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Estate of Anderson v. Strohman

United States District Court, D. Maryland

July 27, 2016

ESTATE OF ANTHONY ANDERSON, SR., et al., Plaintiffs
v.
TODD STROHMAN, et al., Defendants.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge

         THIS MATTER is before the Court on Plaintiffs’, the Estate of Anthony Anderson, Sr. (the “Estate”) and Anderson’s seven surviving immediate family members, [1] Motion for Leave to Amend Complaint (ECF No. 91) and Motion for Summary Judgment (ECF No. 77). Also pending before the Court are three Motions filed by Defendants, Officers Todd Strohman and Michael Vodarick (collectively, the “Officers”): (1) Motion in Limine to Exclude Certain Opinions of Plaintiffs’ Medical Experts (ECF No. 78); (2) Motion for Partial Summary Judgment on the Issue of Whether Alleged Kicking Contributed to the Death of Anthony Anderson (ECF No. 79); and (3) Motion for Partial Summary Judgment on Any Claim for Alleged Deprivation of Medical Care (ECF No. 80). All Motions are now ripe for disposition. Having reviewed the Motions and supporting documents, the Court finds no hearing necessary. See Local Rule 105.6 (D.Md. 2016). For the reasons outlined below, the Court will grant in part and deny in part Plaintiffs’ Motion for Leave to Amend Complaint, deny Plaintiffs’ Motion for Summary Judgment, and grant the Officers’ Motions.

         I. BACKGROUND

         Around 6:00 p.m. on September 21, 2012, Anderson walked to a neighborhood liquor store in East Baltimore to purchase alcoholic beverages for his wife. Approximately one hour and a half later, Anderson was pronounced dead at Johns Hopkins Hospital (“JHH”). The parties offer utterly conflicting accounts of what transpired between Anderson’s trip to the liquor store and his tragic demise.

         According to Plaintiffs, when Anderson exited the liquor store, he spoke to some acquaintances from his neighborhood and exchanged a tobacco-filled cigarette. Anderson then proceeded home, walking across a dirt trail on a vacant lot between Biddle Street and North Montford Avenue. Unbeknownst to Anderson, the Officers, who were patrolling the area in an unmarked vehicle, had exited their vehicle and begun following him down the trail. Without announcing his presence or issuing any orders, Officer Strohman grabbed Anderson from behind and placed him in a bear hug, pinning Anderson’s arms to his sides. Officer Strohman then lifted Anderson two feet in the air and violently slammed him to the ground head and neck first. Officer Strohman landed on top of Anderson, and Anderson, immobilized by the bear hug, was unable to brace himself for the impact with the ground. While Anderson was still on the ground, Officer Strohman placed handcuffs on him. The Officers then repeatedly kicked Anderson until he was unconscious.

         According to the Officers, they were patrolling the area near the liquor store because it was a high-crime area known for illicit drug activity. The Officers observed Anderson engaging in what they believed to be a controlled dangerous substance (“CDS”) transaction. When Anderson saw the Officers, he began walking away from the liquor store. Officer Strohman then identified himself as a police officer and ordered Anderson to stop, but Anderson ignored him and continued walking away, quickening his pace. Officer Strohman exited the unmarked police vehicle and again ordered Anderson to stop. This time, Anderson turned around to look at Officer Strohman, then turned back around and, while continuing to walk away at a brisk pace, pulled a plastic baggie from his pocket and began ingesting what the Officers believed to be CDS. To prevent Anderson from destroying evidence and potentially overdosing himself, Officer Strohman came up from behind Anderson and bear-hugged him to prevent him from ingesting the suspected CDS. Anderson briefly struggled by widening his stance, at which point Officer Strohman leaned back to get Anderson off balance and the two fell to the ground.[2] Officer Strohman then handcuffed Anderson and sat him upright. The Officers deny kicking Anderson at any point during their interaction.[3] When Anderson began to look ill, the Officers called an ambulance.

         Paramedics eventually arrived on the scene and transported Anderson to JHH where medical personnel determined that his spleen had been severely ruptured and a large amount of blood was pooling in his abdomen. Anderson was pronounced dead at approximately 7:30pm. The Medical Examiner ruled Anderson’s manner of death as “homicide” and his cause of death as “blunt force injuries of torso.” (Mot. in Lim. Ex. D, at 1, ECF No. 78-6). A toxicology report conducted after Anderson’s death revealed that he had 100 mcg/L of free morphine in his system. (Id. Ex. E, at 1, ECF No. 78-7). The Officers contend this indicates Anderson had ingested heroine, while Plaintiffs maintain this could indicate Anderson had merely ingested over-the-counter pain relievers.

         Plaintiffs initiated this action on October 24, 2013, raising, among other claims, survivor and wrongful death claims under federal and state law and seeking $20 million in damages. (ECF No. 1). In addition to Officers Strohman and Vodarick, Plaintiffs sued Officer Gregg Boyd, the Mayor and City Council of Baltimore, and the Baltimore Police Department (“BPD”). (Id.). The Court dismissed the Mayor and City Council of Baltimore and Officer Boyd on March 19, 2014 and May 11, 2015, respectively. (ECF Nos. 22, 52). Only two claims remain against the BPD: 42 U.S.C. § 1983 (2012) survivor and wrongful death claims for excessive use of force during and after Anderson’s arrest (Counts XXXIV, XXXVI). The Court stayed these claims on June 19, 2014 pending the resolution of the claims against the Officers. (ECF No. 35).

         The following claims remain against the Officers: (1) a survivor claim by the Estate for violations of Articles 24 and 26 of the Maryland Declaration of Rights (Counts I, II); (2) wrongful death claims by the Family-Member Plaintiffs for violations of Articles 24 and 26 of the Maryland Declaration of Rights (Counts V, VI, IX, X, XIII, XIV, XVII, XVIII, XXI, XXII, XXV, XXVI, XXIX, and XXX); (3) a § 1983 survivor claim by the Estate for violations of Anderson’s federal constitutional rights (Count XXXIII); (4) a wrongful death claim by the Family-Member Plaintiffs for common law battery (Count XXXVII); and a (5) survivor claim by the Estate for common law battery (Count XXXIX).

         On January 18, 2016, Plaintiffs filed a Motion for Summary Judgment (ECF No. 77). On January 19, 2016, the Officers filed a Motion in Limine to Exclude Certain Opinions of Plaintiffs’ Medical Experts (ECF No. 78), Motion for Partial Summary Judgment on the Issue of Whether Alleged Kicking Contributed to the Death of Anthony Anderson (ECF No. 79), and Motion for Partial Summary Judgment on any Claim for Alleged Deprivation of Medical Care (ECF No. 80). Plaintiffs filed Oppositions to the Officers’ Motions on February 23, 2016 (ECF Nos. 85, 86). On this same date, the Officers submitted an Opposition to the Plaintiffs’ Motion for Summary Judgment (ECF No. 84), to which Plaintiffs filed a Reply on March 11, 2016 (ECF No. 89). Also on March 11, 2016, the Officers filed a Consolidated Reply in Further Support of their Motions (ECF No. 88). Plaintiffs filed a Motion for Leave to Amend Complaint on April 11, 2016 (ECF No. 91). The Officers filed an Opposition on April 28, 2016 (ECF No. 92), and Plaintiffs submitted a Reply on May 16, 2016 (ECF No. 93).

         II. DISCUSSION

         A. Plaintiffs’ Motion for Leave to Amend

         In their Complaint, Plaintiffs present no allegations regarding the Officers’ interactions with the paramedics who responded to the scene of Anderson’s arrest or the medical personnel at JHH who treated Anderson. Nevertheless, Plaintiffs now maintain that the Officers intentionally misrepresented that Anderson was suffering from a suspected drug overdose rather than an assault and interfered with the paramedics’ ability to assess and treat Anderson by initially refusing to remove his handcuffs. Plaintiffs further contend that the Officers’ misrepresentations and interference caused or substantially contributed to Anderson’s death. Plaintiffs move for leave to amend their Complaint by adding these allegations. They also request leave to add allegations of § 1983 bystander liability and substitute Shayner Anderson for Edith Fletcher as the personal representative of Anderson’s estate.

         According to the Scheduling Order, the deadline for moving to amend the pleadings was June 8, 2014-over two years ago. (See ECF Nos. 24, 28). Because Plaintiffs have moved to amend their Complaint after this deadline, they have the burden of satisfying a two-prong test. Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262 F.Supp.2d 618, 631 (D.Md. 2003). The first prong is Federal Rule of Civil Procedure 16(b)(4), which provides that “[a] schedule may be modified only for good cause and with the judge’s consent.” Id. “[A] court’s scheduling order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril[.]’” Rassoull v. Maximus, Inc., 209 F.R.D. 372, 374 (D.Md. 2002) (quoting Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375-76 (D.Md. 1999)). Thus, the good cause analysis under Rule 16(b)(4) is “less concerned with the substance of the proposed amendment” and more concerned with “the timeliness of the amendment and the reasons for its tardy submission.” Id. at 373-74. Indeed, “[t]he primary consideration of the Rule 16(b) ‘good cause’ standard is the diligence of the movant.” Id. at 374. “Lack of diligence and carelessness are ‘hallmarks of failure to meet the good cause standard.’” Id. (quoting W.Va. Hous. Dev. Fund v. Ocwen Tech. Xchange, Inc., 200 F.R.D. 564, 567 (S.D.W.Va. 2001)). If a party was not diligent in seeking to modify the scheduling order, “the inquiry should end.” Id. (quoting Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D.W.Va. 1995)).

         There is good cause for amending a complaint after the scheduling order deadline when “at least some of the evidence needed for a plaintiff to prove his or her claim did not come to light until after the amendment deadline.” Tawwaab v. Va. Linen Serv., Inc., 729 F.Supp.2d 757, 768 (D.Md. 2010). The Court may consider the following factors when determining whether there is good cause: “danger of prejudice to the non-moving party, the length of delay and its potential impact on judicial proceedings, the reason for the delay, and whether the movant acted in good faith.” Id. at 768-69 (quoting Rothenberg v. Marriott Int’l, Inc., No. CCB-08-173, 2008 WL 687033, at *1 (D.Md. Feb. 29, 2008)).

         Once a plaintiff has demonstrated good cause for an untimely amendment, the plaintiff then bears the burden of satisfying the second prong: Rule 15(a). Odyssey, 262 F.Supp.2d at 631. Under this Rule, “[t]he court should freely give leave [to amend a complaint] when justice so requires.” Fed.R.Civ.P. 15(a)(2). Although the Federal Rules favor granting leave to amend, the decision lies within the sound discretion of the district court. Medigen of Ky., Inc. v. Pub. Serv. Comm’n of W.Va., 985 F.2d 164, 167-68 (4th Cir. 1993) (citing Nat’l Bank v. Pearson, 863 F.2d 322, 327 (4th Cir. 1988)). Leave to amend is properly denied when amendment would prejudice the opposing party, the moving party has exhibited bad faith, or amendment would be futile. Edell & Assocs., P.C. v. Law Offices of Peter G. Angelos, 264 F.3d 424, 446 (4th Cir. 2001) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)).

         The Officers consent to substituting Shayner Anderson as the personal representative of the Estate, recognizing it is appropriate to do so because Edith Fletcher passed away in August 2015. Finding good cause and no prejudice to the Officers, bad faith, or futility, the Court will grant Plaintiffs’ Motion as it pertains to substituting Shayner Anderson for Edith Fletcher.

         The Officers oppose Plaintiffs’ request to add allegations of failure to provide medical care and bystander liability. In their Reply, Plaintiffs argue there is good cause for their proposed amendment because the facts concerning the Officers’ alleged misrepresentations to and interference with the paramedics did not “fully materialize” until Plaintiffs deposed paramedic Lenore Scharf.[4] (Reply to Mot. for Leave to Amend Compl. at 6, ECF No. 93). But, Plaintiffs deposed Scharf on September 11, 2015-seven months before Plaintiffs moved for leave to amend. (Scharf Dep., Sept. 11, 2015, ECF No. 77-12). And, what is more, Plaintiffs knew as early as February 2015 that the Officers told the paramedics that the Officers suspected Anderson was suffering from a drug overdose. (Narrett Dep. 11:13-21, Feb. 16, 2015, ECF No. 78-12).

         Plaintiffs seek leave to allege that the Officers are liable for excessive use of force under a bystander liability theory because they “took turns standing around Decedent Anderson while they kicked and beat him unconscious.” (Proposed First Am. Compl. ¶ 255, ECF No. 91-3). Plaintiffs, however, knew about facts supporting bystander liability at least as early as December 19, 2014-nearly one and a half years before Plaintiffs moved for leave to amend-when Edith Fletcher testified that the Officers kicked Anderson while he was on the ground. (Fletcher Dep. 73:11-75:3, Dec. 19, 2014, ECF No. 77-3).

         Plaintiffs do not identify any reason that prevented them from moving to amend their Complaint months ago. Rather, Plaintiffs explain that they did not think amendment was necessary because they were relying on the general notion that a court should liberally allow amended pleadings at all stages of litigation. Plaintiffs assert that “given the nature of the instant litigation, ” they “decided to err on the side of caution and amend” because they “did not want to leave anything to chance.” (Reply to Mot. for Leave to Amend Compl. at 9).

         Considering that Plaintiffs knew about the majority of their proposed allegations at least a year before they moved for leave to amend and nothing prevented them from moving to amend months, or even years, ago, the Court finds Plaintiffs have not acted with diligence. Moreover, as explained below, this lack of diligence has already prejudiced the Officers and permitting Plaintiffs to amend would further prejudice the Officers.

         Plaintiffs argue there would be no prejudice to the Officers because the Officers have moved for partial summary judgment on Plaintiffs’ claims for bystander liability and deprivation of medical care. (See ECF Nos. 79, 80). But, Plaintiffs fail to recognize that developing facts and claims during discovery that were completely foreign to their Complaint and lacking diligence in moving to amend their Complaint has already prejudiced the Officers by forcing them to move for partial summary judgment in attempt to mitigate the uncertainty regarding the claims that Plaintiffs would pursue.

         Plaintiffs next contend there would be no prejudice to the Officers because their proposed amendments are “subtle”-they merely “clarify” their pre-existing § 1983 claims. (Reply to Mot. for Leave to Amend Compl. at 3, 4). The Court disagrees and rejects this characterization. To be sure, § 1983 is the proper vehicle through which to pursue claims for excessive use of force during an arrest and deprivation of medical care. See Martin v. Gentile, 849 F.2d 863, 865 (4th Cir. 1988). Plaintiffs, however, take for granted the exceptional breadth of § 1983, which permits plaintiffs to sue for alleged violations of any rights secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. The Court examines § 1983 claims for excessive use of force under a completely different standard than § 1983 claims for deprivation of medical care. See Graham v. Connor, 490 U.S. 386, 397 (1989) (explaining that § 1983 claims for excessive use of force during an arrest are properly asserted under the Fourth Amendment and require a court to examine whether an officer’s conduct was “objectively reasonable” under the circumstances); Martin, 849 F.2d at 871 (explaining that § 1983 claims for deprivation of medical care are properly asserted under the Due Process Clause of the Fourteenth Amendment and require a Court to examine whether there was a “deliberate indifference to serious medical needs”). Because the discovery deadline has passed, permitting Plaintiffs to add a claim for deprivation of medical care at this juncture would prejudice the Officers by denying them an opportunity to discover the facts necessary to develop their defense.

         Plaintiffs also argue there would be no prejudice to the Officers because the Officers have been on notice of Plaintiffs’ claims for bystander liability and deprivation of medical care since January 2016 when Plaintiffs moved for summary judgment on these claims. Plaintiffs overlook, however, that January 2016 was several months after the close of discovery, meaning the Officers had no opportunity, at that time, to pursue and develop facts enabling them to oppose these claims.

         Thus, because Plaintiffs were not diligent in moving to amend, Plaintiffs’ lack of diligence has already prejudiced the Officers, and permitting Plaintiffs to amend would further prejudice the Officers, the Court finds Plaintiffs fail to show good cause for adding claims to their Complaint. ...


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