WILLIAM CONNELLY, Magistrate Judge.
On December 11, 2014, in the Circuit Court for Prince George's County, Maryland, Plaintiff Damon Wilson filed a six count Complaint against Defendants Prince George's County, Maryland and Patrolman First Class ("PFC") Brendan Gill, alleging negligence, intentional infliction of emotional distress, battery, respondeat superior, unconstitutional custom and practice, and violations of Articles 24 and 26 of the Maryland Declaration of Rights, arising from an October 7, 2012 shooting. On January 29, 2016 Plaintiff amended
On October 7, 2012 Damon Wilson ("Wilson") exchanged text messages with his ex-girlfriend, Mynia Johnson ("Johnson"), asking to see his two daughters. He then called and spoke with Johnson. They had a disagreement about something. Wilson decided to visit Johnson's residence. It was late in the afternoon. Upon arriving at Johnson's apartment, Wilson knocked and banged on the door. Receiving no response, Wilson shouted that he wanted to see his older daughter who called out to him. Upon hearing his daughter's voice, Wilson was touched. He was also mad and kicked down the front door to the apartment.
Wilson then walked into the apartment cursing in general and specifically at one of Johnson's male guests. Wilson walked toward the back of the apartment, located Johnson and cursed at her. He took time to greet his older daughter. Realizing he was becoming too angry, Wilson left the apartment.
Johnson followed Wilson. She berated him about his conduct. Feeling provoked, he slapped her. According to Wilson, he apologized. In response Johnson said she will call the police. Wilson snatched Johnson's cell phone which fell down the drain. Wilson left the scene and walked to his twin brother's home.
Upon returning to her apartment Johnson called the police. PFC Gill was the first patrolman to respond to the scene regarding a domestic incident. PFC Gill intended to wait for backup but Johnson saw the arrival of his patrol car and met PFC Gill outside the apartment building. She reported her ex-boyfriend broke into her apartment, struck her and left the building. Johnson offered to show the damaged door to PFC Gill who agreed since Wilson had left the scene. PFC Gill followed Johnson to her apartment and verified the damage to the door. PFC Gill then asked Johnson to accompany him to the patrol car to complete paperwork.
Meanwhile, when Wilson arrived at his twin brother's place, his brother was busy tattooing someone. Wilson wanted to discuss what occurred between him and his ex-girlfriend but his brother was preoccupied. Annoyed that he could not speak with his brother, Wilson noticed and grabbed a pocket knife and then ran out the door.
In his emotionally charged state, Wilson wanted to kill himself. He wanted to commit suicide in front of Johnson to let her know she was at a fault for his action. Wilson thus started walking back to Johnson's apartment.
As Wilson walked around the corner of a distant building in the direction of Johnson's building, he saw her with a police officer. Johnson saw Wilson and advised PFC Gill, who directed Johnson to return to her apartment. PFC Gill then walked along the pathway toward the apartment building.
According to PFC Gill, he attempted to engage in a conversation with Wilson. PFC Gill observed Wilson pull an object, something shiny, from his pocket. Initially PFC Gill was too far away from Wilson and could not identify the object. PFC Gill drew his gun and started giving Wilson verbal commands. As Wilson moved closer to him, within 40 feet, PFC Gill realized Wilson was holding a knife. PFC Gill then apprised the dispatcher of the situation and requested assistance. At this point, according to PFC Gill, Wilson stopped walking. Wilson stated he was not going to drop the knife, told PFC Gill to go away, and let him (Wilson) do what he wanted to do. PFC Gill responded no, that he is not going anywhere. Again he commanded Wilson to drop the knife.
Meanwhile Johnson did not leave the scene as instructed. She stood behind PFC Gill. Her boyfriend and another individual became aware of what was happening and joined Johnson.
According to Wilson, once PFC Gill realized he was holding a knife, PFC Gill, with gun drawn, commanded Wilson to stop. Wilson complied and stood approximately 20 feet away. Wilson began cursing, stabbing himself with the knife, yelling, and crying. Wilson did not threaten, either verbally or physically, the police officer. The police officer told Wilson to put the knife down. Wilson continued poking himself with the knife.
According to PFC Gill, he continued giving verbal commands to Wilson to drop the knife. He tried to reason with Wilson who did not comply. Instead Wilson cut his throat, and continued walking. Then he stabbed himself in the chest. Wilson was closing the distance between himself and PFC Gill. Johnson and two other individuals were standing behind PFC Gill, who was standing in front of an apartment building door. If he retreated any further, Wilson could flee by running inside of an apartment.
As a result of stabbing himself in the chest, Wilson stumbled forward, taking four little steps. PFC Gill fired his service weapon five times. According to Wilson, he was approximately 20 feet away when the shots were fired. According to PFC Gill, Wilson was 10 to 15 feet away. According to Johnson, Wilson stood 8 feet away from PFC Gill and 9 to 10 feet away from her.
This court has original jurisdiction pursuant to 28 U.S.C. § 1331
Venue is proper in this judicial district based on the Defendants' residences in this judicial district, 28 U.S.C. § 1391(b)(1). Venue is also proper in this judicial district because "a substantial part of the events or omissions giving rise to the claim occurred", 28 U.S.C. § 1391(b)(2), in Maryland.
A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing no genuine issue as to any material fact exists. Fed. R. Civ. P. 56(a); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323.
On those issues where the nonmoving party will have the burden of proof, it is that party's responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256. However, "`[a] mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984) (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 632 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968)). There must be "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
Before addressing the substantive issues of Defendants' motion for summary judgment and Plaintiff's opposition thereto, Defendants object to Plaintiff's belated expert designation and request the court strike that designation. By way of background, per the May 26, 2016 scheduling order, Plaintiff's Rule 26(a)(2) expert disclosures were due August 1, 2016. ECF No. 22 at 2. No experts were designated by this deadline. Plaintiff never requested an extension of time to designate experts.
On December 7, 2016 Plaintiff filed his opposition to Defendants' motion for summary judgment. Two exhibits are attached to the opposition: (a) Plaintiff's December 7, 2016 Affidavit (ECF No. 30-2) and (b) a 17 page, undated "Expert Report/Analysis and Assessment of Liability in Case of Damon Wilson v. Prince George's County," prepared by Tyrone Powers, Ph.D. (ECF No. 30-3).
Federal Rule of Civil Procedure 37(c)(1) states, in pertinent part, "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." (Emphasis added). A party need not move for sanctions to comply with Rule 26(a)(2) because Rule 37(c)(1) "provides a self-executing sanction for failure to make a disclosure. . . ." Fed. R. Civ. P. 37(c)(1) advisory committee's note to 1993 amendment.
This court has broad discretion in determining whether Plaintiff's nondisclosure was substantially justified or harmless. In making such a determination this court should be guided by the following factors: "(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence." Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). No trial has been scheduled for this case. Nonetheless, this case is at the critical juncture of a dispositive motion. The court thus substitutes "disrupt the dispositive motion phase" in place of "disrupt the trial" for the third element.
Next, the court shall resolve this issue without any response from Plaintiff, who could have moved for leave to file a surreply in response to Defendants' request to strike Plaintiff's untimely expert designation. For reasons known only to Plaintiff, he did not seek leave of court or file any other motion or notice on this matter.
Based on the information presented, the court finds Defendants had no prior knowledge about Dr. Powers' expert report, analysis and assessment of liability
Third, permitting the admission of Dr. Powers' report will disrupt the dispositive motion phase because (a) the motion is ripe for resolution, and (b) Defendants did not have the opportunity to review Dr. Powers' report, consult their own expert about Dr. Powers' report, and depose Dr. Powers. Fourth, although Dr. Powers' opinion could be important, the basis of his opinion also could be unsupportable and unreliable and therefore would be excluded. The court cannot answer the fourth factor with any certainty because, due to the untimely disclosure, Defendants were not given an opportunity to scrutinize Dr. Powers' report. Finally, Plaintiff failed to provide any explanation for his untimely disclosure.
As noted in the 1993 Amendment to the Advisory Committee's Note for Rule 37(c)(1), "[t]his automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule 56." It was incumbent upon Plaintiff, if he wanted to use Dr. Powers' report as evidence, to comply with the scheduling order for expert disclosure or seek an extension. Plaintiff did neither. Once Plaintiff unexpectedly attached Dr. Powers' report to his opposition and Defendants, in their reply, asked this court to strike Dr. Powers' report, Plaintiff could have moved to file a surreply explaining why the disclosure was untimely or could have moved seeking other relief regarding the late disclosure of Dr. Powers' report. Plaintiff did neither.
The court therefore finds Plaintiff's untimely disclosure of Dr. Powers' report is not substantially justified nor is it harmless. The court hereby
The court now turns its attention to the substance of Defendants' motion for summary judgment. Preliminarily the court notes, in his opposition, Plaintiff abandons his negligence claim (Count Six) against Defendant PFC Gill and abandons his claim of unconstitutional custom and practice (Count Three) against Defendant Prince George's County, Maryland. See ECF No. 30 at 1, ECF No. 30-1 at 7. With regard to these counts Plaintiff declares,"[a]n appropriate motion to amend the complaint will soon be filed." Id. More than three months
The court now turns its attention to the remaining counts, i.e., intentional infliction of emotional distress, battery, respondeat superior, violations of Articles 24 and 26 of the Maryland Declaration of Rights, and excessive force under 42 U.S.C. §1983.
In Count Seven of his Amended Complaint, Wilson alleges in pertinent part:
ECF No. 35 at 6.
In their Answers to the Amended Complaint, Defendants admit paragraph 44, the shooting of Wilson by PFC Gill constitutes a seizure under the Fourth Amendment of the United States Constitution. As to the remaining allegations, with the exception of admitting Wilson was partially paralyzed (paras. 46-47, 49), Defendants deny the allegations (paras. 45 and 48), or deny portions of the allegations and assert a lack of sufficient information or knowledge to admit or deny other portions of the allegations (paras. 46-47, 49). See ECF No. 36 at 5-6.
A cause of action is created under Section 1983 of Title 42 against any person acting under color of state law who abridges an individual's right arising under the Constitution or laws of the United States. Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). Plaintiff and Defendants agree the shooting of Wilson by PFC Gill constitutes a seizure under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989) (holding "that all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the
In response to a Section 1983 claim a government official may invoke qualified immunity. Qualified immunity is not merely a defense to liability; it is immunity from the lawsuit itself. Cooper, 735 F.3d at 158. "Qualified immunity balances two important interests— the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). Therefore, qualified immunity shields a police officer from civil liability unless, under a reasonableness inquiry, the police officer should have known his actions violated clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
"The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. This reasonableness inquiry is an objective one: "the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397. In assessing the reasonableness of the force used to effect a particular seizure, a court must carefully consider the facts and circumstance of the particular case, especially the following three factors: (a) "the severity of the crime at issue," (b) "whether the suspect poses an immediate threat to the safety of the officers or others, and" (c) "whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Id. at 396. Finally, the United States Court of Appeals for the Fourth Circuit cautions "[a] court's focus should be on the circumstances at the moment force was used and on the fact that officers on the beat are not often afforded the luxury of armchair reflection." Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996).
Turning to the facts and circumstances of this case, Wilson appears to concede the first factor (the severity of the crime at issue) is established. However Wilson asserts the second and third factors have not been met. "In the instance case, the plaintiff posed no threat to the safety of the officer or others, and was not actively resisting arrest or attempting to evade arrest by flight." ECF No. 30-1 at 3.
With regard to the first factor Wilson acknowledges that, in response to Johnson's 911 call, PFC Gill was dispatched to Johnson's apartment building. Although Wilson was not present when the 911 call was made, Wilson knew Johnson attempted to call the police, which he prevented.
ECF No. 29-1 at 12, 13, 15 (Wilson Dep. 64:8-19, 66:1-9, 69:3-14).
In her October 7, 2012 Statement of Victim, Johnson corroborates the facts and circumstances resulting in the dispatch of PFC Gill to Johnson's apartment building.
The Internal Affairs Division of the Prince George's County, Maryland Police Department investigated the shooting of Wilson. PFC Gill was interviewed on July 3, 2013, approximately nine months after the incident. PFC Gill explained the nature of the call he received from a police dispatcher to report to Johnson's apartment building. "I responded there for a domestic. It was given to us via 911. A female victim called 911 stating her ex-boyfriend had broke[n] into her apartment while she was in there, beat her, um, and then fled out of the apartment." ECF No. 29-3 at 4. Johnson apparently observed PFC Gill arrive in a marked vehicle and met him in the parking lot.
Id.
The facts establish Wilson assaulted
Individually, each crime is a misdemeanor. See Md. Code Ann., Crim. Law §§ 3-203(b)
Next, in assessing the reasonableness of PFC Gill's force, this court must determine whether Wilson posed an immediate threat to the safety of PFC Gill or others. Wilson refutes any suggestion that he posed an immediate threat to the safety of PFC Gill or the bystanders. Instead, Wilson was a threat to himself and executed on that threat by inflicting himself with wounds with the knife he held in his hand.
ECF No. 29-1 at 25-26 (Wilson Dep. 90:9 - 91:13).
When Wilson picked up the pocket knife at his brother's home, he wanted to commit suicide and do so in front of Johnson to let her know she was at fault for the present circumstances. Id. at 23-24 (Wilson Dep. 86:18 - 87:3). When Wilson encountered PFC Gill he did not mention he was attempting to commit suicide. Id. at 33 (Wilson Dep. 104:3-8). Wilson provided additional details about the sequence of events when he encountered PFC Gill.
Id. at 30, 31-32 (Wilson Dep. 101:1-15, 102:7 - 103:4). In summary, according to Wilson, he did not pose an immediate threat to PFC Gill or others on the scene. Although Wilson held a pocket knife in his hand, he stopped approximately 20 feet away from PFC Gill who had his service weapon drawn. After stopping, Wilson began poking himself with the knife. One of those self-inflicted lacerations was rather painful, and Wilson reacted by stumbling, taking four little steps in the direction of PFC Gill, who reacted by firing his service weapon.
PFC Gill describes the sequence of events culminating in the firing of his service weapon as follows:
ECF No. 29-3 at 4-5 (Gill Aff.). PFC Gill was questioned further about Wilson "slitting" his throat.
Id. at 8.
The only other individual at the scene who provided a statement is Johnson. After writing her statement, a police officer asked her a series of questions, including the following:
ECF No. 29-2 at 12-13 (Johnson Statement).
Based on the testimonies above, it is undisputed that Wilson used the knife to harm himself. No evidence has been presented that Wilson attempted to threaten or harm PFC Gill or others with the knife. These facts however do not support Wilson's contention that he did not pose an immediate threat to the safety of PFC Gill or others. Wilson ignores what else was occurring.
It is undisputed that PFC Gill told Wilson to put the knife down. Wilson ignored this verbal command, despite being told multiple times. Moreover, Wilson continued moving toward PFC Gill whose gun was drawn. Wilson claims he was approximately 20 feet away when PFC Gill shot him. However, PFC Gill believed Wilson was 10 to 15 feet away. Johnson, standing behind PFC Gill, claims Wilson was approximately 9 to 10 feet away from her, but was 8 feet away from PFC Gill.
"The calculus of reasonableness must embody allowance 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." Graham, 490 U.S. at 455-56. At the moment force was used, PFC Gill knew:
Although Wilson argues his stumbling toward PFC Gill by taking four small steps after cutting himself with a knife did not pose an immediate threat to the safety of PFC Gill or other bystanders, in light of the facts known to PFC Gill at the moment force was employed, the court finds a reasonable officer would have perceived Wilson's movement as threatening. See Njang v. Montgomery County, 279 F. App'x 209, 214 (4th Cir. 2008) ("It seems eminently reasonable that Officer Marchone believed that Njang, advancing upon her with a box cutter despite her commands to drop it, `pose[d] a significant threat of death or serious physical injury' to her.") (citation omitted). The following colloquy between Sergeant Pham of the Internal Affairs Division and PFC Gill focuses upon the moment force was employed.
ECF No. 29-3 at 11 (Gill Aff.). Defendants' expert witness Craig M. Dickerson, a Montgomery County police officer and trainer in the use of force, opined the level of force employed by PFC Gill was reasonable.
ECF No. 29-4 at 11 (Dickerson Report).
The facts and circumstances of this case are not analogous to Cooper, where the Fourth Circuit affirmed a district court's denial, at the summary judgment stage, of the invocation of qualified immunity by the Officers against Cooper's Section 1983 excessive force claims. In that case the Fourth Circuit found,
735 F.3d at 159 (emphasis added).
Wilson describes his conduct as a suicide attempt. Although Wilson was harming himself with the knife, the facts and circumstances of this case are not similar to Connor v. Thompson, 647 F. App'x 231 (4th Cir. 2016). Wilson claims the Fourth Circuit found a suicidal man holding a knife did not pose an immediate threat to the safety of police officers or others. The Fourth Circuit's pronouncement is not as broad as Wilson characterizes. Instead the Fourth Circuit held, "[n]o reasonable officer could think a suicidal, non-criminal individual holding a small paring knife and otherwise acting in a nonthreatening manner who had difficulty standing and walking presents justification to deviate from [a] bright-line proscription [to limit deadly force to situations when the police officer has probable cause to believe a suspect poses a significant threat of death or serious physical injury to the officers or others]." Id. at 239 (emphasis added).
Unlike the decedent in Connor, in this case, Wilson was a suspect (in light of his breaking and entering into Johnson's apartment as well as battering her). He had no trouble walking or standing; in fact, Wilson continued approaching PFC Gill, with gun drawn, despite commands to drop the knife. Based on what PFC Gill knew at the moment force was employed, this court concludes PFC Gill reasonably perceived a threat to his safety and the safety of the three individuals standing behind him. PFC Gill's response thus was "objectively justified and reasonable." Sigman v. Town of Chapel Hill, 161 F.3d 782, 787 (4th Cir. 1998). What the Sigman court noted is equally applicable to this case: "[w]here an officer is faced with a split-second decision in the context of a volatile atmosphere about how to restrain a suspect who is dangerous, who has been recently — and potentially still is — armed, and who is coming towards the officer despite officers' commands to halt, we conclude that the officer's decision to fire is not unreasonable." Id. at 788.
The third Graham factor is "whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. Wilson contends he was neither actively resisting arrest nor attempting to evade arrest by flight. The uncontroverted evidence demonstrates Wilson moved toward PFC Gill instead of fleeing the scene. Although Wilson was not actively resisting arrest, he was, at a minimum, "actively resisting submitting to the officer's control." Minor v. Prince George's County, Case No. PWG-15-983, 2017 U.S. Dist. LEXIS 21816, at *29 (D. Md. Feb. 15, 2017). Like the decedent in Njang, Wilson ignored the commands of a uniformed police officer to drop the knife. Instead Wilson continued moving toward PFC Gill with the knife in his hand approaching within 8 to less than 20 feet. Njang, 279 F. App'x at 214. At the moment PFC Gill used lethal force, he felt threatened by Wilson and feared for his safety and for the safety of the individuals standing behind him. "[A] reasonable officer possessing the same information could have believed that [use of deadly force] was lawful." Minor, 2017 U.S. Dist. LEXIS 21816, at *29 (quoting Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir. 1991)).
The court finds the evidence of record establishes, as a matter of law, that PFC Gill's use of deadly force against Wilson was reasonable, justified, and authorized by law. PFC Gill thus has met his burden of proving qualified immunity. Wilson has not identified any facts supporting his position that PFC Gill's actions were unjustified. Summary judgment in PFC Gill's favor and against Wilson as to the § 1983 claim (Count Seven) is proper.
In Count One of his Amended Complaint Wilson alleges in pertinent part,
ECF No. 35 at 2.
Article 24 of the Maryland Declaration of Rights is the analogue to the Fourteenth Amendment to the United States Constitution and Article 26 is Maryland's analogue to the Fourth Amendment. Randall v. Peaco, 175 Md.App. 320, 330, 927 A.2d 83, 89 (2007), cert. den. 401 Md. 174, 931 A.2d 1096 (2007). A claim of excessive force under Article 24 is analyzed identically to a claim of excessive force under Article 26. "In both instances, the claim is assessed under
Wilson alleges the attack, seizure, apprehension, and shooting constitute harmful and/or offensive touchings, without Wilson's consent, causing Wilson physical pain, and offending Wilson's reasonable sense of personal dignity. ECF No. 35 at 5 ¶ 32. Wilson further claims the attack, seizure, apprehension, and shooting were performed with malice toward him, with intent to inflict injuries, or with ill will and/or with improper motivations. Id. ¶ 33. This court has determined the use of force by PFC Gill was reasonable. "Because the use of force was objectively reasonable, any state law claim for assault or battery would also fail." Holloman v. Rawlings-Blake, Civil No. CCB-14-1516, 2015 U.S. Dist. LEXIS 95362, at *16 n.11 (D. Md. July 22, 2015), aff'd sub nom. Holloman v. Markowski, 661 F. App'x 797 (4th Cir. 2016). PFC Gill thus is entitled to summary judgment on this claim for battery (Count Four).
In his claim alleging intentional infliction of emotional distress, Wilson alleges PFC Gill's conduct was intentional and/or reckless and performed with malice, hatred, ill will or gross disregard for Wilson's rights. ECF No. 35 at 5 ¶ 36. Additionally Wilson characterizes PFC Gill's conduct as extreme and outrageous. Id. ¶ 37. Wilson then contends PFC Gill's conduct proximately and foreseeably caused his severe emotional distress. Id. ¶ 38.
A necessary element of an intentional infliction of emotional distress claim is the assertion that PFC Gill's conduct was extreme and outrageous. This court has determined that PFC Gill's actions were objectively reasonable. As a matter of law Wilson's intentional infliction of emotional distress claim against PFC Gill must fail. PFC Gill therefore is entitled to summary judgment on this claim (Count Five).
Finally, under Count Two, Wilson alleges in pertinent part,
ECF No. 35 at 3. In their Answers
In their motion for summary judgment Defendants assert respondeat superior cannot be asserted as a separate cause of action. "Respondeat superior . . . is a doctrine that permits the imputation of liability on a principal or employer for the act of an agent or employee." Davidson-Nadwodny v. Wal Mart Assocs., No. CCB-07-2595, 2008 U.S. Dist. LEXIS 45633, at *15-16 (D. Md. June 3, 2008). In his opposition Wilson declares "as a matter of common law, local governmental entities do have respondeat superior liability for civil damages resulting from State Constitutional violations committed by their agents and employees within the scope of the employment." ECF No. 30-1 at 7 (citing Prince George's County v. Longtin, 419 Md. 450 (2011)). In their reply Defendants note Wilson did not allege any constitutional violation against Prince George's County. ECF No. 31 at 9.
In his Amended Complaint Plaintiff asserts a common law tort (negligence), intentional torts (battery
For the intentional torts of battery and intentional infliction of emotional distress, governmental immunity does not apply. See id. at 49, 792 A.2d at 370 ("a police officer, who might otherwise have the benefit of [governmental] immunity, does not enjoy it if the officer commits an intentional tort or acts with malice."). Because this court determined PFC Gill's use of force was reasonable, Wilson's claim for battery fails. See supra. Moreover, because Wilson does not demonstrate PFC Gill's conduct was extreme or outrageous, Wilson fails to establish a necessary element for intentional infliction of emotional distress. Therefore, respondeat superior liability is not relevant since Wilson cannot establish PFC Gill committed the intentional torts of battery and intentional infliction of emotional distress.
Finally, with regard to the constitutional tort purportedly committed by PFC Gill against Wilson, Plaintiff correctly argues no governmental immunity exists. "[N]either the local government official nor a local governmental entity has available any governmental immunity in an action based on rights protected by the State Constitution." DiPino, 354 at 51, 729 A.2d at 371. In other words, as the Court of Appeals of Maryland unequivocally stated,
Id., 354 Md. at 51-52, 729 A.2d at 372. This court did not find any State Constitutional violations by PFC Gill against Wilson. See supra. Without such violations, respondeat superior liability for civil damages is unavailable as a remedy to Wilson. Accordingly, the court will dismiss Count Two (respondeat superior) against Prince George's County.
For the foregoing reasons, the court finds there are no genuine issues as to any material fact and Defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The Memorandum Opinion of April 3, 2017 and its accompanying Order will be vacated. An Amended Order will be entered separately.
Maryland Pattern Jury Instruction — Criminal ("MPJI-Cr") 4:01(C) Second Degree Assault: Battery (2013).
Breaking means the creation or enlargement of an opening, such as breaking or opening a window or pushing open a door. [Breaking includes gaining entry by fraud, trick, or force.] Entry means that any part of the defendant's body was inside the dwelling. A dwelling is a structure where someone regularly sleeps."
MPJI-Cr 4:06.3 Burglary — Fourth Degree (Break and Enter Dwelling) (2013).
MPJI-Cr 4:20 Malicious Destruction of Property (2013).
Maryland Civil Pattern Jury Instruction 15:2 (2017).
For conduct to be intentional or reckless, the defendant must either:
