Nabors v. Tincher

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BECKLEY

EUGENE NABORS,

Plaintiff,

v. CIVIL ACTION NO. 5:22-cv-00059

SR. TROOPER J.L. TINCHER,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending is Defendant Sr. Trooper J.L. Tincher’s Motion to Dismiss, filed June 7,

2022. [Doc. 16]. Sgt. D.P. White having been dismissed pursuant to the Plaintiff’s Amended

Complaint [Doc. 14], the matter is ready for adjudication.

I.

On February 11, 2020, two rival schools -- Greenbrier East High School and

Woodrow Wilson High School -- were scheduled to play a regular season girls’ basketball game.

[Doc. 1 ¶ 9]. Plaintiff, Eugene Nabors, is an assistant coach for the Woodrow Wilson High School

girls’ basketball team. [Id. ¶ 11]. Governor Jim Justice is the coach for the Greenbrier East High

School girls’ basketball team, and on the night of the Greenbrier East versus Woodrow Wilson

game, his security detail was comprised of Sgt. D.P. White and Trooper Tincher. [Id. ¶¶ 7–8].

During a timeout in the fourth quarter of the game, Mr. Nabors, an African

American man, walked over to the baseline to talk to Woodrow Wilson High School administrators

about the Greenbrier East crowd “yelling racial slurs and epithets” at Woodrow Wilson’s players

and coaching staff. [Id. ¶ 14]. Two Greenbrier East fans aggressively interrupted this conversation

and attempted to instigate a confrontation in the group. [Id. ¶ 17]. Although Mr. Nabors was not

aggressive in response to this interruption, the two Woodrow Wilson administrators to whom he

had been speaking stepped between Mr. Nabors and the two Greenbrier East fans to prevent an

altercation. [Id. ¶ 18].

Noticing these events, Trooper Tincher and Sgt. D.P. White approached the group.

[Id. ¶ 19]. At that same time, Mr. Nabors’ adult son also approached the group. [Id.]. As Mr.

Nabors attempted to usher his son back into the stands, Trooper Tincher followed Mr. Nabors

towards the stands, ultimately pushing him and causing him to fall backwards and become injured.

[Id. ¶¶ 20–22]. Mr. Nabors was allegedly further injured by Sgt. White before being handcuffed

and questioned outside of the gymnasium by the two officers. [Id. ¶¶ 23–24]. During this

discussion, Mr. Nabors inquired about the reasoning behind his arrest. [Id. ¶ 25]. Sgt. White stated

that Mr. Nabors had pushed Trooper Tincher, a fact that Trooper Tincher later denied occurred.

[Id. ¶¶ 25–26].

Mr. Nabors was then transported to the Lewisburg Detachment of the West Virginia

State Police, where he was detained and eventually released. [Id. ¶ 27]. In his “Report of Criminal

Investigation,” Trooper Tincher stated that before he pushed Mr. Nabors, Mr. Nabors had grabbed

his arms to physically restrain him. [Id.]. Mr. Nabors claims that this statement contradicts the

video surveillance. [Id.].

Following the game, these events captured national attention due to Governor

Justice’s post-game remarks, in which he called the Woodrow Wilson High School team “a bunch

of thugs.” [Id. ¶ 28]. Governor Justice later said that it was “totally absurd” to infer racial

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undertones in his statement. [Id. ¶ 29]. However, less than one week later, Governor Justice

apologized for those remarks, claiming that he “never dreamed it would bother anyone.” [Id. ¶ 30].

On February 2, 2022, Mr. Nabors filed suit against Trooper Tincher and Sgt. White

in federal court under 42 U.S.C. § 1983. [Doc. 1]. In his complaint, he alleged that the officers

violated the Fourth and Fourteenth Amendments by depriving him of the right to be free of

unreasonable seizures and of the right to due process of law. [Id. ¶¶ 31–36]. He further alleged that

both Trooper Tincher and Sgt. White used excessive force in unreasonably seizing him in violation

of the Fourth Amendment. [Id. ¶¶ 37–41]. Finally, Mr. Nabors alleged that both officers committed

the torts of assault and battery against him. Mr. Nabors, therefore, prayed for relief for all

recoverable damages, including those available under 42 U.S.C. § 1983, and demanded a trial by

jury on all issues. [Id. at 9–10].

Defendants timely filed an Answer to Mr. Nabors’ Complaint on March 7, 2022,

denying the allegations in the Complaint and pleading affirmative defenses. [Doc. 6]. On April 15,

2022, Mr. Nabors moved the Court for permission to amend his Complaint and withdraw his

claims against Sgt. D.P. White, as well as his claim of false arrest, false imprisonment, and/or

unlawful detention. [Doc. 9]. The Court granted this Motion by Order on May 24, 2022. [Doc. 13].

Mr. Nabors filed his Amended Complaint that same day, [Doc. 14], and Sgt. White was terminated

as a Defendant pursuant to this Amended Complaint.

On June 7, 2022, Trooper Tincher, through his counsel, filed an Answer to the

Amended Complaint. [Doc. 15]. On that same date, pursuant to Rule 12 of the Federal Rules of

Civil Procedure, Trooper Tincher filed a Motion to Dismiss the Plaintiff’s Amended Complaint

with prejudice, [Doc. 16], and a Memorandum of Law in Support, [Doc. 17]. Mr. Nabors filed a

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Response in Opposition to the Motion to Dismiss on June 21, 2022. [Doc. 20]. Trooper Tincher

filed a Reply on June 27, 2022, largely repeating his grounds for dismissal. [Doc. 21].

II.

Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide “a short and

plain statement of the claim showing . . . entitle[ment] to relief.” Fed. R. Civ. P. 8(a)(2); Erickson

v. Pardus, 551 U.S. 89, 93 (2007). Rule 12(b)(6) correspondingly permits a defendant to challenge

a complaint when it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). The required “short and plain statement” must provide “fair notice of what the . . . claim

is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled on other grounds, Twombly, 550

U.S. at 562-63); McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582,

585 (4th Cir. 2015). Additionally, the showing of an “entitlement to relief” amounts to “more than

labels and conclusions.” Twombly, 550 U.S. at 558. It is now settled that “a formulaic recitation of

the elements of a cause of action will not do.” Id. at 555; McCleary-Evans, 780 F.3d at 585;

Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008).

The complaint need not “forecast evidence sufficient to prove the elements of [a]

claim,” but it must “allege sufficient facts to establish those elements.” Wright v. North Carolina,

787 F.3d 256, 270 (4th Cir. 2015); Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)

(internal quotation marks and citation omitted). Stated another way, the operative pleading need

only contain “[f]actual allegations . . . [sufficient] to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting the opening

pleading “does not require ‘detailed factual allegations,’ but it demands more than an unadorned,

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the-defendant-unlawfully-harmed-me accusation.”). In sum, the complaint must allege “enough

facts to state a claim to relief that is plausible on its face.” Twombly 550 U.S. at 570. The Supreme

Court has consistently interpreted the Rule 12(b)(6) standard to require a court to “accept as true

all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (citing Twombly, 550 U.S. at 555); see also S.C. Dep’t of Health & Env’t Control v. Com.

& Indus. Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting Franks v. Ross, 313 F.3d 184, 192

(4th Cir. 2002)). The court is required to “draw[] all reasonable . . . inferences from those facts in

the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

III.

Trooper Tincher moves to dismiss on four grounds, specifically that (1) the

doctrines of judicial and collateral estoppel bar Mr. Nabors’ claims, (2) he is entitled to qualified

immunity from suit, (3) his use of force was reasonable under the Fourth Amendment, and (4) Mr.

Nabors has failed to plead sufficient facts to show that he acted with intent as required in assault

and battery claims. [Doc. 17 at 6–18].

A. Judicial Estoppel

First, Trooper Tincher claims that Mr. Nabors’ claims are barred by the doctrine of

judicial estoppel, based upon Mr. Nabors’ stipulation of facts in his prior criminal proceeding

related to the events at issue here. The specific language at issue reads as follows:

[I]n an effort to eliminate the potential for an escalation, Sr. Tpr. J.L. Tincher was

seeking to remove and escort co-defendant Donte Nabors from the building, and in

approaching said co-defendant, the Defendant Eugene Nabors, understandably

perhaps, but intentionally and perhaps unlawfully attempted to intervene in the

Officer’s pursuit of co-defendant Donte Nabors physically laying on of hands on

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said trooper who then reasonably pushed defendant Eugene Nabors away in an

effort to gain control of co-defendant Donte Nabors and prevent the reasonably

perceived threat of violence involving the parties.

[Doc. 16-2 at 4] (emphasis added). Trooper Tincher argues that, because Mr. Nabors stipulated to

the reasonableness of Trooper Tincher’s use of force in his Resolution of Charges, he cannot now

argue that the use of force was unreasonable.

Also known as the doctrine of preclusion of inconsistent statements, judicial

estoppel is “a principle developed to prevent a party from taking a position in a judicial proceeding

that is inconsistent with a stance previously taken in court.” Zinkand v. Brown, 478 F.3d 634, 638

(4th Cir. 2007); John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir. 1995) (“The

vice which judicial estoppel protects is the cold manipulation of the courts to the detriment of the

public interest.”). Although “[t]he circumstances under which judicial estoppel may appropriately

be invoked are probably not reducible to any general formulation of principle,” Allen v. Zurich Ins.

Co., 667 F.2d 1162, 1166 (4th Cir. 1982), the United States Court of Appeal for the Fourth Circuit

has determined that “[t]hree elements must be satisfied before judicial estoppel will be applied.”

Zinkand, 478 F.3d at 638.

First, “the party sought to be estopped must be seeking to adopt a position that is

inconsistent with a stance taken in prior litigation.” Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir.

1996). Second, “the prior inconsistent position must have been accepted by the court.” Id. Finally,

“the party sought to be estopped must have ‘intentionally misled the court to gain unfair

advantage.’” Id. Our Court of Appeals has long held this third “bad faith” element is the

“determinative factor.” Id. (citing John S. Clark Co. v. Faggert & Frieden, 65 F.3d 26, 29 (4th Cir.

1995)); see also Tenneco Chems. v. William Burnett & Co., 691 F.2d 658, 665 (4th Cir. 1982).

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Because it is intended to “prevent the improper use of judicial machinery, judicial

estoppel is an equitable doctrine invoked by a court at its discretion.” New Hampshire v. Maine,

532 U.S. 742, 750 (2001) (internal citations omitted) (emphasis added). However, our Court of

Appeals has dictated that the doctrine “‘must be applied with caution’ and only ‘in the narrowest

of circumstances.’” Gilliam v. Sealey, 932 F.3d 216, 233 (4th Cir. 2019) (quoting Lowery, 92 F.3d

at 224).

Taking the facts in the light most favorable to the non-movant, the Court is not

satisfied that the necessary elements to judicial estoppel have been met. Although it is clear from

the evidence thus far that Mr. Nabors stipulated to certain facts as part of his Resolution of Charges,

there is nothing in the record to establish Mr. Nabors had the requisite “bad faith” in alleging

contrary facts in his Amended Complaint. Therefore, dismissal at this stage of litigation on these

grounds would be inappropriate.

B. Collateral Estoppel

Next, Trooper Tincher argues that the stipulation of facts and resolution of Mr.

Nabors’ criminal proceedings related to the events at issue precludes Mr. Nabors from pursuing

the causes of action alleged in his Amended Complaint.

Collateral estoppel, also referred to as issue preclusion, “bars ‘successive litigation

of an issue of fact or law actually litigated and resolved in a valid court determination essential to

the prior judgment, even if the issue recurs in the context of a different claim.’” Hately v. Watts,

917 F.3d 770, 777 (4th Cir. 2019) (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). This

“protect[s] against ‘the expense and vexation attending multiple lawsuits, conserv[es] judicial

resources, and foste[rs] reliance on judicial action by minimizing the possibility of inconsistent

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decisions.’” Taylor, 553 U.S. at 892 (quoting Montana v. United States, 440 U.S. 147, 153–54

(1979)). However, “[i]ssue preclusion applies only when ‘the issues in each action [are] identical,

and issues are not identical when the legal standards governing their resolution are significantly

different.’” SAS Inst., Inc. v. World Programming Ltd., 874 F.3d 370, 380 (4th Cir. 2017) (internal

citation omitted). Additionally, the Restatement (Second) of Judgments states, in pertinent part,

that “[a]n issue is not actually litigated if . . . it is the subject of a stipulation between the parties.”

Restatement (Second) of Judgments § 27, cmt. e; see also Orca Yachts L.L.C. v. Mollicam, Inc.,

287 F.3d 316, 318 (4th Cir. 2002) (citing Restatement (Second) of Judgments § 27 and noting

“issue preclusion applies only when an issue has been actually litigated”).

The collateral estoppel claim asserted here relies entirely on the statements in the

Stipulation of Facts executed by Mr. Nabors as part of his Resolution of Charges in his prior

criminal case. Had Mr. Nabors proceeded to trial in that case, the legal standard governing the

resolution of the issues there would have been significantly different than the legal standard in the

present case. Additionally, as stated in the Restatement (Second) of Judgments, issues that are the

subject of a stipulation between parties are not considered “litigated.” Id. Without prior litigation

on the issue, the defense of preclusion is foreclosed. Accordingly, the Court finds that dismissal

based on the doctrine of collateral estoppel is not warranted in this case.

C. Qualified Immunity

Government officials are protected by qualified immunity when “performing

discretionary functions . . . insofar as their conduct does not violate clearly established statutory

or constitutional rights of which [an objectively] reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Anderson v. Creighton, 483 U.S. 635, 630 (1987).

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Determining whether qualified immunity is appropriate involves a two-step inquiry. Saucier v.

Katz, 533 U.S. 194, 200 (2001). First, the court considers “whether a constitutional right would

have been violated on the facts alleged.” Id. at 200. Next, the court examines whether that

constitutional right was “clearly established” at the time of the alleged violation, id. at 202,

meaning “the contours of the right [are] sufficiently clear that a reasonable official would

understand that what [she] is doing violates that right.” Anderson, 483 U.S. at 630; see also Ray v.

Roane, 948 F.3d 222, 228 (4th Cir. 2020). In making the Saucier inquiry, the court has discretion

to decide which of the two steps to address first, based on the facts and circumstances of the case

at hand. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

In determining whether a right was clearly established, courts examine cases of

controlling authority existing at the time of the incident or “a robust ‘consensus of cases of

persuasive authority’” that have illustrated similar violative conduct. Ashcroft v. al-Kidd, 536 U.S.

731, 742 (2011) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). However, “officials can still

be on notice that their conduct violates established law even in novel factual situations” or

instances where the “reasoning, though not the holding” establishes the right. Hope v. Pelzer, 536

U.S. 730, 741, 743 (2002). The focus, according to the Supreme Court, is whether the officials had

“fair and clear warning” of the unlawfulness of their actions. Id. at 746 (citing United States v.

Lanier, 520 U.S. 259, 271 (1997)).

Although the constitutional right violated can be determined prior to trial, “[t]he

question of whether a reasonable officer would have known that the conduct at issue violated [a

constitutional] right . . . cannot be decided prior to trial if disputes of the facts exist.” Ray, 948

F.3d at 228 (citing Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015)). Here, the parties dispute

whether Mr. Nabors’ actions prior to being pushed made Trooper Tincher’s use of force reasonable

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under the circumstances. Mr. Nabors claims that he was “in a defenseless position with his hands

and arms stretched wide,” [Doc. 20 at 3], while Trooper Tincher contends that Mr. Nabors was

“physically restraining the officer.” [Doc. 17 at 15]. It is necessary to further develop the disputed

factual issue in order to properly assess the reasonableness of Trooper Tincher’s actions in pushing

Mr. Nabors.

On that same basis, the Court finds that it need not delve into the particulars of

Trooper Tincher’s final ground for dismissal at this time. Because conflict between the parties

exists surrounding the facts in this case, the issue of intent for Mr. Nabors’ assault and battery

claims is a question of fact best adjudicated following presentation of a fully developed evidentiary

record. At this stage of the case, Mr. Nabors is required only to plead “sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 678.

Mr. Nabors’ allegations as set forth in his Amended Complaint satisfy this standard.

IV.

For the foregoing reasons, the Court DENIES Trooper Tincher’s Motion to

Dismiss Plaintiff's Amended Complaint. [Doc. 16].

The Court directs the Clerk to transmit a copy of this Memorandum Opinion and

Order to counsel of record and to any unrepresented party.

ENTER: December 19, 2022

@ ela

NM ny Frank W. Volk □

<Girars United States District Judge

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