# O'Brien

> District Court, N.D. West Virginia · November 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11205040

## Case

- **Full name:** Paul O’Brien v. Cody C. Mayle
- **Court:** District Court, N.D. West Virginia
- **Decided:** November 18, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11205040. Public record. Not legal advice.