Case 5:17-cv-04495 Document 1 Filed 12/08/17 Page 1 of 13 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY

ROBERT MCPHERSON,
Plaintiff,
Civil Action No. 5:17-cv-04495

vs.
DEREK SNAVELY, individually,
CITY OF HINTON, a municipal
corporation.
Defendants.

COMPLAINT
This complaint, brought pursuant to 42 U.S.C. Section 1983, as well as the
Fourth Amendment to the United States Constitution, arises out of the Defendants’ use
of excessive force on the Plaintiff on or about January 7, 2016, in the City of Hinton,
Summers County, West Virginia, within the Southern District of West Virginia, as well as
the development and implementation of a pattern or practice of excessive force which
led to the said incident.
JURISDICTION
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343.
PARTIES
1.

The Plaintiff was at all times relevant hereto a resident of Hinton,

Summers County, West Virginia, within the Southern District of West Virginia. He is
currently in the custody of the West Virginia Department of Corrections. On October 14,
2016, he was sentenced to an indeterminate period of not less than one year nor more
than five years of incarceration.
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2.

Defendant Derek Snavely was at all times relevant hereto a police officer

employed by the Hinton Police Department, which is established, equipped and
maintained by the City of Hinton, West Virginia, and was at all times relevant hereto
acting under color of law and within the scope of his employment. Said Defendant is
named herein in his individual capacity.
3.

Defendant City of Hinton, a municipal corporation, is a political subdivision

of the State of West Virginia. See West Virginia Governmental Tort Claims and
Insurance Reform Act, W. Va. Code § 29-12A-1, et seq.
FACTS
4.

Plaintiff incorporates by reference the allegations in all previous

paragraphs.
5.

On January 7, 2016, the Plaintiff, Robert McPherson, and his significant

other, Leanne Price, entered the Kroger grocery store in Hinton, Summers County, West
Virginia, as customers, in order to buy some groceries.
6.

The Plaintiff used the bathroom while in the store, proceeded to do his

shopping, pay for his items, and exited the store, along with Ms. Price. They purchased
groceries.
7.

After exiting the store, the Plaintiff saw an acquaintance and began to

have a conversation with the man.
8.

Unbeknownst to the Plaintiff, a Kroger employee called law enforcement

and reported that he suspected the Plaintiff to be using drugs while in the bathroom of
the store. The individual did not witness the Plaintiff with any illegal drugs. The Plaintiff
was a legitimate customer of Kroger.

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9.

Hinton Police Department chief, Derek Snavely, arrived at the store and

was unable to find the Plaintiff. The Kroger employee then reported to Defendant
Snavely that the Plaintiff was now outside the store.
10.

Defendant Snavely then approached the Plaintiff, who was outside the

store, holding a bag of groceries, with Ms. Price beside him. The encounter was being
captured by the store’s video surveillance camera pointed outside the store’s entrance.
11.

Defendant Snavely identified himself and asked the Plaintiff if he had been

using illegal drugs. The Plaintiff replied, no.
12.

Defendant Snavely asked if the Plaintiff had anything illegal on him, and

the Plaintiff replied, no, and produced a prescription pill bottle from his left pocket.
13.

The prescription bottle was Ms. Price’s prescription medication. She was

present with the Plaintiff at the time, and had asked the Plaintiff to carry the bottle with
her during the trip to Kroger.
14.

The Plaintiff had not had any prior encounters with Defendant Snavely.

However, he knew him by reputation, including from reading newspaper reports about
Snavely’s official misconduct, and was fearful of him.
15.

The Plaintiff knew at the time that Defendant Snavely had previously been

a police officer employed by the West Virginia State Police, and that Snavely resigned
from the state police following accusations that Snavely had sexual relations while on
duty with an intoxicated woman whom he had pulled over for suspected DUI.
16.

According to a Charleston Gazette-Mail newspaper article, Defendant

Snavely performed a traffic stop on a young woman leaving a bar in downtown
Charleston, West Virginia. Shortly thereafter, he was alleged to have started kissing

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and fondling her. A surveillance video subsequently captured Snavely, in uniform, in the
woman’s residence, where she alleged she was forced to perform sexual acts with
Defendant Snavely in exchange for not being arrested for DUI. See Trooper Accused of
Rape Resigns, Charleston Gazette-Mail, http://www.wvgazettemail.com/article/
20081211/ARTICLE/312119998.
17.

It was also reported in the Charleston Gazette-Mail that Defendant

Snavely falsified his official log in connection with the traffic stop of the alleged rape
victim, a criminal violation, and that evidence of the falsification was withheld from
prosecutors looking into Snavely’s actions. See Prosecutor Not Told Ex-Trooper
Falsified Log, Charleston Gazette-Mail, http://www.wvgazettemail.com/article/20081211/
ARTICLE/312119998.
18.

Also reported by the Charleston Gazette-Mail is the fact that the City of

Hinton hired Defendant Snavely as their Chief of Police amid the sexual misconduct and
falsification accusations. The newspaper noted that, although efforts were underway to
review Defendant Snavely’s law enforcement certification before the state’s Law
Enforcement Training subcommittee, he was allowed to be the City of Hinton’s police
chief of police. See Prosecutor Not Told Ex-Trooper Falsified Log, Charleston GazetteMail, http://www.wvgazettemail.com/article/20081211/ARTICLE/312119998.
19.

The Gazette-Mail also noted there had already been complaints by

residents in Summers County since the transfer of Defendant Snavely to the City of
Hinton:
In November 2009, the Gazette-Mail reported that several citizens had
complained that Snavely harassed them.Robin Crawford claimed that Snavely
harassed him August 2009 while giving him a parking ticket in the Summers
County town.
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Crawford, who in 1987 was beaten by four officers from the Hinton police and
Summers County Sheriff's Office, said he came out of the post office and
Snavely told him not to drive off because he was going to write him a parking
ticket. Crawford said he knew there was no money in the meter and didn't argue,
but got in his car and waited for the ticket."Then he jerks me out of my car and
starts barking instructions like I was on a plantation," said Crawford, who is black.
"He said, 'I'll take your goddamn ass to jail.’"
On Friday, Crawford said that he lives in Hinton, but doesn't often go out at night
for fear of the chief of police."I don't feel safe being there," he said. "I live there,
but I do all my business out of town. I hesitate to be caught by him.”
See Prosecutor Not Told Ex-Trooper Falsified Log, Charleston Gazette-Mail, http://
www.wvgazettemail.com/article/20081211/ARTICLE/312119998.
20.

It was reported in the Herald-Dispatch newspaper, that the newly-

appointed West Virginia State Police spokesperson said, of Snavely, “We can’t have
things like this,” waving a newspaper with an article about Snavely’s alleged
misconduct, stating that, “it reflects poorly on me and [the superintendent] . . . it kills
me.” He noted that it was important for the state police to do “everything we an to
acknowledge and address these incidents, and then we need to move forward.” See W.
Va. State Police Col. Focusing on Standards, The Herald-Dispatch, http://www.heralddispatch.com/news/recent_news/w-va-state-police-col-focusing-on-standards/
article_2d9b2963-a067-59b1-93d1-ac4e8004ccfe.html.
21.

Knowing Snavely’s reputation, the Plaintiff requested that another officer

arrive to the scene. Snavely refused, and attempted to forcibly search the Plaintiff’s
groceries and his pockets.
22.

The Plaintiff then requested, by name, another local law enforcement

officer whom he knew was trustworthy, Gary Wheeler.

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23.

Suddenly, and without justification or provocation, Defendant Snavely

violently attacked the Plaintiff, in response to the Plaintiff’s perceived disrespect in
requesting another officer, punching the Plaintiff in the face with a closed fist. Snavely’s
actions were caught on video.
24.

It is observed on video that at the time the Defendant violently began

punching the Plaintiff, that the Plaintiff was not attacking the Defendant, or anyone else.
It can be clearly seen on video that at the time Plaintiff was attacked, he was not a
threat to the Plaintiff, or anyone else. He was merely a Kroger customer attempting to
walk to his vehicle in the parking lot.
25.

At the time the Plaintiff was violently attacked, he was not under arrest.

There was no arrest warrant pending. He had not committed any crime. He was
merely suspected of personal drug use - though no such behavior was witnessed by the
Defendant.
26.

At the time he was attacked, the Plaintiff was not in possession of any

illegal drugs, or any other illegal items.
27.

At the time he was attacked, the Defendant had no reason to believe that

the Plaintiff was in possession of any weapons, or that he may be in possession of any
weapons. Defendant Snavely never inquired whether the Plaintiff had any weapons
prior to punching him.
28.

Defendant Snavely began to violently beat the Plaintiff, who recoiled from

the blows. The Plaintiff was in fear for his life and resisted the beating. However, at no
time during the beating did the Plaintiff ever strike, attempt to strike, or threaten to

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strike, the Defendant in any way. The Defendant confirmed in sworn testimony that the
Plaintiff never struck him.
29.

Suavely violently punched and attacked the Plaintiff. After about ten

minutes, the Defendant became physically tired from beating on the Plaintiff and
attempting to manhandle him, he shot the Plaintiff with his taser gun. The first shot was
immediately removed by the Plaintiff. The Defendant shot the Plaintiff again. The
Plaintiff fell to the ground, but was still conscious.
30.

The Defendant then shot the Plaintiff a third time with the taser - this time

using the direct contact mechanism, where the officer physically touches the taser to the
individual. As the Plaintiff was being shocked by the taser, the Plaintiff grabbed the
taser and threw it beyond the Defendant’s reach.
31.

The Plaintiff’s grab and throw of the taser gun happened very quickly, and

was caught on video. At no time did the Plaintiff ever attempt to use the taser on the
Defendant. The grab and throw lasted mere seconds. It was an unconscious reaction
during a time in which the Plaintiff was being shocked, meant to protect himself from
further electrical shock that the Defendant was inflicting upon him. That the Plaintiff
meant no harm with the taser was obvious by the fact that the Defendant threw the
taser out of his reach.
32.

The Plaintiff was subsequently taken into custody.

33.

The Defendant later testified that he believed that a use of force

continuum was “old school” and that his modus operandi was to go directly to whatever
level of force he wanted to, regardless of reasonableness, such as punching a subject
in the face in the absence of any threat to physical safety.

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34.

Moreover, the Defendant further testified that, his only regret was not

shooting the Plaintiff after he grabbed and threw his taser - despite the fact that deadly
force was not necessary under the circumstances - both at the time and in hindsight.
35.

The Plaintiff was charged by indictment with Unlawful Assault on a Police

Officer, as well as Disarming a Police Officer.
36.

Following a jury trial before the Circuit Court of Summers County, a jury

found the Plaintiff Not Guilty of Unlawful Assault on a Police Officer. However, they
found him guilty of Disarming a Police Officer.
37.

Following the jury trial, at least one juror approached the Plaintiff’s counsel

and remarked that the jury had to find the Plaintiff guilty of Disarming a Police Officer
given the fact that he was captured on video throwing Snavely’s taser. However, they
were appalled by the excessive nature of the beating inflicted upon the Plaintiff by
Snavely prior to the throwing of the taser, and encouraged the Plaintiff to file a lawsuit.
38.

As a result of the the beating by Defendant Snavely, the Plaintiff was

injured and suffered damages for which he is entitled to recover.
COUNT ONE - EXCESSIVE FORCE UNDER 42 U.S.C. 1983
VIOLATION OF THE FOURTH AMENDMENT
39.

Plaintiff incorporates by reference all the allegations contained in the

previous paragraphs.
40.

The defendant law enforcement officer, under color of state law, used

excessive force against the Plaintiff, as described above in detail, on January 7, 2016.
41.

When the defendant law enforcement officer violently and repeatedly

began to punch and attack the Plaintiff outside the Kroger grocery store, causing the

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Plaintiff bodily injury, no objectively reasonable officer could have perceived the Plaintiff
as posing an immediate threat to the safety of the officer or anyone else so as to require
the infliction of such violent physical force.
42.

At the said time, the Plaintiff was not under arrest. He had committed no

crime. He was merely suspected of personal drug use by a Kroger employee who was
attempting to spy on him in the bathroom. He was unarmed - nor was there any reason
to suspect him of being armed.
43.

At the time Derek Snavely began to punch the Plaintiff, the Plaintiff was

being compliant. He was not attempting to flee. He was not attempting to assault or
strike the officer in any way. He was not threatening to assault or strike the officer in
any way. He had merely requested the presence of another police officer given his
knowledge of the Defendant’s past misconduct, as verified by the West Virginia State
Police a public statement.
44.

At the time the Defendant began to use violent physical force, the Plaintiff

was not engaging in any physical resistance and was shocked, and in fear for his life,
during the beating. The Defendant desperately wanted assistance from another law
enforcement officer and believed his life to be in danger.
45.

Defendant Snavely’s actions were objectively unreasonable, unlawful,

unwarranted, and in violation of Mr. McPherson’s clearly established procedural and
substantive rights, including the right to be free from excessive force under the Fourth
Amendment of the United States Constitution. Fourth Circuit case law has long been
clear that physical force by a police officer, including striking someone with a fist, and
especially repeated strikes and kicks, is excessive in response to “mere words” by an

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arrestee where the arrestee “never pushed, kicked, or threatened anyone.” Jones v.
Buchanan, 325 F.3d 520 (4th Cir. 2003).
46.

The defendant police officers’ actions were willful, wanton, intentional,

malicious and done with a callous and reckless disregard for Mr. McPherson’s Fourth
Amendment right to be free from excessive force.
47.

The Plaintiff suffered harm and damages for which he is entitled to

recover.

COUNT TWO - MUNICIPAL LIABILITY
UNDER 42 U.S.C. 1983
48.

Plaintiff incorporates by reference all the previous paragraphs.

49.

The City of Hinton instituted an official policy, custom and practice of

subjecting arrestees, or innocent citizens who are the subject of questioning, to civil
rights violations in violation of the U.S Constitution. Specifically, the City of Hinton hired
as its Chief of Police, the Defendant, who was in the midst of criminal investigation for
committing sexual misconduct, and other misconduct against a woman while on duty
and subsequently falsifying a police report. Since he has been in Hinton, he has upon
information and belief, been the subject of numerous complaints of civil rights violation,
many of which were similar in nature to what occurred to the Plaintiff.
50.

Derek Snavely’s actions in illegally using excessive force against the

Plaintiff were taken in furtherance of the official policy, custom, and practice adopted
and ratified by the City of Hinton.

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51.

As a direct and proximate result of the said policy, custom and practice,

the Plaintiff was damaged on January 7, 2016 when he was beaten by the Defendant,
as described above in detail, for which he is entitled to recover.

COUNT THREE - STATE LAW CLAIM FOR NEGLIGENCE
52.

Plaintiff incorporates by reference all previous paragraphs.

53.

Defendant City of Hinton specifically owed Plaintiff a duty of reasonable

care. It was reasonably foreseeable to Defendant that Plaintiff would be harmed as a
result of Defendant’s actions.
54.

Defendant City of Hinton, by and through the Mayor and other employees

of the city involved in the hiring of a police chief, breached that duty as detailed above
and incorporated herein, and furthermore by:
a.

negligently hiring Derek Snavely as the Chief of Police of the Hinton Police

Department when they had knowledge that Snavely had engaged in gross misconduct
and dishonesty as a West Virginia State Police trooper;
b.

negligently retaining Derek Snavely as the Chief of Police of the Hinton

Police Department when they had knowledge of Snavely’s misconduct as a state
trooper, as well as knowledge of Snavely’s misconduct while serving as Chief of Police
of the Hinton Police Department.
55.

As a direct and proximate result of the Defendant’s negligence, Plaintiff

suffered harm, including personal injuries, emotional distress, medical expenses, pain
and suffering, and continues to suffer damages, and is entitled to recover damages for
the same.

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PRAYER
WHEREFORE, based on the above stated facts, the Plaintiff respectfully
requests that this Honorable Court award:
1.

Damages against the Defendants in an amount to be determined at trial

which will fairly and reasonably compensate the Plaintiff for:
a.

Past, present and future medical expenses;

b.

Past, present and future pain and suffering;

c.

Loss of enjoyment of life;

d.

Psychological and emotional distress;

e.

Any other compensatory damages to be proven at trial;

f.

Punitive damages against the individual Defendants in an amount to be

determined at trial;
g.

Reasonable attorney fees and costs;

h.

Any other relief that this Court deems is just and fair;

i.

All other damages provided by law;

j.

Injunctive relief requiring appropriate training, supervision and discipline in
order to remedy all constitutional deprivations which the Plaintiff suffered;

k.

Declaratory judgment relief establishing the Defendants’ above-described

conduct violates the Plaintiff’s clearly established constitutional rights.
PLAINTIFF DEMANDS A TRIAL BY JURY

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ROBERT MCPHERSON
By Counsel

/s John H. Bryan
John H. Bryan (WV Bar No. 10259)
JOHN H. BRYAN, ATTORNEYS AT LAW
611 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
jhb@johnbryanlaw.com
for the Plaintiff

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