United States District Court, N.D. West Virginia
JAMES R. ASBURY, Plaintiff,
RITCHIE COUNTY COMMISSION, a political subdivision of the State of West Virginia; BRYAN BACKUS, individually; RON BARNIAK, individually, Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 25] AND
GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DKT.
M. KEELEY UNITED STATES DISTRICT JUDGE
§ 1983 action that was removed from the Circuit Court of
Ritchie County (Dkt. No. 1). Now pending are the parties'
cross motions for summary judgment. For the reasons that
follow, the Court DENIES the plaintiff's
motion (Dkt. No. 25), and GRANTS the
defendants' motion (Dkt. No. 27).
plaintiff, James R. Asbury (“Asbury”), was
employed as a deputy sheriff with the Ritchie County
Sheriff's Department (“RCSD”) from May 2011
until May 2015, when he was placed on paid administrative
leave. Asbury was terminated from the RCSD effective December
31, 2015. At all time relevant, defendant Bryan Backus
(“Backus”) was the Sheriff of Ritchie County, and
defendant Ronald Barniak (“Barniak”), the former
Sheriff of Ritchie County, was serving as the Chief
Administrator of the RCSD.
deputy, Asbury was assigned to use a Dodge Durango as his
police cruiser. Vehicles used by RCSD deputies are owned by
the Ritchie County Commission (the “Commission”)
and issued to the deputies for use during their employment.
According to RCSD policy, deputies are not permitted to use
their assigned vehicles for personal or other
the course of Asbury's employment as a deputy, Backus and
Barniak noticed that Asbury's reported monthly
“activity levels, ” such as criminal
investigations, citations, and service of process, were
substantially lower than his fellow deputies' reported
levels. In an attempt to ascertain why Asbury's activity
levels were below those of his fellow deputies, Backus and
Barniak decided to install a GPS unit on Asbury's Durango
in order to monitor its whereabouts while Asbury was on duty.
unit tracked Asbury's cruiser any time it was in use and
thus provided data to the RCSD regarding the vehicle's
location, the times it was being used, and its speed. Neither
Backus nor Barniak informed Asbury of the GPS installation.
The GPS monitoring took place from approximately October,
2013, through May, 2014.
about May 22, 2014, Asbury became aware of the GPS device
after he was charged in a criminal complaint with the felony
offense of falsifying accounts, based on what the defendants
alleged were discrepancies in the duty logs submitted by
Asbury and the data recorded by the GPS unit in his cruiser.
Backus testified to a grand jury on January 26, 2015,
following which the grand jury indicted Asbury of eight
felony counts of falsifying accounts in violation of W.Va.
Code § 61-3-22, and one misdemeanor count of
embezzlement in violation of W.Va. Code § 61-3-20.
the course of the state criminal proceedings, Asbury moved to
suppress the GPS data. Relying primarily on United States
v. Jones, 565 U.S. 400 (2012), the Circuit Court of
Ritchie County suppressed the data gathered by the GPS
device, ruling that its installation in Asbury's vehicle
required a warrant (Dkt. No. 27-7). Following the suppression
of the GPS data, the state moved to dismiss the charges
23, 2016, Asbury initiated this civil action against the
defendants by filing a complaint in the Circuit Court of
Ritchie County (Dkt. No. 1-2). The first count raises a state
law negligence claim against the Commission. The remaining
four counts assert a number of federal constitutional claims
under 42 U.S.C. § 1983, consisting of an illegal search
under the Fourth Amendment related to the warrantless
installation and monitoring of the GPS unit in Asbury's
vehicle,  as well as separate but related
constitutional violations, namely that the Commission had
customs or policies that authorized the violation of RCSD
employees' Fourth Amendment rights. On June 22, 2016, the
defendants removed the case to this Court.
to 28 U.S.C. § 1331, the Court has jurisdiction over
Asbury's federal claims inasmuch as Section 1983 is a
federal statute through which deprivation of constitutional
rights may be redressed. A district court properly invested
with jurisdiction can also exercise supplemental jurisdiction
over state law claims that “form part of the same case
or controversy.” 28 U.S.C. § 1367, see also
United Mine Workers of Am. v. Gibbs, 383 U.S. 715
(1966). Accordingly, the Court has jurisdiction over all of
pending are the parties' cross motions for summary
judgment. Asbury has moved for summary judgment on his Fourth
Amendment claim. The defendants have moved for summary
judgment on all counts. The motions are fully briefed and
ripe for disposition.
STANDARD OF REVIEW
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 judgment as a matter of
law.” Fed.R.Civ.P. 56(c). When ruling on a motion for
summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving
party. Providence Square Assocs., L.L.C. v. G.D.F.,
Inc., 211 F.3d 846, 850 (4th Cir. 2000). The Court must
avoid weighing the evidence or determining its truth and
limit its inquiry solely to a determination of whether
genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
moving party bears the initial burden of informing the Court
of the basis for the motion and of establishing the
nonexistence of genuine issues of fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
has made the necessary showing, the non-moving party
“must set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
at 256 (internal quotation marks and citation omitted). The
“mere existence of a scintilla of evidence”
favoring the non-moving party will not prevent the entry of
summary judgment; the evidence must be such that a rational
trier of fact could reasonably find for the nonmoving party.
Id. at 248-52.
42 U.S.C. § 1983 Claims
of Asbury's claims stem from alleged violations of 42
U.S.C. § 1983, which provides as follows:
person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory
relief was unavailable. For the purposes of this section, any
Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District
succeed on a § 1983 claim, a plaintiff must show that
(1) he was deprived of a right “secured by the
Constitution and the laws” of the United States, and
(2) the individual who deprived him of the right was acting
under color of state law. Lugar v. Edmonson Oil Co.,
457 U.S. 922, 930 (1982) (internal citations omitted).
Generally, a public employee acts under color of law
“while acting in his official capacity or while
exercising his responsibilities pursuant to state law.”
Conner v. Donnelly, 42 F.3d 220, 223 (4th Cir. 1994)
(quoting West v. Atkins, 487 U.S. 42, 50 (1988)).
1983 “‘is not itself a source of substantive
rights, ' but merely provides ‘a method for
vindicating federal rights elsewhere conferred.'”
Graham v. Connor, 490 U.S. 386, at 393-94 (1989)
(quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3
(1979)). In order to determine what standard applies, courts
must first isolate “the specific constitutional right
allegedly infringed.” Baker, 443 U.S. at 140.
Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated ....” U.S. Const. amend. IV. It is from
the clear language of the Fourth Amendment that courts derive
the standard applicable to alleged violations of it. See
Graham, 490 U.S. at 394-95.
seeks summary judgment on Count II of the complaint (Dkt. No.
25). The defendants seek summary judgment on all counts (Dkt.
No. 27). Each of Asbury's claims relate directly or
indirectly to the individual defendants' installation and
monitoring of the GPS unit in his vehicle.
Count I - Negligence
Count One of the complaint, Asbury asserts a negligence claim
against the defendants (Dkt. No. 1-2 at ¶¶ 27-30).
During discovery, Asbury clarified that this claim is solely
against the Commission (Dkt. No. 27-6 at 8-9).
alleges that the Commission negligently violated his Fourth
Amendment rights to be free from unreasonable search and
seizure by placing a GPS unit on his vehicle and monitoring
him for a period of five months, without a warrant. The