Dean et al v. City of Kenova et al

Filing 160

MEMORANDUM OPINION AND ORDER granting in part and denying in part the 136 MOTION by City of Kenova, John/Jane Does, Bob Sullivan for Summary Judgment; granting this Motion insofar as it requests dismissal of Counts III, IV, and VI against Defendant s City of Kenova and John/Jane Does and denying it insofar as it requests dismissal of Count V against Defendant Sullivan; additionally denying the 138 MOTION by Charles Newman for Summary Judgment; finally, dismissing Counts III, IV, and VI of this action. Signed by Judge Robert C. Chambers on 5/19/2023. (cc: counsel of record and any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
OLIVIA DEAN, Administratrix of
the Estate of JAMES D. DEAN,
v.

Plaintiff,

CIVIL ACTION NO. 3:21-0197

CITY OF KENOVA,
(Kenova Police Department),
OFFICER CHARLES NEWMAN,
BOB SULLIVAN, and
JOHN/JANE DOES,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendants City of Kenova, Bob Sullivan, and John/Jane
Does’ Motion for Summary Judgment (ECF No. 136) and Defendant Newman’s Motion for
Summary Judgment (ECF No. 138). On May 16, 2023, the Court summarily DENIED the motions
for summary judgment as to the claims against Defendants Newman and Sullivan. ECF No. 159.
In support of that decision, the Court issues the following Memorandum Opinion and Order.
For the reasons below, the Court GRANTS IN PART AND DENIES IN PART
Defendants City of Kenova, Bob Sullivan, and John/Jane Does’ Motion for Summary Judgment
(ECF No. 136). The Court GRANTS this Motion insofar as it requests dismissal of Counts III, IV,
and VI against Defendants City of Kenova and John/Jane Does and DENIES it insofar as it
requests dismissal of Count V against Defendant Sullivan. Id. Additionally, the Court DENIES
Defendant’s Newman’s Motion for Summary Judgment on Counts I and II (ECF No. 138).

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BACKGROUND
Decedent James Dean was arrested by Defendant Charles Newman, an officer with the
City of Kenova Police Department, following a disturbance at Mr. Dean’s residence on April 5,
2019. Am. Compl. ¶ 1, ECF No. 12; Mem. of L. in Supp. of Def. Newman’s Mot. for Summ. J. at
1, ECF No. 139. When he arrived at the scene, Officer Newman was allegedly advised that Mr.
Dean had struck another officer, was combative while being placed in handcuffs, and made
threatening statements to a responding officer. Mem. of L. in Supp. of Def. Newman’s Mot. for
Summ. J. at 6, ECF No. 139. Officer Newman transported Mr. Dean to jail, alleging that Mr. Dean
became combative during the drive and threatened to murder him. Id. at 1.
While walking Mr. Dean into the sally port of the police station, Officer Newman alleges
that Mr. Dean “assumed an aggressive posture” such that Officer Newman believed that Mr. Dean
was going to harm him. Id. Officer Newman then took Mr. Dean to the ground. Id. Mr. Dean was
handcuffed at the time and struck his head on the concrete floor. Resp. of Def. Newman’s Mot. for
Summ. J. at 1-2, ECF No. 148. Though the details of this takedown are in dispute, both parties
seem to concede that it resulted in a single blow to the head. Id. Plaintiff initially alleged that
Jane/John Does either participated in beating Mr. Dean themselves or witnessed a beating and
failed to intervene on Mr. Dean’s behalf. Am. Compl. ¶ 17, ECF No. 12. Since this allegation,
Plaintiff’s non-retained expert witness, Dr. Savasman, has testified that Mr. Dean’s injuries are
consistent with a single blow to the head, Other Defs.’ Mem. of L. in Supp. of Their Mot. for
Summ. J. at 4-5, ECF No. 137, and Plaintiffs have voluntarily withdrawn their claims against
John/Jane Does, Resp. of Def. Newman’s Mot. for Summ. J. at 3-4, ECF No. 148.
Following Mr. Dean’s injury, emergency services were contacted, and Mr. Dean was
transported to Cabell Huntington Hospital. Mem. of L. in Supp. of Def. Newman’s Mot. for Summ.

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J. at 1-2, ECF No. 139. In the initial hours following his admission, Mr. Dean was allegedly
“awake, alert, conversant, and combative with hospital staff.” Id. at 2. Mr. Dean received several
procedures at the hospital, including an emergency craniotomy, intubation, and sedation—
however, after seventeen days there, he passed away of a subdural hematoma caused by blunt force
trauma to his head. Id. at 2; Resp. of Def. Newman’s Mot. for Summ. J. at 1-2, ECF No. 148.
While a surveillance system initially captured Mr. Dean’s injury, only a short, blurry cell
phone video that captures the original footage exists today. Ex. 9, ECF No. 151. Defendant Bob
Sullivan, chief of police of the City of Kenova Police Department, testified that he watched the
surveillance footage close to the time of Mr. Dean’s injury. Pl.’s Resp. to Other Defs.’ Mot. for
Summ. J. at 4-7, ECF No. 154. Chief Sullivan claims that he eventually contacted Tri-State
Security Systems to arrange preserving the footage, though by the time Tri-State responded to this
request, the footage was gone. Id. at 6, 8; Other Defs.’ Mem. of L. in Supp. of Their Mot. for
Summ. J. at 9, 11, ECF No. 137. Testimony from Mr. Steinhauer, a Tri-State employee, establishes
that at the time of the incident, Tri-State had switched over to a new surveillance system with a
shorter writeover rate and that footage was erased every five-to-seven days, as opposed to its
previous thirty-day rate. Other Defs.’ Mem. of L. in Supp. of Their Mot. for Summ. J. at 9-12,
ECF No. 137. Mr. Steinhauer did not recall ever informing the police department of this change.
Id. at 10-11. During discovery, a cell phone video recording of the surveillance footage was
recovered, though it is not clear whose phone it was obtained from. Id. at 12. The cell phone video
is short and blurry and only depicts a few seconds prior to Mr. Dean’s injury. Ex. 9, ECF No. 151.
In the instant action, Plaintiff, the administratix of Mr. Dean’s estate, brings six claims
against Defendants. Am. Compl., ECF No. 12. Three counts arise under 42 U.S.C. § 1983: Counts
I and III allege a Fourth Amendment violation against Officer Newman and John/Jane Does,

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respectively, and Count IV alleges a deliberate indifference claim against the City of Kenova. Id.
The additional claims include a state law claim for reckless/malicious conduct against Officer
Newman (Count II), a state law spoliation/fraud claim against Chief Sullivan (Count V), and a
negligence claim against the City of Kenova (Count VI). Id. In their respective motions for
summary judgment, Defendants argue that summary judgment is warranted as to all claims against
them. Defs. City of Kenova, Sullivan, and Does’ Mot. for Summ. J., ECF No. 136; Def. Newman’s
Mot. for Summ. J., ECF No. 138.
LEGAL STANDARD
To obtain summary judgment, the moving party must show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in
the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable
to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence
from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S.
at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on
an essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of
evidence” in support of his or her position. Anderson, 477 U.S. at 252.
DISCUSSION
As a preliminary matter, the Court acknowledges that Plaintiff has voluntarily withdrawn
Counts III and IV, which allege § 1983 claims for excessive force against John/Jane Does and for
deliberate indifference against the City of Kenova, respectively. See Pl.’s Resp. to Other Defs.’
Mot. for Summ. J. at 2, ECF No. 154. Accordingly, Counts III and IV are DISMISSED.
Turning to the remaining counts, the Court declines to dismiss Counts I and II against
Defendant Newman and Count V against Defendant Sullivan, finding that there are material issues
of fact that preclude summary judgment. The Court does, however, grant summary judgment to
the City of Kenova as to Count VI, as the City is immune from liability under West Virginia Code
§ 29-12A-5(a)(5). The Court addresses each of these claims below.
I.

Count I
In his motion to dismiss, Officer Newman argues that qualified immunity shields him from

Count I, which states a claim for a violation of Mr. Dean’s Fourth Amendment right to be free
from unreasonable search and seizures and unreasonable intrusions on his bodily integrity. Am.
Compl. ¶ 8, ECF No. 12. In assessing whether qualified immunity is warranted, courts apply a
two-step test. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Pearson v. Callahan, 555
U.S. 223, 231 (2009)). First, they determine “whether the facts viewed in [the plaintiff’s] favor
make out a violation of constitutional rights, and second, whether that violated right was clearly
established at the time.” Id. The plaintiff bears the burden of proving the first prong, and the

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defendant bears the burden of proving the second. 1 Id. The Court addresses each step of the federal
qualified immunity analysis below.
A. Constitutional violation
Officer Newman first argues that he is entitled to qualified immunity because the force he
used against Mr. Dean was not objectively unreasonable. Mem. of L. in Supp. of Def. Newman’s
Mot. for Summ. J. at Sec. III.A.1, ECF No. 139. In use of deadly force claims, courts examine
objective reasonableness by considering “whether the hypothetical reasonable officer in that
situation would have had ‘probable cause to believe that the suspect pose[d] a threat of serious
physical harm, either to the officer or to others.’” Stanton, 25 F.4th at 233 (quoting Waterman v.
Batton, 393 F.3d 471, 477 (4th Cir. 2005)). This analysis should focus on the “moment that deadly

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Officer Newman argues that the plaintiff bears the burden of proving both the first and the second
prong of the qualified immunity analysis. Mem. of L. in Supp. of Def. Newman’s Mot. for Summ.
J. at 11, ECF No. 139 (citing City of Tahlequah v. Bond, 142 S. Ct. 9, 12 (2021)). In doing so, he
cites City of Tahlequah, in which the Supreme Court found that a right was not clearly established
where the plaintiff and the panel had not been able to identify “a single precedent finding a Fourth
Amendment violation under similar circumstances.” 142 S. Ct. at 12. Later, in his Reply, Officer
Newman cites Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021), for the same proposition. Reply
to Pl.’s Resp. to Def. Newman’s Mot. for Summ. J. at 8, ECF No. 155. However, these cases arise
out of different circuits. The Fourth Circuit allocates the burdens of proof in the qualified immunity
analysis differently than the Ninth and Tenth Circuits. Compare Stanton, 25 F.4th at 233 (“In the
Fourth Circuit, we have a split burden of proof for the qualified-immunity defense. The plaintiff
bears the burden on the first prong, and the officer bears the burden on the second prong.”), and
Bygum v. City of Montgomery, No. 21-2130, 2023 WL 2203591, at *4 (4th Cir. Feb. 24, 2023)
(“The burden of proof in this circuit is the plaintiff's on the first question and the defendants’ on
the second.”), with Crittenden v. City of Tahlequah, 786 Fed. App’x 795, 800 (10th Cir. 2019) (“In
the face of a qualified immunity defense, the plaintiff must carry a heavy burden to show that: (1)
defendant's actions violated a constitutional right, and, if so, (2) the right was clearly established
at the time of defendant's unlawful conduct.”), and Clairmont v. Sound Mental Health, 632 F.3d
1091, 1109 (9th Cir. 2011) (“The plaintiff bears the burden to show that the contours of the right
were clearly established.”). This Court follows the clear precedent set down by the Fourth Circuit:
the burden of proving a right has not been clearly established falls on the defendant.
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force was used,” as “the justification for deadly force can fall away in seconds.” Id. (citations
omitted). In doing so, courts should “avoid hindsight bias,” id., and “allow[] for the fact that police
officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
situation.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting Graham v. Connor, 490 U.S.
386, 396–97 (1989)).
Viewing the facts in a light most favorable to Plaintiff, however, there are genuine
questions of material fact as to whether Officer Newman had probable cause to believe that Mr.
Dean posed a threat of serious, physical harm. Namely, based on the recovered cell phone video,
a reasonable jury may doubt Officer Newman’s assertion that Mr. Dean “was squaring off to
assume a combative stance” and “was learning toward” him in the seconds preceding Mr. Dean’s
injury. Mem. of L. in Supp. of Def. Newman’s Mot. for Summ. J. at 7, ECF No. 139. Further, as
the Fourth Circuit cautioned in Stanton, courts confronted with deadly force cases “should be
careful at summary judgment to avoid simply accepting an officer's self-serving statements and
must consider all contradictory evidence.” 25 F.4th at 234. Here, in light of the video, there is a
genuine question of material fact as to whether Defendant Newman’s story is true and
subsequently, whether his actions were objectively reasonable.
B. Clearly established analysis
Officer Newman then argues that he is entitled to qualified immunity even if his actions
were objectively unreasonable—he claims that Plaintiff cannot point to any specific case that
would put him on notice as to his conduct, meaning that Plaintiff cannot show any violation of a
clearly established right. Mem. of L. in Supp. of Def. Newman’s Mot. for Summ. J. at Sec. III.A.2.,
ECF No. 139. “A right is clearly established only if its contours are sufficiently clear that ‘a
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reasonable official would understand that what he is doing violates that right.’” Carroll v. Carman,
574 U.S. 13, 16 (2014) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Though the
Supreme Court has cautioned courts against defining the right at too “high [a] level of generality,”
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011), the Fourth Circuit has held that “clearly established
‘includes not only already specifically adjudicated rights, but those manifestly included within
more general applications of the core constitutional principle invoked.’” Bygum, 2023 WL
2203591, at *6 (quoting Wall v. Wade, 741 F.3d 492, 502–03 (4th Cir. 2014)).
Accordingly, “the test is not whether ‘the very action in question has previously been held
unlawful,’” but rather “whether pre-existing law makes the unlawfulness of an act ‘apparent.’” Id.
(citing Clem v. Corbeau, 284 F.3d 543, 555 (4th Cir. 2002)). This means "government officials
can be expected to know that if X is illegal, then Y is also illegal, despite factual differences
between the two.” Id. (quoting Williams v. Strickland, 917 F.3d 763, 770 (4th Cir. 2019)).
Moreover, a defendant could violate a clearly established constitutional right even if faced with a
novel circumstance, “so long as the law provided ‘fair warning’ that their conduct was
unconstitutional.” Id. (quoting Booker v. SC Dep’t of Corr., 855 F.3d 533, 538 (4th Cir. 2017)).
Here, Officer Newman has not met his burden of showing that the constitutional right at
issue was not clearly established. He cites two cases, Mitchell v. Richter, No. 15-CV-1520-JPS,
2017 WL 752162, at *9 (E.D. Wis. Feb. 27, 2017), and Davis v. Leginza, No. 16-CV-10763, 2021
WL 1172599, at *3 (N.D. Ill. Mar. 29, 2021), for the proposition that “simply pushing a
noncompliant inmate does not run afoul of the constitution.” Mem. of L. in Supp. of Def.
Newman’s Mot. for Summ. J. at 12, ECF No. 139. However, these cases are not instructive—
neither arises out of the Fourth Circuit, and both are factually inapposite to the circumstances here.
For example, in Mitchell, surveillance footage showed that the officer had only lightly pushed the

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plaintiff into a cell, and that the plaintiff only “took one overlong stride” as a result. 2017 WL
752162, at *4, *4 n.7. Likewise, in Davis, video footage showed that the plaintiff was actively and
repeatedly resisting a police escort by shrugging his shoulders, attempting to pull away, and
kicking water at the officers. 2021 WL 1172599, at *2-3. Here, unlike the officer in Davis who
only lightly pushed an inmate, Officer Newman tackled a handcuffed Mr. Dean to ground, leaving
Mr. Dean’s head exposed. And here, unlike the plaintiff’s continuing efforts to resist officers in
Davis, Mr. Dean does not appear to be actively resisting arrest at the time he was tackled.
Even if the burden were not on the defendant, the Court would still find that Fourth Circuit
precedent provides fair warning that knocking a handcuffed, nonthreatening, and unarmed
individual to the ground violates a clearly established constitutional right. For example, in Jones
v. Buchanan, 325 F.3d 520 (4th Cir. 2003), officers violated a plaintiff’s clearly established
constitutional rights when they knocked him to the ground and jumped on him. Id. at 524, 531.
Even though the plaintiff was trying to move his handcuffed hands to the front of his body at the
time, the Fourth Circuit held that the force used was unreasonable because the plaintiff (1) was
neither armed, nor suspected to be armed, (2) did not pose any immediate threat to anyone until
officers entered the processing room, and (3) was handcuffed at the time. Id. at 528-29. That the
plaintiff was handcuffed factored heavily into the Fourth Circuit’s analysis—in so finding, the
Court relied on Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002), to reason that where an officer
allegedly assaulted a handcuffed plaintiff “it is difficult to discern ‘any legitimate law enforcement
need’ for the force applied.” Jones, 325 F.3d at 529-30 (citing Lee, 284 F.3d at 1198). Likewise,
in Smith v. Ray, 781 F.3d 95 (4th Cir. 2015), the Fourth Circuit found an officer had violated a
plaintiff’s clearly established constitutional rights when he, inter alia, yanked her up by her
ponytail while she was handcuffed and had no reason to suspect that she was armed. Id. at 103

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(finding that the officer could not “justify yanking [the plaintiff] up by her hair once she was
handcuffed and under his control”); see also Rowland v. Perry, 41 F.3d 167, 171 (4th Cir. 1994)
(finding a violation of a clearly established constitutional right where plaintiff instinctively tried
to escape an officer’s grasp and the officer responded by punching the plaintiff and throwing him
down).
Because (1) Plaintiff has shown there is a material question of fact as to whether the force
used was objectively reasonable, and (2) Officer Newman has failed to show that the constitutional
right was not clearly established, the Court finds that Officer Newman is not entitled to qualified
immunity. Accordingly, the Court DENIES Officer Newman’s Motion for Summary Judgment as
to Count I. ECF No. 138.
II.

Count II
In Count II, Plaintiff alleges a state law claim for reckless and malicious conduct. Id. ¶¶

11-13. Officer Newman argues that this count fails because there is no evidence that his use of
force was unreasonable. Mem. of L. in Supp. of Def. Newman’s Mot. for Summ. J. at 13, ECF No.
139. He also contends that summary judgment is warranted as to this claim, because Plaintiff does
not directly address it in her Response. Reply to Pl.’s Resp. to Def. Newman’s Mot. for Summ. J.
at 1-2, ECF No. 155. For reasons discussed in Sec. I.A., supra, this argument does not hold weight.
The Court finds there are material questions of fact as to whether Officer Newman’s conduct was
objectively reasonable and likewise, whether it was malicious or reckless in nature. Counts I and
II hinge on the same set of operative facts, so a material question of fact as to one implicates a
material question of fact as to the other. In responding to Officer Newman’s arguments as to the
objective reasonableness analysis in Count I, Plaintiff also establishes that there are material
questions of fact as to whether Officer Newman’s actions were malicious or reckless. See Resp. to
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Def. Newman’s Mot. for Summ. J. at 6-9, ECF No. 148. The Court, therefore, DENIES Officer
Newman’s Motion for Summary Judgment as to Count II. ECF No. 138.
III.

Count V
Count V, which states a spoliation/fraud claim against Defendant Sullivan, also survives.

A state law claim for intentional spoliation of evidence requires proof of the following elements:
(1) a pending or potential civil action; (2) knowledge of the spoliator of the pending or potential
civil action; (3) willful destruction of evidence; (4) the spoliated evidence was vital to a party’s
ability to prevail in the pending civil action; (5) the intent of the spoliator to defeat a party’s ability
to prevail in the civil action; and (6) damages. Syl. Pt. 8, Hannah v. Heeter, 584 S.E.2d 560 (W.
Va. 2003).
Plaintiff argues there are material issues of fact as to this count that preclude summary
judgment. Pl.’s Resp. to Other Defs.’ Mot. for Summ. J. at Sec. III.A., ECF No. 154. She claims
that Chief Sullivan’s deposition testimony establishes that he was aware of a potential civil action
and the importance of the video in that action. Id. at 4-5. Plaintiff further contends that Chief
Sullivan’s intent to destroy the evidence can be inferred by his response to her FOIA request, in
which he claimed there was no recoverable video of the incident. Id. at 8. Defendants respond that
the record fails to show that any spoliation was intentional, given that Tri-State Security changed
the surveillance system months before the incident and there is no evidence that Chief Sullivan
was aware of the effects of this change. Other Defs.’ Mem. of L. in Supp. of Their Mot. for Summ.
J. at Sec. III.C., ECF No. 137.
The Court finds that there are material questions of fact as to whether the spoliation was
intentional. At the motions hearing on May 16, 2023, defense counsel argued that there is no
evidence that Chief Sullivan knew how to operate the surveillance system, was aware of the
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timeline in which it had to be preserved, or knew that the footage would be important in a pending
civil action. However, given Chief Sullivan’s failure to timely preserve the footage, his denial that
there was any recoverable footage of the incident in his FOIA response, and the fact that the
surveillance system manual was likely onsite, a reasonable jury could find that Chief Sullivan
willingly let the footage be erased, knowing that it could be important in a pending civil action.
Finally, though neither party mentioned it at the motions hearing on May 16, 2023, the Court
observed that in the recovered cell phone video, a voice can be heard saying, “You might be able
to get that out on the drive. I don’t know” and then another voice responding, “No. This is way
faster.” Ex. 9, ECF No. 151. This means that at least one individual who viewed the original
surveillance footage recognized that (1) it could be downloaded onto the drive and preserved, (2)
the footage was important enough to warrant preserving. Given these facts, a reasonable jury could
find that Chief Sullivan’s failure to preserve the footage constitutes willful destruction of it.
Finally, Chief Sullivan argues there is no evidence that the spoliated footage was vital to
Plaintiff’s ability to prevail or that Plaintiff suffered any damage as a result. Other Defs.’ Mem. of
L. in Supp. of Their Mot. for Summ. J. at 12, ECF No. 137. Namely, he contends that the allegedly
spoliated footage cannot be vital because the alternate video clip was produced. Other Defs.’ Reply
to Pl.’s Resp. at 2, ECF No. 156. This argument fails, however—the available video clip provides
only a short, blurry insight into the seconds immediately preceding Mr. Dean’s injury, and
Newman claims that Mr. Dean was moving in a threatening manner while being led into the
doorway. Being able to view the surveillance footage directly would have given the trier of fact a
more complete, clearer insight into the events leading up to Mr. Dean’s injury. Such insight could
have been vital to Plaintiff’s case.

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Because there are material questions of fact regarding Plaintiff’s claim for spoliation, the
Court DENIES Defendant Sullivan’s Motion for Summary Judgment as to Count V. ECF No. 136.
IV.

Count VI
Defendant City of Kenova is not liable for Count VI, however, as they are immune from

liability under West Virginia Code § 29-12A-5(a)(5). Count VI alleges a negligence claim against
the City of Kenova for Defendant Newman’s alleged excessive force and Defendant Sullivan’s
alleged spoliation of evidence. Am. Compl. ¶ 35, ECF No. 12. It arises under West Virginia Code
§ 29-12A-4(c)(2), which provides that political subdivisions are liable for damages caused by the
negligence of employees acting within the scope of their employment. Pl.’s Resp. to Other Defs.’
Mot. for Summ. J. at 9, ECF No. 154.
Defendant argues it is immune from liability because “the loss or claim results from . . .
the failure to provide, or the method of providing, police, law enforcement or fire protection.”
Other Defs.’ Mem. of L. in Supp. of Their Mot. for Summ. J. at 13, ECF No. 137 (citing W. Va.
Code § 29-12A-5(a)(5)). Plaintiff claims this provision only applies to the “formulation and
implementation of policy related to how police, law enforcement, or fire protection is to be
provided.” Pl.’s Resp. to Other Defs.’ Mot. for Summ. J. at 9, ECF No. 154 (quoting Syl. Pt. 3,
Beckley v. Crabtree, 428 S.E.2d 317 (W. Va. 1993)). Defendant also claims Plaintiff cannot
maintain this action, as West Virginia does not recognize negligent spoliation of evidence as a
stand-alone tort when it results from the negligence of a party to a civil action. Other Defs.’ Mem.
of L. in Supp. of Their Mot. for Summ. J. at 14, ECF No. 137. This is because “the adverse
inference instruction and the sanctions provided by West Virginia Rule of Civil Procedure 37 are
sufficient remedies when a party to an action negligently fails in his or her duty to preserve relevant
evidence.” Id. (quoting Hannah, 582 S.E.2d at 568). Plaintiff only responds to this argument via
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footnote, in which she contends the claim is permissible because the City is a party due to statutory
vicarious liability, rather than independent tortious acts. Pl.’s Resp. to Other Defs.’ Mot. for Summ.
J. at 11 n.4, ECF No. 154.
The Court need not reach the issue of whether the spoliation claim can stand against a party
in this action, as Defendant City of Kenova is shielded from liability by § 29-12A-5(a)(5). As this
Court and others have found, § 29-12A-5(a)(5) protects political subdivisions “from the negligent
actions of their employees in providing police protection.” Daniels v. Wayne Cnty., No. 3:19-0413,
2020 WL 2543298, at *4 (S.D.W. Va. May 19, 2020) (citing Taylor v. Clay Cnty. Sheriff's Dep’t,
No. 2:19-cv-00387, 2020 WL 890247, *6 (S.D.W. Va. Feb. 24, 2020)); see Fields v. King, 576 F.
Supp. 3d 392, 403 (S.D.W. Va. 2021); Means v. Peterson, No. 2:20-CV-00561, 2020 WL
6702036, at *4 (S.D.W. Va. Nov. 13, 2020) (“A municipality is not liable for damages that result
from the negligence of a municipal employee when that negligence occurs in furtherance of
providing police, law enforcement, or fire protection.”). Both Officer Newman and Chief Sullivan
were municipal employees providing police protection at the time of the allegedly negligent acts.
The City of Kenova, as a political subdivision, is therefore shielded from any claims of negligence
resulting from their actions. The Court, therefore, GRANTS Defendant City of Kenova’s Motion
for Summary Judgment as to Count VI. ECF No. 136.
CONCLUSION
For the reasons above, the Court GRANTS IN PART AND DENIES IN PART
Defendants City of Kenova, Bob Sullivan, and John/Jane Does’ Motion for Summary Judgment
(ECF No. 136). The Court GRANTS this Motion insofar as it requests dismissal of Counts III, IV,
and VI against Defendants City of Kenova and John/Jane Does and DENIES it insofar as it
requests dismissal of Count V against Defendant Sullivan. Id. Additionally, the Court DENIES

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Defendant’s Newman’s Motion to Dismiss Counts I and II (ECF No. 138). Finally, the Court
DISMISSES Counts III, IV, and VI of this action.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER:

May 19, 2023

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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