Sawyer v. Asbury Response to Motion for Summary Judgment

IN THE UNITED STATES DISTRICT COURT FOR THESOUTHERN DISTRICT OF WEST VIRGINIAAT CHARLESTON

BRIAN SAWYER,

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Plaintiff,vs.

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Civil Action No. 6:10-cv-1256

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Honorable Joseph R. GoodwinJIM R. ASBURY, individually and in hiscapacity as a Deputy with the WoodCounty Sheriff

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s Department, and theWOOD COUNTY COMMISSION, apolitical subdivision in the State ofWest Virginia,

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Defendants.

BRIAN SAWYER

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S RESPONSE TO DEFENDANTS

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MOTION FOR SUMMARY JUDGMENT

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Now comes the Plaintiff, Brian Sawyer, by counsel, John H. Bryan, pursuant toRule 56 of the Federal Rules of Civil Procedure, and moves the Court to deny theDefendants

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Motion for Summary Judgment. In support hereof the Plaintiff states asfollows:

INTRODUCTION

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This case arises from two separate acts of police misconduct. The ﬁrst involvesDefendant Asbury

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s physical attack on Brian Sawyer at the Plaintiff

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s residence whereinMr. Sawyer was choked, manhandled and slammed into Deputy Asbury

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s police cruiserall 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 beingadmitted into the hospital with blackened eyes and a fractured nose. The latter use offorce was captured on videotape and admittedly was precipitated solely by Mr. Sawyer

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s

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alleged refusal to obey verbal commands. The Complaint also alleges one count ofnegligence against the Wood County Commission under State law pursuant to the WestVirginia Governmental Tort Claims Act.

STANDARD OF REVIEW

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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 asto 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 clearthat there exists no dispute as to the facts, but also where there is no dispute as to anyconclusion or inference which may reasonably be drawn therefrom. Pauley v.Combustion Eng

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g. Inc., 528 F.Supp. (S.D. W. Va. 1981).

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The burden is upon the moving party to demonstrate clearly that there is nogenuine issue of fact, and any doubt as to the existence of such an issue is resolvedagainst the movant. Prince v. Pittston Co., 63 F.R.D. 28 (S.D. W. Va. 1974). A genuineissue exists if the evidence is such that a reasonable jury could return a verdict for theopponent of the motion. Sayre v. General Nutrition Corp., 867 F.Supp. 431 (S.D. W. Va.1994)

aff

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, F.3d 296 (4th Cir. 1995). A fact is material if proof of its existence ornonexistence would affect the disposition of the case under applicable law. Faulkner v.Carowinds Amusement Park, 867 F. Supp. 419 (S.D. W. Va. 1994).

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Finally, on motion for summary judgment, the court views the evidence in the lightmost favorable to the party opposing the motion and gives to that party the beneﬁt of allfavorable inferences that may be reasonably drawn for the evidence. First Nat

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l Bank v.Maryland Cas. Co., 354 F.Supp. 189 (S.D. W. Va. 1973). The judge

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s function “is not

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himself to weigh the evidence and determine the truth of the matter but to determinewhether 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 THEPLAINTIFF

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On October 29, 2010, Defendant Asbury arrived at Brian Sawyer

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s residence inParkersburg, Wood County, West Virginia, pursuant to a domestic-related 911 call.Brian Sawyer

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s girlfriend, Angelita Cunningham, called the police because he took aKlonopin pill after she had asked him not to do so. (Brian Sawyer Deposition, attachedto the Defendants Motion as Exhibit “2”, p. 68, 14-16) Mr. Sawyer testiﬁed that he hadoriginally been prescribed Klonopin for anxiety. (Id., p. 32, 5-20). Mr. Sawyer was sittingon his couch playing a video game when Deputy Asbury walked in the house, uninvitedand without knocking and said “where is she at?” (Id., p. 68, 18-21). Mr. Sawyer pointedAsbury towards the back bedroom, where Ms. Cunningham was located. Ms.Cunningham and Deputy Asbury then went outside the front door onto the porch andhad a private discussion. (Id., p. 68, 22-23).

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The Plaintiff was then called by Ms. Cunningham to join her and Deputy Asburyon the front porch. Mr. Sawyer refused to do so because he knew that he had beendrinking and that if he stepped outside his doorway he may be arrested for publicintoxication. (Id., p. 69, 1-4). Ms. Cunningham then asked Mr. Sawyer if he could callsomeone to come and get him so that he doesn

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t have to go to jail. Mr. Sawyer replied,“go to jail?”, and said “yeah, I

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ll call someone.” (Id., 69, 4-8) As Mr. Sawyer turnedaround to walk towards the kitchen to get the phone, he was suddenly grabbed from

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