United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
Sabein Burgess (“Burgess” or
“Plaintiff”) has brought federal and state claims
against the Baltimore Police Department (“BPD”),
individual police officers, and a lab technician for conduct
resulting in his 19-year incarceration for the murder of
Michelle Dyson on October 5, 1994. (ECF Nos. 1 and 141.)
Following this Court's Order on March 1, 2016,
Plaintiff's remaining claims include Counts I (“42
U.S.C. § 1983 - Due Process”), II (“42
U.S.C. § 1983 - Malicious Prosecution”), III
(“42 U.S.C. § 1983 - Failure to Intervene”),
VI (“Malicious Prosecution”), VII (“Abuse
of Process”), VIII (“Intentional Infliction of
Emotional Distress”), and X (“Article 24 of the
Maryland Declaration of Rights”). (ECF Nos. 55 and 56).
pending before this Court are three related Motions for
Summary Judgment by (1) Defendants Goldstein, Ritz, Purtell,
Weese, Lehmann, Patton, and Neverdon (ECF No. 179), (2)
Defendant Van Gelder (ECF No. 183), and (3) by Defendants
Skinner, Boyd, Miles, and Palmere (ECF No. 189). The
parties' submissions have been reviewed, and the Court
held a motions hearing on October 26, 2017.
reasons stated below, the Original Defendants' Motion for
Summary Judgment (ECF No. 179) is GRANTED IN PART and DENIED
IN PART, Defendant Van Gelder's Motion for Summary
Judgment (ECF No. 183) is GRANTED, and Added Defendants'
Motion for Summary Judgment (ECF No. 189) is GRANTED IN PART
and DENIED IN PART. Specifically, Plaintiff's
Brady-based claims (under Counts I and X) will
proceed against Defendants Weese, Miles, Boyd, Palmere,
Goldstein, and Lehmann. Plaintiff's fabrication claims
(under Counts I and X) will proceed against Defendants Weese
and Goldstein. Plaintiff's post-conviction due process
claims (under Counts I and X) will proceed against Defendants
Patton, Neverdon, and Goldstein. Plaintiff's malicious
prosecution claims (Counts II and VI) will proceed against
Defendants Weese and Goldstein. Plaintiff's failure to
intervene claim (Count III) will proceed against Defendants
Weese, Miles, Boyd, Palmere, Goldstein, and Lehmann.
Plaintiff's intentional infliction of emotional distress
claim (Count VIII) will proceed against Defendants Weese,
Miles, Boyd, Palmere, Goldstein, Lehmann, Patton, and
Neverdon. Count VII (abuse of process) is DISMISSED. Summary
Judgment shall be ENTERED in favor of Defendants Purtell,
Ritz, Van Gelder, and Skinner.
initially filed the present action against Defendants Mayor
and City Council of Baltimore, the Baltimore Police
Department, the Officer Defendants, and Van Gelder, alleging
various violations of his federal and state civil rights.
Under the auspices of 42 U.S.C. § 1983, he asserts
claims of violation of due process (Count I), malicious
prosecution (Count II), failure to intervene (Count III),
conspiracy to deprive constitutional rights (Count IV), and
unconstitutional practice or policy, as prohibited by
Monell v. Dep't of Social Servs. of City of New
York, 436 U.S. 658 (1978) (Count V). Plaintiff's
state law claims include malicious prosecution (Count VI),
abuse of process (Count VII), intentional infliction of
emotional distress (Count VIII), civil conspiracy (Count IX),
4 violation of Article 24 of the Maryland Constitution, Md.
Const. Declaration of Rights, Art. 24 (Count X), and
indemnification (Count XI).
moved to dismiss all counts, and by Memorandum Opinion and
Order dated March 1, 2016, this Court ruled that Counts I,
II, III, VI, VII, VIII, and X would proceed against the
Officer Defendants and Van Gelder, while Counts IV, V, IX,
and XI were dismissed; Count V would proceed against the
Baltimore Police Department, while Counts I-IV and VI-XI were
dismissed; and all counts against the Mayor and City Council
of Baltimore were dismissed with prejudice. (ECF No. 55.)
March 23, 2016, the Court granted the BPD's Motion to
Bifurcate and Stay Discovery related to Plaintiff's
Monell claim (Count V) pursuant to Fed.R.Civ.P.
42(b) and Marryshow v. Town of Bladensburg, 139
F.R.D. 318, 319-20 (D. Md. 1991). (ECF No. 68.)
subsequent order, this Court granted Plaintiff leave to amend
his Complaint to name additional Defendants. (ECF No. 140.)
Plaintiff filed his Amended Complaint on January 23, 2017,
naming Kelly Miles, John Boyd, John Skinner, and Dean Palmere
(together, “Added Defendants”) for the first
time. (ECF No. 141-1.)
the close of discovery, the Original Officer Defendants (ECF
No. 179-180), Van Gelder (ECF No. 183), and the Added
Officers (ECF No. 189) filed motions for summary judgment.
Following a status teleconference, this Court permitted
Plaintiff to supplement his Response (ECF No. 195-1) with the
declaration of Rakim Muhammad. (ECF No. 204.) The Original
Defendants filed a Consolidated Reply (ECF No. 215), and the
Added Defendants filed an Abbreviated Reply (ECF No. 307).
October 26, 2017, the Court held a hearing regarding the
Defendants' pending motions for summary judgment. At that
hearing, the parties clarified and narrowed their
contentions, as discussed below.
ruling on a Motion for Summary Judgment, this Court considers
the facts and draws all reasonable inferences in the light
most favorable to the nonmoving party. Scott v.
Harris, 550 U.S. 372, 378 (2007); Hardwick ex rel.
Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013).
claims stem from Defendants' conduct throughout the
investigation, both pretrial and post-conviction, of the
murder of Michelle Dyson on October 5, 1994. The roles of the
Defendants in the investigation were as follows:
a. Officers Weese, Miles, Boyd, Palmere, and Skinner
responded to the scene. (Defs. Ex. 3 at 73:2 to 75:1, 123:16
to 124:4; 237:4 to 238:16; Defs. Ex. 4 at 26:1 to
b. Officer Purtell was conducting an arrest half a block
away, and he filed reports of having heard gunshots.
(Defs.Ex. 5 at 112:5 to 113:20; Defs. Ex. 6; Defs. Ex. 7).
c. Detective Goldstein was the primary detective assigned to
the case. (Defs. Ex. 1 at Vol. 1, 48:13-17).
d. Detective Ritz was the secondary detective on the case.
(Defs. Mot. 54, ECF No. 179-1). Detective Ritz also
investigated an inmate, Charles Dorsey, who sought to take
responsibility for the murder in 1999. (Defs. Ex. 2 at 331:11
to 332:10 and 335:14-20).
e. Sergeant Lehmann, who supervised Detectives Goldstein and
Ritz, conducted a telephone interview of Ronald Dyson, the
father of the victim. (Defs. Ex. 8 at 153:1-9, 185:1 to
f. Mr. Van Gelder was a crime lab technician who tested and
reported on gunshot residue (“GSR”) samples that
were taken from Mr. Burgess's hands. (Defs. Ex. 9 at
164:20 to 165:7, 209:18 to 213:4).
g. Detective Patton was not assigned to the subject homicide,
but he took a phone message from a potential witness, who
happened to work at the location where Detective Patton got
his hair cut. (Defs. Ex. 12 at 46:13 to 47:17.) He also took
a statement that included information related to the Dyson
homicide from a witness in a different case, several years
later. (Defs. Ex. 10 at 56:14-15, 95:12-18; Ex. 11 at Burgess
1607 to 1610.)
h. Detective Neverdon was not assigned to the subject
homicide, but he later worked on the same case with Detective
Patton. (See Defs. Ex. 11 at Burgess 1607 to 1610;
Ex. 13 at 23:17 to 24:2.)
Michelle Dyson's Homicide
to the chronology of this case, Mr. Burgess began dating
Michelle Dyson a few months before the homicide occurred.
(Defs. Ex. 15 at 34:16 to 35:11). Mr. Burgess stayed with Ms.
Dyson at her home at 2703 Barclay Street several nights a
week (id. at 42:2-13), and he had a key to the home
(id. at 108:6-7).
to Mr. Burgess, On October 5, 1994, Mr. Burgess was watching
two videotapes with Ms. Dyson and with Mr. Burgess's
friend, Dwight “Rome” Holmes at 2703 Barclay
Street. (Defs. Ex. 15 at 161:19 to 162:17, 166:16-20, and
169:8-9). Mr. Burgess received a page from an acquaintance,
Dominique White, which Mr. Burgess understood to be a
solicitation to purchase drugs. (Id. at 84:13 to
Burgess has explained that he left 2703 Barclay in a white
Nissan Pathfinder to drive Mr. Holmes back to his house
further south on Barclay Street (id. at 94:13 to
95:1; 168:15 to 170:1; Defs. Ex. 17; Defs. Ex 18 at Responses
27 and 28) and to deliver the tapes to Mr. Burgess's
mother (Defs. Ex. 15 at 218:10-18), after which he planned to
proceed to Mr. White's home to consummate a drug deal
(id. at 170:2-12). Mr. Burgess dropped off Mr.
Holmes and talked with some friends on the street.
(Id. at 168:22 to 170:1; 272:14-22.)
Burgess returned to 2703 Barclay briefly to a videotape that
he had left behind (id. at 212:18 to 213:22), and
saw that Ms. Dyson had put her children to bed
(id.). Mr. Burgess then travelled to Mr. White's
home (id. at 415:8-18), where he met with Mr. White,
James Bagley, and a third person to complete the drug deal.
(See Id. at 84:1 to 85:12; Defs. Ex. 19 at 32:21 to
33:11). Mr. Burgess then drove to a gas station to buy gas.
(Def. Ex. 15 at 187:2-7; 210:11 to 211:7). Mr. Burgess drove
to and parked on Whitridge Avenue (just north of 2703
Barclay), so that he could stop in to call the stash house
where he kept his drugs. (Id. at 71:20 to 72:3;
96:12 to 97:12; 266:22 to 267:13, 416:2-9). As he began to
walk to 2703 Barclay, and Mr. Burgess saw the police
arresting someone whom he knew as “Jerry.”
(Id. at 98:16 to 100:4). Mr. Burgess also saw two
persons sitting on the porches of two rowhomes slightly north
of 2703 Barclay and exchanged words in passing. (Id.
at 105:11 to 108:4).
Burgess has testified that he found the door of 2703 Barclay
ajar, and that he smelled a strange odor. (Id. at
108:5 to 109:7). Mr. Burgess ran upstairs to check the
bedrooms. (Id.) Mr. Burgess saw that Ms. Dyson's
bedroom was empty, and that Ms. Dyson's four children
looked to be asleep. (Id. at 108:5 to 110:2). Mr.
Burgess then returned to the first floor and noticed the
basement door was open. (Id. at 108:19-21). Mr.
Burgess saw saw “the basement door cracked where all
the smoke was coming from, and then as [he] was getting ready
to go down there, [he saw] [Dyson's] feet.” (Pl.
Ex. 1 at 108.)
ran outside to find the police he had just seen.
(Id. at 115.) The police, however, had left, so
Burgess instead knocked on his neighbor, Wanda Austin's
door. (Id.) Burgess told Austin that
“something happened to Michelle” and asked Austin
to call 911. (Id. at 115-17.)
Burgess ran back to 2703 Barclay and went down into the
basement. (Defs. Ex. 15 at 115:6-8). Mr. Burgess cradled Ms.
Dyson until police arrived, and tried to keep her from
choking on blood that was coming out of her mouth.
(Id. at 120:8 to121:4). Mr. Burgess heard Ms. Dyson
gargling blood when he found her in the basement. (See
Id. at 123:7-17.)
Initial Law Enforcement Response
10:27 p.m., Defendant Officer Weese was dispatched to the
scene. (Defs. Ex. 29 at BPD. 2482.) Upon arrival, Officer
Weese found Mr. Burgess in the basement with Ms. Dyson's
body and with some blood on his hands. (Defs. Ex. 3 at 73:2
to 75:1; Defs. Ex. 29 at BPD 2482 and 2484; Defs. Ex 30). The
Officers handcuffed Mr. Burgess and held him in the dining
room. (Defs. Ex. 3 at 74:12-18).
scene technician took GSR samples from Mr. Burgess's
hands. (Defs. Ex. 3 at 212:2-15; Defs. Ex. 31). Mr. Burgess
claims that the sample was taken from his palms, rather than
the webbing of his hands. (Defs. Ex. 15 at 147:17 to 148:18).
Officer Dean Palmere reported that he spoke to Mr. Burgess at
the scene, and documented his discussions in a report.
(See Defs. Ex. 32). Officer Palmere's report
notes that the back kitchen door was found locked and dead
Goldstein reported to the scene at 10:45 p.m. (Defs. Ex. 33
at Burgess 3759). Goldstein testified that when he arrived,
there were three or four uniformed officers present. (Pl. Ex.
26A, Goldstein 11/9/16 Dep. at 10-11.) According to the
Defendants' testimony and the police reports, those
officers would include: Defendants Weese, Miles, Boyd,
Purtell and Palmere. (See Pl. Resp. (citing numerous
depositions and Pl. Ex. 24, CAD Report at BPD 2602-03).)
Following Detective Goldstein's arrival, Officer Weese
documented his observations in four pages of police reports.
(See Defs. Ex. 29). Defendants never found a gun at
the scene or in the immediate surroundings. Pl. Ex. 29, Boyd
Dep. at 152; Pl. Ex. 30A, Goldstein 11/1/16 Dep. at 80-81.
of Dyson's children-Brian Rainey, Tawanda Dyson, and
LaShonda Folkes- remember at least one white male uniformed
officer coming to get them. (Pl. Ex. 4, Rainey Dep. at 30-31;
Pl. Ex. 3, T. Dyson Dep. at 23-24; Pl. Ex. 5, Folkes Dep. at
22.) According to Plaintiff, the police questioned the
children at the scene about whether they had seen anything,
and specifically, whether “mom's boyfriend”
was involved. (Pl. Ex.4, Rainey Dep. at 30; Pl. Ex. 3, T.
Dyson Dep. at 25-27.) Rainey told the police that he had seen
the offenders come into the house and knew Burgess was not
one of them. (Pl. Ex. 4, Rainey Dep. at 30 (“[T]he main
thing that stuck out was they're asking was my mom's
boyfriend involved, and I told them no.”); Pl. Ex. 3,
T. Dyson Dep. at 26-27 (recalling Brian telling officers that
Burgess was not among the perpetrators).) Mr. Rainey has
testified that upon seeing the two men, he became scared and
ran up the stairs into his bedroom, after which he heard two
gunshots. (Defs. Ex. 39 at 41:8-11, 42:1-6, 42:10-2). One of
Mr. Rainey's sisters, Tawanda Dyson, has generally
corroborated his story. (See Ex. 41).
Burgess was taken to Homicide, where he waived his
Miranda rights and gave a voluntary interview to
Detectives Goldstein and Ritz. (Ex. 15 at 220:17 to 221:8 and
223:22 to 226:6; Ex. 35; Ex. 36). Mr. Burgess now admits that
he lied to Detectives Goldstein and Ritz about his
whereabouts during the murder in order to conceal that he had
been engaging in a drug deal. (Defs. Ex. 15 at 229:14 to
230:1). After one hour, Mr. Burgess invoked Miranda, and the
interview ended. (Defs. Ex. 36 at Burgess 31).
to Plaintiff, the children were transported to a police
station for an additional interview. (Pl. Ex. 4,
Rainey Dep. at 47; Pl. Ex. 3, T. Dyson Dep. at 27-28.) At the
police station, Dyson's children were again
“questioned as far as what happened.” (Pl. Ex. 4,
Rainey Dep. at 48; see also Pl. Ex. 3, T. Dyson Dep.
at 28.) According to Rainey, at first all of the children
were questioned together; then he remembers “being
separated and them asking me what did I see, and they was
asking was Sabein involved or was he the shooter, and I said
no.” Pl. Ex. 4, Rainey Dep. at 50; id. at 52.)
The officers also asked Rainey about his mom's
relationship with Burgess, and Rainey told them that he had
never seen Burgess abuse his mother. (Id. at 54.)
Rainey testified that more than one officer questioned him
and both officers were white and male. (Id. at 51.)
Finally, Dyson's children were taken by Defendant Skinner
to the Department of Social Services. (Pl. Ex. 12, Skinner
Dep. at 36, 219.)
Goldstein and Weese wrote reports describing the events of
October 5, 1994, and both reports indicated that all children
were sleeping at the time of the murder. (Pl. Ex. 27, Weese
Supplemental Report at BPD 2483; Pl. Ex. 45, Goldstein Main
Office Report at Burgess 3760.)
Goldstein examined the white Nissan Pathfinder driven by Mr.
Burgess and found that the gas needle, which Burgess claims
was broken, pointed to “E.” (Def. Ex. 26 at
Burgess 4833 to 4837). Detective Goldstein claims that he
then tapped on the gas tank and concluded the tank was empty.
(Id. at Burgess 4869 to 4871).
October 13, 1994, Defendant Sergeant Steven Lehmann
interviewed Ms. Dyson's father, Ron Dyson, who relayed
that someone known as “Little Man” had something
to do with the crime (see Defs. Ex. 46). Defendant
Lehmann's notes from the call show in part, “Child
Bryan ?Q witne[ss] ‘Get down base-ment.” (Defs.
Ex. 46). Detective Goldstein made efforts to identify who
“Little Man” was, including referencing a
nickname file from the BPD Eastern District (Defs. Ex. 48),
and running arrest summary reports on persons known as
“Little Man.” (Defs. Ex. 49).
November 2, 1994, Mr. Burgess's GSR test results came
back positive for the presence of GSR on both hands. (Defs.
Ex. 50). Defendant Daniel Van Gelder conducted the test and
completed the report, which he then sent to Detective
Goldstein. (Defs. Ex. 9 at 164:20 to 165:7, 209:18 to 213:4,
and 219:3-9). The report indicated by checkbox that:
Gunshot primer residues were found on the hand(s) of the
subject. There is a possibility that the residues were
transferred from the surface of a firearm or from an object
which lay immediately adjacent to a firearm during its
discharge. Most probably, however, the subject's hands
were immediately adjacent to a discharging firearm or were
themselves used to fire a firearm . . .
(Defs. Ex. 50).
1994, the FBI had an open case matter identified as case
“166-0” relating to ITAR-drug-related murders.
(Defs. Ex. 51). Two documents from FBI case file for Case No.
166-0 contain information relating to the murder of Ms.
Dyson. (Id.) These two FBI documents describe
information provided by a confidential informant to the FBI
and record providing that information to the Baltimore Police
Department. The documents indicate that Ms. Dyson's death
was the result of “drug related problems” (see
Defs. Ex. 51) and that she “may have blown a package of
drugs and/or a money package.” (Id.) The
document states that “[redacted] another black male and
a black female.” (Id.)
in the morning on November 9, 1994, Detective Goldstein
submitted an Application for Statement of Charges against Mr.
Burgess. (Defs. Ex. 37). The bases were: (1) that Mr. Burgess
had given conflicting accounts of where he was during the
time that Ms. Dyson had been killed; (2) that there was not
enough time for Burgess to have completed all of the tasks
that he claimed before discovering Ms. Dyson; (3) that Mr.
Burgess had told the police that he did not enter 2703
Barclay before running to Wanda Austin and therefore could
not have known, as Wanda Austin reported that Mr. Burgess
told her, that Ms. Dyson had been shot; and (4) the presence
of GSR on both of his hands. (Id.) The Commissioner
issued a warrant for Mr. Burgess's arrest. (Defs. Ex.
53). Mr. Burgess was arrested that day. (Ex. 54). Mr. Burgess
again waived Miranda and gave a second statement to
the Detectives. (Defs. Ex. 15 at 245:4-14; Defs. Ex. 55: Ex.
56). Mr. Burgess said that he knew “Little Man, ”
but did not know his real name. (Id. at Burgess 51).
Detective Goldstein also asked whether Mr. Burgess knew
someone named “Kevin, ” which Mr. Burgess denied.
(Id. at Burgess 52).
Burgess engaged Gordon Tayback, now deceased, to defend him.
(Defs. Ex. 15 at 230:16-21). The pretrial prosecutor in the
criminal case was Ilene Nathan. (Defs. Ex. 27). The trial
prosecutor in the criminal case was Laura Shach (n/k/a Laura
Brokaw). (Defs. Ex. 26 at Burgess 4707; Ex. 60 at 237:14 to
State's Attorney's Office could not locate its file
for the prosecution of Mr. Burgess. (Defs. Ex. 61 at 23:16 to
24:8), but Plaintiff obtained certain files of the
prosecutor, Laura Shach, including trial preparation and
trial notes. (See Defs. Ex. 62.) Ms. Shach confirmed
that at least some of the notes were in her handwriting.
(Defs. Ex. 60 at 260:19 to 261:2.) The file contains a note
referring to “brother, ” followed by notes
reading “told mother to go to basement: - not loud- Go
down basement.” (Defs. 62 at Burgess 3795.) The parties
dispute the meaning and significance of this note.
Mr. Burgess' Trial
trial, the State called seven witnesses-including Defendants
Weese, Goldstein, and Van Gelder-and introduced documentary
evidence, including Mr. Burgess's statements to Detective
Goldstein. (See generally Defs. Ex. 26). Mr. Burgess
called no witnesses. (See Id. at Burgess 5273). The
jury found Mr. Burgess guilty on all charges. (See
Id. at Burgess 1340-41). The Circuit Court sentenced him
to life in prison plus 20 years. (See Id. at Burgess
incarcerated, Mr. Burgess was sentenced to five years for
rioting. (Defs. Ex. 15 at 292:8 to 293:3; Defs. Ex.
73 at Individual Defendants 4022).
September 2, 1995, just over two months after Mr. Burgess was
convicted, Kenneth “Guppy” Sewell, was killed in
a drug-related homicide. (Defs. Ex. 76). On September 5,
1995, Mr. Burgess wrote to Gordon Tayback to tell him that
Mr. Sewell had been killed by Howard Rice and that
“Howard Rice is one of the people who murdered my
girlfriend back in October of 94 . . . .” (Defs. Ex.
74.) Defendant Detectives Patton and Neverdon were assigned
to investigate the Sewell homicide. (See, e.g.,
Defs. Ex. 11.)
document located in the Sewell file shows includes
information from a government witness implicating Howard Rice
in the murder of Michelle Dyson. (See Defs. Ex. 75
at Burgess 8411). Several copies of the FBI document are
included in the file of the Office of the State's
Attorney for the Sewell homicide. (Defs. Ex. 79).
of the Sewell investigation, Defendants Patton and Neverdon
also conducted an interview of an inmate, Raymond Handy.
(See Ex. 11.) During that interview, Detective
Patton inquired whether Mr. Handy had heard about Rice's
being involved in a murder of “a girl on Barclay
Street.” (See Ex. 11 at Burgess 1607.) Mr.
Handy stated that he had heard that Rice was the killer, but,
during the interview, Mr. Handy revealed that Mr. Burgess was
the source of the information he was providing to the
detectives. (See Id. at 1608 to 1609.)
in late 1998 and into 1999, Charles Dorsey, a childhood
friend of Mr. Burgess, wrote letters to Mr. Burgess's
mother and attorney, claiming that Mr. Dorsey, alone, was
responsible for the death of Ms. Dyson. (Defs. Ex. 80.) Mr.
Tayback informed the State's Attorney's Office of
Dorsey's letters. (Defs. Ex. 82).
25, 1999, Howard Rice was shot to death. (Defs. Ex. 88 at
FBI015 to 016).
September 17, 1999, Detective Ritz and non-party Detective
Frank Miller went to interview Mr. Dorsey. (Defs. Ex. 83).
Detective Ritz recorded his general conclusions concerning
Mr. Dorsey in a Report. (Defs. Ex. 83).
November 2001, Mr. Tayback testified at a hearing on a
Petition for Post-conviction Relief based on ineffective
assistance of counsel stating in part that he decided not to
hire a GSR defense expert because of the volume of GSR on Mr.
Burgess's hands. (Defs. Ex. 89 at Burgess 1463 to 1465).
February 14, 2012, one of the children of Michelle
Dyson-Brian Rainey-wrote a letter that indicated that Mr.
Rainey believed Mr. Burgess to be innocent. (Defs. Ex. 38).
2012, Mr. Dorsey executed an affidavit prepared by Mr.
Burgess's attorneys, now claiming that he and Howard Rice
together (and not Mr. ...