Shinnston wins civil rights suit filed against it

By Lawrence Smith | Sep 20, 2013

Debra Herndon

CLARKSBURG - Finding they did not act with malice or in concert with one another, a judge has dismissed a Harrison County man’s civil rights suit against the city of Shinnston, one of its police officers and its city manager.

U.S. District Judge Irene M. Keeley on Sept. 9 granted summary judgment to the City, Rick Barnhart and Debra Herndon. In her 33-page opinion, Keeley said Vincent P. Davis failed to substantiate in his lawsuit filed 18 months earlier how Barnhart and Herndon violated his civil rights when they involved themselves in a dispute over repairs to Herndon’s son and daughter-in-law’s home.

According to court records, Chris and Tina Herndon on Aug. 12 and Sept. 9, 2009, signed contracts with Davis for various home repairs. Though they made the initial payments, the Herndons refused to pay him the balances due as a result of Davis’ failure to complete the jobs, it is alleged.

The dispute between them came to a head in April 2010 when the Herndons called 911 to complain of Davis’ men removing lumber from their property without permission. It is unclear when Debra Herndon, Chris’ mother and Shinnston’s city manger, encouraged Barnhart, the responding officer, to investigate claims of work Davis allegedly failed to perform.

According to court records, upon further investigation and in consultation with then-Assistant Harrison County Prosecuting Attorney Kurt Hall, Barnhart on June 19, 2010, filed a criminal complaint against Davis for accepting money under false pretenses. He was later indicted by the Harrison grand jury for fraudulent schemes.

Because he was on parole for an unrelated charge, Davis was denied bond and remained incarcerated until this trial in March 2011, and he was found not guilty. However, for reasons that are unclear, he was not released until almost two months later.

In his suit filed in March 2012 against the City, Barnhart and Herndon for civil rights violations, Davis made claims alleging conspiracy, malicious prosecution and intentional or reckless infliction of emotional distress. However, Keeley said all of his claims fall flat in light of sufficient probable cause Barnhart had to file the criminal complaint against him.

“Despite the fact he did not interview Davis or his employees,” Keeley said, “Lt. Barnhart possessed enough evidence to reasonably assume that probable cause existed to seek Davis’s arrest. He visited the Herndons' house, where he not only spoke with them about Davis’ failure to complete the contract, but also looked over the house and observed... the incomplete work."

“Moreover,” she added, “Davis has acknowledged that he has not, in fact, completed his side of the bargain with the Herndons.”

Also, Keeley cited the U.S. Court of Appeals for the Fourth Circuit's 2000 opinion in Wadkins v. Arnold that an officer seeking advice of a prosecutor prior to filing charges “weighs heavily toward a finding that [the officer] is immune” unless he “provided misleading information to the [prosecutor].”

Additionally, the fact Barnhart initiated an investigation against Davis at Herndon’s request alone is not grounds to prove she in her capacity as Shinnston city manager ordered him to act, Keeley said. Instead, Keeley said Herndon’s request was no different from any other citizen making seeking the involvement of the police in a suspected crime.

“In her capacity as City Manager,” Keeley said, “she conveyed her son and daughter-in-law’s complaints about Davis’s work to Lt. Barnhart, suggesting he investigate it further. Davis had proffered no evidence that she was involved in this matter beyond that.”

Davis was represented by Clarksburg attorneys Daniel and Jamison Cooper, and the City, Barnhart and Herndon where defended by Boyd Warner, and Travis Austin Prince with the Clarksburg law firm of Waters, Warner and Harris.

U.S. District Court for the Northern District of West Virginia case number 12-cv-53

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