Hunt v. Johnston

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge

         This case^[1] arises from allegations that Baltimore City police officers unlawfully stopped Plaintiff Tavon Hunt ("Hunt" or "Plaintiff) on August 16, 2015, unlawfully searched his vehicle, and used excessive force against him. Plaintiff filed a Complaint on November 22, 2017 against the City of Baltimore, Police Officer Jeremy Johnston ("Johnston"), John Doe Officers 1-5, and John Doe Supervisors 1-10, alleging violations of his constitutional rights and making a claim for money damages under 42 U.S.C. §§ 1983 and 1988. (Compl., ECF No. 1.) Upon notice that the Complaint was filed incorrecdy, Plaintiff filed a First Amended Complaint (ECF No. 4) on November 29, 2017, changing the unnamed Defendants in the caption to John Doe Officers 1-25 and John Doe Supervisors 1-20, although not adding or changing the allegations against any of the Defendants. The City of Baltimore was voluntarily dismissed from this action on February 12, 2018. (ECF No. 10.)

         On April 13, 2018, this Court granted in part Defendant Johnston's dismissal motion, allowing Plain tiff the opportunity to file an amended complaint, by May 14, 2018, that included a statement of what was specifically being claimed against Defendant Johnston. (ECF No. 14.) On May 15, 2018, Johnston filed a renewed dismissal motion in light of Plaintiff s failure to file an amended complaint within the allowed timeframe. (ECF No. 15.) That same day, Plaintiffs counsel responded with a proposed Second Amended Complaint seeking the Court's indulgence due to an unforeseen error on counsel's part that prevented its timely filing. (ECF No. 16.) Johnston objected, but after a telephone conference with Judge Garbis of this Court, the parties agreed to proceed on the Second Amended Complaint. (ECF No. 18.) This two-count complaint makes allegations against only Johnston and John Doe Officers 1-2: (1) an excessive force claim, and (2) an unlawful detention claim. (ECF No. 19.)

         Now pending before this Court are five motions: (1) Defendant's Motion to Deem Requests for Admission be Admitted (ECF No. 24); (2) Defendant's Motion for Partial Summary Judgment (ECF No. 25); (3) Plaintiffs Motion to Amend Scheduling Order (ECF No. 28); (4) Defendant's Second Motion for Partial Summary Judgment (ECF No. 34); and (5) Plaintiffs Motion for Leave to Amend Complaint (ECF No. 41). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018).

         For the reasons that follow, this Court shall GRANT Defendant Johnston's motions for summary judgment (ECF Nos. 25, 34) and DENY Plaintiffs Motion for Leave to Amend Complaint (ECF No. 41) because any amendment in a proposed third amended complaint would be futile. Defendant's Motion to Deem Requests for Admission be Admitted (ECF No. 24) and Plaintiffs Motion to Amend Scheduling Order (ECF No. 28) shall be DENIED AS MOOT.

         BACKGROUND

         On August 16, 2015, Hunt was driving to his mother's^[2] house with his girlfriend and a child in the vehicle. (Second Am. Compl. ¶ 10, ECF No. 19.) He was driving a 2002, Mercedes CLK 320 that had tinted windows darker than legal limits.^[3] (Dep. Tr. 36, 37, 58, ECF No. 34-1.) Hunt became aware that he was being followed by police officers. (Id. at 52-54.) When Hunt arrived at his destination, he parked and exited the vehicle and was immediately approached by the police officers, who requested his license and registration. (Id. at 52-53.) In his Second Amended Complaint, now pending before this Court, Hunt alleged that he was in the vehicle, but he complied and exited when the officers demanded he exit the vehicle. (¶ 12, ECF No. 19.)

         Hunt informed the officers that his license and registration were in the vehicle, and one of the police officers retrieved the license from the vehicle. (Dep. Tr. 54-55, ECF No. 34-1.) Hunt described the police officer as an African American with a goatee and dark complexion. (Id. at 56.) During the encounter, Hunt was given a citation for failure to display his driver's license and a repair order for his window tinting.^[4] (Id. at 60.) The same police officer frisked Hunt and searched his vehicle. (Id. at 56-57.) In his complaint, Hunt alleged that the frisking was excessively aggressive, and his genitals were groped, even though he had not resisted or displayed any threatening behavior. (Second Am. Compl. ¶¶ 14, 17, 19, ECF No. 19.) Hunt indicated that the officer told him that they had received a call about suspicious activity in the neighborhood. (Dep. Tr. 57, ECF No. 34-1.) After Hunt signed the citations, he was free to leave. (Id. at 66.) A part of the encounter was video recorded by Hunt's girlfriend on her cell phone. (Id. at 57, 64, 68-69, 71, ECF No. 34-1; ECF No. 25-1.) Hunt agrees that it is apparent from the video that the officer that frisked him and issued the citations was not the named Defendant Johnston, who is a fair-skinned Caucasian man and had no physical interaction with Hunt. (See ECF No. 25-1, ECF No. 28.)

         On November 22, 2017, Hunt filed a Complaint against the City of Baltimore, Jeremy Johnston, John Doe Officers 1-5, and John Doe Supervisors 1-10, alleging violations of 42 U.S.C. §§ 1983, 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. (ECF No. 1.) The Complaint included four causes of action: (1) Count I -Violation of Civil Rights under 42 U.S.C. § 1983 (Municipal Liability) against the City of Baltimore; (2) Count II - Violation of Civil Rights under 42 U.S.C. § 1983 (Fourth and Fourteenth Amendments - Supervisory Violations) against the Defendant Supervisors; (3) Count III - Violation of Civil Rights under 42 U.S.C. § 1983 (Fourth and Fourteenth Amendments - Excessive Force) against the Individual Defendant Officers; and (4) Count IV - Violation of Civil Rights under 42 U.S.C. § 1983 (Fourth Amendment - Failure to Intervene) against the Individual Defendant Officers. Hunt's First Amended Complaint, filed on November 29, 2017 in response to a correction notice, was substantively the same, although he modified the unnamed Defendants to John Doe Officers 1-25 and John Doe Supervisors 1-20. (ECF No. 4.)

         On February 2, 2018, the City of Baltimore filed a motion seeking to dismiss the claim against it for failure to state a claim upon which relief could be granted. (ECF No. 7.) In response, Hunt voluntarily dismissed the City of Baltimore as a Defendant. (ECF Nos. 10, 11.)

         On February 2, 2018, Defendant Johnston also filed a motion seeking dismissal, or in the alternative for more definite statement, because there were no facts alleged to link him with the Complaint's claims. (ECF No. 9.) On April 17, 2018, Judge Garbis of this Court granted Johnston's dismissal motion in part (ECF No. 14.) Under the circumstances, this Court found it appropriate to require Hunt to file an amended complaint that stated more clearly what was being claimed against Johnston. (Id.) This Court ordered Hunt to file the amended complaint by May 14, 2018 or all claims against Johnston would be dismissed with prejudice. (Id.) After Hunt failed to meet the ordered deadline, on May 15, 2018, Johnston filed a renewed dismissal motion seeking dismissal with prejudice. (ECF No. 15.) An immediate response from Hunt's counsel requesting this Court's consideration, due to an unforeseen error on counsel's part, led to a telephone conference and this Court's Order (ECF No. 18)^[5] on June 27, 2018 accepting the proposed Second Amended Complaint for filing and dismissing Johnston's renewed dismissal motion. The Second Amended Complaint, the operative Complaint, is filed against Johnston and John Doe Officers 1-2 and contains two causes of actions: (1) Count I - Violation of Civil Rights under 42 U.S.C. § 1983 (Fourth and Fourteenth Amendments - Excessive Force); and (2) Count II - Violation of Civil Rights under 42 U.S.C. § 1983 (Fourth Amendment - Unlawful Detention). (ECF No. 19.)

         On July 31, 2019, Johnston answered the Second Amended Complaint and a Scheduling Order was issued. (ECF Nos. 20, 21.) The deadline for requests for modification of the initial Scheduling Order was set for August 14, 2018 and moving for joinder or additional parties and amendment of pleadings was set for September 14, 2018. (ECF No. 21.) The discovery deadline was set for December 13, 2018. (Id.)

         On September 25, 2018, Johnston filed Defendant's Motion to Deem Requests for Admission be Admitted (ECF No. 24) due to Hunt's failure to timely respond to Defendant's First Requests for Admissions, which had been served on August 8, 2018. The next day, September 26, 2018, Johnston filed a motion for partial summary judgment, seeking dismissal of the excessive force claim against him on the basis that the video evidence clearly revealed he had not participated in any frisk. (ECF No. 25.) Although Hunt had been informed of the mistaken identity issue by emails on July 25 and 31, he failed to voluntarily dismiss the claim. (Id. at 5.)

         Hunt did not respond to either of Johnston's motions until October 10, 2018, at which time he also filed a motion seeking to amend the scheduling order. (ECF No. 28.) Hunt contends that his counsel asked Defendant's counsel to identify the other officers in the video so that they could be properly named in the complaint, but the names were not provided until September 25, 2018, which was eleven days after the Scheduling Order deadline for amendment of pleadings. (Id. at 1.)

         On October 15, 2018, Defendant Johnston filed a second motion for summary judgment, this time seeking dismissal of the unlawful detention claim because it has no basis in fact or law as evidenced by Hunt's deposition testimony. (ECF No. 34 at 1.) Finally, on January 11, 2019, Hunt filed a motion seeking to file a third amended complaint. (ECF No. 41.) In his proposed third amended complaint, Hunt seeks to replace the unnamed officers ...