Case 2:21-cv-00678 Document 1 Filed 12/31/21 Page 1 of 13 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE

PAUL M. HARTON,

Plaintiff,

vs. Civil Action No. 2:21-cv-00678

MATTHEW E. BOARD, individually,

Defendant.

COMPLAINT

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

First Amendment to the United States Constitution, arises out of the defendant’s commission of

an unreasonable search and seizure, false arrest and use of excessive force against the Plaintiff in

Parkersburg, Wood County, West Virginia, on or about January 1, 2020 in Wood County, West

Virginia, within the Charleston Division of 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, Paul M. Harton, was at all times relevant hereto a resident of Wood

County, West Virginia.

2. Defendant police officer Matthew E. Board was at all times relevant hereto a

sworn police officer employed by the Parkersburg Police Department and was at all times

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relevant hereto acting under color of law. He is named herein in his individual capacity, having

an address of Municipal Building, 1 Government Square, Parkersburg, West Virginia 26101.

3. Defendant police officer Daniel W. Miller was at all times relevant hereto a sworn

police officer employed by the Parkersburg Police Department and was at all times relevant

hereto acting under color of law. He is named herein in his individual capacity, having an address

of Municipal Building, 1 Government Square, Parkersburg, West Virginia 26101.

4. Defendant police officer Todd J. Lambiotte was at all times relevant hereto a

sworn police officer employed by the Parkersburg Police Department and was at all times

relevant hereto acting under color of law. He is named herein in his individual capacity, having

an address of Municipal Building, 1 Government Square, Parkersburg, West Virginia 26101.

5. Defendant police officer Ian M. Summers was at all times relevant hereto a sworn

police officer employed by the Parkersburg Police Department and was at all times relevant

hereto acting under color of law. He is named herein in his individual capacity, having an address

of Municipal Building, 1 Government Square, Parkersburg, West Virginia 26101.

6. Defendant correctional officer John Doe was at all times relevant hereto a sworn

correctional officer employed at the Wood County Holding Center, and was at all times relevant

hereto acting under color of law. He is named herein in his individual capacity, and upon

information and belief has an address of 401 2nd Street Suite 11, Parkersburg, West Virginia

26101.

FACTS

7. In the early morning hours of New Years Day, January 1, 2020, the Plaintiff was

celebrating the New Year with friends at Overtime Sports Bar in Parkersburg, Wood County,

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West Virginia, when the Plaintiff, and others, were physically attacked by other patrons at the

establishment. Plaintiff had been “sucker punched” by a man he had never met, which resulted in

an altercation involving numerous individuals inside the bar. Law enforcement were dispatched

to the scene.

8. Defendant police officer Matthew E. Board, employed by the Parkersburg Police

Department, arrived at the scene and entered the establishment. The fight had already ended by

that time. At this moment the bar was still full of patrons. The man who punched the Plaintiff had

fled the scene prior to the arrival of law enforcement.

9. Rather than asking all of the patrons to leave the establishment, Defendant Board

singled out the Plaintiff and directed the Plaintiff to leave the establishment, claiming that his

verbal criticisms were “interfering with [his] ability to speak with the bar tenders [sic].”

10. Plaintiff expressed his frustration at being told to leave by saying, “this is fucking

bullshit,” and “I’m the fucking victim and shouldn’t be treated this way,” along with “other

defiant/argumentative statements,” according to Board. Defendant Board then stated to the

Plaintiff, “if you’re truly the victim of a crime, it would be discussed [outside],” directing

Plaintiff to walk towards the exit with him.

11. At the same time (1:37 a.m. on January 1, 2020), Defendant Parkersburg Police

Officer Daniel W. Miller was also inside the bar, and was observing Plaintiff interacting with

Defendant Board. Defendant Miller apparently perceived the Plaintiff’s interactions with Board

to be “aggressive” and “agitated.” Miller then attempted to frame the Plaintiff in order to effect a

warrantless arrest of the Plaintiff for a crime he didn’t commit.

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12. At about 1:38 a.m., Plaintiff began to walk towards the exit of the crowded bar,

escorted by Defendant Board, who was walking directly behind him, specifically directing his

course of travel through the bar towards the exit. As Plaintiff and Board approached Defendant

Miller’s location, Miller positioned himself directly in the only pathway available between the

crowded patrons, which was the pathway Board was forcibly directing the Plaintiff.

13. Surveillance footage from the bar shows Miller put his right hand on his hip,

extending his elbow out to his right side, as Plaintiff approached him. As Plaintiff neared Miller,

with Board close behind directing Plaintiff’s path, Defendant Miller can be observed fortifying

his stance, as if he were anticipating a physical impact, and slightly shifting his extended right

elbow further into Plaintiff’s path, causing Plaintiff to accidentally bump into him. The video

shows Miller watching Plaintiff approach, making no effort to make way for the Plaintiff and

Board, and instead setting up unintentional contact by Plaintiff into Miller. Meanwhile, three

other police officers, including Defendant Lambiotte and Defendant Summers, begin to encircle

the Plaintiff, just prior to him making contact with Defendant Miller, as if they knew what was

going to happen.

14. In his police report, Defendant Board claims that when Plaintiff approached

Defendant Miller, that “he intentionally walked directly into him, striking the center of [Miller’s]

sternum with his right shoulder,” after which he seized Plaintiff by pulling his hands behind his

back, while Defendant Todd J. Lambiotte, another Parkersburg Police officer, placed Plaintiff in

handcuffs.

15. Defendant Miller claimed in his separate police report that, “When the [Plaintiff]

made it to [his] location, the [Plaintiff] used his right shoulder to push [him] back as he

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continued walking through,” after which Plaintiff was “placed into handcuffs due to his

physically aggressive nature towards officers on the scene.”

16. In reality, the Plaintiff was unwittingly set-up to be framed by defendants Miller

and Board by intentionally causing him to make accidental contact with Miller so as to

supposedly justify charging Plaintiff with battery against a police officer, which was then joined-

in by Defendant Lambiotte and Defendant Summers, both of whom were personally involved in

effecting the warrantless arrest of the Plaintiff, and both of whom observed Defendant Miller and

Defendant Board attempt to frame the Plaintiff.

17. Plaintiff was in-fact charged with battery against a police officer, for allegedly

striking Defendant Miller with his shoulder. Plaintiff was also charged with obstruction and

failure to provide information for subsequently refusing to provide fingerprints after his arrest for

battery.

18. Plaintiff was subsequently acquitted of all charges following a jury trial. Both

defendants Board and Miller testified before the jury. However, the surveillance footage was

played, showing that the defendant police officers had lied, and were continuing to lie under

oath, about the alleged battery, and that in reality they had attempted to frame the Plaintiff for a

crime he did not commit.

19. After his arrest on January 1, 2020, Plaintiff was transported to the Wood County

Holding Center. While in the holding center, Plaintiff was assaulted by a correctional officer,

who is identified herein as Defendant John Doe.

20. Plaintiff was being processed by a uniformed deputy in the processing room.

Plaintiff was being compliant at that time, however, he was verbally expressing his opinions

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about the way he had been treated that night. Another uniformed holding center employee, John

Doe, then approached Plaintiff and told him to “shut up.” Plaintiff responded that he believed he

had a First Amendment right to express his speech, so long as he was complying with their

orders.

21. Defendant John Doe immediately grabbed Plaintiff and put him in a wrist lock

type hold, and then took him out of the processing room and into another area of the jail. Along

the way he kept Plaintiff in a wrist lock and violently knee-kicked Plaintiff in the knees multiple

times for no reason. At one point, Defendant Doe took Plaintiff to the ground and began to crank

the wrist lock even tighter. Plaintiff screamed, “not resisting, not resisting!” Despite his pleas

however, eventually Plaintiff’s wrist “popped” at which point the use of force stopped and

Plaintiff was placed in a cell.

22. Being injured at that point, Plaintiff repeatedly pressed the help buzzer in his cell

to request medical assistance. Finally John Doe returned and said, “what?” Plaintiff responded

that he needed medical assistance because Doe had broken his arm for no reason. Doe

responded, “it was your wrist, get it right.” Thereafter Plaintiff was ignored and was not provided

with medical assistance.

23. Subsequently Plaintiff was required to obtain medical treatment for injuries

inflicted by Defendant John Doe, for both his wrist and his knee. Plaintiff ended up having to

undergo knee surgery to repair his knee.1

1
A FOIA request by Plaintiff’s counsel to the Wood County Sheriff’s Department returned with no
records pertaining to the Plaintiff’s arrest on January 1, 2020, nor video footage of the use of force against
the Plaintiff. Thus, the correctional officer is identified merely as John Doe.

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COUNT ONE - UNREASONABLE SEIZURE UNDER 42 U.S.C. 1983

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

restated herein.

25. On January 1, 2020 at approximately 1:38 a.m., the defendant police officers,

acting under color of law, jointly participated in, and effected, the warrantless arrest of the

Plaintiff for the alleged crime of battery against a police officer, W. Va. Code § 61-2-10(d).

26. Defendants seized the Plaintiff and arrested him without a warrant and knowingly

did so without probable cause to believe that Plaintiff had committed the crime of battery against

a police officer, or any other criminal offense.

27. At the time of the Plaintiff’s arrest, at approximately 1:38 a.m., the facts and

circumstances within the defendants’ joint knowledge, as well as those available to the

defendants’ individually, were not sufficient to warrant a reasonably prudent police officer to

believe that under the circumstances present at that time, that Plaintiff had violated any criminal

statute or committed any criminal offense. To the contrary, Plaintiff was in-fact, and was known

to be at that time, the victim of a crime. Therefore, there was no probable cause at the time of

Plaintiff’s arrest to justify the seizure.2

28. Plaintiff was charged with violation of W. Va. Code § 61-2-10(d) which provides:

2 Although in criminal cases the question of whether a police officer had probable cause to make an arrest
is a question for the court to decide, there is substantial authority that in § 1983 cases this issue should be
submitted to the jury upon proper instructions defining probable cause. Thacker v. City of Columbus, 328
F.3d 244 (6th Cir. 2003); Montgomery v. De Simone, 159 F.3d 120 (3d Cir. 1998); McKenzie v. Lamb,
738 F.2d 1005 (9th Cir. 1984); Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996).

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(d) Battery. — Any person who unlawfully, knowingly and intentionally makes physical
contact of an insulting or provoking nature with a government representative, health care
worker, utility worker, emergency service personnel, correctional employee or law-
enforcement officer acting in his or her official capacity and the person committing the
battery knows or has reason to know that the victim is acting in his or her official
capacity, or unlawfully and intentionally causes physical harm to that person acting in
such capacity and the person committing the battery knows or has reason to know that the
victim is acting in his or her official capacity, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $500 or confined in jail not less than one
month nor more than twelve months or both fined and confined.

29. The Fourth Amendment protects "[t]he right of the people to be secure in their

persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. A seizure is

unreasonable under the Fourth Amendment if it is not based on probable cause. Dunaway v. New

York , 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Thus, "[i]f a person is arrested

when no reasonable officer could believe ... that probable cause exists to arrest that person, a

violation of a clearly established Fourth Amendment right to be arrested only upon probable

cause ensues." Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001) (citation omitted).

30. "Probable cause is determined by a ‘totality-of-the-circumstances’ approach."

Smith v. Munday , 848 F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates , 462 U.S. 213, 230,

103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). The inquiry "turns on two factors: ‘the suspect’s

conduct as known to the officer, and the contours of the offense thought to be committed by that

conduct.’ " Id. (quoting Graham v. Gagnon , 831 F.3d 176, 184 (4th Cir. 2016) ). While the court

looks to the information available to the officer on the scene at the time, the courts apply an

objective test to determine whether a reasonably prudent officer with that information would

have thought that probable cause existed for the arrest. Graham , 831 F.3d at 185. Evidence

sufficient to secure a conviction is not required, but probable cause exists only if there is

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sufficient evidence on which a reasonable officer at the time could have believed that probable

cause existed for the arrest. Wong Sun v. United States , 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.

2d 441 (1963).

31. On the charge of allegedly committing battery against a police officer, the statute

requires that Plaintiff “intentionally cause[d] physical harm” to Defendant police officer Daniel

W. Miller. Such facts were not present under the circumstances, but rather were manufactured by

Defendant Miller and Defendant Board, so as to frame the Plaintiff to make it appear as if he

committed a battery against Miller, when he in fact had no intention to do so. Additionally,

Defendant Miller in actuality committed a battery against the Plaintiff, purposefully stepping into

his path and intentionally sticking his elbow out and causing contact with the Plaintiff. No

reasonably prudent police officer on the scene at the time would objectively believe that Plaintiff

had intentionally caused physical harm to a police officer. Moreover, no facts were present

showing any physical harm was caused to Miller. Surveillance footage presented to the jury

during the criminal trial established conclusively that there was no probable cause to believe that

Plaintiff committed battery to a police officer.

32. On the charge of allegedly obstructing an officer, in violation of WV Code §

61-5-17(a), the plain language of the statute establishes that a person is guilty of obstruction

when he, “by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or

attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting

in his or her official capacity.” The Fourth Circuit recently examined the statute:

As West Virginia’s high court has "succinct[ly]" explained, to secure a conviction under
section 61-5-17(a), the State must show "forcible or illegal conduct that interferes with a
police officer’s discharge of official duties." State v. Davis, 229 W.Va. 695, 735 S.E.2d

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570, 573 (2012) (quoting State v. Carney, 222 W.Va. 152, 663 S.E.2d 606, 611 (2008)).
Because conduct can obstruct an officer if it is either forcible or illegal, a person may be
guilty of obstruction "whether or not force be actually present." Johnson , 59 S.E.2d at
487. However, where "force is not involved to effect an obstruction," the resulting
obstruction itself is insufficient to establish the illegality required by section 61-5-17.
Carney , 663 S.E.2d at 611. That is, when force is not used, obstruction lies only where
an illegal act is performed. This is because "lawful conduct is not sufficient to establish
the statutory offense." Id.

Of particular relevance to our inquiry here, West Virginia courts have held that "when
done in an orderly manner, merely questioning or remonstrating with an officer while he
or she is performing his or her duty, does not ordinarily constitute the offense of
obstructing an officer." State v. Srnsky, 213 W.Va. 412, 582 S.E.2d 859, 867 (2003)
(quoting State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 373 S.E.2d 484, 486 (W. Va.
1988)).

For example, the Supreme Court of Appeals has found that no obstruction is committed
when a property owner asks a law enforcement officer, "without the use of fighting or
insulting words or other opprobrious language and without forcible or other illegal
hindrance," to leave her property. Wilmoth , 373 S.E.2d at 487. This principle is based on
the First Amendment "right to question or challenge the authority of a police officer,
provided that fighting words or other opprobrious language is not used." Id. ; see Graham
, 831 F.3d at 188 ("Peaceful verbal criticism of an officer who is making an arrest cannot
be targeted under a general obstruction of justice statute ... without running afoul of the
First Amendment." (citation omitted)).

Hupp v. State Trooper Seth Cook, 931 F.3d 307 (4th Cir. 2019).

33. To the extent that the defendant police officers hereinafter argue that Plaintiff

committed obstruction prior to his arrest, the facts and circumstances show otherwise. Plaintiff

was framed by the defendant officers as a result of Plaintiff’s verbal criticisms of Defendant

officer Board. Plaintiff had not engaged in any forcible or illegal conduct that hindered Board’s

investigation, but rather merely engaged in peaceful verbal criticism. Plaintiff had not been

placed under arrest prior to coming into contact with Defendant Miller, but rather was only

directed to leave the establishment. Such conduct does not amount to "forcible or illegal conduct

that interferes with a police officer’s discharge of official duties." State v. Davis, 229 W.Va. 695,

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735 S.E.2d 570, 573 (2012) (quoting State v. Carney, 222 W.Va. 152, 663 S.E.2d 606, 611

(2008)). The surveillance video footage shows conclusively that Plaintiff was not obstructing

police officers at the time he was arrested, but rather that he was arrested following an attempted

framing by the defendant police officers for allegedly committing battery on Defendant Miller.

34. No reasonable police officer would have believed that probable cause existed for

the warrantless arrest of the Plaintiff on January 1, 2020, which is corroborated by the fact that

Plaintiff was found not guilty following a jury trial where both Defendant Board and Defendant

Miller testified under oath.

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

(Defendant John Doe)

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

restated herein.

36. On January 1, 2020, as more explicitly described above, Defendant John Doe,

under color of law, engaged in an excessive use of violent physical force against the Plaintiff

when he placed Plaintiff in a wrist lock, began knee-kicking him and took him to the ground,

ultimately injuring both Plaintiff’s wrist and knee.

37. At the time Defendant John Doe engaged in the said use of force, there was no

need for the application of violent physical force against the Plaintiff. No objectively reasonable

police officer or correctional officer could have perceived the Plaintiff as posing an immediate

threat to the safety of any individual. He was compliant and was not physically resisting.

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38. Defendant John Doe inflicted unnecessary and wanton pain and suffering on the

Plaintiff. There was no justifiable reason to inflict such violence on the Plaintiff. Defendant John

Doe’s 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 the excessive use of violent physical force.

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

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

PRAYER

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

this Honorable Court award:

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

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PAUL M. HARTON
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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