Nabors v. Tincher

• Docket Number: Civil Action 5:22-cv-00059
• Decision Date: 01 December 2023
• Citation: Nabors v. Tincher, Civil Action 5:22-cv-00059 (S.D. W.Va. Dec 01, 2023)
• Parties: EUGENE NABORS, Plaintiff, v. SR. TROOPER J.L. TINCHER, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

1

EUGENE NABORS, Plaintiff, v. SR. TROOPER J.L. TINCHER, Defendant.

Civil Action No. 5:22-cv-00059

United States District Court, S.D. West Virginia, Beckley

December 1, 2023

MEMORANDUM OPINION AND ORDER

Frank W. Volk, United States District Judge

Pending is Defendant Sr. Trooper J.L. Tincher's Motion for Summary Judgment, filed August 14, 2023. [ECF 54]. Plaintiff Eugene Nabors responded on August 28, 2023. [ECF 56]. Trooper Tincher replied on September 5, 2023. [ECF 59]. The matter is ready for adjudication.

I.

On February 11, 2020, Greenbrier East High School and Woodrow Wilson High School were scheduled to play in a regular season high school girls' basketball game at Greenbrier East. [ECF 14 ¶ 6]. Plaintiff Eugene Nabors is an assistant coach for the Woodrow Wilson High School girls' basketball team. [Id. ¶ 9]. Defendant Senior Trooper J.L. Tincher was one of three state troopers assigned to provide community policing for the game. [ECF 55 at 2]. Also in attendance at the basketball game was Governor Jim Justice, the head coach for the Greenbrier East High School girls' basketball team. [ECF 56 at 2].

Throughout the game Mr. Nabors heard the Greenbrier East fans “yelling racial slurs and epithets” at Woodrow Wilson's players and coaching staff. [ECF 14 ¶ 13]. During a timeout at the beginning of the fourth quarter, Mr Nabors walked to the baseline to discuss the misconduct with two Woodrow Wilson administrators, namely Principal Rocky Powell and Athletic Director J.T. Payne. Steve Damon and one other Greenbrier East fan interrupted Mr. Nabors' conversation with the administrators and tried to instigate a confrontation. [Id. ¶ 16]. Mr. Nabors' adult son Donte Nabors exited the stands and approached the group. [Id. ¶ 18]. Trooper Tincher and Sgt. D.P. White simultaneously did likewise. [Id.]. Mr. Nabors attempted to usher Donte Nabors back to the sideline; Trooper Tincher followed them.^[1] [Id. ¶ 19].

Upon reaching the sideline, Donte Nabors threw a chair from the Woodrow Wilson bench. [ECF 55 at 3]. The chair was not thrown onto the playing surface or toward the baseline where the initial encounter occurred. It was thrown in apparent frustration in the opposite direction of the encounter moments earlier at the baseline. Seconds later, Trooper Tincher is seen speaking with Mr. Nabors at the sideline. Donte Nabors is not attempting to flee and can be seen looking on while his father and Trooper Tincher are engaged in a discussion, with Trooper Tincher moving Mr. Nabors backward toward his onlooking son. Mr. Nabors is positioned at this point between his son and Trooper Tincher for these few seconds, in what appears to be an attempt to deescalate the situation and, perhaps, prevent Trooper Tincher from reaching Donte Nabors.

The video next shows Trooper Tincher suddenly and forcefully -- and, according to Mr. Nabors, without justification -- push Mr. Nabors backward vigorously, knocking him from his feet and causing him to fall backward, resulting in him sustaining a broken arm and back injury.

[ECF 14 ¶ 21]. Mr. Nabors does not remember what Trooper Tincher said prior to the push but did not recall it including a command to move out of Trooper Tincher's way. [ECF 54-2 at 135-36].^[2]At the time of the incident, Trooper Tincher was 5'11” or 6' tall and weighed 190 pounds; Mr. Nabors frame was considerably more substantial, at 6'2” tall and weighing 210 pounds. [ECF 541 at 185, 54-2 at 130].

Following the push and sustaining the broken arm and back injury, Mr. Nabors was arrested and handcuffed, escorted out of the gymnasium, and transported to the Lewisburg detachment of the West Virginia State Police. [ECF 14 ¶ 22 and 24]. Mr. Nabors was the only individual arrested that night. [ECF 54-4, 54-3 at 61-62]. Sgt. White asserted they intended to “charge [Mr. Nabors] that night, have him arraigned by the magistrate, and furthermore, to complete the requirements of response to resistance or aggression policy and have him medically screened.” [ECF 54-3 at 63].

Captain Drew Pendelton, who headed Governor Justice's security detail, intervened. Upon arrival at the Lewisburg detachment that evening, Captain Pendelton spoke to Sgt. White regarding Mr. Nabors. [Id. at 25]. Captain Pendelton instructed Sgt. White to issue Mr. Nabors a citation for obstructing, after which Sgt. White and Trooper Tincher returned Mr. Nabors to Greenbrier East High School. [Id.]. This appears to have been in response to the refusal by the Woodrow Wilson girls' basketball team to leave until Mr. Nabors returned. [Id. at 25 and 100]. On February 12, 2020, Trooper Tincher filed two additional criminal complaints against Mr. Damon and Donte Nabors. Mr. Damon was cited for disorderly conduct and Donte Nabors for both disorderly conduct and obstructing. [ECF 54-7 at 22-23, 27-28].

On February 2, 2022, Mr. Nabors instituted this action against Trooper Tincher and Sgt. White. [ECF 1]. On August 14, 2023, Trooper Tincher moved for summary judgment. [ECF 54]. On August 28, 2023, Mr. Nabors responded [ECF 56], followed by Trooper Tincher's September 5, 2023, reply. [ECF 59].

Trooper Tincher asserts (1) the doctrine of judicial estoppel bars Mr. Nabors' claims, (2) he is entitled to qualified immunity, (3) his use of force was reasonable under the Fourth Amendment, (4) he was privileged as a law enforcement officer to use the force involved, and (5) Mr. Nabors has failed to show Trooper Tincher committed an assault and battery.

II.

A. Governing Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The burden is on the nonmoving party to show that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The nonmoving party must do so by offering ‘sufficient proof in the form of admissible evidence' rather than relying solely on the allegations of her pleadings.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)).

The Court must “view the evidence in the light most favorable to the [nonmoving] party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal quotation marks and citation omitted); Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018). “The court . . . cannot weigh the evidence or make credibility determinations.” Jacobs v. N.C. Admin. Off. of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); see Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017). In general, if “an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate.” Fed.R.Civ.P. 56 advisory committee's note to 1963 amendment.

B. Judicial Estoppel

Judicial estoppel was “developed to prevent a party from taking a position in a judicial proceeding that is inconsistent with a stance previously taken in court.” Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir. 2007); John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir. 1995) (“The vice which judicial estoppel protects is the cold manipulation of the courts to the detriment of the public interest.”). Our Court of Appeals has more recently noted the Supreme Court's observations as follows:

As the Supreme Court has explained, judicial estoppel is an equitable doctrine, designed to “protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (internal quotation marks omitted). Typically, judicial estoppel is reserved for cases where the party to be estopped - here, [plaintiff] - has taken a later position that is “clearly inconsistent” with her earlier one; has persuaded a court to adopt the earlier position, creating a perception that “either the first or the second court was misled”; and would “derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 750-51, 121 S.Ct. 1808 (internal quotation marks omitted). Finally, and central to this case, there is the longstanding principle that judicial estoppel applies only when “the party who is alleged to be estopped intentionally misled the court to gain unfair advantage,” and not when “a party's prior position was based on inadvertence or mistake.” John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir. 1995) (emphasis added) (internal quotation marks omitted); accord New Hampshire, 532 U.S. at 753, 121 S.Ct. 1808 (quoting John S. Clark, 65 F.3d at 29).

Martineau v. Wier, 934 F.3d 385, 393 (4th Cir. 2019). Importantly, the doctrine is “applied with caution and only in the narrowest of circumstances.” Gilliam v. Sealey, 932 F.3d 216, 233 (4th Cir. 2019) (cleaned up).

Trooper Tincher's judicial estoppel contention relies upon the stipulation of facts contained in the Resolution of Charges Mr. Nabors' signed in a related criminal proceeding. The pertinent language reads as follows:

[I]n an effort to eliminate the potential for an escalation, Sr. Tpr. J.L. Tincher was seeking to remove and escort co-defendant Donte Nabors from the building, and in approaching said co-defendant, the Defendant Eugene Nabors, understandably perhaps, but intentionally and perhaps unlawfully attempted to intervene in the Officer's pursuit of co-defendant Donte Nabors physically laying on of hands on said trooper who then reasonably pushed defendant Eugene Nabors away in an

...