Madison et al v. Harford County, Maryland et al

Filing 44

MEMORANDUM AND ORDER granting in part and denying in part 35 Second Motion of defendants to Dismiss, or in the Alternative Motion for Summary Judgment. Signed by Judge Marvin J. Garbis on 8/2/13. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANTHONY MADISON, et al.

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Plaintiffs
vs.

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HARFORD COUNTY, et al.

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CIVIL ACTION NO. MJG-12-1120

*

Defendants
*

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*

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MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT/DISMISSAL
The Court has before it Defendants', Jason Flemmens, Todd
Johnson, Jennifer Huey, Emma Virginia Courtney, Christopher
Jones, Sherman Kirk, Theresa Pounds, and Rickey Harper, Second
Motion to Dismiss, or in the Alternative Motion for Summary
Judgment [Document 35] and the materials submitted relating
thereto.

The Court has held a hearing and had the benefit of

the arguments of counsel.

I.

SUMMARY BACKGROUND
On the evening of June 11, 2009, Dwight Jerome Madison

("Madison"), a navy veteran suffering from mental illnesses, was
arrested for trespassing by Harford County Sheriff Office
Deputies Todd Johnson ("Officer Johnson") and Jason Flemmens
("Officer Flemmens").

Madison was transported and delivered to

the Harford County Detention Center Processing Center (the

1

"Detention Center") where he was held for processing.

After

arriving at the Detention Center, Madison interacted with
several Detention Center personnel - Jennifer Huey ("Huey"),
Emma Virginia Courtney ("Courtney"), Christopher Jones
("Jones"), Sherman Kirk ("Kirk"), Theresa Pounds ("Pounds"), and
Rickey Harper ("Harper") (collectively referred to as the "DC
Defendants").

There was an incident, during which Huey fired a

taser, striking Madison who then fell to the floor and was
severely injured.

Madison was taken to the University of

Maryland Shock Trauma Center and died as a result of his
injuries the next day.1
In the Amended Complaint2 [Document 14], Plaintiffs
presented claims against the Harford County Council, the Harford
County Executive, Sheriff Jesse L. Bane, Officer Johnson,
Officer Flemmens, and the DC Defendants in seven Counts:
Count I

Survival Act

Count II

Wrongful Death

Count III

Excessive Force/Police
Brutality

Count IV

Assault & Battery

1

The taser incident occurred after midnight on June 11, thus
on June 12 and Madison died the next day, June 13.
2
The procedural history of this case is regrettable.
Plaintiffs' original counsel filed an initial case, MJG-10-197,
but due to his health concerns dismissed that case voluntarily
without prejudice. The instant case, MJG-12-1120, is proceeding
as if there had been no voluntary dismissal of MJG-10-197
mutatis mutandis [Document 16].
2

Count V

Deprivation of Civil Rights,
42 U.S.C. § 1983

Count VI

Negligent Training and
Supervision

Count VII

Intentional/Negligent
Infliction of Emotional
Distress

Consistent with the Court's rulings in MJG-10-197, all
claims against Sheriff Bane, the Harford County Council Members,
and the Harford County Executive have been dismissed [Documents
53, 63].3

With respect to the remaining defendants, fact

discovery has been completed.4
By the instant motion, Defendants move for dismissal of all
claims in the Amended Complaint pursuant to Federal Rule of
Civil Procedure5 12(b)(6) or alternatively for summary judgment
under Rule 56.

II.

APPLICABLE STANDARDS
The Defendants have captioned their motion as a motion to

dismiss pursuant to Rule 12(b)(6) or, alternatively, for summary
judgment.

The parties have, however, submitted extrinsic

evidence in support of their respective positions.
3

If, on a

The Court shall, therefore, dismiss Count VI.
Including a deposition of Gregory Wright taken after
argument on the instant motion.
5
All "Rule" references herein are to the Federal Rules of
Civil Procedure.
4

3

12(b)(6) motion, "matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56."6

Fed. R. Civ. P. 12(d).

Therefore, the Court shall utilize the summary judgment standard
in regard to the instant motion except, as indicated herein, the
Rule 12(b)(6) standard7 shall be applied to certain of the state
law claims that were not adequately pleaded.
A motion for summary judgment shall be granted if the
pleadings and supporting documents show that there is "no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."

Id. 56(a).

The well-established principles pertinent to such motions
can be distilled to a simple statement. The court may look at
the evidence presented in regard to the motion for summary
judgment through the non-movant's rose colored glasses, but must
view it realistically.

After so doing, the essential question

is whether a reasonable fact finder could return a verdict for
the non-movant or whether the movant would, at trial, be
6

Where the parties both rely on materials outside the
pleadings, it is not necessary to provide them with any further
opportunity to present any additional materials as to the claims
considered for summary judgment.
7
To avoid dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6), a complaint must allege sufficient facts to
"cross 'the line between possibility and plausibility of
entitlement to relief.'" Francis v. Giacomelli, 588 F.3d 186,
193 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007)).

4

entitled to judgment as a matter of law.

See, e.g., Anderson v.

Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986).

III. THE FEDERAL CLAIMS
In the Amended Complaint, Plaintiffs assert federal claims
against:
1.

The "Arresting Officers" - Defendants Johnson and
Flemmens, who allegedly unlawfully arrested
Madison and transported him to the Detention
Center;

2.

The "DC Defendants" - Defendants Jennifer Huey,
Emma Virginia Courtney, Christopher Jones,
Sherman Kirk, Theresa Pounds, and Rickey Harper
who were present at the time Madison suffered his
fatal injury; and

3.

The "Inactive Defendants" – the Harford County
Council, the Harford County Executive, and
Sheriff Jesse L. Bane.

All claims have been dismissed against the Inactive
Defendants. See [Document 21].

The claims against the Arresting

Officers and the DC Defendants shall be addressed in turn.

A.

The Arresting Officers

At the hearing, Plaintiffs clarified their federal claim
against Officers Johnson and Flemmens as based upon the arrest
of Madison without probable cause and not upon any theory that
unlawful force was used.

5

Title 42 U.S.C. § 1983 prohibits a person acting under the
color of law from depriving another of "any rights, privileges,
or immunities secured by the Constitution and laws."
The Fourth Amendment, applicable to the States through the
Fourteenth Amendment, guarantees against unreasonable seizures
of persons and an arrest without probable cause is unreasonable.
See, e.g., Dunaway v. New York, 442 U.S. 200, 208 (1979).

The

Fourth Amendment permits an arrest without a warrant if the
arresting officer has probable cause to believe the suspect has
committed a crime.

United States v. Williams, 10 F.3d 1070,

1073 (4th Cir. 1993).

"An officer has probable cause to believe

a suspect has committed a crime if the facts and circumstances
within the officer's knowledge are sufficient to warrant a
prudent person, in the circumstances shown, to conclude that the
suspect has committed an offense."

See, e.g., United States v.

Ashley, 490 F. App'x 512, 513 (4th Cir. 2012) cert. denied, 133
S. Ct. 391 (U.S. 2012).

In determining whether probable cause

existed for an arrest, a court must look at the "totality of the
circumstances" surrounding the arrest.

Illinois v. Gates, 462

U.S. 213, 230-32 (1983).
The evidence of record establishes that Officer Johnson,
alone, responded to complaints of a person banging on apartment
doors and, upon his arrival at the scene, encountered Madison.
Johnson Aff. [Document 22-4] ¶ 4-7.

6

Because Madison was not a

resident of the apartment complex, Johnson informed Madison he
was trespassing and told him to leave.

According to Johnson's

Affidavit, Madison then left and Johnson did not arrest or place
Madison in custody.

Id. ¶ 9-17.

Later that evening, Officer

Flemmens responded, alone, to another complaint of a person
banging on doors at the same apartment building.
[Document 22-5] ¶ 3-4.

Flemmens Aff.

Officer Flemmens stated in his affidavit

that Officer Johnson had informed him of his prior interaction
with Madison at that apartment building and Johnson's request to
Madison that he leave the premises.

Id. ¶ 5.

Upon arrival at

the apartment building, Officer Flemmens encountered Madison who
informed Officer Flemmens that he was homeless, was looking for
a friend, had nowhere to go, and that Flemmens should just
arrest him for trespassing because he would at least "have three
squares and a cot."
Ex. 2 at 50.

Id. ¶ 6-9; Flemmens Dep. [Document 37-1],

Flemmens then arrested Madison for trespassing

and transported him to the Detention Center.

1.

Officer Johnson

Plaintiffs present no evidence indicating, much less
adequate to prove, that Officer Johnson arrested or seized
Madison, participated in Madison's arrest, or was even present
during Madison's arrest.

Moreover, there is no evidence that

could establish that Officer Johnson's communication to Officer

7

Flemmens about Madison was false or in any way improper.

Hence,

there is no evidence adequate to establish that Officer Johnson
could be held liable even if Flemmens had wrongfully arrested
Madison.

2.

Officer Flemmens

Plaintiffs contend that Officer Flemmens lacked probable
cause to arrest Madison because trespassing is a misdemeanor
offense and Officer Flemmens did not witness Madison commit the
offense prior to making a warrantless arrest.
"It is well established that the warrantless arrest of an
individual who has committed a misdemeanor in the arresting
officer's presence is consistent with the Fourth Amendment if
supported by probable cause."
548, 551 (D. Md. 2007).

Lee v. O'Malley, 533 F. Supp. 2d

As explained by the Supreme Court,

"when an officer has probable cause to believe a person
committed even a minor crime in his presence, the balancing of
private and public interests is not in doubt. The arrest is
constitutionally reasonable."

Virginia v. Moore, 553 U.S. 164,

171 (2008) (explaining violation of state arrest law is not
necessarily a Fourth Amendment violation).

The question of

whether probable cause existed, justifying a suspect's arrest,
is ultimately a question of law.

See Brown v. Gilmore, 278 F.3d

362, 367-68 (4th Cir. 2002); Smith v. Reddy, 882 F. Supp. 497,

8

500 (D. Md. 1995) aff'd, 101 F.3d 351 (4th Cir. 1996).
Plaintiffs have produced no evidence contradicting Officer
Flemmens' affidavit that, prior to encountering Madison, Officer
Johnson had informed him that Johnson had previously asked
Madison to leave the apartment building after resident
complaints of someone banging on doors.

Nor have Plaintiffs

provided evidence calling into question that upon arrival at the
apartment building in response to a second complaint, Flemmens
observed Madison there and was informed by Madison that he was
not a resident of the building and was homeless.

Based upon

this undisputed evidence, the Court concludes that a reasonable
officer in Officer Flemmens' position would have been warranted
in believing that Madison was trespassing at the apartment
building in the officer's presence.

Thus, Plaintiffs have

failed to produce evidence adequate to prove that Officer
Flemmens' warrantless arrest of Madison for trespassing violated
the Fourth Amendment.

3.

Resolution

The Court finds that Officer Johnson did not participate in
the arrest of Madison and Officer Flemmens did not unlawfully
arrest Madison.

Inasmuch as all claims against these Defendants

are based upon their participation in an unlawful arrest,
Officers Johnson and Flemmens are entitled to summary judgment

9

with regard to all federal claims asserted against them.

B.

The Detention Center Defendants

Plaintiffs claim that the DC Defendants violated Madison's
federal Constitutional right to be free from excessive force by:
1) tasing him "without cause or need" and (2) "dropping him on
the concrete floor after he was immobilized."
[Document 37] at 21.

Pls.' Opp'n

The DC Defendants seek summary judgment on

qualified immunity grounds. Plaintiffs assert material disputes
of fact exist surrounding the interactions between Madison and
the DC Defendants.

1. Applicable Constitutional Standard
Initially, the Court must determine which Constitutional
guarantee the DC Defendants' actions allegedly infringed.

See

Graham v. Connor, 490 U.S. 386, 394 (1989) ("In addressing an
excessive force claim brought under § 1983, analysis begins by
identifying the specific constitutional right allegedly
infringed by the challenged application of force.").

The

parties dispute whether Madison's unlawful force claim – arising
after his arrest but before formal charging – must be considered
under the Fourth Amendment's unlawful seizure provision or the
Fourteenth Amendment's substantive Due Process Clause.
The Fourth Circuit has stated that during the course of

10

"'an arrest, investigatory stop, or other 'seizure' of a
person'", the protections of the Fourth Amendment that require
the use of objectively reasonable force are applicable.

Robles

v. Prince George's Cnty., 302 F.3d 262, 268 (4th Cir. 2002)
(quoting Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997),
abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34
(2010)).

But, "[o]nce the single act of detaining an individual

has been accomplished, the [Fourth] Amendment ceases to apply."
Id.

After the incidents of a suspect's arrest are complete, the

Fourth Circuit considers the suspect or "arrestee" protected
only from "unnecessary and wanton pain and suffering" prohibited
by the substantive Due Process Clause of the Fourteenth
Amendment.

Id. at 269; Young v. Prince George's Cnty., Md., 355

F.3d 751, 758 (4th Cir. 2004).8
Under Fourth Circuit precedent, the "point at which Fourth
Amendment protections end and Fourteenth Amendment protections
begin is often murky."
Cir. 2008).

Orem v. Rephann, 523 F.3d 442, 446 (4th

However, in the instant case, the answer is clear.

8

The Fourth Circuit has rejected the notion of a "continuing
seizure" adopted by other Circuits that have held that the
Fourth Amendment governs excessive force claims arising after
the completion of arrest but before formal charging, booking,
and/or the suspect leaving custody of the arresting officers.
See Austin v. Hamilton, 945 F.2d 1155, 1160-62 (10th Cir. 1991),
abrogated on other grounds by Johnson v. Jones, 515 U.S. 304
(1995); Powell v. Gardner, 891 F.2d 1039, 1043 (2d Cir. 1989);
McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir. 1988).

11

In Orem, the defendant police officer arrested Orem without a
warrant, placed her in the back of a police car in restraints,
and then began driving her to jail.

Id. at 444.

While en

route, Orem became "unruly", which led to the officer pulling
over the car and tasing her twice while she was restrained in
the back seat.

Id. at 444-45.

In assessing the applicable

standard for Orem's excessive force claim based on the tasing,
the Fourth Circuit stated:
. . . Orem's excessive force claim arises
during her transport to [the jail], after
she was arrested. While she had not been
formally charged, her status as an arrestee
requires
application
of
the
Fourteenth
Amendment to her claim.
Id. at 446; see also Robles, 302 F.3d at 267-70 (concluding
unlawful force claim that officers, after arrest, drove
plaintiff to a parking lot and tied him to metal pole governed
by the Fourteenth Amendment's Due Process Clause because the
plaintiff's "arrest had been completed" at the time he was tied
to the pole).
At the time of the events at issue, Madison had been
arrested, transported to the Detention Center, and was in the
booking process.

Under Fourth Circuit precedent, the incidents

of arrest had been completed.
Plaintiffs present reasonable arguments supporting their
view that Madison was entitled to Fourth Amendment protection at

12

the time at issue.
Circuits.9

This position has been accepted by other

Moreover, the Supreme Court has yet to address the

conflicting lower court decisions.

See Graham v. Connor, 490

U.S. 386, 395 n.10 (1989) (declining to address the issue).
Nevertheless, the Court must follow the existing binding
precedent of the United States Court of Appeals for the Fourth
Circuit.

Therefore, the substantive Due Process Clause of the

Fourteenth Amendment governs Plaintiffs' excessive force claims
surrounding the tasing of Madison at the Detention Center after
Madison's arrest but before completion of his processing or
formal charging.
Hence, Plaintiffs must prove that one or more of the DC
Defendants inflicted unnecessary and wanton pain and suffering
upon Madison as prohibited by the substantive Due Process Clause
of the Fourteenth Amendment.

2.

The Use of the Taser

The essential events at issue occurred within a brief
period in the Detention Center processing room.

Although not

precisely to scale, the following sketch provides a reasonable
rendition of the layout of the processing room:

9

See cases cited in supra note 8.
13

The evidence presented consists of statements by the DC
Defendants and Gregory Princeton Wright II ("Wright"), a
prisoner then in the second holding cell.

In addition, the

evidence includes a video , without sound, produced by the
camera, shown near the lower right hand corner of the room.

a.

The Video

While the parties seek to place different "spins" on what
is shown by the video, it cannot reasonably be disputed that the
following can be seen:
Time
0:00-3:4510

Madison, a six foot, 235 lb. male11,
wearing ankle shackles, sits in a chair

10

Time is shown in "minutes:seconds" from the start of the
video segment in evidence.
11
See Investigative Report [Document 37-1], Ex. 5.
14

next to the holding cell, walks around,
and one DC Defendant appears to speak
to Madison while the others are
standing close by in the general
vicinity of the holding cells.

3:46-58

Madison sits back down in the chair,
starts moving the chair while seated in
it by sliding it on the floor and
lifting it slightly off the floor; DC
Defendants start to circle closely
around Madison.

3:59-4:20

Physical interaction between Madison
and certain DC Defendants as a few of
them attempt to keep Madison seated in
the chair after he tries to stand up,
while two others remove Madison's ankle
shackles.

4:21-38

Madison, with two DC Defendants
physically guiding him, gets up from
the chair and walks towards the holding
cell. A struggle ensues in the doorway
of the holding cell between Madison and
three of the DC Defendants (identified
through other evidence as Jones,
Harper, and Kirk) as Madison resists
their efforts to get Madison into the
cell.

4:39

Huey deploys the taser dart.12

4:40-44

The DC Defendants are crowded around
the cell door and Madison appears to
lunge partially out of the doorway
toward the DC Defendants, who then
press him back into the cell.

4:45-54

Something is occurring inside or in the

12

Undisputed record evidence establishes that Huey deployed
the taser after Courtney, the shift supervisor, ordered her to
do so.
15

doorway of the cell involving at least
one of the DC Defendants and Madison,
but due to the camera angle only the
backs of several of the DC Defendants
crowding the cell door are visible.
4:55

With all of the DC Defendants outside
Madison's cell, one of them closes the
cell door.

4:56-5:37

The DC Defendants begin to disperse,
but some are looking into Madison's
cell.

5:38-11:03

A medical person arrives, Madison's
cell is open, the medical person enters
the cell and presumably provides
medical services to Madison.

b.

Other Evidence

In addition to the video, the evidence consists of sworn
statements of witnesses and deposition testimony.

As discussed

herein, there is no genuine issue of material13 fact regarding
the events culminating in Huey's use of the taser on Madison.
After fingerprinting, Madison declined to be photographed.
Courtney Aff. [Document 22-6] ¶¶ 9, 10.

Courtney ordered

Madison to return to his holding cell on "several occasions" but
he refused.

Id.; Harper Aff. [Document 22-7] ¶ 8.

After

Madison sat down in the chair, Pounds removed Madison's ankle
shackles and then Harper, Jones, and Kirk attempted to get

13

As noted, there are factual issues. However, the issues
are not material to the resolution of Plaintiffs' claims.
16

Madison back in the holding cell, but he refused.

Harper Aff.

[Document 22-8] ¶ 9; Courtney Aff. ¶ 10; Huey Aff. ¶ 10.

Once

the officers got Madison in the holding cell, Madison started to
struggle, trying to come out of the cell before the door had
closed, and then, Madison grabbed Harper by the shirt collar
with one hand.14
Aff. ¶ 11.

Courtney Aff. ¶ 11; Harper Aff. ¶ 10; Huey

A struggle ensued where Jones and Kirk tried to pull

14

Plaintiffs maintain that the DC Defendants' deposition
testimony is inconsistent as to the "choke" of Harper by Madison
prior to discharge of the taser. Specifically, Courtney,
Harper, and Kirk testified that Madison put both his hands
around Harper's neck. Courtney Dep. [Document 37-1] at 50-52;
Harper Dep. [Document 37-1] at 50; Kirk Dep. [Document 37-1] at
35-36. Jones testified that Madison put only his left hand
around Harper's neck and Pounds testified that Madison grabbed
Harper's shirt collar with his left hand. Jones Dep. [Document
37-1] at 35-36; Pounds Dep. [Document 37-1] at 82-83.
Plaintiffs also submitted a photograph of Madison lying on the
ground on his back after the tasing, which depicts something
clutched in his one hand. A second close-up photograph reveals
the "something" is a glasses case containing a pair of undamaged
glasses. See [Document 37-1] Ex. 6. This evidence corroborates
the version of events in which Madison choked or grabbed Harper
with only one hand.
The record evidence related to the DC Defendants'
interactions with Madison in the 18-20 seconds leading up to the
taser discharge reveals factual disputes as to whether Madison
grabbed Harper with one or two hands, whether Madison grabbed
Harper's neck or shirt collar, and whether Madison just put his
hands around Harper's neck or actually tried to choke him. In
the summary judgment context, Plaintiffs, as the non-moving
parties, are entitled to have their "version of all that is in
dispute accepted, [and] all internal conflicts in it resolved
favorably" to them. Charbonnages de France v. Smith, 597 F.2d
406, 414 (4th Cir. 1979); Meyers v. Baltimore Cnty., Md., 713
F.3d 723, 730 (4th Cir. 2013). Hence, for present purposes the
Court will accept the version of events most favorable to
Plaintiffs: Madison grabbed Harper's shirt collar with one hand
prior to Huey's deployment of the taser.
17

Madison from Harper; Courtney then ordered Huey to tase Madison.
Huey told Madison "two or three times to 'Let go, or you will be
tased' while displaying a departmentally issued taser."15
Aff. ¶ 11.

Madison did not let go.

and hit Madison in the upper leg.

Huey

Huey fired the taser once,

Courtney Aff. ¶ 12; Harper

Aff. ¶ 11; Huey Aff. ¶ 12; Courtney Dep. [Document 37-1] at 5051.
Plaintiffs seek to find evidentiary support in statements
from Wright, who was in the second holding cell at the time of
the events at issue.

Wright's evidence includes three – not

precisely consistent – versions of the events at issue.
The first version is in a recorded statement16

made a few

hours after the incident in an interview conducted by members of
the Harford County Sheriff's Office.

In this statement Wright

said that during the struggle in the doorway of the holding
cell, Madison "wouldn't go in" and was "fighting" the officers
and "throwing punches."

[Document 26-2] at 2-3.

The second version was included in an affidavit drafted by
an attorney for Plaintiffs and signed by Wright.

Wright

testified at his deposition that the statements in his affidavit
15

Plaintiffs dispute whether sufficient time existed for Huey
to provide two or three verbal warnings. The Court does not
find a factual dispute as to the number of warnings material.
16
The statement was not given under oath but, in his
deposition testimony, Wright confirmed that the transcript of
the oral statement "accurately reflect[ed] what [he was] feeling
and observed." Wright Dep. [Document 42-1] at 18:16-19.
18

were not his "exact words" but he read it and "kind of like
agreed, and signed it."

Wright Dep. [Document 42-1] at 42.

The

affidavit states that Madison did not "choke", make a "choking
gesture", or "have his hands on or around the neck of any
officer or civilian employee"; did not "punch, kick, or push any
of the law enforcement officers or civilian employee(s)"; and/or
did not "threaten any of the law enforcement officers or
civilian employee(s)."

Wright Aff. [Document 25-2] ¶ 6-10.

The third version is in Wright's deposition.

Wright

testified that when the official approached Madison in the chair
"he was real belligerent, to them." Wright Dep. [Document 42-1]
at 47:11-12.

Wright was directed to review his affidavit

statement that "Madison was not resisting when law enforcement
officers and civilian employee(s) approached him and violently
and forcibly removed him from his chair."17

In response he

stated that Madison "was resisting because they was trying to
put the leg cuffs on him. [] He just wouldn't let them."

Id. at

47:16-21.
"[I]t is well established that a genuine issue of fact is
not created where the only issue of fact is to determine which
of the two conflicting versions of a party's testimony is
correct."

In re Family Dollar FLSA Litigation, 637 F.3d 508,

512-13 (4th Cir. 2011) (quoting Erwin v. United States, 591 F.3d
17

Wright Aff. [Document 25-2] ¶ 4
19

313, 325 n.7 (4th Cir. 2010)).

Thus, Defendants ask the Court

to disregard Wright's testimony altogether.

Because Wright is

not a party, the general rule about inconsistent testimony may
not apply to him.

In any event, while there are differences

between Wright's statements, in the context of the instant case,
the differences are not material.

Wright's affidavit does not

directly contradict his statement that Madison "wouldn't go in"
and was "fighting" the officers and "throwing punches."18

Nor

does it directly contradict the testimony, noted above, that
Madison grabbed Harper by the shirt collar with one hand.
In sum, at the very least, the evidence establishes that
Madison was noncompliant, struggling, resisting the officers,
and refusing to enter and stay in his cell.

It is in this

context that the decision was made to use a taser on Madison.

c. Liability
To succeed on an excessive force claim under the Fourteenth
Amendment's Due Process Clause, Plaintiffs must show that the DC
Defendants "inflicted unnecessary and wanton pain and suffering"
upon Madison.

Carr v. Deeds, 453 F.3d 593, 605 (4th Cir. 2006).

This requires a finding that the "officers' actions amounted to

18

It is not material whether, in addition to fighting and
throwing punches, Wright actually hit any of the officers,
choked, made a choking gesture, had his hands on or around the
neck of, kicked, pushed or threatened any of the DC Defendants.
20

punishment and were not merely an incident of some other
legitimate governmental purpose."

Robles v. Prince George's

Cnty., Md., 302 F.3d 262, 269 (4th Cir. 2002)(internal citations
and quotations omitted).

As explained by the Fourth Circuit:

In determining whether [this] constitutional
line has been crossed, a court must look to
such factors as the need for the application
of force, the relationship between the need
and the amount of force used, the extent of
the injury inflicted, and whether the force
was applied in a good faith effort to
maintain
and
restore
discipline
or
maliciously and sadistically for the very
purpose of causing harm.
Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008)(quoting
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

Contrary

to a Fourth Amendment excessive force claim that employs an
objective reasonableness standard, the subjective motivations of
the individual officers allegedly exerting unlawful force is
pertinent in a substantive Due Process claim.

See Young v.

Prince George's Cnty., 355 F.3d 751, 758 (4th Cir. 2004).
In Orem, the Fourth Circuit confronted the issue of whether
the use of a taser on an arrestee constituted excessive force
under the Due Process Clause.

In that case, Orem, a 100 pound

27-year-old woman who was handcuffed and locked in the back seat
of a police car post-arrest, began "jumping around" and banging
her head against the seat and window during her transportation
to jail.

523 F.3d at 444-45.

The transporting officer pulled

21

the police car over and was then joined by two other officers.
While one officer started to re-secure Orem's ankle shackles
that had become loosened as a result of her flailing about, the
defendant officer, Deputy Rephann19 (weighing 280 lbs.), told
Orem to calm down to which Orem responded with a forceful
expletive.

Id. at 447.

Deputy Rephann told her to "stop it",

tased her under her left breast and inner thigh, though his
"reach was closer to her right side and other parts of her
body", and then "commanded that she respect the officers."

Id.

In light of that set of facts, the Fourth Circuit found that a
reasonable jury could infer that Deputy Rephann's use of the
taser was "wanton, sadistic, and not a good faith effort to
restore discipline."

Id.

Here, the undisputed evidence shows that after being
fingerprinted Madison refused to be photographed, refused to
return to his holding cell after being instructed to do so, and
then started moving around on a chair.

In response, certain of

the DC Defendants used force to ensure Madison remained seated
in the chair as his ankle shackles were removed20 and then

19

Of note, Deputy Rephann knew Orem because her husband was a
former sheriff deputy.
20
Plaintiffs assert that the removal of Madison's ankle
shackles is evidence that the DC Defendants did not perceive his
resistance as a threat. However, the ankle shackles were
removed in anticipation of moving Madison to a holding cell and
the significant resistance at issue occurred after removal of
the ankle shackles.
22

physically escorted him in the direction of the holding cell.21
In the next 18-20 seconds prior to discharge of the taser, video
evidence shows Madison struggled against certain of the DC
Defendants as they tried to get him into the holding cell.
During this struggle – on the facts most favorable to Plaintiffs
– Madison a least grabbed Harper by the shirt collar with one
hand.

After being ordered to do so by Courtney, Huey deployed

the taser, making contact with Madison's upper leg area.

i.

Defendants Jones, Kirk, Pounds, and
Harper

The evidence establishes that Courtney ordered Huey to fire
the taser and Huey carried out the order.
defendants caused the tasing.

Thus, these two

However, Plaintiffs have produced

no evidence indicating that any other defendant could be found
to have caused the tasing of Madison.
Plaintiffs have presented no cogent support for a theory of
"collective liability" that would validate claims against
defendants who, although present, did not cause the alleged
excessive force.22

21

By physically escort, the Court means that two or three of
the DC Defendants were holding Madison's arms as he walked.
22
Even if there were some viable "liability by presence"
theory, the matter is moot because, as discussed infra, the
Court holds that there is insufficient evidence to establish
that Courtney or Huey violated Madison's Fourteenth Amendment
rights by using the taser. See Thomas v. Holly, 12-2076, 2013
23

Accordingly, in regard to the use of the taser23, Defendants
Jones, Kirk, Pounds, and Harper are entitled to summary judgment
due to the absence of any proof of causation or actionable
conduct.24

ii.

Defendants Courtney and Huey

The evidence establishes that Defendant Courtney ordered
the use of the taser and Huey used the device to tase Madison
once.

Thus, Courtney and Huey caused Madison to have been

subjected to the tasing.

Nevertheless, the evidence, when

viewed as favorably for Plaintiffs as reasonably possible, would
not support a verdict that Madison was subjected to excessive
force under the circumstances.
Madison, standing six feet tall and weighing 235 lbs., was
actively resisting being placed in the holding cell.

On the

most pro-Plaintiffs version of the evidence possible, at a
minimum, Madison "wouldn't go in [to the holding cell]," was
"fighting, throwing punches," and had a hand on a Detention
Center officer's shirt collar.

See supra § III.B.2.b.

Unlike

Orem, Madison was not restrained in the backseat of a patrol

WL 3722350, at *12 (4th Cir. July 17, 2013) (unpublished).
23
As distinct from the fall that resulted from the use of the
taser.
24
As discussed herein, Defendants Kirk and Jones are alleged
to have caused Madison injuries by failing to prevent his fall
after the taser was used.
24

car.

The amount and type of force employed on Madison consisted

of a single tase, discharged by Huey at the direction of
Courtney in response to Madison's struggles and grabbing of
Harper's shirt collar.

See Simpson v. Kapeluck,

CIV.A.209CV00021, 2010 WL 1981099, at *8 (S.D.W. Va. May 14,
2010), aff'd, 402 F. App'x 803 (4th Cir. 2010) (finding
defendants entitled to summary judgment in Fourteenth Amendment
excessive force claim involving taser where officer tased
plaintiff as he was being escorted out of courtroom in shackles
and handcuffs after he struggled against the officers).
Plaintiffs seek to rely on the affidavit of Dr. Ron
Martinelli, a proffered expert in "police practices", as
evidence that the use of the taser was an excessive response to
Madison's behavior.

In his affidavit, Dr. Martinelli states

that if "no choke took place than the Taser would not have been
an appropriate quantum of force.

The Defendants possessed a

number of less lethal options."25

Martinelli Aff. [Document 25-

1] ¶ 8.

Such options – according to Dr. Martinelli - included

using "tactical communication and other non-violent methods" to
Madison's reluctance to be photographed or summoning a
psychiatrist or psychologist.

Id. ¶ 12.

25

Dr. Martinelli does

The use of a taser is not realistically referred to as a
"lethal option." Indeed, Plaintiffs do not claim Madison
suffered any injury from the tase itself, but suffered injury
due to alleged wrongful action or inaction after Madison had
been tased.
25

not opine that a single tase would be inappropriate if a
detainee is fighting, punching, and has a hand on an officer's
shirt collar.

Further, Dr. Martinelli's "less lethal options"

opinions relate to a response to Madison's refusal to be
photographed, not to the struggle that ensued when the DC
Defendants attempted to move Madison to the holding cell after
such refusal.
Plaintiffs assert that use of the taser was unnecessary
"given that Mr. Madison was already physically restrained by
multiple officers."

[Document 37] at 17.

Yet, the evidence

shows, at minimum, that Madison was grabbing Harper's shirt
collar with one hand, Kirk and Jones were attempting to pull
Madison from Harper, and Madison did not relent until after
being tased.26
Plaintiffs have produced no evidence adequate to establish
that the taser was used maliciously and sadistically for the
very purpose of causing harm to Madison and not in a good faith
effort to maintain and restore discipline.
446.

Orem, 523 F.3d at

The evidence shows that Huey deployed the taser only once,

indicating the "officers' 'good faith effort to restore
26

At the hearing, Plaintiffs' counsel suggested that the DC
Defendants' slightly inconsistent testimony relating to the
choking allegation supports an inference that the choking itself
was an after-the fact concoction to justify the tasing. The
Court does not agree and, in any event, has assumed that there
was no choking but only that Madison had a hand on Harper's
shirt collar.
26

discipline,' and not an intent 'to punish or intimidate.'"
Simpson, 2010 WL 1981099, at *9 (quoting Orem, 523 F.3d at 447,
449).

While the taser came into contact with Madison's upper

leg, there is no evidence that this placement was deliberate or
designed to cause Madison embarrassment, such as in Orem.

Also

– unlike in Orem – there is no evidence that Madison verbally
provoked Huey or Courtney prior to discharge of the taser or
that Huey or Courtney said or did anything to indicate they were
acting to punish Madison.

As discussed herein, the single tase

came in response to Madison's struggles against the DC
Defendants as they tried to get him into the holding cell and
his grabbing of Harper's shirt collar.

The evidence shows that

at this time Madison was not restrained by any shackles or
handcuffs and the DC Defendants were not in control of Madison's
bodily movements.

Cf. Wernert v. Green, 419 F. App'x 337, 342-

43 (4th Cir. 2011) (unpublished) (finding evidence demonstrated
force employed was not a good faith effort to restore discipline
where defendant slammed an already restrained detainee face
first into concrete floor after detainee kicked his shoe off at
another officer).
As to the "extent of the injury inflicted", there is no
evidence that the use of the taser itself – distinct from the
fall that followed – inflicted severe injury upon Madison.
Indeed, Plaintiffs appear to assert that there would have been

27

no injury had there not been what Plaintiffs contend amounts to
the wanton infliction of pain due to the failure of certain of
the DC Defendants to break Madison's fall.
The bottom line is that no reasonable jury could find that
the use of the taser by Huey, directed by Courtney, constituted
wanton and sadistic conduct that was not carried out in a good
faith effort to restore discipline.

That is, the evidence is

insufficient to show that Courtney ordered and/or Huey used the
taser needlessly or without a legitimate purpose.

d.

Qualified Immunity

The doctrine of qualified immunity "balances two important
interests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they
perform their duties reasonably."
223, 231 (2009).

Pearson v. Callahan, 555 U.S.

The doctrine shields government officials from

liability for civil damages, provided that their conduct does
not violate clearly established statutory or constitutional
rights within the knowledge of a reasonable person.

See Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982).
Court's apply a two-step approach to qualified immunity:
(1) whether the facts alleged or shown, taken in the light most
favorable to the plaintiff, establish a constitutional violation

28

and (2) whether the constitutional right at issue was clearly
established at the time of the officer's conduct.

See Saucier

v. Katz, 533 U.S. 194, 201 (2001); Pearson v. Callahan, 555 U.S.
223, 236 (2009) (acknowledging that while Saucier's two-step
sequence for resolving qualified immunity claims is generally
appropriate, courts may exercise discretion in determining which
of the two prongs should be addressed first).

"Thus, although a

plaintiff may prove that an officer has violated certain
constitutional rights, the officer nonetheless is entitled to
qualified immunity if a reasonable person in the officer's
position could have failed to appreciate that his conduct would
violate those rights."

Meyers v. Baltimore Cnty., 713 F.3d 723,

731 (4th Cir. 2013) (internal quotations omitted).
The Court holds, herein, that the DC Defendants are
entitled to summary judgment establishing that they did not
violate Madison's Constitutional rights.
qualified immunity is moot.

Thus their right to

However, for the benefit of any

reviewing court, the Court states that it would find them
entitled to qualified immunity even if summary judgment had not
been granted in their favor as to a Constitutional violation.
Generally speaking, at the time of the incident at issue it
was "clearly established that an arrestee or pretrial detainee
is protected from the use of excessive force" where such force

29

is used to punish or intimidate.
(citing Orem, 523 F.3d at 448).

Wernert, 419 F. App'x at 342
Yet "[t]he calculus of

reasonableness must embody allowances for the fact that police
officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain and rapidly evolving—
about the amount of force that is necessary in a particular
situation."

Park v. Shiflett, 250 F.3d 843, 853 (4th Cir.

2001). Even if the use of the taser had established a
Constitutional violation, it would not have been manifest to a
reasonable officer in the DC Defendants' positions that the use
of the taser in response to Madison's behavior would be
unlawful.

3.

The Post-Tasing Fall

Plaintiffs claim that "dropping [Madison] on the concrete
floor after he was immobilized" from the tasing amounted to the
infliction of unnecessary and wanton pain and suffering in
violation of his Constitutional rights.
37] at 21.

30

Pls.' Opp'n [Document

a.

Evidence
i.

Direct Evidence

Due to the position of the camera, the video evidence has
limited value in regard to the post-tasing fall.

As noted

above, the following can be seen in the video:
4:39

Huey deploys the taser dart.

4:40-44

The DC Defendants are crowded around
the cell door and Madison appears to
lunge partially out of the doorway
toward the DC Defendants, who then
press him back into the cell.

4:45-54

Something is occurring inside or in the
doorway of the cell involving at least
one of the DC Defendants and Madison,
but due to the camera angle only the
backs of several of the DC Defendants
crowding the cell door are visible.

4:55

With all of the DC Defendants outside
Madison's cell, one of them closes the
cell door.

4:56-5:37

The DC Defendants begin to disperse,
but some are looking into Madison's
cell.

5:38-11:03

A medical person arrives, Madison's
cell is open, the medical person enters
the cell and presumably provides
medical services to Madison.

Courtney testified that after Huey deployed the taser, it
did not appear to have an effect on Madison, but after some
undefined amount of time, Madison let go of Harper's neck area.

31

Courtney Dep. at 52-53.

At "some point, [Madison] was standing

in the doorway of the cell and DFC Harper was going to close it
when he fell."

Id.

As far as Courtney could remember, Kirk and

Jones were not in physical contact with Madison at the moment he
fell back.

See id. at 53-54.

Pounds testified that she saw the

taser discharge, saw Kirk and Jones let go of Madison, and then
saw Madison fall to the ground.

Pounds Dep. at 81-82.

Photographic evidence taken after the tasing shows that Madison
fell backwards flat on his back onto a non-carpeted surface.
[Document 37-1] Ex. 5.
Wright referred to the post-tasing events in each of his
three statements.

In his recorded statement given June 12,

2009, Wright stated:
MR. WRIGHT:
The officer with the Taser.
She said "Stop, stop fighting," . . . you
know, stop fighting or whatever while they
was trying . . . it was about maybe two male
officers . . . there was three male officers
trying to restrain him and she told him to
stop and he didn't stop, so she tazed [sic]
him and he fell straight back on his head.
*

*

*

SGT. ROYSTER: He had no problems walking or
fighting off the officers though while he
was on his feet, correct?
MR. WRIGHT:
problem.

No,

he

have

no

SGT. ROYSTER: And you also mentioned
when he fell back, he fell on his head?

that

32

didn't

MR. WRIGHT:
Yeah, straight back.
First
she's tazing [sic] him and he still wouldn't
go down and then like, I guess, it kicked in
and then he just went boom, straight back.

[Document 26-2], at 2, 6-7.
In his affidavit27, Wright stated:
11.
Mr. Madison was being restrained and
supported by law enforcement officers and/or
civilian employee(s) at the moment the Taser
prongs impacted his body.
12.
After Mr. Madison was tased and at a
time when he was visibly immobilized, the
law enforcement officers and/or civilian
employee(s) who were supporting him suddenly
let him go.
13.
As a result of being dropped, Mr.
Madison, incapacitated by the taser, fell to
[sic] ground without the ability to break
his fall.
14.
Mr. Madison's head violently impacted
the ground, at considerable speed, with
great force.
15.
The law enforcement officers and/or
civilian employee(s) who were supporting Mr.
Madison possessed the ability to peaceably
lay him down on the floor after he was
immobilized by the Taser.
16.
It was immediately apparent that Mr.
Madison sustained a traumatic injury.

27

Drafted by one of Plaintiff's counsel, a document that
Wright testified did not contain "his exact words", but signed
because he "kind of like agreed." Wright's Dep. [Document 42-1]
at 42.

33

Wright Aff. [Document 25-2].
In his deposition, Wright testified as follows:
Q

Okay. All right.
And did you see the
moment when he was tased?

A

I –- no.

Q

Okay.

A

I didn't
tased.

Q

All right.
And right before he fell
back, there were officers who were in
contact with him holding either side;
is that right?

A

Yes.

Q

Okay. And then he was tased. And did
you see his body stiffen up as he was
tased?

A

Yes

Q

Okay. All right. And I understand the
prongs are very small. So you may not
have seen the actual prongs go in, but
you saw his body stiffen up?

A

Yeah.

Q

Okay.
All right.
And after his body
stiffened up, the officers let go.
Is
that what you observed?

A

Yes.

Q

All right.
And that's what caused him
to fall to the ground between the TASER
and them letting go; is that right?

A

Yes.

I saw when he fell back.

see

when

34

he

actually

got

*

*

*

Q

All right. And the –- and you already
said that when he was tased –- and it
was in your statement to police that
they were holding him. And I'm looking
at the Affidavit.
It says, Paragraph
12: After Mr. Madison was tased and a
time when he was immobilized –- in
other words, they were holding him -–
you said –- you told me he stiffened
up.
The law enforcement officers or
civilian employees who were supporting
him suddenly let go. Is that accurate?

A

Somewhat.

Q

Okay.

A

They didn't just drop him.

Q

Okay.

A

I mean, like they was trying to subdue
him, and once they tased him, I guess
they felt like he was subdued. So they
just let go.

Q

Okay.

A

I don't think they thought he was going
to fall back on his head, though.

Q

All right.
And tell me what you
observed when he hit the ground.
You
said in the Affidavit it was pretty
immediately apparent that he had been
hurt. Tell me what happened. Tell me
what you saw.

A

As far as when he hit the ground?

Q

Yes, sir.

A

He hit the ground, and they called for
medical.

In other words that –-

35

Q

Okay.
hit?

And was there a sound when he

A

No. He just like hit flat. I mean, it
was a –- bold because like steel floors.
So it was like –- he hit hard.

Q

And did he make any noises after that
that you heard? Moaning or screaming or
anything like that?

A

I can't remember.

Wright Dep. [Document 42-1] at 52-53, 57-58.

ii.

Circumstantial Evidence

Plaintiffs seek to rely upon evidence relating – generally
– to taser use and the DC Defendants' training.
1.

Dr. Martinelli stated that "Courts assign Tasers
[the] rating [of an intermediate force weapon]
primarily due to the dangerous risk of secondary
impact injuries" and in his opinion the DC
Defendants "were under an affirmative duty to
peaceably lay Mr. Madison onto the ground as
opposed to suddenly dropping him while he was
immobilized." Martinelli Aff. ¶¶ 13, 14.

2.

According to the 2005 Police Executive Research
Forum's ("PERF") Conducted Energy Device Policy
and Training Guidelines for Consideration28, a
"conducted energy device" "should not generally
be used when a subject is in a location where a

28

According to the face of this document, the suggested
policies and training guidelines contained therein were the
result of nationwide research and surveys. There is no evidence
as to whether anyone at the Detention Center has seen this
document and/or adopted any portion of it as Detention Center
policy. Indeed, there is no record evidence of the Detention
Center's policies on taser use and/or taser training.
36

fall may cause substantial injury or death."
[Document 37-1] Ex. 3, ¶ 9.
3.

According to the 2009 Report of the Maryland
Attorney General's Task Force on Electronic
Weapons, agencies "should adopt a use-of-force
model that recognizes that in the following
situations involving a heightened risk of serious
injury or death, ECWs should only be used when
deadly force is otherwise legally permitted:
persons in elevated positions, who might be at
risk of a dangerous fall."29 [Document 37-1] Ex.
4.

4.

As to the DC Defendants'30 training for taser use,
at the time of the incident:
a.

Jones, outside of "in-service training and
the academy" (which is not further defined
in the deposition excerpt), had no taser
training and was not certified to use
tasers;

b.

Kirk was not certified for taser use, but
had been certified in the use of stun guns,
but as of June 2009 such devices were no
longer used at the Detention Center;

c.

Pounds received taser training and was
certified to use tasers. As part of her
training, Pounds testified that she watched
a video provided by the taser company, which
depicted an officer actually being tased and
two other officers holding him up and
helping him to the ground thereafter.
Pounds also testified that she was aware
that touching a person after he or she was
tased would not cause you to be "shocked";
and

29

Again, there is no evidence that anyone at the Detention
Center has ever seen this document and/or adopted any portion of
it as Detention Center policy.
30
There was no evidence submitted relating to taser training
and/or certification of DC Defendants Courtney and Harper.
37

d.

b.

Huey admitted she was "trained" that a
person can die as a result of being tased if
that person has certain medical conditions.

Adequacy

Plaintiffs' claim is based on the contention that one or
more of the DC Defendants inflicted "unnecessary and wanton pain
and suffering" on Madison by failing to support him, or break
his fall after31 the taser was used.
The evidence presented is sufficient to support a finding
that Kirk, Jones and, the Court will assume without finding,
Harper were in a position to have supported or broke the fall of
Madison and did not take such action.32

However, the critical

question is whether Plaintiffs have presented evidence adequate
to permit a reasonable jury to find that any failure to take
such action was wanton and sadistic in the sense of intentional
action or inaction with the purpose of inflicting pain.

See

Orem v. Rephann, 523 F.3d 442, 448 (4th Cir. 2008).
To avoid summary judgment, Plaintiffs carry the burden to
come forward with particular evidence to substantiate their

31

As discussed above, the Court is granting the DC Defendants
summary judgment on the use of the taser claim.
32
At the time of the tase, Kirk and Jones were in physical
contact with Madison and Madison was holding Harper's shirt
collar. After the tasing, Kirk and Jones let go of Madison's
person and Madison released Harper's shirt collar. Thereafter,
Madison fell backwards.
38

claims, i.e., evidence from which a reasonable jury could find
that that Kirk, Jones, and/or Harper inflicted unnecessary and
wanton pain and suffering upon Madison by failing to guide
Madison to the ground after he was tased.

See, e.g., Williams

v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).

Rule 56(c)(1)

explicitly states that a party asserting that a fact "is
genuinely disputed must support the assertion by: (A) citing to
particular parts of materials in the record."

Plaintiffs cannot

defeat summary judgment by making conclusory or speculative
statements without specific evidentiary support or by piling
inference upon inference.

See Thompson v. Potomac Elec. Power

Co., 312 F.3d 645, 649 (4th Cir. 2002).
Plaintiffs have failed to produce evidence33 that when
realistically viewed as favorably to Plaintiffs as reasonably
possible, would permit a finding that Kirk's, Jones', or
Harper's action or inaction after the tasing constituted wanton
and sadistic conduct imposed for the purpose of punishment.
33

At

The Court, at the motion hearing, directed the parties to
take Wright's deposition and "provide comments regarding the
effect, if any, of [Wright's deposition] transcript upon the
Court's consideration of the pending summary judgment motion."
Order Re: Wright Deposition [Document 40]. Despite this
limitation, Plaintiffs presented additional references to
portions of the DC Defendants' depositions in their Supplemental
Memorandum regarding Wright [Document 43]. One of such
references was Harper's testimony that he saw Madison "tense up
just before he fell." [Document 43] at 20. Inasmuch as this
statement is immaterial, the Court will not strike it.

39

most, there might be a reasonable contention that Kirk and
Jones34 acted negligently.
Moreover, there are significant gaps in the evidence.

For

example, there is no evidence:
1.

Of the type or model of taser used on Madison;

2.

Of the duration of the tase inflicted upon him;

3.

Of the effects of a single tase of the type and
duration used by Huey upon Madison on a person of
Madison's height and weight or upon any male
adult in general;35

4.

That a taser of the type used in this case has
the capacity to strip a person of Madison's size
of his motor faculties in such a way that the
person – if standing when tased – will inevitably
or more likely than not fall to the ground
without any ability to control himself; and/or

5.

Of the time it would take for a person of
Madison's standing to be physically affected by a
single tase of the type and duration used.36

34

It is doubtful that Harper could even be found negligent
when the evidence indicates no more than that after the tasing,
Madison released Harper and not vice versa.
35
In their first opposition [Document 25], Plaintiffs assert
that after being tased Madison suffered the intended effect of
tasing, "neuro-muscular incapacitation" meaning that he was
unable to move. Plaintiffs seek to rely on Huey's affidavit,
[Document 22-8] ¶ 12, which does not contain this information,
but rather generally provides that the taser "eventually took
effect and [Madison] released DFC Harper and fell backwards to
the floor."
36
The video evidence appears to depict Madison lunging forward
out of the holding cell area after deployment of the tase,
suggesting that, in reality, it did not have an instantaneous
effect.

40

Even if Plaintiffs were to close these gaps or the Court
were to close the gaps for Plaintiffs by taking judicial notice
or by relying on statements in other judicial decisions, the
Court would still find the evidence inadequate.
Plaintiffs have provided no evidence with respect to
Kirk's, Jones', and/or Harper's knowledge regarding the effects
of tasing other than brief conclusory references in deposition
testimony to "in service" training.

Indeed, even if it were

reasonable to assume that any taser certification would include
an explanation of the physical effects of a tase, Kirk and Jones
testified they were not even certified to use tasers as of June
2009.

Thus, no reasonable jury could leap to the conclusion

that Kirk's and/or Jones' post-tasing actions or inactions were
sadistic and malicious.

Cf. Azevedo v. City of Fresno, 1:09-CV-

375 AWI DLB, 2011 WL 284637, at *9 (E.D. Cal. Jan. 25, 2011)
(explaining in Fourth Amendment excessive force case that since
"[i]t was understood that the taser would immobilize Azevedo. It
should have also been understood that uncontrolled falls are an
inherent risk associated with tasers" and concluding reasonable
jury could find taser use to be excessive under the Fourth
Amendment).37

37

However, in that case the officer was held entitled to
qualified immunity.
41

C.

Resolution

As discussed herein, the Court shall grant summary judgment
to all Defendants on all federal claims.

IV.

STATE LAW CLAIMS
A.

Jurisdiction

The Court shall not accept Defendants' suggestion that it
exercise its discretion and decline to exercise supplemental
jurisdiction over Plaintiffs' state law claims.

To do so would

unnecessarily burden the parties and the state court.

See

Semple v. City of Moundsville, 195 F.3d 708, 714 (4th Cir.
1999).

B.

The "Derivative" Claims

Plaintiffs present claims in Count I (Survival) and Count
II (Wrongful Death) that can be referred to as "derivative"
claims.

That is, the Counts do not present claims that would,

of themselves, impose liability on any defendant.

Rather, the

Count would allow a particular plaintiff or plaintiffs to
recover on a successful claim made in a substantive Count.

1.

Count I (Survival)

Md. Code Ann., Est. & Trusts § 7-401(y) provides that a

42

personal representative of a decedent's estate may "prosecute,
defend, or submit to arbitration actions, claims, or proceedings
in any appropriate jurisdiction for the protection or benefit of
the estate."

"Under Maryland Law, only an administrator of the

estate can bring a survival action, not the parents." Munger v.
United States, 116 F. Supp. 2d 672, 676 (D. Md. 2000).
Count I purports to assert a claim on behalf of the Estate
of Dwight Jerome Madison by Plaintiffs as the "Personal
Representative(s) of the Estate of Dwight Jerome Madison."
However, it does not appear that, as of the time of this
writing, any Plaintiff is the Personal Representative of the
Estate of Dwight Jerome Madison.
dismissed.

Therefore, Count I must be

However, inasmuch as the claim in Count I is a

"derivative" claim, the Court shall provide a reasonable time
for a Personal Representative of the Estate of Dwight Jerome
Madison to seek to reinstate the claim.

2. Count II (Wrongful Death)
Under Maryland law, a wrongful death action "shall be for
the benefit of the wife, husband, parent, and child of the
deceased person."
(a)(1).

Md. Code Ann., Cts. & Jud. Proc. § 3-904

However if there is no one that qualifies under (a)(1),

"an action shall be for the benefit of any person related to the
deceased person by blood or marriage who was substantially

43

dependent upon the deceased.

Id. 904(b).

The body of the Amended Complaint does not set forth the
family relation between Plaintiffs and the decedent.
the relationships are stated in the caption.

However,

The Court finds it

appropriate to consider the case caption as part of the Amended
Complaint for purposes of family relationship allegations.
Hence, the Court finds Count II adequate to present a wrongful
death claim on behalf of the Plaintiffs.

The Court shall not

dismiss Count II.

C.

(Count III) Excessive Force/Police Brutality

The Amended Complaint includes Count III, entitled
"Excessive Force/Police Brutality."
The Count does not include a reference to any basis –
statutory, constitutional, common law or otherwise for the
claim.

In the absence of any plausible claim, Count III shall

be dismissed.

D.

(Count IV) Assault and Battery

Defendants contend that state intentional tort claims are
precluded under the Maryland doctrine of common law public
official immunity and that the Amended Complaint fails to allege
any plausible claim of malice necessary to defeat the immunity.

44

Plaintiffs assert the immunity does not cover intentional torts
and is therefore inapplicable to these claims.38
The Court shall not dismiss the assault and battery claim
in Count IV.

Dismissal must be based upon the allegations of

fact in the Amended Complaint.

The "facts" so alleged are that:

the Defendants maliciously inflicted injuries on Madison without
proper grounds "while he was presenting no immediate threat to
anyone."

Am. Compl. [Document 14] ¶ 33.

Moreover, the Amended

Complaint includes, within Count IV, all of the prior
allegations. Id. ¶ 32.

It suffices to state that these

incorporated paragraphs provide factual allegations adequate to
present a plausible claim that there was malicious or wrongful
action that would negate any "immunity" or defense.39

38

Defendants also assert the assault and battery claims are
subject to dismissal as barred by the one year statute of
limitations. Assault and battery claims are subject to a one
year limitation period under Maryland law. See Md. Code Ann.,
Cts. & Jud. Proc. § 5-105. However, the Detention Center events
occurred on June 12, 2009, and the original complaint in MJG-10197 was filed on January 26, 2010. Accordingly, the original
complaint, subsequently amended and filed in this case, was
timely.
39
Under Maryland law, "[c]ommon law public official immunity
is reserved for public officials (as opposed to mere employees)
who perform negligent acts during the course of their
discretionary (as opposed to ministerial) duties." Houghton v.
Forrest, 989 A.2d 223, 227 (Md. 2010). As stated by the
Maryland Court of Appeals, "[f]or more than twenty years,
however, this Court has held that common law public official
immunity does not apply to intentional torts." Id. at 228
(declining to overturn this precedent); see also DiPino v.
Davis, 729 A.2d 354, 370 (Md. 1999) ("[W]e made clear that a
police officer, who might otherwise have the benefit of this
45

Of course, it is one thing to find that there are adequate
factual allegations and another to find that there is adequate
evidence to establish those allegations.

That is, the ultimate

question is not whether Count IV survives dismissal but whether
Defendants are entitled to summary judgment on the claims
therein.
While Defendants' motion nominally seeks summary judgment
on all claims, the briefing by both sides does not adequately
address the question of whether Defendants are entitled to
summary judgment on Count IV.

The Court needs to be informed as

to the parties respective contentions with reference to the
legal and factual issues presented by the claims in Count IV.
Under the circumstances, the Court shall provide that
Defendants may file a motion for summary judgment specifically
with regard to Count IV to which Plaintiffs may fully respond.
The motion need not be lengthy.

Rather Defendants need

only present legal authority to support the defense contention
that a peace officer engaged in the proper exercise of his/her
duty cannot be held liable for assault and battery in the
absence of malice.

It would suffice – to frame the factual

issue - for Defendants to state that Plaintiffs have not
produced evidence adequate to support a finding for them on

immunity, does not enjoy it if the officer commits an
intentional tort or acts with malice.").
46

Count IV.

In response, Plaintiffs must specify which particular

Defendants they contend can be held liable on Count IV for which
particular actions and present evidence in support of these
particular contentions.

E.

(Count VII) Intentional/Negligent Infliction,
Emotional Distress

In Count VII, the Plaintiffs claim that the actions
resulting in the arrest and death of Madison constituted the
intentional and negligent infliction of emotional distress upon
Madison.40
"Maryland does not recognize the separate and distinct tort
of negligent infliction of emotional distress."

Lapides v.

Trabbic, 758 A.2d 1114, 1122 (Md. Ct. Spec. App. 2000).
To establish a cause of action for intentional infliction
of emotional distress ("IIED") under Maryland law, a plaintiff
must establish four essential elements:
(1)

The conduct must be intentional or
reckless;

(2)

The conduct must be extreme and
outrageous;

40

At the hearing, Plaintiffs appeared to take the position
that the IIED claim includes a claim that the Defendants
intentionally caused the Plaintiffs – as family members of
Madison – emotional distress. No such claim was made in the
Amended Complaint. Nor would any such claim if made be
plausible.
47

(3)

There must be a causal connection
between the wrongful conduct and
the emotional distress; and

(4)

The emotional distress must be
severe.

Batson v. Shiflett, 602 A.2d 1191, 1216 (Md. 1992) (quoting
Harris v. Jones, 380 A.2d 611, 614 (Md. 1977)).
The claim warrants little discussion.

The Amended

Complaint presents conclusory sweeping allegations without
specification of which particular actions were extreme and
outrageous.41
distress.

There is no specification of any severe emotional

Indeed, the gravamen of the Amended Complaint is that

Madison was rendered unconscious immediately upon falling.
The Court shall dismiss Count VII.

V.

CONCLUSION
For the foregoing reasons,
1. Defendants', Jason Flemmens, Todd Johnson,
Jennifer Huey, Emma Virginia Courtney,
Christopher Jones, Sherman Kirk, Theresa Pounds,
and Rickey Harper, Second Motion to Dismiss, or
in the Alternative Motion for Summary Judgment
[Document 35] is GRANTED IN PART AND DENIED IN
PART.

41

To be extreme and outrageous the actionable conduct "must
strike to the very core of one's being, threatening to shatter
the frame upon which one's emotional fabric is hung." Hamilton
v. Ford Motor Credit Co., 502 A.2d 1063, 1064 (Md. Ct. Spec.
App. 1986).
48

a. Count I is DISMISSED without prejudice to
the right of a duly appointed personal
representative of the Estate of Dwight
Jerome Madison to move, by September 9,
2013, to be added as a Plaintiff and
reinstate Count I.
b. Count II remains pending but, as stated
herein, is a "derivative" Count and presents
no substantive claim.
c. Count III is DISMISSED.
d. Count IV remains pending.
e. Defendants are granted summary judgment with
regard to all claims in Count V.
f. Count VI is DISMISSED.
g. Count VII is DISMISSED.
2. Defendants may, by September 9, 2013, file a
motion for summary judgment with regard to Count
IV.
a. Plaintiffs shall respond by October 9. 2013.
b. Defendants may file a reply by October 31,
2013.
SO ORDERED, this Friday, August 02, 2013.

/s/__________
Marvin J. Garbis
United States District Judge

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