Smith v. Clark, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JOAN STILNER, as

Administratrix of the

Estate of David M. Smith,

Plaintiff,

v. CIVIL NO. 2:20-CV-47

(KLEEH)

EDWARD W. CLARK, JR. et al.,

Defendants.

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]1

Pending before the Court is a motion for partial summary

judgment filed by Defendants Edward W. Clark (“Clark”), Bo D.

Hendershot (“Hendershot”), Jason Carey (“Carey”), and the Lewis

County Commission (the “County Commission”) [ECF No. 116]. For

the reasons discussed herein, the Court GRANTS IN PART and DENIES

IN PART the motion.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Joan Stilner (“Plaintiff”) is the Administratrix of

the Estate of David M. Smith (“Smith”). In her Amended Complaint,

she brought suit against Clark, Hendershot, Carey, the County

Commission, the Lewis County Sheriff’s Department (the “Sheriff’s

1 This Amended Memorandum Opinion and Order addresses issues set

forth in the Court’s Order Addressing Motions to Reconsider [ECF

No. 221] and corrects minor typographical errors.

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

Department”), the Weston Lewis County Emergency Ambulance

Authority (the “Ambulance Authority”), Rocky Shackleford

(“Shackleford”), and Nancy Ryder (“Ryder”).

On October 22, 2021, Plaintiff voluntarily dismissed the

claims against the Sheriff’s Department. See ECF No. 75. On May

2, 2022, the Court was notified that Plaintiff settled with the

Ambulance Authority, Shackleford, and Ryder (together, the “EMS

Defendants”). The Court held a hearing on July 28, 2022, and

approved the settlement. See ECF No. 135. The EMS Defendants

have now been dismissed from the case. See ECF No. 136. Clark,

Hendershot, Carey, and the County Commission (together,

“Defendants”) have moved for partial summary judgment.

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(a). 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).

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

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)

(citation omitted).

III. FACTUAL BACKGROUND

Clark, Hendershot, and Carey were, at all relevant times, law

enforcement officers with the Sheriff’s Department. On November

12, 2018, Smith was on parole. He had failed to check in with his

parole officer, and authorities had issued a warrant for his

arrest. Clark, Hendershot, and Carey sought to arrest Smith, and

a chase ensued. Smith was apprehended and injured during the

encounter. Ultimately, Smith was taken to the hospital, placed on

life support, and provided other treatment, but he died on November

17, 2018. The parties disagree about many of the details

surrounding his arrest.

Plaintiff asserts the following causes of action:

 (Count 1) Negligence (against Clark,

Hendershot, Carey);

 (Count 2) Negligence (against the County

Commission);

 (Count 3) Negligence (against the County

Commission);

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

 (Count 4) Outrage (against all Defendants);

 (Count 5) Negligent Infliction of Emotional

Distress (against all Defendants);

 (Count 6) Assault (against Clark, Hendershot,

Carey, County Commission);

 (Count 7) Battery (against Clark, Hendershot,

Carey, County Commission);

 (Count 8) Excessive Force, Fourth Amendment,

42 U.S.C. § 1983 (against Clark, Hendershot,

Carey, County Commission);

 (Count 9) Excessive Force, Fourteenth

Amendment, 42 U.S.C. § 1983 (against Clark,

Hendershot, Carey, County Commission); and

 (Count 10) Constitutional Violations (against

the County Commission).

IV. DISCUSSION

Defendants admit that there are genuine issues of material

fact as to Plaintiff’s state and federal claims of excessive force,

but they argue that they are entitled to judgment as a matter of

law on the remaining claims. The Court will discuss each of

Defendants’ arguments in turn.

A. Counts One through Seven of the Amended Complaint shall

be construed as one wrongful death claim under various

theories of liability.

In Counts One through Seven, Plaintiff brings state law claims

of negligence, outrage, negligent infliction of emotional

distress, assault, and battery. Each tort is separately alleged

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

to have caused the wrongful death of Smith. Defendants argue that

Counts One through Seven are actually one wrongful death claim

based on different theories of liability.

The West Virginia Code provides,

In addition to the causes of action which

survive at common law, causes of action for

injuries to property, real or personal, or

injuries to the person and not resulting in

death, or for deceit or fraud, also shall

survive; and such actions may be brought

notwithstanding the death of the person

entitled to recover or the death of the person

liable.

W. Va. Code § 55-7-8a(a) (emphasis added). West Virginia law does

not permit “survival of actions for personal injuries which do not

result in death.” Jones v. George, 533 F. Supp. 1293, 1301 (S.D.W.

Va. 1982) (Staker, J.). “Section 55-7-8a(a) will only effect

survival if ‘one, the death of the injured person occurs prior to

the institution of the suit, and two, his or her death is from

causes unrelated to the suit’s complaints.’” Myers v. City of

Charleston, No. 2:19-cv-00757, 2020 WL 4195005, at *11 (S.D.W. Va.

July 21, 2020) (Johnston, J.).

Here, in the Amended Complaint, for each of Plaintiff’s state

law tort claims, Plaintiff asserts that the tort caused Smith’s

wrongful death. See Am. Compl., ECF No. 3, at ¶¶ 50, 61, 73, 82,

91, 97, 103. As such, the state law tort claims do not survive

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

separately from a claim of wrongful death. See Myers, 2020 WL

4195005, at *11, 13, 15 (finding that claims of assault, battery,

outrage, negligence, negligent infliction of emotional distress,

and negligent supervision and training brought on behalf of

decedent’s estate did not survive decedent’s death, based in part

on the plaintiff’s assertions that the actions caused a wrongful

death).

The Court agrees with Defendants that Plaintiff is asserting

one claim of wrongful death under a variety of theories of

liability. To this extent, the motion for summary judgment is

GRANTED. Plaintiff may not alternatively argue that the seven

state law tort claims did not cause Smith’s wrongful death. The

Court will address this issue further when it crafts the verdict

form in this case.

B. To the extent that Plaintiff’s wrongful death claim is

based on the negligence of Clark, Hendershot, and Carey,

these Defendants are not entitled to absolute immunity

because Plaintiff has produced facts that could support

a finding of malicious, bad faith, wanton, or reckless

conduct.

In Count One, Plaintiff asserts a negligence claim against

Clark, Hendershot, and Carey, arguing that their negligence caused

Smith’s wrongful death. Defendants argue that Clark, Hendershot,

and Carey are entitled to absolute immunity for any alleged

negligence because there is no evidence that their conduct was

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

malicious, in bad faith, wanton, or reckless.

Under West Virginia law, employees of a political subdivision

generally are immune from liability unless one of the following

applies:

(1) His or her acts or omissions were manifestly

outside the scope of employment or official

responsibilities;

(2) His or her acts or omissions were with

malicious purpose, in bad faith, or in a

wanton or reckless manner; or

(3) Liability is expressly imposed upon the

employee by a provision of this code.

W. Va. Code § 29-12A-5(b). The Supreme Court of Appeals of West

Virginia has held that in the context of this statute, the terms

“willful,” “wanton,” and “reckless” mean that

the actor has intentionally done an act of an

unreasonable character in disregard of a risk

known to him or so obvious that he must be

taken to have been aware of it, and so great

as to make it highly probable that harm would

follow. It usually is accompanied by a

conscious indifference to the consequences,

amounting almost to willingness that they

shall follow; and it has been said that this

is indispensable.

Holsten v. Massey, 490 S.E.2d 864, 877 (W. Va. 1997).

Here, Plaintiff has alleged that while Smith remained face

down on the ground with three officers on top and surrounding him,

Clark made repeated blows with his fist to what Clark said was the

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

back of Smith’s right shoulder. Clark Dep. at 56:20–57:5. The

autopsy report indicates that the blows were more likely to the

back of Smith’s head. See Exh. 4 to Response, ECF No. 124-5.

Clark testified that it is not proper to punch the back of the

head of someone who is face-down on the ground. Clark Dep. at

57:7–14. This could support a finding of malicious, bad faith,

wanton, or reckless conduct.

Hendershot denied that his knee was on Smith’s neck while

Smith was on the ground. Viewing the video, however, the jury

could find that his knee was, at one point, on his neck. Video,

Exh. 8 to Motion. Smith was groaning and saying “help” and “I

can’t breathe.” Id.; Clark Dep. at 110:17–20. Clark testified

that it would have been improper to kneel on Smith’s neck. Clark

Dep. at 109:14–21. According to the Sheriff’s Department’s

policies, it would be improper for a deputy or officer to place

his knee on the back or on the heck of an arrestee when the

arrestee’s stomach is on the ground. Cayton Dep. at 95:16–22.

Plaintiff argues that Hendershot said, “How’d that feel” to Smith,

referring to his being tasered. Video, Exh. 8 to Motion;

Hendershot Dep. at 65:3–10.

At a minimum, these actions by the officers could be

interpreted by a jury as malicious, in bad faith, wanton, or

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

reckless. Defendants’ motion for summary judgment is DENIED on

this point.

C. To the extent that the wrongful death claim against the

County Commission is based on vicarious liability for

the individual deputies’ intentional use of excessive

force, the County Commission is entitled to absolute

immunity because excessive force requires intentional

conduct.

In Counts Two and Three, Plaintiff argues that the County

Commission’s negligence caused Smith’s wrongful death. Defendants

argue that to the extent the wrongful death claim against the

County Commission is based upon vicarious liability for the

individual deputies’ intentional use of excessive force, the

County Commission is entitled to absolute immunity.

A political subdivision is only liable for negligent conduct,

not intentional conduct. See W. Va. Code § 29-12A-4(c). The

Supreme Court of Appeals of West Virginia has dismissed intentional

tort claims against political subdivisions on the basis of this

immunity. See, e.g., Zirkle v. Elkins Rd. Pub. Serv. Dist., 655

S.E.2d 155, 160 (W. Va. 2007) (concluding that “claims of

intentional and malicious acts are included in the general grant

of immunity in W. Va. Code § 29-12A-4(b)(1)”).

“State-law excessive force claims are ‘analogous to claims

for assault or battery.’” Myers, 2020 WL 4195005, at *11 (citation

omitted). A common law battery claim based on an arrest by a

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

police officer requires a showing of excessive force. See Lowe v.

Spears, No. 3:06-0647, 2009 WL 1393860, at *6 (S.D.W. Va. May 15,

2009) (Chambers, J.). Further, in the civil context, “assault and

battery are intentional torts.” Flowers v. Max Specialty Ins.

Co., 761 S.E.2d 787, 797 (W. Va. 2014).

To the extent that Plaintiff argues that she can overcome the

County Commission’s statutory immunity by merely proving that

Defendants acted recklessly, the Court has already found above

that her claim of intentional infliction of emotional distress

does not survive outside of the wrongful death claim, so her

argument is rejected. In Conklin v. Jefferson County Board of

Education, 205 F. Supp. 3d 797 (N.D.W. Va. 2016), on which

Plaintiff relies, no wrongful death claim was made. Thus, Conklin,

does not provide the persuasive support Plaintiff seeks for her

claims here.

The Court agrees with Defendants that if Plaintiff proves

excessive force by the deputies, the County Commission is immune

because excessive force involves intentional conduct.2 The motion

2 The Court is mindful of its previous denial of the County

Commission’s motion to dismiss on this issue. ECF No. 71.

Plaintiff enjoyed a much lighter burden at that stage requiring

only a claim be plausibly stated when all facts alleged must be

taken as true. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250, 255-56 (4th Cir. 2009). Here, after

opportunity to conduct full discovery and facing a Rule 56 motion,

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

for summary judgment is GRANTED on this point.

D. The scope of the duty, if any, of Defendants to provide

medical treatment to Smith is unclear, so the County

Commission cannot be held liable for any alleged

negligence.

To begin, neither Plaintiff nor Defendants have clearly set

forth the extent of the duty, if any, of law enforcement officers

to provide medical care to an arrestee. The Court is tasked with

determining whether it wishes to adopt a certain duty based on the

findings in non-binding jurisdictions. With negligence being a

state law claim, the Court declines the invitation to create a

duty under West Virginia law. See Time Warner Entm’t-

Advance/Newhouse P’ship v. Carteret-Craven Elec. Membership Corp.,

506 F.3d 304, 314 (4th Cir. 2007) (“[A]bsent a strong

countervailing federal interest, the federal court . . . should

not elbow its way into this controversy to render what may be an

uncertain and ephemeral interpretation of state law.”).3 As such,

her burden transforms into a more onerous one. She must

demonstrate a genuine issue of material fact exists necessitating

resolution at trial and “must do so by offering sufficient proof

in the form of admissible evidence rather than relying solely on

the allegations of her pleadings.” Guessous v. Fairview Property

Investments, LLC, 828 F.3d 208, 216 (4th Cir. 2016) (internal

quotations and citation omitted). Plaintiff has failed to meet

that burden on this issue.

3 This Court has consistently declined such invitations as our

federalist system properly leaves questions of the creation or

expansion of civil liability to the state judiciary and

legislatures. See, e.g., Cather v. EQT Prod. Co., No. 1:17-CV-

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

Plaintiff has not met her burden in showing that a duty exists, so

the County Commission cannot be vicariously liable for Defendants’

alleged negligence. Defendants’ motion for summary judgment is

GRANTED on this point. For the same reasons, as discussed in the

Court’s Order Addressing Motions to Reconsider [ECF No. 221], the

Court FINDS that the deputies themselves cannot be liable for any

alleged negligence relating to their provision of medical care (or

lack thereof).

E. The County Commission cannot be vicariously liable for

any acts or omissions of the ambulance authority or EMTs

because the County Commission has no control over them.

It is undisputed that the EMTs were employed by the County

Commission at the time the events in the Amended Complaint took

place. Defendants argue that the County Commission cannot be

vicariously liable for their actions because, even though it was

their employer, it had no control over them.

Pursuant to the Tort Claims Act, a political subdivision may

be held liable for personal injury or death caused by its

employees’ negligent performance of their duties within the scope

of employment. W. Va. Code § 29-12A-4(c)(2). The Supreme Court

208, 2019 WL 3806629, at *5 (N.D.W. Va. Aug. 13, 2019)

(acknowledging heightened federalism concerns in diversity of

jurisdiction cases); Skelley v. FedEx Corporate Services, Inc.,

1:19-CV-2, 2019 WL 1937570, at *3 (N.D.W. Va. May 1, 2019) (same).

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

of Appeals has held, however, that when deciding if an individual

is an employee of a political subdivision for purposes of the Tort

Claims Act, the “pivotal consideration . . . is whether the

purported employer has the power of control over the individual.”

Atkinson v. Cty. Comm’n of Wood Cty., 489 S.E.2d 762, 765 (W. Va.

1997). In Atkinson, a magistrate was technically employed by the

county but was not considered the county’s employee for purposes

of the Tort Claims Act because the county could not hire, fire,

suspend, censure, or control the magistrate. Id.

Here, the Ambulance Authority was created via W. Va. Code

§ 7-15-4. Control of the Ambulance Authority is vested solely

with its Board, not the County Commission. Id. at § 7-15-5 (“The

management and control of any authority, its operations, business

and affairs shall be lodged in a board . . . .”). The County

Commission plays no role in training the EMTs and paramedics or

setting their schedules. Taylor Dep. at 132:5–133:8. The County

Commission has no say in employee discipline, including discharge

decisions. Id. at 133:9–17. And the County Commission does not

decide how to spend the Ambulance Authority’s funds. Id. at

133:18–23.

For these reasons, the County Commission is entitled to

summary judgment with respect to any claim that it is vicariously

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AND DENYING IN PART DEFENDANTS’ MOTION FOR

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liable for the acts or omissions of the Ambulance Authority, Ryder,

or Shackleford. Defendants’ motion is GRANTED in this respect.

F. The County Commission cannot be found liable for Smith’s

death based on negligent training, supervision, or

retention of the deputies because Plaintiff has produced

no evidence of the deputies’ propensity to commit

misconduct.

Claims of negligent supervision, training, or retention

concern an employer’s liability for supervising, training, or

retaining an employee who the employer knew, or should have known,

posed a risk to third parties because of the employee’s propensity

to commit misconduct. See Tolliver c. City of Dunbar, No. 2:21-

CV-0001, 2021 WL 5056081, at *3 (S.D.W. Va. Nov. 1, 2021)

(Johnston, J.) (“The analysis focuses on whether (1) the employer

(a) was on notice of the employee’s propensity, (b) yet

unreasonably failed to take action, and (2) a third-party was

harmed from the employee’s tortious conduct.”).

Here, Plaintiff has produced no such propensity evidence with

respect to Carey, Clark, and Hendershot. It is undisputed that

prior to this incident, none of the three deputies had ever been

accused of excessive force or failure to provide medical care. As

such, there is no genuine dispute as to any material fact regarding

a claim for negligent training, supervision, or retention. To the

extent that Plaintiff asserts in Count Two that the County

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Commission was negligent under this theory, Defendants’ motion for

summary judgment is GRANTED.

G. The individual deputies are entitled to qualified

immunity for Plaintiff’s state and federal excessive

force claims to the extent that Plaintiff bases those

claims on the use of a taser because Plaintiff has not

shown that this violated a clearly established right.

Defendants concede that there are genuine issues of material

fact as to other elements of Plaintiff’s use of force claim, but

they move for summary judgment on the excessive force claim to the

extent that Plaintiff argues that the use of a taser on Smith in

these circumstances constituted excessive force.

Three factors are analyzed in determining whether an

officer’s actions in a particular situation were objectively

reasonable: “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.” Pegg v. Herrnberger, 845 F.3d 112,

120 (4th Cir. 2017). The doctrine of qualified immunity protects

even those police officers who could reasonably believe that their

actions were lawful, in light of clearly established law at the

time of the action. Id. at 117. In order to be entitled to

qualified immunity, a defendant must either show (1) that no

constitutional violation occurred, or (2) that the right violated

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AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

was not clearly established at the time it was violated. Hunter

v. Town of Mocksville, 789 F.3d 389, 396 (4th Cir. 2015). A court

may consider either prong first. Pearson v. Callahan, 555 U.S.

223, 236 (2009). “For a right to be clearly established, ‘existing

precedent must have placed the statutory or constitutional

question beyond debate.’” Safar v. Tingle, 859 F.3d 241, 246 (4th

Cir. 2017) (citation omitted).

According to Defendants, it is undisputed that Hendershot

used a taser while Smith was fleeing from uniformed officers who

exited marked cruisers, identified themselves as police, and

commanded him to stop. It is also undisputed that Smith reached

toward his pockets or waistband area.4 Plaintiff’s use of force

expert agrees that by fleeing the deputies, Smith actively resisted

arrest. Gerard Dep. 29:23-30:1. Defendants write that “[p]er the

model guidelines put out by the IACP and relied on by Plaintiff’s

expert, police are authorized to use a Taser when a suspect flees

to resist a lawful arrest in circumstances where the officers

pursue on foot to physically effect the arrest, as happened here.”

4 Plaintiff disagrees, but she has not produced any evidence to

show that the reaching did not occur. In her summary judgment

response, Plaintiff merely responded to the allegation with,

“[O]fficers always say this in excessive force claims.” See Pl.

Response, ECF No. 123, at 14. This does not create a genuine issue

of material fact.

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

See Defs. Memo. in Support, ECF No. 117, at 26.

Defendants argue that it was objectively reasonable for

Hendershot to use a taser to stop Smith’s flight. Even if the use

of a taser was not reasonable, Defendants argue that they are

entitled to qualified immunity because there was no clearly

established law at the time prohibiting the use of a taser on a

suspect fleeing over a hard surface. Defendants cite research

indicating that tasers are “the force option least likely to result

in significant suspect injury.” Id. at 25.

To support her argument that the right was clearly

established, Plaintiff cites the testimony of the Rule 30(b)(6)

representative for the Sheriff’s Department, who admitted that

“simply running away” does not justify use of a taser. Further,

the Sheriff’s Department’s manual says that a taser can be used to

control a dangerous or violent subject, and Smith’s running away

does not meet the policy criteria for dangerous or violent. At

the least, Plaintiff argues, there is a genuine issue of fact as

to whether Smith was dangerous or violent and posed an immediate

threat of death or serious bodily injury to the officers. In

addition, Plaintiff cites the AXON Taser training which says that

the officer must consider the surface when determining whether to

use a taser. Plaintiff cites non-binding cases saying that using

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a taser can be excessive force.

The Court finds that Plaintiff has not shown that the right

to be free from use of a taser in these circumstances has been

clearly established. Plaintiff, the subject of an active warrant,

fled when confronted by uniformed police officers in marked

cruisers. He refused repeated commands to stop and show his hands.

Smith then reached toward his pockets or waistband area. After a

300-yard pursuit, he approached an apartment building, and only

then did Hendershot deploy his taser. In short, Plaintiff has not

shown that “existing precedent . . . [has] placed the statutory or

constitutional question beyond debate.” See Safar, 859 F.3d at

246.

Because it is not clearly established that Smith had a right

not to be tased under these circumstances, the officers are

entitled to qualified immunity to the extent that Plaintiff’s

excessive force claims are based on their use of a taser.

Defendants’ motion for summary judgment is GRANTED on this point.

H. The County Commission is entitled to summary judgment on

Plaintiff’s Monell claim because Plaintiff has produced

no evidence of a custom, policy, or practice that served

as the moving force behind the alleged violation of

Smith’s constitutional rights.

A municipality is liable under 42 U.S.C. § 1983 if it follows

a custom, policy, or practice by which local officials violate a

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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.” Id. 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, 824 F.2d at 1386–87 (citations omitted).

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PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

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

frequency of the practices warrants a finding of either actual or

constructive knowledge by the municipal governing body that the

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

The actual knowledge can be established by reports or discussions.

Id. Constructive knowledge may be shown by the practices being

“so widespread or flagrant that in the proper exercise of its

official responsibilities the governing body should have known of

them.” Id.

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

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

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. “Section

1983 plaintiffs seeking to impose liability on a municipality must,

therefore, adequately plead and prove the existence of an official

policy or custom that is fairly attributable to the municipality

and that proximately caused the deprivation of their rights.”

Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994).

The Fourth Circuit has established four ways by which a

municipal policy or custom may be established:

(1) through an express policy, such as a

written ordinance or regulation; (2) through

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the decisions of a person with final

policymaking authority; (3) through an

omission, such as a failure to properly train

officers, that “manifest [s] deliberate

indifference to the rights of citizens”; or

(4) through a practice that is so “persistent

and widespread” as to constitute a “custom or

usage with the force of law.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003).

While establishing a custom or policy of failure to train

normally requires a pattern of constitutional violations that

demonstrated to the municipality the need for better or different

training, the Supreme Court has suggested that liability of a

municipality for failure to train could be based on a single

incident where the need for training was obvious. Canton v.

Harris, 489 U.S. 378, 390 n.10 (1989). However, “a single incident

is almost never enough to warrant municipal liability.” Estate of

Jones v. City of Martinsburg, 961 F.3d 661, 672 (4th Cir. 2020).

Here, Plaintiff has produced no evidence of a custom, policy,

or practice that served as the moving force behind the alleged

violation of Smith’s constitutional rights. None of the individual

deputies, or any other deputies, have ever been accused of using

excessive force or failing to provide medical attention before

November 12, 2018. Therefore, Defendants’ motion for summary

judgment is GRANTED with respect to Plaintiff’s Monell claim

against the County Commission — and with respect to Counts Eight

STILNER V. CLARK ET AL. 2:20-CV-47

AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

and Nine, to the extent they allege excessive force claims against

the County Commission.®

Vv. CONCLUSION

For the reasons discussed herein, the Court GRANTS IN PART

and DENIES IN PART Defendants’ motion for partial summary judgment

[ECF No. 116].

It is so ORDERED.

The Clerk is DIRECTED to transmit copies of this Memorandum

Opinion and Order to counsel of record.

DATED: April 4, 2024

Tom 8 Bla

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

° See n.l, supra.

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