Rhoades v. County Commission of Marion County

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

CHRISTY J. RHOADES, in her

capacity as the Administratrix and

Personal Representative of

the estate of Philip Jontz Rhoades,

Plaintiff,

v. Civ. Action No. 1:18-CV-186

(Judge Kleeh)

COUNTY COMMISSION OF MARION COUNTY,

DAVID FORSYTH, in his official and

individual capacity, and

JOHN DOE, in his official and

individual capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

Pending before the Court is Defendants’ Motion for Summary

Judgment. For the reasons discussed below, the Court grants in

part and denies in part the motion.

I. PROCEDURAL HISTORY

On December 2, 2018, the Plaintiff, Christy J. Rhoades, in

her capacity as the Administratrix and Personal Representative of

the Estate of Philip Jontz Rhoades (“Plaintiff”), filed a Complaint

against the Defendants, the County Commission of Marion County

(the “County Commission”), David Forsyth (“Forsyth”), and John Doe

MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

(“Doe”) (together, “Defendants”).1 After a hearing and ruling on

the motion to dismiss, the Court ordered the parties to meet and

confer before Plaintiff filed an Amended Complaint.

On March 12, 2019, Plaintiff filed an Amended Complaint. The

Amended Complaint asserts the following against Defendants:

•

Count I: 42 U.S.C. § 1983 - Excessive Use

of Force;

•

Count II: 42 U.S.C. § 1983 - Monell

Liability (County Commission of Marion

County);

•

Count III: Intentional Infliction of

Emotional Distress; and

•

Count IV: Wrongful Death - W. Va. Code § 55-

7-6.

Plaintiff requests compensatory damages, general damages, damages

permitted under the West Virginia Wrongful Death Act, punitive

damages, pre-judgment and post-judgment interest, costs and

attorney fees under 42 U.S.C. § 1988, and such other further

specific and general relief as may become apparent.

1 The Marion County Sheriff’s Department was originally named as a

Defendant, but the Court dismissed it as a Defendant via its order

on February 22, 2019 [ECF No. 21].

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

Defendants answered on March 26, 2019. On October 25, 2019,

Defendants filed a Motion for Summary Judgment. Defendants ask the

Court to grant summary judgment as to each count in the Amended

Complaint. The motion has been fully briefed and is ripe for

review.

II. STANDARD OF REVIEW

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). The movant

“bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of

‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

nonmoving party must “make a sufficient showing on an essential

element of her case with respect to which she has the burden of

proof.” Id. Summary judgment is proper “[w]here the record taken

as a whole could not lead a rational trier of fact to find for the

non-moving party, there [being] no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

587 (1986) (citing First Nat’l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288 (1968)).

III. FACTS

At the summary judgment stage, the Court considers the facts

in the light most favorable to the non-moving party. In July 2017,

Rhoades was a 28-year-old man living in Marion County, West

Virginia. In late July, he had been accused of “joy-riding” in the

county. See Am. Compl., ECF No. 22, at ¶ 29. On July 25, 2017, law

enforcement unsuccessfully pursued Rhoades based on these

accusations (the “July 25 Pursuit”). Id. ¶ 31. During the July 25

Pursuit, Rhoades changed vehicles three times. Id. ¶ 32. Deputy

Cory Love (“Love”) with the Marion County Sheriff’s Department

(“MCSD”) discharged one or more firearms at Rhoades before he

escaped. Id. ¶ 34. Rhoades was charged with grand larceny (multiple

counts) and attempted murder of a police officer. Def. MSJ, ECF

No. 62, at 3. These charges were based on Rhoades’s allegedly

reckless driving that day. Id.

On August 2, 2017, around one week after the July 25 Pursuit,

Rhoades assisted two individuals who wrecked their vehicle in

northern Marion County. See Am. Compl., ECF No. 22, at ¶ 39. When

Rhoades heard emergency sirens, he left to hide. Id. ¶ 40. Members

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

of the MCSD saw Rhoades driving shortly after the wreck. Id. ¶ 41.

Rhoades then attempted to hide from police down a dead-end dirt

road leading to a gas well site. Id. ¶ 42. Love and another deputy

with the MCSD, David Forsyth (“Forsyth”), learned where Rhoades

was hiding and pursued him. Id. ¶ 43.

When Love and Forsyth entered the clearing, Forsyth left his

cruiser and discharged his firearm seven times — killing Rhoades.

Id. ¶ 45. Defendants state that Forsyth instructed Rhoades to “stop

the car, show [him] his hands,” etc. See Def. MSJ, ECF No. 62, at

5. Defendants also state that Rhoades was reversing the Jeep and

then revved the engine and drove the Jeep directly at Forsyth in

an aggressive manner. Id. Defendants state that Forsyth saw Rhoades

reach for something in the console area. Id. Forsyth interpreted

the revving, spinning tires, and aggressive movement of the Jeep

as a lethal threat. Id. After shooting Rhoades, and with the help

of Love, Forsyth removed Rhoades from the vehicle and provided

first aid. Id. at 6.

Rhoades was inside a stolen Jeep Wrangler — a “standard” or

“stick-shift” vehicle. See Am. Compl., ECF No. 22, at ¶ 53.

Plaintiff argues that it would have needed to be in gear to be

moving towards Forsyth. Id. ¶ 54. While Forsyth claims that the

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

Jeep was moving toward him, Plaintiff points out that had the Jeep

been in gear when Rhoades was shot, the engine would have stopped

running when Rhoades’s foot was taken off the clutch. Id. ¶ 55. To

the contrary, the Jeep was still running and in neutral when the

State Police arrived. Pl. Resp., ECF No. 65, at 3. Therefore,

Plaintiff argues, the Jeep was not moving towards Forsyth. Am.

Compl., ECF No. 22, at ¶ 57.

All witnesses have testified that no one touched or otherwise

manipulated the Jeep’s gear shifter at any time following the

shooting. Pl. Resp., ECF No. 65, at 3. Plaintiff also points out

that there was no evidence of ground disturbance, which might mean

the engine was not revving at all. Id. ¶ 12. Plaintiff plans to

argue at trial that Rhoades’s death was due to a knowing and

intentional unlawful shooting into a stationary vehicle and that

Forsyth could not have reasonably perceived the jeep to be moving

when he utilized deadly force.

IV. DISCUSSION

A. Count I: 42 U.S.C. § 1983 - Excessive Use of Force

1. Qualified Immunity

Qualified immunity can be afforded to government officials

for discretionary acts taken in their official capacity. The

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

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 . . . alleged to have [been] violated.”

Anderson v. Creighton, 483 U.S. 635, 638 (1987). The test to

determine whether an officer is entitled to qualified immunity is

two-fold: (1) taken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s

conduct violated a constitutional right, and (2) was that right

clearly established such that a reasonable person would have known?

Siegert v. Gilley, 500 U.S. 226, 232 (1991). In determining whether

a right is clearly established, 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, 198–99 (2004) (citing Anderson, 493 U.S. at 201–

202). The Court can address either prong first. Pearson v.

Callahan, 129 S. Ct. 808, 818 (2009).

2. Excessive Force

“[A]pprehension by the use of deadly force is a seizure

subject to the reasonableness requirement of the Fourth

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985). “The

determination whether a reasonable person in the officer’s

position would have known that his conduct would violate the right

at issue must be made . . . in light of any exigencies of time and

circumstances that reasonably may have affected the officer’s

perceptions.” Pritchett v. Alford, 973 F.2d 307, 312–13 (4th Cir.

1992). 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 Supreme Court has written

the following about the reasonableness of deadly force:

Where the officer has probable cause to

believe that the suspect poses a threat of

serious physical harm, either to the officer

or to others, it is not constitutionally

unreasonable to prevent escape by using deadly

force. Thus, if the suspect threatens the

officer with a weapon or there is probable

cause to believe that he has committed a crime

involving the infliction or threatened

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

infliction of serious physical harm, deadly

force may be used if necessary to prevent

escape, and if, where feasible, some warning

has been given.

Garner, 471 U.S. at 11.

Deadly force “may not be used unless necessary to prevent the

escape and the officer has probable cause to believe that the

suspect poses a significant threat of death or serious physical

injury to the officer or others.” Id. at 1. This assessment occurs

at the moment that force is used. Elliott v. Leavitt, 99 F.3d 640,

643 (4th Cir. 1996) (writing that “conduct prior to that moment is

not relevant in determining whether an officer used reasonable

force”). The Supreme Court has held that police may not use deadly

force against an unarmed, non-dangerous, fleeing suspect. Id.

Thus, for purposes of qualified immunity analysis, it is clearly

established that using deadly force in such a situation is

unlawful.

Here, in order for the Court to grant summary judgment to

Defendants as to this count, it would need to find as a matter of

law that Forsyth’s conduct was reasonable given the circumstances.

Those circumstances, however, are disputed. Viewing the evidence

in the light most favorable to the non-movant (Rhoades), Rhoades’s

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

vehicle was not moving toward Forsyth when Forsyth fired shots at

it. It is possible for a reasonable jury to find that this was

possible because (1) the Jeep was in neutral, (2) there was no

evidence of ground disturbance, and (3) there is no evidence that

anyone moved the gear shifter after the shooting. The vehicle’s

lack of movement could negate the theory that the vehicle was used

as a weapon or posed a threat, which could make Forsyth’s conduct

potentially unreasonable. It is clearly established that, via

Tennessee v. Garner and its progeny, an officer’s use of deadly

force against a non-threatening, non-dangerous individual is an

unlawful seizure in violation of the Fourth Amendment.

Defendants rely heavily on Waterman v. Batton, 393 F.3d 471

(4th Cir. 2005). However, this case is easily distinguishable.

Perhaps most importantly, in Waterman, there is no dispute as to

whether Waterman’s car was moving. In Waterman, police followed

Waterman on a high-speed chase just prior to shooting him. Over

radio traffic, one officer reported that Waterman “just tried to

run [him] off the road . . . he’s trying to take us off the road.”

Id. at 474. The Fourth Circuit found in Waterman that police

officers were entitled to qualified immunity based on Waterman’s

vehicle’s “lurching” toward them, along with other factors. This

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

Court does not disagree that if Rhoades’s vehicle was lurching

toward police, that fact would help to establish qualified immunity

for Forsyth. However, at summary judgment stage, viewing the facts

in the light most favorable to the non-moving party, the Court

cannot find the undisputed facts show that lurching occurred.

Evidence exists that could lead a reasonable jury to find that

Rhoades’s vehicle was not moving when he was shot.

For those reasons, the Court finds that there is sufficient

evidence for a jury to find that Forsyth’s conduct was objectively

unreasonable, whether it be his firing shots in the first place or

the number of shots he fired (seven shots). The situation would be

different if Defendants produced evidence that Rhoades had

threatened someone or was fleeing from a dangerous crime scene.

This is not the case. While Rhoades may have been recklessly joy-

riding during the July 25 Pursuit, that incident is irrelevant

when analyzing whether he was a danger on August 2. See Elliott,

99 F.3d at 643 (the assessment of whether the suspect is a threat

is made at the moment when force is used); see also Waterman, 393

F.3d at 481 (writing that “events should be reviewed outside the

context of the conduct that precipitated the seizure” and that

deadly force, even if justified at the beginning of an encounter,

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

can be eliminated “even second later” if the threat goes away).

Defendants suggest only that Rhoades was driving his vehicle at

Forsyth and therefore using his vehicle as a weapon. Because there

is evidence that could lead a reasonable jury to conclude that

this fact is untrue, the Court finds that a genuine issue of

material facts exists and denies the motion for summary judgment

as to this claim.

B. Count II: 42 U.S.C. § 1983 - Monell Liability (County

Commission of Marion County)

A municipality is liable under § 1983 if it follows a custom,

policy, or practice by which local officials violate a plaintiff’s

constitutional rights. Monell v. Dep’t of Social Servs. of City of

New York, 436 U.S. 658, 694 (1978). “[T]he substantive requirements

for establishing municipal liability for police misconduct are

stringent indeed. The critical Supreme Court decisions have

imposed this stringency in a deliberate effort to avoid the

indirect or inadvertent imposition of forms of vicarious liability

rejected in Monell.” Spell v. McDaniel, 824 F.2d 1380, 1391 (4th

Cir. 1987). Courts have required plaintiffs to demonstrate

“persistent and widespread . . . practices of [municipal]

officials,” along with the “duration and frequency” – which

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

indicate that policymakers (1) had actual or constructive

knowledge of the conduct, and (2) failed to correct it due to their

“deliberate indifference.” Spell, 824 F.2d at 1386–91. Sporadic or

isolated violations of rights will not give rise to Monell

liability; only “widespread or flagrant” violations will. Owens v.

Baltimore City State’s Attorneys Office, 767 F.3d 379, 402–03 (4th

Cir. 2014) (citing Spell, 824 F.2d at 1387).

Municipal liability results only when policy or custom is

“(1) fairly attributable to the municipality as its ‘own,’ and is

(2) the ‘moving force’ behind the particular constitutional

violation.” Spell, 924 F.2d at 1386–87 (citations omitted).

“Custom and usage” require a showing that the “duration and

frequency of the practices warrants a finding of either actual or

constructive knowledge by the municipal governing body that the

practices have become customary among its employees.” Id. at 1387.

The actual knowledge can be established by reports or discussions.

Id. Constructive knowledge may be shown by the practices being “so

widespread or flagrant that in the proper exercise of its official

responsibilities the governing body should have known of them.”

Id. Such a developed “custom or usage” may then become the basis

of municipal liability, but only if its continued existence can be

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

laid to the fault of municipal policymakers, and a sufficient

causal connection between the “municipal custom and usage” and the

specific violation can then be established. Id. at 1390.

In Carter v. Morris, 164 F.3d 215 (4th Cir. 1999), the

plaintiff brought suit against the Danville Police Department. The

Fourth Circuit found that the plaintiff’s allegations were

insufficient to establish Monell liability. The court boiled down

plaintiff’s cited incidents to two instances — in addition to the

instance at issue in the case — of “even arguably unlawful arrests”

or unreasonable searches and seizures by the Danville Police

Department. Id. at 219. The court referred to this evidence as a

“meager history of isolated incidents” that does not reach the

required “widespread and permanent” practice necessary to

establish a municipal custom. Id. at 220. The court also noted

that the plaintiff showed no relevant incident prior to her own

case of which the City could have had knowledge and could have

acquiesced. Id.

Here, Plaintiff has not alleged that the MCSD has promulgated

any formal unconstitutional policy. Plaintiff alleges that the

MCSD’s custom, pattern, practices, and procedure is to use

Excessive Force when, at the time of using deadly force, no

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

reasonable police officer would believe that an imminent threat

existed. See Am. Compl., ECF No. 22, at ¶ 23. Plaintiff claims

that the MCSD has a custom, pattern, practice, procedure of falsely

claiming an imminent threat exists in order to justify its unlawful

uses of excessive force. Id. ¶ 24.

Defendants presume that in support of her Monell claim,

Plaintiff is relying on certain incidents in which the MCSD was

tangentially involved but not responsible for the shots fired.2

Plaintiff does not rely upon those cases in her Response. It is

clear that those incidents would not support a Monell claim against

the County Commission because the actions were taken by other

police departments. In her Response, Plaintiff relies on the

following events to support her Monell claim:

• The shooting during the July 25 Pursuit

(MCSD police fired shots at Rhoades and

missed);

• The shooting on August 2, 2017 (MCSD

police fired shots at Rhoades and killed

him) (the “August 2 Shooting”); and

2 These instances include the shooting of Randy Cumberledge in 2016

(shooting attributed to White Hall police) and a shooting in the

vicinity of Muriale’s Restaurant (shooting attributed to Fairmont

police).

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

• The shooting on October 17, 2017 (MCSD

police fired shots at Randall Ford and

paralyzed him) (the “Ford Shooting”).

Plaintiff has not met the stringent requirements of a Monell

claim. Importantly, the alleged policy or custom must be the

“moving force” behind the constitutional violation at issue. It is

impossible for the Ford Shooting to support Monell liability

because it had not yet occurred when the August 2 Shooting

occurred. See Spell, 824 F.2d at 1386–87. That leaves only one

other relevant incident — the July 25 Pursuit shooting — to prove

the existence of a policy or custom. One incident involving the

same person — Philip Rhoades — is certainly not enough to support

a “widespread and permanent” practice by a municipality. Further,

it has not been adjudicated that Rhoades’s constitutional rights

were violated during the July 25 Pursuit, much less violated in

the same manner as they were, allegedly, here. The Court,

therefore, grants the motion for summary judgment as to Count II.

C. Remaining Claims

For the same reasons the Court denies the Motion for Summary

Judgment as to Count One, the Court denies the Motion for Summary

Judgment as to Count Three (Intentional Infliction of Emotional

Distress) as it pertains to Forsyth. The Court holds in abeyance

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MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NO. 61]

its ruling as to Count Four (Wrongful Death - W. Va. Code § 55-7-

6). Finally, the Court denies without prejudice the Motion for

Summary Judgment on the issue of punitive damages.

V. CONCLUSION

For the reasons discussed above, the Court ORDERS the

following. Defendant’s Motion for Summary Judgment is

(1) DENIED as to Count I;

(2) GRANTED as to Count II;

(3) DENIED as to Count III;

(4) HELD IN ABEYANCE as to Count IV; and

(5) DENIED WITHOUT PREJUDICE as to punitive

damages.

The Court DISMISSES WITH PREJUDICE all claims against the

Marion County Commission.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to

counsel of record.

DATED: February 18, 2020

____________________________

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE

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