West Virginia Record

Tuesday, July 23, 2019

Supreme Court allows excessive force lawsuit to continue

State Supreme Court

By Kyla Asbury | Mar 27, 2019

CHARLESTON — The West Virginia Supreme Court of Appeals ruled that an excessive force lawsuit can continue in Kanawha Circuit Court.

The Supreme Court agreed with Kanawha Circuit Judge Joanna Tabit, who issued an order denying prison employees' motion to dismiss an excessive force lawsuit.

"Following our review of the briefs, the arguments of counsel, the appendix record submitted, and the applicable law, this Court finds no reversible error and affirms the circuit court’s denial of summary judgment based on qualified immunity grounds," the March 25 opinion states.

Justice Margaret Workman authored the majority opinion. Justice Evan Jenkins dissented and reserved the right to file a dissenting opinion later.

The two appeals were consolidated for the opinion. The petitioners, Mount Olive Correction Center Warden David Ballard and correctional officers Kevin McCourt, Jess Mattox and Hobert Allen, appealed the Kanawha Circuit Court's March 9, 2017, order.

Tabit found the petitioners were not entitled to summary judgment because there were genuine issues of material fact concerning the excessive force, deliberate indifference and supervisory liability claims brought against them by Miguel Delgado, an inmate at Mount Olive, the respondent in the appeals.

On May 23, 2015, Joyce Coleman, a nurse, accompanied McCourt and another officer, Brandon Mooney, while distributing medications to prisoners. During the dispensing of medication, Delgado repeatedly stated that he needed to ask the nurse a question until the nurse responded with, "What is it? I'm busy."

Delgado became frustrated with Coleman's replies that she was busy with "a thousand other inmates" and threatened to report her to the board of nursing, to which she replied by shouting the board's address and she walked away. McCourt warned Delgado that he was getting close to getting written up, to which he replied that he did not care and that McCourt should "go home too and kill yourself."

Delgado claimed 10 minutes later, McCourt, Mooney and Maddox entered his cell and re-engaged with him, threatening disciplinary action and telling him he had a smart mouth. Delgado responded to write him up and the officers threatened to spray him with Oleoresin Capsicum pepper spray.

The correctional officers sprayed him with the pepper spray and he suffered from burning eyes and skin and restricted airways that caused him to feel like he couldn't breathe. When he attempted to use his sink to ring the pepper spray from his face and skin, the officers shut off the water to his cell and left him alone for approximately 10 minutes before taking him for decontamination.

The officers refused to remove Delgado's handcuffs so that he could undress for decontamination, but accused him of refusing decontamination and then took him to Coleman for medical evaluation.

Delgado claims Coleman asked what was wrong and he explained the pain in his arm and wrist from the awkward angle he was held in when he was handcuffed, as well as his skin hurting from the pepper spray and that Coleman refused to examine him and, instead, went to the other side of the room, sat down and began reading a book.

Delgado was finally able to shower approximately one hour after the incident. 

The officers claim Delgado had threatened to kill Coleman and that they had returned to his cell after escorting Coleman away to calm him down. They claim Delgado ignored multiple verbal commands to cease creating a disturbance and that they sprayed the pepper spray into his cell to gain compliance and restore order to the unit.

The officers claim Delgado's water was shut off due to his prior history of flooding his cell and that he refused decontamination when they escorted him to the recreation yard to remove the pepper spray-covered clothing.

The officers claimed Coleman found no injuries on Delgado. Coleman's own incident report is inconsistent with the officers' report, as she stated that Delgado refused medical assessment, according to the opinion.

Delgado exhausted administrative remedies concerning the incident and filed a lawsuit with Kanawha Circuit Court.

The circuit court found that summary judgment was improper because the resolution of immunity and the substantive claims were dependent upon a determination of conflicting evidence. The appeal was filed after that.

The Supreme Court found no error in the circuit court’s factual recitation, particularly where the circuit court’s order also summarized the petitioners’ countervailing facts, according to the opinion.

The Supreme Court affirmed Tabit's order denying summary judgment based on qualified immunity.

West Virginia Supreme Court of Appeals Case numbers: 17-0327, 17-0328

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