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Asbury v. Ritchie County Commission

United States District Court, N.D. West Virginia

January 16, 2018

JAMES R. ASBURY, Plaintiff,
RITCHIE COUNTY COMMISSION, a political subdivision of the State of West Virginia; BRYAN BACKUS, individually; RON BARNIAK, individually, Defendants.



         This is § 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).

         I. BACKGROUND

         The 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.

         As a 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 non-governmental business.

         During 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.

         The GPS 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.

         On or 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.

         During 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 against Asbury.

         On May 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, [1] 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.

         Pursuant 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 Asbury's claims.

         Now 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.


         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 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).

         The 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.


         A. 42 U.S.C. § 1983 Claims

         Several of Asbury's claims stem from alleged violations of 42 U.S.C. § 1983, which provides as follows:

         Every 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 of Columbia.

         To 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)).

         Section 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.

         B. Fourth Amendment

         The 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.

         V. DISCUSSION

         Asbury 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.

         A. Count I - Negligence

         In 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).

         Asbury 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 ...

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