# Pennington v. Mercer County Commission

> District Court, S.D. West Virginia · May 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10730995

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** May 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10730995

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10730995. Public record. Not legal advice.