United States District Court, D. Maryland
THEODORE D. CHUANG United States District Judge
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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,