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Mull v. Griffith

United States District Court, N.D. West Virginia

October 18, 2019




         Before the Court is Defendants' Jeffrey L. Griffith (“Griffith”) and the City of Wheeling (“Wheeling”) (collectively, “Defendants”) Motion for Summary Judgment. (ECF No. 68.) For the reasons discussed herein, the motion is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         Plaintiff Kyle Mull (“Mull”) is a former police officer with the rank of corporal for the City of Wheeling. (ECF No. 38 at 1 ¶ 5.) On June 22, 2016, Mull was working a shift at the police department when Griffith, a fellow officer for Wheeling, arrived on duty as the incoming supervisor. (Id.) Griffith was discussing an incident that occurred when he was accompanying his mother-in-law to inspect her rental property earlier that day. (Id. at 2 ¶¶ 6, 7.) The inspection resulted in a disturbance that required assistance from law enforcement. (Id. ¶ 6.) Mull expressed disapproval of the fact that the t-shirt Griffith was wearing at the time of the incident bore the name of the Wheeling Police Department. (Id. ¶ 7.) Griffith ordered him to leave the office, (id. ¶ 10), and a physical altercation arose between Griffith and Mull, (id. ¶¶ 7, 8). Mull then returned his equipment and left the Department. (Id. at 3 ¶ 11.)

         Mull alleges to have suffered physical and mental injuries as a result of the altercation. (Id. at 5 ¶ 26.) He filed a workers' compensation claim for his injuries and was awarded two percent permanent partial disability. (Id. at 9 ¶¶ 63, 66, 13 ¶ 88.) Mull also filed a criminal complaint against Griffith, but no charges were ultimately pursued by government officials. (Id. at 11 ¶ 78, 12 ¶¶ 82, 83.) In addition, he reported the incident to his supervisor and the Department subsequently conducted an internal investigation and issued Griffith a verbal reprimand. (Id. at 8 ¶ 52, 12 ¶ 84.) Griffith later retired. (Id. ¶ 85.)

         Meanwhile, Mull continued to suffer from side effects from the assault and received a doctor's excuse recommending 48 hours of excused leave. (Id. at 8 ¶¶ 53, 55.) After taking several sick days, Mull changed the doctor's excuse to provide for five days of excused leave rather than 48 hours. (Id. at 7 ¶¶ 47, 49, 8 ¶¶ 58, 59.) Several months later, Wheeling's chief of police filed an internal complaint against Mull for submitting the forged doctor's excuse. (Id. at 11 ¶ 79.) He was suspended with pay for a brief period, and on April 4, 2017, Mull was terminated. (Id. at 13 ¶¶ 89, 90.)

         Mull and his wife, Tamsen Balzano-Mull, bring eleven causes of action arising from these events against Defendants. (ECF Nos. 1, 38.) The Amended Complaint asserts three 42 U.S.C. § 1983 claims for excessive force in violation of the Fourth and Fourteenth Amendments (Count I); retaliation in violation of the First Amendment freedom of speech (Count II); and cruel and unusual punishment in violation of the Eighth Amendment (Count III). (ECF No. 38.) The Amended Complaint also asserts the following state law claims: assault and battery (Count IV); tort of outrage (Count V); negligence (Count VI); negligent training, supervision, and discipline (Count VII); deliberate intention (Count VIII); failure to reasonably accommodate and wrongful discharge in violation of the West Virginia Human Rights Act, W.Va. Code § 5-11-1, et seq. (Count IV); wrongful discharge in violation of public policy (Count X); and workers' compensation wrongful discharge (Count XI). (Id.) For each of these claims, Plaintiffs seek compensatory and punitive damages, pre- and post-judgment interest, and attorney fees and costs. (Id.) Plaintiff Tamsen Balzano-Mull also claims loss of consortium derived from her husband's injury. (Id.) The pending motion for summary judgment was filed on July 1, 2019. (ECF No. 68.) Plaintiffs responded on July 22, 2019, (ECF No. 69), and Defendants filed a reply on August 5, 2019, [1] (ECF No. 70). As such, the motion is fully briefed and ripe for adjudication.


         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is material when it ‘might affect the outcome of the suit under the governing law.'” Strothers v. City of Laurel, 895 F.3d 317, 326 (4th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A genuine dispute arises when ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.'” Id. (quoting Anderson, 477 U.S. at 248). “Thus, at the summary judgment phase, the pertinent inquiry is whether there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018) (alteration and internal quotation marks omitted).

         “The burden is on the nonmoving party to show that there is a genuine issue of material fact for trial . . . by offering ‘sufficient proof in the form of admissible evidence' . . . .” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). In ruling on a motion for summary judgment, this Court “view[s] the facts and all justifiable inferences arising therefrom in the light most favorable to the nonmoving party.” Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (quoting Libertarian Party of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. 2013)).


         A. Fourth and Fourteenth Amendments Claim (Count I)

         Plaintiffs allege that Griffith violated Mull's rights under the Fourth and Fourteenth Amendments to the United States Constitution by unlawfully and unreasonably seizing him during a physical altercation and causing him bodily injury, emotional distress, and other injuries. (ECF No. 38 at 5 ¶¶ 28-30.) They also allege that Wheeling implemented a “zero discipline” policy rather than a “zero tolerance” policy for workplace violence. Plaintiffs claim that because of this policy Griffith was not deterred from assaulting Mull and, thus, Wheeling is independently liable under 42 U.S.C. § 1983 for violating his substantive due process rights. (Id.; ECF No. 69 at 17- 18.)

         Section 1983 provides a civil cause of action to redress violations of the Constitution or of federal rights. Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979) (this “section is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.”). It provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. To be afforded relief in federal court under § 1983, a plaintiff must prove two elements. First, a plaintiff must show a “violation of a right secured by the Constitution and laws of the United States[.]” West v. Atkins, 487 U.S. 42, 48 (1988). Violations of the Fourth Amendment's prohibition of unreasonable seizures, see, e.g., Tennessee v. Garner, 471 U.S. 1, 25 (1985), or the Fourteenth Amendment's guarantee of substantive due process, see, e.g., Collins v. City of Harker Heights, 503 U.S. 115 (1992), satisfy this first prong. Second, a plaintiff must “show that the alleged deprivation was committed by a person acting under color of state law.” West, 487 U.S. at 48 (citations omitted).

         A person acts under color of state law when he exercises power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Hughes v. Halifax Cty. Sch. Bd., 855 F.2d 183, 186 (4th Cir. 1988) (citing Monroe v. Pape, 365 U.S. 167, 184 (1961)). In other words, a person acts under color of state law only when “acting with power possessed by virtue of [his] employment with the state.” Edwards v. Wallace Cty. Coll., 49 F.3d 1517, 1522-23 (11th Cir. 1995) (citing West, 487 U.S. at 49). The Fourth Circuit has established “[a]s a general rule, ‘a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.'” Conner v. Donnelly, 42 F.3d 220, 223 (4th Cir. 1994) (quoting West, 487 U.S. at 50; see also Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 936 n.18 (1982) (finding that “state employment is generally sufficient to render the defendant a state actor”).

         Importantly, “the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks and citations omitted); see Screws v. United States, 325 U.S. 91, 111 (1945) (noting that “acts of officers in the ambit of their personal pursuits are plainly excluded.”). However, § 1983 “includes within its scope apparently private actions which have a ‘sufficiently close nexus' with the State to be ‘fairly treated as that of the State itself.'” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)); see Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995) (stating that the actor's conduct will be attributed to the state when it “occurs in the course of performing an actual or apparent duty of his office, or . . . is such that the actor could not have behaved in that way but for the authority of his office.”).

         “[T]here is no specific formula for defining state action under this standard.” Rossignol, 316 F.3d at 523 (internal quotation marks omitted). Rather, courts evaluate “the totality of the circumstances” to determine whether the challenged conduct is fairly attributable to the State. Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006) (internal quotation marks omitted); see Griffin v. Maryland, 378 U.S. 130, 135 (1964) (explaining that this inquiry involves determining not only whether the person possessed state authority but also whether he “purport[ed] to act under that authority, ” even if “he might have taken the same action had he acted in a purely private capacity.”). “If a defendant's purportedly private actions are linked to events which rose out of his official status, the nexus between the two can play a role in establishing that he acted under color of state law.” Rossignol, 316 F.3d at 524. In addition, “[w]here the sole intention of a public official is to suppress speech critical of his conduct of official duties or fitness for public office, his actions are more fairly attributable to the state.” Id.

         Plaintiffs allege that Griffith was acting under color of law when he allegedly assaulted Mull. They argue that Griffith exercised his authority as a sergeant to order Mull to leave the office. When Mull did not follow his directions, Griffith attempted for a second time to remove him from the office by punching Mull in the face and holding him in a headlock. Defendants argue that Plaintiffs have not shown that Mull was acting under color of law at the time of the alleged altercation. They maintain that the incident at issue was nothing more “than a workplace altercation between coworkers who just happen to be police officers.” (ECF No. 70 at 5.)

         It is undisputed in this case that Griffith was on-duty and Mull's superior by rank at all relevant times. Plaintiffs suggest that but for Griffith's authority over Mull and his on-duty status the altercation could not have occurred. (ECF No. 69 at 14.) However, the law is settled that it is an officer's exercise of authority that brings conduct under color of law, not the coincidence of their co-employment. Thus, the fact that Griffith was on duty, in uniform, and Mull's superior when the events transpired at the department is not dispositive. See, e.g., Pitchell v. Callan, 13 F.3d 545, 548 (2d. Cir. 1994) (whether police officer was on or off duty when the challenged incident occurred is not dispositive); Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975) (whether police officer is “in or out of uniform is not controlling”).

         The inquiry here turns on whether Griffith's actions “related in some meaningful way either to [his] governmental status or to the performance of his duties, ” Martinez, 54 F.3d at 987, in an effort to influence or affect Mull with his behavior. The Martinez court confronted a similar issue of whether the under color of law element is met in a case involving a police-on-police altercation. In Martinez, one officer accidentally shot another officer in the groin while “horsing around.” Martinez, 54 F.3d at 982. In concluding that the assailant's action was not under the color or pretense of law, the court considered the victim's behavior, which suggested that he was not intimidated by his perpetrator's official status. The court reasoned that if the altercation seems to be “of a distinctively personal nature, it can generally be assumed that the aggressor's official trappings, without more, will not lead the victim to believe that the aggressor is acting with the imprimatur of the state and, in turn, to forgo exercising his legal rights.” Id. at 988 n.6 (acknowledging “the fact that [the victim] walked away numerous times shows that he was not so intimidated by [his aggressor's] status as a policeman as to cause him to refrain from exercising his legal rights.” (internal quotation marks and citation omitted)). The Martinez decision is important for cases like this because it serves as a reminder that when determining whether a person acts under color of law courts must consider “the nature of his conduct in light of the totality of surrounding circumstances.” Id. at 987 (citing Pitchell, 13 F.3d at, 548; see also Holly, 434 F.3d at 292; Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 872-73 (4th Cir. 1989).

         Here, in asserting their claim that Griffith was acting under color of law, Plaintiffs begin with a description of an incident that occurred earlier that day. Griffith was off duty and accompanied his mother-in-law to inspect her rental property. He so happened at the time to be wearing a cut off t-shirt bearing the name “Wheeling PD SWAT.” (ECF No. 68-3 at 7 (Griffith Dep.).) Their inspection later led to a disruption with a tenant that required the assistance of law enforcement. Mull testified that he questioned Griffith about his t-shirt once he returned on duty to the office. After he expressed disapproval of Griffith's behavior, Griffith ordered Mull to leave the office. According to Mull, Griffith then “struck him in the face” and restrained him in a headlock. (ECF No. 68-2 at 4 (Mull Dep.); ECF No. 38 at 2 ¶ 8 (alleging Griffith “sucker punch[ed]” Mull in the face, placed him in a headlock, and continued to punch him on the head until Mull “was able to pull himself out of the headlock.”).) Mull further testified that Griffith proceeded to order him to leave the office after the assault. (Id.)

         Defendants' version of the events is quite different. First, Griffith disputes any assertion that he was acting in his official capacity during the rental inspection. He testified that he identified himself as a landlord to the tenant and was coincidentally wearing the Wheeling PD t-shirt. (ECF No. 68-3 at 6, 7 (Griffith Dep.).) Once he returned to the office, Mull persistently questioned Griffith about the prior incident that day. Griffith admits that he ordered Mull to leave the office using his authority as a police sergeant. (Id. at 4.) He further acknowledged that their encounter escalated into an argument after Mull refused to leave. (Id.) Griffith testified that he then pushed Mull, but he denies ever intentionally striking him. (Id. at 2.) Further, he testified that he only placed Mull in a headlock after Mull attempted to tie him up and start a wrestling match. (Id. at 4.)

         First, that Griffith was acting pursuant to his official duties when he directed Mull to leave the office is unresponsive to whether he was acting or purporting to act pursuant to his official duties when he allegedly assaulted Mull. Second, whether Mull's criticisms of Griffith's behavior, which precipitated the alleged violence, was job-related is irrelevant to whether the altercation was instigated under pretense of law. The critical issues concerning whether Griffith purported to act under color of law are how and why the physical altercation occurred. Based upon the testimony, the Court finds that genuine issues of fact exist relating to whether Griffith's alleged conduct was pursuant to his authority such that his conduct was not only his, but also, in fairness, the State's or whether his alleged conduct was simply a personal pursuit outside the scope of § 1983. How and why the altercation occurred are issues of fact to be resolved by a jury. Accordingly, the Court DENIES summary judgment under Count I as to Griffith.

         Plaintiffs also seek to hold Wheeling liable under § 1983. A municipality can be liable under § 1983 “only where the municipality itself causes the constitutional violation at issue” through “the execution of [its] policy or custom . . . .” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see Hughes, 855 F.2d at 186 (establishing that “[t]o establish municipal liability under § 1983, the plaintiff must show that the execution of a municipal policy or custom inflicts an injury.”). “Municipal policy may be found in written ordinances and regulations, in certain affirmative decisions or individual policymaking officials, or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (internal citations omitted).

         Where there is no formal policy, a municipal “custom” may exist if an unconstitutional practice is “so persistent and widespread and so permanent and well settled as to constitute custom or usage with the force of law.” Id. (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)). Under this theory, liability may only attach if “a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision.” Id. (citation omitted). For municipal liability to attach, the policy or custom must have a “specific deficiency or deficiencies . . . such as to make the specific violation almost bound to happen, sooner or later, rather than merely likely to happen in the long run.” Id. (citation omitted). Without a direct link between an official policy or custom and the plaintiff's alleged injuries, there is no basis for municipal liability under § 1983. Id. (explaining that “[a] careful examination of this ‘affirmative link' is essential to avoid imposing liability on municipal decisionmakers in the absence of fault and causation.).

         In this case, Plaintiffs appear to allege municipal liability under both theories of a deliberately indifferent policy and a widespread custom. Plaintiffs argues that Wheeling's city manager has developed a policy that allows officers who violate Wheeling's “Workplace Violence Policy”[2] to resign in return for a verbal warning instead of facing formal discipline.[3] (ECF No. 69 at 17.) They claim that by failing to impose formal discipline in accordance with its “zero tolerance” policy, Wheeling fails to deter violence in the workplace and manifests deliberate indifference to such risk to its employees. (See ECF No. 69 at 17.)

         Plaintiffs allegations fail to demonstrate an “affirmative link” between the official policy and Mull's injury. Carter, 164 F.3d at 218. The policy, at least as Plaintiffs portray, still ends the wrongdoer's employment with Wheeling, albeit through forced resignation or optional retirement as opposed to termination or other formal discipline, thereby reducing the risk of future harm to its employees. Also, Wheeling's city manager, Robert Herron, testified that Griffith would have received something more than a verbal warning, such as a three-day suspension without pay or a demotion, had he not retired. (See ECF No. 69-10 at 4 (Herron Rule 30(b)(6) Dep.).) In light of his testimony, any assertion by Plaintiffs that Wheeling fails to impose formal punishment when it determines that an employee commits an act of violence as defined under the “Workplace Violence Policy” is unconvincing. Nonetheless, it is apparent that a “close fit” between the policy and Mull's injury is lacking so as to show that Wheeling's choice not to impose formal discipline “was in fact the moving force behind” the alleged constitutional violation. Carter, 164 F.3d at 218.

         As evidence of the existence of a widespread custom for failing to impose formal discipline, Plaintiffs point to one prior instance where an employee, who “showed up to work with alcohol in his system, was permitted to resign without discipline.” (ECF No. 69 at 18; ECF No. 69-9 at 2-3 (Roxby Dep.).) The single incident that Plaintiffs offer as evidence of this alleged custom is neither persistent nor widespread. Lytle v. Doyle, 326 F.3d 463, 473 (4th Cir. 2003) (“It is well settled that ‘isolated incidents' of unconstitutional conduct by subordinate employees are not sufficient to establish a custom or practice for § 1983 purposes. Rather, there must be ‘numerous particular instances' of unconstitutional conduct in order to establish a custom or practice.”) (internal citations omitted). In addition, this prior incident is wholly unrelated to the circumstances of Mull's alleged injury. The fact that Wheeling once allowed a different employee to resign after coming to work with alcohol in his system does not demonstrate that Wheeling's “custom” made the alleged assault on Mull “almost bound to happen” or that it was the “moving force” behind his injuries. Carter, 164 F.3d at 218.

         In sum, Plaintiffs fail to meet the standard for proceeding with a § 1983 claim against Wheeling for deliberate indifference pursuant to a deficient policy or custom. No. clear pattern of deliberate indifference to violence in the workplace has been put forth, no omissions on the part of Wheeling's policymaking officials have been shown to manifest deliberate indifference to the risk of violence, and, critically, Plaintiffs have not shown how a particular policy ...

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