of negligent failure to

train and supervise to proceed to trial); Neiswonger v.

5 The plaintiff also stated in his deposition that he did not

know if the officers “were trained in ADA cases . . . . If they

were trained, they’ve strayed outside of their training.” Pl.’s

Dep., ECF No. 69-1, at p. 144.

Hennessey, 601 S.E.2d 69, 73, 73 n.3 (W. Va. 2004) (recognizing

negligent hiring, training, and supervising as a cause of action

grounded in state law and distinct from claims asserted under §

1983); Taylor v. Cabell Huntington Hosp., Inc., 538 S.E.2d 719,

725 (W. Va. 2000) (“The appellant's claim of negligent

supervision must rest upon a showing that the hospital failed to

properly supervise [an employee] and, as a result, [that

employee] committed a negligent act which proximately caused the

appellant's injury.”).

The plaintiff has offered no evidence that either

Sheriff Samples or the Commission negligently trained or

supervised its officers. The plaintiff stated that he had no

knowledge about the Commission’s supervision of its officers and

had no information regarding the training of the Commission’s

officers, or the funding of that training, other than what he

believes to be true. Pl.’s Dep., ECF No. 69-1, pp. 72-73, 144-

45, 148-50, 169-70.

Due to plaintiff’s failure to offer any evidence in

support of the allegations in the First Amended Complaint that

Sheriff Samples and the Commission failed to supervise or train

their officers, Sheriff Samples and the Commission are entitled

to summary judgment as to Count 4.

C. Count 5 (Due Process claims under § 1983 pursuant to the

Fourth, Fifth and Fourteenth Amendments)

Count 5 of the First Amended Complaint asserts a §

1983 claim under the Fourth, Fifth, and Fourteenth Amendments

against each County Defendant arising out of the July 26, 2013

arrest by Deputy Belt and the July 5, 2016 DUI arrest by Deputy

Belt and Deputy Caruthers. Here, the plaintiff states that he

was “arrested, seized and searched without any reasonable

suspicion by the arresting officer, or if there was reasonable

suspicion/probable cause for DUI traffic stop, the officer’s

reasonable suspicion/probable cause was based on the Plaintiff’s

disabilities.” Compl., ECF No. 30, at ¶ 79.

A substantive due process claim challenging the use of

force may lie only if neither the Fourth nor the Eighth

Amendment applies. See Graham v. Connor, 490 U.S. 386, 395

(1989). While this claim is for an unlawful arrest rather than

excessive use of force, the principle of Graham applies, and the

textually specific Fourth Amendment protection preempts the more

generalized substantive due process protection. See United

States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (“Graham simply

requires that if a constitutional claim is covered by a specific

constitutional provision, such as the Fourth or Eighth

Amendment, the claim must be analyzed under the standard

appropriate to that specific provision, not under the rubric of

substantive due process.”). Accordingly, the plaintiff’s § 1983

claim, insofar as it is brought under the Fifth and Fourteenth

Amendments, contained within Count 5 is dismissed.

Count 5, therefore, asserts § 1983 claims against the

Commission, Sheriff Samples, Deputy Belt, and Deputy Caruthers

for unlawful arrest in violation of only the Fourth Amendment

arising out of the DUI arrests on July 26, 2013 and July 5,

2016.

Section 1983 claims require that a plaintiff allege

that a right secured by the Constitution or laws of the United

States has been violated and that the violation was committed by

a person acting under color of state law. West v. Atkins, 487

U.S. 42, 48 (1988). In order to establish a § 1983 claim for

unreasonable seizure or unlawful arrest under the Fourth

Amendment, a plaintiff must demonstrate that he was arrested

without probable cause. Brown v. Gilmore, 278 F.3d 362, 367-68

(4th Cir. 2002) (citations omitted).

Here, the plaintiff admitted that Deputy Belt had

probable cause to arrest the plaintiff on both July 26, 2013 and

July 5, 2016 and that neither arrest was based on his alleged

disabilities. See ECF No. 64-1, Ex. A, at 18-19.

Further, in his deposition, the plaintiff provided no

statement to indicate that Deputy Caruthers engaged in any

unlawful activity on July 5, 2016. The plaintiff did not

remember if field sobriety tests were even conducted during that

arrest and the only information he provided regarding Deputy

Caruthers states that he was a nice person and good officer.

Pl.’s Dep., ECF No. 69-1, at pp. 69, 85, 165, 168.

Additionally, inasmuch as there are no factual

allegations against Sheriff Samples which suggest that he

unlawfully seized the plaintiff, it appears that the plaintiff

is suing him for supervisory liability under § 1983. It further

appears that the Commission is being sued for county liability

based on its failure to train or supervise its officers. See

Compl., ECF No. 30, at ¶¶ 76-77. Supervisory liability may be

established against a defendant for § 1983 claims. See Shaw v.

Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Further, “[l]ocal

governing bodies . . . can be sued directly under § 1983 . . .

where . . . the action that is alleged to be unconstitutional

implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by

that body’s officers.” Monell v. Dep’t of Soc. Servs. Of City

of New York, 436 U.S. 658, 690 (1978).

“Because vicarious liability is inapplicable to . . .

§ 1983 suits, a plaintiff must plead that each Government-

official defendant, through the official’s own individual

actions, has violated the Constitution.” Ashcroft v. Iqbal, 556

U.S. 662, 676 (2009). As noted above, however, the plaintiff

has offered no evidence that Sheriff Samples failed to train or

supervise Deputy Belt or Deputy Caruthers. The plaintiff also

stated that he had no knowledge about the Commission’s

supervision or training of its officers, or the funding of that

training. See Pl.’s Dep., ECF No. 69-1, pp. 72-73, 144-45, 148-

50, 169-70.6

Accordingly, the County Defendants are all entitled to

summary judgment as to Count 5.

6 To the extent Count 5 is being asserted against any

individually-named County Defendant in their official capacity,

such claims are duplicative of those against the Commission and

fail for the same reason. See Kentucky v. Graham, 473 U.S. 159,

165-66 (1985) (“Official-capacity suits . . . generally

represent only another way of pleading an action against an

entity of which an officer is an agent. . . . As long as the

government entity receives notice and an opportunity to respond,

an official-capacity suit is, in all respects other than name,

to be treated as a suit against the entity.”) (internal

citations and quotations omitted).

D. Counts 11, 12 and 14 (§ 1983 retaliation claims)

In Count 11, the plaintiff asserts a § 1983

retaliation claim against Deputy Belt, Sheriff Samples and the

Commission for Deputy Belt’s failure to investigate a robbery on

February 20, 2015; plaintiff alleges that Deputy Belt declined

to investigate because the original DUI charge against the

plaintiff was dismissed. See Compl., ECF No. 30, at ¶ 26. In

Count 12, the plaintiff asserts a claim for retaliation against

Deputy Belt for the DUI arrest performed by Trooper Demaske on

May 22, 2015. In Count 14, the plaintiff asserts a retaliation

claim against Deputy Belt, Deputy Caruthers, Sheriff Samples and

the Commission for the July 5, 2016 DUI arrest. In Counts 12

and 14, the plaintiff asserts that he was arrested as

retaliation for the filing of the original complaint in this

lawsuit on July 27, 2015. See Compl., ECF No. 30, at ¶¶ 120,

147.

The Fourth Circuit has held:

In order to state a colorable retaliation claim under

Section 1983, a plaintiff ‘must allege that (1) []he

engaged in protected First Amendment Activity, (2) the

defendant[] took some action that adversely affected

[his] First Amendment rights, and (3) there was a

causal relationship between [his] protected activity

and the defendant[’s] conduct.’

Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting

Constantine, 411 F.3d at 499)

Here, the plaintiff has admitted that Deputy Belt did

not retaliate against him by failing to investigate the February

20, 2015 robbery, by communicating with other officers to arrest

him, or by arresting him on July 5, 2016. ECF No. 64-1, Ex. A,

at 18-19. Regarding Deputy Caruthers, the plaintiff admitted

that Deputy Belt did not communicate with other officers to

arrest the plaintiff (presumably, “other officers” would include

Deputy Caruthers), and the plaintiff has offered no evidence to

indicate that Deputy Caruthers was retaliating against him.7

Next, inasmuch as there are no facts alleged against

Sheriff Samples suggesting that he personally retaliated against

the plaintiff, to the extent he is being sued in Counts 11 and

14 in his individual capacity, it appears he is being sued for

supervisory liability. See Shaw, 13 F.3d at 799. Additionally,

in Counts 11 and 14, while not specified, it appears that the

plaintiff is suing the Commission for some policy or absence

thereof. See Monell, 436 U.S. at 690.

7 In his deposition, the plaintiff continuously notes how nice

Deputy Caruthers was during the July 5, 2016 incident. Pl.’s

Dep., ECF No. 69-1, at pp. 69, 85, 165, 168

Once again, the plaintiff has offered no evidence to

support the contention that Sheriff Samples failed to supervise

or train Deputy Belt or Deputy Caruthers, nor has he indicated

that the Commission had a policy that would encourage

retaliation against those who obtain dismissals for criminal

charges or file suit against employees of the Commission.8

For these reasons, the County Defendants’ motion for

summary judgment on the § 1983 retaliation claims in Counts 11,

12 and 14 is granted.

E. Count 9 (wrongful arrest arising out of the July 5, 2016

DUI arrest)

As grounds for his ninth cause of action, the

plaintiff asserts that he was unlawfully arrested by Deputy Belt

and Deputy Caruthers on July 5, 2016. He brings this count

against the deputies, Sheriff Samples, and the Commission.

The Supreme Court of Appeals of West Virginia has

held: “[T]he gist of the action for false imprisonment [also

called false arrest] is illegal detention of a person without

lawful process or by an unlawful execution of such process.”

8 To the extent any of these claims are asserted against the

individually-named County Defendants in their official capacity,

those claims fail for the same reason the claims fail against

the Commission. See supra p. 27 n.6.

Riffe v. Armstrong, 477 S.E.2d 535, 549 (W. Va. 1996) (citations

omitted).

Here, the plaintiff admitted that Deputy Belt had

probable cause to arrest him on July 5, 2016 and that neither

arrest was based upon his alleged disabilities. The plaintiff

has also failed to provide any evidence or testimony to suggest

that Deputy Caruthers should be liable for wrongful arrest.

Further, inasmuch as there are no facts which suggest

that Sheriff Samples and the Commission arrested the plaintiff,

it appears that they are being sued in connection with the

actions of their employees. The plaintiff failed to provide any

evidence supporting a claim for supervisory and training

liability for wrongful arrest against Sheriff Samples or the

Commission. Accordingly, the County Defendants are entitled to

summary judgment as to Count 9.

F. Count 16 (IIED)

In their June 11, 2018 motion to dismiss, the County

Defendants correctly note that the court previously dismissed

plaintiff’s IIED claim arising out of the July 26, 2013 arrest.

However, in his First Amended Complaint, the plaintiff

incorporates all factual allegations into his IIED claim in

Count 16 and asserts that the defendants engaged in “consistent

and continuing” conduct that caused the plaintiff severe

emotional distress. Compl., ECF No. 30, at ¶¶ 157-60.

The County Defendants did not expressly argue, in

their motion to dismiss or in their motion for summary judgment,

that the plaintiff’s IIED claims arising from the subsequent

interactions between some of the County Defendants and the

plaintiff should be dismissed.9

The West Virginia Supreme Court has stated that courts

are to play a “gate-keeping” role in determining whether, as a

matter of law, a plaintiff could establish one key element of an

IIED claim: whether conduct is “atrocious, intolerable, and so

extreme and outrageous as to exceed the bounds of decency.”

Philyaw v. E. Associated Coal Corp., 633 S.E.2d 8, 13 (2006).

Here, the plaintiff has admitted that Deputy Belt did

not retaliate against him by choosing not to investigate a

robbery on February 20, 2015. He admitted that Deputy Belt had

probable cause to arrest him on July 5, 2016 and that Deputy

Belt did not retaliate against him for that arrest. He admitted

9 The court notes that had it ruled on the County Defendants’

motion to dismiss the First Amended Complaint before the

dispositive motions’ deadline expired, it is likely that the

County Defendants would have explicitly moved for summary

judgment on the plaintiff’s IIED claims.

that Deputy Belt did not retaliate against him by telling other

officers to arrest him. He admitted that neither the July 26,

2013 nor the July 5, 2016 arrest was based on his disabilities.

Finally, he admitted that Deputy Belt did not deny him

medications and that he was not tortured following the July 5,

2016 arrest. See ECF No. 64-1, Ex. A, at 18-20. Independently

of those admissions, the plaintiff has also failed to present

any evidence to suggest that any conduct by the County

Defendants was outrageous.

Despite the fact that the County Defendants would be

entitled to summary judgment on plaintiff’s remaining IIED

claims against them, they failed to move for summary judgment on

those claims. However, the County Defendants are still entitled

to the dismissal of those claims with prejudice, based on their

motion to dismiss plaintiff’s First Amended Complaint for

failure to prosecute. ECF No. 71.

Rule 41(b) of the Federal Rules of Civil Procedure

provides that “[i]f the plaintiff fails to prosecute or to

comply with these rules or a court order, a defendant may move

to dismiss the action or any claim against it [and] . . .

[u]nless the dismissal order states otherwise, a dismissal under

this subdivision (b) . . .operates as an adjudication on the

merits.”

The County Defendants’ motion is grounded in the

plaintiff’s long history of dilatory conduct in this matter and

his failure to comply with Judge Tinsley’s January 4, 2019 order

compelling the plaintiff to respond to the county defendants’

first set of discovery requests or Judge Tinsley’s February 5,

2019 order compelling plaintiff’s counsel to pay the County

Defendants’ attorney fees arising out of their motion to compel.

County Defs.’ Mem. Supp. Mot. Dismiss, ECF No. 72, at 7.

The Fourth Circuit has directed district courts to

take the following four factors into account in deciding whether

a Rule 41(b) dismissal is appropriate:

(1) the degree of personal responsibility of the

plaintiff, (2) the amount of prejudice caused the

defendant, (3) the existence of a “drawn out history

of deliberately proceeding in a dilatory fashion”, and

(4) the existence of sanctions less drastic than

dismissal.

Herbert v. Saffell, 877 F.2d 267, 270 (4th Cir. 1989) (citation

omitted).

Here, the plaintiff stated in his initial Rule

26(a)(1), filed in May 2016, that medical records, social

security records and copies of the records from his criminal

case and administrative agency case were either in his

possession or were being obtained.10 ECF No. 71-3, at 1-2. He

also stated that these documents were forthcoming and would be

submitted in supplemental disclosures. Id. The plaintiff has

yet to disclose any of these documents to the County Defendants.

Next, after receiving notice on December 10, 2018 by electronic

letter of the County Defendants’ intent to file a motion to

compel, plaintiff’s counsel acknowledged in an electronic letter

to the County Defendants’ counsel that he had “been having

difficulty obtaining the information from [his] client,” but he

believed that he could complete the discovery responses by

December 14, 2018. ECF No. 71-5. No responses were provided.

Even after Judge Tinsley ordered the plaintiff to serve his

responses by January 18, 2019, plaintiff failed to file a

response. ECF No. 65. Also, immediately prior to his

deposition, the plaintiff provided several requested

authorizations that had been executed in October and December

2018 yet appear not to have been provided by the plaintiff to

plaintiff’s counsel until that day. Pl.’s Dep., ECF No. 69-1,

at pp. 105-09. The plaintiff’s apparent disinterest in pursuing

this litigation culminated in his failure to appear at the

10 This disclosure was given only to Deputy Belt, Sheriff Samples

and the Commission, as the plaintiff had not yet moved to amend

his complaint to add other defendants.

hearing on plaintiff’s counsel’s motion to withdraw, of which he

was made aware and ordered to attend. ECF No. 77.11

These facts, coupled with plaintiff’s counsel’s

failure to timely respond to the County Defendants’ motion to

dismiss and the complete absence of a response to the County

Defendants’ motion for summary judgment and motion to dismiss

for failure to prosecute have prejudiced the County Defendants

and suggest that no sanction other than dismissal of plaintiff’s

remaining IIED claims is warranted.

For these reasons, the County Defendants motion to

dismiss for failure to prosecute is granted as to plaintiff’s

remaining IIED claims against them, which claims are seen to be

meritless in any event.

11 The court directed the Clerk to mail the order in which

plaintiff was directed to attend the hearing on plaintiff’s

counsel’s motion to withdraw to plaintiff’s two known addresses.

On April 1, 2019, the mail sent to 19 Pine Street, Clay, West

Virginia 25043 was returned as undeliverable. ECF No. 79.

However, the order sent to P.O. Box 291, Clay, West Virginia

25043 was not returned and plaintiff’s counsel informed the

court at the hearing that plaintiff was aware of his required

attendance and had spoken to him about the hearing earlier that

same day.

V. Conclusion

In light of the foregoing, it is ORDERED as follows:

1. That the County Defendants’ motion for summary judgment be,

and hereby is, granted for all claims except for the

remaining IIED claims in Count 16;

2. That the County Defendants’ motion to dismiss for failure

to prosecute be, and hereby is, granted, but only to the

extent that such motion pertains to Count 16; and

3. That Deputy Belt, Deputy Caruthers, Sheriff Samples, and

the Commission be, and hereby are, dismissed from the

above-styled case.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record and any

unrepresented parties.

Enter: April 15, 2019