Case 1:21-cv-00615 Document 1 Filed 11/23/21 Page 1 of 24 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE

MELVIN SARGENT,

Plaintiff,
1:21-cv-00615
vs. Civil Action No.

JOSHUA BISH, individually,

Defendants.

COMPLAINT

This complaint, brought pursuant to 42 U.S.C. Section 1983, the Fourth Amendment to

the United States Constitution, arises out of the Defendants’ use of excessive force against the

Plaintiff on or about November 28, 2019 in Mercer County, West Virginia, within the Southern

District of West Virginia.

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343.

PARTIES

1. The Plaintiff, Melvin Sargent, was at all times relevant hereto a resident of Mercer

County, West Virginia.

2. Defendant, Joshua Bish, was at all times relevant hereto a police officer with the

Mercer County Sheriff’s Office and was at all times relevant hereto acting under the color of law.

He is named in his individual capacity.

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3. Defendant, Amanda Moore, was at all times relevant hereto a police officer with

the Mercer County Sheriff’s Office and was at all times relevant hereto acting under the color of

law. She is named in her individual capacity.

4. Defendant, Logan Addair, was at all times relevant hereto a police officer with the

Mercer County Sheriff’s Office and was at all times relevant hereto acting under the color of law.

He is named in his individual capacity.

5. Defendant, Derrick Callaway, was at all times relevant hereto a police officer with

the Mercer County Sheriff’s Office and was at all times relevant hereto acting under the color of

law. He is named in his individual capacity.

FACTS

6. On November 28, 2019 at approximately 1540 hours, Defendant Deputy Joshua

Bish was dispatched to the Plaintiff’s home, having been advised that there was a domestic

dispute in progress involving the Plaintiff, Melvin Sergeant.

7. Plaintiff lived at the subject residence, located in Princeton, Mercer County, West

Virginia, with his significant other, Jolena Chavez, as well as Jolena’s mother, Elizabeth Daniels.

8. It was Ms. Daniels who had called for police assistance on November 28, because

Plaintiff and her daughter were arguing, which was unusual. There was no physical contact

alleged, nor that had occurred, between Plaintiff and his significant other on November 28, 2019.

Rather, Plaintiff was upset due to discussion of his mother, who had been tragically killed several

years earlier.

9. On and about November 28, 2019, Plaintiff had no criminal record and was duly

employed in the construction industry. Police had never previously been called to the residence

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prior to the incident. The police report written by Defendant Bish confirmed that after talking

with Plaintiff’s significant other at the scene, that Plaintiff and Ms. Chavez had been discussing

Plaintiff’s deceased mother, at which point Ms. Chavez’s mother entered the room and rolled her

eyes at the conversation, which aggravated Plaintiff, causing them to argue. The report further

noted that “prior to law enforcement’s arrival, there was no violence, and nothing was wrong.”

10. Prior to the arrival of law enforcement, the argument between Plaintiff and Ms.

Chavez ended, and Plaintiff went outside. Ms. Chavez followed him outside to make sure that he

was okay. As this was happening, Defendant Deputy Bish arrived on the scene, along with

Defendant Moore. Bish immediately walked towards Plaintiff, while Moore immediately walked

over to talk with Ms. Chavez.

11. Defendant Bish got out of his police cruiser and immediately walked up to

Plaintiff, who was then in his garage. At the time, Plaintiff was in possession of a Taurus 9mm

pistol, which was clipped to the back of his belt in a retention holster. Plaintiff carried the pistol

on his belt as a matter of daily routine. The pistol was lawfully possessed and carried by the

Plaintiff in accordance with West Virginia law. Plaintiff was not prohibited from possession of

firearms. Plaintiff had violated no law that day prior to being confronted by Deputy Bish.

12. Upon seeing Deputy Bish, Plaintiff immediately put his hands up, informed Bish

that he had a pistol in a holster on the back of his belt, and turned around, hands still raised, so

that Deputy Bish could see the gun in its holster.

13. Plaintiff communicated to Deputy Bish by words and body language that he was

compliant and that he posed no threat to him, or anyone else. Plaintiff allowed Defendant Bish to

disarm him and remove the pistol. Plaintiff provided no verbal or physical resistance.

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14. Defendant Bish then unclipped the pistol from the back of Plaintiff’s belt, still in

its holster, and threw it on the ground, out of reach. Plaintiff had never had his hand on the pistol,

nor reached for the pistol in the presence of Defendant Bish. At that point, Plaintiff was

thereafter unarmed. All subsequent force applied to Plaintiff by Defendant Bish occurred while

Plaintiff was unarmed, and known by Bish to have been unarmed.

15. After throwing the holstered pistol out of reach, Defendant Bish turned Plaintiff

around so that he was facing him, and then immediately punched him in the face. Bish admits in

his police report to striking Plaintiff in the face with a closed fist (though he claims it occurred

prior to Plaintiff being disarmed). Bish continued punching Plaintiff another three or four times,

according to Plaintiff.

16. At the time Defendant Bish punched Plaintiff in the face, Plaintiff’s hands were

raised. Plaintiff had not threatened Bish, nor anyone else. Plaintiff had not resisted Bish in any

way. This seizure and use of force against the Plaintiff occurred inside and immediately in front

of Plaintiff’s open garage.

17. Defendant Bish violently forced Plaintiff onto the ground, with the assistance of

Defendant Moore, who was then present for Bish’s use of force against Plaintiff. While

Defendant Moore held down Plaintiff’s legs, Defendant Bish boot-stomped Plaintiff’s right hand,

fracturing it. Defendant Moore watched Bish’s use of force, and took no actions to stop him from

engaging in the excessive use of violent physical force against the Plaintiff.

18. After fracturing Plaintiff’s hand, Moore handed Deputy Bish her handcuffs, and

they were placed tightly on Plaintiff’s hands, behind his back, including on the wrist of the hand

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that had been fractured by Bish’s stomp. At no point did Plaintiff provide any physical resistance

to being taken into custody and handcuffed.

19. Upon information and belief, Defendant Bish purposefully overly-tightened the

handcuffs on Plaintiff’s wrists, so as to cause Plaintiff pain. As Plaintiff’s swelling on his

fractured right hand began to increase, the pain began to increase accordingly, which led to yet

more violence from Bish once Plaintiff was inside the police cruiser.

20. After the handcuffs were applied, Defendants Bish and Moore turned Plaintiff

over, so that Plaintiff was laying on his back, hands still handcuffed behind him. With Plaintiff’s

face now fully exposed, Defendant Bish punched Plaintiff in the face several more times. Bish

was punching Plaintiff using gloves containing reinforced knuckles, so as to cause additional

pain and damage to Plaintiff, while protecting Bish’s knuckles from damage. Plaintiff’s head

bounced off the concrete several times in response to Bish’s punches.

21. Defendant Derrick Callaway, another deputy with the Mercer County Sheriff’s

Department, then arrived on the scene around the time that Plaintiff was handcuffed.

22. Defendants Bish and Moore then stood Plaintiff up onto his feet and brought him

near Bish’s police cruiser, shoving him in the rear passenger side seat of the cruiser, with

Plaintiff’s hands still handcuffed behind his back.

23. By the time Plaintiff was put inside the cruiser, Ms. Chavez, who had witnessed

Bish beating the Plaintiff, and who had begged Defendant Bish to stop, had obtained a cell phone

and begun to videotape the remainder of the incident.

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24. The video footage taken by Plaintiff’s significant other then captures yet another

use of force directed at the handcuffed Plaintiff, while he was sitting in the rear seat of the police

cruiser.

25. Plaintiff’s fractured hand was swelling and the overly-tightened handcuffs were

causing severe pain. Plaintiff was attempting to communicate this fact to Bish and begging him

to loosen the cuffs.

26. Rather than helping to relieve the pressure of the handcuffs on Plaintiff’s

fractured hand, Defendant Bish’s response, which is captured on video, was instead to push the

Plaintiff and to punch the Plaintiff several more times, while Ms. Chavez, who is recording video

footage, screams for Bish to stop, saying “Bish, stop hitting him….”

27. Defendant Bish then pepper sprayed Plaintiff in the face, for a period of what Bish

noted in his report was “3 to 5 seconds.” Then Deputy Bish shut the door, leaving Plaintiff

suffering with the pepper spray burning his eyes inside the closed space of the rear of the cruiser.

Plaintiff was still handcuffed with his hands behind his back.

28. Thereafter, Plaintiff can be heard on the video crying out in pain due to the

burning of his eyes, all of which was ignored by the multiple officers who are present. At one

point, while Plaintiff is heard crying in pain in the background, the officers are asked if EMS is

necessary at the scene, to which they respond that no medical attention is required.

29. Thus the officers deprived the Plaintiff of medical treatment, despite the fact that

Defendant Bish had used violent physical force against the Plaintiff, causing him to bleed from

his head, fractured his hand with a boot-stomp, and also pepper sprayed Plaintiff’s eyes, all of

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which was either witnessed by the other officers, or known by the other officers, as well as

Defendant Bish himself.

30. The other present police officers present at the scene, including Defendants

Moore, Callaway and Addair, watched Bish beating and pepper spraying the Plaintiff. They took

no steps to stop Bish or to protect the Plaintiff from Bish’s violence. Nor did they allow Plaintiff

medical treatment for his injuries.

31. Instead of helping Plaintiff, Defendant Logan Addair confronts Plaintiff’s

significant other, who is still recording and pleading with the deputies to stop Bish from hurting

her husband. Defendant Addair places his hands around her throat, and then says, “Do you see

this fucking badge on her chest (pointing to Defendant Moore)? Do you know what that means,

you respect it, you respect me.”

32. After he finishes punching and pepper spraying the Plaintiff and closes the rear

passenger door of the cruiser, Defendant Bish walks over to the Plaintiff’s significant other, who

is still filming, and claims that he was protecting himself and the other deputies. As Bish is

attempting to explain himself, the footage shows Bish’s right hand, which is wearing a black

glove with reinforced armored knuckles. The footage shows the right glove covered in Plaintiff’s

blood.

33. In his written police report, Defendant Bish claimed that Plaintiff had been

kicking the inside of the police cruiser and that he had attempted to kick Bish, which prompted

Bish to use force against the Plaintiff inside the rear of the police cruiser. However the video

footage shows this to be a lie.

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34. Rather than allegedly kicking towards Deputy Bish, Plaintiff can clearly be seen

in the video footage attempting to show Bish his swollen hand behind his back, apparently

begging for his cuffs to be loosened. The footage shows that Plaintiff was not kicking Bish, nor

the police cruiser, but rather that Bish’s violence was sparked by Plaintiff’s request for Bish to

loosen the cuffs, which resulted in Bish instead violently pushing Plaintiff further inside the

police cruiser, and then punching Plaintiff several times. Bish then emerges from the car,

approaching Plaintiff’s significant other, where his bloody armored gloves are captured on video.

35. As this is going on, none of the other officers present at the scene, took any

actions to stop Bish’s violent use of force against the Plaintiff.

36. Upon information and belief, the physical violence directed at Plaintiff was in

retaliation for Bish’s perception of what had occurred prior to his arrival, rather than because

Bish reasonably believed that Plaintiff posed a safety threat to himself, or any other individual.

37. Upon information and belief, Bish was angry at Plaintiff for the mere possession

of a firearm and sought to inflict violent retribution onto Plaintiff for what he perceived was

disrespect to his authority.

38. Plaintiff had no reason to resist or fight with Defendant Bish at the time of the

incident. He was not under arrest, nor charged with any crime. Though Plaintiff’s significan had

called police to the residence, Defendant’s significant other, who was the other party in the

original argument, was present from the beginning and had made no complaints to the officers,

which was confirmed in Bish’s police report. Thus Plaintiff had committed no crime, nor did

there exist probable cause to suspect that Plaintiff had committed any crime, prior to his

encounter with Defendant Bish.

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39. On the way to being transported for processing at the police station, while

Plaintiff was still handcuffed in the rear of the police cruiser, there was yet another use of force

against the Plaintiff, involving Defendant Calloway.

40. During the transport, Plaintiff was in severe pain and distress. He was yelling and

shouting for Defendant Bish to open the rear window of the car so that Plaintiff could get some

fresh air. Plaintiff was mostly blind at the time due to the pepper spray in his eyes, which were

causing him severe pain. There was still pepper spray in the enclosed area of the cruiser’s rear

seat due to the fact that a large amount of pepper spray had been sprayed. Plaintiff was shouting,

“roll down the window, I can’t breathe.”

41. About halfway to the police station, in response to Plaintiff’s shouting, Defendant

Bish slammed his brakes and stopped the cruiser. Defendant Calloway had been following in his

own police cruiser. Calloway exited his car and approached the cruiser which held Plaintiff.

42. Defendant Calloway opened the rear door where Plaintiff was located and hit

Plaintiff twice in the face. Calloway said, “you need to stop acting like a little bitch.” Then

Calloway closed the door again, and they proceeded to drive to the police station.

43. At the time Calloway hit Plaintiff in the face twice, Plaintiff was physically

compliant and posed no threat to any individual. He was just verbally expressing that he couldn’t

breathe and wanted the window rolled down.

44. After arriving at the Mercer County Sheriff’s Department, Plaintiff’s face was

sprayed down with a hose, due to the pepper spray. This also washed all of the blood off of

Plaintiff’s face. The officers also attempted to wash some of the blood off of Plaintiff’s body and

clothes, though they were already stained to a certain extent.

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45. Plaintiff was then placed in a holding cell. After a while, he was removed for

processing and transported to Southern Regional Jail. The officers waited until after they cleaned

the blood from Plaintiff prior to taking photographs or mugshots of the Plaintiff’s face. However,

after later being released from jail, photographs of the clothes Plaintiff was still wearing showed

substantial dried bloodstains on his clothes, as a result of the beatings he endured.

46. While at the sheriff’s department, Plaintiff requested medical treatment. However,

Defendant Bish denied Plaintiff medical treatment, telling him that he could receive medical

treatment at Southern Regional Jail.

47. Upon arrival at Southern Regional Jail, still was not provided with medical

treatment. Plaintiff spent around six hours in jail and was able to see the magistrate later that

evening and bond-out.

48. During the arraignment process, the Plaintiff’s significant other was advised by

one of the magistrates to take him immediately to the hospital and to seek legal counsel.

49. Plaintiff’s significant other took Plaintiff straight from Southern Regional Jail to

the hospital. At the hospital, x-rays were taken which revealed a fractured hand. Plaintiff’s lip

was swollen with lacerations inside his mouth. There was a large hole inside Plaintiff’s lip.

50. Defendant Bish charged the Plaintiff via Criminal Complaint with two counts of

battery on a police officer (W. Va. Code 61-2-10(d)) and one count of obstructing an officer (W.

Va. Code 61-5-17(a)).

51. When the criminal charges went to court and negotiations began, the State agreed

to drop the two counts of battery on an officer in exchange for a guilty plea to the count of

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obstruction of an officer and a $50.00 fine, which Plaintiff accepted, thus resolving the criminal

charges.

COUNT ONE - EXCESSIVE FORCE UNDER 42 U.S.C. 1983

(Defendant Bish - Initial Seizure and Arrest)

52. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

53. On November 28, 2019, as more explicitly descried in the “FACTS” section

above, Defendant Deputy Joshua Bish, under color of law, engaged in an excessive use of violent

physical force against the Plaintiff, when he confronted him and took him into custody at his

home in his garage, located in Princeton, Mercer County, West Virginia.

54. At the time Defendant Bish performed the act of inflicting violent physical force

against the Plaintiff, as set forth above, no objectively reasonable police officer could have

perceived the Plaintiff as posing an immediate threat to the safety of himself, or any other

individual. Though previously lawfully armed with a holstered handgun in a retention-style

holster, Plaintiff had been voluntarily disarmed by Defendant Bish prior to the inception of the

physical force against Plaintiff. At all relevant times, Plaintiff was thereafter unarmed, compliant,

and not resisting.

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55. At the time Plaintiff was first attacked by Defendant Bish, there was no

reasonable suspicion, nor probable cause, to believe that Plaintiff had committed any crime. Nor

was Plaintiff resisting in any way. Plaintiff was cooperative, raising his hands, turning around so

that officers could see his holstered pistol, as well as allowing officers to access the pistol and

remove it from his belt.

56. At the time Plaintiff was first attacked by Defendant Bish, there was no

objectively reasonable basis for Bish to believe that Plaintiff was still armed, nor that he posed a

threat. He had voluntarily allowed himself to be disarmed and was in fact disarmed. His hands

were raised in the air in complete submission to Defendant Bish’s directions and detainment.

There was no other individual or third party who was in the immediate vicinity of the Plaintiff so

as to cause Defendant Bish to have reason for concern for the safety of a third party, such as

Plaintiff’s significant other. Plaintiff was not in a position to harm any individual, and he had

given no indications that he intended to harm Defendant Bish.

57. The Fourth Amendment prohibits police officers from "using excessive force to

seize a free citizen." Jones v. Buchanan , 325 F.3d 520, 527 (4th Cir. 2003) ; Graham v. Connor ,

490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Rather, police officers are

constitutionally permitted to use only that force which is reasonable under the circumstances. In

determining issues of excessive force, the courts look to several factors, including "the severity

of the crime at issue," whether the "suspect pose[d] an immediate threat to the safety of the

officers or others," and whether the suspect was "actively resisting arrest or attempting to evade

arrest by flight." Graham , 490 U.S. at 396, 109 S.Ct. 1865 ; Jones , 325 F.3d at 527. The Fourth

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Circuit has also held that the extent of the Plaintiff’s injuries are to be considered as well.

Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994).

58. Here, Plaintiff had committed no crime, and while the officers had been called to

the residence by Plaintiff’s significant other’s mother due to the existence of an alleged domestic

dispute, there was no indication that Plaintiff had committed any crime at all, much less a serious

crime. Moreoever, when the defendant officers arrived on scene, they immediately located

Plaintiff’s spouse, who did not allege a crime had been committed, nor request assistance from

the officers.

59. Furthermore, though Plaintiff was initially armed, he was immediately voluntarily

disarmed prior to the inception of the use of force against Plaintiff. Deputy Bish had no other

information indicating that Plaintiff was a threat to any individual. He had no criminal history,

had made no threats, and was compliant with all directions given by the officers.

60. Lastly, Plaintiff did not physically resist arrest, fight with the officers, nor attempt

to flee or evade the officers. He simply allowed the officers to inflict violent physical damage on

him. Though he eventually pled guilty to obstructing an officer, the criminal complaint filed by

Defendant Bish did not specify the exact nature of the obstruction Plaintiff was alleged to have

committed. Nor was the obstruction admission ever clarified or specified at the plea hearing.

However, the two counts of battery on an officer were dismissed.

61. Plaintiff suffered physical injuries as a result of the use of physical force against

him as alleged herein, including a fractured hand and multiple lacerations, which resulted in a

significant amount of blood staining Plaintiff’s clothes, which indicates the unreasonableness of

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Defendant Bish’s use of force under the circumstances. Rowland v. Perry, 41 F.3d 167, 174 (4th

Cir. 1994).

62. The defendant police officers are not entitled to qualified immunity. There are

numerous examples in the case law of the Fourth Circuit establishing that the use of violent

physical force under similar circumstances as occurred here was unreasonable. In Yates v. Terry,

817 F.3d 877 (4th Cir. 2016), the Court described many different similar examples of

unreasonably physical force, establishing that as of 2008 that it was clearly established that a

police officer was not entitled to use unnecessary, gratuitous, or disproportionate force by

repeatedly tasing a nonviolent misdemeanant who presented no threat to the safety of the officer

or the public and who was compliant and not actively resisting arrest or fleeing. See Meyers v.

Baltimore County, 713 F.3d 723, 734–35 ; Jones 325 F.3d at 532–34 ; Bailey v. Kennedy, 349 F.

3d 731, 745 (4th Cir. 2003) ; Rowland, 41 F.3d at 174 ; see also Parker v. Gerrish, 547 F.3d 1, 9–

11 (1st Cir.2008) ; Casey, 509 F.3d at 1282, 1284–86.

63. The Court further noted that, “though our decisions in Meyers, Bailey, and Jones

dealt with individuals who were secured when they were subjected to excessive force, our

precedent nonetheless provided Terry with fair notice that the force he used against Yates under

the facts of this case was unconstitutionally excessive.” Yates v. Terry, 817 F.3d 877 (4th Cir.

2016).

64. The Court explained that, “In Bailey and Jones, we denied qualified immunity to

officers who used excessive force against individuals who had not committed any crimes, were

secured in handcuffs, and posed no threat to the officers or others.” Yates, 817 F.3d at 887-88;

citing Bailey, 349 F.3d at 745 ; Jones, 325 F.3d at 534. The Court also pointed to a 1994 opinion,

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“where an individual committed a minor crime, and there was some evidence of resistance, we

denied qualified immunity to an officer who ‘used a wrestling maneuver, throwing his weight

against [the suspect's] right leg and wrenching the knee until it cracked.’” Yates, 817 F.3d at 888;

citing Rowland, 41 F.3d at 172, 174.

65. In Smith v. Ray, 781 F.3d 95 (4th Cir. 2015), the Court held that officers are not

justified in using violent physical force against a suspect, even where a suspect may recoil from

being suddenly grabbed or taken into custody without warning - even where the officer

subjectively claims to be worried about the presence of a gun.

66. In addition to the wealth of Fourth Circuit case law establishing the

unreasonableness of unnecessary violent physical force, the Court has also held that “tasing

suspects after they have been secured, see Meyers, 713 F.3d at 734 ;12 Bailey, 349 F.3d at 744–

45, and that punching or pepper spraying suspects in response to minimal, non-violent resistance,

see Park, 250 F.3d at 849–53 ; Rowland, 41 F.3d at 172–74, constitute excessive force.” Estate of

Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 904 (4th Cir. 2016).

67. Deputy Bish was aware that the Plaintiff possessed a holstered gun clipped onto

his belt in the small of his back at the beginning of their encounter because Plaintiff turned

around and made the holstered gun visible, raised his hands, and allowed himself to be disarmed.

After Plaintiff was disarmed, there was no probable cause to believe that there was a second gun

present, especially given the fact that Plaintiff was clearly compliant and non-threatening. There

was no mention in Deputy Bish’s report of any suspicion that there may have been a second gun,

or other weapon on Plaintiff’s person.

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68. If Plaintiff’s being armed at the inception of the encounter with Deputy Bish

justified a reasonable fear for officer safety, that threat ceased when Plaintiff was disarmed. In

Waterman v. Batton, the Fourth Circuit found that officers were justified in firing at a driver who

had attempted to run an officer off the road, and was accelerating toward the officers— but not

justified in continuing to fire after the car had passed them. 393 F.3d 471, 482 (4th Cir. 2005)

(“once Waterman's vehicle passed the officers, the threat to their safety was eliminated and thus

could not justify the subsequent shots.”); see also Bumgarner v. Clendenen, et al., Memorandum

Op. and Order, Civil Action No. 5:16-cv-05963 at p. 11-12 (“A reasonable officer would not

have had probable cause to feel threatened by Mr. Bumgarner, who alleges that he explained

each of his actions, made no sudden moves, and did not verbally or physically threaten any of the

officers, despite the prior presence of a gun.”).

69. Plaintiff suffered harm, including personal injury, extreme emotional distress,

severe pain, attorney fees and expenses, and is entitled to recover for the same.

COUNT TWO - EXCESSIVE FORCE UNDER 42 U.S.C. 1983

(Defendant Bish - Use of Force in the Cruiser at the Scene)

70. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

71. On November 28, 2019, as more explicitly descried in the “FACTS” section

above, Defendant Deputy Joshua Bish, under color of law, engaged in an excessive use of violent

physical force against the Plaintiff, when he attacked the Plaintiff while Plaintiff was sitting in

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the back of a parked police cruiser in front of Plaintiff’s home, located in Princeton, Mercer

County, West Virginia.

72. Defendant Bish was captured on video footage violently pushing the Plaintiff and

then repeatedly punching the Plaintiff, and also pepper sprayed the Plaintiff for a period of at

least 3 to 5 seconds, following Plaintiff’s request that his handcuffs be loosened.

73. At the time of the said use of force, Plaintiff’s hands were handcuffed behind his

back, and due to the fracture of Plaintiff’s hand, also caused by Defendant Bish, Plaintiff’s hand

was swelling and causing him severe pain and discomfort.

74. At the time Defendant Bish performed the act of inflicting violent physical force

against the Plaintiff, as set forth above, no objectively reasonable police officer could have

perceived the Plaintiff as posing an immediate threat to the safety of himself, or any other

individual. Plaintiff was handcuffed with his hands behind his back and was not resisting.

Though Deputy Bish claimed in his report that his use of force resulted from Plaintiff allegedly

attempting to kick him, the video footage shows that not to be the case. Plaintiff did not verbally

or physically threaten Defendant Bish. Plaintiff was handcuffed, made no sudden moves, and

was asking for help at the time he was attacked by Defendant Bish.

75. The Fourth Amendment prohibits police officers from "using excessive force to

seize a free citizen." Jones v. Buchanan , 325 F.3d 520, 527 (4th Cir. 2003) ; Graham v. Connor ,

490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Rather, police officers are

constitutionally permitted to use only that force which is reasonable under the circumstances. In

determining issues of excessive force, the courts look to several factors, including "the severity

of the crime at issue," whether the "suspect pose[d] an immediate threat to the safety of the

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officers or others," and whether the suspect was "actively resisting arrest or attempting to evade

arrest by flight." Graham , 490 U.S. at 396, 109 S.Ct. 1865 ; Jones , 325 F.3d at 527. The Fourth

Circuit has also held that the extent of the Plaintiff’s injuries are to be considered as well.

Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994).

76. Here, Plaintiff had committed no crime, and while the officers had been called to

the residence by Plaintiff’s significant other’s mother due to the existence of an alleged domestic

dispute, there was no indication that Plaintiff had committed any crime at all, much less a serious

crime. Moreoever, when the defendant officers arrived on scene, they immediately located

Plaintiff’s spouse, who did not allege a crime had been committed, nor request assistance from

the officers.

77. Furthermore, though Plaintiff was initially armed, he was immediately voluntarily

disarmed prior to the inception of the use of force against Plaintiff. Deputy Bish had no other

information indicating that Plaintiff was a threat to any individual. He had no criminal history,

had made no threats, and was compliant with all directions given by the officers.

78. Lastly, Plaintiff did not physically resist arrest, fight with the officers, nor attempt

to flee or evade the officers. He simply allowed the officers to inflict violent physical damage on

him. Though he eventually pled guilty to obstructing an officer, the criminal complaint filed by

Defendant Bish did not specify the exact nature of the obstruction Plaintiff was alleged to have

committed. Nor was the obstruction admission ever clarified or specified at the plea hearing.

However, the two counts of battery on an officer were dismissed.

79. Plaintiff suffered physical injuries as a result of the use of physical force against

him as alleged herein, including a fractured hand and multiple lacerations, which resulted in a

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significant amount of blood staining Plaintiff’s clothes, which indicates the unreasonableness of

Defendant Bish’s use of force under the circumstances. Rowland v. Perry, 41 F.3d 167, 174 (4th

Cir. 1994).

80. Defendant Bish is not entitled to qualified immunity. In addition to the wealth of

Fourth Circuit case law establishing the unreasonableness of unnecessary violent physical force,1

the Court has also held that “tasing suspects after they have been secured, see Meyers, 713 F.3d

at 734 ;12 Bailey, 349 F.3d at 744–45, and that punching or pepper spraying suspects in response

to minimal, non-violent resistance, see Park, 250 F.3d at 849–53 ; Rowland, 41 F.3d at 172–74,

constitute excessive force.” Estate of Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 904 (4th Cir.

2016).

81. Plaintiff suffered harm, including personal injury, extreme emotional distress,

severe pain, attorney fees and expenses, and is entitled to recover for the same.

COUNT THREE - EXCESSIVE FORCE UNDER 42 U.S.C. 1983

(Defendant Bish and Callaway - Use of Force in the Cruiser During Transport)

82. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

83. On November 28, 2019, as more explicitly descried in the “FACTS” section

above, Defendant Deputy Joshua Bish and Defendant Deputy Callaway, under color of law,

engaged in an excessive use of violent physical force against the Plaintiff, when they stopped the

vehicle and physically attacked the Plaintiff while Plaintiff was sitting in the back of a parked

1 See ¶¶ 62-65, 68, supra.

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police cruiser, handcuffed with his hands behind his back, on the side of the roadway during

transport to the sheriff’s department, located in Princeton, Mercer County, West Virginia.

84. Defendant Bish slammed on the brakes in response to Plaintiff complaining about

his painful wrists and painful eyes, still soaked with pepper spray. Defendant Callaway opened

the rear door of the cruiser, hit Plaintiff twice in the face, and instructed Plaintiff, “You need to

stop acting like a little bitch…” and then closing the cruiser door afterwards.

85. At the time Defendant Bish slammed the brakes of the car, stopping on the side of

the road, and at the time Defendant Callaway hit Plaintiff twice in the face, thus inflicting violent

physical force against the Plaintiff, as set forth above, no objectively reasonable police officer

could have perceived the Plaintiff as posing an immediate threat to the safety to any individual.

Plaintiff was handcuffed with his hands behind his back and was not resisting.

86. At the time the defendant officers attacked the Plaintiff, there was no need for the

use of physical force. Plaintiff posed no threat to any individual. Plaintiff was handcuffed and not

resisting.

87. At the time the defendant officers attacked the Plaintiff, they inflicted unnecessary

and wanton pain and suffering on the Plaintiff, at a time when he was already in pain from his

injuries and from the pepper spray still in his eyes. There was no justifiable reason to inflict

violence on the Plaintiff at that time.

88. The defendant police officers’ actions were objectively unreasonable, willful,

wanton, intentional, malicious and done with a callous and reckless disregard for the Plaintiff’s

clearly established Fourteenth Amendment right to be free from excessive force.

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89. Plaintiff suffered harm, including personal injury, extreme emotional distress,

severe pain, attorney fees and expenses, and is entitled to recover for the same.

COUNT FOUR - BYSTANDER LIABILITY UNDER 42 U.S.C. 1983

(Defendants Bish, Moore, Addair and Callaway)

90. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

91. In regards to Count One herein, Defendant Deputy Amanda Moore was present

during the violent use of force perpetrated against the Plaintiff by Defendant Deputy Bish. She

observed the use of force, even assisting in it. She observed that such force was not performed

for any lawful reason, but rather to punish the Plaintiff for possessing a gun. She observed such

force being inflicted on the Plaintiff at a time when Plaintiff was completely helpless and

compliant. She was furthermore aware of the fact that the Plaintiff was not under arrest, nor did

probable cause exist to arrest the Plaintiff for any crime at the time the use of force began.

92. In regards to Count Two herein, Defendants Moore, Callaway and Addair were all

present during the violent use of force perpetrated against the Plaintiff by Defendant Deputy

Bish. They observed the use of force. They observed that such force was not performed for any

lawful reason, but rather to punish the Plaintiff for asking for his handcuffs to be loosened. They

observed such force being inflicted on the Plaintiff at a time when Plaintiff was completely

helpless and compliant, handcuffed with his hands behind his back in the rear of a police cruiser.

93. In regards to Count Three herein, Defendant Bish enabled and observed the

violent infliction of physical force perpetrated against the Plaintiff by Defendant Callaway. He

observed the use of force, even assisting in it and enabling it by slamming the brakes of the car

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and allowing Callaway to access the Plaintiff. He observed that such force was not performed for

any lawful reason, but rather to punish the Plaintiff for complaining about his pain and severe

discomfort. He observed such force being inflicted on the Plaintiff at a time when Plaintiff was

completely helpless and compliant.

COUNT FIVE - DENIAL OF MEDICAL CARE UNDER 42 U.S.C. 1983

(Defendants Bish, Moore, Addair and Callaway)

94. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

95. Plaintiff had a serious medical need following the violence use of force

perpetrated against him by Defendant Deputy Bish, including a fractured hand which was

swelling inside the tight handcuffs applied to him by Defendant Bish, as well as eyes which were

burning due to being pepper sprayed by Defendant Bish and then closed inside the rear of the

police cruiser.

96. Plaintiff communicated numerous times to the defendant police officers that he

had a serious medical need which required treatment. He was begging for his handcuffs to be

loosened. Instead of loosening them, Defendant Bish attacked the Plaintiff. None of the other

officers present at the time took any action to loosen the cuffs on Plaintiff’s fractured hand. Nor

did they take any action to get Plaintiff medical treatment for his fracture.

97. The defendant officers were all aware that Plaintiff had a serious medical need;

that Plaintiff had been pepper sprayed and then enclosed in the rear seat of the police cruiser,

with his hands behind his back, unable to even wipe his face or touch his eyes. Plaintiff can be

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heard on the video crying out in pain due to the burning of his eyes, all of which was ignored by

the multiple officers who are present.

98. At one point, as documented by the video footage of the incident, while Plaintiff

is heard crying in pain in the background, the officers are asked if EMS is necessary at the scene,

to which they respond that no medical attention is required.

99. In fact, immediate medical attention was required. Plaintiff had a fractured hand,

which was swelling inside the tight handcuffs. Plaintiff had also been beaten, causing multiple

serious lacerations, which were causing Plaintiff to bleed. Plaintiff had also been pepper sprayed

for a period of at least three to five seconds, for which he was suffering serious pain.

100. The defendant officers, with deliberate indifference, refused and failed to provide

Plaintiff medical treatment, even after Plaintiff requested it. They also failed to direct that

medical care be provided to Plaintiff within a reasonable amount of time.

101. Plaintiff was only able to obtain medical treatment after he bonded out of jail and

was transported by his significant other to a hospital.

102. As a direct and proximate result, the Plaintiff was injured, including prolonged

and unnecessary suffering without treatment and medication for his physical injuries.

103. The defendants were acting under color of law.

PRAYER

WHEREFORE, based on the above stated facts, the Plaintiff respectfully requests that

this Honorable Court award:

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1. Damages against the defendants in an amount to be determined at trial which will

fairly and reasonably compensate the plaintiffs for all compensatory damages to be proven at

trial;

2. Punitive damages against the individual defendants in an amount to be determined

at trial; and

3. Reasonable attorney fees and costs.

PLAINTIFFS DEMAND A TRIAL BY JURY

MELVIN SARGENT,
By Counsel

/s John H. Bryan
John H. Bryan (WV Bar No. 10259)
JOHN H. BRYAN, ATTORNEY AT LAW
411 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
[email protected]

for the Plaintiff

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