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NO. 12-1878

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIAN SAWYER, Plaintiff, v. JIM R. ASBURY, individually and in his capacity as a Deputy with the Wood County Sheriff s 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 SOUTHERN DISTRICT OF WEST VIRGINIA

IN RE: JIM R. ASBURY, PETITIONER PETITION 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

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

II.

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. Benecial 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. Mary s 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 PRACTICE AND PROCEDURE 2524 (3d ed. 2008)...........................................................................................19

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STATEMENT OF JURISDICTION Plaintiff, Brian Sawyer, led 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 nal 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. Benecial 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 Defendant s Petition for Writ of Prohibition is neither a nal 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. Sawyer s 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 Asbury s 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 they re 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 he s 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
1 2

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

Brian Sawyer alleged that he was choked by Deputy Asbury after he kicked at his door and led a Fourth Amendment excessive force claim for this use of force. However, the District Court granted Deputy Asbury summary judgment on the Fourth Amendment claim - primarily due to the fact that Mr. Sawyer pled guilty to assaulting an ofcer for this act and admitted to resisting arrest by kicking at the door. 6

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ofcers 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. Sawyer s 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 Petitioner s 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 ofcers 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 testied 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 ofcers reached Deputy Asbury s side and began holding Mr. Sawyer, Deputy Asbury pulled his right st 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. Sawyer s face to the side. (Id. at 21:59:22-23). Deputy Asbury then resumed choking Mr. Sawyer. (Id. at 21:59:23-26). The ofcers then took Mr. Sawyer to the oor and shortly thereafter they were all largely outside the view of the video camera. (Id. at 21:59:36-41). Deputy Asbury testied that he was the ofcer in control of the Plaintiff s head and shoulders during the incident behind the wall. (Id. at 107:8-25). All of the ofcers, including Deputy Asbury, testied that neither of them struck the Plaintiff in the face, and that the Plaintiff s face never struck the oor. (Id. at 106:3-14, 162:20-22). Deputy Asbury testied 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 testied at his deposition (which was contained in his incident report) that he assisted the injured Mr. Sawyer, attempting to get the blood to stop owing 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 oor, he was stepping over the injured Brian Sawyer and doing some paperwork. (Id. at 109:4-15, 111:1-6).3 Deputy Kearns testied 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 Plaintiff s 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 ofcers - noting that the ofcers 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 Court s later decision, noting that efciency 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.).

Deputy Asbury subsequently resigned from the Wood County Sheriff s Department while under investigation for falsifying an unrelated police report. During the trial, when asked Deputy Asbury, have you ever falsied a police report? His response was to invoke the Fifth Amendment. (Trial Tr. 115:15-18). 9

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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, nding 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 inicting unnecessary and wanton pain and suffering. The Court further found that Deputy Asbury violated Mr. Sawyer s 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 led 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. Sawyer s due process claim is not nal as the damages issue has not been resolved. (June 19, 2012 Order, [Docket 67], attached to the Petitioner s Petition as Exhibit 12). The day before, on June 18, 2012, the Petitioner had led his Notice of Appeal to the Fourth Circuit. One month later, the Petitioner s counsel requested consent from Mr. Sawyer s counsel to allow the Petitioner to voluntarily dismiss the direct appeal, which was given. At that time, Mr. Sawyer s counsel received an email from Mr. Asbury s counsel, which stated the following: In light of the Court s order denying our motion for a nal judgment we want 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. Sawyer s counsel at the time consent was given, the Petitioner was

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preparing to le 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 Plaintiff s 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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The May 18, 2012 Order which the Petitioner is seeking to be vacated, is not a nal order under 28 U.S.C. 1291. Nor is it one of the types of interlocutory or collateral orders under 28 U.S.C. 1292; Fed. R. Civ. P. 54(b); Cohen v. Benecial Indus. Loan Corp., 337 U.S. 541 (1949) (quoting Thornton v. U.S. Atty. Gen., 976 F.2d 727 (C.A.4 (Md.), 1992), for which jurisdiction for prohibition would lie. Thus there is no jurisdiction for the Court to grant a writ of prohibition in the case sub judice. In Clayton v. Warlick, 232 F.2d 699 (4th Cir., 1956), this Court explained that: It is well settled that a case may not be brought here by writ of error or appeal in fragments, that to be reviewable a judgment or decree must be not only nal, but complete, that is, nal not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved; and that if the judgment or decree be not thus nal and complete, the writ of error or appeal must be dismissed for want of jurisdiction.'" (citing the U.S. Supreme Court in Arnold v. United States for Use of W. B Guimarin & Co., 263 U.S. 427, at page 434, 44 S.Ct. 144, at page 147, 68 L.Ed. 371). The Court further noted that: In Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718, we dealt with an attempt to use a writ of prohibition to review an interlocutory order refusing to dismiss a patent infringement suit on the ground that defendant did not reside or have a regular and established place of business within the district. There, as here, a question of venue was involved and, if the interlocutory order was erroneous, a great loss of time and money might result from its not being promptly reversed. We held, nevertheless, that there was no power in this court to review it by mandamus or prohibition . . . . ... We think it equally clear that writ of prohibition cannot be used as substitute for an appeal in such a case. Until Congress amends the statute so as to permit appeals from interlocutory orders of this character, we do not think that appellate courts should attempt to circumvent the law by the use of writs of prohibition or mandamus. In re Sylvania Electric Products, Inc., 1 Cir., 220 F.2d 423; Gulf Research & Development Co. v.
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Leahy, 3 Cir., 193 F.2d 302, afrmed 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, afrmed 344 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 we thought erroneous, had been entered granting a new trial conned to the issue of damages, and in Atlantic Coast Line R. Co. v. Sonenshine, 4 Cir., 226 F.2d 220, where an interlocutory order had been entered granting plaintiff a new trial on the issue of damages in the face of a contention by defendant that it was entitled to a judgment n. o. v. on the ground that no liability had been established and that the new trial would involve needless delay and expense. In the Madden case we said: It is clear that the order which we are asked to review is not a nal order in the case and hence is not appealable. And we do not think that the statute which allows appeal only from nal orders, except in a limited class of cases, can be evaded by the simple device of asking this court to issue one of its extraordinary writs, such as certiorari, or mandamus or prohibition. Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F. 2d 718; Hartford Accident & Indemnity Co. to Use of Silva v. Interstate Equipment 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 be used as a means for obtaining review of an order of the trial court which is not appealable because it does not constitute a nal determination of the case. 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; but even in the latter case the appellate court has the discretion to refuse to issue the writ if a method of review has been provided by statute and the petitioner has failed to use it. See Roche v. Evaporated Milk Ass'n, 319 U.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 exceptional cases of peculiar emergency or public importance or in cases where the usual 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, 87 L.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, 44 S.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 unusual circumstances 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 briey argues that a District Court s denial of qualied immunity can fall within the narrow class of prejudgment orders reviewable under the collateralorder doctrine, citing Ashcroft v. Iqbal, 556 U.S. 662 (2009). Indeed, a government ofcer defendant can directly appeal a court s denial of qualied 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 nding that the Law Enforcement Ofcers Safety Act (LEOSA) provision allowing a federal correctional ofcer 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 ofcer carrying a handgun without a local permit) of which a reasonable ofcer should have been aware, that would be an appealable issue of law.

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On the other hand, everyone agrees that every ofcer 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 Court s denial of summary judgement in its April 4, 2012 Memorandum Opinion & Order denying Deputy Asbury qualied immunity for the Fourteenth Amendment allegations, the order still would not have been properly appealable because the said denial was based on factual grounds: The right of a pretrial detainee to not be subject to excessive force is clearly established. Orem v. Rephann, 523 F.3d 442, 447048 (4th Cir. 2008) (In 2005, it was clearly established that an arrestee or pretrial detainee is protected from the use of excessive force.) Additionally, courts have found that ofcers may not hit pretrial detainees in the face when the pretrial detainee is not resisting or is restrained. (citations omitted) . . . . A reasonable ofcer in Mr. Asbury s circumstances would have recognized that he was violating a clearly established right when he punched Mr. Sawyer in the face at the holding center. (April 4, 2012 Memorandum & Opinion Order at page 12-13, attached to the Petition as Petitioner s Exhibit 4). The parties sub judice have 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 Plaintiff s Renewed Motion for Judgment as a Matter of Law and ordering a new trial on the issue of damages is not a nal 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 rst 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 Court s Granting of Plaintiff s Renewed Motion for Judgment as a Matter of Law and Ordering a New Trial on Damages Did Not Exceed the Court s Authority

The District Court was well within the Court s authority to grant the Plaintiff s 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 made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court s later deciding the legal questions raised by the motion. No later than 10 days after the entry of judgment . . . the movant may le a renewed motion for judgment as a matter of law and may 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 ndings. See White 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 inicted unnecessary and wanton pain and suffering upon the detainee. Id. (quoting Taylor v. McDufe, 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. McDufe, 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 ofcer s 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 inicted, 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 Petitioner s Petition as Exhibit 9). The Fourth Circuit has found that an ofcer is not justied in using physical force against a pretrial detainee based on the detainee s words alone. United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990). Courts have also found that ofcers may not punch pretrial detainees or prisoners in the face, and if an ofcer throws a punch under those circumstances, that action was intended to inict 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)(nding no qualied immunity on claims against ofcers 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 ofcer was not entitled to qualied 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)(nding no qualied immunity on Fourth Amendment claim against ofcer 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)(nding that an ofcer was not entitled to qualied immunity on charges that he violated a pretrial detainee s 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 Petitioner s 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 jury s 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 jury s verdict. The video shows Deputy Asbury grabbing the plaintiff by the throat. The video shows Deputy Asbury punching the plaintiff in the face with his st. The video shows the ofcers leaving an injured Mr. Sawyer lying on the holding center oor. Mr. Sawyer walked in to the holding center uninjured, and he left with a fractured nose and battered face. While Mr. Sawyer s verbal threats against Deputy Asbury were disgusting, they were still only words, and a pretrial detainee s words do not justify an ofcer s use of such force. See Cobb, 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 party s version of events if that version is so utterly discredited by the record such that no reasonable jury would believe it. See Scott 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 Asbury s own admissions established excessive force as a matter of law. Deputy Asbury testied 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 ofcer, 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. Sawyer s verbal threats: MR. BRYAN: So you also testied 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 conrms Deputy Asbury s admission that physical force was applied to Brian Sawyer in response to mere words, in violation of the Due Process Clause. See United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990) (an ofcer is not justied in using physical force against a pretrial detainee based on the detainee s 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 ofcers. See, e.g., Chambers v. Cnty. of Macomb, No. 03-73342, 2006 WL 1791398, at *7 (E.D. Mich. June 27, 2006)(nding no qualied immunity on claims against ofcers 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 ofcer was not entitled to qualied 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)(nding no qualied immunity on Fourth Amendment claim against ofcer who knocked individual to the ground and jumped on him in a holding center). Despite the fact that there were three other ofcers present to assist Deputy Asbury with Mr. Sawyer, Deputy Asbury never sought their assistance before deciding to suddenly lunge at Mr. Sawyer s throat. (Trial Tr. 103:10-21). The video shows that the assisting ofcers 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 ofcer 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 Asbury s right arm is pulled back for the rst 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. (See Brian Sawyer s Medical Records, attached to Petitioner s 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. Sawyer s 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 Asbury s own words, Brian Sawyer was left handcuffed, lying on the oor, 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 also Video at 22:3:17). The District Court emphasized the Court s overarching duty to ensure that everyone is equal under the law: As I write this, I recall the trial of the ofcers involved in the Rodney King beating twenty years ago. There, the jury acquitted ofcers in the face of unequivocal videotape evidence of guilt. The public had seen the tape. The Los Angeles riots ensued. Here and now as there and then, the jury did what they thought was right but simply got it wrong. A rare event, but that 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 Sheriff s Department uniform - despite the fact that he was off duty and not in Ritchie County.4 Deputy Asbury s counsel, in one of her last questions to Mr. Sawyer during the
Although Deputy Asbury resigned from the Wood County Sheriff s Department while under investigation for falsifying an unrelated police report, he did obtain employment with the Sheriff s Department of Ritchie County, West Virginia. 22
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trial, asked him, Do you remember threatening to rape [Asbury s] child? and Do you remember threatening to rape the children of all the ofcers that were in the holding center that night? However, Deputy Asbury never alleged to have heard any such comments. Despite the fact that Mr. Sawyer s 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 ofcial, 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 Sentinel newspaper, which ran the following: Wood County Sheriff Jeff Sandy said Thursday the verdict validated the department s belief that Asbury was not guilty. From the beginning we said we would cooperate with any law enforcement agency in the investigation, he said. Sandy said the verdict from the federal court reects the decision from a Wood County grand jury that voted to not indict Asbury on charges from the incident where Sawyer claimed he was a victim of excessive force by a law enforcement ofcer. (April 27, 2012, Asbury acquitted of federal charges, News and Sentinel Newspaper, http://www.newsandsentinel.com/page/content.detail/id/560438/Asbury-acquitted-offederal-charges.html?nav=5061)). However, Sheriff Sandy failed to inform the public that he was personally involved in inuencing 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 you ve seen it. Do you think - did it look like to you that Brian Sawyer was being picked up by the ofcer, or being choked and picked up, or was he back - walking up the wall? SHERIFF SANDY: I would - again I reviewed it. It was not there. Walked up or being forced up. I - ma am, what I - what I see is the ofcers trying to get him to get up to be compliant. GRAND JUROR: You don t think they were - you don t think they were too aggressive with him? SHERIFF SANDY: Thirty years, one month, federal government service, the action in which Mr. Asbury conducted the - the - the thrust to there, I have - I have seen that. I have seen that. And in fact GRAND JUROR: Have you done it? SHERIFF SANDY: In - yes, ma am. GRAND JUROR: Okay. SHERIFF SANDY: Yes, ma am. And - . . . in one situation . . . outside a courtroom , 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). See Grand 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

A copy of the Grand Jury Transcript was obtained by Petitioner s counsel and was used against Brian Sawyer, for impeachment purposes at the jury trial. A copy was given to Mr. Sawyer s counsel by Mr. Asbury s counsel on the day before trial. 24

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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 rst time during his testimony. Much of the questioning by the prosecutor was as follows: PROSECUTOR: Okay. You re sitting here in orange today. You ve got shackles on and we just had you un-handcuffed before you came in. Can you explain to the members of the Grand Jury where you are currently incarcerated? ... PROSECUTOR: Okay. When you say that you have those charges, do you mean that you have been convicted of the felony offense of unlawful assault and been convicted of the offense of forgery? ... PROSECUTOR: Okay. In addition to those two felonies, have you been convicted of a felony offense in the past? ... PROSECUTOR: Okay. Did you serve time in the penitentiary on that or were you given some other sentence? ... PROSECUTOR: Okay. Have you been convicted, in addition to those felony offenses, of any misdemeanor offenses in your past? BRIAN SAWYER: Yes. PROSECUTOR: Okay. Quite a few, isn t it; is that correct? BRIAN SAWYER: Yes. PROSECUTOR: Okay. You ve - and a lot of those arrest have come in Wood County; is that correct? ... PROSECUTOR: Okay. And you ve had some run-ins with them in the past?
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... PROSECUTOR: Okay. Do you have any batteries on non-law enforcement individuals? ... PROSECUTOR: Okay. Do you have any domestic battery convictions? ... PROSECUTOR: And while we re waiting on this, would you agree with me that the Xanax and the alcohol has likely affected your ability to remember exactly what happened? ... See Grand 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 ofcers and prosecutors, protected by condentiality 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. See Jerry 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 Sheriff s 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. and 2. the District Court did not exceed its authority by granting Brian Sawyer s the relief requested by the Petitioner is not available by way of prohibition;

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 LAW 611 Main Street P.O. Box 366 Union, WV 24983 (304) 772-4999 Fax: (304) 772-4998 jhb@johnbryanlaw.com for the Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on August 8, 2012, I led 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: weg@pffwv.com /s John H. Bryan JOHN H. BRYAN

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