ANTHONY MADISON, et al. Plaintiffs,
HARFORD COUNTY, et al. Defendants.
MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT/DISMISSAL
MARVIN J. GARBIS, District Judge.
The Court has before it Defendants', Jason Flemmens, Todd Johnson, Jennifer Huey, Emma Virginia Courtney, Christopher Jones, Sherman Kirk, Theresa Pounds, and Rickey Harper, Second Motion to Dismiss, or in the Alternative Motion for Summary Judgment [Document 35] and the materials submitted relating thereto. The Court has held a hearing and had the benefit of the arguments of counsel.
I. SUMMARY BACKGROUND
On the evening of June 11, 2009, Dwight Jerome Madison ("Madison"), a navy veteran suffering from mental illnesses, was arrested for trespassing by Harford County Sheriff Office Deputies Todd Johnson ("Officer Johnson") and Jason Flemmens ("Officer Flemmens"). Madison was transported and delivered to the Harford County Detention Center Processing Center (the "Detention Center") where he was held for processing. After arriving at the Detention Center, Madison interacted with several Detention Center personnel - Jennifer Huey ("Huey"), Emma Virginia Courtney ("Courtney"), Christopher Jones ("Jones"), Sherman Kirk ("Kirk"), Theresa Pounds ("Pounds"), and Rickey Harper ("Harper") (collectively referred to as the "DC Defendants"). There was an incident, during which Huey fired a taser, striking Madison who then fell to the floor and was severely injured. Madison was taken to the University of Maryland Shock Trauma Center and died as a result of his injuries the next day.
In the Amended Complaint [Document 14], Plaintiffs presented claims against the Harford County Council, the Harford County Executive, Sheriff Jesse L. Bane, Officer Johnson, Officer Flemmens, and the DC Defendants in seven Counts:
Count I Survival Act
Count II Wrongful Death
Count III Excessive Force/Police Brutality
Count IV Assault & Battery
Count V Deprivation of Civil Rights, 42 U.S.C. § 1983
Count VI Negligent Training and Supervision
Count VII Intentional/Negligent Infliction of Emotional Distress
Consistent with the Court's rulings in MJG-10-197, all claims against Sheriff Bane, the Harford County Council Members, and the Harford County Executive have been dismissed [Documents 53, 63]. With respect to the remaining defendants, fact discovery has been completed.
By the instant motion, Defendants move for dismissal of all claims in the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or alternatively for summary judgment under Rule 56.
II. APPLICABLE STANDARDS
The Defendants have captioned their motion as a motion to dismiss pursuant to Rule 12(b)(6) or, alternatively, for summary judgment. The parties have, however, submitted extrinsic evidence in support of their respective positions. If, on a 12(b)(6) motion, "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). Therefore, the Court shall utilize the summary judgment standard in regard to the instant motion except, as indicated herein, the Rule 12(b)(6) standard shall be applied to certain of the state law claims that were not adequately pleaded.
A motion for summary judgment shall be granted if the pleadings and supporting documents show that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id . 56(a).
The well-established principles pertinent to such motions can be distilled to a simple statement. The court may look at the evidence presented in regard to the motion for summary judgment through the non-movant's rose colored glasses, but must view it realistically. After so doing, the essential question is whether a reasonable fact finder could return a verdict for the non-movant or whether the movant would, at trial, be entitled to judgment as a matter of law. See, e.g., Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 (1986); Celotex Corp. v. Catrett , 477 U.S. 317, 327 (1986).
III. THE FEDERAL CLAIMS
In the Amended Complaint, Plaintiffs assert federal claims against:
1. The "Arresting Officers" - Defendants Johnson and Flemmens, who allegedly unlawfully arrested Madison and transported him to the Detention Center;
2. The "DC Defendants" - Defendants Jennifer Huey, Emma Virginia Courtney, Christopher Jones, Sherman Kirk, Theresa Pounds, and Rickey Harper who were present at the time Madison suffered his fatal injury; and
3. The "Inactive Defendants" - the Harford County Council, the Harford County Executive, and Sheriff Jesse L. Bane.
All claims have been dismissed against the Inactive Defendants. See [Document 21]. The claims against the Arresting Officers and the DC Defendants shall be addressed in turn.
A. The Arresting Officers
At the hearing, Plaintiffs clarified their federal claim against Officers Johnson and Flemmens as based upon the arrest of Madison without probable cause and not upon any theory that unlawful force was used.
Title 42 U.S.C. § 1983 prohibits a person acting under the color of law from depriving another of "any rights, privileges, or immunities secured by the Constitution and laws."
The Fourth Amendment, applicable to the States through the Fourteenth Amendment, guarantees against unreasonable seizures of persons and an arrest without probable cause is unreasonable. See, e.g., Dunaway v. New York , 442 U.S. 200, 208 (1979). The Fourth Amendment permits an arrest without a warrant if the arresting officer has probable cause to believe the suspect has committed a crime. United States v. Williams , 10 F.3d 1070, 1073 (4th Cir. 1993). "An officer has probable cause to believe a suspect has committed a crime if the facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person, in the circumstances shown, to conclude that the suspect has committed an offense." See, e.g., United States v. Ashley, 490 F.Appx. 512, 513 (4th Cir. 2012) cert. denied, 133 S.Ct. 391 (U.S. 2012). In determining whether probable cause existed for an arrest, a court must look at the "totality of the circumstances" surrounding the arrest. Illinois v. Gates , 462 U.S. 213, 230-32 (1983).
The evidence of record establishes that Officer Johnson, alone, responded to complaints of a person banging on apartment doors and, upon his arrival at the scene, encountered Madison. Johnson Aff. [Document 22-4] ¶ 4-7. Because Madison was not a resident of the apartment complex, Johnson informed Madison he was trespassing and told him to leave. According to Johnson's Affidavit, Madison then left and Johnson did not arrest or place Madison in custody. Id . ¶ 9-17. Later that evening, Officer Flemmens responded, alone, to another complaint of a person banging on doors at the same apartment building. Flemmens Aff. [Document 22-5] ¶ 3-4. Officer Flemmens stated in his affidavit that Officer Johnson had informed him of his prior interaction with Madison at that apartment building and Johnson's request to Madison that he leave the premises. Id . ¶ 5. Upon arrival at the apartment building, Officer Flemmens encountered Madison who informed Officer Flemmens that he was homeless, was looking for a friend, had nowhere to go, and that Flemmens should just arrest him for trespassing because he would at least "have three squares and a cot." Id . ¶ 6-9; Flemmens Dep. [Document 37-1], Ex. 2 at 50. Flemmens then arrested Madison for trespassing and transported him to the Detention Center.
1. Officer Johnson
Plaintiffs present no evidence indicating, much less adequate to prove, that Officer Johnson arrested or seized Madison, participated in Madison's arrest, or was even present during Madison's arrest. Moreover, there is no evidence that could establish that Officer Johnson's communication to Officer Flemmens about Madison was false or in any way improper. Hence, there is no evidence adequate to establish that Officer Johnson could be held liable even if Flemmens had wrongfully arrested Madison.
2. Officer Flemmens
Plaintiffs contend that Officer Flemmens lacked probable cause to arrest Madison because trespassing is a misdemeanor offense and Officer Flemmens did not witness Madison commit the offense prior to making a warrantless arrest.
"It is well established that the warrantless arrest of an individual who has committed a misdemeanor in the arresting officer's presence is consistent with the Fourth Amendment if supported by probable cause." Lee v. O'Malley , 533 F.Supp.2d 548, 551 (D. Md. 2007). As explained by the Supreme Court, "when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable." Virginia v. Moore , 553 U.S. 164, 171 (2008) (explaining violation of state arrest law is not necessarily a Fourth Amendment violation). The question of whether probable cause existed, justifying a suspect's arrest, is ultimately a question of law. See Brown v. Gilmore , 278 F.3d 362, 367-68 (4th Cir. 2002); Smith v. Reddy , 882 F.Supp. 497, 500 (D. Md. 1995) aff'd, 101 F.3d 351 (4th Cir. 1996).
Plaintiffs have produced no evidence contradicting Officer Flemmens' affidavit that, prior to encountering Madison, Officer Johnson had informed him that Johnson had previously asked Madison to leave the apartment building after resident complaints of someone banging on doors. Nor have Plaintiffs provided evidence calling into question that upon arrival at the apartment building in response to a second complaint, Flemmens observed Madison there and was informed by Madison that he was not a resident of the building and was homeless. Based upon this undisputed evidence, the Court concludes that a reasonable officer in Officer Flemmens' position would have been warranted in believing that Madison was trespassing at the apartment building in the officer's presence. Thus, Plaintiffs have failed to produce evidence adequate to prove that Officer Flemmens' warrantless arrest of Madison for trespassing violated the Fourth Amendment.
The Court finds that Officer Johnson did not participate in the arrest of Madison and Officer Flemmens did not unlawfully arrest Madison. Inasmuch as all claims against these Defendants are based upon their participation in an unlawful arrest, Officers Johnson and Flemmens are entitled to summary judgment with regard to all federal claims asserted against them.
B. The Detention Center Defendants
Plaintiffs claim that the DC Defendants violated Madison's federal Constitutional right to be free from excessive force by:
1) tasing him "without cause or need" and (2) "dropping him on the concrete floor after he was immobilized." Pls.' Opp'n [Document 37] at 21. The DC Defendants seek summary judgment on qualified immunity grounds. Plaintiffs assert material disputes of fact exist surrounding the interactions between Madison and the DC Defendants.
1. Applicable Constitutional Standard
Initially, the Court must determine which Constitutional guarantee the DC Defendants' actions allegedly infringed. See Graham v. Connor , 490 U.S. 386, 394 (1989) ("In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force."). The parties dispute whether Madison's unlawful force claim - arising after his arrest but before formal charging - must be considered under the Fourth Amendment's unlawful seizure provision or the Fourteenth Amendment's substantive Due Process Clause. The Fourth Circuit has stated that during the course of "an arrest, investigatory stop, or other seizure' of a person'", the protections of the Fourth Amendment that require the use of objectively reasonable force are applicable. Robles v. Prince George's Cnty. , 302 F.3d 262, 268 (4th Cir. 2002) (quoting Riley v. Dorton , 115 F.3d 1159 (4th Cir. 1997), abrogated on other grounds by Wilkins v. Gaddy , 559 U.S. 34 (2010)). But, "[o]nce the single act of detaining an individual has been accomplished, the [Fourth] Amendment ceases to apply." Id . After the incidents of a suspect's arrest are complete, the Fourth Circuit considers the suspect or "arrestee" protected only from "unnecessary and wanton pain and suffering" prohibited by the substantive Due Process Clause of the Fourteenth Amendment. Id. at 269; Young v. Prince George's Cnty., Md. , 355 F.3d 751, 758 (4th Cir. 2004).
Under Fourth Circuit precedent, the "point at which Fourth Amendment protections end and Fourteenth Amendment protections begin is often murky." Orem v. Rephann , 523 F.3d 442, 446 (4th Cir. 2008). However, in the instant case, the answer is clear. In Orem, the defendant police officer arrested Orem without a warrant, placed her in the back of a police car in restraints, and then began driving her to jail. Id. at 444. While en route, Orem became "unruly", which led to the officer pulling over the car and tasing her twice while she was restrained in the back seat. Id. at 444-45. In assessing the applicable standard for Orem's excessive force claim based on the tasing, the Fourth Circuit stated:
... Orem's excessive force claim arises during her transport to [the jail], after she was arrested. While she had not been formally charged, her status as an arrestee requires application of the Fourteenth Amendment to her claim.
Id. at 446; see also Robles , 302 F.3d at 267-70 (concluding unlawful force claim that officers, after arrest, drove plaintiff to a parking lot and tied him to metal pole governed by the Fourteenth Amendment's Due Process Clause because the plaintiff's "arrest had been completed" at the time he was tied to the pole).
At the time of the events at issue, Madison had been arrested, transported to the Detention Center, and was in the booking process. Under Fourth Circuit precedent, the incidents of arrest had been completed.
Plaintiffs present reasonable arguments supporting their view that Madison was entitled to Fourth Amendment protection at the time at issue. This position has been accepted by other Circuits. Moreover, the Supreme Court has yet to address the conflicting lower court decisions. See Graham v. Connor , 490 U.S. 386, 395 n.10 (1989) (declining to address the issue). Nevertheless, the Court must follow the existing binding precedent of the United States Court of Appeals for the Fourth Circuit. Therefore, the substantive Due Process Clause of the Fourteenth Amendment governs Plaintiffs' excessive force claims surrounding the tasing of Madison at the Detention Center after Madison's arrest but before completion of his processing or formal charging.
Hence, Plaintiffs must prove that one or more of the DC Defendants inflicted unnecessary and wanton pain and suffering upon Madison as prohibited by the substantive Due Process Clause of the Fourteenth Amendment.
2. The Use of the Taser
The essential events at issue occurred within a brief period in the Detention Center processing room. Although not precisely to scale, the following sketch provides a reasonable rendition of the layout of the processing room:
The evidence presented consists of statements by the DC Defendants and Gregory Princeton Wright II ("Wright"), a prisoner then in the second holding cell. In addition, the evidence includes a video, without sound, produced by the camera, shown near the lower right hand corner of the room.
a. The Video
While the parties seek to place different "spins" on what is shown by the video, it cannot reasonably be disputed that the following can be seen:
b. Other Evidence
In addition to the video, the evidence consists of sworn statements of witnesses and deposition testimony. As discussed herein, there is no genuine issue of material fact regarding the events culminating in Huey's use of the taser on Madison.
After fingerprinting, Madison declined to be photographed. Courtney Aff. [Document 22-6] ¶¶ 9, 10. Courtney ordered Madison to return to his holding cell on "several occasions" but he refused. Id .; Harper Aff. [Document 22-7] ¶ 8. After Madison sat down in the chair, Pounds removed Madison's ankle shackles and then Harper, Jones, and Kirk attempted to get Madison back in the holding cell, but he refused. Harper Aff. [Document 22-8] ¶ 9; Courtney Aff. ¶ 10; Huey Aff. ¶ 10. Once the officers got Madison in the holding cell, Madison started to struggle, trying to come out of the cell before the door had closed, and then, Madison grabbed Harper by the shirt collar with one hand. Courtney Aff. ¶ 11; Harper Aff. ¶ 10; Huey Aff. ¶ 11. A struggle ensued where Jones and Kirk tried to pull Madison from Harper; Courtney then ordered Huey to tase Madison. Huey told Madison "two or three times to Let go, or you will be tased' while displaying a departmentally issued taser." Huey Aff. ¶ 11. Madison did not let go. Huey fired the taser once, and hit Madison in the upper leg. Courtney Aff. ¶ 12; Harper Aff. ¶ 11; Huey Aff. ¶ 12; Courtney Dep. [Document 37-1] at 50-51.
Plaintiffs seek to find evidentiary support in statements from Wright, who was in the second holding cell at the time of the events at issue. Wright's evidence includes three - not precisely consistent - versions of the events at issue.
The first version is in a recorded statement made a few hours after the incident in an interview conducted by members of the Harford County Sheriff's Office. In this statement Wright said that during the struggle in the doorway of the holding cell, Madison "wouldn't go in" and was "fighting" the officers and "throwing punches." [Document 26-2] at 2-3.
The second version was included in an affidavit drafted by an attorney for Plaintiffs and signed by Wright. Wright testified at his deposition that the statements in his affidavit were not his "exact words" but he read it and "kind of like agreed, and signed it." Wright Dep. [Document 42-1] at 42. The affidavit states that Madison did not "choke", make a "choking gesture", or "have his hands on or around the neck of any officer or civilian employee"; did not "punch, kick, or push any of the law enforcement officers or civilian employee(s)"; and/or did not "threaten any of the law enforcement officers or civilian employee(s)." Wright Aff. [Document 25-2] ¶ 6-10.
The third version is in Wright's deposition. Wright testified that when the official approached Madison in the chair "he was real belligerent, to them." Wright Dep. [Document 42-1] at 47:11-12. Wright was directed to review his affidavit statement that "Madison was not resisting when law enforcement officers and civilian employee(s) approached him and violently and forcibly removed him from his chair." In response he stated that Madison "was resisting because they was trying to put the leg cuffs on him.  He just wouldn't let them." Id. at 47:16-21.
"[I]t is well established that a genuine issue of fact is not created where the only issue of fact is to determine which of the two conflicting versions of a party's testimony is correct." In re Family Dollar FLSA Litigation , 637 F.3d 508, 512-13 (4th Cir. 2011) (quoting Erwin v. United States , 591 F.3d 313, 325 n.7 (4th Cir. 2010)). Thus, Defendants ask the Court to disregard Wright's testimony altogether. Because Wright is not a party, the general rule about inconsistent testimony may not apply to him. In any event, while there are differences between Wright's statements, in the context of the instant case, the differences are not material. Wright's affidavit does not directly contradict his statement that Madison "wouldn't ...