UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BETTY M. RUSMISELL; ANN

RUSMISELL,

Plaintiffs-Appellants,

v.

GERALD LOCKE SMITH; JOHN BUSCH;

The law firm of Busch & Talbott,

L.C.; JIMMIE L. GREEN; R. MARK

HARPER; WILLIAM E. MCKNIGHT;

THOMAS KEADLE, Honorable; JAMES

D. LAROSA; ANKER ENERGY

CORPORATION; SPRUCE FORKS COAL;

JOHN T. HASKINS; RAYMOND F.

PHILLIPS; BASS ENERGY,

INCORPORATED; JOHN M. BOWERS;

EUGENE C. SUDER; NORMAND HALE;

No. 00-1243 MIKE ROSS, Senator; MIKE ROSS,

INCORPORATED; VIRGIL MILLER; JAMES

DANIEL MOODY; JEFFREY ST. CLAIR;

MAGISTRATE COURT OF UPSHUR

COUNTY; CIRCUIT COURT OF Upshur

County; SUPREME COURT OF

APPEALS OF WEST VIRGINIA; JAMES

ROSS; TROY BRADY; GREG ANDREWS;

LARRY MARSH; UNKNOWN FEMALE

EMPLOYEE OF SHERIFF; CHARLIE

MCCOURT; JUANITA ADAMS; JAMES

WOODY; DALE WOODY; M. HUGH

HEFNER; STEPHEN A. HOLMES; LAURA

RUSMISELL; DEAN EVERETT;

MARGARETE GROSE,

Defendants-Appellees,
and

AUBREY A. WILSON,

Defendant.

BETTY M. RUSMISELL; ANN

RUSMISELL,

Plaintiffs-Appellants,

v.

GERALD LOCKE SMITH; JOHN BUSCH;

The law firm of Busch & Talbott,

L.C.; JIMMIE L. GREEN; R. MARK

HARPER; WILLIAM E. MCKNIGHT;

THOMAS KEADLE, Honorable; JAMES

D. LAROSA; ANKER ENERGY

CORPORATION; SPRUCE FORKS COAL; No. 00-1479

JOHN T. HASKINS; RAYMOND F.

PHILLIPS; BASS ENERGY,

INCORPORATED; JOHN M. BOWERS;

EUGENE C. SUDER; NORMAND HALE;

MIKE ROSS, Senator; MIKE ROSS,

INCORPORATED; VIRGIL MILLER; JAMES

DANIEL MOODY; JEFFREY ST. CLAIR;

MAGISTRATE COURT OF UPSHUR

COUNTY; CIRCUIT COURT OF Upshur

County; SUPREME COURT OF

APPEALS OF WEST VIRGINIA;

2 RUSMISELL v. SMITH
JAMES ROSS; TROY BRADY; GREG

ANDREWS; LARRY MARSH; UNKNOWN

FEMALE EMPLOYEE OF SHERIFF;

CHARLIE MCCOURT; JUANITA ADAMS;

JAMES WOODY; DALE WOODY; M.

HUGH HEFNER; STEPHEN A. HOLMES;

LAURA RUSMISELL; DEAN EVERETT;

MARGARETE GROSE,

Defendants-Appellees,

and

AUBREY A. WILSON,

Defendant.

Appeals from the United States District Court

for the Northern District of West Virginia, at Elkins.

Robert Earl Maxwell, Senior District Judge.

(CA-98-23-2)

Submitted: September 29, 2000

Decided: October 20, 2000

Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.

No. 00-1243 affirmed and No. 00-1479 affirmed in part and vacated

and remanded in part by unpublished per curiam opinion. 

COUNSEL

Betty M. Rusmisell, Ann Rusmisell, Appellants Pro Se. John Everett

Busch, BUSCH & TALBOTT, Elkins, West Virginia; Daniel C. Cooper, Robert Eugene Gifford, Michael S. Garrison, James Douglas

Gray, Michael Kozakewich, Jr., STEPTOE & JOHNSON, ClarksRUSMISELL v. SMITH 3
burg, West Virginia; Harold Stanford Yost, Bridgeport, West Virginia; James A. Walls, Morgantown, West Virginia; John M. Bowers,

French Creek, West Virginia; Ellen R. Archibald, KESNER, KESNER & BRAMBLE, Charleston, West Virginia; Normand Hale,

Buckhannon, West Virginia; William Tracey Weber, Jr., WEBER &

WEBER, Weston, West Virginia; Norman Thomas Farley, WEST &

JONES, Clarksburg, West Virginia; Terry D. Reed, HYMES &

COONTS, Buckhannon, West Virginia; Laura Rusmisell, Buckhannon, West Virginia; Dean Everett, Buckhannon, West Virginia; T.

Keith Gould, WILSON & BAILEY, Weston, West Virginia, for

Appellees. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

In No. 00-1243, Betty M. Rusmisell and Ann Rusmisell appeal the

district court’s orders denying relief in an action filed pursuant to 42

U.S.C.A. § 1983 (West Supp. 2000) and various other federal statutes

and denying their motion for reconsideration. We have reviewed the

record and the district court’s orders and find no reversible error. Specifically, the district court correctly found that the Plaintiffs had failed

to state a claim for conspiracy, discrimination, deprivation of due process and property, abridgement of the right to free speech, and denial

of access to the courts. Nor did they state a claim under the Americans with Disabilities Act.

Further, summary judgment was correctly entered for the various

"law enforcement defendants" on claims including the excessive use

of force, malicious prosecution, false arrest, and denial of medical

attention. The record reveals that the force used to restrain Ann

Rusmisell was reasonable and necessary under the circumstances, see

Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998). Further, with

4 RUSMISELL v. SMITH
regard to the Fourth Amendment claims of malicious prosecution and

false arrest, Ann cannot show that the underlying proceedings, which

resulted in convictions, terminated on terms favorable to her. See

Lambert v. Williams, 223 F.2d 257, 2000 WL 1099953 at *12 (4th

Cir. Aug. 7, 2000) (No. 99-1819). Finally, because Ann admits that

she failed to complain about a purported injury to her hand, and no

injury was apparent, her claim for inadequate medical care had no

merit. See Miltier v. Beorn, 896 F.2d 848, 851-53 (4th Cir. 1990). 

In short, there was no merit to any of the allegations in this action.

We therefore affirm the district court’s decision in No. 00-1243. 

In No. 00-1479, the Rusmisells appeal the district court’s order

awarding $64,831.93 in attorney’s fees under 42 U.S.C. § 1988(b)

(1994). The district court did not abuse its discretion in finding the

lawsuit to be frivolous and initiated because the Plaintiffs desired

revenge for a partition action brought in West Virginia state court.

However, because the district court did not apply the factors identified in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.

1974), in setting the amount of the fee award, it is impossible to determine whether the amount awarded was an abuse of discretion. Therefore, we must vacate the fee award and remand for application of the

Johnson factors. See EEOC v. Service News Co., 898 F.2d 958, 965

(4th Cir. 1990); Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n.28

(4th Cir. 1978). 

We accordingly affirm the decision in No. 00-1243. The decision

in No. 00-1479 is affirmed with respect to the decision that attorney’s

fees should be awarded but vacated and remanded with respect to the

amount of fees. The various motions to strike the Appellants’ briefs

are denied. The motion to strike Aubrey Wilson as a party to the

appeal is granted. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process. 

No. 00-1243 - AFFIRMED

NO. 00-1479 - AFFIRMED IN PART;

VACATED AND REMANDED IN PART

RUSMISELL v. SMITH 5