Ford v. The County Commission of Marion County

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

RANDALL CLAY FORD,

Plaintiff,

v. CIVIL ACTION NO. 1:19-CV-192

(KLEEH)

THE COUNTY COMMISSION OF MARION

COUNTY, JOHN BILLIE, in his official

and individual capacity, and JOHN DOE,

in his official and individual capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 70]

Pending before the Court is Plaintiff’s Motion for Summary

Judgment. For the reasons discussed below, the Court denies the

motion.

I. PROCEDURAL HISTORY

On October 15, 2019, plaintiff Randall Clay Ford, II (“Ford”)

filed a complaint against Defendants County Commission of Marion

County and John Billie (together, “Defendants”) alleging three

causes of action: (1) excessive use of force pursuant to 42 U.S.C.

§ 1983 against Defendant John Billie (“Defendant Billie”), (2)

Monell liability against Defendant County Commission of Marion

County (“County Commission”) pursuant to 42 U.S.C. § 1983, and (3)

intentional infliction of emotional distress against Defendant

Billie. ECF No. 1. Ford requests compensatory damages, general

damages, 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.

Id. Defendants answered on December 17, 2019, and discovery ensued.

Now, Ford and both Defendants move for summary judgment. Upon order

of the Court, the parties also submitted supplemental briefings.

This matter is fully briefed and 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,

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

391 U.S. 253, 288 (1968)). This Court views the evidence in the

light most favorable to Defendants, the non-moving parties, and

draws any reasonable inferences in Defendants’ favor. See Fed. R.

Civ. P. 56(a); see Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc).

III. FACTS

At the summary judgment stage, the Court considers the facts

in the light most favorable to the non-moving party. See Scott v.

Harris, 550 U.S. 372, 378 (At summary judgment posture, “courts

are required to view the facts and draw reasonable inferences in

the light most favorable to the party opposing the summary judgment

motion.” (internal quotations and revisions omitted)). In October

2017, Ford was a 48-year-old man living in Harrison County, West

Virginia. Compl., ECF No. 1, ¶ 4. On October 17, 2017, Ford was

operating a Chevy Malibu vehicle with improper registration at

approximately 12:30 a.m. when Mannington Police Officer Wesley

Wheeler (“Wheeler”) began following Ford. Id. at ¶¶ 29-30; ECF No.

96 at 2. Wheeler initiated his lights and attempted to pull over

Ford in the parking lot of McDonald’s in Mannington, West Virginia.

Compl. at ¶ 30. Wheeler’s reason for pursuing Ford was speeding,

improper registration, and turning without a turn signal light

into the closed McDonald’s parking lot. Compl. at ¶ 30; ECF No. 96

at 3. Ford fled. Id. at ¶ 30.

Ford drove on U.S. Route 250 south toward Shinnston, West

Virginia. At this time, Wheeler coordinated with the Marion County

Sheriff’s Department (“MCSD”). Id. at ¶¶ 31-32. A speed of 85 mph

was recorded during the chase, and that Ford had passed another

vehicle; however, no other evidence of improper driving was

recorded. ECF No. 96 at 3; ECF No. 71-3, Exhibit B, “2017 53622

Radio Traffic Combined.” Defendant Billie and Deputy Lawson

(“Lawson”), after Lawson obtained permission from Sergeant Love

(“Sgt. Love”), were instructed to set up a staggered roadblock on

Route 218 to attempt to stop or slow Ford to obtain a visual

identification. Id. at ¶ 33; ECF No. 74-6, Lawson Dep. 22:1-23:24.

Prior to the shooting of Ford, the fleeing suspect, on October 17,

2017, neither Lawson nor Defendant Billie knew the fleeing

suspect’s identity or the allegations pending against him. Lawson

Dep. 25:25-26:12; ECF No. 74-7, Billie Dep. 24:3-25:3. However,

Defendants’ expert, Samuel Faulkner, maintains that the officers,

including Defendant Billie, knew that Ford was the fleeing suspect.

ECF No. 74-1, Faulkner Dep. 63:4-24.

Specifically, Lawson learned from his police training that

the objective of a staggered roadblock is to slow down the vehicle,

not to “block the road so they have no course but to crash into

your vehicle,” and that the officer configuring the roadblock would

need to ensure a path of entry and escape. Lawson Dep. 13:3-13.

The roadblock is designed with police cruisers as a tactic of

pursuit intervention: the officers are to position their police

cruisers in the road in such a way that the vehicles effectuate a

path of ingress and egress for the suspect’s vehicle, and that the

suspect must slow down in order to pass. Id. at 17:1-18:24. Lawson

confirmed that no officer is to be in their police cruiser once

the staggered roadblock is designed because of the risk that the

suspect may use his vehicle as a weapon. Id. at 17:1-18:24. Lawson

knew to be in a safe location once the roadblock was created, and

to be “either on the side of a guardrail or far enough away from

the vehicles” to remove himself from a potentially dangerous

situation. Id. at 21:19-22:13. In the two-lane road, Lawson

situated his police cruiser diagonally in the “oncoming” lane,

essentially blocking the oncoming lane in its entirety, and

positioned the cruiser so that the rear bumper was touching the

center lane. Id. at 28:22-29:6. Defendant Billie’s cruiser was

parked behind Lawson’s cruiser, “right on [and parallel to] the

center line,” and left “enough [distance between the two police

cruisers] for a vehicle to get through.” Id. at 29:3-12-30:1-10;

Billie Dep. 27:3-5. Lawson testified that Ford was to travel in

the only open lane of the road, which was the “oncoming lane of

travel,” and would require him to pass the staggered roadblock on

his right. Lawson Dep. 30:5-10. Defendant Billie testified that

the path of egress for Ford’s vehicle was “between the cars.”

Billie Dep. 48:4-11. The roadblock was designed in such a way that

Ford “only had one path for his vehicle to go if he didn’t want to

wreck himself and [Lawson] knew John Billie was right there in

that path.” Lawson Dep. 35:3-36:1. The next time Lawson saw

Defendant Billie, he was in the “ditch line off the side of the

road.” Lawson Dep. 34:17-19.

When Ford approached the staggered roadblock, he had limited

time to observe and react, and also had limited visibility due to

the flashing lights of cruisers in the road. Compl. ¶¶ 37-38. As

Ford approached the roadblock, Defendant Billie was at the corner

bumper of Lawson’s vehicle, and Ford was driving approximately 40

miles per hour, or traveling 58.67 feet per second. Lawson Dep.

32:3-13; ECF No. 74-1, Faulkner Dep. 70:5-71:6. Ford slammed on

his breaks and initiated the emergency break, but his breaks were

in poor condition. Compl. ¶ 39. At no time did Ford see Defendant

Billie while he was driving toward the roadblock, nor did he

accelerate toward the roadblock location. Id. at ¶ 41, ECF No. 74-

2, Ford Dep. 32:7-33:8.

Lawson discharged his weapon one time at a tire of Ford’s

vehicle as it passed him at the roadblock area. Lawson Dep. 34:2-

5. Lawson also described the vicinity of Ford’s vehicle to him as

being “directly parallel” to him when he shot. Id. at 39:1-25.

Defendant Billie testified that Ford had “passed Deputy Lawson and

[] was accelerating toward [Defendant Billie].” Billie Dep. 44:10-

20. Thereafter Defendant Billie ran alongside Lawson’s police

cruiser, crossed the only lane of egress, “hit the embankment . .

. [took] a step or two and [fell] into the bank. When [his] knee

hit the bank, [he] drew [his] weapon and [he] spun and shot.”

Billie Dep. 44:10-20, 62:5-65:18; Faulkner Dep. 66:1-69:8.

Defendant Billie discharged his firearm twice, shooting through

Ford’s driver’s side window both times, striking Ford in the back

twice, each bullet striking at the exact same location on his body,

paralyzing him. Compl. at ¶¶ 46-47. Ford crashed his vehicle into

a hillside to stop. Id. at ¶ 52.

Importantly, Lawson testified that one second of time passed

between Lawson’s first shot and Defendant Billie’s two shots.

Lawson’s Dep. 38:20-25. Further, Lawson testified that he did not

see anything in front of Ford’s vehicle when he shot at Ford’s

tire, and that “[j]ust the road [was] there.” Id. at 39:18-21.

Lawson recalls that when he heard Defendant Billie’s shots, Ford’s

vehicle was “directly parallel to where John Billie was at the

time.” Id. at 35:1-6. Defendant Billie did not estimate the

distance between himself and the road or Ford’s vehicle at the

time he fired his weapon. Billie Dep. 46:11-15. Ford disputes that

his vehicle was moving at the time he was shot. Ford Dep. 33:9-

38:4. In fact, Ford testified that he approached the roadblock,

began braking, and took off for the pathway created by the

roadblock to avoid hitting the police cruisers. ECF No. 74-2, Ford

Dep. 33:9-38:4. Ford’s vehicle came to a stop on “the other side

of the roadblock,” and then he was shot and paralyzed. Ford Dep.

33:9-38:4.

Ford alleges that the MCSD has a “custom, pattern, practice,

and procedure of using unjustified and unreasonable excessive

deadly force against individuals who are allegedly fleeing without

anyone being in Imminent Danger” as defined by the use of force

policy. Id. at ¶ 54. This policy states, in part: the use of lethal

force can be used to prevent the escape of a suspect or prisoner

whose freedom is reasonably believed to represent an imminent

threat of serious bodily injury or death to the deputy; other law

enforcement officers, or others. That policy also prohibits

shooting at or from a moving vehicle absent exigent circumstances.

ECF No. 71-22, MCSD Use of Force Policy, at section V(c)(2)(g).

MCSD has attempted to justify shooting at three citizens in

four separate incidents, including this one, between December 2016

and October 2017 using the same false justification, and was on

scene during a fourth shooting involving the City of Fairmont

Police Department in 2016. Id. at ¶ 75. Ford recounts the July 25,

2017, and August 2, 2017, shootings of Philip Jontz Rhoades, and

his own shooting on October 17, 2017, as events showing the pattern

under Monell. Id. at ¶ 79.

Ford alleges three causes of action in the complaint:

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

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

Commission of Marion County)

3. Count III: Intentional Infliction of Emotional Distress

IV. DISCUSSION

Ford moves for summary judgment on the following grounds: (1)

Ford’s claims under 42 U.S.C. 1983 for excessive force should be

granted as Defendant John Billie (“Billie”) used excessive force

against Ford; and (2) Ford’s Monell claims demonstrate a pattern

and practice by the Marion County Sheriff’s Department of violating

Ford’s, and others’, constitutional rights. The Court will address

each argument in turn.

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

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

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

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

Ford as to Count I: 42 U.S.C. § 1983 - Excessive Use of Force, it

would need to find as a matter of law that Defendant Billie’s

conduct was unreasonable given the circumstances. Those

circumstances, however, are disputed. Viewing the evidence in the

light most favorable to the non-movant (Defendants), Ford’s

vehicle was either in front of or immediately adjacent to Defendant

Billie when Defendant Billie fired shots at Ford and paralyzed

him. At no time has Defendant Billie provided an estimate as to

the distance between he or Lawson to Ford’s vehicle at the time of

either shooting. Billie Dep. 36:1-37:22. It is possible for a

reasonable jury to find that such placement of Ford’s vehicle and

Defendant Billie was possible because Defendant Billie’s two gun

shots entered Ford’s driver side window as Ford’s car was passing

through a staggered roadblock created by the officers, and struck

Ford under his left arm, causing the spinal cord injury that

resulted in his paralysis. The vehicle’s placement in relation to

Defendant Billie when he fired the shots could negate the theory

that the vehicle was used as a weapon or posed a threat, which

could make Defendant Billie’s conduct potentially unreasonable.

However, a reasonable juror could also find that Defendant Billie’s

conduct was reasonable because Ford’s vehicle was immediately

adjacent to Defendant Billie when he fired the shots, making Ford

an immediate threat to Defendant Billie. 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.

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

(4th Cir. 2005). In Waterman, police followed the defendant,

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 Court of Appeals for 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, because at the time the vehicle “lurched forward,

the officers were forced to immediately decide whether Waterman

was attempting to assault the officers ahead of him or whether he

intended only to drive by them, leaving them unharmed.” Id. at

477.

Plaintiff urges this Court to take Waterman to mean the use

of force in any case where a vehicle has passed law enforcement is

per se unreasonable. Flowing from that, Plaintiff further argues

the fact the bullets entered Ford’s vehicle through the driver-

side window ends the inquiry and makes the excessive force claim

subject to an award of summary judgment. However, Waterman is not

as conclusive on the point as Plaintiff argues. “[T]he closeness

of the officers to the projected path of Waterman’s vehicle is

crucial to our conclusion that deadly force was justified.” Id.

at 479 (noting agreement with the “general proposition” the

position of the person allegedly in danger relative to the path of

the vehicle is “important”). The Fourth Circuit went on to cite

Scott v. Edinburg, 346 F.3d 752 (7th Cir. 2003) as “instructive.”

Id. Scott, again, cited as instructive, focused on not only the

direct path of the vehicle but individuals who were “in the

immediate vicinity of the path.” Scott, 346 F.3d at 759.

This Court does not disagree that if there was no dispute

that Ford’s vehicle was lurching toward police, that fact would

help to establish qualified immunity for Defendant Billie.

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 the vehicle was not moving toward

Defendant Billie or that Defendant Billie was not “in the immediate

vicinity of the path” of the vehicle. Instead, the facts presented

to the Court include testimony from Defendant Billie that Ford’s

vehicle had “passed Deputy Lawson and [] was accelerating toward

[Defendant Billie]” which essentially required Defendant Billie to

cross the lane of egress, “hit the embankment,” take “a step or

two and [fall] into the bank. Billie Dep. 44:10-20. Thereafter,

Defendant Billie drew his weapon, spun, and shot twice. Billie

Dep. 44:10-20. Defendants allege this series of events occurred

while Ford’s vehicle was moving 40 mph, or 58.67 feet per second

through the roadblock.

Lawson’s testimony paints a different picture. He recalls

that only one second of time passed between Lawson’s first shot

and Defendant Billie’s two shots, and that Lawson did not see

anything in front of Ford’s vehicle when he shot at Ford’s tire,

but simply that “[j]ust the road [was] there.” Lawson Dep. 38:20-

25-39:18-21. Finally, Ford maintains that he only saw the cruiser’s

flashing lights and never saw Lawson or Defendant Billie while he

was driving toward the roadblock, nor did he accelerate toward the

roadblock location. Compl. at ¶ 41, Ford Dep. 32:7-33:8.

Because this Court cannot “ignore[] discrepancies among the

officers’ accounts,” or sworn testimony from the plaintiff, it

must conclude that a reasonable jury could find that Defendant

Billie used reasonable force. See Estate of Jones by Jones v. City

of Martinsburg, West Virginia, 961 F.3d 661, 666 (4th Cir. 2020)

(internal quotation and citation omitted). Importantly, and

instrumental in this Court’s decision, evidence exists that could

lead a reasonable jury to find that Ford’s vehicle was moving

toward Defendant Billie because Ford’s vehicle had “passed Deputy

Lawson and [] was accelerating toward [Defendant Billie],” which

lead to the remaining events. Billie Dep. 44:10-20. Likewise,

sufficient questions of fact exist as to Defendant Billie’s precise

location vis-à-vis Ford’s vehicle at the time of the shots such

that this Court cannot determine, at summary judgment stage,

whether Defendant Billie was either in the projected path or

immediate vicinity of the path of the vehicle. See Waterman, 393

F.3d at 479-80.

For those reasons, the Court finds that there is sufficient

evidence for a jury to find that Defendant Billie’s conduct was

objectively reasonable. The Court is required to conduct a

“reasonableness” analysis - one of objective reasonableness - as

to whether Defendant Billie used excessive force. 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 (stating 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,

can be eliminated “even seconds later” if the threat is

eliminated). The record before the Court does not support a finding

that there is no genuine issue of material fact – in fact, the

Court finds the opposite exists, and therefore certainly cannot

award judgment as a matter of law to Ford. Take, for example,

Samuel Faulkner’s deposition, where Plaintiff’s counsel attempted

to surmise a distance between all persons and vehicles present at

the roadblock on October 17, 2017, and the length of the encounter

based upon the testimony and mathematical equation. See Faulkner

Dep. 63:4-77:25. However, there is more missing information than

there is present. While, according to Defendant Billie, Lawson’s

estimated placement at the time he shot at Ford’s passing vehicle

is 50-60 feet in front of Lawson’s parked police cruiser, no

witness has testified as to where Ford’s vehicle was during

Lawson’s or Defendant Billie’s shots – other than Lawson’s

testimony that it was “directly parallel” to them – and there is

even less evidence regarding Defendant Billie’s placement. Under

these circumstances the Court is left with little doubt that a

genuine issue of material fact exists here.

There are differing accounts as to whether Lawson and

Defendant Billie knew Ford was the fleeing suspect. While Ford may

have been fleeing a police officer, there is a genuine issue of

material fact as to whether either Lawson or Defendant Billie were

in danger, because, gleaning from the record and Ford’s resulting

injury, the shots fired by Defendant Billie were fired as Ford’s

vehicle was either next to or immediately adjacent to Defendant

Billie. Notably, Defendants suggest that Ford was driving his

vehicle at the officers and therefore using his vehicle as a

weapon. Because the record before the Court contains a great deal

of evidence that could lead a reasonable jury to conclude that

this fact is true, and that Defendant Billie used the reasonable

force necessary to prevent Ford’s escape Defendant Billie had

probable cause to believe that Ford posed a significant threat of

death or serious physical injury to Defendant Billie or others,

the Court finds that a genuine issue of material facts exists when

reviewing the record in the light most favorable to Defendants,

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)

Ford argues that officers have violated the Marion County

Sheriff’s Department Use of Force Policy numerous times, and have

exhibited a lack of training thereunder, which led to the shooting

on October 17, 2017. 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 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. In other words, the “deliberate indifference” standard under

Spell requires that a municipality either knew or should have known

about the deficiency in training, so it could remedy that

deficiency. Estate of Jones by Jones v. City of Martinsburg, West

Virginia, 961 F.3d 661, 672 (4th Cir. 2020). Such a developed

“custom or usage” may then become the basis of municipal liability,

but only if its continued existence can be 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.

To attach liability to a municipality for failure to train

under Monell, the plaintiff must show the “deliberate

indifference” on the part of the municipality, keeping in mind

that “[w]ithout notice that a course of training is deficient in

a particular respect, decisionmakers can hardly be said to have

deliberately chosen a training program that will cause violations

of constitutional rights.” Connick v. Thompson, 563 U.S. 51, 62

(2011). As the United States District Court for the Eastern

District of New York explained,

the mere fact that a number of lawsuits have been filed,

without any information as to whether the suits are

meritorious or spurious, or alternatively, any evidence

that the municipality ignored such complaints such that

it constituted deliberate indifference to any potential

problem of excessive force, does not assist a fact-

finder in determining whether the [municipality]

actually has a historical problem of its police officers

using unconstitutionally excessive force in the

performance of their duties.

Ostroski v. Town of Southold, 443 F.Supp.2d 325, 346 (E.D.N.Y.

2006). “A passing reference to an isolated lawsuit in which no

liability was established or admitted is hardly sufficient to

support a failure-to-train Monell claim.” Frye v. Lincoln County

Commission, No. 2:20-cv-00403, 2021 WL 243864, *1, *8 (S.D.W. Va.

Jan. 25, 2021).

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.

However, Courts have also held that Monell liability can

attach to municipalities when the policy and custom is based upon

a single incident. See Pembaur v. City of Cincinnati, 475 U.S. 469

(1986). The Court was presented with the following question:

“[w]hether, and in what circumstances, a decision by municipal

policymakers on a single occasion may satisfy this requirement,”

to which it answered:

[I]t is plain that municipal liability may be imposed

for a single decision by municipal policymakers under

appropriate circumstances. No one has ever doubted, for

instance, that a municipality may be liable under §

1983 for a single decision by its properly constituted

legislative body—whether or not that body had taken

similar action in the past or intended to do so in the

future—because even a single decision by such a body

unquestionably constitutes an act of official government

policy.

Id. at 471, 480.

Here, Ford has not alleged that the MCSD has promulgated any

formal unconstitutional policy. Instead, Ford argues that the MCSD

“has a custom, pattern, practice, and/or procedure of using

Excessive Force against individuals who are allegedly fleeing

without anyone being in Imminent Danger . . . and without the

existence of exigent circumstances.” Compl. at ¶ 74. Ford claims

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

falsely claiming an imminent threat exists in order to justify the

unlawful uses of excessive force. Id. ¶¶ 74-75.

Ford points to four (4) total shootings in support of

attaching Monell liability to Defendant County Commission of

Marion County: (1) July 25, 2017 shooting by Deputy Love at Philip

Jontz Rhoades; (2) August 2, 2017 shooting by Deputy Forsyth at

Philip Jontz Rhoades, killing him; (3) the instant October 17,

2017, shooting by Defendant Billie at Ford, paralyzing him; and

(4) a 2016 shooting involving the City of Fairmont Police

Department at which the MCSD was present.1 Id. ¶¶ 75-79.

Ford also argues that Defendant MCSD fails to train its

deputies on its “Use of Force” policy. See Compl. ¶¶ 21-23; Pl’s

Memorandum, ECF No. 71 at 12-17. The extent of Ford’s argument on

this issue is two-fold: (1) because deputies are unable to

articulate what is contained in the policy during their

depositions, it follows that MCSD fails to train its officers on

its use of force policy; and (2) the only training officers receive

on the “policy is that they are provided a copy of the same and

told to ask if they have any questions.” Pl’s Memorandum at 12-

17.

MCSD’s Use of Force Policy defines “Excessive Force” as “force

used greater than that which is reasonably necessary to compel

compliance given the circumstances or inappropriate to the

circumstances to accomplish a legal purpose. When any degree of

force is utilized as summary punishment or for vengeance. Excessive

force is NEVER authorized.” Use of Force Policy, ECF No. 1-4. The

policy further describes when officers are permitted to use lethal

force. Pertinent to this case, officers may use lethal force

when the deputy reasonably believes that it is necessary

to: a) [p]rotect themselves or others from what they

believe to be an imminent threat of serious bodily injury

1 According to the Defendants’ Motion for Summary Judgment, the

2016 shooting occurred in December and involved Randy Cumberledge,

who was killed. ECF No. 74 at 25.

or death to include but not limited to: i) attempts to

render the deputy unconscious; ii) grabbing for the

deputy’s firearm; iii) blows or attempted blows to the

deputy’s vital organs or head; iv) stabbing, shooting or

any other action that would create a likelihood of

causing the deputy or another serious injury or death.

Id. (emphasis added). Lethal force may also be deployed “[t]o

prevent the escape of a suspect or prisoner whose freedom is

reasonably believed to represent an imminent threat of serious

bodily injury or death to the deputy, other law enforcement

officers, or others.” Id.

Defendant County Commission of Marion County (“County

Commission”) argues that Ford’s Monell claim fails as there has

been no violation of any constitutional rights and there has been

no evidence presented by which a reasonable juror could find the

County Commission had a custom of violating constitutional rights.

The County Commission further argues that the four (4) alleged

incidents are too few to rise to the level of “persistent and

widespread” as required by Monell.

The Court disagrees with the County Commission: Here, Ford

has set forth a satisfactory custom or a persistent and widespread

practice that a reasonable juror could conclude violated Ford’s

rights2; however, Ford has failed to demonstrate to this Court no

2 As noted in more detail than necessary here, the Court, in its

Order denying Defendants’ Motion for Summary Judgment on the same

claim, found the alleged constitutional deprivations sufficiently

genuine issue of material fact exists and that Ford should be

granted judgment as a matter of law on the Monell claim. For this

reason, Ford’s motion is denied as to this issue.

In his Response, Ford relies on the following events to

support the Monell claim:

• The shooting during a July 25, 2017

pursuit (MCSD police fired shots at

Philip Jontz Rhoades and missed) (the

“July 25 Shooting”);

• The shooting on August 2, 2017 (MCSD

police fired shots at Philip Jontz

Rhoades and killed him) (the “August 2

Shooting”);

• The shooting at Ford’s moving vehicle as

it transgressed the staggered roadblock

on October 17, 2017 (MCSD police fired

one shot at Ford and missed); and

• The shooting at Ford’s moving vehicle as

it transgressed the staggered roadblock

on October 17, 2017 (MCSD police fired

two shots at Ford through his driver’s

side window, both gun shots entering his

left side of his body, resulting in

paralysis). ECF No. 96.

Ford has failed to meet the stringent requirements under Rule

56(c) on the Monell claim. Ford “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

“flagrant” and factual disputes sufficiently material, at least

under the applicable Rule 56 standards, to require jury resolution.

affidavits, if any,’ which he believes demonstrate the absence of

a genuine issue of material fact.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). Because there remains genuine issues of fact

necessitating jury resolutions, this Court must deny Ford’s

motion.

Importantly, the alleged policy or custom must be the “moving

force” behind the constitutional violation at issue. Also

importantly, the deliberate indifference standard implicated here

requires that a municipality either knew or should have known about

the deficiency, so it could remedy that deficiency. See Estate of

Jones by Jones v. City of Martinsburg, West Virginia, 961 F.3d

661, 672 (4th Cir. 2020). Because Ford left much to be inferred

from the pleadings, deposition transcripts, and filings, the Court

finds that there remains a genuine issue of material fact as to

whether MCSD in fact failed to train its officers and whether the

County Commission knew or should have known that such deficiency

existed. See Fed. R. Civ. P. 56(a). This Court views the evidence

in the light most favorable to Defendants, the non-moving parties,

and draws any reasonable inferences in Defendants’ favor.

Ford argues that the first two incidents, the July 25 Shooting

and the August 2 Shooting, prove the existence of a policy or

custom. While this Court found in its Order Denying Defendants’

Motion for Summary Judgment that a reasonable jury could conclude

that two incidents involving the same person — Philip Rhoades — is

enough to support a “widespread and permanent” practice by a

municipality, especially because a single occasion may satisfy

this requirement, Ford has failed to show there is no genuine issue

of material fact as to the Monell claim. Further, while it has not

been adjudicated that Rhoades’s constitutional rights were

violated during the July 25 Shooting, much less violated in the

same manner as Ford’s were, allegedly, here, the instant matter is

scheduled for trial merely one week after the Rhoades trial is set

to begin. A reasonable jury could contribute the shootings at Ford

by Lawson and Defendant Billie on October 17, 2017, to a persistent

and widespread practice under Monell. A reasonable jury could also

contribute the shootings at Rhoades by MCSD police on July 25,

2017 and August 2, 2017, to a persistent and widespread practice

under Monell once the claims are adjudicated. The issue before the

Court now is whether Ford has demonstrated the absence of a genuine

issue of material fact, and he has not. The record before the Court

is replete with reasonable factual inferences that it must draw in

Defendants’ favor. The Court, therefore, denies the motion for

summary judgment as to Count II.

V. CONCLUSION

For the reasons discussed above, the Court ORDERS that

Plaintiff’s Motion for Summary Judgment is DENIED as to Count I

and DENIED as to Count II.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to

counsel of record.

DATED: April 8, 2021

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE