United States District Court, S.D. West Virginia, Charleston
STEVEN W. COMPT and CRYSTAL PAULEY, Plaintiffs,
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.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge
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).
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
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.)
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.
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.)
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.)
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.) From this point
forward, the parties recount starkly divergent stories of
what happened during and after the arrest.
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.
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.)
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.
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.)
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.)
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.
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.)
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.)
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 ...