O'Brien

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

PAUL O’BRIEN,

Plaintiff,

v. CIVIL NO. 1:25-CV-63

(KLEEH)

CODY C. MAYLE,

Defendant.

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

Pending before the Court is a partial motion to dismiss. For

the reasons discussed below, the motion is granted in part and

denied in part.

I. INTRODUCTION AND PROCEDURAL HISTORY

On July 10, 2025, Plaintiff Paul O’Brien (“Plaintiff”) filed

a complaint against Defendant Cody C. Mayle (“Defendant”), a Deputy

Sheriff in Taylor County, West Virginia. See ECF No. 1. Plaintiff

asserts the following causes of action, which stem from his

interaction with Defendant on July 12, 2023:

 (Count One) Unlawful Detainment - 42 U.S.C.

§ 1983;

 (Count Two) Unlawful Search and Seizure - 42

U.S.C. § 1983;

 (Count Three) Excessive Force - 42 U.S.C.

§ 1983;

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

 (Count Four) First Amendment, Retaliatory

Arrest - 42 U.S.C. § 1983;

 (Count Five) Battery; and

 (Count Six) Assault.

Defendant is sued in his individual capacity only. Id. ¶ 3. On

August 13, 2025, Defendant filed a partial motion to dismiss

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

See ECF No. 3. The motion is fully briefed and ripe for review.

II. FACTS

The following facts are taken from the complaint. For

purposes of deciding the motion, the Court assumes that they are

true.

On or about the morning of July 12, 2023, Defendant arrived

at Plaintiff’s home to discuss one of Plaintiff’s Facebook posts.

Compl., ECF No. 1, at ¶¶ 4, 11. Specifically, Plaintiff’s post

had stated that he wished he had a firecracker to set off to

startle a deputy who had parked across the street from his home.

Id. ¶ 12. Defendant did not have a search warrant or an arrest

warrant when he arrived at Plaintiff’s home. Id. ¶¶ 5–6.

Defendant initially spoke with Plaintiff’s stepfather and asked

him to bring Plaintiff outside. Id. ¶ 7. Plaintiff agreed to

speak with Defendant and proceeded to have a conversation with him

in the driveway. Id. ¶¶ 8–9.

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

Plaintiff and Defendant discussed the Facebook post and an

issue that Plaintiff was having with one of the deputies. Id.

¶¶ 13–15. When questioned about the post, Plaintiff stated that

he was exercising his freedom of speech. Id. ¶ 16. Defendant

told Plaintiff that he could be written up for the post, and

Plaintiff responded by telling Defendant to write him up. Id.

¶¶ 17–18. Defendant told Plaintiff that he would “gladly do that

for [him].” Id. ¶ 19.

Plaintiff then told Defendant that he (Plaintiff) needed to

go to work, and he began walking to his vehicle. Id. ¶¶ 20–21.

Defendant said to Plaintiff, “Hold on, I’m talking to you. Do not

walk away from me. Get back over here.” Id. ¶ 22. Plaintiff

cursed at Defendant, who then ordered Plaintiff to turn around,

grabbed Plaintiff’s arm, detained him, and arrested him. Id.

¶¶ 24–27. When Plaintiff asked Defendant why he was being

arrested, Defendant told him that he was being arrested for

threatening an officer. Id. ¶¶ 30–31. Plaintiff spent two days

in jail and was charged with obstructing an officer. Id. ¶¶ 32–

34. Ultimately, the State of West Virginia voluntarily dismissed

the charge against Plaintiff. Id. ¶ 35.

III. LEGAL STANDARD

Rule 12(b)(6) allows a defendant to move for dismissal upon

the ground that a complaint does not “state a claim upon which

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

relief can be granted.” In ruling on a 12(b)(6) motion to dismiss,

a court “must accept as true all of the factual allegations

contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d

181, 188 (4th Cir. 2007) (citations omitted). A court is “not

bound to accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986)

(citations omitted).

A court should dismiss a complaint if it does not contain

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Plausibility exists “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A motion to

dismiss “does not resolve contests surrounding the facts, the

merits of a claim, or the applicability of defenses.” Republican

Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)

(citation omitted). Dismissal is appropriate only if “it appears

to a certainty that the plaintiff would be entitled to no relief

under any state of facts which could be proved in support of his

claim.” Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir. 1969)

(citation omitted).

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

IV. DISCUSSION

Defendant moves to dismiss Counts One, Three, Five, and Six,

along with any state constitutional violations asserted in the

complaint. Plaintiff has conceded that dismissal of Count One is

appropriate and clarified that he is not asserting any state

constitutional violations. For the reasons discussed herein, the

Court grants the motion to dismiss with respect to Count Six and

denies it with respect to Counts Three and Five.

A. Excessive Force (Count Three)

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) (quotation marks and citation omitted).

It “may be invoked by a government official sued in his personal,

or individual, capacity.” Ridpath v. Bd. of Governors Marshall

Univ., 447 F.3d 292, 306 (4th Cir. 2006) (citation omitted). The

protection extends to “all but the plainly incompetent or those

who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,

341 (1986). An officer, generally, is protected by qualified

immunity if his “actions could reasonably have been thought

consistent with the rights they are alleged to have violated.”

Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citations

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

omitted). The Supreme Court has “stressed the importance of

resolving immunity questions at the earliest possible stage in

litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citations

omitted).

The test to determine whether an officer is entitled to

qualified immunity is two-fold: the Court must determine “(1)

whether a constitutional violation occurred; and (2) whether the

right was clearly established at the time of the violation[.]”

Jones v. City of Martinsburg, 961 F.3d 661, 667 (4th Cir. 2020)

(citation omitted). The United States Court of Appeals for the

Fourth Circuit applies a “split burden of proof for the qualified-

immunity defense. The plaintiff bears the burden on the first

prong, and the officer bears the burden on the second prong.”

Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citation

omitted). The Court can address either prong first. Pearson, 555

U.S. at 236.

“For a right to be clearly established, existing precedent

must have placed the statutory or constitutional question beyond

debate.” Safar v. Tingle, 859 F.3d 241, 246 (4th Cir. 2017)

(quotation marks and citation omitted). The “dispositive

inquiry . . . is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (citation omitted).

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

Under the Fourth Amendment’s “reasonableness” analysis, force

is not excessive if it is objectively reasonable under the

circumstances facing the officer, without regard to his underlying

intent. Graham v. Conner, 490 U.S. 386, 397 (1989). The “calculus

of reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments – in

circumstances that are tense, uncertain, and rapidly

evolving – about the amount of force that is necessary in a

particular situation.” Id. at 396–97. “The reasonableness of a

particular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Id. at 396 (citation and internal quotation marks

omitted). As the Supreme Court has explained,

“[T]he test of reasonableness under the Fourth

Amendment is not capable of precise definition

or mechanical application,” Bell v. Wolfish,

441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60

L.Ed.2d 447 (1979), however, its proper

application requires careful attention to the

facts and circumstances of each particular

case, including 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.

Id. (citation omitted).

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

For Fourth Amendment claims of excessive force, “the severity

of injury resulting from the force used has always been but one

consideration in determining whether force was excessive.” Smith

v. Murphy, 634 F. App’x 914, 917 (4th Cir. 2015) (citation and

internal quotation marks omitted). While officers will not be

“subject to § 1983 liability . . . for every push and shove they

make,” Martin v. Gentile, 849 F.2d 863, 869 (4th Cir. 1988)

(internal quotation marks omitted), they are also not “absolve[d]”

of liability merely because “their conduct, however unreasonable,

only result[ed] in de minimis injuries.” Smith, 634 F. App’x at

917 (citation omitted). After all, the question is “whether the

totality of the circumstances justified a particular sort of search

or seizure.” Tennessee v. Garner, 471 U.S. 1, 8–9 (1985).

Here, Defendant argues that he is entitled to qualified

immunity with respect to the claim of excessive force, and

Plaintiff disagrees. According to the complaint, Plaintiff had

previously posted on Facebook that he wished he had a firecracker

to set off to startle a deputy who had parked across the street

from his home. Compl., ECF No. 1, at ¶ 12. Defendant and Plaintiff

then had a conversation at Plaintiff’s home. Id. ¶¶ 8–9. When

Plaintiff attempted to leave, Defendant said to Plaintiff, “Hold

on, I’m talking to you. Do not walk away from me. Get back over

here.” Id. ¶¶ 20–22. Plaintiff cursed at Defendant, who then

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

ordered Plaintiff to turn around, grabbed Plaintiff’s arm,

detained him, and arrested him. Id. ¶¶ 24–27. When Plaintiff

asked Defendant why he was being arrested, Defendant told him that

he was being arrested for threatening an officer. Id. ¶¶ 30–31.

As pled, Plaintiff has met his burden with respect to the

first prong of the qualified immunity test. The facts asserted in

the complaint do not indicate that Plaintiff had committed, was

committing, or was about to commit an offense. See United States

v. Dickerson, 27 F. App’x 236, 242 (4th Cir. 2001) (“Probable cause

to justify an arrest arises when ‘facts and circumstances within

the officer’s knowledge . . . are sufficient to warrant a prudent

person, or one of reasonable caution, in believing, in the

circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense.’”). Defendant,

therefore, violated Plaintiff’s rights under the Fourth Amendment

to the United States Constitution by using force — grabbing his

arm and handcuffing him — to effectuate an arrest for which there

was no probable cause.

Defendant bears the burden of proof with respect to the second

prong of the test: “whether the right was clearly established at

the time of the violation.” Defendant’s briefing, however,

addresses only the first prong. Defendant argues only that

Plaintiff did not sufficiently allege a constitutional violation.

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

See Memo., ECF No. 3-1, at 6–8. Accordingly, Defendant has not

met his burden to show that the alleged constitutional

violation — an arrest without probable cause under the

circumstances asserted here — was not clearly established at the

time of the violation. Accordingly, at this stage and based on

the arguments presented, the Court finds that Plaintiff’s right to

be free from the unconstitutional arrest asserted here was clearly

established at the time it took place. It would be clear to a

reasonable officer that Plaintiff had not engaged in activity that

warranted an arrest. Defendant’s actions, as pled in the

complaint, which included grabbing Plaintiff’s arm and arresting

him without probable cause, were objectively unreasonable. The

Court, at this stage, finds that Defendant is not entitled to

qualified immunity and denies the motion to dismiss with respect

to Count Three.

B. Battery (Count Five)

In West Virginia, a person is liable for battery if (1) “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 (2) “a harmful contact with the person of

the other directly or indirectly results.” W. Va. Fire & Cas. Co.

v. Stanley, 602 S.E.2d 483, 494 (W. Va. 2004). Generally, a law

enforcement officer “engaged in an arrest is afforded a privilege

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

that precludes a battery claim.” Weigle v. Pifer, 139 F. Supp. 3d

760, 776 (S.D.W. Va. 2015) (citation omitted). An officer’s

privilege, however, is not absolute. Id. at 777. Here, Defendant

argues that he was privileged in making physical contact with the

Plaintiff. Plaintiff argues that privilege does not apply because

Defendant did not have probable cause to effectuate the arrest.

As discussed above with respect to qualified immunity,

assuming that the facts in the complaint are true, a prudent person

would not believe that Plaintiff had committed, was committing, or

was about to commit an offense. Defendant did not have probable

cause to arrest Plaintiff, so his conduct was not privileged.

Grabbing a person’s arm and detaining him is an offensive contact.

Defendant intended to cause the offensive contact, and the intended

offensive contact resulted, so Plaintiff has stated a viable claim

for battery. The Court denies the motion to dismiss with respect

to Count Five.

C. Assault (Count Six)

In West Virginia, a person is liable for assault if (1) “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 (2) “the other is thereby put in such

imminent apprehension.” Stanley, 602 S.E.2d at 495. “If the

plaintiff never perceived the harmful or offensive contact before

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

it happened, no assault occurred.” Crawford v. Daniels, No. 2:23-

cv-00585, 2024 WL 1895105, at *7 (S.D.W. Va. Apr. 30, 2024)

(citation omitted). Defendant argues that Plaintiff failed to

plead facts sufficient to establish his assault claim because he

alleges only a conclusory allegation. Plaintiff argues that his

excessive force allegation is sufficient to support his assault

claim.

The conduct attributed to the alleged assault is identical to

the conduct attributed to the alleged battery. Importantly,

however, Plaintiff does not allege that he was placed in imminent

apprehension of an offensive or harmful contact, nor does he plead

any facts showing that he feared that Defendant would physically

contact him. Because the complaint offers only a legal assertion

that “[D]efendant committed an assault upon the Plaintiff,”

Compl., ECF No. 1, at ¶ 79, the Court finds that Plaintiff has

failed to plead facts sufficient to state a claim of assault. The

Court grants Defendant’s motion to dismiss with respect to Count

Six.

D. Leave to Amend

At this stage, “a party may amend its pleading only with the

opposing party’s written consent or the court’s leave. The Court

should freely give leave when justice so requires.” Fed. R. Civ.

P. 15(a)(2). Rule 15.01 of the Local Rules of Civil Procedure

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

requires a party requesting leave to amend to attach “a signed

copy of the proposed amended pleading.” L.R. Civ. P. 15.01.

In Plaintiff’s response, he asks the Court to, in the

alternative, grant him leave to amend his complaint. See Resp.,

ECF No. 7, at 13. Plaintiff did not file a separate motion and

did not attach a signed copy of the proposed amending pleading.

He has, therefore, failed to comply with Local Rule 15.01. Because

Plaintiff failed to comply with the Local Rules, the Court denies

his request for leave to amend.

V. CONCLUSION

For the reasons stated, the Court ORDERS as follows:

 The partial motion to dismiss is GRANTED IN

PART and DENIED IN PART [ECF No. 3];

 The motion is GRANTED with respect to Counts

One and Six;

 Counts One and Six are DISMISSED;

 The motion is DENIED with respect to Counts

Three and Five;

 Defendant’s motion is DENIED AS MOOT as it

relates to state constitutional claims; and

 Plaintiff’s request for leave to amend the

complaint is DENIED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record.

O’BRIEN V. MAYLE 1:25-CV-63

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]

DATED: November 18, 2025

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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