United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
Regina Shields ("Plaintiff'), individually and as
the personal representative of the Estate of Samuel Shields
("Shields"),  has previously filed an Amended
Complaint against Prince George's County, Corporal
Chandler Hines, Private First Class Andrew Jackson, Private
First Class Erik Wood, Private First Class Keith Funderburk
(collectively, the "County Defendants",, and
Corizon, Inc. ("Corizon",, alleging seventy-four
counts, including violations of Shields' civil rights,
pursuant to 42 U.S.C. § 1983. See ECF No. 41.
This Memorandum Opinion and accompanying Order address
Plaintiffs Motion for Leave to File a Second Amended
Complain,, ECF No. 52, Defendant Corizon's Motion to
Strike Declaration, ECF No. 53, Defendant Prince George's
County's Motion for Bifurcation and Stay of Discovery,
ECF No. 43, and Defendant Corizon's Motion to Dismiss
Amended Complaint, ECF No. 42. A hearing on the motions was
conducted on June 22, 2016. See Loc. R. 105.6 (D.
Md. 2014). For the reasons stated below, Plaintiffs Motion
for Leave to File a Second Amended Complaint is GRANTED in
part and DENIED in part, Defendant Prince George's
County's Motion for Bifurcation and Stay of Discovery is
DENIED, Defendant Corizon's Motion to Strike is DENIED,
as moot, and Defendant Corizon's Motion to
Dismiss is GRANTED in part and DENIED in part.
17, 2014, at approximately 11:45am, Shields boarded a
Washington Metropolitan Area Transit Authority
("WMATA") bus at ¶ 00 Addison Road in Seat
Pleasant, Maryland. ECF No. 52-1 ¶ 44. Upon discovering
that he had not paid the fare, WMATA personnel ordered him to
payor exit the bus. Id. ¶ 45. Two WMATA transit
officers then physically removed Shields from the bus and
ordered him to place his hands behind his back. Id.
¶ 46. Shields made a fist with both hands, folded
his arms underneath his chest and laid down on the ground.
Id. ¶ 47. Shields was then transported by WMATA
transit officers to the Prince George's County Detention
Center ("Detention Center") in Upper Marlboro,
Maryland for processing. Id. ¶ 48. At the
Detention Center, one of the WMATA transit officers informed
Corporals Marcus Evans, Jessica White and Tyrone Duckett that
Shields had been disorderly and combative while also noting
that Shields was not under the influence of alcohol or drugs.
Id. ¶ 51-52.
in the processing area, Shields would not remain in his seat
and began loudly yelling and singing in a language Corporal
White could not understand. Id. ¶ 53. As a
result of this strange behavior, Shields, who was already
partially restrained, was placed in full restraints.
Id. ¶ 55. A search of Shields was conducted and
his property was inventoried, which included documents from
the Social Security Administration, prescription medication,
additional prescription information, a Smart trip fare card,
credit cards and other personal items. Id.
¶¶ 56-57. The Detention Center was
also provided with information concerning his medical
history, including that Shields was asthmatic. Id.
¶ 61. No doctor or nurse was summoned to examine
Shields. Id. ¶ 63. After being fingerprinted,
Shields, still in full restraints, was placed in an isolation
cell. Id. ¶ 65.
approximately 4:20pm and again at 7:01 pm, "Nurse
Victoria, " a Corizon employee, reported to the
processing area, where Shields was being held, to interview
detainees. Id. ¶ 66. The Second Amended
Complaint alleges that "based on Officer Roger's
statements to [Corporals] Evans, White and Duckett and Samuel
Shields' strange and bizarre behavior, Defendants Prince
George's County and Corizon were fully aware from the
time that Samuel Shields entered the Detention Center he
suffered from a mental health disorder." Id.
¶ 67. It is further alleged that "Nurse
Victoria and other members of the Corizon medical staff who
interviewed detainees in the processing area including Samuel
Shields were aware that he was suffering from a mental health
disorder." Id. ¶ 68.
being held in an isolation cell in full restraints for more
than seven hours, Shields was escorted to appear before the
Court Commissioner where bond was set on the charge of
obstruction and hindering. Id.
¶¶ 69-70. Around 9:48pm, Shields,
who was no longer in full restraints but had not received his
medication, once again displayed signs of unusual behavior
and spoke in a loud voice. Id. ¶ 79. Numerous
officers observed the bizarre behavior but did not call the
medical unit. Id. ¶¶
82-83. Instead, Sergeant Burr called the Emergency Response
Team ("ERT") for assistance and instructed that
Shields be escorted to the disciplinary unit. Id.
¶¶ 84, 87. Despite the lack of any
aggressive or combative behavior from Shields, the ERT
members approached Shields from behind and forcibly bent his
arms behind his back to place the handcuffs around his
wrists. Id. ¶¶ 91-92.
Shields' arms were pulled from behind his back and
forcibly pushed upward, which caused him to scream in pain.
Id. ¶¶ 96-97. At all
times, Shields appeared to be confused. Id. ¶
93. Shields was then escorted to the male strip search room
by Defendants Wood and Funderburk. Id. ¶ 99.
Outside of the strip search room, various ERT members,
including Defendants Wood, Hines, Funderburk, and Jackson,
used joint locks and struck Shields with their knees, hitting
his common personal nerve, and used closed fist strikes to
his femoral artery to get him inside the room. Id.
¶101. Once inside the strip search room, Shields
was pushed to the ground, while handcuffed, and called a
"stupid motherfucker." Id.
¶¶ 104-05. He was severely and
repeatedly beaten inside the strip search room. Id.
¶¶ 106-107. Defendant Hines can be
seen on a video spraying OC spray into the strip search room,
followed by sounds of coughing and sneezing. Id.
¶ 127. OC spray creates a risk of death for individuals
who are asthmatic, taking other drugs or subjected to
restraining techniques that restrict the breathing passages.
Id. ¶ 125. ERT members then resumed beating
Shields as he said "do not kill me." Id.
¶130. After additional beating, there is an
extended period of silence on the video and Defendant
Sergeant Emmanuel Odion requests a broadcast of "signal
89."Id. ¶¶ 129, 134.
silence ends when Defendant Wood "suddenly and
excitingly" exits the strip search room and asks for the
"breathing thing." Id. ¶147. Chest
compressions were eventually started. Id. ¶
148. Minutes later, Corizon employees, Defendants Nurse
Amadou and Nurse Adebayo ("Corizon Nurses"), reported
to the strip search room area to provide medical attention.
Id. ¶ 151. The Second Amended Complaint alleges
that the Corizon Nurses failed to take control of the
management of Shields' life-threatening medical
emergency. Id. ¶¶
152-153. The Second Amended Complaint also alleges that the
Corizon Nurses "failed to take into consideration the
bystander effect, specifically, they failed to direct the
numerous correctional officers standing around Samuel Shields
to clear the area to avoid any impediment to administering
medical attention to Samuel Shields' life-threatening
medical emergency""Id. ¶ 154.
Additionally, a Corizon Nurse slapped Shields and appeared to
check his pulse but failed to check his airway for an
obstruction, never checked his oxygen level, failed to
properly administer the "Ambo bag" consistent with
medically prescribed standards, pumped air faster than what
would be consistent with normal breathing, and never
performed any chest compressions. Id.
10:24pm, a Corizon Nurse left to retrieve an oxygen tank and,
three minutes later, returned with one. Id. ¶
165. Meanwhile, a video depicts CPR being performed on
Shields in a manner that does not conform to the standards
set forth by the American Heart Association. Id.
¶ 166. At 10:27pm, a Corizon Nurse attempted to use the
automated external defibrillator ("AED") but did
not receive a response from Shields Id.
¶ 167. According to the Second Amended
Complaint, "the Corizon nurse did not properly or timely
utilize the AED on Samuel Shields and her actions did not
conform to the American Heart Association's standard,
specifically to utilize the AED if the person has not begun
moving after five CPR cycles, a period of approximately two
minutes." Id. ¶ 169. It is alleged that
more than a series of five chest compressions and more than
two minutes passed before the AED was activated. Id.
¶¶ 168 and 170. The ERT members
continued chest compressions but the Corizon Nurse never
utilized the AED a second time. Id. ¶ 173. At
10:32pm, EMS personnel arrived and took over efforts to
revive Shields Id. ¶ 175. He was transported to
Southern Maryland Hospital Center where he was pronounced
dead approximately one hour after arrival. Id.
suffered from medical and emotional disabilities and was
receiving Social Security and Supplemental Security Income
aid and services due to those disabilities at the time of his
death. Id. ¶¶ 41-42.
filed the original Complaint on June 12, 2015, ECF No.,, and
filed a Consent Motion for Leave to file an Amended Complaint
on November 9, 2015, ECF No. 35, which was granted on
November 25, 2015, ECF Nos. 39 and 41. The County Defendants
filed their Answer on November 20, 205,, ECF No. 37, and
Corizon filed its Motion to Dismiss the Amended Complaint on
December 14, 2015, ECF No. 42. Plaintiff has now filed a
Motion for Leave to File a Second Amended Complain.. ECF No.
52. The County Defendants consent to Plaintiffs Motion for
Leave to File, ECF No. 58, and Corizon opposes, ECF No. 62.
The County Defendants' have also filed a Motion for
Bifurcation and Stay of Discovery. ECF No. 43.
Motion for Bifurcation and Stay of Discovery (ECF No. 43)
Prince George's County seeks to bifurcate claims brought
against the individual officers from claims brought against
Prince George's County and stay discovery against Prince
George's County pending resolution of the claims against
the officers. ECF No. 43. Pursuant to Federal Rule of Civil
Procedure 42(b), district courts may order a separate trial
of "one or more separate issues, claims, crossclaims,
counterclaim,, or third-party claims" for
"convenience, to avoid prejudice, or to expedite and
economize." Fed.R.Civ.P. 42(b). In deciding whether to
bifurcate, courts have broad discretion. Dixon v. CSX
Tramp., Inc., 990 F.2d 1440, 1443 (4th Cir.),
cert denied, 510 U.S. 915, 114 S.Ct. 305 (1993).
Although the determination of whether bifurcation is
appropriate is fact specific, the Court often "orders
bifurcation in g 1983 cases where, as here, a plaintiff has
asserted claims against individual government employees as
well as the municipal entity that employs and supervises
those individuals." Dodson v. Prince George's
Cty., No. GJH-13-02916, 2014 U.S. Dist. LEXIS 134999, at
*3-4 (D. Md. Sept. 25, 2014) (citations omitted). While
"'complex' issues may justify bifurcation,
separating issues for trial 'is not to be routinely
ordered.'" Wood v. Walton, No. WDQ-09-3398,
2012 U.S. Dist. LEXIS 174738, at *12 (D. Md. Dec. 7, 2012)
the reason courts frequently order bifurcation in 9 1983
cases is that 9 1983 cases do not permit vicarious liability
under a respondeat superior theory; meaning that
while the establishment of the actively involved
officers' liability must precede a finding of liability
of the non-active employer, it does not, without more,
establish liability on the part of the employer. See,
e.g., Marryshow v. Bladensburg, 139 F.R.D. 318, 319 (D.
Md. 1991) (allowing bifurcation in a 1983 case because
"to hold the inactive Defendants liable, Plaintiff must
first establish at least one active Defendant violated his
constitutional rights"). In such cases, if a plaintiff
prevails in establishing a claim against one or more of the
active defendants, he then ""must establish that
the actions of the active Defendants subjecting him to
Section 1983 liability were proximately caused by a custom,
practice or policy of an inactive Defendant' - the
County." Dawson v. Prince George's Cty.,
896 F.Supp. 537, 540 (D. Md. 1995) (quoting Marryshow v.
Bladensburg, 139 F.R.D. 318 (D. Md. 1991)). Thus, if a
Court bifurcates a 9 1983 claim and the officers are
determined not to be liable, the resources devoted to
discovery and trial of the municipality are conserved.
Plaintiff has brought 9 1983 claims against Prince
George's County but has also alleged a number of
additional claims against Prince George's County that
are based on a theory of vicarious liability. When a
plaintiff brings vicarious liability claims against a
defendant employer, the employer "is not simply an
'inactive defendant'' liable only if Plaintiff
can first prove that [the employee] violated [his]
constitutional right." Treadwell v. Prince
George's Cty. Health Dep't No. DKC 13-0063, 2014
U.S. Dist. LEXIS 96862 at *14 (D. Md. July 14, 2014.. Tims,
bifurcation does not conserve the resources of the Court or
the parties because the defendant employer "would have
to defend itself at trial on the vicarious liability claims
even if a separate trial were held for the Monell
and negligent training and supervision claims."
Devito v. Barrant, No. 03-CV-1927, 2005 U.S. Dist.
LEXIS 22444, at *37 (E.D.N.Y. Aug. 23, 2005) (denying
defendant's motion to bifurcate); see also
Treadwel,, 2014 U.S. Dist. LEXIS 96862 (D. Md. July 14,
2014) (denying defendant's motion to bifurcate because
plaintiff also brought a vicarious liability claim under
Title VII). Because Plaintiff has brought numerous claims
alleging vicarious liability against Prince George's
County, Prince George's County's Motion for
Bifurcation and Stay of Discovery is Denied.
Motion for Leave to File Second Amended Complaint (ECF No.
seeks leave to file a Second Amended Complaint to
"include additional defendants and claims based on the
parties involved in the events, " and to include
additional facts that were developed "as a result of
consultants viewing the video/audio recording of the
incident." ECF No. 52 at 2. The County Defendants
consent to Plaintiff's Motion for Leave to Amend, ECF No.
58, while Defendant Corizon opposes the motion, ECF No. 62.
In the proposed Second Amended Complain,, Plaintiff asserts
that the Corizon Nurses, who were not named in previous
complaints, and Corizon violated Shields' Eighth and
Fourteenth Amendment rights pursuant to 42 U.S.C. g 1983
(Counts V and VI, respectively) and that Corizon also
violated Title II of the Americans with Disabilities Act
("ADA") (Count VIII), ECF No. 52-1.
may "freely give leave [to amend] when justice so
requires." Fed.R.Civ.P. 15(a)(2). "A motion to
amend should be denied only where it would be prejudicial,
there has been bad faith, or the amendment would be
futile." Nourison Rug Corp. v. Parvizian, 535
F.3d 295, 298 (4th Cir. 2008) (citations omitted). But
"'if the underlying facts or circumstance's
relied upon by a plaintiff may be a proper subject of relief
and the plaintiff moves to amend, the Court should grant the
motion to give the plaintiff 'opportunity to test his
claim on the merits."" Crump v. Montgomery Cry.
Bd of Educ, No. PWG-12-3378, 2013 U.S. Dist. LEXIS
153310, at *12 (D. Md. Oct. 25, 2013) (internal citation
omitted). Corizon has not argued, and the Court does not
find, that a Second Amended Complaint would be prejudicial or
is in bad faith. Thus, the issue for the Court is whether
the proposed amendment is futile.
proposed amendment is considered futile if it cannot
withstand a motion to dismiss."Glass v. Ryder Integrated
Logistic Corp., JKB-15-3501; 2016 U.S. Dist. LEXIS 32126
at *3, (D. Md. March 14, 2016) (citing Perkins v. United
States,55 F.3d 910, 917 (4th Cir. 1995). When deciding
a motion to dismiss, a court "must accept as true all of
the factual allegations contained in the complain,, "
and "draw all reasonable inferences [from those facts]
in favor of the plaintiff." E./. du Pont de Nemours
& Co. v. Kalan Indus., Inc.,637 F.3d 435, 440 (4th
Cir. 2011) (citations and internal quotation marks omitted).
Pursuant to Rule 8(a)(2) of the Federal Rules of Civil
Procedure, a complaint must contain a "short and plain
statement of the claim showing that the pleader is entitled
to relief." Fed.R.Civ.P. 8(a)(2). To survive a motion to
dismiss invoking Rule 12(b)(6), "a complaint must
contain sufficient factual matter, accepted as true, 'to