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Compton v. O'Bryan

United States District Court, S.D. West Virginia, Charleston

February 9, 2018

SGT. LARRY G. O'BRYAN, individually; SGT. TRAVIS BERRY, individually; TROOPER JOSEPH M. COMER, individually; TROOPER BRADLEY LOWE, individually; TROOPER ROBERT MINOR, individually; TROOPER S.L. YARBER, individually; and TROOPER J.R. POWERS, individually, Defendants.


          John T. Copenhaver, Jr. United States District Judge

         Pending is a motion for partial summary judgment, filed by defendants Larry O'Bryan, Joseph Comer, Bradley Lowe, Robert Minor, S.L. Yarber, and J.R. Powers on September 21, 2017. Defendant Travis Berry does not join in this motion because this action is stayed as to him, pursuant to the court's August 21, 2017, order. (See Mem. Supp. 1.) Sergeant Berry “was ordered to active military duty and was not able to be deposed prior to his deployment, despite a good faith attempt by the parties to do so.” Court's August 21, 2017, order (ECF #28).

         As an initial matter, after the court's December 28, 2016, order of dismissal, nine of the plaintiffs' original ten claims remained. In response to the pending motion, the plaintiffs now stipulate to various dismissals of their remaining claims.

Plaintiff Crystal Pauley stipulates to the dismissal of all [c]ounts against all defendants. Plaintiff Steven Compton stipulates to the dismissal of all counts against Defendant Larry O'Bryan, Defendant Robert Minor, Defendant S.L. Yarber, and Defendant J.R. Powers.

(Resp. Opp'n 1.) Furthermore, Mr. Compton also stipulates to the dismissal of Counts II, V, VII, and X against Sergeant Berry, Trooper Lowe, and Trooper Comer and to the dismissal of Count IX against Mr. Comer. (See id. 3, 6-7.)

         Thus, in accordance with the plaintiffs' stipulations, Ms. Pauley's claims are dismissed; Mr. Compton's claims against Sergeant O'Bryan, Trooper Minor, Trooper Yarber, and Trooper Powers are dismissed; Counts II, V, VII, and X against Sergeant Berry, Trooper Lowe, and Trooper Comer are dismissed; and Count IX against Trooper Comer is dismissed. Only Mr. Compton remains as a plaintiff in this action, and his surviving claims are as follows: Counts I (excessive force), III (battery), IV (assault), and VI (intentional infliction of emotional distress) against Sergeant Berry, Trooper Lowe, and Trooper Comer and Count IX (bystander liability) against Sergeant Berry and Trooper Lowe.

         I. Background

         Mr. Compton was a resident of South Charleston, West Virginia, at all times relevant herein. (Mem. Supp., Ex. 1 at 1-2.) Sergeant Berry and Trooper Lowe were members of the “Special Response Team, ” which is activated when police anticipate facing a “high risk” situation. (Deposition of Trooper Lowe (“Lowe Dep.”) 6-7.) Trooper Comer was a member of a separate special operations team. (Id. 7.)

         Sometime prior to October 8, 2014, Mr. Compton's ex-girlfriend, Kimberly Derkin, reported to the police that Mr. Compton was planning to murder Trooper Minor in retaliation for a prior arrest and that Mr. Compton was a drug dealer. (Lowe Dep. 10-11; Deposition of Steven W. Compton (“Compton Dep.”) 39; Deposition of Crystal Pauley (“Pauley Dep.”) 34.) According to Ms. Derkin, Mr. Compton had recently acquired a gun, was violent, had been following Trooper Minor to his home, and had been calling Trooper Minor's police detachment in an effort to learn his schedule. (Lowe Dep. 10-11; Compton Dep. 39.) Ms. Derkin evidently gave the police “a description roughly” of where Trooper Minor lived based on Mr. Compton's alleged activities. (Deposition of Trooper Minor (“Minor Dep.”) 8.) Mr. Compton does not deny calling Trooper Minor's police detachment, but he claims that he called attempting to retrieve some of his belongings, such as his driver's license, that were confiscated during the prior arrest. (Compton Dep. 39.)

         On October 8, 2014, Sergeant Berry, Trooper Lowe, and Trooper Comer (together, the “Troopers”) executed arrest and search warrants for Mr. Compton. (See Mem. Supp., Ex. 1 at 1-2; Lowe Dep. 7, 10-11.) The Troopers, donning tactical “kits” including vests and helmets, waited for Mr. Compton near his home address, with Sergeant Berry and Trooper Lowe in a van and Trooper Comer in a marked police car. (See Deposition of Trooper Comer (“Comer Dep.”) 6-7.)[1] From this point forward, the parties recount starkly divergent stories of what happened during and after the arrest.

         In his description of the events, Mr. Compton states that he cannot remember who attacked him, just that the attackers were police officers. (Compton Dep. 66.) The officers told him to put up his hands and pulled him from his vehicle. (Id.) Then, the officers threw him face-first onto the ground, hit him in the back of the head with the butt of a shotgun, and cuffed his hands behind his back. (Id.) He cannot recall the sequence of those three events because “it knocked [him] out for a few seconds.” (Id. 66-67, 69). Mr. Compton regained consciousness to the officers having sicced a dog on his left arm while he was unconscious, where the dog held its bite and “chew[ed]” for five minutes. (Id. 67-69.)

         Additionally, Mr. Compton claims that, while handcuffed, the officers kicked him in the ribs “[a] couple” of times and punched or struck him in the head with an object “about three times.” (Id. 67-68.) The blows to the head occurred as the officers interrogated him, asking questions such as whether he knew Trooper Minor and Ms. Derkin. (Id. 68-69.) The officers also berated Mr. Compton during the beating, raving “you know Trooper Minor[, ] . . . I trained him, I worked with him, he's a good friend of ours, you know, you think you're going to treat one of our, you know, police, you know, brothers this way.” (Id. 68.)

         According to Troopers Lowe and Comer, Sergeant Berry and Trooper Lowe approached Mr. Compton's vehicle, where Trooper Lowe opened the door, announced their presence, and instructed Mr. Compton to show his hands and exit the vehicle. (Lowe Dep. 18.) Mr. Compton refused. (Id.) Sergeant Berry then tried to pull Mr. Compton out of the vehicle, but Mr. Compton grabbed the steering wheel and “slapp[ed] at Sergeant Berry's arms.” (Id.) Sergeant Berry continued to struggle with Mr. Compton, pulling on and striking at Mr. Compton's arms. (Id. 18-20.) Since Sergeant Berry could not by himself remove Mr. Compton from the vehicle, one of Sergeant Berry or Trooper Lowe shouted “dog up” - a command used both to request the assistance of a police dog and to announce the police dog's approach. (Id. 19; see Comer Dep. 6-8.)

         From Trooper Comer's perspective, he “hook[ed] up the dog” while Sergeant Berry and Trooper Lowe approached Mr. Compton's vehicle. (Comer Dep. 6-7.) As he approached, Trooper Comer could hear the others shouting commands at Mr. Compton. (Id.) He stopped next to the front driver's side tire of the police van, which was parked behind Mr. Compton's vehicle, until he heard Sergeant Berry shout “dog up.” (Id. 7-8; see Lowe Dep. 19.) Trooper Comer confirmed with his own “dog up, ” approached the vehicle, and sicced the dog onto Mr. Compton's left arm after Mr. Compton refused Trooper Comer's command to exit the vehicle. (Comer Dep. 7-8; see Lowe Dep. 19.)

         Although the dog had latched onto Mr. Compton's arm, he still refused to exit the vehicle. (Comer Dep. 11.) Sergeant Berry and the dog then forcefully removed Mr. Compton from the vehicle and onto the ground. (Id. 11-12; Lowe Dep. 19.) Mr. Compton tucked his arms under his body, and Trooper Lowe assisted Sergeant Berry in getting Mr. Compton's arms behind his back and handcuffing him. (Comer Dep. 12; Lowe Dep. 20.) After the handcuffs were on, Trooper Comer gave the dog the release command, and the dog released its bite. (Comer Dep. 12.) Finally, the Troopers searched Mr. Compton and waited for additional officers to arrive and transport him away. (Lowe Dep. 23.)

         The Troopers deny using against Mr. Compton anything other than physical presence, verbal commands, “empty hand tactics” to the torso area, and a police dog. (See id. 23-24; Comer Dep. 12-13.) “Empty hand tactics” are essentially the use of hands without a weapon. (See Lowe Dep. 19-20.) Troopers Comer and Lowe deny that Mr. Compton was ever struck on the head. (Id. 23; Comer Dep. 12-13.) Trooper Comer denies ever personally touching Mr. Compton, although the police dog bit and released upon his command. (See Comer Dep. 9-12.)

         For her part, Ms. Pauley, who was also arrested that night, claims that she never saw the Troopers strike Mr. Compton, although she did witness the police dog on Mr. Compton's arm. (Pauley Dep. 43-44.) However, Trooper Powers had “slammed [her] down onto the road” and arrested her about fifty or sixty feet from Mr. Compton, preventing her from seeing Mr. Compton until she was loaded into a police car. (See Id. 36-39, 44, 50.) Trooper Powers denies being at the scene when Ms. Pauley was arrested. (Affidavit of J.R. Powers ¶ 2.)

         As a result of his arrest, Mr. Compton suffered a laceration to his head and various injuries to his left arm. (See Resp. Opp'n, Ex. 4 Pictures of Mr. Compton's Injuries.) The head laceration required stapling, and the injuries to his left arm required stiches. (Compton Dep. 81.) Dr. Michael Sitler, an emergency medicine physician, swears as follows regarding Mr. Compton's head laceration:

To a reasonable degree of medical certainty, it is my opinion that the laceration on Mr. Compton's head was caused by the blunt force trauma of an object with a rounded end or edge. In my opinion, Mr. Compton's head injury was caused by an object, not a closed fist, elbow, or dog bite.

(Affidavit of Dr. Michael Sitler ¶¶ 1-3.)

         Mr. Compton filed suit against the Troopers in this court on October 3, 2016. As earlier described, five of Mr. Compton's claims have survived to this point. Against the Troopers, Mr. Compton brings claims of excessive force (Count I), battery (Count III), assault (Count IV), and intentional infliction of emotional distress (Count VI). Against Sergeant Berry and Trooper Lowe, Mr. Compton brings a claim of bystander liability (Count IX). Mr. Compton ...

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