United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR SENIOR UNITED STATES DISTRICT JUDGE.
is the joint motion for summary judgment, filed March 6, 2019
by defendants Tyler McFeeley (“Trooper McFeeley”)
and C.R. “Jay” Smithers (“Colonel
Smithers”) (collectively, the “State
companion order this day entered granting the joint motion
for summary judgment by the County Defendants,  the court set
forth the factual allegations and legal claims in the
plaintiff's First Amended Complaint as well as much of
the procedural history of this case.
court's March 21, 2019 memorandum opinion and order, the
court granted in part and denied in part the State
Defendants' motion to dismiss. ECF No. 76. The court
dismissed the Fifth and Fourteenth Amendment claims against
Colonel Smithers in Count 5, the state law wrongful arrest
claim against Trooper McFeeley in Count 10, the 42 U.S.C.
§ 1983 retaliation claim against Trooper McFeeley and
Colonel Smithers in Count 15, and the intentional infliction
of emotional distress (“IIED”) claim in Count 16
against Trooper McFeeley and Colonel Smithers, but only to
the extent the claim relates to the July 23, 2016 arrest.
Id. at 31.
plaintiff's First Amended Complaint, he brings claims
against the West Virginia State Police, not named as a party
to this action and for whom the plaintiff has not issued a
summons. Accordingly, the court does not address claims
against that entity, but does treat the reference to the West
Virginia State Police as an indication that the named state
defendants are being sued in their official capacity. The
plaintiff also asserts claims against Trooper Steven Demaske
and issued summons as to him on April 19, 2018, after being
made aware of the lack of service upon Demaske in the
court's order of March 21, 2018; but there is no proof
that service has been perfected.
seven surviving counts against one or more of Trooper
Demaske, Trooper McFeeley or Colonel Smithers are as follows:
Count 2, discrimination and failure to provide reasonable
accommodations under Title II of the ADA, 42 U.S.C. §
12132, and § 504 of the Rehabilitation Act, 29 U.S.C.
§ 794, during the second DUI traffic stop, on May 22,
2015, against Trooper Demaske and Colonel Smithers, who is a
supervising officer of the West Virginia State Police, and
naming the West Virginia State Police; Count 4, negligent
supervision and/or training arising from the May 22, 2015 DUI
arrest against Colonel Smithers and naming the West Virginia
State Police; Count 5, violation of the Fourth and Fourteenth
Amendments under 42 U.S.C. § 1983 arising from the May
22, 2015 DUI arrest against Colonel Smithers and Trooper
Demaske, and naming the West Virginia State Police; Count 7,
wrongful arrest for DUI on May 22, 2015 against Trooper
Demaske; Count 8, wrongful arrest for burglary, destruction
of property and providing false information to state police
on January 15, 2016 against Trooper McFeeley; Count 12,
retaliation under the First and Fourteenth Amendments and 42
U.S.C. § 1983 for “targeting” Mr. Brown in
the DUI arrest on May 22, 2015 against Trooper Demaske and
Colonel Smithers, and naming the West Virginia State Police;
Count 13, retaliation under the First and Fourteenth
Amendments and 42 U.S.C. § 1983 for wrongful arrest for
burglary, destruction of property, and providing false
information to state police on January 15, 2016 against
Trooper McFeeley; and Count 16, IIED against Trooper Demaske,
Trooper McFeeley, and Colonel Smithers arising out of the
arrests on May 22, 2015 and January 15, 2016.
County Defendants filed their joint motion for summary
judgment on March 6, 2019, along with a motion to dismiss for
failure to prosecute. The State Defendants filed their motion
for summary judgment later that same day. Instead of filing
any response in opposition, plaintiff's counsel filed, on
March 20, 2019, a motion to withdraw as counsel. The court
held a hearing on March 28, 2019, on plaintiff's
counsel's motion to withdraw, at which hearing the
plaintiff, though directed by order to appear in person,
failed to appear. At the hearing the court deferred judgment
on the motion to withdraw and informed plaintiff's
counsel that it would consider the plaintiff's response
to the above-listed dispositive motions, if such responses
were filed, though late, by March 29, 2019. No. response has
been provided by plaintiff to any of the pending dispositive
Standard of Review
is entitled to summary judgment “if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c). Material facts
are those necessary to establish the elements of a
party's cause of action. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
genuine issue of material fact exists if, in viewing the
record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable
fact-finder could return a verdict for the non-movant.
Id. The moving party has the burden of showing --
“that is, pointing out to the district court -- that
there is an absence of evidence to support the nonmoving
party's case.” Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). If the movant satisfies this
burden, then the non-movant must set forth specific facts as
would be admissible in evidence that demonstrate the
existence of a genuine issue of fact for trial. Fed.R.Civ.P.
56(c); Id. at 322-23. A party is entitled to summary
judgment if the record as a whole could not lead a rational
trier of fact to find in favor of the non-movant.
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.
summary judgment is inappropriate if the evidence is
sufficient for a reasonable fact-finder to return a verdict
in favor of the non-moving party. Anderson, 477 U.S. at 248.
Even if there is no dispute as to the evidentiary facts,
summary judgment is also not appropriate where the ultimate
factual conclusions to be drawn are in dispute.
Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931,
937 (4th Cir. 1991).
must neither resolve disputed facts nor weigh the
evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239
(4th Cir. 1995), nor make determinations of credibility.
Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir.
1986). Rather, the party opposing the motion is entitled to
have his or her version of the facts accepted as true and,
moreover, to have all internal conflicts resolved in his or
her favor. Charbonnages de France v. Smith, 597 F.2d
406, 414 (4th Cir. 1979). Inferences that are “drawn
from the underlying facts . . . must be viewed in the light
most favorable to the party opposing the motion.”
United States v. Diebold, Inc., 369 U.S. 654, 655
Count 2 (ADA and Rehabilitation Act claims for the May 22,
2015 DUI arrest)
companion memorandum opinion and order entered on the County
Defendants' motion for summary judgment, the court found
that the plaintiff had failed to establish that he had a
disability and was therefore not entitled to the protection
of the ADA and Rehabilitation Act.
court incorporates that same reasoning herein and finds that
Colonel Smithers' motion for summary judgment on Count 2
Count 4 (negligent supervision and training arising from the
May 22, 2015 DUI arrest)
the plaintiff asserts that Colonel Smithers failed to train
and supervise officers on the requirements of the ADA to
prevent plaintiff from being discriminated against based on
his disabilities. First Am. Compl. (“Compl.”),
ECF No. 30, at ¶¶ 61, 71.
extent Count4 is a failure-to-trainclaim brought under Title
II of the ADA, such a claim failsfor the same reasons that
plaintiff'so ther ADA claims fail -he has not established
that he meets the statutory definition of disabled.
extent that the claims in Count 4 are grounded in negligence,
the court applies West Virginia law.
West Virginia law, claims of negligent training and
supervision are governed by general negligence principles.
See Pruitt v. W.Va. Dep't of Pub. Safety, 664
S.E.2d 175, 179, 181-83 ( W.Va. 2008) (allowing claims of
negligent failure to train and supervise to proceed to
trial); Neiswonger v. Hennessey,601 S.E.2d 69, 73,
73 n.3 ( W.Va. 2004) (recognizing negligent hiring, training,
and supervising as a cause of action grounded in state law
and distinct from claims asserted under § 1983);
Taylor v. Cabell Huntington Hosp., Inc., 538 S.E.2d
719, 725 ( W.Va. 2000) (“The appellant's claim of
negligent supervision must rest upon a showing that ...