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Wilson v. Prince George's County

United States District Court, D. Maryland

April 3, 2017

DAMON WILSON Plaintiff,
v.
PRINCE GEORGE'S COUNTY, MARYLAND, et al. Defendants.

          MEMORANDUM OPINION

          WILLIAM CONNELLY, UNITED STATES MAGISTRATE JUDGE.

         On December 11, 2014, in the Circuit Court for Prince George's County, Maryland, Plaintiff Damon Wilson filed a six count Complaint against Defendants Prince George's County, Maryland and Patrolman First Class (“PFC”) Brendan Gill, alleging negligence, intentional infliction of emotional distress, battery, respondeat superior, unconstitutional custom and practice, and violations of Articles 24 and 26 of the Maryland Declaration of Rights, arising from an October 7, 2012 shooting. On January 29, 2016 Plaintiff amended[1] his Complaint by asserting a claim of excessive force under 42 U.S.C. § 1983. On February 16, 2016 this matter was removed from the Circuit Court for Prince George's County, Maryland to this court. By the consent of the parties, on August 15, 2016, this matter was reassigned to the undersigned for all further proceedings and the entry of judgment. See ECF No. 26. Pending before the court and ready for resolution is Defendants' motion for summary judgment (ECF No. 29). Plaintiff filed a response in opposition (ECF No. 30) and Defendants filed a reply (ECF No. 31). No hearing is deemed necessary and the court now rules pursuant to Local Rule 105.6 (D. Md. 2016).

         BACKGROUND

         On October 7, 2012 Damon Wilson (“Wilson”) exchanged text messages with his ex-girlfriend, Mynia Johnson (“Johnson”), asking to see his two daughters. He then called and spoke with Johnson. They had a disagreement about something. Wilson decided to visit Johnson's residence. It was late in the afternoon. Upon arriving at Johnson's apartment, Wilson knocked and banged on the door. Receiving no response, Wilson shouted that he wanted to see his older daughter who called out to him. Upon hearing his daughter's voice, Wilson was touched. He was also mad and kicked down the front door to the apartment.

         Wilson then walked into the apartment cursing in general and specifically at one of Johnson's male guests. Wilson walked toward the back of the apartment, located Johnson and cursed at her. He took time to greet his older daughter. Realizing he was becoming too angry, Wilson left the apartment.

         Johnson followed Wilson. She berated him about his conduct. Feeling provoked, he slapped her. According to Wilson, he apologized. In response Johnson said she will call the police. Wilson snatched Johnson's cell phone which fell down the drain. Wilson left the scene and walked to his twin brother's home.

         Upon returning to her apartment Johnson called the police. PFC Gill was the first patrolman to respond to the scene regarding a domestic incident. PFC Gill intended to wait for backup but Johnson saw the arrival of his patrol car and met PFC Gill outside the apartment building. She reported her ex-boyfriend broke into her apartment, struck her and left the building. Johnson offered to show the damaged door to PFC Gill who agreed since Wilson had left the scene. PFC Gill followed Johnson to her apartment and verified the damage to the door. PFC Gill then asked Johnson to accompany him to the patrol car to complete paperwork.

         Meanwhile, when Wilson arrived at his twin brother's place, his brother was busy tattooing someone. Wilson wanted to discuss what occurred between him and his ex-girlfriend but his brother was preoccupied. Annoyed that he could not speak with his brother, Wilson noticed and grabbed a pocket knife and then ran out the door.

         In his emotionally charged state, Wilson wanted to kill himself. He wanted to commit suicide in front of Johnson to let her know she was at a fault for his action. Wilson thus started walking back to Johnson's apartment.

         As Wilson walked around the corner of a distant building in the direction of Johnson's building, he saw her with a police officer. Johnson saw Wilson and advised PFC Gill, who directed Johnson to return to her apartment. PFC Gill then walked along the pathway toward the apartment building.

         According to PFC Gill, he attempted to engage in a conversation with Wilson. PFC Gill observed Wilson pull an object, something shiny, from his pocket. Initially PFC Gill was too far away from Wilson and could not identify the object. PFC Gill drew his gun and started giving Wilson verbal commands. As Wilson moved closer to him, within 40 feet, PFC Gill realized Wilson was holding a knife. PFC Gill then apprised the dispatcher of the situation and requested assistance. At this point, according to PFC Gill, Wilson stopped walking. Wilson stated he was not going to drop the knife, told PFC Gill to go away, and let him (Wilson) do what he wanted to do. PFC Gill responded no, that he is not going anywhere. Again he commanded Wilson to drop the knife.

         Meanwhile Johnson did not leave the scene as instructed. She stood behind PFC Gill. Her boyfriend and another individual became aware of what was happening and joined Johnson.

         According to Wilson, once PFC Gill realized he was holding a knife, PFC Gill, with gun drawn, commanded Wilson to stop. Wilson complied and stood approximately 20 feet away. Wilson began cursing, stabbing himself with the knife, yelling, and crying. Wilson did not threaten, either verbally or physically, the police officer. The police officer told Wilson to put the knife down. Wilson continued poking himself with the knife.

         According to PFC Gill, he continued giving verbal commands to Wilson to drop the knife. He tried to reason with Wilson who did not comply. Instead Wilson cut his throat, and continued walking. Then he stabbed himself in the chest. Wilson was closing the distance between himself and PFC Gill. Johnson and two other individuals were standing behind PFC Gill, who was standing in front of an apartment building door. If he retreated any further, Wilson could flee by running inside of an apartment.

         As a result of stabbing himself in the chest, Wilson stumbled forward, taking four little steps. PFC Gill fired his service weapon five times. According to Wilson, he was approximately 20 feet away when the shots were fired. According to PFC Gill, Wilson was 10 to 15 feet away. According to Johnson, Wilson stood 8 feet away from PFC Gill and 9 to 10 feet away from her.

         JURISDICTION AND VENUE

         This court has original jurisdiction pursuant to 28 U.S.C. § 1331[2] as to the excessive force claim under 42 U.S.C. § 1983 (Civil action for deprivation of rights). The remaining counts are claims under the laws of the State of Maryland. Pursuant to 28 U.S.C. § 1367(a), “district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” The court finds the state claims are in fact so closely related to the excessive force claim under federal law that the state claims form part of the same controversy.

         Venue is proper in this judicial district based on the Defendants' residences in this judicial district, 28 U.S.C. § 1391(b)(1). Venue is also proper in this judicial district because “a substantial part of the events or omissions giving rise to the claim occurred”, 28 U.S.C. § 1391(b)(2), in Maryland.

         STANDARD OF REVIEW

         A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party, ” then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing no genuine issue as to any material fact exists. Fed.R.Civ.P. 56(a); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).

         When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. “[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323.

         On those issues where the nonmoving party will have the burden of proof, it is that party's responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256. However, “'[a] mere scintilla of evidence is not enough to create a fact issue.'” Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984) (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 632 (E.D. N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968)). There must be “sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).

         DISCUSSION

         A. Untimely Expert Designation

         Before addressing the substantive issues of Defendants' motion for summary judgment and Plaintiff's opposition thereto, Defendants object to Plaintiff's belated expert designation and request the court strike that designation. By way of background, per the May 26, 2016 scheduling order, Plaintiff's Rule 26(a)(2) expert disclosures were due August 1, 2016. ECF No. 22 at 2. No experts were designated by this deadline. Plaintiff never requested an extension of time to designate experts.

         On December 7, 2016 Plaintiff filed his opposition to Defendants' motion for summary judgment. Two exhibits are attached to the opposition: (a) Plaintiff's December 7, 2016 Affidavit (ECF No. 30-2) and (b) a 17 page, undated “Expert Report/Analysis and Assessment of Liability in Case of Damon Wilson v. Prince George's County, ” prepared by Tyrone Powers, Ph.D. (ECF No. 30-3).

         Federal Rule of Civil Procedure 37(c)(1) states, in pertinent part, “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” (Emphasis added). A party need not move for sanctions to comply with Rule 26(a)(2) because Rule 37(c)(1) “provides a self-executing sanction for failure to make a disclosure. . . .” Fed.R.Civ.P. 37(c)(1) advisory committee's note to 1993 amendment.

         This court has broad discretion in determining whether Plaintiff's nondisclosure was substantially justified or harmless. In making such a determination this court should be guided by the following factors: “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.” Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). No trial has been scheduled for this case. Nonetheless, this case is at the critical juncture of a dispositive motion. The court thus substitutes “disrupt the dispositive motion phase” in place of “disrupt the trial” for the third element.

         Next, the court shall resolve this issue without any response from Plaintiff, who could have moved for leave to file a surreply in response to Defendants' request to strike Plaintiff's untimely expert designation. For reasons known only to Plaintiff, he did not seek leave of court or file any other motion or notice on this matter.

         Based on the information presented, the court finds Defendants had no prior knowledge about Plaintiff retaining Tyrone Powers, Ph.D. as an expert on the use of force, and no prior knowledge about Dr. Powers' expert report, analysis and assessment of liability until Plaintiff filed his opposition to Defendants' motion for summary judgment. The first factor therefore is satisfied because Defendants were surprised by this untimely designation and disclosure. Second, because Plaintiff did not disclose his expert and the expert's report until filing his opposition to Defendants' motion for summary judgment, Defendants did not have the opportunity to depose Dr. Powers, and did not have the opportunity to have their expert (Craig M. Dickerson) review Dr. Powers' report and opine about the basis of Dr. Power's conclusions. Because of the unexpected, untimely disclosure during the dispositive motion briefing phase, Defendants do not have the ability to cure this surprise.

         Third, permitting the admission of Dr. Powers' report will disrupt the dispositive motion phase because (a) the motion is ripe for resolution, and (b) Defendants did not have the opportunity to review Dr. Powers' report, consult their own expert about Dr. Powers' report, and depose Dr. Powers. Fourth, although Dr. Powers' opinion could be important, the basis of his opinion also could be unsupportable and unreliable and therefore would be excluded. The court cannot answer the fourth factor with any certainty because, due to the untimely disclosure, Defendants were not given an opportunity to scrutinize Dr. Powers' report. Finally, Plaintiff failed to provide any explanation for his untimely disclosure.

         As noted in the 1993 Amendment to the Advisory Committee's Note for Rule 37(c)(1), “[t]his automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule 56.” It was incumbent upon Plaintiff, if he wanted to use Dr. Powers' report as evidence, to comply with the scheduling order for expert designation or seek an extension. Plaintiff did neither. Once Plaintiff unexpectedly attached Dr. Powers' report to his opposition and Defendants, in their reply, asked this court to strike Dr. Powers' report, Plaintiff could have moved to file a surreply explaining why the disclosure was untimely or could have moved seeking other relief regarding the late designation. Plaintiff did neither.

         The court therefore finds Plaintiff's untimely expert disclosure is not substantially justified nor is it harmless. The court hereby strikes Dr. Powers' report (ECF No. 30-3) and declines to consider his report or opinions contained therein for this motion.

         B. Defendants' Motion for Summary Judgment

         The court now turns its attention to the substance of Defendants' motion for summary judgment. Preliminarily the court notes, in his opposition, Plaintiff abandons his negligence claim (Count Six) against Defendant PFC Gill and abandons his claim of unconstitutional custom and practice (Count Three) against Defendant Prince George's County, Maryland. See ECF No. 30 at 1, ECF No. 30-1 at 7. With regard to these counts Plaintiff declares, “[a]n appropriate motion to amend the complaint will soon be filed.” Id. More than three months later, no motion to amend the complaint has been filed. Accordingly, the court will dismiss the unconstitutional custom and practice claim against Prince George's County (Count Three) and the negligence claim against PFC Gill (Count Six).

         The court now turns its attention to the remaining counts, i.e., intentional infliction of emotional distress, battery, respondeat superior, violations of Articles 24 and 26 of the Maryland Declaration of Rights, and excessive force under 42 U.S.C. §1983.

         1. Excessive Force under 42 U.S.C. § 1983

         In Count Seven of his Amended Complaint, Wilson alleges in pertinent part:

44. The shooting of the plaintiff by defendant PFC GILL, ID#3361 constituted a seizure under the Fourth Amendment of the United States Constitution;
45. The defendant PFC GILL, ID#3361 maliciously, and without legal justification, under color of Maryland State law, shot, with a firearm, the plaintiff, and thereby used unreasonable and excessive force in performing the aforesaid seizure of the plaintiff, depriving [him] of [his] rights under the Fourth Amendment of the Constitution of the United States, to be free from unreasonable seizures, including excessive force;
46. The aforesaid shooting, harmful and/or offensive intentional touchings of the plaintiff, without the plaintiff's consent, caused the plaintiff physical pain and/or injury or illness, and offended the plaintiff's reasonable sense of personal dignity;
47. As a direct, foreseeable, and proximate result of the deprivation of the plaintiff's rights under the Fourth Amendment, the plaintiff sustained the injuries, alleged above;
48. The aforesaid shooting was performed with malice toward the plaintiff, with intent to inflict injuries, with improper motivations, and/or with ill will;
49. As a proximate and foreseeable result of the aforesaid battery, the plaintiff sustained the injuries, alleged above[.]

ECF No. 35 at 6.

         In their Answers to the Amended Complaint, Defendants admit paragraph 44, the shooting of Wilson by PFC Gill constitutes a seizure under the Fourth Amendment of the United States Constitution. As to the remaining allegations, with the exception of admitting Wilson was partially paralyzed (paras. 46-47, 49), Defendants deny the allegations (paras. 45 and 48), or deny portions of the allegations and assert a lack of sufficient information or knowledge to admit or deny other portions of the allegations (paras. 46-47, 49). See ECF No. 36 at 5-6.

         A cause of action is created under Section 1983 of Title 42 against any person acting under color of state law who abridges an individual's right arising under the Constitution or laws of the United States. Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). Plaintiff and Defendants agree the shooting of Wilson by PFC Gill constitutes a seizure under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989) (holding “that all claims that law enforcement officers have used excessive force - - deadly or not - - in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard. . . .”).

         In response to a Section 1983 claim a government official may invoke qualified immunity. Qualified immunity is not merely a defense to liability; it is immunity from the lawsuit itself. Cooper, 735 F.3d at 158. “Qualified immunity balances two important interests- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Therefore, qualified immunity shields a police officer from civil liability unless, under a reasonableness inquiry, the police officer should have known his actions violated clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

         “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. This reasonableness inquiry is an objective one: “the question is whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. In assessing the reasonableness of the force used to effect a particular seizure, a court must carefully consider the facts and circumstance of the particular case, especially the following three factors: (a) “the severity of the crime at issue, ” (b) “whether the suspect poses an immediate threat to the safety of the officers or others, and” (c) “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. Finally, the United States Court of Appeals for the Fourth Circuit cautions “[a] court's focus should be on the circumstances at the moment force was used and on the fact that officers on the beat are not often afforded the luxury of armchair reflection.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996).

         Turning to the facts and circumstances of this case, Wilson appears to concede the first factor (the severity of the crime at issue) is established. However Wilson asserts the second and third factors have not been met. “In the instance case, the plaintiff posed no threat to the safety of the officer or others, and was not actively resisting arrest or attempting to evade arrest by flight.” ECF No. 30-1 at 3.

         With regard to the first factor Wilson acknowledges that, in response to Johnson's 911 call, PFC Gill was dispatched to Johnson's apartment building. Although Wilson was not present when the 911 call was made, Wilson knew Johnson attempted to call the police, which he prevented.

Q Describe what occurred once you got to the apartment building.
A Detailed?
Q Yes, sir.
A When I went to the apartment building, I'm knocking on the door, banging on the door. I was, like, “Mynia, I want to see [N]. I want to see [N], ” and she kept on ignoring me and I kept on yelling, “Let me see [N], let me see [N], ” and then I heard my daughter's [voice]. “Daddy, daddy.” I was, like, “Oh, man, ” Then like, you know, I guess I got too mad and I kicked the door down.
* * *
[Q] and you were kicking it backwards or were you kicking it while you were facing the apartment door?
A Back turned.
Q Okay. And once you kicked down the door, what happened?
A I walked in, started cussing. I can't say exactly what I said, but I know I started cussing and I started cussing at Bert and I found ...

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