Nabors v. Tincher

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BECKLEY

EUGENE NABORS,

Plaintiff,

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

SR. TROOPER J.L. TINCHER,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending is Defendant Sr. Trooper J.L. Tincher’s Motion for Summary Judgment,

filed August 14, 2023. [ECF 54]. Plaintiff Eugene Nabors responded on August 28, 2023. [ECF

56]. Trooper Tincher replied on September 5, 2023. [ECF 59]. The matter is ready for adjudication.

I.

On February 11, 2020, Greenbrier East High School and Woodrow Wilson High

School were scheduled to play in a regular season high school girls’ basketball game at Greenbrier

East. [ECF 14 ¶ 6]. Plaintiff Eugene Nabors is an assistant coach for the Woodrow Wilson High

School girls’ basketball team. [Id. ¶ 9]. Defendant Senior Trooper J.L. Tincher was one of three

state troopers assigned to provide community policing for the game. [ECF 55 at 2]. Also in

attendance at the basketball game was Governor Jim Justice, the head coach for the Greenbrier

East High School girls’ basketball team. [ECF 56 at 2].

Throughout the game Mr. Nabors heard the Greenbrier East fans “yelling racial

slurs and epithets” at Woodrow Wilson’s players and coaching staff. [ECF 14 ¶ 13]. During a

timeout at the beginning of the fourth quarter, Mr. Nabors walked to the baseline to discuss the

misconduct with two Woodrow Wilson administrators, namely, Principal Rocky Powell and

Athletic Director J.T. Payne. Steve Damon and one other Greenbrier East fan interrupted Mr.

Nabors’ conversation with the administrators and tried to instigate a confrontation. [Id. ¶ 16]. Mr.

Nabors’ adult son Donte Nabors exited the stands and approached the group. [Id. ¶ 18]. Trooper

Tincher and Sgt. D.P. White simultaneously did likewise. [Id.]. Mr. Nabors attempted to usher

Donte Nabors back to the sideline; Trooper Tincher followed them.1 [Id. ¶ 19].

Upon reaching the sideline, Donte Nabors threw a chair from the Woodrow Wilson

bench. [ECF 55 at 3]. The chair was not thrown onto the playing surface or toward the baseline

where the initial encounter occurred. It was thrown in apparent frustration in the opposite direction

of the encounter moments earlier at the baseline. Seconds later, Trooper Tincher is seen speaking

with Mr. Nabors at the sideline. Donte Nabors is not attempting to flee and can be seen looking on

while his father and Trooper Tincher are engaged in a discussion, with Trooper Tincher moving

Mr. Nabors backward toward his onlooking son. Mr. Nabors is positioned at this point between

his son and Trooper Tincher for these few seconds, in what appears to be an attempt to deescalate

the situation and, perhaps, prevent Trooper Tincher from reaching Donte Nabors.

The video next shows Trooper Tincher suddenly and forcefully -- and, according

to Mr. Nabors, without justification -- push Mr. Nabors backward vigorously, knocking him from

his feet and causing him to fall backward, resulting in him sustaining a broken arm and back injury.

1 Mr. Nabors and Trooper Tincher’s accounts conflict at points. [ECF 55-56]. “To the

extent the video depicts material facts of this case, [the Court] review[s] those facts as they are

depicted in the video.” Hupp v. Cook, 931 F.3d 307, 314 n.3 (4th Cir. 2019) (citing Scott v. Harris,

550 U.S. 372, 380–81 (2007)). “Where, however, the video ‘does not “clearly” or “blatantly”

contradict’ [Mr. Nabors’] version of the facts, we adopt [his] version in reviewing the grant of

summary judgment to Trooper [Tincher].” Id. (citing Witt v. W. Va. State Police, Troop 2, 633

F.3d 272, 276–77 (4th Cir. 2011) (quoting Scott, 550 U.S. at 378)).

[ECF 14 ¶ 21]. Mr. Nabors does not remember what Trooper Tincher said prior to the push but did

not recall it including a command to move out of Trooper Tincher’s way. [ECF 54-2 at 135-36].2

At the time of the incident, Trooper Tincher was 5’11” or 6’ tall and weighed 190 pounds; Mr.

Nabors frame was considerably more substantial, at 6’2” tall and weighing 210 pounds. [ECF 54-

1 at 185, 54-2 at 130].

Following the push and sustaining the broken arm and back injury, Mr. Nabors was

arrested and handcuffed, escorted out of the gymnasium, and transported to the Lewisburg

detachment of the West Virginia State Police. [ECF 14 ¶ 22 and 24]. Mr. Nabors was the only

individual arrested that night. [ECF 54-4, 54-3 at 61-62]. Sgt. White asserted they intended to

“charge [Mr. Nabors] that night, have him arraigned by the magistrate, and furthermore, to

complete the requirements of response to resistance or aggression policy and have him medically

screened.” [ECF 54-3 at 63].

Captain Drew Pendelton, who headed Governor Justice’s security detail,

intervened. Upon arrival at the Lewisburg detachment that evening, Captain Pendelton spoke to

Sgt. White regarding Mr. Nabors. [Id. at 25]. Captain Pendelton instructed Sgt. White to issue Mr.

Nabors a citation for obstructing, after which Sgt. White and Trooper Tincher returned Mr. Nabors

to Greenbrier East High School. [Id.]. This appears to have been in response to the refusal by the

2 Again, this is disputed by Trooper Tincher, who testified he instructed Mr. Nabors to

move out of his way. [ECF 55 at 3]. After Mr. Nabors failed to comply with the verbal command,

Trooper Tincher states it was only then he pushed Mr. Nabors, deeming it essential to regaining

his freedom of movement from Mr. Nabors in order to detain Donte Nabors. [Id.]. Binding

precedent requires the Court to disregard these assertions. See, e.g., Aleman v. City of Charlotte,

80 F.4th 264, 293 (4th Cir. 2023) (“[A]t this stage of the proceedings, [the law enforcement

officer’s] account cannot be credited, nor can inaccuracies in his account be excused as innocent

misperceptions . . . .”); Franklin v. City of Charlotte, 64 F.4th 519, 529–30 (4th Cir. 2023) (“[W]e

may not credit defendant's evidence, weigh the evidence, or resolve factual disputes in the

defendant[’s] favor.”) (quoting Hensley ex rel. v. Price, 876 F.3d 573, 579 (4th Cir. 2017)).

Woodrow Wilson girls’ basketball team to leave until Mr. Nabors returned. [Id. at 25 and 100].

On February 12, 2020, Trooper Tincher filed two additional criminal complaints against Mr.

Damon and Donte Nabors. Mr. Damon was cited for disorderly conduct and Donte Nabors for

both disorderly conduct and obstructing. [ECF 54-7 at 22-23, 27-28].

On February 2, 2022, Mr. Nabors instituted this action against Trooper Tincher and

Sgt. White. [ECF 1]. On August 14, 2023, Trooper Tincher moved for summary judgment. [ECF

54]. On August 28, 2023, Mr. Nabors responded [ECF 56], followed by Trooper Tincher’s

September 5, 2023, reply. [ECF 59].

Trooper Tincher asserts (1) the doctrine of judicial estoppel bars Mr. Nabors’

claims, (2) he is entitled to qualified immunity, (3) his use of force was reasonable under the Fourth

Amendment, (4) he was privileged as a law enforcement officer to use the force involved, and (5)

Mr. Nabors has failed to show Trooper Tincher committed an assault and battery.

II.

A. Governing Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

is proper where “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 burden is on the

nonmoving party to show that there is a genuine issue of material fact for trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). “The nonmoving party must do so by offering ‘sufficient

proof in the form of admissible evidence’ rather than relying solely on the allegations of her

pleadings.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting

Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)).

The Court must “view the evidence in the light most favorable to the [nonmoving]

party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal quotation marks and citation omitted);

Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018). “The court . . .

cannot weigh the evidence or make credibility determinations.” Jacobs v. N.C. Admin. Off. of the

Courts, 780 F.3d 562, 569 (4th Cir. 2015); see Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th

Cir. 2017). In general, if “an issue as to a material fact cannot be resolved without observation of

the demeanor of witnesses in order to evaluate their credibility, summary judgment is not

appropriate.” Fed. R. Civ. P. 56 advisory committee’s note to 1963 amendment.

B. Judicial Estoppel

Judicial estoppel was “developed to prevent a party from taking a position in a

judicial proceeding that is inconsistent with a stance previously taken in court.” Zinkand v. Brown,

478 F.3d 634, 638 (4th Cir. 2007); John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29

(4th Cir. 1995) (“The vice which judicial estoppel protects is the cold manipulation of the courts

to the detriment of the public interest.”). Our Court of Appeals has more recently noted the

Supreme Court’s observations as follows:

As the Supreme Court has explained, judicial estoppel is an equitable doctrine,

designed to “protect the integrity of the judicial process by prohibiting parties from

deliberately changing positions according to the exigencies of the moment.” New

Hampshire v. Maine, 532 U.S. 742, 749–50, 121 S.Ct. 1808, 149 L.Ed.2d 968

(2001) (internal quotation marks omitted). Typically, judicial estoppel is reserved

for cases where the party to be estopped – here, [plaintiff] – has taken a later

position that is “clearly inconsistent” with her earlier one; has persuaded a court to

adopt the earlier position, creating a perception that “either the first or the second

court was misled”; and would “derive an unfair advantage or impose an unfair

detriment on the opposing party if not estopped.” Id. at 750–51, 121 S.Ct. 1808

(internal quotation marks omitted). Finally, and central to this case, there is the

longstanding principle that judicial estoppel applies only when “the party who is

alleged to be estopped intentionally misled the court to gain unfair advantage,” and

not when “a party's prior position was based on inadvertence or mistake.” John S.

Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir. 1995) (emphasis

added) (internal quotation marks omitted); accord New Hampshire, 532 U.S. at

753, 121 S.Ct. 1808 (quoting John S. Clark, 65 F.3d at 29).

Martineau v. Wier, 934 F.3d 385, 393 (4th Cir. 2019). Importantly, the doctrine is “applied with

caution and only in the narrowest of circumstances.” Gilliam v. Sealey, 932 F.3d 216, 233 (4th Cir.

2019) (cleaned up).

Trooper Tincher’s judicial estoppel contention relies upon the stipulation of facts

contained in the Resolution of Charges Mr. Nabors’ signed in a related criminal proceeding. The

pertinent language reads as follows:

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

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

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

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

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

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

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

perceived threat of violence involving the parties.

[ECF 54-5 at 4] (emphasis added). Trooper Tincher contends this excerpt “clearly and directly”

contradicts the allegations of the Amended Complaint. [ECF 55 at 8].

Prior to reaching the judicial estoppel contention, a preliminary matter is

noteworthy, despite the parties’ failure to raise it. The language used in the Resolution of Charges

-- such as “reasonably pushed defendant Eugene Nabors” -- bears a striking resemblance to a sub

rosa release and dismissal agreement. While the Court need not reach this issue, such agreements

are subject to considerable scrutiny. See Town of Newton v. Rumery, 480 U.S. 386, 392 (1987)

(“Most importantly, the Court of Appeals did not consider the wide variety of factual situations

that can result in release-dismissal agreements. Thus, although we agree that in some cases these

agreements may infringe important interests of the criminal defendant and of society as a whole,

we do not believe that the mere possibility of harm to these interests calls for a per se rule.”). Our

Court of Appeals has additionally observed as follows respecting Rumery:

In supplying the Court's fifth vote, Justice O'Connor noted that “[m]any factors”

might bear on whether a release-dismissal agreement is voluntary and not the

product of prosecutorial overreaching:

The knowledge and experience of the criminal defendant and the

circumstances of the execution of the release, including,

importantly, whether the defendant was counseled, are clearly

relevant. The nature of the criminal charges that are pending is also

important, for the greater the charge, the greater the coercive effect.

The existence of a legitimate criminal justice objective for obtaining

the release will support its validity. And, importantly, the possibility

of abuse is clearly mitigated if the release-dismissal agreement is

executed under judicial supervision.

Cox v. Duke Energy Inc., 876 F.3d 625, 630 (4th Cir. 2017) (quoting Rumery, 401–02). It would

thus appear the defense of judicial estoppel would hinge first on whether the Resolution of Charges

in fact constituted a de facto release and dismissal agreement. If so, the document would be subject

to the Rumery/Cox rubric.

Assuming enforceability of the Resolution of Charges, however, and that the first

two judicial estoppel elements are satisfied, Trooper Tincher emphasizes Mr. Nabors’ deposition

testimony. Mr. Nabors testified he reviewed and signed the stipulation containing the excerpt,

resulting in dismissal of the criminal action. [ECF 54-2 at 34, 36]. But he also contends he did so

“through an email . . . , [and he was] just told . . . [by his] lawyer, Randolph McGraw, to go ahead

and sign it.” [Id. at 32]. This later statement indicates he may have misunderstood the stipulation.

[Id. at 32-37]. Additionally, Mr. Nabors testified that, prior to the date of his deposition, he had

not seen the Complaint or Amended Complaint filed herein. [Id. at 9]. There may also be additional

evidence that bears on the proper application of this preclusive doctrine, especially inasmuch as it

is sparingly applied.

Based upon the foregoing discussion, Trooper Tincher is not at this time entitled to

judgment as a matter of law on the defense. The Court DENIES Trooper Tincher’s Motion for

Summary Judgment on the grounds of judicial estoppel.

C. Qualified Immunity

Title 42 U.S.C. § 1983 governs actions against state officers arising out of their

deprivations of constitutional rights:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law.

42 U.S.C. § 1983. A state actor sued in his individual capacity for monetary damages generally

qualifies as a suable “person” under Section 1983. Hafer v. Melo, 502 U.S. 21, 27 (1991). But he

may be entitled to qualified immunity. Qualified immunity is available only to those who do “not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)); Garrett v. Clarke, 74 F.4th 579, 583 (4th Cir. 2023). 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. 658, 664 (2012) (cleaned up);

see D.C. v. Wesby, 583 U.S. 48, 63 (2018); Garrett, 74 F.4th at 584. “To determine if the right in

question was clearly established, we first look to cases from the Supreme Court, th[e] Court of

Appeals, or the highest court of the state in which the action arose.” Thompson v. Commonwealth

of Va., 878 F.3d 89, 99 (4th Cir. 2017) (citing Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th

Cir. 2004)); Franklin v. City of Charlotte, 64 F.4th 519 (4th Cir. 2023). Absent “directly on-point,

binding authority,” courts may also consider whether “the right was clearly established based on

general constitutional principles or a consensus of persuasive authority.” Booker v. South Carolina

Dep’t of Corrections, 855 F.3d 533, 543 (4th Cir. 2017); Owens, 372 F.3d at 279. In sum, “existing

precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v.

al–Kidd, 563 U.S. 731, 741 (2011).

Mr. Nabors’ excessive force claim hinges upon his showing “that the force

purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson,

576 U.S. 389, 396-97 (2015); Dilworth v. Adams, 841 F.3d 246, 255 (4th Cir. 2016). Courts must

assess objective reasonableness “from the perspective of a reasonable officer on the scene,

including what the officer knew at the time, not with the 20/20 vision of hindsight.” Kingsley, 576

U.S. at 397. The use of force is viewed “in full context, with an eye toward the proportionality of

the force in light of all the circumstances.” Smith v. Ray, 781 F.3d 95, 101-02 (4th Cir. 2015)

(citing Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005)); T.W. ex rel. E.W. v. Dolgos, 884

F.3d 172, 179 (4th Cir. 2018). “The intent or motivation of the officer is irrelevant; the question is

whether a reasonable officer in the same circumstances would have concluded that a threat existed

justifying the particular use of force.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing

Graham v. Connor, 490 U.S. 386, 396-97 (1989)); Hupp, 931 F.3d at 322 (citing Jones v.

Buchannan, 325 F.3d 520, 528 (4th Cir. 2003)).

Nevertheless, “[i]n considering the reasonableness of an officer’s actions, [the

court] must consider the facts at the moment that the challenged force was employed.” Ray, 781

F.3d at 101. Foremost, “the reasonableness of force employed can turn on a change of

circumstances during an encounter lasting only a few seconds.” Harris v. Pittman, 927 F.3d 266,

274 (4th Cir. 2019) (citing Waterman, 393 F.3d at 481); Betton v. Belue, 942 F.3d 184, 191 (4th

Cir. 2019). Additionally, “Not every push or shove, even if it may later seem unnecessary in the

peace of a judge's chambers, violates a prisoner's constitutional rights.” United States v. Gore, 592

F.3d 489, 495 (4th Cir. 2010); Saucier v. Katz, 533 U.S. 194, 209, 121 S. Ct. 2151, 2160, 150 L.

Ed. 2d 272 (2001) (“We have approved the observation that ‘[n]ot every push or shove, even if it

may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment.’”

(citations omitted). Pushes and shoves, like other police conduct, must be judged under the Fourth

Amendment standard of reasonableness.”), overruled on other grounds by Pearson v. Callahan,

555 U.S. 223, 236 (2009).

The qualified immunity analysis hinges upon a few seconds of events when no one

– except Mr. Nabors and Trooper Tincher – know what was said by each and the force used by

both. And those few seconds -- not to mention the surrounding environment -- are critical. See,

e.g., Est. of Jones by Jones v. City of Martinsburg, 961 F.3d 661, 668 (4th Cir. 2020); Henry v.

Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (“‘In considering whether an officer used reasonable

force, a court must focus on the moment that the force is employed.’”) (quoting Elliott, 99 F.3d at

643). That is especially so given the multifactor governing test:

“[S]pecificity is especially important in the Fourth Amendment context, where . . .

it is sometimes difficult for an officer to determine how the relevant legal doctrine,

here excessive force, will apply to the factual situation the officer confronts.”

Whether an officer has used excessive force depends on “the facts and

circumstances of each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting to evade arrest by flight.”

Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021); Smith, 781 F.3d at 101. In a recent opinion,

our Court of Appeals also included an additional factor, namely, “whether the officer applied an

established technique . . . .” Omeish v. Kincaid, No. 22-1826, 2023 WL 7563935, at *7 (4th Cir.

Nov. 15, 2023). The Court “also consider[s] the extent of the plaintiff’s injuries.” Hupp, 931 F.3d

at 322 (citing Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994)). “Ultimately, [the court] must

decide ‘whether the totality of the circumstances justifie[d] a particular sort of ... seizure.’” Id.

(citing Smith, 781 F.3d at 101 (omission in original) (quoting Tennessee v. Garner, 471 U.S. 1, 8–

9 (1985))).

The video of the incident shows much respecting the hostile and deteriorating

environment at the event, where the Chief Executive of West Virginia was in attendance. [ECF

56-3, ECF 58]. Although the Court set forth earlier a summary version of the events, a second-by-

second analysis is helpful. At the 19-second point in the video, Mr. Nabors is seen headed toward

the baseline approaching individuals described earlier as Woodrow Wilson administrators. At the

23-second mark, the aforementioned Greenbrier East fans join the discussion at the baseline. One

to two seconds later, Mr. Damon, who might objectively be described as quite aggressive,

approaches Mr. Nabors and the administrators from behind. Mr. Damon is then seen a second

later directly behind Mr. Nabors while leaning in to say something to him. The two then appear

face to face when, at the 28-second mark, Athletic Director J.T. Payne steps between them and

moves Mr. Damon backward, with Mr. Damon appearing to continue to engage Mr. Nabors

verbally. Mr. Nabors alleges that he does not remember what was said to him by Mr. Damon and

the other Greenbrier East fan during this confrontation at the baseline. [ECF 54-2 at 116-19]. And

Trooper Tincher asserts he could not hear the exchange between the parties. [ECF 54-1 at 49, 62,

164].

It is near this point when Donte Nabors enters the viewing angle of the video and

begins rapidly cutting the distance from the sideline to the developing baseline confrontation.

Three to four seconds later, Donte Nabors arrives at the group, with Mr. Nabors and Trooper

Tincher just inches away. At the 34-second point, Mr. Nabors appears to step between Donte

Nabors and Woodrow Wilson Principal Rocky Powell to begin ushering Donte Nabors away

toward the chairs on the Woodrow Wilson sidelines. Trooper Tincher is seen following Mr.

Nabors, who can be seen thereafter attempting to de-escalate Donte Nabors in the few seconds

following. At the 38-second point, Donte Nabors is seen walking away from his father past a line

of team chairs on the Woodrow Wilson sidelines. It is at this point Mr. Nabors turns to find Trooper

Tincher in pursuit, facing him, and either touching or nearly touching his left arm. Donte Nabors

then throws one of the team chairs out of the camera’s field of view.

For the next few seconds, Mr. Nabors and Trooper Tincher are speaking and

touching each other with their hands, with Mr. Nabors backing up and Trooper Tincher following,

apparently in measured pursuit of Donte. At the 41-second point, Mr. Nabors and Trooper

Tincher’s faces are nearly touching as they converse. And the encounter appears to change in less

than a heartbeat. With Donte Nabors just a few feet behind, and Mr. Nabors slowing or halting

Trooper Tincher’s forward movement, Trooper Tincher forcefully pushes Mr. Nabors, who

stumbles rapidly backward and falls. At the 44-second point Trooper Tincher then lays hold of

Donte, pushing him out of the viewing angle, while Sgt. White approaches Mr. Nabors. At the

2:10-second point, Donte Nabors returns to the gymnasium and appears behind the Woodrow

Wilson bench. Donte Nabors is seen at 2:34-second point being removed by Trooper Tincher and

another officer.

The multifactor analysis begins with the “severity of the crime at issue.” Mr. Nabors

was ultimately arrested for obstructing, a misdemeanor. See W. Va. Code §61-5-17(a). When the

offense is a “minor one,” our Court of Appeals has concluded “the first Graham factor weigh[s]

in [the] plaintiff’s favor.” Hupp, 931 F.3d at 322 (describing obstructing under W. Va. Code §61-

5-17(a) as slight when determining the severity of the crime plaintiff was arrested for in a § 1983

action for excessive force) (citing Jones, 325 F.3d at 528) (citing Graham 490 U.S. at 395)).

Second, the evidence suggests that Mr. Nabors did not “pose an immediate threat

to the safety of the officer or others.” Trooper Tincher states in his deposition that he was not

fearful for his physical safety from Mr. Nabors and pushed Mr. Nabors to regain his freedom of

movement and perform his duties. [ECF 54-1 at 86-87]. Trooper Tincher does not recall Mr.

Nabors saying anything aggressive or threatening to him. [Id. at 122]. Trooper Tincher testified

that he believed Donte Nabors posed a threat, not Mr. Nabors. [Id. at 180-81]. Additionally,

Trooper Tincher testified that when Donte Nabors came out of the stands and approached the

group, Donte Nabors appeared to be the more imminent threat to the group and describes him as

the “primary aggressor.” [ECF 54-1 at 79]. It is important to note as well that no party seriously

suggests there was ever any danger to Governor Justice or others as the events unfolded.

Third, there is disputed evidence as to whether Mr. Nabors was “actively resisting

or attempting to evade arrest by flight.” The video depicts the brief encounter between Mr. Nabors

and Trooper Tincher. Mr. Nabors and Trooper Tincher provide differing accounts of this seconds-

long encounter. Mr. Nabors generally asserts he was in a “defenseless position with his hands and

arms stretched wide.” [ECF 56 at 3]. The video does not support that assertion. Mr. Nabors

additionally states, however, that while he was speaking with Trooper Tincher, he was quite

suddenly and without justification pushed backward with sufficient force to knock him from his

feet. [Id.]. The Court is presently unable to calculate the force necessary to move a 6’2” tall, 210-

pound male so rapidly backward that he falls with enough force to cause broken bones. And that

point in the encounter is critical to the outcome of the qualified immunity inquiry. Among other

issues relevant to the inquiry is whether the push was truly “without justification.”3

3 Again, Trooper Tincher’s account differs markedly from Mr. Nabors’ version. Trooper

Tincher contends that, while he was pursuing Donte Nabors, Mr. Nabors was unjustifiably

restricting him. [ECF 55 at 3]. And as Trooper Tincher was speaking with Mr. Nabors, he

Fourth, there is evidence to suggest a push is an established technique utilized by

the West Virginia State Police. F/Sgt. D.A. Evans investigated Trooper Tincher’s actions on

February 11, 2020. [ECF 55 at 5, ECF 56-5 at 22]. After reviewing video of the incident and

obtaining statements from individuals involved, F/Sgt. Evans opined Trooper Tincher “acted

within the guidelines of the West Virginia State Police Operational Policy and Procedure 10-1.”

[ECF 56-5 at 25]. Additionally, Sgt. White explains that a shove “falls under the empty hand

options that we have” and is an appropriate response to resistance. [ECF 54-3 at 41]. The experts

retained by the parties, however, provide contradictory analyses of Trooper Tincher’s actions and

his putative attempt to de-escalate the situation. [ECF 54-4 at 11, ECF 56-6 at 10].

When determining whether a right was clearly established “[courts] do not require

a case directly on point, but existing precedent must have placed the statutory or constitutional

question beyond debate. Ashcroft, 563 U.S. at 741; Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015).

“[O]ur precedent makes clear that a nonviolent misdemeanant who is compliant, is not actively

resisting arrest, and poses no threat to the safety of the officer or others should not be subjected to

‘unnecessary, gratuitous, and disproportionate force.’” Yates v. Terry, 817 F.3d 877, 888 (4th Cir.

2016); Ray, 781 F.3d at 104 (precluding the defense of qualified immunity where an officer threw

a woman to the ground with no verbal warning prior to physical contact); see Jones v. Buchanan,

325 F.3d 520, 534 (4th Cir. 2003); Bailey v. Kennedy, 349 F.3d 731, 745 (4th Cir. 2003); Rowland

v. Perry, 41 F.3d 167, 174 (4th Cir.1994); Johnson v. City of Fayetteville, 91 F. Supp. 3d 775, 804

witnessed Donte Nabors throw a chair. [Id.]. Trooper Tincher testified he first gave verbal

commands for Mr. Nabors to move and then tried to move around Mr. Nabors to apprehend Donte

Nabors. [Id.]. Trooper Tincher states it was only then he pushed Mr. Nabors, deeming it essential

to regaining his freedom of movement from Mr. Nabors in order to detain Donte Nabors. [Id.].

Both parties retained experts regarding Trooper Tincher’s actions. Their respective opinions differ

considerably. [ECF 55 at 15, 56 at 12]. As noted, these factual disputes are not considered in the

qualified immunity analysis.

(E.D.N.C. 2015); see also Reid v. W. Virginia State Police, 641 F. Supp. 3d 293, 300 (S.D.W. Va.

2022). When resolving factual disputes in Mr. Nabors’ favor, he was arrested for obstructing,

though he was compliant with Trooper Tincher, not actively resisting arrest, and posed no threat

to the safety of Trooper Tincher or others. In sum, no reasonable officer would have believed it

necessary under the circumstances to so forcefully push a nonviolent, nonthreatening, compliant,

6’2” tall, 210- pound male in a manner capable of producing broken bones.

Largely absent from the parties’ submissions and the evidentiary record are (1) the

unlawful conduct of Donte Nabors in the moment, as opposed to a determination thereof after the

fact, (2) the group discussion that perhaps informed Trooper Tincher’s threat analysis and pursuit

of Donte Nabors, and (3) other factors that may have been indicative of either de-escalation or

flight. Assessing, however, the facts and reasonable inferences in Mr. Nabors’ favor, combined

with those case law factors unfavorable to Trooper Tincher, along with the existence of a clearly

established right prohibiting the force here used, qualified immunity is inappropriate. See Hupp,

931 F.3d at 323; see also Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994). Inasmuch as there

are genuine issues of material fact respecting the reasonableness of the force applied, the Court

DENIES Trooper Tincher’s Motion for Summary Judgment on qualified immunity grounds.

D. Assault and Battery

In Count Two, Mr. Nabors asserts a claim against Trooper Tincher for assault and

battery. [ECF 14 at 7]. In West Virginia, 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.”

Weigle v. Pifer, 139 F. Supp. 3d 760, 776 (S.D.W. Va. 2015) (citing West Virginia Fire & Casualty

Co. v. Stanley, 216 W.Va. 40, 51, 52, 602 S.E.2d 483 (2004) (quoting Restatement (Second) of

Torts § 13 (Am. L. Inst. 1965)). 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.” /d.

Trooper Tincher asserts that his actions were privileged, and that Mr. Nabors has

failed to establish the requisite intent to survive summary judgment. “An activity, however, that

would otherwise subject a person to liability in tort for battery or assault does not constitute tortious

conduct if the actor is privileged to engage in such conduct.” Murray v. Lilly, 426 F. Supp. 3d 245,

256 (S.D.W. Va. 2019) (citing Hutchinson v. West Virginia State Police, 731 F. Supp. 2d 521, 547

(S.D.W. Va. 2010) (citation omitted)). As noted, genuine issues of material fact are extant respecting

whether the force used by Trooper Tincher was reasonable given the totality of the circumstances.

The Court DENIES Trooper Tincher’s Motion for Summary Judgment on the

assault and battery claims.

IV.

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

Summary Judgment [ECF 54].

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

Order to counsel of record and to any unrepresented party.

ENTER: December 1, 2023

“a United States District Judge

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