SawyerResponseToWritOfProhibition(Filed)

7/31/2019 SawyerResponseToWritOfProhibition(Filed)

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NO. 12-1878

UNITED STATES COURT OF APPEALSFOR THE

FOURTH CIRCUIT

BRIAN SAWYER,

Plaintiff,

v.

JIM R. ASBURY, individually and in his capacity as a Deputywith the Wood County Sheriffs Department, and the

WOOD COUNTY COMMISSION, a political subdivision in the

State of West Virginia,

Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERNDISTRICT OF WEST VIRGINIA

IN RE: JIM R. ASBURY, PETITIONERPETITION FOR WRIT OF PROHIBITION

John H. Bryan John H. Bryan, Attorneys at Law 611 Main Street P.O. Box 366 Union, West Virginia 24983 (304) 772-4999 Counsel for Plaintiff Brian Sawyer

Appeal: 12-1878 Doc: 12-1 Filed: 08/08/2012 Pg: 1 of 29


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TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................................................................3

STATEMENT OF JURISDICTION.........................................................................5

ISSUES PRESENTED BY THE PETITION...........................................................5

STATEMENT OF THE FACTS AND PROCEDURAL POSTURE..........................6

STANDARD FOR ISSUE OF WRIT OF PROHIBITION........................................11

REASONS WRIT SHOULD BE DENIED..............................................................11

I. The Petitioner cannot circumvent the direct appeal process through misuse of the writ of prohibition..........................................11

II. The District Courts granting Plaintiffs Renewed Motion for Judgment as a Matter of Law and Ordering a New Trial on Damages Did Not Exceed the Courts Authority..............................16

RELIEF SOUGHT..................................................................................................27

CERTIFICATE OF SERVICE................................................................................29

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TABLE OF AUTHORITIES

CASES

Ashcroft v. Iqbal,

556 U.S. 662 (2009).....................................................................................14

Scott v. Harris, 550 U.S. 372, 380 (2007)..............................................................................19

Cohen v. Beneficial Indus. Loan Corp.,, 337 U.S. 541 (1949).................................................................................... 5

Thornton v. U.S. Atty. Gen., , 976 F.2d 727 (C.A.4 (Md.), 1992)...................................................................5

Phx. Sav. & Loan, Inc. v. Aetna Cas. & Sur. Co., 427 F.2d 862 (4th Cir. 1970),..........................................................................9

Kerr v. U.S. Dist. Court, 426 U.S. 394 (1976),......................................................................................11

United States v. Moussaoui, 333 F.3d 509 (4th Cir. 2003),..........................................................................11

In re Vargas,

723 F.2d 1461 (10th Cir. 1983),.......................................................................11

In re United Steelworkers of America, 595 F.2d 958 (4th Cir. 1979),............................................................................11

Clayton v. Warlick, 232 F.2d 699 (4th Cir., 1956),...........................................................................12

Bartsch v. Clarke, , 293 F.2d 283 (4th Cir., 1961)............................................................................12

Orem v. Rephann, 523 F.3d 442, 447048 (4th Cir. 2008),...............................................................15

United States v. Cobb, 905 F.2d 784 (4th Cir. 1990),.............................................................................18

Chambers v. Cnty. of Macomb, No. 03-73342, 2006 WL 1791398 (E.D. Mich. June 27, 2006)..........................18

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Leland v. Vought, No. 4:07-cv-20, 2008 WL 4525113 (N.D. Fla. Sept. 30, 2008)........................18

Jones v. Buchanan, 325 F.3d 520 (4th Cir. 2003)............................................................................18

Bailey v. Kennedy, 349 F.3d 731(4th Cir. 2003).............................................................................18

Mesmer v. St. Marys Cnty., No. DKC 10-1053, 2010 WL 4791884 (D. Md. Nov. 18, 2010)........................18

RULES, STATUTES, AND OTHER AUTHORITIES

28 U.S.C. 1291..........................................................................................................5

28 U.S.C. 1292..........................................................................................................5

28 U.S.C. 1651..........................................................................................................5

Fed. R. Civ. P. 50..........................................................................................................5

Fed. R. App. P. 21.........................................................................................................5

CHARLES WRIGHT & ARTHUR MILLER, FEDERAL PRACTICEAND PROCEDURE 2524 (3d ed. 2008)...........................................................................................19

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STATEMENT OF JURISDICTION

Plaintiff, Brian Sawyer, filed his Complaint, pursuant to United States Code, Title

42, Section 1983, alleging Petitioner, Jim R. Asbury, used excessive force against him in

violation of the Fourth and Fourteenth Amendments of the Constitution of the United

States.

Petitioner seeks to invoke the jurisdiction of this Court pursuant to United States

Code, Title 28, Sections 1291 and 1651 and Rule 21(a) of the Federal Rules of

Appellate Procedure.

However, this Court may exercise jurisdiction only over final orders, 28 U.S.C.

1291, and certain interlocutory and collateral orders, 28 U.S.C. 1292; Fed. R. Civ. P.

54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (quoting Thornton v.

U.S. Atty. Gen., 976 F.2d 727 (C.A.4 (Md.), 1992). The Defendants Petition for Writ of

Prohibition is neither a final order nor an appealable interlocutory or collateral order and

therefore should be dismissed.

ISSUES PRESENTED BY THE PETITION

(1) Whether the Petitioner can use a writ of prohibition as a substitute for the

direct appeal process in order to avoid a jury trial on the issue of damages.

(2) Whether the District Court abused its discretion in granting Brian Sawyer s

Renewed Motion for Judgment as a Matter of Law, or in the Alternative, Motion for a

New Trial where a jury ignored overwhelming evidence that Deputy Jim R. Asbury used

excessive force against Brian Sawyer when he choked and punched him causing a

fractured nose and other facial injuries in violation of the Fourteenth Amendment of the

Constitution of the United States.

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STATEMENT OF THE FACTS AND PROCEDURAL POSTURE

On October 29, 2010, Defendant Deputy Jim R. Asbury arrested the Plaintiff

following a domestic disturbance call from Mr. Sawyers then-girlfriend, Angelita

Cunningham.1 During the arrest, Deputy Asbury alleged that Mr. Sawyer attempted to

kick him while handcuffed. Mr. Sawyer alleges that he attempted to kick at his door due

to frustration at being wrongly-arrested. Deputy Asbury used force against Mr. Sawyer

as a result of his actions.2 Mr. Sawyer was then placed in Deputy Asburys police

cruiser and driven to the Wood County holding center for processing. During the drive

Mr. Sawyer was running his mouth to Deputy Asbury because of the use of force

applied against him during his arrest. (Trial Tr. 34:10-17, attached to the Petitioner s

Petition as Exhibit 2). Mr. Sawyer was telling Asbury that he was a tough guy because

he put his hands on someone while theyre cuffed and he told him [he] knew where he

lived. (Trial Tr. 34:18-22). Attempting to aggravate and anger Deputy Asbury, Mr.

Sawyer asked him does he ever wonder what his wife is doing while hes out working

these late hours. (Trial Tr. 35:5-8). Despite the disgusting words Mr. Sawyer was

speaking, there was no physical misconduct by Mr. Sawyer while in the cruiser. He did

not kick anything inside the cruiser. He did not rock the vehicle. He was not spitting.

(Trial Tr. 35:18-25, 36:1-3).

Upon arrival at the Wood County holding center, Mr. Sawyer was escorted into

the processing room, which was under video surveillance. There were three other

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1 Angelita Cunningham did not testify at the trial for either party.

2 Brian Sawyer alleged that he was choked by Deputy Asbury after he kicked at his door and filed aFourth Amendment excessive force claim for this use of force. However, the District Court grantedDeputy Asbury summary judgment on the Fourth Amendment claim - primarily due to the fact that Mr.Sawyer pled guilty to assaulting an officer for this act and admitted to resisting arrest by kicking at thedoor.



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officers present to assist Deputy Asbury in processing Mr. Sawyer in the event Mr.

Sawyer became violent. These deputies were present due to the fact that Mr. Sawyer

was running his mouth in the cruiser. (Trial Tr. 87:7-19). Once inside the processing

room, Deputy Kearns asked Mr. Sawyer to sit down on a cement bench attached to the

wall, which he did. (Trial Tr. 36:13-20, 143:8-10). Then Mr. Sawyer was asked to stand

up so that his handcuffs could be removed, which he did. (Trial Tr. 36:21-24). Mr.

Sawyer was then asked to put his hands on the wall, which he did. (Trial Tr. 37:2-5).

During this time Mr. Sawyer was still running his mouth. Deputy Asbury was also

running his mouth at Mr. Sawyer. (Trial Tr. 37:8-17).

After Mr. Sawyers handcuffs were taken off, he sat back down, and both he and

Deputy Asbury were running their mouths at each other. (Video, Pl.s Ex. 1, [Docket

55-1], 21:58:47), attached to the Petitioners Petition as Exhibit 15). Mr. Sawyer

crossed his arms and legs because he wanted to make it clear that he was not a

physical threat. He was afraid that the deputies might be looking for an excuse to use

physical force against him. (Trial Tr. 38:2-24).

While Mr. Sawyer was seated on the bench, the video shows Mr. Sawyer and

Deputy Asbury exchanging words and Deputy Asbury motioning upward, as if he was

asking Mr. Sawyer to stand back up. (Video at 21:59:03-17). Mr. Asbury also patted his

chest while facing Mr. Sawyer. (Id. at 21:59:14). During the exchange, Mr. Sawyer

remained seated on the bench and his lower back remained against the wall.

Shortly after patting his chest, Deputy Asbury attacked Mr. Sawyer, violently

grabbing him around the throat with his right hand. (Id. at 21:59:17-21). As Deputy

Asbury was choking Mr. Sawyer with his right hand, the other officers in the room began

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to move towards Deputy Asbury. (Id. at 21:59:20). Then Deputy Asbury pulled his arm

back. (Id. at 21:59:21). The tape skips and does not show the completed arm

movement. Mr. Sawyer testified that while he was being choked, and his airway

constricted, Deputy Asbury punched him in the face. (Trial Tr. 41:13-20, 43, 33-8).

Once the officers reached Deputy Asburys side and began holding Mr. Sawyer,

Deputy Asbury pulled his right fist back again. (Video at 21:59:21). The video clearly

shows Deputy Asbury punching Mr. Sawyer in the face, with the force of his blow

knocking Mr. Sawyers face to the side. (Id. at 21:59:22-23). Deputy Asbury then

resumed choking Mr. Sawyer. (Id. at 21:59:23-26).

The officers then took Mr. Sawyer to the floor and shortly thereafter they were all

largely outside the view of the video camera. (Id. at 21:59:36-41). Deputy Asbury

testified that he was the officer in control of the Plaintiffs head and shoulders during the

incident behind the wall. (Id. at 107:8-25). All of the officers, including Deputy Asbury,

testified that neither of them struck the Plaintiff in the face, and that the Plaintiffs face

never struck the floor. (Id. at 106:3-14, 162:20-22). Deputy Asbury testified that he

never struck Mr. Sawyer in the face and that he never struck him in the back of the head

causing his face to impact the ground. (Id. at 1081-6).

Mr. Sawyer was left injured on the ground while the deputies began to carry on

other tasks. (Id. at 22:02:31-22:05:23). Although Deputy Asbury testified at his

deposition (which was contained in his incident report) that he assisted the injured Mr.

Sawyer, attempting to get the blood to stop flowing from his face and to make sure that

none of his injuries were life threatening, he admitted at trial that the video clearly

showed that claim to be untrue. Instead of assisting the injured, bleeding and

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handcuffed detainee who was left lying on the floor, he was stepping over the injured

Brian Sawyer and doing some paperwork. (Id. at 109:4-15, 111:1-6).3 Deputy Kearns

testified that Mr. Sawyer was given a timeout. (Id. at 165:9-15). Later, Mr. Sawyer was

taken to the hospital where he was treated for a fractured nose. (Trial Tr. 55:2-9).

The trial of the Plaintiffs Fourteenth Amendment excessive force claim was held

on April 24, 2012 in Parkersburg, West Virginia. After the close of evidence, the Plaintiff

moved for judgment as a matter of law on the issue of liability. (Trial Tr. 192:7-23). The

District Court took the Motion under advisement, citing grave concerns about the

testimony presented by the officers - noting that the officers were clearly contradicted by

the surveillance video. (Id. at 193:20-25, 194:1-7). The District Court noted that the

circumstances were similar to the Marx Brothers Duck Soup movie in which the heiress

confronts Chico Marx dressed as Groucho and says I saw, and he replies, Who are

you going to believe, me or your own eyes? (Id. at 193:22-25, 194:1-2). The District

Court took the Motion under advisement and pursuant to Rule 50, submitted the action

to the jury subject to the Courts later decision, noting that efficiency favors submitting

the question to the jury. Phx. Sav. & Loan, Inc. v. Aetna Cas. & Sur. Co., 427 F.2d 862,

873-74 (4th Cir. 1970) ([W]e note in passing that it is frequently the better practice,

where all of the evidence has been presented to the jury and at the close of the

evidence a motion for directed verdict is made, for the trial judge to reserve ruling on

that motion until the jury has reached a verdict.).

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3 Deputy Asbury subsequently resigned from the Wood County Sheriffs Department while underinvestigation for falsifying an unrelated police report. During the trial, when asked Deputy Asbury, haveyou ever falsified a police report? His response was to invoke the Fifth Amendment. (Trial Tr. 115:15-18).



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Following the trial, the Plaintiff made a timely Renewed Motion for Judgment as a

Matter of Law, Or in the Alternative, For a New Trial [Docket 58]. The District Court

granted the Motion, finding that no reasonable jury was at liberty to disregard the video

evidence showing Deputy Asbury choking and punching Mr. Sawyer for no purpose

other than inflicting unnecessary and wanton pain and suffering. The Court further

found that Deputy Asbury violated Mr. Sawyers right under the Due Process Clause to

be free from excessive force while in pretrial detention. The Court granted judgment as

a matter of law on the issue of liability and ordered a new trial to be set as to the issue

of damages.

On June 6, 2012, Petitioner filed his Motion to Direct Entry of a Final Judgment,

which was denied on June 19, 2012 by the District Court. In its Order, the Court held

that Mr. Sawyers due process claim is not final as the damages issue has not been

resolved. (June 19, 2012 Order, [Docket 67], attached to the Petitioners Petition as

Exhibit 12). The day before, on June 18, 2012, the Petitioner had filed his Notice of

Appeal to the Fourth Circuit. One month later, the Petitioners counsel requested

consent from Mr. Sawyers counsel to allow the Petitioner to voluntarily dismiss the

direct appeal, which was given. At that time, Mr. Sawyers counsel received an email

from Mr. Asburys counsel, which stated the following:

In light of the Courts order denying our motion for a final judgment wewant to withdraw our Notice of Appeal (likely to rear its head again at a

later date). The withdrawal requires your consent. Do you consent?

(July 18, 2012 email from Wendy Greve to John Bryan, attached hereto as Exhibit 1).

Unbeknownst to Mr. Sawyers counsel at the time consent was given, the Petitioner was

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preparing to file the above-styled Petition in lieu of direct appeal in an attempt to stop

the damages trial as scheduled by the District Court.

STANDARD FOR ISSUE OF WRIT OF PROHIBITION

Writs of mandamus and prohibition are drastic remedies and should be used only

in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976);

United States v. Moussaoui, 333 F.3d 509, 516-17 (4th Cir. 2003). A writ of prohibition

is a drastic and extraordinary remedy which should be granted only when the petitioner

has shown his right to the writ to be clear and undisputable and that the actions of the

court were a clear abuse of discretion. In re Vargas, 723 F.2d 1461, 1468 (10th Cir.

1983) (citation omitted). A writ of prohibition may not be used as a substitute for appeal.

Id; In re United Steelworkers of America, 595 F.2d 958, 960 (4th Cir. 1979).

REASONS WRIT SHOULD BE DENIED

The Petitioner should not be allowed to circumvent and substitute the direct

appeal process through misuse of the writ of prohibition. There is no jurisdiction for

prohibition to issue, and even if there was, the relief the Petitioner is seeking is properly

available through another remedy at law: direct appeal. Secondly, the District Court did

not exceed its authority in granting the Plaintiffs Renewed Motion for Judgment as a

Matter of Law, Or in the Alternative, Motion for a New Trial. There was overwhelming

video evidence, medical evidence, and testimony, that Deputy Asbury punched and

choked Brian Sawyer in violation of the Fourteenth Amendment of the U.S. Constitution.

The jury concluded that Brian Sawyer deserved to have his civil rights violated, but the

District Court properly did not allow their verdict to stand.

I. The Petitioner cannot circumvent and substitute the direct appeal process through misuse of the writ of prohibition

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Leahy, 3 Cir., 193 F.2d 302, affirmed 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed.668; Gulf Research & Development Co. v. Harrison, 9 Cir., 185 F.2d 457.Cf. C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 194 F.2d 410, affirmed344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 695."

. . .

We made the same holding in the case of Southern Railway Co. v.Madden, 4 Cir., 224 F.2d 320, where an interlocutory order, which wethought erroneous, had been entered granting a new trial confined to theissue of damages, and in Atlantic Coast Line R. Co. v. Sonenshine, 4 Cir.,226 F.2d 220, where an interlocutory order had been entered grantingplaintiff a new trial on the issue of damages in the face of a contention bydefendant that it was entitled to a judgment n. o. v. on the ground that noliability had been established and that the new trial would involve needlessdelay and expense. In the Madden case we said:

It is clear that the order which we are asked to review is not a final orderin the case and hence is not appealable. And we do not think that thestatute which allows appeal only from final orders, except in a limited classof cases, can be evaded by the simple device of asking this court to issueone of its extraordinary writs, such as certiorari, or mandamus orprohibition. Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718; Hartford Accident & Indemnity Co. to Use of Silva v. InterstateEquipment Corporation, 3 Cir., 176 F.2d 419, certiorari denied 338 U.S.899, 70 S.Ct. 250, 94 L.Ed. 553; United States Alkali Export Ass'n v.United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554."

Clayton v. Warlick, 232 F.2d 699, 703 (4th Cir., 1956). Other Fourth Circuit decisions

have made clear that writs of prohibition should not be used as a substitute for direct

appeal. In Bartsch v. Clarke, 293 F.2d 283 (4th Cir., 1961), this Court reasoned that:

The writ may not be used as a substitute for an appeal, and it may not beused as a means for obtaining review of an order of the trial court which isnot appealable because it does not constitute a final determination of thecase. The writ may be used when a trial court refuses to act in a case or

to restrain it from attempting to exercise a power it does not possess; buteven in the latter case the appellate court has the discretion to refuse toissue the writ if a method of review has been provided by statute and thepetitioner has failed to use it. SeeRoche v. Evaporated Milk Ass'n, 319U.S. 21, 24-31, 63 S.Ct. 938, 87 L.Ed. 1185; Sleeth v. Dairy Products Co.,4 Cir., 228 F.2d 165, 168; In re Rice, 15,5 U.S. 396, 15 S.Ct. 149, 39 L.Ed.198.

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. . .

It is true that the writ may be issued in extraordinary and exceptionalcases of peculiar emergency or public importance or in cases where theusual method of appeal is manifestly inadequate. See LaBuy v. Howes

Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290; United States v.United States District Court, 334 U.S. 258, 264, 68 S.Ct. 1035, 92 L.Ed.1351; Ex Parte Republic of Peru, 318 U.S. 578, 586, 63 S.Ct. 793, 87L.Ed. 1014; In re National Labor Relations Board, 30,4 U.S. 486, 58 S.Ct.1001, 82 L.Ed. 1482; Ex Parte United States, 287 U.S. 241, 248, 53 S.Ct.129, 77 L.Ed. 283; Ex Parte Skinner & Eddy Corp., 265 U.S. 86, 96, 44S.Ct. 446, 68 L.Ed. 912; Ex Parte State of New York No. 1, 256 U.S. 490,503, 41 S.Ct. 588, 65 L.Ed. 1057; Ex Parte Indiana Transportation Co.,244 U.S. 456, 457, 37 S.Ct. 717, 61 L.Ed. 1253; United States v. U. S.District Court, 4 Cir., 238 F.2d 713, 718; but it is plain that such unusualcircumstances as are described in these cases are not found in the instant

proceeding.

Bartsch v. Clarke, 293 F.2d 283, 285 (4th Cir., 1961).

The Petitioner briefly argues that a District Courts denial of qualified immunity

can fall within the narrow class of prejudgment orders reviewable under the collateral-

order doctrine, citing Ashcroft v. Iqbal, 556 U.S. 662 (2009). Indeed, a government

officer defendant can directly appeal a courts denial of qualified immunity at the

summary judgment stage in order to potentially avoid the burden of going to trial so long

as the denial is based purely on issues of law. Id. However, this is usually not the case

for excessive force litigation, but is more common in the dynamic search and seizure

type litigation. For instance, if in a wrongful arrest case, a district court makes a finding

that the Law Enforcement Officers Safety Act (LEOSA) provision allowing a federal

correctional officer to carry a concealed handgun notwithstanding any state or local law

to the contrary was clearly established law at the time of the arrest (of a correctional

officer carrying a handgun without a local permit) of which a reasonable officer should

have been aware, that would be an appealable issue of law.

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On the other hand, everyone agrees that every officer given a badge is expected

to know that pretrial detainees and arrestees have a clearly established right to be free

from excessive force. These cases are going to turn on factual disagreements, e.g.,

whether or not the detainee was struck in the head or choked, or whether he was

resisting arrest, etc., rather than legal disagreements. Therefore, even if the Petitioner

had chosen to appeal the District Courts denial of summary judgement in its April 4,

2012 Memorandum Opinion & Order denying Deputy Asbury qualified immunity for the

Fourteenth Amendment allegations, the order still would not have been properly

appealable because the said denial was based on factualgrounds:

The right of a pretrial detainee to not be subject to excessive force isclearly established. Orem v. Rephann, 523 F.3d 442, 447048 (4th Cir.2008) (In 2005, it was clearly established that an arrestee or pretrialdetainee is protected from the use of excessive force.) Additionally,courts have found that officers may not hit pretrial detainees in the facewhen the pretrial detainee is not resisting or is restrained. (citationsomitted) . . . . A reasonable officer in Mr. Asburys circumstances wouldhave recognized that he was violating a clearly established right when hepunched Mr. Sawyer in the face at the holding center.

(April 4, 2012 Memorandum & Opinion Order at page 12-13, attached to the Petition as

Petitioners Exhibit 4). The parties sub judicehave not disagreed on excessive force

case law, the disagreements have been factual disputes about whether or not Deputy

Asbury punched and choked Brian Sawyer. Deputy Asbury has always denied the

factual allegations. In any event, whether or not Deputy Asbury could have appealed

the summary judgment order is moot since he chose not to and allowed the case to go

to a jury trial. It is certainly not reviewable by way of writ of prohibition.

The May 18, 2012 Order granting the Plaintiffs Renewed Motion for Judgment as

a Matter of Law and ordering a new trial on the issue of damages is not a final order,

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and is not otherwise capable of appeal or review via writ of prohibition. The District

Court was well within its authority, pursuant to Rule 50 of the Federal Rules of Civil

Procedure, to grant such an order. Although the Defendant obviously disagrees with the

Order and strongly wishes to appeal it, he cannot do so through the misuse of the writ of

prohibition. He must go through the direct appeal process - as he started to do in the

first place. Therefore, the relief sought by Deputy Asbury should be denied on the

grounds that the relief requested is not available by way of prohibition.

II. The District Courts Granting of Plaintiffs Renewed Motion for Judgment as a Matter of Law and Ordering a New Trial on Damages

Did Not Exceed the Courts Authority

The District Court was well within the Courts authority to grant the Plaintiffs

Renewed Motion for Judgment as a Matter of Law pursuant to Rule 50(b) of the Federal

Rules of Civil Procedure. The jury did what they thought was right, but simply got it

wrong. Although rarely used, District Courts have the authority to overturn jury verdicts

in such situations.

Legal Standard for Rule 50(b) of the F. R. C. P.

Rule 50(b) of the Federal Rules of Civil Procedure provides that:

If the court does not grant a motion for judgment as a matter of law madeunder Rule 50(a), the court is considered to have submitted the action tothe jury subject to the courts later deciding the legal questions raised bythe motion. No later than 10 days after the entry of judgment . . . themovant may file a renewed motion for judgment as a matter of law andmay include an alternative or joint request for a new trial under Rule 59.

Rule 50(b), F.R.C.P. A renewed motion for judgment as a matter of law should be

granted if a district court determines, without weighing the evidence or considering the

credibility of the witnesses, that substantial evidence does not support the jury s

findings. SeeWhite v. County of Newberry, 985 F.2d 168, 172 (4th Cir. 1993).

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Judgment as a matter of law will be upheld on appeal if, under the governing law, there

can be but one reasonable conclusion as to the verdict. Goedel v. Norfolk & W. Ry., 13

F.3d 807, 1994 U.S. App. LEXIS 194 (4th Cir. 1994).

As an alternative to judgment as a matter of law, a new trial should be granted if

(1) The verdict is against the clear weight of the evidence; or (2) is based upon

evidence which is false; or (3) will result in a miscarriage of justice, even though there

may be substantial evidence which would prevent the direction of a verdict. Henley v.

FMC Corp., 189 F.R.D. 340, 1999 U.S. Dist. LEXIS 15866 (S.D.W. Va. 1999).

Legal Standard for Fourteenth Amendment Excessive Force Claims

The Due Process Clause governs excessive force claims by pretrial detainees.

Carr v. Deeds, 453 F.3d 593, 605 (4th Cir. 2006). To prevail on an excessive force

claim, a plaintiff must prove that Defendants inflicted unnecessary and wanton pain

and suffering upon the detainee. Id. (quoting Taylor v. McDuffie, 155 F.3d 479, 483 (4th

Cir. 1998)). The proper inquiry is whether the force applied was in a good faith effort to

maintain or restore discipline or maliciously and sadistically for the very purpose of

causing harm. Id. (quoting Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998)). A

plaintiff is no longer required to demonstrate that his injuries are not de minimus.

Wilkins v. Gaddy, 130 S. Ct. 1175, 1179 (2010). When determining whether an officers

actions violated due process, a court must consider the need for the application of

force, the relationship between the need and the amount of force 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.

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Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008). (quoting May 18, 2012, Mem. Op.

& Order, [Docket 62], attached to Petitioners Petition as Exhibit 9).

The Fourth Circuit has found that an officer is not justified in using physical force

against a pretrial detainee based on the detainees words alone. United States v. Cobb,

905 F.2d 784, 789 (4th Cir. 1990). Courts have also found that officers may not punch

pretrial detainees or prisoners in the face, and if an officer throws a punch under those

circumstances, that action was intended to inflict unnecessary and wanton pain and

suffering. See, e.g., Chambers v. Cnty. of Macomb, No. 03-73342, 2006 WL 1791398, at

*7 (E.D. Mich. June 27, 2006)(finding no qualified immunity on claims against officers

alleged to have choked and struck a prisoner); Leland v. Vought, No. 4:07-cv-20, 2008

WL 4525113, at *7 (N.D. Fla. Sept. 30, 2008)(stating that officer was not entitled to

qualified immunity on claim that he allegedly punched a handcuffed prisoner in the back

of the head); see alsoJones v. Buchanan, 325 F.3d 520, 529-31 (4th Cir. 2003)(finding

no qualified immunity on Fourth Amendment claim against officer who knocked

individual to the ground and jumped on him in a holding center); Bailey v. Kennedy, 349

F.3d 731, 744 (4th Cir. 2003); Mesmer v. St. Mary s Cnty., No. DKC 10-1053, 2010 WL

4791884, at *9 (D. Md. Nov. 18, 2010)(finding that an officer was not entitled to qualified

immunity on charges that he violated a pretrial detainees due process rights by

slamming him into a wall and punching him in the jaw. (quoting May 18, 2012, Mem.

Op. & Order, [Docket 62], attached to Petitioners Petition as Exhibit 9).

Analysis

In the case sub judice, the District Court explained that, [w]hile courts are not to

simply rubber stamp a jurys verdict, judges believe that judgment as a matter of law is a

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power to be applied sparingly and only in the most extraordinary circumstances. (citing

CHARLES WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE

2524 (3d ed. 2008)). The Court concluded:

What the video shows cannot be reconciled with the jurys verdict. Thevideo shows Deputy Asbury grabbing the plaintiff by the throat. The videoshows Deputy Asbury punching the plaintiff in the face with his fist. Thevideo shows the officers leaving an injured Mr. Sawyer lying on the holdingcenter floor. Mr. Sawyer walked in to the holding center uninjured, and heleft with a fractured nose and battered face. While Mr. Sawyers verbalthreats against Deputy Asbury were disgusting, they were still only words,and a pretrial detainees words do not justify an officers use of such force.SeeCobb, 905 F.2d at 789.

(May 18, 2012, Mem. Op. & Order, [Docket 62], at 13).

The U.S. Supreme Court has found that when a videotape exists of the incident,

the court may not accept one partys version of events if that version is so utterly

discredited by the record such that no reasonable jury would believe it. SeeScott v.

Harris, 550 U.S. 372, 380 (2007) (When opposing parties tell two different stories, one

of which is blatantly contradicted by the record, so that no reasonable jury could believe

it, a court should not adopt that version of the facts for purposes of ruling on a motion

for summary judgment.).

Deputy Asburys own admissions established excessive force as a matter of law.

Deputy Asbury testified both at his deposition and at trial, that pursuant to his alleged

training, he asked Mr. Sawyer three times to stand up from the concrete bench, and that

when Mr. Sawyer refused, he applied physical force. (Trial Tr. 96:13-25). Deputy Asbury

admittedly made a sudden movement towards Mr. Sawyer, grabbing him in the throat

area. (Trial Tr. 98:1-3, 102:1-9). Deputy Asbury admitted that Brian Sawyer was sitting

down at the time he was attacked and that he was given no warning that sudden

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physical force was about to be used against him. (Trial Tr. 100:11:15, 102:17-25,

103:1-6). Deputy Asbury admitted that Brian Sawyer never physically assaulted him, or

any other officer, at the Wood County holding center, but that he was just running his

mouth. (Trial Tr. 104:1-10). Deputy Asbury admitted that he used physical force in

response to Mr. Sawyers verbal threats:

MR. BRYAN: So you also testified that you had asked Brian Sawyer to stand up, and he failed to comply?

MR. ASBURY: Numerous times, yes.

MR. BRYAN: At that point you pushed him back against the wall?

MR. ASBURY: I - - at that time I deemed that the threats he was making toward me that he needed to be handcuffed or restrained again, so yes.

(Trial Tr. 102:10-16).

These admissions by Deputy Asbury are consistent with the video, which shows

sudden and violent physical force being applied to Mr. Sawyer s throat while Mr. Sawyer

was sitting on the concrete bench. (Video at 21:59:17-21). The video confirms Deputy

Asburys admission that physical force was applied to Brian Sawyer in response to mere

words, in violation of the Due Process Clause. SeeUnited States v. Cobb, 905 F.2d

784, 789 (4th Cir. 1990) (an officer is not justified in using physical force against a

pretrial detainee based on the detainees words alone). The force used against Mr.

Sawyer was also excessive as a matter of law since Deputy Asbury engaged in choking

and punching to the face of a person who was not assaulting officers. See, e.g.,

Chambers v. Cnty. of Macomb, No. 03-73342, 2006 WL 1791398, at *7 (E.D. Mich. June

27, 2006)(finding no qualified immunity on claims against officers alleged to have

choked and struck a prisoner); Leland v. Vought, No. 4:07-cv-20, 2008 WL 4525113, at

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*7 (N.D. Fla. Sept. 30, 2008)(stating that officer was not entitled to qualified immunity on

claim that he allegedly punched a handcuffed prisoner in the back of the head); see also

Jones v. Buchanan, 325 F.3d 520, 529-31 (4th Cir. 2003)(finding no qualified immunity

on Fourth Amendment claim against officer who knocked individual to the ground and

jumped on him in a holding center).

Despite the fact that there were three other officers present to assist Deputy

Asbury with Mr. Sawyer, Deputy Asbury never sought their assistance before deciding to

suddenly lunge at Mr. Sawyers throat. (Trial Tr. 103:10-21). The video shows that the

assisting officers appear to be unconcerned about Mr. Sawyer prior to Deputy Asbury

lunging at him. (Video at 21:58:54-21:59:16). No attempts were made by any other

officer to confront, or to attempt to control, Mr. Sawyer. Shockingly, after the attack

begins, they casually watch Deputy Asbury lunge at, and begin choking, Mr. Sawyer.

(Video at 21:59:17-21:21). The other deputies appear to intervene only when Deputy

Asburys right arm is pulled back for the first time. (Video at 21:59:21). Deputy Asbury is

clearly seen on the video punching Brian Sawyer in the face. (Video at 21:59:22).

Deputy Massey, who is wearing the hat and white gloves, is seen on the video moving

behind Deputy Asbury, immediately after the punch, and placing his hands on Deputy

Asbury, appearing to restrain him. (Video at 21:59:23-21:59-33).

It is undisputed that Mr. Sawyer left the processing room with a fractured nose

and other facial injuries. (SeeBrian Sawyers Medical Records, attached to Petitioners

Petition as Exhibit 18). Mr. Asbury admitted that Brian Sawyer was injured as a result

of the force used against him in the processing room and that he received a fractured

nose and was immediately bleeding from the face. (Trial Tr. 108:13-25, 109:1-3).

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Although Asbury previously claimed under oath that he immediately attended to Mr.

Sawyers injuries, attempting to stop the bleeding and to ensure that his injuries were

non-life threatening, the video shows that he did not - which Asbury acknowledged at

trial. (Trial Tr. 109:4-10, 110:4-6). According to Asburys own words, Brian Sawyer was

left handcuffed, lying on the floor, bleeding from the face, with a fractured nose, with no

ability to tend to his own injuries, while Asbury and other deputies stepped over him and

did some paperwork. (Trial Tr. 109:13-25, 110:1-9; see alsoVideo at 22:3:17).

The District Court emphasized the Courts overarching duty to ensure that

everyone is equal under the law:

As I write this, I recall the trial of the officers involved in the Rodney Kingbeating twenty years ago. There, the jury acquitted officers in the face ofunequivocal videotape evidence of guilt. The public had seen the tape.The Los Angeles riots ensued. Here and now as there and then, the jurydid what they thought was right but simply got it wrong. A rare event, butthat is what judges are for.

(May 18, 2012, Mem. Op. & Order, [Docket 62], at 1).

Brian Sawyer appeared before the jury in stark contrast to Deputy Jim Asbury.

His body, including his neck and hands, are covered in tattoos. (Trial Tr. 30:20-25,

31:1-15). He has a history of abusing drugs and alcohol. (Id. at 31:16-25, 32:21-25,

33:1-5). He is a convicted felon. (Id. at 82:11-12). He pled guilty to assaulting Deputy

Asbury during the arrest at his home. (Id. at 34:1-4).

Deputy Asbury, on the other hand, appeared before the jury in his Ritchie County

Sheriffs Department uniform - despite the fact that he was off duty and not in Ritchie

County.4 Deputy Asburys counsel, in one of her last questions to Mr. Sawyer during the

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4 Although Deputy Asbury resigned from the Wood County Sheriffs Department while under investigationfor falsifying an unrelated police report, he did obtain employment with the Sheriffs Department of RitchieCounty, West Virginia.



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trial, asked him, Do you remember threatening to rape [Asburys] child? and Do you

remember threatening to rape the children of all the officers that were in the holding

center that night? However, Deputy Asbury never alleged to have heard any such

comments. Despite the fact that Mr. Sawyers reply was in the negative, it helped to

unfairly prejudice the jurors against Mr. Sawyer.

The jurors could only have concluded that Brian Sawyer deserved the beating he

received; that Brian Sawyer is below the law and that Deputy Asbury is above it. The

District Court was forced to step-in and do the right thing - which is something that no

court, law enforcement official, or jury had been willing to do thus-far on behalf of Brian

Sawyer.

The criminal investigation into the beating of Brian Sawyer consisted of a Wood

County grand jury proceeding that was little more than a kangaroo court. Following

the jury verdict in favor of Deputy Asbury, Sheriff Jeff Sandy gave an interview to the

News and Sentinelnewspaper, which ran the following:

Wood County Sheriff Jeff Sandy said Thursday the verdict validated thedepartments belief that Asbury was not guilty. From the beginning wesaid we would cooperate with any law enforcement agency in theinvestigation, he said. Sandy said the verdict from the federal courtreflects the decision from a Wood County grand jury that voted tonot indict Asbury on charges from the incident where Sawyer claimed hewas a victim of excessive force by a law enforcement officer.

(April 27, 2012, Asbury acquitted of federal charges, News and Sentinel Newspaper,

http://www.newsandsentinel.com/page/content.detail/id/560438/Asbury-acquitted-of-

federal-charges.html?nav=5061)). However, Sheriff Sandy failed to inform the public

that he was personally involved in influencing the outcome of the grand jury

proceedings investigating Deputy Asbury when he appeared as a witness and told the

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grand jurors that Asbury did nothing wrong and that he himself had used the same type

of force:

GRAND JUROR: On the video, - I know youve seen it. Do you think - did

it look like to you that Brian Sawyer was being picked up by the officer, orbeing choked and picked up, or was he back - walking up the wall?

SHERIFF SANDY: I would - again I reviewed it. It was not there. Walkedup or being forced up. I - maam, what I - what I see is the officers tryingto get him to get up to be compliant.

GRAND JUROR: You dont think they were - you dont think they were tooaggressive with him?

SHERIFF SANDY: Thirty years, one month, federal government service,

the action in which Mr. Asbury conducted the - the - the thrust to there, Ihave - I have seen that. I have seen that. And in fact -

GRAND JUROR: Have you done it?

SHERIFF SANDY: In - yes, maam.

GRAND JUROR: Okay.

SHERIFF SANDY: Yes, maam. And - . . . in one situation . . . outside acourtroom , with an aggressive individual . . . I used that technique and

received a commendation letter for keeping the Assistant U.S. Attorney . . .from getting hit.

GRAND JUROR: Okay.

PROSECUTOR: Any other questions?

GRAND JURORS: (All indicating no).

SeeGrand Jury Testimony Transcript, In re: Grand Jury Presentment Concerning

James R. Asbury, In the Circuit Court of Wood County, West Virginia, at page 115:7-25,

116:1-8).5

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5 A copy of the Grand Jury Transcript was obtained by Petitioners counsel and was used against BrianSawyer, for impeachment purposes at the jury trial. A copy was given to Mr. Sawyers counsel by Mr.Asburys counsel on the day before trial.



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The Sheriff also failed to tell the public that Brian Sawyer was never interviewed

by law enforcement, or the prosecutor, before being hauled before the grand jurors in a

jail jumpsuit to testify about the beating. Nor was Mr. Sawyer even given an opportunity

to view the surveillance video of his beating prior to his testimony. In fact, Mr. Sawyer

saw the video for the first time during his testimony. Much of the questioning by the

prosecutor was as follows:

PROSECUTOR: Okay. Youre sitting here in orange today. Youve gotshackles on and we just had you un-handcuffed before you came in. Canyou explain to the members of the Grand Jury where you are currentlyincarcerated?

. . .

PROSECUTOR: Okay. When you say that you have those charges, doyou mean that you have been convicted of the felony offense of unlawfulassault and been convicted of the offense of forgery?. . .

PROSECUTOR: Okay. In addition to those two felonies, have you beenconvicted of a felony offense in the past?. . .

PROSECUTOR: Okay. Did you serve time in the penitentiary on that orwere you given some other sentence?. . .

PROSECUTOR: Okay. Have you been convicted, in addition to thosefelony offenses, of any misdemeanor offenses in your past?

BRIAN SAWYER: Yes.

PROSECUTOR: Okay. Quite a few, isnt it; is that correct?

BRIAN SAWYER: Yes.

PROSECUTOR: Okay. Youve - and a lot of those arrest have come inWood County; is that correct?. . .

PROSECUTOR: Okay. And youve had some run-ins with them in thepast?

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. . .

PROSECUTOR: Okay. Do you have any batteries on non-lawenforcement individuals?. . .

PROSECUTOR: Okay. Do you have any domestic battery convictions?. . .

PROSECUTOR: And while were waiting on this, would you agree withme that the Xanax and the alcohol has likely affected your ability toremember exactly what happened?. . .

SeeGrand Jury Testimony Transcript, In re: Grand Jury Presentment Concerning

James R. Asbury, In the Circuit Court of Wood County, West Virginia, at page 115:7-25,

20:1-25, 21:1-25, 22:1-23, 27:12-15).

The Petitioner has given us a rare glimpse of the most successful method of

covering-up police misconduct: to put the allegations before a county grand jury, where

friendly officers and prosecutors, protected by confidentiality and secrecy, persuade

jurors not to indict. Then they tell the media that the grand jurors investigated the

matter and voted not to indict. More often than not, where a county grand jury has

returned a no-true-bill, federal investigators will not proceed with an investigation. The

only remedy for justice in these situations is 42 U.S.C. 1983 and private lawyers who

are willing to risk their livelihoods through taking cases on a contingency fee. In the

case sub judice, Brian Sawyer - despite his tattoos, criminal record, and history of drug

and alcohol abuse - knew that he was denied justice and resolved to do something

about it.

Parkersburg, West Virginia, has become a cesspool of police excessive force.

Some cases have been settled, and others are still pending in federal court - one of

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which involves another videotaped beating from the same camera as the video sub

judice. SeeJerry Seabolt v. Joshua A. Vensel, et al., Civil Action No. 6:12-cv-1891, U.S.

District Court for the Southern District of West Virginia; Timothy Maza v. City of

Parkersburg, et al., Civil Action No. 6:10-cv-0834, U.S. District Court for the Southern

District of West Virginia; July 19, 2010, City to Settle Police Abuse Lawsuit for

$70,000.00, News and Sentinel Newspaper, http://www.newsandsentinel.com/page/

content.detail/id/550137/City-to-settle-police-abuse-laws---.html ). Although most of the

recent problems have been with the Parkersburg Police Department rather than the

county Sheriffs Department, to allow the Sawyer beating to escape justice would send

the wrong message to law enforcement, and to the public.

RELIEF SOUGHT

WHEREFORE, for the foregoing reasons, the Respondent, Brian Sawyer,

respectfully requests that this Honorable Court deny the Petitioner a writ of prohibition

on the grounds that:

1. the relief requested by the Petitioner is not available by way of prohibition;

and

2. the District Court did not exceed its authority by granting Brian Sawyers

Renewed Motion for Judgment as a Matter of Law.

BRIAN SAWYER By Counsel

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/s John H. Bryan

John H. Bryan (WV Bar No. 10259)JOHN H. BRYAN, ATTORNEYS AT LAW611 Main StreetP.O. Box 366Union, WV 24983(304) 772-4999Fax: (304) 772-4998

[email protected]

for the Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on August 8, 2012, I filed the foregoing document through an

expedited submission to Deputy Clerk Tony Webb via email, as well as by U.S. Mail and

email to the following parties:

Wendy E. Greve, Esq. Katie L. Hicklin, Esq. Pullin, Fowler, Flanagan, Brown & Poe, PLLC JamesMark Building 901 Quarrier Street Charleston, WV 25301

Email: [email protected]

/s John H. Bryan JOHN H. BRYAN


SawyerResponseToWritOfProhibition(Filed)

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