WEST VIRGINIA RECORD

CHARLESTON – Because of newly asserted claims of federal civil rights violations, a Mingo County man's lawsuit against the West Virginia State Police, Mingo County Sheriff's and Williamson Police departments has been moved to U.S. District Court.

Adam B. Tomlinson, W. Joseph Bronosky and Duane J. Ruggier II, attorneys for the respective agencies, filed a notice of removal Oct. 20 in Calvin Wilkerson's lawsuit originally filed on Jan. 12 in Mingo Circuit Court. The notice came following an amended complaint Wilkerson's attorneys E. Lavoyd Morgan Jr. and Steve A. Baker filed Oct. 5 making claims under federal law his civil rights were violated when police used excessive force to restrain him two years ago in preparation for a mental health evaluation.

According to his original complaint, Wilkerson's mother on Jan. 12, 2009, filed for a mental hygiene warrant on him. In serving the warrant, Wilkerson was placed into custody by Deputy Sheriff Chris Haynes.

Though the suit does not specify were Wilkerson was taken into custody, his mother asked the handcuffs be removed so he could eat. After he finished eating, Wilkerson said "he did not wish to be institutionalized."

For reasons not immediately clear, a struggle then ensued between Wilkerson and WPD Patrolman John Hall, who was assisting Haynes in serving the warrant. Following the struggle, Trooper B.R. Moore, Senior Trooper C.D. Kuhn and Cpl. Harper arrived on the scene, arrested Wilkerson and took him to the State Police detachment in Williamson.

In his suit, Wilkerson alleges one of the troopers deliberately tripped him after helping him out of the cruiser. Sometime later while he was being processed, Wilkerson slipped out of his handcuffs and fled the detachment.

Using their dogs, troopers shortly caught-up with Wilkerson. After he was subdued, Wilkerson alleges troopers then "kicked and hit all over his body."

After he was re-arrested, Wilkerson was taken to Williamson Memorial Hospital where he received several stitches for dog bites. During his treatment, he alleges troopers instructed the staff not to take pictures of his wounds.

Following his release, he was taken to the Southern Regional Jail in Beaver.

In his amended complaint, Wilkerson gives a slightly different account of what happened.

In it, he continues to maintain Haynes, and Hall prepared to take him into custody after he finished eating. Only this time, Wilkerson added that Hall, in attempting to help Haynes restrain him, put him into a headlock, and slammed his head into a wall.

Also, after arriving on the scene, and taking him into custody, Wilkerson now alleges the troopers first sprayed him in the face with mace, then kicked him while on the ground. After an unspecified amount of time, they then took him to the detachment.

After arriving at the detachment, Wilkerson again alleges he was purposefully tripped. However, this time he maintains Moore, Kuhn and Harper kicked, and beat him with their fists and batons while he was on the ground "not resisting arrest, unarmed, outnumbered, not attempting to flee [and] posing no risk."

While still on the ground, Wilkerson alleges one or more of the troopers called him " a nigger." After they stopped beating him, he says they told him to run as he was "free to go."

Believing he was in fact released from their custody, Wilkerson says he began limping away from the detachment while wearing no shoes or jacket. After he was subdued by the dogs, Wilkerson alleges Moore, Kuhn and Harper, now joined by Hall, again kicked, and beat him.

Again in his amended complaint, Wilkerson says he was taken to WMH where troopers asked the staff not to take pictures of his wounds.

The amended complaint makes claims against all the defendants, including Mingo County Sheriff Lonnie Hannah, and the Mingo County Commission, for unreasonable or excessive use of force under the Fourth and Fourteenth Amendment, violations of Wilkerson's state constitutional rights and assault, and battery. It makes separate claims of negligence against Hannah, the Commission, Haynes and Hall.

As a result of their actions, Wilkerson maintains along with the cost of medical care, he's incurred "humiliation, pain and suffering, loss of enjoyment of life, [and] severe and permanent emotional distress." He seeks unspecified damages.

A week before the notice of removal, Tomlinson filed an answer to Wilkerson's amended complaint. In it he admitted the troopers did assist in his arrest, and take him to the detachment, but no time did they brutalize, and tell him he was released from custody.

Also, he denies they instructed WMH staff not to photograph Wilkerson's injuries.

The case is assigned to Judge Joseph R. Goodwin.

U.S. District Court for the Southern District of West Virginia case number 11-cv-783