United States District Court, D. Maryland, Southern Division
MICHELE E. MINOR, et al., Plaintiffs,
PRINCE GEORGE'S COUNTY, MARYLAND, et al., Defendants.
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
George's County Deputy Sheriff Kendal Wade responded to a
911 call for protection with regard to Michael R. Minor, who
had been drinking, had made violent threats, and had said he
was going to get his gun. Am. Compl. ¶¶ 11-15, ECF
No. 10. Deputy Sheriff Wade ordered Minor to keep his hands
away from where the gun may have been concealed and, when
Minor disregarded this order and appeared to reach for a gun,
Wade shot and killed him. Id. Minor's mother,
Michele E. Minor, personally and as the personal
representative of her son's estate, and Kira R. Simmons,
the mother of his son MJM, as MJM's next best friend,
filed a 42 U.S.C. § 1983 action against Deputy Sheriff
Wade, Prince George's County, Maryland (the
“County”), and Sheriff Melvin C. High, Compl.,
ECF No. 1, and then voluntarily dismissed the claims against
Sheriff High, ECF Nos. 47, 48. Pending is Defendants'
motion for summary judgment on the remaining claims. Because
the undisputed facts, though tragic, show that Deputy Sheriff
Wade's actions were objectively reasonable, he is
entitled to qualified immunity, and summary judgment is
appropriate on the Plaintiffs' § 1983 claims, state
constitutional claim, and state tort claims. Additionally,
Plaintiffs concede that, even though they brought a claim for
“Survival Act” (Count I), Maryland's Survival
Act, Md. Code Ann., Est. & Tr. § 7-401(y) does not
“provide a separate and distinct cause of
action.” See Pl.'s Opp'n 25. They also
concede that their § 1983 claim against the County
(Count VIII) should be dismissed. Id. at 25 n.2.
Accordingly, I will dismiss Counts I and VIII on that basis.
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Instead, the
evidentiary materials submitted must show facts from which
the finder of fact reasonably could find for the party
opposing summary judgment. Id.
motion for summary judgment, I consider the facts in the
light most favorable to Plaintiffs as the non-moving party,
drawing all justifiable inferences in their favor. Ricci
v. DeStefano, 557 U.S. 557, 585-86 (2009); George
& Co., LLC v. Imagination Entm't Ltd., 575 F.3d
383, 391-92 (4th Cir. 2009); Titan Indem. Co. v. Gaitan
Enters., Inc., No. PWG-15-2480, 2016 WL 6680112, at *1
(D. Md. Nov. 14, 2016). Likewise, to determine the
availability of qualified immunity, I take the facts alleged
“in the light most favorable to the party asserting the
injury, ” that is, Plaintiffs. Meyers v. Baltimore
Cnty., 981 F.Supp.2d 422, 429 (D. Md. 2013) (quoting
Saucier v. Katz, 533 U.S. 194, 201 (2001),
receded from on other grounds in Pearson v.
Callahan, 555 U.S. 223, 129 S.Ct. 808 (2009)); see
Queen v. Prince George's Cnty., 188 F.Supp.3d 535,
544 (D. Md. 2016) (same).
the evening of October 22, 2014, Michael Minor, who had been
drinking, argued with his girlfriend, Beverly Lewis, in her
house where he sometimes stayed and where her teenage son
was present. Lewis Dep. 19:11-18, 22:9-23:21, Defs.' Mem.
Ex. A, ECF No. 55-1; Wade Dep. 77:18-21, Defs.' Mem. Ex.
B, ECF No. 55-1. He went “to the attic to get his gun,
” and Lewis and her son called 911. Lewis Dep.
24:18-25:21. Lewis told the 911 operator that Minor
“said he was going to go to the attic to get his
gun.” Id. at 25:17-20. She testified that she
“never saw a gun, ” that night or previously.
Id. at 32:15-33:5. Her son corroborated her
testimony that they informed the 911 operator that he
“might” have a gun because Minor “claim[ed]
he always had a concealed weapon in the house, ” but
they had “never seen it.” TR Dep. 19:18-20,
Pls.' Opp'n Ex. 2, ECF No. 60-2.
left the premises with his dog, and Deputy Sheriffs Wade and
Tiffany Pullam-Jones arrived. Lewis Dep. 26:14-19,
35:10-38:10. According to Wade, Lewis informed him when he
arrived that “Michael Minor destroyed her house”
and, “as [had been] communicated to [him] through
dispatcher and [his] supervisor, ” that “Minor
had a gun, and that he left.” Wade Dep. 40:16-20. Lewis
testified that she told him that Minor “came home drunk
and he was drunk and he want[ed] to be violent and fight
[her].” Lewis Dep. 39:14-17.
parties agree that the dog returned before Minor, at which
point it was early morning on October 23, 2014. Lewis Dep.
45:15-46:4; Wade Dep. 46:4-5, 47:8-9; Pullam-Jones Dep.
36:19-37:2, Pls.' Opp'n Ex. 3, ECF No. 60-3. Deputy
Sheriffs Wade and Pullam-Jones were inside the house, where
the storm door was shut and locked but the front door was
open. Wade Dep. 46:3-4. The upper portion of the door held a
screen. Id. at 76:17-77:2. Lewis testified that she
put the dog in its cage. Lewis Dep. 45:15-46:4. Pullam-Jones
testified that the dog “walked by the door, ”
after which she “didn't see the dog anymore,
” and she and Wade “discussed [that] the suspect
may be around” and both “unholster[ed] [their]
weapons” as Minor “walked to the door.”
Pullam-Jones Dep. 36:19-37:19. Wade testified that first,
“a pit bull [came] running up to the door, barking, and
growling, and scratching.” Wade Dep. 46:4-5. He said
that when Minor then appeared, he was “very aggressive
verbally” and refused “to get his dog.”
Id. at 56:18-20.
testified that Minor was wearing “a loose-fitting
shirt” that covered his waistband and prevented Wade
from “mak[ing] out any specifics of his frame or
anything on his person.” Wade Dep. 60:3-5, 68:20,
69:4-14. But, according to Lewis, Minor was wearing a
zipped-up gray hoodie over his white t-shirt. Lewis Dep.
26:17, 30:19-21, 34:16-18. Plaintiffs assert that Minor was
holding a bottle in his right hand. Pls.' Opp'n 2.
Yet, the only evidence they produce of the bottle is the
deposition testimony of their expert on “reasonable
police practices, ” Timothy Longo, Sr., who said that,
if Minor had a bottle in his right hand, as Wade testified
(although according to Longo, Wade later stated that
“he doesn't even recall that to be the
case”), “[i]t would certainly call into question
Minor's ability to be able to grasp something if he had
something already in his hand.” Longo Dep. 81:11-13,
107:5-25, Pls.' Opp'n Ex. 5, ECF No.
60-5. And, Lewis testified that the bottle of
alcohol Minor had been drinking was sitting on the table in
the house. Lewis Dep. 39:17-21.
to Deputy Sheriff Wade, “[a]fter Mr. Minor appeared at
the door, [Wade] had [his] weapon down, out of [his] holster,
in [his] hand, by [his] leg, at what [officers] call low
ready.” Wade Dep. 71:12-14. Wade testified that he
positioned himself between Minor and Lewis, her son, and
Pullam-Jones and he yelled twice for Minor to “[g]et on
the ground, ” but Minor “said
‘No'” and “tr[ied] to open the door,
the storm door.” Id. at 47:11-19, 57:3-8. Wade
and Pullam-Jones yelled at Minor for him to show them his
hands, but he refused. Id. at 57:11- 15. Wade
directed Minor three times “to not reach for his waist,
” and Minor “tapped his waist” after the
first command, “disobeyed” the second command,
and then after the third command, “he went into his
pants, went under his shirt, went into his waistband.”
Id. at 58:5-59:11. Wade did not remember which hand
Minor used to reach into his waistband. Id. at
60:16-18. He recalled:
So when we were-- when I gave, I believe, my last command,
which was one of several, I specifically told Mr. Minor,
again, “Do not reach for your waistband.” And not
only-- and if he were to do that, that he would be shot, not
only did Mr. Minor acknowledge my command, as he did the
previous ones, with all of the totality of the information
that I received from everyone involved: the dispatcher,
again, the victim, Ms. Lewis, her son, saying that Mr. Minor
was armed, and not only was he armed but he was back at the
front door; he was being aggressive; he had this aggressive
pit bull with him; he was disobeying every command that I
gave him, every command that was shouted to him by my
partner; and not only did he disobey them but he did the
exact opposite of what I instructed him to do, at this point
he reached in his band, waistband.
I believed, because of my training, . . . that people draw
from their waistband area, I believed that he was drawing a
weapon to kill me, to kill Ms. Lewis, who he's been
threatening, her son, who he's been threatening, who[se]
house he just . . . finished terrorizing, in accordance with
the protocol and my training, that's when he went down to
his waistband, he dug under his shirt, went down to his
waistband, and as he began to what I believe to . . . draw a
weapon, I fired three shots.
Id. at 74:4-75:12.
Lewis recalled, when Minor “reached the door, ”
Deputy Sheriff Wade told him to “raise [his] hands
above [his] head.” Lewis Dep. 48:10-15. Lewis, who was
inside and could not see much of Minor because “th[e]
door covered a lot, ” said that “Michael must
have dropped his hand, because [she] didn't see it
anymore.” Id. at 48:16-49:3. She testified
that she “could see his left side . . . his leg”
and “a little bit of the upper [shoulder/chest area on
his left].” Id. at 48:17-49:4. She could not
see the right side of Minor's body. Id. at
50:5-7. She testified that “Michael did something, and
the male officer drew his weapon” and instructed him
again to raise his hands, after which Minor asked why he
could not return home, and Wade again directed him to raise
his hands and said, “If you do that one more time, I
will shoot you.” Id. at 50:11-51:13. Minor
responded, “Shoot me?, ” and Deputy Sheriff
Pullam-Jones directed him to raise his hands. Id. at
51:17-52:5. Minor then “was moving his arm” and
“reached towards the front of his jacket.”
Id. at 156:9-14. Lewis “took [her] eyes off of
Michael and [she] put [her] eyes on the deputy, ” and
then she heard “the gun go off and the flash from the
shell drop.” Id. at 52:18-21.
recalled that Wade told Minor “to raise his hands and
don't move, ” but “Minor [was] drunk, and he
didn't listen.” TR Dep. 33:12-14. Wade “kept
telling him three times before he pulled his concealed weapon
out.” Id. at 33:14-16. TR testified that Minor
then “proceeded to go in his pocket, ” but he
also testified that he “couldn't see
anything” from where he was in the house. Id.
Wade shot Minor, the deputy sheriffs went outside and
Pullam-Jones immediately began to administer aid. Wade Dep.
127:11-13. “Paramedics were called to the scene
to attend to Michael Minor. He was then transported to a
local hospital where he was later pronounced dead.”
Defs.' Mem. 4-5.
If the testimony of Deputy Wade as it is represented in his
deposition testimony and in his initial interview with the
Internal Affairs Division of the Prince George's County
Police Department, if that testimony is deemed to be
credible, I think his actions were consistent with generally
accepted policing practices.
On the other hand, if Michael Minor was shot for simply not
getting on the ground and not raising his hands, absent more,
those actions were contrary to generally accepted policing
Longo Dep. 81:14-24.
Amended Complaint includes claims for wrongful death (Count
II) and violation of Article 24 of the Maryland Declaration
of Rights (Count VI) against Deputy Sheriff Wade and, under
the theory of respondeat superior, the County.
See Am. Compl. ¶¶ 21-23, 33- 35; Pl.'s
Opp'n 25-26 n.2 (stating that “Plaintiffs have
not brought any common law claims against defendant Prince
George's County directly”). Their additional claims
against Deputy Sheriff Wade are for assault and battery
(Count III), deprivation of civil rights and excessive
force/police brutality, in violation of § 1983 (Counts
IV and VII); and intentional infliction of emotional distress
argue that Deputy Sheriff's Wade's actions were
objectively reasonable, and therefore he is entitled to
qualified immunity from Plaintiffs' § 1983 claim in
Count IV and Plaintiffs' state constitutional
claim in Count VI should be dismissed. Defs.' Mem. 11,
13. They insist that, for the same reason, they are entitled
to summary judgment on Plaintiffs' wrongful death and
assault and battery claims. Id. at 21, 22.
contend that “Wade cannot be found liable for
intentional infliction of emotional distress” because
there is no evidence that the decedent, who was killed
immediately, suffered any emotional distress, and Plaintiffs,
who were not present, cannot provide testimony to that
effect. Id. at 20-21. Additionally, they argue that
the conduct must be extreme and outrageous, but Wade's
conduct was reasonable. Id. at 20. They contend that
governmental immunity bars Plaintiffs' wrongful death
claim against the County. Id. at 18-20, 21. They
also contend that Plaintiffs' wrongful death claim fails
because Plaintiffs fail to state a separate claim for
negligence. Id. at 18.