Wittkamper v. Jefferson County Sheriff's Department et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GREGORY H. WITTKAMPER,
as Administrator of the Estate
of Stephen Michael Wittkamper,
Plaintiff,
v. 	CIVIL NO. 3:23-CV-177
(KLEEH)
DEPUTY K.J. STIPANOVIC,
DEPUTY C. ELLIS,
DEPUTY R. JENKINS, and
DEPUTY T. STELY,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT [ECF NO. 80]
Pending 	before 	the 	Court 	is 	a 	motion 	for 	summary 	judgment.
For the reasons discussed herein, the motion is GRANTED.
I. 	INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff 	Gregory 	H. 	Wittkamper 	(“Plaintiff”), 	as
administrator 	of 	the 	Estate 	of 	Stephen 	Michael 	Wittkamper
(“Wittkamper”), filed a complaint on April 20, 2023, in the Circuit
Court 	of 	Jefferson 	County, 	West 	Virginia, 	against 	the 	Jefferson
County Sheriff’s Department, Sheriff Thomas H. Hansen, Deputy K.J.
Stipanovic, 	Deputy 	C. 	Ellis, 	Deputy 	R. 	Jenkins, 	and 	Deputy 	T.
Stely. 	See ECF No. 1-1. 	The Defendants removed the case to this
Court on July 20, 2023. 	See ECF No. 1.
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On February 26, 2024, the Court granted in part and denied in
part 	a 	motion 	to 	dismiss. 	See 	ECF 	No. 	18. 	As 	a 	result, 	certain
claims, including all claims against the Sheriff’s Department and
Sheriff Hansen, were dismissed. 	Against the remaining Defendants,
Plaintiff 	now 	asserts 	the 	following: 	outrage 	or 	intentional
infliction 	of 	emotional 	distress, 	deliberate 	indifference,
excessive force, battery, bystander liability, and wrongful death.
On 	December 	1, 	2025, 	the 	remaining 	Defendants, 	Deputy 	K.J.
Stipanovic 	(“Stipanovic”), 	Deputy 	T. 	Stely 	(“Stely”), 	Deputy 	R.
Jenkins 	(“Jenkins”), 	and 	Deputy 	C. 	Ellis 	(“Ellis”) 	(together,
“Defendants”) 	filed 	a 	motion 	for 	summary 	judgment. 	See 	ECF 	No.
80. 	In 	it, 	Defendants 	seek 	dismissal 	of 	all 	remaining 	claims,
arguing 	that 	they 	are 	entitled 	to 	qualified 	immunity 	for 	the
federal claims and that the other claims fail as a matter of law.
The motion is fully briefed and ripe for review. 	See ECF Nos. 91,
95.
II. 	UNDISPUTED FACTS
William 	“Bill” 	Cummings 	(“Mr. 	Cummings”), 	age 	86, 	and 	his
wife Barbara Cummings (“Mrs. Cummings”), age 82, lived in Charles
Town, 	West 	Virginia, 	and 	had 	allowed 	Wittkamper 	to 	live 	in 	their
basement 	for 	over 	eight 	years. 	Cummings 	Dep., 	ECF 	No. 	80-2, 	at
9:2–5; 	13:13–19; 	21:2–5. 	The 	evening 	of 	April 	24, 	2021, 	Mr.
Cummings 	woke 	to 	his 	wife 	screaming 	and 	went 	to 	her 	office. 	Id.
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at 	15:12-18. 	Wittkamper, 	who 	weighed 	approximately 	400 	pounds,
was 	standing 	near 	the 	desk, 	and 	Mrs. 	Cummings, 	who 	weighed
approximately 135 pounds, was on the floor. 	Id. at 15:19-24; 21:2–
5; 	42:2–9. 	Mrs. 	Cummings 	told 	Mr. 	Cummings 	that 	Wittkamper 	had
“slugged” 	her 	and 	knocked 	her 	off 	her 	chair. 	Id. 	at 	16:1-5.
Wittkamper 	was 	completely 	naked. 	Id. 	at 	15:12–14. 	He 	was 	“not
belligerent” 	but 	was 	also 	“not 	communicative.” 	Id. 	at 	15:6–7.
Mr. 	Cummings 	asked 	Wittkamper 	to 	follow 	him. 	Id. 	at 	16:8–19.
Wittkamper followed Mr. Cummings into the garage, and Mr. Cummings
closed 	the 	house 	door 	behind 	him. 	Id. 	Mr. 	Cummings 	called 	911
and reported that Wittkamper, who was “high,” had punched his wife
in 	the 	face. 	See 	Sealed 	Exh. 	2 	to 	Motion. 	Wittkamper 	then 	used
a 	key 	to 	re-enter 	the 	house. 	Cummings 	Dep., 	ECF 	No. 	80-2, 	at
16:20–17:6. 	Mr. 	Cummings 	told 	Wittkamper 	to 	go 	to 	the 	basement,
and he did. 	Id. at 17:3-8. 	Defendants responded to the call.
Ellis 	and 	Jenkins 	arrived 	first, 	followed 	by 	Stipanovic 	and
Stely. 	See 	Stely 	Dep., 	ECF 	No. 	80-14, 	at 	58:5-12. 	Defendants
entered 	the 	basement 	and 	observed 	that 	Wittkamper 	was 	not
exhibiting normal behavior and was possibly impaired. 	Id. at 62:1–
6; Jenkins Dep., ECF No. 80-13, at 53:6-11. 	During the encounter,
Ellis, 	Jenkins, 	and 	Stely 	each 	deployed 	and 	hit 	Wittkamper 	with
one taser shot. 	Before firing his taser, Jenkins repeatedly told
Wittkamper 	to 	“back 	up” 	and 	“turn 	around,” 	but 	Wittkamper 	then
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charged 	at 	Jenkins. 	See 	Ellis 	and 	Jenkins 	Body 	Cameras, 	Sealed
Exhs. 	11 	and 	12 	to 	Motion. 	Jenkins 	deployed 	his 	taser 	to
Wittkamper’s chest. 	Id. 	Wittkamper remained standing after being
hit with the taser. 	Id. 	He pulled the prong out of his chest and
said, “Off.” 	Id. 	Jenkins and Ellis repeatedly told Wittkamper to
“get on the ground,” but he did not. 	Id. 	Wittkamper walked away
from 	the 	officers 	momentarily. 	Id. 	He 	then 	proceeded 	to 	walk
toward Ellis, and Ellis deployed his taser to Wittkamper’s chest.
Id. 	Wittkamper 	remained 	standing 	and 	pulled 	out 	Ellis’s 	taser
prong 	as 	well. 	Id. 	Ellis 	and 	Jenkins 	continued 	to 	tell 	him 	to
“get on the ground,” but he did not. 	Id. 	Wittkamper continued to
walk 	toward 	Ellis, 	and 	Stely 	then 	deployed 	his 	taser 	to
Wittkamper’s 	right 	shoulder 	from 	behind. 	Id. 	After 	being 	shot
with 	three 	tasers, 	Wittkamper 	continued 	to 	refuse 	to 	get 	on 	the
ground. 	Id. 	At 	that 	point, 	Defendants 	went 	“hands 	on” 	with 	him
to 	take 	him 	to 	the 	ground. 	Id. 	They 	placed 	Wittkamper 	in 	the
prone 	position 	(on 	his 	stomach) 	and, 	due 	to 	his 	size, 	worked 	to
place two sets of handcuffs on him. 	Id.
Approximately 	45 	seconds 	after 	placing 	Wittkamper 	in 	the
prone 	position, 	Defendants 	completed 	placement 	of 	the 	handcuffs.
Id. 	Wittkamper was moving his legs. 	Id. 	Jenkins and Stely each
had 	a 	hand 	on 	his 	back. 	Jenkins 	Dep., 	ECF 	No. 	80-13, 	at 	31:16-
18; Ellis Dep., ECF No. 80-12, at 55:13-18. 	Ellis and Stipanovic
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each 	held 	down 	one 	of 	Wittkamper’s 	legs. 	Jenkins 	Dep., 	ECF 	No.
80-13, 	at 	36:11-14. 	Wittkamper 	continued 	to 	wiggle 	and 	move 	for
a period of time. 	See Ellis and Jenkins Body Cameras, Sealed Exhs.
11 	and 	12 	to 	Motion. 	He 	then 	became 	still 	for 	approximately 	30
seconds. 	Id. 	After 	he 	had 	been 	still 	for 	approximately 	30
seconds, 	which 	was 	approximately 	two 	minutes 	after 	the 	handcuffs
were 	placed, 	Defendants 	noticed 	that 	Wittkamper 	had 	become
unresponsive and begun agonal breathing, so Defendants rolled him
on 	his 	side 	into 	the 	recovery 	position. 	Id.; 	Jenkins 	Dep., 	ECF
No. 	80-13, 	at 	84:19-22, 	130:1-8; 	Stely 	Dep., 	ECF 	No. 	80-14, 	at
71:20-24. 	Defendants checked his pulse at least once. 	Ellis Dep.,
ECF 	No. 	80-12, 	at 	88:23-89:1-4; 	Stely 	Dep., 	ECF 	No. 	80-14, 	at
77:17-22; 	Stipanovic 	Dep., 	ECF 	No. 	80-15, 	at 	62:17-20. 	They
performed two sternum rubs, to which Wittkamper did not respond. 1
Stely Dep., ECF No. 80-14, at 94:20–22; Jenkins Dep., ECF No. 80-
13, 	at 	129:3-9. 	Wittkamper 	still 	had 	a 	pulse, 	and 	the 	officers
did not perform CPR. 	Jenkins Dep., ECF No. 80-13, at 86:1-3. 	The
handcuffs remained on Wittkamper until EMS arrived. 	Id. at 82:6-
7. 	EMS 	had 	already 	been 	called, 	but 	when 	Defendants 	rolled
Wittkamper onto his side, Defendants radioed EMS to expedite. 	See
1 The goal of a sternum rub is to elicit a response, indicating that a suspect
is conscious or feels the pressure being applied. 	Ellis Dep., ECF No. 80-12,
at 57:24–58:4; Jenkins Dep., ECF No. 80-13, at 44:13–45:6.
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Ellis and Jenkins Body Cameras, Sealed Exhs. 11 and 12 to Motion.
EMS 	arrived 	at 	the 	scene 	approximately 	seven 	minutes 	after
Wittkamper was handcuffed. 	Stepanovic Body Camera, Sealed Exh. 7
to Motion. 	Stely advised EMS that Wittkamper’s last breath was 45
seconds 	prior 	to 	their 	arrival. 	Stely 	Dep., 	ECF 	No. 	80-14, 	at
76:2-4. 	EMS 	performed 	CPR 	on 	Wittkamper 	but 	ultimately 	declared
him 	dead 	at 	the 	scene. 	Id. 	at 	79:2–4; 	Jenkins 	Dep., 	ECF 	No. 	80-
13, at 46:14-20. 	After Wittkamper was pronounced dead, Defendants
searched 	the 	basement. 	Jenkins 	Dep., 	ECF 	No. 	80-13, 	at 	63:5-12.
They 	did 	not 	locate 	any 	weapons. 	Ellis 	Dep., 	ECF 	No. 	80-12, 	at
52:2-5.
The West Virginia Medical Examiner’s Office (“WVMEO”) listed
Wittkamper’s 	cause 	of 	death 	as 	morbid 	obesity 	with 	the 	use 	of 	an
electronic 	restraint 	device 	as 	a 	contributing 	condition. 	See
Sealed Exh. 10 to Motion. 	The WVMEO listed the manner of death as
homicide. 	Id.
III. STANDARD OF REVIEW
Summary 	judgment 	is 	appropriate 	if 	“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). 	The movant
“bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions
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on 	file, 	together 	with 	the 	affidavits, 	if 	any, 	which 	it 	believes
demonstrate 	the 	absence 	of 	a 	genuine 	issue 	of 	material 	fact.”
Celotex 	Corp. 	v. 	Catrett, 	477 	U.S. 	317, 	323 	(1986) 	(internal
quotation marks omitted). 	“Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party,
there 	is 	no 	genuine 	issue 	for 	trial.” 	Matsushita 	Elec. 	Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
and internal quotation marks omitted).
“When 	the 	moving 	party 	has 	carried 	its 	burden . . . , 	its
opponent 	must 	do 	more 	than 	simply 	show 	that 	there 	is 	some
metaphysical 	doubt 	as 	to 	the 	material 	facts.” 	Id. 	at 	586
(citations 	omitted). 	Rather, 	the 	court 	must 	ask 	“whether 	the
evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail
as 	a 	matter 	of 	law.” 	Anderson 	v. 	Liberty 	Lobby, 	Inc., 	477 	U.S.
242, 	251–52 	(1986). 	At 	its 	core, 	the 	summary-judgment 	process
examines whether a trial is needed. 	See id. at 250.
IV. 	DISCUSSION
For 	the 	reasons 	discussed 	below, 	the 	Court 	finds 	that
Defendants are entitled to qualified immunity with respect to the
federal claims, and the remaining claims fail as a matter of law.
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A. 	Qualified Immunity
Qualified 	immunity 	can 	be 	afforded 	to 	government 	officials
for 	discretionary 	acts 	taken 	in 	their 	official 	capacity. 	The
protection 	extends 	to 	“all 	but 	the 	plainly 	incompetent 	or 	those
who 	knowingly 	violate 	the 	law.” 	Malley 	v. 	Briggs, 	475 	U.S. 	335,
341 	(1986). 	An 	officer, 	generally, 	is 	protected 	by 	qualified
immunity 	if 	his 	“actions 	could 	reasonably 	have 	been 	thought
consistent 	with 	the 	rights 	they 	are 	alleged 	to 	have 	violated.”
Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citation omitted).
The test to determine whether an officer is entitled to qualified
immunity 	is 	two-fold: 	(1) 	whether, 	taken 	in 	the 	light 	most
favorable 	to 	the 	party 	asserting 	the 	injury, 	the 	facts 	alleged
show 	that 	the 	officer’s 	conduct 	violated 	a 	constitutional 	right,
and 	(2) 	whether 	that 	right 	was 	clearly 	established 	such 	that 	a
reasonable 	person 	would 	have 	known. 	Siegert 	v. 	Gilley, 	500 	U.S.
226, 	232 	(1991). 	The 	Court 	can 	address 	either 	prong 	first.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“For 	a 	right 	to 	be 	clearly 	established, 	existing 	precedent
must 	have 	placed 	the 	statutory 	or 	constitutional 	question 	beyond
debate.” 	Safar 	v. 	Tingle, 	859 	F.3d 	241, 	246 	(4th 	Cir. 	2017)
(citation 	and 	internal 	quotations 	omitted). 	“[A] 	right 	is 	only
clearly 	established 	if 	it 	has 	a 	sufficiently 	clear 	foundation 	in
then-existing 	precedent.” 	Thurston 	v. 	Frye, 	99 	F.4th 	665, 	678
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(4th Cir. 2024) (citations and internal quotation marks omitted).
The 	“dispositive 	inquiry . 	. 	. 	is 	whether 	it 	would 	be 	clear 	to 	a
reasonable officer that his conduct was unlawful in the situation
he 	confronted.” 	Brosseau 	v. 	Haugen, 	543 	U.S. 	194, 	198–99 	(2004)
(citation omitted). 	As the Fourth Circuit has recently explained,
the 	“crucial 	question 	is 	whether 	every 	reasonable 	officer 	would
know 	this 	action 	in 	this 	situation 	was 	unlawful.” 	Wells 	v.
Fuentes, 126 F.4th 882, 890 (4th Cir. 2025) (citation omitted and
emphasis modified).
To 	determine 	whether 	a 	right 	was 	clearly 	established, 	the
Court looks to cases from the Supreme Court and the Fourth Circuit.
See 	Thompson 	v. 	Commonwealth 	of 	Va., 	878 	F.3d 	89, 	109 	(4th 	Cir.
2017) 	(citation 	omitted). 	In 	the 	absence 	of 	on-point, 	binding
authority, 	courts 	should 	also 	consider 	whether 	“the 	right 	was
clearly established based on general constitutional principles or
a 	consensus 	of 	persuasive 	authority.” 	Booker 	v. 	S.C. 	Dep’t. 	of
Corr., 	855 	F.3d 	533, 	543 	(4th 	Cir. 	2017). 	The 	Supreme 	Court 	has
warned 	against 	“defining 	a 	right 	at 	too 	high 	a 	level 	of
generality.” 	Ray 	v. 	Roane, 	948 	F.3d 	222, 	229 	(4th 	Cir. 	2020)
(citation omitted). 	It has “stressed the need to ‘identify a case’
or 	a 	‘body 	of 	relevant 	case 	law’ 	where 	‘an 	officer 	acting 	under
similar 	circumstances . . . was 	held 	to 	have 	violated 	the
[Constitution].” 	Rambert 	v. 	City 	of 	Greenville, 	107 	F.4th 	388,
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402 	(4th 	Cir. 	2024) 	(citing 	District 	of 	Columbia 	v. 	Wesby, 	583
U.S. 	48, 	64 	(2018), 	and 	White 	v. 	Pauly, 	580 	U.S. 	73, 	79 	(2017)).
The right must be defined “in light of the specific context of the
case, not as a broad general proposition.” 	Younger v. Crowder, 79
F.4th 373, 385 (4th Cir. 2023) (citations omitted).
The 	Fourth 	Circuit 	applies 	a 	“split 	burden 	of 	proof 	for 	the
qualified-immunity defense.” 	Jones v. Solomon, 90 F.4th 198, 207
(4th Cir. 2024) (citation omitted). 	The plaintiff bears the burden
of 	proving 	the 	first 	prong 	(that 	the 	conduct 	violated 	a
constitutional right), and the officer bears the burden of proving
the 	second 	prong 	(that 	the 	right 	was 	not 	clearly 	established).
Id.
B. 	Excessive Force
An 	officer’s 	use 	of 	force 	is 	analyzed 	under 	the 	Fourth
Amendment’s “reasonableness” analysis. 	Graham v. Conner, 490 U.S.
386, 	397 	(1989). 	Force 	is 	not 	excessive 	if 	it 	is 	objectively
reasonable 	under 	the 	circumstances 	facing 	the 	officer, 	without
regard 	to 	his 	underlying 	intent. 	Id. 	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.” 	Id. 	at 	396–97. 	“[T]he 	determination
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whether 	a 	reasonable 	person 	in 	the 	officer’s 	position 	would 	have
known 	that 	his 	conduct 	would 	violate 	the 	right 	at 	issue 	must 	be
made on the basis of information actually possessed by the officer
at the critical time, . . . or that was then reasonably available
to 	him, . . . and 	in 	light 	of 	any 	exigencies 	of 	time 	and
circumstances 	that 	reasonably 	may 	have 	affected 	the 	officer’s
perceptions.” 	Pritchett v. Alford, 973 F.2d 307, 312–13 (4th Cir.
1992) 	(citations 	omitted). 	“At 	the 	summary 	judgment 	stage, 	once
we 	have 	viewed 	the 	evidence 	in 	the 	light 	most 	favorable 	to 	the
nonmovant, 	the 	question 	of 	whether 	the 	officer’s 	actions 	were
reasonable is a question of pure law.” 	Henry v. Purnell, 652 F.3d
524, 531 (4th Cir. 2011) (citation omitted).
The 	Court 	looks 	to 	the 	totality 	of 	the 	circumstances 	in
assessing whether force was reasonable. 	See Barnes v. Felix, 605
U.S. 	73, 	79 	(2025). 	The 	Supreme 	Court 	has 	identified 	certain
factors to consider:
(1) 	the 	severity 	of 	the 	crime 	at 	issue, 	(2)
whether the suspect poses an immediate threat
to 	the 	safety 	of 	the 	officers 	or 	others, 	and
(3) whether he is actively resisting arrest or
attempting to evade arrest by flight.
Graham v. Connor, 490 U.S. 386, 396 (1989) (numbering added). 	The
Court 	also 	considers 	“the 	extent 	of 	the 	plaintiff’s 	injury” 	and
“any 	effort 	made 	by 	the 	officer 	to 	temper 	or 	to 	limit 	the 	amount
of force[.]” 	Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).
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1. 	Tasers
a. 	Clearly Established Right (Prong Two)
The 	Court 	will 	first 	consider 	whether 	the 	firing 	of 	three
taser 	shots 	at 	Wittkamper 	under 	the 	circumstances 	violated 	a
clearly 	established 	right. 	After 	reviewing 	the 	record 	and
conducting 	its 	own 	research, 	the 	Court 	cannot 	find 	any 	case 	law
establishing 	that 	the 	use 	of 	tasers 	in 	this 	situation 	violated 	a
clearly 	established 	right. 	Defendants 	were 	responding 	to 	a 	911
call 	stating 	that 	Wittkamper 	had 	struck 	an 	elderly 	woman 	and 	was
“high.” 	Wittkamper 	was 	completely 	naked, 	approximately 	400
pounds, 	and 	acting 	erratically, 	and 	Defendants 	believed 	that 	he
was 	under 	the 	influence. 	Wittkamper 	charged 	toward 	Jenkins 	and
moved 	toward 	Ellis, 	repeatedly 	refusing 	their 	commands 	to 	get 	on
the ground.
Plaintiff cites certain cases to prove a clearly established
right, 	but 	the 	cases 	are 	not 	factually 	comparable 	to 	this 	one.
For instance, citing Yates v. Terry, he writes that “a nonviolent
misdemeanant 	who 	is 	compliant, 	is 	not 	actively 	resisting 	arrest,
and poses no threat to the safety of the officer or others should
not be subjected to unnecessary, gratuitous, and disproportionate
force.” 	817 	F.3d 	877, 	888 	(4th 	Cir. 	2016) 	(quotation 	marks
omitted). 	Here, 	of 	course, 	Wittkamper’s 	alleged 	misdemeanor 	was
violent, 	and 	he 	was 	resisting 	arrest. 	Objectively, 	he 	posed 	a
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threat 	to 	the 	safety 	of 	the 	officers 	when 	he 	charged 	them,
approached them, and ignored their commands. 	Plaintiff also relies
on Martin v. City of Broadview Heights, a nonbinding Sixth Circuit
case, writing that “[a] reasonable officer should have known that
subduing 	an 	unarmed, 	minimally 	dangerous, 	and 	mentally 	unstable
individual 	with 	compressive 	body 	weight, 	head 	and 	body 	strikes,
neck 	and 	shin 	restraints, 	and 	torso 	locks 	would 	violate 	that
person’s 	clearly 	established 	right 	to 	be 	free 	from 	excessive
force.” 	712 F.3d 951, 963 (6th Cir. 2013). 	Here, Defendants did
not 	use 	body 	strikes, 	neck 	and 	shin 	restraints, 	or 	torso 	locks.
Finally, 	Plaintiff 	relies 	on 	Drummond 	v. 	City 	of 	Anaheim, 	a
nonbinding 	Ninth 	Circuit 	case, 	writing, 	“The 	officers 	allegedly
crushed [the plaintiff] against the ground by pressing their weight
on 	his 	neck 	and 	torso, 	and 	continu[ed] 	to 	do 	so 	despite 	his
repeated 	cries 	for 	air, 	and 	despite 	the 	fact 	that 	his 	hands 	were
cuffed 	behind 	his 	back 	and 	he 	was 	offering 	no 	resistance. 	Any
reasonable officer should have known that such conduct constituted
use 	of 	excessive 	force.” 	343 	F.3d 	1052, 	1061 	(9th 	Cir. 	2003)
(emphasis removed). 	Again, here, Defendants did not place weight
on Wittkamper’s neck, and Wittkamper was not crying for air. 	The
situations are not comparable.
Because there is no clearly established right to be free from
taser use by Defendants under these circumstances, the Court finds
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that Defendants are entitled to qualified immunity with respect to
any claim of excessive force stemming from the deployment of their
tasers.
b. 	Constitutional Violation (Prong One)
In addition, the Court, after assessing Defendants’ actions,
finds that Defendants’ taser use was reasonable and did not violate
the 	Fourth 	Amendment. 	Looking 	at 	the 	first 	Graham 	factor 	(the
severity 	of 	the 	crime 	at 	issue), 	Defendants 	were 	responding 	to 	a
domestic 	battery 	call. 	The 	caller 	reported 	that 	Wittkamper 	had
struck 	Mrs. 	Cummings. 	While 	domestic 	battery 	is 	a 	misdemeanor,
the 	alleged 	crime 	here 	is 	a 	violent 	one. 	Thus, 	the 	first 	Graham
factor weighs in favor of Defendants.
Turning to the second Graham factor (whether Wittkamper posed
an 	immediate 	threat), 	although 	Wittkamper 	was 	naked 	and 	unarmed,
he 	weighed 	400 	pounds, 	charged 	Jenkins, 	and 	moved 	toward 	Ellis
multiple times. 	He refused to follow their commands to get on the
ground. 	Defendants 	observed 	that 	he 	appeared 	to 	be 	undergoing 	a
mental 	health 	episode 	or 	was 	possibly 	under 	the 	influence.
Objectively, 	given 	that 	Wittkamper 	repeatedly 	moved 	toward 	the
officers, 	it 	would 	be 	reasonable 	to 	feel 	that 	he 	posed 	a 	threat.
This weighs in favor of Defendants.
As 	for 	the 	third 	Graham 	factor 	(whether 	Wittkamper 	was
actively 	resisting 	or 	attempting 	to 	flee), 	Wittkamper 	was
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resisting Defendants. 	He approached Defendants despite being told
not to do so, and he ignored multiple commands. 	The third factor
weighs in favor of Defendants. 	It is also important to note that,
when viewing the body camera footage, the tasers did not appear to
deter Wittkamper in real time when Defendants were deploying them.
In 	Rambert 	v. 	City 	of 	Greenville, 	the 	Fourth 	Circuit 	found
that 	use 	of 	deadly 	force 	against 	an 	unarmed 	suspect, 	who 	ignored
commands 	to 	get 	on 	the 	ground 	and 	rushed 	at 	an 	officer, 	was
constitutionally reasonable. 	107 F.4th 388. 	Here, the taser use
did 	not 	even 	rise 	to 	the 	use 	of 	deadly 	force. 	Further, 	under
Rambert, 	even 	if 	law 	enforcement 	thought 	that 	the 	suspect 	was
undergoing 	mental 	health 	issues, 	the 	force 	used 	was 	still
reasonable. 	Id. 	at 	401 	(“[E]ven 	if 	Rambert 	were 	in 	mental
distress, 	he 	was 	a 	potential 	breaking-and-entering 	suspect 	who
charged 	at 	Johnson 	at 	full 	speed 	while 	yelling 	and 	ignoring
Johnson’s 	commands 	to 	get 	on 	the 	ground, 	ultimately 	reaching 	a
proximity 	where 	he 	might 	have 	been 	able 	to 	grapple 	with 	Johnson
and seize his gun. 	And Rambert continued to advance aggressively
even 	after 	being 	shot 	by 	Johnson. 	Whether 	or 	not 	he 	was
experiencing 	the 	effects 	of 	mental 	illness, 	Rambert 	posed 	an
imminent 	threat 	to 	Johnson.”). 	For 	all 	of 	these 	reasons,
Defendants’ 	taser 	use 	was 	constitutionally 	reasonable, 	and
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Defendants 	are 	additionally 	entitled 	to 	qualified 	immunity 	for
their taser use.
2. 	Prone Position
a. 	Clearly Established Right (Prong Two)
Now, the Court will assess whether it was clearly established
that 	it 	violated 	the 	Fourth 	Amendment 	to 	hold 	Wittkamper 	in 	the
prone 	position 	as 	Defendants 	did 	here. 	Again, 	Defendants 	were
responding 	to 	a 	911 	call 	stating 	that 	Wittkamper 	had 	struck 	an
elderly 	woman 	and 	was 	“high.” 	Wittkamper 	was 	approximately 	400
pounds, 	completely 	naked, 	and 	acting 	erratically, 	and 	Defendants
believed 	that 	he 	was 	under 	the 	influence. 	Wittkamper 	charged
toward 	Jenkins 	and 	moved 	toward 	Ellis, 	repeatedly 	refusing
commands to get on the ground. 	After Defendants finally took him
to 	the 	ground, 	he 	was 	in 	the 	prone 	position 	for 	approximately 	45
seconds 	while, 	due 	to 	his 	size, 	Defendants 	placed 	two 	sets 	of
handcuffs 	on 	him. 	Wittkamper 	was 	moving 	his 	legs. 	Jenkins 	and
Stely each had a hand on his back. 	Ellis and Stipanovic each held
down one of Wittkamper’s legs. 	Wittkamper continued to wiggle and
move for a period of time. 	He was then still for approximately 30
seconds. 	After 	being 	still 	for 	approximately 	30 	seconds, 	which
was 	approximately 	two 	minutes 	after 	the 	handcuffs 	were 	placed,
Defendants 	noticed 	that 	Wittkamper 	had 	become 	unresponsive 	and
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begun agonal breathing, so Defendants rolled him on his side into
the recovery position.
Again, 	after 	reviewing 	the 	record 	and 	conducting 	its 	own
research, 	the 	Court 	has 	been 	unable 	to 	locate 	any 	cases 	from 	the
Fourth Circuit or Supreme Court that show that at the time of the
incident, 	it 	was 	clearly 	established 	that 	keeping 	Wittkamper 	in
the prone position as Defendants did was a violation of the Fourth
Amendment. 	To 	argue 	that 	Wittkamper 	had 	a 	right 	to 	be 	free 	from
Defendants’ 	force 	after 	the 	danger 	he 	posed 	had 	passed 	is 	“too
general” a description to constitute a clearly established right.
See 	Rambert, 	107 	F.4th 	at 	402. 	Accordingly, 	Defendants 	are
entitled 	to 	qualified 	immunity 	with 	respect 	to 	any 	claim 	of
excessive 	force 	stemming 	from 	placing 	Wittkamper 	in 	the 	prone
position.
b. 	Constitutional Violation (Prong One)
In addition, the Court, after assessing Defendants’ actions,
finds 	that 	Defendants’ 	placement 	of 	Wittkamper 	in 	the 	prone
position for two minutes and 45 seconds, and their actions during
that 	time, 	were 	reasonable 	and 	did 	not 	violate 	the 	Fourth
Amendment. 	After 	Defendants 	brought 	Wittkamper 	to 	the 	ground 	in
the prone position, they worked to place two sets of handcuffs on
him 	due 	to 	his 	size. 	Approximately 	45 	seconds 	passed 	while 	they
placed 	the 	handcuffs. 	Wittkamper 	was 	moving 	his 	legs. 	Jenkins
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and Stely each had a hand on his back. 	Ellis and Stipanovic each
held down one of Wittkamper’s legs. 	Wittkamper continued to wiggle
and move for a period of time. 	He was still for approximately 30
seconds, 	which 	was 	approximately 	two 	minutes 	after 	the 	handcuffs
were 	placed, 	when 	Defendants 	rolled 	him 	on 	his 	side 	into 	the
recovery position. 	Given that Wittkamper had refused Defendants’
commands up until that point, it would be reasonable for Defendants
to believe that he was continuing to resist by moving. 	Again, his
entire 	body 	was 	still 	for 	only 	30 	seconds, 	when 	they 	moved 	him
into the recovery position. 	This all constitutes a reasonable use
of 	force, 	and 	Defendants 	are 	additionally 	entitled 	to 	qualified
immunity 	for 	this 	reason 	with 	respect 	to 	any 	claim 	of 	excessive
force while Wittkamper was in the prone position.
C. 	Deliberate Indifference
The Supreme Court has held that a pretrial detainee may prove
a 	Fourteenth 	Amendment 	due 	process 	violation 	if 	he 	can 	show 	a
“deliberate 	indifference 	to 	serious 	medical 	needs[.]” 	Martin 	v.
Gentile, 849 F.2d 863, 870-71 (4th Cir. 1988) (citations omitted).
“Under this standard, a plaintiff must prove: (1) that the detainee
had an objectively serious medical need; and (2) that the official
subjectively 	knew 	of 	the 	need 	and 	disregarded 	it.” 	Doe 	4 	by 	&
through Lopez v. Shenandoah Valley Juv. Ctr. Comm’n, 985 F.3d 327,
340 	(4th 	Cir. 	2021) 	(citations 	omitted). 	The 	Fourth 	Circuit 	has
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held 	that 	a 	law 	enforcement 	officer’s 	calling 	for 	medical 	aid
rather 	than 	rendering 	it 	himself 	does 	not 	violate 	a 	clearly
established 	right. 	King 	v. 	Riley, 	76 	F.4th 	259, 	269 	(4th 	Cir.
2023) 	(finding 	officers 	entitled 	to 	qualified 	immunity 	on
deliberate 	indifference 	claim). 	Rather, 	“good-faith 	efforts 	to
remedy 	the 	plaintiff’s 	problems 	will 	prevent 	finding 	deliberate
indifference, absent extraordinary circumstances.” 	Koon v. North
Carolina, 50 F.4th 398, 407 (4th Cir. 2022).
Here, 	after 	Wittkamper 	had 	been 	in 	the 	prone 	position 	for
approximately 	2 	minutes 	and 	45 	seconds, 	and 	for 	only 	2 	minutes
after 	the 	handcuffs 	were 	placed, 	Defendants 	noticed 	Wittkamper’s
agonal 	breathing 	and 	placed 	him 	on 	his 	side. 	Defendants 	did 	not
perform CPR. 	EMS was already on its way, however, and Defendants
expedited the EMS request when they turned Wittkamper on his side.
The 	law 	is 	clear 	that 	Defendants 	had 	no 	Fourteenth 	Amendment
obligation 	to 	provide 	CPR 	to 	Wittkamper. 	It 	is 	sufficient 	that
they 	contacted 	EMS 	and 	then 	called 	to 	expedite 	EMS. 	EMS 	arrived
only 	seven 	minutes 	after 	Wittkamper 	was 	handcuffed. 	Simply 	put,
it 	was 	not 	clearly 	established 	that 	Defendants 	were 	required 	to
provide CPR to Wittkamper. 	To the contrary, it is not a Fourteenth
Amendment violation. 	The Court, therefore, finds that Defendants
are entitled to qualified immunity with respect to the deliberate
indifference claim.
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D. 	Bystander Liability
“The 	concept 	of 	bystander 	liability 	is 	premised 	on 	a 	law
officer’s 	duty 	to 	uphold 	the 	law 	and 	protect 	the 	public 	from
illegal acts, regardless of who commits them.” 	Randall v. Prince
George’s Cnty., 302 F.3d 188, 203 (4th. Cir. 2002). 	To succeed on
a 	section 	1983 	claim 	for 	bystander 	liability, 	a 	plaintiff 	must
show that an officer “(1) knows that a fellow officer is violating
an 	individual’s 	constitutional 	rights; 	(2) 	has 	a 	reasonable
opportunity to prevent the harm; and (3) chooses not to act.” 	Id.
at 204. 	Here, as discussed, Defendants are entitled to qualified
immunity 	with 	respect 	to 	the 	claims 	of 	excessive 	force 	and
deliberate 	indifference. 	The 	Court 	has 	found 	that 	Defendants’
conduct 	was 	reasonable. 	Accordingly, 	Plaintiff’s 	claim 	of
bystander 	liability 	must 	fail, 	and 	Defendants 	are 	entitled 	to
summary judgment.
E. 	Battery
Under West Virginia law, employees of a political subdivision
generally 	are 	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
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(3) 	Liability 	is 	expressly 	imposed 	upon 	the
employee by a provision of this code.
W. 	Va. 	Code 	§ 	29-12A-5(b). 	The 	Supreme 	Court 	of 	Appeals 	of 	West
Virginia 	has 	held 	that 	in 	the 	context 	of 	this 	statute, 	the 	terms
“willful,” “wanton,” and “reckless” mean that
the actor has intentionally done an act of an
unreasonable character in disregard of a risk
known 	to 	him 	or 	so 	obvious 	that 	he 	must 	be
taken 	to 	have 	been 	aware 	of 	it, 	and 	so 	great
as to make it highly probable that harm would
follow. 	It 	usually 	is 	accompanied 	by 	a
conscious 	indifference 	to 	the 	consequences,
amounting 	almost 	to 	willingness 	that 	they
shall 	follow; 	and 	it 	has 	been 	said 	that 	this
is indispensable.
Holsten 	v. 	Massey, 	490 	S.E.2d 	864, 	877 	(W. 	Va. 	1997) 	(citation
omitted). 	Here, 	after 	reviewing 	the 	body 	camera 	footage 	and 	all
other evidence submitted, the Court finds that Defendants’ actions
were within the scope of their employment, and their actions were
not taken with malicious purpose, in bad faith, or in a wanton or
reckless manner. 	Accordingly, they are entitled to immunity with
respect to the battery claim.
In the alternative, the battery claim fails because it abated
upon Wittkamper’s death. 	The West Virginia Code provides,
In 	addition 	to 	the 	causes 	of 	action 	which
survive 	at 	common 	law, 	causes 	of 	action 	for
injuries 	to 	property, 	real 	or 	personal,
injuries 	to 	the 	person 	and 	not 	resulting 	in
death, 	deceit 	or 	fraud, 	or 	any 	violations 	of
§ 	46A-1-101 	et. 	seq. 	of 	this 	code, 	also
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survive; 	and 	such 	actions 	may 	be 	brought
notwithstanding 	the 	death 	of 	the 	person
entitled to recover or the death of the person
liable.
W. Va. Code § 55-7-8a(a). 	This Court has found that under W. Va.
Code 	§ 	55-7-8a, 	“only 	injuries 	not 	resulting 	in 	death 	survive.”
Hoover v. Trent, No. 1:07cv47, 2008 WL 2992987, at *5 (N.D.W. Va.
Aug. 	1, 	2008) 	(Keeley, 	J.) 	(finding 	that 	the 	plaintiff’s 	battery
claim abated). 	The United States District Court for the Southern
District 	of 	West 	Virginia 	has 	also 	found 	that 	a 	battery 	claim
abates 	upon 	death 	under 	W. 	Va. 	Code 	§ 	55-7-8a(a). 	Myers 	v. 	City
of Charleston, No. 2:19-cv-00757, 2020 WL 4195005, at *12 (S.D.W.
Va. July 21, 2020) (Johnston, J.) (“Plaintiffs’ claim fails because
the 	claim 	of 	assault 	and 	battery 	does 	not 	survive 	Adam’s
death[.]”); 	Spry 	v. 	West 	Virginia, 	No. 	2:16-cv-01785, 	2017 	WL
1483370, 	at 	*9 	(S.D.W. 	Va. 	Apr. 	24, 	2017) 	(Johnston, 	J.) 	(“The
battery claim brought by Mr. Spry’s estate cannot proceed because
West 	Virginia 	claims 	for 	battery 	do 	not 	survive 	death.”). 	Here
too, Plaintiff’s claim for battery abated upon Wittkamper’s death.
Finally, 	in 	another 	alternative, 	the 	battery 	claim 	fails 	on
the 	merits. 	In 	West 	Virginia, 	a 	person 	is 	liable 	for 	battery 	if
(1) 	“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 	(2) 	“a 	harmful 	contact 	with
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the person of the other directly or indirectly results.” 	Crawford
v. Daniels, No. 2:23-CV-00585, 2024 WL 1895105, at *7, (S.D.W. Va.
Apr. 	30, 	2024) 	(quoting 	W. 	Va. 	Fire 	& 	Cas. 	Co. 	v. 	Stanley, 	602
S.E.2d 	483, 	494 	(W. Va. 	2004)). 	Generally, 	a 	law 	enforcement
officer 	“engaged 	in 	an 	arrest 	is 	afforded 	a 	privilege 	that
precludes a battery claim.” 	Weigle v. Pifer, 139 F. Supp. 3d 760,
776 	(S.D.W. 	Va. 	2015). 	The 	Court 	has 	already 	found 	that
Defendants’ 	actions 	were 	reasonable. 	Accordingly, 	the 	battery
claim fails on the merits. 	For three different reasons, Defendants
are entitled to summary judgment on the battery claim.
F. 	Outrage or Intentional Infliction of Emotional Distress
First, 	for 	the 	same 	reasons 	discussed 	above 	with 	respect 	to
the 	battery 	claim, 	Defendants 	are 	entitled 	to 	immunity 	for 	the
claim of IIED under W. Va. Code § 29-12A-5(b). 	In the alternative,
the 	IIED 	claim 	fails 	because 	it 	abated 	upon 	Wittkamper’s 	death.
Again, 	as 	discussed, 	this 	Court 	has 	found 	that 	under 	W. 	Va. 	Code
§ 55-7-8a, “only injuries not resulting in death survive.” 	Hoover,
2008 	WL 	2992987, 	at 	*5 	(finding 	that 	the 	plaintiff’s 	IIED 	claims
abated 	under 	West 	Virginia 	law). 	The 	Southern 	District 	has 	also
found 	that 	an 	IIED 	claim 	abates 	upon 	death. 	Myers, 	2020 	WL
4195005, 	at 	*13 	(same). 	Here 	too, 	the 	IIED 	claim 	abated 	upon
Wittkamper’s death, so the IIED claim fails as a matter of law.
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Even 	if 	the 	IIED 	claim 	did 	not 	abate 	and 	even 	if 	Defendants
were 	not 	immune, 	the 	IIED 	claim 	would 	fail 	on 	the 	merits. 	To
prevail on an IIED claim, a plaintiff must establish the following:
(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.
Syl. 	Pt. 	3, 	Travis 	v. 	Alcon 	Lab’ys, 	Inc., 	504 	S.E.2d 	419 	(W. 	Va.
1998). 	The 	conduct 	must 	be 	“so 	outrageous 	in 	character, 	and 	so
extreme in degree, as to go beyond all possible bounds of decency,
and 	to 	be 	regarded 	as 	atrocious 	and 	utterly 	intolerable 	in 	a
civilized community.” 	Harless v. First Nat. Bank in Fairmont, 289
S.E.2d 692, 705 (W. Va. 1982). 	Here, the Court has already found
that 	Defendants’ 	conduct 	was 	reasonable. 	Defendants’ 	conduct
simply 	does 	not 	rise 	to 	the 	high 	level 	required 	to 	prove 	a 	claim
of 	IIED. 	Accordingly, 	the 	IIED 	claim 	fails 	on 	the 	merits. 	For
three 	different 	reasons, 	Defendants 	are 	entitled 	to 	summary
judgment with respect to the IIED claim.
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G. 	Wrongful Death
Wrongful death claims are derivative by nature. 	See Syl. Pt.
4, 	Davis 	v. 	Foley, 	457 	S.E.2d 	532 	(W. 	Va. 	1995) 	(“The 	damages 	in
a wrongful death action arise out of the death of the decedent[,]
thereby making a wrongful death action a derivative claim.”). 	The
West Virginia Code provides,
Whenever the death of a person shall be caused
by wrongful act, neglect, or default, and the
act, 	neglect 	or 	default 	is 	such 	as 	would 	(if
death had not ensued) have entitled the party
injured 	to 	maintain 	an 	action 	to 	recover
damages in respect thereof, then, and in every
such case, the person who, or the corporation
which, would have been liable if death had not
ensued, 	shall 	be 	liable 	to 	an 	action 	for
damages, 	notwithstanding 	the 	death 	of 	the
person 	injured, 	and 	although 	the 	death 	shall
have 	been 	caused 	under 	such 	circumstances 	as
amount in law to murder in the first or second
degree, or manslaughter.
W. Va. Code § 55-7-5. 	“To maintain an action for wrongful death,
a 	beneficiary 	must 	show 	two 	specific 	elements: 	that 	a 	person 	has
died, and that the death was caused by a wrongful act, neglect or
default.” 	Bradshaw v. Soulsby, 558 S.E.2d 681, 687 (W. Va. 2001).
Here, 	the 	Court 	has 	granted 	summary 	judgment 	with 	respect 	to 	all
remaining claims. 	The derivative wrongful death claim, therefore,
must also fail. 	Defendants are entitled to summary judgment.
V. 	CONCLUSION
For the above reasons, the Court ORDERS as follows:
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x 	The motion for summary judgment is GRANTED in
its entirety;
x 	This action is DISMISSED and STRICKEN from the
Court’s active docket;
x 	Any 	remaining 	pending 	motions 	shall 	be
TERMINATED [ECF Nos. 110, 111, 112, 113]; and
x 	The 	Clerk 	is 	DIRECTED 	to 	enter 	a 	separate
judgment order.
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion and Order to counsel of record.
DATED: June 22, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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