# Brown v. Belt

> District Court, S.D. West Virginia · April 15, 2019

URL: https://www.frixlaw.com/law-library/cases/10728272

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** April 15, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10728272

## How later opinions describe it (automated extraction)

- recognizing negligent hiring, training, and supervising as a cause of action grounded in state law and distinct from claims asserted under § 1983

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10728272. Public record. Not legal advice.