# Smith v. The City of Pennsboro

> District Court, N.D. West Virginia · April 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10726230

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** April 22, 2022
- **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/10726230

## How later opinions describe it (automated extraction)

- concluding that the legal analysis to demonstrate a constitutional violation under § 1983 and with respect to qualified immunity “is often related, if not identical”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

THOMAS F. SMITH,

Plaintiff,

Civil Action No. 1:20CV54
v. (Judge Keeley)

R.T. DAVIS,

Defendant.

MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

For the reasons that follow, the Court DENIES the defendant’s
motion for summary judgment (Dkt. No. 83).
I. Factual Background
On a motion for summary judgment, courts “view the evidence
in the light most favorable to the non-moving party” and refrain
from “weighing the evidence or making credibility determinations.”
Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017) (quoting
Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 568-69 (4th
Cir. 2015)). The Court therefore recites the following facts in
the light most favorable to the plaintiff.
On March 29, 2018, as the plaintiff, Thomas F. Smith
(“Smith”), was driving his motor vehicle through the city of
Pennsboro, West Virginia (Dkt. No. 36 ¶ 7), the defendant, R.T.
Davis (“Officer Davis”), the chief of police for Pennsboro, began
SMITH v. DAVIS 1:20CV54

MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

following him in his police cruiser (Dkt. Nos. 36 ¶¶ 12-13, 64 ¶¶
12-13). Suspecting that Officer Davis was purposely following him,
Smith stopped his vehicle (Dkt. No. 36 ¶¶ 12, 15) and walked back
toward Officer Davis’s cruiser as it also stopped (Davis Depo. 40;
Smith Depo. 66-67). Smith inquired whether Officer Davis had been
following him, which Officer Davis denied (Davis Depo. 40; Smith
Depo. 68-69). At this point, the parties hotly dispute what
happened next.
According to Smith, when he asked whether Officer Davis was
following him, Officer Davis became enraged, exited his cruiser,
and attempted to grab him (Dkt. No. 36 ¶¶ 18-23). Smith told his
children, who were passengers in his vehicle, to begin recording
the interaction (Dkt. Nos. 36 ¶ 24, 64 ¶ 24). The parties
subsequently moved to the front of Officer Davis’s cruiser, where
Officer Davis demanded that Smith provide his driver’s license
(Dkt. Nos. 36 ¶ 26, 64 ¶ 26). But before Smith could do so, Officer
Davis arrested him (Dkt. Nos. 36 ¶ 28, 64 ¶ 28).
How Officer Davis placed Smith under arrest is also hotly
disputed. According to Smith, Officer Davis grabbed him by his
shirt, pushed him toward the police cruiser, and placed handcuffs
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SMITH v. DAVIS 1:20CV54

MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

on his left wrist (Dkt. No. 36 ¶ 28). Officer Davis then grabbed
Smith’s right arm and deliberately pulled it after Smith had asked
him to be gentle because Smith suffered from a pre-existing injury
to his shoulder. Id. ¶¶ 29-30. Before Officer Davis placed
handcuffs on his right wrist, Smith claims he pulled Smith’s hands
apart and then quickly pulled them back together. Id. ¶ 31.
Smith next contends that although he informed Officer Davis
that he could not comfortably fit in the cruiser’s back seat
because he had a prosthetic leg, id. ¶ 35, Officer Davis
nevertheless pushed him into the side of the vehicle. Id. ¶ 36.
Using vulgar language, he then directed Smith to get inside and
shoved him into the police cruiser. Id. ¶¶ 36, 37. Officer Davis
generally denies these allegations (Dkt. No. 64 ¶¶ 27-38).
Although the video of the incident confirms Smith’s account
of Officer Davis’s actions while in front of the cruiser, it is
difficult to assess the amount of force Officer Davis actually
applied (Dkt. No. 84 Ex. C). And it further appears that, rather
than being forced into the back of the police cruiser, Smith may
have entered the cruiser on his own volition. Id.

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SMITH v. DAVIS 1:20CV54

MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

After arresting Smith, Officer Davis filed a criminal
complaint in the Magistrate Court of Ritchie County, West Virginia,
alleging Smith had committed the offenses of (1) Impeding Traffic,
in violation of W. Va. Code § 17C-6-3a; (2) Obstructing an Officer,
in violation of W. Va. Code § 61-5-17; and (3) Disorderly Conduct,
in violation of W. Va. Code § 61-6-1b (Dkt. No. 84-3 at 1-2). These
charges were subsequently dismissed, reissued, and ultimately
dismissed (Dkt. Nos. 36 ¶ 40-42, 64 ¶ 40-42).
II. Procedural Background
Smith sued both Officer Davis and the City of Pennsboro (Dkt.
Nos. 1, 5, 36). His second amended complaint alleges that (1)
pursuant to 42 U.S.C. § 1983, Officer Davis violated Smith’s Fourth
Amendment rights by arresting him without probable cause and using
excessive force during that arrest; (2) under West Virginia law,
Officer Davis falsely arrested and falsely imprisoned Smith; and
(3) pursuant to Monell v. Department of Social Services of New
York, 436 U.S. 658 (1978), the City of Pennsboro was liable for
failing to discipline Officer Davis for his unconstitutional
actions (Dkt. No. 36). The Court previously granted Pennsboro’s
motion to dismiss Count Three pursuant to Fed. R. Civ. P. 12(b)(6)
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

(Dkt. No. 61), thus only the claims against Officer Davis remain.
These are the subject of the instant summary judgment motion that
is now fully briefed and ripe for decision.
III. Standard of Review
Under Fed. R. Civ. P. 56(a), “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” “A dispute is genuine if a reasonable jury could
return a verdict for the nonmoving party,” and “[a] fact is
material if it might affect the outcome of the suit under the
governing law.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d
562, 568 (4th Cir. 2015) (quoting 10A Charles A. Wright et al.,
Federal Practice & Procedure § 2728 (3d ed. 1998)).
A motion for summary judgment should be granted if the
nonmoving party fails to make a showing sufficient to establish
the existence of an essential element of his claim or defense upon
which he bears the burden of proof. Celotex v. Catrett, 477 U.S.
317, 323 (1986). That is, once the movant shows an absence of
evidence on one such element, the nonmovant must then come forward
with evidence demonstrating there is indeed a genuine issue for
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

trial. Id. at 323-24. The existence of a mere scintilla of evidence
supporting the nonmovant’s position is insufficient to create a
genuine issue; rather, there must be evidence on which a jury could
reasonably find for the nonmovant. Anderson v. Liberty Lobby, 477
U.S. 242, 252 (1986). Summary judgment “should be granted only in
those cases where it is perfectly clear that no issue of fact is
involved and inquiry into the facts is not desirable to clarify
the application of the law.” Charbonnages de France v. Smith, 597
F.2d 406, 414 (4th Cir. 1979) (citing Stevens v. Howard D. Johnson
Co., 181 F.2d 390, 394 (4th Cir. 1950)).
IV. Discussion
A. Fourth Amendment
With respect to Smith’s claim under the Fourth Amendment,
Officer Davis argues that summary judgment is appropriate because
Smith’s claims lack evidentiary support; alternatively, he
contends he is entitled to qualified immunity (Dkt. No. 84 at 6-
10). Smith responds that summary judgment should be denied because
the evidence establishes that Officer Davis lacked probable cause
to arrest Smith and used excessive force (Dkt. No. 86-1 at 4-12).

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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Nor, Smith argues, is Officer Davis entitled to qualified immunity.
Id.
To succeed on a § 1983 claim, the plaintiff must show that
(1) he was deprived of a right “secured by the Constitution and
the laws” of the United States; and (2) the individual who deprived
him of the right was acting under color of state law. Lugar v.
Edmonson Oil Co., 457 U.S. 922, 930 (1982) (internal citations
omitted). Generally, a public employee acts under color of state
law “while acting in his official capacity or while exercising his
responsibilities pursuant to state law.” Conner v. Donnelly, 42
F.3d 220, 223 (4th Cir. 1994) (quoting West v. Atkins, 487 U.S.
42, 50 (1988)). Section 1983, however, “‘is not itself a source of
substantive rights,’ but merely provides ‘a method for vindicating
federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S.
386, at 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137,
144, n.3 (1979)).
Smith claims that Officer Davis violated his clearly-
established Fourth Amendment rights because he had no probable
cause to arrest Smith, and in the process of the arrest, employed

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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

excessive force. There is no dispute that Officer Davis was acting
under color of state law.
Officer Davis contends there is a lack of evidentiary support
for Smith’s Fourth Amendment claim and argues this Court can
resolve his motion for summary judgment without reaching the issue
of qualified immunity. But because the qualified immunity analysis
necessarily involves an examination of whether a constitutional
violation occurred, the Court will collapse the Fourth Amendment
inquiry into the qualified immunity analysis. Dodds v. Richardson,
614 F.3d 1185, 1193-94 (10th Cir. 2010) (concluding that the legal
analysis to demonstrate a constitutional violation under § 1983
and with respect to qualified immunity “is often related, if not
identical”).
“The doctrine of qualified immunity shields government
officials from liability for civil damages when their conduct does
not violate clearly established constitutional or other rights
that a reasonable officer would have known.” Hupp v. Cook, 931
F.3d 307, 317 (4th Cir. 2019) (quoting Sims v. Labowitz, 885 F.3d
254, 260 (4th Cir. 2018)). Accordingly, “[a]n official is not
entitled to qualified immunity if he or she deprived an individual
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

of a constitutional right and that right was clearly established
at the time of the violation.” Id. (citing Pearson v. Callahan,
555 U.S. 223, 231 (2009)). The qualified immunity analysis
therefore entails two determinations: (1) whether the plaintiff’s
rights were violated; and (2) whether those rights were clearly
established. Id.
1. False Arrest
Smith first contends that Officer Davis violated his clearly-
established Fourth Amendment rights by arresting him without
probable cause. “[I]f a person is arrested when no reasonable
officer could believe . . . that probable cause exists to arrest
that person, a violation of a clearly established Fourth Amendment
right to be arrested only upon probable cause ensues.” Hupp, 931
F.3d at 318 (quoting Rogers v. Pendleton, 249 F.3d 279, 290 (4th
Cir. 2001)). “Probable cause is determined by a ‘totality-of-the-
circumstances’ approach.” Id. (quoting Smith v. Munday, 848 F.3d
248, 253 (4th Cir. 2017)). However, that determination turns on
two factors: (1) the suspect’s conduct as known to the officer;
and (2) the contours of the offense of arrest. Id.

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SMITH v. DAVIS 1:20CV54

MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Here, examining the contours of the offenses involved, Smith
was arrested for (1) impeding traffic, (2) obstructing an officer,
and (3) disorderly conduct (Dkt. No. 84-3 at 1-2). As to the charge
of impeding traffic, West Virginia traffic law provides that “[n]o
person shall drive a motor vehicle at such a slow speed as to
impede the normal and reasonable movement of traffic except when
reduced speed is necessary for safe operation or in compliance
with law.” W. Va. Code § 17C-6-3a. There is a genuine dispute of
material fact regarding whether Officer Davis had probable cause
to arrest Smith for impeding traffic. Although the video evidence
establishes that Smith’s vehicle was parked on a portion of the
road, the parties disagree as to whether other vehicles could have
maneuvered around it. Accordingly, there remains a material
factual dispute over whether Officer Davis had probable cause to
arrest Smith for impeding traffic.
Regarding Smith’s arrest for obstructing an officer, in West
Virginia, “[a] person who by threats, menaces, acts, or otherwise
forcibly or illegally hinders or obstructs or attempts to hinder
or obstruct a law-enforcement officer . . . acting in his or her
official capacity is guilty of a misdemeanor.” W. Va. Code § 61-
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

5-17(a). The Supreme Court of Appeals of West Virginia has
confirmed that to obstruct an officer requires “forcible or illegal
conduct that interferes with a police officer’s discharge of
official duties.” State v. Davis, 735 S.E.2d 570, 573 (W. Va. 2012)
(quoting State v. Carney, 663 S.E.2d 606, 611 (W. Va. 2008)). In
the absence of force, “the key to determining whether conduct . .
. constitutes the offense of obstruction under [W. Va. Code § 61-
5-17] is whether the conduct at issue is illegal.” State v. Carney,
663 S.E.2d 606, 610 (W. Va. 2008). Consequently, “lawful speech
will not support an obstruction charge.” Id. at 611. Specifically,
an individual who speaks to an officer “without the use of fighting
or insulting words or other opprobrious language” has not committed
the offense of obstruction. Syl. Pt., State ex rel. Wilmoth v.
Gustke, 373 S.E.2d 484 (W. Va. 1988).
There is a genuine dispute of material fact concerning whether
Officer Davis had probable cause to arrest Smith for obstructing
an officer. To begin, the parties dispute the language used by
Smith and Officer Davis during their conversation; each contends
the other used profane language. Further, Smith contends that he
complied with Officer Davis’s directives, both to take out his
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

driver’s license and also to put his hands behind his back when he
was placed under arrest.
Regarding Smith’s arrest for disorderly conduct, pursuant to
W. Va. Code § 61-6-1b
[a]ny person who, in a public place, . . . disturbs the
peace of others by violent, profane, indecent or
boisterous conduct or language or by the making of
unreasonably loud noise that is intended to cause
annoyance or alarm to another person, and who persists
in such conduct after being requested to desist by a
law-enforcement officer acting in his or her lawful
capacity, is guilty of disorderly conduct, a
misdemeanor.

A genuine dispute of material fact exists where it is unclear
whether an individual’s conduct has disturbed “others,” excluding
law enforcement officers. Maston v. Wagner, 781 S.E.2d 936, 951
(W. Va. 2015). Here, whether Smith was disturbing others by his
conduct is in dispute.
Accordingly, because there are material facts in dispute
concerning whether Officer Davis had probable cause to arrest Smith
for any of the three offenses charged, the Court DENIES Officer
Davis’s motion for summary judgment on this Fourth Amendment claim,
and turns next to consider Officer Davis’s motion regarding Smith’s
excessive force claim.
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

2. Excessive Force
“A claim that a police officer employed excessive force is
analyzed under the Fourth Amendment under an ‘objective
reasonableness’ standard.” Smith v. Ray, 781 F.3d 95, 100-01 (4th
Cir. 2015) (quoting Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc)). Specifically, an officer’s actions “do not amount
to excessive force if they ‘are “objectively reasonable” in light
of the facts and circumstances confronting [him], without regard
to [his] underlying intent or motivation.’” Id. at 101 (quoting
Graham v. Connor, 490 U.S. 386, 397 (1989)). Moreover, the facts
and circumstances must be analyzed “at the moment that the
challenged force was employed.” Id.
In addition, the evaluation of an officer’s actions “requires
a careful balancing of the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Id. (quoting
Graham, 490 U.S. at 396 (internal quotation marks omitted)). A
court “must give ‘careful attention to the facts and circumstances
of each particular case, including’ three factors in particular:
‘the severity of the crime at issue, whether the suspect poses an
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.’” Id. (quoting Graham, 490 U.S. at 396).
“Ultimately, the question to be decided is ‘whether the totality
of the circumstances justifie[s] a particular sort of . . .
seizure.’” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8–9
(1985)).
Here, a genuine dispute of material fact exists regarding
whether Officer Davis’s actions were objectively reasonable under
the circumstances. Turning to the Graham factors, Smith was
arrested for impeding traffic, obstructing an officer, and
disorderly conduct, all of which are misdemeanors under West
Virginia law. See W. Va. Code §§ 17C-6-3a, 61-5-17, 61-6-1b. While
it is undisputed that Smith stopped his vehicle and walked toward
Officer Davis’s police cruiser, the parties disagree about each
other’s respective tone in the subsequent conversation. Moreover,
it appears that Smith later complied with Officer Davis’s request
to provide his driver’s license and also to place his hands behind
his back to be handcuffed. Finally, Smith may not have resisted
arrest. On the video, he can be seen placing his hands behind his
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

back before Officer Davis places him in handcuffs. Despite Officer
Davis’s contention otherwise, there is also no video evidence that
Smith tried to leave the scene or evade arrest. Based on all this,
it is for a jury to decide whether, under the totality of the
circumstances, Officer Davis’s actions were objectively
reasonable. The Court therefore DENIES Officer Davis’s motion for
summary judgment on Smith’s excessive force claim.
B. State Law Claims
With respect to Smith’s state law claims, Officer Davis argues
that they lack evidentiary support (Dkt. No. 84 at 4-6). Smith
does not directly respond to this argument.
Under West Virginia law, “[p]robable cause to make a
misdemeanor arrest without a warrant exists when the facts and
circumstances within the knowledge of the arresting officer are
sufficient to warrant a prudent man in believing that a misdemeanor
is being committed in his presence.” State v. Forsythe, 460 S.E.2d
742, 744 (W. Va. 1995). Moreover, “[a]n action for false
imprisonment may be maintained where the imprisonment is without
legal authority.” Riffe v. Armstrong, 477 S.E.2d 535, 549 (W. Va.

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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

1996) (quoting Vorholt v. Vorholt, 160 S.E. 916, 918 (W. Va.
1931)).
For the reasons previously discussed, genuine disputes of
material fact exist regarding whether Officer Davis had probable
cause to arrest Smith and, as a result, whether he had the legal
authority to detain Smith. The Court therefore DENIES Officer
Davis’s motion for summary judgment with respect to Smith’s state
law claims of false arrest and false imprisonment.
V. Conclusion
For the reasons discussed, the Court DENIES Officer Davis’s
motion for summary judgment.
It is so ORDERED.
The Clerk SHALL transmit copies of this Order to counsel of
record.
DATED: April 22, 2022
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726230. Public record. Not legal advice.