O'Brien v. Mayle

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PAUL O’BRIEN,
Plaintiff,
v. 	CIVIL NO. 1:25-CV-63
(KLEEH)
CODY C. MAYLE,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]
Pending before the Court is a partial motion to dismiss. 	For
the 	reasons 	discussed 	below, 	the 	motion 	is 	granted 	in 	part 	and
denied in part.
I. 	INTRODUCTION AND PROCEDURAL HISTORY
On July 10, 2025, Plaintiff Paul O’Brien (“Plaintiff”) filed
a complaint against Defendant Cody C. Mayle (“Defendant”), a Deputy
Sheriff in Taylor County, West Virginia. 	See ECF No. 1. 	Plaintiff
asserts 	the 	following 	causes 	of 	action, 	which 	stem 	from 	his
interaction with Defendant on July 12, 2023:
 	(Count 	One) 	Unlawful 	Detainment 	- 	42 	U.S.C.
§ 1983;
 	(Count 	Two) 	Unlawful 	Search 	and 	Seizure 	- 	42
U.S.C. § 1983;
 	(Count 	Three) 	Excessive 	Force 	- 	42 	U.S.C.
§ 1983;
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 	(Count 	Four) 	First 	Amendment, 	Retaliatory
Arrest - 42 U.S.C. § 1983;
 	(Count Five) Battery; and
 	(Count Six) Assault.
Defendant 	is 	sued 	in 	his 	individual 	capacity 	only. 	Id. 	¶ 	3. 	On
August 	13, 	2025, 	Defendant 	filed 	a 	partial 	motion 	to 	dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See ECF No. 3. 	The motion is fully briefed and ripe for review.
II. 	FACTS
The 	following 	facts 	are 	taken 	from 	the 	complaint. 	For
purposes 	of 	deciding 	the 	motion, 	the 	Court 	assumes 	that 	they 	are
true.
On 	or 	about 	the 	morning 	of 	July 	12, 	2023, 	Defendant 	arrived
at Plaintiff’s home to discuss one of Plaintiff’s Facebook posts.
Compl., 	ECF 	No. 	1, 	at 	¶¶ 4, 11. 	Specifically, 	Plaintiff’s 	post
had 	stated 	that 	he 	wished 	he 	had 	a 	firecracker 	to 	set 	off 	to
startle 	a 	deputy 	who 	had 	parked 	across 	the 	street 	from 	his 	home.
Id. 	¶ 	12. 	Defendant 	did 	not 	have 	a 	search 	warrant 	or 	an 	arrest
warrant 	when 	he 	arrived 	at 	Plaintiff’s 	home. 	Id. 	¶¶ 	5–6.
Defendant 	initially 	spoke 	with 	Plaintiff’s 	stepfather 	and 	asked
him 	to 	bring 	Plaintiff 	outside. 	Id. 	¶ 	7. 	Plaintiff 	agreed 	to
speak with Defendant and proceeded to have a conversation with him
in the driveway. 	Id. ¶¶ 8–9.
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Plaintiff 	and 	Defendant 	discussed 	the 	Facebook 	post 	and 	an
issue 	that 	Plaintiff 	was 	having 	with 	one 	of 	the 	deputies. 	Id.
¶¶ 13–15. 	When 	questioned 	about 	the 	post, 	Plaintiff 	stated 	that
he 	was 	exercising 	his 	freedom 	of 	speech. 	Id. 	¶ 	16. 	Defendant
told 	Plaintiff 	that 	he 	could 	be 	written 	up 	for 	the 	post, 	and
Plaintiff 	responded 	by 	telling 	Defendant 	to 	write 	him 	up. 	Id.
¶¶ 17–18. 	Defendant told Plaintiff that he would “gladly do that
for [him].” 	Id. ¶ 19.
Plaintiff 	then 	told 	Defendant 	that 	he 	(Plaintiff) 	needed 	to
go 	to 	work, 	and 	he 	began 	walking 	to 	his 	vehicle. 	Id. 	¶¶ 20–21.
Defendant said to Plaintiff, “Hold on, I’m talking to you. 	Do not
walk 	away 	from 	me. 	Get 	back 	over 	here.” 	Id. 	¶ 	22. 	Plaintiff
cursed 	at 	Defendant, 	who 	then 	ordered 	Plaintiff 	to 	turn 	around,
grabbed 	Plaintiff’s 	arm, 	detained 	him, 	and 	arrested 	him. 	Id.
¶¶ 24–27. 	When 	Plaintiff 	asked 	Defendant 	why 	he 	was 	being
arrested, 	Defendant 	told 	him 	that 	he 	was 	being 	arrested 	for
threatening 	an 	officer. 	Id. 	¶¶ 	30–31. 	Plaintiff 	spent 	two 	days
in 	jail 	and 	was 	charged 	with 	obstructing 	an 	officer. 	Id. 	¶¶ 	32–
34. 	Ultimately, the State of West Virginia voluntarily dismissed
the charge against Plaintiff. 	Id. ¶ 35.
III. LEGAL STANDARD
Rule 	12(b)(6) 	allows 	a 	defendant 	to 	move 	for 	dismissal 	upon
the 	ground 	that 	a 	complaint 	does 	not 	“state 	a 	claim 	upon 	which
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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 	facts 	which 	could 	be 	proved 	in 	support 	of 	his
claim.” 	Johnson 	v. 	Mueller, 	415 	F.2d 	354, 	355 	(4th 	Cir. 	1969)
(citation omitted).
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IV. 	DISCUSSION
Defendant moves to dismiss Counts One, Three, Five, and Six,
along 	with 	any 	state 	constitutional 	violations 	asserted 	in 	the
complaint. 	Plaintiff has conceded that dismissal of Count One is
appropriate 	and 	clarified 	that 	he 	is 	not 	asserting 	any 	state
constitutional violations. 	For the reasons discussed herein, the
Court 	grants 	the 	motion 	to 	dismiss 	with 	respect 	to 	Count 	Six 	and
denies it with respect to Counts Three and Five.
A. 	Excessive Force (Count Three)
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
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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
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). 	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).
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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. Conner, 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). 	As the Supreme Court has explained,
“[T]he test of reasonableness under the Fourth
Amendment is not capable of precise definition
or 	mechanical 	application,” 	Bell 	v. 	Wolfish,
441 	U.S. 	520, 	559, 	99 	S.Ct. 	1861, 	1884, 	60
L.Ed.2d 	447 	(1979), 	however, 	its 	proper
application requires careful attention to the
facts 	and 	circumstances 	of 	each 	particular
case, 	including 	the 	severity 	of 	the 	crime 	at
issue, whether the suspect poses an immediate
threat 	to 	the 	safety 	of 	the 	officers 	or
others, 	and 	whether 	he 	is 	actively 	resisting
arrest 	or 	attempting 	to 	evade 	arrest 	by
flight.
Id. (citation omitted).
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For Fourth Amendment claims of excessive force, “the severity
of 	injury 	resulting 	from 	the 	force 	used 	has 	always 	been 	but 	one
consideration in determining whether force was excessive.” 	Smith
v. 	Murphy, 	634 	F. 	App’x 	914, 	917 	(4th 	Cir. 	2015) 	(citation 	and
internal 	quotation 	marks 	omitted). 	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, 	634 	F. 	App’x 	at
917 	(citation 	omitted). 	After 	all, 	the 	question 	is 	“whether 	the
totality of the circumstances justified a particular sort of search
or seizure.” 	Tennessee v. Garner, 471 U.S. 1, 8–9 (1985).
Here, 	Defendant 	argues 	that 	he 	is 	entitled 	to 	qualified
immunity 	with 	respect 	to 	the 	claim 	of 	excessive 	force, 	and
Plaintiff 	disagrees. 	According 	to 	the 	complaint, 	Plaintiff 	had
previously posted on Facebook that he wished he had a firecracker
to 	set 	off 	to 	startle 	a 	deputy 	who 	had 	parked 	across 	the 	street
from his home. 	Compl., ECF No. 1, at ¶ 12. 	Defendant and Plaintiff
then 	had 	a 	conversation 	at 	Plaintiff’s 	home. 	Id. 	¶¶ 8–9. 	When
Plaintiff 	attempted 	to 	leave, 	Defendant 	said 	to 	Plaintiff, 	“Hold
on, I’m talking to you. 	Do not walk away from me. 	Get back over
here.” 	Id. 	¶¶ 	20–22. 	Plaintiff 	cursed 	at 	Defendant, 	who 	then
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ordered 	Plaintiff 	to 	turn 	around, 	grabbed 	Plaintiff’s 	arm,
detained 	him, 	and 	arrested 	him. 	Id. 	¶¶ 24–27. 	When 	Plaintiff
asked Defendant why he was being arrested, Defendant told him that
he was being arrested for threatening an officer. 	Id. ¶¶ 30–31.
As 	pled, 	Plaintiff 	has 	met 	his 	burden 	with 	respect 	to 	the
first prong of the qualified immunity test. 	The facts asserted in
the 	complaint 	do 	not 	indicate 	that 	Plaintiff 	had 	committed, 	was
committing, or was about to commit an offense. 	See United States
v. Dickerson, 27 F. App’x 236, 242 (4th Cir. 2001) (“Probable cause
to 	justify 	an 	arrest 	arises 	when 	‘facts 	and 	circumstances 	within
the officer’s knowledge . . . are sufficient to warrant a prudent
person, 	or 	one 	of 	reasonable 	caution, 	in 	believing, 	in 	the
circumstances 	shown, 	that 	the 	suspect 	has 	committed, 	is
committing, 	or 	is 	about 	to 	commit 	an 	offense.’”). 	Defendant,
therefore, violated Plaintiff’s rights under the Fourth Amendment
to 	the 	United 	States 	Constitution 	by 	using 	force — grabbing 	his
arm and handcuffing him — to effectuate an arrest for which there
was no probable cause.
Defendant bears the burden of proof with respect to the second
prong 	of 	the 	test: 	“whether 	the 	right 	was 	clearly 	established 	at
the 	time 	of 	the 	violation.” 	Defendant’s 	briefing, 	however,
addresses 	only 	the 	first 	prong. 	Defendant 	argues 	only 	that
Plaintiff did not sufficiently allege a constitutional violation.
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See 	Memo., 	ECF 	No. 	3-1, 	at 	6–8. 	Accordingly, 	Defendant 	has 	not
met 	his 	burden 	to 	show 	that 	the 	alleged 	constitutional
violation — an 	arrest 	without 	probable 	cause 	under 	the
circumstances 	asserted 	here — was 	not 	clearly 	established 	at 	the
time 	of 	the 	violation. 	Accordingly, 	at 	this 	stage 	and 	based 	on
the arguments presented, the Court finds that Plaintiff’s right to
be free from the unconstitutional arrest asserted here was clearly
established 	at 	the 	time 	it 	took 	place. 	It 	would 	be 	clear 	to 	a
reasonable officer that Plaintiff had not engaged in activity that
warranted 	an 	arrest. 	Defendant’s 	actions, 	as 	pled 	in 	the
complaint, 	which 	included 	grabbing 	Plaintiff’s 	arm 	and 	arresting
him 	without 	probable 	cause, 	were 	objectively 	unreasonable. 	The
Court, 	at 	this 	stage, 	finds 	that 	Defendant 	is 	not 	entitled 	to
qualified 	immunity 	and 	denies 	the 	motion 	to 	dismiss 	with 	respect
to Count Three.
B. 	Battery (Count Five)
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 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). 	Generally, 	a 	law
enforcement officer “engaged in an arrest is afforded a privilege
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that precludes a battery claim.” 	Weigle v. Pifer, 139 F. Supp. 3d
760, 	776 	(S.D.W. 	Va. 	2015) 	(citation 	omitted). 	An 	officer’s
privilege, however, is not absolute. 	Id. at 777. 	Here, Defendant
argues that he was privileged in making physical contact with the
Plaintiff. 	Plaintiff argues that privilege does not apply because
Defendant did not have probable cause to effectuate the arrest.
As 	discussed 	above 	with 	respect 	to 	qualified 	immunity,
assuming that the facts in the complaint are true, a prudent person
would not believe that Plaintiff had committed, was committing, or
was 	about 	to 	commit 	an 	offense. 	Defendant 	did 	not 	have 	probable
cause 	to 	arrest 	Plaintiff, 	so 	his 	conduct 	was 	not 	privileged.
Grabbing a person’s arm and detaining him is an offensive contact.
Defendant intended to cause the offensive contact, and the intended
offensive contact resulted, so Plaintiff has stated a viable claim
for battery. 	The Court denies the motion to dismiss with respect
to Count Five.
C. 	Assault (Count Six)
In 	West 	Virginia, 	a 	person 	is 	liable 	for 	assault 	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) 	“the 	other 	is 	thereby 	put 	in 	such
imminent 	apprehension.” 	Stanley, 	602 	S.E.2d 	at 	495. 	“If 	the
plaintiff never perceived the harmful or offensive contact before
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it happened, no assault occurred.” 	Crawford v. Daniels, No. 2:23-
cv-00585, 	2024 	WL 	1895105, 	at 	*7 	(S.D.W. 	Va. 	Apr. 	30, 	2024)
(citation 	omitted). 	Defendant 	argues 	that 	Plaintiff 	failed 	to
plead 	facts 	sufficient 	to 	establish 	his 	assault 	claim 	because 	he
alleges 	only 	a 	conclusory 	allegation. 	Plaintiff 	argues 	that 	his
excessive 	force 	allegation 	is 	sufficient 	to 	support 	his 	assault
claim.
The conduct attributed to the alleged assault is identical to
the 	conduct 	attributed 	to 	the 	alleged 	battery. 	Importantly,
however, Plaintiff does not allege that he was placed in imminent
apprehension of an offensive or harmful contact, nor does he plead
any 	facts 	showing 	that 	he 	feared 	that 	Defendant 	would 	physically
contact him. 	Because the complaint offers only a legal assertion
that 	“[D]efendant 	committed 	an 	assault 	upon 	the 	Plaintiff,”
Compl., 	ECF 	No. 	1, 	at 	¶ 	79, 	the 	Court 	finds 	that 	Plaintiff 	has
failed to plead facts sufficient to state a claim of assault. 	The
Court 	grants 	Defendant’s 	motion 	to 	dismiss 	with 	respect 	to 	Count
Six.
D. 	Leave to Amend
At this stage, “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. 	The Court
should freely give leave when justice so requires.” 	Fed. R. Civ.
P. 	15(a)(2). 	Rule 	15.01 	of 	the 	Local 	Rules 	of 	Civil 	Procedure
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O’BRIEN V. MAYLE 	1:25-CV-63
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]
13
requires 	a 	party 	requesting 	leave 	to 	amend 	to 	attach 	“a 	signed
copy of the proposed amended pleading.” 	L.R. Civ. P. 15.01.
In 	Plaintiff’s 	response, 	he 	asks 	the 	Court 	to, 	in 	the
alternative, 	grant 	him 	leave 	to 	amend 	his 	complaint. 	See 	Resp.,
ECF 	No. 	7, 	at 	13. 	Plaintiff 	did 	not 	file 	a 	separate 	motion 	and
did 	not 	attach 	a 	signed 	copy 	of 	the 	proposed 	amending 	pleading.
He has, therefore, failed to comply with Local Rule 15.01. 	Because
Plaintiff failed to comply with the Local Rules, the Court denies
his request for leave to amend.
V. 	CONCLUSION
For the reasons stated, the Court ORDERS as follows:
 	The partial motion to dismiss is GRANTED IN
PART and DENIED IN PART [ECF No. 3];
 	The motion is GRANTED with respect to Counts
One and Six;
 	Counts One and Six are DISMISSED;
 	The motion is DENIED with respect to Counts
Three and Five;
 	Defendant’s 	motion 	is 	DENIED 	AS 	MOOT 	as 	it
relates to state constitutional claims; and
 	Plaintiff’s 	request 	for 	leave 	to 	amend 	the
complaint is DENIED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion and Order to counsel of record.
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O’BRIEN V. MAYLE 	1:25-CV-63
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART PARTIAL MOTION TO DISMISS [ECF NO. 3]
14
DATED: November 18, 2025
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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