Napier v. County Commission of Lincoln County

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

THOMAS NAPIER,

Plaintiff,

v. CIVIL ACTION NO. 3:18-0254

COUNTY COMMISSION OF LINCOLN COUNTY and

ZACH SOWARDS, in his official and individual capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

As previously ordered (ECF No. 117), the Court GRANTS summary judgment for

the following reasons in favor of Defendant Zach Sowards and Defendant County Commission of

Lincoln County. ECF Nos. 84, 86.

I.

BACKGROUND

On April 2, 2016, Plaintiff Thomas Napier consumed heroin and ingested Xanax.

Dep. of Thomas Napier, at 41, ECF No. 90-3. As a result, his family took him to the emergency

room at St. Mary’s Medical Center because he appeared to have overdosed. Am. Compl., ¶¶ 6, 7,

ECF No. 69. Medical records describe Plaintiff “as ‘disoriented’, ‘combative’, and having an

‘altered mental status[,]’” and provide that Plaintiff’s ankles and wrists were restrained for safety

by order of a physician. Id. at ¶¶ 10, 11. Plaintiff also was given “an antipsychotic drug to stabilize

his mood.” Id. at ¶ 12. The treating doctor twice ordered medications to calm Plaintiff, but these

medications failed to abate Plaintiff’s aggressive behavior. Dep. of Julie Vaughn, at 13, ECF No.

88-2. Plaintiff has no clear recall of the events of that day, nor does he have any firsthand

recollection of the events that took place when he was at St. Mary’s Medical Center. Napier Dep.,

at 42–43. Plaintiff’s last memory prior to waking up in the hospital was buying heroin in

Huntington. Id. at 46.

Defendant Zach Sowards, who was employed as a Deputy Sheriff by the Lincoln

County Sheriff’s Office at the time, was in the Emergency Room at St. Mary’s with an unrelated

detainee and heard a commotion which drew his attention. Dep. of Zach Sowards, at 8, ECF No.

90-2. As a result, Defendant Sowards went to Plaintiff’s hospital room, where he and two doctors

held Plaintiff down as he attempted to break free from his four-point restraints. Id. at 11; Vaughn

Dep., at 93. Defendant Sowards and the surrounding medical staff were unable to physically

subdue Plaintiff long enough to attach an IV with sedatives, as Plaintiff kept ripping out the needle.

Id., at 9. After a prolonged struggle, Defendant Sowards used his taser to deliver a stun long enough

for medical staff to administer sedatives. Id. at 11-12. As a result, Plaintiff sustained bruises and

other injuries. Ex. 2, Vaughn Dep., at 12, ECF No. 90-1.

Plaintiff then filed suit, alleging violations of his Fourth Amendment rights by

Defendant Sowards, along with any associated state law claims. Am. Compl., ¶¶ 31–33.

Additionally, Plaintiff asserts that Defendant County Commission of Lincoln County (“the

Commission”) “as a matter of policy, practice, and/or custom,” failed to ensure “appropriate

policies” were in place in regard to the use of tasers, failed to “adequately train[] and supervise[]”

deputy sheriffs, including Defendant Sowards, in the use of tasers, and failed to “conduct proper,

adequate, and meaningful investigations into the use of force,” specifically the use of electronic

control devices such as tasers. Id. at ¶¶ 25–27. Plaintiff asserts these failures by the Commission

deprived him “of his right to be free from the use of excessive force[,]” and proximately caused

his injuries, in violation of the Fourth Amendment and 42 U.S.C. § 1983. Id. at ¶ 31.

II.

STANDARD OF REVIEW

A party moving for summary judgment must show there is no genuine issue of any

material fact and it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering

summary judgment, the Court shall not “weigh the evidence and determine the truth of the

matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). However, the Court shall

draw any permissible inference from the underlying facts in the light most favorable to the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).

The nonmoving party must offer some “concrete evidence from which a reasonable juror could

return a verdict in his [or her] favor[.]” Anderson, 477 U.S. at 256. Summary judgment is

appropriate when the nonmoving party has the burden of proof on an essential element of his or

her case and does not make, after adequate time for discovery, a showing sufficient to establish

that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The nonmoving party must

satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his

or her position. Anderson, 477 U.S. at 252.

III.

DISCUSSION

In his Motion for Summary Judgment, Defendant Sowards claims he is entitled to

qualified immunity. Sowards’ Mem. of Law in Supp. of Mot. for Summ. J., at 11, ECF No. 85.

Qualified immunity “shields government officials from liability for civil damages, provided that

their conduct does not violate clearly established statutory or constitutional rights within the

knowledge of a reasonable person.” Meyers v. Baltimore Cty., 713 F.3d 723, 731 (4th Cir. 2013)

(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity protects “all but the

plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

(1986). It shields law enforcement officers from “bad guesses in gray areas” and ensures they are

liable only “for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.

1992) (citation omitted).

Courts evaluate claims of excessive force on an “objective reasonableness”

standard. Graham v. Connor, 490 U.S. 386, 399 (1989). It requires “consider[ation of] the facts at

the moment that the challenged force was employed.” Smith v. Ray, 781 F.3d 95, 101 (4th Cir.

2015) (citation omitted). Courts focus on the totality of the circumstances of each case, normally

looking to the following factors: “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.” Graham, 490 U.S. at 396 (citation omitted). However, as

this case involves a medical emergency, rather than a crime and arrest, the Graham factors must

be tailored to correspond to this situation.

In Estate of Hill v. Miracle, 853 F.3d 306 (6th Cir. 2017), the Sixth Circuit adapted

the Graham factors to test whether an officer used excessive force in a situation involving a

medical emergency. In Miracle, an officer used a taser on an individual who was disoriented and

combative because his blood-sugar level was dangerously low. 853 F.3d at 310-11. After the taser

was deployed, the individual calmed down, and emergency medical personnel were able to restore

his blood-sugar level to the normal range. Id. at 311. The individual then sued the officer for

excessive force, amongst other things. Id.

In fashioning the Graham factors to provide guidance in a medical-emergency

context, the Sixth Circuit held, a court should ask:

(1) Was the person experiencing a medical emergency that rendered him

incapable of making a rational decision under circumstances that

posed an immediate threat of serious harm to himself or others?

(2) Was some degree of force reasonably necessary to ameliorate the

immediate threat?

(3) Was the force used more than reasonably necessary under the

circumstances (i.e., was it excessive)?

Id. at 314. The Sixth Circuit then reasoned that, “[i]f the answers to the first two questions are

“yes,” and the answer to the third question is “no,” then the officer is entitled to qualified

immunity.” Id.1 Applying these factors to the case before it, the Sixth Circuit found the officer did

not use excessive force by using the taser, as the individual was unable to make a rational decision

because of his low-sugar level, he was resisting life-saving intervention, and his actions were

putting others and himself in danger. Id. at 314-15. Moreover, the Sixth Circuit found that some

degree of force was needed to curtail this danger, and the use of the taser was “objectively

reasonable” under the circumstances. Id. at 315. Therefore, the Sixth Circuit concluded that the

officer was entitled to qualified immunity because no reasonable jury could find the degree of

force used was excessive. Id. at 316.

Although Miracle is not binding on this Court, the Court nevertheless finds its

adaptation of the Graham factors helpful in analyzing the facts of the present case. When it comes

to the use of tasers by law enforcement officers, the Fourth Circuit has explained that “[d]eploying

1The Sixth Circuit also recognized that these questions are non-exhaustive and may not be

dispositive in all cases. Id. (citation omitted).

a taser is a serious use of force,” designed to “‘inflict[] a painful and frightening blow.’” Estate of

Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 902 (4th Cir. 2016) (quoting Orem v. Rephann, 523

F.3d 442, 448 (4th Cir. 2008)). Nevertheless, there is no blanket prohibition against the use of a

taser. It may “be deployed when a police officer is confronted with an exigency that creates an

immediate safety risk and that is reasonably likely to be cured by using the taser.” Id. at 909. The

Court finds the instant case fits squarely within such an exigency situation.

As noted by the Sixth Circuit, in an atypical situation of a medical emergency, the

first Graham factor, the severity of the crime at issue, and the third factor, resisting or attempting

to evade arrest, are not in question because it was not an arrest/detention situation. 853 F.3d at

313.2 Instead, a court should focus on whether Plaintiff’s medical condition “rendered him

incapable of making a rational decision under circumstances that posed an immediate threat of

serious harm to himself or others[.]” Id. at 314. Here, it is uncontroverted that Plaintiff was brought

to the hospital because of a suspected overdose and he was experiencing a medical emergency.

Additionally, the overwhelming evidence indicates that, at the time, Plaintiff was incapable of

making a rational decision, he was aggressively resisting being subdued for necessary medical

treatment, and he posed an immediate, serious threat to the safety of himself and others.3 Indeed,

2The Sixth Circuit further found in Miracle there was no direct threat to the officer. Id.

3“Self-serving statements are not enough to defeat a motion for summary judgment.”

Chafin v. State Farm Fire and Cas. Co., No. 2:03–0153, 2003 WL 23571723, at * 2 (S.D. W. Va.

Nov. 20, 2003) (citations omitted); see also Cochran v. W. Va. Reg'l Jail & Corr. Facility Auth.,

No. 3:13-10176, 2014 WL 2589705, at *3 (S.D. W. Va. June 10, 2014) (listing cases and

explaining it is insufficient to survive summary judgment where a plaintiff has “merely restated

the allegations from his/her complaint in affidavit form, instead of offering specific evidence, such

as documentation, supporting those allegations where such evidence should have been available”

(citations omitted)).

the testimony from those in the room illustrate a violent scene. While medical staff attempted to

treat Plaintiff, he was “agitated, uncooperative, and trashing uncontrollably[.]” Vaughn Dep., at

94–95, ECF No. 88-2. He was “extremely aggressive” and “very violent” while “fighting with

staff.” Id. at 12. Medical staff twice administered medication to calm Plaintiff, but to no avail. Id.

at 13. He was placed in four-point Velcro restraints, but he kept thrashing at medical staff and was

freeing himself from the restraints. Id. at 14, 16. “It was very loud in the room.” Id. at 15.

It was this noise that drew the attention of Defendant Sowards. Sowards Dep., at 8.

When he looked out of the door from the room he was in, Defendant Sowards was flagged down

by medical staff. Id. at 8–9, 71. When he arrived at Plaintiff’s room, Defendant Sowards saw

medical staff attempting to hold Plaintiff down. Id. at 9. It appeared Plaintiff was ripping out his

IV and spitting. Id. at 9–10. Defendant Sowards helped two other doctors try to hold him down,

but they were unable to get full control of him, even with four-point restraints. Vaughn Dep., at

93, ECF No. 88-2. Defendant Sowards then began to feel fatigued from the struggle. Sowards

Dep., at 11. After verbal commands, Defendant Sowards delivered a single stun to subdue Plaintiff

long enough for medical staff to administer a sedative and gain control. Id.; Vaughn Dep., at 96,

ECF No. 88-2.

Given these facts, any objective observer, as well as the medical staff and

Defendant Sowards, would see Plaintiff as a potential threat of harm to himself and those around

him. His violent resistance to being subdued for necessary medical treatment, with sustained

efforts to bring him under control proving fruitless, further establish that, under the second Miracle

factor, “some degree of force reasonably [was] necessary to ameliorate the immediate threat[.]”

Miracle, 853 F.3d at 314. Moreover, despite being given two doses of mood-stabilizing drugs,

four-point restraints, and three individuals attempting to hold Plaintiff down prior to using the

taser, it is unrefuted that he remained aggressive, violent, and threatened the safety of himself and

others. Although Plaintiff was in the four-point restraints, he was freeing himself from those

restraints, he was not compliant or under control, and he continued to fight the staff. Vaughn Dep.,

at 13-15, ECF No. 113-1; Vaughn Dep., at 10, 17, 93, ECF No. 114-1. Even considering this

evidence in the most favorable light to Plaintiff, the Court finds Plaintiff has woefully failed to set

forth any evidence upon which a reasonable juror could find Defendant Sowards’ single use of a

taser was unreasonable under the third Miracle factor. Therefore, the Court finds Defendant

Sowards did not use excessive force and he is entitled to qualified immunity from this suit.

Turning next to the claims against the Commission, Plaintiff generally asserts that

there were no policies or procedures in place regarding the appropriate use of the taser and,

although Defendant Sowards attended a training course, Plaintiff contends it was inadequate. Am.

Compl. at ¶¶21-29. As a result, Plaintiff claims he was subjected to excessive force. Id. at ¶31.

However, as previously stated, the evidence establishes that Defendant Sowards did not use

excessive force. Therefore, as Plaintiff’s claim that he was subjected to excessive force does not

survive, his claim against the Commission that it is liable for Defendant Sowards use of excessive

force also fails, and the Court GRANTS summary judgment in its favor. See generally City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person has suffered no constitutional injury at

the hands of the individual police officer, the fact that the departmental regulations might have

authorized the use of constitutionally excessive force is quite beside the point.”).

IV.

CONCLUSION

Accordingly, for the foregoing reasons, the Court GRANTS summary judgment in

favor of Defendant Zach Sowards and Defendant County Commission of Lincoln County. ECF

Nos. 84, 86.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record

and any unrepresented parties.

ENTER: May 16, 2019

ie

4. ee

ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

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