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 Robert Belt (“Deputy Belt”),
Tyler Caruthers (“Deputy Caruthers”), Garrett
Samples, Jr. (“Sheriff Samples”) and the Clay
County Commission (the “Commission”)
(collectively, “the County Defendants”). Also
pending is their motion to dismiss for failure to prosecute,
filed March 6, 2019.
Facts as Alleged
the court is ruling on the County Defendants' motion for
summary judgment, in the interest of thoroughness, the
plaintiff's allegations in the First Amended Complaint
are set forth below.
Dan Brown is a resident of Clay, West Virginia. First Am.
Compl. (“Compl.”) ¶ 4. On July 26, 2013,
defendant Deputy Robert Belt, a deputy sheriff of Clay
County, West Virginia saw Mr. Brown on the side of the road
with a flat tire. Id. ¶ 10. Deputy Belt then
approached Mr. Brown, allegedly without any reasonable
suspicion, began to conduct a traffic stop for driving under
the influence (“DUI”) and searched his vehicle.
Id. ¶ 11. Mr. Brown alleges that Deputy Belt
caused the blowout of his tire that resulted in the officer
pulling him over, Id. ¶ 33, and that Deputy
Belt knew of Mr. Brown's whereabouts due to information
obtained from Shonda Tanner, a mutual acquaintance,
Id. ¶¶ 30-33.
Deputy Belt ordered Mr. Brown to undergo three field sobriety
tests, the “Horizontal Gaze Nystagmus, ” the
“Walk and Turn, ” and the “One-Leg Stand,
” Mr. Brown pointed out that he suffered from several
physical disabilities that prevented him from being able to
adequately complete the tests. Id. ¶¶
12-17. In particular, he has long had nystagmus, an eye
condition, as well as a leg injury that makes him unable to
place weight on his leg. Id. ¶¶ 15-16. Mr.
Brown has been determined by the United States Social
Security Administration to be fully disabled. Id.
¶ 25. Although Mr. Brown told Deputy Belt that he was
“100% disabled” and “could not take the
normal tests for DUI, ” Deputy Belt continued to
administer the three tests without offering accommodations.
Id. ¶¶ 12, 21. Following the tests, Deputy
Belt arrested Mr. Brown for DUI. Id. ¶ 21.
Brown did take a preliminary breath test, and the result
showeda blood alcohol level of 0.0. Id. ¶ 18.
He asked to be given ablood test to provide further proof of
his sobriety, but Deputy Belt failed to request or administer
one. Id. ¶¶ 19-20.
charge was later dismissed, and when Mr. Brown contested the
revocation of his driver's license in an administrative
hearing, Deputy Belt admitted to being negligent when filling
out the DUI information sheet. Id. ¶¶
22-23. Also at this hearing, Deputy Belt is said to have
stated that he had never received training on compliance with
the Americans with Disabilities Act (“ADA”) or on
how to provide reasonable accommodations to disabled
individuals whose disability impairs their ability to pass
field sobriety tests. Id. ¶ 23.
year and a half after the July 2013 incident, on or about
February 20, 2015, Mr. Brown reported a robbery of over $40,
000 worth of tools from his property. Id.
¶¶ 26-27. Deputy Belt responded to Mr. Brown's
call to the authorities yet did not file a police report or
investigate the robbery. Id. ¶¶ 26-27.
Because Deputy Belt did not file a police report, Mr.
Brown's insurance claim was made more difficult to
support. Id. ¶¶ 28-29. Additionally, the
tools were never recovered. Id. ¶ 29. Mr. Brown
believes this failure to investigate to be retaliation for
the original DUI charge being dismissed. Id. ¶
22, 2015, Mr. Brown was once again arrested for DUI.
Id. ¶ 36. Mr. Brown alleges on good faith
information and reasonable belief that Deputy Belt
communicated to members of the West Virginia State Police to
“target” the plaintiff and charge him with DUI.
Id. ¶ 35. West Virginia State Troopers Huff,
Tallman and defendant Demaske were the arresting officers for
charges of DUI, left of center driving, and no proof of
insurance. Id. ¶ 36. Mr. Brown informed the
officers of his disability and subsequently failed the three
standard field sobriety tests. Id. ¶¶ 64,
67. He later took a breath test which revealed that he had a
blood alcohol level of 0.0. Id. ¶ 65. All three
charges were later dismissed after the officers failed to
appear or present any proof of impairment. Id.
January 15, 2016, Mr. Brown called the police to report a man
invading his home and battering him. Id. ¶ 38.
Defendant Trooper McFeeley, a West Virginia State Trooper,
responded to the call and arrested Mr. Brown for burglary,
destruction of property, and providing false information to
the state police, all without prosecuting the alleged crimes
that Mr. Brown called to report. Id. ¶ 39. Mr.
Brown asserts that this arrest was in retaliation for filing
the original complaint in this lawsuit on July 27, 2015
against defendants Deputy Belt, Clay County Sheriff Garrett
Samples, Jr., and the Clay County Commission (“the
Commission”). Id. at 21-22.
on July 5, 2016, Mr. Brown was driving in downtown Clay when
he was in a minor car accident. Id. ¶ 43.
Deputy Belt responded to the accident along with Deputy Tyler
Caruthers, a fellow Clay County deputy sheriff. Id.
¶ 44. They conducted DUI field sobriety tests and
charged Mr. Brown with DUI. Id. ¶¶ 44-45,
48. Mr. Brown had informed the deputies that he was
physically unable to pass the field sobriety tests, yet the
officers continued to conduct the same three field sobriety
tests as had been conducted by Deputy Belt at a previous
stop. Id. ¶¶ 47-48, 67. Mr. Brown
participated in a breath test which again showed that he had
a blood alcohol level of 0.0. Id. ¶ 65. Mr.
Brown admitted to taking his daily prescription medications
but also stated that no one had ever told him they might
impair his ability to drive. Id. ¶ 49. Mr.
Brown requested a blood test to prove that he had only taken
his prescribed medications, but the officers refused.
Id. ¶ 50.
arriving at the police station, Mr. Brown was taken to a dark
closet and held there for approximately four hours while
waiting for an expert from the Charleston, West Virginia
detachment who was to conduct specialized testing of the
plaintiff. Id. ¶¶ 46, 51-52. During that
time, he was placed under a “red light” for
further testing of impairment. Id. ¶ 52. This
treatment triggered a migraine, and the officers would not
allow Mr. Brown to take his medication to alleviate it.
Id. This charge for DUI was still pending as of
plaintiff's filing of his motion to amend the complaint
on September 15, 2016. Id. ¶ 54; ECF No. 23.
23, 2016, Trooper McFeeley arrested Mr. Brown for another
burglary. Id. ¶ 53. Mr. Brown claims that upon
arrest, Trooper McFeeley elected not to believe Mr.
Brown's story regarding the incident and that the
officer's choice was motived by retaliatory intent for
the filing of this lawsuit on July 27, 2015. Id.
¶¶ 105, 151.
court notes that the details of the July 26, 2013 arrest that
the plaintiff provides in his deposition vary meaningfully
from the allegations contained in the First Amended
Complaint. The plaintiff states that as he drove past Deputy
Belt on that date his tire started to go flat, which led to
his pulling over at a nearby service station. Pl.'s Dep.,
ECF No. 69-1, at p. 49. While stopped at the service station,
Deputy Belt pulled in behind the plaintiff and inquired as to
why he was driving on a flat tire. Id. While the
plaintiff alleged in his complaint that Deputy Belt caused
his tire to go flat, he admits that he has no “direct
evidence” that Deputy Belt caused his tire to go flat.
Id. at 52.
plaintiff further states that after speaking with Deputy Belt
about the flat tire, the plaintiff pulled out his
registration, insurance card, and driver's license.
Id. at 53. Upon taking those items out (it is not
specified from where), Deputy Belt saw a pill bottle and the
plaintiff said the officer's whole demeanor changed.
Id.. After seeing the pill bottle, Deputy Belt
remarked on the changing conditions of plaintiff's eyes
and informed the plaintiff that he was going to conduct field
sobriety tests. Id. at 54.
plaintiff also stated that he was taking Oxycodone, Valium
and Adderall daily at the time the original complaint was
filed on July 27, 2015, Id. at 36, and that he
carried these pill bottles in his glove compartment,
Id. at 44.
27, 2015, plaintiff filed his original complaint with the
court against Deputy Belt, Sheriff Samples, and the
Commission for the actions taken by Deputy Belt during the
July 26, 2013 DUI arrest. The complaint contained five
“causes of action” which the court treated as
Counts 1 through 5, namely, Count 1, failure to provide
reasonable accommodation under Title II of the ADA, 42 U.S.C.
§ 12132, and § 504 of the Rehabilitation Act, 29
U.S.C. § 794; Count 2, negligent hiring, supervision,
and/or training; Count 3, Fourth and Fourteenth Amendment due
process violations; Count 4, wrongful arrest; and Count 5,
intentional infliction of emotional distress
(“IIED”). On October 13, 2017, the court ruled on
the joint motion to dismiss of Deputy Belt, the Commission
and Sheriff Samples, the only defendants then charged in the
complaint. ECF No. 26. Pursuant to that motion, the court
dismissed the negligent hiring prong of Count 2 and all of Counts
4 (wrongful arrest) and 5 (IIED) but did not dismiss any
other claims. Id. at 15.
September 15, 2016, the plaintiff filed for leave to amend
the complaint. The court granted the motion on March 30,
2018, and the First Amended Complaint with the named
defendants as set forth in the case caption above was deemed
filed on that same day, thereby adding as defendants Deputy
Tyler Caruthers, Trooper Steven Demaske, Trooper McFeeley,
Colonel Smithers and Magistrate Jeffrey Boggs. The court at
the same time ordered that the negligent hiring claim, now in
Count 4, be dismissed; that the July 26, 2013 action for
wrongful arrest against Deputy Belt, now in Count 6, was time
barred due to the one-year statute of limitations and was
dismissed; and that Magistrate Boggs, named in several
counts, be dismissed from the action. ECF No. 29, at 6.
First Amended Complaint raises sixteen “causes of
action, ” which the court treats as Counts 1 through
16. One or more of the County Defendants is the subject of
the following nine counts: Count 1, discrimination and
failure to provide reasonable accommodations under Title II
of the ADA and § 504 of the Rehabilitation Act, during
the first DUI traffic stop, on July 26, 2013, against Deputy
Belt, the Commission and Sheriff Samples, the former Clay
County Sheriff; Count 3, discrimination and failure to
provide reasonable accommodations, as in Count 1, during the
third DUI traffic stop, on July 5, 2016, against Deputy Belt,
Deputy Caruthers, the Commission and Sheriff Samples; Count
4, negligent supervision and/or training against Sheriff
Samples and the Commission arising from the July 26, 2013 and
July 5, 2016 DUI arrests; Count 5, violation of Due Process
Rights under the Fourth, Fifth, and Fourteenth Amendments of
the Constitution under 42 U.S.C. § 1983 arising from the
July 26, 2013, and July 5, 2016 DUI arrests against Deputy
Belt, Deputy Caruthers, the Commission and Sheriff Samples;
Count 9, wrongful arrest for DUI on July 5, 2016 against
Deputy Belt, Deputy Caruthers, the Commission and Sheriff
Samples; Count 11, retaliation claim under the First and
Fourteenth Amendments and 42 U.S.C. § 1983 for failure
to investigate the robbery of Mr. Brown's property on
February 20, , 2015 against Deputy Belt, Sheriff
Samples and the Commission; Count 12, retaliation claim 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 Deputy Belt; Count 14, retaliation claim
under the First and Fourteenth Amendments and 42 U.S.C.
§ 1983 for wrongful arrest and “torture” in
the DUI arrest of July 5, 2016 against Deputy Caruthers,
Deputy Belt, Sheriff Samples, and the Commission; and Count
16, intentional infliction of emotional distress/outrage
against all defendants for all of the allegations contained
in the First Amended Complaint.
December 17, 2018, the County Defendants filed a motion to
compel plaintiff's responses to discovery requests. ECF
No. 64. The plaintiff failed to respond to this motion. On
January 4, 2019, Magistrate Judge Dwane L. Tinsley granted
the County Defendants' motion to compel and further
ordered that each of the “Requests for Admissions
contained in the Defendant Robert Belt's Request for
Admissions to Plaintiff served on or about October 18, 2018,
shall be deemed admitted.” ECF No. 65, at 2-3 (emphasis
added). The requests for admission were as follows:
1. Admit that plaintiff failed all three field sobriety tests
on July 26, 2013.
2. Admit that Deputy Belt had probable cause to arrest
Plaintiff on July 26, 2013 based upon Plaintiff's failure
on all three field sobriety tests.
3. Admit that Plaintiff was not arrested based upon his
disabilities on July 26, 2013.
4. Admit that Plaintiff failed all three field sobriety tests
on July 5, 2016.
5. Admit that Deputy Belt had probable cause to arrest
Plaintiff on July 5, 2016 based on Plaintiff's failure on
all three field sobriety tests.
6. Admit that Plaintiff was not arrested based upon his
disabilities on July 5, 2016.
7. Admit that Deputy Belt did not retaliate against Plaintiff
by failing to investigate a robbery/burglary.
8. Admit that Deputy Belt did not retaliate against Plaintiff
by communicating with other officers to arrest Plaintiff.
9. Admit that Deputy Belt did not retaliate against Plaintiff
by arresting him following the July 5, 2016 traffic accident.
10. Admit that Deputy Belt did not request an expert from
Charleston, West Virginia to come interrogate Plaintiff
following the July 5, 2016 traffic accident.
11. Admit that Deputy Belt did not deny Plaintiff medications
following the July 5, 2016 traffic accident.
12. Admit that Plaintiff was not “tortured”
following the July 5, 2016 traffic accident.
ECF No. 64-1, Ex. A, at 18-20.
County Defendants filed their joint motion for summary
judgment on March 6, 2019, along with a motion to dismiss for
failure to prosecute. Defendants Colonel Smithers and Trooper
McFeeley 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 motions.
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 ...