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Estate of Saylor v. Regal Cinemas, Inc.

United States District Court, D. Maryland

October 16, 2014

THE ESTATE OF ROBERT ETHAN SAYLOR et al.
v.
REGAL CINEMAS, INC. et al

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[Copyrighted Material Omitted]

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For The Estate of Robert Ethan Saylor, Patricia Saylor, Ronald Saylor, Plaintiffs: Joseph B Espo, Sharon Krevor Weisbaum, LEAD ATTORNEYS, Brett David Watson, Brown Goldstein and Levy LLP, Baltimore, MD.

For Richard Rochford, Scott Jewell, James Harris, Defendants: Daniel Karp, Karpinski Colaresi and Karp PA, Baltimore, MD.

For Hill Management Services, Inc., Defendant: Mark Anthony Kozlowski, Law Offices of Jonathan P. Stebenne, Baltimore, MD.

For The State of Maryland, Defendant: Michele J. McDonald, LEAD ATTORNEY, State of Maryland Office of the Attorney General, Baltimore, MD.

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MEMORANDUM

William M. Nickerson, Senior United States District Judge.

Before the Court are the following motions: (1) a motion to dismiss filed by three Frederick County Sheriff's Deputies: Defendants Richard Rochford, Scott Jewell, and James Harris (the Deputies), ECF No. 26; (2) a motion to dismiss, or for

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summary judgment, filed by Defendant Regal Cinemas, Inc. (Regal), ECF No. 27; and (3) a motion to dismiss, or for summary judgment filed by Defendant State of Maryland (the State), ECF No. 44. The motions are ripe. Upon review of the filings and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, that the motions filed by the Deputies and State will be granted in part and denied in part, and that Regal's motion will be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of the tragic death of 26-year-old Robert Ethan Saylor, an individual with Down Syndrome. Mr. Saylor died after three off-duty Frederick County Deputy Sheriffs, Defendants Richard Rochford, Scott Jewell, and James Harris, attempted to force him to leave a movie theater owned and operated by Defendant Regal because he was attempting to view a movie for a second time without paying for a second ticket. At the time, the Deputies were working as security guards for the mall in which the theater was located, the Westview Promenade Mall. A struggle ensued in the course of the attempted removal of Mr. Saylor from the theater and, by the end of that struggle, Mr. Saylor suffered a fractured larynx and died of asphyxiation. The details of this encounter, as alleged in the First Amended Complaint, are as follows.

Mr. Saylor had an I.Q. of about 40, the physical and facial features common to individuals with Down Syndrome, and was easily recognizable as someone with this disability. He was also both short and obese, standing at about 5 feet 6 inches tall and weighing almost 300 pounds. Mr. Saylor lived in a separate apartment connected to his mother's home. A full-time aide, Mary Crosby, was employed to assist Mr. Saylor with living in the community. While Mr. Saylor often traveled about in the community, he did not like to be touched, particularly by strangers. He also sometimes displayed anger when he was frustrated and could be difficult to redirect from one activity to another. Ms. Crosby, other caretakers, and family members were well aware of these characteristics.

Mr. Saylor was an avid moviegoer and was a regular patron of the Regal Cinemas, having seen hundreds of movies there. On the evening of January 12, 2013, Mr. Saylor, accompanied by Ms. Crosby, went to an early showing of the movie Zero Dark Thirty. When the movie was over, Mr. Saylor and Ms. Crosby exited the theater and Ms. Crosby inquired if Mr. Saylor was ready to go home. Mr. Saylor became angry and Ms. Crosby called Mr. Saylor's mother to inquire how to proceed. Mrs. Saylor suggested Ms. Crosby go and bring the car around to give Mr. Saylor the opportunity to calm down and she did so.

When Ms. Crosby returned with the car, she discovered that Mr. Saylor had gone back into the theater to see the movie a second time. While she was in the lobby of the theater, the theater manager approached her and stated that Mr. Saylor had to purchase another ticket or leave the theater. Ms. Crosby explained that Mr. Saylor had Down Syndrome and that no one should attempt to speak with him. She also requested that the manager simply wait a bit to let her attempt to deal with Mr. Saylor. Despite that request, the manager called for assistance from one of the Deputies who was working as a mall security guard and, Plaintiffs allege, on information and belief, that the manager asked the Deputy to remove Mr. Saylor from the theater.

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That Deputy, believed to be Defendant Rochford, then approached Ms. Crosby and repeated the manager's admonition that Mr. Saylor would need to purchase another ticket or leave the theater. According to the First Amended Complaint,

[Ms. Crosby] told the Deputy about Mr. Saylor's disability and asked again that they just " wait out" Mr. Saylor's refusal to leave the theater. She told the deputy that she had spoken with Mr. Saylor's mother, who was coming to the theater, and that Mr. Saylor would " freak out" if he was touched and that he would resist being forcibly ejected. She told the deputy that if given sufficient time she and Mrs. Saylor could handle the situation.

ECF No. 19 ¶ 23.

Meanwhile, Mr. Saylor sat quietly in the same seat in which he had sat when watching the movie the first time. Despite Ms. Crosby's warning, Defendant Rochford approached Mr. Saylor and told him that he needed to leave the theater. Mr. Saylor refused and the Deputy asked the manager to call for the other two Deputies who were also working as mall security guards, indicating " 'we are gonna have an issue here.'" Id. ¶ 26. After ordering Ms. Crosby to stay out of the theater, the three Deputies approached Mr. Saylor and told him he had to leave the theater.

Mr. Saylor refused to leave and, according to the First Amended Complaint,

two of the three deputies grabbed Mr. Saylor, one by each arm, and tried to drag him from the theater while telling him he was going to jail. As they neared the rear of the theater with the struggle underway the Deputies handcuffed Mr. Saylor with his hands behind his back. Mr. Saylor was heard to scream " mommy, mommy" and say " it hurts."
At the back of the theater, Mr. Saylor -- handcuffed and held by the deputies -- ended up on the floor with at least one deputy on top of him. As the deputies manhandled Mr. Saylor, they fractured his larynx making it difficult for him to breathe. Because this was apparent, the deputies rolled him to his side, removed his handcuffs, and called emergency medical technicians. It was too late -- Mr. Saylor suffocated.

Id. ¶ ¶ 27-28. Mr. Saylor was later pronounced dead at Frederick Memorial Hospital.

In the original complaint, ECF No. 1, Plaintiffs, Mr. Saylor's parents, individually and as personal representatives of Mr. Saylor's estate, named the Frederick County Sheriff's Department and Frederick County as Defendants, in addition to Regal and the Deputies.[1] In their First Amended Complaint, ECF No. 19, they eliminated the Sheriff's Department and the County and, instead, added the State of Maryland, which is the statutory employer of the Deputy Sheriffs. The First Amended Complaint asserts the following claims against the Deputies: survival claims on behalf of Mr. Saylor's estate for negligence (Count II), gross negligence (Count V), battery (Count VII), and an excessive force claim under 42 U.S.C. § 1983 (Count IX). Plaintiffs assert two survival claims against the State under Title II of the Americans with Disabilities

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Act, 42 U.S.C. § 12131 et seq. (ADA), one based on a failure to train theory (Count X) and one on the theory that the State, as the joint employer of the Deputies, is liable for actions the Deputies took in violation of Title II (Count XI). Plaintiffs also assert survival claims against Regal for negligence (Count I) and gross negligence (Count IV). Finally, Plaintiffs, in their individual capacities, bring a Wrongful Death action against all Defendants (Count XII).

In their respective motions, the Deputies, Regal, and the State of Maryland all seek dismissal of all claims asserted against them. Regal and the State also purport to move, in the alternative, for summary judgment. To the extent Regal is actually seeking summary judgment, it appears to rely on witness statements given to the police as part of the investigation of this incident. These statements suggest that Defendant Rochford, at least initially, attempted to coax Mr. Saylor to leave the theater in a polite and professional manner and that it was Mr. Saylor that first became disruptive. ECF No. 28-1. In response, Plaintiffs attach to their opposition other witness statements that report that Mr. Saylor was sitting peacefully before the Deputies attempted to extract him from his seat. ECF No. 37-2.

While Regal submitted exhibits with its motion and captioned the motion as one seeking, in the alternative, summary judgment, in discussing the standard of review to be applied to its motion, Regal provides only the standard for a motion to dismiss under Rule 12(b)(6), making no mention of the standard for a summary judgment motion under Rule 56 of the Federal Rules of Civil Procedure. Instead of presenting that alternative standard, Regal suggests that the Court can consider its proffered witness statements without converting the motion to one under Rule 56 because those statements are being submitted to " address and rebut the reference to such statements and reliance thereon by Plaintiffs." ECF No. 28 at 2.

Plaintiffs did make a single passing reference to " numerous witness accounts" in their First Amended Complaint. ECF No. 19 ¶ 24. Assuming these are the same accounts that Plaintiffs attached to their opposition, these are handwritten " Statements" apparently prepared at the theater shortly after the confrontation. ECF No. 37-2. In contrast, the documents submitted by Regal with its motion are typewritten " Supplemental Incident Reports" prepared by members of the Sheriff's Department based on interviews they conducted with witnesses, mostly at the sheriff's office. Not only are these documents different than those referenced in the Complaint, they are not the type of documents that are " integral to and explicitly relied upon in the complaint" which the Court would be permitted to consider when ruling on a motion to dismiss. See Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). Accordingly, the Court will neither convert Regal's motion to one for summary judgment, nor consider the exhibits submitted by Regal with its motion.

Similarly, the State attached an exhibit to its motion and captioned its motion as one, in the alternative, for summary judgment. The State, however, also provided no substantive discussion of the standard for such a motion except for the conclusory statement that " if it is determined that the motion should be treated as one for summary judgment, the Court should enter summary judgment in favor of Defendants as to all claims, there being no genuine issue of material fact." ECF No. 44-1 at 6.[2] The State's exhibit is a section of its

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General Order Manual addressing the " Investigation of Persons with Mental Illness." ECF No. 44-2. Not only is this document only marginally relevant to individuals with Down Syndrome and the incident that gave rise to this action,[3] it is certainly not dispositive as to whether the State had an appropriate policy and proper training procedures in place so as to entitle the State to the entry of judgment in its favor. As with Regal's motion, the Court will not convert the State's motion to one for summary judgment, nor will it consider matters outside the Complaint in resolving this motion.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain " sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Such determination is a " contextspecific task," Iqbal, 556 U.S. at 679, in which the factual allegations of the complaint must be examined to assess whether they are sufficient " to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. " [A] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). Such deference, however, is not accorded to labels and legal conclusions, formulaic recitations of the elements of a cause of action, and bare assertions devoid of further factual enhancement. Iqbal, 556 U.S. at 678.

III. DISCUSSION

A. The Deputies' Motion to Dismiss

1. Section 1983 Claim (Count IX)

To state a claim under 42 U.S.C. § 1983, a plaintiff must aver that a person acting under color of state law deprived him of a constitutional right or a right conferred by a law of the United States. Wahi v. Charleston Area Med. Ctr., 562 F.3d 599, 615 (4th Cir. 2009). Plaintiffs have alleged in their First Amended Complaint, and the Deputies do not dispute, that in their interaction with Mr. Saylor they, as " duly appointed sheriff's deputies . . . authorized to enforce the laws of the State of Maryland," were " acting under color of state law." ECF No. 19 ¶ 75. As to the constitutional right of which Mr. Saylor was deprived, Plaintiffs in their First Amended Complaint alleged that he was deprived of his Fourth Amendment rights " to be free from unreasonable seizures and the use of unreasonable force." Id. ¶ 76. In their opposition to the Deputies' motion, they clarify that they are not bringing a claim for false arrest but are alleging the unreasonable use of force in the course of Mr. Saylor's arrest. ECF No. 30 at 6-7.

To establish such a claim, a plaintiff must show that the force used in making

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the arrest was not " objectively reasonable in light of the facts and circumstances confronting [the arresting officers]." Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotations omitted). Objective reasonableness is highly fact-specific and requires a " totality of the circumstances" analysis. Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The Supreme Court in Graham set out the following factors to be considered in conducting that analysis: " the severity of the [suspected] crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." 490 U.S. at 396. In determining whether the use of force was unreasonable, courts have also considered the extent of the injury caused by the use of that force. Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003).

Furthermore, the Fourth Circuit has cautioned courts when analyzing the objective reasonableness of the amount of force used by a law enforcement officer not to adopt a " segmented view of [a] sequence of events," where " each distinct act of force becomes reasonable given what [the officer] knew at each point in this progression." Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). Such an approach, the court opined, " miss[es] the forest for the trees." Id. Instead, the Fourth Circuit instructed, " [t]he better way to assess the objective reasonableness of force is to view it in full context, with an eye toward the proportionality of the force in light of all the circumstances. Artificial divisions in the sequence of events do not aid a court's evaluation of objective reasonableness." Id.

Viewed under this analysis, the Court concludes that the Deputies' conduct, at least as alleged, could be found to have constituted an unreasonable use of force. The first Graham factor - the seriousness of the suspected crime -- undoubtedly points in Plaintiffs' favor. The Deputies acknowledge that, at the time that they initiated this encounter, " the crimes Mr. Saylor was committing were relatively minor misdemeanors of trespass, disturbing the peace, and theft of services." ECF No. 26-1 at 13.

As to the second Graham factor - whether Mr. Saylor posed an immediate threat to the officers or others -- the allegations in the First Amended Complaint would indicate that, before being approached by the Deputies, Mr. Saylor was sitting quietly in the theater, posing a threat to no one. Were it not for the intervention of the Deputies, there is no reason to believe he would not have remained sitting quietly in his seat.

As to the third Graham factor -- whether Mr. Saylor resisted arrest or was evading arrest by flight -- it is true that, once the Deputies attempted to drag him from his seat, he did resist. The Court notes, however, that Mr. Saylor responded in precisely the way that Ms. Crosby informed the Deputies he would respond, because of his disability, if touched by strangers. Furthermore, just as Mr. Saylor posed no threat to anyone until approached by the Deputies, there was no indication that he would have fled the scene. While the Deputies may justifiably quibble with the technical validity of Plaintiffs' conclusion that Mr. Saylor " effectively detained himself in ...


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