Dean v. City of Kenova

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OLIVIA DEAN, Administratrix of the Estate of JAMES D. DEAN, Plaintiff, v. CITY OF KENOVA, Kenova Police Department, OFFICER CHARLES NEWMAN, BOB SULLIVAN, and JOHN/JANE DOES, Defendants.

Civil Action No. 3:21-0197

United States District Court, S.D. West Virginia, Huntington Division

May 19, 2023

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE

Pending before the Court are Defendants City of Kenova, Bob Sullivan and John/Jane Does' Motion for Summary Judgment (ECF No 136) and Defendant Newman's Motion for Summary Judgment (ECF No. 138). On May 16, 2023, the Court summarily DENIED the motions for summary judgment as to the claims against Defendants Newman and Sullivan. ECF No 159. In support of that decision, the Court issues the following Memorandum Opinion and Order.

For the reasons below, the Court GRANTS IN PART AND DENIES IN PART Defendants City of Kenova, Bob Sullivan, and John/Jane Does' Motion for Summary Judgment (ECF No 136). The Court GRANTS this Motion insofar as it requests dismissal of Counts III, IV, and VI against Defendants City of Kenova and John/Jane Does and DENIES it insofar as it requests dismissal of Count V against Defendant Sullivan. Id. Additionally, the Court DENIES Defendant's Newman's Motion for Summary Judgment on Counts I and II (ECF No. 138).

BACKGROUND

Decedent James Dean was arrested by Defendant Charles Newman, an officer with the City of Kenova Police Department, following a disturbance at Mr. Dean's residence on April 5, 2019. Am. Compl. ¶ 1, ECF No. 12; Mem. of L. in Supp. of Def. Newman's Mot. for Summ. J. at 1, ECF No. 139. When he arrived at the scene, Officer Newman was allegedly advised that Mr. Dean had struck another officer, was combative while being placed in handcuffs, and made threatening statements to a responding officer. Mem. of L. in Supp. of Def. Newman's Mot. for Summ. J. at 6, ECF No. 139. Officer Newman transported Mr. Dean to jail, alleging that Mr. Dean became combative during the drive and threatened to murder him. Id. at 1.

While walking Mr. Dean into the sally port of the police station, Officer Newman alleges that Mr. Dean “assumed an aggressive posture” such that Officer Newman believed that Mr. Dean was going to harm him. Id. Officer Newman then took Mr. Dean to the ground. Id. Mr. Dean was handcuffed at the time and struck his head on the concrete floor. Resp. of Def. Newman's Mot. for Summ. J. at 1-2, ECF No. 148. Though the details of this takedown are in dispute, both parties seem to concede that it resulted in a single blow to the head. Id. Plaintiff initially alleged that Jane/John Does either participated in beating Mr. Dean themselves or witnessed a beating and failed to intervene on Mr. Dean's behalf. Am. Compl. ¶ 17, ECF No. 12. Since this allegation, Plaintiff's non-retained expert witness, Dr. Savasman, has testified that Mr. Dean's injuries are consistent with a single blow to the head, Other Defs.' Mem. of L. in Supp. of Their Mot. for Summ. J. at 4-5, ECF No. 137, and Plaintiffs have voluntarily withdrawn their claims against John/Jane Does, Resp. of Def. Newman's Mot. for Summ. J. at 3-4, ECF No. 148.

Following Mr. Dean's injury, emergency services were contacted, and Mr. Dean was transported to Cabell Huntington Hospital. Mem. of L. in Supp. of Def. Newman's Mot. for Summ. J. at 1-2, ECF No. 139. In the initial hours following his admission, Mr. Dean was allegedly “awake, alert, conversant, and combative with hospital staff.” Id. at 2. Mr. Dean received several procedures at the hospital, including an emergency craniotomy, intubation, and sedation- however, after seventeen days there, he passed away of a subdural hematoma caused by blunt force trauma to his head. Id. at 2; Resp. of Def. Newman's Mot. for Summ. J. at 1-2, ECF No. 148.

While a surveillance system initially captured Mr. Dean's injury, only a short, blurry cell phone video that captures the original footage exists today. Ex. 9, ECF No. 151. Defendant Bob Sullivan, chief of police of the City of Kenova Police Department, testified that he watched the surveillance footage close to the time of Mr. Dean's injury. Pl.'s Resp. to Other Defs.' Mot. for Summ. J. at 4-7, ECF No. 154. Chief Sullivan claims that he eventually contacted Tri-State Security Systems to arrange preserving the footage, though by the time Tri-State responded to this request, the footage was gone. Id. at 6, 8; Other Defs.' Mem. of L. in Supp. of Their Mot. for Summ. J. at 9, 11, ECF No. 137. Testimony from Mr. Steinhauer, a Tri-State employee, establishes that at the time of the incident, Tri-State had switched over to a new surveillance system with a shorter writeover rate and that footage was erased every five-to-seven days, as opposed to its previous thirty-day rate. Other Defs.' Mem. of L. in Supp. of Their Mot. for Summ. J. at 9-12, ECF No. 137. Mr. Steinhauer did not recall ever informing the police department of this change. Id. at 10-11. During discovery, a cell phone video recording of the surveillance footage was recovered, though it is not clear whose phone it was obtained from. Id. at 12. The cell phone video is short and blurry and only depicts a few seconds prior to Mr. Dean's injury. Ex. 9, ECF No. 151.

In the instant action, Plaintiff, the administratix of Mr. Dean's estate, brings six claims against Defendants. Am. Compl., ECF No. 12. Three counts arise under 42 U.S.C. § 1983: Counts I and III allege a Fourth Amendment violation against Officer Newman and John/Jane Does, respectively, and Count IV alleges a deliberate indifference claim against the City of Kenova. Id. The additional claims include a state law claim for reckless/malicious conduct against Officer Newman (Count II), a state law spoliation/fraud claim against Chief Sullivan (Count V), and a negligence claim against the City of Kenova (Count VI). Id. In their respective motions for summary judgment, Defendants argue that summary judgment is warranted as to all claims against them. Defs. City of Kenova, Sullivan, and Does' Mot. for Summ. J., ECF No. 136; Def. Newman's Mot. for Summ. J., ECF No. 138.

LEGAL STANDARD

To obtain summary judgment, the moving party must show 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. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.

DISCUSSION

As a preliminary matter, the Court acknowledges that Plaintiff has voluntarily withdrawn Counts III and IV, which allege § 1983 claims for excessive force against John/Jane Does and for deliberate indifference against the City of Kenova respectively. See Pl.'s Resp. to Other Defs.' Mot. for Summ. J. at 2, ECF No. 154. Accordingly, Counts III and IV are DISMISSED.

Turning to the remaining counts, the Court declines to dismiss Counts I and II against Defendant Newman and Count V against Defendant Sullivan, finding that there are material issues of fact that preclude summary judgment. The Court does, however, grant summary judgment to the City of Kenova as to Count VI, as the City is immune from liability under West Virginia Code § 29-12A-5(a)(5). The Court addresses each of these claims below.

L Count I

In his motion to dismiss, Officer Newman argues that qualified immunity shields him from Count L, which states a claim for a violation of Mr. Dean's Fourth Amendment right to be free from unreasonable search and seizures and unreasonable intrusions on his bodily integrity. Am. Compl. ¶ 8, ECF No. 12. Ln assessing whether qualified immunity is warranted courts apply a two-step test. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). First, they determine “whether the facts viewed in [the plaintiff's] favor make out a violation of constitutional rights, and second, whether that violated right was clearly established at the time.” Id. The plaintiff bears the burden of proving the first prong, and the defendant bears the burden of proving the second.^[1] Id. The Court addresses each step of the federal qualified immunity analysis below.

A. Constitutional violation

Officer Newman first argues that he is entitled to qualified immunity because the force he used against Mr. Dean was not objectively unreasonable. Mem. of L. in Supp. of Def Newman's Mot. for Summ. J. at Sec. III.A.1, ECF No. 139. In use of deadly force claims, courts examine objective reasonableness by considering “whether the hypothetical reasonable officer in that situation would have had ‘probable cause to believe that the suspect pose[d] a threat of serious physical harm, either to the officer or to others.'” Stanton,...