Pennington v. Mercer County Commission

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

TAMMY PENNINGTON,

Plaintiff,

v. CIVIL ACTION NO. 1:21-00335

MERCER COUNTY COMMISSION, et al.,

Defendants.

MEMORANDUM OPINION

On March 31, 2023, the court granted defendants’ motion for

summary judgment. See ECF No. 60. The reasons for that decision

follow.

Background

This cases revolves primarily around plaintiff Tammy

Pennington’s allegation that defendant Lawrence Murphy used

excessive force in handcuffing her and his refusal to loosen the

handcuffs. On November 18, 2019, plaintiff Tammy Pennington was

sentenced to a one-year sentence of incarceration, handed down in

Mercer County, West Virginia, for violation of a domestic

violence petition (“DVP”). See Deposition of Tammy Pennington,

February 22, 2022, at 36-37 (hereinafter “Pennington Depo. at

___”) (Exhibit 1 to Defendants’ Motion for Summary Judgment) (ECF

No. 41-1). According to Pennington, she appealed the sentence

handed down on November 18, 2019, and was granted a hearing

before Judge Willis on December 10, 2019. See id. at 37-38.

Lieutenant Lawrence Murphy, a 20-year employee of the Mercer

County Sheriff’s Department, transported Pennington from her

holding cell in the courthouse annex to her hearing. See id. at

38-40.

Pennington said that she was “flabbergasted” when she saw

Murphy on December 10. See id. at 30-31. According to her,

Murphy had verbally assaulted her in her driveway sometime in

October 2019. See id. at 31-35. Of this encounter with Murphy,

Pennington was unclear on certain details.

Q: Why were you flabbergasted when you saw Murphy

[on December 10, 2019]?

A: Well, because Murphy was part of this case. He

was one of the officers that responded to the

home. He basically had verbally assaulted me

in my driveway before I arrested.

Q: When were you arrested on this?

A: I want to say the 23rd of October. I may not

be right on that. There was a total of four

different charges. There was two assault and

battery and assault, I believe, and then

violation of a DVP. The three charges of

assault were dismissed and the battery. The

only conviction I had was the violation of the

DVP. And I think that was - - I was given a

year for that.

Q: Okay.

A: And that was on November the 18th.

Q: So did you plead guilty to - -

A: Yes.

Q: - - the - -

2

A: The violation of the DVP.

Q: Who had the protective order?

A: Well, he wasn’t my husband then, but my

husband.

Q: Darrell?

A: Yes.

Q: What was the basis of the DVP?

A: He was basically trying to get me help for my

addiction, and during that period I think he

thought, you know, that the Mercer County

Sheriff’s Department would help him help me.

* * *

Q: What was - - how did you come to violate the

DVP?

A: I showed up at his house one night and I wasn’t

supposed to be there.

Q: He presumably called law enforcement?

A: Yes.

Q: And you said that Murphy verbally assaulted yo

in the driveway?

A: Yes.

Q: What did he say?

A: Called me a whore. Asked my husband why I was

there. Asked my husband if I was his whore.

* * *

Q: That was going to be my next question. Who all

- - if it was just Murphy or were there other

officers there too.

A: No. Deputy Hatfield was there as well. He

came up on the deck.

3

Q: “He” being Hatfield?

A: Yes. Threatened to arrest me. But I knew at

that point he didn’t have any reason to arrest

me. There was no charges. Like I said, it was

prior to the DVP. So, anyway, I thought it was

in my best interest to go inside and sit down

and that’s what I did.

Q: Anybody besides Deputy Hatfield and Deputy

Murphy there that night?

A: I don’t think so.

Q: So you - - but you were arrested that night?

A: No, sir.

Q: Okay.

A: Not that night.

Q: You said this happened, you thought, on October

23rd?

A: Sometime in the latter part of October.

Q: Of ‘19?

A: Yes.

Q: When were you arrested on this DVP violation?

A: I think it was the 23rd. But the officers had

been there probably three times before the DVP.

Q: Okay. All right. So did this interaction with

Murphy happen on the 23rd or was this before

that?

A: I think it was before the 23rd.

Q: Do you have any time frame of when?

A: Just sometime in October. Between the 1st of

October and the 23rd; that’s all I can recall.

Q: Was Murphy present each time?

4

A: No, sir.

Q: Was Hatfield present each time?

A: No, sir.

Q: So it would just be whatever officers were

available?

A: Yeah. I think Officer Lester and Lacey were

the two that actually ended up arresting me and

charging me with the assault and battery and

all the craziness during that time period.

Q: And that was - - that was the incident on the

23rd, you think, that you were arrested?

A: No. The 23rd was for the DVP violation.

Q: Okay.

A: Okay.

Q: Yeah. I’m confused. You’re going to have to

break this down for me.

A: There’s three other charges.

Q: Okay.

A: There was a total of four charges throughout

October. Okay? Two were assault and battery,

one was, I believe, assault, one was a

violation of a DVP; so that’s four different

occasions that officers was at my home during

that October period.

Q: So Lacey and Lester arrested you for what?

A: I believe assault and battery.

Q: And then Murphy and Hatfield arrested you?

A: They never arrested me. They just came and

started trouble and left basically.

Q: Okay. So who arrested you on the DVP?

5

A: I don’t recall that officer’s name. I was way

intoxicated. I do not recall the officer.

Id. at 31-35. Pennington admitted that she was using

methamphetamine in October 2019 and that she might have last used

the drug in early December. See id. at 30. In any event,

Pennington says she knew Murphy from this earlier encounter.

According to Pennington, while on the elevator at the

courthouse on the way to the December 10 hearing, Murphy asked

her if she thought she was going home today. When Pennington

answered in the affirmative, Murphy said: “Well, you’re not

because I’m judge today. . . . Besides, they don’t let liars

go.” Id. at 40. Then, after exiting the elevator, Pennington

asked Murphy if she could hug her mother and he refused. See id.

at 40.

Pennington estimated the hearing lasted three minutes. See

id. at 40. When Murphy was taking Pennington back to her holding

cell, he told her “I told you.” Id. Then Pennington asked

Murphy if she could take off the heavy jacket she was wearing.

According to Pennington:

A: We got out of the elevator. And I had a thick

jacket on. I was burning up. I was sweating.

I asked him [Murphy] if I could take my jacket

off and he proceeds to uncuff me one cuff at a

time, I think. I don’t recall. Anyway, when

he put the left cuff back on my hand, I

immediately told him “That’s too tight. Please

loosen it.” And I think he shook the cuff and

he said, “It should be tighter.” And he said,

“Get in,” and I went in and closed the door.

6

Q: You just dropped a lot of information on me, so

I want to break some of that back down. Okay?

A: Okay.

Q: So Murphy took you upstairs from the holding

cell in the annex?

A: Correct.

Q: You guys got on the elevator, had a

conversation. He asked if you thought you were

going home?

A: Yes.

Q: And then you said he called you basically a

liar?

A: Yeah. I think he even said “bitch” at some

point. I don’t - - I mean, I know it was a

lot. . . .

* * *

Q: Okay. Was there any - - anybody else on the

elevator with you and Office Murphy?

A: No.

Q: So your hearing ends. I’m assuming, if it’s

taken under advisement, whatever you’d put

i[t], you’re going back to the regional?

A: Yes.

Q: Murphy took you back down in the elevator?

A: Yes.

Q: Any conversation in the elevator?

A: Nothing other than I told you and me asking him

if, you know, he would let me take my jacket

off because I was sweating. My face was red.

That’s it.

Q: So you asked if you could take your jacket off?

7

A: Uh-huh.

Q: He uncuffs you?

A: Yes.

Q: Did he take both cuffs off at the same time?

A: I don’t remember. I think he done them one at

a time.

Q: Which one did he take off first?

A: I think the right one.

Q: Okay. Any - - so when he took - - explain to

me how that happens. He takes the right one

off, you pull your arm out?

A: (Nodding affirmatively.)

* * *

Q: So he uncuffs your right hand, you pull your

arm out of your jacket?

A: Yes.

Q: Does he put your right hand back in cuffs?

A: Yes.

Q: Okay. And then he uncuffs your left hand?

A: Yes.

Q: You pull your arm out of your left jacket arm?

A: Yes.

Q: And he puts the left cuff back on?

A: Yes.

Q: And that was the one that was too tight?

A: Yes.

8

Q: All right. How - - explain to me what you mean

by too tight? What did it do?

A: Immediately cut off my circulation. My hand

immediately went numb. It was like a tingling.

I immediately asked him to release it, it’s too

tight. He said - - he shook it and he said,

“It should be tighter.” When he shook it, I

think it even clicked a couple more times

before he locked it.

* * *

Q: And that was - - it was too tight you said?

A: Absolutely.

Q: Okay. So could it - - would it move on your

wrist?

A: Barely. Barely. And every time I moved my

arm, it would just dig deeper. Do you

understand what I’m saying?

Q: Uh-huh. Okay.

A: I eventually ended up passing out in the cell

because it was so tight. That’s how bad it was

hurting me. I got up in the camera - - in the

annex building they have a camera that’s right

next to the seat. I held my cuffs like this

(indicating), begging, you know, somebody to

come and loosen it. They could see it. It was

bleeding. Nobody responded.

Id. at 40-49.

An Officer Wood transported Pennington to the hospital for

medical treatment. According to Pennington, at the hospital, her

wound from the handcuff was dressed and cleaned and a doctor told

her that her blood pressure and blood sugar may have caused her

to pass out. See id. at 50-51. Pennington testified that, while

at the hospital, she tried to file a complaint about what had

9

happened with Lt. Murphy. See id. at 51-52. Two days later, on

December 12, 2019, Pennington was in court for another hearing.

See id. at 55-56. She once again tried to make a complaint

against Murphy. See id. at 56. Pennington states that she

“think[s]” she talked to Tommy Bailey and Joe Parks that day.

Id. at 56. She also thinks a photograph of her injured wrist was

taken on that day although she was not sure. See id. at 56.

Pennington also states that she made a written statement on that

day which Joe Parks kept. See id. at 56-57. Because she didn’t

think Parks and Bailey were going to do anything with her

complaint, once Pennington returned to the regional jail, she put

in a complaint at a kiosk at the regional jail. See id. at 59.

According to Pennington, that complaint went nowhere as well.

See id. at 59.

Pennington does not take issue with the fact that she was

placed in handcuffs on December 10, 2019. See id. at 103. She

agreed that she was in custody and, therefore, the use of

handcuffs was appropriate. See id.

Pennington was in court again on December 18, 2019. See id.

at 77-80. According to her, a transport officer or someone with

the Department of Corrections struck her in the chest twice. See

id. at 77-81. Pennington testified that Murphy was one of five

or so officers who observed this incident and that Murphy said:

“Hit the bitch again. Hit her again. The liar deserves it.”

10

Id. at 85; see also id. at 81 (“[A]nd when I looked, there was

about five deputy sheriffs standing there, one of which was

Lieutenant Murphy, and he screamed, ‘hit the bitch again’ and

laughed. Said ‘that’s what you get for lying, you fucking

bitch.’”).

Murphy’s account of his interactions with Pennington differs

significantly. He testified that he had known Pennington for a

year or two prior to the first time he was called to her home in

response to a domestic disturbance call. See Deposition of

Lawrence Murphy, February 22, 2022, at 6-7 (hereinafter “Murphy

Depo. at ___”) (Exhibit 4 to Defendants’ Motion for Summary

Judgment) (ECF No. 41-4). Murphy denied calling Pennington a

whore or asking her boyfriend/husband if she was his whore. See

id. at 7.

Murphy had no recollection of tightening Pennington’s

handcuffs. See id. at 12-13. In spite of his lack of

recollection, Murphy vehemently denied that he would have ever

tightened the handcuffs in a manner to cause the injuries shown

in the photograph. See id. Murphy also did not recall telling

Pennington that the handcuffs should be tighter in response to

her complaint to him. See id. at 14. According to him, if

someone complained about handcuffs being too tight, he would

loosen them. See id. at 29. Of the procedure in placing

handcuffs on someone, Murphy testified:

11

A: When I put a handcuff on [ ] somebody, it snaps

around the wrist and comes together. I take my

fingers and stick a finger in between the bone

and the wrist like so and then shut the

handcuff down on top of it and can feel it.

Q: What’s the [purpose] of sticking your finger -

-

A: So you have enough gap in here to keep from

crushing the handcuff down and making them too

tight on a person’s wrist.

Id. at 29.

In support of their motion for summary judgment, defendants

also submitted the affidavit of Joe Parks. See Aff. Exhibit 5

(ECF No. 41-5). In his affidavit, Parks testified that during

the December 2019 timeframe, he was employed as the Chief Deputy

for the Mercer County Sheriff’s Department. See id. at ¶ 8. He

further testified that he was called to the annex holding cells

due to a complaint by Pennington that Murphy had placed handcuffs

too tightly on her wrist. See id. Parks stated that he

“physically examined Ms. Pennington’s handcuffs, slid a finger

between Ms. Pennington’s wrist and the handcuffs and informed Ms.

Pennington that the handcuffs were not too tight.” Id. at ¶ 9.

Parks testified that he examined Pennington’s wrists at that time

and saw no sign of injury related to the allegation that Murphy

tightened the handcuffs improperly. See id. at ¶ 10. Parks

advised Pennington “that she should cease pulling on the

restraining chain that linked the handcuffs to another set of

12

ankle cuffs, as this could cause injury to her wrists.” Id. at ¶

11.

According to Parks, on or about December 20, 2019, Public

Defender Tim Burks approached him in the Mercer County Courthouse

regarding Murphy’s use of force against Pennington. See id. at ¶

12. Parks took a photo of abrasions on Pennington’s wrists with

his phone and forwarded the photograph to the legal counsel for

the Mercer County Sheriff’s Department. See id. Parks testified

that he witnessed Pennington twisting and rubbing handcuffs on

her wrist prior to him taking the photograph. See id. at ¶ 13.

Parks denied that he ever took a statement from Pennington. See

id. at ¶ 14. According to Parks, Pennington told him “that Lt.

Murphy did this and the ‘Sheriff’ was there and saw it when it

first happened. I did not correct her, as it was I who went over

there and checked the cuffs.” Id.

On June 4, 2021, Pennington filed what she labeled a four-

count complaint under federal and state law. See ECF No. 1.

Named as defendants in the complaint are: 1) the Mercer County

Commission; 2) Mercer County Sheriff Tommy Bailey; 3) Deputy Lt.

Murphy; 4) Deputy John Doe I; and 5) John Doe Officers/Deputies

II-V. See id. Bailey, Murphy and the John Doe defendants were

sued both individually and in their official capacities. See id.

In Count I, Pennington alleges that defendants violated her

constitutional rights by using excessive force against her in

13

violation of 42 U.S.C. § 1983. Count II alleges a civil rights

violation under 42 U.S.C. § 1983 based upon a failure to provide

timely medical care. Count III is a municipal liability claim

against the Mercer County Commission under 42 U.S.C. § 1983.

Count IV, labeled STATE LAW CLAIMS, sets forth assault and

battery, negligence and invasion of privacy claims against Murphy

and the John Doe defendants. Count IV also alleges claims for

negligent hiring, negligent retention, negligent supervision,

negligence, and civil conspiracy against all defendants.

Defendants filed a summary judgment motion arguing that they

were entitled to judgment as a matter of law on all claims. In

response to defendants’ motion, plaintiff agreed to dismiss all

claims except for her claims for:

1) Excessive force under 42 U.S.C. § 1983 against

Murphy (Count I)

2) Municipal liability claim against Mercer County

Commission (Count III)

3) Assault and Battery against Murphy (Count IV)

4) Negligent supervision against Mercer County

Commission and Bailey (also Count IV)

See ECF Nos. 45, 54, and 55. Therefore, plaintiff has abandoned

any claims arising out of conduct occurring before or after

December 10, 2019.

Summary Judgment Standard

“A party may move for summary judgment, identifying each

claim or defense—or the part of each claim or defense—on which

14

summary judgment is sought. The court shall grant summary

judgment if the movant shows that 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 moving party has the

burden of establishing that there is no genuine issue as to any

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). This burden can be met by showing that the nonmoving

party has failed to prove an essential element of the nonmoving

party's case for which the nonmoving party will bear the burden

of proof at trial. Id. at 322. If the moving party meets this

burden, according to the United States Supreme Court, "there can

be 'no genuine issue as to any material fact,' since a complete

failure of proof concerning an essential element of the nonmoving

party's case necessarily renders all other facts immaterial."

Id. at 323.

Once the moving party has met this burden, the burden shifts

to the nonmoving party to produce sufficient evidence for a jury

to return a verdict for that party.

The mere existence of a scintilla of evidence in

support of the plaintiff's position will be

insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff. The judge's

inquiry, therefore, unavoidably asks whether reasonable

jurors could find, by a preponderance of the evidence,

that the plaintiff is entitled to a verdict . . . .

15

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "If

the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted." Id. at 250-51.

Analysis

A. § 1983 Claim against Lt. Murphy

In order to prevail on her claim under 42 U.S.C. § 1983,

Pennington must establish that a person acting under the color of

state law deprived her of a right secured by the Constitution or

laws of the United States. See Everson v. Leis, 556 F.3d 484,

493 (6th Cir. 2009). In this case, Pennington contends that Lt.

Murphy used excessive force on her when he put her left handcuff

on too tightly and refused to loosen it. As a sentenced

prisoner, the Eighth Amendment's ban on cruel and unusual

punishment, rather than the Fourth Amendment, applies to

Pennington’s excessive-force claim. See Whitley v. Albers, 475

U.S. 312, 327 (1986).1

1 Excessive force claims can be resolved under

the Fourth, Eighth and Fourteenth Amendments—the

applicable amendment depends on the plaintiff’s

status at the time of the incident: a free

citizen in the process of being arrested or

seized; a convicted prisoner; or someone in gray

areas around the two. When a free citizen claims

that a government actor used excessive force

during the process of an arrest, seizure, or

investigatory stop, we perform a Fourth Amendment

inquiry into what was objectively reasonable

under the circumstances. . . . When convicted

prisoners bring claims of excessive force, we

turn to the Eighth Amendment, which forbids the

unnecessary and wanton infliction of pain that

16

The Eighth Amendment protects prisoners from “cruel and

unusual punishment” at the hands of prison officials. Wilson v.

Seiter, 501 U.S. 294, 296-97 (1991). This includes punishments

that “involve the unnecessary and wanton infliction of pain.”

Gregg v. Georgia, 428 U.S. 153, 173 (1976).

The Supreme Court has “reject[ed] th[e] notion that all

excessive force claims brought under § 1983 are governed by a

single generic standard.” Graham v. Conner, 490 U.S. 386, 393

(1989).

As we have said many times, § 1983 “is not itself

a source of substantive rights,” but merely

provides “a method for vindicating federal rights

elsewhere conferred.” Baker v. McCollan, 443

U.S. 137, 144, n.3, 99 S. Ct. 2689, 2694, n.3, 61

L.Ed.2d 433 (1979). In addressing an excessive

force claim brought under § 1983, analysis begins

by identifying the specific constitutional right

allegedly infringed by the challenged application

of force. See id., at 140, 99 S. Ct., at 2692

(“The first inquiry in any § 1983 suit” is “to

isolate the precise constitutional violation with

which [the defendant] is charged”). In most

instances, that will be either the Fourth

Amendment's prohibition against unreasonable

constitutes cruel and unusual punishment, and

specifically conduct that is malicious and

sadistic. . . . To violate the Fourteenth

Amendment rights of free citizens not subject to

search or seizure, the conduct of law enforcement

officials must shock the conscience, whether it

be malicious and sadistic behavior in the context

of a fluid and dangerous situation, or deliberate

indifference when there is reasonable opportunity

to deliberate before taking action.

Coley v. Lucas Cty., Ohio, 799 F.3d 530, 537-38 (6th Cir. 2015)

(cleaned up).

17

seizures of the person, or the Eighth Amendment's

ban on cruel and unusual punishments, which are

the two primary sources of constitutional

protection against physically abusive

governmental conduct. The validity of the claim

must then be judged by reference to the specific

constitutional standard which governs that right,

rather than to some generalized “excessive force”

standard. See Tennessee v. Garner, supra, 471

U.S., at 7–22, 105 S. Ct., at 1699–1707 (claim of

excessive force to effect arrest analyzed under a

Fourth Amendment standard); Whitley v. Albers,

475 U.S. 312, 318–326, 106 S. Ct. 1078,

1083–1088, 89 L.Ed.2d 251 (1986) (claim of

excessive force to subdue convicted prisoner

analyzed under an Eighth Amendment standard).

Id. at 393-94.

An inmate's Eighth Amendment excessive force claim “involves

both an objective and a subjective component.” Dean v. Jones,

984 F.3d 295, 302 (4th Cir. 2021); Brooks v. Johnson, 924 F.3d

104, 112 (4th Cir. 2019) (same).

The objective component measures the nature of

the force employed, asking whether that force

“was sufficiently serious to establish a cause of

action.” Brooks, 924 F.3d at 112. This is not a

high bar; de minimis or trivial force is not

enough, but anything more will suffice. Id.

The more demanding part of the test – and

the one on which the district court appropriately

focused – is the subjective component, which asks

a single question: whether the officers acted

with a “sufficiently culpable state of mind.”

Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.

1996). As the district court explained, the

state of mind required here is “wantonness in the

infliction of pain.” Dean, 2018 WL 4655723, at

*3 (internal quotation marks omitted); see Iko v.

Shreve, 535 F.3d 225, 239 (4th Cir. 2008)

(quoting Whitley, 475 U.S. at 322, 106 S. Ct.

1078). Whether an inmate can establish that

impermissible motive turns on “whether force was

18

applied in a good faith effort to maintain or

restore discipline or maliciously and

sadistically for the very purpose of causing

harm.” Whitley, 475 U.S. at 320–21, 106 S. Ct.

1078 (internal quotation marks omitted).

As we have explained, officers employ force

in “good faith” – and thus permissibly – when

they are motivated by an “immediate risk[ ] to

physical safety” or threat to prison order.

Brooks, 924 F.3d at 113. But they cross the line

into an impermissible motive when they inflict

pain not to protect safety or prison discipline

but to punish or retaliate against an inmate for

his prior conduct. Id.; see Boone v. Stallings,

583 F. App'x 174, 177 (4th Cir. 2014) (“[T]he

Eighth Amendment does not permit a correctional

officer to respond to a misbehaving inmate in

kind.”). And the use of force on an inmate who

is “restrained and compliant and posing no

physical threat” raises the specter of such an

impermissible motive. Thompson v. Virginia, 878

F.3d 89, 102 (4th Cir. 2017).

On summary judgment, then, the inquiry under

the subjective component boils down to whether a

reasonable jury could determine that an officer

acted with malice, applying force punitively and

“for the very purpose of causing harm.” Whitley,

475 U.S. at 320–21, 106 S. Ct. 1078 (internal

quotation marks omitted); see Williams, 77 F.3d

at 765. Because direct evidence of motive or

intent may be hard to come by, the Supreme Court

in Whitley v. Albers set out four factors from

which “we may infer the existence of th[e]

subjective state of mind required for an Eighth

Amendment violation.” Brooks, 924 F.3d at 116

(alteration in original) (internal quotation

marks omitted). Those factors are: (1) “the

need for the application of force”; (2) “the

relationship between the need and the amount of

force that was used”; (3) the extent of any

reasonably perceived threat that the application

of force was intended to quell; and (4) “any

efforts made to temper the severity of a forceful

response.” Iko, 535 F.3d at 239 (quoting

Whitley, 475 U.S. at 321, 106 S. Ct. 1078). If a

reasonable jury could find, based on inferences

19

drawn under the Whitley factors or other

evidence, that correctional officers used force

maliciously to punish or retaliate against an

inmate, then summary judgment is not appropriate.

See Brooks, 924 F.3d at 116.

Dean, 984 F.3d at 302-03. The Fourth Circuit has made clear that

“this subjective standard is unlike the ‘objective

reasonableness’ test we apply under the Fourth Amendment: The

question is not whether a reasonable officer could have used

force to maintain discipline, but whether these particular

officers did use force for that reason.” Brooks, 924 F.3d at

113; see also Orem v. Rephann, 523 F.3d 442, 447 (4th Cir. 2008)

(discussing importance of motive to excessive force claims under

Whitley).

According to the Fourth Circuit, “corrections officer cross

the line into an impermissible motive — using force ‘maliciously’

and for the ‘very purpose of causing harm,’ . . . — when they

inflict pain not to induce compliance, but to punish an inmate

for intransigence or to retaliate for insubordination.” Brooks,

924 F.3d at 113 (quoting Whitley, 475 U.S. at 320-21).

The defense of “[q]ualified immunity shields a government

official from liability for civil monetary damages if the

officer’s ‘conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.’” Wiley v. Doory, 14 F.3d 993, 995 (4th Cir. 1994);

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In

20

Saucier v. Katz, 533 U.S. 194, 195 (2001), the Supreme Court laid

out a two-step process for resolving the qualified immunity

claims of government officials. First, a court must decide

whether the facts that a plaintiff has alleged or shown make out

a violation of a constitutional right. See id. at 201. Second,

a court must decide whether the right at issue was “clearly

established” at the time of defendant’s alleged misconduct. See

id.

A clearly established right is one that is

“sufficiently clear that every reasonable official

would have understood that what he is doing violates

that right.” Reichle v. Howards, 566 U.S. ––––, ––––,

132 S. Ct. 2088, 2093, 182 L. Ed.2d 985 (2012)

(internal quotation marks and alteration omitted). “We

do not require a case directly on point, but existing

precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v.

al–Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L.

Ed.2d 1149 (2011). Put simply, qualified immunity

protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341, 106 S. Ct. 1092, 89 L. Ed.2d 271 (1986).

“We have repeatedly told courts . . . not to

define clearly established law at a high level of

generality.” al–Kidd, supra, at 742, 131 S. Ct. 2074.

The dispositive question is “whether the violative

nature of particular conduct is clearly established.”

Ibid. (emphasis added). This inquiry “‘must be

undertaken in light of the specific context of the

case, not as a broad general proposition.’” Brosseau

v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L.

Ed.2d 583 (2004) (per curiam ) (quoting Saucier v.

Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed.2d

272 (2001)).

Mullenix v. Luna, 577 U.S. 7, 11-12 (2015). “Because the focus

is on whether the officer had fair notice that her conduct was

21

unlawful, reasonableness is judged against the backdrop of the

law at the time of the conduct.” Brosseau v. Haugen, 543 U.S.

194, 198 (2004). In addition, the Supreme Court “has ‘repeatedly

told courts . . . not to define clearly established law at a

high level of generality.’” Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (internal citations and quotations omitted).

According to the Court:

“Of course, general statements of the law are not

inherently incapable of giving fair and clear warning

to officers.” White, 580 U.S., at ––––, 137 S. Ct., at

552 (internal quotation marks omitted). . . . Where

constitutional guidelines seem inapplicable or too

remote, it does not suffice for a court simply to state

that an officer may not use unreasonable and excessive

force, deny qualified immunity, and then remit the case

for a trial on the question of reasonableness. An

officer “cannot be said to have violated a clearly

established right unless the right's contours were

sufficiently definite that any reasonable official in

the defendant's shoes would have understood that he was

violating it.” Plumhoff v. Rickard, 572 U.S. ––––,

––––, 134 S. Ct. 2012, 2023, 188 L. Ed.2d 1056 (2014).

That is a necessary part of the qualified-immunity

standard. . . .

Id. at 1153.

Whether a right is clearly established is a question of law.

See Ray v. Roane, 948 F.3d 222, 228 (4th Cir. 2020). In deciding

it, this court is to consider the Supreme Court, Fourth Circuit,

and Supreme Court of Appeals of West Virginia precedent first.

See id. at 229; see also Wilson v. Prince George’s Cty.,

Maryland, 893 F.3d 213, 221 (4th Cir. 2018) (“To determine

whether a right is clearly established, we assess whether the law

22

has been authoritatively decided by the Supreme Court, the

appropriate United States Court of Appeals, or the highest court

of the state.”) (internal quotation and citation omitted).

Courts may exercise discretion in deciding which of the two

Saucier prongs “should be addressed first in light of the

circumstances in the particular case at hand.” Pearson v.

Callahan, 555 U.S. 223, 236 (2009). “In the Fourth Circuit, we

have a split burden of proof for the qualified-immunity defense.

The plaintiff bears the burden on the first prong, and the

officer bears the burden on the second prong.” Stanton v.

Elliott, 25 F.4th Cir. 227, 233 (4th Cir. 2022) (citing Henry v.

Purnell, 501 F.3d 374, 377-78 & n.4 (4th Cir. 2007)).

Pennington contends that Lt. Murphy used excessive force

against her when he placed a handcuff on her left wrist and

refused to loosen it. The court exercises its discretion to

proceed directly to the second prong of the qualified immunity

analysis and considers whether the law was such that Lt. Murphy

would have known his failure to loosen Pennington’s handcuffs

violated the Eighth Amendment. “To resolve whether the law is

clearly established, a court must initially ascertain the

‘circumstances of the case.” Brown v. Elliott, 876 F.3d 637, 641

(4th Cir. 2017) (internal quotations and citation omitted); see

also District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)

(“We start by defining the circumstances with which the officers

23

were confronted.”) (cleaned up). In so doing, the court is

cognizant of “the importance of drawing inferences in favor of

the nonmovant” while “tak[ing] care not to define a case’s

‘context’ in a manner that imports genuinely disputed factual

propositions.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)

(quoting Brousseau v. Haugen, 543 U.S. 194, 195, 198 (2004)).

Therefore, defined at the level of specificity required by

the Supreme Court and drawing reasonable inferences in favor of

plaintiff, the court must determine whether it was clearly

established law in December 10, 2019, that Lt. Murphy’s

handcuffing of Pennington and refusal to loosen Pennington’s

handcuff was an excessive use of force where: (1) there is no

dispute that Pennington should have been handcuffed; (2)

Pennington admitted that she could move her wrist in the tight

handcuff; and (3) when she complained about the tightness of the

cuff, Lt. Murphy checked it and determined that it was not too

tight.

The undisputed facts are that at the time of the handcuffing

incident, Pennington was a transported prisoner and, accordingly,

handcuffing her was appropriate. See Plaintiff’s Response to

Defendants’ Motion for Summary Judgment at p. 12 (“Plaintiff

recognizes that she had to be restrained.”) (ECF No. 45). For

purposes of this motion, the court accepts as true Pennington’s

testimony that the handcuff was too tight and that she suffered

24

an injury as a result. However, other than Pennington’s

speculation, there is no evidence that Lt. Murphy intentionally

placed the handcuff on her left wrist too tightly. Although

Pennington’s brief states that Lt. Murphy’s handcuffing of her

was “accompanied by malicious, dangerous and degrading language

and insults such as calling Plaintiff a whore, bitch and liar[,]”

see id., this assertion is not supported by the record in this

case. Most of the “degrading” language of which Pennington

complains did not “accompan[y]” the handcuffing incident. First,

the allegation that Lt. Murphy called her a whore occurred

approximately a month and a half prior to the hearing on December

10, 2019. As for the allegation that Lt. Murphy called her a

bitch on that day, Pennington’s equivocal testimony on this point

contrasts with the definitive character of her brief. According

to her deposition testimony, Pennington was not sure that Lt.

Murphy called her a bitch. See ECF No. (“I think he even said

“bitch” at some point. I don’t - - I mean, I know it was a lot.

. . .”). This is not sufficient “to generate a genuine dispute

of fact precluding summary judgment.” Long v. Beres, Civil

Action No. 3:10CV532, 2013 WL 139342, at *5 (E.D. Va. Jan. 10,

2013); see also Fallin v. Mayor of Baltimore, Civil Case No.

1:19-cv-01500-JMC, 2021 WL 3725378, at *8 (D. Md. Aug. 23, 2021)

(“[W]here there exists credible evidence in the record,

speculation to the contrary will not create a genuine dispute of

25

material fact to preclude summary judgment.”). Likewise,

Pennington’s testimony that Lt. Murphy called her a “bitch” on

December 18, 2019, is not helpful in advancing her claim that Lt.

Murphy’s use of excessive force against her over a week earlier

was sadistic and wanton because it occurred after the handcuffing

incident.2

These facts, even viewed in the light most favorable to

Pennington, do not support an inference that Lt. Murphy applied

the handcuffs to Plaintiff's wrist for the malicious and sadistic

purpose of causing harm. When Pennington asked Lt. Murphy to

remove her handcuffs so she could take off her coat because she

was hot, he did so. After allowing Pennington to remove her coat

to address her discomfort, Lt. Murphy handcuffed Pennington

again. Pennington did not complain that both handcuffs were too

tight; only the left one. And, according to her, when she

complained to Lt. Murphy that it was too tight, he checked the

handcuff. Although he disagreed with her that it was too tight

and refused to loosen it, there is insufficient evidence to infer

that his refusal to loosen the handcuff was “malicious” or for

the “very purpose of causing harm[.]” Brooks, 924 F.3d at 113.

No reasonable jury could find, based on inferences drawn under

2 Those comments might, however, have led a reasonable jury

to infer that the force inflicted on Pennington on December 18,

2019, was in retaliation for her earlier complaints against Lt.

Murphy. However, Pennington abandoned her claims arising out of

the events on December 18, 2019.

26

the Whitley factors or other evidence, that Lt. Murphy’s refusal

to loosen Pennington’s handcuffs was done “maliciously and

sadistically for the very purpose of causing harm.” Whitley, 475

U.S. at 320-21.3

The court has not located nor have the parties pointed to a

single case that would have put Lt. Murphy on notice that his

refusal to loosen Pennington’s handcuff would violate her

constitutional rights. Certainly, Pennington had a clearly

established right to be free from the excessive use of force.

However, this does not end the inquiry. Rather, the court must

ask whether Lt. Murphy had reason to know that, under the

circumstances of this particular case, his failure to loosen

Pennington’s handcuffs could be considered an excessive use of

force in violation of the Eighth Amendment. See Wesby, 138 S.

Ct. at 591 (“Tellingly, neither the panel majority nor the

[plaintiffs] have identified a single precedent—much less a

controlling case or robust consensus of case—finding a Fourth

Amendment violation under similar circumstances. . . . The

3 Pennington admits that “Murphy’s actions of alleged

excessive force could seem reasonable and/or an accident if the

actions were not accompanied by malicious, dangerous and

degrading language and insults such as calling Plaintiff a whore,

bitch and liar.” ECF No. 45 at 12. Other than her allegations

concerning what Lt. Murphy allegedly said to her on these three

occasions, Pennington offers no other evidence to show that, in

refusing to loosen her handcuff, Lt. Murphy “acted with a

sufficiently culpable state of mind.” Dean v. Jones, 984 F.3d

295, 302 (4th Cir. 2021).

27

officers were thus entitled to qualified immunity.”) (internal

citation and quotation omitted).

In 2018, the United States Court of Appeals for the Eighth

Circuit considered a prisoner’s claim of excessive force based

upon a prison official’s refusal to loosen handcuffs. See

Stevenson v. Cordova, 773 F. App’x 939, 946 (10th Cir. 2018). In

affirming the district court’s grant of summary judgment in favor

of the prison official, the Stevenson court concluded a

prisoner’s Eighth Amendment rights were not clearly established

in this context. See id. In so concluding, the court was

dismissive of the plaintiff’s reliance on cases “governed by the

Fourth rather than the Eighth Amendment.” Id.

[W]e have not found an Eighth Amendment case with

sufficiently analogous facts, in this circuit or

otherwise, that would have put [the prison official] on

notice that his inaction amounted to cruel and unusual

punishment. Our cases involving a use of force against

a prisoner who was restrained involved significantly

greater force than the refusal to loosen handcuffs

alleged here. See Mitchell v. Maynard, 80 F.3d 1433,

1439, 1440-41 (10th Cir. 1996) (holding jury could find

prison guards acted maliciously and sadistically by

stripping an inmate, placing him in wrist, ankle, and

belly chains, picking him up by his elbows and forcing

him to run across a gravel yard, then kicking him when

he fell while yelling racial epithets); Miller v.

Glanz, 948 F.2d 1562, 1564, 1567 (10th Cir. 1991)

(holding allegations sufficient to state an Eighth

Amendment claim where officers kicked, beat, and choked

a prisoner who was handcuffed behind his back and whose

ankles were also restrained).

Thus, Williams was entitled to qualified immunity

on Stevenson's refusal-to-loosen claim because the law

with respect to his Eighth Amendment rights was not

clearly established.

28

Id.; see also Grissom v. Bell, Case No. 20-3156-JWB, 2022 WL

4534620, at *9 (D. Kan. Sept. 28, 2022) (holding that officers

were entitled to qualified immunity on “prisoner’s refusal to use

larger handcuffs claim because the law with respect to his Eighth

Amendment claim was not clearly established”).

In this case, there is no case law from the Supreme Court,

the United States Court of Appeals for the Fourth Circuit, or

West Virginia’s highest court finding an Eighth Amendment

violation under facts similar to those alleged here–-a refusal to

loosen handcuffs where the officer checked the handcuffs and

determined they were not too tight. There is also not a “robust

consensus” of case law from other jurisdictions that the alleged

conduct was unlawful, and there is at least one case pointing the

other way.

The cases relied upon by Pennington are clearly

distinguishable. In Hill v. Crum, the evidence tending to show

that the officers were inflicting pain maliciously and for an

improper purpose was much stronger. 727 F.3d 312 (4th Cir.

2013). The court summarized the facts of that case as follows:

Without provocation, Crum then assaulted Hill, punching

him in the abdomen and ribs, and elbowing the side of

his head. During the assault, Crum shouted at Hill,

“break another sprinkler, I’ll break your neck.” . . .

The assault lasted about two minutes before Crum moved

Hill to a holding cell, knocking his head against a

gate on the way out. The prison staff kept Hill in

ambulatory restraints for seventeen hours following the

assault.”

29

Id. at 315. Ultimately, however, the court found that the

officer was entitled to qualified immunity because the right he

sought to avail himself of was not clearly established at the

time of the alleged assault. See id. at 325.

Another case cited by plaintiff, E.W. by and through T.W. v.

Dolgos, 884 F.3d 172 (4th Cir. 2018), is similarly unhelpful. In

that case, Dolgos, a deputy sheriff and school resource officer,

arrested a ten-year-old girl and placed her in handcuffs after

the girl was involved in an altercation on a bus. See id. at

177. Dolgos removed the handcuffs after “about two minutes” upon

deciding not to arrest the child. Id. The child, by and through

her mother, filed suit against Dolgos alleging that a violation

of her Fourth Amendment rights under 42 U.S.C. § 1983. See id.

The district court granted the Dolgos’s motion for summary

judgment, concluding that her actions did not amount to excessive

force. See id. at 178. On appeal, the United States Court of

Appeals for the Fourth Circuit affirmed, but for a different

reason. See id. at 187. The court found that the handcuffing

amounted to excessive force. See id. at 185. Nevertheless, the

court affirmed the district court’s grant of summary judgment

because it found that there was no authority that would have

given the officers notice that handcuffing in that situation was

unconstitutional. See id. at 185-87. The only similarity

between this case and Dolgos is that handcuffing was involved in

30

both cases. Dolgos was a Fourth Amendment case, this case arises

under the Eighth Amendment. The plaintiff in Dolgos was a ten-

year-old child while Pennington was a sentenced prisoner. And,

ultimately, the court concluded that E.W.’s right to be free from

being handcuffed was not clearly established. Dolgos, therefore,

does not serve to show that the right at issue in this case was

clearly established.

“[Q]ualified immunity protects actions in the ‘hazy border

between excessive and acceptable force.’” Mullenix v. Luna, 577

U.S. 7, 18 (2015) (quoting Brosseau v. Haugen, 543 U.S. 194, 201

(2004)). “Precedent involving similar facts can help move a case

beyond the otherwise hazy borders between excessive and

acceptable force and thereby provide an officer notice that a

specific use of force is unlawful.” Kisela, 138 S. Ct. at 1153.

Given the lack of precedent putting Murphy on notice that his

specific conduct was unlawful, he is entitled to qualified

immunity.

B. Monell claim against the Mercer County Commission

The Mercer County Commission asserts that Count III should

be dismissed as to it arguing that plaintiff fails to plausibly

allege a claim under Monell v. Department of Social Services,

436 U.S. 658 (1978). “[U]nder Monell, a municipality is liable

only for its own illegal acts.” Owens v. Baltimore City State’s

31

Attorneys Office, 767 F.3d 379, 402 (4th Cir. 2014) (citations

omitted) (emphasis in original).

Pursuant to this standard, a municipality is liable

under § 1983 if it follows a custom, policy, or

practice by which local officials violate a plaintiff’s

constitutional rights. Monell, 436 U.S. at 694, 98 S.

Ct. 2018. Only if a municipality subscribes to a

custom, policy, or practice can it be said to have

committed an independent act, the sine qua non of

Monell liability.

Id. A municipal policy or custom may be established

(1) through an express policy, such as a written

ordinance or regulation; (2) through the decisions of a

person with final policymaking authority; (3) through

an omission, such as a failure to properly train

officers that manifests 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. 1999) (internal

citation and quotations omitted).

In this case, plaintiff alleges that the violation of

Pennington’s constitutional rights was “caused by the

implementation of customs, policies, or official acts of the

Mercer County Commission[.]” ECF No. 1 at ¶ 26. In responding

to defendants’ motion for summary judgment, however, Pennington

never points to any specific custom, policy, or official act of

the Mercer County Commission. In fact, she spends the majority

of her brief arguing for respondeat superior liability against

the Mercer County Commission. However, “[a]s municipal

government entities, the county commissions cannot be held liable

32

for the alleged actions of their employees under a theory of

Respondeat Superior.” Launi v. Hampshire Cnty Prosecuting

Attorney’s Office, 480 F. Supp. 3d 724, 732 (N.D.W. Va. 2020);

see also Purcell v. City of Greensboro, No. 1:11CV577, 2012 WL

1718763, at *2 (M.D.N.C. May 14, 2012) (“[A] municipality cannot

be held liable under § 1983 based on a respondeat superior

theory.”). Therefore, the Mercer County Commission is entitled

to summary judgment in its favor “if [for] no other reason than

that they rest on the theory of respondeat superior.” Hussain v.

University of Md. Med. Sys. Corp., No. 1:08-cv-1658, 2010 WL

2651287, at *1 (D. Md. June 30, 2010).

In any event, plaintiff fails to present any evidence to

support a reasonable conclusion that her alleged injuries were

the result of any Mercer County Commission policy, express or

otherwise. Nor has she presented any evidence that an omission

on the part of the Mercer County Commission manifests deliberate

indifference to the rights of citizens. She also has not put

forth any evidence that would support a condonation theory of

liability against the Mercer County Commission. Because

plaintiff fails to show any involvement (much less the necessary

involvement) on the part of the Mercer County Commission, her

Monell claim fails.

33

For all these reasons, the court granted the Mercer County

Commission’s motion for summary judgment as to plaintiff's Monell

claim.

C. Assault and Battery claims

In West Virginia, a person is liable for battery if: “(a) he

acts intending to cause a harmful or offensive contact with the

person of the other or a third person, or an imminent

apprehension of such a contact, and (b) a harmful contact with

the person of the other directly or indirectly results.” Weigle

v. Pifer, 139 F. Supp. 3d 760, 776 (S.D.W. Va. 2015) (quoting

Restatement (Second) of Torts § 13 (1965)). A person is liable

for assault if: “(a) he acts intending to cause a harmful or

offensive contact with the person of the other or a third person,

or an imminent apprehension of such a contact, and (b) the other

is thereby put in such imminent apprehension.” Id. “An activity

that would otherwise subject a person to liability in tort for

assault and battery, however, does not constitute tortious

conduct if the actor is privileged to engage in such conduct.”

Hutchinson v. W. Va. State Police, 731 F. Supp.2d 521, 547

(S.D.W. Va. 2010).

In this case, plaintiff admits that she should have been

handcuffed. See Plaintiff’s Response to Defendants’ Motion for

Summary Judgment at p. 12 (“Plaintiff recognizes that she had to

be restrained.”) (ECF No. 45). Therefore, Lt. Murphy was

34

privileged to use the reasonable force he used in applying her

handcuffs.4

Murphy is also entitled to summary judgment on Pennington’s

assault claim because she has not adequately alleged, much less

shown, that an assault occurred here. “Although it is possible

to have two separately viable claims wherein a completed assault

is followed by a discrete battery, Plaintiff has not alleged that

here. Rather, Plaintiff’s allegations are all based upon his

assertion that an offensive contact actually occurred, which is a

battery.” Dial v. Higginbotham, CIVIL ACTION NO. 3:22-0316, 2023

4 Lt. Murphy is also likely entitled to immunity under West

Virginia law.

[U]nder West Virginia law, an employee of a

political subdivision is immune from liability

unless: “(1) [the employee’s] acts or omissions

were manifestly outside the scope of employment

or official responsibilities; (2) [the

employee’s] acts or omissions were with malicious

purpose, in bad faith, or in a wanton or reckless

manner; or (3) [l]iability is expressly imposed

upon the employee by a provision of” West

Virginia law. W. Va. Code § 29-12A-5(b). The

West Virginia Supreme Court of Appeals has

explained that West Virginia’s “approach to

matters concerning immunity historically has

followed federal law.” City of St. Albans v.

Botkins, 719 S.E.2d 863, 868 (W. Va. 2011).

White v. Thompson, CIVIL ACTION NO. 2:21-cv-00581, 2023 WL

2541965, at *5 (S.D.W. Va. Mar. 16, 2023) (Goodwin, J.). In this

case, Pennington maintains that Lt. Murphy was acting within the

scope of his employment. In addition, as the discussion

surrounding the § 1983 claim against Murphy makes clear, there is

insufficient evidence to show that Murphy was acting with a

malicious purpose, in bad faith, or in a wanton or reckless

manner. Nor is there any provision under West Virginia law that

expressly imposes liability on Lt. Murphy.

35

WL 2434293, at *6 (S.D.W. Va. Mar. 9, 2023) (dismissing assault

claim but finding that plaintiff adequately alleged a battery);

see also Weigle v. Pifer, 139 F. Supp.3d 760, 776 (S.D.W. Va.

2015) (recognizing that separate claims for assault and battery

can exist, but finding that plaintiff’s claim of assault was

superfluous where the “officers did not merely threaten offensive

contact with [the plaintiff]—they forcibly arrested him”). In

this case, Pennington’s “assault claim is entirely subsumed by

h[er] claim for battery.” Weigle, 139 F. Supp.3d at 776.

D. Negligent Supervision

Under West Virginia law, a negligent supervision claim “must

rest upon a showing that the employer failed to properly

supervise its employees and, as a result, those employees caused

proximate injury to another.” Ferrell v. Santander Consumer USA,

Inc., 859 F. Supp. 2d 812, 817-18 (S.D.W. Va. 2012). “A direct

act or omission by a principal is required to hold it primarily

liable under a negligent supervision theory.” Bourne v. Mapother

& Mapother, P.S.C., 998 F. Supp. 2d 495, 506 (S.D.W. Va. 2014).

A failure to supervise claim requires an independent finding of

negligence on the part of a supervised employee.” Id. According

to the Supreme Court of Appeals of West Virginia, the “current

definition of this cause of action requires, as a predicate

prerequisite of a negligent supervision claim against an

employer, underlying conduct of the supervised employee that also

36

is negligent.” C.C. v. Harrison Cty. Bd. of Educ., 859 S.E. 2d

762, 774 (W. Va. 2021). In C.C., the court affirmed the circuit

court’s dismissal of a negligent supervision claim where “all of

the acts alleged to have been committed by the Assistant

Principal were comprised of intentional conduct, [and] the

circuit court correctly ruled that the Petitioners had not made

the requisite predicate showing of the Assistant Principal’s

negligence to support a claim of negligent supervision by the

Board”). Id. at 775.

In this case, the allegedly wrongful conduct on the part of

Lt. Murphy was intentional conduct, not negligence. Therefore,

it cannot form the basis of a negligent supervision claim. See

Pajak v. Under Armour, Inc., Civil Action No. 1:19-CV-160, 2023

WL 2726430, at *12-13 (N.D.W. Va. Mar. 30, 2023) (granting

summary judgment on negligent supervision claim where conduct of

supervisee was intentional); Braley v. Thompson, CIVIL ACTION NO.

2:22-cv-00534, 2023 WL 2351881, at *4 (S.D.W. Va. Mar. 3, 2023)

(dismissing negligent supervision claim where “all of the

Deputies’ alleged wrongful conduct is intentional and therefore

cannot form the basis of a negligent supervision claim”)

(Goodwin, J.); Gold v. Joyce, CIVIL ACTION NO. 2:21-cv-00150,

2021 WL 2593804, at *10 (S.D.W. Va. June 24, 2021) (dismissing

plaintiff’s negligent supervision claim where plaintiff alleged

only intentional conduct) (Johnston, C.J.); Carroll v. USAA

37

Savings Bank, CIVIL ACTION NO. 3:16-11120, 2017 WL 811491, at *3

(S.D.W. Va. Mar. 1, 2017) (“As Plaintiff alleges only intentional

conduct by Defendant’s employees, Plaintiff fails to assert

underlying negligence in the complaint. Without allegations of

underlying employee negligence, a separate claim for negligent

supervision fails as a matter of law.) (Chambers, C.J.).

However, even if intentional conduct could form the basis

for a negligent supervision claim, Pennington has failed to show

that the Mercer County Commission or Sheriff Bailey negligently

failed to supervise Lt. Murphy. There is no evidence that

defendants were aware of prior instances of excessive force by

Murphy and failed to take action. In fact, Murphy testified that

this was the first time in his career that someone claimed that

he had used excessive force against them. See Murphy Dep. at 26.

Joe Parks confirmed that Lt. Murphy had “no record of use of

force.” Parks Aff. at ¶ 17. Therefore, Pennington has failed to

adduce any evidence that defendants were negligent in their

supervision of Lt. Murphy. See Jafary v. City of Beckley, CIVIL

ACTION NO. 5:20-CV-00647, 2021 WL 6125831, at *9 (S.D.W. Va. Dec.

28, 2021) (granting summary judgment on negligent supervision

claim where defendant officers had “no complaints like

[plaintiff]’s listed in either of their employee files”)

(Goodwin, J.).

38

Conclusion

Based on the foregoing, defendants’ motion for summary

judgment was GRANTED.

The Clerk is directed to send copies of this Memorandum

Opinion to all counsel of record.

It is SO ORDERED this 23rd day of May, 2023.

BNTER:

Rautd A Dols

David A. Faber

Senior United States District Judge

39