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Jones v. Ashford

United States District Court, D. Maryland

January 18, 2017

SIDNEY ALEXANDER JONES, Plaintiff,
v.
OFFICER ADRIAN ASHFORD, In Both His Official and Individual Capacities, TRANS WORLD ENTERTAINMENT CORP., d/b/a f.y.e, ., and WESTFIELD, LLC, d/b/a Wheaton Mall, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG United States District Judge

         Sidney Alexander Jones has filed this action pursuant to 42 U.S.C. § 1983 against Officer Adrian Ashford of the Montgomery County Police Department Trans World Entertainment Corporation ("Trans World"), and Westfield, LLC ("Westfield") for alleged violations of his federal constitutional rights arising from an incident during which he was ordered to leave a shopping mall by a police officer and mall security officer. Jones also asserts that Defendants violated his state constitutional rights under Article 26 of the Maryland Declaration of Rights, Md. Const. art. XXVI, and committed the common law torts of false arrest, battery, and false light/invasion of privacy. Pending before the Court are Ashford's Motion for Summary Judgment, Trans World's Motion for Summary Judgment, and Westfield's Motion for Summary Judgment. For the reasons set forth below, the three Motions are granted.

         BACKGROUND

         The following facts are presented in the light most favorable to the nonmoving party, Jones. On March 20, 2013, Jones, who was then 79 years old, entered the f.y.e. ("for your entertainment") store at the Westfield Wheaton Mall in Wheaton, Maryland ("the Wheaton Mall") with his adult daughter, who has disabilities relating to speech and hearing. Westfield operates the Wheaton Mall, and Trans World is the company that operates the f.y.e. chain of stores. Shortly after entering the store, Jones asked an f.y.e. employee whether the store had changed its policy on whether it would accept a check as payment. Jones asked because in the past, f.y.e. had not accepted checks. The employee appeared to recognize Jones from a previous incident at the f.y.e. store during which Jones had engaged in a loud discussion about the check policy. The employee asked Jones if he was making trouble, told him he was trespassing, and told him to leave the store. Jones responded, "Why should I leave when I am shopping" and went to find his daughter within the store. Jones Dep. 79, Trans World Mot. Summ. J. Ex. B, ECF No.65-3.

         An f.y.e. employee called Steven Olson, Security Director for Wheaton Mall, and requested assistance in dealing with a disruptive individual According to Olson, when he arrived at f.y.e., the store manager informed him that Jones had gotten upset when f.y.e. would not accept a check as payment. When the manager explained the store's policy not to accept checks, Jones became more disruptive, and the manager asked him to leave the store multiple times. According to Olson, when he intervened and began speaking with Jones directly, Jones grew increasingly upset, leading Olson to ask him to leave the store and the mall, which Jones refused to do. Olson then called for a police officer to arrive to assist with an "irate individual." Olson Dep. 38, Trans World Mot. Summ. J. Ex. A, ECF No. 65-2. Jones, who had spent approximately half an hour in the f.y.e. store, paid cash for items selected by his daughter, then left the store.

         Officer Ashford then arrived on the scene. Olson informed Ashford that he wanted Jones to be issued a trespass notification form. Ashford told Jones that he had been asked several times to get out, that he was trespassing, and that Ashford wanted him "out of the mall." Jones Dep. 45-47. When Jones stated that he was not trespassing but instead had made a purchase in the store, Ashford shouted at Jones to leave the mall or he would be arrested. Jones refused, explaining that his wife was still in the mall. Ashford repeated the order to leave the mall, and Jones reiterated his concern about leaving without his wife. In total, Ashford ordered Jones to leave the mall at least four times.

         Ashford then asked Jones where his wife was within the mall. When Jones reported that they had planned to meet in front of the Macy's department store, Ashford then escorted Jones to Macy's. Ashford did not touch Jones as he walked with him to Macy's. Jones and Ashford waited outside Macy's for a few minutes and, when his wife did not appear, Jones was escorted to the mall security office with Olson walking in front of him and Ashford behind him. According to Olson, Jones was taken to the security office in order to issue him a trespass notice. When Jones slowed down occasionally and asked why he was being taken to the security office, Ashford gave him a "nudge" or "push" and occasionally held his pants. Id. at 93-94. The push was hard enough for Jones to perceive it, but not so hard that he ever stumbled or lost his balance. Olson did not touch Jones during the walk to the mall security office.

         At the security office, a trespass notification form was completed to memorialize that Jones had been barred from returning to the Wheaton Mall for one year, and Jones was photographed to facilitate his identification in the event he returned in violation of the notice. Jones showed his driver's license as identification, but he refused to sign the trespass notification form. The photograph and a copy of the trespass notification form were filed in a storage cabinet to be accessed only by security personnel and discarded upon the expiration of the notice. According to Ashford, Jones was detained during this procedure in that he had to remain within the vicinity of Ashford and security personnel. The interaction in the security office lasted less than 20 minutes.

         After providing Jones with the trespass notification form, Ashford again asked Jones to leave the mall. Jones reiterated that he would not leave without his wife. Ashford asked Jones to leave the mall at least once more. According to Ashford, he told Jones that if he did not leave, he would be arrested, to which Jones responded, "Then arrest me." Ashford Dep. 52, Trans World Mot. Summ. J. Ex. C, ECF No. 65-4. According to Ashford, he then told Jones that he did not want to arrest him, and he or security office personnel requested or ordered that he leave several more times, without success. At that point, Ashford decided that he had to physically remove Jones from the mall. Ashford grabbed Jones's left arm, elbow, and wrist in what he described as a "C-c1amp." Id. at 54. When Ashford felt Jones become tense in response, which based on his experience could be a precursor to an assault, he then pulled Jones's arm behind his back. When Jones told Ashford that he was hurting him, Ashford immediately released Jones's arm. Ashford then physically pushed Jones through the mall and into the parking lot. In pushing Jones out of the mall, Ashford used enough force for Jones to feel it, but not so much that Jones ever stumbled, tripped, or fell. Jones did not suffer any physical injury as a result of the incident.

         Jones sat on the curb in the parking lot area to wait for his wife. Ashford remained with Jones as he was waiting but did not tell Jones whether he was free to leave. When Jones wife and daughter arrived, Ashford explained to the wife what had occurred and that Jones had to leave the mall. Jones and his family then left the premises.

         To Jonesss knowledge, the only other individuals who learned about the incident at Wheaton Mall were his wife, his two daughters, and, indirectly, his dentist, who only knew that Jones had to cancel an appointment to attend a deposition about "an incident that happened at Wheaton." Jones Dep. 103-04. While walking him to the mall security office, neither Ashford nor Olson announced to mall patrons that Jones was detained for trespassing. Jones did not know anyone who was at the Wheaton Mall that day who might have seen any part of these events. There is no evidence that Jones's photograph was ever publicly displayed at the Wheaton Mall, and no one has ever informed Jones that his photograph was seen on display there.

         DISCUSSION

         In this action, Jones has alleged violations of his constitutional rights against an unreasonable seizure and excessive force pursuant to 42 U.S.C. ~ 1983 (Count I) and Article 26 of the Maryland Declaration of Human Rights (Count IV), and the common law torts of false light/invasion of privacy (Count II), battery (Count III), and false arrest (Count V). In separate motions, Defendants seek summary judgment on a variety of grounds, including that Defendants did not unlawfully seize or detain Jones, that any detention was justified because Jones had violated Maryland law against trespassing, that Ashford did not use excessive force against him, that Ashford is entitled to qualified immunity because he did not violate a clearly established federal right, and that Defendants did not engage in any behavior that publicly portrayed Jones in a false light.

         As an initial matter, the Court notes that in his October 26, 2066 Response to Defendants' Motions for Summary Judgment, Jones requests leave to amend Count I of his Complaint to add claims under: "(a) the Preamble of the U.S. Constitution, (b) the Public Accommodation Section of the 1964 Civil Rights Act, (c) the 1990 Americans with Disabilities Act, and (d) the 14th Amendment as well as the 4th Amendment." Resp. Mots. Summ. J. 3-4, ECF No. 71. Generally, "[t]he court should freely give leave to amend when justice so requires." Fed.R.Civ.P. 15(a)(2). Here, however, as set forth in the December 17, 2015 Scheduling Order, the Court set a deadline of February 1, 2016 for motions to amend the pleadings. Federal Rule of Civil Procedure 16(b) provides that a party must establish "good cause" to modify a deadline in a scheduling order. Fed.R.Civ.P. 16(b)(4). In seeking leave to amend in late October 2016, Jones missed this deadline by almost nine months. He has provided no explanation for the delay in seeking to amend the Complaint, and an amendment at this stage of litigation, following the completion of discovery, ...


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