# Opinion

> District Court, S.D. West Virginia · March 27, 2026

URL: https://www.frixlaw.com/law-library/cases/11296044

## Case

- **Full name:** Richard Nelson v. M. W. Fisher, et al.
- **Court:** District Court, S.D. West Virginia
- **Decided:** March 27, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

RICHARD NELSON,

Plaintiff,

v. CIVIL ACTION NO. 2:25-cv-00075

M. W. FISHER, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Defendants’ Motion for Summary Judgment (Document 39),
filed by Defendant Lt. Truitt, Defendant Lt. Truitt’s Memorandum of Law in Support of Motion
for Summary Judgment (Document 40), the Plaintiff’s Memorandum in Opposition to Defendant
Truitt’s Motion for Summary Judgment (Document 45), the Agreed Motion to Extend Time Frame
to File Reply (Document 50), and Defendant Lt. Truitt’s Reply to Plaintiff’s Memorandum in
Opposition to Defendant Truitt’s Motion for Summary Judgment (Document 51), together with all
exhibits.
The Court has also reviewed Defendant M.W. Fisher’s Motion for Partial Summary
Judgment (Document 43), Defendant M.W. Fisher’s Memorandum of Law in Support of His
Motion for Partial Summary Judgment (Document 44), the Plaintiff’s Memorandum in Opposition
to Defendant Fisher’s Motion for Partial Summary Judgment (Document 47), Defendant M.W.
Fisher’s Reply in Support of His Motion for Partial Summary Judgment (Document 49), Defendant
M.W. Fisher’s Joinder to ECF No. 39 and ECF No. 40 (Document 52), and the Plaintiff’s
Opposition to Defendant Fisher’s Motion for Joinder to ECF No 39 and 40 (Document 54),
together with all exhibits. For the reasons stated herein, the Court finds that Defendant Fisher’s
motion for joinder should be denied, both motions for summary judgment should be granted as to
Count Three, to the extent Count Three seeks to allege an independent cause of action, and denied

as to the remaining counts.
FACTS1
The Plaintiff, Richard Nelson, initiated this action with a Complaint (Document 1-1) filed
in the Circuit Court of Kanawha County on or about January 8, 2025. He named the City of St.
Albans, M.W. Fisher, Lt. Truitt, and John Doe as Defendants. The Defendants removed the
matter to this Court on February 7, 2025, and the City of St. Albans was dismissed by stipulation
on January 30, 2026. The Plaintiff brought the following causes of action: Violations of 42
U.S.C. §1983 under the Fourth Amendment of the United States Constitution for excessive force;
state law battery claims; and reckless/malicious conduct under W.Va. Code § 29-12A-5(b)(2).2
Mr. Nelson went to a bar called The Choo after work on January 5, 2023, where he played

pool and drank a couple of beers over an hour or two. He went through a nearby McDonald’s
drive-thru and was pulled over on his way home. Defendant Fisher activated his lights to conduct
a traffic stop of Mr. Nelson, and Mr. Nelson pulled over and turned off his truck. Defendant
Fisher approached and spoke to him through the closed rear passenger window, but Mr. Nelson
could not hear him until he lowered the window. Defendant Fisher immediately ordered him out

1 The facts are recounted in the light most favorable to the Plaintiff as the non-moving party. The Defendants dispute
much of his account of the incident. They contend that Mr. Nelson verbally refused to exit the vehicle, braced himself
to resist their efforts to remove him, and that they exerted force by striking him while he was still in the vehicle to get
him to let go of the steering wheel and reduce his resistance so that they could remove him from vehicle and effectuate
an arrest.
2 The Complaint also contained a deliberate indifference claim against the City of St. Albans, which is no longer
pending.
2
of the truck, without stating the basis for the stop or asking for his license or registration. Mr.
Nelson responded by asking why he was being pulled over. Defendant Fisher then approached
the driver’s side window and again directed Mr. Nelson to get out of the truck. Mr. Nelson again
asked why he was being pulled over. He did not exit the vehicle. Defendant Fisher did not

respond to his inquiry as to the basis of the stop. Defendant Truitt then approached and told Mr.
Nelson to “get the fuck out of the truck.” (Nelson Dep. at 51::12-13) (Document 45-1.)
Without giving Mr. Nelson an opportunity to comply, the officers immediately pulled him
out of the vehicle. Defendant Truitt pulled Mr. Nelson’s door open as he approached. As Mr.
Nelson described it: “When he pulled me out of the truck, I was off balance immediately. And
that’s when the punches started raining down from all directions. I was in a daze. I got clobbered
the first time because I was bent over, off balance. And the punches didn’t stop, and I was
slammed headfirst into the pavement.” (Id. at 55::11-16.) Both officers punched him repeatedly,
and Defendant Truitt slammed him to the ground. Then “[t]hey were on top of me before I knew
what happened. I woke up – when I had my senses, I was sitting in the back of the cruiser bleeding

profusely from my face and my rights being read to me.” (Id. at 60::1-4.) He testified that he
offered no physical resistance at any point during his interaction with the officers, and he posed
no threat to the officers or anyone else. The officers never told Mr. Nelson the reason for the
traffic stop.
The Defendants brought Mr. Nelson to the police station. He continued to bleed from his
ears, nose, and mouth, and they eventually brought people from the adjacent fire department to try
to clean up his face, although the bleeding continued. They brought him to Charleston, where he
eventually saw a magistrate judge, was released on his own recognizance, and was picked up by

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his sister. At the request of another Lieutenant with the St. Albans Police Department who he
understood to be investigating the incident, he wrote a brief statement describing what had
happened the next morning. He then went to the hospital for tests and treatment.
STANDARD OF REVIEW

The well-established standard in consideration of a motion for summary judgment is that
“[t]he 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)–(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v.
Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could
affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ’g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning
a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict
in the nonmoving party’s favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News &

Observer, 597 F.3d at 576.
The moving party bears the burden of showing that there is no genuine issue of material
fact, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.,
477 U.S. at 322–23. When determining whether summary judgment is appropriate, a court must
view all factual evidence, and any reasonable inferences to be drawn therefrom, in the light most
favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the nonmoving party
must offer some “concrete evidence from which a reasonable juror could return a verdict in his
favor.” Anderson, 477 U.S. at 256. “At the summary judgment stage, the non-moving party

4
must come forward with more than ‘mere speculation or the building of one inference upon
another’ to resist dismissal of the action.” Perry v. Kappos, No.11-1476, 2012 WL 2130908, at
*3 (4th Cir. June 13, 2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985)).

In considering a motion for summary judgment, the court will not “weigh the evidence and
determine the truth of the matter,” Anderson, 477 U.S. at 249, nor will it make determinations of
credibility. N. Am. Precast, Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3 (S.D. W. Va.
Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). If
disputes over a material fact exist that “can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party,” summary judgment is inappropriate. Anderson,
477 U.S. at 250. If, however, the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case,” then summary judgment should be
granted because “a complete failure of proof concerning an essential element . . . necessarily
renders all other facts immaterial.” Celotex, 477 U.S. at 322–23.

DISCUSSION
Both Defendants move for summary judgment as to Count III, the Plaintiff’s claim for
recklessness/malicious activity, arguing that there is no independent cause of action for
recklessness or malice. Defendant Truitt argues that he is entitled to qualified immunity as to the
excessive force claim. He contends that the Plaintiff’s failure to comply with repeated orders to
exit his vehicle justified the use of force, particularly given that the Plaintiff is physically larger
than the Defendants. Defendant Truitt further argues that the Plaintiff’s battery claim fails as a
matter of law because the force used was necessary to effectuate his lawful arrest for obstruction,

5
based on his failure to comply with orders to exit the vehicle. In addition, he contends that he is
entitled to statutory immunity for punitive damages.
The Plaintiff argues that he was punched, beaten, and slammed onto the concrete after he
was removed from the vehicle. He contends that the Defendants beat him until he was

unconscious, while he posed no threat. He argues that if a jury believes his version of events, the
Defendants would not be entitled to qualified immunity. He further argues that he set forth
evidence supporting the elements of each claim. Finally, the Plaintiff contends that W. Va. Code
§ 29-12A-3 creates an independent cause of action. Even if the Court rejects Count Three as an
independent cause of action, he urges the Court to leave the questions of whether the Defendants
acted with malicious purpose, in bad faith, or in a wanton or reckless manner to the jury. The
Plaintiff argues that W. Va. Code 29-12A-7(a) bars punitive damages only against political
subdivisions, not against the employees of political subdivisions.
A. Qualified Immunity
Qualified immunity is an affirmative defense intended to shield public officials from civil

suits arising out of their performance of job-related duties. See, e.g., Pearson v. Callahan, 555
U.S. 223, 231–32 (2009). Defendants asserting a qualified immunity defense first bear the burden
of “demonstrating that the conduct of which the plaintiff complains falls within the scope of the
defendant’s duties.” In re Allen, 106 F.3d 582, 594 (4th Cir. 1997) (internal quotation marks
omitted.) The defense of qualified immunity is available unless the official “knew or reasonably
should have known that the action he took within his sphere of official responsibility would violate
the constitutional rights of the plaintiff….” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982)
(internal emphases omitted). Officials are protected even if they make reasonable mistakes of

6
fact or law, so long as they do not violate a clearly established statutory or constitutional right.
Pearson, 555 U.S. at 231–32. “A constitutional right is ‘clearly established’ when its contours
are sufficiently clear that a reasonable official would understand that what he is doing violates that
right.” Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013) (internal quotation marks and

citations omitted).
The reasonableness analysis is objective. Courts must “examine[] only the actions at issue
and measure[] them against what a reasonable police officer would do under the circumstances,”
but the inquiry “must be filtered through the lens of the officer’s perceptions at the time of the
incident.” Rowland v. Perry, 41 F.3d 167, 172-73 (4th Cir. 1994). “[T]he officer's subjective
state of mind is not relevant to the qualified immunity inquiry but his perceptions of the objective
facts of the incident in question are.” Id. at 173.
The Fourth Amendment provides a right to be free from unreasonable seizures, including
the use of excessive force. Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003). “The question
is whether a reasonable officer in the same circumstances would have concluded that a threat

existed justifying the particular use of force.” Anderson v. Russell, 247 F.3d 125, 129 (4th Cir.
2001). “In the context of an ongoing police encounter . . . we focus on the moment that the force
is employed.” Est. of Jones by Jones v. City of Martinsburg, W. Virginia, 961 F.3d 661, 668 (4th
Cir. 2020), as amended (June 10, 2020) (internal quotation marks omitted). Deadly force is not
permissible “[w]here the suspect poses no immediate threat to the officer and no threat to others,”
even if a felony suspect may otherwise flee and escape arrest. Tennessee v. Garner, 471 U.S. 1,
11 (1985).

7
The Fourth Circuit has explained, in the context of a qualified immunity defense to
excessive force allegations, that “the objective reasonableness of force [should be viewed] in full
context, with an eye toward the proportionality of the force in light of all the circumstances.”
Rowland v. Perry, 41 F.3d 167, 173-74 (4th Cir. 1994) (summarizing the facts in that case to state

that “it is impossible to escape the conclusion that a man suffered a serious leg injury over a lost
five dollar bill,” where an officer pursued and tackled a man who had picked up and failed to return
a five dollar bill dropped by a woman at a bus station, after the officer ordered him to return the
money). Rather than examining a single aspect of an incident in isolation, courts are to evaluate
the objective reasonableness based on the totality of circumstances. Id.3 Factors to consider in
excessive force cases include “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.” Graham v. Connor, 490 U.S. 386, 396 (1989).
Defendant Truitt relies heavily on a recent Fourth Circuit decision, Nazario v. Gutierrez,
for the proposition that officers are entitled to qualified immunity for using force to remove a

driver from a vehicle when the driver fails to promptly comply with an order to exit the vehicle
during a traffic stop. 103 F.4th 213 (4th Cir. 2024). However, in Nazario, officers used pepper
spray on a motorist who had not complied with repeated orders to exit the vehicles while the
motorist was still in the vehicle, and the court found that the officers “were not on notice that their
use of pepper spray violated a clearly established right.” Id. at 236. The court found that the

3 The Fourth Circuit has clarified that not viewing events in isolation means that “the events should [not] be reviewed
outside the context of the conduct that precipitated the seizure.” Waterman v. Batton, 393 F.3d 471, 481 (4th Cir.
2005). However, “the reasonableness of force employed can turn on a change of circumstances during an encounter
lasting only a few seconds,” and when the justification for a use of force is eliminated, the use of force must cease.
Id.
8
force was excessive, in part for reasons equally applicable to this case: the officers had probable
cause to suspect the motorist of only minor offenses (a traffic infraction and misdemeanor
obstruction offense), and the motorist remained calm, asking the reason for the stop, without any
actions to indicate that he posed a threat. Id. at 234. The Plaintiff in Nazario did engage in minor

physical resistance by pulling the car door closed as an officer began to open it, but otherwise, like
Mr. Nelson, offered no resistance beyond seeking an explanation for orders before complying. Id.
at 234-35. The Fourth Circuit found that the use of pepper spray was “very excessive” under
those circumstances.4
Mr. Nelson was suspected of minor, non-violent offense(s). While traffic stops can be
dangerous for officers, Mr. Nelson did not verbally or physically indicate any threat to the officers
or others. He did not comply with orders to exit the vehicle but did not offer active resistance or
attempt to flee. The officers pulled him from the vehicle, then repeatedly struck and punched him
in the head and slammed him head-first into the pavement. He was left unconscious. In contrast
to Nazario, accepting Mr. Nelson’s version of events, the officers exerted force against Mr. Nelson

after he was out of the vehicle and all justification for use of force had been eliminated. He was
knocked unconscious and had multiple facial injuries with bleeding and swelling. The Fourth
Circuit has squarely held that an individual’s “slight resistance” does not justify “escalation of the
conflict” or an officer’s “decision to punch [the individual] repeatedly.” Smith v. Ray, 781 F.3d
95, 103 (4th Cir. 2015) (explaining that “no reasonable officer could have believed that, rather
than answer the previously compliant young woman’s legitimate question concerning why Ray

4 Although the facts that supported qualified immunity on the excessive force claim in Navario are not present in this
case, it is worth noting that the message law enforcement should take away from Navario is that the force used was
excessive and use of similar force under similar circumstances is illegal (and, with Navario as circuit precedent,
unprotected by qualified immunity in the future).
9
was suddenly grabbing her, Ray was justified in throwing her to the ground, slamming his knee
into her back, and wrenching her arm behind her”).5 Should the jury find Mr. Nelson’s account
of the incident credible, the Graham factors clearly establish that the Defendants used excessive
force, and binding Supreme Court and Circuit precedent placed the officers on notice that the force

used was not justified under the circumstances. Therefore, the motion for summary judgment on
the basis of qualified immunity should be denied.
B. Battery
For the reasons discussed above, the Plaintiff has presented sufficient evidence, should a
jury find it credible, to support a finding that the Defendants used excessive force. Therefore, the
motion for summary judgment as to the state law battery claim must be denied.
C. W. Va. Code § 29-12A-5(b)(2) – Reckless/Malicious Conduct
West Virginia Code § 29-12A-5(b) provides that “an employee of a political subdivision
is immune from liability unless one of the following applies…(2) his or her acts or omissions were
with malicious purpose, in bad faith, or in a wanton or reckless manner.” W. Va. Code § 29-12A-

5(b)(2). This Court has previously found that “Subsection (b)(2) does not provide an independent
cause of action but only provides exceptions to West Virginia's general rule of tort immunity for
employees of political subdivisions.” Casto v. Thompson, No. 2:23-CV-00798, 2024 WL

5 Defendant Truitt insists that Mr. Nelson was not entitled to an explanation for the directive to exit the vehicle. (See,
e.g. Truitt Mem. at 10) (Nelson “thought he was owed an explanation, and he was not owed any explanation as a
matter of law.”) While there may be no legal obligation to provide such an explanation, a factfinder considering the
reasonableness of the use of force under the Graham factors may consider Mr. Nelson’s lack of compliance in the
context of the officers’ refusal to explain the basis for the stop or for the directive to exit the vehicle. As in Smith, an
officer choosing to use force to gain compliance rather than answering a legitimate question suggests unjustified
escalation. A factfinder could view a person’s question about the basis of an order as less of an indication of
resistance or noncompliance than a flat rejection of the order, and if a fact-finder believes that “an explanation” would
have been sufficient for officers to obtain compliance with their lawful orders, the officers’ decision to instead beat
someone unconscious may appear quite unreasonable.
10
4028033, at *4 (S.D.W. Va. Sept. 3, 2024) (Berger, J.). Therefore, both motions for summary
judgment should be granted to the extent Count Three seeks to state an independent cause of action.
This ruling does not preclude evidence or argument on the issues of whether the Defendants acted
with malicious purpose, in bad faith, or in a wanton or reckless manner, to the extent those matters

are at issue in trial.
D. Punitive Damages
Defendant Truitt argues that punitive are unavailable against him under W. Va. Code § 29-
12A-7(a) because he is the employee of a political subdivision. The West Virginia Supreme Court
has held that “West Virginia Code § 29-12A-7(a) prohibits the recovery of punitive damages
against a political subdivision employee sued in an official capacity but does not prohibit the
recovery of punitive damages against a political subdivision employee sued in an individual
capacity.” Syl. Pt. 9, Monongalia Cnty. Comm'n v. Stewart, 914 S.E.2d 677, 681 (W. Va. 2024).
The Defendants are sued in their individual capacities. Therefore, the motion for summary
judgment as to any claim for punitive damages must be denied.

MOTION FOR JOINDER
Defendant Fisher’s motion for joinder constitutes an untimely motion for summary
judgment. While joining another party’s motion rather than filing duplicative briefs can be an
efficient use of resources, attempting to join a motion more than a month after the dispositive
motions deadline, after briefing on dispositive motions was complete, is not consistent with the
Federal Rules of Civil Procedure. Therefore, the motion for joinder should be denied, although
it has little impact given that the Court has found Defendant Truitt’s motion meritless.

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CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Agreed Motion to Extend Time Frame to File Reply (Document 50) be GRANTED, that the
Defendants’ Motion for Summary Judgment (Document 39), filed by Defendant Lt. Truitt, be
GRANTED as to Count Three, to the extent Count Three is asserted as an independent cause of
action, and DENIED as to all other counts. The Court further ORDERS that Defendant M.W.
Fisher’s Motion for Partial Summary Judgment (Document 43) be GRANTED to the extent it
seeks judgment as to Count Three as an independent cause of action, and that Defendant M.W.
Fisher’s Joinder to ECF No. 39 and ECF No. 40 (Document 52) be DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER: March 27, 2026
Dire. Benger’
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11296044. Public record. Not legal advice.