Charles Wernert, II v. Ryant Washington, No. 10-1360 (4th Cir. 2011)
Annotate this CaseCourt Description: <
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1360 CHARLES EDWARD WERNERT, II, Plaintiff - Appellee, v. JOSHUA GREEN, capacity, Deputy Sheriff, sued in his individual Defendant Appellant, and RYANT L. WASHINGTON, Sheriff, sued in his official capacity, Defendant. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:09-cv-00031-nkm-bwc) Argued: December 10, 2010 Decided: March 22, 2011 Before Sandra Day O CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, TRAXLER, Chief Judge, and KEENAN, Circuit Judge. Affirmed by unpublished opinion. Justice O Connor wrote the opinion, in which Chief Judge Traxler and Judge Keenan joined. ARGUED: John Adrian Gibney, Jr., Richmond, Virginia, for Appellant. THOMPSON Jeffrey MCMULLAN, PC, Edward Fogel, Charlottesville, Virginia, for Appellee. ON BRIEF: Steven D. Rosenfield, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 O CONNOR, Associate Justice: Charles Edward Wernert II, the Appellee, filed suit against Fluvanna County Police Department Deputy Joshua Greene, 1 alleging that Greene used excessive force against him. Appellant Greene invoked a defense of qualified immunity and moved for summary judgment. For the reasons explained herein, we affirm the district court s denial of summary judgment. I On the evening of May 4, 2007, Fluvanna County Police Department Deputy Joshua Greene was on patrol with auxiliary Deputy Francis Ferki. The deputies heard over their radio first that an individual had jumped onto an ambulance on Kents Store Road and then that a man had committed an assault at a residence on the same road. The man who committed the assault was described as being approximately six feet tall, wearing a white tee shirt and blue jeans, and carrying one or two suitcases. Near the location of the assault, the deputies saw Appellee Wernert, who matched the description they had received. When Wernert saw the deputies, he started walking away, carrying a bag. The deputies 1 stopped him and asked for Deputy Greene s name has been inconsistently spelled in filings. We adopt the spelling employed in his brief to this court. 3 identification, which Wernert provided. Wernert, who appeared to be intoxicated, explained that he was on parole in Pennsylvania and therefore was not supposed to leave that state. The radio dispatcher confirmed that Wernert was a Pennsylvania parolee and informed the deputies that Pennsylvania authorities wanted the Fluvanna County authorities to detain Wernert. The deputies then handcuffed Wernert behind his back. The deputies spoke with individuals Wernert allegedly committed the assault. explained that Wernert became angry at the home where A person at the home and began to swing at people; he also claimed that Wernert had head-butted someone who attempted to calm him down. Wernert claims that there was only a verbal argument. The deputies Department. then drove Wernert to the Sheriff s Upon arrival, Deputy Greene instructed Wernert to take off his belt and shoes. Wernert asked how he was supposed to do that while still in handcuffs and was told to figure it out. Wernert Dep. at 57 (J.A. 35). Wernert managed to remove his belt. Deputy Greene then told Wernert to kick your shoes off. Id. at 59 (J.A. 36). Wernert kicked off his right shoe, but had difficulty removing his left shoe. When he managed to kick on off his left shoe it flipped up accidentally hit [Deputy Ferki] in the face. quickly apologized. Id. at 60 (J.A. 115). 4 [him], Id. and it Wernert Deputy Greene then slammed Wernert to the ground. Upon seeing a pool of blood around Wernert s face, the deputies sought medical assistance. Wernert suffered displaced multiple teeth. He facial fractures received and stitches, impacted had his and teeth straightened, and had a wire splint placed in his mouth. Wernert filed suit against Deputy Greene in District Court for the Western District of Virginia. 2 the U.S. Wernert brought a 42 U.S.C. § 1983 claim alleging that Greene subjected him to excessive force in violation of the Fourteenth Amendment. 3 Construing the facts in the light most favorable to Wernert, the district court concluded that Deputy Greene s actions violated Wernert s Fourteenth Amendment rights, established at the time of the incident. which were clearly The district court therefore denied Greene s motion for summary judgment on the basis of qualified immunity. Wernert v. Washington, No. 3:09cv- 2 Wernert also filed state law assault, battery, and gross negligence claims against both Greene and Fluvanna County Sheriff Ryant L. Washington. The district court granted the defendants summary judgment motion on the assault claim and denied their motions for summary judgment on the other two state-law claims. Wernert v. Washington, No. 3:09cv-00031, 2010 WL 924281, at *8-*9 (W.D. Va. Mar. 11, 2010). The state law claims are not at issue in this appeal. 3 Wernert also cited the Eighth Amendment as a basis for his excessive force claim, but the district court properly granted summary judgment on the Eighth Amendment claim because excessive force claims by pretrial detainees are the purview of the Fourteenth Amendment. See Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008). 5 00031, 2010 WL 924281 (W.D. Va. Mar. 11, 2010). Deputy Greene appeals the district court s denial of his motion for summary judgment on qualified immunity grounds. II Under 28 U.S.C. § 1291, this Court has jurisdiction over all final district court orders. Qualified immunity is an immunity from suit rather than a mere defense to liability; and . . . it is effectively lost if a case is erroneously permitted to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Therefore, [t]o the extent that an order of a district court rejecting a governmental official s qualified immunity defense turns on a question of law, it is a final decision within the meaning of § 1291 under the collateral order doctrine recognized in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), and . . . is subject to immediate appeal. Winfield v. Bass, 106 F.3d 525, 528 29 (4th Cir. 1997) (en banc) (citing, inter alia, Behrens v. Pelletier, 516 U.S. 299 (1996), and Mitchell, 472 U.S. at 524 30). However, a defendant invoking a qualified immunity defense may not appeal a district court s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial. v. Jones, 515 U.S. 304, 319 320 (1995). 6 Johnson In other words, on an interlocutory appeal we possess no jurisdiction over a claim that a plaintiff has not presented enough evidence to prove that the plaintiff s version of the events actually occurred, but we have jurisdiction over a claim that there was no violation of clearly established court viewed them. law accepting the facts as the district Winfield, 106 F.3d at 530; see also Witt v. W. Va. State Police, 2011 WL 338792, No. 10-1008, at *2 (4th Cir. Feb. 4, 2011); Iko v. Shreve, 535 F.3d 225, 235 (4th Cir. 2008). Contrary to Appellee Wernert s jurisdiction over this appeal. contention, we have Wernert s reliance on Culosi v. Bullock, 596 F.3d 195 (4th Cir. 2010), is misplaced. Culosi involved Fourth a § 1983 excessive force claim under the Amendment. There we determined that we did not have jurisdiction over an interlocutory appeal because the district court denied summary judgment due to a genuine dispute of material fact over what happened whether the police officer discharged his weapon intentionally or accidentally not simply due to a dispute over the legal effect of an agreed set of facts. this case, by contrast, Deputy Greene does Id. at 202. not dispute In what happened on the night of May 4; he disputes its legal effect: whether the force he used violated Wernert s clearly established constitutional rights Therefore, is this a under claim the that 7 Fourteenth there was no Amendment. violation of clearly established law accepting the facts as the district court viewed them, Winfield, 106 F.3d at 530, over which we have jurisdiction. We now proceed to consider Greene s arguments on the merits. III Generally, government officials performing discretionary functions . . . are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person Harlow v. Fitzgerald, 457 U.S. 800, 818 would have known. (1982). liable Qualified immunity ensures that [o]fficials are not for bad transgressing guesses bright in gray lines. areas; Iko, 535 they F.3d are at liable 238 for (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)). In evaluating determine whether, favorable to a actions the violated qualified construing nonmoving a the party, constitutional immunity facts the claim, in we first the light most government right. If official s so, we must ascertain whether the right was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). Although that order of decision is no longer mandatory, Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009), we have 8 discretion to follow it in appropriate cases, id., and we do so here. We review a district court s denial of summary judgment and qualified immunity de novo, construing the facts in the light most favorable to the non-moving party, here Wernert. Orem v. Rephann, 523 F.3d 442, 445 (4th Cir. 2008). A The district court correctly understood that Wernert s excessive force claim falls under the Due Process Clause of the Fourteenth Amendment. Wernert, 2010 WL 924281, at *5; see Orem, 523 F.3d at 446. To prevail on his claim, Wernert must show that Deputy Greene inflicted unnecessary and wanton pain and suffering. Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir.1998) (quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)), abrogated on other grounds by Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 79 (2010) (per curiam). In other words, he must show that the officers actions amounted to punishment and were not merely an incident of some other legitimate governmental purpose. Robles v. Prince George s Cnty., Md., 302 F.3d 262, 269 (2002) (quoting Bell v. Wolfish, 441 U.S. 520, 538 (1979)). In determining whether [this] constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force 9 used, the extent of the injury inflicted, 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. Orem, 523 F.3d at 446 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Construing the facts in the light most favorable to Wernert, a reasonable jury could conclude that Deputy Greene s takedown of Wernert was wanton and unnecessary, rather than a good faith effort to maintain and restore discipline, id., and that it therefore constitutes a constitutional violation. The injuries inflicted on Wernert were severe. Medical records from the University of Virginia Health System, which treated Wernert, show that he suffered multiple facial fractures and impacted and displaced teeth. J.A. 162 63. He required stitches for facial lacerations and a wire splint to treat the affected teeth. Id. Turning to the need for and amount of force employed, the facts support the conclusion that the force used was excessive. Neither Wernert s actions nor his possible actions about which Deputy Greene claims to have been concerned appear particularly threatening. Wernert s act of kicking off his shoe, an act he avers that Deputy Greene told him to do, did not result in injury to Deputy Ferki. In fact, Deputy Ferki explained that 10 when he felt an object strike his cheek and realized it was Wernert s shoe, he smiled and was going to say good shot or nice shot, Ferki Dep. Wernert to the ground. at 53 (J.A. 144), when Greene took Wernert, of course, alleges that it was an accident that the shoe hit Deputy Ferki at all. Wernert Dep. at 60 (J.A. 115). Deputy Greene s own statements support the proposition that Wernert did not pose a threat. they arrived at the disrespectful or Deputy Greene stated that when aggressive, Wernert s handcuffs. police station, and so Wernert he wasn t planned Greene Dep. at 81 (J.A. 61). to being remove Greene also stated that prior to the shoe hitting Deputy Ferki, he did not perceive Wernert to be a threat to either deputy. (J.A. 65). Id. at 90 When Wernert kicked off his shoe, however, Greene explained that he used an escort takedown maneuver to take Wernert to the floor because Wernert might [k]ick me, at the very least. Id. He further explained, at the time [Wernert] was a threat to me, as well as still a threat to Ferki. I was, you know, within a few inches, a foot of Mr. Wernert. He had already been involved in one altercation . . . that night. appeared intoxicated at the time. it eliminates the whole threat. He Once you are on the ground, Id. at 89 90 (J.A. 64 65). In the district court, Wernert submitted an affidavit by Timothy Lynch, an expert in police defensive tactics. 11 Lynch explained that, restrained in his subject opinion, such as [t]he Mr. need WERNERT, to stabilize who offered a no resistance or signs of aggression, would not require the use of an Escort Takedown. Lynch Declaration at 3 (J.A. 170). He concluded that no reasonable law enforcement officer would have felt threatened under these circumstances. Id. at 2 (J.A. 169). The particular manner in which Deputy Greene took Wernert to the floor further suggests that the type of force used was excessive. Greene because believed he alternative leg claims it sweep that would he be used maneuver, Wernert to break his arm or wrist. 72). an less which escort harmful could takedown than have the caused Greene Dep. at 108 (J.A. Greene describes the escort takedown he performed as help[ing] Wernert to the ground. Id. at 96 (J.A. 134). Greene concedes that he then got on top of Wernert, putting his knee on Wernert s back. Lynch s declaration, however, explains that Deputy Greene s use of the escort takedown maneuver was not consistent with the purpose for which it was intended. (J.A. 170). Lynch Declaration at 2 He explained that the proper technique requires the subject s controlled arm to be extended at a right angle to the body, with downward pressure directed to the triceps area of the arm just above the elbow. The subject is in a position to 12 brace his fall with the free hand as the officer can control the angle and direction of the takedown to the prone position. In this manner, the subject s fall is directed to the chest and abdomen. and Id. impaired by In this case, however, with Wernert handcuffed alcohol, Lynch explained that it would be extremely difficult, if not improbable, for [Wernert] to brace his fall in a forward direction . . . [and] equally difficult for Deputy weight GREENE during to the be able to takedown. control Id. Mr. Lynch WERNERT s concluded body that application of the escort takedown in the circumstances of the restraints imposed on Wernert would most likely cause a subject to hit the floor face first, rather than chest first. Id. All of this evidence, again construed in the light most favorable to Wernert, supports the conclusion that even if force was justified at all, the force applied here was disproportionate to any threat posed, especially since Wernert was no longer wearing shoes and was still handcuffed. The question remains 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. Orem, 523 F.3d at 446 (quoting Johnson, 481 F.2d at 1033). Given the minimal and allegedly accidental nature of the breach of discipline Wernert committed, coupled with Deputy Greene s own perception that Wernert was not aggressive, the 13 fact and magnitude of force employed against Wernert suggests that it was unnecessary to restore discipline. Lynch s declaration suggests the example of [w]ristlock controls as a less forceful and more effective technique. at 2 (J.A. 170). Lynch Declaration Deputy Ferki s account of the incident also suggests that Deputy Greene may have acted in a retaliatory manner. Ferki recounts that Greene told Wernert to [g]et on the ground and stated don t be kicking your shoes off at my deputy. Don t be trying to assault my deputy. on an officer. That s assault Ferki Dep. at 59 (J.A. 83). Although [n]ot every push or shove, even if it may later seem unnecessary, Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Johnson, 481 F.3d at 1033), violates an individual s constitutional rights, the facts in this case, viewed in the light most favorable to Wernert, demonstrate that the force Deputy Greene employed was not a good faith effort to restore discipline. B Having concluded that Deputy Greene s conduct violated Wernert s Fourteenth Amendment right as an arrestee to be free from punishment, we must determine whether the constitutional right was clearly established at the time of the incident. have no difficulty in concluding that in May 2007, it We was clearly established that an arrestee or pretrial detainee is 14 protected from the use of excessive force. Orem, 523 F.3d, at 448 (citing Bell, 441 U.S. 520); Martin v. Gentile, 849 F.2d 863, 870 (1988) ( [T]he pretrial detainee, who has yet to be adjudicated guilty of any crime, may not be subjected to any form of punishment. ). Greene nonetheless argues that a reasonable officer would not have known that the force used plaintiff s due process rights. by Greene violated Appellant s Br. at 20. the He is entitled to qualified immunity if a reasonable officer could have believed [Greene s actions] to be lawful, in light of clearly established law and the information the . . . officers possessed. Anderson v. Creighton, 483 U.S. 635, 641 (1987); Orem, 523 F.3d at 448 (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)). The unreasonableness of Greene s actions is put into sharp relief by Deputy Ferki s very different perception of the shoe incident. Ferki stated that after the shoe hit him, he was smiling and was going to say good shot or nice shot. Dep. at 53 (J.A. 144). Ferki There is a world of difference between the reaction of Deputy Ferki the person who absorbed the blow from the shoe and that of Deputy Greene. In addition, Lynch s declaration supports the idea that a reasonable law enforcement officer would circumstances to not have felt take someone 15 in threatened custody to under the these ground so violently. Lynch Declaration at 2 (J.A. 169). In these circumstances, a reasonable officer in Deputy Greene s position could not have believed that it would be lawful to slam an already restrained detainee face first into a concrete floor. This conclusion finds further support in this court s decision in Orem v. Rephann, 532 F.3d 442, which bears factual similarities to this case. In Orem, we affirmed the district court s denial of summary judgment on qualified immunity grounds to a police officer who twice tasered an unruly woman while she was restrained in the back of a police car. We held that, viewing the facts in the light most favorable to the tasered woman, the officer s use of the taser in such circumstances was wanton, sadistic, discipline. that the and not Id. at 447. right of an a good faith to be free excessive force was clearly established. who used the taser to restore We recognized there, as we do here, arrestee Bell, 441 U.S. 520). effort from the use of Id. at 448 (citing Considering the behavior of the officer in comparison to that of other officers present at the scene who merely secured the woman s restraints, we concluded that the use of the taser was not objectively reasonable. Id. at 449. Similarly here, Deputy Greene s use of force against Wernert, who was already restrained and posed little possibility of harm to the officers, was not 16 objectively reasonable and contravened clearly established law. Therefore, Deputy Greene is not entitled to qualified immunity. IV For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED 17
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
