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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON MATTHEW COLE, individually and PATRICIA COLE,as next friend of MATTHEW COLE, vs. Plaintiffs, Civil Action No. : 2:12-8915
NICHOLAS D. HALL, ROBERT V. NEAL, JAMES K. SIZEMORE, DANA C. WYSONG, in their individual capacities, and FAYETTE COUNTY COMMISSION, a political subdivision of the State of West Virginia, 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 on the Plaintiff on or about December 14, 2010 in the town of Victor, Fayette 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, Matthew Cole, was at all times relevant hereto a resident of
Ansted, Fayette County, West Virginia, within the Southern District of West Virginia. 2. The Plaintiff, Patricia Cole, was at all times relevant hereto a resident of
Ansted, Fayette County, West Virginia, and is a plaintiff in the capacity as next friend for her son, Matthew Cole, who is mentally disabled.
3.
resident of Fayetteville, Fayette County, West Virginia, having a last known address of P.O. Box 463, Fayetteville, West Virginia 25840 and is employed by the Fayette County Sheriffs Department. He is named in his individual capacity. 4. Defendant Robert V. Neal is and was at all times relevant hereto, a
resident of Hico, Fayette County, West Virginia, having a last known address of P.O. Box 126 Hico, West Virginia 25854 and is employed by the Fayette County Sheriffs Department. He is named in his individual capacity. 5. Defendant James K. Sizemore is and was at all times relevant hereto, a
resident of Ansted, Fayette County, West Virginia, having a last known address of 105 Downey Ridge Road, Ansted, West Virginia 25812 and is employed as a Captain in the Fayette County Sheriffs Department. He is named in his individual capacity. 6. Defendant Dana C. Wysong is upon information and belief a resident of
the town of Windsor, Isle of Wight County, Virginia, having a last known address of 13 E. Grifn Street, Windsor, Virginia 23487-9425. He was at all times relevant hereto a resident of the town of Lookout, Fayette County, West Virginia and was employed by the Fayette County Sheriffs Department. He is named in his ofcial capacity. 7. Defendant Fayette County Commission (FCC) is a political subdivision of
the State of West Virginia, and as such, is liable for the negligent conduct of its agents and employees, including the Sheriff, the Sheriffs Department, and the employees of the Sheriffs Department, so long as that conduct was carried out within the scope of their employment. See West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va. Code 29-12A-1, et seq.
8.
agents of Defendant FCC are hereby alleged to have been committed by said agents and/or employees acting in the scope of their employment and authority. The causes of action asserted herein against Defendant FCC refer to acts performed by agents and employees of said Defendant political subdivision, rather than the formulation and implementation of policy related to how law enforcement and police protection are provided. FACTS 9. On February 13, 1993 the Plaintiff, Matthew Cole, suffered a traumatic
brain injury in a vehicle accident, which resulted in a left frontotemporal craniotomy. He was in a coma for eighteen days and was hospitalized for four months. 10. On May 26, 2006, Mr. Cole was involved in another vehicle accident
where he suffered further head trauma. 11. As a result of the vehicle accidents, Mr. Cole has a history of
posttraumatic seizures and remains with a residual right hemiparesis, right hemi sensory decit and persistent diplopia. He is permanently disabled - both physically and mentally. His parents, in particular his mother, Plaintiff Patricia Cole, cares for him and assists him in living an independent lifestyle. However, he has severe limitations. 12. On December 14, 2010 the Plaintiff, Matthew Cole, was visiting his cousin,
Jesse Pike, now deceased, of Victor, West Virginia. Mr. Pike got into a domestic dispute with his signicant other. She called law enforcement and reported, apparently falsely, that she had been shot in the face with a .357 caliber hand gun by Mr. Pike.
13.
Prior to the arrival of law enforcement, Mr. Pike took Matthew Cole outside
of the residence with him and instructed him to hide from approaching law enforcement. The plaintiff did what he was told. He was not involved - nor alleged to be involved - in the domestic altercation. 14. Defendants Hall, Neal, Wysong and Sizemore, arrived at the residence
and began to approach the home. Thereupon they discovered Mr. Pike and the Plaintiff hiding in the driveway. Defendant Sizemore was a Captain and was the supervisor for deputies Hall, Neal and Wysong. 15. The said deputies detained Matthew Cole and Jesse Pike and seized Mr.
Pikes handgun from beneath a nearby parked car. Mr. Pike was advised his Miranda rights and was placed under arrest. 16. At some point prior to, or during the detainment of Matthew Cole, the said
defendants struck Matthew Cole in the face, head, legs and chest. 17. At the time Mr. Cole was struck, he was not resisting or assaulting the
deputies. 18. At some point, upon information and belief, Defendant Wysong recognized
Mr. Cole and informed the other deputies that he was disabled. 19. Matthew Cole was then taken to his mothers home by Deputy Wysong
and dropped off in the driveway. Deputy Wysong did not speak with Mr. Coles mother, nor did he ensure that Mr. Cole was able to get inside the home. There was snow on the ground and the weather was cold. Up to that point Matthew Cole was not given any medical treatment or care.
20.
Patricia Cole, Matthews mother, observed her son being dropped off
outside, and upon opening the door for him immediately observed physical injuries to her sons body and called 9-1-1 for an ambulance. Photographs were then taken which depict injuries to Matthew Coles face, head and legs. While speaking to the 9-1-1 operator, Mrs. Cole requested that the deputy she observed return to speak with her about what happened. However Fayette County 9-1-1 refused to send a deputy, and refused to give her the name of the deputy who transported her son. Mr. Cole was taken, by ambulance to the Summersville Regional Medical Center emergency room where he was treated for injuries to his head, legs and chest. 21. Matthew Cole was never charged with a criminal violation, nor was he
taken into custody other than being seized at the scene and being taken to his mothers home. 22. Since Mr. Cole suffered the beating on December 14, 2010, he began
having seizures again, and underwent additional medical treatment. 23. Since the beating, Mr. Cole has suffered from severe anxiety and post
traumatic stress disorder. He has become depressed and obsessed with the beating. The experience has penetrated every aspect of his daily life. He seizure activity has increased dramatically since December 14, 2010. COUNT ONE - EXCESSIVE FORCE UNDER 42 U.S.C. 1983 VIOLATION OF THE FOURTH AMENDMENT 24. Plaintiff incorporates by reference all the allegations contained in the
previous paragraphs.
25.
Defendants Hall, Neal, Wysong and Sizemore, under color of state law,
used excessive force against Matthew Cole, as described above, on December 14, 2010. 26. When the defendants struck Matthew Cole in the head, legs and chest, no
objectively reasonable ofcer could have perceived Mr. Cole as posing an immediate threat to the safety of the ofcers or others. 27. Matthew Cole was neither armed nor suspected by the defendants of
being armed at the time he was beaten. 28. Matthew Cole was not resisting arrest at the time that force was being
used on him. 29. Matthew Cole had not committed any crime at the time force was used on
him, and was never charged with any criminal allegation. 30. The said defendants actions were objectively unreasonable, unlawful,
unwarranted, and in violation of Matthew Coles clearly established procedural and substantive rights, including the Fourth Amendment of the United States Constitution. 31. The said defendants actions were willful, wanton, intentional, malicious
and done with a callous and reckless disregard for Matthew Coles Fourth Amendment right to be free from excessive force. 32. Matthew Cole suffered harm, including personal injuries, extreme
emotional distress, medical expenses, severe pain, and continues to suffer damages, and is entitled to recover damages for the same.
COUNT TWO - EXCESSIVE FORCE UNDER 42 U.S.C. 1983 VIOLATION OF THE FOURTEENTH AMENDMENT 33. Plaintiff incorporates by reference all the allegations contained in the
previous paragraphs. 34. In the event that this Court nds that Matthew Cole was a pretrial detainee
at the time that he was struck by the defendants, Mr. Cole pleads a violation of the Fourteenth Amendment Due Process Clause, in the alternative. 35. The defendants, under color of state law, used excessive force against
Matthew Cole as described above, which inicted unnecessary and wanton pain and suffering on the Plaintiff. 36. At the time Mr. Cole was struck, there was no need for force to be applied,
and even if there was a need for force to be applied, the defendants used an excessive amount of force, as evidenced by Mr. Coles physical injuries. 37. The said use of force was not applied in a good faith effort to maintain and
restore discipline, but rather was applied maliciously and sadistically for the purpose of causing harm. 38. The defendants actions were objectively unreasonable, willful, wanton,
intentional, malicious and done with a callous disregard for the Plaintiffs clearly established Fourteenth Amendment right to be free from excessive force. 39. Plaintiff suffered harm, including personal injuries, extreme emotional
distress, medical expenses, severe pain, and continues to suffer damages, and is entitled to recover damages for the same.
COUNT THREE - STATE LAW CLAIM FOR NEGLIGENCE 40. Plaintiff incorporates by reference all the allegations contained in the
previous paragraphs. 41. Defendant FCC specically owed Matthew Cole a duty of reasonable care.
It was reasonably foreseeable to the defendants that Matthew Cole would be harmed as a result of their actions of striking him in the head, legs and chest, in violation of the U.S. Constitution. Upon information and belief, there was at least one ofcer at the scene who knew the identity of Matthew Cole, and who knew of his mental and physical disability. Furthermore, it was obvious, or should have been obvious, to the defendants that they were interacting with a disabled person. 42. Defendant FCC, by and through their Sheriffs Department, breached that
duty as detailed above and incorporated herein, and furthermore by: a. b. c. d. e. 43. negligently training, retaining, and supervising the defendants who struck Matthew Cole; negligently allowing the defendants who struck Matthew Cole to use excessive force in violation of the U.S. Constitution; negligently failing to comply with federal constitutional standards for the use of force against a suspect and/or a pretrial detainee; negligently training the defendants who struck and transported Matthew Cole to interact with persons who are mentally disabled; negligently depriving the Plaintiff of medical treatment for his injuries. As a direct and proximate result of the Defendants negligence, Matthew
Cole suffered harm, including personal injuries, extreme emotional distress, medical
expenses, severe pain, and continues to suffer damages, and is entitled to recover damages for the same. COUNT FOUR - SUPERVISORY LIABILITY UNDER 42 U.S.C. 1983 44. 45. Plaintiff incorporates all allegations contained in previous paragraphs. On December 14, 2010 Defendant James K. Sizemore was a Captain in
the Fayette County Sheriffs Department and was the supervisor for defendants Hall, Neal and Wysong. 46. Defendant Sizemore had actual or constructive knowledge that his
subordinates were engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to the plaintiff; namely using excessive force. Defendant Sizemores knowledge is documented by his presence at the scene of Matthew Coles beating. 47. The said supervisors response to that knowledge was so inadequate as
to show deliberate indifference to, or tacit authorization of, the practice of using excessive force. 48. As a direct and proximate result of the said supervisors inaction the
Plaintiff suffered constitutional violations and was damages, as described above, for which he is entitled to recover. COUNT FIVE - DENIAL OF MEDICAL CARE UNDER 42 U.S.C. 1983 49. 50. Plaintiff incorporates all allegations contained in previous paragraphs. Matthew Cole had a serious medical need following his being struck in the
head, legs and chest by defendants Hall, Neal, Wysong and Sizemore, as described above; namely treatment for his physical injuries and medication.
51.
The said defendants were aware of Matthew Coles serious need for
medical care and medication, since had knowledge that they struck him and that he was visibly injured. 52. The said defendants, with deliberate indifference, failed to provide the
medical care or direct that medical care be provided within a reasonable amount of time. They did not call an ambulance for Mr. Cole. Nor did they transport him to the hospital. They merely dropped him off outside his mothers home, in the snow. 53. As a direct and proximate result, Matthew Cole was injured, including
prolonged and unnecessary suffering without treatment and medication for his physical injuries. 54. During this time, Matthew Cole was in the custody of the defendants after
having been seized at the scene of the arrest of Jesse Pike, and therefore was a pretrial detainee during his transport to his mothers home. 55. The defendants were acting under the color of state law.
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 Plaintiff for: a. b. c. Past, present and future medical expenses; Past, present and future pain and suffering; Loss of enjoyment of life;
d. e. f. g. h. i. j. k.
Psychological and emotional distress; Any other compensatory damages to be proven at trial; Punitive damages against the individual Defendants in an amount to be determined at trial; Reasonable attorney fees and costs; Any other relief that this Court deems is just and fair; All other damages provided by law; Injunctive relief requiring appropriate training, supervision and discipline in order to remedy all constitutional deprivations which the Plaintiff suffered; Declaratory judgment relief establishing the Defendants above-described conduct violates the Plaintiffs clearly established constitutional rights.
/s John H. Bryan John H. Bryan (WV Bar No. 10259) Martha J. Fleshman (WV Bar No. 8542) 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
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I. (a) PLAINTIFFS MATTHEW COLE, individually and PATRICIA COLE, as next friend of MATTHEW COLE (b) County of Residence of First Listed Plaintiff
Fayette
DEFENDANTS NICHOLAS D. HALL, ROBERT V. NEAL, JAMES K. SIZEMORE, DANA C. WYSONG, in their individual capacities and FAYETTE COUNTY COMMISSION, Fayette County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) John H. Bryan, Martha J. Fleshman, John H. Bryan, Attorneys at Law
611 Main Street, P.O. Box 366, Union, WV 24983, (304) 772-4999 II. BASIS OF JURISDICTION
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U.S. Government Plaintiff U.S. Government Defendant (Place an X in One Box Only)
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DEF " 1
and One Box for Defendant) PTF DEF Incorporated or Principal Place " 4 "4 of Business In This State
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" 4 Diversity
(Indicate Citizenship of Parties in Item III)
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FORFEITURE/PENALTY
BANKRUPTCY
OTHER STATUTES
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110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veterans Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property
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PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights
PERSONAL INJURY " 362 Personal Injury Med. Malpractice " 365 Personal Injury Product Liability " 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY " 370 Other Fraud " 371 Truth in Lending " 380 Other Personal Property Damage " 385 Property Damage Product Liability PRISONER PETITIONS
" 610 Agriculture " 620 Other Food & Drug " 625 Drug Related Seizure " " " " " " " " " " "
of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other LABOR 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt.Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act
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400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes
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V. ORIGIN
Original Proceeding
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Transferred from " 6 Multidistrict another district Removed from Remanded from Reinstated or (specify) State Court Appellate Court Reopened Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
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Excessive Force DEMAND $ " CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER F.R.C.P. 23 Jury Award COMPLAINT: VIII. RELATED CASE(S) (See instructions): JUDGE IF ANY
DATE SIGNATURE OF ATTORNEY OF RECORD
CHECK YES only if demanded in complaint: " Yes " No JURY DEMAND: DOCKET NUMBER
12/13/12
FOR OFFICE USE ONLY RECEIPT # AMOUNT
s/ John H. Bryan
APPLYING IFP JUDGE MAG. JUDGE