Full opinion text
MEMORANDUM OPINION AND ORDER IRENE C. BERGER, District Judge. The Court has reviewed Defendants’ Motion for Partial Summary Judgment Against Harry Deakins (Document 179), Defendants’ Motion for Summary Judgment Against Kay Deakins (Document 181), attached exhibits, memoranda in support and in opposition, and the replies. By Standing Order (Document 4) entered on December 21, 2010, this action was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). On April 22, 2013, the Magistrate Judge submitted his Proposed Findings and Recommendation (“PF & R”) (Document 224), wherein he recommends that the Court grant in part and deny in part Defendants’ Motion for Partial Summary Judgment Against Harry Deakins and grant in part and deny in part Defendants’ Motion for Summary Judgment Against Kay Deakins. On May 8, 2013, Defendants timely filed their objections to the PF & R (Document 235) together with attached exhibits (Document 235-1). After thorough review and consideration, the Court finds, for the reasons stated herein, that Defendants’ objections should be overruled and the Magistrate Judge’s PF & R should be adopted. I. BACKGROUND AND PROCEDURAL HISTORY Magistrate Judge VanDervort’s PF & R provides a detailed account of the parties’ previous and current motions. The Court now incorporates by reference those facts and procedural history. To provide context for the ruling herein, the Court provides the following brief summary. On December 21, 2010, Plaintiffs, Harry E. Deakins, Sr. (“Mr. Deakins”) and Kay F. Deakins (“Mrs. Deakins”) filed their Complaint in the United States District Court for the Southern District of West Virginia at Bluefield. (Document 1.) On December 28, 2010, Plaintiffs filed their First Amended Complaint (Document 7) and then on January 3, 2011, they filed their Second Amended Complaint (Document 11). On August 18, 2011, Plaintiffs filed their Motion for Leave to File Third Amended Complaint (Document 60) and memorandum in support (Document 61). By Order entered January 25, 2012, 2012 WL 242859, the Court granted Plaintiffs’ motion. (Document 88.) Plaintiffs filed their Third Amended Complaint on the same day. (“Third Am. Compl.”) (Document 90.) In their Third Amended Complaint, Plaintiffs name the following Defendants: (1) T.S. Pack, Superintendent of the West Virginia State Police; (2) J.C. Long, West Virginia State Trooper; (3) R.J. Jackson, West Virginia State Trooper; (4) J.R. Baker, West Virginia State Trooper; (5) C.M. Wade, West Virginia State Trooper; (6) P.H. Shrewsbury, West Virginia State Trooper; (7) D.B. Rogers, West Virginia State Trooper and Assistant Detachment Commander; (8) D.W. Miller, West Virginia State Trooper; (9) Robin Marvin, West Virginia State Police Telecommunicator; and (10) John and Jane Does 1-7. (Id. at 3-4.) Plaintiffs allege that on or about April 22, 2010, Defendants forcefully entered their home without identifying themselves as West Virginia State Troopers and without presenting Plaintiffs with a search warrant. (Id. at 5-6.) Mr. Deakins alleges that Defendant Jackson, without issuing any commands, used unnecessary and excessive force in arresting him. (Id. at 6.) Similarly, Mrs. Deakins alleges that Defendant Baker, without provocation, used excessive force in arresting her. (Id. at 7.) Furthermore, she asserts that her arrest was unlawful due to the lack of probable cause. (Id.) Plaintiffs also allege that Defendants Long, Jackson, Baker, Wade, Shrewsbury and John Does 1-7 illegally seized a digital camera and two personal computers. (Id. at 9.) Mr. Deakins alleges that in transport to the police station, Defendant Jackson sprayed him twice with pepper spray when he was handcuffed in the back seat of the police cruiser. (Id. at 10.) Plaintiffs allege that they both requested medical attention upon their arrival at the Princeton State Police Detachment. (Id.) Subsequently, Mr. Deakins alleges that Defendant Long repeatedly hit him in the face, without provocation, while Defendant Jackson choked him and violently twisted his nose. (Id. at 11.) He further alleges that Defendants Long and Jackson made several derogatory remarks regarding his appearance and religion. (Id. at 10-12.) He asserts that Defendant Rogers was present at the Detachment and had explicit knowledge of the beatings but did “absolutely nothing to intervene or assist him.” (Id. at 12.) Plaintiffs allege that they were both transported to Princeton Community Hospital emergency room to be treated for injuries sustained as a result of Defendants Jackson, Long, and Baker’s use of excessive force. (Id. at 12-13.) Mr. Deakins further alleges that in transport to the hospital, Defendant Jackson, again, sprayed him with pepper spray, without provocation. (Id.) Based upon the foregoing, Plaintiffs contend that Defendant Pack failed to adequately train and supervise his employees and was negligent in his hiring, disciplining and retention. (Id. at 16.) Moreover, Plaintiffs allege that Defendant Pack was negligent in failing to have a written policy in effect or one that was followed by the Princeton Detachment of the West Virginia State Police and all named defendants. (Id.) Plaintiffs contend that Defendants’ aforementioned actions constitute an unreasonable search and seizure, excessive force, assault and battery and false arrest of Mrs. Deakins. (Id. at 2.) As a result of Defendants’ conduct, Plaintiffs allege that they suffered physical injuries as well as humiliation, shame, degradation, embarrassment and monetary loss. (Id. at 14.) Plaintiffs assert that Defendants’ actions violated their rights under the Fourth, Fifth and Fourteenth Amendments as well as the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, and 1988, West Virginia common law, and Article III, Sections 1, 6 and 10 of the Constitution of the State of West Virginia. (Id. at 1.) On November 5, 2012, Defendants Pack, Long, Jackson, Baker, Wade, Shrewsbury, and Rogers filed their Motion for Partial Summary Judgment Against Harry Deakins (Document 179), attached exhibits and a memorandum in support (Document 180.) Defendants argue that they are entitled to summary judgment against Mr. Deakins on: (1) his allegations of unlawful arrest, (2) all claims against Defendant Pack, (3) his claim based upon illegal seizure of two computers and a camera and (4) any bystander liability claims against Defendants Rogers and Shrewsbury. (Id. at 4-13.) First, Defendants explain that Mr. Deakins’ arrest was lawful because there was a valid warrant for his arrest, the Troopers knew that he was inside the house and he attacked Defendant Jackson. (Id. at 4-5.) Moreover, Defendants contend that his claim of unreasonable search and seizure is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). (Id. at 6-7.) Second, Defendants contend that there is no evidence that Defendant Pack had any personal involvement in the alleged incident or that he negligently trained or supervised the Defendant Troopers. (Document 180 at 7-9.) Third, Defendants argue that the electronics were legally seized because they believed that they may contain footage of the attack against them. (Id. at 9-12.) Finally, Defendants argue that there is no evidence to support claims of bystander liability against Defendants Rogers and Shrewsbury. (Id. at 13.) On November 19, 2012, Mr. Deakins filed his Response in Opposition (Document 186) and attached exhibits. As a preliminary matter, Mr. Deakins asserts that contrary to Defendants’ contentions, he did not sue Defendants for false arrest or for intentional infliction of emotional distress. (Id. at 2.) He also states that the claims against Defendants Shrewsbury and Rogers are not for “bystander liability” as Defendants allege, but are for conspiracy pursuant to 42 U.S.C. § 1983. (Id. at 11-12.) Next, Mr. Deakins objects to and moves to strike all eight of the exhibits attached to Defendants’ motion for partial summary judgment because they have not been properly authenticated, constitute hearsay, are irrelevant and inadmissible and are not “proper summary judgment evidence.” (Id. at 3.) Finally, Mr. Deakins argues that Defendants’ motion should be denied because there is sufficient evidence to create a genuine issue of material fact as to his claims. (Id. at 10-11.) Specifically, he contends that there are material facts in dispute concerning Defendants entry into his home and the seizure of his computers and digital camera. (Id. at 13-16.) Mr. Deakins also asserts that the exhibits attached to his response in opposition contradict Defendants’ evidence and, therefore, Defendants are not entitled to qualified immunity and their motion should be denied. (Id. at 10-11, 17-18.) In closing, Mr. Deakins notes that Defendants did not specifically contest Plaintiffs’ state law pendent claims, pursuant to W. Va. Code 61 — 6—21(b). (Id. at 18-19.) Therefore, he argues that summary judgment is inappropriate. (Id. at 19.) On November 27, 2012, Defendants filed their reply to Harry Deakins’ response in opposition and attached exhibit. (Document 188.) First, Defendants argue that Mr. Deakins’ request to strike all of the exhibits attached to their motion for partial summary judgment should be denied because the exhibits are proper under Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure. (Id. at 8-9.) Second, they assert Defendants Rogers and Shrewsbury are entitled to summary judgment because Mr. Deakins lacks evidence sufficient to prevail on a conspiracy claim. (Id. at 9-12.) Finally, Defendants contend that the computers and digital camera were lawfully seized or, at the very least, they are entitled to qualified immunity with respect to the seizure. (Id. at 12-15.) Also on November 5, 2012, Defendants Pack, Long, Jackson, Baker, Wade, Shrewsbury, and Rogers filed their Motion for Summary Judgment Against Kay Deakins (Document 181), attached exhibits, and a memorandum in support (Document 182). Defendants argue Mrs. Deakins has forfeited her right to present evidence in opposition to the Defendants’ motion for summary judgment by invoking her Fifth Amendment right to remain silent and refusing to answer any questions at her deposition. (Id. at 1-2.) Therefore, Defendants contend that there are no genuine issues of material fact and their motion for summary judgment must be granted. (Id. at 2.) First, Defendants assert that Mrs. Deakins was lawfully arrested and there is no evidence to support her claim of excessive force, and thus, she cannot establish a claim for intentional infliction of emotional distress. (Id. at 9.) Second, Defendants argue that Plaintiffs’ computers and camera were legally seized “or, at the very least, [the decision to seize them] did not violate any clearly established constitutional rights of which the Troopers should have known.” (Id. at 10.) Therefore, Defendants contend that they are entitled to qualified immunity with regard to any claim that they improperly took her computers and camera. (Id. at 13.) Third, Defendants assert that Mrs. Deakins cannot establish a prima facie case of supervisory liability as there is no evidence of an underlying constitutional violation. (Id. at 13-14.) Finally, Defendants contend that even if Mrs. Deakins were permitted to offer evidence in opposition to their motion for summary judgment, she lacks evidence to support most of her claims. (Id. at 14-15.) Specifically, Defendants contend that they would still be entitled to summary judgment as to all of her claims except those against Defendant Baker for excessive force and intentional infliction of emotional distress. (Id.) On December 19, 2012, Plaintiff Kay Deakins filed her response in opposition to Defendants’ Motion for Summary Judgment (Document 189) and attached exhibits. Mrs. Deakins states that she “fully incorporates” her husband, Harry E. Deakins, Sr.’s, response in opposition (Document 186) and all of his attached exhibits by reference. (Document 189 at 1-2). First, Mrs. Deakins explains that she “sued for being ‘purposely deprived by Defendants[ ] of her right to be free from excessive force/ violence, unreasonable force, and assault and battery’ ” and has brought claims for “unlawful/false arrest” and illegal search and seizure of two computers and one digital camera. (Id.) Next, Mrs. Deakins objects to and moves to strike Defendants’ Exhibits A, B, F, G, H, I, and J on the grounds that the items have not been properly authenticated, are irrelevant and inadmissible, constitute hearsay, and are not proper summary judgment evidence. (Id. at 7.) Mrs. Deakins relies upon Mr. Deakins’ response in opposition (Document 186) in arguing that: (1) her claims are “supported by sufficient evidence to create a genuine issue of material fact[;]” (2) Defendants illegally seized two computers and one digital camera; and (3) Defendants are not entitled to qualified immunity. (Document 189 at Ibid.) Finally, Mrs. Deakins contends that because Defendants neither objected to her invoking her right to remain silent, nor filed a motion to compel her answers, they have waived their right to challenge her assertion of her Fifth Amendment privilege. (Id. at 16-17.) On December 28, 2012, Defendants filed their Reply to Plaintiff Kay Deakins’ Response in Opposition (Document 190) and attached exhibit. First, Defendants argue that Mrs. Deakins’ request that the exhibits attached to Defendants’ motion for summary judgment be stricken should be denied because the documents are proper under Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure. (Id. at 2-8.) Second, they assert that they were not required to move to compel Mrs. Deakins to provide answers after she had invoked her right to remain silent and refused to answer questions related to the incident giving rise to the lawsuit. (Id. at 9-10.) Third, Defendants argue that Mrs. Deakins’ claim of false arrest fails because she was convicted of three charges stemming from her attack on Defendant Baker, and thus, there was probable cause for her arrest. (Id. at 10-11.) Fourth, they contend that Mrs. Deakins lacks evidence of wrongdoing by Defendants Shrewsbury and Roger and cannot establish a claim for a civil conspiracy. (Id. at 11-15.) Fifth, Defendants argue that the computers and digital camera were lawfully seized, or in the alternative, they are entitled to qualified immunity. (Id. at 15-17.) Lastly, Defendants stress that because Mrs. Deakins invoked her right to remain silent, she is precluded from presenting evidence in opposition to their motion and, therefore, cannot defeat their motion for summary judgment. (Id. at 17-18.) On April 22, 2013 the Magistrate Judge submitted his PF & R (Document 224.) On May 8, 2013, Defendants timely filed their objections to the same. (Document 235.) Plaintiffs did not file any objections and although the Court granted Plaintiffs’ motion to file a response to Defendants’ objections (Document 259), they did not do so. II. STANDARDS OF REVIEW A. Magistrate’s PF & R This Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, this Court need not conduct a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). When reviewing portions of the PF & R de novo, the Court will consider the fact that Plaintiff is acting pro se, and his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir.1978). B. Motion for Summary Judgment The well-established standard in consideration of a motion for summary judgment is that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (emphasis added); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Material facts are those necessary to establish the elements of a party’s cause of action.” Rawls v. Associated Materials, LLC., No. 1:10-cv-01272, 2012 WL 3852875, at *2 (S.D.W.Va. Sept. 5, 2012) (Faber, J.) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A “genuine” dispute concerning a “material” fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party’s favor. (Id.) “Even if there is no dispute as to the evidentiary facts, summary judgment is not appropriate when the parties dispute ultimate factual conclusions.” Rawls, 2012 WL 3852875 at *2 (citing Overstreet v. Kentucky Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir.1991)(emphasis added)). “If the moving party meets its burden under Rule 56(a), then the non-moving party must set forth specific facts that would be admissible in evidence that demonstrate the existence of a genuine issue of fact for trial.” Rawls, 2012 WL 3852875 at *2 (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548). The non-moving party must offer some “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. In other words, “the non-moving party must come forward with more than ‘mere speculation or the building of one inference upon another’ to resist dismissal of the action.” Perry v. Kappos, 489 Fed.Appx. 637, 640 (4th Cir.2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985)). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If factual issues exist that can only be resolved by a trier of fact because they may reasonably be resolved in favor of either party, summary judgment is inappropriate. Anderson, 477 U.S. at 250,106 S.Ct. 2505. III. DISCUSSION A. The Magistrate Judge’s PF & R i. Defendant’s Motion for Partial Summary Judgment Against Harry Deakins a. Mr. Deakins’ Request to Strike Exhibits In response to Defendant’s motion, Mr. Deakins argues that all eight of Defendants’ Exhibits should be stricken as they have not been properly authenticated, constitute hearsay, are irrelevant and inadmissible, and are not “proper summary judgment evidence.” (Document 186 at 3.) In reply, Defendants argue that Mr. Deakins’ request should be denied. (Document 188 at 3-9.) Magistrate Judge VanDervort correctly found that Mr. Deakins’ request to strike Defendants’ Exhibits should be denied because the Court may consider them pursuant to Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure. (PF & R at 752.) Rule 56(c)(1)(A) provides that “[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials.” Fed. R.Civ.P. 56(c)(1)(A). The Magistrate Judge stressed that “[a] party may object that the material cited to support or, dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2) (emphasis added.) In other words, documents submitted in support of summary judgment are no longer required to be authenticated. (PF & R at 752) (citing Akers v. Beal Bank, 845 F.Supp.2d 238, 243 (D.D.C.2012), aff'd, 2012 WL 4774676 (D.C.Cir.2012)). First, he considered Defendants’ Exhibit A, a copy of the Grand Jury Indictment, Plea Agreement, and Sentencing Order in Commonwealth of Virginia v. Harry Edwards Deakins, Case Nos. 10-156-00; 156-01; 156-02 (Cir. Ct. Tazewell Co., April 28, 2011). (Document 179-1.) He noted that the documents are stamped “a copy teste” and are signed by the Deputy Clerk of Circuit Court of Tazewell County, Virginia. (PF & R at 752) (citing Document 179-1 at 2, 5, and 9.) The Magistrate explained that in Virginia a document stamped “a copy teste” is a certified copy verifying that the instrument is a genuine copy. (PF & R at 752.) A certified copy of a public record is self-authenticating. Fed.R.Evid. 902(4). Therefore, the Magistrate Judge found that the documents comprising Exhibit A (Document 179-1) are properly authenticated. The Magistrate Judge then considered Defendants’ Exhibits B, F, G, and H. (PF & R at 753-54.) Defendants’ Exhibit B is a copy of the Arrest Warrants for Harry Deakins issued by the Tazewell County General District Court dated February 3, 2010 (Document 179-2 at 2-3) and a copy of a • “Warrant for Arrest — For Fugitive from Justice” issued by the Magistrate Court of Mercer County on April 22, 2010. (Id. at 4-5.) Exhibit F consists of a copy of the “Criminal Case History” and “Guilty or No Contest Plea” in State v. Harry Edward Deakins, Case No. 10-M-1236, filed in the Magistrate Court of Mercer County, West Virginia. (Document 179-6.) Exhibit G is a copy of the “Indictment for: Attempt to Disarm a Police Officer, Battery on a Police Officer, and Brandishing a Deadly Weapon” and an Order Accepting Plea of Guilty in State v. Anthony Todd Deakins, Case No. 10-F-216 (Cir. Ct. Mercer County). (Document 179-8.) Exhibit H is a copy of the “Criminal Case History” in State v. Kay F. Deakins, Case Nos. 10-M-1238, 1239, 1240, 1241, filed in the Magistrate Court of Mercer County, West Virginia (Document 179-8.) The Magistrate Judge noted that all of the above Exhibits are copies of state court records. (PF & R at 753.) Therefore, he found that Exhibits B (Document 179-2), F (Document 179-6), G (Document 179-7), and H (Document 179-8) can be considered in a motion for summary judgment because they can be submitted in authenticated form at trial. (Id. at 720.) Next, the Magistrate Judge reviewed Exhibits C, D, and E and found that they are also properly considered on a motion for summary judgment. (PF & R at 753.) Exhibit C is a copy of “Defendants’ Responses to Plaintiffs’ Second Set of interrogatories, Second Request for Production of Documents and Requests for Admissions.” (Document 179-3.) Exhibit D is a copy of “Plaintiff Harry E. Deakins, Sr. Second Supplemental Responses to Defendants’ Second Set of Interrogatories, Document Requests and Requests for Admissions.” (Document 179^4.) Exhibit E is a copy of “Plaintiff Harry E. Deakins, Sr. Amended Supplemental Responses to Defendants First Set of Interrogatories, Requests for Admissions and Requests for Production.” (Document 179-5.) The Magistrate Judge found that the Court may consider Exhibit C (Document 179-3) pursuant to Rule 56(c)(1)(A), which provides that a party may submit declarations, admissions or interrogatory answers in support of a motion for summary judgment. (PF & R at 753.) He also found that the Court may consider Exhibits D (Document 179-4) and E (Document 179-5) because they are Mr. Deakins’ own responses to Defendants’ written discovery requests, and thus, are authenticated. (Id.) (citing Rupe v. Cate, 2011 WL 4889211 (E.D.Cal. Oct. 13, 2011) (“Exhibits F and I have been authenticated because they are in Plaintiffs own writings.”)) Finally, the Magistrate Judge reviewed Exhibit I, a copy of the transcripts from the “Video Deposition of Harry E. Deakins, Sr.” (Document 179-9). He found that the Court may consider it because Rule 56(c)(1)(A) provides that a party may submit depositions in support of a motion for summary judgment. (PF & R at 753-54.) Moreover, he noted that the deposition may be authenticated based upon the “Reporter’s Certificate.” (PF & R at 754) (citing Document 179-9 at 12-13.) Therefore, he found that Exhibit I (Document 179-9) could be considered by the Court. Based upon the foregoing, the Magistrate Judge found that all of Defendants’ Exhibits (A, B, C, D, E, F, G, H, and I) could be considered in support of their motion for summary judgment. (PF & R at 752-54.) Accordingly, he found that Plaintiff Harry Deakins’ request to strike the exhibits should be denied. (Id. at 721.) b. Mr. Deakins’ Claim of Unlawful Arrest In their motion, Defendants argue they are entitled to summary judgment as to Mr. Deakins’ claim of unlawful arrest because they lawfully entered his residence based upon a valid arrest warrant, their knowledge that he was inside the residence, and his attack on Defendant Jackson. (Document 180 at 5-7.) Moreover, Defendants assert that since Mr. Deakins pled guilty to the charge that gave rise to his arrest warrant and to the charge stemming from his attack on Defendant Jackson, he cannot now bring a lawsuit, which if successful, would question the validity of his convictions. (Id. at 6-7) (citing Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)). In response, Mr. Deakins asserts that Defendants’ arguments are irrelevant since he did not “sue for unlawful, wrongful, and/or false arrest.” (Document 186 at 2.) Rather, Mr. Deakins alleges that Defendants unlawfully entered his home to effectuate his arrest in violation of the Fourth Amendment. (Id. at 8-9.) Moreover, he contends no exigent circumstances existed at the time of his arrest to justify Defendants entering his home without a search warrant. (Id. at 8-9,14.) The Magistrate Judge correctly found that Defendants’ Partial Motion for Summary Judgment should be granted to the extent Mr. Deakins is challenging the validity of his arrest. (PF & R at 754-55.) He noted that Mr. Deakins appears to be challenging the lawfulness of his arrest on April 22, 2010, by implying that alleged constitutional violations that occurred during the course of his arrest render his convictions invalid. (PF & R at 755.) The Magistrate Judge relied upon the holding in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), to find that Mr. Deakins’ claims of unlawful arrest should be dismissed. (PF & R at 755.) In Heck, the United States Supreme Court held that: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing the relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. The Magistrate Judge noted that there is no evidence that Mr. Deakins’ criminal convictions have been invalidated. (PF & R at 755.) Therefore, based upon the holding in Heck, the Magistrate Judge found that Mr. Deakins’ claims are not cognizable under § 1983.(M) Accordingly, he recommended that Mr. Deakins’ claims of unlawful arrest be dismissed. (Id.) c. Qualifíed Immunity as to Seizure of Electronics In their motion, Defendants argue that they are entitled to summary judgment as to Mr. Deakins’ claim of unlawful seizure of two computers and a digital camera from his residence. (Document 180 at 9.) Defendants explain that upon entering the property, the Defendant Troopers noticed surveillance equipment, and once inside the home, Defendant Long saw Mr. Deakins pointing a camera at him. (Id. at 9) (citing Document 179-3 at 4, 25.) Because the Defendant Troopers “reasonably believed that [the] electronic equipment, located where the arrest occurred, could contain evidence of [the attacks upon them],” Defendants contend that the decision to seize the electronics was appropriate. (Id. at 9-14). If not, they argue that Defendants Long, Jackson, Baker, and Wade are entitled to qualified immunity because “it was a reasonable mistake and did not violate any clearly established constitutional right of which these trooper[s] should have know[n].” (Id. at 9, 14) (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”)); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In response, Mr. Deakins argues that Defendants’ seizure was unlawful because the electronics were “outside of our Svingspan’ and/or ‘grabbable’ area [incidental to arrest]” and there were no surveillance cameras inside the home which could have contained evidence of the incident. (Document 186 at 14-15.) Mr. Deakins further asserts that Defendants did not have a search warrant, there were no exigent circumstances to justify a warrantless search and seizure, and “there was no incriminating evidence of a crime ... that was ‘immediately apparent’ at the time of said seizure.” (Id. at 14-17.) Therefore, Mr. Deakins asserts that Defendants violated his Fourth Amendment right to be free from unreasonable searches and seizures. (Id. at 16.) In reply, Defendants stress that Mr. Deakins does not dispute the fact that he was pointing a camera at the Defendant Troopers when they entered his home. (Document 188 at 13.) They argue that the Defendant Troopers’ belief that the computers may have been connected to the surveillance system was reasonable. (Id.) Therefore, they assert that the seizure of the electronics was appropriate and if not, they are entitled to qualified immunity. (Id. at 13-14.) Before considering the parties’ arguments, the Magistrate Judge set forth applicable case law concerning qualified immunity for government officials and reasonable searches and seizures under the Fourth Amendment of the United States Constitution. (PF & R at 756-58.) First, he explained that in determining whether a government official is entitled to qualified immunity, a Court should consider “(1) whether the facts viewed in the light most favorable to the Plaintiff establish a deprivation of an actual constitutional right; and (2) whether the right was clearly established at the time of the purported violation.” (Id. at 24) (citing Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). With regard to the first prong of the test, he recognized that people have a constitutional right to be free from “unreasonable searches and seizures.” (Id.) (quoting U.S. Const, amend. IV.) He explained that “[w]arrentless searches are per se unreasonable unless the United States shows that the search falls within an established exception.” (Id.) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). One of the established exceptions to the warrant requirement is known as the plain view doctrine. (Id. at 24-25) (citing Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). The Magistrate Judge explained that “[a]n officer may seize incriminating evidence in plain view without a warrant [ ] as long as the officer arrives in the place where the evidence is plainly viewed without violating the Fourth Amendment and the incriminating nature of the evidence is immediately apparent.” (Id.) (citing Horton, 496 U.S. at 136, 110 S.Ct. 2301; United States v. Jackson, 131 F.3d 1105, 1108 (4th Cir.1997)). He noted that the incriminating character of an item is “immediately apparent” if an officer has probable cause to believe that it is associated with criminal activity. (Id. at 25.) He explained that probable cause requires “[a] ‘practical, nontechnical’ probability that incriminating evidence is involved.” (Id.) (citing Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (citation omitted)). With regard to the second prong of the qualified immunity test, he found that “all of the foregoing principles'were clearly established, and a reasonable officer would have been aware of these - rights, at the time the challenged conduct occurred in the instant case.” (Id. at 26.) Upon review of the record, the Magistrate Judge found that Defendants are not entitled to qualified immunity for the seizure of Mr. Deakins’ two personal computers. (Id. at 26-27.) He considered the totality of the circumstances and found that Defendants did not have probable cause to believe that the computers contained evidence of the attack against them. (Id. at 26.) He outlined the basic facts as follows: (1) upon entering Mr. Deakins’ property, Defendants noticed surveillance cameras; (2) once inside the home, Defendants contend that they were attacked by Mr. Deakins, Mrs. Deakins, and Anthony Deakins; and (3) Defendants seized the computers based upon their belief that they were connected to the surveillance cameras and contained evidence of the attack against them. (Id.) The Magistrate Judge emphasized that there is no evidence that Defendants saw surveillance cameras inside the home, where the attack occurred. (Id.) Based upon the foregoing, the Magistrate Judge found that “a reasonable officer would not have concluded that the computers contained incriminating evidence allowing a warrantless seizure.” (Id. at 26-27.) He stressed that qualified immunity does not protect officers from objectively unreasonable mistakes. (Id. at 27) (citing Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.2011), cert. denied.). Therefore, the Magistrate Judge concluded that “Defendants are not entitled to qualified immunity because the facts viewed in the light most favorable to Mr. Deakins establish a deprivation of an actual constitutional right, which was clearly established at the time of the purported violation.” (Id.) Next, the Magistrate Judge found that Defendants are entitled to qualified immunity for the seizure of the digital camera because they had probable cause to believe it contained evidence of a crime. (Id. at 27-28.) He noted that upon entering the residence, Defendant Long saw Mr. Deakins pointing a camera in his direction and soon thereafter Defendants were attacked by Mr. Deakins, Mrs. Deakins, and Anthony Deakins. (Id.) (citing Document 179-3 at 4.) Defendants state that they seized the camera because they believed it may have contained evidence of the attack. (Id.) The Magistrate Judge reiterated that an officer may seize evidence in plain view without a warrant if he lawfully occupies the place from which the item is plainly viewed and the incriminating character of the item is immediately apparent. (Id. at 27. ) Based upon the foregoing, he found that Defendants are entitled to qualified immunity for the warrantless seizure of Mr. Deakins’ digital camera. (Id. at 27-28. ) d. Claim of Conspiracy on Part of Defendants Rogers and Shrewsbury In their Partial Motion for Summary Judgment, Defendants argue that there is no evidence to support Mr. Deakins’ claims of bystander liability against Defendants Rogers and Shrewsbury because Mr. Deakins concedes that he does not know: (1) where Defendants Rogers and Shrewsbury were at the time excessive force was allegedly used against him at the detachment; (2) whether they were aware that such force was being used against him; or (3) whether they had the opportunity to stop it. (Document 180 at 12-13.) In response, Mr. Deakins states that his claims against Defendants Rogers and Shrewsbury are for conspiracy pursuant to 42 U.S.C. § 1983, not for “bystander liability.” (Document 186 at 11.12.) In reply, Defendants argue that there is no evidence to support such a claim. (Document 188 at 9-12.) The Magistrate Judge correctly set forth the applicable law concerning civil conspiracies under Section 1983. (PF & R 758-60.) He noted that in order to establish such a claim, a plaintiff must present evidence that “the defendants conspired or acted jointly or in concert and that some overt act was done in furtherance of the conspiracy, which resulted in plaintiff being deprived of the constitutional right.” (Id. at 726) (quoting Hafner v. Brown, 983 F.2d 570, 577 (4th Cir.1992)). He stressed that to survive a motion for summary judgment, a plaintiff must provide evidence that “at least, reasonably lead[s] to the inference that Defendants positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan.” (Id.) (quoting Horton v. Dobbs, 2011 WL 3606369, at *29 (N.D.W.Va. July 11, 2011.)) Upon a review of the record, the Magistrate Judge found that there is no evidence that Defendants Rogers or Shrewsbury conspired to allow Defendants Long and Jackson to use excessive force upon Mr. Deakins or personally observed a violation of the law and did nothing to prevent it. (PF & R at 758-60.) Although, in their affidavits, Mr. Deakins, Mrs. Deakins, and Anthony Deakins state that Defendants Rogers and Shrewsbury were present and had personal knowledge of the alleged use of excessive force (see, Document 186-1 at 32, 36, 40-41), the Magistrate Judge found that Mr. Deakins’ and Anthony Deakins’ statements are conclusory and improper. (PF & R at 759.) He noted that neither of them affidavits contains facts indicating that Defendants Shrewsbury or Rogers were present or aware of the use of excessive force. (Id. at 759-60.) As to Mrs. Deakins’ affidavit, the Magistrate Judge found that it should be disregarded and stricken because she invoked her Fifth Amendment right to remain silent during her deposition. (Id.) (citing In re Edmond, 934 F.2d 1304, 1308-09 (4th Cir.1991)). Based upon the lack of evidence, the Magistrate Judge found that Mr. Deakins failed to state a cognizable claim for conspiracy. (PF & R at 760) (“Mere conclusory allegations of conspiracy do not demonstrate the ‘meeting of the minds’ element and therefore, fails to state a cognizable claim.”) (quoting Brown v. Angelone, 938 F.Supp. 340, 346 (W.D.Va.1996)). Accordingly, the Magistrate Judge recommended that summary judgment be granted to Defendants Rogers and Shrewsbury as to Mr. Deakins’ civil conspiracy claim. (Id.) e. Claim Against T.S. Pack In their motion, Defendants argue that there is no evidence to support any of the claims against Defendant Pack, and thus, he is entitled to summary judgment. (Document 180 at 7-9.) In support, Defendants stress that there is no evidence that: (1) the Defendant Troopers were negligently trained or supervised; (2) Defendant Pack had any personal involvement in the April 22, 2010 incident; or (3) that Defendant Pack had reason to know that such an incident would occur. (Id. at 8-9.) Mr. Deakins’ response does not address Defendant Pack’s request that he be granted summary judgment. (Document 186). In reply, Defendants argue that Mr. Deakins has conceded that summary judgment should be granted as to Defendant Pack. (Document 188 at 3.) The Magistrate Judge correctly found that “[bjecause vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” (PF & R at 760) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). He noted that in order to hold a supervisory defendant liable under Section 1983, a plaintiff must show the following: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices;’ and (3) that there was an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff. (PF & R at 761) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994)). Based upon a review of the record, he found that there is “no evidence indicating that Defendant Pack was aware of an unreasonable risk of harm or misconduct by Defendant Troopers and failed to take corrective action.” (PF & R at 761.) Moreover, he stressed that there is no evidence that Defendant Pack: (1) was aware of misconduct by any Defendant Troopers; (2) failed to adequately train or supervise them; or (3) had any personal involvement in the alleged incident occurring on April 22, 2010. (Id.) Because Mr. Deakins has failed to establish the requisite elements of his claim against Defendant Pack, the Magistrate Judge recommended that Defendants’ motion for summary judgment be granted as to Defendant Pack. (Id.) it Defendant’s Motion for Summary Judgment Against Kay Deakins a. Mrs. Deakins’ Request to Strike Exhibits In response to Defendants’ Motion for Summary Judgment, Mrs. Deakins moves to strike Defendants’ Exhibits A, B, F, G, H, I & J. (Document 180 at 7.) In support, she argues that the Exhibits have not been authenticated, constitute hearsay, are irrelevant and inadmissible, and are not proper summary judgment evidence. (Id.) In reply, Defendants argue that Mrs. Deakins’ request should be denied because the Exhibits are proper under Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure. (Document 190 at 2-8.) First, the Magistrate Judge reiterated the applicable law concerning proper summary judgment evidence pursuant to Rule 56(c)(1)(A). Fed.R.Civ.P. 56(c)(1)(A); (see supra Part III, A, i, a.) Then, he considered Mrs. Deakins’ argument that Defendants’ Exhibits A, B, F, G, H, I and J are not properly authenticated. (PF & R at 762.) He noted that Mr. Deakins made the same objections, and therefore, relied on his reasoning above (see supra Part III, A, i, a) in finding that “Exhibits A, B, F, G, and H are properly authenticated and appropriate for consideration concerning Defendants’ Motion for Summary Judgment.” (PR & R at 762) Next, he considered Mrs. Deakins’ argument that Defendants’ Exhibits are irrelevant and inadmissible. (Id.) He recognized that Rule 404(b)(1) of the Federal Rules of Evidence provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). However, “[tjhis evidence may be admissible for another purpose, such as providing motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). Based upon the foregoing, the Magistrate Judge determined that Defendants’ Exhibits A and B are relevant and can be admissible evidence. (PF & R at 762-63.) Exhibit A is a copy of the Grand Jury Indictment, Plea Agreement, and Sentencing Order as filed in Commonwealth of Virginia v. Harry Edwards Deakins, Case No. CR-10-156-00; 156-01; 156-02 (Cir. Ct. Tazewell Co., April 28, 2011) (Document 181-1.) Exhibit B is a copy of Arrest Warrants for Harry Deakins issued by the Tazewell County General District Court dated February 3, 2010 (Document 181-2 at 2-3) and a copy of a “Warrant for Arrest — For Fugitive from Justice” issued by the Magistrate Court of Mercer County on April 22, 2010. (Id. at 4-5.) The Magistrate Judge found that the above Exhibits can be admissible and are relevant evidence because Defendants assert that they properly entered the Deakins’ residence on April 22, 2010, to execute an arrest warrant for Mr. Deakins, based upon the Tazewell County Indictment. (Document 190 at 5-6.) Accordingly, he found that Exhibits A (Document 181-1) and B (Document 181-2) may be considered on a motion for summary judgment. (Id.) The Magistrate Judge then considered Exhibits F (Document 181-6), G (Document 181-7), and H (Document 181-8). Exhibit F is a copy of the “Criminal Case History” and “Guilty or No Contest Plea” in State v. Harry Edward Deakins, Case No. 10-M-1236 filed in the Magistrate Court of Mercer County, West Virginia. (Document 181-6.) Exhibit G is a copy of the “Indictment for: Attempt to Disarm a Police Officer, Battery on a Police Officer, and Brandishing a Deadly Weapon” and an Order Accepting Plea of Guilty filed in State v. Anthony Todd Deakins, Case No. 10-F-216 (Cir. Ct. Mercer County). (Document 181-7.) Exhibit H is a copy of the “Criminal Case History” in State v. Kay F. Deakins, Case Nos. 10-M-1238, 1239, 1240, 1241, filed in the Magistrate Court of Mercer County, West Virginia. (Document 181-8.) Defendants argue that the above documents are relevant and admissible because when the Defendant Troopers entered the Deakins’ residence on April 22, 2010, to execute the arrest warrant for Mr. Deakins, they were attacked by Mr. Deakins, Mrs. Deakins, and Anthony Deakins. (Document 190 at 6-8.) Moreover, Defendants contend that Mrs. Deakins’ unlawful arrest claim is precluded by the holding in Heck due to her convictions outlined in Exhibit H. (See, id. at 7, 10-11) (citing Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)). Based upon the foregoing, the Magistrate Judge found that the documents contained in Exhibits F (Document 181-6), G (Document 181-7), and H (Document 181-8) are relevant and admissible, and thus, may be considered on a motion for summary judgment. (PF & R at 763.) Finally, the Magistrate Judge considered Defendants’ Exhibits I and J and found that they may be considered on a motion for summary judgment. (PF & R at 763-64.) Exhibits I (Document 181-9) and J (Document 181-10) are copies of Mr. and Mrs. Deakins’ respective video depositions. The Magistrate Judge noted that deposition testimony is proper evidence to support a motion for summary judgment. (PF & R at 763) (citing Fed.R.Civ.P. 56(c)(1)(A)). He also found that the depositions contain relevant and admissible evidence and may be authenticated based upon the “Reporter’s Certificate.” (Id.) Based upon the foregoing, the Magistrate Judge found that Mrs. Deakins’ request to strike Defendants’ Exhibits should be denied. (Id.) b. Fifth Amendment Privilege In their Motion, Defendants argue that Mrs. Deakins’ refusal to answer questions at her deposition precludes her from offering evidence in opposition to their motion for summary judgment, and therefore, her claims must be dismissed. (Document 182 at 5-9.) In support, Defendants rely on various district court cases from other circuits. (Id. at 7-9.) Defendants stress that “a litigant in a civil action is not permitted to invoke the Fifth Amendment as a shield and then utilize this protection as a sword.” (Id. at 5.) (citing Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958); In re Edmond, 934 F.2d 1304, 1308 (4th Cir.1991.)) They contend that because their evidence establishes that there are no genuine issues of material fact and Mrs. Deakins’ has forfeited her right to present evidence in opposition, their motion for summary judgment must be granted. (Id. at 1-2, 7-9.) In response, Mrs. Deakins argues that because Defendants failed to move to compel her deposition answers they have waived their right to challenge her invocation of the Fifth Amendment privilege. (Document 189 at 16.) Also, she disagrees with Defendants’ assertion that she did not answer “a single question at her deposition.” (Id.) (quoting Document 182 at 7.) She notes that Defense Counsel could have continued asking her questions for seven hours and “did not need to abruptly end the deposition.” (Id. at 16-17.) In reply, Defendants emphasize that because Mrs. Deakins invoked her right to remain silent, she is prevented from presenting evidence in opposition, and therefore, cannot withstand Defendant’s motion for summary judgment. (Document 190 at 17-18.) Defendants contend that because Mrs. Deakins cannot offer evidence in opposition to their motion, “the evidence in support of [their] [motion for summary judgment] is clear.” (Id. at 9.) Defendants note that “even if Plaintiff was allowed to present evidence the record establishes that: (1) she was lawfully arrested; (2) the property was lawfully seized or the troopers are entitled to qualified immunity; and (3) defendants Pack, Rogers, and Shrewsbury should be dismissed.” (Id. at 2.) Defendants also take issue with Mrs. Deakins’ claim that she answered “every question” before invoking her right to remain silent. (Id. at 9.) Defendants stress that although she answered introductory questions, such as “[c]an you please state your full name for the record?” (Document 181-10 at 5), she “clearly declined to answer any questions related to the incident giving rise to this lawsuit.” (Document 190 at 9.) Therefore, Defendants contend that “they took [Mrs. Deakins] at her word and concluded the deposition.” (Id. at 10.) First, the Magistrate Judge set forth the applicable case law concerning the Fifth Amendment of the United States Constitution, specifically the right to remain silent. (PF & R at 764-66.) The Fifth Amendment provides in pertinent part that “[n]o person ... shall be compelled in any criminal case to be a witness against himself....” (U.S. Const, amend. V.) The Magistrate Judge correctly noted that the Fifth Amendment right to remain silent may also be asserted in a civil case, in response to a deposition question, if the answer might incriminate the deponent in a future criminal proceeding. (PF & R at 764) (citing Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973.)) In this case, Defendants concede that Mrs. Deakins had the right to remain silent. (Document 182 at 5.) Then, he explained the possible ramifications of asserting one’s Fifth Amendment privilege. (PF & R at 764-66.) He noted that a court may not make a litigant’s assertion of her Fifth Amendment privilege “costly” by, for example, forcing her to choose between the Fifth Amendment privilege and dropping her lawsuit or by requiring her to pursue her lawsuit and thereby exposing herself to criminal liability. (Id. at 733) (citing Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1087-88 (5th Cir.1979)). However, the Magistrate Judge recognized that a “plaintiff who retreats under the cloak of the Fifth Amendment cannot hope to gain an unequal advantage against the party he [or she] has chosen to sue. To hold otherwise would, ... enable plaintiff to use his [or her] Fifth Amendment shield as a sword.” (PF & R at 766) (quoting Wehling, 608 F.2d at 1088) (citations omitted.) He explained that courts should consider both a plaintiffs interest in her rights under the Fifth Amendment and also any disadvantage suffered by the opposing party. (PF & R at 766) (citing Wehling, 608 F.2d at 1088; Serafino v. Hasbro, Inc., 82 F.3d 515, 518 (1st Cir.1996) (“while a trial court should strive to accommodate a party’s Fifth Amendment interest ... it must also ensure that the opposing party is not unduly disadvantaged.”)). He noted that when a plaintiff properly invokes her right to remain silent under the Fifth Amendment, “dismissal is appropriate only where other, less burdensome, remedies would be ineffective means of preventing unfairness to defendant.” (PF & R at 766) (quoting Wehling, 608 F.2d at 1088.) Therefore, he concluded that “the Fifth Amendment privilege should be upheld unless defendants have substantial need for particular information and there is no less burdensome effective means of obtaining it.” (PF & R at 766) (quoting Serafino, 82 F.3d at 518.) Upon review of the record, the Magistrate Judge found that Defendants failed to show a “substantial need for particular information” and that “there is no other less burdensome effective means of obtaining it.” (Id. at 734.) Accordingly, he found that dismissal of Mrs. Deakins’ claims based upon her invocation of her Fifth Amendment privilege is inappropriate. (PF & R at 766.) He recognized that “Defendants have alternative means of presenting an effective defense without resort to Mrs. Deakins’ testimony.” (Id.) Although Defendants argue that Mrs. Deakins’ assertion -of her right to remain silent has prevented them from “exploring the veracity of her claims,” the Magistrate Judge found that Defendants have not been placed at an “undue disadvantage.” (Id.) (citing Document 182 at 7.) With regard to Mrs. Deakins’ claim of excessive force, he noted that Defendants have relied upon State court records to show that she was convicted of obstruction of an officer, battery on an officer, and assault on an officer. (PF & R at 766.) Moreover, he noted that Defendants can testify in their defense. (Id.) Therefore, he found that dismissal based upon Mrs. Deakins’ invocation of her right to remain silent is improper. (Id.) The Magistrate Judge then considered Defendants’ argument that Mrs. Deakins’ claims should be dismissed since, as a result of her invoking her right to remain silent, she cannot offer evidence in opposition to their motion and “the evidence is support of [their motion] is clear.” (Id.) (citing Document 182 at 8-9.) He found that “[although Mrs. Deakins’ assertion of her Fifth Amendment privilege may preclude her from offering her own Affidavit, Mrs. Deakins may offer documentary evidence or testimony from other witnesses.” (PF & R at 766-67) (citing In re Edmond, 934 F.2d at 1308-09 (4th Cir.1991); United States v. Parcels of Land, 903 F.2d at 43.) Therefore, he recommended that “Defendants’ Motion for Summary Judgment based upon the above should be denied.” (PF & R at 767.) c. Claim of Unlawful Arrest In their Motion, Defendants argue that they are entitled to summary judgment as to Mrs. Deakins’ claim of unlawful arrest. (Document 182 at 14-16.) In support, they explain that the Defendant Troopers were within their right to arrest Mrs. Deakins because upon lawfully entering the Deakins’ residence to execute an arrest warrant, Defendant Baker was attacked by Mrs. Deakins. (Id.) Defendants assert that because Mrs. Deakins was found guilty of charges stemming from her attack on Defendant Baker, she cannot now bring a lawsuit that, if successful, would question the validity of her convictions. (Id. at 15) (citing Heck, 512 U.S. 477, 114 S.Ct. 2364). In response, Mrs. Deakins asserts that Defendants’ arguments are without merit because she has not been convicted of any charges stemming from the April 22, 2010 incident. (Document 189 at 17.) Mrs. Deakins contends that because she has appealed her convictions and is entitled to a “trial de novo,” her “slate has been wiped clean.” (Id. at 17-18.) Therefore, Mrs. Deakins surmises that she has not been convicted of any charges. (Id.) In reply, Defendants state that because Mrs. Deakins’ convictions have not been reversed on direct appeal, expunged by executive order, declared invalid, or called into question by the issuance of a writ of habeas corpus, her convictions stand. (Document 190 at 11) (citing Heck, 512 U.S. 477, 114 S.Ct. 2364). Accordingly, Defendants argue that the Defendant Troopers had probable cause for her arrest, and therefore, her claim for unlawful arrest fails. (Id.) Based upon a review of the record, the Magistrate Judge found that “Defendant’s Motion for Summary Judgment should be granted to the extent that Mrs. Deakins is challenging the validity of her arrest.” (PF & R at 767-68.) He noted that Mrs. Deakins was arrested, charged with, and later convicted of obstruction of an officer, battery on an officer, and assault on an officer based upon her conduct during the Defendant Trooper’s execution of arrest warrants for Mr. Deakins. (Id. at 735) (citing Documents 181-1, 181-1, and 181-8.) The Magistrate Judge recognized that by alleging that her constitutional rights were violated, Mrs. Deakins appears to be challenging the lawfulness of her arrest and her subsequent convictions. (PF & R at 768.) The Magistrate Judge again relied upon the holding in Heck, (see supra Part III, A, i, b) to find that Mrs. Deakins’ claims of unlawful arrest should be dismissed. (Id. at 768-69) (citing Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)). He emphasized that there is no evidence that Mrs. Deakins’ criminal convictions have been invalidated. (PF & R at 768-69.) Accordingly, he found that Mrs. Deakins’ claims under Section 1983 are barred by the holding in Heck. (Id.) d. Qualified Immunity as to Seizure of Electronics The Magistrate Judge noted that “Defendants and Mrs. Deakins present the identical arguments as addressed in Defendants’ Motion for Summary Judgment against Mr. Deakins.” (Id. at 46.) Therefore, he relied on his reasoning as set forth above (see supra Part III, A, i, c) in finding that that Defendants’ motion should be denied as to the seizure of the two personal computers and granted as to the seizure of the digital camera. (Id.) e. Claim Against T.S. Pack In their motion, Defendants argue that there is no evidence to support any of Mrs. Deakins’ claims against Defendant Pack, and thus, she is entitled to summary judgment. (Document 182 at 13-14, 16-17.) Defendants assert that Plaintiff cannot establish supervisory liability against Defendant Pack as there is no evidence that he was involved in the incident on April 22, 2010, or that the Defendant Troopers were negligently hired, trained or supervised. (Id.) Mrs. Deakins did not respond to Defendants’ arguments. (Document 189.) Thus, Defendants contend that she has conceded that summary judgment should be granted as to Defendant Pack. (Document 190 at 2.) The Magistrate Judge once again set forth the applicable law concerning supervisory liability under Section 1983 (see supra Part III, A, i, e) and found that that there is “no evidence indicating that Defendant Pack was aware of an unreasonable risk of harm or misconduct by Defendant Troopers and failed to take corrective action.” (PF & R at 770.) He emphasized the lack of evidence concerning Defendant Pack’s personal involvement in the April 22, 2010 incident, his knowledge of misconduct by the Defendant Troopers, and his failure to adequately train or supervise them. (Id.) Because summary judgment is required when a party fails to establish an essential element of a claim, the Magistrate Judge found that Defendants’ motion should be granted as to Defendant Pack. (Id.) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548.) f. Claim Against Defendants Rogers and Shrewsburg In their Motion, Defendants argue that Defendants Rogers and Shrewsbury are entitled to summary judgment because Mrs. Deakins has not asserted claims against them. (Document 182 at 4.) In response, Mrs. Deakins states that she has alleged the following claims against them: (1) conspiratory liability pursuant to 42 U.S.C. §§ 1983 and 1985; (2) excessive force; (3) intentional infliction of emotional distress; and (4) unlawful arrest. (Document 189 at 4-5) (citing Third Am. Compl. ¶¶ 89-92.) Mrs. Deakins also contends that she has stated a claim of unreasonable search and seizure against Defendant Shrewsbury. (Id.) (citing Third