United States District Court, D. Maryland
LIONEL S. DORSEY, ET AL. Plaintiffs
MICHAEL SOKOLOFF, ET AL. Defendants
J. MESSITTE, UNITED STATES DISTRICT JUDGE.
S. Dorsey and Andrea R. Smoot, individually and as Personal
Representatives of the Estate of DeOntre Dorsey; Trina Swann,
as Mother and Next Friend of minor child D.S.; and Margaret
Meredith, as Mother and Next Friend of minor children D.D.,
D.D., and D.D. (collectively Plaintiffs) sue several members
of the Charles County, Maryland Sheriff's Office- Michael
Sokoloff, Troy Berry, Michael McGuigan, Rex Wayne Coffey
(retired)-as well as the State of Maryland and the Board of
County Commissioners of Charles County, Maryland
(collectively Defendants). Plaintiffs allege numerous federal and
state civil rights violations stemming from an incident that
occurred on March 1, 2015, when DeOntre Dorsey
(“Dorsey” or “the Decedent”), while
having a grand mal seizure on the ground outside his vehicle
on a public parkway, received several electric shocks from a
Taser operated by Defendant Sokoloff, went into cardiac
arrest, lapsed into a coma, and died nine months later on
November 29, 2015. For the reasons that follow:
Motions to Dismiss (ECF Nos. 71, 91) are DENIED. His Motions
to Bifurcate (ECF Nos. 71, 91) are GRANTED. Specifically,
Coffey's Motions to Bifurcate Counts 7 and 8 in
Plaintiffs' Second Amended Complaint are GRANTED and
STAYED pending resolution of the claims against the
Motion to Disqualify Plaintiffs' Counsel (ECF No. 80) is
Motion for Summary Judgment (ECF No. 88) is DENIED.
State of Maryland's Motion for Summary Judgment (ECF No.
105) is DENIED.
Factual and Procedural Background
to the Second Amended Complaint (ECF No. 85):
driving on St. Charles Parkway in White Plains, Charles
County, Maryland on the afternoon of March 1, 2015, Dorsey
suffered a grand mal seizure that caused him to lose control
of his vehicle, which came to a stop on the center median of
the Parkway. ECF No. 85 (“Second Amended
Complaint”) at ¶¶ 47-48. A bystander placed a
call to 911 and reported that Dorsey, still in his vehicle,
appeared to be “‘having some type of seizure[
]'” and that he was “‘jumping all over
the place'” and “‘shaking and moving
his arms and everything.'” Id. at ¶
49. When paramedics arrived shortly thereafter, Dorsey was
still inside his vehicle, “flailing” and
“kicking his legs uncontrollably.” Id.
at ¶ 51. Paramedics attempted to smash the windows of
Dorsey's vehicle to administer treatment but eventually
were able to unlock the vehicle's doors. Id. at
¶ 52. Dorsey then fell out of his vehicle on to the
ground and continued seizing uncontrollably. Id. at
¶¶ 53, 55.
point, Corporal Sokoloff, a deputy in the Charles County
Sheriff's Office, arrived on the scene. Id. at
¶ 56. Sokoloff ordered Dorsey to place his hands behind
his back, but Dorsey did not respond to Sokoloff's
instruction and continued to spasm uncontrollably.
Id. at ¶¶ 57-59. Dorsey then appeared to
regain some semblance of control, rolling on to his hands and
knees and attempting to stand up. Id. at ¶ 60.
But as Dorsey attempted to stand, Sokoloff deployed his
Taser, firing a projectile electric cartridge into Dorsey.
Id. at ¶ 62. On receiving the initial electric
shock, Dorsey fell to the ground and became entangled in the
Taser wires. Id. at ¶ 63. Sokoloff then, he
claims, unintentionally discharged a second Taser cartridge,
with only one probe from the second cartridge connecting with
Dorsey's body. Id. at ¶ 65. Sokoloff then
delivered at least five more electric shocks to Dorsey's
body while continuing to command him to cease flailing.
Id. at ¶ 66.
administering the electric shocks, Sokoloff placed Dorsey in
handcuffs by sitting on him and using his legs to prevent him
from standing. Id. at ¶ 69. Other deputies from
the Charles County Sheriff's Office arrived, and one
placed leg shackles on Dorsey. Id. at ¶ 70. At
that point, paramedics on the scene noticed that Dorsey had
stopped breathing and determined that he had gone into
cardiac arrest. Id. at ¶ 71. Dorsey was taken
to the hospital for further medical care, but never regained
consciousness. Id. at ¶ 74. On November 29,
2015, while still in the hospital, Dorsey died. Id.
at ¶ 74.
Coffey's Motions to Dismiss And/Or
filed a Motion to Dismiss and/or to Bifurcate Plaintiffs'
First Amended Complaint on July 12, 2018 (ECF No. 71), and,
after Plaintiffs filed their Second Amended Complaint, Coffey
refiled the Motion on August 20, 2018 (ECF No. 91). The two
Motions are functionally equivalent in that they both adopt
and incorporate the same arguments that the other Defendants
made in their Motions to Dismiss and/or Bifurcate. See ECF
No. 71-1 at 1 (“Defendant Coffey adopts and
incorporates by reference the motions to dismiss and/or
bifurcate, and supporting memoranda, filed on behalf of the
Board of Charles County Commissioners (ECF 45 and 57),
Michael Sokoloff (ECF 46 and 58), and Michael McGuigan and
Sheriff Troy Berry (ECF 37 and 62).”).
16, 2018, the Court held a hearing on the Motions to Dismiss
and/or Bifurcate filed by all Defendants other than Coffey
but declined to hear argument on Coffey's Motion because
it was filed too close in time to the hearing date and
therefore was not ripe for review. For the reasons stated on
the record during the hearing, the Court denied the Motions
to Dismiss of all other Defendants and granted all Motions to
Bifurcate. See ECF Nos. 75, 87. Specifically, the Court
bifurcated the federal and state unlawful pattern and
practice claims in Plaintiffs' First Amended Complaint
(i.e., Counts VII and VIII) and stayed them pending
resolution of the claims against the individuals in the case.
See ECF No. 75. In their Second Amended Complaint (ECF No.
85), Plaintiffs have retained the bifurcated unlawful pattern
and practice claims from the First Amended Complaint, merely
renumbering them as Counts 7 and 8.
Coffey has done no more than adopt the arguments made by the
other Defendants in their Motions to Dismiss, which the Court
has already denied, the Court incorporates by reference the
reasons for denial it stated on the record at the hearing
held on July 16, 2018, and will therefore DENY Coffey's
Motions to Dismiss (ECF Nos. 71, 91) for the same reasons. It
will GRANT Coffey's Motions to Bifurcate Counts 7 and 8
in Plaintiffs' Second Amended Complaint (ECF Nos. 71, 91)
and stay any decision with respect to them pending resolution
of the claims against the individuals in the case.
Berry's Motion to Disqualify
Berry asks the Court to disqualify Plaintiffs' counsel
Timothy Maloney, Matthew Bryant, and their law firm Joseph,
Greenwood & Laake, P.A (“JGL”) based on an
alleged conflict of interest, detailed as follows. In 2012,
Maloney, Bryant, and JGL represented Berry in an action
against one of his co-Defendants in the present case, former
Sheriff Coffey. In that action, Berry alleged that while he
served as Commander of the Office of Professional
Responsibility in the Charles County Sheriff's Office,
Coffey obstructed investigations and disciplinary proceedings
affecting officers who were Coffey's political allies,
and in retaliation for Berry conducting those investigations,
Coffey demoted Berry. Berry alleges that the present case is
substantially related to the 2012 action, and because there
is a substantial risk that Plaintiffs' counsel had access
to confidential information about Berry from the previous
case, that could materially advance the Plaintiffs'
interests vis-à-vis Berry in the present case, there
is a conflict of interest that should disqualify
Plaintiffs' counsel. Messrs. Maloney and Bryant and JGL
for disqualification of counsel are disfavored and are
“permitted only where the conflict is such as clearly
to call into question the fair and efficient administration
of justice.” Gross v. SES Americom, Inc., 307
F.Supp.2d 719, 723 (D. Md. 2004) (citing Maryland Rule
19-301.7) (internal quotation marks omitted). Accordingly, a
party moving for disqualification based on an attorney's
alleged conflict of interest derived from representation in a
prior matter must demonstrate (1) the existence of a previous
attorney-client relationship between the challenged lawyer or
law firm and the objecting former client, and (2) that the
matter at issue in the present representation is “the
same or substantially related” to the matter at issue
in the previous representation. Victors v.
Kronmiller, 553 F.Supp.2d 533, 551-52 (D. Md. 2008).
are ‘substantially related' . . . if they involve
the same transaction or legal dispute or if there otherwise
is a substantial risk that confidential factual information
as would normally have been obtained in the prior
representation would materially advance the client's
position in the subsequent matter.” Maryland Rule
19-301.9, cmt. 3. “The focus of the
substantial-relationship inquiry is ‘the factual nexus
between the earlier representation and the present, adverse
representation.'” Pa. Nat. Mut. Cas. Ins. Co.
v. Perlberg, 819 F.Supp.2d 449, 455 (D. Md. 2011)
(quoting Blumenthal Power Co., Inc. v. Browning-Ferris,
Inc., 903 F.Supp. 901, 902 (D.Md.1995)).
“‘Substantially related' has been interpreted
to mean ‘identical' or ‘essentially the
same,' or ‘factually related.'”
Id. (quoting Nichols Agency, Inc. v. Enchanted
Child Care, Inc., 537 F.Supp. 774, 779 (D. Md. 2008)).
matter in which disqualification is sought does not need to
“involve the same operative facts” as the prior
matter in order to be “substantially related, ”
but there still must be “a sufficient similarity of
issue” between the two matters. Id. (citing
Buckley v. Airshield Corp., 908 F.Supp. 299, 304 (D.
Md. 1995) (internal quotation marks omitted)). In determining
the relationship between a current and prior matter,
“[t]he court's primary concern is whether there is
a reasonable probability that confidences were disclosed in
the prior representation which could be used against the
former client in the current litigation.” Id.
(quoting Stratagene v. Invitrogen Corp., 225
F.Supp.2d 608, 611 (D. Md. 2002) (internal citation and
quotation marks omitted)). “[K]nowledge of specific
facts gained in a prior representation that are relevant to
the matter in question ordinarily will preclude such a
representation.” Maryland Rule 19-301.9, cmt. 3.
parties do not dispute that Plaintiffs' counsel
previously had an attorney-client relationship with Berry in
2012. See ECF No. 93-1 at 7. Accordingly, their
disqualification depends on whether the present case and the
2012 matter involving Sheriff Berry are “substantially
related.” Since the present case and the 2012 matter do
not involve the same “transaction or legal dispute,
” they may still be deemed “substantially
related, ” hence disqualifying, if there is a
“sufficient similarity of issue” between the two
matters and if there is a “substantial risk” that
confidential information counsel obtained from Berry in the
2012 matter would “materially advance”
as movant, Berry admits that the issues in the 2012 matter
“are obviously not identical to the issues in
Dorsey v. Sokoloff, ” ECF No. 80-1 at 9, i.e., the
present case, he argues that the two matters are
“substantially related” because they both involve
questions of how internal investigations of Sheriff's
deputies are conducted. Berry claims that confidential
information he provided Plaintiffs' counsel in 2012 about
the operations of the Office of Professional Responsibility
could be ...