# Owens v. The City Of Pennsboro

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

URL: https://www.frixlaw.com/law-library/cases/10726269

## 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/10726269

## 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

ERNEST L. OWENS, and
ANITA M. OWENS,

Plaintiffs,

Civil Action No. 1:20CV55
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. 81).
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 26, 2019, the plaintiff, Ernest L. Owens (“Owens”),
was driving in Ritchie County, West Virginia, when he noticed that
he was being followed by another vehicle (E. Owens Depo. 34).
Wanting to stop in an area with people, Owens pulled into the
OWENS v. DAVIS 1:20CV55

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

parking lot of a nearby grocery store. Id. The other vehicle
followed, and the occupants then complained that a pizza box had
flown out of Owens’s truck bed and damaged their vehicle. Id. After
some back and forth, one of the occupants of the other vehicle
stated that he was calling the police (Dkt. No. 34 ¶ 14). Because
Owens did not believe any of the allegations, he decided to leave
the scene (E. Owens Depo. 35-36).
But as Owens began to drive away, the defendant, R.T. Davis
(“Officer Davis”), the chief of police for the city of Pennsboro,
arrived on the scene and briefly turned on his siren to prevent
Owens from leaving the parking lot. Id. at 36. At that point, as
Officer Davis was pulling into the parking lot, Owens got out of
his vehicle and began walking toward the police cruiser. Id. at
36. Officer Davis then asked Owens for his license and
registration. After initially questioning why that was necessary,
Owens complied and provided Officer Davis with his license,
insurance card, registration card, and concealed carry weapons
permit (“CCW permit”). Id. at 36-37. During all this, Officer Davis
claims Owens was irate and made it difficult to conduct an
investigation (R.T. Davis Depo. 9-12).
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

While Officer Davis was speaking with the occupants of the
other vehicle, Owens called his wife, Anita M. Owens (“Mrs.
Owens”), to inform her of the situation (E. Owens Depo. 41). After
he told her the name of the company displayed on the side of the
vehicle that had followed him, id., she called the company, whose
owner told her he did not wish to make a claim against Owens,
stating he would send a company representative to the parking lot
to confirm that (A. Owens Depo. 9-10). Following that call, Mrs.
Owens decided to go meet her husband at the parking lot. Id. 10-
11.
After Mrs. Owens arrived, she and Owens walked over to Officer
Davis’s police cruiser, at which point Mrs. Owens attempted to
inform Officer Davis about her conversation with the owner of the
company (A. Owens Depo. 11-12; E. Owens Depo. 42-43). Exactly what
happened next is the subject of considerable dispute. The Owenses
contend that Officer Davis became enraged at them and threatened
to arrest them for obstructing an officer (A. Owens Depo. 12-13;
E. Owens Depo. 43). According to the Owenses, Officer Davis then
directed Owens to return to his vehicle (A. Owens Depo. 15; E.
Owens Depo. 43). But when Owens began to do so, Officer Davis and
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

another officer on the scene tackled him. The Owenses claim that
the officers slammed Owens against his vehicle, threw him to the
ground, kneed him in the back, and only then placed him under
arrest. (A. Owens Depo. 15-17; E. Owens Depo. 44-45). As for Mrs.
Owens, she too was arrested and claims that Officer Davis shoved
her into the side of his police cruiser and handcuffed her too
tightly (A. Owens Depo. 18-19; E. Owens Depo. 56-57).
According to the narrative attached to Officer Davis’s police
report, when he told Mrs. Owens that the decision of the company
owner not to file a claim was irrelevant, she became belligerent
toward him (Dkt. No. 82-3 at 26). He then instructed her that
further interference would result in her arrest for obstructing an
officer and disorderly conduct. Id. Owens subsequently began to
yell and used profane language. Id. Officer Davis contends that he
gave Owens the same instruction he had given to Mrs. Owens, but,
after Owens made another profane comment, he placed Owens under
arrest. Id. When Owens then began to move toward his vehicle, based
on their belief that Owens possibly had a weapon there, Officer
Davis and the other officer restrained him to gain control of the
situation. Id. at 27.
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

While the officers were attempting to restrain Owens, Officer
Davis’s report asserts Mrs. Owens came within six inches of them,
yelling that she was recording the incident. Id. When Officer Davis
instructed her to back away, she refused and that is when he placed
her under arrest. Id. When he subsequently asked Mrs. Owens to
place her hands behind her back to be handcuffed, she refused, and
he forcibly handcuffed her. Id.
Because of the distance and the lack of sound, the video of
the incident from a nearby security camera clarifies little about
the disputed facts (Dkt. No. 82 Ex. E). Indeed, it confirms only
that the two officers wrestled with Owens as he walked away from
them and that, as Owens was being brought to the ground, Mrs. Owens
rushed toward all three men. Id.
Following the Owenses’ arrests, Officer Davis filed a
criminal complaint in the Magistrate Court of Ritchie County, West
Virginia, alleging that they had committed the offenses of
(1) Obstruction, in violation of W. Va. Code § 61-5-17, and
(2) Disorderly Conduct, in violation of W. Va. Code § 61-6-1b (Dkt.
No. 34 ¶ 37). Later, another officer charged Owens with Littering,

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

in violation of W. Va. Code § 17C-14-14(a). Id. All three of these
charges were later dismissed by the magistrate judge. Id.
II. Procedural Background
Initially, the Owenses sued Officer Davis and the City of
Pennsboro, asserting that (1) pursuant to 42 U.S.C. § 1983, Officer
Davis violated Owens’s Fourth Amendment rights by arresting him
without probable cause and using excessive force during the arrest;
(2) pursuant to 42 U.S.C. § 1983, Officer Davis violated Mrs.
Owens’s Fourth Amendment rights by arresting her without probable
cause and using excessive force during the arrest; (3) under West
Virginia law, Officer Davis falsely arrested and falsely
imprisoned Owens; (4) under West Virginia law, Officer Davis
falsely arrested and falsely imprisoned Mrs. Owens; (5) 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 with
respect to Owens; and (6) pursuant to Monell, the City of Pennsboro
was liable for failing to discipline Officer Davis for his
unconstitutional actions with respect to Mrs. Owens (Dkt. No. 34).
Ultimately, the Court granted the City of Pennsboro’s motion to
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

dismiss Counts Five and Six pursuant to Fed. R. Civ. P. 12(b)(6)
(Dkt. No. 55), thus only the four claims against Officer Davis
remain. These are the subject of the instant summary judgment
motion, which is 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
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MEMORANDUM OPINION AND ORDER
DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

with evidence demonstrating there is indeed a genuine issue for
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 the Owenses’ Fourth Amendment claims, Officer
Davis argues that summary judgment is appropriate because those
claims lack evidentiary support; alternatively, he contends he is
entitled to qualified immunity (Dkt. No. 82 at 8-12). The Owenses
respond that summary judgment should be denied because the evidence
establishes that Officer Davis lacked probable cause for their

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

arrests and used excessive force (Dkt. No. 84-1 at 5-12). Nor,
they argue, is Officer Davis entitled to qualified immunity. Id.
To succeed on a § 1983 claim, the plaintiffs must show that
(1) they were deprived of a right “secured by the Constitution and
the laws” of the United States; and (2) the individual who deprived
them 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)).
In this case, the Owenses claim that Officer Davis violated
their clearly-established Fourth Amendment rights by falsely
arresting them and by employing excessive force in the course of

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

the arrest. There is no dispute that Officer Davis was acting under
color of state law.
Because Officer Davis contends that there is a lack of
evidentiary support for the Owenses’ Fourth Amendment claims, he
argues that the 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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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 plaintiffs’
rights were violated; and (2) whether those rights were clearly
established. Id.
1. False Arrest
“[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.
Here, examining the contours of the offenses, the Owenses
were arrested for obstructing an officer and engaging in disorderly
conduct (Dkt. No. 34 ¶ 37). In West Virginia, “[a] person who by
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DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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 § 61-5-17(a). The Supreme Court of
Appeals of West Virginia has confirmed that obstructing 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).
A genuine dispute of material fact exists regarding whether
Officer Davis had probable cause to arrest the Owenses for
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DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

obstructing an officer. The Owenses contend that they approached
Officer Davis and informed him that the company owner did not
intend to pursue a claim against Owens. The parties, however,
dispute the tone of this conversation. Moreover, after some back
and forth between Officer Davis and the Owenses, the parties
disagree about whether Officer Davis placed Owens under arrest or
directed him to return to his vehicle. Similarly, while video
evidence establishes that Mrs. Owens rushed toward her husband and
the officers, the parties dispute how Mrs. Owens behaved while her
husband was being restrained. Further, they disagree about Mrs.
Owens’s conduct after the officers placed Owens in the police
cruiser.
Regarding the arrest of the Owenses for disorderly conduct,
W. Va. Code § 61-6-1b states that
[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.

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DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

A genuine dispute of material fact exists where it is unclear
whether an individual’s conduct disturbed “others,” excluding law
enforcement officers. Maston v. Wagner, 781 S.E.2d 936, 951 (W.
Va. 2015).
Here, genuine questions of material fact abound regarding
whether others were disturbed by the Owenses when they raised their
voices. Without the disturbance of others, Officer Davis would
have lacked probable cause to arrest the Owenses for disorderly
conduct.
Accordingly, whether Officer Davis had probable cause to
arrest the Owenses is in dispute, and the Court therefore DENIES
summary judgment on these claims of false arrest.
2. Excessive Force
The Owenses next contend that Officer Davis violated their
clearly-established Fourth Amendment rights by employing excessive
force during their arrests. “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
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DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

“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
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 . . .

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DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

seizure.’” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8–9
(1985)).
Here, there are genuine questions of material fact in dispute
regarding whether Officer Davis’s use of force was objectively
reasonable under the circumstances. Turning to the Graham factors,
the Owenses were arrested for obstructing an officer and disorderly
conduct, both of which are misdemeanors. See W. Va. Code §§ 61-5-
17, 61-6-1b. Further, although Officer Davis may have had reason
to suspect Owens might have a gun in his vehicle, the Owenses
contend that Officer Davis ordered Owens to return to his vehicle.
Officer Davis, on the other hand, claims that Owens walked away
after he had been placed under arrest.
As to Mrs. Owens, the parties dispute her tone toward the
officers throughout the encounter. Further, they disagree as to
whether she disobeyed Officer Davis’s order to back up when Owens
was being arrested, and whether she resisted arrest. Based on such
disputed facts, whether Officer Davis’s actions were objectively
reasonable under the circumstances is a question for a jury to
determine. The Court therefore DENIES summary judgment on the issue
of excessive force.
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DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

B. State Law Claims
Officer Davis argues that the Owenses lack evidentiary
support for their state law claims (Dkt. No. 82 at 6-8). The
Owenses have not directly responded 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.
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 the Owenses and, as a result, whether he had the
legal authority to detain them. The Court therefore DENIES Officer
Davis’s motion for summary judgment with respect to the Owenses’
state-law claims of false arrest and false imprisonment.
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DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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/10726269. Public record. Not legal advice.