United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Plaintiffs’, the Estate
of Anthony Anderson, Sr. (the “Estate”) and
Anderson’s seven surviving immediate family members,
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’
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
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
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. Officer Strohman then handcuffed
Anderson and sat him upright. The Officers deny kicking
Anderson at any point during their interaction. When Anderson
began to look ill, the Officers called an ambulance.
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.
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).
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).
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.
Plaintiffs’ Motion for Leave to Amend
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.
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
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)).
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)).
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.
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. (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.
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).
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).
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.
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
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.
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
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.