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Minor v. Prince George's County

United States District Court, D. Maryland, Southern Division

February 15, 2017

MICHELE E. MINOR, et al., Plaintiffs,
v.
PRINCE GEORGE'S COUNTY, MARYLAND, et al., Defendants.

MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         Prince 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[1] 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.

         Standard of Review

         Summary 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.

         On a 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).

         Background[2]

         Late on 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 TR[3] 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.

         Minor 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.

         The 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.

         Wade 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.[4] 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.

         According 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.

         As 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.[5] 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.

         TR 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. at 34:3-17.

         After Wade shot Minor, the deputy sheriffs went outside and Pullam-Jones immediately began to administer aid. Wade Dep. 127:11-13.[6] “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.

Longo opined:
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 practices.

Longo Dep. 81:14-24.

         Plaintiffs' 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 (Count V).

         Defendants 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[7] 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.

         Defendants 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.

         Discussion

         Qualified ...


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