Date: 07-12-2024

Case Style:

Michelle M. Daniels, et al. v. Mingo County Commission, et al.

Case Number: 2:23-CV-820

Judge: Thomas E. Johnson

Court: United States District Court for the Southern District of West Virginia (Kanawha County)

Plaintiff's Attorney: United States District Attorney’s Office in Charleston

Defendant's Attorney:

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Description:

Charleston, West Virginia personal injury lawyer represented the Plaintiffs on prisoner civil rights theories under 42 U.S.C. 1983.

This matter arises from an officer-involved shooting in Mingo County, West Virginia. Defendants Charlotte Lane, Renee Larrick, and William Raney (“WVPSC Defendants”) are all West Virginia Public Service Commissioners. (ECF No. 56 at 6–7, ¶ ¶ 29–31.) Defendant Joshua McCown (“Defendant McCown”) is a police officer employed by the West Virginia Public Service Commission (“WVPSC”). (ECF No. 131 at 134:1–9.) His typical job duties entail enforcing state and federal laws and regulations governing commercial motor vehicles. (Id.) However, he sometimes responds to requests for assistance from other law enforcement agencies. (Id. at 136:24–137:6.)

In the early evening hours of January 4, 2022, the Kentucky State Police (“KSP”) notified Mingo County law enforcement of a police pursuit headed their way. (ECF No. 131 at 154:17– 23.) KSP advised that two individuals had stolen a flatbed truck and were considered armed and

dangerous. (Id. at 155:2–24, 161:12–15.) Defendant McCown was working in Mingo County that day, so he set out to assist. (Id. at 157:22–24.) He first traveled to the Beech Creek area, where he and several officers from the Mingo County Sherriff’s Department (“MCSD”) discussed the situation. (Id. at 160:1–14.)

Around this time, MCSD Deputy Blake Sipple (“Sipple”) spotted the two suspects near Matewan and radioed their location to the other officers. (ECF No. 131 at 269:23–270:15, 273:1– 6.) Sipple managed to detain one suspect, Lloyd McGee, but the other suspect, 29-year-old

Robert Lee Daniels, Jr. (“Decedent”), fled on foot. (Id. at 270:19–271:11, 273:5–8.) Sipple chased Decedent through the woods for a while and finally found him hidden under a thick patch of kudzu. (Id. at 273:16–274:3.) Sipple ordered Decedent to come out , and Decedent complied. (Id. at 274:9–12.) However, rather than doing so slowly, Decedent jumped up, hands in the air, “kind of balled into a fist but not really.” ( Id.) So Sipple tased him. (Id. at 274:15.) However, Decedent wore a thick Carhartt coat that shielded him from the taser. (Id. at 274:16–24.) Decedent managed to escape Sipple, swim across a nearby creek, and remain on the lam. (Id. at 275:5–10.)

Not long after, Decedent’s parents, Robert Daniels , Sr. (“Robert”) , and Michelle Daniels (“ Michelle” ) (collectively “the Daniels”) , were driving along Route 49, a two-lane highway in Mingo County. (See, e.g., ECF No. 129 at 532:8–13.) They were headed to Robert’s brother Earl’s nearby home, 1

hoping Earl could fix some mechanical issues on their dilapidated Chrysler van. (Id. at 531:11–21.) On the way, Robert and Michelle saw Decedent walking along the roadside. (ECF No. 129 at 532:8–13.) The couple stopped the van and told Decedent to hop in, and he gladly obliged. (Id. at 339:14–18.) Decedent complained that he was “cold and wet ,” (id. at 535:1–2), and he also told Robert how “he [had] got in a lot of trouble” that day, (id. at 340:5– 8.). Robert told Decedent that he was “going to take him home, get him something to eat, get him

some dry clothes, and [then Decedent would go] turn hisself (sic) in.” (Id. at 340:2–4.) But the trio continued to Earl’s home, where Earl worked on the van. ( See id. at 396:15–397:11.) Thirty minutes later, they left Earl’s and headed home . (Id. at 395:14–17.) Robert drove, Decedent sat in the front passenger seat, and Michelle rode in the backseat. (See id. at 342:15–344:19, 477:6– 7.)

By this time, officers had got wind that Decedent was likely with his parents, and they had also gotten a description of the van. (ECF No. 131 at 182:24–183:16.) Then, sometime between 7:00 and 7:15 p.m., MCSD Deputy J.D. Tincher (“Tincher”) passed the van on Route 49 as the Daniels family was driving home from Earl’s . (ECF No. 114-1 at 4; ECF No. 131 at 370:8– 371:20.) Tincher realized that the van matched the reported description, and he immediately

turned around, “kicked [on his] lights,” and radioed his location to other officers. (ECF No. 131 at 371:21–372:9 .) Defendant McCown was only one mile or so away, so he headed to Tincher’s location. (Id. at 184:14–185:2.) Traveling from the opposite direction, Defendant McCown arrived at the scene just as the van was coming to a stop. (Id. at 188:2–6.) He parked his WVPSC

1 Robert lived about two miles from Earl. (ECF No. 129 at 334:15– 17.) vehicle in his lane, midway between Tincher’s MCSD cruiser and the van, both of which sat in the opposite lane. (Id. at 188:10–24; see also ECF No. 114-1 at 45.)

The parties dispute what exactly happened next, but the following is Plaintiffs’ recitation. Tincher exited his cruiser first. (ECF No. 129 at 344:9.) He jumped out, drew his pistol, and rushed the passenger side. (Id.; ECF No. 131 at 192:19–21.) Defendant McCown exited his SUV seconds later, approached the van’s driver side , and ordered Robert to place his hands on the steering wheel. (ECF No. 129 at 446:13–447:1.) As Defendant McCown watched Robert, Tincher yanked the front passenger door open and yelled at Decedent to exit the van. (Id. at 344:9–10.) However, before Decedent had the chance to comply, three gunshots rang out— Tincher shot an unarmed Decedent three times. 2

(Id. at 344:12–16; ECF No. 131 at 203:24 – 204:1.) Robert then jumped from the van’s driver seat to the passenger seat and landed on top of

Decedent, hoping to protect him from Tincher. (ECF No. 129 at 344:18–21.) That effort proved futile, though, because Defendant McCown and Sipple (who had arrived moments before) picked up Robert and moved him off of Decedent. (Id. at 350:17–351:7.) As this scene unfolded, and Decedent choked on his own blood, no officer checked his vitals, provided first aid, or performed CPR. (Id. at 569:12–16.) Officers instead called for an EMS, which arrived 13 minutes later. 3 (ECF No. 114-1 at 10.) Decedent died at the scene. (Id.)

2 The first round entered Decedent’s right wrist, passed through his right lower abdomen, and fragmented in his pelvis and abdomen. (ECF No. 114-1 at 99.) The second and third rounds hit Decedent’s chest. ( Id.) 3 The Court notes that Robert testified in his deposition that it took two hours for the EMS to arrive. (ECF No. 129 at 369:2– 6.) However, this lone speculative statement is insufficient for a reasonable jury to find that it took that long, given that Defendant McCown has produced detailed police records showing (1) when the request for the EMS was made, (2) when the EMS dispatched, and (3) when the EMS arrived at the scene. (ECF No. 114-1 at 10.) Scott v. Harris, 550 U.S. 372, 380 (2007) (“ When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).

Officers were not yet finished with Robert and Michelle. Defendant McCown and Sipple carried Robert to the middle of the road and slammed him face-down on the blacktop. (ECF No. 129 at 354:5–12.) Robert, still in shock at his son being shot, yelled “You son of a bitches shot my boy!” ( Id. at 352:5– 6.) Defendant McCown responded by striking him in the face with his pistol, and Sipple stomped his foot before handcuffing him. (Id. at 357:3–358:1.) Michelle, meanwhile, remained in the van and watched this scene unfold. (Id. at 561:12–562:10.) David Stratton, a member of the Matewan Police Department (“MPD”) , soon ordered Michelle to exit the van, and she did so. (Id. at 562:18–20.) Michelle then laid down on the blacktop next to Robert and, she too, was handcuffed. (Id. at 566:14–16.) Five or ten minutes later the two were put into police vehicles: Robert was placed in Stratton’s SUV, and Michelle was put in a City of Williamson cruiser. (Id. at 365:6–11, 566:6–10.)

The Daniels’ problems were far from over. Robert and Michelle were next taken to Matewan City Hall, where they were Mirandized 4

and interviewed by West Virginia State Police Sergeant Cory Maynard and MCSD officers Allen Mounts and Roger Fitch. (ECF No. 114-1 at 14.) After their interviews were finished, Robert and Michelle were hauled to jail and charged as accessories after the fact, in violation of West Virginia Code § 61-11-6. (ECF No. 114-8; ECF No. 129 at 383:4–8.) Sipple filed the criminal complaint against the couple, and he listed himself, Tincher, and Defendant McCown as complainants. (ECF No. 114-8 at 2.) However, despite naming Tincher and Defendant McCown as fellow complainants, the record shows that Sipple was the only officer to prepare, sign, and submit the criminal complaint. (See, e.g., ECF No. 114-10 at 6:8–7:20.) The charges were ultimately dropped, though, because Robert and Michelle could

4 See generally Miranda v. Arizona, 384 U.S. 436 (1966). not have committed the charged offense, as West Virginia Code § 61-11-6 specifically excludes parents from the class of persons capable of being accessories after the fact. (See ECF No. 114- 9 at 5.)

This lawsuit followed. On June 1, 2022, Robert and Michelle filed suit in their personal capacities, and Michelle also filed suit as the Representative of Decedent’s Estate ,

and on behalf of C.D., Decedent’s minor son (collectively “Plaintiffs”) . (ECF No. 1 at 3, ¶ ¶ 4–6. ) They initially sued the Mingo County Commission, MCSD Sherriff Joe Smith, 18 MCSD deputies, the City of Matewan, West Virginia, Matewan’s Mayor Matt Moore, 4 MPD officers, and Matewan Fire Department Chief Gibson, with the individuals being sued in both their individual and official capacities. (Id. at 3–7, ¶ ¶ 7–34.) Plaintiffs then amended their complaint to dismiss certain defendants and also add new ones, including the WVPSC, the WVPSC Defendants, and Defendant McCown, again suing the individual defendants in their individual and personal capacities. (ECF No. 56 at 6–7, ¶ ¶ 28 – 32.) Plaintiffs later dismissed the WVPSC as a party, and they also dismissed the claims brought against the WVPSC Defendants in their official capacities. (ECF No. 73.) The eight-count Amended Complaint alleged a litany of claims against Defendant McCown and the WVPSC Defendants, which, for simplicity’s sake , are discussed more fully below. (Id. at 10–19, ¶ ¶ 42–80.)

The parties have since completed discovery, and Defendant McCown and the WVPSC Defendants filed their respective motions for summary judgment on August 21, 2023. (ECF Nos. 113, 116.) Plaintiffs submitted joint responses to each motion on September 5, 2023, (ECF Nos. 126, 127), to which Defendant McCown and the WVPSC Defendants replied on September 11, 2023, (ECF No. 135, 136). These matters are now ripe for adjudication.

II. LEGAL STANDARD Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. In pertinent part, this rule states that a court should grant summary judgment if “there is no genuine issue as to any material fact.” Summary judgment should not be gr anted, however, if there are factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “Facts are ‘material’ when they might affect the outcome of the case, and a ‘genuine issue’ exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Publ. Co. v. Raleigh–Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). When evaluating these factual issues, the Court must view the evidence “in the light most favorable to the opposing party.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). “The burden is on the nonmoving party to show that there is a genuine issue of material fact for trial . . . by offering ‘sufficient proof in the form of admissible evidence’ . . . .” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). “ This burden may be met by use of the depositions and other discovery materials.” Barwick v. Celotex Corp. , 736 F.2d 946, 958 (4th Cir. 1984). Once the moving party meets its burden, the burden shifts to the non-moving party to “make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Should a party fail to make a sufficient showing on one element of that party’s case, the failure of proof “necessarily renders all other facts immaterial.” Id. at 323.

“[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 256. “The me re existence of a scintilla of evidence” in support of the nonmoving party is not enough to withstand summary judgment; the judge must ask whether “the jury could reasonably find for the plaintiff.” Id. at 252.

III. DISCUSSION As noted above, Plaintiffs’ Amended Complaint br ought a slew of claims against Defendant McCown. However, these claims have since been pared down significantly by recent developments. First, in Plaintiffs’ joint response to Defendant McCown’s motion, Robert indicated that he withdrew his claims against Defendant McCown for assault, battery, excessive force, Fourteenth Amendment violations, and invasion of privacy. (ECF No. 127 at 33.) He now intends to pursue those claims in his “forthcoming 42 U.S.C. § 1983/14

th Amendment lawsuit.” (Id.) Second, and also in Plaintiffs’ joint response to Defendant McC own’s motion, Plaintiffs failed to respond to Defendant McCown’s arguments in favor of summary judgment on several of their other claims. (See id.) Plaintiffs have thus abandoned those claims. Blankenship v. Necco, LLC, No. 2:16-cv-12082, 2018 WL 3581092, at *9 (S.D. W. Va. July 25, 2018) (“The failure to respond to arguments raised in a motion for summary judgment can indicate that the non- moving party concedes the point or abandons the claim.”); see also Fields v. King, 576 F. Supp. 3d 392, 408 (S.D. W. Va. 2021). In light of these recent developments, only six claims now remain against Defendant McCown: (1) failure to provide medical care to Decedent in violation of the Fourteenth Amendment (Count II); (2) illegal seizure of Michelle in violation of the Fourth Amendment (Count IV); 5

(3) intentional infliction of emotional distress/tort of outrage (Count

5 The Fourth and Fourteenth Amendment claims are, of course, brought by way of 42 U.S.C. § 1983. VI(e)); (4) negligent infliction of emotional distress (Count VII(f)); (5) bystander liability (Count V); and (6) civil conspiracy (VI(h)). 6

Plaintiffs also brought several claims against the WVPSC Defendants. (See ECF No. 56 at 16–17, ¶ ¶ 69–74.) But, just as Plaintiffs abandoned many of their claims against Defendant McCown, they have also abandoned many claims against the WVPSC Defendants. (ECF No. 126 at 4.) As it currently stands, then, only the following three claims remain against the WVPSC Defendants: (1) vicarious liability (Count VIII); (2) negligent training (Count VII(b)); and (3) negligent supervision (Count VII(d)).

Plaintiffs’ vicarious liability claim against the WV PSC Defendants hinges in large part on whether Defendant McCown committed any wrongful act within the scope of his employment as a WVPSC officer. W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 766 S.E .2d 751, 767 (W. Va. 2014).

* * *

The Fourteenth Amendment’s Due Process Clause guarantees that pretrial detainees receive adequate medical care while in government custody. Martin v. Gentile, 849 F.2d 863, 870

Outcome: ORDER the Court DISMISSES John Does IX from this action; the Court further DISMISSES this action and DIRECTS the Clerk to remove this action from the Court's docket. Signed by Judge Thomas E. Johnston on 7/12/2024. (cc: counsel of record; any unrepresented party) (mfo)

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