Marcella Holloman v. Paul Markowski

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-01516-CCB. Copies to all parties and the district court/agency. [999943663]. [15-1878]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1878

MARCELLA HOLLOMAN,
Plaintiff - Appellant,
v.
PAUL MARKOWSKI; GREGORY BRAGG,
Defendants - Appellees,
and
STEPHANIE RAWLINGS-BLAKE; BERNARD “JACK” YOUNG; JAMES B.
KRAFT; BRANDON SCOTT; ROBERT CURRAN; BILL HENRY; ROCHELLE
RIKKI SPECTOR; SHARON GREEN MIDDLETON; NICK MOSBY; HELEN
HOLTON; WILLIAM “PETE” WELCH; EDWARD REISINGER; WILLIAM
COLE; CARL STOKES; WARREN BRANCH; MARY PAT CLARKE; GREGG
BERNSTEIN; ANTHONY BATTS,
Defendants.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, Chief District
Judge. (1:14-cv-01516-CCB)

Argued:

September 20, 2016

Decided:

October 7, 2016

Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

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ARGUED: Stephen Louis Braga, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant.
Frederic Nelson
Smalkin, Jr., William Rowe Phelan, Jr., BALTIMORE CITY LAW
DEPARTMENT, Baltimore, Maryland, for Appellees.
ON BRIEF:
Hardev Chhokar, Brian Remondino, Josh Robbins, Andrew Selman,
Third Year Law Students, Appellate Litigation Clinic, UNIVERSITY
OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for
Appellant.
George Nilson, City Solicitor, BALTIMORE CITY LAW
DEPARTMENT, Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marcella
stemming

Holloman

from

the

brought

fatal

this

shooting

of

42

U.S.C.

her

son

§ 1983

action

Maurice

Donald

Johnson by two officers of the Baltimore City Police Department.
Holloman asserts a municipal liability claim against the Mayor
and City Council of Baltimore, Maryland and individual liability
claims against the two officers.

The district court granted the

City’s motion to dismiss and the officers’ motion for summary
judgment.

For

the

reasons

that

follow,

we

affirm

in

all

respects.

I.
On

the

afternoon

birthday

party

Johnson,

who

for
had

of

her

May

19,

2012,

granddaughter.

previously

been

Holloman
During

diagnosed

hosted

the

with

a

party,
bipolar

disorder, came to Holloman’s house, where he also lived.
Holloman first noticed that Johnson had returned when she
heard the sound of breaking glass coming from Johnson’s upstairs
bedroom.

Johnson then broke the forty-two-inch television and

the mirror in his room.

Holloman went upstairs to ask her son

to stop, explaining that after the party ended she would take
him to the hospital to receive psychiatric treatment.

Johnson

told her that she would have to get the police to take him to

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the hospital because he would not go willingly.

Holloman and

her daughter decided to remove the children from the house.
Johnson
Holloman’s

continued

television

to
and

destroy
threw

property.

his

mattress

He
onto

smashed

the

front

lawn, where he ripped it apart.

While Johnson was outside,

Holloman

him

and

her

daughter

Holloman called 911.

locked

out

of

the

house

and

In the process of trying to re-enter the

house, Johnson kicked the front door and, announcing that he was
“coming in,” pulled the back screen door off its hinges.
At

this

point,

Officer

Paul

Markowski

shortly by Officer Gregory Bragg.
that

Johnson

had

psychiatric

destructive behavior.

arrived,

followed

Holloman told the officers

issues

and

would

not

stop

his

She asked them not to shoot him, but

suggested that they employ a Taser.
The officers opened the back door and asked Johnson to calm
down.

The

officers

attempted

to

restrain

Johnson,

at

which

point he lunged at them, pinned Officer Markowski to the ground
with his knees, and fought with him.

Officer Bragg tried, but

failed, to pull Johnson off Officer Markowski.

Holloman heard

Officer Bragg fire at least two gun shots, wounding Johnson, who
later died from his injuries.

Holloman alleges that the entire

altercation lasted at most one minute.
Holloman,
brought

this

proceeding
action

pro

se

against

the
4

before
City,

the

district

numerous

court,

municipal

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officials,

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and

the

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individual

officers.

entered judgment for all defendants.

The

district

court

This appeal followed.

II.
We first address the municipal liability claim.

“We review

de novo the grant of a motion to dismiss for failure to state a
claim.
of

In doing so, we accept as true the well-pled allegations

the

complaint

and

construe

the

facts

and

reasonable

inferences derived therefrom in the light most favorable to the
plaintiff.”
F.3d

655,

Harbourt v. PPE Casino Resorts Maryland, LLC, 820
658

(4th

Cir.

2016)

(internal

citations

omitted).

“[W]hile a plaintiff does not need to demonstrate in a complaint
that

the

right

to

relief

is

‘probable,’

the

complaint

must

advance the plaintiff’s claim ‘across the line from conceivable
to plausible.’”

Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.

2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

Because Holloman was pro se before the district court,

we construe her complaint liberally.

See Jehovah v. Clarke, 798

F.3d 169, 176 (4th Cir. 2015).
In Monell v. Dept. of Social Servs. of City of New York,
436

U.S.

658,

690-91

(1978),

the

Supreme

Court

held

that

municipalities face liability under § 1983 if a municipal policy
or custom itself causes a deprivation of constitutional rights.
Holloman alleges that the City failed to supervise and train its
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police

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officers

to

handle

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interactions

with

mentally

ill

individuals and “had a general policy, pattern and/or practice
of not disciplining police officers for their conduct, thereby
sanctioning the police officers’ actions.”
To prevail on a Monell claim, Holloman “must point to a
‘persistent and widespread practice[] of municipal officials,’
the ‘duration and frequency’ of which indicate that policymakers
(1) had actual or constructive knowledge of the conduct, and (2)
failed to correct it due to their ‘deliberate indifference.’”
Owens v. Baltimore City State’s Attorney’s Office, 767 F.3d 379,
402 (4th Cir. 2014) (quoting Spell v. McDaniel, 824 F.2d 1380,
1386-91 (4th Cir. 1987)) (alteration in Owens).
infer

both

extent

of

knowledge

and

employees’

deliberate

misconduct[,

While we can

indifference
s]poradic

or

“from

the

isolated

violations of rights will not give rise to Monell liability;
only widespread or flagrant violations will.”

Id. at 402-03

(internal citations and quotations omitted).
The

only

facts

Holloman

has

pled

in

support

of

these

allegations were four specific instances of city police officers
killing in the course of their duties and an August 22, 2012
Baltimore Sun article reporting that, year-to-date, city police
officers had shot ten individuals (eight fatally), “[a] number
of [whom] had been diagnosed with some sort of mental illness.”

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Importantly,

Holloman

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does

not

allege

any

facts

showing

that any of these incidents involved constitutional violations,
let alone that the City improperly failed to discipline or train
any

officers.

Cf.

Owens,

767

F.3d

at

403

(holding

that

a

plaintiff alleging “the existence of ‘reported and unreported
cases’ and numerous ‘successful motions’” regarding the improper
withholding

of

exculpatory

evidence

stated

a

Monell

claim).

Holloman’s allegations are too speculative to state a plausible
claim for municipal liability.

We thus affirm without reaching

the City’s argument that the police department is a state, not
city, agency.

III.
We next consider the claims against the two officers, whom
Holloman alleges used excessive force in violation of the Fourth
Amendment.

We

review

the

judgment to them de novo.

district

court’s

claims

“under

the

of

summary

PBM Prods., LLC v. Mead Johnson &

Co., 639 F.3d 111, 119 (4th Cir. 2011).
force

grant

Fourth

We analyze excessive

Amendment’s

‘objective

reasonableness’ standard,” Graham v. Connor, 490 U.S. 386, 388
(1989), and evaluate an officer’s particular use of force “from
the perspective of a reasonable officer on the scene,” id. at
396.

Three guiding factors in the reasonableness calculus are

the severity of the relevant crime, the immediate threat the
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suspect poses, and the intensity of the suspect’s resistance to
arrest.

Estate

of

Armstrong

ex

rel.

Armstrong

v.

Vill.

of

Pinehurst, 810 F.3d 892, 899 (4th Cir. 2016).
“A government official sued under § 1983 is entitled to
qualified immunity unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.”

Carroll v. Carmon, 135 S. Ct. 348, 350

(2014).

A plaintiff seeking to avoid an officer’s qualified

immunity

defense

must

demonstrate

both

that

(1)

“the

facts,

viewed in the light most favorable to the plaintiff, show that
the officer’s conduct violated a federal right,” and (2) this
“right

was

clearly

established

at

the

time

the

violation

occurred such that a reasonable person would have known that his
conduct was unconstitutional.”

Smith v. Ray, 781 F.3d 95, 100

(4th Cir. 2015).
We

exercise

question--whether
See

Pearson

dispositive

v.

our

discretion

the

asserted

Callahan,

question

is

to

begin

right

was

U.S.

223,

555

whether

the

with

clearly
236

the

second

established.

(2009).

violative

nature

“The
of

particular conduct is clearly established . . . in light of the
specific context of the case . . . .”

Mullenix v. Luna, 136 S.

Ct. 305, 308 (2015) (internal citations and quotations omitted).
“We

do

not

precedent

require

must

have

a

case

placed

directly
the
8

on

point,

statutory

or

but

existing

constitutional

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question beyond debate.”

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Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011).
Thus, here we must determine whether, as of May 19, 2012,
relevant precedent established that an officer’s use of lethal
force is objectively unreasonable and therefore constitutionally
excessive when used against an unarmed but physically resistant
suspect, who has destroyed property, attacked an officer, and
given

no

indication

that

he

will

yield.

There

is

no

such

precedent.
Holloman conceded at oral argument that no case “anywhere”
addresses similar facts.

The relevant precedent most helpful

for her, Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002), contains
too many material distinctions to clearly establish that the
officers acted unconstitutionally in the case at hand.

In Clem,

we denied summary judgment to an officer who allegedly “shot a
mentally disabled, confused older man, obviously unarmed, who
was stumbling toward the bathroom in his own house with pepper
spray in his eyes, unable to threaten anyone.”
Officers

Markowski

and

Bragg

faced

Id. at 552.

markedly

different

circumstances.
Unlike Clem, Johnson engaged in a physical altercation with
the two officers.

Moreover, Holloman, Johnson’s mother, had

told

that

the

officers

Johnson

had

destroyed

substantial

property that evening and that he likely would not stop; no one
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officers

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facts

about

Clem.

Furthermore,

despite having no weapon, Johnson had already dragged Officer
Markowski to the ground, held him down, fought with him, and
fended off Officer Bragg’s effort to pull him away.

Again, Clem

engaged in no similar activity.
In

sum,

regrettable

as

Johnson’s

death

is,

under

these

circumstances neither Clem nor any other precedent established
that the officers employed constitutionally excessive force.

IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

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