Nicholas v. Clarksburg Police Department

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
KOBE BUNNELL,
Plaintiff,
v. 	CIVIL ACTION NO. 1:25-CV-16
(KLEEH)
WILLIAM REED, former police officer
for the City of Clarksburg,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED
COMPLAINT [ECF NO. 56]
Pending 	before 	the 	Court 	is 	Defendant 	William 	Reed’s 	Motion
to Dismiss the Third Amended Complaint. ECF No. 56. For the reasons
discussed herein, the Motion is GRANTED IN PART AND DENIED IN PART.
I. 	PROCEDURAL HISTORY
On February 23, 2026, Kobe Bunnell (“Bunnell” or “Plaintiff”)
filed 	the 	Third 	Amended 	Complaint 	against 	Defendant 	William 	Reed
(“Defendant 	Reed” 	or 	“Defendant”), 	a 	former 	sergeant 	for 	the
Clarksburg Police Department. ECF No. 53. Specifically, Counts One
and 	Two 	are 	brought 	under 	42 	U.S.C. 	§ 	1983 	and 	allege 	(1) 	False
Arrest and (2) Excessive Force. Count Three is brought under West
Virginia common law, alleging Battery and Assault. Id.
On March 9, 2026, Defendant Reed moved to dismiss Counts One
and Two of the Third Amended Complaint based on qualified immunity.
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ECF 	Nos. 	56, 	57. 	Furthermore, 	Defendant 	moved 	to 	dismiss 	Count
Three 	under 	West 	Virginia 	Code 	§ 	29-12A-5(b) 	statutory 	immunity
and common law privilege. Id. On March 23, 2026, Plaintiff Bunnell
filed his Memorandum in Opposition of Defendant’s Motion to Dismiss
[ECF 	No. 	59], 	and 	Defendant 	Reed 	filed 	his 	reply 	in 	support 	of
dismissal on March 30, 2026 [ECF No. 60].
Defendant 	Reed 	previously 	moved 	to 	dismiss 	the 	Second 	Amended
Complaint 	on 	September 	15, 	2025 	[ECF 	No. 	35]. 	The 	Third 	Amended
Complaint 	is 	identical 	to 	the 	Second 	Amended 	Complaint 	but 	was
filed to designate Bunnell as Plaintiff because he reached the age
of majority. See ECF Nos. 35, 53, and ECF No. 57 at p. 1. 1
II. 	FACTUAL ALLEGATIONS
In 	the 	Third 	Amended 	Complaint, 	Plaintiff 	alleges 	that 	on
October 16, 2021, he was dropped off at Robert C. Byrd High School
(“RCB”) 	by 	his 	mother 	Valerie 	Nicholas 	to 	watch 	his 	girlfriend
compete in a volleyball competition. ECF No. 53, Third Am. Compl.
at ¶ 8. Plaintiff was thirteen years old at the time. Id. at ¶ 7.
Ms. Nicholas dropped Plaintiff off at approximately 7:45 p.m. right
past 	the 	driveway 	of 	a 	home 	on 	RCB 	property, 	which 	is 	owned 	by
Harrison County Board of Education and reserved for the Prevention
Resource Officer (“PRO”). Id. at ¶¶ 10-11. Plaintiff allegedly had
arranged 	for 	his 	mother 	to 	pick 	him 	up 	at 	the 	conclusion 	of 	the
1 Defendant Reed’s Motion to Dismiss the Second Amended Complaint [ECF
No. 35] is DENIED AS MOOT.
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volleyball 	tournament 	but 	discovered 	that 	the 	tournament 	was
already 	over 	when 	he 	entered 	the 	high 	school. 	Id. 	at 	¶¶ 	9, 	13.
Plaintiff 	exited 	RCB 	to 	call 	his 	mother 	to 	come 	pick 	him 	up. 	Id.
at ¶¶ 14.
While 	walking 	through 	the 	RCB 	parking 	lot, 	a 	car 	approached
Plaintiff, 	with 	“bright, 	white 	lights 	directly 	on 	him.” 	Id. 	at
¶ 15. 	Plaintiff 	alleges 	he 	suffers 	from 	astigmatism 	and 	Visual
Snow Syndrome, which causes “persistent visual disturbances, often
described 	as 	seeing 	static 	or 	snow 	all 	the 	time.” 	Id. 	at 	¶ 	16.
These 	conditions 	caused 	Plaintiff 	to 	believe 	the 	vehicle 	was 	a
truck, but it was a police cruiser. Id. at ¶¶ 17, 32.
Defendant Reed, who did not identify himself at the time, was
driving 	the 	vehicle, 	and 	instructed 	Plaintiff 	to 	“get 	over 	here”
in an allegedly “aggressive tone.” Id. at ¶¶ 18-20. Defendant was
a 	Sergeant 	for 	the 	City 	of 	Clarksburg 	Police 	Department 	at 	the
time 	of 	the 	incident. 	Id. 	at 	¶¶ 	3, 	20. 	Plaintiff 	approached 	the
vehicle, and Defendant accused him of “being around his cars.” Id.
at 	¶ 	19. 	Defendant 	Reed 	allegedly 	lived 	at 	the 	home 	reserved 	for
the PRO on RCB property near where Plaintiff had been dropped off.
Id. at ¶¶ 21, 23. Plaintiff denied this accusation and “asked what
[Defendant] 	meant.” 	Id. 	at 	¶ 	22. 	Defendant 	allegedly 	stated 	that
his sons had “seen a kid in a black hoodie messing with his cars.”
Plaintiff 	was 	wearing 	a 	hoodie 	but 	told 	Defendant 	Reed 	that 	his
mother had just dropped him off. Id. at ¶ 24.
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Then, Defendant exited his vehicle, opened the back door, and
“ordered Plaintiff to get in.” Id. at ¶¶ 25-26. Plaintiff did not
enter the car. Id. at ¶ 26. Defendant Reed then “grabbed Plaintiff
by the arm, tackled him to the ground, put Kobe in a headlock, and
la[id] 	on 	top 	of 	[him].” 	Id. 	at 	¶ 	27. 	Plaintiff 	alleges 	that 	he
“struggled 	to 	breathe” 	so 	he 	asked 	Defendant 	Reed 	to 	“loosen 	his
grip” 	and 	in 	response, 	Defendant 	“tightened 	the 	head 	lock” 	and
solicited two bystanders to help him restrain Plaintiff. Id. at ¶¶
29-30. 	At 	the 	time, 	Defendant 	Reed 	was 	6’2” 	and 	over 	200 	pounds
and 	Plaintiff 	Bunnell 	was 	5’10” 	and 	110 	pounds. 	Id. 	at 	¶ 	28.
Defendant then handcuffed Plaintiff and put him in the back of the
police cruiser. Id. at ¶ 32.
Plaintiff was ultimately transferred to the Clarksburg police
station, where Defendant Reed allegedly falsely accused Plaintiff
of attempting to hit him. Id. at ¶¶ 33-34. Plaintiff was released
to his mother that evening. Id. at ¶ 39. Ms. Nicholas and Plaintiff
were told that he would be charged with trespassing and obstructing
a 	law 	enforcement 	officer; 	however, 	he 	was 	never 	charged. 	Id. 	at
¶¶ 	40-41. 	As 	a 	result 	of 	the 	incident, 	Plaintiff 	suffered 	cuts,
scratches, 	and 	bruises 	on 	his 	knees, 	shoulders, 	upper 	and 	lower
arms, 	elbows, 	and 	back, 	as 	well 	as 	marks 	on 	his 	wrists 	from 	the
handcuffs. Id. at ¶¶ 32, 42.
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III. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(6)
Rule 	12(b)(6) 	allows 	a 	defendant 	to 	move 	for 	dismissal 	upon
the 	ground 	that 	a 	complaint 	does 	not 	“state 	a 	claim 	upon 	which
relief can be granted.” In ruling on a 12(b)(6) motion to dismiss,
a 	court 	“must 	accept 	as 	true 	all 	of 	the 	factual 	allegations
contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d
181, 188 (4th Cir. 2007) (citations omitted). A court is “not bound
to 	accept 	as 	true 	a 	legal 	conclusion 	couched 	as 	a 	factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986) (citations
omitted).
A 	court 	should 	dismiss 	a 	complaint 	if 	it 	does 	not 	contain
“enough facts to state a claim to relief that is plausible on its
face.” 	Bell 	Atlantic 	Corp. 	v. 	Twombly, 	550 	U.S. 	544, 	570 	(2007).
Plausibility 	exists 	“when 	the 	plaintiff 	pleads 	factual 	content
that 	allows 	the 	court 	to 	draw 	the 	reasonable 	inference 	that 	the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 	U.S. 	662, 	678 	(2009) 	(citation 	omitted). 	A 	motion 	to 	dismiss
“does not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.” Republican Party of N.C.
v. 	Martin, 	980 	F.2d 	943, 	952 	(4th 	Cir. 	1992) 	(citation 	omitted).
Dismissal 	is 	appropriate 	only 	if 	“it 	appears 	to 	a 	certainty 	that
the 	plaintiff 	would 	be 	entitled 	to 	no 	relief 	under 	any 	state 	of
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facts 	which 	could 	be 	proved 	in 	support 	of 	his 	claim.” 	Johnson 	v.
Mueller, 415 F.2d 354, 355 (4th Cir. 1969) (citation omitted).
B. Qualified Immunity
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 v. Callahan,
555 	U.S. 	223, 	231 	(2009) 	(quotation 	marks 	and 	citation 	omitted).
It “may be invoked by a government official sued in his personal,
or 	individual, 	capacity.” 	Ridpath 	v. 	Bd. 	of 	Governors 	Marshall
Univ., 	447 	F.3d 	292, 	306 	(4th 	Cir. 	2006) 	(citation 	omitted). 	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) 	(citations
omitted). 	The 	Supreme 	Court 	has 	“stressed 	the 	importance 	of
resolving 	immunity 	questions 	at 	the 	earliest 	possible 	stage 	in
litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citations
omitted).
The 	test 	to 	determine 	whether 	an 	officer 	is 	entitled 	to
qualified 	immunity 	is 	two-fold: 	the 	Court 	must 	determine 	“(1)
whether 	a 	constitutional 	violation 	occurred; 	and 	(2) 	whether 	the
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right 	was 	clearly 	established 	at 	the 	time 	of 	the 	violation[.]”
Jones 	v. 	City 	of 	Martinsburg, 	961 	F.3d 	661, 	667 	(4th 	Cir. 	2020)
(citation 	omitted). 	The 	United 	States 	Court 	of 	Appeals 	for 	the
Fourth Circuit applies a “split burden of proof for the qualified-
immunity 	defense. 	The 	plaintiff 	bears 	the 	burden 	on 	the 	first
prong, 	and 	the 	officer 	bears 	the 	burden 	on 	the 	second 	prong.”
Stanton 	v. 	Elliott, 	25 	F.4th 	227, 	233 	(4th 	Cir. 	2022) 	(citation
omitted). 	The 	Court 	can 	address 	either 	prong 	first. 	Pearson, 	555
U.S. at 236.
“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)
(quotation marks and citation 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 (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, 	199 	(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).
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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, 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).
IV. 	ARGUMENT
A. Defendant 	is 	entitled 	to 	qualified 	immunity 	for 	Plaintiff’s
False Arrest claim in Count One because he had probable cause
to detain Plaintiff Bunnell.
Defendant’s 	Motion 	to 	Dismiss 	is 	GRANTED 	as 	to 	Count 	One
because 	Plaintiff 	Bunnell’s 	refusal 	to 	comply 	with 	Defendant
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Reed’s order to enter his police cruiser constitutes probable cause
for arrest, entitling Defendant to qualified immunity. ECF No. 53
at ¶ 26. Under the Fourth Amendment, every search or seizure must
be reasonable, and a search or seizure is, generally, unreasonable
unless it is based upon probable cause and executed pursuant to a
warrant. U.S. CONST. Amend. IV. To plausibly allege “false arrest,”
a plaintiff must allege sufficient factual content showing he was
arrested 	without 	probable 	cause. 	Brown 	v. 	Gilmore, 	278 	F.3d 	362,
367 	(4th 	Cir. 	2002). 	Probable 	cause 	is 	determined 	“from 	the
totality of the circumstances known to the officer at the time of
the 	arrest,” 	and 	“need 	only 	be 	enough 	evidence 	to 	warrant 	the
belief of a reasonable officer that an offense has been or is being
committed; 	evidence 	sufficient 	to 	convict 	is 	not 	required.” 	Id.
See 	United 	States 	v. 	Dickerson, 	27 	F. 	App'x 	236, 	242 	(4th 	Cir.
2001) The Fourth Circuit applies a two-factor approach to determine
whether probable cause exists: (1) “the suspect’s conduct as known
to the officer, and (2) “the contours of the offense thought to be
committed 	by 	that 	conduct.” 	Smith 	v. 	Munday, 	848 	F.3d 	248, 	253
(4th Cir. 2017) (citations omitted).
The Supreme Court of the United States has further held that
warrantless 	seizures 	are 	“per 	se 	unreasonable 	under 	the 	Fourth
Amendment, subject to only a few specifically established and well
delineated 	exceptions.” 	Katz 	v. 	United 	States, 	389 	U.S. 	347, 	357
(1967). 	One 	such 	exception 	is 	the 	investigative 	stop, 	which 	is
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also referred to as a Terry stop. Terry v. Ohio, 392 U.S. 1 (1968).
A Terry stop has been held to be constitutional when the officer's
action 	is 	supported 	by 	an 	articulable, 	reasonable 	suspicion 	that
the person seized had engaged in criminal activity. United States
v. 	Sokolov, 	490 	U.S. 	1, 	7 	(1989). 	A 	brief 	detention 	for
investigative 	purposes 	is 	reasonable 	if 	an 	officer 	“observes
unusual conduct which leads him reasonably to conclude in light of
his 	experience 	that 	criminal 	activity 	may 	be 	afoot.” 	Terry, 	392
U.S. at 30; see also Turmon v. Jordan, 405 F.3d 202, 205 (4th Cir.
2005).
Reasonable 	suspicion 	“defies 	precise 	definition.” 	United
States 	v. 	McCoy, 	513 	F.3d 	405, 	411 	(4th 	Cir. 	2008). 	To 	determine
whether 	reasonable 	suspicion 	exists, 	courts 	consider 	“the
‘totality of the circumstances’ to determine if the officer had a
‘particularized 	and 	objective 	basis’ 	for 	believing 	that 	the
detained 	suspect 	might 	be 	armed 	and 	dangerous.” 	United 	States 	v.
George, 732 F.3d 296, 299 (4th Cir. 2013), cert. denied, 134 S.Ct.
1530 (2014) (citations omitted). “A host of factors can contribute
to a basis for reasonable suspicion, including the context of the
stop, 	the 	crime 	rate 	in 	the 	area, 	and 	the 	nervous 	or 	evasive
behavior 	on 	the 	suspect.” 	Id. 	(Citing 	Illinois 	v. 	Wardlow, 	528
U.S. 	119, 	124 	(2000)). 	Multiple 	factors 	may 	together 	“create 	a
reasonable suspicion even where each factor, taken alone, would be
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insufficient.” 	Id. 	at 	300 	(citing 	United 	States 	v. 	Branch, 	537
F.3d 328, 339 (4th Cir. 2008)).
Reasonable suspicion can be derived from information given by
a 	third 	party, 	so 	long 	as 	it 	has 	“enough 	indicia 	of 	reliability”
to 	justify 	a 	stop. 	Adams 	v. 	Williams, 	407 	U.S. 	143, 	147 	(1972).
Reasonable 	suspicion 	can 	arise 	“from 	information 	that 	is 	less
reliable 	than 	that 	required 	to 	show 	probable 	cause.” 	Alabama 	v.
White, 	496 	U.S. 	325, 	330 	(1990). 	When 	evaluating 	the 	reliability
of 	third-party 	information, 	the 	Fourth 	Circuit 	looks 	to 	three
factors: (1) the informant’s “proximity to the reported activity,”
(2) “whether the informant reported to the police in public,” and
(3) 	“whether 	the 	officer 	had 	the 	opportunity 	to 	observe 	the
informant’s credibility and demeanor.” U.S. v. Mitchell, (quoting
United States v. Griffin, 589 F.3d 148, 152-153 (4th Cir. 2009)).
Additionally, “where the informant is known or where the informant
relays information to an officer face-to-face, an officer can judge
the credibility of the tipster firsthand and thus confirm whether
the tip is sufficiently reliable to support reasonable suspicion.”
U.S. v. Perkins, 363 F.3d 317, 323 (4th Cir. 2004). One overarching
consideration 	is 	whether 	the 	informant 	will 	be 	able 	to 	be 	held
accountable 	by 	the 	officer 	for 	providing 	false 	information.
Griffin, 589 F.3d at 152.
In 	determining 	whether 	probable 	cause 	existed, 	this 	Court
must examine whether Plaintiff’s conduct matched the “contours of
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the 	offense.” 	Thus, 	West 	Virginia 	state 	law 	governs 	whether
obstruction 	of 	an 	officer 	occurred. 2 	Under 	West 	Virginia 	Code 	§
61-5-17(a), a person is guilty of obstructing an officer if he “by
threats, 	menaces, 	acts, 	or 	otherwise 	forcibly 	or 	illegally
hinders, 	or 	obstructs, 	or 	attempts 	to 	hinder 	or 	obstruct 	a 	law-
enforcement officer.” W. Va. Code § 61-5-17(a) (2025). Obstruction
of 	an 	officer 	“may 	be 	found 	when 	a 	person 	refuses 	to 	comply 	with
an 	officer’s 	orders.” 	Hupp 	v. 	Cook, 	931 	F.3d 	307, 	319 	(4th 	Cir.
2019); 	See 	State 	v. 	Lowery, 	No. 	17-0210, 	2018 	WL 	2193241 	(W. 	Va.
May 14, 2018) (finding that an officer had probable cause to arrest
the 	defendant 	for 	obstruction 	during 	a 	Terry 	frisk 	when 	the
defendant 	refused 	multiple 	orders 	to 	stand 	up). 	This 	offense 	may
occur even if the actor only refuses one order. State v. Cox, No.
20-0227, 	2021 	WL 	195295 	(W. 	Va. 	Jan. 	20, 	2021) 	(unpublished)
(holding that sufficient evidence to convict for obstruction of an
officer 	existed 	during 	an 	investigative 	stop 	when 	the 	petitioner
was 	detained 	after 	refusing 	one 	order 	to 	stop 	walking 	away 	from
the officer).
2 	The 	trespassing 	charges 	will 	not 	be 	addressed, 	as 	Plaintiff 	was 	on
public property when this incident occurred, so Defendant Reed could not
have witnessed him trespassing. ECF No. 1, Compl. at ¶ 15. Under West
Virginia law, “[a] municipal police officer has no authority, at common
law or by statute, to make a warrantless arrest for the misdemeanor of
a person who does not commit such an offense in his presence.” Simon v.
W. Va. Dep’t of Motor Vehicles, 382 S.E.2d 320, 321 (W. Va. 1989) (quoting
Syl. Pt. 3, State v. Thomas, 203 S.E.2d 445 (1974)).
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1. Reasonable Suspicion
The 	first 	inquiry 	this 	Court 	must 	make 	is 	whether 	Defendant
Reed 	had 	reasonable 	suspicion 	that 	justified 	an 	investigative
stop. 	Defendant 	Reed 	was 	informed 	of 	the 	alleged 	conduct 	of
Plaintiff 	Bunnell 	by 	his 	sons, 	who 	had 	“seen 	a 	kid 	in 	a 	black
hoodie 	messing 	with 	his 	cars.” 	ECF 	No. 	53, 	Third 	Am. 	Compl. 	at 	¶
23. 	Especially 	under 	the 	relaxed 	reliability 	standard 	for
reasonable 	suspicion, 	the 	tip 	from 	Reed’s 	sons 	meets 	the
requirements. 	Although 	there 	is 	no 	specific 	fact 	stating 	that
Reed’s sons were at the scene of the incident, the statement that
they 	saw 	someone 	bothering 	Reed’s 	cars 	implies 	that 	they 	were
eyewitnesses. 	Id. 	Although 	there 	are 	no 	facts 	to 	suggest 	that
Defendant Reed’s sons reported the suspicious activity in public,
Defendant 	Reed 	had 	an 	opportunity 	to 	deduce 	the 	credibility 	of
their statement since they are known to him. Furthermore, the sons
would 	be 	able 	to 	be 	found 	and 	held 	accountable 	if 	any 	false
information 	was 	provided, 	as 	sons 	of 	an 	officer. 	Despite 	the
factual 	uncertainty 	about 	the 	sons’ 	proximity 	to 	this 	incident
when the tip was made, the totality of the circumstances justifies
Defendant Reed in having reasonable suspicion, given that the tip
was 	made 	by 	an 	immediate 	family 	member 	living 	in 	his 	home. 	Since
there is reasonable suspicion, Defendant Reed did not violate any
of Plaintiff Bunnell’s rights in performing an investigative stop.
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2. Probable Cause
Next, 	the 	Court 	must 	determine 	whether 	Defendant 	Reed 	had
probable cause to detain Plaintiff Bunnell. First this Court must
look 	to 	the 	Plaintiff’s 	conduct 	that 	is 	“known” 	to 	the 	officer.
The relevant conduct here is Plaintiff’s refusal to enter Defendant
Reed’s police cruiser when asked to do so. 3 ECF No. 53, Third Am.
Compl. at ¶ 26. Next, this conduct must be compared to the contours
of 	the 	offense, 	which 	in 	this 	case 	is 	obstruction 	of 	an 	officer.
As in State v. Cox, Plaintiff Bunnell did not comply with Defendant
Reed’s 	order 	to 	get 	in 	his 	police 	cruiser, 	giving 	Defendant 	Reed
probable 	cause 	to 	arrest 	him. 	The 	Plaintiff’s 	assertion 	that
Defendant Reed’s failure to charge him with a crime is indicative
of a lack of probable cause is inapplicable here, as probable cause
does 	not 	require 	information 	sufficient 	to 	convict. 	ECF 	No. 	59,
Plaintiff’s Response at p.4.
3. Qualified Immunity
Because Defendant Reed had probable cause to arrest Plaintiff
Bunnell 	for 	obstruction, 	Defendant 	Reed 	is 	entitled 	to 	qualified
immunity 	for 	Plaintiff’s 	false 	arrest 	claims. 	Thus, 	Count 	One 	of
3 	Defendant Reed’s allegation in his Motion to Dismiss that Plaintiff
Bunnell 	attempted 	to 	flee 	during 	arrest 	will 	not 	be 	considered 	as 	the
factual allegations of the Complaint must be taken as true on a motion
to dismiss, and an attempt to flee would not change the outcome of the
analysis of Plaintiff’s false arrest claim. ECF No. 57, Def’s Motion to
Dismiss at p. 8.
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the 	Third 	Amended 	Complaint 	is 	DISMISSED 	for 	failure 	to 	state 	a
claim upon which relief can be granted.
B. Defendant Reed is not entitled to qualified immunity for the
Excessive Force claims in Count Two because all Graham factors
favor Plaintiff Bunnell.
The 	Defendant’s 	Motion 	to 	Dismiss 	as 	to 	Count 	Two 	is 	DENIED
because 	under 	the 	Graham 	factors 	he 	is 	not 	entitled 	to 	qualified
immunity and Plaintiff has sufficiently plead a claim of Excessive
Force 	under 	42 	U.S.C. 	§ 	1983. 	Under 	the 	Fourth 	Amendment's
“reasonableness” 	analysis, 	force 	is 	not 	excessive 	if 	it 	is
objectively reasonable under the circumstances facing the officer,
without 	regard 	to 	his 	underlying 	intent. 	Graham 	v. 	Connor, 	490
U.S. 386, 397 (1989). 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. 	“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.” 	Id. 	at 	396 	(citation 	and
internal quotation marks 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)
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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, 	490 	U.S. 	at 	396
(1989). 	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). 	While 	officers 	will 	not 	be 	“subject 	to 	§ 	1983 	liability
... 	for 	every 	push 	and 	shove 	they 	make,” 	Martin 	v. 	Gentile, 	849
F.2d 863, 869 (4th Cir. 1988) (internal quotation marks omitted),
they are also not “absolve[d]” of liability merely because “their
conduct, 	however 	unreasonable, 	only 	result[ed] 	in 	de 	minimis
injuries.” Smith v. Murphy, 634 F. App'x 914, 917 (4th Cir. 2015)
(citation omitted).
Here, 	all 	three 	Graham 	factors 	weigh 	in 	favor 	of 	Plaintiff
Bunnell. The first Graham factor weighs in favor of the plaintiff
when the offense at issue is a “minor one.” Jones v. Buchanan, 325
F.3d 	520, 	528 	(4th 	Cir. 	2003); 	See 	also 	Hupp, 	931 	F.3d 	at 	322
(finding 	that 	the 	first 	Graham 	factor 	weighed 	in 	favor 	of 	the
plaintiff when the alleged crime was a violation of W. Va. Code §
61-5-17(a)). In this instance, Plaintiff Bunnell was only observed
violating 	W. 	Va. 	Code 	§ 	61-5-17(a)), 	a 	misdemeanor 	under 	West
Virginia law. ECF No. 53 at ¶ 26. Thus, factor one weighs in favor
of Plaintiff.
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Furthermore, 	there 	are 	no 	facts 	that 	indicate 	Plaintiff
Bunnell was a threat to the safety of Defendant Reed or others. At
the 	time 	of 	the 	incident, 	Plaintiff 	was 	a 	5’10”, 	110-pound
thirteen-year-old boy and Defendant Reed was 6’2” and 200 pounds.
Id. 	at 	¶¶ 	7, 	28. 	Although 	Plaintiff 	did 	refuse 	Defendant 	Reed’s
order 	to 	get 	inside 	his 	cruiser 	for 	questioning, 	no 	facts 	allege
that 	Plaintiff 	made 	any 	attempt 	to 	flee 	or 	harm 	Defendant 	Reed.
Id. 	at 	¶ 	26. 	Thus, 	the 	second 	factor 	tips 	in 	favor 	of 	Plaintiff.
See 	Hupp, 	931 	F.3d 	at 	323 	(holding 	that 	a 	113-pound 	minor 	who
approached a 200-pound armed officer with her “arms down and hands
visibly empty” did not “pose an immediate threat to the safety of
the officers or others”); see also Smith v. Ray, 781 F.3d 95, 102
(4th Cir. 2015) (finding that the second Graham factor weighed in
favor 	of 	the 	plaintiff 	as 	the 	defendant 	was 	“a 	pretty 	good 	size
man” 	and 	plaintiff 	was 	“a 	smaller 	woman” 	who 	defendant 	had 	no
reason to believe was armed).
The Defendant contends that the fact that two bystanders were
called over to help him detain Plaintiff Bunnell is an indication
that Plaintiff was a threat to him. ECF No. 60, Def’s Reply at p.
11. 	However, 	the 	bystanders 	were 	not 	called 	over 	until 	Defendant
Reed 	already 	had 	Plaintiff 	Bunnell 	on 	the 	ground 	in 	a 	headlock,
laying 	on 	top 	of 	him. 	ECF 	No. 	53 	at 	¶¶ 	27-30. 	Prior 	to 	Defendant
tackling 	Plaintiff, 	Plaintiff 	had 	not 	made 	any 	move 	to 	fight 	or
flee Defendant. Id. at ¶ 26. The Fourth Circuit has previous found
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that forcibly taking a “stationary individual” to the ground, when
that person is only suspected of a misdemeanor is “constitutionally
excessive.” 	Livingston 	v. 	Kehagias, 	803 	Fed. 	App’x 	673, 	684.
Therefore, this argument fails.
Finally, 	the 	third 	factor 	also 	weighs 	in 	favor 	of 	the
Plaintiff, 	because 	his 	passive 	resistance 	does 	not 	constitute
fleeing or resisting arrest. The Defendant alleges that Plaintiff
Bunnell attempted to flee before he was ultimately tackled to the
ground. 	ECF 	No. 	57, 	Def’s 	Motion 	at 	p. 	7, 	10. 	However, 	this
contention does not comport with the facts as alleged in the Third
Amended 	Complaint, 	which 	the 	Court 	must 	accept 	as 	true 	at 	this
stage. 	Given 	that 	there 	is 	no 	indication 	that 	the 	Plaintiff
attempted to flee, the only issue is whether he actively resisted
arrest. 	Here, 	there 	was 	no 	active 	resistance, 	as 	Plaintiff 	only
refused to get into Defendant Reed’s police cruiser when asked to
do 	so, 	which 	constitutes 	passive 	resistance. 	See 	Livingston, 	803
Fed. 	App’x 	at 	684 	(finding 	that 	the 	plaintiff 	passively 	resisted
by “refusing to give up his hands for handcuffs”); see also Estate
of 	Armstrong 	ex 	rel. 	Armstrong 	v. 	Village 	of 	Pinehurst, 	810 	F.3d
892, 	901 	(holding 	that 	a 	plaintiff’s 	refusal 	to 	let 	go 	of 	a 	post
when 	demanded 	to 	do 	so 	was 	passive 	resistance). 	Although 	passive
resistance can constitute some use of force, the appropriate level
of 	force 	depends 	on 	the 	underlying 	factual 	scenario. 	Armstrong,
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810 	F.3d 	at 	901 	(quoting 	Bryan 	v. 	MacPherson, 	630 	F.3d 	805, 	830
(9th Cir. 2010).
In this scenario, the alleged use of force was not consistent
with the level of resistance Plaintiff asserted. This is a case of
a thirteen-year-old boy who suffers from a vision impairment that
prevented him from being able to tell that the man in plain clothes
confronting 	him 	was 	in 	a 	police 	cruiser. 	ECF 	No. 	53 	at 	¶¶ 	16-17.
His resistance when asked to enter this unknown vehicle by a person
who 	had 	not 	identified 	himself 	as 	a 	police 	officer 	certainly 	is
not 	a 	definitive 	indication 	of 	someone 	intending 	to 	flee, 	but 	of
a 	child 	unsure 	of 	how 	to 	handle 	an 	intimidating 	situation. 	This
level 	of 	passive 	resistance 	does 	not 	constitute 	Defendant 	Reed
tackling the Plaintiff to the ground and putting him in a headlock.
ECF 	No. 	53 	at 	¶¶ 	27-29. 	Therefore, 	given 	there 	was 	no 	attempt 	to
flee 	or 	actively 	resist, 	the 	third 	Graham 	factor 	also 	falls 	in
favor 	of 	Plaintiff 	Bunnell. 	Thus, 	Plaintiff 	Bunnell 	has 	stated 	a
claim on which relief can be granted as to Count Two.
1. Qualified Immunity
Defendant 	Reed’s 	defense 	of 	qualified 	immunity 	cannot 	be
sustained regarding the Plaintiff’s excessive force claim, because
it is clearly established in Fourth Circuit precedent that tackling
“an 	unarmed 	individual 	who 	resisted 	only 	passively 	and 	without
striking at the officer, and who was suspected at most of a minor
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offense” 	is 	unconstitutional. 	Livingston, 	803 	Fed. 	App’x 	at 	685
(citing Rowland v. Perry, 41 F.3d 167, 103 (4th Cir. 1994)).
The most factually analogous case to the case at bar is Smith
v. Ray. In this case, the Fourth Circuit found that an officer had
used unreasonable force when he threw the plaintiff to the ground,
put 	his 	knee 	in 	her 	back, 	and 	twisted 	her 	arm, 	when 	she 	was 	only
suspected 	of 	a 	misdemeanor 	and 	passively 	resisted 	by 	refusing 	to
allow 	him 	to 	handcuff 	her 	hands. 	Smith, 	781 	F.3d 	at 	102-03.
Similarly, Plaintiff Bunnell alleges he was thrown to the ground,
and that Defendant Reed laid on top of him and put him in a headlock
to the point that he “struggled to breathe,” when he had only been
suspected 	of 	a 	misdemeanor 	and 	passively 	resisted 	by 	refusing 	to
enter Defendant Reed’s police cruiser for questioning. ECF No. 53
at ¶¶ 26-29.
Given this clear precedent, any reasonable officer would have
been 	on 	notice 	that 	the 	type 	of 	force 	Defendant 	Reed 	used 	was
unreasonable. 	Thus, 	in 	light 	of 	the 	alleged 	clearly 	established
constitutional 	violation, 	Defendant 	Reed’s 	qualified 	immunity
defense 	fails 	and 	his 	motion 	to 	dismiss 	regarding 	Count 	Two 	is
DENIED.
C. Defendant 	Reed 	is 	not 	entitled 	to 	statutory 	immunity 	or
privilege 	regarding 	Plaintiff’s 	Battery 	claim 	because 	the
alleged force used was excessive under § 1983.
In 	West 	Virginia, 	a 	person 	is 	liable 	for 	battery 	if 	(1) 	“he
acts 	intending 	to 	cause 	a 	harmful 	or 	offensive 	contact 	with 	the
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person of the other or a third person, or an imminent apprehension
of such a contact,” and (2) “a harmful contact with the person of
the other directly or indirectly results.” W. Va. Fire & Cas. Co.
v. Stanley, 602 S.E.2d 483, 494 (W. Va. 2004). However, “the right
to 	make 	an 	arrest 	or 	investigatory 	stop 	necessarily 	carries 	with
it 	the 	right 	to 	use 	some 	degree 	of 	physical 	coercion 	or 	threat
thereof to effect it.” Graham, 490 U.S. at 396.
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) 	(citation
omitted). 	“Lawful 	arrests 	are 	excluded 	from 	the 	scope 	of 	West
Virginia 	battery,” 	unless 	the 	force 	used 	is 	excessive. 	Pegg 	v.
Herrnberger, 845 F.3d 112, 121 (4th Cir. 2017) (citations omitted).
Under West Virginia state law:
(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.
Id. at 775-76 (citing 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
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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). 	Public
officials 	will 	be 	entitled 	to 	statutory 	immunity 	“unless 	it 	is
shown 	by 	specific 	allegations 	that 	the 	immunity 	does 	not 	apply.”
Hutchinson 	v. 	City 	of 	Huntington, 	479 	S.E.2d 	649, 	657-58 	(W. 	Va.
1996).
When 	a 	plaintiff 	fails 	to 	allege 	specific 	allegations 	of 	an
exception 	to 	statutory 	immunity 	in 	his 	complaint 	or 	any 	court-
ordered replies or motions, any state law claims against a public
official 	should 	be 	dismissed. 	Id. 	at 	660 	(“A 	plaintiff 	is 	not
required to anticipate the defense of immunity in his complaint.”);
See also Osborne v. Cty. Comm’n of Kanawha Cty., 2003 WL 24272906,
at 	*7-*9 	(S.D.W. 	Va. 	Sept. 	29, 	2003), 	aff’d 	in 	part, 	vacated 	in
part on other grounds, 143 Fed. App’x. 554 (4th Cir. 2005) (holding
that 	the 	plaintiff 	fulfilled 	the 	heightened 	pleading 	standard 	on
a 	motion 	to 	dismiss 	for 	statutory 	immunity 	by 	pleading 	that 	the
defendant’s 	actions 	“were 	done 	with 	malice” 	and 	were 	“performed
outside the scope of the[ir] authority).
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1. Statutory Immunity
Here, 	Plaintiff 	Bunnell’s 	common 	law 	battery 	claim 	survives
because he sufficiently alleged facts that overcome the assertion
of 	statutory 	immunity. 	In 	the 	Third 	Amended 	Complaint, 	Plaintiff
Bunnell alleges that Defendant Reed tackled Plaintiff “la[id] his
full body weight on top of Plaintiff” and kept him in a head lock
to 	the 	point 	that 	he 	struggled 	to 	breathe. 	ECF 	No. 	53 	at 	¶¶ 	66.
Furthermore, 	Plaintiff 	alleges 	that 	Defendant 	Reed 	falsely
informed other officers that Plaintiff Bunnell hit him. Id. at ¶¶
33-34. 	Plaintiff 	further 	pleads 	in 	his 	Response 	to 	Defendant’s
Motion to Dismiss that the above-specified actions were done “with
malicious 	purpose 	and 	in 	bad 	faith” 	and 	in 	such 	a 	“wanton 	and
reckless 	manner” 	that 	statutory 	immunity 	cannot 	be 	afforded. 	ECF
No. 	59 	at 	pp. 	18-19. 	Taking 	these 	facts 	as 	true, 	Plaintiff 	has
pleaded 	facts 	that 	could 	overcome 	an 	assertion 	of 	statutory
immunity through W. Va. Code § 29-12A-5(b)(2).
Furthermore, 	given 	that 	Defendant 	is 	not 	entitled 	to
qualified immunity on Plaintiff’s excessive force claim, it would
be 	premature 	for 	this 	Court 	to 	provide 	statutory 	immunity 	for
Defendant 	Reed 	based 	on 	alleged 	conduct 	violative 	of 	the 	U.S.
Constitution.
In the absence of statutory immunity, the final issue for the
Court 	is 	whether 	Plaintiff 	has 	sufficiently 	pleaded 	a 	claim 	for
common law battery. Plaintiff Bunnell’s allegation that Defendant
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Reed “intentionally battered Plaintiff by tackling and restraining
Plaintiff, 	including 	by 	laying 	his 	full 	body 	weight 	on 	top 	of
Plaintiff, 	pinning 	Plaintiff 	to 	the 	ground 	in 	the 	parking 	lot,
while keeping him in a head lock,” is sufficient to show intent to
cause harmful contact and that harmful contact did occur. ECF No.
53 at ¶ 66.
2. Privilege
Under 	West 	Virginia 	law, 	“a 	person 	lawfully 	performing 	an
arrest 	is 	afforded 	a 	privilege 	to 	engage 	in 	arrests 	within 	the
limit 	of 	their 	jurisdiction, 	so 	long 	as 	the 	force 	is 	not
excessive.” Pegg, 845 F.3d at 121.
Here, Defendant Reed is not entitled to qualified immunity on
Plaintiff’s 	sufficiently 	pled 	excessive 	force 	claim. 	Thus, 	the
Court 	declines 	to 	grant 	Defendant 	Reed’s 	defense 	of 	privilege 	as
to 	Plaintiff’s 	battery 	claim 	for 	the 	same 	conduct. 	Thus,
Defendant’s 	Motion 	to 	Dismiss 	is 	DENIED 	as 	to 	Plaintiff’s 	Common
Law Battery claim.
D. The 	Defendant 	is 	entitled 	to 	both 	privilege 	and 	statutory
immunity for Plaintiff’s Assault claim in Count Three because
the alleged conduct occurred during a lawful arrest.
The Defendant’s Motion to Dismiss is GRANTED as to Plaintiff’s
assault 	claims 	because 	Defendant 	Reed 	is 	entitled 	to 	the
affirmative defense of privilege and statutory immunity under West
Virginia Code § 29-12A-5(b). In West Virginia, a person is liable
for 	assault 	if 	(1) 	“he 	acts 	intending 	to 	cause 	a 	harmful 	or
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offensive contact with the person of the other or a third person,
or an imminent apprehension of such a contact,” and (2) “the other
is thereby put in such imminent apprehension.” Stanley, 602 S.E.2d
at 	495. 	However, 	“the 	right 	to 	make 	an 	arrest 	or 	investigatory
stop 	necessarily 	carries 	with 	it 	the 	right 	to 	use 	some 	degree 	of
physical 	coercion 	or 	threat 	thereof 	to 	effect 	it.” 	Graham, 	490
U.S. at 396.
Plaintiff Bunnell alleges that Defendant Reed “threatened to
re[s]train 	Plaintiff 	without 	legal 	justification,” 	intending 	to
“create 	an 	apprehension 	within 	Plaintiff 	of 	immediate 	physical
harm,” causing Plaintiff to “fe[el] threatened.” ECF No. 53 at ¶¶
64-65. 	These 	actions 	occurred 	in 	the 	course 	of 	a 	lawful 	arrest,
before any force was used by Defendant Reed. Thus, Defendant Reed
is entitled to privilege on Plaintiff’s common law assault claim.
Furthermore, 	Plaintiff’s 	claim 	that 	Defendant 	is 	not 	entitled 	to
statutory 	immunity 	fails 	because 	Defendant’s 	alleged 	threat 	of
detainment 	was 	lawful. 	Therefore, 	the 	Defendant’s 	Motion 	to
Dismiss 	is 	GRANTED 	as 	to 	the 	common 	law 	assault 	claim 	in 	Count
Three.
V. 	CONCLUSION
For the foregoing reasons, Defendant William Reed’s Motion
to Dismiss the Third Amended Complaint [ECF No. 56] is GRANTED
IN PART AND DENIED IN PART. Count One for False Arrest is
DISMISSED on the basis of qualified immunity. The Common Law
Assault claim
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within 	Count 	Three 	is 	DISMISSED 	for 	privilege 	and 	statutory
immunity. Plaintiff’s remaining claims are Count Two for Excessive
Force and Count Three for Common Law Battery.
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Order 	to
counsel of record.
DATED: September 25, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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