Case1:13cv00223IMKDocument1Filed10/01/13Page1of8PageID#:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA AT CLARKSBURG JOY PUMPHREY, ! v.! ! ! Plaintiff, ! ! ! ! Civil Action No. !1:13-cv-223 ! ! (Keeley) !

W.J. CUNNINGHAM, individually, C.M. HEATER, individually, J.E. YOUNG, individually, HARRISON COUNTY COMMISSION, a political subdivision of the State of West Virginia, and TOWN OF NUTTER FORT, a political subdivision of the State of West Virginia, ! ! Defendants.

Electronically Filed October 1, 2013

COMPLAINT ! This complaint, brought pursuant to 42 U.S.C. Section 1983, the Fourth

Amendment to the United States Constitution, arises out of the Defendants" use of excessive force on the Plaintiff on or about October 13, 2011 near the town of Nutter Fort, West Virginia, within the Northern District of West Virginia. JURISDICTION ! This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343. PARTIES ! 1.! The Plaintiff, Joy Pumphrey, was at all times relevant hereto a resident of

Clarksburg, Harrison County, West Virginia, within the Northern District of West Virginia. ! 2.! Defendant W.J. Cunningham is and was at all times relevant hereto, a

resident of Clarksburg, Harrison County, West Virginia, having the last known address

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of 301 W. Main Street # G25, Clarksburg, West Virginia 26301, and is employed by the Harrison County Sheriff"s Department. He is named in his individual capacity. ! 3.! Defendant C.M. Heater is and was at all times relevant hereto, a resident

of Clarksburg, Harrison County, West Virginia, having the last known address of 301 W. Main Street # G25, Clarksburg, West Virginia 26301, and is employed by the Harrison County Sheriff"s Department. He is named in his individual capacity. ! 4.! Defendant J.E. Young is and was at all times relevant hereto, a resident of

Nutter Fort, Harrison County, West Virginia, having the last known address of 1415 Buckhannon Pike, Nutter Fort, West Virginia 26301, and is employed by the Town of Nutter Fort, West Virginia Police Department. He is named in his individual capacity. ! 5.! Defendant Harrison County Commission (HCC) is a political subdivision

of the State of West Virginia, and as such, is liable for the negligent conduct of its agents and employees, including the Sheriff, the Sheriff"s Department, and the employees of the Sheriff"s Department, so long as that conduct was carried out within the scope of their employment. See West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va. Code 29-12A-1, et seq. ! 6.! Defendant Town of Nutter Fort, West Virginia, is a political subdivision of

the State of West Virginia, and as such, is liable for the negligent conduct of its agents and employees, including the Sheriff, the Sheriff"s Department, and the employees of the Sheriff"s Department, so long as that conduct was carried out within the scope of their employment. See West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va. Code 29-12A-1, et seq.

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7.!

The conduct alleged herein to have been committed by employees and/or

agents of Defendant HCC and Defendant Town of Nutter Fork are hereby alleged to have been committed by said agents and/or employees acting in the scope of their employment and authority. The causes of action asserted herein against Defendant HCC and Defendant Nutter Fork, refer to acts performed by agents and employees of said Defendant political subdivision, rather than the formulation and implementation of policy related to how law enforcement and police protection are provided. FACTS ! 8.! On October 13, 2011, near the Town of Nutter Fort, Harrison County, West

Virginia, the Plaintiff was pulled over for having loud exhaust by Defendant Cunningham, a sheriff"s deputy employed by the HCC. ! 9.! Defendant Cunningham was subsequently joined by Defendant Heater,

also a Harrison County Deputy, as well as Defendant Young, who as a Patrolman employed by the Town of Nutter Fort, West Virginia. ! 10.! One of the police cruisers was equipped with a dashboard camera, which

captured what was to happen. Additionally, the occupants of a nearby home were alerted by the ashing emergency lights and became eyewitnesses to what was to happen. ! 11.! The Plaintiff was asked to exit his vehicle and was questioned by ofcers,

who were seeking consent to search the vehicle. ! 12.! The Plaintiff was searched for weapons and emptied his pockets off all

contents. The Plaintiff was known by the ofcers to be unarmed.

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13.!

Suddenly, the Plaintiff began to ee, on foot, from the ofcers. The

ofcers subdued the Plaintiff within a short distance - still within the partial view of the dashboard camera. ! 14.! Defendants Cunningham, Heater and Young took the Plaintiff into custody

without resistance, other than the initial eeing. ! 15.! Defendants Cunningham, Heater and Young then proceeded to use

physical force against the Plaintiff, striking, kicking and punching him in the face, head and ribs. The Plaintiff was not resisting; nor was he assaulting the ofcers. ! 16.! Upon information and belief, the Plaintiff was rendered unconscious for

some period of time. He suffered severe injuries to his face and ribs. ! 17.! The Plaintiff was transported by EMS to United Hospital Center in

Bridgeport, West Virginia for emergency treatment. Following a CT scan, the attending radiologist diagnosed the Plaintiff with fractures of both the anterior and posterior walls of the right maxillary sinus, as well as a fracture of the right zygomatic arch as well as the right orbital oor and lateral wall of the right orbit. The Plaintiff also had a fractured nose, and a fracture of the left orbital oor and bilateral orbital emphysema. ! 18.! In addition to the facial fractures, the Plaintiff was later diagnosed with

fractures of the right 4th, 5th, 6th and 7th ribs anterolaterally. ! 19.! United Hospital Center transferred the Plaintiff to Ruby Memorial Hospital

at West Virginia University in Morgantown, West Virginia for specialized care related to his severe facial fractures.

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20.!

The Plaintiff was examined in the Ruby Emergency Department and

diagnosed with an orbital oor fracture, a zygomatic fracture, a right orbital fracture, and a laceration of the left eye as the result of assault. ! 21.! The Plaintiff underwent surgery and was discharged. He received

permanent injuries to his body and his vision. He suffered, and continues to suffer pain as a result of his injuries. COUNT ONE - EXCESSIVE FORCE UNDER 42 U.S.C. 1983 VIOLATION OF THE FOURTH AMENDMENT ! 22.! Plaintiff incorporates by reference all the allegations contained in the

previous paragraphs. ! 23.! Defendants Cunningham, Heater and Young, under color of state law,

used excessive force against Joy Pumphrey, as described above, on October 13, 2011. ! 24.! When the defendants repeatedly struck and punched Joy Pumphrey in the

face and ribs, no objectively reasonable ofcers could have perceived Mr. Pumphrey as posing an immediate threat to the safety of the ofcers or others. ! 25.! Joy Pumphrey was neither armed nor suspected by the defendants of

being armed at the time he was beaten. ! 26.! Joy Pumphrey was not resisting arrest at the time that force was being

used on him. ! 27.! At the time Joy Pumphrey ed from the ofcers, the only crime for which

the defendants had probable cause to suspect Mr. Pumphrey of committing was having loud exhaust.

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28.!

The said defendants" actions were objectively unreasonable, unlawful,

unwarranted, and in violation of Joy Pumphrey"s clearly established procedural and substantive rights, including the Fourth Amendment of the United States Constitution. ! 29.! The said defendants" actions were willful, wanton, intentional, malicious

and done with a callous and reckless disregard for Joy Pumphrey"s Fourth Amendment right to be free from excessive force. In the event that this Court determines that the use of force against the Plaintiff occurred at a time when the Plaintiff was a pretrial detainee, the Plaintiff pleads excessive force, in the alternative, under the Fourteenth Amendment of the United States Constitution. ! 30.! Joy Pumphrey suffered harm, including personal injuries, emotional

distress, medical expenses, severe pain, and continues to suffer damages, and is entitled to recover damages for the same. COUNT TWO - STATE LAW CLAIM FOR NEGLIGENCE ! 31.! Plaintiff incorporates by reference all the allegations contained in the

previous paragraphs. ! 32.! Defendant HCC and Defendant Town of Nutter Fork specically owed Joy

Pumphrey a duty of reasonable care. It was reasonably foreseeable under the general foreseeability standard to the defendants that Matthew Cole would be harmed as a result of their actions of striking him in the head, legs and chest, in violation of the U.S. Constitution. Additionally, a law enforcement ofcer has an afrmative duty to intervene when another ofcer is violating a citizen"s constitutional rights. ! 33.! Defendant FCC and Defendant Town of Nutter Fork, by and through their

police ofcer employees, breached that duty as detailed above and incorporated herein.

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34.!

As a direct and proximate result of the defendants" negligence, Joy

Pumphrey suffered harm, including personal injuries, extreme emotional distress, medical expenses, severe pain, and continues to suffer damages, and is entitled to recover damages for the same. PRAYER ! WHEREFORE, based on the above stated facts, the Plaintiff respectfully

requests that this Honorable Court award: ! 1.! Damages against the Defendants in an amount to be determined at trial

which will fairly and reasonably compensate the Plaintiff for: ! ! ! ! ! ! ! ! ! ! ! ! ! ! a.! b.! c.! d.! e.! f.! ! g.! h.! i.! j.! ! k.! ! Past, present and future medical expenses; Past, present and future pain and suffering; Loss of enjoyment of life; Psychological and emotional distress; Any other compensatory damages to be proven at trial; Punitive damages against the individual Defendants in an amount to be determined at trial; Reasonable attorney fees and costs; Any other relief that this Court deems is just and fair; All other damages provided by law; Injunctive relief requiring appropriate training, supervision and discipline in order to remedy all constitutional deprivations which the Plaintiff suffered; Declaratory judgment relief establishing the Defendants" above-described conduct violates the Plaintiff"s clearly established constitutional rights.

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PLAINTIFF DEMANDS A TRIAL BY JURY

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JOY PUMPHREY By Counsel

/s John H. Bryan ! ! ! John H. Bryan (WV Bar No. 10259) JOHN H. BRYAN, ATTORNEYS AT LAW 611 Main Street P.O. Box 366! Union, WV 24983 (304) 772-4999 Fax: (304) 772-4998 jhb@johnbryanlaw.com for the Plaintiff