# Ford v. The County Commission of Marion County

> District Court, N.D. West Virginia · April 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10725939

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** April 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10725939

## How later opinions describe it (automated extraction)

- 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
- noting agreement with the “general proposition” the position of the person allegedly in danger relative to the path of the vehicle is “important”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10725939. Public record. Not legal advice.