United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON UNITED STATES DISTRICT JUDGE.
before the Court is Defendants' Motion for Summary
Judgment. (ECF No. 28.) For the reasons that follow, the
motion is GRANTED.
case arises from the shooting death of Richard D. Kohler by a
Special Response Team (“SRT”) of the West
Virginia State Police. Plaintiff Tammi Hicks, Mr.
Kohler's daughter, brings this action on behalf of his
estate. Some material facts remain in dispute, but the
following provides a general summary of the facts surrounding
the shooting, recounted primarily by the members of the SRT,
the only surviving witnesses.
early morning hours of June 26, 2013, an SRT comprised of
eight West Virginia State Police (“WVSP”)
troopers approached Mr. Kohler's mobile home in Maysel,
Clay County, West Virginia. The troopers had come to execute
a search warrant, the product of a months-long investigation
into Mr. Kohler's alleged trafficking of opiate
painkillers. The warrant conferred authority on the SRT to
seize stolen goods that Mr. Kohler reportedly stored at his
residence to trade for opiate pills. The troopers approached
with caution. Earlier that morning, they had met with certain
members of a local Drug Enforcement Administration
(“DEA”) task force to review a plan for the
tactical entry into Mr. Kohler's home. There, they
learned from DEA Task Force Officer W.M. Comer that Mr.
Kohler was rumored to be paranoid and, despite his status as
a prohibited person, kept several firearms at his residence
which Mr. Kohler had vowed to use against any law enforcement
agent that entered his property. (R. of Investigation at 8,
ECF No. 28-1.)
the DEA task force members staged approximately one-half mile
away, the WVSP SRT assembled on Mr. Kohler's porch. Each
trooper was armed, according to police records, with either a
.223 caliber rifle or .45 caliber pistol. (See R. of
Investigation at 1-3, 5-6.) The SRT knocked on the front door
and announced their presence, yelling, “West Virginia
State Police, search warrant!” (Id. at 13.)
The SRT received no audible response from Mr. Kohler, but
heard shuffling and “thumping noises” from within
the trailer. (Id. at 14.) Some troopers reported
that they saw a window air conditioning unit moving.
(Whittington Decl. at 1, ECF No. 28-3 at 8; Stalnaker Decl.
at 1, ECF No. 28-3 at 22.) After a “reasonable amount
of time” passed, the SRT made the decision to manually
breach Mr. Kohler's front door. (Mefford Decl. at 1, ECF
No. 28-3 at 26.)
manner of the breach is the primary point of factual
contention in this case. For their part, the troopers
describe using a ram and a Halligan tool to force open the
door. (R. of Investigation at 9.) Plaintiff, on the other
hand, claims that the troopers fired through the trailer door
with a shotgun while it remained closed, supposedly in an
attempt to dislodge the door from its hinges. No matter how
effected, the breach was successful. As the door swung open,
the SRT came face to face with Mr. Kohler, who stood in the
hallway of the trailer with a rifle pointed straight at them.
Defendants Oglesby, Harper, Lowe, and Mefford all opened fire
and Mr. Kohler was killed in the barrage of bullets that
sues the SRT entry team (Defendants Harris, Mefford, Oglesby,
Lowe, Harper, Whittington, Drake, and Hensley); five
additional WVSP troopers who were on duty near the vicinity
of Mr. Kohler's home on the morning of his death
(Defendants Adkins, Berry, Campbell, J.M. Comer, and Totten);
Task Force Officer W.M. Comer; and the WVSP. The
Complaint's first and third counts allege federal
constitutional claims under 42 U.S.C. § 1983 and consist
of a due process claim under the Fourteenth Amendment (Count
I) and an excessive force claim under the Fourth Amendment
(Count III). The second and fourth claims, which arise under
state law, allege a state constitutional claim under Article
III, Section 6 of the West Virginia Constitution (Count II),
and common law battery (Count IV).
have moved for summary judgment on all counts. Defendants
contend that summary judgment must be entered in favor of the
WVSP, because it is not a “person” within the
meaning of § 1983, and in favor of Defendants Campbell,
J.M. Comer, K.H. Totten, and W.M. Comer, because no evidence
has been developed proximately connecting them to the events
at issue. With respect to the federal claims, Defendants
invoke the protections of qualified immunity and argue that
the troopers' use of force against Mr. Kohler was
objectively reasonable. The motion has been fully briefed and
is ready for disposition.
of the Federal Rules of Civil Procedure governs motions for
summary judgment. That rule provides that summary judgment
should be granted if “there is no genuine dispute as to
any material fact.” Fed.R.Civ.P. 56(a). A genuine
dispute of material fact exists if, in viewing the record and
all reasonable inferences drawn therefrom in a light most
favorable to the non-moving party, a reasonable fact-finder
could return a verdict for the non-movant. See Fed.
R. Civ. P. 56(e). The moving party bears the initial burden
of showing that there is no genuine issue of material fact,
and that he is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). “The burden then shifts to the nonmoving party
to come forward with facts sufficient to create a triable
issue of fact.” Temkin v. Frederick Cnty.
Comm'rs, 945 F.2d 716, 718-19 (4th Cir. 1991). The
non-moving party must offer some “concrete evidence
from which a reasonable juror could return a verdict in [her]
favor.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986).
party may support her factual assertions by citing to almost
any material in the summary judgment record, Fed.R.Civ.P.
56(c)(1), the opposing party may object on grounds that
“the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2). Under Rule 56, a
court may consider only evidence that can be reduced to
admissible form in ruling on a summary judgment motion.
See id.; Kennedy v. Joy Techs., Inc., 269
Fed. App'x 302, 308 (4th Cir. 2008) (“In assessing
a summary judgment motion, a court is entitled to consider
only the evidence that would be admissible at trial.”
(citation omitted)). Thus, hearsay statements and unsupported
speculation cannot support or defeat a motion for summary
judgment. See Greensboro Prof'l Firefighters
Ass'n v. City of Greensboro, 64 F.3d 962,
967 (4th Cir. 1995); Ennis v. Nat'l Ass'n of Bus.
& Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
concedes much in her response to the motion for summary
judgment. For starters, Plaintiff agrees that summary
judgment should be entered in favor of the WVSP as well as in
favor of Defendants N.K. Campbell, J.M. Comer, K.H. Totten,
and W.M. Comer. In harmony with these concessions, the Court
grants summary judgment as to Counts I, II, and III against
these Defendants. Plaintiff further admits that the battery
claim alleged in Count IV does not survive Mr. Kohler's
death, see Ray v. Cutlip, No. 2:13-cv-75, 2014 WL
858736, at *2 (N.D. W.Va. Mar. 5, 2014), and this claim will
be summarily dismissed as well. This leaves the due process
and excessive force claims under § 1983 (Counts I and
III), and the West Virginia state constitutional claim (Count
II), and only against the members of the SRT in their
individual capacities: Defendants C.L. Adkins, T.L. Berry,
R.J. Drake, S.T. Harper, J.K. Harris, J.D. Hensley, B.A.
Lowe, R.L. Mefford, M.L. Oglesby, and A.M. Whittington
(hereinafter “Defendants”). Defendants request
the entry of summary judgment on the due process § ...