IRENE C. BERGER, District Judge.
The Court has reviewed Defendants' Motion for Partial Summary Judgment Against Harry Deakins (Document 179), Defendants' Motion for Summary Judgment Against Kay Deakins (Document 181), attached exhibits, memoranda in support and in opposition, and the replies. By Standing Order (Document 4) entered on December 21, 2010, this action was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On April 22, 2013, the Magistrate Judge submitted his Proposed Findings and Recommendation ("PF & R") (Document 224), wherein he recommends that the Court grant in part and deny in part Defendants' Motion for Partial Summary Judgment Against Harry Deakins and grant in part and deny in part Defendants' Motion for Summary Judgment Against Kay Deakins.
Magistrate Judge VanDervort's PF & R provides a detailed account of the parties' previous and current motions. The Court now incorporates by reference those facts and procedural history. To provide context for the ruling herein, the Court provides the following brief summary.
On December 21, 2010, Plaintiffs, Harry E. Deakins, Sr. ("Mr. Deakins") and Kay F. Deakins ("Mrs. Deakins") filed their Complaint in the United States District Court for the Southern District of West Virginia at Bluefield. (Document 1.) On December 28, 2010, Plaintiffs filed their First Amended Complaint (Document 7) and then on January 3, 2011, they filed their Second Amended Complaint (Document 11). On August 18, 2011, Plaintiffs filed their Motion for Leave to File Third Amended Complaint (Document 60) and memorandum in support (Document 61). By Order entered January 25, 2012, 2012 WL 242859, the Court granted Plaintiffs' motion. (Document 88.) Plaintiffs filed their Third Amended Complaint on the same day. ("Third Am. Compl") (Document 90.)
In their Third Amended Complaint, Plaintiffs name the following Defendants: (1) T.S. Pack, Superintendent of the West Virginia State Police; (2) J.C. Long, West Virginia State Trooper; (3) R.J. Jackson, West Virginia State Trooper; (4) J.R. Baker, West Virginia State Trooper; (5) C.M. Wade, West Virginia State Trooper; (6) P.H. Shrewsbury, West Virginia State Trooper; (7) D.B. Rogers, West Virginia State Trooper and Assistant Detachment Commander; (8) D.W. Miller, West Virginia State Trooper; (9) Robin Marvin, West Virginia State Police Telecommunicator; and (10) John and Jane Does 1-7. (Id. at 3-4.)
Plaintiffs allege that they both requested medical attention upon their arrival at the Princeton State Police Detachment. (Id.) Subsequently, Mr. Deakins alleges
Plaintiffs contend that Defendants' aforementioned actions constitute an unreasonable search and seizure, excessive force, assault and battery and false arrest of Mrs. Deakins. (Id. at 2.) As a result of Defendants' conduct, Plaintiffs allege that they suffered physical injuries as well as humiliation, shame, degradation, embarrassment and monetary loss. (Id. at 14.) Plaintiffs assert that Defendants' actions violated their rights under the Fourth, Fifth and Fourteenth Amendments as well as the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, and 1988, West Virginia common law, and Article III, Sections 1, 6 and 10 of the Constitution of the State of West Virginia. (Id. at 1.)
On November 5, 2012, Defendants Pack, Long, Jackson, Baker, Wade, Shrewsbury, and Rogers filed their Motion for Partial, Summary Judgment Against Harry Deakins (Document 179), attached exhibits
On November 19, 2012, Mr. Deakins filed his Response in Opposition (Document 186) and attached exhibits.
On November 27, 2012, Defendants filed their reply to Harry Deakins' response in opposition and attached exhibit.
Also on November 5, 2012, Defendants Pack, Long, Jackson, Baker, Wade, Shrewsbury, and Rogers filed their Motion for Summary Judgment Against Kay Deakins (Document 181), attached exhibits, and a memorandum in support (Document 182).
On December 19, 2012, Plaintiff Kay Deakins filed her response in opposition to Defendants' Motion for Summary Judgment (Document 189)
On December 28, 2012, Defendants filed their Reply to Plaintiff Kay Deakins' Response in Opposition (Document 190) and attached exhibit.
On April 22, 2013 the Magistrate Judge submitted his PF & R (Document 224.) On May 8, 2013, Defendants timely filed their objections to the same. (Document 235.) Plaintiffs did not file any objections and although the Court granted Plaintiffs' motion to file a response to Defendants' objections (Document 259), they did not do so.
This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, this Court need not
The well-established standard in consideration of a motion for summary judgment is that "[t]he court shall grant summary judgment if the movant shows that 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) (emphasis added); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Material facts are those necessary to establish the elements of a party's cause of action." Rawls v. Associated Materials, LLC., No. 1:10-cv-01272, 2012 WL 3852875, at *2 (S.D.W.Va. Sept. 5, 2012) (Faber, J.) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A "genuine" dispute concerning a "material" fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. (Id.) "Even if there is no dispute as to the evidentiary facts, summary judgment is not appropriate when the parties dispute ultimate factual conclusions." Rawls, 2012 WL 3852875 at *2 (citing Overstreet v. Kentucky Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir.1991)(emphasis added)).
"If the moving party meets its burden under Rule 56(a), then the non-moving party must set forth specific facts that would be admissible in evidence that demonstrate the existence of a genuine issue of fact for trial." Rawls, 2012 WL 3852875 at *2 (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548). The non-moving party must offer some "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. In other words, "the nonmoving party must come forward with more than `mere speculation or the building of one inference upon another' to resist dismissal of the action." Perry v. Kappos, 489 Fed.Appx. 637, 640 (4th Cir.2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985)).
In considering a motion for summary judgment, the Court will not "weigh the evidence and determine the truth of the matter." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If factual issues exist that can only be resolved by a trier of fact because they may reasonably be resolved in favor of either party, summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
In response to Defendant's motion, Mr. Deakins argues that all eight of Defendants'
Magistrate Judge VanDervort correctly found that Mr. Deakins' request to strike Defendants' Exhibits should be denied because the Court may consider them pursuant to Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure. (PF & R at 752.) Rule 56(c)(1)(A) provides that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials." Fed. R.Civ.P. 56(c)(1)(A). The Magistrate Judge stressed that "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2) (emphasis added.) In other words, documents submitted in support of summary judgment are no longer required to be authenticated. (PF & R at 752) (citing Akers v. Beal Bank, 845 F.Supp.2d 238, 243 (D.D.C.2012), aff'd, 2012 WL 4774676 (D.C.Cir.2012)).
First, he considered Defendants' Exhibit A, a copy of the Grand Jury Indictment, Plea Agreement, and Sentencing Order in Commonwealth of Virginia v. Harry Edwards Deakins, Case Nos. 10-156-00; 156-01; 156-02 (Cir. Ct. Tazewell Co., April 28, 2011). (Document 179-1.) He noted that the documents are stamped "a copy teste" and are signed by the Deputy Clerk of Circuit Court of Tazewell County, Virginia. (PF & R at 752) (citing Document 179-1 at 2, 5, and 9.) The Magistrate explained that in Virginia a document stamped "a copy teste" is a certified copy verifying that the instrument is a genuine copy. (PF & R at 752.)
The Magistrate Judge then considered Defendants' Exhibits B, F, G, and H. (PF & R at 753-54.) Defendants' Exhibit B is a copy of the Arrest Warrants for Harry Deakins issued by the Tazewell County General District Court dated February 3, 2010 (Document 179-2 at 2-3) and a copy of a "Warrant for Arrest — For Fugitive from Justice" issued by the Magistrate Court of Mercer County on April 22, 2010. (Id. at 4-5.) Exhibit F consists of a copy of the "Criminal Case History" and "Guilty or No Contest Plea" in State v. Harry Edward Deakins, Case No. 10-M-1236, filed in the Magistrate Court of Mercer
Next, the Magistrate Judge reviewed Exhibits C, D, and E and found that they are also properly considered on a motion for summary judgment. (PF & R at 753.) Exhibit C is a copy of "Defendants' Responses to Plaintiffs' Second Set of interrogatories, Second Request for Production of Documents and Requests for Admissions." (Document 179-3.) Exhibit D is a copy of "Plaintiff Harry E. Deakins, Sr. Second Supplemental Responses to Defendants' Second Set of Interrogatories, Document Requests and Requests for Admissions." (Document 179-4.) Exhibit E is a copy of "Plaintiff Harry E. Deakins, Sr. Amended Supplemental Responses to Defendants First Set of Interrogatories, Requests for Admissions and Requests for Production." (Document 179-5.) The Magistrate Judge found that the Court may consider Exhibit C (Document 179-3) pursuant to Rule 56(c)(1)(A), which provides that a party may submit declarations, admissions or interrogatory answers in support of a motion for summary judgment. (PF & R at 753.) He also found that the Court may consider Exhibits D (Document 179-4) and E (Document 179-5) because they are Mr. Deakins' own responses to Defendants' written discovery requests, and thus, are authenticated. (Id.) (citing Rupe v. Cate, 2011 WL 4889211 (E.D.Cal. Oct. 13, 2011) ("Exhibits F and I have been authenticated because they are in Plaintiff's own writings."))
Finally, the Magistrate Judge reviewed Exhibit I, a copy of the transcripts from the "Video Deposition of Harry E. Deakins, Sr." (Document 179-9). He found that the Court may consider it because Rule 56(c)(1)(A) provides that a party may submit depositions in support of a motion for summary judgment. (PF & R at 753-54.) Moreover, he noted that the deposition may be authenticated based upon the "Reporter's Certificate." (PF & R at 754) (citing Document 179-9 at 12-13.)
Based upon the foregoing, the Magistrate Judge found that all of Defendants' Exhibits (A, B, C, D, E, F, G, H, and I) could be considered in support of their motion for summary judgment. (PF & R at 752-54.) Accordingly, he found that Plaintiff Harry Deakins' request to strike the exhibits should be denied. (Id. at 721.)
In their motion, Defendants argue they are entitled to summary judgment as to
In response, Mr. Deakins asserts that Defendants' arguments are irrelevant since he did not "sue for unlawful, wrongful, and/or false arrest." (Document 186 at 2.) Rather, Mr. Deakins alleges that Defendants unlawfully entered his home to effectuate his arrest in violation of the Fourth Amendment. (Id. at 8-9.) Moreover, he contends no exigent circumstances existed at the time of his arrest to justify Defendants entering his home without a search warrant. (Id. at 8-9, 14.)
The Magistrate Judge correctly found that Defendants' Partial Motion for Summary Judgment should be granted to the extent Mr. Deakins is challenging the validity of his arrest. (PF & R at 754-55.) He noted that Mr. Deakins appears to be challenging the lawfulness of his arrest on April 22, 2010, by implying that alleged constitutional violations that occurred during the course of his arrest render his convictions invalid. (PF & R at 755.)
Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. The Magistrate Judge noted that there is no evidence that Mr. Deakins' criminal convictions have been invalidated. (PF & R at 755.)
In their motion, Defendants argue that they are entitled to summary judgment as to Mr. Deakins' claim of unlawful seizure of two computers and a digital camera from his residence. (Document 180 at 9.) Defendants explain that upon entering the property, the Defendant Troopers noticed surveillance equipment, and once inside the home, Defendant Long saw Mr. Deakins pointing a camera at him. (Id. at 9) (citing Document 179-3 at 4, 25.)
In response, Mr. Deakins argues that Defendants' seizure was unlawful because the electronics were "outside of our `wingspan' and/or `grabbable' area [incidental to arrest]" and there were no surveillance cameras inside the home which could have contained evidence of the incident. (Document 186 at 14-15.) Mr. Deakins further asserts that Defendants did not have a search warrant, there were no exigent circumstances to justify a warrantless search and seizure, and "there was no incriminating evidence of a crime ... that was `immediately apparent' at the time of said seizure." (Id. at 14-17.) Therefore, Mr. Deakins asserts that Defendants violated his Fourth Amendment right to be free from unreasonable searches and seizures. (Id. at 16.)
In reply, Defendants stress that Mr. Deakins does not dispute the fact that he was pointing a camera at the Defendant Troopers when they entered his home. (Document 188 at 13.) They argue that the Defendant Troopers' belief that the computers may have been connected to the surveillance system was reasonable. (Id.) Therefore, they assert that the seizure of the electronics was appropriate and if not, they are entitled to qualified immunity. (Id. at 13-14.)
Before considering the parties' arguments, the Magistrate Judge set forth applicable case law concerning qualified immunity for government officials and reasonable searches and seizures under the Fourth Amendment of the United States Constitution. (PF & R at 756-58.) First, he explained that in determining whether a government official is entitled to qualified immunity, a Court should consider "(1) whether the facts viewed in the light most favorable to the Plaintiff establish a deprivation of an actual constitutional right; and (2) whether the right was clearly established at the time of the purported violation." (Id. at 24) (citing Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565
One of the established exceptions to the warrant requirement is known as the plain view doctrine. (Id. at 24-25) (citing Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). The Magistrate Judge explained that "[a]n officer may seize incriminating evidence in plain view without a warrant [] as long as the officer arrives in the place where the evidence is plainly viewed without violating the Fourth Amendment and the incriminating nature of the evidence is immediately apparent." (Id.) (citing Horton, 496 U.S. at 136, 110 S.Ct. 2301; United States v. Jackson, 131 F.3d 1105, 1108 (4th Cir.1997)). He noted that the incriminating character of an item is "immediately apparent" if an officer has probable cause to believe that it is associated with criminal activity. (Id. at 25.) He explained that probable cause requires "[a] `practical, nontechnical' probability that incriminating evidence is involved." (Id.) (citing Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (citation omitted)).
Upon review of the record, the Magistrate Judge found that Defendants are not entitled to qualified immunity for the seizure of Mr. Deakins' two personal computers. (Id. at 26-27.) He considered the totality of the circumstances and found that Defendants did not have probable cause to believe that the computers contained evidence of the attack against them. (Id. at 26.) He outlined the basic facts as follows: (1) upon entering Mr. Deakins' property, Defendants noticed surveillance cameras; (2) once inside the home, Defendants contend that they were attacked by Mr. Deakins, Mrs. Deakins, and Anthony Deakins; and (3) Defendants seized the computers based upon their belief that they were connected to the surveillance cameras and contained evidence of the attack against them. (Id.)
Next, the Magistrate Judge found that Defendants are entitled to qualified immunity for the seizure of the digital camera because they had probable cause to believe it contained evidence of a crime. (Id. at 27-28.) He noted that upon entering the residence, Defendant Long saw Mr. Deakins pointing a camera in his direction and soon thereafter Defendants were attacked by Mr. Deakins, Mrs. Deakins, and Anthony Deakins. (Id.) (citing Document 179-3 at 4.) Defendants state that they seized the camera because they believed it may have contained evidence of the attack. (Id.) The Magistrate Judge reiterated that an officer may seize evidence in plain view without a warrant if he lawfully occupies the place from which the item is plainly viewed and the incriminating character of the item is immediately apparent. (Id. at 27.) Based upon the foregoing, he found that Defendants are entitled to qualified immunity for the warrantless seizure of Mr. Deakins' digital camera. (Id. at 27-28.)
In their Partial Motion for Summary Judgment, Defendants argue that there is no evidence to support Mr. Deakins' claims of bystander liability against Defendants Rogers and Shrewsbury because Mr. Deakins concedes that he does not know: (1) where Defendants Rogers and Shrewsbury were at the time excessive force was allegedly used against him at the detachment; (2) whether they were aware that such force was being used against him; or (3) whether they had the opportunity to stop it. (Document 180 at 12-13.) In response, Mr. Deakins states that his claims against Defendants Rogers and Shrewsbury are for conspiracy pursuant to 42 U.S.C. § 1983, not for "bystander liability." (Document 186 at 11.12.) In reply, Defendants argue that there is no evidence to support such a claim. (Document 188 at 9-12.)
The Magistrate Judge correctly set forth the applicable law concerning civil conspiracies under Section 1983. (PF & R 758-60.) He noted that in order to establish such a claim, a plaintiff must present evidence that "the defendants conspired or acted jointly or in concert and that some overt act was done in furtherance of the conspiracy, which resulted in plaintiff being deprived of the constitutional right." (Id. at 726) (quoting Hafner v. Brown, 983 F.2d 570, 577 (4th Cir.1992)). He stressed that to survive a motion for summary judgment, a plaintiff must provide evidence that "at least, reasonably lead[s] to the inference that Defendants positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan." (Id.) (quoting Horton v. Dobbs, 2011 WL 3606369, at *29 (N.D.W.Va. July 11, 2011.))
Upon a review of the record, the Magistrate Judge found that there is no evidence that Defendants Rogers or Shrewsbury conspired to allow Defendants Long and Jackson to use excessive force upon Mr. Deakins or personally observed a violation
Based upon the lack of evidence, the Magistrate Judge found that Mr. Deakins failed to state a cognizable claim for conspiracy. (PF & R at 760) ("Mere conclusory allegations of conspiracy do not demonstrate the `meeting of the minds' element and therefore, fails to state a cognizable claim.") (quoting Brown v. Angelone, 938 F.Supp. 340, 346 (W.D.Va.1996)). Accordingly, the Magistrate Judge recommended that summary judgment be granted to Defendants Rogers and Shrewsbury as to Mr. Deakins' civil conspiracy claim. (Id.)
In their motion, Defendants argue that there is no evidence to support any of the claims against Defendant Pack, and thus, he is entitled to summary judgment. (Document 180 at 7-9.) In support, Defendants stress that there is no evidence that: (1) the Defendant Troopers were negligently trained or supervised; (2) Defendant Pack had any personal involvement in the April 22, 2010 incident; or (3) that Defendant Pack had reason to know that such an incident would occur. (Id. at 8-9.) Mr. Deakins' response does not address Defendant Pack's request that he be granted summary judgment. (Document 186). In reply, Defendants argue that Mr. Deakins has conceded that summary judgment should be granted as to Defendant Pack. (Document 188 at 3.)
The Magistrate Judge correctly found that "[b]ecause vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." (PF & R at 760) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). He noted that in order to hold a supervisory defendant liable under Section 1983, a plaintiff must show the following:
(PF & R at 761) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994)).
Based upon a review of the record, he found that there is "no evidence indicating that Defendant Pack was aware of an unreasonable risk of harm or misconduct by Defendant Troopers and failed to take corrective action." (PF & R at 761.) Moreover, he stressed that there is no evidence that Defendant Pack: (1) was aware of misconduct by any Defendant Troopers; (2) failed to adequately train or supervise them; or (3) had any personal involvement in the alleged incident occurring on April 22, 2010. (Id.) Because Mr. Deakins has failed to establish the requisite elements of his claim against Defendant Pack, the Magistrate Judge recommended that Defendants' motion for summary judgment be granted as to Defendant Pack. (Id.)
In response to Defendants' Motion for Summary Judgment, Mrs. Deakins moves to strike Defendants' Exhibits A, B, F, G, H, I & J. (Document 180 at 7.) In support, she argues that the Exhibits have not been authenticated, constitute hearsay, are irrelevant and inadmissible, and are not proper summary judgment evidence. (Id.)
First, the Magistrate Judge reiterated the applicable law concerning proper summary judgment evidence pursuant to Rule 56(c)(1)(A). Fed.R.Civ.P. 56(c)(1)(A); (see supra Part III, A, i, a.) Then, he considered Mrs. Deakins' argument that Defendants' Exhibits A, B, F, G, H, I and J are not properly authenticated. (PF & R at 762.) He noted that Mr. Deakins made the same objections, and therefore, relied on his reasoning above (see supra Part III, A, i, a) in finding that "Exhibits A, B, F, G, and ¶ are properly authenticated and appropriate for consideration concerning Defendants' Motion for Summary Judgment." (PR & R at 762)
Next, he considered Mrs. Deakins' argument that Defendants' Exhibits are irrelevant and inadmissible. (Id.) He recognized that Rule 404(b)(1) of the Federal Rules of Evidence provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed.R.Evid. 404(b)(1). However, "[t]his evidence may be admissible for another purpose, such as providing motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b)(2). Based upon the foregoing, the Magistrate Judge determined that Defendants' Exhibits A and B are relevant and can be admissible evidence. (PF & R at 762-63.) Exhibit A is a copy of the Grand Jury Indictment, Plea
The Magistrate Judge then considered Exhibits F (Document 181-6), G (Document 181-7), and H (Document 181-8). Exhibit F is a copy of the "Criminal Case History" and "Guilty or No Contest Plea" in State v. Harry Edward Deakins, Case No. 10-M-1236 filed in the Magistrate Court of Mercer County, West Virginia. (Document 181-6.) Exhibit G is a copy of the "Indictment for: Attempt to Disarm a Police Officer, Battery on a Police Officer, and Brandishing a Deadly Weapon" and an Order Accepting Plea of Guilty filed in State v. Anthony Todd Deakins, Case No. 10-F-216 (Cir. Ct. Mercer County). (Document 181-7.) Exhibit H is a copy of the "Criminal Case History" in State v. Kay F. Deakins, Case Nos. 10-M-1238, 1239, 1240, 1241, filed in the Magistrate Court of Mercer County, West Virginia. (Document 181-8.) Defendants argue that the above documents are relevant and admissible because when the Defendant Troopers entered the Deakins' residence on April 22, 2010, to execute the arrest warrant for Mr. Deakins, they were attacked by Mr. Deakins, Mrs. Deakins, and Anthony Deakins. (Document 190 at 6-8.) Moreover, Defendants contend that Mrs. Deakins' unlawful arrest claim is precluded by the holding in Heck due to her convictions outlined in Exhibit H. (See, id. at 7, 10-11) (citing Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)). Based upon the foregoing, the Magistrate Judge found that the documents contained in Exhibits F (Document 181-6), G (Document 181-7), and H (Document 181-8) are relevant and admissible, and thus, may be considered on a motion for summary judgment. (PF & R at 763.)
Finally, the Magistrate Judge considered Defendants' Exhibits I and J and found that they may be considered on a motion for summary judgment. (PF & R at 763-64.) Exhibits I (Document 181-9) and J (Document 181-10) are copies of Mr. and Mrs. Deakins' respective video depositions. The Magistrate Judge noted that deposition testimony is proper evidence to support a motion for summary judgment. (PF & R at 763) (citing Fed.R.Civ.P. 56(c)(1)(A)). He also found that the depositions contain relevant and admissible evidence and may be authenticated based upon the "Reporter's Certificate."
In their Motion, Defendants argue that Mrs. Deakins' refusal to answer questions
In response, Mrs. Deakins argues that because Defendants failed to move to compel her deposition answers they have waived their right to challenge her invocation of the Fifth Amendment privilege. (Document 189 at 16.) Also, she disagrees with Defendants' assertion that she did not answer "a single question at her deposition." (Id.)
In reply, Defendants emphasize that because Mrs. Deakins invoked her right to remain silent, she is prevented from presenting evidence in opposition, and therefore, cannot withstand Defendant's motion for summary judgment. (Document 190 at 17-18.) Defendants contend that because Mrs. Deakins cannot offer evidence in opposition to their motion, "the evidence in support of [their] [motion for summary judgment] is clear." (Id. at 9.)
First, the Magistrate Judge set forth the applicable case law concerning the Fifth Amendment of the United States Constitution, specifically the right to remain silent. (PF & R at 764-66.) The Fifth Amendment provides in pertinent part that "[n]o person ... shall be compelled in any criminal case to be a witness against himself...." (U.S. Const. amend. V.) The Magistrate Judge correctly noted that the Fifth Amendment right to remain silent may also be asserted in a civil case, in response to a deposition question, if the answer might incriminate the deponent in a future criminal proceeding. (PF & R at 764) (citing Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973.)) In this case, Defendants concede that Mrs. Deakins had the right to remain silent. (Document 182 at 5.)
Then, he explained the possible ramifications of asserting one's Fifth Amendment privilege. (PF & R at 764-66.) He noted that a court may not make a litigant's assertion of her Fifth Amendment privilege "costly" by, for example, forcing her to choose between the Fifth Amendment privilege and dropping her lawsuit or by requiring her to pursue her lawsuit and thereby exposing herself to criminal liability. (Id. at 733) (citing Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1087-88 (5th Cir.1979)). However, the Magistrate Judge recognized that a "plaintiff who retreats under the cloak of the Fifth Amendment cannot hope to gain an unequal advantage against the party he [or she] has chosen to sue. To hold otherwise would, ... enable plaintiff to use his [or her] Fifth Amendment shield as a sword." (PF & R at 766) (quoting Wehling, 608 F.2d at 1088) (citations omitted.) He explained that courts should consider both a plaintiff's interest in her rights under the Fifth Amendment and also any disadvantage suffered by the opposing party. (PF & R at 766) (citing Wehling, 608 F.2d at 1088; Serafino v. Hasbro, Inc., 82 F.3d 515, 518 (1st Cir.1996) ("while a trial court should strive to accommodate a party's Fifth Amendment interest ... it must also ensure that the opposing party is not unduly disadvantaged.")). He noted that when a plaintiff properly invokes her right to remain silent under the Fifth Amendment, "dismissal is appropriate only where other, less burdensome, remedies would be ineffective means of preventing unfairness to defendant." (PF & R at 766) (quoting Wehling, 608 F.2d at 1088.) Therefore, he concluded that "the Fifth Amendment privilege should be upheld unless defendants have substantial need for particular information and there is no less burdensome effective means of obtaining it." (PF & R at 766) (quoting Serafino, 82 F.3d at 518.)
Upon review of the record, the Magistrate Judge found that Defendants failed to show a "substantial need for particular information" and that "there is no other less burdensome effective means of obtaining it." (Id. at 734.) Accordingly, he found that dismissal of Mrs. Deakins' claims based upon her invocation of her Fifth Amendment privilege is inappropriate. (PF & R at 766.) He recognized that "Defendants have alternative means of presenting an effective defense without resort to Mrs. Deakins' testimony." (Id.)
The Magistrate Judge then considered Defendants' argument that Mrs. Deakins' claims should be dismissed since, as a result of her invoking her right to remain silent, she cannot offer evidence in opposition to their motion and "the evidence is support of [their motion] is clear." (Id.) (citing Document 182 at 8-9.) He found that "[a]lthough Mrs. Deakins' assertion of her Fifth Amendment privilege may preclude her from offering her own Affidavit, Mrs. Deakins may offer documentary evidence or testimony from other witnesses." (PF & R at 766-67) (citing In re Edmond, 934 F.2d at 1308-09 (4th Cir.1991); United States v. Parcels of Land, 903 F.2d at 43.) Therefore, he recommended that "Defendants' Motion for Summary Judgment based upon the above should be denied." (PF & R at 767.)
In their Motion, Defendants argue that they are entitled to summary judgment as to Mrs. Deakins' claim of unlawful arrest. (Document 182 at 14-16.) In support, they explain that the Defendant Troopers were within their right to arrest Mrs. Deakins because upon lawfully entering the Deakins' residence to execute an arrest warrant, Defendant Baker was attacked by Mrs. Deakins. (Id.) Defendants assert that because Mrs. Deakins was found guilty of charges stemming from her attack on Defendant Baker, she cannot now bring a lawsuit that, if successful, would question the validity of her convictions. (Id. at 15) (citing Heck, 512 U.S. 477, 114 S.Ct. 2364).
In response, Mrs. Deakins asserts that Defendants' arguments are without merit because she has not been convicted of any charges stemming from the April 22, 2010 incident. (Document 189 at 17.) Mrs. Deakins contends that because she has appealed her convictions and is entitled to a "trial de novo," her "slate has been wiped clean." (Id. at 17-18.) Therefore, Mrs. Deakins surmises that she has not been convicted of any charges. (Id.)
In reply, Defendants state that because Mrs. Deakins' convictions have not been reversed on direct appeal, expunged by executive order, declared invalid, or called into question by the issuance of a writ of habeas corpus, her convictions stand. (Document 190 at 11) (citing Heck, 512 U.S. 477, 114 S.Ct. 2364). Accordingly, Defendants argue that the Defendant Troopers had probable cause for her arrest, and therefore, her claim for unlawful arrest fails. (Id.)
Based upon a review of the record, the Magistrate Judge found that "Defendant's Motion for Summary Judgment should be granted to the extent that Mrs. Deakins is challenging the validity of her arrest." (PF & R at 767-68.) He noted that Mrs. Deakins was arrested, charged with, and later convicted of obstruction of an officer, battery on an officer, and assault on an
The Magistrate Judge noted that "Defendants and Mrs. Deakins present the identical arguments as addressed in Defendants' Motion for Summary Judgment against Mr. Deakins." (Id. at 46.)
In their motion, Defendants argue that there is no evidence to support any of Mrs. Deakins' claims against Defendant Pack, and thus, she is entitled to summary judgment. (Document 182 at 13-14, 16-17.) Defendants assert that Plaintiff cannot establish supervisory liability against Defendant Pack as there is no evidence that he was involved in the incident on April 22, 2010, or that the Defendant Troopers were negligently hired, trained or supervised. (Id.) Mrs. Deakins did not respond to Defendants' arguments. (Document 189.) Thus, Defendants contend that she has conceded that summary judgment should be granted as to Defendant Pack. (Document 190 at 2.)
The Magistrate Judge once again set forth the applicable law concerning supervisory liability under Section 1983 (see supra Part III, A, i, e) and found that that there is "no evidence indicating that Defendant Pack was aware of an unreasonable risk of harm or misconduct by Defendant Troopers and failed to take corrective action." (PF & R at 770.) He emphasized the lack of evidence concerning Defendant Pack's personal involvement in the April 22, 2010 incident, his knowledge of misconduct by the Defendant Troopers, and his failure to adequately train or supervise them. (Id.) Because summary judgment is required when a party fails to establish an essential element of a claim, the Magistrate Judge found that Defendants' motion
In their Motion, Defendants argue that Defendants Rogers and Shrewsbury are entitled to summary judgment because Mrs. Deakins has not asserted claims against them. (Document 182 at 4.) In response, Mrs. Deakins states that she has alleged the following claims against them: (1) conspiratory liability pursuant to 42 U.S.C. §§ 1983 and 1985; (2) excessive force; (3) intentional infliction of emotional distress; and (4) unlawful arrest. (Document 189 at 4-5) (citing Third Am. Compl. ¶¶ 89-92.) Mrs. Deakins also contends that she has stated a claim of unreasonable search and seizure against Defendant Shrewsbury. (Id.) (citing Third Am. Compl. ¶ 88.) In support, she refers to her Answer to Interrogatory Number 9. (Id.) (citing Document 189-3 at 29-32.) In reply, Defendants argue that Mrs. Deakins' Answer to Interrogatory Number 9 is not sufficient to overcome their motion for summary judgment because it does not mention Defendant Rogers at all and is entirely comprised of conclusory allegations. (Document 190 at 12-14.)
Based upon a review of the record, the Magistrate Judge found that "there is no evidence that Defendants Rogers or Shrewsbury conspired in violation of Sections 1983 or 1985." (PF & R at 770-72.) He reiterated that to establish a civil conspiracy under Section 1983, Mrs. Deakins must present evidence that "the defendants conspired or acted jointly or in concert and that some overt act was done in furtherance of the conspiracy, which resulted in plaintiff being deprived of the constitutional right." (Id. at 728) (citing Hafner, 983 F.2d at 577); (see supra Part III, A, i, d). Then he explained that to establish a conspiracy under Section 1985(3), a plaintiff must prove "(1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy." (PF & R at 771)
The Magistrate Judge reviewed the record and found that based upon the lack of evidence, Defendants Rogers and Shrewsbury should be granted summary judgment as to Mrs. Deakins' civil conspiracy claims. (PF & R at 771-72.) As to Mrs. Deakins' claim that Defendants Rogers and Shrewsbury conspired to use excessive force, he found that there is no evidence that they had any physical contact with Mrs. Deakins or were present during the alleged use of excessive force. (Id. at 739.) Turning to Mrs. Deakins' claim that Deplaint
The Magistrate Judge also considered Mrs. Deakins' claims against Defendants Rogers and /or Shrewsbury for excessive force, unlawful arrest, "fail[ing] to properly identify her husband prior to the other troopers' arrival at her home," "fail[ing] to render first aid to ... her husband," unreasonable search and seizure, and intentional infliction of emotion distress. (Id. at 740-41.) Based upon his review of the record, the Magistrate Judge found that the above claims should be dismissed. (Id.)
First, he noted that there is no evidence that Defendants Rogers and Shrewsbury had any physical contact with Mrs. Deakins or were present at the time of the arrest or when the alleged use of excessive force occurred. (Id.) Therefore, he found that Mrs. Deakins' claims of excessive force and unlawful arrest against Defendants Rogers and Shrewsbury should be dismissed. (PF & R at 741-42.)
Next, he considered Mrs. Deakins' claims concerning her husband. (Id. at 740.) He found that Mrs. Deakins has no claim based upon her allegations that Defendants Rogers and Shrewsbury failed to: (1) prevent the alleged use of excessive force against her husband; (2) properly identify her husband prior to the Defendant Trooper's entry into their home; and (3) render first aid to her husband. (Id.)
Then, the Magistrate Judge considered Mrs. Deakins' claim of unreasonable search and seizure against Defendant Shrewsbury. (Id.) He found that there is "no evidence to suggest that Defendant Shrewsbury was present or participated in any search and seizure of property within the Deakins' residence." (Id.) He also found that there is no evidence to support Mrs. Deakins' claim that Defendant Shrewsbury improperly accessed information on her computers. (Id.) Therefore, the Magistrate Judge found that her claim of unreasonable search and seizure against Defendant Shrewsbury should be dismissed. (Id.)
Finally, he considered Mrs. Deakins' claim of intentional infliction of emotional distress against Defendants Rogers and Shrewsbury and found that it should be dismissed. (Id.) He explained that to establish a claim of intentional infliction of emotional distress, Mrs. Deakins must prove the following: "(1) [Defendants Rogers and Shrewsbury's] conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) [they] acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from its conduct; (3) the actions of [Defendants Rogers and Shrewsbury] caused [her] to suffer emotional distress; and (4) the emotional distress suffered by [her] was so severe that no reasonable person could be expected to endure it." (PF & R
On May 8, 2013, Defendants timely filed their objections to the Magistrate Judge's PF & R (Document 235) and attached Exhibits.
Defendants object to the PF & R's finding that Defendants did not have probable cause to believe that the Deakins' two personal computers contained evidence of the attack upon them allowing for a warrantless seizure. (Document 235 at 2.) Defendants argue that the PF & R "does not take into consideration all of the crimes which occurred both inside and outside the home and/or the modern and ever evolving capabilities of computers/ home security systems." (Id.) Defendants explain that as they approached Mr. Deakins in his yard to execute an arrest warrant, he fled into his house. (Id. at 3.) Accordingly, they followed him in hot pursuit, and forcibly entered the home. (Id.) Defendants state that they noticed surveillance cameras outside the home and once inside, were confronted with Mr. Deakins pointing a digital camera at them. (Id.) Immediately thereafter, Defendants Long, Jackson, and Baker were attacked. (Id.) After subduing Plaintiffs, they noticed computers and believed them to be part of a home security system. (Id.) Defendants state that they "believed that the computers contained surveillance evidence of the fleeing and attack." (Id.) Defendants argue that given the totality of the circumstances and the "ever changing electronic capabilities," the seizure of the computers was "constitutional, or, in the alternative, subject to qualified immunity." (Id.)
Second, Defendants stress that the PF & R incorrectly "assumes that the only reasons to have seized the computers would have been to obtain footage of the attack inside the home." (Id.) Defendants contend that a crime was committed outside the home that could have been captured by the surveillance cameras. (Id. at 4-5.) Defendants explain that Mr. Deakins committed a crime when he fled from them. (Id.) (citing W.Va.Code § 61-5-17(d) ("Any person who intentionally flees or attempts to flee by any means other than the use of a vehicle from any law-enforcement officer ... who is attempting to make a lawful arrest of the person, and who knows or reasonably believes that the officer is attempting to arrest him or her, is guilty of a misdemeanor ...")). Defendants contend that the fact that he was charged with a misdemeanor supports their belief that he violated that law outside. (Id.)
Alternatively, Defendants object to the PF & R's finding that they are not entitled to qualified immunity. (Id.) Defendants reiterate that qualified immunity protects police officers from "reasonable mistakes." (Id.) (quoting Sevigny v. Dicksey, 846 F.2d 953, 957 (4th Cir.1988)). Defendants stress that given the recent advancements in technology, their belief that the computers contained incriminating evidence was reasonable. (Id. at 6-7.)
Defendants also object to the Magistrate Judge's recommendation that their Motion for Summary Judgment against Kay Deakins "be denied with respect to her claims for excessive force, assault, battery, and intentional infliction of emotional distress." (Document 235 at 13.)
Defendants take exception to the PF & R's assertion that "dismissal of a claim for invocation of one's right to remain silent is a penalty of last resort that can only come about if a defendant shows `substantial need' for particular information and `no less burdensome' means of obtaining it." (Id. at 8-9)
Defendants also disagree with the PF & R's conclusion that "even if an individual may not rely on his/her own affidavit in opposition to a motion for summary judgment, he/she may still rely on other evidence in the record." (Id. at 8.) Defendants contend that the Magistrate Judge's reliance on In re Edmond, 934 F.2d 1304, 1308-09 (4th Cir.1991) and United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir.1990), is misplaced because neither case holds that a party may invoke his Fifth Amendment right to remain silent and then offer evidence in opposition to a motion for summary judgment. (Document 235 at 11.) Defendants stress that
As stated above, district courts must make a de novo determination of those portions of a magistrate judge's report, specified findings, and recommendations to which objections are made. 28 U.S.C. § 636(b)(1). The Fourth Circuit Court of Appeals has interpreted this provision to mean that when a proper objection is made to a magistrate judge's report, "the appellant's right to de novo review is established" and "a district court is required to consider all arguments directed to that issue regardless of whether they were raised before the magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir.1992); see also, Brewer v. Paugh, 2007 WL 545997, Case No. 5:06-cv-98 (N.D.W.Va. Feb. 16, 2007); Murray v. Lappin, 2008 WL 249167, Case No. 5:07-cv-6, at *3 (N.D.W.Va. Jan. 29, 2008); Weber v. Aiken-Partain, 2012 WL 489148, Case No. 8:11-cv-2423-GRA (D.S.C. Feb. 15, 2012.) Because Defendants in this case have made proper objections to the Magistrate Judge's PF & R, the Court will entertain their new arguments. (Id.)
In determining whether to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," the court "may also
Viewing the totality of the circumstances and the underlying facts and evidence in the light most favorable to Plaintiffs, the Court finds that Defendants Long, Jackson, Baker, and Wade did not have probable cause to support the warrantless seizure of the Deakins' computers. Matsushita, 475 U.S. at 587-88, 106 S.Ct. 1348. Therefore, their objection should be overruled.
As stated above, the Fourth Amendment protects citizens against unreasonable searches and seizures. (U.S. Const. amend. IV.) Warrantless seizures are "per se unreasonable" — "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967.) Central to this case is the exception known as the "plain view doctrine," which provides that police may seize evidence in plain view in the course of a lawful search if: (1) the seizing officer lawfully occupies the place from which the object can be plainly viewed; (2) the seizing officer has "a lawful right of access to the object itself[;]" and (3) the incriminating character of the object is "immediately apparent." Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990.) An object's incriminating character is "immediately apparent" if a police officer, upon seeing it, has probable cause to believe it is "evidence of a crime or is contraband." Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).
Probable cause is a quantum of evidence defining the level of suspicion the police must have before conducting a search or seizure. See, United States v. Brown, 401 F.3d 588, 592 (4th Cir.2005). It "does not require certainty, nor does it require that the seized evidence is more likely than not to be contraband, stolen property, or evidence of a crime." Adkins v. McClanahan, 2013 WL 942323, at *4, Case No. 1:12-cv-34 (W.D.Va. Mar. 11, 2013) (citing Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)). Rather, a "practical, nontechnical probability that incriminating evidence is involved" is all that is required. U.S. v. Davis, 690 F.3d 226, 264 (4th Cir.2012) (quoting Brown, 460 U.S. at 742, 103 S.Ct. 1535 (internal quotation marks omitted)). However, probable cause requires more than a hunch and must be supported by facts. See, Brown, 460 U.S. at 742, 103 S.Ct. 1535 (Probable cause "requires that the facts available to the officer would `warrant a man of reasonable caution in the belief... that certain items may be contraband or stolen property or useful as evidence of a
Based upon a review of the record, the Court finds that Defendants did not have probable cause to believe that the computers they seized contained incriminating evidence because they did not have probable cause to believe the computers were connected to any device capable of capturing such evidence. In their motions for summary judgment and in their objections, Defendants gloss over this essential step in their reasoning. Rather, they appear to focus on what evidence the surveillance cameras could have captured. In their motions, Defendants claim that the Defendant Troopers seized the computers believing that they may contain evidence of the attacks against them. (Document 180 at 9, 12; Document 182 at 13, 15.) In support, they state that they "noticed the surveillance system in place and believed that it may have been connected to the computers." (Document 180 at 12; Document 182 at 13.) They do not explain why they held that belief. Now, in their objections, they contend that the seizure was reasonable and constitutional because the Defendant Troopers "presumed" the surveillance cameras captured Mr. Deakins' crime of fleeing on foot and transmitted those images to the computers. (Document 235 at 5.)
The Court finds that Defendants did not have probable cause, at the time of the seizure, to believe the computers were connected to the surveillance cameras or any other device capable of capturing evidence of Mr. Deakins' crimes. The mere existence of surveillance cameras outside a house, a digital camera, and a monitor for the surveillance system, does not establish probable cause for believing the computers contained images from those devices. Notably, Defendants have not articulated specific facts explaining why they believed the computers contained: (A) images from the surveillance cameras outside; (B) images from possible hidden cameras inside; and/or (C) photographs which had automatically been uploaded from Mr. Deakins' digital camera.
The Court also finds that Defendants are not entitled to qualified immunity for seizing the Deakins' computers. At the time of the purported violation, Mr. and Mrs. Deakins had a clearly established right to be free from a warrantless seizure of their computers that was unsupported by probable cause. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); (U.S. Const.amend. IV.) In viewing the facts in the light most favorable to Mr. and Mrs. Deakins, the Court finds that they were deprived of that right. (Id.) As stated above, the Court finds that a reasonable officer would not have believed, based upon the mere presence of surveillance cameras outside the home, a security monitor, and a digital camera, that the Deakins' computers contained recordings from those devises and/or possible hidden cameras. Although hidden cameras and digital cameras that automatically upload images to computer hard drives exist, (See, Document 235-1), there is no indication that at the time of the seizure, Defendant Troopers believed or had reason to believe that the Deakins' home was equipped with such technology. For example, Defendants do not assert that in their experience, when someone has surveillance cameras outside their home they usually also have hidden cameras inside. Defendants' belief that the computers contained evidence of a crime allowing for a warrantless search was not reasonable. Accordingly, the Court finds that Defendants are not entitled to qualified immunity. Henry v. Purnell, 652 F.3d 524, 535 (4th Cir.2011) ("Although officers... may make unreasonable mistakes on occasion, the doctrine of qualified immunity does not serve to protect them on those occasions.")
Based upon the foregoing, the Court overrules Defendants' objection and adopts the Magistrate Judge's recommendation
In balancing the interests of Mrs. Deakins and Defendants in the instant matter, the Court finds that dismissing Mrs. Deakins' claims and precluding her from offering further evidence is not warranted as it would make the assertion of her Fifth Amendment privilege "costly." Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The Court finds that the appropriate effect of Mrs. Deakins' invocation of the Fifth Amendment privilege is to strike her affidavit opposing summary judgment. Finally, the Court finds that Defendants' Motion for Summary Judgment as to Mrs. Deakins' claims of excessive force and intentional infliction of emotional distress should be denied with respect to Defendants Long, Jackson, Baker and Wade.
As stated above, the United States Supreme Court noted, in Griffin v. California, that a court may not impose a sanction on a litigant that would make an assertion of her Fifth Amendment privilege "costly." (Id.) Forcing a party in a civil case to choose between invoking her Fifth Amendment right and refusing to answer deposition questions or dropping her lawsuit is "costly." See, Pillsbury Co. v. Conboy, 459 U.S. 248, 256-57, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983); Griffin, 380 U.S. at 614, 85 S.Ct. 1229. However, "there are certain limited exceptions to the principle described above, namely those cases where assertion of the Fifth Amendment privilege would thwart `discovery of issues at the heart of plaintiffs lawsuit.'" Swann v. City of Richmond, 462 F.Supp.2d 709, 712 (E.D.Va.2006) (quoting Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084, 1086 (5th Cir.1979)). As the Fourth Circuit Court of Appeals explained in In re Edmond, "the Fifth Amendment privilege cannot be invoked as a shield to oppose depositions while discarding it for the limited purpose of making statements to support a summary judgment motion." In re Edmond, 934 F.2d 1304, 1308 (4th Cir.1991).
Accordingly, "[w]hile a trial court should strive to accommodate a party's Fifth Amendment interests, see United States v. Parcels of Land, 903 F.2d 36, 44 (1st Cir.1990), it also must ensure that the opposing party is not unduly disadvantaged." Serafino v. Hasbro, Inc., 82 F.3d 515, 518 (1st Cir.1996) (citing Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 577 (1st Cir.1989) (affirming district court's refusal to allow defendant to testify at trial when he asserted his Fifth Amendment privilege during discovery). Therefore, a balancing approach is necessary in cases where a party to a civil action asserts her Fifth Amendment privilege and refuses to answer deposition questions. Swann, 462 F.Supp.2d at 712; see also, Wehling, 608 F.2d at 1088 (recognizing "that a civil plaintiff has no absolute right to both his silence and his lawsuit. Neither, however, does the civil defendant have an absolute right to have the action dismissed anytime a plaintiff invokes his constitutional privilege.")
However, asserting this privilege does not come without consequences. "Courts have excluded subsequent testimony, entered judgment, or dismissed the silent party's claims on the basis of a refusal to testify only as a last resort." Interim Investors Committee v. Jacoby, 90 B.R. 777, 779-80 (W.D.N.C.1988); see also, e.g., United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir.1990) (striking an affidavit opposing summary judgment after party invoked the Fifth Amendment privilege at the deposition); In re Edmond, 934 F.2d 1304, 1306 (4th Cir.1991) (same). The effect of a civil litigant's assertion of her Fifth Amendment privilege "depends to a large extent on the circumstances of the particular litigation." Graystone, 25 F.3d at 192.
Based upon the foregoing, the Court finds that Mrs. Deakins' claims should not be dismissed based solely upon her invocation of her Fifth Amendment rights. The Court finds that Mrs. Deakins has a substantial interest in asserting and maintaining her Fifth Amendment privilege. Considering the circumstances of the instant litigation, the Court finds that punishing Mrs. Deakins by automatically dismissing her lawsuit based upon her valid invocation of a Constitutional right is unwarranted.
In balancing the interests of the parties, the Court finds that the appropriate result for Mrs. Deakins having asserted her Fifth Amendment privilege and refusing to answer deposition questions is the preclusion of her Affidavit, not the dismissal of her lawsuit. "Because the privilege is constitutionally based, the detriment to the party asserting it should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side." Graystone, 25 F.3d at 192. Accordingly, the Court declines to consider Mrs. Deakins' Affidavit (Document 189-1 at 29-40) and orders that it be stricken. See Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 515 (5th Cir.2012) ("Under the now-applicable Rule 56(c)(2), ... it is no longer necessary for a party to file [a motion to strike]; instead, the party may simply object to the material."); see Fed.R.Civ.P. 56 advisory committee's note to 2010 amendments (`There is no need to make a separate motion to strike.').
The Court will now consider whether Defendants have shown that there is no genuine issue of material fact regarding Mrs. Deakins' claims of excessive force and intentional infliction of emotional distress. As stated above, Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows that 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). An award of summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
The Fourth Amendment guarantees the "right to be free from unreasonable searches and seizures, which encompasses the right to be free of arrests, investigatory stops, or other seizures effectuated by excessive force." Schultz v. Braga, 455 F.3d 470, 476 (4th Cir.2006). In determining whether a law enforcement officer used excessive force, courts consider the "objective reasonableness" of the action in question. (Id.) The force used by an officer is not excessive if his "actions are `objectively reasonable' in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation." (Id.) (quoting Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
"To gauge objective reasonableness, a court examines only the actions at issue and measures them against what a reasonable police officer would do under the circumstances." Rowland v. Perry, 41 F.3d 167, 172 (4th Cir.1994). The Court must also pay "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
The Court finds that Defendants have failed to meet their burden of showing that there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 247, 106 S.Ct. 2505. In their Motion and Objections, Defendants deny violating Mrs. Deakins' right to be free from excessive force. (Document 182 at 9; Document 235 at 12.) In support, they cite to Plaintiffs' Request for Admission Number Twelve, in which they "deny that they inflicted any injuries upon Kay Deakins." (Document 181-3 at 22; Document 235 at 12.)
In West Virginia, in order to prevail on a claim for intentional infliction of emotional distress, a plaintiff must prove the following elements:
Syl. pt. 3, Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419, 425 (1998). The West Virginia Supreme Court of Appeals has stressed that "liability depends upon whether the conduct has been so extreme and outrageous `as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" (Philyaw v. Eastern Associated Coal Corp., 219 W.Va.252, 633 S.E.2d 8 (W.Va.2006) (quoting Johnson v. Hills Dep't Stores, 200 W.Va. 196, 488 S.E.2d 471, 474 (W.Va. 1997))). Moreover, the court explained that:
Syl. pt. 4, Travis, 504 S.E.2d at 421.
The Court, once again, finds that Defendants have failed to meet their burden of showing that there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 247, 106 S.Ct. 2505. In their Motion, Defendants state that "since Mrs. Deakins was lawfully arrested and not subjected to excessive force, she lacks any basis for a claim of intentional infliction of emotional distress." (Document 182 at 9.) As stated above, Defendants simply denying that they inflicted any injuries upon Mrs. Deakins and denying that they violated her right to be free from excessive force is not sufficient to show that they are entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); (Document 181-3 at 22; Document 235 at 12.) Viewing the facts in the light most favorable to Mrs. Deakins, the Court finds that there are genuine issues of material fact as to whether Defendants' actions were "outrageous." Matsushita, 475 U.S. at 587-88, 106 S.Ct. 1348; Travis, 504 S.E.2d at 425. Accordingly, Defendants' Motion for Summary Judgment as to Mrs. Deakins' claim of intentional infliction of emotional distress by Defendants Long, Jackson, Baker, and Wade should be denied.
Based on the findings herein, the Court does hereby
As to Defendants' Motion for Summary Judgment Against Harry Deakins (Document 179), the Court
As to Defendants' Motion for Summary Judgment Against Kay Deakins (Document 181), the Court
R. CLARKE VanDERVORT, United States Magistrate Judge.
Pending before the Court are the following Motions: (1) "Defendants' Motion for Partial Summary Judgment Against Harry Deakins" (Document No. 179.), filed on November 5, 2012; and (2) "Defendants' Motion for Summary Judgment Against Kay Deakins" (Document No. 181.), also filed on November 5, 2012. The Court notified Plaintiffs pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), that Plaintiffs had the right to file a response to Defendants' Motions and submit Affidavit(s) or statements and/or other legal or factual material supporting their claims as they are challenged by Defendants in moving to dismiss. (Document Nos. 183 and 184.) On November 19, 2012, Plaintiff Harry Deakins filed his Response in Opposition. (Document No. 186.) On December 19, 2012, Plaintiff Kay Deakins filed her Response in Opposition. (Document No. 189.) On November 27, 2012, and December 28, 2012, Defendants filed their Replies. (Document Nos. 188 and 190.) Having conducted a thorough examination of the record, the undersigned has determined and hereby respectfully recommends that "Defendants' Motion for Partial Summary Judgment Against Harry Deakins" (Document No. 179.) should be granted in part and denied in part and "Defendants' Motion for Summary Judgment Against Kay Deakins" (Document No. 181.) should be granted in part and denied in part.
On December 21, 2010, Plaintiffs filed their Complaint. (Document No. 1.) Plaintiffs filed their First Amended Complaint on December 28, 2010. (Document No. 7.) On January 3, 2011, Plaintiffs filed their Second Amended Complaint. (Document No. 11.) On August 18, 2011, Plaintiffs filed a "Motion for Leave to File Third Amended Complaint" (Document No. 60.). In support of their Motion, Plaintiffs stated that an amendment was necessary "(1) to facilitate the identification of three Doe Defendants, previously stated as John and Jane Does 1-10 in `Plaintiffs Second Amended Complaint' under `Parties,' Paragraph No. 12; as we [Plaintiffs] have ascertained their true identities;
In their Third Amended Complaint ["TAC"], Plaintiffs allege that Defendants violated "their rights guaranteed by the United States Constitution, specifically the Fourth, Fifth, and Fourteenth Amendments, which rights are further secured by the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, and 1988, by the laws/codes, and under West Virginia common law and the Constitution of the State of West Virginia, specifically Article III, Section 1, 6, and 10." (Id.) Specifically, Plaintiffs state that "[t]his civil rights action arises out of
By Order entered on January 25, 2012, the Court granted Plaintiffs'"Motion for Leave to File Third Amended Complaint" (Document No. 88.), directed the Clerk to issue Summonses upon Defendants, and directed Plaintiffs to serve the Summonses and Complaint pursuant to Rule 4 of the Federal Rules of Civil Procedure. (Document No. 89.) The Clerk issued Summonses for Defendants on January 26, 2012. (Document No. 91.) Defendants
On May 11, 2012, Defendants Robin Mavin and D.W. Miller filed a "Motion to Dismiss or, in the Alternative, Motion to Quash Service" and Memorandum in Support (Document Nos. 142 and 143.) Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), was issued to Plaintiff on May 14, 2012, advising them of the right to file a response to the Defendants' Motion to Dismiss. (Document No. 144.)
On June 12, 2012, Defendant Miller filed a Motion to Dismiss and Memorandum in Support. (Document Nos. 153 and 154.) Also on June 12, 2012, Ms. Mavin filed a "Renewed Motion to Dismiss, or in the Alternative, Motion to Quash Service" and Memorandum in Support. (Document Nos. 155 and 156.) Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), was issued to Plaintiffs on June 13, 2012, advising them of the right to file a response to Mr. Miller and Ms. Mavin's Motions to Dismiss. (Document Nos. 157 and 158.)
On June 15, 2012, Plaintiffs filed their "Motion for Entry of Default Judgment." (Document No. 160.) Plaintiffs request that "default be entered against Defendants D.W. Miller and Robin Mavin, pursuant to the Federal Rules of Civil Procedure 55(b)." (Id.) Also on June 15, 2012, Plaintiffs filed their "Response in Opposition to Defendant's Motion to Dismiss, or in the Alternative, Plaintiffs' Opposition to Defendants' Motion to Quash Service Upon Defendants' Robin Mavin and D.W. Miller." (Document No. 163.) On June 22, 2012, Defendants Mavin and Miller filed their Reply. (Document No. 167.)
By Proposed Findings and Recommendation entered on June 28, 2012, 2012 WL 2955514, the undersigned recommended that "the District Court
On June 29, 2012, Defendants Mavin and Miller filed their Response in Opposition to Plaintiff's Motion for Entry of Default Judgment. (Document No. 171.) Also on June 29, 2012, Plaintiffs filed their "Renewed Response in Opposition to Defendant Robin Mavin's Renewed Motion to Dismiss, or in the Alternative, Plaintiffs' Renewed Response in Opposition to Defendant Robin Mavin's Motion to Quash Service." (Document No. 172.) On July 6, 2012, Defendant Mavin filed her Reply. (Document No. 173.)
On July 13, 2012, Plaintiffs filed their "Response in Opposition to Defendant David Miller's Motion to Dismiss." (Document No. 174.) On July 18, 2012, Defendant Miller filed his "Reply to Plaintiffs' Response." (Document No. 175.)
By Memorandum Opinion and Order entered on July 19, 2012, 2012 WL 2952354, District Judge Berger adopted the undersigned's recommendation and ordered "that the Motion to Dismiss, or in the Alternative, Motion to Quash Service, By Robin Mavin and D.W. Miller (Document 142) be
On November 5, 2012, Defendants Pack, Long, Jackson, Baker, Wade, Shrewsbury, and Rogers filed their "Motion for Partial Summary Judgment Against Harry Deakins" and Memorandum in Support. (Document Nos. 179 and 180.) Specifically, Defendants argue that they are entitled to partial summary judgment based on the following: (1) Mr. Deakins' claim of unreasonable search and seizure is precluded by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (Document No. 180, pp. 5-7.); (2) There is no evidence in support of Mr. Deakins' claims against T.S. Pack (Id., pp. 7-9.); (3) "The computers and camera were lawfully seized or, at the least, the decision to seize them did not violate a clearly established constitutional right" (Id., pp. 9-12.); and (4) "Any bystander liability claims against Troopers Shrewsbury and Rogers fails" as there is no evidence to support such a claim (Id., pp. 12-13.).
As Exhibits, Defendants filed the following: (1) A copy of the Grand Jury Indictment, Plea Agreement, and Sentencing Order as filed in Commonwealth of Virginia v. Harry Edwards Deakins, Case No. CR 10-156-00; 156-01; 156-02 (Cir. Ct. Tazewell Co. April 28, 2011) (Document No. 179-1.); (2) A copy of Arrest Warrants for Harry Deakins issued by the Tazewell County General District Court dated February 3, 2010 (Document No. 179-2, pp. 2-3.); (3) A copy of a "Warrant for Arrest-For Fugitive From Justice" as issued by the Mercer County Magistrate Court on April 22, 2010 (Id., pp. 4-5.); (4) A copy of "Defendants' Responses to Plaintiffs' Second Set of Interrogatories, Second Request for Production of Documents and Requests for Admissions" (Document No. 179-3.); (5) A copy of "Plaintiff Harry E. Deakins, Sr. Second Supplemental Responses to Defendants' Second Set of Interrogatories, Document Requests and Requests for Admissions" (Document No. 179-4.); (6) A copy of "Plaintiff Harry E. Deakins, Sr. Amended Supplemental Responses to Defendants' First Set of Interrogatories, Requests for Admissions and Requests for Production" (Document No. 179-5.); (7) A copy of the "Criminal Case History" concerning State v. Harry Edward Deakins, Case No. 10-M-1236 as filed in the Magistrate County of Mercer County, West Virginia (Document No. 179-6.); (8) A copy of the "Indictment for: Attempt to Disarm a Police Officer, Battery on a Police Officer, and Brandishing a Deadly Weapon" and an Order Accepting Plea of Guilty as filed in State v. Anthony Todd Deakins, Case No. 10-F216 (Cir. Ct. Mercer County) (Document No. 179-7.); (9) A copy of the "Criminal Case History" concerning State v. Kay F. Deakins, Case Nos. 10-M-1238, 1239, 1240, 1241, as filed in the Magistrate County of Mercer County, West Virginia (Document No. 179-8.); and (10) A copy of the transcripts from the "Video Deposition of Harry E. Deakins, Sr." (Document No. 179-9.).
As Exhibits, Defendants filed the following: (1) A copy of the Grand Jury Indictment, Plea Agreement, and Sentencing Order as filed in Commonwealth of Virginia v. Harry Edwards Deakins, Case No. CR 10-156-00; 156-01; 156-02 (Cir. Ct. Tazewell Co. April 28, 2011) (Document No. 181-1.); (2) A copy of Arrest Warrants for Harry Deakins issued by the Tazewell County General District Court dated February 3, 2010 (Document No. 181-2, pp. 2-3.); (3) A copy of a "Warrant for Arrest-For Fugitive From Justice" as issued by the Mercer County Magistrate Court on April 22, 2010 (Id., pp. 4-5.); (4) A copy of "Defendants' Responses to Plaintiffs' Second Set of Interrogatories, Second Request for Production of Documents and Requests for Admissions" (Document No. 181-3.); (5) A copy of "Plaintiff Harry E. Deakins, Sr. Second Supplemental Responses to Defendants' Second Set of Interrogatories, Document Requests and Requests for Admissions" (Document No. 181-4.); (6) A copy of "Plaintiff Harry E. Deakins, Sr. Amended Supplemental Responses to Defendants' First Set of Interrogatories, Requests for Admissions and Requests for Production" (Document No. 181-5.); (7) A copy of the "Criminal Case History," and "Guilty of No Contest Plea" concerning State v. Harry Edward Deakins, Case No. 10-M-1236 as filed in the Magistrate County of Mercer County, West Virginia (Document No. 181-6.); (8) A copy of the "Indictment for: Attempt to Disarm a Police Officer, Battery on a Police Officer, and Brandishing a Deadly Weapon" and an Order Accepting Plea of Guilty as filed in State v. Anthony Todd Deakins, Case No. 10-F-216 (Cir. Ct. Mercer County) (Document No. 181-7.); (9) A copy of the "Criminal Case History" concerning State v. Kay F. Deakins, Case No. 10-M-1238, 1239, 1240, 1241, as filed in the Magistrate County of Mercer County, West Virginia (Document No. 181-8.); (10) A copy of the transcripts from the "Video Deposition of Harry E. Deakins, Sr." (Document No. 181-9.); (11) A copy of the transcripts from the "Video Deposition of Kay F. Deakins" (Document No. 181-10.); and (12) A copy of "Responses to Plaintiffs' Third Set of Written Discovery Requests by Defendants T.S. Pack, J.C. Long, R.J. Jackson, J.R. Baker, C.M.
Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), was issued to Plaintiffs on November 6, 2012, advising them of the right to file a response to Defendants Pack, Long, Jackson, Baker, Wade, Shrewsbury, and Rogers' Motions for Summary Judgment. (Document Nos. 183 and 184.)
On November 19, 2012, Plaintiff Harry Deakins filed his "Response/Memorandum in Opposition to Defendants' Motion for Partial Summary Judgment Against Harry Deakins." (Document No. 186.) First, Mr. Deakins contends that he did not sue for "unlawful, wrongful, and/or false arrest," or "intentional infliction of emotional distress." (Id., p. 2.) Mr. Deakins asserts that he "sued for being purposely deprived by Defendants of his right to be free from excessive force/violence, unreasonable force, and assault and battery [common law and pendent State Claim]." (Id.) Next, Mr. Deakins claims that there are "numerous disputed material facts." (Id., pp. 2-3, 8-9.) Third, Mr. Deakins states that he "objects to and moves to strike all eight of defendants Exhibits on the grounds that the items have not been properly authenticated, constitute blatant hearsay, and is irrelevant and inadmissible and does not constitute proper summary judgment evidence." (Id., pp. 3-6.) Fourth, Mr. Deakins argues that his "claims for relief [cause of action] are supported by sufficient evidence to create a genuine issue of material fact." (Id., pp. 10-11.) Fifth, Mr. Deakins states that his "claims against Defendants P.H. Shrewsbury and D.B. Rogers are not for `bystander liability' as Defense Counsel wrongly alleges in their Partial MSJ against Harry Deakins, but are for conspiracy pursuant to 42 U.S.C. § 1983." (Id., pp. 11-13.) Sixth, Mr. Deakins argues that "Plaintiffs' two personal computers and one digital camera were unlawfully and illegally seized." (Id., pp. 13-17.) Seventh, Mr. Deakins claims that "Defendants are not entitled to qualified immunity because their conduct, acts, and/or omissions did violate the Plaintiffs' clearly established statutory, constitutional, and civil rights." (Id., pp. 17-18.) Finally, Mr. Deakins asserts that Defendants do "not challenge Plaintiffs' State Law pendent claims, pursuant to W.Va.Code 61-6-21(b)." (Id., pp. 18-19.)
As Exhibits, Mr. Deakins filed the following: (1) A copy of "Plaintiffs' Third Amended Complaint" (Document No. 186-1, pp. 2-27.); (2) A copy of the "Affidavit of Harry E. Deakins, Sr." (Id., pp. 29-34.); (3) A copy of the "Affidavit of Kay F. Deakins" (Id., pp. 36-38.); (4) A copy of the "Affidavit of Anthony T. Deakins" (Document No. 186-1, pp. 40-53 and Document No. 186-2, pp. 32-33.); (5) A copy of Harry Deakins' medical records from Princeton Community Hospital (Document No. 186-2, pp. 2-20.); (6) Photographs of Harry Deakins (Id., pp. 21-22.); (7) A copy of a letter from Sargent D.B. Rogers addressed to Colonel T.S. Pack dated June 18, 2010, regarding the "Response to Resistance or Aggression (Mrs. Kay Deakins, Mr. Harry Deakins, and Mr. Anthony Deakins)" (Id., pp. 24-26.); (8) A copy of the "Affidavit of Sean E. Deakins" (Id., pp. 28-30.); (9) A copy of "Plaintiffs' Seventh Supplemental Rule 26(a)(1) Disclosures" (Id., pp. 35-37.); (10) A copy of Defendants' discovery responses (Id., pp. 39-42.); (11) A copy of partial transcripts involving State v. Anthony Todd Deakins, 10-F-682 (Id., pp. 44-45.); (12) A copy of "Plaintiffs' Sixth Supplemental Rule 26(a)(1) Disclosures" (Id., pp. 47-51.); and (13) A copy of a Deed from Robert E. Davis to Anthony T. Deakins dated December 19, 2008 (Id., pp. 53-57.).
On December 19, 2012, Plaintiff Kay Deakins filed her "Response/Memorandum in Opposition to Defendants' Motion for Summary Judgment Against Kay Deakins." (Document No. 189.) Mrs. Deakins first states that "[s]ince Defendants' Counsel contains nearly the same identical arguments in both of Plaintiffs' separate summary judgment motions, Plaintiff Kay Deakins hereby fully incorporates, as set forth herein, her husband's and co-Plaintiff, Harry D. Deakins, Sr., `Plaintiff Harry E. Deakins, Sr. Response/Memorandum in Opposition to Defendants' Motion for Partial Summary Judgment against Harry Deakins' and all of his attached exhibits thereto." (Id., pp. 1-2.) Next, Mrs. Deakins states that she "did not aver, nor sue for `wrongful arrest'" or "for certain electronic equipment wrongfully taken from her home." (Id., pp. 2-3.) Mrs. Deakins asserts that she did sue for "unlawful/false arrest" and "for Defendant Troopers' unlawful and illegal search and seizure of Plaintiffs' personal property; to wit, two personal computers and one digital camera." (Id.) Mrs. Deakins further explains that she "sued for being purposely deprived by Defendants of her right to be free from excessive force/violence, unreasonable force, and assault and battery [common law and pendent State Claim]." (Id.) Mrs. Deakins argues that she sued Defendants Baker, Long, Jackson, Baker, Shrewsbury, Wade and Rogers for "intentional infliction of emotion, psychological, mental and physical distress/injury." (Id., pp. 3-4.) Mrs. Deakins further claims she has made allegations against Defendants Shrewsbury and Rogers. (Id., p. 4.) Specifically, Mrs. Deakins asserts that "[u]pon a careful reading of Plaintiffs' TAC, both Plaintiffs are suing Defendants Shrewsbury and Rogers [and other named Defendants] for conspiratorial liability pursuant to 42 U.S.C. § 1983 and § 1985." (Id., p. 4.) Next, Mrs. Deakins claims that there are "numerous genuine issues of material fact. (Id., pp. 6-7, 13-15.) Mrs. Deakins states that she "objects to and moves to strike seven of defendants Exhibits [A, B, F, G, H, I & J] on the grounds that the items have not been properly authenticated, constitute blatant hearsay, and is irrelevant and inadmissible and does not constitute proper summary judgment evidence." (Id., pp. 7-12.) Mrs. Deakins argues that his "claims for relief [cause of action] are supported by sufficient evidence to create a genuine issue of material fact." (Id., pp. 5.) Mrs. Deakins states that "Plaintiffs' two personal computers and one digital camera were unlawfully and illegally seized." (Id., p. 15.) Seventh, Mrs. Deakins claims that "Defendants are not entitled to qualified immunity because their conduct, acts, and/or omissions did violate the Plaintiffs' clearly established statutory, constitutional, and civil rights." (Id., pp. 15-16.) Mrs. Deakins contends that "Defendants failed to object at Deposition and failed to file a Motion to Compel Deposition Answers of Kay Deakins, therefore, Defendants have waived their right to subsequently challenge her alleged assertion of her 5th Amendment privilege."
As Exhibits, Mrs. Deakins filed the following: (1) A copy of "Plaintiffs' Third Amended Complaint" (Document No. 189-1, pp. 2-27.); (2) A copy of the "Affidavit of Kay F. Deakins" (Id., pp. 29-40.); (3) A copy of the "Affidavit of Harry E. Deakins" (Id., pp. 42-44.); (4) A copy of the "Affidavit of Anthony T. Deakins" (Document No. 189-2, pp. 2-5.); (5) A copy of the Scheduling Order as filed in the instant case on June 7, 2011 (Id., pp. 7-10.); (6) A copy of the "Defendants' Notice of Appeal" and Order scheduling a trial date as filed in State v. Kay Deakins, Case Nos. 10-M1238, 10-M1239, 10-M1240, and 10-M-1241 (Id., pp. 12-17.); (7) A copy of Kay Deakins and Harry Deakins'"Certificate of Marriage" (Id., p. 19.); (8) Photographs of Kay Deakins (Id., pp. 21-24.); (9) A copy of Kay Deakins' medical records from Princeton Community Hospital (Id., pp. 25-57.); (10) A copy of documents from MEDResponse and Friendship Home Medical Equipment, Inc. (Id., pp. 59-68.); (11) A copy of the "West Virginia State Police Report of Criminal Investigation" (Id., pp. 70-77.); (12) A copy of Defendants' discovery responses (Document No. 189-3, pp. 2-11.); (13) A copy of Kay Deakins' discovery responses (Id., pp. 13-37.); (14) A copy of a letter from Harry Deakins addressed to Mercer County Circuit Court Judge William J. Sadler dated June 1, 2010 (Id., p. 39.); (15) A copy a Kay Deakins'"HED Objection to KFD Questions/References" (Id., p. 41.); and (16) A copy of Rule 20.1 of Rules of Criminal Procedure for Magistrate Courts of West Virginia (Id., p. 43.)
On December 28, 2012, Defendants filed their Reply. (Document No. 190.) Specifically, Defendants argue as follows: (1) "Plaintiffs request to strike the [Motion for Summary Judgment's] exhibits should be denied" (Id., pp. 2-8.); (2) "Plaintiff refused to answer questions at her deposition and Defendants were not required to move to compel her to provide answers" (Id., pp. 9-10.); (3) "Plaintiff was convicted of crimes against Trooper Baker" (Id., pp. 10-11.); (4) "Plaintiff lacks any evidence of wrongdoing against Troopers Shrewsbury and Roger" (Id., pp. 11-15.); and (5) "Plaintiff's property was lawfully seized or, in the alternative, Defendants are entitled to qualified immunity" (Id., pp. 15-17.) As Exhibits, Defendants file a copy of an e-mail correspondence from Harris Reporting, LLC, explaining that Mr. Deakins was not provided transcripts because he failed to pay the invoice. (Document No. 190-1.)
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Once the moving party demonstrates the lack of evidence to support the non-moving party's claims, the non-moving party must go beyond the pleadings and make a sufficient showing of facts presenting a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). All inferences must be drawn from the underlying facts in the light most favorable to the non-moving party. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Summary judgment is required when a party fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual issues proving other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. Generally
In Response to Defendants' Motion for Summary Judgment, Mr. Deakins argues that the Court should strike Defendants' Exhibits filed in support of the Motion. (Document No. 186.) Mr. Deakins states that he "objects to and moves to strike all eight of defendants' Exhibits on the grounds that the items have not been properly authenticated, constitute blatant hearsay, and are irrelevant and inadmissible and do not constitute proper summary judgment evidence." (Id., pp. 3-6.) In Reply, Defendants argue that Mr. Deakins' request should be denied. (Document No. 188, pp. 3-9.) Defendants state that "of the nine exhibits, three are the parties' responses to written discovery requests (including two (MSJ Ex. D and E) that are Plaintiffs own discovery responses) and one is Plaintiffs deposition transcript." (Id., p. 3.) Defendants note that "[o]f the remaining five exhibits, two are certified copies of records from the Clerk of the Court of Tazewell County, Virginia (Id. at MSJ Ex. A and B); one is Plaintiffs conviction for his assault on Trooper Jackson (Id. at MSJ Ex. F (which, as noted in the MSJ, is corroborated by Plaintiffs admissions to have pleaded guilty to said battery)); and the remaining two are records of conviction for Ms. Deakins and Mr. and Mrs. Deakins' son, Anthony, both of whom were found guilty of attacking Troopers (Id. at MSJ Ex. G and H)." (Id., pp. 3-4.)
Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure provides that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A). "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2)(emphasis added). The 2010 amendments to Rule 56(c)(2) "eliminated the unequivocal requirement that documents submitted in support of a summary judgement motion must be authenticated." Akers v. Beal Bank, 845 F.Supp.2d 238, 243 (D.D.C.2012), aff'd, 2012 WL 4774676 (D.C.Cir.2012)(internal quotation marks and citation omitted); also see Foreword Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, *2 (W.D.Mich. Oct. 31, 2011)(unpublished)("Significantly, the objection contemplated by the amended Rule is not that the material `has not' been submitted in admissible form, but that it `cannot' be."); Advisory Committee Notes (2010 amendments)("The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.").
Based on the foregoing, the undesigned will consider Defendants' Exhibits. As Exhibit A, Defendants filed a copy of the Grand Jury Indictment, Plea Agreement, and Sentencing Order as filed in Commonwealth of Virginia v. Harry Edwards Deakins, Case Nos. CR 10-156-00;
As Exhibit B, Defendants filed a copy of Arrest Warrants for Harry Deakins issued by the Tazewell County General District Court dated February 3, 2010 (Document No. 179-2, pp. 2-3.) and a copy of a "Warrant for Arrest — For Fugitive From Justice" as issued by the Mercer County Magistrate Court on April 22, 2010 (Id., pp. 4-5.). As Exhibit F, Defendants filed a copy of the "Criminal Case History" and "Guilty or No Contest Plea" concerning State v. Harry Edward Deakins, Case No. 10-M-1236 as filed in the Magistrate County of Mercer County, West Virginia. (Document No. 179-6.) As Exhibit G, Defendants filed a copy of the "Indictment for: Attempt to Disarm a Police Officer, Battery on a Police Officer, and Brandishing a Deadly Weapon" and an Order Accepting Plea of Guilty as filed in State v. Anthony Todd Deakins, Case No. 10-F-216 (Cir. Ct. Mercer County) (Document No. 179-7.) As Exhibit H, Defendants filed a copy of the "Criminal Case History" concerning State v. Kay F. Deakins, Case Nos. 10-M-1238, 1239, 1240, 1241, as filed in the Magistrate County of Mercer County, West Virginia (Document No. 179-8.) In the instant case, Mr. Deakins merely argues that the above documents have not been authenticated. Mr. Deakins, however, does not claim that Defendants cannot provide proper authentication. Defendants claim that the above documents can clearly be authenticated at trial and are subject to judicial notice under Rule 201. The undersigned notes that the above Exhibits are copies of state court records. Thus, the undersigned finds that the documents contained in Exhibits B, F, G and H (Document Nos. 179-2, 179-6, 179-7, 179-8.) can be considered by the Court for purposes of a motion for summary judgment because the documents can be submitted in authenticated form at trial.
As Exhibits C, D, and E, Defendants filed a copy of "Defendants' Responses to Plaintiffs' Second Set of Interrogatories, Second Request for Production of Documents and Requests for Admissions" (Document No. 179-3.), "Plaintiff Harry E. Deakins, Sr. Second Supplemental Responses to Defendants' Second Set of Interrogatories, Document Requests and Requests for Admissions" (Document No. 179-4.), and "Plaintiff Harry E. Deakins, Sr. Amended Supplemental Responses to Defendants' First
As Exhibit I, Defendants filed a copy of the transcripts from the "Video Deposition of Harry E. Deakins, Sr." (Document No. 179-9.) Rule 56(c)(1)(A) provides that a party may submit depositions in support of a summary judgment motion. Thus, the use of deposition testimony is proper evidence to support a motion for summary judgment. Additionally, the undersigned finds that the deposition may be authenticated. The deposition contains the "Reporter's Certificate" stating that "I do certify that said deposition was correctly taken by me, by means of Stenomask; that the same was transcribed by me or under by supervision; and that said transcript is a true record of the testimony given by said witness." (Document No. 179, pp. 12-13.) Thus, the undersigned finds that Exhibit I (Document No. 179-9.) may be properly considered for purposes of the motion for summary judgment. Based on the foregoing, the undersigned finds that Mr. Deakins' request to strike Defendants' Exhibits should be denied.
In their Motion, Defendants Long, Jackson, Baker, and Wade argue that they are entitled to summary judgment as to Mr. Deakin's claim of unlawful arrest. (Document No. 180.) Defendants argue that they lawfully entered the residence because "(1) there was a valid warrant for Mr. Deakins' arrest; (2) the Troopers knew that Mr. Deakins was inside; and (3) Mr. Deakins criminally attacked Trooper Jackson." (Id., p. 5.) Defendants state that Mr. Deakins pled guilty to the charge that gave rise to his arrest warrant and to the battery charge stemming from his criminal attack on Trooper Jackson. (Id., p. 6.) Citing Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), Defendants argue that Mr. Deakins "cannot, after the fact, bring a lawsuit with claims that, if successful, would undermine the validity of his prior criminal pleas." (Id., pp. 6-7.)
In Response, Mr. Deakins states that he "did not aver, nor sue for unlawful, wrongful, and/or false arrest in their [Plaintiffs'] TAC as Defendants' counsel wrongly alleges." (Document No. 186, p. 2.) Mr. Deakins, therefore, concludes that "[c]ounsel's arguments are irrelevant, immaterial, null and void, and moot as to the false claim that Mr. Deakins sued for unlawful, wrongful, and/or for false arrest." (Id.) Mr. Deakins, however, does allege that Defendants unlawfully entered the residence in order to arrest him. (Id., p. 8.) Mr. Deakins states that "I was never outside of my home on 04/22/2010 `doing yard work' as Defendants' falsely claims." (Id.)
The undersigned finds that Defendants' Motion for Summary Judgment should be granted to the extent Mr. Deakins is challenging the validity of his arrest. Based upon a review of the record, arrest warrants were issued for Mr. Deakins based upon an Indictment charging him with malicious wounding, unlawful wounding, and destruction of personal property returned by the Grand Jury in Tazewell County, Virginia. (Document Nos. 179-1 and 179-2.) Additionally, Mr. Deakins was charged with battery upon a police officer as a result of his conduct at the time of his arrest on April 22, 2010, in Mercer County, West Virginia. (Document No. 179-6.) On May 7, 2010, Mr. Deakins pled guilty in Mercer County Magistrate Court to the charge of battery upon a police officer. (Document No. 179-6.) Subsequently, following Mr. Deakins' plea of nolo contendere on April 19, 2011, the Circuit Court of Tazewell County found Mr. Deakins guilty of assault and destruction of personal property. (Document No. 179-1.) In the instant case, Mr. Deakins alleges that his constitutional rights were violated during the course of his arrest on April 22, 2010. Specifically, Plaintiff appears to be challenging the lawfulness of his arrest, which would render his convictions or sentences invalid (Case Nos. 10-cr-156-01, 156-02 and Case No. 10-M-1236). Given the nature of Mr. Deakins' allegations, it appears that he is implying that his convictions are invalid as a result of various constitutional violations occurring during his arrest. Consequently, the undersigned finds that Mr. Deakins has failed to state a cognizable claim under Section 1983 pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the United States Supreme Court held that:
Id. at 486-87, 114 S.Ct. at 2372; also see Ballenger v. Owens, 352 F.3d 842 (4th Cir.2003)(holding that an arrestee's Section 1983 claim was not cognizable against state trooper, alleging unreasonable search and seizure, under Heck, since judgment in arrestee's favor would have implied the invalidity of conviction). There is no evidence that Mr. Deakins either successfully appealed his conviction or filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody. The undersigned, therefore, finds that because Mr. Deakins has not demonstrated that his criminal conviction has been invalidated,
In their Motion, Defendants Long, Jackson, Baker, and Wade argue that they are entitled to summary judgment as to Mr. Deakins' claim of unlawful seizure of electronics. (Document No. 180.) Specifically, Defendants explain that they observed surveillance equipment upon entering the Deakins' property. (Id., p. 9.) Defendants state that they seized a camera and two personal computers from Mr. Deakins' residence because they believed "that the electronics seized could possibly contain footage of said attacks" upon Defendants. (Id.) Defendants Long, Jackson, Baker, and Wade argued they are "entitled to qualified immunity for any mistake in believing that this equipment could be seized, since qualified immunity protects `all but the plainly incompetent or those who knowingly violate the law.'" (Id.) Defendants contend that "none of the Troopers violated Plaintiffs clearly established statutory or constitutional rights by taking this electronic equipment." (Id., p. 12.) Defendants explain that "[t]hese Troopers, who were attacked by Mr. and Mrs. Deakins and their son, Anthony, noticed the surveillance system in place and believed that it may have been connected to computers, which were located in the room in which they arrested their three attackers." (Id.) Defendants argue that their decision to seize "what they believed may be evidence of the crimes committed against them," was reasonable and not in violation of any clearly established constitutional right. (Id.)
In Response, Mr. Deakins argues that Defendants improperly searched the residence and wrongfully seized two computers and a camera. (Document No. 186, p. 15.) Mr. Deakins explains that "Defendant Troopers illegally seized my personal property outside our `wingspan' and/or `grabbable' area [incidental to arrest] outside the area of the person' immediate control." (Id.) Mr. Deakins argues that Defendants violated his "constitutional right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment." (Id.)
Courts have established qualified immunity for government officials in consideration of a number of factors including the substantial cost of litigation against government officials, the distraction of government officials from their public responsibilities and the disincentive to responsible and capable persons to accept government positions if there is no protection against suits accusing them of misconduct in the performance of their public duties. Government officials performing discretionary functions are generally protected from civil damages liability if 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, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). In determining the validity of a qualified immunity defense, the Court should be guided by a two-prong test: (1) whether the facts viewed in the light most favorable to the Plaintiff establish a deprivation of an actual constitutional right; and (2) whether that right was clearly established at the time of the purported violation. Id. The sequence of the steps is immaterial following Pearson. The Court may exercise discretion in deciding which of the two prongs "should be addressed first in light of the circumstances in the
The Fourth Amendment of the United States Constitution states that "[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Warrantless searches are per se unreasonable unless the United States shows that the search falls within an established exception. Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Another exception to the warrant requirement is when incriminating evidence is in the plain view of an officer. Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990). An officer may seize incriminating evidence in plain view without a warrant or consent as long as the officer arrives in the place where the evidence is plainly viewed without violating the Fourth Amendment and the incriminating nature of the evidence is immediately apparent.
First, the undersigned will consider whether Defendants Long, Jackson, Baker, and Wade are entitled to qualified immunity for seizing Mr. Deakins' two personal computers. The record reveals that upon arriving at the Deakins' residence, Defendants observed what appeared to be surveillance cameras in operation. (Document No. 179-3, p. 4.) Mr. Deakins acknowledges that his residence was monitored
Second, the undersigned will consider whether Defendants Long, Jackson, Baker, and Wade violated Mr. Deakin's clearly established statutory or constitutional rights by seizing the digital camera. Defendant Long states that he observed Mr. Deakins holding and pointing a camera in his direction upon entering the residence. (Document No. 179-3, p. 4.) Defendants argue that they seized the camera following the attack upon them by Mr. Deakins, Mrs. Deakins, and Anthony Deakins. (Id.) Defendants explain that they seized the camera believing it to contain incriminating evidence of the attack upon them. (Id.) As stated above, an officer may seize incriminating evidence in plain view without a warrant or consent as long as the officer arrives in the place where the evidence is plainly viewed without violating the Fourth Amendment and the incriminating nature of the evidence is immediately apparent. Viewing the totality of the circumstances, the undersigned finds that Defendants had probable cause to believe the camera contained evidence of a crime. Defendant Long viewed the camera being used upon entering the property, and Defendants were subsequently attacked by Mr. Deakins, Mrs. Deakins, and Anthony Deakins.
In their Motion for Summary Judgment, Defendants argue that "[a]ny bystander liability claims against Troopers Shrewsbury and Rogers fails" as there is no evidence to support such a claim (Document No. 180, pp. 12-13.). In Response, Mr. Deakins contends that his "claims against Defendants P.H. Shrewsbury and D.B. Rogers are not for `bystander liability' as Defense Counsel wrongly alleges in their Partial MSJ against Harry Deakins, but are for conspiracy pursuant to 42 U.S.C. § 1983." (Document No. 186, pp. 11-13.) In Reply, Defendants argue there is no "evidence of a conspiracy on the part of Troopers Rogers and Shrewsbury." (Document No. 188, pp. 9-12.)
To establish a civil conspiracy under Section 1983, a plaintiff must present evidence that "the defendants conspired or acted jointly or in concert and that some overt act was done in furtherance of the conspiracy, which resulted in plaintiff being deprived of the constitutional right." Hafner v. Brown, 983 F.2d 570, 577 (4th Cir.1992); also see Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (1996). Although a plaintiff need not produce direct evidence of a meeting of minds, the plaintiff must come forward with specific circumstantial evidence that each member of the alleged conspiracy shared the same conspiratorial objective. Hafner, 983 F.2d at 675-577. Thus, "to survive a properly supported summary judgment motion, Plaintiffs evidence must, at least, reasonably lead to the inference that Defendants positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan." Horton v. Dobbs, 2011 WL 3606369, *29 (N.D.W.Va. July 11, 2011).
Based upon a review of the record, there is no evidence that Defendants Rogers or Shrewsbury conspired to the use excessive force. In their Affidavits, Mr. Deakins, Mrs. Deakins, and Anthony Deakins state that they "personally observed Rogers and Shrewsbury present in the WVSP garage area, hallway area, and back office area."
In his Motion, Defendant Pack contends he is entitled to summary judgement. (Document No. 180, pp. 7-9.) Defendant Pack first states that "Mr. Deakins lacks any evidence that the defendant Troopers were negligently trained or supervised or that Mr. Pack had any personal involvement in this incident, and any claims against Mr. Pack must fail." (Id., p. 8.) Defendant Pack further contends there is "no evidence at all that Mr. Pack was involved, in any way, in this incident or had reason to know that such an incident would occur." (Id., pp. 8-9.) Mr. Deakins' Response fails to address Defendant Pack's request for summary judgment. (Document No. 186.) Defendant Pack, therefore, argues that he is entitled to summary judgment. (Document No. 188, p. 3).
"Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. * * * Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the officials own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009); see also Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir.2001), cert. denied, 537 U.S. 1045, 123 S.Ct. 621, 154 L.Ed.2d 517 (2002)("In a Bivens suit there is no respondeat superior liability. * * * Instead, liability is personal, based upon each defendant's own
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994). Thus, a plaintiff must show "a pervasive and unreasonable risk of harm from some specified source and that the supervisor's corrective inaction amounts to deliberate indifference or `tacit authorization of the offensive [practices].'" Slakan, 737 F.2d at 373. Evidence of a supervisor's continued inaction in the face of documented widespread abuses provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates. Id. A supervisor's mere knowledge of a subordinate's unconstitutional conduct is not enough. Rather, Section 1983 liability may be imposed upon a supervisor only on the basis of purposeful "violations of his or her supervisory responsibilities." Ashcroft, 556 U.S. at 676, 129 S.Ct. at 1949.
In his Motion, Defendant Pack argues there is no evidence that Defendant Troopers were "negligently trained or supervised or that Mr. Pack had any personal involvement in this incident." Once the moving party demonstrates the lack of evidence to support the non-moving party's claims, the non-moving party must go beyond the pleadings and make a sufficient showing of facts presenting a genuine issue for trial. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554("the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case"); Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356. Based upon a review of the record, the undersigned finds no evidence indicating that Defendant Pack was aware of an unreasonable risk of harm or misconduct by Defendant Troopers and failed to take corrective action. Specifically, there is no indication that Defendant Pack was aware of misconduct by any of the Defendant Troopers and he failed to adequately train or supervise them. Additionally, there is no evidence that Defendant Pack had any personal involvement in the alleged incident occurring on April 22, 2010. As stated above, summary judgment is required when a party fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual issues proving other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. Accordingly, the undersigned recommends that Defendant Pack's Motion for Summary Judgment be granted.
In Response to Defendants' Motion for Summary Judgment, Mrs. Deakins argues that the Court should strike Defendants' Exhibits filed in support of the Motion. (Document No. 186.) Mrs. Deakins states that "she objects to and moves to strike seven of defendants' Exhibits [A, B, F, G, H, I & J] on the grounds that the items have not been properly authenticated, constitute blatant hearsay, and are irrelevant and inadmissible and does not constitute proper summary judgment evidence." (Document No. 189, p. 7.) Mrs. Deakins further argues that the above Exhibits do "not conform to and violate many sections of the Federal Rules of Evidence." (Id.) In Reply, Defendants argue that Mrs. Deakins request should be denied. (Document No. 190, pp. 4-8.) Defendants state that "the opposing party must object on the basis that the evidence offered `cannot be presented in a form that would be admissible in evidence,' not that it has not been presented in an admissible format." (Id., p. 4.)
As stated above, Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure provides that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A). "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2)(emphasis added); also se Akers, 845 F.Supp.2d at 243 (internal quotation marks and citation omitted)(The 2010 amendments to Rule 56(c)(2) "eliminated the unequivocal requirement that documents submitted in support of a summary judgement motion must be authenticated."); Foreword Magazine, Inc., 2011 WL 5169384 at *2("Significantly, the objection contemplated by the amended Rule is not that the material `has not' been submitted in admissible form, but that it `cannot' be.").
Based on the foregoing, the undersigned will consider Defendants' Exhibits A, B, F, G, H, I, and J. First, the undersigned will consider Mrs. Deakins' argument that the Exhibits A, B, F, G, and H are not properly authenticated. The undersigned notes that Mr. Deakins asserted the same objections concerning the above Exhibits. For the same reasons set forth above, the undersigned finds that Exhibits A, B, F, G, and H are properly authenticated and appropriate for consideration concerning Defendants' Motion for Summary Judgment. Next, the undersigned will consider Mrs. Deakins' argument that the Exhibits are irrelevant and inadmissible.
As Exhibit A, Defendants filed a copy of the Grand Jury Indictment, Plea Agreement, and Sentencing Order as filed in Commonwealth of Virginia v. Harry Edwards Deakins, Case No. CR 10-156-00; 156-01; 156-02 (Cir. Ct. Tazewell Co. April 28, 2011). (Document No. 181-1.) As Exhibit B, Defendants filed a copy of Arrest Warrants for Harry Deakins issued by the Tazewell County General District Court dated February 3, 2010 (Document No. 181-2, pp. 2-3.) and a copy of a "Warrant for Arrest — For Fugitive From Justice" as issued by the Mercer County Magistrate Court on April 22, 2010 (Id., pp. 4-5.). Mrs. Deakins contends that the above documents are improper pursuant to Rule 404(b) of the Federal Rules of Evidence. Rule 404(b)(1) provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order
As Exhibit F, Defendants filed a copy of the "Criminal Case History" and "Guilty or No Contest Plea" concerning State v. Harry Edward Deakins, Case No. 10-M-1236 as filed in the Magistrate County of Mercer County, West Virginia. (Document No. 181-6.) As Exhibit G, Defendants filed a copy of the "Indictment for: Attempt to Disarm a Police Officer, Battery on a Police Officer, and Brandishing a Deadly Weapon" and an Order Accepting Plea of Guilty as filed in State v. Anthony Todd Deakins, Case No. 10-F-216 (Cir. Ct. Mercer County) (Document No. 181-7.) As Exhibit H, Defendants filed a copy of the "Criminal Case History" concerning State v. Kay F. Deakins, Case Nos. 10-M-1238, 1239, 1240, 1241, as filed in the Magistrate County of Mercer County, West Virginia (Document No. 181-8.). Mrs. Deakins contends that the above documents are improper pursuant to Rule 404(b) of the Federal Rules of Evidence. The undersigned finds that the above documents are relevant and can be admissible evidence as Defendants state that on April 22, 2010, Mr. Deakins, Mrs. Deakins, and Anthony Deakins attacked Defendant Troopers when they entered the residence to execute the arrest warrant for Mr. Deakins. Defendants, therefore, state that they used an appropriate amount for force on April 22, 2010. Citing Heck, Defendants contend that Mrs. Deakins' claim of unlawful arrest is precluded due to her convictions in Case Numbers 10-M-1238, 10-M-1239, 10-M-1240, and 10-M-1241. Based on the foregoing, the undersigned finds that the documents contained in Exhibits F, G, and H (Document Nos. 181-6, 181-7, and 181-8.) may be considered for the purposes of the motion for summary judgment as the documents are relevant and can be admissible evidence. The decision as to whether the above Exhibits will be admissible at trial will be governed by the District Court's ruling on the Motion in Limine.
As Exhibits I and J, Defendants filed a copy of the transcripts from the "Video Deposition of Harry E. Deakins, Sr." and the "Video Deposition of Kay F. Deakins. (Document No. 181-9 and 181-10.) Rule 56(c)(1)(A) provides that a party may submit depositions in support of a summary judgment motion. Thus, the use of deposition testimony is proper evidence to support a motion for summary judgment. Additionally, the undersigned finds that the deposition may be authenticated. The deposition contains the "Reporter's Certificate" stating that "I do certify that said deposition was correctly taken by me, by means of Stenomask; that the same was transcribed by me or under by supervision; and that said transcript is a true
In their Motion, Defendants argue that "Ms. Deakins is now precluded from offering evidence in opposition to the [Motion for Summary Judgment] and her claims should be dismissed" because she withheld any and all testimony on Fifth Amendment grounds. (Document No. 182, pp. 5-9.) Defendants state that "Ms. Deakins' refusal to answer a single question at her deposition completely prevented Defendants from exploring the veracity of her claim." (Id., p. 7.) Defendants claim that "Ms. Deakins' refusal to testify results in her being precluded from offering evidence, including affidavits or discovery responses, in opposition to Defendants' MSJ." (Id.) Defendants, therefore, request that Mrs. Deakins' claims be dismissed. (Id., p. 8.)
In Response, Mrs. Deakins argues that "Defendants failed to object at depositions and failed to file a motion to compel deposition answers of Kay Deakins, therefore, Defendants have waived their right to subsequently challenge her alleged assertion of her 5th Amendment privilege." (Document No. 189, p. 16.) Mrs. Deakins disputes that she did not answer a "single question at her deposition." (Id.) Mrs. Deakins states that "I answered nine questions without allegedly evoking my Fifth Amendment Privilege." (Id.) Mrs. Deakins claims that "Mr. Mullins did not need to abruptly end the deposition, without continuing to ask me multiple questions in regard to the civil lawsuit." (Id., p. 16.) Mrs. Deakins states that "Mr. Mullins and/or Mr. Raupp could have continued to ask me questions for seven hours, pursuant to the FRCP." (Id., pp. 16-17.)
In Reply, Defendants argue that "by invoking her Fifth Amendment rights and refusing to answer any questions relevant to the events in question at her deposition, Plaintiff was precluded from offering evidence in opposition to the MSJ." (Document No. 190, p. 1.) Defendants argue that "as a result, Defendants clearly established that: (1) there was probable cause to arrest Plaintiff; (2) excessive force was not used; (3) since Plaintiff was lawfully arrested and not subject to excessive force, there could be no claim for intentional infliction of emotional distress; (4) the property was lawfully seized or, at the very least, the Troopers are entitled to qualified immunity; (5) there was no support for any claim against then-WVSP Superintendent T.S. Pack; and (6) Plaintiffs Third Amendment Complaint does not make any factual allegations against Troopers D.B. Rogers and P.H. Shrewsbury." (Id., pp. 1-2.) Defendants further dispute that Mrs. Deakins answered nine questions before invoking her Fifth Amendment rights. (Id., p. 9.) Specifically, Defendants state that "[a]mong the probing questions Plaintiff answered before following her husband's instruction to invoke her Fifth Amendment rights were `[w]e've never met before, have we?' and `[c]an you please state your full name for the record?'" (Id.) Defendants explain that "immediately after being asked the above questions, Plaintiff invoked her right to remain silent and affirmatively and unambiguously stated that, because her pending criminal charges were directly related to the events giving rise to this lawsuit (the truth of which these defendants do not contest), she refused to answer any
The Fifth Amendment of the United States Constitution provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself...." The Supreme Court has recognized that the Fifth Amendment may be asserted in response to a deposition question in a civil case when the answer to the question might incriminate the deponent in a future criminal proceeding. Kastigar v. United States, 406 U.S. 441, 444-445, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972)(The Fifth Amendment privilege "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used."); Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973)(The Fifth Amendment "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answer might incriminate him in future proceedings.") The privilege "does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution." Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975). The mere assertion of the privilege against self-incrimination in response to questioning does not ipso facto prohibit the questioning. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951)("The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination."); United States v. Sharp, 920 F.2d 1167, 1170 (4th Cir. 1990). "The central standard for the privilege's application has been whether the claimant is confronted by substantial and `real,' and not merely trifling or imaginary, hazards of incrimination." Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889 (1968). "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S. at 486-487, 71 S.Ct. at 818. The incriminating potential may be facially or contextually evident. United States v. Sharp, 920 F.2d at 1170. "[T]he reasonableness of the claimed apprehension should simply be assumed once incriminating potential is found, unless there are genuine questions about the government's legal ability to prosecute. That is to say, once incriminating potential is found to exist, courts should not engage in raw speculation as to whether the government will actually prosecute." Id., at p. 1171.
Furthermore, the United States Supreme Court has recognized that a court may not impose a sanction on a litigant that would make an assertion of her Fifth Amendment privilege "costly." Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The type of "cost" condemned by the Supreme Court includes (1) forcing of a party to choose between the Fifth Amendment privilege or
In the instant case, Defendants do not dispute that Mrs. Deakins had the right to invoke her Fifth Amendment privilege. The issue, however, is what effect the assertion of the Fifth Amendment privilege will have on her claims against Defendants. Defendants argue that Mrs. Deakins claims should be dismissed because her "refusal to answer a single question at her deposition completely prevented Defendants from exploring the veracity of her claims." (Document No. 182, p. 7.) Defendants, however, fail to "allege a substantial need for particular information" and that "there is no other less burdensome effective means of obtaining it." Concerning Mrs. Deakins' claim of excessive force, Defendants argue that they used an appropriate amount of force in response to an attack by Mrs. Deakins on April 22, 2010.
Defendants further argue that all of Mrs. Deakins' claims should be dismissed because she "is now precluded from offering evidence in opposition to the MSJ." (Document No. 182, p. 8.) Although Mrs. Deakins' assertion of her Fifth Amendment privilege may preclude her from offering her own Affidavit, Mrs. Deakins may offer documentary evidence or testimony from other witnesses. In re Edmond, 934 F.2d at 1308-09 (4th Cir.1991)(a district court is justified in striking an affidavit when a party has selectively asserted "his Fifth Amendment privilege ... as a shield to oppose depositions while discarding it for the limited purpose of making statements to support a summary judgment motion."); also see United States v. Parcels of Land, 903 F.2d at 43. Accordingly, the undersigned recommends that Defendants' Motion for Summary Judgment based upon the above should be denied.
In their Motion, Defendants Long, Jackson, Baker, and Wade argue that they are entitled to summary judgment as to Mrs. Deakin's claim of unlawful arrest. (Document No. 182.) Defendants argue that they lawfully entered the residence because "(1) there was a valid warrant for her husband's arrest; (2) the troopers knew that Mr. Deakins was inside; and (3) Ms. Deakins attacked Trooper Baker." (Id., p. 15.) Defendants state that Mrs. Deakins "was found guilty of three charges stemming from her attack on Trooper Baker." (Id.) Citing Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), Defendants argue that Mrs. Deakins "cannot bring a lawsuit with claims that, if successful, would undermine the validity of her prior criminal convictions." (Id.)
In Response, Mrs. Deakins states that "I have never been convicted of any charges against any Defendant(s) [including Trooper Baker]." (Document No. 189, p. 17.) Mrs. Deakins states that she has appealed her misdemeanor convictions. (Id., pp. 17-18.) Mrs. Deakins explains that she is entitled to a trial de novo in Circuit Court. (Id., p. 18.) Mrs. Deakins, therefore, contends that she has not yet been convicted of any charges. (Id., pp. 17-18.)
The undersigned finds that Defendants' Motion for Summary Judgment should be granted to the extent Mrs. Deakins is challenging the validity of her arrest. Based upon a review of the record, arrest warrants were issued for Mr. Deakins based upon an Indictment charging him with malicious wounding, unlawful wounding, and destruction of personal property returned by the Grand Jury in Tazewell County, Virginia. (Document Nos. 181-1 and 181-2.) As a result of her conduct at the time of Mr. Deakins' arrest on April 22, 2010, Mrs. Deakins was arrested and charged with obstruction of an officer, battery on an officer, and assault on an officer in Mercer County, West Virginia. (Document No. 181-8.) On September 28, 2012, Mrs. Deakins was found guilty in Mercer County Magistrate Court of the charges of obstruction of an officer, battery on an officer, and assault on an officer. (Id.) In the instant case, Mrs. Deakins alleges that her constitutional rights were violated during the course of her arrest on April 22, 2010. Specifically, Plaintiff appears to
Id. at 486-87, 114 S.Ct. at 2372; also see Ballenger, 352 F.3d at 842. There is no evidence that Mrs. Deakins either successfully appealed her convictions or filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody. The undersigned, therefore, finds that because Mrs. Deakins has not demonstrated that her criminal convictions have been invalidated, Mrs. Deakins' Section 1983 claim is not cognizable pursuant to Heck. Accordingly, the undersigned respectfully recommends that the claims of unlawful arrest be dismissed.
In their Motion, Defendants Long, Jackson, Baker, and Wade argue that they are entitled to summary judgment as to Mrs. Deakin's claim of unlawful seizure of electronics. (Document No. 182, pp. 10-13, 17.) Specifically, Defendants explain that they observed surveillance equipment upon entering the Deakins' property. (Id., p. 10.) Defendants state that they seized a camera and two personal computers from the Deakins' residence because they believed "that the electronics seized could possibly contain footage of the attack" upon Defendants. (Id.) Defendants Long, Jackson, Baker, and Wade argue they are "entitled to qualified immunity for any mistake in believing that this equipment could be seized, since qualified immunity protects `all but the plainly incompetent or those who knowingly violate the law.'" (Id.) Defendants contend that "none of the Troopers violated Plaintiff's clearly established statutory or constitutional rights by taking this electronic equipment." (Id., p. 13.) Defendants explain that "[t]hese Troopers, who were attacked by Mr. and Mrs. Deakins and their son, Anthony, noticed the surveillance system in place and believed that it may have been connected to computers, which were located in the room in which they arrested their three attackers." (Id.) Defendants argue that their decision to seize "what they believed may be evidence of the crimes committed against them," was reasonable and not in violation of any clearly established constitutional right. (Id.)
In Response, Mrs. Deakins states that she "will rely upon her husband's arguments, case law as previously presented [Section VII, pages 13, 14, 15, 16, & 17], in my husband's `Plaintiff Harry E. Deakins, Sr. Response/Memorandum in Opposition to Defendants' Motion for Partial Summary
The undersigned finds that Defendants and Mrs. Deakins present the identical arguments as addressed in Defendants' Motion for Summary Judgment against Mr. Deakins. For the same reasons set forth above, the undersigned recommends that Defendants' Motion for Summary Judgment as to the seizure of electronic equipment be granted in part and denied in part. Specifically, the undersigned recommends that Defendants Long, Jackson, Baker, and Wade be denied summary judgment concerning the seizure of the two personal computers and granted summary judgment as to the seizure of the digital camera.
In his Motion, Defendant Pack contends he is entitled to summary judgement. (Document No. 182, pp. 13-14, 16-17.) Defendant Pack first states that "Ms. Deakins lacks any evidence that the defendant troopers were negligently trained or supervised or that Mr. Pack had any personal involvement in this incident." (Id., p. 17.) Defendant Pack further contends there is no evidence that Mr. Pack was involved in the incident occurring on April 22, 2010, or had reason to know that such an incident would occur. (Id., p. 14.) Mrs. Deakins' Response fails to address Defendant Pack's request for summary judgment. (Document No. 189.) Defendant Pack, therefore, argues that he is entitled to summary judgment. (Document No. 190, p. 2).
As stated above, "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. * * * Because vicarious liability is inapplicable to... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the officials own individual actions, has violated the Constitution." Ashcroft, 556 U.S. at 676, 129 S.Ct. at 1948. To establish liability under Section 1983 for a supervisory defendant, the plaintiff must establish the following:
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994). A supervisor's mere knowledge of a subordinate's unconstitutional conduct is not enough. Slakan, 737 F.2d at 373. Rather, Section 1983 liability may be imposed upon a supervisor only on the basis of purposeful "violations of his or her supervisory responsibilities." Ashcroft, 556 U.S. at 676, 129 S.Ct. at 1949.
In his Motion, Defendant Pack argues there is no evidence that Defendant Troopers were "negligently trained or supervised or that Mr. Pack had any personal involvement in this incident." Defendant Pack states that it is undisputed that he was not at the Deakins' residence or the Princeton Detachment on April 22, 2010. Finally, Defendant Pack argues that "there is no evidence that any Troopers were `engaged in conduct that posed `a pervasive and unreasonable risk' of constitutional injury to citizens like' Ms. Deakins." Once the moving party demonstrates the lack of evidence to support the non-moving party's claims, the non-moving
In their Motion for Summary Judgment, Defendants argue that "Ms. Deakins has made no allegation against Troopers Shrewsbury or Rogers." (Document No. 182, p. 4.) In Response, Mrs. Deakins argues that she has asserted claims against Defendants Rogers and Shrewsbury. (Document No. 189, p. 4.) Specifically, Mrs. Deakins states that she is suing Defendants Rogers and Shrewsbury for "conspiratorial liability pursuant to 42 U.S.C. §§ 1983 and 1985." (Id.) Additionally, Mrs. Deakins argues that she alleged claims of excessive force, intentional infliction of emotional distress, and unlawful arrest by both Defendants. (Id. p. 5.) Finally, Mrs. Deakins states that she alleged a claim of unreasonable search and seizure by Defendant Shrewsbury. (Id.) In support of her claims, Mrs. Deakins references her Answer to Interrogatory Number 9. (Id., p. 4 and Document No. 189-3, pp. 30-32.)
In Reply, Defendants argue that Plaintiff has presented no evidence to support a claim against Defendant Rogers as Plaintiff's Answer to Interrogatory Number 9 does not mention Defendant Rogers. (Document No. 190, p. 12.) Defendants further assert that "it is unclear how Plaintiff's Answer to Int. No. 9, which reads like a litany of conclusory allegations, established wrongdoing against Trooper Shrewsbury." (Id.) Defendant Shrewsbury argues that Mrs. Deakins concludes that he "failed to comply with the West Virginia State Police Evidence Maintenance & Security Policy," "failed to stop the alleged use of force against her husband," "failed to properly identify her husband prior to the other troopers' arrival at her home," "failed to render first aid to either her or her husband," improperly "accessed her personal computer's hard drive," and "engaged in a conspiracy to either harm or engaged in a cover up of harm done to her." (Id., pp. 13-14.) Defendants argue that the foregoing is not evidence, but is merely conclusory allegations by Mrs. Deakins. (Id.) Accordingly, Defendants Rogers and Shrewsbury claim they are entitled to summary judgment. (Id.)
As stated above, to establish a civil conspiracy under Section 1983, a plaintiff must present evidence that "the defendants conspired or acted jointly or in concert and that some overt act was done in
To establish a conspiracy under Section 1985(3)
Based upon a review of the record, there is no evidence that Defendants Rogers or Shrewsbury conspired in violation of Sections 1983 or 1985. Plaintiff first contends that Defendants Rogers and Shrewsbury conspired to the use excessive force or the "unnecessary infliction of pain and suffering." The undersigned, however, finds no allegation or evidence that Defendant Rogers or Shrewsbury had any physical contact with Mrs. Deakins or were present at the Deakins' residence where the alleged use of excessive force occurred. Next, Mrs. Deakins contends that Defendant Shrewsbury conspired to inflict unnecessary pain by failing to render first aid. The record, however, reveals that Mrs. Deakins was transferred to the hospital for medical treatment. (Document No. 60, p. 16, Document No. 189-2, pp. 25-27, and Document No. 181-3, pp. 9-10.) Thus, Mrs. Deakins merely contends that Defendants Rogers and Shrewsbury conspired to the use of excessive force and infliction of unnecessary pain because they were present at the detachment. Based on the foregoing, the Court finds that Mrs. Deakins' claim that Defendants Rogers and Shrewsbury conspired to the use of excessive force and the infliction of unnecessary pain is speculative and conclusory. Mere conclusory allegations of a conspiracy do not demonstrate the "meeting of the minds" element and therefore, fails to state a cognizable claim under either Section 1983 or Section 1985. See Simmons, 47 F.3d at 1376; Brown v. Angelone, 938 F.Supp. at 346. There is no evidence that Defendants Rogers and Shrewsbury formed an agreement to allow Defendant Troopers to use excessive force or inflict unnecessary pain upon Mrs. Deakins. Additionally, there is no evidence that Defendants Rogers and Shrewsbury personally observed a violation of the law
Mrs. Deakins argues that Defendants Rogers and Shrewsbury used excessive force, intentionally inflicted emotional distress, unlawfully arrested her, "failed to properly identify her husband prior to the other troopers' arrival at her home," and "failed to render first aid to ... her husband." Mrs. Deakins also alleges that Defendant Shrewsbury engaged in an unreasonable search and seizure.
First, the undersigned will consider Mrs. Deakins claim of excessive force and unlawful arrest by Defendants Rogers and Shrewsbury. The Court finds no allegation or evidence that Defendants Rogers or Shrewsbury had any physical contact with Mrs. Deakins or were present at the Deakins' residence where the alleged use of excessive force and arrest occurred. Thus, Mrs. Deakins' claim against Defendants Rogers and Shrewsbury for excessive force and unlawful arrest should be dismissed.
Next, the undersigned will consider Mrs. Deakins claim that Defendants Rogers and Shrewsbury "failed to properly identify her husband prior to the other troopers' arrival at her home," and "failed to render first aid to ... her husband." The Court finds that Mrs. Deakins has no claim based upon her allegation that Defendants failed to stop the alleged use of force against her husband, "failed to properly identify her husband prior to the other troopers' arrival at her home," and "failed to render first aid to ... her husband."
Third, the Court will consider Mrs. Deakins claim that Defendant Shrewsbury engaged in an unreasonable search and seizure. The undersigned finds no evidence that Defendant Shrewsbury was present or participated in any search and seizure of property within the Deakins' residence. Although Mrs. Deakins alleges that Defendant Shrewsbury improperly accessed information on her personal computers, she points to no evidence supporting this claim. (Document No. 181-11, pp. 12-13, 35 and Document No. 190-1, pp. 7-8.) Thus, the undersigned finds that the above claim should be dismissed.
Finally, the undersigned will consider Mrs. Deakins' claim of intentional infliction of emotional distress by Defendants Rogers and Shrewsbury. To prevail on a claim of intentional infliction of emotional distress, a plaintiff must prove the following: "(1) the defendant's conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) 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 its conduct; (3) the actions of the defendant caused the plaintiff to suffer emotional distress; and (4) 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 Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419, 425 (W.Va.1998). The undersigned finds that Mrs. Deakins' claim of intentional infliction of emotion distress should be dismissed because there is no evidence of "atrocious, intolerable" or "extreme and outrageous" conduct by Defendants Rogers and Shrewsbury. See Johnson v. Hills Dept. Stores, Inc., 200 W.Va. 196, 199, 488 S.E.2d 471, 474 (1997)("It has not been enough that the defendant has acted with an intent which is tortious or even criminal ... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regard as atrocious, and utterly intolerable in a civilized community.")
Based upon the foregoing, it is therefore respectfully
The Plaintiff is hereby notified that this "Proposed Findings and Recommendation" is hereby
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.1989); Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wright v. Collins, 766 F.2d 841, 846 (4th Cir.1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984). Copies of such objections shall be served on opposing parties, Judge Berger and this Magistrate Judge.
The Clerk is requested to send a copy of this Proposed Findings and Recommendation to Plaintiffs, who are acting pro se, and transmit a copy to counsel of record.
