United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE
Estate of Kendall Arnaz Green brings this wrongful death and
survival action against Defendant Sergeant Matthew Pinkerton
for the fatal shooting of Green by Pinkerton on September 15.
2013. The action was originally filed in the Circuit Court
for Prince George's County, and Defendant removed the
action to this Court, invoking the Court's diversity
jurisdiction. Presently pending before the Court is
Defendant's Motion to Stay. ECF No. 20. and
Defendant's Motion for Summary Judgment. ECF No. 26. No
hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). For the following reasons. Defendant's Motion for
Summary Judgment is granted, and the Motion to Stay is denied
Arnaz Green, an acquaintance of the Pinkertons. was engaged
in an extramarital relationship with Jessica Pinkerton.
Matthew Pinkerton"s wife. See ECF No. 26-1
¶¶ 1-10: see also ECF No. 2 ¶ 5.
During the relationship and their interactions together.
Green was violent towards Jessica, striking, throwing, and
pushing her. ECF No. 26-1 ¶¶ 102-106. Jessica also
learned about Green's violent tendencies in other
respects - that Green became violent when he drank, that he
had previously assaulted his father, that Green's mother
had kicked him out of her home because of his aggressive
behavior, and that Green had boasted about other people he
had assaulted. See Id. ¶¶ 11-18. 107-110.
Green allegedly stood at a height of six feet, six inches
tall. See ECF No. 26 at 5.
early morning hours of September 15. 2013. Green was texting
Jessica on her cell phone. See ECF No. 26-1
¶¶ 33-40. Green was intoxicated, Id.
¶ 19. At 1:23 a.m.. Green texted Jessica. "Ill be
at your house waiting." Id. ¶ 40. Jessica
responded, "no" and "don't so [sic]
that." Id. ¶¶ 40-43. Green continued
to text Jessica, stating. "Pick up da phone." and
"Ok you not going to pick up." Id.
¶¶ 46-49. Jessica did not respond to Green's
messages. At 1:48 a.m.. Green then stated, "if you pick
up 1 wont go the door if you don't I'm doing more
[than | knocking." Id. ¶¶ 51-53.
Shortly thereafter. Green came to the Pinkerton house at 424
Arbor Drive, Glen Burnie. Maryland. Id. ¶¶
19-21, 26-66. No one had invited Green to come to the house.
Id. ¶ 67.
Green arrived at the house, he spoke briefly with Matthew
Pinkerton. ECF No. 26-I ¶ 120. Pinkerton shut the door
with Green still outside the house, and did not reopen the
door for Green. Id. ¶ 120-121. Green then
forced his way into the house, cracking the front door as a
result. Id. ¶¶ 127-131. One or more
persons inside the house repeatedly directed Green to leave.
Id. ¶¶ 68-72. Once inside the house. Green
began cursing at Matthew Pinkerton. acting aggressively, and
using racial slurs towards Pinkerton. Id.
¶¶ 80-84. Green started to approach Pinkerton.
Id. ¶ 85. Pinkerton told Green to stop.
Id. ¶c 85-87. Green continued to
approach Pinkerton. allegedly even after Pinkerton brandished
a handgun in front of Green. See ECF No. 2
¶¶ 8-9. In fact. Plaintiff alleges that Green told
Pinkerton he "did not have it in him" to shoot
Green. See Id. ¶ 9. Pinkerton backed away from
Green, and continued to back away as Green approached
Pinkerton. ECF No. 26-1 ¶¶ 88-90. Pinkerton then
shot Green twice in the chest with the handgun, fatally
wounding Green. Id. ¶¶ 91-95. Both shots
were fired from within the home, and Green's blood and
shell casings were found inside the home. Id.
¶¶ 92-99. After being shot. Green staggered onto
the porch. Id. ¶ 100. Matthew Pinkerton called
911 immediately after the shooting. Id. ¶¶
112-113. Green was pronounced dead on the scene. 'See
Id. ¶¶ 115-118.
State of Maryland pursued criminal charges against Matthew
Pinkerton in October of 2013. See ECF Nos.
26-2-26-3: State v. Pinkerton, 02-K-13-I930 (Cir.
Ct. Anne Arundel Cty.). A jury trial was held. See
Id. At the conclusion of the State's case. Judge
Mulford of the Circuit Court for Anne Arundel County granted
Defendant's Motion for Judgment of Acquittal, acquitting
Pinkerton of all charges. See ECF No. 26-l ¶
138; ECF No. 26-3 at 7.
estate, by and through Green's mother. Felicia Letitia
Carroll, filed this Complaint in the Circuit Court for Prince
George's County. Defendant removed the action to this
Court on August 17, 2016. Plaintiff brings a survival action
and wrongful death action, alleging claims of negligence and
battery. See Md. Code. Cts. & Jud. Proc. §
3-902: Md. Code. Est. & Trusts § 7-401 (y).
Plaintiff seeks damages in excess of $2 million dollars.
December 22, 2016. Defendant moved for a stay of proceedings
because Pinkerton was to be deployed for military service on
or about January 9. 2017. and then "for a period of no
less than 6 months." ECF No. 20 ¶¶ 4-5.
Plaintiffs opposed the Motion to Stay. ECF No. 21. On March
17. 2017. counsel for Defendant indicated that "Sergeant
Pinkerton"s present deployment is scheduled to conclude,
subject to change in July of 2017." ECF No. 25 at 1. The
Court has received no further information regarding
Pinkerton"s availability. In this status report, counsel
for Defendant also indicated that he had propounded written
discovery to the Plaintiffs, which had not been returned.
Id. Defendant filed his Motion for Summary Judgment
on April 17. 2017. ECF No. 26. Plaintiffs have not responded
to the Motion, and the time for doing so has passed. On June
23, 2017. the Court issued a paperless Order, stating that
while the Motion for Summary Judgment was ripe for
resolution, because Plaintiffs may have incorrectly believed
the case had been stayed, the Court would allow the
Plaintiffs an additional seven days to respond to the
dispositive motion. ECF No. 27. To dale. Plaintiffs have not
done so. Now, more than forty Five days have elapsed, and the
Court is ready to render its Decision. Upon consideration of
the uncontroverted facts set forth in Defendant's Motion
for Summary Judgment, and related authorities, the Motion is
now granted. The Motion to Stay is denied as moot.
STANDARD OF REVIEW
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). A material fact is one that "might
affect the outcome of the suit under the governing law."
Anderson v. Liberty Lobby. Inc., 477 U.S. 242. 248
(1986). A genuine issue over a material fact exists "if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. In
undertaking this inquiry, the Court must consider the facts
and all reasonable inferences in the light most favorable to
the nonmoving party. Scott v. Harris, 550 U.S. 372.
378 (2007). But this Court must also abide by its affirmative
obligation to prevent factually unsupported claims and
defenses from going to trial. Drewitt v. Pratt, 999
F.2d 774. 778-79 (4th Cir. 1993).
burden is on the moving party to show "that there is no
genuine issue as to any material fact. However, no genuine
issue of material fact exists if the nonmoving party fails to
make a sufficient showing on an essential element of his or
her case as to which he or she would have the burden of
proof." Benton v. Prince George's Cmty.
Coll., No. CIV.A. DKC 12-1 577. 2013 WL 4501324. at *3
(D. Md. Aug. 21. 2013) (citing Celotex Corp. v.
Catrett, 477 U.S. 317. 322-23 (1986)). Thus, upon a
motion for summary judgment, the opposing party "may not
rest upon . .. mere allegations or denials." but rather,
"must set forth specific facts showing that there is a
genuine issue for trial. If the [opposing] party does not so
respond, summary judgment, if appropriate, shall be entered
against the [opposing] party." Tyler v. Prince
George's Cly. Maryland, 16 F.App'x 191. 192 (4th
Cir. 2001) (citing Fed.R.Civ.P. 56(e)).
note, however, if the nonmoving party does not respond to the
summary judgment motion, the failure to respond, in and of
itself, "does not fulfill the burdens imposed on moving
parties by Rule 56. Section (c) of Rule 56 requires that the
moving party establish, in addition to the absence of a
dispute over any material fact, that it is 'entitled to a
judgment as a matter of law."' Custer v. Pan Am.
Life Ins. Co.,12 F.3d 410. 416 (4th Cir. 1993) (citing
Fed.R.Civ.P. 56(c)). Although the nonmoving party's
failure to respond "may leave uncontroverted those facts
established by the motion, the moving party must still show
that the uncontroverted Tacts entitle the party to "a
judgment as a matter of law.'" Id. Thus,
the Court ...