Citations
- 139 F. Supp. 3d 760
Full opinion text
MEMORANDUM OPINION AND ORDER
John T. Copenhaver, Jr., United States District Judge
Pending is the defendants’ motion for summary judgment, filed April 24, 2015.
I. Background
Plaintiff James P. Weigle (“Weigle”) is a West Virginia citizen who lives in Parkers-burg, West Virginia. The City of Vienna (“the City”) is a municipality geographically adjacent to Parkersburg. The City, its police department, and Vienna police officers R.L. Pifer (“Pifer”) and Brian Ingraham (“Ingraham”)(collectively “the officers”), are each named defendants in this action.
This suit arises from an incident that occurred on April 21, 2012. That morning, at around 8 a.m., Weigle was driving southbound on Grand Central Avenue in Vienna. As he approached the intersection of Grand Central Avenue and 34th Street he became mired in traffic. Frustrated by the delay, Weigle sounded his car’s horn.
The traffic delaying Weigle was the byproduct of a 5K footrace that was producing an intermittent stream of pedestrians on several of Vienna’s thoroughfares, including 34th Street. To ensure the safety of these runners, members of both the Vienna Police Department and the Vienna Volunteer Fire Department were directing traffic at various locations along-the course of the race. Pifer and Ingraham were two of the police officers engaged in traffic control for the race.
The parties agree generally on what happened next, though several important details are in dispute. It is undisputed that at least one, and perhaps several, motorists near the intersection of Grand Central Avenue and 34th Street sounded their horn. Weigle admits that he sounded his horn, but states that he did so only once, and only after he heard other drivers sound theirs. The defendants claim that Weigle was sounding his car’s horn “repeatedly.”.
Patrolman Joshua Cole (“Cole”) who, along with Pifer, was directing traffic at the intersection of Grand Central Avenue and 34th Street, went to investigate the horn sounding. Walking along the line of stopped or slowly moving vehicles, Cole eventually determined that Weigle had sounded his horn. He approached Weigle’s small vehicle, a ““Smart car,” and instructed him to pull over to the side of the road. Weigle did not comply. Weigle claims that he did not comply because he did not recognize that Cole, who was wearing rain gear that obscured his police uniform and did not-prominently display a badge, was a police officer. Shortly thereafter, Cole returned to the intersection and spoke with Pifer. After speaking with Cole, Pifer made his way to Weigle’s vehicle. Weigle concedes that he knew Pifer to be a policeman when he saw Pifer approaching.
When Pifer arrived, he knocked on Wei-gle’s driver-side window, and Weigle rolled down his window in response. After Weigle lowered the window, Pifer asked Weigle to produce his driver’s license. He also instructed Weigle to pull his vehicle out of the line of traffic and into the parking lane. Weigle complied with the latter request and, after pulling into the parking lane, exited thé vehicle. Weigle produced his driver’s license, although the parties disagree about the manner in which it was produced. Weigle then began expressing his dissatisfaction with being stuck in traffic and Pifer offered commiserations.
The parties agree that shortly thereafter Weigle attempted to reenter his vehicle. He was physically prevented from doing so by Pifer. The parties disagree about the exact sequence of events that follow, but a physical altercation ensued. During this altercation Pifer initiated an arrest of Wei-gle.
Sometime after Weigle had exited his vehicle, -but before the arrest began, Ingraham, who had been directing traffic at a different intersection along the course of the race, arrived at the scene in his police cruiser. Ingraham, in response to a signal from Pifer, had just begun-to exit his cruiser when Pifer initiated the arrest. Ingraham began assisting Pifer in his attempts to secure Weigle. Although the parties offer different accounts concerning the amount of force employed by the officers, it is undisputed that Pifer forcibly wedged Weigle against the hood of Ingraham’s police cruiser during the arrest. The officers were initially unable to handcuff Weigle, whose hands wére positioned underneath his torso near his abdomen. Eventually, with the assistance of Ingraham, who threatened to use pepper spray against Weigle, Pifer was able to secure handcuffs on Weigle and compléte the arrest.
Weigle was processed,' then eventually charged with obstructing a police officer. He appeared before a county magistrate and was convicted. He appealed that conviction, seeking de novo review in the’ Circuit Court of Wood County, West Virginia. After a bench trial, the magistrate conviction was overturned and Weigle was acquitted.
Weigle initiated this action by filing a ten count complaint on April 21, 2014. The first seven counts raise six state law claims against the officers (negligence, outrage, negligent infliction of emotional distress, assault, battery, and malicious prosecution) and one against the City (negligent retention). The complaint’s last three counts assert a number of federal constitutional claims arising under 42 U.S.C § 1983, consisting of excessive force claims under the Fourth Amendment against the officers related to their conduct during the arrest, and separate but related constitutional violations against the City, namely, that it had customs or policies that contributed to or caused the injuries inflicted by the officers during the arrest (the “Monell claims”).
The defendants have moved for summary judgment on all- counts. The defendants advance a number of theories with respect to the state law claims, including insufficiency of the evidence, common law privilege, and statutory immunity. With respect to the federal claims, the defendants both invoke the protection of qualified immunity and. argue that Weigle’s claims are substantively meritless because the force used by officers during the arrest was objectively reasonable.
The court is properly invested with jurisdiction over the federal claims inasmuch as Section 1983 is a federal statute through which deprivation of constitutional rights may be redressed. 28 U.S.C. § 1331. A district court properly invested with jurisdiction can also exercise supplemental jurisdictioii over state law claims that “form part of the same case or controversy.” 28 U.S.C. § 1367, see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Accordingly, the court has jurisdiction over all of Weigle’s claims.
II. The Summary Judgment Standard
A party is entitled to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant'is entitled to judgment as a matter of law.” Fed. R. Civ. P. ■ 56(c). Material facts are those necessary to establish the elements of a party’s cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A genuine issue of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable fact-finder could return a verdict for the non-movant. Id. The moving party has the initial burden of showing — “that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, then the non-movant must set forth specific facts as would be admissible in evidence that demonstrate the existence of a genuine issue of fact for trial. Fed. R. Civ. P. 56(c); id. at 322-23, 106 S.Ct. 2548. A party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find' in favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991). Conversely, summary judgment is inappropriate if the evidence is sufficient for a reasonable fact-finder to return a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
III. Discussion
A.
With the exception of the malicious prosecution claim set forth in Count Seven and two of the four infliction of emotional distress claims in Counts Three and Four, each of Weigle’s claims relates either directly or indirectly to .the force employed by the officers during his arrest. The officers have asserted qualified immunity with respect to Weigle’s Section 1983 claims and analogous state law statutory immunity with respect his state law claims. “Because qualified immunity is ‘an immunity from suit rather than a mere defense to liability,’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)(quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)), immunity is a threshold issue which the court addresses before considering any of the defendants’ proffered substantive bases for summary judgment. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)(“Where [a] defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive.”), Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)(per curiam)(“We repeatedly have stressed the. importance of resolving immunity questions at the earliest possible stage in litigation.”); accord Robinson v. Pack, 223 W.Va. 828, 831, 679 S.E.2d 660 (2009)(‘“We agree with the United States Supreme Court to the extent it has encouraged, if not mandated, that claims of immunities, where ripe for disposition, should be summarily decided before trial.’ ”)(quoting Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996)).
1. Qualified Immunity of Officers Pi-fer and Ingraham with Respect to the Section 1983 Claims
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established'statutory or constitutional rights of which a reasonable person would have known.’ ’’ Pearson, 555 U.S. at 231, 129 S.Ct. 808 (2009)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). It is clearly established that the Fourth Amendment confers upon individuals a constitutional right to be free ■ from excessive force during the course of an arrest. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), accord Turmon v. Jordan, 405 F.3d 202, 207 (4th Cir.2005)(“The Fourth Amendment’s right to be free from unreasonable seizures includes the right to be free from seizures carried out with excessive force.”). Thus, whether or not qualified immunity shields Pifer and/or Ingraham from Section 1983 liability depends upon whether or not the force employed during Weigle’s arrest was excessive.
“Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of -the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (internal citations and-quotation marks omitted). This inquiry into reasonableness is an objective one. “[T]he question-is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865.
Although the test for reasonableness of the force used during an arrest is an objective one, our Court of Appeals has explained that the exact contours of the inquiry are “not capable of precise definition or mechanical application.” Bailey v. Kennedy, 349 F.3d 731, 743 (4th Cir.2003). In general, “[t]he nature of the intrusion on a plaintiffs Fourth Amendment rights is generally measured by the amount of force employed to affect [sic] the seizure. The -extent of the plaintiff’s injuries is also a relevant consideration.” Turmon, 405 F.3d 202, 207 (4th Cir.2005)(internal citations omitted). That intrusion is weighed against several factors representing the governmental interests at stake, including the “ ‘severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officer or others, and whether [he] ... actively resisted] arrest or attempted] to evade arrest by flight.’ ” Bailey, 349 F.3d at 743 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). Balancing these “Graham factors” against the amount of force exerted by the arresting officers “requires careful attention-.to the facts and circumstances of each particular case.” Id. Moreover, in Graham, the Supreme Court explained that:
The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.- ... Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.
Graham, 490 U.S. at 396-97, 109 S.Ct. 1865 (internal citations and quotation marks omitted).
As outlined above, the parties agree, at least in broad strokes, about the events that occurred immediately before and then during Weigle’s arrest. It is undisputed that Weigle was stuck in traffic, sounded his horn at least once, took his ear out of the flow of traffic at Pifer’s request, exited the vehicle in order to display his driver’s license, and was forcibly arrested after trying to reenter his vehicle. However, the parties offer materially different accounts concerning various details which provide the necessary context for determining if the force employed by the officers was reasonable or excessive.
Pifer states that Weigle exited his vehicle without being asked to do so. Pifer Dep. at 61. Weigle contends that he exited the vehicle because Pifer asked him to produce his driver’s license and he could not retrieve the license from his wallet (which was in his pants pocket) without exiting the vehicle, and that he informed Pifer of this. Weigle Dep. at 28, see also Cir. Ct. Tr. at 95, 107 (testimony of Charles Noffsinger corroborating Weigle’s explanation for exiting the vehicle). The parties agree that Weigle then produced his license, but disagree on the manner of its production. Pifer claims Weigle “aggressive[ly] placed his driver’s license under Sgt. Pifer’s nose.” Def. Mem. of Law in Supp. Mot. for Summ. J. at * 3 (citing Pifer Dep. at 61). Weigle contends he merely handed his license to Pifer. Weigle Dep. at 33, see also Cir. Ct. Tr. at 110 (testimony of Charles Noffsinger that he did not see Weigle shove the license under Pifer’s nose, and did not see any other behavior that would constitute assault). The parties agree that immediately after the license was produced, Pifer and Weigle engaged in conversation. While both acknowledge that they discussed the reason underlying Weigle’s decision to sound his horn as well as his general frustration with being stuck in traffic, they disagree about what was said immediately before the sequence of events that precipitated the arrest.
Pifer provides the following version of events. After Weigle presented his driver’s license to Pifer, Weigle began expressing his dissatisfaction with being stuck in traffic. Pifer Dep. at 64-65. Pifer engaged Wei-gle in conversation in an attempt to “disarm him emotionally.” Id. at 66. Weigle remained agitated and eventually told Pi-fer that, “[t]his is all bull — t, and I’m f-— ng leaving.” Id. at 68. Pifer, concerned that Weigle might do something reckless, “slammed the door of [WeigleJ’s car and said ‘No, you’re not leaving.’ ” Id. at 68-69, see also Cir. Ct. Tr. at 140 (testimony of Kerry Miller describing Weigle “aggressively” opening the car door, and then Pifer “slamm[ing] the door” shut). Concerned that Weigle was “not calming down,” Pifer then signaled to Ingraham, who was in his police cruiser in the line of traffic a few cars behind where Weigle had been, to pull into the parking lane. Pifer Dep. at 70.
As Ingraham was pulling into the parking lane, Weigle said either “F-k this. I’m leaving” or “F-k you. I’m leaving” and tried to reenter his vehicle. Id. at 73. As Weigle moved toward the driver’s side door, he struck Pifer with his shoulder. Id. at 73-74 (Pifer testifying that “[Weigle] had — for lack of a better term, he had muscled past me ... [y]ou know, struck me with his left shoulder.”), see also- Cir. Ct. Tr. at 37 (testimony of Pifer: “I closed the door of his car and said, ‘No... [y]ou’re not free to leave.’ And then he kind of tried to bull past me”). Pifer then “grabbed [Weigle’s] left elbow ... and grabbed [Weigle’s] right shoulder ... and walked him back towards Sergeant Ingraham’s car and placed him across the hood to be arrested.” Pifer Dep. at 73. He also told Weigle, “That’s it. You’re under arrest.” Id. at 76.
Although Pifer grabbed Weigle by the elbow and shoulder as he placed him on the hood of Ingraham’s police cruiser, Wei-gle’s hands were not secured and became lodged underneath his abdomen, near his stomach. Id. at 75. Weigle began “actively trying to stand upright and come off the hood,” Id. at 77, so Pifer, who is six foot four inches tall arid weighs over 300 pounds, id. at 124, leaned against Weigle to “forc[e] him to remain on the hood.” Id. at 76. Pifer placed his light hand on Weigle’s “upper back” in order to “apply the maximum amount of equal pressure against his back so that [Weigle] could not raise up off the car.” Id. at 80. At this point Ingraham became involved in the arrest by attempting to take “control ... [of] Weigle’s right arm.” Id. Pifer then verbally directed Wei-gle to “remove his hands out fi’om under himself’ so he could be handcuffed. Id. at 77, 82-83. When Weigle did not comply with that request, Ingraham “announced” that he was going to pepper spray Weigle. Id. at 83.
Pifer then told Weigle to “[p]ut your hands behind your back and you won’t be sprayed” but Weigle did not comply. Id. at 85. Instead, he, “imrriediately jerked his head to the left[,] away from the pepper spray canister.” Id. at 84. Pifer responded by placing his forearm underneath of Wei-gle’s nose and “used it as a pressure point to move [Weigle’s] head ... so that [Wei-gle] was looking directly at [the pepper spráy canister].” Id. at 85. At that point, Weigle said “Okay” and released his hands from underneath his body, allowing Pifer and Ingraham to place his hands behind his back and handcuff him. Id. at 87, see also Cir. Ct. Tr. at 38 (testimony of Pifer: “When I placed him on the hood of Officer Ingraham’s car, Mr. Weigle refused to place his hands behind his back. I stated he was being arrested .,.. [and said] ‘Place your hands behind your back,’ and he refused. I believe he clasped his hands underneath of his' stomach laying against there, and then we had to, frankly, force him to raise his head. Arid Sergeant Ingraharh stated he was going to pepper spray him, and that’s when we got his hands out. He released his hands, and we placed him under, arrest;”). Pifer denies using a taser on Weigle during the arrest, and states that neither he nor Ingraham were carrying a taser on the day of the incident. Pifer Dep. at 107-108. Ingraham’s account of the incident generally corroborates the, account given by. Pifer. See Ingraham .Dep. at 43-49, see also . Cir. Ct. Tr. at 76-77. •
Weigle offers a. different account of the events both leading up to and during his arrest. According to Weigle, after knocking on the car window, Pifer asked to see his driver’s license. See Cir. Ct. Tr. at 218. Only after Weigle exited the vehicle and handed Pifer his driver’s license did Pifer ask to see Weigle’s vehicle registration and insurance card. Weigle Dep. at 33, Cir. Ct. Tr. at 281. Because those documents were in the glove box of his car, Weigle opened the driver’s side door so he could reenter the vehicle in order to obtain them. Weigle Dep. at 33. As soon as he opened the door, Pifer “slam[med] the [car] door shut.” Id. Weigle looked at Pifer and said, “[S]ir, the registration card and insurance card is in the glove box. You’re going to have to let me in the car if you want to see them.” Id. In response, Pifer made a motion, apparently to Ingraham, and then told Weigle “get in that cruiser.” Id. Weigle inquired if he. was under arrest, and Pifer either didn’t give a response, or Weigle, who suffers from hearing loss, didn’t hear it. Id. Weigle then “turned to go get in the cruiser,” Cir. Ct. Tr. at 206, and it is at that point that Pifer “pile drive[d]” him “right over the hood of [Ingraham’s] car.” Weigle Dep. at 34. Pifer “mashed his weight down” on Weigle, causing him “severe pain.” Id. Weigle claims he “rotated” and said, “don’t mash me like that .,. I had stomach surgery.” See Cir. Ct. Tr. at 2Q6, Weigle Dep. at 34. Pifer responded with a “forearm.[to Weigle’s] neck” and began “mashing the living hell out of’ Weigle, causing him “excruciating pain.” Weigle Dep. ,at 34. Then another policeman, presumably Ingraham, began trying to “rip [Weigle’s right arm] over [his] shoulder” in such a manner that it felt like the arm was being “pullfed] out of [its] joint.” Id.
Weigle explains that had he known he was under arrest he “would have complied” and that Pifer’s use of force was a “big surprise.” Id. at 41. He also states that the specific way the officers attempted to subdue him was the cause of his failure to comply with the requests- to put his hands, behind his back. Weigle Dep. at 40 (testimony of Weigle that the officers placed handcuffs on him “[a]s soon as [Pi-fer] let up on my neck so I could pick my shoulder up to — you can’t rotate your arm if you’re mashed. You can’t get your shoulder up to rotate your arm. So as soon as he let up on my neck — I twisted up like this to put my hand behind my back.”); Cir. Ct. Tr. at 208-09 (testimony of Weigle: “I was laying flat on the hood, and my shoulders was [sic] smashed. And I’ll want to watch anybody rotates [sic] their arm behind you when -you can’t raise your shoulder to twist your arm to put it behind you.”). Weigle also claims that the officers used a taser on him at some point during the encounter. Weigle Dep. at 60, 126, see also.Cir. Ct. Tr. at 209.
The differences in these two accounts are material. The actions of the officers, and those of Pifer in particular, can be cast in a wildly different light. If Pifer acted out of concérn for his own safety, or the safety of others, his decision to use force may be constitutionally reasonable. See Morrison v. Bd. Of Trustees Of Green Twp., 583 F.3d 394, 405 (6th Cir.2009)(“[A] police officer’s use. of force against a suspect is justified by the threat posed by the suspect to the safety of the officer or others.”)(citation omitted), Weigel v. Broad, 544 F.3d 1143, 1152 (10th Cir.2008)(“Where [an] officer has probable cause to believe that [a] suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape [through the use of] force.”)(citation omitted).
In his deposition, Pifer states.that he initiated the arrest because he was worried that if Weigle drove off he would endanger others in the area, most notably the participants in the footrace. Pifer Dep. at 68-69. Officer safety is also a paramount consideration during traffic stops, given the ease with which weapons can be concealed within an automobile and the ready access drivers and passengers have to such weapons. See Michigan v. Long, 463 U.S. 1032, 1047-48, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)(recognizing that “investigative [situations] involving suspects in vehicles are especially fraught with danger to police officers” as well as noting that “suspects may injure police officers and others by virtue of their access to weapons, even though they may not themselves [appear to] be armed”), see also Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)(per curiam)(holding that officer safety was a sufficient justification for police officers’ standard practice of ordering drivers to exit their vehicle during traffic stops). During his deposition, Pifer testified that he was cognizant of the danger associated with allowing a suspect to reenter a vehicle during a traffic stop. Pifer Dep. at 148-149. The risk was not hypothetical in this case, given that Weigle had a loaded .380 caliber pistol in his car “next to the driver’s seat,” Weigle Dep. at 44-45, although there is no indication that the officers were aware of it’ at the time.
In contrast,- if Pifer initiated the arrest in response , to Weigle’s brusque demeanor and use of profanity, his use of force may be deemed unconstitutional. Cf. United States v. Cobb, 905 F.2d 784, 789 (4th Cir.1990)(“[W]e do not agree- with [the government] that mere words . v can justify the use of physical force by a police officer.”). Similarly, a, jury, could conclude that Pifer’s proffered concerns about the safety of himself or others are not credible given that he had asked Weigle to produce his registration and insurance card, implicitly inviting Weigle to reenter the vehicle in order to obtain items that are customarily kept inside a vehicle’s glove compartment.
Moreover, Pifer and Ingraham’s account of the arrest repeatedly emphasizes that Weigle refused to put his hands behind his back and submit to being handcuffed.- If Weigle was resisting arrest — that is, if he was intentionally refusing to allow his hands to be cuffed behind his back — his failure to comply is taken into account when evaluating the reasonableness of the force used. See Graham, 490 U.S. at 396, 109 S.Ct. 1865. However, if the manner in which the officers were applying force caused Weigle’s inability to comply, and that, in turn, prolonged the period for which he was subjected to such force, a jury could reasonably determine that Wei-gle was not resisting, and if such a finding were made, the force employed by the officers against a non-resisting suspect would likely qualify as excessive. See e.g, Bennett v. Krakowski, 671 F.3d 553, 562 (6th Cir.2011)(noting that “no force” is necessary to restrain a suspect who is not resisting arrest). Additionally, .if the jury determines that Ingraham used a taser agáinst Weigle after he stopped resisting, that use of force, could be considered excessive. See Meyers v. Baltimore County, Md., 713 F.3d 723 (4th Cir.2013)(officer’s use of a táser agáinst an arrestee no longer actively resisting violated arrestee’s clearly established constitutional rights).
The injuries Weigle suffered during the arrest are also relevant to the reasonableness inquiry, and they too are in dispute. Weigle claims to suffer from a variety of injuries that were caused or exacerbated by the arrest, including abdominal tenderness, a cervical strain, a low back strain, damage to his right shoulder, damage to his esophagus and bowels, and numerous complications related to his 1996 Nissen fundoplication surgery. See PI. Compl ¶ 25-27; Weigle Dep. at 125; Cir. Ct. Tr. at 207-11. He also claims to have had a taser used on him during the arrest, causing him to lose control of his bowels. See Weigle Dep. at 61. In contrast, Pifer states that after taking Weigle to the police station for processing he asked Weigle “a couple times” if he was injured or if he wanted medical personnel to take a look at him and that “every time [Weigle] told me no.” Pifer Dep. at 96. And, as noted above, Pifer categorically denies that a taser was used on Weigle during the arrest.
The preceding paragraphs outline the parties’ disagreements concerning the facts. These disagreements are material. These material disagreements preclude the application of qualified immunity to the officers at this juncture. The right to be free from excessive force during an arrest is a clearly established constitutional right. Our Court of Appeals has explained that, in circumstances where qualified immunity is invoked, if there is a “genuine question of material fact regarding ‘[w]hether the conduct allegedly violative of [such a clearly established] right actually occurred,’” the necessary fact-finding “must be reserved for trial.” Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir.2005)(citations omitted). Accordingly, neither Pifer nor Ingraham is entitled to summary judgment on the issue of qualified immunity.
2. Qualified Immunity of Officers Pi-fer and Ingraham with respect to Weigle’s state law claims.
Pifer and Ingraham invoke the statutory immunity provided by West Virginia’s Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-5, against Weigle’s state law negligence, outrage, negligent infliction of emotional distress, assault, and battery claims. The statute, which provides qualified immunity to employees of political subdivisions, provides in pertinent part:
(b) An employee of a political subdivision is immune from liability unless one of the following applies:
(1) His or her acts or omissions were manifestly outside the scope of employment or official responsibilities; '
(2) His or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by a provision of this code.
W. Va. Code § 29-12A-5(b).
As the West Virginia Supreme Court of Appeals noted in City of Saint Albans v. Botkins, 228 W.Va. 393, 398, 719 S.E.2d 863 (2011), “[West Virginia’s] approach to matters concerning immunity historically has followed federal law.” Consequently, much of the same analysis applicable to Pifer and Ingraham’s invocation of qualified immunity against Weigle’s Section 1983 claims applies with equal force to their invocation of statutory immunity against the state law claims.
Weigle’s state law claims are, with three exceptions, predicated on the same facts as his Section 1983 claims. Those facts, as discussed above, are in dispute. Although it is clear that a police officer engaged in an arrest is acting within the scope of his employment, determining whether or not an officer’s conduct during such an arrest was undertaken with malicious purpose, in bad faith, or in a wanton or reckless manner necessarily depends upon the nature of the officer’s conduct and the context in which it occurred. When the parties have, as here, a genuine disagreement about the material underlying facts necessary to engage in this inquiry, summary judgment is inappropriate. See Syl. pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996)(“The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition.”). As set forth at length in part III section A.1 above, a bona fide dispute exists as to whether the conduct of either officer was undertaken maliciously or in bad faith or wantonly or recklessly. Accordingly, Pifer and Ingraham are not entitled to summary judgment with respect to Weigle’s state law claims on the basis of statutory immunity.
B.
Having determined that the officers are not entitled to summary judgment on the basis of their invocation of qualified immunity, the court turns to defendants’ substantive arguments for summary judgment.
1. Assault and Battery
West Virginia permits'a plaintiff who has asserted a Section 1983 claim against a law enforcement officer to pursue an independent claim for assault, battery or other common law intentional tort even if those claims arise from the -same facts as the Section 1983 claim, Neiswonger v. Hennessey, 215 W.Va. 749, 753, 601 S.E.2d 69 (2004)(holding that collateral es-toppel did not bar plaintiff from asserting state law claims, including assault, battery, and intentional infliction of emotional distress, against a police officer despite federal district court’s ruling, in a case arising from the same incident, that there was no viable Section 1983 excessive force claim because the defendant police officer’s use of force was objectively reasonable).
In West Virginia, assault and battery are separate torts. As the West Virginia Supreme Court of Appeals explained in West Virginia Fire & Casualty Co. v. Stanley:
An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.
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An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.
West Virginia Fire & Casualty Co. v. Stanley, 216 W.Va. 40, 51, 52, 602 S.E.2d 483 (2004)(quoting the Restatement (Second) of Torts (1965)), see also State v. Cunningham, 160 W.Va. 582, 593, 236 S.E.2d 459 (1977)(Miller, J., dissenting) (“An assault is, of course, the threat to do violence as distinguished from the actual doing of violence, which is a battery.”).
Counts Five and Six of Weigle’s complaint set forth common law assault and battery claims against the officers. PI. Compl. ¶ 62-63, 67-68. The facts, as discussed above, render Weigle’s assault claim superfluous. The officers did not merely threaten offensive contact with Weigle — they forcibly arrested him. Although there may be instances where a completed assault leads immediately to completed battery and two separately viable claims remain, this case is not one of them. Here, Weigle’s assault claim is entirely subsumed by his claim for battery.
The officers argue that, their lack of immunity notwithstanding, they cannot be held liable for a battery because they were privileged to use force to complete the arrest. See Def. Mem. of Law in Supp. Mot. for Summ. j at * 13 (citing Hutchinson v. W. Virginia State Police, 731 F.Supp.2d 521, 547 (S.D.W.Va.2010)(“An activity that would otherwise subject a person to liability in ’ tort for assault and battery, however, does not constitute tortious conduct if the actor is privileged to engage in such conduct,”) affd sub nom. Hutchinson v. Lemmon, 436 Fed.Appx. 210 (4th Cir.2011).
Although there is no West Virginia case which directly acknowledges a law enforcement privilege for battery in the course of an arrest, it is evident from Stanley that West Virginia adheres to the definition of battery set forth in the Restatement (Second) of Torts. Section 118 of the Restatement announces. the “general principle” that an individual engaged in an arrest is afforded a privilege that precludes a battery claim. See Restatement (Second) of Torts at § 118, When that section is read in concert with § 121, which-provides law enforcement officers a privilege to engage in arrests within the limit of their jurisdiction, there is no question that the Restatement definition embraced by Stanley contains a law enforcement privilege to use force during the course of an arrest. See Lee v. City of S. Charleston, 668 F.Supp.2d 763, 779 (S.D.W.Va.2009)(“[A] peace officer acting within the limits of his appointment is privileged to arrest anothr er”),
That privilege is not absolute. The Restatement articulates several provisions that limit or abrogate the privilege. Notably, the Restatement explicitly states that force that would otherwise constitute a battery is not privileged ■ if that force is excessive. Restatement (Second) at § 132 (“The use of force against another for the purpose of effecting the arrest ... is not privileged if the means employed are in excess of those which the . actor reasonably believes to be necessary.”); accord Gray v. Board of County Commissioners of Frederick County, 551 Fed.Appx. 666, 677 (4th Cir.2014)(“[law enforcement] officers are privileged to commit a battery pursuant to a lawful arrest, subject to the excessive force limitation.”)(citation omitted).
As discussed with respect to the officer’s immunity claims, the reasonableness of the force used during Weigle’s arrest cannot be properly evaluated on this motion because of the material disputes of fact concerning both the specific amount of force applied and the context surrounding its application. Thus, the propriety of the officers’ invocation of privilege is dependent upon the resolution.-of the disputed factual questions.
Accordingly, while summary judgment in favor of the officers on the assault count is appropriate, summary judgment on the battery count is not.
2. Outrage
West Virginia recognizes outrage as a viable cause of action. Syl; pt. 6, Harless v. First Nat. Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982). In Travis v. Alcon Laboratories, Inc., the West Virginia Supreme Court of Appeals set forth a four-part test by which outrage is proven:
[I]n order for a plaintiff to' prevail on a claim for intentional or reckless infliction of emotional distress, four elements must be established. [The four elements are]: (1) that the defendant’s conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from -his conduct; (3) that the actions of the defendant caused the plaintiff to> suffer emotional distress; ■ and, • (4) that the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.
Travis v. Alcon Laboratories, 202 W.Va. 369, 375, 504 S.E.2d 419 (1998). To qualify as legally outrageous, a defendant’s conduct must be “‘more than unreasonable, unkind or unfair; it must truly offend community notions of acceptable conduct.’ ” Id. (internal, citation omitted). “Liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or .other trivialities.” Tanner v. Rite Aid of West Virginia, 194 W.Va. 643, 651, 461 S.E.2d 149 (1995)(citing- the Restatement (Second) of -Torts '§ 46(1) (1965)). The Restatement definition used in Tanner goes on to explain that for behavior to be actionable it must be “so extreme in degree[ ] as to go beyond all possible bounds of decency[] and [thus] be regarded as atrocious, and utterly intolerable in a civilized community.” Id. The initial decision as to whether complained-of conduct qualifies as legally outrageous is a question of law to be' decided by the trial court. Hatfield v. Health Mgmt. Associates of W. Virginia, 223 W.Va. 259, 268, 672 S.E.2d 395 (2008)(explaining that a court evaluating the viability of an outrage claim must “first determine whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to constitute the intentional or reckless infliction of emotional distress. Whether conduct may reasonably be considered outrageous is a legal question, and whether conduct is in fact outrageous is a question for jury determination.”).
Count Three of Weigle’s complaint sets forth two claims for outrage. The first is predicated on the actions undertaken by both officers during the arrest. See PI. Compl. ¶ 50. The second involves an incident involving Pifer and Weigle that occurred about two months after Weigle’s arrest, in which Weigle alleges that Pifer followed Weigle to his home and verbally harassed him. See id. at 28-29, 51.
The defendants argue that they are entitled to summary judgment with respect to these outrage claims because the “conduct of the officers falls well short of the high standard of proof’ required to succeed on an outrage claim. Def. Mem. of Law in Supp. Mot. for Summ. J. at * 11. They are plainly correct with respect to Weigle’s second outrage claim, the one predicated on Pifer’s alleged verbal harassment of Weigle near his home. During that encounter, Weigle claims Pifer followed him home, unnecessarily initiated a traffic stop, and then verbally threatened him, all because Pifer believed Weigle had driven by his home. See Weigle Dep. at 54-56. Pifer admits that, during the incident, he told Weigle, “Don’t you ever come back around me or my kids.” Pifer Dep. at 117. The incident did not result in criminal charges against Weigle, and no formal complaint was lodged against Pifer.
Pifer’s conduct during the incident, at worst, involved minor abuse of his law enforcement authority and the issuance of a thinly veiled threat against Weigle. While far from laudable, such behavior does not satisfy the high standard necessary to sustain a claim of outrage. As the Supreme Court of Appeals explicitly stated in Tanner, an outrage claim cannot be predicated on “threats ... [or] petty oppressions.” Accordingly, Pifer is entitled to summary judgment with respect to Wei-gle’s second outrage claim.
Weigle’s first outrage claim, the one predicated on the conduct of the officers leading up to and during his arrest, is a closer question. Courts applying West Virginia law have, on several occasions, considered outrage claims against law enforcement officers predicated on their conduct during an arrest or other seizure. Most have determined that the actions of the law enforcement officer, even if otherwise actionable, did not qualify as legally outrageous. See e.g., Woods v. Town of Danville, W.V., 712 F.Supp.2d 502 (S.D.W.Va.2010)(mistaken arrest of wrong suspect, during which police officer lifted the arrestee off the ground by the chain of his handcuffs, was held to be not outrageous); Lee v. City of S. Charleston, 668 F.Supp.2d 763 (S.D.W.Va.2009) (public strip search which exposed arrestee’s genitals, but only to the arresting officer, was not legally outrageous), Lowe v. Spears, No. CIV.A. 3:06-0647, 2009 WL 1393860, at * 6 (S.D.W.Va. May 15, 2009)(officer’s decision to arrest individual for a minor offense, possibly in response to arrestee’s use of profanity toward the officer, was not legally outrageous); cf. Hutchinson v. W. Virginia State Police, 731 F.Supp.2d 521, 531 (S.D.W.Va.2010)(female suspect who was forcibly removed from the shower during the execution of a search warrant and forced to lie down, naked, for at least 45 minutes in the presence of eleven male law enforcement officers, one of whom slapped her behind, had legally cognizable claim for outrage) aff d sub nom. Hutchinson v. Lemmon, 436 Fed.Appx. 210 (4th Cir.2011).
Viewing the evidence in the light most favorable to the non-moving party, the court concludes that the officers are not entitled to summary judgment on the outrage claim flowing from their conduct during the arrest. If Weigle’s version of events is accepted, at some point one of the officers needlessly used a taser on him, though that assertion is sharply disputed. A number of federal courts have held that the unnecessary use of a taser by law enforcement officers can be the basis for a state law outrage or intentional infliction of emotional distress claim. See e.g., Cardall v. Thompson, 845 F.Supp.2d 1182 (D.Utah 2012), Ciampi v. City of Palo Alto, 790 F.Supp.2d 1077 (N.D.Cal.2011), Russ v. Causey, 732 F.Supp.2d 589 (E.D.N.C.2010) aff'd in part, 468 Fed.Appx. 267 (4th Cir.2012), Campos v. City of Merced, 709 F.Supp.2d 944 (E.D.Cal.2010). Accordingly, the defendants are not entitled to summary judgment on Weigle’s first outrage claim.
3. Negligence
To succeed on a negligence claim in West Virginia, a plaintiff must “show four basic elements: duty, breach, causation, and damages.” Hersh v. E-T Enterprises, Ltd. P’ship, 232 W.Va. 305, 310, 752 S.E.2d 336 (2013) superseded by statute on other grounds as recognized in Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo County, 773 S.E.2d 627 (W. Va. May 13, 2015). As evidenced by the court’s prior discussion of Weigle’s assault, battery, and outrage claims, not all tortious acts which injure a plaintiff constitute negligence. See also Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 705, 246 S.E.2d 907 (1978)(“The law of this jurisdiction recognizes a distinction between negligence, including gross negligence, and wilful, wanton, and reckless misconduct. The latter type of conduct requires a subjective realization of the risk of bodily injury created by the- activity and as such does not constitute any form of negligence.”), superseded -by statute on other grounds as recognized in Wetzel v. Employers Service Corp. of West Virginia, 221 W.Va. 610, 656 S.E.2d 55 (2007); Criss v. Criss, 177 W.Va. 749, 751, 356 S.E.2d 620 (1987)(recognizing a distinction between “an intentional tort” and “a negligent tort”).
'Weigle’s complaint contains several counts which purport to set forth negligence claims. Count One begins by stating that “[the officers] owed Plaintiff a- duty of reasonable cáre.” PI. Compl. ¶ 35. It then describes this duty, stating that “[the Officers] are liable for negligently failing to comply with federal constitutional standards for use of force against a suspect[.]” Id. ¶ 38.
Count One also sets forth a negligence claim against the City, stating “[p]ursuant to West Virginia Code § 29-12A-4(c)(2) ... the City of Vienna [is] liable for the injury to Plaintiff caused by [the officers] while acting within the scope of their employment.”'The code section cited by Wei-gle reads pertinently:
Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees. while acting within the scope of employment.
W. Va. Code § 29-12A-4(c)(2).
In his briefing, Weigle states that the negligence claim against the officers flows from- their “bad faith and reckless disregard” for Weigle’s “well-being and his Fourth Amendment rights.” PL Resp. in Opp’n at * 7. Weigle also suggests that the officers’ decision to “escalat[e]” the traffic stop could be deemed “reckless” or constitute an act done “in bad faith.” Id. These arguments are clearly an effort to characterize the officers’ conduct as falling within the ambit of W. Va. Code § 29-12A-5, which provides that the employee of a political subdivision is immune from civil liability unless, inter alia, “his or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” W. Va. Code § 29-12A-r5(b)(2).
However, “a mere allegation of negligence' does not turn an intentional tort into negligent conduct.” Benavidez v. United States, 177 F.3d 927, 931 (10th Cir.1999). Conduct that supports a negligence claim can be distinguished from conduct that supports an intentional tort claim by examining the subjective intent of the alleged tortfeasor. “Intentional .torts, as distinguished from negligent or reckless torts ... generally require that the actor intend ‘the consequences of an act,’ not simply ‘the act itself.’” Kawaauhau v. Geiger, 523 U.S. 57, 62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998)(emphasis in originalXqüoting Restatement (Second) of Torts '§. 8A, Comment a, p. 15 (1964)).
It is apparent, from both the allegations in the complaint and from the remainder of the record, that the officers intended the consequences of their actions during Weigle’s arrest. That is, their efforts, including the complained-of use of force, were undertaken for the purpose of completing Weigle’s arrest. Thus, while the officers’ actions may give rise to an intentional tort, they cannot support liability predicated on negligence. See e.g., Brown v. J.C. Penney Corp., 521 Fed.Appx. 922, 924 (11th Cir.2013)(per curiam)(“A claim for negligence cannot be premised solely on a defendant’s alleged commission of an intentional tort.”). Accordingly, both Pifer and Ingraham are entitled to summary judgment on the negligence claim against them set forth in Count One.
The negligence claim against the City alleged in Count One is, as noted above, predicated on W. Va. Code § 29-12-4(c)(2), which extends vicarious liability to political subdivisions for negligent acts committed by employees of the subdivision acting within the scope of their employment. Because the negligence claim against the City is wholly dependent upon the unviable negligence claim against the officers, Weigle’s negligence claim against the City cannot proceed. Accordingly, summary judgment in favor of the City is appropriate. ■
4. Negligent infliction of emotional distress
Count Four of Weigle’s complaint asserts a claim for negligent infliction of emotional distress. PL Compl. ¶ 56-59. The complaint alleges that the officers were “negligent in physically assaulting [Weigle]” and that Pifer was also negligent “in appearing at [Weigle]’s home .'.. verbally assaulting ... and intimidating him.” Id. ¶ 57..
West Virginia recognizes negligent infliction of emotional 'distress as a viable cause of action. See Syl. pt. 1, Heldreth v. Marrs, 188 W.Va. 481, 425 S.E.2d 157 (1992). However, as discussed above, the conduct of the officers during Weigle’s arrest (and Pifer’s conduct during the incident two months after Weigle’s arrest) was not only intentional,' it was purposeful. Simply put, the complained-óf conduct might serve as the basis of an intentional tort claim but it cannot sustain a claim based on negligence. Accordingly, summary judgment in favor of the defendants on Weigle’s negligent infliction of emotional distress claims is warranted.' ■
5! Malicious Prosecution
Weigle originally brought malicious prosecution claims against both Pifer and Ingraham in Count Seven, see PL Compl. ¶ 74, but Weigle now concedes that Ingraham is not liable. See PL Resp. in Opp’n at *• 11 (“Plaintiff concedes that Sgt. Ingraham is not liable under a claim of malicious prosecution. However, under the law set forth in Defendants’ memorandum, Sgt, Pifer clearly is.”). The count will thus be dismissed to the extent that it pertains to Ingraham, leaving the court to. consider the plaintiffs claim against Pifer.
In West Virginia, malicious prosecution has four elements. Syl. pts. 1-2, Norfolk S. Ry. Co. v. Higginbotham, 228 W.Va. 522, 523, 721 S.E.2d 541 (2011). To succeed on such a claim, a plaintiff must show that the prosecution was: 1) malicious, 2) unsupported by reasonable or probable cause, 3) terminated in favor of the plaintiff, and 4) procured by the defendant. Id. (citing Syl. pt. 1, Preiser v MacQueen, 177 W.Va. 273, 352 S.E.2d 22 (1985) and Syl. pt. 3, Truman v Fidelity & Casualty Co. of New York, 146 W.Va. 707, 123 S.E.2d 59 (1961)).
The defendants contend that the “procurement” element was not satisfied in this case. See Def. Mem. of Law in Supp. Mot. for Summ. J. at * 15. In Higginbotham, the Supreme Court of Appeals explained that: , . , .
[I]t is apparent that procurement within the meaning of a malicious prosecution suit requires more than just the submission of a case to a prosecutor; it requires that a defendant assert control over the pursuit of the prosecution.
228 W.Va. at 528, 721 S.E.2d 541 (citing Vinal v. Core, 18 W.Va. 1 (1881)). Looking to Vinal for further guidance as to what sort of conduct constituted procurement, the Court explained that, “to prove procurement ... [a plaintiff] must ... show[ ] that the defendant ] engaged in consultation] .., regarding the prosecution, ... participated in the prosecution, and that the prosecution was carried out under the defendants’ countenance and approval. Higginbotham, 228 W.Va. at 528, 721 S.E.2d 541. However, the court also noted that “the level of control necessary to prove procurement is not explicitly delineated in our case law.” Id.
The record here reveals that Pifer was significantly involved in the- process of initiating the prosecution of Weigle. He started the process by completing a “CDR ... that explains the — the [identity of] defendant, [and] the charges against the'-defendant”, which was “for Wood County Magistrate Court.” Pifer Dep. at 97. He' also filed a criminal complaint containing both “the legal language ... and the narration of the incident” that “detailed the charges.” Id. at 98. Based on exchanges during-his deposition, he also appears to have had some- amount of control over the nature of the charge that was filed.
Question: So you completed a criminal complaint — [t]hat detailed the charges?
Answer: Yes.
Question: Which were what?
Answer: I believe the charge was obstruction ... I’d have to look.
Question: At some point did you charge Mr. Weigle with' failing to provide his license?.
Answer: That was the obstruction charge I believe I ended up with.
Question: Okay., But he did provide his license?
Answer: I’m sorry. You’re — you’re correct. Not his license, his registration and insurance.
Question: Did — did the charges ever change? Did you amend the -charges against Mr. Weigle at some point?
Answer: No.
Id. at 98-99. Subsequently, Pifer testified on behalf of the prosecution in Weigle’s trial in magistrate court, see Mag. Ct. Tr. at 28, then again in his appeal in Wood County Circuit Court, see Cir. Ct. Tr. at 33. This level of involvement, particularly the fact that Pifer drafted the criminal complaint that resulted in Weigle facing criminal charges in magistrate court, seems sufficient to be the participation, countenance, and approval that was found to constitute control by the Supreme Court of Appeals in Vinal and found to be lacking in Higginbotham.
But even if Pifer’s involvement was insufficient to establish the requisite amount of control over the prosecution to satisfy the definition set forth in Vinal and cited approvingly by Higginbotham, it is possible for a malicious prosecution claim against Pifer to survive. In Higginbotham, the Supreme Court of Appeals noted that West Virginia precedent “regarding the amount of control over a prosecution a defendant must have before it can be found to have procured that prosecution” is “admittedly limited.” 228 W.Va. at 529, 721 S.E.2d 541. Rather than providing a comprehensive definition of the sort of conduct that represented control sufficient to constitute procurement, the court looked to other jurisdictions that had “explored the topic in more detail,” to provide examples of conduct that would qualify, and in doing so, delineated several exceptions to control-based procurement. Most prominently, the court cited a decision of the Supreme Court of Texas for the proposition that there is:
no procurement when ‘the decision whether to prosecute is left to the discretion of another person, a law enforcement officer or the grand jury. [... ] An exception [... ] occurs when a person provides information which he knows is false to another to cause a criminal prosr ecution.’
Higginbotham, 228 W.Va. at 529, 721 S.E.2d 541 (quoting Browning-Ferris Industries, Inc, v. Lieck, 881 S.W.2d 288, 292 (Tex.1994)) (emphasis omitted). The court also cited a case from Ohio for the proposition that “there is no procurement when ‘an informer merely provides a statement of his belief of criminal activity and leaves the decision to prosecute entirely to the uncontrolled discretion of the prosecutor.’ ” Id. (quoting Robbins v. Fry, 72 Ohio App.3d 360, 594 N.E.2d 700 (1991)).
The citations in Higginbotham make it clear that West Virginia embraces the “false information” exception articulated in Lieck. Higginbotham, 228 W.Va. at 529, 721 S.E.2d 541 (quoting Lieck, 881 S.W.2d at 292). This exception is also discussed in the other cases cited in Higginbotham, cases which are described as complementing “the' meaning and spirit of our law.” See Weststar Mortg. Corp. v. Jackson, 133 N.M. 114, 121, 61 P.3d 823 (2002)(noting that a “defendant can be regarded as an instigator of a proceeding if he ... communicates material information falsely or inaccurately and the prosecutor relies on his statement”), Robbins, 72 Ohio App.3d at 362, 594 N.E.2d 700 (noting that an individual’s protection from malicious prosecution liability “can be lost” if he “provides false information.”)(both cited in Higginbotham, 228 W.Va. at 529, 721 S.E.2d 541).
The parties in this case disagree about the exact nature and sequence of the events that occurred before and during the officers’ arrest of Weigle. The difference in the two accounts is not great, but neither is it immaterial. If the jury chooses to completely credit Weigle’s version of events, they could also conclude that the differences between that , account and Pi-fer’s were the product of Pifer’s intentional misrepresentations. If the jury so believed, then Pifer’s conduct would fit vrathin the “false information” exception articulated in Higginbotham and Lieck. Pifer’s role in the initiation and prosecution of the magistrate court proceedings consisted of his drafting and filing of the criminal complaint, his initial exercise of discretionary authority concerning which charge to file, and his subsequent testimony.. Even, if these efforts were found not to constitute procurement, a reasonable jury adopting Weigle’s account of events could conclude that Pifer knowingly provided false information to the prosecutor and thereby procured Weigle’s prosecution.
Pifer also contends that Weigle’s claim cannot succeed because the prosecution was supported by probable cause. See Def. Mem. of Law in Supp. Mot. for Summ. J. at * 15. He claims that the existence of probable cause is supported by the Wood County Prosecuting Attorney’s Office decision “not only to prosecute the case in magistrate court” but also to “pursue the case through a de novo ... appeal in circuit court.” Id.
Under West Virginia law regarding malicious prosecution, “[p]robable cause ... is such a state of facts and circumstances known to the prosecutor personally or by information from others as would in the judgment of the court lead a man of ordinary caution, acting conscientiously, in the light of such facts and circumstances, to believe that the person charged is guilty.” Syl. Part 3, Morton v. Chesapeake and Ohio Ry. Co., 184 W.Va. 64, 65, 399 S.E.2d 464 (1990)(citation omitted). “[T]he question of the existence of probable cause depends on the defendant’s honest belief of guilt on 'reasonable grounds,” rather than whether a court or other authorities believed that probable cause existed. See Morton, 184 W.Va. 64, 67, 399 S.E.2d 464; see also Restatement (Second) of Torts § 662 and comments (a), (f) (noting that standard of probable cause is assessed based on procurer’s beliefs, and noting that “[t]he question of probable cause is to be determined in the light of those facts that the accuser knows or reasonably believes to exist at the time when he acts”)(émphasis- added). In Morton, for example, the court considered whether a private individual who notified authorities that a crime had been committed, and thereby led those authorities to issue arrest warrants, had probable cause to believe that crime was afoot. Id. at 67-68, 399 S.E.2d 464.
In this case, the element of probable cause refers to what Pifer reasonably believed about Weigle’s behavior. As described in detail above, Pifer’s position is that he himself saw Weigle committing a criminal act. If so, Pifer plainly had probable cause to believe that a crime had been committed. Weigle contends that the officers, including Pifer, are lying