A former city of Logan police officer who is part of a federal civil trial where he is accused of using excessive force and denying a man his civil rights in a 2018 incident also is the focus of at least two other ongoing excessive-force lawsuits.
Joshua Tincher worked as a police officer for Logan until last fall, when he left to work as a deputy at the Mingo County Sheriff’s Office. On Tuesday, he took the stand at the Robert C. Byrd U.S. Courthouse in front of U.S. Chief District Judge Thomas Johnston to defend himself against testimony from Frank Morgan Jr., a 46-year-old Logan County man.
Morgan, who is trying to prove to a jury that he deserves financial compensation for the alleged actions of Tincher and Logan police officer Kevin Conley, said Tincher beat him with a metal pole and a rolling chair in a backroom of Logan City Hall, leaving him with a broken elbow, seven staples in the back of his head and cuts and bruises across his body.
Tincher denies the allegations. He testified that Morgan was brought to the room to be booked after an altercation on Stratton Street, in downtown Logan. Allegedly, Morgan and his ex-fiancee were pepper sprayed and Morgan repeatedly was hit by Tincher and Conley with batons.
While in the booking room, Tincher said, Morgan was uncuffed. Tincher testified that Morgan lunged at him but he pushed him back, causing Morgan to fall and hit his head on a table, cutting it and fracturing his elbow.
Dr. Mahmoud Hamza, who treated Morgan when he was later brought to the Logan Regional Medical Center’s emergency room, testified Wednesday that it was “hard to believe” the injuries he examined on Morgan could have come from a fall alone.
Further, Hamza testified, none of the officers who accompanied Morgan to the hospital, nor the medics who brought him there, ever told him Morgan fell.
“I don’t believe I heard that,” Hamza said. “I was told — it was arrest and resisting arrest. He was combative ... that’s all I was told.”
Also taking the stand Wednesday was Tony Meade, of Mingo County, who alleged that, during an arrest following a police chase in 2017, Tincher kicked him in the face “a couple times,” hard enough to knock him unconscious and fracture his nose.
Meade filed a federal lawsuit in September 2019 against Tincher and Logan County Sheriff’s Cpl. Barry Mynes, who was a defendant in Morgan’s case until Wednesday, when all charges against him were dismissed by Johnston.
During Wednesday’s trial, Kerry Nessel, the attorney for Morgan, discovered that Tincher was the subject of a third excessive-force lawsuit from his time at the Logan Police Department. In all three cases, he is represented by Wendy Greve, who did not provide the most recent lawsuit — filed in May — during discovery for Morgan’s trial.
In that lawsuit, Travis Fortune, of Logan County, alleges that he and a friend were walking near the railroad tracks in Logan when they were stopped by Tincher, just five days after Meade filed his lawsuit.
Tincher, who still worked for the Logan police, allegedly was in “what appeared to be” a fire rescue truck and told the pair to empty their backpacks, as he was looking for someone in the area who reportedly had overdosed.
Fortune and his friend followed Tincher’s instructions, according to the lawsuit, and, as Tincher went through Fortune’s belongings, he found a set of scales, which Fortune told him were for weighing items to sell on eBay.
Tincher, “without warning or provocation” according to the lawsuit, punched Fortune in the face, causing him to drop to the ground. Afterward, Tincher allegedly got on top of Fortune and continued punching him in the head and face until he was bloody.
Tincher took Fortune and his friend to the police station, where he allegedly again punched Fortune repeatedly in the face, torso and head.
Fortune was taken to Southwestern Regional Jail and eventually took a plea deal for marijuana possession. The alleged beating by Tincher left his jaw broken in two places and required three surgeries to screw the jaw together, remove the screws and care for damaged teeth.
On Wednesday, Nessel said it was not right that Greve did not provide the lawsuit during discovery for Morgan’s trial. Johnston said it was too late in the day to deal with it, but that the matter would be sorted out.
“There’s nothing we can do about this today,” Johnston said. “I know how the game is played. I understand how this works.”
Johnston continued, saying that, if it were true that Greve intentionally withheld the lawsuit, it “could not go well” for her.
Also Wednesday, Logan Police Chief P.D. Clemens took the stand to provide insight on how his department dealt with the internal affairs investigation into Tincher and Conley’s alleged actions.
Per his testimony, the investigation was limited. He took statements from Tincher and Conley, but did not record them. He said he took notes. However, they were not provided to attorneys on the case, nor were they provided in response to a Freedom of Information Act request filed with Logan Police Department by the Gazette-Mail in 2018.
Clemens said he did not interview Morgan himself. Instead, he was provided with a recorded statement Morgan gave to West Virginia State Police Sgt. L.T. Goldie at Charleston Area Medical Center after the alleged incident.
Clemens said he also did not interview Morgan’s ex-fiancee, Marissa Hudson, who testified that she was an eyewitness. He said he used her statement from the night of the alleged incident. On Tuesday, Hudson testified that Conley forced her to write that statement. On Wednesday, Conley denied doing so.
Clemens said that, while not robust, he was “satisfied” with the investigation. He said that, if someone feels their civil rights are violated by officers, they usually take it upon themselves to call and make a report to the FBI.
“I believe they used only enough force necessary in the situation,” Clemens said of Tincher and Conley.
In Conley’s testimony Wednesday, he said Morgan “seemed to be out of his head,” when he and Tincher confronted him on Stratton Street in April. Despite this, he never made any effort to get medical help for Morgan, who was not taken for care until after he was bleeding with a broken arm.
“He was combative. An ambulance will not respond to combative [patients],” Conley said. “It has to be safe ... [detainees] have to be handcuffed.”
Conley alleged that Morgan hit him in the face with a closed fist during the incident. Because of that, he said, he was justified in responding forcefully to Morgan.
If people under arrest resist, Conley said, officers are trained and authorized to “use more force” than what’s used against them.
Greve also is representing Conley in Morgan’s case.
Mynes, of the Logan County Sheriff’s Office, had all charges against him dismissed Wednesday after the plaintiff’s attorneys failed to prove that he was responsible for anything that reportedly happened to Morgan.
Morgan testified that the most he was injured by Mynes — who allegedly is seen on video tackling Morgan against a wall on Stratton Street as he arrives on the scene — were a few scratches and bruises on his back.
The worst injuries, he said, came from Tincher allegedly beating him with a metal pole at Logan City Hall.
An assault and battery charge against Conley and a civil conspiracy charge against Tincher and Conley also were dismissed Wednesday.
This trial is set to continue at 9 a.m. Thursday at the Robert C. Byrd U.S. Courthouse, in Charleston.