Case 6:10-cv-01256 Document 27 Filed 01/23/12 Page 1 of 26 PageID #: 382

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON BRIAN SAWYER, Plaintiff, Civil Action No. 6:10-cv-1256 Honorable Joseph R. Goodwin

vs. JIM R. ASBURY, individually and in his capacity as a Deputy with the Wood County Sheriffs Department, and the WOOD COUNTY COMMISSION, a political subdivision in the State of West Virginia, Defendants.

BRIAN SAWYERS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT Now comes the Plaintiff, Brian Sawyer, by counsel, John H. Bryan, pursuant to

Rule 56 of the Federal Rules of Civil Procedure, and moves the Court to deny the Defendants Motion for Summary Judgment. In support hereof the Plaintiff states as follows: INTRODUCTION This case arises from two separate acts of police misconduct. The rst involves

Defendant Asburys physical attack on Brian Sawyer at the Plaintiffs residence wherein Mr. Sawyer was choked, manhandled and slammed into Deputy Asburys police cruiser all while handcuffed. The second act involves a choking and physical beating of Mr. Sawyer which took place at the county holding facility resulting in Mr. Sawyer being admitted into the hospital with blackened eyes and a fractured nose. The latter use of force was captured on videotape and admittedly was precipitated solely by Mr. Sawyers
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alleged refusal to obey verbal commands. The Complaint also alleges one count of negligence against the Wood County Commission under State law pursuant to the West Virginia Governmental Tort Claims Act. STANDARD OF REVIEW Rule 56(c) of the Federal Rules of Civil Procedure provide that summary

judgment is appropriate only where the movant shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment is available only in those cases where it is not only perfectly clear that there exists no dispute as to the facts, but also where there is no dispute as to any conclusion or inference which may reasonably be drawn therefrom. Pauley v. Combustion Engg. Inc., 528 F.Supp. (S.D. W. Va. 1981). The burden is upon the moving party to demonstrate clearly that there is no

genuine issue of fact, and any doubt as to the existence of such an issue is resolved against the movant. Prince v. Pittston Co., 63 F.R.D. 28 (S.D. W. Va. 1974). A genuine issue exists if the evidence is such that a reasonable jury could return a verdict for the opponent of the motion. Sayre v. General Nutrition Corp., 867 F.Supp. 431 (S.D. W. Va. 1994) affd, F.3d 296 (4th Cir. 1995). A fact is material if proof of its existence or nonexistence would affect the disposition of the case under applicable law. Faulkner v. Carowinds Amusement Park, 867 F. Supp. 419 (S.D. W. Va. 1994). Finally, on motion for summary judgment, the court views the evidence in the light

most favorable to the party opposing the motion and gives to that party the benet of all favorable inferences that may be reasonably drawn for the evidence. First Natl Bank v. Maryland Cas. Co., 354 F.Supp. 189 (S.D. W. Va. 1973). The judges function is not

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himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). STATEMENT OF FACTS CONSTRUED IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFF On October 29, 2010, Defendant Asbury arrived at Brian Sawyers residence in

Parkersburg, Wood County, West Virginia, pursuant to a domestic-related 911 call. Brian Sawyers girlfriend, Angelita Cunningham, called the police because he took a Klonopin pill after she had asked him not to do so. (Brian Sawyer Deposition, attached to the Defendants Motion as Exhibit 2, p. 68, 14-16) Mr. Sawyer testied that he had originally been prescribed Klonopin for anxiety. (Id., p. 32, 5-20). Mr. Sawyer was sitting on his couch playing a video game when Deputy Asbury walked in the house, uninvited and without knocking and said where is she at? (Id., p. 68, 18-21). Mr. Sawyer pointed Asbury towards the back bedroom, where Ms. Cunningham was located. Ms. Cunningham and Deputy Asbury then went outside the front door onto the porch and had a private discussion. (Id., p. 68, 22-23). The Plaintiff was then called by Ms. Cunningham to join her and Deputy Asbury

on the front porch. Mr. Sawyer refused to do so because he knew that he had been drinking and that if he stepped outside his doorway he may be arrested for public intoxication. (Id., p. 69, 1-4). Ms. Cunningham then asked Mr. Sawyer if he could call someone to come and get him so that he doesnt have to go to jail. Mr. Sawyer replied, go to jail?, and said yeah, Ill call someone. (Id., 69, 4-8) As Mr. Sawyer turned around to walk towards the kitchen to get the phone, he was suddenly grabbed from

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behind by Defendant Asbury and placed in handcuffs. Mr. Sawyer stated, why am I being thrown in cuffs? Im doing what you told me to do. (Id., 69, 11-12). Defendant Asbury then forcefully moved the Plaintiff towards the front door of his

home. As he was being shoved through the front door, Mr. Sawyer attempted to kick the lower section of glass of the door. However, he missed, only kicking the door frame. (Id., 69, 13-16) Defendant Asbury grabbed the Plaintiff by the throat and shoved him back against the guard rail on the front porch. Mr. Sawyer was still handcuffed behind his back. (Id., 69, 16-18) Defendant Asbury was choking him and Mr. Sawyer began to black out. (Id., 69, 18-20) The Plaintiff was only released from the chokehold when another police cruiser arrived, and after Angelita Cunningham asked Defendant Asbury to stop choking the Plaintiff. (Id., 69, 20-21, p. 79, 13-14). Defendant Asbury admitted repeatedly during his deposition, over his counsels repeated objections, that for the approximate minute that Mr. Sawyer was pinned up against the railing of his porch while handcuffed, that his hand was on the Plaintiffs throat. (Jim Asbury Deposition, attached to the Defendants Motion for Summary Judgment as Exhibit 3, p. 46, 2-17, p. 47, 5-7) During the time that he was being choked, Defendant Asburys hand was on the Plaintiffs windpipe. The Plaintiff was blacking out, and seeing stars due to the lack of oxygen. (Brian Sawyer Deposition, p. 81, 3-11). The Plaintiff was then pushed aggressively down the front steps of the porch and

thrown into the rear passenger side of Defendant Asburys SUV police cruiser. (Id., p. 84, 1-14, p. 85, 6-21) Defendant Asbury admitted during his deposition that there was a dent in the right rear quarter panel of his vehicle. (Jim Asbury Deposition, p. 11, 12-23, p. 12, 1-6). Defendant Asbury claims that it was another arrestee who slammed his own

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head into the vehicle causing the dent. However, he is unable to remember the name of the other arrestee, nor is he able to recall the date on which that occurred. Defendant Asbury also stated that there is no written record of the alleged incident with the other arrestee. (Id., p. 12, 7-11, p. 13, 7-11). Defendant Asbury did not complete a written and sworn use of force report following his use of force against the Plaintiff. (Id., p. 14, 2-7). During this incident, Brian Sawyer did not resist any of the verbal or physical commands of Defendant Asbury. (Brian Sawyer Deposition, p. 92, 3-11). The Plaintiff was charged with domestic assault for allegedly making a

threatening statement to his girlfriend in the presence of Defendant Asbury. (Jim Asbury Deposition., p. 16-19) He was also charged with public intoxication, for allegedly stepping out of his doorway onto his front porch. (Id., p. 48, 19-23, p. 49, 1-11). As he was being transported to the holding center, Defendant Asbury alleges that Mr. Sawyer was being verbally combative and threatening to kick his ass. (Id., p 52, 16-21, p. 60, 21-23, p. 61, 1-8) For that reason, three other ofcers arrived at the holding center in order to assist with processing a potentially-violent Mr. Sawyer. (Id., p. 61, 1-11). Brian Sawyer was then taken into a processing room at the holding center.

Video surveillance captured what was to take place. Defendant Asbury testied that he was unaware of any video surveillance in the room. (Id., p. 65, 11-19). The other three ofcers whom had arrived to assist with Mr. Sawyer were also in the room. (Id., p. 60, 18-23) Mr. Sawyer was continuing to mouth off to Mr. Asbury. (Brian Sawyer Deposition, p. 108, 13-17) Mr. Sawyer was placed on a concrete bench by Mr. Asbury. (Id., p. 108, 18-21) Despite the fact that Mr. Sawyer was in the process of mouthing off to him, Defendant Asbury then took the handcuffs off Mr. Sawyer. Defendant Asbury

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testied that he removed the handcuffs from Mr. Sawyer despite the fact that Mr. Sawyer was being verbally abusive to him. (Jim Asbury Deposition, p. 71, 17-22) Asbury testied that Sawyer kept referring to me and my fuck buddy . . . that I was going to get it, he knew where I lived. He described my trailer in Vienna, that I was going to, that he was going to kick my ass. (Id., p. 28, 22-23, p. 29, 1-3). After Defendant Asbury removed the handcuffs from the Plaintiff, he immediately

confronted the Plaintiff and the two can be seen exchanging words. (See Video, attached hereto as Exhibit 1, 21:58:47). Suddenly and violently, Defendant Asbury grabbed the Plaintiff by the throat. The Plaintiff was lifted off of the ground and held by his throat. (Brian Sawyer Deposition, p. 109, 6-8) Defendant Asbury admitted to holding the Plaintiff in the throat area. (Jim Asbury Deposition, p. 20, 6-9) This can be clearly observed in the video. (See Video, attached hereto as Exhibit 1, 21:59:17-21:59:35)1 Defendant Asbury testied that he was provoked to use sudden physical force on Mr. Sawyer solely as a result of Mr. Sawyer allegedly failing to obey his verbal command to stand up. He testied that he asked him to stand up, and when he did not he used force. (Jim Asbury Deposition, p. 29, 20-23, p. 30, 3-5, p. 62, 12-23, p. 63, 1-2) The Plaintiff testied that he was not given an instruction to stand up, but rather that he was told to shut up and to quit running his mouth. (Brian Sawyer Deposition, p. 110, 12-19). The Plaintiff was not given a warning that force was about to be used against him. (Jim Asbury Deposition., p. 62, 12-15) Despite the fact that there were three other ofcers in the room in order to assist Defendant Asbury with Mr. Sawyer, Defendant Asbury chose
1

Plaintiff requests that the Court view the Plaintiffs copy of The Video when reviewing the abovecaptioned Response. There have been allegations that there are two copies of The Video, one which clearly shows Asburys punch, and one which does not. See FBI Investigating Wood Sheriffs Department Over Video, Charleston Gazette, October 26, 2010 (http://wvgazette.com/News/201010261382) 6

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not to seek the assistance of the other three ofcers prior to violently grabbing the Plaintiff by the throat. (Id., p. 61, 3-22) Defendant Asbury admitted that he could have alternatively had the other three ofcers grab Mr. Sawyer from three sides in order to take him into control. (Id. p. 62, 5-11) Defendant Asbury admitted that during this time, Mr. Sawyer never did physically assault him, or any other ofcer, in any way, but was just running his mouth. (Id., p. 31, 1-10). While Defendant Asbury had the Plaintiff against the wall in a chokehold, he can

be seen in the surveillance video to pull his right arm back and punch the Plaintiff in the face. (Video at 21:59: 20-22). The other ofcers in the room, who had been passively watching Defendant Asbury choke the Plaintiff, eventually joined in to grab Mr. Sawyer. Led by Defendant Asbury, the ofcers brought Mr. Sawyer down to the ground half out of view from the surveillance camera. (Video at 21:59: 36-41). Defendant Asbury then sat on the Plaintiffs back and began punching him in the face while the other ofcers held him down and hit the Plaintiff in the arms and legs with batons and ashlights. (Brian Sawyer Deposition, p. 109, 9-19) After the beating was over, Defendant Asbury told the Plaintiff that he better not spit the blood on the fucking oor. Id., p. 123, 8-14) Defendant Asbury caused the Plaintiff physical damage, causing him to receive two black eyes and fractured nose, for which the Plaintiff was subsequently treated at a hospital. (Id., p. 109, 17-23, p. 110, 1) Defendant Asbury went to the hospital with the Plaintiff and testied that the Plaintiff was injured, and that he had a fractured nose and was bleeding. (Jim Asbury Deposition, p. 19, 11-18.) At the time the beating took place, Defendant Asbury had no prior knowledge of

Brian Sawyer and testied that he did have any reason to treat him any differently than

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any other person in the world. (Id., p. 41, 14-23, p. 43, 7-12). Defendant Asbury chose not to take any photographs of Brian Sawyers face after the beating, despite having the ability to do so. (Id., p. 57, 14-21). Despite the fractured nose and blackened eyes, Defendant Asbury denies having made any contact with the Plaintiffs face and denies that any of the other ofcer involved made any contact with the Plaintiffs face. (Jim Asbury Deposition, p. 20, 2-5). The beating was the subject of an investigation by the Wood County Prosecuting

Attorney, who presented the case to a Wood County grand jury. Although the grand jury returned a no true bill, none of the ofcers who testied regarding the Sawyer beating ever bothered to interview Defendant Asbury. (Id., p. 66, 17-20). The matter is also under investigation by the Federal Bureau of Investigation. (Id., p. 49, 14-17, p. 66, 1-19). Upon information and belief, the FBI investigation is still pending. Defendant Asbury resigned from the Wood County Sheriffs Department in

September of 2010 while under an internal investigation by the Wood County Sheriffs Department. (Jim Asbury Deposition, p. 23, 3-23, p. 24, 1-6) When asked details about the conduct on his part which led to the resignation, Defendant Asbury pled the Fifth Amendment during his deposition. (Id., p. 24, 7-10). FOURTH AMENDMENT CLAIM (SAWYERS ARREST) Defendant Asbury makes the argument that he he did not use excessive force

during Brian Sawyers arrest, and therefore that he is entitled to qualied immunity. However, as explained below, choking a handcuffed person and then slamming the person into a vehicle is not reasonable force as a matter of law.

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When analyzing an excessive force claim, the courts use a test of objective

reasonableness - whether a reasonable ofcer would have known that his actions violated a clearly established right. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). However, depending on the circumstances, the right may fall under the Fourth Amendment, which applies before or during an arrest. Or, the right may fall under the Fourteenth Amendment, which applies to pretrial detainees. In the case sub judice, the Plaintiff has made claims under both the Fourth Amendment and the Fourteenth Amendment. The Fourth Amendment claims apply to the allegations of excessive force which occurred during Mr. Sawyers arrest at his home. The Fourteenth Amendment claims apply to the beating which he endured while at the holding facility. When analyzing a Fourth Amendment claim, proper application of the objective

reasonableness standard requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the ofcers or others, and whether he is actively resisting arrest or attempting to evade arrest by ight. Graham v. Connor, 490 U.S. 386 (1989) (known as the Graham factors); See also Bell v. Wolsh, 441 U.S. 520 (1979); Rowland v. Perry, 41 F.3d 167 (4th Cir. 1994); Jones v. Buchanan, 325 F.3d 520 (4th Circ. 2003). The 4th Circuit avoids judging the ofcers conduct with the 20/20 vision of hindsight, and recognizes that police ofcers are often forced to make splitsecond judgments - in circumstances that are tense, uncertain, and rapidly evolving. Graham, 490 U.S. at 396-97. In analyzing the Graham factors, the Fourth Circuit has held that when the rst

element - the severity of the crime at issue - is insignicant or if the plaintiff has

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committed no crime at all, then the plaintiff has stated a claim for violation of his or her constitutional right to be free from excessive police force. See Clem v. Corbeau, 284 F. 3d 543, 545-47 (4th Cir. 2002); Park v. Shiett, 250 F.3d 843, 848, 853 (4th Cir. 2001). Regarding the second Graham factor - whether a reasonable ofcer could have perceived the plaintiff as posing an immediate threat to the safety of the ofcers or others - the 4th Circuit has held that where the plaintiff was neither armed nor suspected by the ofcer of being armed, there was a genuine issue of material fact. Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994). Lastly, where a suspect actively stops resisting arrest prior to the allegation of excessive force, there is also a genuine issue of material fact to be determined. See Valladares v. Cordero, 011209 Fed4, 07-1995 (January 12, 2009). Defendant Asbury argues that his version of the facts do not amount to excessive

force. However, there are genuine disputes over his version of the facts. For instance, Defendant Asbury argues that the Plaintiff attempted to kick at him, which necessitated him using force. However the Plaintiff denies kicking at Asbury, testifying that he tried to kick the glass out of his front door because he was being pushed faster than he could walk and because he was upset that he had done everything he was asked to do and yet was getting arrested and shoved out of his house. (Brian Sawyer Deposition, p. 77, 3-22). Defendant Asbury also argues that he merely pinned Plaintiff against the railing

with his hand on his chest . . . and that [a]t no time did Defendant Asbury apply force in any manner to restrict air ow to Plaintiff. (Defendants Motion, p. 14) However, Plaintiff Sawyer testied that he was grabbed in the front of his throat by his windpipe, and that

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he started blacking out and seeing stars due to the lack of oxygen. (Brian Sawyer Deposition, p. 81, 3-23) Defendant Asbury admitted repeatedly during his deposition, over his counsels repeated objections, that for the approximate minute that Mr. Sawyer was pinned up against the railing of his porch while handcuffed, that his hand was on the Plaintiffs throat. (Jim Asbury Deposition, p. 46, 2-17, p. 47, 5-7). It is almost never proper to place a suspect or arrestee in a choke-type hold. It is

universally frowned on, both by the courts and by the U.S. Department of Justice. For example, in the 2009 Consent Decree between the United States of America and The Territory of the Virgin Islands and The Virgin Islands Police Department2, choke holds are specically prohibited except where deadly force is authorized. (See Virgin Islands Consent Decree, attached hereto as Exhibit 2, p. 5, subparagraph g) In the December 23, 2008 technical assistance letter from the U.S. Department of Justice to the Austin Police Department3 it was recommended that the Austin Police Departments use of force policy explicitly explain that ofcers should use the carotid [choke] hold only in circumstances in which deadly force would be authorized. They further noted that choke holds are typically considered a use of deadly force. (See Austin Police Department Letter, attached hereto as Exhibit 3, p. 11, paragraph 6). In the Federal Courts, chokeholds started to become a popular subject of

litigation in the early 1980s, beginning primarily with City of Los Angeles v. Lyons, 461

In March 2004, the Department of Justice initiated an investigation of an alleged pattern or practice of excessive force throughout the Virgin Islands Police Department under 42 U.S.C. 14141. Engaging in a pattern or practice of police misconduct, such as chokeholds where deadly force is not authorized, is unlawful and is investigated by the Civil Rights Division of the U.S. Department of Justice, Special Litigation Section, which was responsible for both Exhibits 2 and 3 attached hereto.
3

In May 2007, the Department of Justice initiated an investigation of an alleged pattern or practice of excessive force throughout the Austin, Texas Police Department under 42 U.S.C. 14141. 11

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U.S. 95, 75 L.Ed.2d 675, 103 S.Ct. 1660 (1983). In Lyons, the City of Los Angeles was sued by a man who had been injured as the result of a chokehold. As a result the city imposed a moratorium on chokeholds except in situations where deadly force was authorized. Id. at 99-101. But even prior to 1983, various Federal Circuits had already held that chokeholds were a clearly established life-threatening procedure. See Williams v. Kelley, 624 F.2d 695 (5th Cir. 1980)(dragging prisoner in a chokehold caused prisoners death within 10 feet); see also Nielsen v. Clayton, 62 F.3d 1419 (C.A.7 (Ill.) 1995)(use of a chokehold on a committed mental patient caused death and was a constitutional violation). Defendant Asbury also argues that any injuries received by the Plaintiff were de

minimis during this application of force. However, the lack of serious injury was never a defense to a Fourth Amendment violation. The de minimis analysis was only relevant to Fourteenth Amendment and Eighth Amendment claims. The choking on the porch and the slamming into the police cruiser occurred during the initial arrest. Although the point at which Fourth Amendment protections end and Fourteenth Amendment protections begin is often murky, these uses of force took place prior to the transport and during the actual initial arrest, and therefore fall under the Fourth Amendment. Orem v. Rephann, 523 F.3d 442 (4th Cir., 2008) (holding that that separation between Fourth and Fourteenth Amendments is murky, but that where the transport has begun the arrest is over and that therefore the Fourteenth Amendment applied). Therefore the excessive force claim which occurred during the arrest of the Plaintiff falls under Fourth Amendment analysis.

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Even where the Fourteenth Amendment applies, where a pretrial detainee

received only a de minimis injury, he can still recover. The Supreme Court has long held that a serious physical injury is not required to establish a prison-context, Eighth Amendment excessive force claim. Hudson v. McMillian, 503 U.S. 1 (1992). The Supreme Courts Eighth Amendment analysis requires far more demanding proof of intent to cause pain than does the Fourth Amendment. The rights of pretrial detainees under the Fourteenth Amendment due process clause are at least as great as the Eighth Amendment protections afforded to convicted prisoners. Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983). The Fourth Circuit previously took a position at odds with Hudson. See Taylor v.

McDufe, 155 F.3d 479 (C.A.4 (N.C.), 1998) (holding that where injuries are de minimis an ofcer who committed excessive force is entitled to qualied immunity). Recently, in Wilkins v. Gaddy, 559 U.S. , 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010), the U.S.

Supreme Court nally abrogated the Fourth Circuits stance, reafrming the Hudson decision, holding that a signicant injury is not a threshold requirement for stating an excessive force claim. Instead, the core inquiry is whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically cause harm. Id. Seemingly ignoring the Wilkins decision, Defendant Asbury argues that Plaintiff

must also demonstrate that the injuries were more than de minimis or that the force used [is] of a sort repugnant to the conscience of mankind . . . or the pain itself [is] such that it can properly be said to constitute more than de minimis injury. (Def.s Brief, p.

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15)(quoting Norman v. Taylor, 25 F.3d. 1259, 1263 n. 4 (4th Cir. 1994) (en banc); Carr v. Deeds, 453 F.3d 593, 605-606 (4th Cir. W. Va. 2006)). Both cases cited by the Defendant to stand for the proposition than a substantial injury is required were abrogated by Wilkins in 2010. Strongly setting the record straight, the Supreme Court chastised the Fourth Circuit for their departure from Hudson: The Fourth Circuits strained reading of Hudson is not defensible. This Courts decision did not, as the Fourth Circuit would have it, merely serve to lower the injury threshold for excessive force claims from signicant to non-de minimis - whatever those ill-dened terms might mean. Instead, the Court aimed to shift the core judicial inquiry from the extent of the injury to the nature of the force - specically, whether it was nontrivial and was applied . . . maliciously and sadistically to cause harm. Hudson, 503 U.S., at 7. To conclude, as the District Court did here, that the absence of some arbitrary quantity of injury requires automatic dismissal of an excessive force claim improperly bypasses this core inquiry. Id., at 9. Wilkins, at 6. Additionally, the Wilkins Court noted in Footnote 2 that [m]ost Circuits to consider the issue have rejected the Fourth Circuits de minimis injury requirement. Id. Thus, for Defendant Asbury to argue that Mr. Sawyer must prove an injury threshold in order to seek relief for the excessive force inicted on him during his arrest, is based on overruled and erroneous case law.4 Here, the handcuffed Plaintiff alleges that he was choked, almost blacking out,

and seeing stars. (Brian Sawyer Deposition, p. 81, 3-23) Under the Department of Justice recommended use of force standards, this qualies as a use of deadly force. (See Virgin Islands Consent Decree; See also Austin Police Department Letter). The Plaintiff was under arrest for domestic assault - for allegedly making an ambiguous verbal threat to his girlfriend (which the Plaintiff denies) and for public intoxication - for
4

Defendant Asbury has not argued that the injuries received by the Plaintiff at the holding center were de minimis, but rather has acknowledged that the Plaintiff was seriously injured. See Jim Asbury Deposition, p. 19, 11-18. 14

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stepping onto his front porch. These are misdemeanor charges. It was objectively unreasonable for Defendant Asbury to use potentially deadly force against the Plaintiff in response to the Plaintiff kicking his front door one time. At the very least, there is a genuine issue of material fact regarding whether or not the Plaintiff was choked by Defendant Asbury. Secondly, there is also an issue regarding whether the Plaintiff was slammed into the police cruiser. Brian Sawyer alleges that he was. (Brian Sawyer Deposition, p. 85, 6-21) Defendant Asbury denies it. (Jim Asbury Deposition, p. 13, 19-23, p. 14, 1-7). It is undisputed that Mr. Sawyer voluntarily walked to the police cruiser. If Defendant Asbury really did slam Mr. Sawyer into the side of his cruiser for no legitimate reason, then that alone would qualify as an impermissible iniction of pain and/or repugnant to the conscious of mankind. It was completely unnecessary and objectively unreasonable. Reasonable force used during the course of a lawful arrest that causes no injury

is not actionable. However this does not mean that an unlawful and excessive use of force which does not result in serious injury is not actionable. Rather, a police ofcers use of excessive force solely for the purposes of abusing and punishing an arrestee is an obvious violation of the arrestees Fourth Amendment rights (or Fourteenth Amendment rights) and is not subject to qualied immunity. Therefore, Defendant Asburys motion regarding Plaintiff Sawyers Fourth Amendment claim should be denied. FOURTEENTH AMENDMENT CLAIM (HOLDING CENTER) Defendant Asbury argues that the force he used against the Mr. Sawyer at the

county holding center was not excessive, and that therefore he is entitled to qualied

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immunity. However, as explained below, choking the Plaintiff and punching him in the face, resulting in a fractured nose and blackened eyes, is an excessive use of force especially when in reaction to an alleged failure to respond to a verbal command and not in response to a physical assault on an ofcer. Pursuant to federal law, Fourth Amendment excessive force claims only apply to

conduct alleged during the course of an arrest, investigatory stop, or other seizure of a person, whereas claims made by a detainee or arrestee must be made pursuant to the 14th Amendment Due Process Clause. See Riley v. Dornton, 115 F.3d 1159 (4th Cir. 1997). To succeed on a federal excessive force claim under the Due Process Clause of the Fourteenth Amendment, the plaintiff must show that the ofcer inicted unnecessary and wanton pain and suffering. Taylor v. McDufe, 155 F.3d 479, 483 (4th Cir. 1998) (abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 1175, 175 L.Ed.2d 995 (2010). The Fourth Circuit adopted a balancing test of factors, such as the need for the , 130 S.Ct.

application of force, the relationship between the need and the amount of force used, the extent of the injury inicted, and whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm. Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973); cited by Orem v. Rephann, 523 F.3d 442 (4th Cir. March 20, 2008) (the tasering of a 100 pound woman handcuffed and hobbled in the back of a patrol car, in violation of the Berkeley County Sheriffs Department taser policy was excessive force). In Orem, the plaintiff had been arrested and handcuffed after disrupting and

assaulting an ofcer who had served her with a Family Protective Order. Under the

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inuence of prescription drugs, illegal drugs, and alcohol, she ransacked her husbands ofce, drove towards the family house at a high rate of speed, skidded into a ditch, left her car and then charged at a police ofcer. Id., at 444. She was placed in handcuffs and her feet were placed in a hobbling device. She was driven to the regional jail. While in route to the jail, the plaintiff yelled, cursed and banged her head against the police car window three or four times. Id. She then started jumping and banging around in the back seat in such a way as to rock the police cruiser. The transporting ofcer then stopped his vehicle. Id. Deputy Rephann was following the transport vehicle and knew that Deputy Boyles was transporting a prisoner who was charged with battery and obstruction of a police ofcer, and who reportedly was unruly or combative. Id. When Deputy Boyles pulled his vehicle over, Deputy Rephann stopped in order

to assist with the potentially violent arrestee. Deputy Rephann walked up to the vehicle with his taser gun drawn. A conversation ensued between Rephann and the arrestee. The arrestee, Orem, was speaking about her son. When it appeared to her that Rephann was uninterested in the plight of her son, Orem forcefully stated fuck you to Deputy Rephamm, to which he responded stop it and tased her under her left breast and inner thigh. Although Deputy Rephann testied that he tased Orem in response to her moving her feet around, and not due to the fact that she cursed at him, the Court noted that it is not clear that [Rephann] stating stop it and subsequently tasering Orem was not in fact a response to her stating fuck you, considering that after shocking Orem, Deputy Rephann commanded that she respect the ofcers. Id., at 447. The Court reasoned that:

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Deputy Rephann placed the taser under Orems left breast and inner thigh. Considering his reach was closer to her right side and other parts of her body, a reasonable juror could also infer that Deputy Rephanns application of force in these areas was done for the very purpose of harming and embarrassing Orem - motives that are relevant factors, despite Deputy Rephanns contentions, to determining whether the use of force was excessive under the Fourteenth Amendment. See Williams v. Landen, 920 F.2d 927 (4th Cir. 1990) (unpublished) (noting that there was an unresolved issue of fact regarding a prison guards motives for spraying two cans of mace on an inmate who had retreated as far as he could in his cell); see also Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003) (noting that the motives of the state actor are relevant and stating that [f]orce inspired by malice or by unwise, excessive zeal amounting to an abuse of ofcial power that shocks the conscience . . . maybe redressed under [the Fourteenth Amendment].) Id., at 447. The Court held that Deputy Rephanns tasering of Orem was excessive: While we recognize that not every push or shove, even if it may later seem unnecessary is serious enough to entail a deprivation of a constitutional right, Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the facts, here, when viewed in a light most favorable to Orem, evidence that Deputy Rephanns use of the taser gun was wanton, sadistic, and not a good faith effort to restore discipline. Orems behavior was reprehensible, but Deputy Rephanns use of the taser was an unnecessary and wanton iniction of pain. Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1991). Id. In the recent unpublished decision of Wolfe v. Footen, No. 10-6403 (4th Cir.

2011), the Fourth Circuit reversed and remanded a District Court order granting summary judgment to the defendant police ofcers in a Fourth Amendment excessive force claim. Although the Fourth Amendment claim uses a slightly different analysis, the Graham v. Connor factors are relevant to both inquiries, and the discussions overlap substantially. See, e.g., Orem at 447 (discussing the Graham analysis in the context of a Fourteenth Amendment case). In Wolfe, ofcers responded to a domestic call alleging that Wolfe had violated a Final Protective Order. They were also informed that

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Wolfe had a history of violence. Upon arrival at the scene Wolfes fourteen year old daughter informed the ofcers that she had witnessed her father hitting her mother. Wolfe, at 4. After the ofcers located Wolfe, he allowed the ofcers to handcuff him. As they were attempting to move Wolfe, the pressure on his handcuffs caused him pain. Wolfe tugged backwards in his handcuffs and began to curse, stating This is why you mother fuckers are getting killed, referring to a then-recent incident where another ofcer had been killed. After Wolfe made that exclamation, the ofcers began to beat Wolfe. However, in response, Wolfe laughed and called the ofcers insulting names, including bitches. He also made a hocking sound to insinuate that he would spit at the ofcers. Id., at 5-6. After receiving the beating, Wolfe was charged in Maryland state court for a

variety of offenses, including assault on Ofcer McCarty. He pled guilty to two assaults and was sentenced to twenty years imprisonment. Id., at 8. After ling a pro se lawsuit and having it dismissed in District Court, Wolfe appealed to the Fourth Circuit. The Wolfe Court found that neither neither ofcer was entitled to qualied immunity: Assuming as we must, that Wolfes testimony is accurate, the objective unreasonableness of the ofcers behavior is readily apparent. Any threat presented by the unarmed Wolfe had largely abated by the time he was handcuffed. Even if the ofcers initially imagined Wolfes exclamation, accompanied by a tug on his handcuffs, to be a potentially dangerous resistance, that did not warrant Ofcer Footen holding him down and elbowing him while Ofcer Routzahn choked him with his boot, kicked him twice, stomped on his face, and struck him multiple times with his service ashlight. See Bailey v. Kennedy, 349 F.3d 731, 744 (4th Cir. 2003) ([t]he extensive blows and kicks used against an unarmed man were unreasonable, especially the use of force that continued after [the suspect] was bound hand and foot and lying face down on the oor.). Given Wolfes evidence helplessness, his laughter, use of profanity, and insinuation that he might spit, also did not justify the amount of force used against him.

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... Nor, on these facts, is either ofcer entitled to qualied immunity. [c]ourts have consistently applied the Graham holding and have consistently held that ofcers using unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen, do not act in an objectively reasonable manner and, thus, are not entitled to qualied immunity. Bailey, 349 F.3d at 744-45; see also Jones v. Buchanan, 325 F.3d 520, 532 (4th Cir. 2003). ... In short, the version of events supported by Wolfes testimony and his mothers afdavit presents a triable issue of material fact. The district court erred by concluding otherwise, despite prevailing factual questions as to the quantity of force used by the ofcers and the circumstances under which their blows were inicted. As we have explained, the purely legal question of whether the constitutional right at issue was clearly established is always capable of decision at the summary judgment stage, but a genuine question of material fact regarding [w]hether the conduct allegedly violative of the right actually occurred . . . must be reserved for trial. Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (quoting Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). Wolfe, at 14-17. In the case sub judice, Defendant Asburys actions at the holding center were

excessive under the Fourteenth Amendment. According to Asburys own testimony, Mr. Sawyer did not physically assault any of the ofcers present at the holding center, but was just running his mouth and was allegedly failing to obey a verbal command. (Jim Asbury Deposition, p. 31, 1-10) Admittedly, Defendant Asbury gave no warning that sudden and violent force would be used against the Defendant if he did not obey his verbal commands. (Id. p. 62, 12-15) Although three other ofcers were present to assist with Mr. Sawyer, Defendant Asbury unhandcuffed Mr. Sawyer and confronted him alone. Without requesting help from the other three ofcers present, and while the other ofcers watched, Defendant Asbury suddenly grabbed the Plaintiff in a chokehold and held him back against the wall, raising him up off the concrete bench and lifting him off
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the ground by his throat. (Brian Sawyer Deposition, p. 109, 6-8) Defendant Asbury punched the Defendant in the face using his right arm while choking him with his left arm. (See Video at 21:59: 20-22) Then, after the ofcers brought Mr. Sawyer down to the ground, Defendant Asbury continued to punch Mr. Sawyer in the face. (Brian Sawyer Deposition, p. 109, 9-19) During this time, Mr. Sawyer was moving his head trying to protect his face from Defendant Asburys punches. (Id., p. 116, 9-20) Brian Sawyer suffered a fractured nose and two black eyes. (Id., p. 109, 17-23, p. 110, 1; Jim Asbury Deposition, p. 19, 11-18.) During the entire beating at the holding center, there was no physical assault of

the ofcers by Brian Sawyer. (Jim Asbury Deposition, p. 31, 1-10) To choke a pretrial detainee by the throat, and to punch him in the face repeatedly for allegedly refusing to stand up - or for refusing to shut up as the Plaintiff alleges - causing a fractured nose, two black eyes and a mouthful of blood was wanton, sadistic and not a good faith effort to restore discipline. Orem, at 447. Even if Mr. Sawyers mouthing off was reprehensible, Deputy Asburys reaction of choking the Plaintiff and punching him in the face was an unnecessary and wanton iniction of pain. Id. The surveillance video of the beating shows that the Plaintiff was not ghting back while he was being choked up against the wall and off his feet. His only movements appear to be attempts at releasing the pressure on his windpipe by gaining a footing on the concrete bench. Yet the choking continues and he is punched in the face. (Video, 21:59:18-34) After the Plaintiff is brought down to the ground, he hardly moves at all, yet the beating continues. (Video, 21:59:40-22:01-20) Additionally, Defendant Asbury punched the Plaintiff in the face repeatedly while the Plaintiff was laying on the ground on his

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stomach with four armed police ofcers on top of him. The Plaintiff was forced to keep moving his head from side to side to avoid direct hits in the face from Asburys punches. (Brian Sawyer Deposition, p. 116, 9-20) Similar to Ms. Orem being tasered in the left breast and inner thigh, a reasonable

juror could infer that Asbury attacking Mr. Sawyers face and fracturing his nose and causing black eyes was done solely with the purpose of harming and embarrassing him. See Orem, at 447. Likewise, a reasonable juror could infer that Defendant Asbury choked Mr. Sawyer and punched him against the wall, not because he was refusing to stand up, but because Sawyer kept referring to me and my fuck buddy . . . that I was going to get it, he knew where I lived. He described my trailer in Vienna, that I was going to, that he was going to kick my ass. (Jim Asbury Deposition., p. 28, 22-23, p. 29, 1-3). Therefore, Defendant Asburys motion regarding Plaintiff Sawyers Fourth Amendment claim should be denied. PLAINTIFFS NEGLIGENCE CLAIM DOES NOT FAIL AS A MATTER OF LAW Defendant Asbury argues that there is no evidence of negligence on behalf of

Defendant Wood County Commission and that 42 U.S.C. 1983 is the sole avenue of relief for claims that the Plaintiffs constitutional rights were violated through the use of excessive force. However, West Virginia state law does allow for a state law claim for negligence irregardless of 42 U.S.C. 1983. Negligence was alleged in the Complaint and the Amended Complaint, and a genuine issue of material fact exists regarding whether the Wood County Commission was negligent under state law. The West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va.

Code 29-12A-1, et seq. (The Act) was enacted at the suggestion of Chief Justice

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Haden in the Long v. City of Weirton, 214 S.E.2d 832 (W. Va. 1975) opinion, where he opined that common law municipal liability (governmental v. proprietary balancing tests, etc.) should be abolished and replaced with a statutory framework. The act was subsequently enacted to limit liability of political subdivisions and provide immunity to political subdivisions in certain instances and to regulate the costs and coverage of insurance available to political subdivisions for such liability. This act applies to both proprietary and governmental functions of most county or municipal public entities or functions. Under the act, a political subdivision can be held liable for damages due to injury, death, or property damage caused by a negligent act or omission of an employee who is acting within the scope of his or her authority. Thus, pursuant to state statute, negligence actions may be maintained against

political subdivisions for the common law tort of negligence.5 The Act replaces the qualied immunity analysis with its own explicit immunity exceptions to liability, which include: (1) legislative or quasi-legislative functions; (2) judicial, quasi-judicial or prosecutorial functions; (3) execution or enforcement of the lawful orders of any court; (4) adoption or failure to adopt an ordinance, policy, statute, rule, regulation or other law; and (5) civil disobedience or the method of providing police, law enforcement or re protection. None of the exceptions apply to Mr. Sawyers state law claim.6 There is a long history of state law negligence actions being maintained against

political subdivisions for any conduct which meets the foreseeability standard of state

5 6

The Act does not apply to the State of West Virginia or its employees.

The exception for method of providing police, law enforcement, or re protection has been held to refer to the formulation of policy related to how police, law enforcement or re protection is to be provided and would not apply to actual negligent acts by an ofcer. Syl. Pt. 3 Beckley v. Crabtree, 189 W. Va. 94 (1993). 23

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tort law and which is not expressly the subject of one of the express exceptions delineated in the West Virginia Governmental Tort Claims Act. See Mallamo v. Town of Rivesville, 197 W. Va. 616 (1996) (involving an accidental police shooting of a suspect which occurred during the execution of an arrest warrant); Moats v. Preston County Admin., 206 W. Va. 8 (1999) (involving a pretrial detainee suicide); Westfall v. City of Dunbar, 205 W. Va. 246 (1999) (municipal ofcer negligently parked his vehicle over the crest of a hill); Beckley v. Crabtree, 189 W. Va. 94 (1993) (deputy accidently discharged his gun while placing it in the trunk of his patrol car). In the Plaintiffs Complaint, as well as the Amended Complaint, he alleged that

the Defendant Wood County Commission negligently allowed Defendant Asbury to use excessive force against the Plaintiff, and that they negligently failed to comply with federal constitutional standards for the use of force against Mr. Sawyer (i.e., allowed Asbury to violate the Plaintiffs Fourth and Fourteenth rights to be free from excessive force). (See Amended Complaint at paragraphs 21-24). The Video shows three employees of Defendant Wood County Commission watching Defendant Asbury choke and punch the Plaintiff, including Asburys superior ofcer Lieutenant Massey. (See Video, 21:59:15-22) (See Jim Asbury Deposition, p. 13, 2-11, 18-20) Under The Act, the Wood County Commission is statutorily vicariously liable for the negligent acts of its employees. Lieutenant Massey and the other ofcers watching Asbury choke and punch the Plaintiff were negligent. It was reasonably foreseeable that if they allowed Asbury to commit excessive force and/or unlawfully choke and punch Mr. Sawyer, that Mr. Sawyer would suffer damages. Therefore, the Defendants motion for summary judgment regarding the Plaintiffs state law negligence claim should be denied.

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OFFICIAL CAPACITY CLAIMS Despite the Defendants argument, Plaintiff did not make any claims against the

Defendants regarding any policy or custom. The defendants were named properly and the causes of action alleged were clearly described and delineated. See e.g., Orem v. Rephann, 523 F.3d 442 (4th Cir. March 20, 2008) (defendant ofcer named individually and in his ofcial capacity as a police ofcer); see also Wolfe v. Footen, No. 10-6403 (4th Cir. 2011) (pro se Complaint naming ofcer as a deputy of the sheriffs department). An ofcer can only be sued pursuant to 42 U.S.C. 1983 if they were acting in their ofcial capacity as a police ofcer. Likewise, an ofcer who is claiming qualied immunity, as Defendant Asbury is, can only do so if they were acting in their ofcial capacity as a police ofcer. Defendant Asbury is named properly in the Complaint and Amended Complaint. The Plaintiff is not trying to sneak in any claim other than what is expressly alleged in the Amended Complaint. CONCLUSION WHEREFORE, for the reasons stated above, Brian Sawyer respectfully requests

that the Defendants Motion for Summary Judgment be denied. BRIAN SAWYER By Counsel

/s John H. Bryan John H. Bryan, WV Bar No. 10259 Martha J. Fleshman, WV Bar No. 8542 611 Main Street P.O. Box 366 Union, WV 24983 (304) 772-4999 Fax: (304) 772-4998 Counsel for Plaintiff

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON BRIAN SAWYER, vs. Plaintiff, Civil Action No. 6:10-cv-01256 Hon. Joseph R. Goodwin

JIM R. ASBURY, individually and in his capacity as a Deputy with the Wood County Sheriffs Department, and the WOOD COUNTY COMMISSION, a political subdivision in the State of West Virginia, I, John H. Bryan, do hereby certify that on this 20th day of January, 2012, that I Defendants. CERTIFICATE OF SERVICE

served a true copy of the foregoing BRIAN SAWYERS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGEMENT upon the following parties through the Courts Electronic Case Filing (ECF) system, and via U.S. Mail, postage prepaid: Wendy E. Greve, Esq. Pullin, Fowler, Flanagan, Flanagan, Brown & Poe, PLLC JamesMark Building 901 Quarrier Street Charleston, WV 25301 Counsel for Defendants Jim R. Asbury and Wood County Commission

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