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Burgess v. Baltimore Police Department

United States District Court, D. Maryland

October 31, 2017




         Plaintiff Sabein Burgess (“Burgess” or “Plaintiff”) has brought federal and state claims against the Baltimore Police Department (“BPD”), individual police officers[1], 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).

         Currently 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.

         For the 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.


         Plaintiff 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).

         Defendants 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.)

         On 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.)

         By 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.)

         Following 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).

         On 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.


         In 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).

         I. Individual Defendants

         Plaintiff's 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 27:15)[2].
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 186:8).
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.)

         II. Michelle Dyson's Homicide

         Turning 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).

         According 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 85:21).

         Mr. 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.)

         Mr. 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).

         Mr. 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.)

         Burgess 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.)

         Mr. 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.)

         III. Initial Law Enforcement Response

         At 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).

         A crime 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).

         Defendant 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 bolted. (Id.).

         Defendant 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.

         Three 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).

         Mr. 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).

         According to Plaintiff, the children were transported to a police station[3] 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.)

         Defendants 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.)

         IV. Pretrial Investigation

         Detective 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).

         On 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).

         On 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).

         In 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.”[4] (Id.)

         Early 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).

         Mr. 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 238:2).

         The 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.

         V. Mr. Burgess' Trial

         At 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 1364).

         While incarcerated, Mr. Burgess was sentenced to five years for rioting.[5] (Defs. Ex. 15 at 292:8 to 293:3; Defs. Ex. 73 at Individual Defendants 4022).

         VI. Post-Conviction Investigations

         On 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.)

         A 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).

         As part 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.)

         Beginning 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).

         On May 25, 1999, Howard Rice was shot to death. (Defs. Ex. 88 at FBI015 to 016).

         On 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).

         In 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).

         On 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).

         In May 2012, Mr. Dorsey executed an affidavit prepared by Mr. Burgess's attorneys, now claiming that he and Howard Rice together (and not Mr. ...

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