Wittkamper

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

GREGORY H. WITTKAMPER,

as Administrator of the Estate

of Stephen Michael Wittkamper,

Plaintiff,

v. CIVIL NO. 3:23-CV-177

(KLEEH)

DEPUTY K.J. STIPANOVIC,

DEPUTY C. ELLIS,

DEPUTY R. JENKINS, and

DEPUTY T. STELY,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

Pending before the Court is a motion for summary judgment.

For the reasons discussed herein, the motion is GRANTED.

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff Gregory H. Wittkamper (“Plaintiff”), as

administrator of the Estate of Stephen Michael Wittkamper

(“Wittkamper”), filed a complaint on April 20, 2023, in the Circuit

Court of Jefferson County, West Virginia, against the Jefferson

County Sheriff’s Department, Sheriff Thomas H. Hansen, Deputy K.J.

Stipanovic, Deputy C. Ellis, Deputy R. Jenkins, and Deputy T.

Stely. See ECF No. 1-1. The Defendants removed the case to this

Court on July 20, 2023. See ECF No. 1.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

On February 26, 2024, the Court granted in part and denied in

part a motion to dismiss. See ECF No. 18. As a result, certain

claims, including all claims against the Sheriff’s Department and

Sheriff Hansen, were dismissed. Against the remaining Defendants,

Plaintiff now asserts the following: outrage or intentional

infliction of emotional distress, deliberate indifference,

excessive force, battery, bystander liability, and wrongful death.

On December 1, 2025, the remaining Defendants, Deputy K.J.

Stipanovic (“Stipanovic”), Deputy T. Stely (“Stely”), Deputy R.

Jenkins (“Jenkins”), and Deputy C. Ellis (“Ellis”) (together,

“Defendants”) filed a motion for summary judgment. See ECF No.

80. In it, Defendants seek dismissal of all remaining claims,

arguing that they are entitled to qualified immunity for the

federal claims and that the other claims fail as a matter of law.

The motion is fully briefed and ripe for review. See ECF Nos. 91,

95.

II. UNDISPUTED FACTS

William “Bill” Cummings (“Mr. Cummings”), age 86, and his

wife Barbara Cummings (“Mrs. Cummings”), age 82, lived in Charles

Town, West Virginia, and had allowed Wittkamper to live in their

basement for over eight years. Cummings Dep., ECF No. 80-2, at

9:2–5; 13:13–19; 21:2–5. The evening of April 24, 2021, Mr.

Cummings woke to his wife screaming and went to her office. Id.

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at 15:12-18. Wittkamper, who weighed approximately 400 pounds,

was standing near the desk, and Mrs. Cummings, who weighed

approximately 135 pounds, was on the floor. Id. at 15:19-24; 21:2–

5; 42:2–9. Mrs. Cummings told Mr. Cummings that Wittkamper had

“slugged” her and knocked her off her chair. Id. at 16:1-5.

Wittkamper was completely naked. Id. at 15:12–14. He was “not

belligerent” but was also “not communicative.” Id. at 15:6–7.

Mr. Cummings asked Wittkamper to follow him. Id. at 16:8–19.

Wittkamper followed Mr. Cummings into the garage, and Mr. Cummings

closed the house door behind him. Id. Mr. Cummings called 911

and reported that Wittkamper, who was “high,” had punched his wife

in the face. See Sealed Exh. 2 to Motion. Wittkamper then used

a key to re-enter the house. Cummings Dep., ECF No. 80-2, at

16:20–17:6. Mr. Cummings told Wittkamper to go to the basement,

and he did. Id. at 17:3-8. Defendants responded to the call.

Ellis and Jenkins arrived first, followed by Stipanovic and

Stely. See Stely Dep., ECF No. 80-14, at 58:5-12. Defendants

entered the basement and observed that Wittkamper was not

exhibiting normal behavior and was possibly impaired. Id. at 62:1–

6; Jenkins Dep., ECF No. 80-13, at 53:6-11. During the encounter,

Ellis, Jenkins, and Stely each deployed and hit Wittkamper with

one taser shot. Before firing his taser, Jenkins repeatedly told

Wittkamper to “back up” and “turn around,” but Wittkamper then

MEMORANDUM OPINION AND ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

charged at Jenkins. See Ellis and Jenkins Body Cameras, Sealed

Exhs. 11 and 12 to Motion. Jenkins deployed his taser to

Wittkamper’s chest. Id. Wittkamper remained standing after being

hit with the taser. Id. He pulled the prong out of his chest and

said, “Off.” Id. Jenkins and Ellis repeatedly told Wittkamper to

“get on the ground,” but he did not. Id. Wittkamper walked away

from the officers momentarily. Id. He then proceeded to walk

toward Ellis, and Ellis deployed his taser to Wittkamper’s chest.

Id. Wittkamper remained standing and pulled out Ellis’s taser

prong as well. Id. Ellis and Jenkins continued to tell him to

“get on the ground,” but he did not. Id. Wittkamper continued to

walk toward Ellis, and Stely then deployed his taser to

Wittkamper’s right shoulder from behind. Id. After being shot

with three tasers, Wittkamper continued to refuse to get on the

ground. Id. At that point, Defendants went “hands on” with him

to take him to the ground. Id. They placed Wittkamper in the

prone position (on his stomach) and, due to his size, worked to

place two sets of handcuffs on him. Id.

Approximately 45 seconds after placing Wittkamper in the

prone position, Defendants completed placement of the handcuffs.

Id. Wittkamper was moving his legs. Id. Jenkins and Stely each

had a hand on his back. Jenkins Dep., ECF No. 80-13, at 31:16-

18; Ellis Dep., ECF No. 80-12, at 55:13-18. Ellis and Stipanovic

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each held down one of Wittkamper’s legs. Jenkins Dep., ECF No.

80-13, at 36:11-14. Wittkamper continued to wiggle and move for

a period of time. See Ellis and Jenkins Body Cameras, Sealed Exhs.

11 and 12 to Motion. He then became still for approximately 30

seconds. Id. After he had been still for approximately 30

seconds, which was approximately two minutes after the handcuffs

were placed, Defendants noticed that Wittkamper had become

unresponsive and begun agonal breathing, so Defendants rolled him

on his side into the recovery position. Id.; Jenkins Dep., ECF

No. 80-13, at 84:19-22, 130:1-8; Stely Dep., ECF No. 80-14, at

71:20-24. Defendants checked his pulse at least once. Ellis Dep.,

ECF No. 80-12, at 88:23-89:1-4; Stely Dep., ECF No. 80-14, at

77:17-22; Stipanovic Dep., ECF No. 80-15, at 62:17-20. They

performed two sternum rubs, to which Wittkamper did not respond.1

Stely Dep., ECF No. 80-14, at 94:20–22; Jenkins Dep., ECF No. 80-

13, at 129:3-9. Wittkamper still had a pulse, and the officers

did not perform CPR. Jenkins Dep., ECF No. 80-13, at 86:1-3. The

handcuffs remained on Wittkamper until EMS arrived. Id. at 82:6-

7. EMS had already been called, but when Defendants rolled

Wittkamper onto his side, Defendants radioed EMS to expedite. See

1 The goal of a sternum rub is to elicit a response, indicating that a suspect

is conscious or feels the pressure being applied. Ellis Dep., ECF No. 80-12,

at 57:24–58:4; Jenkins Dep., ECF No. 80-13, at 44:13–45:6.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

Ellis and Jenkins Body Cameras, Sealed Exhs. 11 and 12 to Motion.

EMS arrived at the scene approximately seven minutes after

Wittkamper was handcuffed. Stepanovic Body Camera, Sealed Exh. 7

to Motion. Stely advised EMS that Wittkamper’s last breath was 45

seconds prior to their arrival. Stely Dep., ECF No. 80-14, at

76:2-4. EMS performed CPR on Wittkamper but ultimately declared

him dead at the scene. Id. at 79:2–4; Jenkins Dep., ECF No. 80-

13, at 46:14-20. After Wittkamper was pronounced dead, Defendants

searched the basement. Jenkins Dep., ECF No. 80-13, at 63:5-12.

They did not locate any weapons. Ellis Dep., ECF No. 80-12, at

52:2-5.

The West Virginia Medical Examiner’s Office (“WVMEO”) listed

Wittkamper’s cause of death as morbid obesity with the use of an

electronic restraint device as a contributing condition. See

Sealed Exh. 10 to Motion. The WVMEO listed the manner of death as

homicide. Id.

III. STANDARD OF REVIEW

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant

“bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and admissions

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MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal

quotation marks omitted). “Where the record taken as a whole could

not lead a rational trier of fact to find for the non-moving party,

there is no genuine issue for trial.” Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation

and internal quotation marks omitted).

“When the moving party has carried its burden . . . , its

opponent must do more than simply show that there is some

metaphysical doubt as to the material facts.” Id. at 586

(citations omitted). Rather, the court must ask “whether the

evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail

as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251–52 (1986). At its core, the summary-judgment process

examines whether a trial is needed. See id. at 250.

IV. DISCUSSION

For the reasons discussed below, the Court finds that

Defendants are entitled to qualified immunity with respect to the

federal claims, and the remaining claims fail as a matter of law.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

A. Qualified Immunity

Qualified immunity can be afforded to government officials

for discretionary acts taken in their official capacity. 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) (citation omitted).

The test to determine whether an officer is entitled to qualified

immunity is two-fold: (1) whether, taken in the light most

favorable to the party asserting the injury, the facts alleged

show that the officer’s conduct violated a constitutional right,

and (2) whether that right was clearly established such that a

reasonable person would have known. Siegert v. Gilley, 500 U.S.

226, 232 (1991). The Court can address either prong first.

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

“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)

(citation and internal quotations omitted). “[A] right is only

clearly established if it has a sufficiently clear foundation in

then-existing precedent.” Thurston v. Frye, 99 F.4th 665, 678

MEMORANDUM OPINION AND ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

(4th Cir. 2024) (citations and internal quotation marks 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, 198–99 (2004)

(citation omitted). As the Fourth Circuit has recently explained,

the “crucial question is whether every reasonable officer would

know this action in this situation was unlawful.” Wells v.

Fuentes, 126 F.4th 882, 890 (4th Cir. 2025) (citation omitted and

emphasis modified).

To determine whether a right was clearly established, the

Court looks to cases from the Supreme Court and the Fourth Circuit.

See Thompson v. Commonwealth of Va., 878 F.3d 89, 109 (4th Cir.

2017) (citation omitted). In the absence of on-point, binding

authority, courts should also consider whether “the right was

clearly established based on general constitutional principles or

a consensus of persuasive authority.” Booker v. S.C. Dep’t. of

Corr., 855 F.3d 533, 543 (4th Cir. 2017). The Supreme Court has

warned against “defining a right at too high a level of

generality.” Ray v. Roane, 948 F.3d 222, 229 (4th Cir. 2020)

(citation omitted). It has “stressed the need to ‘identify a case’

or a ‘body of relevant case law’ where ‘an officer acting under

similar circumstances . . . was held to have violated the

[Constitution].” Rambert v. City of Greenville, 107 F.4th 388,

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402 (4th Cir. 2024) (citing District of Columbia v. Wesby, 583

U.S. 48, 64 (2018), and White v. Pauly, 580 U.S. 73, 79 (2017)).

The right must be defined “in light of the specific context of the

case, not as a broad general proposition.” Younger v. Crowder, 79

F.4th 373, 385 (4th Cir. 2023) (citations omitted).

The Fourth Circuit applies a “split burden of proof for the

qualified-immunity defense.” Jones v. Solomon, 90 F.4th 198, 207

(4th Cir. 2024) (citation omitted). The plaintiff bears the burden

of proving the first prong (that the conduct violated a

constitutional right), and the officer bears the burden of proving

the second prong (that the right was not clearly established).

Id.

B. Excessive Force

An officer’s use of force is analyzed under the Fourth

Amendment’s “reasonableness” analysis. Graham v. Conner, 490 U.S.

386, 397 (1989). Force is not excessive if it is objectively

reasonable under the circumstances facing the officer, without

regard to his underlying intent. Id. 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. “[T]he determination

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whether a reasonable person in the officer’s position would have

known that his conduct would violate the right at issue must be

made on the basis of information actually possessed by the officer

at the critical time, . . . or that was then reasonably available

to him, . . . and in light of any exigencies of time and

circumstances that reasonably may have affected the officer’s

perceptions.” Pritchett v. Alford, 973 F.2d 307, 312–13 (4th Cir.

1992) (citations omitted). “At the summary judgment stage, once

we have viewed the evidence in the light most favorable to the

nonmovant, the question of whether the officer’s actions were

reasonable is a question of pure law.” Henry v. Purnell, 652 F.3d

524, 531 (4th Cir. 2011) (citation omitted).

The Court looks to the totality of the circumstances in

assessing whether force was reasonable. See Barnes v. Felix, 605

U.S. 73, 79 (2025). The Supreme Court has identified certain

factors to consider:

(1) the severity of the crime at issue, (2)

whether the suspect poses an immediate threat

to the safety of the officers or others, and

(3) whether he is actively resisting arrest or

attempting to evade arrest by flight.

Graham v. Connor, 490 U.S. 386, 396 (1989) (numbering added). The

Court also considers “the extent of the plaintiff’s injury” and

“any effort made by the officer to temper or to limit the amount

of force[.]” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).

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1. Tasers

a. Clearly Established Right (Prong Two)

The Court will first consider whether the firing of three

taser shots at Wittkamper under the circumstances violated a

clearly established right. After reviewing the record and

conducting its own research, the Court cannot find any case law

establishing that the use of tasers in this situation violated a

clearly established right. Defendants were responding to a 911

call stating that Wittkamper had struck an elderly woman and was

“high.” Wittkamper was completely naked, approximately 400

pounds, and acting erratically, and Defendants believed that he

was under the influence. Wittkamper charged toward Jenkins and

moved toward Ellis, repeatedly refusing their commands to get on

the ground.

Plaintiff cites certain cases to prove a clearly established

right, but the cases are not factually comparable to this one.

For instance, citing Yates v. Terry, he writes that “a nonviolent

misdemeanant who is compliant, is not actively resisting arrest,

and poses no threat to the safety of the officer or others should

not be subjected to unnecessary, gratuitous, and disproportionate

force.” 817 F.3d 877, 888 (4th Cir. 2016) (quotation marks

omitted). Here, of course, Wittkamper’s alleged misdemeanor was

violent, and he was resisting arrest. Objectively, he posed a

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threat to the safety of the officers when he charged them,

approached them, and ignored their commands. Plaintiff also relies

on Martin v. City of Broadview Heights, a nonbinding Sixth Circuit

case, writing that “[a] reasonable officer should have known that

subduing an unarmed, minimally dangerous, and mentally unstable

individual with compressive body weight, head and body strikes,

neck and shin restraints, and torso locks would violate that

person’s clearly established right to be free from excessive

force.” 712 F.3d 951, 963 (6th Cir. 2013). Here, Defendants did

not use body strikes, neck and shin restraints, or torso locks.

Finally, Plaintiff relies on Drummond v. City of Anaheim, a

nonbinding Ninth Circuit case, writing, “The officers allegedly

crushed [the plaintiff] against the ground by pressing their weight

on his neck and torso, and continu[ed] to do so despite his

repeated cries for air, and despite the fact that his hands were

cuffed behind his back and he was offering no resistance. Any

reasonable officer should have known that such conduct constituted

use of excessive force.” 343 F.3d 1052, 1061 (9th Cir. 2003)

(emphasis removed). Again, here, Defendants did not place weight

on Wittkamper’s neck, and Wittkamper was not crying for air. The

situations are not comparable.

Because there is no clearly established right to be free from

taser use by Defendants under these circumstances, the Court finds

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that Defendants are entitled to qualified immunity with respect to

any claim of excessive force stemming from the deployment of their

tasers.

b. Constitutional Violation (Prong One)

In addition, the Court, after assessing Defendants’ actions,

finds that Defendants’ taser use was reasonable and did not violate

the Fourth Amendment. Looking at the first Graham factor (the

severity of the crime at issue), Defendants were responding to a

domestic battery call. The caller reported that Wittkamper had

struck Mrs. Cummings. While domestic battery is a misdemeanor,

the alleged crime here is a violent one. Thus, the first Graham

factor weighs in favor of Defendants.

Turning to the second Graham factor (whether Wittkamper posed

an immediate threat), although Wittkamper was naked and unarmed,

he weighed 400 pounds, charged Jenkins, and moved toward Ellis

multiple times. He refused to follow their commands to get on the

ground. Defendants observed that he appeared to be undergoing a

mental health episode or was possibly under the influence.

Objectively, given that Wittkamper repeatedly moved toward the

officers, it would be reasonable to feel that he posed a threat.

This weighs in favor of Defendants.

As for the third Graham factor (whether Wittkamper was

actively resisting or attempting to flee), Wittkamper was

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resisting Defendants. He approached Defendants despite being told

not to do so, and he ignored multiple commands. The third factor

weighs in favor of Defendants. It is also important to note that,

when viewing the body camera footage, the tasers did not appear to

deter Wittkamper in real time when Defendants were deploying them.

In Rambert v. City of Greenville, the Fourth Circuit found

that use of deadly force against an unarmed suspect, who ignored

commands to get on the ground and rushed at an officer, was

constitutionally reasonable. 107 F.4th 388. Here, the taser use

did not even rise to the use of deadly force. Further, under

Rambert, even if law enforcement thought that the suspect was

undergoing mental health issues, the force used was still

reasonable. Id. at 401 (“[E]ven if Rambert were in mental

distress, he was a potential breaking-and-entering suspect who

charged at Johnson at full speed while yelling and ignoring

Johnson’s commands to get on the ground, ultimately reaching a

proximity where he might have been able to grapple with Johnson

and seize his gun. And Rambert continued to advance aggressively

even after being shot by Johnson. Whether or not he was

experiencing the effects of mental illness, Rambert posed an

imminent threat to Johnson.”). For all of these reasons,

Defendants’ taser use was constitutionally reasonable, and

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Defendants are additionally entitled to qualified immunity for

their taser use.

2. Prone Position

a. Clearly Established Right (Prong Two)

Now, the Court will assess whether it was clearly established

that it violated the Fourth Amendment to hold Wittkamper in the

prone position as Defendants did here. Again, Defendants were

responding to a 911 call stating that Wittkamper had struck an

elderly woman and was “high.” Wittkamper was approximately 400

pounds, completely naked, and acting erratically, and Defendants

believed that he was under the influence. Wittkamper charged

toward Jenkins and moved toward Ellis, repeatedly refusing

commands to get on the ground. After Defendants finally took him

to the ground, he was in the prone position for approximately 45

seconds while, due to his size, Defendants placed two sets of

handcuffs on him. Wittkamper was moving his legs. Jenkins and

Stely each had a hand on his back. Ellis and Stipanovic each held

down one of Wittkamper’s legs. Wittkamper continued to wiggle and

move for a period of time. He was then still for approximately 30

seconds. After being still for approximately 30 seconds, which

was approximately two minutes after the handcuffs were placed,

Defendants noticed that Wittkamper had become unresponsive and

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begun agonal breathing, so Defendants rolled him on his side into

the recovery position.

Again, after reviewing the record and conducting its own

research, the Court has been unable to locate any cases from the

Fourth Circuit or Supreme Court that show that at the time of the

incident, it was clearly established that keeping Wittkamper in

the prone position as Defendants did was a violation of the Fourth

Amendment. To argue that Wittkamper had a right to be free from

Defendants’ force after the danger he posed had passed is “too

general” a description to constitute a clearly established right.

See Rambert, 107 F.4th at 402. Accordingly, Defendants are

entitled to qualified immunity with respect to any claim of

excessive force stemming from placing Wittkamper in the prone

position.

b. Constitutional Violation (Prong One)

In addition, the Court, after assessing Defendants’ actions,

finds that Defendants’ placement of Wittkamper in the prone

position for two minutes and 45 seconds, and their actions during

that time, were reasonable and did not violate the Fourth

Amendment. After Defendants brought Wittkamper to the ground in

the prone position, they worked to place two sets of handcuffs on

him due to his size. Approximately 45 seconds passed while they

placed the handcuffs. Wittkamper was moving his legs. Jenkins

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and Stely each had a hand on his back. Ellis and Stipanovic each

held down one of Wittkamper’s legs. Wittkamper continued to wiggle

and move for a period of time. He was still for approximately 30

seconds, which was approximately two minutes after the handcuffs

were placed, when Defendants rolled him on his side into the

recovery position. Given that Wittkamper had refused Defendants’

commands up until that point, it would be reasonable for Defendants

to believe that he was continuing to resist by moving. Again, his

entire body was still for only 30 seconds, when they moved him

into the recovery position. This all constitutes a reasonable use

of force, and Defendants are additionally entitled to qualified

immunity for this reason with respect to any claim of excessive

force while Wittkamper was in the prone position.

C. Deliberate Indifference

The Supreme Court has held that a pretrial detainee may prove

a Fourteenth Amendment due process violation if he can show a

“deliberate indifference to serious medical needs[.]” Martin v.

Gentile, 849 F.2d 863, 870-71 (4th Cir. 1988) (citations omitted).

“Under this standard, a plaintiff must prove: (1) that the detainee

had an objectively serious medical need; and (2) that the official

subjectively knew of the need and disregarded it.” Doe 4 by &

through Lopez v. Shenandoah Valley Juv. Ctr. Comm’n, 985 F.3d 327,

340 (4th Cir. 2021) (citations omitted). The Fourth Circuit has

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held that a law enforcement officer’s calling for medical aid

rather than rendering it himself does not violate a clearly

established right. King v. Riley, 76 F.4th 259, 269 (4th Cir.

2023) (finding officers entitled to qualified immunity on

deliberate indifference claim). Rather, “good-faith efforts to

remedy the plaintiff’s problems will prevent finding deliberate

indifference, absent extraordinary circumstances.” Koon v. North

Carolina, 50 F.4th 398, 407 (4th Cir. 2022).

Here, after Wittkamper had been in the prone position for

approximately 2 minutes and 45 seconds, and for only 2 minutes

after the handcuffs were placed, Defendants noticed Wittkamper’s

agonal breathing and placed him on his side. Defendants did not

perform CPR. EMS was already on its way, however, and Defendants

expedited the EMS request when they turned Wittkamper on his side.

The law is clear that Defendants had no Fourteenth Amendment

obligation to provide CPR to Wittkamper. It is sufficient that

they contacted EMS and then called to expedite EMS. EMS arrived

only seven minutes after Wittkamper was handcuffed. Simply put,

it was not clearly established that Defendants were required to

provide CPR to Wittkamper. To the contrary, it is not a Fourteenth

Amendment violation. The Court, therefore, finds that Defendants

are entitled to qualified immunity with respect to the deliberate

indifference claim.

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D. Bystander Liability

“The concept of bystander liability is premised on a law

officer’s duty to uphold the law and protect the public from

illegal acts, regardless of who commits them.” Randall v. Prince

George’s Cnty., 302 F.3d 188, 203 (4th. Cir. 2002). To succeed on

a section 1983 claim for bystander liability, a plaintiff must

show that an officer “(1) knows that a fellow officer is violating

an individual’s constitutional rights; (2) has a reasonable

opportunity to prevent the harm; and (3) chooses not to act.” Id.

at 204. Here, as discussed, Defendants are entitled to qualified

immunity with respect to the claims of excessive force and

deliberate indifference. The Court has found that Defendants’

conduct was reasonable. Accordingly, Plaintiff’s claim of

bystander liability must fail, and Defendants are entitled to

summary judgment.

E. Battery

Under West Virginia law, employees of a political subdivision

generally are immune from liability unless one of the following

applies:

(1) His or her acts or omissions were

manifestly outside the scope of employment or

official responsibilities;

(2) His or her acts or omissions were with

malicious purpose, in bad faith, or in a

wanton or reckless manner; or

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(3) Liability is expressly imposed upon the

employee by a provision of this code.

W. Va. Code § 29-12A-5(b). The Supreme Court of Appeals of West

Virginia has held that in the context of this statute, the terms

“willful,” “wanton,” and “reckless” mean that

the actor has intentionally done an act of an

unreasonable character in disregard of a risk

known to him or so obvious that he must be

taken to have been aware of it, and so great

as to make it highly probable that harm would

follow. It usually is accompanied by a

conscious indifference to the consequences,

amounting almost to willingness that they

shall follow; and it has been said that this

is indispensable.

Holsten v. Massey, 490 S.E.2d 864, 877 (W. Va. 1997) (citation

omitted). Here, after reviewing the body camera footage and all

other evidence submitted, the Court finds that Defendants’ actions

were within the scope of their employment, and their actions were

not taken with malicious purpose, in bad faith, or in a wanton or

reckless manner. Accordingly, they are entitled to immunity with

respect to the battery claim.

In the alternative, the battery claim fails because it abated

upon Wittkamper’s death. The West Virginia Code provides,

In addition to the causes of action which

survive at common law, causes of action for

injuries to property, real or personal,

injuries to the person and not resulting in

death, deceit or fraud, or any violations of

§ 46A-1-101 et. seq. of this code, also

MEMORANDUM OPINION AND ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

survive; and such actions may be brought

notwithstanding the death of the person

entitled to recover or the death of the person

liable.

W. Va. Code § 55-7-8a(a). This Court has found that under W. Va.

Code § 55-7-8a, “only injuries not resulting in death survive.”

Hoover v. Trent, No. 1:07cv47, 2008 WL 2992987, at *5 (N.D.W. Va.

Aug. 1, 2008) (Keeley, J.) (finding that the plaintiff’s battery

claim abated). The United States District Court for the Southern

District of West Virginia has also found that a battery claim

abates upon death under W. Va. Code § 55-7-8a(a). Myers v. City

of Charleston, No. 2:19-cv-00757, 2020 WL 4195005, at *12 (S.D.W.

Va. July 21, 2020) (Johnston, J.) (“Plaintiffs’ claim fails because

the claim of assault and battery does not survive Adam’s

death[.]”); Spry v. West Virginia, No. 2:16-cv-01785, 2017 WL

1483370, at *9 (S.D.W. Va. Apr. 24, 2017) (Johnston, J.) (“The

battery claim brought by Mr. Spry’s estate cannot proceed because

West Virginia claims for battery do not survive death.”). Here

too, Plaintiff’s claim for battery abated upon Wittkamper’s death.

Finally, in another alternative, the battery claim fails on

the merits. 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

MEMORANDUM OPINION AND ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

the person of the other directly or indirectly results.” Crawford

v. Daniels, No. 2:23-CV-00585, 2024 WL 1895105, at *7, (S.D.W. Va.

Apr. 30, 2024) (quoting 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 that

precludes a battery claim.” Weigle v. Pifer, 139 F. Supp. 3d 760,

776 (S.D.W. Va. 2015). The Court has already found that

Defendants’ actions were reasonable. Accordingly, the battery

claim fails on the merits. For three different reasons, Defendants

are entitled to summary judgment on the battery claim.

F. Outrage or Intentional Infliction of Emotional Distress

First, for the same reasons discussed above with respect to

the battery claim, Defendants are entitled to immunity for the

claim of IIED under W. Va. Code § 29-12A-5(b). In the alternative,

the IIED claim fails because it abated upon Wittkamper’s death.

Again, as discussed, this Court has found that under W. Va. Code

§ 55-7-8a, “only injuries not resulting in death survive.” Hoover,

2008 WL 2992987, at *5 (finding that the plaintiff’s IIED claims

abated under West Virginia law). The Southern District has also

found that an IIED claim abates upon death. Myers, 2020 WL

4195005, at *13 (same). Here too, the IIED claim abated upon

Wittkamper’s death, so the IIED claim fails as a matter of law.

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MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

Even if the IIED claim did not abate and even if Defendants

were not immune, the IIED claim would fail on the merits. To

prevail on an IIED claim, a plaintiff must establish the following:

(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). The conduct must be “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious and utterly intolerable in a

civilized community.” Harless v. First Nat. Bank in Fairmont, 289

S.E.2d 692, 705 (W. Va. 1982). Here, the Court has already found

that Defendants’ conduct was reasonable. Defendants’ conduct

simply does not rise to the high level required to prove a claim

of IIED. Accordingly, the IIED claim fails on the merits. For

three different reasons, Defendants are entitled to summary

judgment with respect to the IIED claim.

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MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

G. Wrongful Death

Wrongful death claims are derivative by nature. See Syl. Pt.

4, Davis v. Foley, 457 S.E.2d 532 (W. Va. 1995) (“The damages in

a wrongful death action arise out of the death of the decedent[,]

thereby making a wrongful death action a derivative claim.”). The

West Virginia Code provides,

Whenever the death of a person shall be caused

by wrongful act, neglect, or default, and the

act, neglect or default is such as would (if

death had not ensued) have entitled the party

injured to maintain an action to recover

damages in respect thereof, then, and in every

such case, the person who, or the corporation

which, would have been liable if death had not

ensued, shall be liable to an action for

damages, notwithstanding the death of the

person injured, and although the death shall

have been caused under such circumstances as

amount in law to murder in the first or second

degree, or manslaughter.

W. Va. Code § 55-7-5. “To maintain an action for wrongful death,

a beneficiary must show two specific elements: that a person has

died, and that the death was caused by a wrongful act, neglect or

default.” Bradshaw v. Soulsby, 558 S.E.2d 681, 687 (W. Va. 2001).

Here, the Court has granted summary judgment with respect to all

remaining claims. The derivative wrongful death claim, therefore,

must also fail. Defendants are entitled to summary judgment.

V. CONCLUSION

For the above reasons, the Court ORDERS as follows:

WITTKAMPER V. STIPANOVIC ET AL. 3:23-CV-177

MEMORANDUM OPINION AND ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]

e The motion for summary judgment is GRANTED in

its entirety;

e This action is DISMISSED and STRICKEN from the

Court’s active docket;

e Any remaining pending motions shall be

TERMINATED [ECF Nos. 110, 111, 112, 113]; and

e The Clerk is DIRECTED to enter a separate

judgment order.

It is so ORDERED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record.

DATED: June 22, 2026

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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