Floid Posey v. Deputy Robert E. Davis, et al. (Memorandum Decision)
Annotate this Case
Download PDF
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Floid Posey, Plaintiff Below, Petitioner FILED November 16, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 11-1204 (Lewis County 10-C-48) Deputy Robert E. Davis, individually and as a member of the Lewis County Sheriff s Department, Corporal D.L. Cayton, individually and as a member of the West Virginia State Police Department, and the West Virginia State Police Department, Defendants Below, Respondents MEMORANDUM DECISION Petitioner s appeal, by counsel Erika Kolenich, arises from the Circuit Court of Lewis County, wherein the circuit court granted respondents motions for summary judgment by order entered on July 22, 2011. Respondent Robert Davis, by counsel Boyd Warner and Melissa Roman, has filed a response. Respondents D.L. Cayton and the West Virginia State Police, by counsel Michael Mullins and Peter Raupp, have also filed a response. This Court has considered the parties briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure. On May 29, 2009, petitioner s doctor s office called the Upsher County Sheriff s Department to report that petitioner was suicidal. Petitioner s daughter also called Lewis County 911 and reported that petitioner had threatened to commit suicide with a firearm. Respondents Deputy Robert E. Davis and Corporal D.L. Cayton responded to the call and met petitioner s daughter along the road leading to petitioner s home. Petitioner refused to surrender to the officers and threatened physical violence if they touched him. The officers thereafter physically subdued petitioner, who was then taken to a mental health facility. Upon examination, it was determined that petitioner had broken his ankle, consistent with a fall. After the incident in question, petitioner filed an excessive force lawsuit. Following the completion of discovery, Respondents Deputy Davis and the Lewis County Sheriff s Department filed a motion for summary judgment, as did Respondents Corporal Cayton and the West Virginia State Police. Petitioner timely filed responses thereto and also voluntarily dismissed the claims against the law 1 enforcement entities, but preserved his claims against the individual respondents. The circuit court granted the respondents respective motions for summary judgment, finding no genuine issue of material fact. On appeal, petitioner alleges that the circuit court erred in granting respondents motions for summary judgment. According to petitioner, when applying the test set forth in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 (1989), the officers exhibited an unreasonable response to subdue a small, seventy-year-old man. Petitioner argues that the situation did not warrant the level of force used, especially since he made no efforts to actually harm himself or others and had no weapons. Based upon the facts and circumstances, petitioner argues that it was entirely possible that a jury would find that he posed no immediate threat and that the officers actions constituted unreasonable force. Petitioner also argues that it was error to grant summary judgment because his expert witness, Donald Decker, authored a report indicating that respondents use of force was excessive. Deputy Davis argues that he was entitled to qualified immunity because his actions were reasonable under the circumstances presented to him, thereby entitling him to summary judgment. He argues that ordinarily, the question of qualified immunity should be decided at the summary judgment phase, and that qualified immunity is an immunity to suit rather than a mere defense to liability. According to Deputy Davis, the law provides that no issue of material fact exists when the petitioner s version of events is a visible fiction. Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 1776 (2007). No other witness claims petitioner was stomped or kicked, and petitioner even testified that the alleged kicking could have been unintentional when the officers tried to get him up off the ground. Further, petitioner s expert s opinion does not create a genuine issue of material fact because the expert actually admitted that Respondent Davis actions did not constitute excessive force. Respondents Cayton and the West Virginia State Police argue that an excessive force claim must be analyzed under an objectionably reasonable standard, which does not require the officer to use the least intrusive means to effectuate a seizure or even the minimum amount of force available. According to respondents, reasonableness is instead judged by whether the officer s use of force was within a range of conduct that could be deemed to have been reasonable under the circumstances. Because the officers had a reasonable belief petitioner would harm himself, respondents argue that the actions were warranted and did not constitute excessive force. Further, respondents argue that petitioner s expert s testimony did not create a genuine issue of material fact because the circuit court found that the expert misstated the relevant legal standard for the use of force and then properly ruled his testimony to be irrelevant. A circuit court s entry of summary judgment is reviewed de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Syl. Pt. 1, Hicks ex rel. Saus v. Jones, 217 W.Va. 107, 617 S.E.2d 457 (2005). Upon our review of the record, the Court finds no error in the circuit court s entry of summary judgment in favor of respondents. Having reviewed the circuit court s Order Granting Defendants Motions For Summary Judgment entered on July 22, 2011, we hereby adopt and incorporate the circuit court s well-reasoned findings and conclusions 2 as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court s order to this memorandum decision. For the foregoing reasons, we find no error in the decision of the circuit court, and the order granting respondents motions for summary judgment is hereby affirmed. Affirmed. ISSUED: November 16, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
