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Dorsey v. Sokoloff

United States District Court, D. Maryland

May 17, 2019

LIONEL S. DORSEY, ET AL. Plaintiffs
v.
MICHAEL SOKOLOFF, ET AL. Defendants

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE.

         Lionel 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).[1] 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:

         Coffey's 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 individual officers.

         Berry's Motion to Disqualify Plaintiffs' Counsel (ECF No. 80) is DENIED.

         Sokoloff's Motion for Summary Judgment (ECF No. 88) is DENIED.

         The State of Maryland's Motion for Summary Judgment (ECF No. 105) is DENIED.

         I. Factual and Procedural Background

         According to the Second Amended Complaint (ECF No. 85):

         While 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.

         At that 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.

         After 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.

         II. Coffey's Motions to Dismiss And/Or Bifurcate

         Coffey 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).”).

         On July 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.

         Because 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.

         III. Berry's Motion to Disqualify Counsel

         Sheriff 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 sharply disagree.

         Motions 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).

         “Matters 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)).

         The 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.

         The 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” Plaintiffs' case.

         Although, 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 ...


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