Jafary v. Ward

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY DIVISION

CYNTHIA JAFARY

Plaintiff,

v. CIVIL ACTION NO. 5:20-cv-00647

CITY OF BECKLEY, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendants’ Motion for Summary Judgment.

[ECF No. 113]. For the reasons explained in this memorandum opinion, the Motion

is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

At approximately 1 a.m. on February 24, 2020, City of Beckley police officers,

Defendants Justin Ward and Zane England (collectively, “Defendant officers”),

responded to a dispatch for a domestic disturbance in progress at the home of Ms.

Jafary’s brother- and sister-in-law (“the Ranas”). The disturbance resulted from a

conflict with the Ranas’ daughter, Ms. Jafary’s niece. [ECF No. 114, at 2]. When

Defendant Ward arrived at the Rana residence, he was informed that Ms. Jafary’s

brother-in-law had lost consciousness and was on the floor in one of the bedrooms.

at 3. Defendant officers called for dispatch of emergency medical services to the

Rana residence and tended to Ms. Jafary’s brother-in-law in the bedroom while

waiting for medical services to arrive. Defendant officers conversed with Ms.

Jafary’s sister-in-law and nephew about Ms. Jafary’s niece. Defendant officers

admit that they used raised voices during this conversation “to gain control of the

scene.”

Ms. Jafary, who was present at the Rana residence after being called there by

a relative, alleges that Defendant officers were excessively yelling and using

profanity. [ECF No. 118, at 2]. Ms. Jafary claims that she came to the doorway of

the bedroom and objected to Defendant officers’ use of language and heightened

volume. She alleges this angered Defendant officers, who then “hurled

expletives,” “threatened to arrest her, and demanded that she leave.” Defendant

officers assert that they never engaged in any inappropriate conduct, and it was Ms.

Jafary who was upset and yelling at them, distracting them from providing medical

care to her family. [ECF No. 114, at 4]. Defendant Ward “repeatedly told Ms. Jafary

to leave[,] and she refused the command on each such occasion and would provide

some form of rebuttal,” although she eventually did retreat outside of the house.

Ms. Jafary alleges that although she questioned the officers, she never yelled at or

harassed them. [ECF No. 118, at 7].

Later, when EMS arrived at the Rana residence, Defendant Ward went

outside to meet them, where either he or Ms. Jafary instigated another argument.

at 5 with [ECF No. 118, at 2]. Ms. Jafary alleges that Defendant Ward

yelled, cursed, and continued to threaten to arrest her until she walked away from

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the property. Defendant officers counter that Ms. Jafary “continued to obstruct

the officers and refuse[d] to calm down.” [ECF No. 114, at 5]. Defendant officers do

not dispute that Ms. Jafary never used threats, insults, or any measure of physical

force during her conversations with them. [ECF No. 118, at 7]. She requested

Defendant officers’ names and badge numbers and informed them that she intended

on reporting their actions. [ECF No. 114, at 5]. Ms. Jafary called the Beckley Police

Department shortly after the second encounter and filed a complaint for officer

misconduct. [ECF No. 118, at 2].

The police eventually left the scene without making any arrests, but

thereafter Defendant officers filed a criminal complaint against Ms. Jafary,

accusing her of obstructing an officer in violation of W. Va. Code § 61-5-17(a). [ECF

No. 114, at 6]. In the narrative for the arrest warrant, Defendant officers stated

that Ms. Jafary yelled at them, harassed them, refused instructions, tried to impede

their movements, and had to be escorted away from the property. [ECF No. 118-1,

at 202]. Ms. Jafary alleges that these are lies made up by Defendant officers to

manufacture probable cause to arrest her on the charge of obstruction. [ECF No.

118, at 3].

Based on the narrative, a magistrate judge issued an arrest warrant for Ms.

Jafary, which was served by Defendant officers around 10:30 p.m. on February 24,

2020. [ECF No. 114, at 6]. Ms. Jafary alleges that Defendant officers waited until it

was late to serve the warrant to force her to spend the night in jail. [ECF No. 118,

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at 3]. Defendant officers testified in contrast that they were expected to serve the

warrants they applied for and that at the time, they only worked night shift, so they

could not arrest Ms. Jafary during the day. [ECF 118-1, at 144–45].

Ms. Jafary was released from jail the next day, and the misdemeanor

obstruction charge was thereafter dismissed and expunged from her record. [ECF

No. 118, at 3–4]. She alleges that Defendant officers arrested her and caused her

prosecution on the charge of misdemeanor obstruction while lacking probable cause

to believe she committed a crime. [ECF No. 1, at ¶2]. She alleges that she incurred

thousands of dollars in legal fees to defend herself, suffered damages to her

reputation in the community, and suffered emotionally due to being arrested and

spending a night in jail in retaliation for lawful conduct. [ECF No. 118, at 4].

Ms. Jafary brings the following claims: a 42 U.S.C. § 1983 claim against

Defendants Ward and England for malicious prosecution in violation of her Fourth

Amendment rights (Count II); a 42 U.S.C. § 1983 claim against Defendants Ward

and England for retaliation in violation of her First Amendment rights (Count III);

a 42 U.S.C. § 1983 claim against the City of Beckley for failure to train

(Count IV); and state common law claims for malicious prosecution, intentional

infliction of emotional distress, and negligent training and supervision (Counts V,

VI, VII, and VIII).1 Defendants move for summary judgment on each of the

remaining counts.

1 I previously dismissed Ms. Jafary’s 42 U.S.C. § 1983 claim for false arrest against Defendants Ward

and England in their individual capacities (Count I) as moot because it merged with the malicious

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II. LEGAL STANDARDS

A. Summary Judgment

To obtain summary judgment, the moving party must show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). “Facts are ‘material’ when they

might affect the outcome of the case, and a ‘genuine issue’ exists when the evidence

would allow a reasonable jury to return a verdict for the nonmoving party.”

, 597 F.3d 570, 576 (4th Cir.

2010). The moving party may meet its burden of showing that no genuine issue of

material fact exists by use of “depositions, answers to interrogatories, answers to

requests for admission, and various documents submitted under request for

production.” , 736 F.2d 946, 958 (4th Cir. 1984). In

considering a motion for summary judgment, the court will not “weigh the evidence

and determine the truth of the matter.” , 477 U.S. 242,

249 (1986). Rather, the court will draw any permissible inference from the

underlying facts in the light most favorable to the nonmoving party.

., 475 U.S. 574, 587–88 (1986).

Summary judgment is appropriate when the nonmoving party has the burden

of proof on an essential element of her case and does not make, after adequate time

for discovery, a showing sufficient to establish that element.

, 477 U.S. 317, 322–23 (1986). Although the court will view all underlying

prosecution claim in Count II. [ECF No. 77, at 9].

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facts and inferences in the light most favorable to the nonmoving party, the

nonmoving party nonetheless must offer some “concrete evidence from which a

reasonable juror could return a verdict in [her] favor.” , 477 U.S. at 256.

Conclusory allegations or unsupported speculation, without more, are insufficient to

preclude the granting of a summary judgment motion.

, 818 F.2d 1126, 1128 (4th Cir. 1987). Rather, the nonmoving party

must satisfy her burden of proof by “set[ting] forth specific facts” that offer more

than a “scintilla of evidence” in support of her position “that there is a genuine issue

for trial.” 477 U.S. at 252, 256.

B. Qualified Immunity

“Police officers sued in their individual capacities . . . have qualified

immunity with respect to official actions taken in good faith.”

, 672 F.2d 403, 406 (4th Cir. 1982). “Individual liability for actions in

the performance of official duties arises only when an officer knew or reasonably

should have known that the action he took within the sphere of official

responsibility would violate the constitutional rights” of the individuals affected “or

if he took the action with the malicious intention to cause deprivation of

constitutional rights or injury . . . .” .

In determining qualified immunity, the court must undertake a two-part

inquiry: (1) determining whether the facts, viewed in the light most favorable to the

plaintiff, show there was a constitutional violation; and (2) if so, whether the right

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violated was clearly established at the time of the violation such that a reasonable

person would have known their conduct was unconstitutional. , 781

F.3d 95, 100 (4th Cir. 2015). If the answer to either question is no, then Defendants

are entitled to qualified immunity. “The question of whether a right is clearly

established, for qualified immunity purposes, is a question of law for the court to

decide.” , 931 F.3d 307, 317–18 (4th Cir. 2019). On the other hand, the

question of whether a reasonable officer would have known that the conduct at

issue violated a clearly established right, for qualified immunity purposes, “cannot

be decided on summary judgment if disputes of the historical facts exist.” at 318.

III. DISCUSSION

A. Claims Against Defendant Officers

Defendant officers move for summary judgment on each of the counts against

them—section 1983 malicious prosecution (Count II), First Amendment retaliation

(Count III), common law malicious prosecution (Count V), and intentional of

infliction of emotional distress (Count VI). Their Motion is DENIED.

1. Section 1983 Fourth Amendment Malicious Prosecution (Count II)

Defendant officers move for summary judgment on Count II in two respects.

First, Defendant officers argue they are entitled to summary judgment on the

merits of the claim because they had probable cause to arrest Ms. Jafary for

misdemeanor obstruction. Next, they argue they are entitled to summary judgment

on the issue of qualified immunity. I address each argument separately, but I note

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that the analyses of both the merits and the first prong of qualified immunity are

necessarily related.2

a. On the Merits

A claim of malicious prosecution under 42 U.S.C. § 1983 is “understood as a

Fourth Amendment claim for unreasonable seizure” that incorporates elements of

the analogous common law tort of malicious prosecution. , 931 F.3d at 323–24.

To make a malicious prosecution claim under Section 1983, a plaintiff must show

“that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process

unsupported by probable cause, and (3) criminal proceedings terminated in

plaintiff’s favor.” at 324 (internal quotation marks omitted).

There is no dispute that Ms. Jafary was arrested pursuant to the warrant

issued in response to Defendant officers’ criminal complaint and that the case

against her was ultimately dismissed. What is disputed is whether probable cause

supported the Defendant officers’ criminal complaint and the resulting warrant

under which Ms. Jafary was arrested.

Probable cause is determined by a “totality-of-the-circumstances approach.”

, 931 F.3d at 318. The court applies an objective test to determine whether a

reasonably prudent officer, with the same information available to the officer on the

scene at the time, would have thought that probable cause existed for the arrest.

2 I recognize that “immunity is a threshold issue which the court addresses before considering any of

the defendants’ proffered substantive bases for summary judgment.” , 533 U.S. 194,

200 (2001). However, because I do not grant the Defendant officers qualified immunity, and because

the probable cause analysis is part and parcel to the merits of the claims, I address the substantive

bases first for clarity.

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“The inquiry turns on two factors: the suspect’s conduct as known to the officer, and

the contours of the offense thought to be committed by that conduct.”

Here, Defendant officers contend that they had probable cause to arrest Ms.

Jafary because she obstructed their investigation in violation of W. Va. Code § 61-5-

17(a). The statute states that a person is guilty of obstruction when she “by threats,

menaces, acts or otherwise hinders or attempts to hinder or

obstruct a law enforcement officer . . . acting in his or her official capacity.” W. Va.

Code § 61-5-17(a) (emphasis added). Relying on several West Virginia decisions, the

Fourth Circuit has explained that a violation of section 61-5-17(a) requires either

“‘forcible or illegal conduct that interferes with a police officer’s discharge of official

duties.’” , 931 F.3d at 319 (quoting , 735 S.E.2d 570, 573 (W. Va.

2012)). Lawful conduct that effects an obstruction, including questioning or

challenging police officers, is not sufficient to establish the statutory offense. .;

, 663 S.E.2d 606, 611 (W. Va. 2008) (“[L]awful speech will not

support an obstruction charge.”).

Defendant officers do not allege that Ms. Jafary ever used force against them.

[ECF No. 114, at 17] (“[Defendant officers’] criminal complaint [] does not contain

any allegation of forcible interference . . . .”). Thus, for the officers to reasonably

believe they had probable cause to file a criminal complaint against Ms. Jafary for

obstruction, they had to have believed that she engaged in illegal conduct. In his

narrative to the magistrate judge, Defendant Ward stated that Ms. Jafary yelled at,

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harassed, and defied Defendant officers, causing an obstruction under W. Va. Code

§ 61-5-17(a). [ECF No. 118-1, at 202]. Ms. Jafary denies ever engaging in such

conduct and alleges that these are lies made up by Defendant officers. One witness

from the Rana residence, repeatedly cited by Defendants, states that Ms. Jafary

“[w]as very irate, yelling, cussing, asking for badge numbers.” [ECF No. 113-6, at

3:19–20].

Clearly, there are many disputes of fact regarding the parties’ respective

conduct on the night of February 24, 2020. I find that there are no disputes

of fact here, however, because it is undisputed that Ms. Jafary never threatened the

officers, shortly complied with their commands and, in any case, never escalated the

interaction beyond a mere verbal disagreement. While Defendants argue that Ms.

Jafary used “opprobrious and harassing” language and conduct against the police,

they argue solely in generalities and do not even one time in their briefing reference

specific language Ms. Jafary used against the Defendant officers. Meanwhile, in

their depositions, multiple witnesses, ,

agree that Ms. Jafary never cursed at, threatened, or forcibly prevented Defendant

officers from completing their duties. Defendant Ward agreed that Ms. Jafary was

not “combative” or “menacing” and did not “use profanity,” “verbal[ly] abuse[]”

anyone, “touch” anyone, or threaten anyone. [ECF No. 118-1, at 84–87]. Defendant

England likewise testified that Ms. Jafary did not “threaten anyone,” prevent

anyone from moving, be “combative,” “insult anyone,” be “menacing,” “verbally

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abuse or harass anybody,” or “cuss.” [ECF No. 118-6, at 16–18, 22]; [ECF

Nos. 118-2, at 122; 118-3, at 50; 118-4, at 22]. In sworn testimony, Defendant

officers themselves agree that Ms. Jafary never engaged in illegal or forcible

conduct.

Here, the undisputed, substantiated facts show that Ms. Jafary was arrested

for briefly questioning Defendant officers as they discharged their duties—the

record does not reflect any other actionable conduct from Ms. Jafary. Defendant

officers are thus not entitled to judgment as a matter of law. Citizens have a First

Amendment right to question police action—this speech is protected regardless of

its alleged volume. , 258 F. App’x 568, 570 (4th Cir. 2007)

(“Arresting a person solely based on speech that questions or opposes police action

violates the First Amendment.”) (citing , 482 U.S. 451, 462–

63 (1987)).

Defendant officers further argue that because a magistrate judge made an

independent finding of probable cause and issued an arrest warrant for Ms. Jafary

based on their criminal complaint, her arrest for obstruction was reasonable.

However, a magistrate judge’s independent finding of probable cause “is but a factor

in our consideration of the overall reasonableness of the officer’s actions.” , 931

F.3d at 324. Defendant officers are “not absolved from liability when the

magistrate’s probable-cause finding” is predicated solely on false statements,

misleading information, “or where probable cause is plainly lacking.” . To the

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extent that Defendant officers alleged in their narrative to the arrest warrant

application that Ms. Jafary forcibly or illegally obstructed their investigation, those

statements were unequivocally walked back by Defendant officers in their

depositions and briefing. [ECF Nos. 114, at 17; 118, at 7–8]. Although Defendant

officers proceeded correctly in seeking a warrant for Ms. Jafary’s arrest, they should

have known that a reasonable officer in their positions would not believe that

probable cause existed to arrest Ms. Jafary for obstruction. Because the record

reflects that Ms. Jafary’s conduct was plainly not a violation of the law, and the

magistrate judge’s finding of probable cause was otherwise predicated solely on

false or misleading statements made by Defendant officers in their narrative, the

Defendant officers are not insulated by the magistrate judge’s independent finding

of probable cause.

Defendant officers are thus not entitled to summary judgment. It is

completely understandable that a police officer being verbally abused by a citizen

will be disturbed by that conduct, and I do not sympathize with citizens who

verbally abuse police officers. But absent threats, fighting words, or speech that is

otherwise unprotected, “[i]n the face of verbal challenges to police action, officers . . .

must respond with restraint.” , 482 U.S. 451, 471 (1987).

Defendant officers’ Motion as to the merits of Count II is DENIED.

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b. Qualified Immunity

As explained above, the applicability of qualified immunity is a two-part

inquiry: (1) whether the facts, viewed in the light most favorable to the plaintiff,

show there was a constitutional violation; and (2) whether the right violated was

clearly established at the time of the violation. , 781 F.3d 95, 100 (4th

Cir. 2015). Defendant officers argue that their arrest of Ms. Jafary was supported

by probable cause, and thus they are entitled to qualified immunity on Ms. Jafary’s

section 1983 claim for malicious prosecution in violation of the Fourth Amendment.

[ECF No. 114, at 17]. They further assert that the magistrate judge’s independent

determination of probable cause insulates their actions. However, in considering

whether to grant qualified immunity “where a law enforcement officer acts

pursuant to a warrant, the critical question is whether the officer could have

reasonably thought there was probable cause to seek the warrant.”

, 214 F.3d 535, 539 (4th Cir. 2000).

I have already determined that Defendant officers did not have probable

cause to seek a warrant for Ms. Jafary’s arrest for the crime of obstruction because

no reasonable officer should have believed that probable cause to seek the warrant

existed based on the circumstances presented. Defendant officers violated Ms.

Jafary’s constitutional right to be free from an arrest unsupported by probable

cause because she never engaged in illegal or forcible conduct to effect an

obstruction under W. Va. Code § 61-5-17(a). As to the second prong of the qualified

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immunity inquiry, the Fourth Circuit has held, “[i]f a person is arrested when no

reasonable officer could believe . . . that probable cause exists to arrest that person,

a violation of a clearly established Fourth Amendment right to be arrested only

upon probable cause ensues.” , 249 F.3d 279, 290 (4th Cir. 2001)

(citation omitted). As such, the state of the law gave Defendant officers fair warning

that than arrest of Ms. Jafary based on her speech would violate her First and

Fourth Amendment rights. Therefore, Defendant officers are not entitled to

qualified immunity on Count II.

2. Section 1983 First Amendment Retaliation (Count III)

Like Count II, Defendant officers move for summary judgment on Ms.

Jafary’s retaliation claim on both the merits and the basis of qualified immunity.

First, Defendant officers argue they are entitled to summary judgment on the

merits of the claim because Ms. Jafary’s speech was unprotected by the First

Amendment. Next, they argue they are entitled to summary judgment on the issue

of qualified immunity.3

a. On the Merits

The First Amendment prohibits government officials from retaliating against

individuals for engaging in protected speech. , 138

S. Ct. 1945, 1949 (U.S. 2018). To prove a First Amendment retaliation claim under

section 1983, a plaintiff must show: (1) that their speech was protected; (2) that the

defendants’ alleged retaliatory action adversely affected the plaintiff’s

3 note 2.

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constitutionally protected speech; and (3) that a causal relationship existed between

plaintiff’s speech and the defendants’ retaliatory action.

, 202 F.3d 676, 686 (4th Cir. 2000).

As to the first element, whether Ms. Jafary’s speech was protected, “the First

Amendment protects a significant amount of verbal criticism and challenge directed

at police officers.” , 482 U.S. 451, 461 (1987). This is because

“[t]he freedom of individuals verbally to oppose or challenge police action without

risking arrest is one of the principal characteristics by which we distinguish a free

nation from a police state.” . at 463. Individuals have a “First Amendment right to

question or challenge the authority of a police officer, provided that fighting words

or other opprobrious language is not used.” , 931 F.3d at 319;

, 831 F.3d 176, 188 (4th Cir. 2016) (“Peaceful verbal criticism of an officer

. . . cannot be targeted under a general obstruction of justice statute . . . without

running afoul of the First Amendment.”) (cleaned up).

Defendant officers argue that “the opprobrious and harassing conduct of

Plaintiff was not protected speech.” [ECF No. 114, at 19]. However, even

“opprobrious” speech is only unprotected when there is a “likelihood that the person

addressed would make an immediate violent response.” ,

997 F.3d 203, 207–08 (4th Cir. 2021) (quoting , 405 U.S. 518, 528

(1972)). As explained above, to the extent there is a factual dispute about the

language used by Ms. Jafary that prompted Defendant officers’ subsequent criminal

15

complaint, nothing in the record reflects that Ms. Jafary used any sort of threats,

fighting words, or speech that is otherwise unprotected by the First Amendment.

Defendants do not directly cite to harassing or opprobrious language used by Ms.

Jafary. At most, when asked to leave by officers, Ms. Jafary briefly refused and

continued her questioning of their actions. Although Defendant officers argue that

Ms. Jafary’s dispute with them distracted them from discharging their official

duties, “[t]he Constitution does not allow [‘speech that in any manner interrupts’]

an officer to be made a crime.” , 482 U.S. 451, 462 (1987)

(internal citation omitted). Therefore, any dispute of fact is immaterial, and I find

that Ms. Jafary’s speech was protected.

As to the second element, a plaintiff suffers adverse effects if the defendants’

allegedly retaliatory conduct would likely deter a person of ordinary firmness from

the exercise of First Amendment rights.

., 411 F.3d 474, 500 (4th Cir. 2005). “Determining whether a plaintiff’s

First Amendment rights were adversely affected by retaliatory conduct is a fact

intensive inquiry. . . .” , 410 F. Supp. 2d 483, 490 (S.D. W.

Va.), by 471 F.3d 523 (4th Cir. 2006) (quoting , 202 F.3d at 686). Here,

Defendant officers’ alleged retaliation to Ms. Jafary’s speech consisted of an arrest,

a night in jail, and an abbreviated criminal prosecution. [ECF No. 118, at 20]. I find

this punishment likely to deter an ordinary person from exercising their right to

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free speech and that Ms. Jafary has shown that her First Amendment rights were

adversely affected by Defendant officers’ retaliatory conduct.

Because Ms. Jafary has made a sufficient showing that Defendant officers

violated her right to be free from retaliation in response to protected speech,

Defendants officers’ Motion for Summary Judgment as to Count III is DENIED.

b. Qualified Immunity

Defendant officers assert that they are entitled to qualified immunity on Ms.

Jafary’s section 1983 claim for First Amendment retaliation. [ECF No. 114, at 15].

As discussed above, Ms. Jafary has made a sufficient showing that her First

Amendment right to be free from retaliation for protected speech was violated by

Defendant officers, satisfying the first prong of the qualified immunity inquiry. As

to whether the constitutional right violated was clearly established at the time of

the violation, in the Fourth Circuit, “[i]t is well established that a public official may

not misuse his power to retaliate against an individual for the exercise of a valid

constitutional right.” , 706 F.3d 379, 391 (4th Cir. 2013) (internal

citations omitted). Moreover, “[a]rresting a person solely based on speech that

questions or opposes police action violates the First Amendment.” ,

258 F. App’x 568, 570 (4th Cir. 2007) (citing , 482 U.S. 451,

462–63 (1987)). Reasonable officers in the Defendant officers’ positions would have

known that arresting Ms. Jafary for her speech was unconstitutional because the

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precedent was clearly established at the time of the violation. Defendant officers are

thus not entitled to qualified immunity on Count III.

3. Common Law Malicious Prosecution (Count V)

“Under West Virginia law, a plaintiff bringing a malicious prosecution claim

must show ‘(1) that the prosecution was set on foot and conducted to its

termination, resulting in plaintiff’s discharge; (2) that it was caused or procured by

defendant[s]; (3) that it was without probable cause; and (4) that it was malicious.’”

, 931 F.3d at 325 (quoting , 825 S.E.2d 363,

368 (W. Va. 2019)). “Where a want of probable cause for the prosecution is shown by

a preponderance of the evidence, malice may be inferred.” (internal citations

omitted). Moreover, as discussed previously in this case, causation or procurement

of prosecution may be found even where the decision to prosecute is left to the

discretion of another person when defendants provide information which they know

to be false to that person in order to cause the criminal prosecution. [ECF No. 77, at

19 (citing , 721 S.E.2d 541, 548 (W. Va. 2011))].

I have already explained that Ms. Jafary’s section 1983 malicious prosecution

claim under the Fourth Amendment incorporates elements of the analogous

common law tort of malicious prosecution and that she has made a showing

sufficient to establish her claim for her arrest without probable cause. ,

section III.A.1.a. As to the remaining element of causation or procurement,

Defendant officers argue that because the county prosecutor controlled the

prosecution, there was no procurement on their part. [ECF No. 114, at 140].

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Defendant England further argues that because the narrative for the criminal

complaint was Defendant Ward’s, Defendant England did not procure the

prosecution. However, Defendant Ward stated in his deposition that both he and

Defendant England “wrote the narrative and criminal complaint[]” against Ms.

Jafary to the magistrate judge. [ECF No. 118-1, at 116–17]. This level of

involvement seems sufficient on its own to constitute procurement.

, 139 F. Supp. 3d 760, 782 (S.D. W. Va. 2015). Moreover, the narrative stated

that Ms. Jafary yelled at, harassed, and impeded the movements of Defendant

officers [ECF No. 118-1, at 202], which Ms. Jafary and several other fact witnesses

allege are lies. [ECF Nos. 118-1, at 87; 118-2, at 122; 118-3, at 50; 118-4, at 22; 118-

6, at 16–18, 22]. Because the truth of these allegations necessarily informed the

basis for the magistrate judge’s finding of probable cause to issue the warrant to

arrest Ms. Jafary, I find that Ms. Jafary has met her burden as to this claim,

overcoming Defendant officers’ Motion for Summary Judgment. The Motion as to

Count V is DENIED.

4. Intentional Infliction of Emotional Distress (Count VI)

In Defendants’ memorandum of law in support of their Motion for Summary

Judgment, they argue only that “Plaintiff has failed to elicit sufficient evidence

demonstrating how the alleged conduct of Defendants Ward and England was so

outrageous as to exceed all bounds of decency.” [ECF No. 114, at 15]. In West

Virginia, “the role of the trial court is to first determine whether the defendant’s

conduct may reasonably be regarded as so extreme and outrageous as to constitute

19

the intentional or reckless infliction of emotional distress.”

, 672 S.E.2d 395, 404 (W. Va. 2008). “Whether conduct may

reasonably be considered outrageous is a legal question, and whether conduct is in

fact outrageous is a question for jury determination.”

I find that Ms. Jafary has made a sufficient showing through record evidence

that Defendant officers’ conduct may reasonably be regarded as extreme and

outrageous. Viewing the facts and evidence in the light most favorable to Ms.

Jafary, in the face of her lawful questioning of Defendant officers’ actions, she was

arrested without probable cause pursuant to false statements Defendant officers

made charging her with misdemeanor obstruction. , 184 F. Supp. 3d at

328 (finding that an officer’s conduct which included filing criminal charges based

on untrue characterizations of an incident could reasonably be considered

outrageous). Emotional distress is a natural result of a person spending an

unwarranted night in jail and facing a malicious prosecution of unjustified criminal

charges. Summary judgment on this claim is not appropriate, and Defendants’

Motion as to Count VI is DENIED.

B. Claims Against City of Beckley

As further discussed herein, Defendants’ Motion for Summary Judgment as

to Plaintiff’s claims against Defendant City of Beckley—a section 1983 claim

for failure to train (Count IV), common law negligent training (Count VII), and

common law negligent supervision (Count VIII)—is GRANTED.

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1. Section 1983 Claim for Failure to Train (Count IV)

For section 1983 liability to extend to a local government, the government’s

policy or custom must be the “moving force” that resulted in the constitutional

violation. , 436 U.S. 658, 694 (1978). “[I]nadequate

training can justifiably be said to represent city policy” as the basis for section 1983

liability where “the failure to train amounts to deliberate indifference to the rights

of the persons with whom the police come into contact.” ,

489 U.S. 378, 388 (1989). This standard requires a plaintiff to show that “the need

for more or different [police] training is so obvious, and the inadequacy so likely to

result in the violation of constitutional rights, that the policymakers . . . can

reasonably be said to have been deliberately indifferent to the need.”

, 882 F.2d 870, 874–75 (4th Cir. 1989).

Ms. Jafary alleges that Defendant City of Beckley was deliberately

indifferent to possible infringements on the rights of its citizens because of its

failure to sufficiently train its officers on making probable cause determinations.

[ECF No. 118, at 23]. In support of her claim, Ms. Jafary alleges that the only

relevant probable cause training that police officers in the City of Beckley receive is

during their 16-week training at the West Virginia State Police Academy. at 21.

However, Beckley Police Department has its officers complete an additional 12-

week field training program, and Ms. Jafary herself noted that the Beckley Police

Department Field Training Officers Manual lists probable cause as a topic covered

during officer training. ; [ECF Nos. 118-8, at 16; 118-14, at 16]. Defendant

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England stated that the Police Academy designated two days to training officers in

probable cause. [ECF No. 118-6, at 13]. Defendant Ward stated that officers are

trained in proper procedure for completing applications for arrest warrants during

the Beckley Police Department’s supervised field training program. [ECF No. 118-1,

at 164–65]. Importantly, the Beckley Police Department, in its currently effective

policies and procedures, explains that officers shall only conduct arrests when based

upon probable cause, defines probable cause, and explains circumstances justifying

an officer’s finding of probable cause. [ECF No. 118-13, 1–2].

I find that nothing in the record indicates that the City of Beckley has a

policy of failing to train its police officers such that the City has been deliberately

indifferent to likely potential violations of its citizens’ constitutional rights. Even

viewing the facts in the light most favorable to Ms. Jafary, I cannot conclude that a

purported policy or custom of indifference by the City caused her injuries. Because

Ms. Jafary has failed to meet her burden of establishing an essential element of her

section 1983 claim for failure to train, Defendant City of Beckley’s Motion

for Summary Judgment as to Count IV is GRANTED.

2. Common Law Negligent Training and Supervision (Counts VII and VIII)

Under West Virginia law, claims for negligent training or supervision “must

rest upon a showing that [the city] failed to properly supervise [its police officers]

and, as a result, [its police officers] proximately caused injury to the plaintiff[].”

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, 184 F. Supp. 3d 319, 326 (S.D. W. Va. 2016) (quoting

, 538 S.E.2d 719, 725 (W. Va 2000)).

As to Ms. Jafary’s negligent supervision claim, I find that she has failed to

make a sufficient showing that any negligent supervision on the part of the City of

Beckley proximately caused her injuries. While the Defendant officers admitted in

their depositions that Beckley Police Department was understaffed at the time of

the incident, they stated that even if there were additional supervisors on duty the

night of the incident, they felt that they had the situation handled and would not

have called for additional support. [ECF No. 118-1, at 83–84]. Moreover, record

evidence shows that the Department’s supervisors handled Ms. Jafary’s complaint

against its officers and laid out steps to avoid similar situations in the future. at

216–17. Defendant officers have no complaints like Ms. Jafary’s listed in either of

their employee files. [ECF No. 114, at 11]. Defendant City of Beckley additionally

argues that Ms. Jafary has failed to identify any evidence that it was negligent in

training its officers in probable cause determinations. For the reasons stated here,

in addition to those expressed above in section 3.B.1, I agree. Defendant City of

Beckley’s Motion for Summary Judgment as to Counts VII and VIII is GRANTED.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment [ECF

No. 113] is GRANTED IN PART and DENIED IN PART. As to Plaintiff’s claims

against Defendant Officers Justin Ward and Zane England—section 1983 malicious

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prosecution (Count ID, First Amendment retaliation (Count IID), common law

malicious prosecution (Count V), and intentional of infliction of emotional distress

(Count VD—the motion is DENIED. As to Plaintiffs claims against Defendant City

of Beckley— a section 1983 Monel/ claim for failure to train (Count IV), common law

negligent training (Count VID, and common law negligent supervision (Count

VIID—the motion is GRANTED. The City of Beckley is DISMISSED as a Defendant

from this action. The court DIRECTS the Clerk to send a copy of this Order to

counsel of record and any unrepresented party.

ENTER: December 28, 2021

G

ee STATES DISTRICT JUDGE

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