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Hicks v. Oglesby

United States District Court, S.D. West Virginia, Charleston Division

December 28, 2016

TAMMI HICKS, et al., Plaintiffs,
1st SGT. M.L. OGLESBY, II, et al., Defendants.



         Pending before the Court is Defendants' Motion for Summary Judgment. (ECF No. 28.) For the reasons that follow, the motion is GRANTED.

         I. BACKGROUND

         This 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.

         In the 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.[1] 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.)

         With 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.)

         The 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 followed. (Id.)

         Plaintiff 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).

         Defendants 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.


         Rule 56 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).

         While a 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).


         Plaintiff 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 § ...

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