Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 1 of 14 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE

JAMES “MATTHEW” WALKUP,

Plaintiff,
5:20-cv-00703
vs. Civil Action No.

J.L. STEVENS, individually,

Defendants.

COMPLAINT

This complaint, brought pursuant to 42 U.S.C. Section 1983, the Fourth Amendment to

the United States Constitution, arises out of the Defendants’ unlawful search and seizure and use

of excessive force against the Plaintiff on or about March 12, 2019 in the town of Charmco,

Greenbrier County, West Virginia, within the Southern District of West Virginia.

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343.

PARTIES

1. The Plaintiff was at all times relevant hereto a resident of Greenbrier County in

the Southern District of West Virginia.

2. Defendant J.L. Stevens is a police officer employed by the Town of Rainelle

through the Rainelle Police Department, having the rank of Sergeant on the relevant date. He is

!1
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 2 of 14 PageID #: 2

alleged herein to have acted at all times under color of law and within the scope of his

employment with the Rainelle Police Department. He is named in his individual capacity.

3. Defendant J.W. Gilkerson is a West Virginia State Trooper who was personally

involved in the March 12, 2019 interaction with the Plaintiff as detailed below. He is named

herein in his individual capacity. It is alleged herein that he was acting within the scope of his

employment and under color of law at all times relevant hereto.

4. Defendant S.A. Murphey is a West Virginia State Trooper who was personally

involved in the March 12, 2019 interaction with the Plaintiff as detailed below. He is named

herein in his individual capacity. It is alleged herein that he was acting within the scope of his

employment and under color of law at all times relevant hereto.

FACTS

5. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

6. On March 12, 2019, the plaintiff, James “Matthew” Walkup was at his residence,

which is located along U.S. Route 60 in or near the unincorporated community of Charmco, in

the western end of Greenbrier County, West Virginia.

7. Fred Bostic, a longtime friend of the Plaintiff, visited the Plaintiff’s home for

several hours on March 12, 2019. Plaintiff’s home is within sight of a main roadway, US Route

60, and is visible to any passing vehicles on the public roadway. Mr. Bostic had parked his

vehicle within sight of the public roadway. No attempt had been made by any party to conceal

Mr. Bostic’s vehicle from the public roadway and passing law enforcement officers.

!2
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 3 of 14 PageID #: 3

8. Unbeknownst to the plaintiff, Mr. Bostic had a “parole hold” and pending arrest

warrants. Upon information and belief, he had been on home incarceration and had cut off his

ankle bracelet (unbeknownst to the Plaintiff).

9. The defendant state troopers became aware that Mr. Bostic’s vehicle was parked

in front of the plaintiff’s home. At no time did the defendants, nor any other law enforcement

officer, reasonably believe that Mr. Bostic resided at the Plaintiff’s residence. All relevant law

enforcement officers, including the defendants, were aware that the home described herein was

the residence of the Plaintiff. Prior to the encounter described herein with the Plaintiff, the

defendant troopers requested assistance from the nearby Rainelle Police Department, to which

defendant J.L. Stevens arrived to assist.

10. At the time the defendant police officers arrived at his residence to locate and

apprehend Mr. Bostic, the Plaintiff was not suspected of having committed any crime. There was

no pending warrant against the Plaintiff. Nor would any reasonable police officer have probable

cause to believe that the Plaintiff had committed any crime.

11. None of the officers sought, nor obtained, a search warrant for the Plaintiff’s

residence prior to forcing entry into his home on March 12, 2020. Nor did they seek/obtain, an

arrest warrant for the Plaintiff.

12. When the Defendant troopers arrived on scene, they requested Defendant Stevens

from the Rainelle Police Department to assist in apprehending Mr. Bostic from inside the

Plaintiff’s house. According to Officer Stevens’ report, he was requested to assist in the arrest

“due to the previous history of the suspect running and being hostile with law enforcement.” He

!3
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 4 of 14 PageID #: 4

also noted that “the troopers also stated that the suspect and the owner of the residence were both

suspected of possibly having a gun.”1

13. The officers requested additional assistance from dispatch. Three sheriff’s

deputies were dispatched to the location. However, due to the distance involved in traveling to

the scene, the situation was resolved prior to their arrival.

14. The defendant police officers arrived at the Plaintiff’s home around 5:00 p.m. and

knocked on the door aggressively. Hearing the officers, Mr. Bostic then informed the Plaintiff

that the police were there to arrest him, as he had been on home incarceration and had at some

point earlier removed his ankle bracelet. Plaintiff asked Mr. Bostic to go to the door and speak to

the officers, not wanting to get involved in any encounter between the officers and Mr. Bostic.

However, Mr. Bostic replied, “they’ll go away.” Plaintiff responded, “they’re not going to leave.”

15. Plaintiff continued to plead with Mr. Bostic to go outside and surrender to the

officers. Up until that point, the officers did not forcibly attempt to open the Plaintiff’s door, but

were only knocking and shouting. At some point it sounded like the officers began to use a

bullhorn. Plaintiff continued to plead with Mr. Bostic to go outside. However, Mr. Bostic refused.

16. The situation ended up being resolved when Mr. Bostic relented and voluntarily

walked outside and allowed the officers to take him into custody. Plaintiff heard the officers

yelling, “get on the ground, put your hands behind your back,” and so on. It was obvious to the

Plaintiff that Mr. Bostic had been taken into custody at that point.

1
A Freedom of Information Act (FOIA) request was served on the West Virginia State Police by
Plaintiff’s counsel on March 19, 2019. On April 3, 2019, the state police provided a response letter that a
search had been conducted, and that the state police were not in possession of any records pertaining to
the incident.

!4
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 5 of 14 PageID #: 5

17. Plaintiff did not want to be involved in the interaction between Mr. Bostic and the

police, so he stayed inside his home and did not approach the front door, or the officers. He

assumed that they would leave since Mr. Bostic had been arrested. To the contrary, however, the

Plaintiff began to hear what sounded like the officers ordering him to come outside. At that point,

Plaintiff was afraid he might be physically harmed by the agitated police officers, so he turned on

his smart phone camera to record video footage of whatever was about to happen. Not knowing

what else to do, Plaintiff laid down on his bed and put his hands over his head so that he would

not be harmed. He assumed that the officers would be coming in, based on their shouting and

apparent agitation.

18. After Mr. Bostic was taken into custody, the defendant officers opened the front

door of the Plaintiff’s home. With guns drawn, Defendant Stevens yelled, “Hey Matt… come out

here.” Another officer can be heard ordering Matt outside as well. Matt responded, “I haven’t

done anything . . . I don’t know what’s going on.”

19. One of the officers then replied, “Shut the fuck up and crawl out! Hands and

knees!” The officers were still on the front porch, and were ordering the Plaintiff to crawl

towards them. Plaintiff responded again, as he was attempting to crawl towards the officers, “I

haven’t done anything.” The officers then asked, “anybody else in here?” “No sir,” the Plaintiff

responded. One of the officers said, “keep coming,” as the Plaintiff as crawling towards his front

door, still filming with his phone. As he struggled to crawl towards the door, Plaintiff asked

again, “What did I do?” The officer who had been shouting commands said, “We’ll let you know

in just a second.”

!5
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 6 of 14 PageID #: 6

20. As Plaintiff was crawling to his front entryway, Defendant Stevens, who is

portrayed on the video footage as being on the front porch, reached his hand inside the doorway,

and violently grabbed the plaintiff from inside the entryway, pulled him out onto the front porch,

and slammed him flat onto the floor of the porch. Stevens places the Plaintiff in handcuffs, face

down on his porch. In the video, the “click” of the handcuffs closing can be heard. Then, as can

be observed in the video, Stevens then stomps the handcuffed Plaintiff in the back head with

what appears to be his boot, and then appears to knee, or otherwise strike Plaintiff in the back,

stating, “If you’re not gonna fucking listen.…” As he was doing this, Plaintiff pleaded with

Stevens to stop hurting him, saying, “Sorry, Sir, I’m sorry.” Defendant Stevens then responds, as

can be heard on the video footage, “When we tell you to get the fuck out of the God damned

house, you get the fuck out of the house!”

21. Stevens then demands, “Is anyone else in here?” Plaintiff responded, “No, Sir…..

I don’t know what I’ve done.” At that point Stevens again stomps the Plaintiff in the head with

what appears to be his boot. Plaintiff’s body recoils following the blow. He was still handcuffed,

face down on his porch. Defendant Stevens then enters and searches the Plaintiff’s house,

leaving the Plaintiff lying on his porch injured and in pain. Plaintiff can be heard stating, “Oh my

head….”

22. Just after Plaintiff complained about his head, the video of the incident portrays a

police officer wearing a green West Virginia State Police uniform walk up, look down at the

Plaintiff’s phone, which was still recording, and the officer covers the lens of the camera so that

it can no longer film. The trooper then turned the phone off and advised Defendant Stevens that

!6
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 7 of 14 PageID #: 7

his actions had been recorded on video. The trooper seized the phone at that point and kept it in

his possession for the remainder of the encounter.

23. The defendant trooper (either Gilkerson or Murphey) who picked up the phone

then attempted to erase the video of the events which had just transpired from the Plaintiff’s

phone. It was also apparent to the Plaintiff that the trooper had searched through the records of

his communications, presumably for the purpose of searching for evidence of communication

with Mr. Bostic. The trooper deleted the video of the seizure and use of force against the

Plaintiff from the phone, and also went so far as to delete the photos from the “google trash” on

the phone. However, after his phone was returned, the Plaintiff was able to retrieve the

recording.

24. After searching the Plaintiff’s house, the defendant officers got the plaintiff up,

un-handcuffed him, and took him inside his residence. The defendant officers then began to

question the Plaintiff inside his home. They asked him if he had any weapons, which he didn’t.

Nor was Fred Bostic armed, to his knowledge. One of the officers continued to question the

Plaintiff, while the trooper with his phone was busy doing something to the phone. It was

apparent to the Plaintiff that the trooper with his phone (the same one who’s face is on the video -

either Gilkerson or Murphey) was attempting to erase the video footage, and that the questions

were merely being posed for the purpose of stalling for additional time to enable the successful

deletion of the footage.

25. After the Plaintiff’s phone was returned to him, the officers changed their attitude

somewhat, and began trying to convince the plaintiff that they were justified in their earlier

conduct. They told the Plaintiff that he should have come out of his home when ordered. Mr.

!7
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 8 of 14 PageID #: 8

Walkup responded that he hadn’t done anything wrong, and that he was under the pressure they

wanted to arrest Mr. Bostic - not him. During this conversation, the Plaintiff was bleeding from

the injury to his head, which had been caused by Defendant Stevens’ boot stomp use of force.

The officers never offered the Plaintiff medical treatment, nor to provide an ambulance for him.

26. The officers then abruptly left. Plaintiff was never arrested, nor charged with any

crime arising out of the incident. The 911 dispatch logs indicate that Mr. Bostic was transported

to the regional jail.

27. Plaintiff wanted medical treatment, but he couldn’t arrange for transportation. He

was afraid to call 911. He documented a large abrasion on his head by taking a photograph,

which had been caused by Defendant Stevens’ use of force.

COUNT ONE - UNREASONABLE SEARCH AND SEIZURE IN VIOLATION

28. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

29. On March 12, 2019, defendants Stevens, Gilkerson and Murphey, under color of

law seized the Plaintiff, searched his home, searched his cell phone, deleted the video footage on

his phone, and interrogated the Plaintiff inside his home, as described above in detail. During the

encounter, the Plaintiff was handcuffed, beaten, deprived of his phone for around 15 minutes,

and ultimately questioned inside his home, all against his will and without his consent.

!8
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 9 of 14 PageID #: 9

30. The defendant police officers were aware that the home was the Plaintiff’s

residence, and had no reasonable belief, nor any mistaken belief, that Fred Bostic resided in the

Plaintiff’s home.

31. Fred Bostic, who was known to the defendant police officers, was already in the

defendants’ custody prior to the defendants opening the Plaintiff’s front door, ordering Plaintiff

to crawl to his front door, and then seizing him and using force against him.

32. The Defendant police officers did not have a search warrant for the Plaintiff’s

residence.

33. The Defendant police officers did not have an arrest warrant for the Plaintiff, nor

any other individual who resided at the home.

34. The Defendant police officers had sufficient opportunity, as well as the logistical

means to attempt to secure a search warrant for the Plaintiff’s home, had they believed it was

necessary to make entry. Three officers were at the scene, and three more officers were en route

to the scene. There was no attempt made at securing a search warrant for the Plaintiff’s home.

35. The Plaintiff was not suspected of having committed any crime on March 12,

2019. Nor was the Plaintiff ever charged with having committed a crime pertaining to the subject

incident.

36. The Plaintiff did not consent to the search and seizure of his home, his person, nor

his phone, on March 12, 2019 as described above in detail. Nor was his consent sought by the

defendant police officers.

37. There were no exigent circumstances present sufficient to justify the warrantless

entry of the Plaintiff’s home and the ensuing seizure of the Plaintiff and his phone on March 12,

!9
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 10 of 14 PageID #: 10

2019. Mr. Bostic had already been taken into custody prior to the inception of the search and

seizure and use of force against the Plaintiff. The defendant officers were aware of the identity of

the Plaintiff, as they called him “Matt,” when they ordered him to crawl to the door. Additionally,

the 911 dispatch audio obtained by FOIA request reveals that the defendant officers knew the

home was the residence of the James “Matthew” Walkup. Moreover, given that Mr. Bostic had

been on home incarceration and had cut-off his ankle bracelet, the officers affirmatively

possessed knowledge that Fred Bostic resided elsewhere.

38. There was no legal justification for the search and seizure of the Plaintiff on

March 12, 2019. No objectively reasonable police officer could have believed that the presence

of Fred Bostic in the Plaintiff’s home would have provided justification for entry without a

warrant. “Absent consent or exigent circumstances, police may not, however, enter the home of a

third-person to execute an arrest warrant for a suspect named therein without first obtaining a

search warrant.” Steagald v. United States, 451 U.S. 204, 205-06 (1981). Given that Steagald

was issued in 1981, the law is well settled and very clearly established.

39. The Plaintiff suffered damages for which he is entitled to recover.

COUNT TWO - USE OF EXCESSIVE FORCE IN VIOLATION

40. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

!10
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 11 of 14 PageID #: 11

41. Defendant Stevens used excessive force against the Plaintiff on March 12, 2019

when he violently grabbed him, slammed him onto his porch, stomped and smashed Plaintiff’s

head, and kneed, or otherwise struck, him in the back, as described above in detail.

42. At the time this violent use of physical force was performed by Defendant

Stevens, as set forth above, no objectively reasonable police officer could have perceived the

Plaintiff as posing an immediate threat to the safety of himself, or any other individual. Plaintiff

was unarmed, compliant, and not resisting, which is corroborated by the video footage of the

incident.

43. The Plaintiff was unarmed at the time he was subjected to violent physical force.

There was no reasonable basis for belief that the Plaintiff could have been armed. Plaintiff was

handcuffed, with his hands behind his back, prior to the majority of the violence inflicted by

Defendant Stevens.

44. At the time the Plaintiff was attacked by Defendant Stevens, the Plaintiff was not

suspected of having committed any crime. Nor was the Plaintiff resisting in any way. Plaintiff

was completely cooperative, even while being beaten by Stevens, as is demonstrated by the

video footage. The Plaintiff was struck by Stevens as punishment for not coming outside when

ordered to do so - not because such force was necessary in his own defense, or in the defense of

others.

45. Defendant Stevens’ actions were objectively unreasonable, unlawful,

unwarranted, and taken in violation of the Plaintiff’s clearly established procedural and

substantive rights, including the Fourth Amendment of the U.S. Constitution to be free from

!11
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 12 of 14 PageID #: 12

having an excessive amount of physical force used against him; namely being beaten

unnecessarily.

46. Defendant Stevens’ actions were willful, wanton, intentional, malicious, and done

with a callous and reckless disregard for the Plaintiff’s Fourth Amendment rights to be free from

excessive force.

47. Plaintiff suffered harm, including personal injury, extreme emotional distress,

severe pain, and is entitled to recover damages for the same.

COUNT THREE - BYSTANDER LIABILITY

48. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

49. Defendants Gilkerson and Murphey were on duty and in uniform during the

encounter described above in detail on March 12, 2019. They observed the violent uses of

physical force inflicted by Defendant Stevens against the Plaintiff, and observed that such force

was not performed for any lawful reason, but rather to punish the Plaintiff for not going outside

his home when ordered to do so. They observed such force being inflicted on the Plaintiff at a

time when Plaintiff was completely helpless and compliant, with his hands handcuffed behind

his back, face down on the porch. They furthermore were aware of the fact that the Plaintiff was

not under arrest, nor the suspect of any crime.

50. It would be readily apparent to any objectively reasonable officer that the beating

and physical abuse perpetrated against the Plaintiff, as alleged herein in detail, would violate the

!12
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 13 of 14 PageID #: 13

Fourth Amendment rights of that individual, the Plaintiff, to be free from the infliction of

excessive force.

51. The defendants’ actions as alleged herein were under color of law, objectively

unreasonable, willful, wanton, intentional and done with a callous and reckless disregard for the

Plaintiff’s Fourth Amendment rights to be free from excessive force.

52. The Plaintiff suffered harm and is entitled to recover damages for the same.

PRAYER

WHEREFORE, based on the above stated facts, the Plaintiff respectfully requests that

this Honorable Court award:

1. Damages against the defendants in an amount to be determined at trial which will

fairly and reasonably compensate the plaintiffs for all compensatory damages to be proven at

trial;

2. Punitive damages against the individual defendants in an amount to be determined

at trial; and

3. Reasonable attorney fees and costs.

PLAINTIFFS DEMAND A TRIAL BY JURY

!13
 Case 5:20-cv-00703 Document 1 Filed 10/22/20 Page 14 of 14 PageID #: 14

JAMES “MATTHEW” WALKUP,

/s John H. Bryan
John H. Bryan (WV Bar No. 10259)
JOHN H. BRYAN, ATTORNEY AT LAW
411 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
[email protected]

for the Plaintiff

!14