# Smith v. Clark, Jr.

> District Court, N.D. West Virginia · April 4, 2024

URL: https://www.frixlaw.com/law-library/cases/10726705

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** April 4, 2024
- **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/10726705

## How later opinions describe it (automated extraction)

- 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)”

## Opinion text

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
AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

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
AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

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
AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART
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
AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

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
AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

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).
AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION FOR
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
AMENDED MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT [ECF NO. 116]

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.
22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726705. Public record. Not legal advice.