The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
KEITH LOWE,
Plaintiff,
v. CIVIL ACTION NO. 2:17-cv-03929
RONNIE WILLIAMS,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is a Renewed Motion for Summary Judgment with an
accompanying memorandum of law filed by Defendant Ronnie Williams. [ECF Nos.
183, 184]. Defendant moves the court for an Order granting him summary judgment
and dismissing Plaintiff’s Eighth Amendment claim (Count I) and assault and battery
claim (Count IV) against him. Because genuine disputes of material fact remain, the
motion is DENIED.
First, the court notes that under its Order and Notice filed on May 6, 2020,
Defendant’s motion is untimely. [ECF No. 118] (amending the Scheduling Order such
that Motions for Summary Judgment be filed by 6/5/2020). While the default deadline
under Federal Rule of Civil Procedure 56(b) gives litigants 30 days after the close of
all discovery to move for summary judgment, a scheduling order that sets a different
deadline controls. Fed. R. Civ. P. 56 advisory committee’s note (2009). No motion
to amend the scheduling order has been filed.
Second, notwithstanding the lateness of the instant motion, the standard set
forth in Rule 56(a) precludes the granting of summary judgment on the instant
claims. Rule 56(a) states, “The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphasis added). When
this court denied Defendant’s first Motion for Summary Judgment, it found “that
there are genuine issues of material fact concerning the need for and amount of the
force used by Ronnie Williams . . . .” that precluded summary judgment on Plaintiff’s
Eighth Amendment excessive force claim (Count I) and assault and battery claim
(Count IV). [ECF 136, at 10–11]. That was because Plaintiff and Defendant each have
plausible yet diverging accounts of the pepper spraying incident that led to the
relevant claims. . at 3–6. The facts surrounding the incident are necessarily
relevant, material, and, here, in dispute.
Now, over a year after I first denied Summary Judgment, Defendant points to
nothing that clears up these material disputes. As he states in his motion, “This Court
has previously reviewed the facts of this case in Defendants’ Motion for Summary
[J]udgment and Plaintiff’s response thereto.” [ECF 184, at 1]. As noted in that review,
“the crucial interactions between Lowe and Williams were not recorded and the court
is left to weigh the credibility of the parties’ competing statements in incident reports
2
and affidavits, which is impermissible at the summary judgment stage.” [ECF 136,
at 10–11].
Even when determining whether a party is entitled to the protections of
qualified immunity, “courts may not resolve genuine disputes of fact in favor of the
party seeking summary judgment.” , 572 U.S. 650, 656 (2014). “In
deciding whether a defendant is entitled to qualified immunity” for an excessive force
claim, “[courts] examine (1) whether the facts illustrate that [the defendant] violated
[the plaintiff’s] constitutional right to be free from excessive force; and (2) if so,
whether [the defendant’s] conduct was objectively reasonable in view of the clearly
established law at the time of the alleged event.” , 727 F.3d 312, 321 (4th
Cir. 2013).
Regarding the first prong, the Court previously found that there are genuine
issues of material fact as to whether Defendant violated Plaintiff’s constitutional
right to be free from excessive force. As to the second prong, the Fourth Circuit has
repeatedly held that “[i]t is generally recognized that it is a violation of the Eighth
Amendment for prison officials to use mace, tear gas
or for the sole purpose of infliction of pain.”
, 535 F.3d 225, 240 (4th Cir. 2008) (emphasis in original). Although Defendant
attempts to distinguish on the basis that Iko complied with orders and was
sprayed, whereas Plaintiff did not comply with Defendant’s orders and was sprayed,
this argument fails because there continue to be genuine issues of material fact as to
3
whether Defendant gave orders at all and whether Plaintiff had the opportunity to
comply with Defendant’s orders before pepper spray was deployed. [ECF 136, at 3].
Plaintiff had a clearly established right to be free from excessive use of pepper spray
at the time of the incident, but genuine issues of material fact remain as to whether
Defendant’s conduct in utilizing pepper spray was objectively reasonable. Because no
further argument is made to resolve the material disputes present in the court’s
previous review of the facts, I FIND that summary judgment on the instant claims
remains inappropriate.
For the reasons stated herein, it is hereby ORDERED that the Renewed
Motion for Summary Judgment filed by Defendant Williams is DENIED. The court
DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER: November 2, 2021
My
G CLG
ew STATES DISTRICT JUDGE