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Sparrow v. City of Annapolis

United States District Court, D. Maryland

August 9, 2017

TOWHEE A. SPARROW, JR.
v.
CITY OF ANNAPOLIS (MD) et al.

          MEMORANDUM

          WILLIAM M. NICKERSON, SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion for Summary Judgment filed by Defendants City of Annapolis, Sergeant Christopher Kintop, Officer Robert Reese, II, and Officer Ralph DeFalco. ECF No. 24. Also pending is a motion for leave to file a surreply filed by Plaintiff Towhee A. Sparrow, Jr. ECF No. 27. Both motions are ripe for decision. Upon review of the motions and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that Plaintiff's motion for leave to file a surreply will be granted in part and denied in part and Defendants' Motion for Summary Judgment will also be granted in part and denied in part.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Towhee A. Sparrow, Jr. is an African-American male who, at the time of the incident giving rise to this action, was 33 years old. Plaintiff lives in Prince George's County, Maryland, but spent the evening of June 5, 2014, working on his motorcycle on his father's property in Annapolis, Maryland. In his deposition, Plaintiff described the following series of events.

         At approximately 9:30 that evening, Plaintiff was finishing his work on the motorcycle when he observed an Annapolis Police Department (APD) police car parked near and shining a spotlight on his father's house. Plaintiff rode his motorcycle towards his father's driveway to investigate. Before he reached the driveway, an APD police officer, later identified as Defendant Officer Robert Reese, II, pointed his gun at Plaintiff and yelled “get off of the fucking motorcycle, ” and “get on the fucking ground.” Pl.'s Dep. at 86 (ECF No. 25-1). Startled, Plaintiff accidently hit the gas on the motorcycle and it went five to ten feet forward before stopping about 20 feet from Reese.

         Plaintiff got off of the motorcycle and Reese continued to curse at him, telling him to put his hands behind his head and threatened to shoot him if he did not comply. Plaintiff complied and laid face down on the ground with his hands behind his head but Reese continued to curse at him, telling Plaintiff not to look at him or he would “fucking shoot him.” Reese did not identify himself, explain the reason he was stopping Plaintiff, or ask Plaintiff for his identification, which Plaintiff had on his person. Confused, Plaintiff tried to explain that this was his father's house and he was there fixing his motorcycle. Reese told Plaintiff to “shut the fuck up, ” and called him “Nigger.”

         Reese then commenced to handcuff Plaintiff behind his back but, before doing so, kicked Plaintiff in the head, causing Plaintiff to briefly lose consciousness. While placing Plaintiff in handcuffs, Reese placed his knee on the back of Plaintiff's neck, bearing down on the base of Plaintiff's skull for a considerable period of time. Reese also raised his knee up several times and slammed it back down on Plaintiff's head and neck several times and also pulled Plaintiff's handcuffed hands up, causing severe pain.

         Within a few minutes, more APD police cars and officers arrived, including Defendant Officer Ralph DeFalco and Defendant Sergeant Christopher Kintop. Plaintiff testified that these officers continued the violent assault on him, kicking him and calling him racial slurs. Reese continued to bear down with his knee on Plaintiff's neck and Kintop pulled up on Plaintiff's handcuffed wrists, yelling at Plaintiff, “You think you tough because you pulled your gun out on a white guy.” Pl.'s Dep. at 103. Reese then walked a few feet away to “gather [him]self and catch [his] breath.” Reese Dep. at 53 (ECF No. 25-4).

         Another APD officer, Andrew Stallings, had also arrived at the scene and initiated a search of Plaintiff's person. DeFalco began to press his knee into the back of Plaintiff's neck while Stallings patted Plaintiff down. Stallings, who is described by Reese as being “always hyper, ” id. at 50, felt Plaintiff's cell phone in a holder attached to his waist, mistook the phone for a gun, and began screaming “gun, gun, gun.” In DeFalco's account given in the internal affairs investigation, DeFalco indicated that, in response to Stallings' gun announcement, he pulled Plaintiff's arms up high by the links of the handcuffs “to inflict a little bit of pain.” Internal Affairs Case File at 7 (ECF No. 25-3). The officers then pulled Plaintiff's pants down to his knees or ankles.

         Annapolis Fire Marshal Jonas Brooks, who happens to be Plaintiff's uncle, arrived at the scene several minutes later and, in a subsequent interview conducted as part of the APD internal affairs investigation of this incident, stated that he heard an officer say “shut the fuck up” and call Plaintiff a “dirt ball” or “shit bag.” Id. at 9. In their Reply memorandum, Defendants significantly misrepresent several aspects of Brooks' statement to the internal affairs investigator. They represent in their Reply that “[w]hen Brooks arrived at Plaintiff's father's residence [], he observed that Plaintiff was still on his vehicle.” ECF No. 26 at 2 (citing Audio Recording of Brooks' Interview (ECF No. 24-12)). Later in their Reply, they argue that Brooks, “who observed Plaintiff still on his motorcycle when he pulled up to the scene, stated that he did not observe any officer striking, kicking, punching, or otherwise assaulting Plaintiff.” Id. at 17 (emphasis added). In his interview, however, Brooks clearly stated that he was the fifth or sixth officer on the scene and, that by the time he arrived, Plaintiff was face down on the ground, being held at gunpoint. Brooks also stated that there were so many cars already there and he had to park two houses down from where Plaintiff was being detained.

         Defendants may also have similarly misrepresented the time at which Plaintiff's father arrived at the scene. In their Reply, Defendants represent that “objective witness Mr. Sparrow, Sr., who came outside while Plaintiff was being patted down, only observed physical contact in the form of Plaintiff's handcuffs being pulled up by Defalco. Defalco did this in response to the gun announcement, which is when Plaintiff alleges he was being kicked by six officers at once.” Id. at 17. Mr. Sparrow, Sr., testified, however, that when he first saw his son, Plaintiff's pants were already pulled down to his knees. Sparrow, Sr., Dep. at 18 (ECF No. 25-2). If Plaintiff's pants were already at his knees, this was after the pat down and mistaken identification of Plaintiff's cell phone as a gun, given that it is undisputed that the cell phone was holstered to Plaintiff's waist.

         After a few more minutes, another APD police car arrived and Kintop picked up Plaintiff and pulled him over to the car. Three individuals got out of the car, looked at Plaintiff, and stated that Plaintiff looked nothing like the man that had threatened them with a gun earlier in the evening. Kintop then introduced himself to Plaintiff and told Plaintiff he had just been “in the wrong place at the wrong time.” Pl.'s Dep. at 104. After a brief delay while the officers tried to find the keys to the handcuffs, the handcuffs were removed. Plaintiff then learned what had instigated his frightening and painful ordeal.

         About an hour earlier, APD had received reports that a young, tall, thin, Hispanic or Asian male riding a blue and white dirt bike had brandished a handgun and threatened several individuals in the parking lot of a nearby Giant Food store. In response, APD officers, including Reese, began canvasing the area for the suspect. Ironically, Plaintiff was familiar with the individual described by the witnesses and was able to direct the officers to his home. That individual was subsequently arrested and charged with first degree assault.

         Plaintiff has testified that, as a result of his “being in the wrong place at the wrong time, ” and being mistaken by Reese for the suspect, he sustained serious physical and emotional injuries. Plaintiff's father observed that, after the handcuffs were removed, Plaintiff's wrists were bleeding and he had a bruise on his neck. When he asked his son if he wanted to go to the hospital, Plaintiff responded that he just wanted to get out of Annapolis. Plaintiff's father added that, since this incident, Plaintiff tries not to be in Annapolis after dark. Sparrow, Sr., Dep. at 25. The next day, Plaintiff reported to his father that his head and arms were hurting him. Id.

         Plaintiff went to the Prince George's Hospital Emergency Department the next day, complaining of “fever and pain in the shoulder, left side of the ribs, and back of head” that resulted from a fight the day before. Prince George's Hospital Emergency Record dated June 6, 2014, at 9 (ECF No. 25-10). Plaintiff left before receiving treatment, however, due to an inordinate wait time in the emergency department. Plaintiff returned the next day, complaining of “severe headache fever and bruising.” Prince George's Hospital Emergency Record dated June 7, 2014, at 9 (ECF No. 25-11). Plaintiff again left without being treated because of the inordinate wait.

         On June 13, 2014, Plaintiff went to the Emergency Department of Southern Maryland Hospital Center (SMHC) complaining of headaches, blurred vision, left ear pain, and intermittent left thumb numbness after being “punched in the head” one week before. SMHC Emergency Dept. Chart dated June 13, 2014, at 1 (ECF No. 25-13). On July 1, 2014, Plaintiff went to the Annapolis Ear, Nose, Throat, and Allergy Associates complaining of left ear pain, posterior neck pain, chest pain as well as tinnitus. Dr. Gregory Heacock Letter dated July 1, 2014 (ECF No. 25-14). On April 8, 2016, Plaintiff saw Dr. Maciej Poltorak at Neurological Medicine, P.A. in Greenbelt, Maryland, again with complaints of headaches. Dr. Poltorak noted that:

The patient is a 35 year old male who presents with a complaint of Headache. Note for “Headache”: Reason for Visit/Chief Complaint: The patient is a very pleasant young man who has severe headaches and what he described migraine. . . They are very frequent, almost each day. This started two years ago in June 2014, he was severely assaulted by a police officer when they kicked him on the head and back. He had broken ribs and loss of consciousness. The assault lasted one hour, but his loss of consciousness was short. He also has injury to the hands when he was handcuffed behind his back. Since then, these headaches started; before that he was very healthy . . . . He has ringing in the ear, sensation of spinning or constant unsteadiness with feeling lightheaded on and off . . . . His headache is very severe in the frontal and bitemporal area. He also has hand pain after the handcuffing and he was evaluated for that too. He felt nervous and tense.

         Report of Neurological Medicine, Inc. dated April 8, 2016, at 1 (ECF No. 25-16). Dr. Poltorak's impression was that “[t]he patient has significant headaches status post head injury. Most likely, he has postconcussion syndrome. Id. at 3. Plaintiff had a follow-up appointment with Dr. Poltorak on August 16, 2016, in which Dr. Poltorak noted that Plaintiff's “cognitive evaluation indeed showed some cognitive deficit. His MCI probability was 90%, which is quite obvious with marked impairment of both memory and executive function, and fluency. . . . Since he is 35 years old, I think it will be important for him to start some therapy.” Report of Neurological Medicine, Inc. dated August 16, 2016, at 1 (ECF No. 25-18). Dr. Poltorak also noted that the “MRI of the brain did show some mild white matter changes, ” although they were “nonspecific.” Id.

         Plaintiff has also sought treatment for the injuries to his wrists. On July 16, 2014, Plaintiff went to the Annapolis Hand Center complaining of acute pain, numbness, and tingling in his hands. He was seen there by Dr. Thomas Dennis who concluded that Plaintiff has “traumatic carpal tunnel syndrome.” Clinical Encounter Summary of Dr. Dennis dated July 16, 2014, ECF No. 25-20. On March 27, 2015, Plaintiff went to Oxen Hill Orthopaedics complaining of pain, numbness, and tingling in both wrists and hands since June 2014 and was diagnosed with “bilateral carpal tunnel syndrome.” Report of Oxon Hill Orthopaedics dated March 27, 2015 (ECF No. 25-21). On June 8, 2015, Plaintiff was seen at the National Spine and Pain Centers, was diagnosed with moderate right-sided carpel tunnel syndrome and a surgical decompression of the right wrist was recommended. Dr. Arthur Barletta Letter dated June 8, 2015 (ECF No. 25-22). Plaintiff underwent carpel tunnel surgery on his right hand on January 24, 2017, and on his left hand on March 20, 2017.

         Plaintiff filed his original complaint in this action on May 10, 2016, and an Amended Complaint on October 27, 2016. In Count I of the Amended Complaint, Plaintiff asserts a claim under 42 U.S.C. § 1983 against the City of Annapolis and Kintop, Reese, and DeFalco in their official capacities. Plaintiff asserts that the individual defendants violated his right under the Fourth Amendment to not be subjected to the use of excessive force. Plaintiff brings a claim against the City of Annapolis under Monell v. Department of Social Services, 436 U.S. 658 (1978), asserting that this violation resulted from a policy, practice, and custom of the City of Annapolis of using excessive force when seizing suspects. Counts II through IV assert excessive force claims against Kintop, Reese, and DeFalco in their individual capacities. Counts V and VI assert claims against all defendants under Articles 24 and 26 of the Maryland Declaration of Rights, respectively, with the liability of the City of Annapolis being premised on the doctrine of respondeat superior. Count VII asserts a claim of battery against the three individual defendants and Count VIII asserts a claim of false imprisonment against those same three defendants. Defendants have moved for summary judgment as to all eight counts.

         II. LEGAL STANDARD

         Under Rule 56, the Court “shall grant summary judgment if the movant shows 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). In considering the motion, the judge's function is “not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. In ruling on a motion for summary judgment, the Court must “view the evidence in the light most favorable to . . . the nonmovant and draw all reasonable inferences in [his] favor.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002).

         III. DISCUSSION

         A. Plaintiff's Motion for Leave to File Surreply

         The Court will first address Plaintiff's motion for leave to file a surreply. Plaintiff submitted with his Opposition to Defendants' Motion for Summary Judgment motion two reports from his expert witness, William T. Gaut. ECF Nos. 25-26 and 25-27. In their Reply, Defendants argue that those expert reports should not be considered by the Court for purposes of their Motion for Summary Judgment because the reports were unsworn. ECF No. 26 at 5. Without conceding that Defendants' objection to the reports was meritorious, Plaintiff filed his motion for leave to file a surreply for the purpose of supporting his expert's reports with a verifying affidavit. ...


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