Braley v. Thompson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

CHRISTOPHER NOEL BRALEY,

Plaintiff,

v. CIVIL ACTION NO. 2:22-cv-00534

BRANDON THOMPSON, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

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

[ECF No. 53]. Plaintiff responded in opposition, [ECF No. 56], and Defendants

replied, [ECF No. 57]. For the reasons discussed herein, Defendants’ Motion is

GRANTED.

I. Background

On November 22, 2022, Plaintiff, Christopher Noel Braley, filed a Complaint

relating to injuries he sustained during an encounter with Jackson County police

officers. [ECF No. 1]. Specifically, Plaintiff alleges that on November 24, 2020,

Deputy Thompson of the Jackson County Sheriff’s Department responded to a

request for assistance concerning “an intoxicated man” who was “laying on the

ground after nearly striking juveniles with his vehicle.” ¶ 5. Following a lengthy

interaction, it is alleged that Deputy Thompson punched Plaintiff in the face and

eye and kicked him in the leg. As a result of this incident, Plaintiff alleges that

he sustained facial injuries and a broken screw in his leg.

Plaintiff brought this action pursuant to this court’s jurisdiction to hear

claims arising under federal law. at 1 (citing 28 U.S.C. §§ 1331, 1343). The

Complaint asserted a total of five claims1 against three defendants—Deputies

Thompson and John Doe, and the Jackson County Commission d/b/a Jackson

County Sheriff’s Department (the “JCC”). Plaintiff asserted three state law

claims for negligence, battery, and intentional infliction of emotional distress

(“IIED”) as well as two federal claims under 42 U.S.C. § 1983: a claim for excessive

force and a claim for liability against the JCC.

On March 3, 2023, I granted in part and denied in part Defendants’ Partial

Motion to Dismiss. [ECF No. 21]. In doing so, I dismissed the claims against the

JCC for IIED, negligent hiring, and negligent supervision, as well as the IIED claim

against Defendant Thompson. at 14. Still pending are Plaintiff’s claims for

negligent retention and liability as to the JCC, and the claims against

Defendant Thompson for battery and excessive force.

1 The causes of action in Plaintiff’s Complaint are not sequentially numbered. [ECF No. 1]. The

first count (negligence) is labeled Count IV; the second count (battery) is labeled Count III; the third

count (“Outrageous Conduct/Intentional Infliction”) is strangely also labeled Count IV; the fourth

count (excessive force) is labeled Count 1; and the fifth count ( ) is labeled Count II. For the

sake of clarity, and consistency with my prior opinion at the motion to dismiss stage, I refer to each

count by name throughout this opinion.

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On April 8, 2024, Defendants timely filed their Motion for Summary

Judgment. [ECF No. 53]. Plaintiff filed his Response on April 22, 2024, [ECF No.

56], and Defendants replied on April 29, 2024, [ECF No. 57]. The motion is ripe for

review.

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 it 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 through the 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).

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III. Discussion

The court will first consider Plaintiff’s federal claim of excessive force brought

pursuant to 42 U.S.C. § 1983 and then turn to his state law battery claim.

1. Excessive Force

The doctrine of qualified immunity protects government officials from civil

liability “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”

, 555 U.S. 223, 231 (2009). The determination of whether a state official

receives the benefit of qualified immunity is a two-step process. Viewing the facts in

the light most favorable to the plaintiff, the court must decide (1) whether there was

a constitutional violation, and (2) whether the right violated was clearly established

at the time of the violation. at 232. If the answer to either question is no, then

the defendant is entitled to qualified immunity. Whether a right is clearly

established is a question of law, while a genuine question of material fact regarding

whether the allegedly violative conduct actually occurred “must be reserved for

trial.” , 973 F.2d 307, 313 (4th Cir. 1992) (citing

, 472 U.S. 511, 526 (1985)). A right is clearly established if “every

‘reasonable official would [understand] that what he is doing violates that right.’”

, 563 U.S. 731, 741 (2011) (quoting , 483

U.S. 635, 640 (1987)).

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“It is clearly established that the Fourth Amendment confers upon

individuals a constitutional right to be free from excessive force during the course of

an arrest.” , 139 F. Supp. 3d 760, 769 (S.D. W. Va. 2015) (citing

, 490 U.S. 386, 394 (1989)). Excessive force occurs when an officer

uses more force than is objectively reasonable in the situation. , 490 U.S. at

397. To determine whether the use of force was objectively reasonable, courts

balance “‘the nature and quality of the intrusion on the individual’s Fourth

Amendment interests’ against the countervailing government interests at stake.”

at 396 (quoting , 392 U.S. 1, 24 (1968)). This inquiry is fact specific

and requires courts to analyze factors such as “the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers or

others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” The seriousness of the plaintiff’s injuries is also relevant.

, 41 F.3d 167, 174 (4th Cir. 1994). Here, whether or not qualified immunity

shields Deputy Thompson from § 1983 liability depends upon whether the force

employed against Plaintiff was excessive.

Plaintiff claims during the course of his interaction with the Jackson County

police officers, Deputy Thompson “sucker punched” him in the face when he was

standing approximately 25 feet away from his vehicle. [ECF No. 53-2, at 44–45]. He

further alleges that the punch knocked him off of his feet and that multiple officers

piled on top of him, proceeding to beat and kick him. at 22–25. Plaintiff also

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claims that Deputy Thompson kicked him in his left leg, breaking surgical screws

from a prior injury. at 21–23. Despite these allegations, Plaintiff provides no

evidence in support of his claims. At the summary judgment stage, a plaintiff must

show more than bold assertions contained in pleadings that he was harmed. Here,

Plaintiff provides no medical documentation of the alleged injuries he sustained. In

fact, his claims of injuries are directly contradicted by the video evidence provided

by Defendants. [ECF Nos. 53-3–53-8]. The body camera footage capture during the

interaction does not show excessive force, [ECF Nos. 53-3–53-6], and footage

captured immediately after the interaction as well two days later shows Plaintiff

was not suffering from the injuries he describes, [ECF Nos. 53-7–53-8].

In support of the Motion for Summary Judgment, Defendants submitted

several videos of Plaintiff’s interaction with the Jackson County police officers on

November 24, 2020. [ECF Nos. 53-3–53-8]. The video captured on Lieutenant

Roberts’ body camera begins with the officers conducting a DUI investigation and

shows Plaintiff to be visibly intoxicated, staggering and slurring his words, and his

vehicle to be severely damaged. [ECF No. 53-4]. Plaintiff is administered a

breathalyzer test and fails the test by blowing a 0.129. at 2:00–2:35. The video

captured on Deputy Williams’ body camera begins just after Plaintiff failed the

breathalyzer test. [ECF No. 53-5]. In the video, Plaintiff is shown walking around

the vehicle, getting progressively more agitated. at 4:00–5:20. He repeatedly

states that he has a pistol in the vehicle. at 2:55, 5:20. Deputy Thompson asks

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Plaintiff if he is looking for something and if he had lost his cell phone. [ECF No. 53-

4, at 6:00–6:15]. Plaintiff states again that he is looking for his pistol.

Deputy Thompson then attempts to redirect Plaintiff away from the interior

of the vehicle. [ECF No. 53-5, at 5:25]. At this point Plaintiff can be seen standing

directly next to the open driver’s side door of the vehicle, rather than 25 feet away

from the vehicle as he testified during his deposition. at 5:25; [ECF No. 53-2, at

44–45]. Plaintiff then suddenly turns towards Deputy Thompson and the interior of

the vehicle—where he has already indicated his pistol is located. [ECF No. 53-5, at

5:25]. Deputy Thompson attempts to perform a leg sweep on Plaintiff and a struggle

ensues during which Plaintiff is taken to the ground and placed in handcuffs. [ECF

No. 53-4, at 8:20–8:45]; [ECF No. 53-5, at 5:40–6:10].

Here, the force applied by Deputy Thompson was not excessive because it

was “objectively reasonable in light of the facts and circumstances confronting

[him]” at the time. , 781 F.3d 95, 101 (4th Cir. 2015) (internal citation

omitted). While Plaintiff claims he was beaten by Deputy Thompson and the other

officers on the scene, the video evidence submitted by Defendants blatantly

contradicts that story. As such, I am not required to adopt Plaintiff’s version of the

events in my consideration of his claim. , 550 U.S. 372, 380

(2007) (“When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should

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not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.”).

As previously noted, to determine whether an officer has acted reasonably,

courts consider “the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” , 817 F.3d

877, 885 (4th Cir. 2016) (quoting , 490 U.S. at 396). Considering these

factors, Deputy Thompson acted reasonably because “other officers, armed with the

same information . . . would have perceived [Plaintiff] as a threat to the officer’s

safety.” , 675 F. Supp. 3d 606, 616 (E.D. Va. 2023).

As to the first factor, Plaintiff was under investigation for driving under the

influence and nearly hitting several minors with his vehicle. This is a serious

offense under . , 837 F.3d 513, 519 (5th Cir. 2016). With

respect to the second factor, a reasonable officer would have perceived Plaintiff to be

an “immediate threat to the safety of the officers and others.” , 490 U.S. at

396. Despite attempts to redirect Plaintiff from his vehicle, Plaintiff grew irate and

remained intent on locating his pistol. Under these facts, a reasonable officer would

perceive Plaintiff as posing an immediate threat to his safety.

, 325 F.3d 530, 529 (4th Cir. 2003). Finally, Plaintiff refused to move

away from his vehicle and, once he was on the ground, resisted attempts to place

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him in handcuffs. A reasonable officer would perceive these actions as those of an

individual resisting arrest.

Based on the foregoing analysis of the factors, I conclude that

Deputy Thompson’s use of force was objectively reasonable in light of the totality of

the circumstances in this case. Thus, Deputy Thompson did not apply excessive

force against Plaintiff in violation of his constitutional rights. As such, Deputy

Thompson is entitled to summary judgment as to the excessive force claim under 42

U.S.C. § 1983.

2. Battery

The Supreme Court of Appeals of West Virginia has adopted the definition of

battery stated in the Restatement (Second) of Torts, which provides:

An actor is subject to liability to another for battery if (a) he acts

intending to cause a harmful or offensive contact with the person of the

other or a third person, or an imminent apprehension of such a contact,

and (b) a harmful contact with the person of the other directly or

indirectly results.

, 854 S.E.2d 236, 245 (W. Va. 2020) (quoting Restatement

(Second) of Torts §§ 13(a)–(b) (Am. Law Inst. 1979)). A defendant can avoid liability

for battery if he is privileged to engage in the complained of conduct.

, 731 F. Supp. 2d 521, 547 (S.D. W. Va. 2010). The use of force by

police officers is not privileged if the force applied exceeds what a reasonable officer

would find necessary. ; Restatement (Second) of Torts § 132 (“The use of force

against another for the purpose of effecting the arrest or recapture of the other, or of

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maintaining the actor’s custody of him, is not privileged if the means employed are

in excess of those which the actor reasonably believes to be necessary.”).

Furthermore, under West Virginia law, an employee of a political subdivision

is immune from liability unless: “(1) [the employee’s] acts or omissions were

manifestly outside the scope of employment or official responsibilities; (2) [the

employee’s] acts or omissions were with malicious purpose, in bad faith, or in a

wanton or reckless manner; or (3) [l]iability is expressly imposed upon the employee

by a provision of” West Virginia law. W. Va. Code § 29-12A-5(b). The West Virginia

Supreme Court of Appeals has explained that West Virginia’s “approach to matters

concerning immunity historically has followed federal law.”

, 719 S.E.2d 863, 868 (W. Va. 2011). It logically follows that much of the

same analysis applicable to Deputy Thompson’s invocation of qualified immunity

against Plaintiff’s § 1983 claim applies with equal force to his invocation of

statutory immunity against his state law claim.

Here, Deputy Thompson was privileged to use the reasonable force he

applied to Plaintiff to prevent harm to himself and others. Additionally, none

of the exceptions from statutory immunity apply. Deputy Thompson was

acting within the scope of his employment when he took Plaintiff to the

ground to gain control of him. Also, the video evidence demonstrates that

Deputy Thompson’s conduct was not undertaken “with malicious purpose, in

bad faith, or in a wanton or reckless manner,” but rather to maintain order

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and security. [ECF Nos. 53-4–53-5]. Finally, the court is unaware of, and

Plaintiff has not raised, any provision of state law that expressly imposes

liability on Deputy Thompson. Accordingly, Deputy Thompson is entitled to

summary judgment on Plaintiff’s battery claim.

1. Negligent Retention

Plaintiff alleges that the JCC negligently retained Deputy Thompson because

Deputy Thompson has had “numerous claims of excessive force against [him].” [ECF

No. 1, ¶ 12].

A negligent retention claim seeks to impose liability on an employer who

retains an employee “whom the employer knew, or should have known, posed a risk

to third parties.” , No. 2:21-cv-111, 2021 WL 5056081, at

*3 (S.D. W. Va. Nov. 2, 2021) (internal citations omitted). The central inquiry in a

negligent hiring or retention claim is:

When the employee is hired or retained, 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 or retaining an unfit person?

, 499 S.E.2d 283, 289 n.7 (W. Va. 1997).

Defendants argue that Plaintiff has provided “no evidence that Deputy

Thompson was unfit for work as a police officer.” [ECF No. 54, at 19]. Defendants

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concede that Deputy Thompson has been previously involved in two other lawsuits

but emphasize that he has never been found to have violated an individual’s “civil

rights.” As such, Defendants wager that the JCC never had any reason to

discipline Deputy Thompson or reconsider his fitness as an officer.

Plaintiff makes no response to Defendants’ arguments that the JCC be

granted summary judgment as to the negligent retention claim. [ECF

No. 56 (illustrating that Plaintiff does not address the negligent retention claim in

his response to the motion for summary judgment)]. “The failure to respond to

arguments raised in a motion for summary judgment can indicate that the non-

moving party concedes the point or abandons the claim.”

, 2:16-cv-12082, 2018 WL 381092, at *9 (S.D. W. Va. Jul. 25, 2018). Because of

Plaintiff’s failure to respond, as well as the complete lack of evidence that Plaintiff

has put forth to show that the JCC should have been aware of any risk caused by

retaining Deputy Thompson, the JCC is entitled is entitled to summary judgment

on the negligent retention claim.

2. Liability

Plaintiff also brings suit against the JCC for municipal liability under 42

U.S.C. § 1983, arguing that Plaintiff’s Fourth Amendment rights were violated as a

result of the JCC’s failure to adequately train, supervise, and discipline its officers

“regarding the circumstances which constitute excessive force.” [ECF No. 1, ¶ 24].

Municipalities may be sued under § 1983 for policies which result in constitutional

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harms. , 436 U.S. 658, 690 (1978). To succeed on a

claim for liability, a plaintiff must “adequately plead and prove the existence

of an official policy or custom that is fairly attributable to the municipality and that

proximately caused the deprivation of their rights.” ,

195 F.3d 708, 712 (4th Cir. 1999). A municipal policy or custom may be established

(1) through an express policy, such as a written ordinance or regulation; (2)

through the decisions of a person with final policymaking authority; (3)

through an omission, such as a failure to properly train officers, that

manifests deliberate indifference to the rights of citizens; or (4) through a

practice that is so persistent and widespread as to constitute a custom or

usage with the force of law.

, 326 F.3d 463, 471 (4th Cir. 1999) (internal markings omitted).

To succeed on a failure to train claim against a local government, a plaintiff

must establish that “the need for more or different training is so obvious, and the

inadequacy so likely to result in the violation of constitutional rights, that the

policymakers of the [municipality] can reasonably be said to have been deliberately

indifferent to the need.” , 489 U.S. 378, 390 (1989).

Plaintiffs can demonstrate the obvious need for “more or different training” by

showing a “pattern of similar constitutional violations.” , No.

2:19-cv-493, 2020 WL 401790, at *4 (S.D. W. Va. Jan. 23, 2020) (internal citations

omitted). Here, Plaintiff fails to provide any evidence of such a pattern in Jackson

County.

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The United States Court of Appeals for the Fourth Circuit has outlined three

elements of a successful failure to supervise or discipline case under :

(1) that the supervisor had actual or constructive knowledge that his

subordinate was engaged in conduct that posed a pervasive and

unreasonable risk of constitutional injury to citizens like the plaintiffs;

(2) that the supervisor’s response to that knowledge was so inadequate

as to show deliberate indifference to or tacit authorization of the

alleged offensive practices; and (3) that there was an affirmative

causal link between the supervisor’s inaction and the particular

constitutional injury suffered by the plaintiff.

, 751 F.3d 214, 226 (4th Cir. 2014) (citing , 13

F.3d 791, 798 (4th Cir. 1999)) (internal markings omitted). To show a “pervasive

and unreasonable risk,” a plaintiff must put forth evidence that the complained of

conduct is “widespread, or at least has been used on several different occasions.”

Here, Plaintiff provides no evidence of such a risk. In fact, similar to his treatment

of his claim for negligent retention, Plaintiff failed to respond to Defendants’

arguments regarding liability at all in his response. [ECF No.

56]. As Plaintiff failed to respond to Defendants’ arguments and has, likewise,

provided no evidence to support any theory of liability, the JCC is entitled to

summary judgment on the liability claim.

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IV. Conclusion

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

No. 53], is GRANTED. The court DIRECTS the Clerk to send a copy of this Order to

counsel of record and any unrepresented party.

ENTER: October 11, 2024

JOSEP . GOODW

pe STATES om JUDGE

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