Lilly v. Crum, Civil Action No. 2:19-cv-00189

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtJohn T. Copenhaver, Jr. Senior United States District Judge
Docket NumberCivil Action No. 2:19-cv-00189
PartiesJOHN DAVID LILLY, Plaintiff, v. COTY CRUM, Individually as a member of the Logan County Sheriff's Department, and ZACHARY LILLY, Individually as a member of the Logan County Sheriff's Department, Defendants.
Decision Date15 April 2020

COTY CRUM, Individually as a member of the Logan County Sheriff's Department,
and ZACHARY LILLY, Individually as a member of the Logan County Sheriff's Department, Defendants.

Civil Action No. 2:19-cv-00189


April 15, 2020


Pending is a motion for summary judgment filed by defendants Coty Crum and Zachary Lilly on January 2, 2020.

I. Background

This case arises from plaintiff John David Lilly's May 21, 2018 arrest and alleged police brutality of defendants Coty Crum ("Deputy Crum" or "Corporal Crum")1 and Zachary Lilly ("Deputy Lilly"), police officers with the Logan County Sheriff's Department. On the night of May 21, 2018, plaintiff and his girlfriend, Holly Green, were drinking at her father's

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house in West Logan, West Virginia. Pl.'s Dep. 17:4-23, ECF No. 49-1 ("Pl.'s Dep."); Pl.'s Am. Resp. 1, ECF No. 54 ("Pl.'s Am. Resp"). The two of them got in a verbal argument as they were walking over to a friend's house, and Ms. Green ended up passing out on the side of the road near a parked car on Wood Avenue. Pl.'s Dep. 20:1-22:1.

Around this same time, defendants received a 911 call from Kimber Hall reporting that a woman, later identified as Ms. Green, was "walking erratically" and was "laying in the alley" behind Ms. Hall's residence on Wood Avenue. See Incident Report, ECF No. 49-10. Upon defendants' arrival at the scene, Ms. Green was drifting in and out of consciousness, leading defendants to request an ambulance dispatch. Id. Plaintiff, who had been standing in the alley, told the officers that Ms. Green passed out from drinking and had not overdosed on any drugs. Pl.'s Dep. 24:14-18; 25:21-26:3. The officers soon thereafter handcuffed plaintiff and placed him in the back of the police cruiser. Id. at 26:23-27:17. Plaintiff began yelling and screaming in the back of the car protesting his arrest, and he continued to yell and scream even after Deputy Crum opened the car door and administered pepper-spray. Id. at 29:2-24.

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Plaintiff testifies that Deputy Crum then opened the car door for a second time, sat in the backseat, and repeatedly punched plaintiff in the side of the head, torso, and legs. Pl.'s Dep. 30:10-32:16. The alleged beating lasted approximately 30 seconds to a minute as plaintiff remained handcuffed in the car and as Deputy Lilly filmed the beating on his cellphone. Id. at 28:15-16; 32:12-16; 33:18-34:12; 43:11-19; see also Compl. ¶¶ 11-27, ECF No. 1 ("Compl.").

Plaintiff also relies on allegations in the complaint quoting the medical evaluations he received after the incident. Pl.'s Am. Resp. 2-3. The next morning on May 22, 2018, the medical staff at Southwest Regional Jail noted that plaintiff was "involved in [an] altercation prior to coming to jail resulting in injuries," and that there was a "[l]arge amount of edema [swelling] noted to left jaw area and left ear, gurgling auscultated to left middle [lung] lobe, complaints of severe rib pain, [and] shortness of breath." Compl. ¶¶ 44-45 (alterations in original). Shortly thereafter, plaintiff was transported by ambulance to Logan Regional Medical Center. Id. ¶ 48. Plaintiff alleges that the Logan County Emergency Ambulance Report noted that plaintiff "states the officer struck him on his left side with bare fist, injuring his rib." Id. ¶ 49.

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The ER Nurse's Note from the Logan Regional Medical Center allegedly reported that plaintiff had "pain in his left rib area with abrasions to the left side of his face and head, also has dried blood and swelling to the left ear." Compl. ¶ 52. The ER Note described the "mechanism of injury" as "[a]ggravated assault with fists." Id. ¶ 54 (alteration in original). The ER Physician Note allegedly stated that plaintiff "reports he was in an altercation with law enforcement approximately 9-10 hours ago." Id. ¶ 56. Plaintiff was then allegedly diagnosed with a "traumatic" collapsed left lung, multiple fractured and displaced left-side ribs, air and blood in his chest cavity, and "legal intervention involving mishandling, suspect injured." Id. ¶ 58.

Due to the severity of his injuries, plaintiff was then transported again to Pikeville Medical Center. Compl. ¶ 59. The complaint alleges that he was admitted to the ICU with "major chest trauma" and initially diagnosed with "multiple fractures [four] of ribs, left side," "contusion of left ear," and "assault by other specified means," among other ailments. Id. ¶ 66. The ICU report also allegedly stated that plaintiff was "assaulted by police officers in Logan, West Virginia." Id. ¶ 67. Surgery was performed on May 24, 2018 to drain the collection of blood around plaintiff's left ear and a separate

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surgery was performed that same day to insert a chest tube to drain air and blood from plaintiff's left pleural cavity. Id. ¶ 69. Plaintiff was finally discharged on May 29, 2018. Id. ¶ 71.

On March 26, 2019, plaintiff filed a complaint, alleging excessive force under 42 U.S.C. § 1983 in violation of the Fourth Amendment of the United States Constitution (Count I), a constitutional tort in violation of the Article III, § 6 of the West Virginia Constitution (Count II), battery against Deputy Crum (Count III), negligence (Count IV), and intentional infliction of emotional distress (IIED) (Count V).

Defendants move for summary judgment on all counts. First, defendants argue that they are entitled to summary judgment on plaintiff's claims of excessive force, negligence, and battery because "it is not clear how [plaintiff's] injuries were suffered" and the only direct evidence of the alleged beating comes from plaintiff's own self-serving testimony. Defs.' Mem. Supp. Mot. Summ. J. 5-6, ECF No. 50 ("Defs.' Mem."). They also argue that the narratives in the medical records have no evidentiary value because they merely reflect plaintiff's own account of how he suffered these injuries. Defs.' Reply 4, ECF No. 56 ("Defs.' Reply"). Although plaintiff states that these medical records were produced during discovery, he only offers

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quotes of the records from his complaint. See Pl.'s Am. Resp. 6; Compl. ¶¶ 44-71. Defendants also dispute plaintiff's testimony that Deputy Lilly recorded the incident on his cellphone, noting that they were unable to find the claimed video during searches of Deputy Lilly's phone video records. See Defs.' Reply 2.

According to defendants and the eyewitness accounts of the incident, plaintiff first approached the officers from down the alley, yelling, screaming, and cussing at the officers in an intoxicated state. Lilly Dep. 34:2-14, ECF No. 49-3 ("Lilly Dep."); Kimber Hall Dep. 20:16-19, 24:20-26:15, ECF No. 49-5 ("Kimber Hall Dep."); Jenna Hall Dep. 19:22-20:4, ECF No. 49-6 ("Jenna Hall Dep."); Caitlin Hall Dep. 14:19-15:7, ECF No. 49-7 ("Caitlin Hall Dep."); Griffin Dep. 21:5-8, ECF No. 49-8 ("Griffin Dep."). They maintain that plaintiff lunged toward Deputy Crum (who was ahead of Deputy Lilly), at which point Deputy Crum grabbed plaintiff, conducted a "hip toss," and brought plaintiff to the ground. Crum Dep. 36:2-37:23, ECF No. 49-2 ("Crum Dep."); Deputy Lilly Dep. 41:4-14; Kimber Hall Dep. 25:19-26:21. Deputy Crum describes this hip toss maneuver as "I guess kind of like a headlock" and "used my legs and my back to toss him onto the ground," landing on top of plaintiff. Crum Dep. 37:19-23. After plaintiff was taken to the ground, he was

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handcuffed and placed in the back of Deputy Crum's patrol car. Deputy Lilly Dep. 47:6-48:18.

Plaintiff himself testifies that he continued to yell, scream, curse, and threaten the officers when he was placed in the patrol car, though he denies that he was ever thrown to the ground. Pl.'s Dep. 27:2-9; 28:17-30:12. Deputy Crum testifies that he pepper-sprayed plaintiff in the backseat of the car to stop plaintiff from kicking the rear door, headbutting the glass, and spitting. Crum Dep. 44:10-47:17. Defendants also offer eyewitness testimony that they put a spit mask on plaintiff to stop the spitting, which plaintiff nonetheless denies ever occurred. Deputy Lilly Dep. 52:9-11; Kimber Hall Dep. 37:1-11; Jenna Hall Dep. 25:18-26:14; Pl.'s Dep. 33:6-7. After he was transported to the Logan County Courthouse, plaintiff refused to receive medical treatment. Sheppard Dep. 29:15-19, ECF No. 49-4.

In addition to defendants' testimony, eyewitnesses to plaintiff's arrest — Kimber Hall, her daughters Jenna Hall and Caitlin Hall, their friend Kayla Griffin, and the EMS personnel at the scene, Gloria Abade — all testify that they did not see any beating in the backseat of the patrol car. Defs.' Mem. 6. Kimber Hall testifies that plaintiff's "allegation that after he was put back into the back seat of the police car, that Officer

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Crum . . . got into the back seat of the car with him and beat him with his fist" did not occur at any point when she was observing the vehicle. Kimber Hall Dep. 37:23-38-5. Jenna Hall, Caitlin Hall, and Kayla Griffin all testify that neither of the defendants ever got into the backseat of the car with plaintiff, and Caitlin Hall and Kayla Griffin also testify that they never saw defendants strike plaintiff with their fist. Jenna Hall Dep. 34:19-22; Caitlin Hall Dep. 23:20-24:4; Griffin Dep. 26:16-22. Plaintiff's testimony that he was not thrown to the ground at any point also directly...

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