United States District Court, D. Maryland
WILLIAM CONNELLY, UNITED STATES MAGISTRATE JUDGE.
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 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).
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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
court has original jurisdiction pursuant to 28 U.S.C. §
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
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.
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)).
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.
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
Untimely Expert Designation
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.
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).
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
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.
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.
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
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
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.
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.
Defendants' Motion for Summary Judgment
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).
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.
Excessive Force under 42 U.S.C. § 1983
Count Seven of his Amended Complaint, Wilson alleges in
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
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
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
ECF No. 35 at 6.
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.
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. . . .”).
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
‘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).
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.
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
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 ...