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Bonnell v. Beach

United States District Court, E.D. Virginia, Richmond Division

October 3, 2019

BENJAMIN BONNELL, Plaintiff,
v.
COL. ROBERT R. BEACH, et al. Defendants.

          MEMORANDUM OPINION

          ROBERT E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants Col. Robert R. Beach ("Beach") and Rachel S. Whitehead's ("Whitehead") MOTION FOR SUMMARY JUDGMENT (ECF No. 45). Because Beach is no longer a party to this case, the Court will deny as moot the motion with respect to Beach. For the reasons set forth below, the motion with respect to Whitehead will be denied.

         I. BACKGROUND

         This case arises out of a physical altercation that occurred, on February 2, 2018, between Benjamin Bonnell ("Bonnell") and Ieuan Phillips ("Phillips") in a dormitory at Longwood University, a state-owned and -operated university. After that altercation and based on a Criminal Complaint filed by Whitehead, Bonnell was charged in state court with felony malicious wounding under Va. Code § 18.2-51 (the "malicious wounding statute"). This charge terminated shortly thereafter in Bonnell's favor by nolle prosequi.

         Whitehead is employed as a member of Longwood University Police Department. It is undisputed that, at all relevant times, Whitehead was acting under color of state law and in the course of her employment as a Longwood University Police Officer.

         Proceeding in federal court pursuant to 42 U.S.C. § 1983, [1] Bonnell alleges in COUNT I that Whitehead violated his right, under the Fourth Amendment to the United States Constitution, to be free from an unreasonable seizure by maliciously swearing out a Criminal Complaint seeking Bonnell's arrest for the crime of malicious wounding (said to be a violation of Va. Code § 18.2-51) and thereby maliciously securing his arrest and prosecution. In COUNT II, Bonnell alleges that Beach defamed him. (ECF No. 1.) On August 6, 2019, Whitehead and Beach filed a MOTION FOR SUMMARY JUDGMENT (ECF No. 45), which is the subject of this opinion. That same day, the Court denied Whitehead's motion to dismiss and granted Beach's motion to dismiss less than two weeks later. (ECF No. 44; ECF No. 49.)

         The parties have taken discovery. The record on this Motion consists of declarations from Whitehead, Beach, and R. Stuart Raybold; various exhibits, including primarily written witness statements, body camera footage, photographs, emails, written reports regarding the altercation, and the Criminal Complaint; and cited deposition testimony offered by each side. There are some undisputed facts, but there are some genuine disputes of material fact. It is thus necessary to outline the general factual circumstances that gave rise to the case, and, in so doing, to accord Bonnell the benefit of all reasonable inferences. And, because of the nature of the claim in COUNT I, it is necessary to understand the statements that the witnesses gave to Whitehead before she swore out the Criminal Complaint charging Bonnell with malicious wounding.

         According to the summary judgment record, there were two witnesses (Phillips and Bonnell) who actually participated in the altercation, and one witness, another Longwood student, Carie Sutliff ("Sutliff"), who saw it.[2] The following general recitation of facts is taken largely from the evidence given by those witnesses with firsthand knowledge.

         A. The Altercation

         The events giving rise to this case arise out of interactions between Bonnell and Phillips, who at the time were suitemates at Longwood. (ECF No. 63 at ¶¶ 4-5.) On February 2, 2018, Phillips and Bonnell had bickered throughout the day. The altercation at the core of this case ensued after the latest exchange of words. Following that exchange, Sutliff directed Bonnell to "cool off" in her suite. (ECF No. 51-12 at 1.) Bonnell followed that advice and left Phillips behind at the suite that the two shared.

         While walking with Sutliff toward her room and away from Phillips, Bonnell told Sutliff that he "[s]ometimes . . . wish[ed he] could throw a bottle at his [Phillip's] head." (Id.) Phillips said that, although he heard Bonnell say "something" to Sutliff, he "didn't know what [Bonnell] said." (ECF No. 51-11 at 1.) Phillips, who is much bigger than Bonnell, then pursued Bonnell into Sutliff's suite, "push[ing Sutliff] out of the way to get to [Bonnell]." (ECF No. 51-12 at 1.) That much is not disputed. Nor is it disputed that, after Phillips cornered Bonnell in Sutliff's suite, Bonnell and Phillips continued to argue loudly and in close quarters in Sutliff's suite.

         During her investigation, Whitehead received information about what happened next. There was some conflict between Phillips and Bonnell's views about who engaged in what posturing once Phillips entered Sutliff's suite.[3] However, considering all of the evidence given by the three witnesses with firsthand knowledge (and, according Bonnell the benefit of all reasonable references), it seems clear that Whitehead had conclusive evidence that Phillips was the aggressor in the altercation that ensued in Sutliff's suite.[4] The record also shows that Whitehead had conclusive evidence that Phillips initiated physical contact with Bonnell by putting his left hand on Bonnell's neck, picking him up, and pushing him into a closet where Bonnell's head struck a sharp object and was cut. (ECF No. 51-11 at 1; ECF No. 51-10 at 1-2.)

         Whitehead was also aware, and Phillips' witness statement confirms, that he "picked [Bonnell] up by the neck" and "slammed [him] into the closet." (ECF No. 51-10 at 1; ECF No. 51-11 at 1.) She also knew that, as a result, Bonnell's head hit a metal clothing bar, which cut his head and caused significant bleeding. (ECF No. 51-10 at 1-2.) Phillips himself concedes that he "used [his] left hand and pushed [Bonnell] into the locker around the neck still holding him there" before "[throwing] him to the ground." (ECF No. 51-11 at 1.) It is undisputed that Phillips then picked Bonnell off the floor and again threw him to the ground.

         According to Phillips, while Bonnell was on the ground, he picked up a bottle and threw it at Phillips. Phillips ducked, and the bottle struck Sutliff on the side of her head. (ECF No. 51-10 at 1-2; ECF No. 51-11 at 1-2; ECF No. 51-12 at 1-2.) Indeed, there is no real dispute that Whitehead knew that, when Bonnell threw the bottle, he was on the ground or trying to get up after having been violently attacked by Phillips, a much larger man.[5]

         In many cases the extent of Sutliff's injuries ordinarily would not play much of a role in the probable cause determination, but it is pertinent to the analysis in this case because an element of malicious wounding is the intent to permanently maim, disfigure, or disable. Sutliff's injury is also pertinent for the additional reasons that: (1) Sutliff did not seek medical care for her injuries, (upon the advice of her mother who is a nurse); and (2) contrary to the assertion by Whitehead in the Criminal Complaint, none of the witnesses stated that Sutliff blacked out or had a "large hole" in her head. (See, e.g., ECF No. 51-12 at 2 (Sutliff s written statement explaining that she "started bleeding from the split in [her] head"); ECF No. 51-10 (not stating that Sutliff blacked out); ECF No. 51-11 (same).) Indeed, in her Incident Report, Whitehead did not claim that Sutliff blacked out and described Sutliff's head wound as a "large gash," not a "hole in her head." (ECF No. 51-6 at 3.) Nonetheless, in the Criminal Complaint, Whitehead told the Magistrate that Sutliff "has a large hole in the back side of her skull" and that Sutliff had "black[ed] out" when the bottle hit her. (ECF No. 51-13 at 1.) In thusly reciting the nature of Sutliff's wound, Whitehead offered a statement addressed to the specific intent element of malicious wounding (with intent to permanently maim, disfigure, disable, or kill).[6]

         Also, there is credible evidence that, at the outset of her investigation, Whitehead jumped to the conclusion that Bonnell had committed the crime of malicious wounding based largely, if not solely, on a photograph of Sutliff's wound. And, she did that, even though, immediately before doing so, Sutliff had told Whitehead that the wound did not require stitches and that this medical advice had come from Sutliff s mother, a practicing hospital nurse, who had seen the picture of the cut.

         Thus, the evidence about the nature of Sutliff's wound is pertinent to: (1) assessing the validity of what Whitehead said in the Criminal Complaint about the specific intent element of the crime of malicious wounding; and (2) determining whether Whitehead intentionally or with reckless disregard for the truth told the Magistrate that Sutliff had a "hole in the back side of her skull" and had "blacked out" when the record shows clearly that no such evidence was known to Whitehead when she swore out the Criminal Complaint.

         B. The Investigation

         Whitehead's investigation of the altercation between Phillips and Bonnell began three days after the fact because none of the people involved called the Longwood Police Department on the evening of February 2 when it occurred, a fact that would suggest to Whitehead that neither Bonnell, Phillips, nor Sutliff considered the events to be serious. In fact, the record shows that the Longwood Police Department was called by the building custodial service after one of Sutliff s suite members called that service to get dried blood off the floor.

         According to the record on summary judgment, Whitehead interviewed Sutliff, Phillips, and Bonnell in that order.[7] Those interviews were recorded on a body camera that Whitehead wore.[8] On February 6, 2018, Sutliff, Phillips, and Bonnell gave witness statements. These video and written statements constituted the evidence from those with firsthand knowledge that was known to Whitehead when she filled out the Criminal Complaint, at least insofar as the summary judgment record is concerned.[9] It is thus necessary fully to appreciate what those recorded interviews and witness statements made known to Whitehead.

         1. Interviews of Sutliff, Phillips, and Bonnell: Body Camera

         The following is a summary of what the recorded interviews show:

         (a) Interview of Sutliff

         During the interview, Sutliff described the incident, telling Whitehead, in pertinent part:

[T]hey started fighting over there and one of them [Bonnell] ended up bleeding because they [Bonnell] hit their head. And then one of them [Bonnell] was trying to stop the other one [Phillips], so they [Bonnell] threw something. And instead of hitting the other person, they [Bonnell] hit me in the head. And ... it hit me over here on the, side of the head and it kind of split my head open a little bit. And I went in there and I was holding my head and I was like, "God, my head really hurts," and then I pulled my arm down. It was covered in blood. So I started freaking out. And then they took me into the bathroom - she did [pointing to Lantz]. And she tried to wash off some of the blood to see where it was coming from and stuff. And then to get, like, the light on it, she - I, like, laid down right over here, and that's why it's all sticky over there.

(See ECF No. 51-7 ("BWC Video 1") at 00:50-01:35; ECF No. 46-5 ("Trans. BWC Video 1") at 2:10-25 (emphasis added).)[10] Later in the interview, when asked why Bonnell threw the bottle, Sutliff stated:

[O]ne of them [Phillips] was bigger than the other [Bonnell]. And, I mean, the smaller guy knew what he was getting himself into when it started. But, like, obviously, the bigger guy's going to do a little bit more damage. So, like, he was slinging him every . . . which way.

(See BWC Video 1 at 07:18-07:29; Trans. BWC Video 1 at 16:8-14.)

         When asked about her injury, Sutliff said that she had called her mother, who is a nurse, and (using Facetime) showed the injury to her mother. (See BWC Video 1 at 02:11-02:42.) Sutliff's mother advised her not to go to the hospital. (See id.) Further, Sutliff described her injury as "it wasn't that big," "it already healed a lot," and "it had already stopped bleeding for the most part." (See id.)

         The video recording shows that, at this point, Whitehead stated, "this is malicious wounding" and "this is a felony," a statement that she later repeated during the interview. (See id. at 03:05-03:10, 15:15-15:18.) When Officer Hardy (who accompanied Whitehead) described the injury as "you got a good-sized gash," Sutliff responded, "you can look at it now[;] it is pretty much cleared up." (See id. at 03:17-03:22.) And, later Sutliff again stated that her injury "wasn't . . . bleeding that bad," "I didn't need stitches," and "my head's fine now." (See id. at 05:07- 05:22; Trans. BWC Video 1 at 10:25-11:3, 11:16-17.)[11]

         The recorded interview with Sutliff and Lantz also shows that Whitehead was advised that Bonnell was injured; that Lantz took him to the hospital; and that he had a slight concussion and needed staples, but that it was too late to apply them. (See BWC Video 1 at 04:39-04:55; Trans. BWC Video 1 at 9:21-10:10.) Lantz then showed Whitehead a picture of Bonnell's injuries that showed a wound to his head. (See BWC Video 1 at 04:55-04:57.) Later, Whitehead described Bonnell as the "boy with big gash in his head." (See id. at 09:30-09:32; Trans. BWC Video 1 at -21:13-14.)

         (b) Interview with Phillips

         Immediately after her interview with Sutliff and Lantz, Whitehead interviewed Phillips. (See BWC Video 1 at 17:00.) During that recorded interview, Phillips described the incident, stating in pertinent part:

I overheard him in the hallways. He said something about me. He said my name. So I went outside in the hallway and I confronted him - or, I tried to, and he went into the room who you just spoke to, Carie and Madison. And I went into their room and I was like, "Ben, what'd you say?" And then he came, like, straight up at me and, like, started chesting me up. He was like, "You want to start this right here, right now?" And I was like "Ben, what did you say?" That's the only reason why I went over there, just to see what he said. And again, he was persistent on fighting. So I did - I put my hands on him, he put - he pushed me back, and I picked him up and threw him on the ground. And then after that, he had a bottle and he tried to hit me with it and I ducked. And that's when he hit the other girl in the . . . head.

(Id. 17:25-18:08; Trans. BWC Video 1, 40:25-41:17 (emphasis added).)

         (c) Interview with Bonnell

         Whitehead then went to interview Bonnell. She met Bonnell and asked him for his student identification. (See ECF No. 51-1 ("Whitehead Dep.") at 34:17-22; ECF No. 51-8 PBWC Video 2").) Seconds after meeting Bonnell, and when he went back into the room to get his student identification, Whitehead told Officer Hardy "[h]e is getting ready to lie. You see that look on his face?" (BWC Video 2 at 00:58-01:02; ECF No. 46-6 ("Trans. BWC Video 2") at 2:7-8.)[12]

         During his recorded interview, Bonnell told Whitehead:

So at about I guess 10:00 that night, I was in the girls' suite down the hall hanging out with them. My former roommate had come in so we all went back to my room to see him. And I don't remember what we were arguing over. But at that point, Ieaun [Phillips] and I started bickering over something. ... I left after that and walked back down the hall with the girls, went back to their room, heard him yelling after me. He came into the suite. I walked up to him to talk to him. He started pushing up against me. That point, he picked me up and slammed me into one of the girl's closets. My head hit the metal clothing bar there. Picked me up again, slammed me onto the floor. At that point, I picked up a bottle to defend myself. I guess that came out of my hand at some point and hit Carie [Sutliff ], one of the girls.

(BWC Video 2 at 01:44-02:44; Trans. BWC Video 2 at 2:17-3:7 (emphasis added).) Later in the interview Bonnell repeated: “I was trying to defend myself at that point. I mean, he was hurting me." (BWC Video 2 at 11:01-11:06; Trans. BWC Video 2 at 12:2-3.)

         After Bonnell gave his description of the incident, Whitehead told Bonnell that his description was inconsistent with what Phillips had said (saying erroneously that Phillips had asserted that Bonnell put his hands on him first) . (See BWC Video 2 at 03:10-03:34, 08:33-08:38; Trans. BWC Video 2 at 3:14-22.) Bonnell explained:

[O]ne of the girls tried to stop him coming into the suite. He pushed her out of the way. I was just standing there when he started pushing up on me. It wasn't a fight I wanted to happen. That's why I left my room in the first place. And, I mean, I never would've gotten physical with him.

(BWC Video 2 at 03:39-03:55; Trans. BWC Video 2 at 3:24-4:5.) And again, with the investigation still incomplete, Whitehead can be heard reiterating that Bonnell had committed malicious wounding, a felony, the conclusion on which she had fastened early in the interview with Sutliff. (See BCW Video 2 at 04:20-04:25, 06:29- 06:30; Trans. BWC Video 2 at 4:15-17.)

         2. Written Statements of Sutliff, Phillips, and Bonnell

         On February 6, the investigation into the altercation continued. Whitehead secured written statements from Sutliff, Phillips, and Bonnell. Each is set out verbatim below.

(a) Sutliff Statement
Throughout the day they had both been bickering to each other. After their friend Peter got off the elevator they kept talking to each other rudely. Ben was walking to my room and told me 'sometimes I wish I could throw a bottle at his (Ieuan) head.' At this point, I told him to go in my suite alone to cool off. I was still in the hall and Ieuan came storming down the hall saying 'what was that bitch' reffering [sic] to Ben. I tried to stop him from coming in and he pushed me out of the way to get to Ben. As they saw each other the fight broke out. During the fight Ieuan had slammed Ben and as he was getting up, in the fight, Ben took the bottle of Maddog and threw the bottle to hit Ieuan but it came across the room to hit me instead when Ieuan had ducked to miss it. The bottle had hit me on the right side of my head. The bottle hit the ground and I started bleeding from the split in my head.

(ECF No. 51-12 at 1-2 (emphasis added).)

(b) Phillips Statement
Ben said something about me in the hallway going into 702 but at the time I didn't know what he said. So I followed him into the 702 suit [sic] to ask him about what he had said about me at the time. Once I entered the suit [sic] I repeatedly keep asking 'Ben what did you say?' Before I entered room 702 Ben came at me and squared up and repeatedly asked me if I wanted to fight and if I wanted to fight right now. I asked one more time before he repeated what he said previously, still squaring up. Once he said the comments again I used my left hand and pushed Ben into the locker around the neck still holding him there. Once I did that he then put his hands around my neck leaving marks and some blood. When X felt the pain I grabbed Ben and threw him to the ground. His head hit the ground and was cut. When he was on the ground he picked up the bottle next to him and attempted to throw it at me. Once I saw him in action to throw the bottle at me I then ducked. Once I ducked the bottle went passed [sic] me and hit Carie in the head. After that we went our separate ways. I stayed behind to help Carie any way I could and Ben went home. I later found out that night that Ben told the people in the suit [sic] that if he was to find an empty bottle he would smash it against my head.

(ECF No. 51-11 at 1-2 (emphasis added).)

(c) Bonnell Statement
On Feb. 2nd I had been hanging out with friends in the room down the hall. We went back to my room to meet my former roommate who was in town for the weekend. While in my room I went to talk to Ieuan my suitemate. We began arguing. I as well as the girls and Peter left. I heard Ieuan yelling after me. I re-entered the suite area because we had walked in. He began pushing himself into me and the [sic] picked me up by the neck, slammed me into the closet and my head hit the metal clothing bar. He picked me up again by the legs and slammed me onto the ground. While I was trying to get up I picked up a glass bottle to defend myself which came out of my hand and hit Carie Sutliff. The fight diffused at that point, and I returned to my room after someone said I had a cut on the back of my head. I returned to the suite to get my phone and saw Carie and her suitemates in the bathroom and asked if she was okay. Her suitemates asked me to leave. So I called a friend in Fraiser to stay there the night. I later returned to get medication from my room and briefly talked to Carie. I had Madison and her friend take her to the ER the next morning, then headed home for the weekend.

(ECF No. 51-10 at 1-2 (emphasis added).)

         3. The Report of the Resident Advisor

         In addition to the video interviews of, and written statements made by, the three people with firsthand knowledge, before February 9 when she filed the Criminal Complaint, Whitehead had received, but not read, [13] a report from Michael Carpenter, the Resident Advisor ("RA") for the dormitory.

         Carpenter also interviewed Bonnell, Phillips, and Sutliff in that order. Carpenter issued a report on "February 5, 2018. Because Whitehead did not read the RA's report before she filed the Criminal Complaint, she cannot have considered its contents, and thus it could not have been part of her probable cause determination. Nonetheless, the RA's report can be considered as evidence that, had Whitehead considered it, it would have been material to an assessment of: (1) the credibility of Bonnell, Phillips, and Sutliff; and (2) whether there was probable cause to support the elements of the crime of malicious wounding, which, as of February 6 (and early in her investigation), Whitehead appears to have decided was a crime that Bonnell had committed.

         Carpenter's report of the interviews is set out below.

(a) Report of Interview with Bonnell
Resident Bonnell claimed that on the night of Friday, February 2, Resident Bonnell and Resident Phillips had gotten into a heated discussion and Resident Bonnell made a comment under his breath while entering the suite of Resident Carie Sutliff (L00399074, Curry 704). Resident Phillips then asked Resident Bonnell in a heated manner 'what did you say?' While in the suite of Curry 702/704/706, Resident Phillips then picked up Resident Bonnell and slammed the head on the door, which then caused Resident Bonnell to bleed from, the back of the head. Resident Phillips then, while still holding Resident Bonnell, slammed Resident Bonnell on the ground, causing the resident to hit his head on the ground. Resident Bonnell then attempted to use a glass bottle to defend against Resident Phillips.

(ECF No. 51-3 at 1-2 (emphasis added).)

(b) Report of Interview with Phillips
Resident Phillips informed RA Carpenter that both Resident Phillips and Resident Bonnell had been bickering and Resident Bonnell said a statement in the 7th floor hallway in which was inaudible to Resident Phillips. Resident Phillips then asked 'what did you say?' while following Resident Bonnell into the suite of 702/704/706. Resident Phillips asked Resident Bonnell 'what did you say?' Resident Phillips was then challenged by Resident Bonnell who had been saying, Mo you want to start this?' Resident Phillips then stated, 'I just want to know what you said.' Resident Bonnell said in reply, 'let's do this now.' Resident Bonnell then squared up to Resident Phillips. Resident Phillips then put the hands of the resident on the neck of Resident Bonnell. Resident Bonnell then also put his hands on Resident Phillip's [sic] neck. Resident Phillips ...

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