Sammons v. Sowards

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

DAVID EUGENE SAMMONS,

Plaintiff,

v. CIVIL ACTION NO. 3:21-0081

DEPUTY HARRY SOWARDS, individually,

HOWARD MEDDINGS, individually, and

WAYNE COUNTY BOARD OF EDUCATION,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court are Defendant Deputy Harry Sowards’ Motion for Summary

Judgment1 (ECF No. 77), Defendant Howard Meddings’ Motion for Summary Judgment (ECF

No. 75) and the Wayne County Board of Education’s (“WCBOE”) Motion for Summary

Judgment2 (ECF No. 74). For the reasons herein the Court GRANTS the Motions.

I. FACTUAL BACKGROUND

Plaintiff David Eugene Sammons was an employee of the WCBOE for forty years, until

he retired in 2019. Pl.’s First Depo. at 9-12, ECF No. 74-11.3 As part of his final position, Director

of Transportation, he supervised other employees working at the bus parts garage. Id. at 13-19.

1 The Court notes that, at the time of the original filing of the Motion, the Wayne County Commission and

Wayne County Sherriff Richard Thompson were also named as defendants and represented by the same counsel. They

have since been dismissed by stipulation. ECF No. 81. As such, the Court will only address Deputy Sowards’

arguments and refer to his briefing in the singular.

2 Similarly, Todd Alexander, the superintendent of the WCBOE, was also a named defendant represented by

the same counsel. He has since been dismissed. ECF No. 86. As such, the Court will only address the WCBOE’s

arguments and refer to its briefing in the singular.

3 Plaintiff has been deposed twice, first in the Reeves case and second in his own case. Accordingly, the

Court will refer to the depositions as the First Deposition (ECF No. 74-11) and the Second Deposition (ECF No. 77-

2).

These employees included Howard Meddings, the inventory supervisor, and James Lee Reeves,

the chief mechanic, among others. Id. During his tenure as Director, Plaintiff had at least one verbal

confrontation with Meddings which he reported to Todd Alexander, the WCBOE superintendent.

See Pl.’s Emails, ECF No. 79-5; Meddings Depo. at 330-340, ECF No. 74-4. Meddings also had

issues with Reeves and repeatedly told others, allegedly including Plaintiff, that Reeves was

involved in a tire scam. Meddings Depo. at 74-92; Pl.’s First Depo. at 85-88 (denying the same).

About a month after Plaintiff retired, on October 16, 2019, an alleged break-in occurred at

the WCBOE parts room, which Meddings reported to Alexander. Pl.’s First Depo. at 97; Alexander

Depo. at 46, ECF No. 74-6. Alexander then contacted Deputy Sowards to investigate the incident.

Alexander Depo. at 225. As a result, all named defendants participated in the investigation of the

alleged break-in over the next few months. During the investigation, Deputy Sowards began to

suspect Reeves and his wife, Katrina Reeves, of having illegally obtained WCBOE property.

Sowards Depo. at 91-99, ECF No. 74-7. Deputy Sowards visited the Reeveses’ property on the

same day as the break-in and photographed items found there, after Mr. Reeves told him that there

was WCBOE property at his home, which he stated was obtained legally. J. Reeves Depo. at 181-

182, ECF No.74-5; Sowards Depo. at 222-223. Deputy Sowards continued his investigation, the

propriety of which has been disputed at length and is the subject of another lawsuit before this

Court.

During the investigation, on October 24, 2019, Deputy Sowards, Todd Alexander, and

Plaintiff met for a discussion. Deputy Sowards showed Plaintiff some of the photographs taken at

the Reeveses’ home on October 16, 2019. Pl.’s First Depo. at 207-208. The parties disagree about

much of the conversation. Plaintiff testified that when asked if the items in the photographs at the

Reeveses’ property “could have been on the buses” sent for auction and thus legally obtained,

Plaintiff informed Deputy Sowards that typically only obsolete items were left on the buses but

noted that it was possible for everything he was shown to have been on the buses. Id. at 121-124,

209-213; see also Pl.’s Second Depo. at 126-27, ECF No. 77-2. Sowards asked Plaintiff if

Meddings had reported Mr. Reeves’ suspected thefts. Criminal Complaint at 7, ECF No. 77-1;

Pl.’s Second Depo. at 231. In response, Plaintiff testified that he told Deputy Sowards that he did

not think “anybody was ever stealing… and [he] never suspected anybody stealing.” Pl.’s First

Depo. at 123. Plaintiff took notes after the meeting, which indicated that he had told Deputy

Sowards that all of the items shown to him could have been obtained from buses sold at auction.

See Pl.’s Notes, ECF No. 79-11. Deputy Sowards continued his investigation, which included

executing a search warrant at the Reeveses’ property. Sowards Depo. at 122; 266-68; J. Reeves

Depo. at 202-08.

On February 6, 2020, Deputy Sowards pursued a Criminal Complaint against Mr. Reeves

and his wife in the Magistrate Court of Wayne County, West Virginia. See J. Reeves Criminal

Complaint, ECF No. 74-8; K. Reeves Criminal Complaint, ECF No. 85-8. In his affidavits attached

to both, he noted his recollection of the conversation he had with Plaintiff as part of his

investigation, writing:

On 10/24/2019 Mr. Alexander and I spoke with David Eugene Sammons, retired

Transportation Director. Mr. Sammons advised that when buses were approved for auction,

he took pictures of the buses and uploaded them to auction websites. Mr. Sammons stated

that sometimes he would place a few obsolete, hard to get rid of, parts on the buses when

they were auctioned off. He stated that aerosols, Brakleen, and things of value would have

never been left on the buses to be auctioned off. We showed him the photograph and he

advised that some of the items in that picture, as previously stated, would never been on a

bus for auction. He also advised that buses would not have been used for chemicals to be

stored on. When I asked Mr. Sammons if he was ever notified of Mr. Reeves was stealing

he told me no. I then asked him if he removed “Lee Reeves” from the lower lot and brought

him to the upper lot was because of suspicion of stealing he told me no. He advised that he

never suspected any of his employees to be stealing and that he was never notified of

anything of such nature.

K. Reeves Criminal Complaint at 7-8; J. Reeves Criminal Complaint at 7-8. The Reeveses

were eventually arrested pursuant to warrants and charged with crimes. See J. Reeves Warrant,

ECF No. 74-13; K. Reeves Warrant, ECF No. 74-14.

On the same day, Deputy Sowards filed a Criminal Complaint against Mr. Sammons for

Obstruction of Justice in violation of W. Va. Code § 61-5-17. See Criminal Complaint, ECF No.

77-1. In it, he included verbatim the same paragraph about the October 24th meeting as in the

complaints against the Reeveses. Id. at 6-7. However, he added another paragraph, laying out the

basis for charging Plaintiff with obstruction; he had received statements from other employees that

they had reported thefts to Plaintiff and suspected Reeves. Id. at 9.

Plaintiff learned of the criminal complaint from his son who had seen it in the Leviza Laser

Newspaper. Pl.’s Second Depo. at 166. He phoned the Sherriff’s Office; and was told to come in

and see the magistrate. Id. at 166-167. He appeared before a magistrate judge on February 7, 2020

and was informed of the charges against him. Id. at 168-169. On June 2, 2020, the State of West

Virginia moved to dismiss the matter because the “Defendant’s statements do not establish the

statutory requirements for violation of [§] 61-5-17,” which the magistrate granted. See Sammons

Dismissal, ECF No. 74-16.

Plaintiff filed this suit on February 1, 2021, alleging violation of his civil rights and various

state law claims.

II. LEGAL STANDARD

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(a). In considering a motion for summary judgment, the Court will not “weigh the

evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in

the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587-88 (1986).

Although the Court will view all underlying 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 his [or her] favor[.]” Anderson, 477 U.S.

at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on

an essential element of his or her case and does not make, after adequate time for discovery, a

showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of

evidence” in support of his or her position. Anderson, 477 U.S. at 252.

III. DISCUSSION

A. Federal Claims

Plaintiff has alleged a § 1983 claim against Deputy Sowards and a conspiracy to violate

his civil rights between Deputy Sowards and Meddings. “One alleging a violation of section 1983

must prove that the charged state actor (1) deprived plaintiff of a right secured by the Constitution

and laws of the United States, and (2) that the deprivation was performed under color of the

referenced sources of state law found in the statute.” Phillips v. Pitt Cnty. Mem’l Hosp., 572 F.3d

176, 180 (4th Cir. 2009). A conspiracy claim under Section 1983 requires that plaintiffs meet the

“weighty burden” of showing that defendants “acted jointly in concert and that some overt act was

done in furtherance of the conspiracy which resulted in [the] deprivation of a constitutional right.”

Barrett v. Pae Gov’t Servs., Inc., 975 F.3d 416, 434 (4th Cir. 2020) (quoting Hinkle v. City of

Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996)).

1. Qualified Immunity Standard

The doctrine of qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In determining whether qualified

immunity applies, the court must conduct a two-step analysis. Id. at 232. First, the court must

determine whether the record supports a violation of a constitutional right. Id. Second, the court

must determine whether the right was “clearly established at the time of defendant’s alleged

misconduct.” Id. (internal quotation marks and citation omitted). To be considered clearly

established, “[t]he contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 639

(1987). If both factors result in the affirmative, qualified immunity does not apply. Pearson, 555

U.S. at 232. The analysis does not need to be applied in sequence depending on the circumstances

of each individual case. Id. at 236.

a. Violation of a Constitutional Right - Fourth Amendment Malicious Prosecution

The Fourth Amendment provides that a person’s right “to be secure in their persons ...

against unreasonable searches and seizures ... shall not be violated ... but upon probable cause.”

U.S. Const. amend. IV. A § 1983 malicious prosecution claim “is properly understood as a Fourth

Amendment claim for unreasonable seizure which incorporates certain elements of the common

law tort.” Evans v. Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (quoting Lambert v. Williams, 223

F.3d 257, 261 (4th Cir. 2000)); see also Manuel v. City of Joliet, 137 S. Ct. 911, 919 (2017) (“If

the complaint is that a form of legal process resulted in pretrial detention unsupported by probable

cause, then the right allegedly infringed lies in the Fourth Amendment.”). To prove such a claim,

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.” Hupp v. Cook, 931 F.3d 307, 324 (4th Cir. 2019) (quoting Evans, 703 F.3d at 647).

Deputy Sowards does not contest the first or third elements of the malicious prosecution

claim; it is undisputed that Deputy Sowards sought a criminal complaint against Plaintiff (Criminal

Complaint, ECF No. 77-1) and that the state prosecutor later moved to dismiss these criminal

charges, which was granted by a state magistrate. (Motion to Dismiss, ECF No. 74-6). Def.’s Reply

at 3, ECF No. 88. The only disputed element is whether Plaintiff was seized without probable

cause and has therefore proven a constitutional violation. Plaintiff turned himself in to police

pursuant to a warrant issued by a neutral magistrate who made a finding of probable cause. Pl.’s

Second Depo. at 167-69. Deputy Sowards argues that there is no evidence that he misrepresented

facts and fraudulently obtained the warrant; thus, the magistrate’s finding of probable cause was

valid, and no constitutional deprivation occurred. Def.’s Mem. at 7, ECF No. 78. Plaintiff argues

that Deputy Sowards’ knowing or reckless misrepresentation of facts in the warrant application

invalidates any finding of probable cause. Pl.’s Resp. at 10-14, ECF No. 85.

“A party challenging the veracity of a warrant application must show that the officer(s)

deliberately or with a reckless disregard for the truth made material false statements in the warrant

application or omitted from that application material facts with the intent to make, or with reckless

disregard of whether they thereby made, the application misleading.” Humbert v. Mayor & City

Council of Baltimore City, 866 F.3d 546, 556 (4th Cir. 2017), as amended (Aug. 22, 2017) (internal

citations and quotations omitted). “Reckless disregard can be established by evidence that an

officer acted with a high degree of awareness of [a statement’s] probable falsity, that is, when

viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his

statements or had obvious reasons to doubt the accuracy of the information he reported.” Miller v.

Prince George’s Cnty, MD, 475 F.3d 621, 627 (4th Cir. 2007). (alteration in original) (internal

citation and quotations omitted). “With respect to omissions, reckless disregard can be established

by evidence that a police officer failed to inform the judicial officer of facts he knew would negate

probable cause.” Id. (internal citations and quotations omitted). Negligence or innocent mistake

by a police officer will not provide a basis for a constitutional violation. See id. at 627-28. Plaintiff

bears the burden of proof. Id. at 627.

Here, the criminal complaint affidavit is a long recitation of an investigation primarily

pertaining to Mr. Reeves; it goes well past the October 24th meeting with Plaintiff. The first six

pages detail the investigation of the Reeveses. Regarding Plaintiff, Deputy Sowards writes the

following:

On 10/24/2019 Mr. Alexander and I spoke with David Eugene Sammons, retired

Transportation Director. Mr. Sammons advised that when buses were approved for auction,

he took pictures of the buses and uploaded them to auction websites. Mr. Sammons stated

that sometimes he would place a few obsolete, hard to get rid of, parts on the buses when

they were auctioned off. He stated that aerosols, Brakleen, and things of value would have

never been left on the buses to be auctioned off. We showed him the photograph and he

advised that some of the items in that picture, as previously stated, would never been on a

bus for auction. He also advised that buses would not have been used for chemicals to be

stored on. When I asked Mr. Sammons if he was ever notified of Mr. Reeves was stealing

he told me no. I then asked him if he removed “Lee Reeves” from the lower lot and brought

him to the upper lot was because of suspicion of stealing he told me no. He advised that he

never suspected any of his employees to be stealing and that he was never notified of

anything of such nature.

A few pages later, after Deputy Sowards recounted more of the Reeves investigation, he writes:

David Eugene Sammons is the retired Director of Transportation of Wayne County

Schools. Mr. Sammons met with Todd Alexander, Superintendent of Wayne County

Schools, and I on 10/24/2019. Mr. Sammons stated to me that he did not suspect James

Reeves of stealing. During the course of this investigation I spoke with Howard Meddings.

Mr. Meddings advised that he told David Sammons that he suspected James Reeves of

stealing from the bus garage. Mr. Meddings stated that Mr. Sammons told him that his dad

worked in a cookie company and you can’t stop someone from taking a cookie from every

now and then. Shortly after Mr. Sammons moved Mr. Reeves from tire and lube (lower

lot) to upper lot because he had suspicion of Mr. Reeves stealing and selling tires to S&S

tires. Richard Brumfield also stated that he heard Howard Meddings tell Mr. Sammons that

James Reeves was stealing from the bus garage and that he needed to put a stop to it. I am

charging David Eugene Sammons with one count of Obstructing an Officer.

Criminal Compl. at 6, 9.

The only statements that Plaintiff specifically disputes are whether he stated that the items

shown to him in the pictures could have been found on an auctioned bus and thus properly

obtained.4 Plaintiff, in his deposition, testified that he told Deputy Sowards that all of the items

could have been on the buses to be auctioned. See Compl. ¶¶ 36-38, Pl.’s Depo. at 126-12, ECF

No. 77-2. However, the statements about items being properly on the buses were primarily used

to support finding probable cause against Mr. and Mrs. Reeves; they appear verbatim in the

criminal complaints against them. See J. Reeves Criminal Complaint at 7-8; K. Reeves Criminal

Complaint at 7-8.

Instead, the final paragraph, which lays out the basis for the obstruction charge, contains

neither facts which Plaintiff has shown are false or made with reckless disregard nor omissions.

Plaintiff obviously agrees that he spoke with Deputy Sowards about the materials on the buses

because this event forms the basis of his malicious prosecution claim. Pl.’s Second Depo. at 121-

122. Plaintiff also agrees that he told Deputy Sowards that he did not suspect Mr. Reeves of

stealing. Pl.’s First Depo. at 123. Deputy Sowards also writes in the affidavit that Meddings and

Brumfield, a bus mechanic, told him that they had reported Mr. Reeves to Plaintiff and that Mr.

Reeves was moved because of suspicion of theft. Plaintiff contends that Meddings’ statements and

Brumfield’s statements were false, but he is unable to prove that Deputy Sowards knew they were

4 In his Response brief, Plaintiff primarily takes issue with the statements regarding what items were placed

on the buses and the use of those statements to pursue an investigation against the Reeveses. See Pl.’s Resp. at 3-5.

Further, these were the statements identified as at issue in his Complaint. See Compl. ¶¶ 36-38.

false but intentionally included them to support a finding of probable cause.5 Further, the record

evidence supports Deputy Sowards’ account of what Meddings and Brumfield told him.

For example, Brumfield stated that Meddings told him that Mr. Reeves was involved in a

tire scheme. Brumfield Depo. at 23, ECF No. 74-2. Brumfield also said he had personally reported

items stolen to Plaintiff. Id. at 72-73. He was interviewed by Deputy Sowards and provided a

written statement, though he did not recall its exact contents. Id. at 47. Meddings also testified that

he told Deputy Sowards he had reported Mr. Reeves’ behavior to Plaintiff. Meddings Depo. at

104, 252 ECF No. 74-4. He further testified about Plaintiff’s cookie statement. Id. at 46-48. Deputy

Sowards was also faced with other evidence to support a belief that Mr. Reeves had stolen and that

Plaintiff was informed of suspicions against Mr. Reeves. Another employee whom Deputy

Sowards interviewed stated that he had heard Meddings tell Plaintiff that Mr. Reeves was stealing,

and that Mr. Reeves may have been transferred because of that, supporting Deputy Sowards’

contention that Plaintiff moved Mr. Reeves for that reason. See Thompson Depo. at 13-17.

It was reasonable for Deputy Sowards to rely on the reports of other witnesses, even if they

turned out to be unreliable, in his decision to pursue a charge against Plaintiff. See Smith v. Reddy,

101 F.3d 351, 356 (4th Cir. 1990) (“[A] police officer conducting an investigation is not in a

position to make the type of credibility determination that occurs in the repose of a courtroom.”).

To the extent that Plaintiff contends Deputy Sowards had knowledge about certain facts in the

Reeves case, this knowledge is not necessarily relevant to what he knew about Plaintiff and his

decision to charge him. Here, Deputy Sowards received a statement from Plaintiff about Mr.

Reeves he believed was contradicted by other employees’ statements. Deputy Sowards was also

faced with other evidence to support a belief that Mr. Reeves had stolen, and that Plaintiff knew

5 Nor does he, at any point, cite any record evidence to prove that these statements were false. See e.g., Pl.’s

Resp.

Mr. Reeves was suspected of theft; other employees he had interviewed had told him as much and

by the time he interviewed Plaintiff, a significant amount of WCBOE property had been discovered

at the Reeveses’ property. See J. Reeves Depo. at 185-189, ECF No. 74-5; Sowards Depo. at 266-

267, ECF No.74-7.

Only the (undisputed) statement that Plaintiff did not suspect Mr. Reeves of stealing and

the statements from other employees that implicitly contradicted this belief formed the basis of the

charge. While it may be a weak basis for an obstruction charge, Plaintiff has done nothing to show

that the statements in the affidavit are knowingly false or that Deputy Sowards recklessly omitted

other evidence that supported a finding that Plaintiff was not guilty of obstruction. Nor can he

come close to making the “substantial preliminary showing” required. See United States. v.

Colkley, 899 F.2d 297, 300 (4th Cir. 1990).

Further, to the extent that Plaintiff contends Deputy Sowards “never asked Mr. Sammons

if he witnessed or saw Mr. Reeves stealing,” Pl.’s Resp. at 5, “Reasonable law enforcement officers

are not required to ‘exhaust every potentially exculpatory lead or resolve every doubt about a

suspect’s guilt before probable cause is established.’” Wadkins v. Arnold, 214 F.3d 535, 541 (4th

Cir. 2000) (quoting Torchinsky v. Siwinski, 942 F.2d 257, 264 (4th Cir. 1991)). Moreover, the

affidavit explicitly stated that other employees (namely Meddings and Brumfield) only suspected

Mr. Reeves of theft, not that they or Plaintiff witnessed thefts directly. Deputy Sowards’ statements

about Plaintiff were not “deliberately or recklessly made.”

Because Plaintiff cannot show a genuine issue of material fact on the issue of whether

Deputy Sowards misled or misinformed the magistrate, the magistrate’s finding of probable cause

cuts off his liability. See Evans, 703 F.3d at 648 (citing Snider v. Lee, 584 F.3d 193, 206 (4th

Cir.2009) (Stamp, J., concurring) (“A law enforcement officer who presents all relevant probable

cause evidence to a prosecutor ... is insulated from a malicious prosecution claim where such

intermediary makes an independent decision ... unless the officer [1] concealed or misrepresented

facts or [2] brought such undue pressure to bear on the intermediary that the intermediary's

independent judgment was overborne.”); Rhodes v. Smithers, 939 F. Supp. 1256, 1274 (S.D.W.

Va. 1995) (“[I]t is equally well established that where an officer presents all relevant probable

cause evidence to an intermediary, such as a prosecutor, a grand jury, or a magistrate, the

intermediary's independent decision to seek a warrant, issue a warrant, or return an indictment

breaks the causal chain and insulates the officer from a section 1983 claim based on lack of

probable cause for an arrest or prosecution.”) (internal citation omitted).

Finally, Plaintiff argues that the Reeves case is relevant and determinative of the issues in

this case. But Plaintiff has merely tried to indiscriminately adopt unspecified arguments and

evidence to use here, which the Court cannot do. Instead, we are dealing with two different cases

with material differences of fact. Accordingly, summary judgment is appropriate, and the Motion

on this count is GRANTED.

2. Civil Conspiracy Claim

To state a claim for civil conspiracy under Section 1983, plaintiffs have the “weighty

burden” of showing that defendants “acted jointly in concert and that some overt act was done in

furtherance of the conspiracy which resulted in [the] deprivation of a constitutional right.” Barrett,

975 F.3d at 434 (quoting Hinkle 81 F.3d at 421). Here, of course, the Court has found that no

Fourth Amendment right was violated in its analysis of the § 1983 claim.

Plaintiff’s response indicates that they have adequately alleged “very specific

Constitutional Rights including those contained within the First, Fourth, Fifth, and Sixth

Amendments.” Pl.’s Resp. at 10, ECF No. 85. But his Complaint only referenced deprivations

under the First, Fourth, and Fourteenth Amendment “rights to be secure in his person, free from

unreasonable detention, search, and seizure, and to bodily security and personal privacy.” Compl.

at ¶¶ 54, 76, ECF No. 1. No discernible First Amendment right has been implicated, nor did

Plaintiff ever advance either this theory or a Fourteenth Amendment violation theory. Further, “the

Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of the

legal process” and malicious prosecution, not the more general due process clause. See Manuel

137 S. Ct. at 917-21. Accordingly, the finding that no constitutional right was violated in Plaintiff’s

Fourth Amendment claim is fatal to the conspiracy claim for the same. The court will award

summary judgment to both Defendants on this count; the Motion is GRANTED.

a. Collateral Estoppel

As an additional matter, collateral estoppel is inapplicable to the issues here. In response

to Meddings’ Motion for Summary Judgment, Plaintiff repeatedly asserts that collateral estoppel

precludes the Court from finding Meddings is entitled to qualified immunity because the Court did

not do so in Reeves. Pl.’s Resp. at 11-14, ECF No. 84. As the Fourth Circuit has explained:

A party seeking to rely on the doctrine of collateral estoppel is obliged to establish five

elements: (1) that “the issue sought to be precluded is identical to one previously litigated”

(“element one”); (2) that the issue was actually determined in the prior proceeding

(“element two”); (3) that the issue’s determination was “a critical and necessary part of the

decision in the prior proceeding” (“element three”); (4) that the prior judgment is final and

valid (“element four”); and (5) that the party against whom collateral estoppel is asserted

“had a full and fair opportunity to litigate the issue in the previous forum” (“element five”).

Collins v. Pond Creek Mining Co., 468 F.3d 213, 217 (4th Cir. 2006) (quoting Sedlack v. Braswell

Servs. Grp., Inc., 134 F.3d 219, 224 (4th Cir.1998)).

Plaintiff has not even attempted to lay out how the issues he seeks to preclude satisfy these

five elements – nor can he. The Court first notes that the circumstances giving rise to Plaintiff’s

claims are not identical – in fact there are significant differences of legal consequence between the

issues here and in the Reeves case. However, Plaintiff also does not satisfy the fourth element here.

This Court denied Meddings’ claim of qualified immunity in an Order denying summary

judgment. See Mem. Op. and Order, Reeves v. Wayne County Board et al, No. 3:20-CV-00423,

(S.D.W. Va. June 6, 2020), ECF No. 295. “An order granting a motion for summary judgment is

final; an order denying such a motion is not.” Bullard v. Blue Hills Bank, 575 U.S. 496, 506 (2015).

The Court, in Reeves, did not grant summary judgment as to any count against Meddings.

Therefore, collateral estoppel is not applicable to the issue of qualified immunity.

B. State Claims

The Court will retain jurisdiction over the state law claims in this case despite dismissing

the federal law claims because it will be more convenient and fairer to the parties and the case does

not involve issues of novel or complex state law. See Shanaghan v. Cahill, 58 F.3d 106, 110 (4th

Cir. 1995) (explaining that district courts “enjoy wide latitude in determining whether or not to

retain jurisdiction over state claims when all federal claims have been extinguished.”)

1. Malicious Prosecution

Deputy Sowards claims he is immune from the malicious prosecution state law claim.

Def.’s Mem. at 8-9. 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; (3) that it was without

probable cause; and (4) that it was malicious.” Syl. pt. 1, Goodwin v. City of Shepherdstown, 825

S.E.2d 363, 368 (2019) (quoting Syl. pt. 1, Radochio v. Katzen, 114 S.E. 746 (W. Va.1922)). As

discussed in the federal claim, Plaintiff has been unable to show that the prosecution occurred

without probable cause and so cannot meet the elements of a state malicious prosecution claim.

Accordingly, summary judgment is appropriate, and the Court will GRANT the motion on this

count.

2. Defamation

i. Deputy Sowards

Deputy Sowards claims he is entitled to summary judgment on this claim because any

statements given fall within the “matter of public interest” defense to invasion of privacy claims.

Def.’s Memo at 9-10 (citing Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 84 (W. Va.

1983)).6 Plaintiff responds that “[i]n light of the recent Memorandum Opinion Orders in the

Reeves’ matter, Plaintiff acknowledges that the act charging Plaintiff as well [sic] the press release

in itself is not enough to establish the elements of defamation.” Pl.’s Resp. at 18.7 Given that

Plaintiff has apparently abandoned this claim and has not provided any record evidence to establish

the elements of a defamation claim, the Court will GRANT summary judgment as to Deputy

Sowards on this count. See Blankenship v. Necco, LLC, No. 2:16-cv-12082, 2018 WL 3581092, at

*9 (S.D.W. Va. July 25, 2018) aff’d, 780 F. App'x 32 (4th Cir. 2019) (“The failure to respond to

arguments raised in a motion ... can indicate that the non-moving party concedes the point or

abandons the claim.”)

ii. Meddings

Defendant Meddings asserts that he is entitled to the defense of qualified privilege because

he acted in good faith when he provided information to Deputy Sowards and he had an interest

and duty to provide the information, even if it was subsequently determined to be false. Def.’s

Mem. at 12, ECF No. 76. Plaintiff responds that there is ample record evidence to support that

6 The Court notes that the matters of legitimate public interest defense, discussed in Crump, is a defense to

invasion of privacy claims. See Crump, 320 S.E.2d at 84. As noted by the Crump Court itself, “[a]lthough there are

obviously a number of similarities between the right to privacy and the law of defamation, particularly when a “false

light” invasion of privacy is involved, there are also important differences which reflect the nature of the interests

protected by each.” Id. at 83. As such, this defense is inapplicable to a claim of defamation, and there has never been

an invasion of privacy claim.

7 For clarity’s sake, the defamation claims in Reeves survived where those plaintiffs were able to produce

testimony regarding at least one specific statement made by Deputy Sowards. No such statements have been identified

here.

Meddings did not act in good faith and points to Meddings’ specific claims that Plaintiff often

remarked he could not stop other employees from getting a “cookie” during his tenure. Pl.’s Resp.

at 14, ECF No. 84.

Qualified privilege exists when a person “publishes a statement in good faith about a

subject in which he has an interest or duty and limits the publication to those who have a legitimate

interest in the subject matter.” Syl. pt. 10, Zsigray v. Langman, 842 S.E.2d 716 (W. Va. 2020)

(quoting Syl. pt. 4, Dzinglski v. Weirton Steel Corp. 445 S.E.2d 219 (W. Va. 1994)). “[H]owever,

a bad motive will defeat a qualified privilege defense.” Id.

Meddings offers no record evidence in support of his assertion of good faith on this count

in his briefing, but in his deposition, he testified that he acted in good faith regarding all his

statements. See Meddings Depo. at 66-74, 99. In that same deposition, he acknowledged that he

had no specific proof of Mr. Reeves’ thefts. Id. at 66, 98-99. But here, Plaintiff has not produced

any evidence whatsoever to call into question Meddings assertion of good faith, beyond blanketly

stating that “more than ample evidence supports a reasonable inference that Meddings sought to

damage Plaintiff…” Pl.’s Resp. at 14. In the Reeves case, the Court found a triable issue on the

defamation claim where other employees testified to Meddings’ weekly statements about Mr.

Reeves’ theft, and the “total circumstances of [Medding’s] alleged animus and past conduct

towards the [Reeveses] could lead to a finding that precludes good faith.” See Mem. Op. and Order

at 8, Reeves v. Wayne County Board et al, No. 3:20-CV-00423, (S.D.W. Va. June 6, 2020), ECF

No. 295.

The same evidence does not exist here. Instead, Plaintiff has in fact admitted that, except

for a single incident, he and Meddings had no issues. Pl.’s Second Depo. at 174-176. Nor is there

evidence that Meddings made statements regarding Plaintiff to anyone but Deputy Sowards. There

is no other evidence to suggest that Mr. Meddings made the statement in bad faith, and he made it

in the context of a police investigation that this Court has concluded was lawful. Therefore, he is

protected by qualified privilege. See Belcher v. Wal-Mart Stores, Inc., 568 S.E.2d 19, 27 (W. Va.

2002) (finding that statements made by store employees to a police officer about plaintiff’s receipt

being fake were privileged where employees recognized a legitimate need to look into a suspicious

receipt in the context of an ongoing investigation). Therefore, the Motion must be GRANTED as

to Defendant Meddings on this count.

3. Intentional Infliction of Emotional Distress

To prevail on a claim of intentional infliction of emotional distress, a plaintiff must

establish:

(1) that the defendant’s conduct was atrocious, intolerable, and so extreme and

outrageous as to exceed the bounds of decency; (2) that the defendant acted with

the intent to inflict emotional distress, or acted recklessly when it was certain or

substantially certain emotional distress would result from his conduct; (3) that the

actions of the defendant caused the plaintiff to suffer emotional distress; and, (4)

that the emotional distress suffered by the plaintiff was so severe that no reasonable

person could be expected to endure it.

Syl. pt. 3, Travis v. Alcon Lab’ys, Inc., 504 S.E.2d 419 (W. Va. 1998). Whether conduct may

reasonably be considered outrageous is a legal question for the trial court to determine. See id.,

Syl. pt. 4.

i. Deputy Sowards

Defendant argues that the evidence demonstrates nothing more than a lawful investigation

of a crime resulting in Plaintiff’s arrest,8 and therefore cannot be outrageous as a matter of law.

Def.’s Mem. at 11-12. Plaintiff responds that Deputy Sowards abused his power and showed

disregard for Plaintiff’s constitutional rights by knowingly lacking probable cause and pursuing a

8 Again, Plaintiff was not arrested, but turned himself in pursuant to a warrant.

criminal charge, which is outrageous conduct. Pl.’s Resp. at 17-18. Of course, this Court has now

found that a constitutional violation did not occur. The proper investigation of a crime, even if

mistaken, is not outrageous conduct as a matter of law. See Hines v. Hills Dept. Stores, Inc., 454

S.E.2d 385, 390–92 (1994) (a finding for defendant on a malicious prosecution claim negates a

claim for outrageous conduct inasmuch as the showings necessary to support “a malicious

prosecution case are less severe than an action for outrageous conduct”). The Court will therefore

GRANT summary judgment on this count.

ii. Meddings

Defendant Meddings notes that there is no evidence that he acted outside of the scope of

his employment or in bad faith towards Plaintiff. Def.’s Mem. at 13-14. Plaintiff responds that the

record evidence on Meddings’ insubordination and on the conspiracy charge is sufficient to

establish a motive to harm Plaintiff. Pl.’s Resp. at 14-15. There is, of course, record evidence of a

dispute in which Meddings allegedly became angry with Plaintiff, called him an ass and then later

grabbed his crotch and said, “Is he [Plaintiff] afraid of us because we have balls?” See Pl.’s Second

Depo. at 45-58, 90, 357; Pl.’s Emails; Meddings Depo. at 154-155. However, this singular dispute

and the accompanying behavior, while rude, is insufficient to rise to the level of outrageous

conduct required as a matter of law. See Tanner v. Rite Aid of W. Virginia, Inc., 461 S.E.2d 149,

(155) (“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty

oppressions, or other trivialities.”) (quoting Restatement (Second) of Torts § 46(1) (1965)); see

also Napier v. Stratto, 513 S.E.2d 463, 466 (W. Va. 1998) (“Annoying or mean-spirited conduct

is not sufficient to support a claim.”) (internal citation omitted). Therefore, the Court GRANTS

the Motion as to Meddings on this count.

4. Negligent Hiring, Retention, and Supervision

The negligent hiring, retention, and supervision claims lie only against the WCBOE.

However, this Court has already found that there is no actionable conduct of a WCBOE employee

upon which Plaintiff could proceed in this case. Where there has been no proven tortious conduct,

Plaintiff cannot make out his claim for the specified causes of action in negligence against an

employer. See Radford v. Hammons, No. 2:14-24854, 2015 WL 738062, at *7 (S.D.W. Va. Feb.

20, 2015) (“If the employer later commits a tort, the employer may be directly liable.”); Rhodes v.

King, 2020 WL 4607323, at *5 (S.D.W. Va. Aug. 11, 2020) (“Generally speaking, the torts of

negligent retention and supervision follow that of general negligence claims: The analysis

examines whether the employer was on notice of the employee’s propensity, yet unreasonably

failed to take action, and the employee’s tortious conduct results in harm to a third party.”); State

ex rel. Golden v. Kaufman, 760 S.E.2d 883, 897 (W. Va. 2014) (“[The negligent supervision and

training claims] are derivative of the alleged wrongful conduct committed by [the employee.]

Having determined that [the employee] did not commit an actionable tort, [Plaintiff] does not have

a valid cause of action against [the employee] and his claims against [the] employer, [] must also

fail.”). Alternatively, his claims fail for the following reasons.

i. Negligent Hiring

To state a claim for negligent hiring, “a plaintiff must establish that “the employer is

negligent in the hiring [] of an employee and such negligence proximately causes the harm.” Brown

v. Mason Cnty. Comm’n, 2019 WL 6654124, at *7 (S.D.W. Va. Dec. 5, 2019) (quoting Hager v.

Robinson, No. 2:03-0094, 2005 WL 8159176, at *10 (S.D.W. Va. Feb. 1, 2005). Under West

Virginia law, courts inquire:

When an employee was hired, did the employer conduct a reasonable investigation into the

employee’s background vis a vis the job for which the employee was hired and the possible

risk of harm or injury to co-workers or third parties that could result from the conduct of

an unfit employee? Should the employer have reasonably foreseen the risk caused by hiring

an unfit person?

McCormick v. W. Virginia. Dep’t of Pub. Safety, 503 S.E. 2d 502, 506 (W. Va. 1998) (per curiam)

(quoting State ex rel. W. Virginia State Police v. Taylor, 499 S.E.2d 283, 289 n.7 (W. Va. 1997)).

Here, there has been absolutely no evidence as to the WCBOE’s investigation into

Meddings’ background prior to hiring him in January 1988. Plaintiff conceded, in his deposition,

that he had no information regarding whether the WCBOE had any information suggesting they

should not have hired Meddings. Pl.’s Second Depo. at 227. In his response, Plaintiff appears to

have abandoned the negligent hiring claim and did not offer any record support for this claim. See

Blankenship, 2018 WL 3581092, at *9. As such, Plaintiff has conceded to Defendant’s position,

and the Motion as to this claim is GRANTED.

ii. Negligent Retention

To hold an employer liable for negligent retention, the employer must have been able to

foresee ‘the possible risk of harm or injury to co-workers or third parties that could result from the

conduct of an unfit employee.’” C.C. v. Harrison Cnty. Bd. of Educ., 859 S.E.2d 762, 776 (W. Va.

2021) (quoting McCormick, 503 S.E.2d at 506). “Thus, the relevant inquiry in a negligent retention

analysis is, should the employer have reasonably foreseen the risk caused by hiring or retaining an

unfit person? Liability for negligent retention may be imposed when an injury occurred because

of an employer’s retention of an unfit employee and such risk of injury was reasonably foreseeable

to the employer.” Id. (internal citation and quotations omitted). The McCormick Court further

explained that the inquiry depends upon “the nature of the employee’s job assignment, duties, and

responsibilities.” 503 S.E.2d at 507. “The duty with respect to hiring and retention increases ‘as

the risks to third persons associated with a particular job increase.’” Woods v. Town of Danville,

712 F. Supp. 2d 502, 514 (S.D.W. Va. 2010) (quoting McCormick, 503 S.E.2d at 507).

Defendant argues that Plaintiff has only pointed out one workplace incident where he

brought concerns to Alexander’s attention, which is insufficient to constitute a foreseeable risk.

Def.’s Mem. at 12-14, ECF No. 71. Further, Defendant argues that there has been no evidence that

Meddings was unfit for the job. Id. at 14. Plaintiff responds, “Defendants knew full well that

Defendant Meddings failed to maintain an accurate inventory of the parts room… because he

refused to use the software program regularly to track parts.” Pl.’s Resp. at 13, ECF No. 79.

Additionally, Plaintiff “clearly notified Alexander that Meddings would lie to harm others and the

record evidence supports that Meddings’ behavior to harm others was very foreseeable to these

Defendants.” Id. Plaintiff argues that Alexander “improperly allowed Defendant Meddings’

insubordinate behavior to continue, which ultimately resulted in the criminal charge against Mr.

Sammons.” Id. at 14.

The record shows that Plaintiff, Meddings’ immediate supervisor, had personal knowledge

of a single instance where he brought an issue concerning Meddings’ behavior to Alexander’s

attention. Pl.’s Second Depo. at 174-176; Pl.’s Emails at 4. Specifically, in his email to Alexander,

Plaintiff wrote “He [Meddings] will fabricate and misuse information in an attempt to destroy

others, as his use of my questions about inventory was turned into accusations of him stealing.”

Pl.’s Emails at 4. His email warned exactly of the behavior that Plaintiff alleges took place here, a

false accusation against him, though there is no record evidence regarding whether these incidents

were further communicated from Alexander to other WCBOE members. Plaintiff stated that he

was unaware of other employees bringing concerns about Meddings to Alexander’s attention. Pl.’s

Second Depo. at 177. But Mr. Reeves testified that he had brought up his own issues with

Meddings to Alexander in the past, including a harassment charge where Meddings allegedly lied

about Reeves’ conduct. See J. Reeves Depo. at 46-50.

However, it is also relevant that Plaintiff consistently gave Meddings satisfactory

performance ratings. See Pl.’s Second Depo. at 18, 21-22; Performance Reviews, ECF No. 74-18,

74-19. A single negative evaluation arose from unrelated circumstances, though it noted

Meddings’ failure to maintain an accurate inventory. See Performance Review, ECF No. 74-19.

Further, Plaintiff admits that if he had an issue with Meddings’ performance that he “felt needed

to be addressed and was urgent,” he would include a comment on Meddings’ performance

evaluation, which he never did. Pl.’s Second Depo. at 27. Plaintiff also never asked for Meddings

to be terminated; in fact, he testified that he would not have terminated Meddings had he possessed

the authority to do so. Id. at 227-28. Overall, then, the record evidence could establish a genuine

issue of material fact as to Meddings unfitness and his employers’ awareness of the same.

But even if Defendant was aware of Meddings’ unfitness, it stretches the concept of

foreseeability too far to decide that an employee’s false accusations or failure to maintain an

accurate inventory could lead to Plaintiff’s arrest in these circumstances. Meddings was an

inventory supervisor, handyman, and groundsman. Meddings Depo. at 11, 268. Even if Meddings’

false report of missing inventory could lead to an investigation against a coworker like Mr. Reeves,

it is unforeseeable that another retired employee, during such investigation, would allegedly lie

and subject himself to liability. The accusation against Plaintiff was investigated and pursued after

a police officer and neutral magistrate found probable cause to pursue a criminal complaint.

Meddings did not have authority or status to independently launch an investigation or suggest

whom to interview. No reasonably prudent person could anticipate that Meddings’ failure to

maintain a complete and accurate inventory and/or false accusation would result in Deputy

Sowards’ pressing and obstruction charge which was found to be supported by probable cause

pursuant to the ordinary legal process.

iu. Negligent Supervision

West Virginia law requires a “showing that the employer failed to properly supervise its

employee and, as a result, the employee committed a negligent act which proximately caused the

appellant’s injury.” C.C., 859 S.E.2d at 774. Of course, here, Mr. Meddings’ alleged behavior was

intentional. See Mem. Op. and Order at 11-13, ECF No. 69. Therefore, there has been no “negligent

act which proximately cause [the plaintiff's] injury.” C.C. 859 S.E.2d at 774. Further, because Mr.

Alexander is not the “employee being supervised” his conduct cannot be a basis for liability.” See

id.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants Deputy Harry Sowards’

Motion for Summary Judgment (ECF No. 77), Howard Meddings’ Motion for Summary Judgment

(ECF No. 75), and Wayne County Board of Education’s Motion for Summary Judgment (ECF No.

74).

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented parties.

ENTER: March 18, 2022

: LA,

4. ee

ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

° To the extent that Alexander, as an employee of the WCBOE’s retention of Meddings could constitute the

grounds for underlying negligence, in this instance, Alexander had no independent hiring or firing power, nor has that

been asserted at any point. See Alexander Depo. at 58-59. Further, Plaintiff has developed no facts or even produced

evidence of a theory that the WCBOE failed to supervise Alexander.

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