                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-2098


CAROL PETHTEL, Individually and in her capacity as
Administratrix of the Estate of Thomas Samuel Pethtel, Jr.,
Deceased, and as Guardian Ad Litem for T.B., T.P., and
T.S.P., III,

                Plaintiff - Appellant,

           v.

WEST VIRGINIA STATE POLICE; DAVID L. LEMMON, Colonel,
Superintendent of the West Virginia State Police; GERALD L.
MENENDEZ, Sergeant; CHARLES F. TRADER, Sergeant; DAVID B.
MALCOMB, Sergeant; SCOT L. GOODNIGHT, Sergeant; R. L.
MEFFORD, Corporal; J. A. SIMMONS, Individually and in their
capacity as members of the Special Response Team -- Alpha
Team of the West Virginia State Police; T. L. PHILLIPS,
Captain, State Police Commanding Officer in Ohio County,

                Defendants - Appellees.



Appeal from the United States District Court for the Northern
District   of  West   Virginia,  at  Wheeling.     Frederick P.
Stamp, Jr., Senior District Judge. (5:06-cv-00087-FPS)


Argued:   October 30, 2009               Decided:   December 31, 2009


Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Peter Michael Suwak, Washington, Pennsylvania, for
Appellant.  Michael Deering Mullins, STEPTOE & JOHNSON, LLP,
Charleston, West Virginia, for Appellees.  ON BRIEF: Robert L.
Bailey, STEPTOE & JOHNSON, LLP, Charleston, West Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       After a West Virginia State Police officer shot and killed

a   fugitive      while       he    was   holding    a   hostage,    the   deceased’s

mother, Carol Pethtel, brought this action against the State

Police and several individual officers.                      Ms. Pethtel asserts

that   the    officers        employed     unconstitutionally       excessive    force

and seeks money damages pursuant to 42 U.S.C. § 1983 (2006) and

state law.        The district court granted summary judgment to the

State Police and the individual officers.                    For the reasons that

follow, we affirm.



                                               I.

       In July 2004, West Virginia convicted Thomas Pethtel, Jr.

of drug possession with intent to distribute.                     The court allowed

Pethtel      to   wear    a    tracking     device   and   stay     with   his   sister

pending sentencing.                Pethtel removed the tracking device and

fled with his girlfriend, Randi Scott, to George Schlosser’s

house.       Schlosser’s           roommate,    Patricia   Grinage,    testified    at

deposition that Pethtel feared capture; he “listen[ed] in on

phone conversations,” threatened to harm anyone who called the

police, and required at least one of the residents to stay at

the house with him at all times.

       Frightened that Pethtel would kill her, Grinage telephoned

the police when out of the house.                    She relayed the following:

                                               3
Pethtel was at Schlosser’s house and acting paranoid.             He had a

gun and had asked her to purchase hollow point bullets.             He had

said “he wasn’t going back to jail[,] and he wasn’t going by

himself if he had to die.”         He did not want the residents of the

house to exit simultaneously.         He had been using drugs.      He had

already fired the gun once during an argument with Randi Scott,

although the actual discharge may have been accidental.

     After Grinage called the police, the West Virginia Special

Response Team (“SRT”) prepared to take Pethtel into custody.

In investigating Pethtel prior to entering the Schlosser house,

the police also discovered that Pethtel was a large man who had

been convicted of multiple felonies and who had a “history of

. . . fighting with police.”

     On the night of July 14, 2004, six SRT officers entered the

Schlosser house through the back door.            Sgt. Gerald Menendez

immediately threw a flash bang device into the house to stun the

occupants; George Schlosser then submitted to police control.

Sgt. Charles Trader found a small handgun on the coffee table

and secured it.        The officers then entered a bedroom and saw

Pethtel drag Randi Scott, who was at least a foot shorter than

Pethtel,   into   an   adjoining    bathroom.   Once   in   the   bathroom,

Pethtel started kicking a hole through the wall into the washer-

dryer area.   Sgt. David Malcomb threw another flash bang behind



                                      4
the washer-dryer to “disrupt” Pethtel and force him out of the

bathroom.

        As the officers worked to persuade Pethtel to surrender,

Scott       screamed   for     help   and     “wav[ed]      her    hands.”           Pethtel

shouted to the officers, “[B]ack the fuck off, or I’m going to

fucking cut her throat. . . .               I’m going to kill her.                 I’m going

to cut her fucking throat.” 1               Sgt. Malcomb recounted that “the

whole       time”   Pethtel    had    Scott     “by   the    throat.”             Scott   was

“screaming,         please    don’t   let    him    kill    me     .    .    .    screaming,

bloody, just a major blood curdle.”

        When Sgt. Malcomb realized that Pethtel was “not rational,”

“not listening,” and threatening Scott with immediate danger, he

ordered his officers to shoot Pethtel when possible.                                 Pethtel

eventually      “bust[ed]      through      the    wall”    into       the   washer-dryer

area, and Sergeant Menendez shot him in the face through the

hole in the wall.            Pethtel survived.        By all accounts, the house

went silent for a short time -- as little as ten seconds and as

long as a minute.             The officers then kicked the bathroom door

open, and Sgt. Trader shot Pethtel a second time.                                Ms. Pethtel




        1
       Scott testified at deposition that Pethtel simultaneously
whispered to her that he would not hurt her.      However, Scott
also testified that the officers could not hear those whispers
and that she screamed for help because she was “totally scared
and freaked out” and “d[id not] want to die.”


                                            5
maintains that the second shot -– and the second shot alone –-

constitutes excessive force.

        The    parties   dispute     the       circumstances      surrounding     the

second shot.       Ms. Pethtel argues that Pethtel lay motionless and

incapacitated; the officers respond that Pethtel was standing

and yelling.        In an unsworn statement taken shortly after the

shooting, Scott told an investigating officer that, after the

first    shot,    Pethtel     “wasn’t   moving”       and   “wasn’t      resisting.”

Scott later clarified in deposition that, while she was “pretty

positive” that he was lying down after the first shot, she “was

actually laying in front of him, so it might have looked like he

was   holding     [her].”      She   explained       that   she   was    “under   the

influence of crack at the time,” and everything was “moving very

fast.”        Scott seems to have testified that at the moment the

officers opened the bathroom door, Pethtel held her in front of

him and “had something in [her] neck,” but her testimony on this

point is confusing.           All witnesses agree that Pethtel did not

surrender to the police.

        In    addition   to   Scott’s      unsworn    statement,        Ms.   Pethtel

presented expert testimony that “the path of the bullet in the

body is consistent with him . . . sitting on the floor.”                          The

expert elaborated that, because a head can swivel, any testimony

he could give about the bullet’s trajectory through the body

would not “tell a jury one way or the other whether Mr. Pethtel

                                           6
was standing or seated at the time he was shot.”                 He submitted a

supplemental report stating that the pattern of blood in the

bathroom was consistent with Pethtel not having been standing at

the time of the second shot.           The court excluded the anticipated

testimony regarding the pattern of blood in the bathroom because

it “was not in the written report provided to the defendants

within   the   time   set     by   this      Court’s     scheduling     order    as

extended, and was, therefore, improperly made.” 2

     At the conclusion of discovery, the State Police and the

individual officers moved for summary judgment.



                                       II.

     The district court issued a well-reasoned opinion in which

it   granted   summary      judgment    to    the      State   Police    and    the

individual officers.     Pethtel v. West Virginia State Police, 568

F. Supp. 2d 658 (N.D. W. Va. 2008).              The court determined that

the officers did not use excessive force against Pethtel and

that, even if they had, qualified immunity shielded them from

liability for money damages.




     2
        Ms. Pethtel appeals the district court’s order striking
plaintiff’s supplemental expert report.   The claim lacks merit.
The district court did not abuse its discretion in excluding the
report.    See Carr v. Deeds, 453 F.3d 593, 601-02 (4th Cir.
2006).


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                                       III.

       Pethtel now appeals to this court.                We review a grant of

summary judgment de novo, examining the facts in the light most

favorable to the nonmoving party.             Anderson v. Russell, 247 F.3d

125, 129 (4th Cir. 2001).

       After   careful   consideration        of   the   record,       briefs,      oral

arguments, and applicable law, we affirm on the basis of the

district    court’s     well-reasoned       opinion.         See   also   Graham     v.

Connor, 490 U.S. 386, 388 (1989) (reasonableness inquiry must

account “for the fact that police officers are often forced to

make split-second judgments -- in circumstances that are tense,

uncertain, and rapidly evolving -- about the amount of force

that   is   necessary     in    a   particular     situation”);         Waterman     v.

Batton, 393 F.3d 471, 476 (4th Cir. 2005) (courts determine “the

reasonableness     of    an    officer's    actions      .    .    .   based   on   the




                                        8
information possessed by the officer at the moment that force is

employed”). 3

                                                        AFFIRMED




     3
        In Waterman, we held that “force justified at the
beginning of an encounter is not justified even seconds later if
the justification for the initial force has been eliminated,”
but upheld immunity because the rule was not clearly established
at the time of the force in that case.    Waterman, 393 F.3d at
481.   Ms. Pethtel argues that the Waterman rule applies to
abrogate immunity here.    We disagree.   First, the particular
chaotic and dangerous circumstances surrounding the fatal shot
in this case justified the challenged force. Second, we issued
the Waterman opinion in January of 2005, almost six months after
Pethtel’s death.    At that time, the Waterman rule was not
clearly established law in this circuit.


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