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Stephens v. Kern

United States District Court, S.D. West Virginia, Huntington Division

January 17, 2019

RICHARD KERN, HPD. PFC 428, TRAVIS HAGAN, HPD. CPL. 420, JOHN DOE #1, and JOHN DOE #2, Defendants.



         Pending before the Court are Defendants' Motion for Summary Judgment and supporting Memorandum of Law. (ECF Nos. 35 and 36) By Order entered on July 13, 2017, this matter was transferred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 13) Having examined the Complaint (ECF No. 2) and having considered the pleadings filed herein, as well as pertinent legal authority, the undersigned concludes that Defendants' Motion should be GRANTED.


         The background of this case concerns events occurring on December 15, 2016 when Plaintiff was stopped by Defendants Kern and Hagan for an alleged DUI investigation. Plaintiff asserts that he exited his vehicle and was “seated on the grass” in the back yard of a residence. Plaintiff then heard a K-9 and “curled up in the fetal position” although Defendants “clearly saw” that Plaintiff was not resisting arrest or fleeing. Defendants ordered the K-9 to attack Plaintiff which caused “deep lacerations and cut arteries, tendons” to his left arm. Despite Plaintiff's repeated requests to stop the K-9, Defendants only laughed at Plaintiff. Plaintiff asserts that Defendants also stated, “how does that feel nigger.” Plaintiff begged Defendants to stop and “felt less than human” but Defendants laughed and stated that “it was exciting to them to watch.”

         Plaintiff asks for $250, 000 for the damages to his left arm and $200, 000 in punitive damages because of the “long term harm” he suffered because this was a racially motivated attack.


         On January 26, 2017, Plaintiff, pro se, [1] filed his civil Complaint against Defendants, Huntington police officers Richard Kern and Travis Hagan as well as two unidentified Huntington police officers, John Doe #1 and #2 for excessive force.[2] (ECF No. 2) On July 13, 2017, a scheduling order was entered providing the parties certain deadlines related to discovery and for filing dispositive motions. (ECF No. 14) On September 25, 2017, Defendants filed their motion to compel Plaintiff to respond to discovery (ECF No. 18); the undersigned ordered Plaintiff to respond to Defendants' motion to compel by October 25, 2017. (ECF No. 19) On December 13, 2017, Defendants filed their motion to dismiss Plaintiff's Complaint for failure to prosecute or alternatively, for sanctions and for modification of the scheduling order. (ECF No. 20) On December 14, 2017, the undersigned issued a Roseboro notice[3] to Plaintiff to respond to Defendants' motion by December 29, 2017. (ECF No. 25)

         On December 28, 2017, Plaintiff filed his response and a “declaration” to Defendants' motion. (ECF Nos. 27 and 28) On January 5, 2018, Defendants' filed their reply. (ECF No. 30) On January 10, 2018, this Court deferred ruling on Defendants' motion to dismiss to the extent that it sought dismissal of this matter for failure to prosecute and for sanctions against Plaintiff but granted the motion to modify the scheduling order to allow the parties to engage in discovery and to extend the deadline to filing dispositive motions. (ECF No. 31) The primary reason for the modification of the scheduling order was due to Plaintiff's allegation that he withdrew his guilty plea before the District Court[4] and that he had fired his retained counsel who was supposed to assist Plaintiff in responding to Defendants' discovery requests. (Id.) Because his former counsel did not return the discovery materials to Plaintiff, who was then and remains incarcerated, this provided the basis for Plaintiff's excusable delay in responding to Defendants' discovery requests. (Id.)

         Since then, Defendants deposed Plaintiff and in accordance to this Court's scheduling order, on June 11, 2018 Defendants filed their Motion for Summary Judgment and Memorandum of Law in support of same. (ECF Nos. 35 and 36) Defendants also attached several Exhibits to their Motion: (1) a copy of Plaintiff's Complaint; (2) this Court's Scheduling Order; (3) Defendants' Certificate of Service dated August 14, 2017 of their First Set of Interrogatories and Requests for Production of Documents to Plaintiff; (4) Defendants' Motion to Compel Plaintiff to Respond to Defendants' First Set of Interrogatories and Requests for Production of Documents filed on September 25, 2017; (5) this Court's September 25, 2017 Order directing Plaintiff to file a response to Defendants' Motion to Compel; (6) Defendants' Motion to Dismiss for Failure to Prosecute or, in the Alternative, Motion for Sanctions and Modification of Operative Scheduling Order filed on December 13, 2017; (7) this Court's January 10, 2018 Order, described supra; (8) one page of Plaintiff's letter-form response to Defendants' First Set of Interrogatories and objection to Defendants' Request for Production of Documents;[5] (9) portions of Plaintiff's deposition transcript taken on April 4, 2018; (10) the stipulation of facts dated October 17, 2017 between Plaintiff and Assistant United States Attorney Joseph F. Adams concerning the relevant conduct and the total drug weight seized by law enforcement during the traffic stop on December 15, 2016 that is subject to this civil action in addition to the seizure related to the subsequent search of a residence used by Plaintiff in Huntington, West Virginia; and (11) the USB of Officer Kern's dashcam video during the December 15, 2016 incident leading to the traffic stop. (ECF Nos. 35-1, 35-2, 35-3, 35-4, 35-5, 35-6, 35-7, 35-8, 35-9, 35-10, and 35-11, respectively.)

         Subsequently, on June 13, 2018, this Court issued another Roseboro notice to Plaintiff, as a reminder to file his response to Defendants' Motion with the Clerk no later than July 11, 2018. (ECF No. 37) Because Plaintiff failed to file a response to the Motion by the deadline, and it had been discovered that he had been transferred to another facility, the Court reissued the Roseboro notice to Plaintiff and imposed another filing deadline of August 9, 2018.[6] (ECF Nos. 39 and 40) On August 13, 2018, Plaintiff filed a request for a ninety-day extension for his response to Defendants' Motion (ECF No. 42); the undersigned provided a forty-five day extension to the deadline, and ordered that Plaintiff file his response no later than September 28, 2018. (ECF No. 45)

         Because Plaintiff again failed to file his response by the deadline, the undersigned issued an order on October 12, 2018 directing Plaintiff to show cause in writing why this matter should not be dismissed for his failure to prosecute. (ECF No. 46) On November 14, 2018, Plaintiff filed his response to this Court's show cause order, explaining that he is attempting to assemble the necessary information in order to respond to Defendants' Motion and that he fully intends to prosecute his Complaint. (ECF No. 47)

         By Order entered on November 20, 2018, the Court permitted Plaintiff a “last and final” deadline of January 4, 2019 to file his response to Defendants' Motion. Finally, on January 7, 2019, Plaintiff's Motion of Exhibits (ECF No. 49) and Affidavit (ECF No. 50) were filed.[7] On January 16, 2019, Defendants' filed their Reply in Support of Motion for Summary Judgment and Motion to Strike and Exclude Plaintiff's “Motion of Exhibits” and “Affidavit” (ECF No. 51) Accordingly, this matter is fully briefed and ready for resolution.

         Defendants' Argument in Support of Motion for Summary Judgment

         As an initial matter, Defendants contemporaneously renew their Motion to Dismiss for Failure to Prosecute and for Sanctions because Plaintiff repeatedly “pled the fifth” in response to very relevant questions concerning the incident leading up to Plaintiff's arrest and subsequent claims in this action. (ECF No. 36 at 3; ECF No. 35-9 at 2) Defendants rely on In re: Grand Jury Subpoena, where the Fourth Circuit found that a party's silence may bar that party from assertions that would allow him to prevail in litigation, and that “the Fifth Amendment privilege does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” 836 F.2d 1468, 1472 (4th Cir. 1987) (citing Baxter v. Palmigiano, 425 U.S. 308, 334, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). (ECF No. 36 at 3-4)

         Therefore, Defendants assert the following relevant material facts as being undisputed, and as a result, Plaintiff cannot demonstrate that Defendants used an unreasonable amount of force (ECF No. 36 at 4-5):

(1) A Huntington police officer attempted to conduct a traffic stop of a vehicle operated by Plaintiff on December 15, 2016. (See ECF No. 35-10)
(2) The dashcam video (contained on a USB flash drive) from Defendant Kern's cruiser shows that Plaintiff fled down an alley at a high rate of speed after the attempted traffic stop. (See ECF No. 35-11)
(3) At the time of the attempted traffic stop, Plaintiff was known by law enforcement to carry firearms. (See ECF No. 35-10)
(4) Plaintiff fled on foot (See ECF No. 35-11) and was observed by law enforcement “throwing 12 baggies containing cocaine base weighing approximately 9.3 grams and 9 baggies containing heroin weighing approximately 4.8 grams.” (See ECF No. 35-10)
(5) Plaintiff ran down an alleyway and hid between a garbage can and garbage bag behind a personal residence under cover of darkness. (See ECF No. 35-9 at 5-6)
(6) Defendant Kern used a K-9 unit to locate and detain Plaintiff; after his arrest, Plaintiff was taken to the hospital where he was treated and released. (Id. at 7)
(7) Plaintiff has had no other treatment for his alleged injuries. (Id. at 7-8)

         Defendants argue that the constitutional prohibition on the use of excessive force by law enforcement is gauged by whether it exceeds the bounds of “objective reasonableness” which can be evaluated under the following criteria: (1) “the severity of the crime at issue”; (2) “whether the ‘suspect poses an immediate threat to the safety of the officers or others' ”; and (3) “whether the suspect is ‘actively resisting arrest or attempting to evade arrest by flight' ”. Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003) (quoting Graham v. O'Connor, 490 U.S. 386, 396 (1989)) (ECF No. 36 at 6-7) Defendants also point out that “[t]he extent of the plaintiff's injury is also a relevant consideration.” Id. (citing Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994)). (Id. at 7) In short, the Court must determine whether the totality of the circumstances justified Defendants use of a K-9 to effectuate Plaintiff's arrest. Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). (Id. at 7-8)

         Defendants assert that based on the facts asserted supra, they had reasonable belief that Plaintiff posed an immediate threat to themselves and to others as he was known to carry firearms; that Plaintiff was actively attempting to evade arrest by driving dangerously fast down alleyways and hiding under cover of darkness; and that Plaintiff's injuries were minor as he was treated and released and received no follow-up care. (Id. at 8) Because Plaintiff has asserted his Fifth Amendment privilege in this litigation, these undisputed material facts demonstrate that Defendants acted objectively reasonable under the circumstances. (Id.)

         Additionally, Defendants assert qualified immunity from Plaintiff's claims because the use of a K-9 unit to effectuate Plaintiff's arrest was proper and not prohibited by any Fourth Amendment principle requiring Defendants to withhold use of a K-9 under these particular circumstances, and further, the use of a K-9 was not “plainly incompetent” or in “knowing violation of the law.” White v. Pauley, 137 S.Ct. 548, 551, 196 L.Ed.2d 463, 468 (2017) (citing in part, Mullenix v. Luna, 136 S.Ct. 305, 193 L.Ed.2d 255, 257 (2015)). (Id. at 8-10)

         Finally, Defendants ask the Court to dismiss Defendant Hagan with prejudice because Plaintiff testified that Defendant Hagan was improperly named in this lawsuit. (Id. at 1, fn1, 11)

         In sum, Defendants ask for summary dismissal from this lawsuit. (Id.)

         Plaintiff's Responses

         Plaintiff asserts that he has no intention of abandoning this cause of action and requests the Court to not only interpret his pleadings liberally due to his pro se status, but also requests “that the Court modify its standardized scheduling to accommodate” him due to his incarcerated status, as he “did not have access to legal materials”[8] while incarcerated at the Carter County Detention Center. (ECF No. 47 at 1, 2, 3, 4) Plaintiff contends that Defendants' Motion “is fraught with self-serving statements that are not supported by the evidence that the Plaintiff has sought from the Huntington Police Department and the Defendants.”[9] (Id. at 2)

         Plaintiff states that “the incident” pertinent to this lawsuit led to the “retaliatory action(s) being taken by the Defendants in violation of the Plaintiff's First Amendment Right to Redress, and as such, the Plaintiff must ask the Court to deny the Defendants' Motion [] and add another issue to the Complaint[.]” (Id.) Plaintiff alleges that after service of process was served on these Defendants, they acted under “color of their authority” in violation of Plaintiff's First Amendment Right to Redress because “Plaintiff's original criminal case was [d]ismissed about two months before the process in this action was served[.]” (Id. at 3)

         Plaintiff further alleges that “the original Magistrate Judge for the criminal action against the Plaintiff has ties/connections to the Offutt Nord Burchett, PLLC, such that there is the strong implication that a Conflict of Interest, either to this civil action, or to his criminal action, that justice might be impaired should the Offutt Nord law firm continue in their representation of the Defendants.”[10] (Id.)

         In further support of his claims, Plaintiff filed numerous exhibits and has provided descriptions therefor:

         “Exhibits A and B” concern Plaintiff's “attempt to obtain discovery” that is related to his claims, however, Plaintiff explains his efforts have “failed due to professional dilatory practices.” (ECF No. 49 at 4-9)[11]

         “Exhibit C” is the denial to Plaintiff's Freedom of Information Act (“FOIA”) requests “under dilatory tactics.” (Id. at 10)[12]

         “Exhibit D” is “Officer Paul Hunter's fabricated report of the plaintiff's driving with a revoked license.” (Id. at 11)[13]

         “Exhibit E” is a record concerning Plaintiff's driver's license status from the Michigan Department of State indicating that a request report on March 7, 2018 that ...

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