                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-2063


LEVERT SMITH and NELSON D. RADFORD, Co-Administrators of
the Estate of JOSEPH JERMAINE PORTER,

                 Plaintiffs - Appellants,

           and

LATOYA HACKETT; BETTY JO RADFORD,

                 Plaintiffs,

           v.

RONALD LUSK, individually,

                 Defendant – Appellee,

           and

THE CITY OF HUNTINGTON, WEST VIRGINIA,

                 Defendant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
Chief District Judge. (3:10-cv-00781)


Argued:   May 16, 2013                       Decided:   July 18, 2013


Before DUNCAN and KEENAN, Circuit Judges, and David C. NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished opinion.        Judge Keenan wrote   the
opinion, in which Judge Duncan and Judge Norton joined.


ARGUED: Patrick Stanley Cassidy, CASSIDY, MYERS, COGAN &
VOEGELIN, LC, Wheeling, West Virginia, for Appellants.   Charles
K. Gould, JENKINS FENSTERMAKER, PLLC, Huntington, West Virginia,
for Appellee. ON BRIEF: Timothy F. Cogan, CASSIDY, MYERS, COGAN
& VOEGELIN, LC, Wheeling, West Virginia, for Appellants.
Nathanial A. Kuratomi, JENKINS FENSTERMAKER, PLLC, Huntington,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

      This case is based on a shooting incident that occurred

after     officers   from   the    City       of   Huntington,   West    Virginia,

Police Department responded to a report of multiple gunshots

fired in a nightclub.         Officer Ronald Lusk and other officers

entered the club where Lusk ultimately shot and killed a club

patron, Joseph J. Porter.            The co-administrators of Porter’s

Estate (the plaintiffs) filed suit against Lusk and the City of

Huntington (the City) asserting claims under 42 U.S.C. § 1983

and claims of reckless conduct and simple negligence. 1

      In a jury trial, at the close of evidence, the district

court concluded that the plaintiffs’ simple negligence claim was

not supported by the evidence and entered judgment as a matter

of law in favor of Lusk and the City on that claim.                       The jury

returned a verdict in favor of Lusk on the remaining claims.

        On appeal, the plaintiffs challenge the district court’s

entry of judgment as a matter of law on the simple negligence

claim.     The plaintiffs also argue that the district court erred

in   giving   a   certain   jury   instruction        relating   to     the   § 1983



      1
       In asserting that the City was liable for the officers’
negligent acts, the plaintiffs rely on West Virginia Code § 29-
12-A-4, which provides, in relevant part, that employers may be
liable for the negligent conduct of their employees performed
within the scope of their employment.



                                          3
claim.        Upon   our     review,   we     affirm   the   district   court’s

judgment.


                                        I.

       The shooting incident occurred in November 2009 in the City

of Huntington.       The evidence showed that one morning around 3:00

a.m., a City police officer, who was less than one block from

Club       Babylon   (the    club),    heard     gunshots    coming   from   the

direction of the club.           The officer reported the incident over

the police radio, and numerous City police officers responded to

the scene.

       When Sergeant Charles Kingery arrived at the club, he and

other officers observed club patrons running in the street and

hiding behind parked vehicles.               Several officers also saw shell

casings on the ground in front of the club. 2

       As Sergeant Kingery approached the club’s front entrance,

he observed “a flash coming from the doorway.”                 Within seconds,

Officer Lusk, Officer Joshua Nield, and another officer followed

Sergeant Kingery into the club in a single-file formation with

their guns drawn.           As they entered, the officers saw between 30

and 40 patrons remaining in the club.                  The officers described




       2
       Police officers ultimately determined that three people
had been shot near the front entrance of the club.



                                         4
the scene as chaotic, and considered the location an “active

shooting scene.”

       One of the officers testified that as he entered, he heard

someone say, “[t]hey’ve got guns and they’re going towards the

back.”     Another     officer     observed      a   patron     pointing       in   that

direction.     After the officers observed two men moving quickly

toward the club’s rear exit, the officers identified themselves

as police and repeatedly ordered the two men to stop.

       One of the men, Lamont Miller, eventually stopped, turned,

and placed his hands in the air.                  Sergeant Kingery approached

Miller to restrain him.            When the other man, Porter, continued

moving   toward      the   rear    of     the    club    despite      the     officers’

commands to stop, Officer Lusk pursued Porter.

       Officer Lusk testified that as he approached Porter from

behind, he “grabbed” Porter’s left arm and “spun” Porter around.

At that time, the two men were standing a few feet apart.                             As

Porter   turned      toward   Lusk,       Lusk   observed       a    silver    gun    in

Porter’s right hand being pointed at Lusk.                     Lusk stated that he

“pushed off,” stepped to his left, raised his weapon, and fired

one shot that struck Porter in his right arm.                    The bullet passed

through Porter’s arm and lodged in his spine, ultimately killing

him.

       Officers Kingery, Lusk, and Nield all testified that they

observed   a   gun    lying   on    the    ground       near   the   right     side   of

                                           5
Porter’s body.    Officer Nield placed the gun in the trunk of his

police vehicle.

     The   plaintiffs   presented    evidence   to   support   their

contention that Porter did not have a gun on his person when

Lusk shot him.    Two club patrons who witnessed the shooting from

between eight and twelve feet away testified concerning their

observations.     One of the witnesses testified that Porter was

holding a glass, not a gun, while the other witness stated that

Porter was not holding any object in his hands.      The plaintiffs

also presented evidence showing that there was no fingerprint or

other physical evidence linking Porter to the gun recovered by

the officers.

     At the close of the evidence, the district court entered

judgment as a matter of law in favor of Lusk and the City on the

simple negligence claim.    The jury considered only the remaining

issues whether Lusk violated Porter’s constitutional right to be

free from the use of excessive force, and whether Lusk acted

willfully, wantonly, or recklessly in causing Porter’s death. 3


     3
       The plaintiffs also initially asserted a claim under
§ 1983 based on the City police officers’ alleged “custom of
condoning” excessive force and on the City’s alleged failure to
properly train, hire, and supervise its employees.        Before
trial, however, the district court granted the defendants’
motion for summary judgment on these claims.      The plaintiffs
also had asserted that the officers were negligent in failing to
render medical aid to Porter after he was shot.     However, the
defendants moved for entry of judgment as a matter of law on
(Continued)
                                 6
The jury decided both issues in favor of Lusk.                               The plaintiffs

timely filed this appeal.


                                          II.

      The    plaintiffs      argue    that        the    district       court      erred   in

entering judgment as a matter of law on their simple negligence

claim.       They   also   contend       that     the        district   court      erred    in

denying     their   motion    for    a    new     trial        based    on    an   allegedly

improper     jury   instruction      relating           to    the   § 1983     claim.       We

address these arguments in turn.


                                           A.

      We    first   consider    the      plaintiffs’           arguments       relating     to

their simple negligence claim.                    We review de novo a district

court’s ruling on a motion for judgment as a matter of law.                                GSM

Dealer Servs. v. Chrysler Corp., 32 F.3d 139, 142 (4th Cir.

1994).      In engaging in this review, we consider the evidence in

the   light     most   favorable         to       the    plaintiffs,          drawing      all

reasonable     inferences      in     their        favor       without        weighing     the

evidence or assessing the witnesses’ credibility.                             See Anderson

v. G.D.C., Inc., 281 F.3d 452, 457 (4th Cir. 2002).                             Judgment as

a matter of law is warranted only when the evidence has failed



that claim, which the district court granted. The plaintiffs do
not challenge either of these rulings on appeal.



                                              7
to provide a legally sufficient basis on which a jury could

reach a verdict in favor of the non-moving party.               Fed. R. Civ.

P. 50(a).

     At the close of the evidence, the district court determined

that the evidence was insufficient to support a claim of simple

negligence.    The court stated:

     Lusk testified that he intentionally shot Joe Porter,
     fearing Porter was about to shoot him.     Plaintiffs
     presented no evidence that Lusk’s decision to shoot
     was accidental, or careless, rather than intentional.
     Additionally, Plaintiffs failed to present sufficient
     evidence for a jury to conclude that Lusk was
     negligent in his actions before or after the shooting
     incident.

     On appeal, the plaintiffs challenge this ruling and advance

several theories of simple negligence that they contend were

supported by the evidence.       We initially address the plaintiffs’

argument     that   the   jury   could     have    determined      that    Lusk

negligently,    rather    than   intentionally,         shot   Porter.       The

plaintiffs assert that the jury could have determined that Lusk

accidentally or mistakenly shot Porter based on Lusk’s ambiguous

testimony.      The   plaintiffs   rely    on     the   portions   of     Lusk’s

testimony in which he agreed that his “gun went off,” and stated

that he “discharged” his weapon.          The plaintiffs also argue that

because Lusk stated that he was not aiming his weapon and that

the weapon was close to his chest when he fired, a jury could




                                    8
determine that Lusk did not intentionally fire his weapon at

Porter.      We disagree with the plaintiffs’ arguments.

       At the outset, we observe that the district court correctly

determined that the plaintiffs could not prevail on a claim of

simple negligence based on Lusk’s intentional act.          See Stone v.

Rudolph, 32 S.E.2d 742, 748 (W. Va. 1944) (intentional acts are

not    encompassed    by   general    negligence   principles).    After

reviewing the record, we hold that the evidence unequivocally

demonstrated that Lusk intentionally shot Porter in response to

the perceived threat that Porter posed.

       The plaintiffs’ reliance on isolated words and phrases used

by    Lusk   mischaracterizes   his   testimony.    Lusk   described   his

encounter with Porter, which lasted only seconds, and explained

the manner in which Lusk fired his weapon.          Lusk stated that his

gun was “still close to [his] chest, not even really aiming,

just straight out,” and that he “pulled the trigger one time.”

Lusk later clarified that he was shooting at the “right side of

[Porter’s] body.”      Although Lusk did not immediately know that

his gunshot had struck Porter, Lusk stated that he thought that

Porter might have been struck.            We can find no basis in this

record to support the plaintiffs’ claim that Lusk accidentally

or mistakenly shot Porter.

       Our conclusion is not altered by the plaintiffs’ reliance

on our decision in Henry v. Purnell, 652 F.3d 524 (4th Cir.

                                      9
2011).       In that case, we held that an officer who accidentally

employed his firearm instead of his taser was not shielded by

qualified immunity from the plaintiff’s § 1983 excessive force

claim.       Id. at 534.      We explained that the plaintiff could put

forth evidence that a reasonable officer would have realized

that he was holding a firearm, and that it was unlawful to use

that firearm to shoot an individual who was not posing a threat.

Id.     Because this discussion in Henry related to the plaintiffs’

§ 1983 excessive force claim, that analysis has no bearing on

the different issue of simple negligence presented here. 4

      We therefore hold that the district court did not err in

determining         that   the     evidence   of   simple     negligence        was

insufficient to permit a jury verdict in favor of the plaintiffs

based       on   Lusk’s act   of   shooting   Porter. 5     Thus,   we   turn    to



        4
       We also observe that in Henry, we determined that the
district court erred in granting summary judgment on the gross
negligence claim, because a jury could conclude that Purnell was
grossly negligent “in failing to make even a minimal effort to
verify that he had drawn his Taser.” 652 F.3d at 536. However,
that holding likewise has no impact on whether the evidence
presented to the jury in the present case was sufficient to form
the basis of a simple negligence claim.    Furthermore, the jury
in the present case was instructed on the plaintiffs’ claim of
gross misconduct and found in favor of Lusk on that claim.
        5
       To the extent that the plaintiffs advance other arguments
relating to their theory that Lusk negligently shot Porter, we
decline to consider those arguments, which were raised for the
first time on appeal.   See Helton v. AT&T, Inc., 709 F.3d 343,
360 (4th Cir. 2013).



                                        10
consider      the    plaintiffs’      arguments          that    Lusk      and    the    other

officers      engaged     in     negligent        conduct      before      and    after    the

shooting occurred.

        The plaintiffs contend that Lusk acted negligently before

the shooting by failing to use “due care in assessing” whether

Porter presented a threat, and by “rush[ing] to judgment.”                                With

regard       to    the   officers’       conduct       after      the      shooting,      the

plaintiffs         contend     that   the      officers         acted      negligently      by

allegedly         fabricating     evidence        that     a    gun       was    found    near

Porter’s body and by failing to properly secure the gun.                                    We

disagree with the plaintiffs’ arguments.

     A    plaintiff       asserting      a     claim     of     negligence        bears   the

burden of establishing a prima facie case.                        See Jack v. Fritts,

457 S.E.2d 431, 434-35 (W. Va. 1995) (citing Parsley v. Gen.

Motors Acceptance Corp., 280 S.E.2d 703 (W. Va. 1981)).                                    To

prove    a    prima      facie    case    of      negligence,         a    plaintiff      must

establish that the defendant owed the plaintiff a duty, breached

that duty by acting or failing to act and, as a result, caused

injury to the plaintiff.              Bland v. State, 737 S.E.2d 291, 302

(W. Va. 2012).            While there is a general duty of reasonable

conduct that all individuals owe to others, to support a “valid

cause of action” for negligence, a plaintiff must demonstrate

the particular duty owed by a defendant and the breach of that



                                             11
duty in the context of the given circumstances.                           Robertson v.

LeMaster, 301 S.E.2d 563, 567-68 (W. Va. 1983).

     Here,      the      plaintiffs        failed       to      present       evidence

establishing     that    the   officers       owed    any     duty   to    the   club’s

patrons or breached any such duty based on the officers’ conduct

before    the   shooting.       In    fact,    the     only    discussion        of    the

applicable standard of care presented by the plaintiffs related

to the duty of care owed by an officer in employing deadly force

against a suspect.         That evidence, however, did not address in

any manner a standard of care or duty owed by the officers in

their conduct preceding the shooting.

     It is difficult to discern from the plaintiffs’ argument

the precise conduct on which they rely in asserting that the

officers    acted     negligently     in     the     moments    before      Lusk      shot

Porter.    The plaintiffs’ bare contention that Lusk was mistaken

in his perception that Porter held a gun does not establish a

claim of negligence.           Instead, the plaintiffs were required to

demonstrate     the     duty   that    the    officers        owed   to     Porter      in

assessing whether Porter was a threat, and the manner in which

Lusk’s assessment of the situation, made in a matter of seconds,

breached that duty.       See id.

     In contrast to the plaintiffs’ lack of evidence regarding

the applicable standard of care, Lusk and the City presented

extensive testimony on this issue.                 Thomas Streed, who offered

                                        12
expert testimony on the subject of police procedures, stated

that    police     officers   are      trained        to   pursue      and    detain    an

individual who appears to be fleeing an area in which shots have

been fired.        Streed opined that the officers’ entry into the

club in a “column” formation, and other actions by the officers

both before and after the shooting, were appropriate responses

under    the     circumstances.         Notably,        the     plaintiffs      did    not

challenge Streed’s testimony and did not cross-examine him.                             We

therefore conclude that the plaintiffs failed to present a prima

facie case of negligence based on the officers’ conduct before

Porter was shot.

        With regard to the officers’ actions after the shooting,

the plaintiffs do not point to any particular conduct by the

officers that bore a causal relationship to Porter’s death, the

only    injury     asserted   by       the        plaintiffs.         Any    potentially

improper conduct by the officers with respect to their securing

the gun or to handling the evidence cannot form a basis for

negligence in this case when there is no related injury alleged.

See Neely v. Belk, Inc., 668 S.E.2d 189, 197 (W. Va. 2008) (a

plaintiff must show that defendant’s action or failure to act

caused injury to the plaintiff).

       For   these   reasons,     we    conclude        that    the    district       court

correctly determined that the evidence was insufficient for a

jury to find that Lusk negligently shot Porter, or that the

                                             13
officers’    conduct    before   or   after       the   shooting   incident   was

negligent.        We therefore hold that the district court did not

err in granting judgment as a matter of law on the plaintiffs’

simple negligence claim.

                                      B.

     We next consider the plaintiffs’ argument that the district

court erred in denying their motion for a new trial based on an

erroneous jury instruction relating to the § 1983 claim.                       We

review for an abuse of discretion the district court’s decision

to deny a motion for a new trial.                  Nichols v. Ashland Hosp.

Corp., 251 F.3d 496, 500 (4th Cir. 2001); see Fed. R. Civ. P.

59(a).       In    considering   whether      a    district    court    properly

instructed the jury, we conduct a de novo review.                  United States

v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012).

     The plaintiffs’ argument focuses on the district court’s

jury instruction concerning the § 1983 excessive force claim.

That instruction provided:

     An actor’s use of deadly force is objectively
     reasonable if he has probable cause to believe that a
     person poses an imminent danger of harm to himself or
     others, even if the officer is mistaken in the belief
     that the person is armed or otherwise mistaken as to
     the nature of the danger.    Even if Officer Lusk was
     mistaken as to whether Joseph Porter posed an imminent
     risk, an officer’s mistaken belief about the attendant
     circumstances does not make the use of deadly force
     unreasonable per se or automatic.     If Officer Lusk
     reasonably believed that Joseph Porter presented an
     immediate threat of serious physical harm, Officer


                                      14
       Lusk could reasonably           use    deadly      force   to   protect
       himself or others.

       The plaintiffs assert: (1) that this instruction contained

an incorrect statement of law; and (2) that if the evidence was

insufficient to support a claim for negligence, the evidence

likewise was insufficient to support this instruction, because

it     permitted    the    jury   to   consider      whether      Lusk   mistakenly

thought that Porter held a gun at the time Lusk shot him.                        We

disagree with the plaintiffs’ arguments.

       Contrary to the plaintiffs’ contention, the challenged jury

instruction provides a correct statement of law in the context

of a § 1983 excessive force claim.                   We have explained that a

“mistaken     use     of     deadly     force”       is     not    necessarily    a

constitutional violation when such force is based on a “mistaken

understanding       of     facts”      that     is     reasonable        under   the

circumstances.       Culosi v. Bullock, 596 F.3d 195, 201 (4th Cir.

2010) (quoting Milstead v. Kibler, 243 F.3d 157, 165 (4th Cir.

2001)).

       There was a sufficient evidentiary basis for the challenged

instruction based on the differing accounts from eyewitnesses

regarding whether Porter held a gun in his hand when Lusk shot

him.     The jury was entitled to make credibility determinations

and to resolve this conflicting evidence in their assessment




                                        15
whether Lusk violated Porter’s constitutional right to be free

from excessive force.

       Permitting the jury to consider whether Lusk was mistaken

regarding this perceived threat, in the context of the § 1983

claim, does not conflict with the district court’s decision that

the evidence failed to support the separate claim for simple

negligence.        The   two    theories   of    recovery   were   distinct   and

required proof of different elements.                   We therefore conclude

that the district court did not err in giving the challenged

jury instruction, and did not abuse its discretion in denying

the plaintiffs’ post-trial motion for relief on this basis.


                                         III.

       In sum, we hold that the district court did not err in

entering judgment as a matter of law for the defendants with

respect to the simple negligence claim, because the plaintiffs

failed to establish an evidentiary basis for such a claim.                     We

also hold that the district court did not err in instructing the

jury    on   the   §     1983   claim,     and   that    the   challenged     jury

instruction was properly given based on the evidence presented

at trial.     Thus, the district court did not abuse its discretion

in denying the plaintiffs’ motion for a new trial.                 Accordingly,

we affirm the district court’s judgment.

                                                                       AFFIRMED


                                          16
