Argued: October 27, 2016
from the United States District Court for the Northern
District of West Virginia, at Wheeling. John Preston Bailey,
District Judge. (5:14-cv-00116-JPB)
Lee Williams, STEPTOE & JOHNSON PLLC, Morgantown, West
Virginia, for Appellant.
G. McCoid, MCCAMIC, SACCO & MCCOID, P.L.L.C., Wheeling,
West Virginia, for Appellee.
A. Solomon, Robert L. Bailey, STEPTOE & JOHNSON PLLC,
Morgantown, West Virginia, for Appellant.
J. Harris, HARRIS LAW OFFICES, Wheeling, West Virginia, for
NIEMEYER, KING, and AGEE, Circuit Judges.
and remanded with instructions by published opinion. Judge
Agee wrote the opinion, in which Judge Niemeyer and Judge
Pegg sued West Virginia State Trooper Grant Herrnberger,
alleging that Herrnberger used excessive force in
effectuating the arrest of Pegg, in violation of state and
federal law. Herrnberger appeals the district court's
denial of his motion for summary judgment based upon that
court's holding Herrnberger was not, as a matter of law,
entitled to qualified immunity. For the reasons that follow,
we reverse the district court's order denying
Herrnberger's motion for summary judgment and remand with
instructions to enter judgment in favor of Herrnberger.
August 4, 2013, Herrnberger and another trooper, William
Beck, were examining an abandoned vehicle on the side of the
road when Brandon Pegg drove by slowly in his truck with the
driver's side window open. Herrnberger noticed the truck
had an expired inspection sticker and called out to Pegg to
stop the vehicle. Pegg did not stop and sped away. The
troopers then left in pursuit of Pegg's truck and
eventually pulled him over.
approached the driver's side of Pegg's vehicle to
speak with Pegg while Herrnberger approached the passenger
side to speak with the front passenger, Robert Beever. When
Herrnberger asked to see Beever's identification, Pegg
asked why Beever needed to produce identification.
contends that Pegg then reached for something between his
legs, a claim Pegg denies. Herrnberger asserts that
Pegg's reaching motion appeared suspicious, so he
approached the driver's door and ordered Pegg out of his
truck. Pegg complied and followed Herrnberger to the rear of
Pegg's truck. Herrnberger then instructed Pegg to face
the truck, put his hands behind his back, and lock his hands
together. Before Pegg turned to face the truck, Herrnberger
demonstrated how Pegg should lock his hands together.
placed his left hand at the small of his back and began to
bring his right arm behind his back, but did not interlock
his hands as instructed. Herrnberger grabbed Pegg's right
arm. Pegg then turned and said "Why is this happening or
something along those lines" to Herrnberger and pulled
his right arm away from the trooper. J.A. 46. Herrnberger
then pushed Pegg against the truck with his left arm, and
attempted to pull Pegg's right arm back, which Pegg
resisted. Herrnberger then took Pegg to the ground, and both
troopers pinned Pegg there and handcuffed him in an event
that took less than forty seconds before Pegg was helped to
his feet. As a result, Pegg claims he suffered minor scrapes
and abrasions on his head, which he treated with peroxide and
Neosporin, but did not seek medical attention.
troopers arrested Pegg for assaulting a police officer (
W.Va. Code § 61-2-10b(e)), obstructing an officer (
W.Va. Code § 61-5-17(a)), and driving with an expired
inspection sticker ( W.Va. Code § 17C-16-9). Pegg was
jailed for 8-12 hours before released. A magistrate judge
dismissed the assault charge for lack of probable cause, and
the prosecuting attorney dismissed the rest of the charges
for reasons not apparent on the record.
then filed a complaint in the U.S. District Court for the
Northern District of West Virginia against Herrnberger,
individually and in his official capacity pursuant to 42
U.S.C. § 1983. The complaint alleged federal claims of
unlawful arrest, retaliatory arrest, and excessive force, and
state claims of outrage/intentional infliction of emotional
distress and battery. Herrnberger filed a motion for summary
judgment, arguing that the suit was barred against him in his
official capacity based on sovereign immunity and in his
individual capacity because of qualified immunity.
district court granted Herrnberger's motion for summary
judgment in part and denied it in part. All claims against
Herrnberger in his official capacity were dismissed as barred
by sovereign immunity. Pegg does not challenge the district
court's ruling as to the official capacity
claims. The district court denied
summary judgment for the ...