The Estate of Robert Ethan Saylor et al v. Regal Cinemas, Inc. et al

Filing 48

MEMORANDUM. Signed by Judge William M Nickerson on 10/16/2014. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

THE ESTATE OF ROBERT ETHAN
SAYLOR et al.

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v.
REGAL CINEMAS, INC. et al.
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Civil Action No. WMN-13-3089

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MEMORANDUM
Before the Court are the following motions: (1) a motion to
dismiss filed by three Frederick County Sheriff’s Deputies:
Defendants Richard Rochford, Scott Jewell, and James Harris (the
Deputies), ECF No. 26; (2) a motion to dismiss, or for summary
judgment, filed by Defendant Regal Cinemas, Inc. (Regal), ECF
No. 27; and (3) a motion to dismiss, or for summary judgment
filed by Defendant State of Maryland (the State), ECF No. 44.
The motions are ripe.

Upon review of the filings and the

applicable case law, the Court determines that no hearing is
necessary, Local Rule 105.6, that the motions filed by the
Deputies and State will be granted in part and denied in part,
and that Regal’s motion will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the tragic death of 26-year-old
Robert Ethan Saylor, an individual with Down Syndrome.

Mr.

Saylor died after three off-duty Frederick County Deputy

Sheriffs, Defendants Richard Rochford, Scott Jewell, and James
Harris, attempted to force him to leave a movie theater owned
and operated by Defendant Regal because he was attempting to
view a movie for a second time without paying for a second
ticket.

At the time, the Deputies were working as security

guards for the mall in which the theater was located, the
Westview Promenade Mall.

A struggle ensued in the course of the

attempted removal of Mr. Saylor from the theater and, by the end
of that struggle, Mr. Saylor suffered a fractured larynx and
died of asphyxiation.

The details of this encounter, as alleged

in the First Amended Complaint, are as follows.
Mr. Saylor had an I.Q. of about 40, the physical and facial
features common to individuals with Down Syndrome, and was
easily recognizable as someone with this disability.

He was

also both short and obese, standing at about 5 feet 6 inches
tall and weighing almost 300 pounds.

Mr. Saylor lived in a

separate apartment connected to his mother’s home.

A full-time

aide, Mary Crosby, was employed to assist Mr. Saylor with living
in the community.

While Mr. Saylor often traveled about in the

community, he did not like to be touched, particularly by
strangers.

He also sometimes displayed anger when he was

frustrated and could be difficult to redirect from one activity
to another.

Ms. Crosby, other caretakers, and family members

were well aware of these characteristics.
2

Mr. Saylor was an avid moviegoer and was a regular patron
of the Regal Cinemas, having seen hundreds of movies there.

On

the evening of January 12, 2013, Mr. Saylor, accompanied by Ms.
Crosby, went to an early showing of the movie Zero Dark Thirty.
When the movie was over, Mr. Saylor and Ms. Crosby exited the
theater and Ms. Crosby inquired if Mr. Saylor was ready to go
home.

Mr. Saylor became angry and Ms. Crosby called Mr.

Saylor’s mother to inquire how to proceed.

Mrs. Saylor

suggested Ms. Crosby go and bring the car around to give Mr.
Saylor the opportunity to calm down and she did so.
When Ms. Crosby returned with the car, she discovered that
Mr. Saylor had gone back into the theater to see the movie a
second time.

While she was in the lobby of the theater, the

theater manager approached her and stated that Mr. Saylor had to
purchase another ticket or leave the theater.

Ms. Crosby

explained that Mr. Saylor had Down Syndrome and that no one
should attempt to speak with him.

She also requested that the

manager simply wait a bit to let her attempt to deal with Mr.
Saylor.

Despite that request, the manager called for assistance

from one of the Deputies who was working as a mall security
guard and, Plaintiffs allege, on information and belief, that
the manager asked the Deputy to remove Mr. Saylor from the
theater.

3

That Deputy, believed to be Defendant Rochford, then
approached Ms. Crosby and repeated the manager’s admonition that
Mr. Saylor would need to purchase another ticket or leave the
theater.

According to the First Amended Complaint,

[Ms. Crosby] told the Deputy about Mr. Saylor’s
disability and asked again that they just “wait out”
Mr. Saylor’s refusal to leave the theater. She told
the deputy that she had spoken with Mr. Saylor’s
mother, who was coming to the theater, and that Mr.
Saylor would “freak out” if he was touched and that he
would resist being forcibly ejected. She told the
deputy that if given sufficient time she and Mrs.
Saylor could handle the situation.
ECF No. 19 ¶ 23.
Meanwhile, Mr. Saylor sat quietly in the same seat in which
he had sat when watching the movie the first time.

Despite Ms.

Crosby’s warning, Defendant Rochford approached Mr. Saylor and
told him that he needed to leave the theater.

Mr. Saylor

refused and the Deputy asked the manager to call for the other
two Deputies who were also working as mall security guards,
indicating “‘we are gonna have an issue here.’”

Id. ¶ 26.

After ordering Ms. Crosby to stay out of the theater, the three
Deputies approached Mr. Saylor and told him he had to leave the
theater.
Mr. Saylor refused to leave and, according to the First
Amended Complaint,
two of the three deputies grabbed Mr. Saylor, one by
each arm, and tried to drag him from the theater while
4

telling him he was going to jail. As they neared the
rear of the theater with the struggle underway the
Deputies handcuffed Mr. Saylor with his hands behind
his back. Mr. Saylor was heard to scream “mommy,
mommy” and say “it hurts.”
At the back of the theater, Mr. Saylor –
handcuffed and held by the deputies – ended up on the
floor with at least one deputy on top of him. As the
deputies manhandled Mr. Saylor, they fractured his
larynx making it difficult for him to breathe.
Because this was apparent, the deputies rolled him to
his side, removed his handcuffs, and called emergency
medical technicians. It was too late – Mr. Saylor
suffocated.
Id. ¶¶ 27-28.

Mr. Saylor was later pronounced dead at Frederick

Memorial Hospital.
In the original complaint, ECF No. 1, Plaintiffs, Mr.
Saylor’s parents, individually and as personal representatives
of Mr. Saylor’s estate, named the Frederick County Sheriff’s
Department and Frederick County as Defendants, in addition to
Regal and the Deputies.1

In their First Amended Complaint, ECF

No. 19, they eliminated the Sheriff’s Department and the County
and, instead, added the State of Maryland, which is the
statutory employer of the Deputy Sheriffs.

1

The First Amended

Plaintiffs also named as a Defendant in both the original
Complaint and the First Amended Complaint, Hill Management
Services, Inc. (Hill Management), the property manager for the
Westview Promenade Mall and the purported joint employer of the
Deputies. Plaintiffs asserted survivor claims for negligence
(Count III) and gross negligence (Count VI) against this
Defendant. Hill Management filed an answer, but no dispositive
motion and, for this reason, the claims against it will not be
addressed in this Memorandum.
5

Complaint asserts the following claims against the Deputies:
survival claims on behalf of Mr. Saylor’s estate for negligence
(Count II), gross negligence (Count V), battery (Count VII), and
an excessive force claim under 42 U.S.C. § 1983 (Count IX).
Plaintiffs assert two survival claims against the State under
Title II of the Americans with Disabilities Act, 42 U.S.C. §
12131 et seq. (ADA), one based on a failure to train theory
(Count X) and one on the theory that the State, as the joint
employer of the Deputies, is liable for actions the Deputies
took in violation of Title II (Count XI).

Plaintiffs also

assert survival claims against Regal for negligence (Count I)
and gross negligence (Count IV).

Finally, Plaintiffs, in their

individual capacities, bring a Wrongful Death action against all
Defendants (Count XII).
In their respective motions, the Deputies, Regal, and the
State of Maryland all seek dismissal of all claims asserted
against them.

Regal and the State also purport to move, in the

alternative, for summary judgment.

To the extent Regal is

actually seeking summary judgment, it appears to rely on witness
statements given to the police as part of the investigation of
this incident.

These statements suggest that Defendant

Rochford, at least initially, attempted to coax Mr. Saylor to
leave the theater in a polite and professional manner and that
it was Mr. Saylor that first became disruptive.
6

ECF No. 28-1.

In response, Plaintiffs attach to their opposition other witness
statements that report that Mr. Saylor was sitting peacefully
before the Deputies attempted to extract him from his seat.

ECF

No. 37-2.
While Regal submitted exhibits with its motion and
captioned the motion as one seeking, in the alternative, summary
judgment, in discussing the standard of review to be applied to
its motion, Regal provides only the standard for a motion to
dismiss under Rule 12(b)(6), making no mention of the standard
for a summary judgment motion under Rule 56 of the Federal Rules
of Civil Procedure.

Instead of presenting that alternative

standard, Regal suggests that the Court can consider its
proffered witness statements without converting the motion to
one under Rule 56 because those statements are being submitted
to “address and rebut the reference to such statements and
reliance thereon by Plaintiffs.”

ECF No. 28 at 2.

Plaintiffs did make a single passing reference to “numerous
witness accounts” in their First Amended Complaint.
¶ 24.

ECF No. 19

Assuming these are the same accounts that Plaintiffs

attached to their opposition, these are handwritten “Statements”
apparently prepared at the theater shortly after the
confrontation.

ECF No. 37-2.

In contrast, the documents

submitted by Regal with its motion are typewritten “Supplemental
Incident Reports” prepared by members of the Sheriff’s
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Department based on interviews they conducted with witnesses,
mostly at the sheriff’s office.

Not only are these documents

different than those referenced in the Complaint, they are not
the type of documents that are “integral to and explicitly
relied upon in the complaint” which the Court would be permitted
to consider when ruling on a motion to dismiss.

See Am.

Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234
(4th Cir. 2004).

Accordingly, the Court will neither convert

Regal’s motion to one for summary judgment, nor consider the
exhibits submitted by Regal with its motion.
Similarly, the State attached an exhibit to its motion and
captioned its motion as one, in the alternative, for summary
judgment.

The State, however, also provided no substantive

discussion of the standard for such a motion except for the
conclusory statement that “if it is determined that the motion
should be treated as one for summary judgment, the Court should
enter summary judgment in favor of Defendants as to all claims,
there being no genuine issue of material fact.”
6.2

ECF No. 44-1 at

The State’s exhibit is a section of its General Order Manual

addressing the “Investigation of Persons with Mental Illness.”
ECF No. 44-2.

Not only is this document only marginally

2

Because of the presence of tables of contents and other
introductory materials, the pagination of the ECF documents is
often different than that of the original documents. The Court
will reference the pagination of the original documents.
8

relevant to individuals with Down Syndrome and the incident that
gave rise to this action,3 it is certainly not dispositive as to
whether the State had an appropriate policy and proper training
procedures in place so as to entitle the State to the entry of
judgment in its favor.

As with Regal’s motion, the Court will

not convert the State’s motion to one for summary judgment, nor
will it consider matters outside the Complaint in resolving this
motion.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).

Such determination is a “context-

specific task,” Iqbal, 556 U.S. at 679, in which the factual
allegations of the complaint must be examined to assess whether
they are sufficient “to raise a right to relief above the
speculative level.”

Twombly, 550 U.S. at 555.

“[A] court

accepts all well-pled facts as true and construes these facts in
3

As Plaintiffs note, this portion of the General Order relates
to dealings with persons with mental illness who may be
experiencing loss of memory, delusions, depression,
hallucinations, hyperactivity, incoherence and extreme paranoia.
ECF No. 44-2 at 2. As such, it is of marginal relevance in
dealing with individuals not with mental illness, but with
developmental disabilities, like Mr. Saylor.
9

the light most favorable to the plaintiff in weighing the legal
sufficiency of the complaint.”

Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009)
(citations omitted).

Such deference, however, is not accorded

to labels and legal conclusions, formulaic recitations of the
elements of a cause of action, and bare assertions devoid of
further factual enhancement.

Iqbal, 556 U.S. at 678.

III. DISCUSSION
A. The Deputies’ Motion to Dismiss
1. Section 1983 Claim (Count IX)
To state a claim under 42 U.S.C. § 1983, a plaintiff must
aver that a person acting under color of state law deprived him
of a constitutional right or a right conferred by a law of the
United States.

Wahi v. Charleston Area Med. Ctr., 562 F.3d 599,

615 (4th Cir. 2009).

Plaintiffs have alleged in their First

Amended Complaint, and the Deputies do not dispute, that in
their interaction with Mr. Saylor they, as “duly appointed
sheriff’s deputies . . . authorized to enforce the laws of the
State of Maryland,” were “acting under color of state law.”
No. 19 ¶ 75.

ECF

As to the constitutional right of which Mr. Saylor

was deprived, Plaintiffs in their First Amended Complaint
alleged that he was deprived of his Fourth Amendment rights “to
be free from unreasonable seizures and the use of unreasonable
force.”

Id. ¶ 76.

In their opposition to the Deputies’ motion,
10

they clarify that they are not bringing a claim for false arrest
but are alleging the unreasonable use of force in the course of
Mr. Saylor’s arrest.

ECF No. 30 at 6-7.

To establish such a claim, a plaintiff must show that the
force used in making the arrest was not “objectively reasonable
in light of the facts and circumstances confronting [the
arresting officers].”

Graham v. Connor, 490 U.S. 386, 397

(1989) (internal quotations omitted).

Objective reasonableness

is highly fact-specific and requires a “totality of the
circumstances” analysis.
(1985).

Tennessee v. Garner, 471 U.S. 1, 8-9

The Supreme Court in Graham set out the following

factors to be considered in conducting that analysis:

“the

severity of the [suspected] crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.”

490 U.S. at 396.

In

determining whether the use of force was unreasonable, courts
have also considered the extent of the injury caused by the use
of that force.

Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir.

2003).
Furthermore, the Fourth Circuit has cautioned courts when
analyzing the objective reasonableness of the amount of force
used by a law enforcement officer not to adopt a “segmented view
of [a] sequence of events,” where “each distinct act of force
11

becomes reasonable given what [the officer] knew at each point
in this progression.”
Cir. 1994).

Rowland v. Perry, 41 F.3d 167, 173 (4th

Such an approach, the court opined, “miss[es] the

forest for the trees.”

Id.

Instead, the Fourth Circuit

instructed, “[t]he better way to assess the objective
reasonableness of force is to view it in full context, with an
eye toward the proportionality of the force in light of all the
circumstances.

Artificial divisions in the sequence of events

do not aid a court's evaluation of objective reasonableness.”
Id.
Viewed under this analysis, the Court concludes that the
Deputies’ conduct, at least as alleged, could be found to have
constituted an unreasonable use of force.

The first Graham

factor - the seriousness of the suspected crime – undoubtedly
points in Plaintiffs’ favor.

The Deputies acknowledge that, at

the time that they initiated this encounter, “the crimes Mr.
Saylor was committing were relatively minor misdemeanors of
trespass, disturbing the peace, and theft of services.”

ECF No.

26-1 at 13.
As to the second Graham factor - whether Mr. Saylor posed
an immediate threat to the officers or others – the allegations
in the First Amended Complaint would indicate that, before being
approached by the Deputies, Mr. Saylor was sitting quietly in
the theater, posing a threat to no one.
12

Were it not for the

intervention of the Deputies, there is no reason to believe he
would not have remained sitting quietly in his seat.
As to the third Graham factor – whether Mr. Saylor resisted
arrest or was evading arrest by flight – it is true that, once
the Deputies attempted to drag him from his seat, he did resist.
The Court notes, however, that Mr. Saylor responded in precisely
the way that Ms. Crosby informed the Deputies he would respond,
because of his disability, if touched by strangers.
Furthermore, just as Mr. Saylor posed no threat to anyone until
approached by the Deputies, there was no indication that he
would have fled the scene.

While the Deputies may justifiably

quibble with the technical validity of Plaintiffs’ conclusion
that Mr. Saylor “effectively detained himself in the theater
quietly,” ECF No. 30 at 9, there was certainly little risk that
Mr. Saylor would not have remained in the theater, at least
until the end of the movie.
Turning to the seriousness of injury factor that courts
also take into consideration, here, Mr. Saylor died as a direct
result of the course of events set into motion by the Deputies.
While it may not have been foreseeable that Mr. Saylor would
suffer a fatal injury, the possibility of significant injury
would certainly have been evident when the decision was made to
drag an obese individual with a mental disability out of his
chair and down a ramp, particularly when the Deputies were told
13

that, because of his disability, Mr. Saylor was likely to become
upset and angry.4
The Court notes that, before entering the theater and
confronting Mr. Saylor, there were a number of other
alternatives available to the Deputies instead of pursuing a
course they were told would lead to a potentially dangerous
interaction.

They could have allowed Mr. Saylor’s caregiver,

Ms. Crosby, to enter the theater to attempt to persuade Mr.
Saylor to leave, or at least allowed her to accompany them and
function as a mediator in the confrontation.

It is alleged that

they were aware that Mr. Saylor’s mother was on the way and they
could have simply waited for her to arrive and had her either
convince her son to leave or, failing that, to pay for a ticket.
While the Fourth Circuit has noted that the relevant inquiry is
not whether the law enforcement officer took the “the most
reasonable course of action . . . [n]onetheless, the
availability of other reasonable, or even more reasonable,
options is not completely irrelevant to our inquiry.”

Young v.

Prince George’s Cnty., Md., 355 F.3d 751, 757 n.2 (4th Cir.
2004).

4

Plaintiffs characterize the Deputies’ actions as “seizing and
ultimately killing Mr. Saylor as a penalty for his attempt to
integrate himself into the societal mainstream by coming to a
movie theater.” ECF No. 30 at 21. The Court finds this
rhetoric particularly inappropriate and unhelpful.
14

The Court also notes that, when the Deputies were presented
with these various alternatives, there was no emergent situation
requiring any rapid response on their part.

This lack of an

emergent situation makes this case distinguishable from the
typical excessive force case and the cases on which the Deputies
rely.

The Deputies suggest that “[t]he facts and circumstances

in the instant case are similar to those in Brown v. Gilmore,”
278 F.3d 362 (4th Cir. 2002).

ECF No. 39 at 5.

In Brown, the

plaintiff was arrested for disorderly conduct based on her
alleged failure to comply with an officer’s repeated
instructions to move her car from a busy roadway after a minor
traffic accident.

In support of her excessive force claim, she

asserted that the arresting officer, “handcuffed her, causing
her wrist to swell, dragged her to the car and then pulled her
into his cruiser.”

Id. at 369.

no injury of any magnitude.”

Significantly, she “allege[d]

Id.

The Fourth Circuit held that

“the circumstances justified the minimal level of force applied
by [the officer],” id., and concluded that there was no
constitutional infraction.

Id. at 370.

When describing those circumstances, the Fourth Circuit
noted that it was “undisputed that the situation on the street
was tense.”

Id. at 369.5

The court also noted that “[t]he

5

In holding that a reasonable officer would believe that he had
probable cause to arrest the plaintiff, the court noted that her
15

officers here did not have the option of delaying decision in
order to determine what a fact finder months or years later
might make of the situation.
the spot.”

Id. at 370.

They had to get traffic moving on

In the situation confronting the

Deputies at the Regal Cinema as alleged by Plaintiffs, there was
no similar tense situation requiring any immediate response
until the Deputies, themselves, created a tense situation.
This Court finds that a different excessive force decision
from the Fourth Circuit, Rowland v. Perry, 41 F.3d 167 (4th Cir.
1994), more closely parallels Plaintiffs’ allegations against
the Deputies.

The plaintiff in Rowland, as described by the

court, was a “37 year old, mildly retarded” individual with “a
severe speech impediment.”

Id. at 171.

One afternoon, while

the plaintiff was waiting for a bus at a downtown bus station, a
police officer observed him pick up a five dollar bill that had
been dropped by a woman at the station ticket window.

The

officer then observed the plaintiff pocket the five dollar bill
and walk away without attempting to return the money to the
woman.

The officer approached the plaintiff and told him to

return the money to the woman.

car had been blocking traffic on a major Myrtle Beach
thoroughfare during Memorial Day weekend for over half-an-hour
and that the request that the plaintiff move her car should have
been expected “before the tempers of other motorists reached the
boiling point.” Id. at 368.
16

While there were factual disputes as to precisely what
happened next, the officer testified that he had observed the
plaintiff simply wave the money in front of the openly
distressed woman and then leave the station with the money.
officer followed the plaintiff.

The

He claimed that the plaintiff

then began to run and he chased him to a nearby construction
site.

The plaintiff asserted that he never ran but was standing

at a nearby corner when the officer approached him.

According

to the plaintiff, the officer then grabbed his collar and jerked
him around, yelling at him as he did so.

Out of fright, the

plaintiff asserted he “instinctively tried to free himself.”
Id. at 172.

The officer asserted that the plaintiff first

shoved him in an attempt to escape, and only then did he grab
him by the collar.

The parties agreed, however, that the

officer “ultimately used disabling force to gain control over
[the plaintiff].”

Id. at 171.

In the course of the struggle,

the officer wrenched the plaintiff’s leg causing a serious knee
injury.
The Fourth Circuit concluded that “a jury could find that
no reasonable officer could have believed his conduct to be
lawful in light of the circumstances known to him at the time.”
Id. at 174.

Applying the first two Graham factors, the court

observed that “there is no dispute here that the offense was a
minor one” and that the plaintiff “posed no threat to the
17

officer or anyone else.”

Id.

As to the third factor, while the

court acknowledged that there was some evidence that the
plaintiff offered resistance, the plaintiff maintained that “he
resisted only to the extent of instinctively trying to protect
himself from the defendant’s onslaught.”

Id.

“When all the

factors are considered in toto,” the court held, “it is
impossible to escape the conclusion that a man suffered a
serious leg injury over a lost five dollar bill.”

Id.

Like the defendant in Rowland, the Deputies urge this Court
to review their encounter with Mr. Saylor as a segmented
sequence of events.

The Deputies suggest that, when they

ordered him to leave the theater and he refused, it became
reasonable to arrest him.

Once they determined to arrest him,

they suggest having “two Deputies grabbing one of Mr. Saylor’s
arms and together trying to drag him out of the theater . . .
was certainly an objectively reasonable use of force.”
26-1 at 14.

ECF No.

When, in response to his being dragged out of the

theater, Mr. Saylor “engaged in a course of struggle,” id., the
Deputies suggest it was reasonable to handcuff Mr. Saylor’s
hands behind his back.

Finally, once the struggle was underway,

the Deputies suggest that the escalating use of force that
resulted in Mr. Saylor being on the ground with a Deputy on top
of him, however that escalation happened, was also reasonable.

18

The result of this sequence of events, however, was that a man
died over the cost of a movie ticket.
In addition to arguing that there was no constitutional
violation, the Deputies also assert that they are entitled to
qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800
(1982).

Under Harlow, government officials performing

discretionary functions are entitled to qualified immunity from
liability for damages to the extent that “their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”
818.

457 U.S. at

The entitlement to qualified immunity involves a two

pronged inquiry: “first whether a constitutional violation
occurred and second whether the right violated was clearly
established.”
2010).

Melgar v. Greene, 593 F.3d 348, 353 (4th Cir.

As this Court has already determined that the

allegations in the First Amended Complaint could support a
finding of a constitutional violation, the pertinent question is
whether “it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.”
v. Katz, 533 U.S. 194, 202 (2001).

Saucier

The question turns on the

“objective legal reasonableness of the action, assessed in light

19

of the legal rules that were clearly established at the time it
was taken.”

Pearson v. Callahan, 555 U.S. 223, 244 (2009).6

The Deputies assert that, in Maryland, a constitutional
right becomes “clearly established” only by a decision of the
United States Supreme Court, the Fourth Circuit Court of
Appeals, or the Maryland Court of Appeals and that, in their
assessment, there is no decision in these three classes of
decisions holding that their use of force in the particular
circumstances alleged here would be violative of any
constitutional right.

ECF No. 26-1 at 20-21.

The Fourth

Circuit has instructed, however, that while the “contours” of
the right “must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right,
[t]his is not to say that an official action is protected by
qualified immunity unless the very action in question has

6

As an additional argument against the Deputies’ entitlement to
qualified immunity, Plaintiffs assert that, because the Deputies
were off duty, they were acting outside of the scope of their
government employment and thus, not entitled to qualified
immunity under any circumstances. ECF No. 30 at 14. Like
deputies in most if not all sheriff’s departments in Maryland,
off-duty deputies of the Frederick County Sheriff’s Department
revert to on-duty status where law enforcement action is taken.
See ECF No. 39-1 (Frederick Cnty. Sheriff’s Office Admin.
Manual). Arrest is a quintessential law enforcement action. As
such, the Deputies were acting as law enforcement officers and
were potentially entitled to qualified immunity while so acting.
See Drewitt v. Pratt, 999 F.2d 774 (4th Cir. 1993) (finding offduty police officer working as restaurant security guard was
entitled to qualified immunity).
20

previously been held unlawful . . . .”

Jones, 325 F.3d at 531.

The court continued:
The standard is again one of objective reasonableness:
the “salient question” is whether “the state of the
law” at the time of the events at issue gave the
officer “fair warning” that his alleged treatment of
the plaintiff was unconstitutional. Officials can
still be on notice that their conduct violates
established law even in novel factual circumstances.
Although earlier cases involving “fundamentally
similar” or “materially similar” facts can provide
especially strong support for a conclusion that the
law is clearly established, they are not necessary to
such a finding.” Even though the facts of a prior
case may not be “identical,” the reasoning of that
case may establish a “premise” regarding an
unreasonable use of force that can give an officer
fair notice that his conduct is objectively
unreasonable.
Id. at 531-32 (internal citations omitted).
The Court believes that the Fourth Circuit’s decision in
Rowland, both by the similarity of its facts and its instruction
that the conduct of officers is not to be viewed as an
artificially divided sequence of events, gave fair warning to
the Deputies that their conduct was unreasonable, at least under
the facts as alleged in the First Amended Complaint.

For that

reason, the Court will deny the Deputies’ motion to dismiss on
the ground of qualified immunity.
That is not to say that the Court might not reach a
different decision on a motion for summary judgment where the
Court would have the benefit of a fuller record.

The Court

notes that there appears to be some disagreement or uncertainty
21

as to precisely what Ms. Crosby may have told the Deputies prior
to their confrontation with Mr. Saylor.

See ECF No. 39 at 4 n.3

(noting that, while implied in Plaintiffs’ Opposition, it was
not alleged in the Complaint that Mr. Saylor’s mother would pay
for an additional ticket if need be).

There is an apparent

disagreement as to whether Mr. Saylor was sitting quietly before
he was approached and how quickly he may have escalated the
tension in the situation.

See id. at 11 (referencing witness

statements that contradicted the allegation that Mr. Saylor was
sitting quietly and that he began cursing and yelling when
requested to leave).
Perhaps the most significant unsettled question is the
reason for the escalation in the Deputies’ use of force.

While

it would seem apparent, given the nature of the injury suffered
by Mr. Saylor and the fact that Mr. Saylor ended up on the floor
underneath a Deputy, that the level of force used on Mr. Saylor
increased dramatically, the cause and manner of that escalation
is unclear.

There even appears to be some confusion as to when

Mr. Saylor was handcuffed.

Plaintiffs seem to allege in the

First Amended Complaint that it was near the back of the
theater, but before he fell, see ECF No. 19 ¶¶ 27-28 (“As they
neared the rear of the theater with the struggle underway the
Deputies handcuffed Mr. Saylor with his hands behind his back”
and then he ended up on the floor), but the Deputies seem to
22

imply that he fell first, and they then handcuffed him.

ECF No.

26-1 at 4 (after stating that “Mr. Saylor suddenly fell to the
ground and brought all three deputies down as well for a short
time,” “[t]he Deputies used a chain of three (3) handcuffs to
handcuff Mr. Saylor behind his back, and tried to help him
stand”).

Furthermore, while Plaintiffs allege that the Deputies

manhandled Mr. Saylor and fractured his larynx, the Deputies
suggest that some of Mr. Saylor’s injuries might have been
caused by the lifesaving efforts of the EMS personnel.

Id. at

17 n.3.
The Court is well aware that qualified immunity is “an
immunity from suit rather than a mere defense to liability” and
thus, the question of qualified immunity should be resolved “at
the earliest possible stage in litigation.”
502 U.S. 224, 227 (1991).

Hunter v. Bryant,

Notwithstanding that principle, under

the facts as alleged by Plaintiffs, the Court finds the Deputies
are not entitled to qualified immunity.

If appropriate, the

court would certainly entertain a motion for summary judgment
raising the defense on a more fully developed record.
2. State Law Claims
The state law survival claims asserted by Plaintiffs
against the Deputies are for negligence (Count II), gross
negligence (Count V), and battery (Count VII).

The Deputies

assert that that they are entitled to qualified statutory
23

immunity from liability as to all of these claims under the
Maryland Tort Claims Act (MTCA).

Under the MTCA, State

personnel, including sheriffs and their deputies, are immune
from liability “for a tortious act or omission that is within
the scope of the public duties of the State personnel and is
made without malice or gross negligence.” Md. Code Ann., Cts. &
Jud. Proc. § 5–522(b); see also Md. Code Ann., State Gov’t § 12–
101(a)(6) (providing that sheriffs and their deputies are state
personnel under the MTCA).

For purposes of MTCA immunity,

“malice” refers to so-called “actual malice,” i.e., “conduct
characterized by evil or wrongful motive, intent to injure,
knowing and deliberate wrongdoing, ill-will or fraud.”

Lee v.

Cline, 863 A.2d 297, 310-11 (Md. 2004).
Plaintiffs argue that the Deputies are not immune from
liability for any of the claims asserted against them on the
ground that, in their interactions with Mr. Saylor, they were
not acting within the scope of their public duties but, instead,
were acting as private security guards.

As noted above,

however, supra at 20 n.6, at least by the time that the Deputies
determined to arrest Mr. Saylor, they had reverted to their
status as on-duty sheriffs’ deputies.

As the alleged wrongful

conduct occurred after that point, statutory immunity is at
least potentially available.

With regard to their negligence

claim, Plaintiffs’ only argument to defeat immunity is their
24

argument that the Deputies were not acting within the scope of
their public duties.

As the Court rejects that conclusion, the

Court finds that the Deputies are entitled to immunity from
liability on the negligence claim and that count will be
dismissed.
As to the gross negligence claim, however, the immunity
statute explicitly exempts that claim from its reach.

While the

Deputies claim that there are insufficient factual allegations
to support such a claim, the Court concludes that there are.
Maryland courts view gross negligence as “something more than
simple negligence, and likely more akin to reckless conduct.”
Taylor v. Harford Cnty. Dep't of Soc. Servs., 862 A.2d 1026,
1035 (Md. 2004) (emphasis in original).

It is “an intentional

failure to perform a manifest duty in reckless disregard of the
consequences as affecting the life or property of another, and
also implies a thoughtless disregard of the consequences without
the exertion of any effort to avoid them.”
Edison Co., 495 A.2d 838, 846 (Md. 1985).

Liscombe v. Potomac
Here, at least as

alleged by Plaintiffs, the Deputies ignored the warnings of Mr.
Saylor’s caregiver that confronting Mr. Saylor would lead to a
hostile reaction.

They also ignored the risk of asphyxiation in

handcuffing an obese individual behind his back, a risk
Plaintiffs assert is “well known in the law enforcement

25

community” and that includes an increased risk of death.

ECF

No. 19 ¶ 58.
As to the battery claim, Plaintiffs have alleged that this
conduct was “undertaken deliberately and with actual malice.”
Id. ¶ 67.

While the Deputies correctly note that bald

allegations of malice are insufficient to defeat immunity and
that a plaintiff “must allege with some clarity and precision
those facts which make the act malicious,” Green v. Brooks, 725
A.2d 596, 610 (Md. Ct. Spec. App. 1999), the Court finds that
the Deputies’ conduct, as alleged, could be considered to be
consistent with a finding of ill-will or intent to injure.

See

Okwa v. Harper, 757 A.2d 118, 129 (Md. 2000) (holding that a
plaintiff’s allegations that he was handcuffed, “roughly dragged
toward an exit,” and “forcibly put to the ground,” if believed
by the finder of fact, could lead to the inference that the
defendant officers were motivated by an improper motive or had
an intent to bring harm).

As with qualified immunity under

§ 1983, however, this statutory immunity might prove applicable
on a fuller factual record.
The Deputies also argue that the battery claim should be
dismissed because their touching of Mr. Saylor was privileged
based upon their right to place him under arrest.

The right to

arrest, however, does not give rise to a privilege to use an
unreasonable amount of force.

See French v. Hines, 957 A.2d
26

1000, 1037 (Md. Ct. Spec. App. 2008) (holding that “the
privilege that a law enforcement officer possesses to commit a
battery in the course of a legally justified arrest extends only
to the use of reasonable force, not excessive force.

To the

extent that the officer uses excessive force in effectuating an
arrest, the privilege is lost”).

Because the Court finds that

Plaintiffs’ allegations could support the conclusion that the
force used was excessive, Plaintiffs’ battery claim can also go
forward.

See Rowland, 41 F.3d at 174 (after permitting the

plaintiff’s § 1983 claims to go forward, holding that “[t]he
parallel state law claim of assault and battery is subsumed
within the federal excessive force claim and so goes forward as
well”); Young, 355 F.3d at 759 (same).
The Deputies’ final argument regarding Plaintiffs’ survivor
claims is that the claims are barred by the doctrines of
contributory negligence and/or assumption of risk.

While

possibly relevant to Plaintiffs’ negligence claim, the Court has
already determined that this claim will be dismissed on the
ground of statutory immunity.

The doctrines, of course, are not

applicable to a claim of battery.

See Saba v. Darling, 531 A.2d

696, 698 (Md. Ct. Spec. App. 1987) (noting that contributory
negligence is not applicable to a claim of assault and battery);
Janelsins v. Button, 648 A.2d 1039, 1045 (Md. Ct. Spec. App.

27

1994) (holding that the doctrine of assumption of risk does not
bar recovery for intentional torts).
As to the gross negligence claim, the question is more
complicated as Maryland courts apparently have yet to decide if
contributory negligence is a bar to such a claim.

Plaintiffs

point to a decision of the Maryland Court of Appeals, Liscombe,
supra, that assumed without deciding that the doctrine would not
be applicable to a gross negligence claim.

495 A.2d at 847.

They also rely on a decision from the District of Columbia,
whose common law is drawn from Maryland, holding that the
doctrine would not apply.

Muldrow v. Re-Direct, Inc., 493 F.3d

160, 165-66 (D.C. Cir. 2007).

The Court, however, is aware of

decisions pointing to a different result.

The Fourth Circuit

has noted that “Maryland never has held that contributory
negligence does not bar gross negligence” and opined that “many
cases have suggested just the opposite in dicta.”

Ramos v. S.

Maryland Elec. Co-op, Inc., 996 F.2d 52, 54-55 (4th Cir. 1993)
(citing as examples, Harrison v. Montgomery County Bd. of Educ.,
456 A.2d 894, 898 (Md. 1983) and Ladnier v. Murray, 572 F. Supp.
544, 547 (D. Md. 1983)).
The Court need not resolve this legal issue at this time as
there is an insufficient factual basis on which to conclude, as

28

a matter of law, that the doctrine should apply.7

“‘Ordinarily,

the question of whether the plaintiff has been contributorily
negligent is for the jury, not the judge, to decide.’”

Meyers

v. Lamer, 743 F.3d 908, 914 (4th Cir. 2014) (quoting Campbell v.
Balt. Gas & Elec. Co., 619 A.2d 213, 216 (Md. Ct. Spec. App.
1993)).

Certainly here, considering only the allegations in the

First Amended Complaint, there is an insufficient basis on which
to determine, inter alia, the effect of Mr. Saylor’s
developmental disability on his ability to appreciate the
implications of his conduct and whether his own conduct was a
proximate cause of his death.
3. Wrongful Death Claim
As for Plaintiffs’ Wrongful Death claim, Count XII, the
Deputies do not appear to challenge that Plaintiffs are proper
plaintiffs for a wrongful death action, or that this action was
timely filed under the statute.

Instead, the Deputies suggest

that Plaintiffs have improperly joined all of their separate
wrongful death claims in a single claim in a single count.
No. 26-1 at 22.8

ECF

The Court disagrees.

7

The Deputies make no serious argument that the applicability of
the doctrine of assumption of risk could be decided on a motion
to dismiss.
8

The Deputies also challenge Plaintiffs’ entitlement to punitive
damages under the Wrongful Death Statute. ECF No. 26-1 at 21
n.4. Maryland courts have consistently held that “punitive
damages are not recoverable in cases arising under the wrongful
29

Maryland’s Wrongful Death Statute provides that “[a]n
action may be maintained against a person whose wrongful act
causes the death of another.”
§ 3-902(a).

Md. Code Ann., Cts. & Jud. Proc.

A “wrongful act” is defined as “an act, neglect, or

default . . . which would have entitled the party injured to
maintain an action and recover damages if death had not ensued.”
Id. § 3-901(e).

Thus, to the extent that Plaintiffs prevail on

any claim brought on the estate’s behalf as a survivor action,
they will have established a “wrongful act.”

The only

additional contested element that Plaintiffs would then need to
prove to establish a wrongful death action is that they
sustained damages from the loss of their son.

See Stewart v.

United Electric Light and Power Co., 65 A. 49 (1906).
Plaintiffs have adequately alleged that element, ECF No. 19 ¶
101.
B. The State’s Motion to Dismiss
1. Wrongful Death Claim (Count XII)
The State first argues that the wrongful death claim
against it must be dismissed as the State has not waived its
Eleventh Amendment immunity for tort action brought in federal
court.

While the State has made a limited waiver of its

death statute.” Cohen v.
Spec. App. 1983). To the
punitive damages in their
Compl., Prayer for Relief

Rubin, 460 A.2d 1046, 1056 (Md. Ct.
extent that Plaintiffs are seeking
individual capacities, see First Am.
at (b), that prayer will be stricken.
30

sovereign immunity in the MTCA, that waiver is expressly limited
to suits brought in the state courts.
Gov’t § 12-104(a)(1).

Md. Code Ann., State

Plaintiffs make no response to this

argument and the State’s motion will be granted as to Count XII.
2. Failure to Train Claim under Title II of the ADA
Count X)
As to Plaintiffs’ “failure to train” claim under Title II
of the ADA, the State is correct that the Fourth Circuit has yet
to explicitly recognize such a claim in this particular context.
ECF No. 44-1 at 10-11 (citing Waller v. City of Danville, 556
F.3d 171, 177 n.3 (4th Cir. 2009)).

There is no indication in

Waller, or in any other Fourth Circuit decision, however, that
would indicate that the Fourth Circuit would not recognize an
ADA Title II failure to train claim under the appropriate
circumstances.

For the reasons that follow, the Court finds

that such a claim is viable and that Plaintiffs have
sufficiently pled the elements of such a claim.
Title II of the ADA prohibits discrimination by any public
entity, including states and their instrumentalities and
agencies.

42 U.S.C § 12131.

“Subject to the provisions of this

subchapter, no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any

31

such entity.”

42 U.S.C § 12132.

To state a claim under Title

II, a plaintiff must allege that, “(1) [he] has a disability,
(2) [he] is otherwise qualified to receive the benefits of a
public service, program, or activity, and (3) [he] was excluded
from participation in or denied the benefits of such service,
program, or activity, or otherwise discriminated against, on the
basis of [his] disability.”

Constantine v. Rectors & Visitors

of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005).

There

is no dispute that Mr. Saylor was an individual with a
disability.

At issue is whether the State deprived him of the

benefits of a service, program, or activity of which he was
qualified to receive.
The “services, programs, and activities” of public entities
have been held to include “all core functions of government” and
that “[a]mong the most basic of these functions is the lawful
exercise of police powers, including the appropriate use of
force by government officials acting under color of law.”
Schorr v. Borough of Lemoyne, 243 F. Supp. 2d 232, 235 (M.D. Pa.
2003).

Specifically, courts have recognized the applicability

of Title II in the context of the arrest of individuals with
disabilities.

Waller, 556 F.3d at 174.

Claims in this context

typically fall within two general categories.

The first type of

claim is that of “wrongful arrest, where police arrest a suspect
based on his disability, not for any criminal activity.”
32

Id.

An example would be where an individual with a disability
resulting in slurred speech is arrested for driving under the
influence.

See Jackson v. Inhabitants of Town of Sanford, Civ.

No. 94-12, 1994 WL 589617, *6 (D. Me. Sept. 23, 1994).

The

second type of claim is that of failure to provide a “reasonable
accommodation”, that is, “where police properly arrest a suspect
but fail to reasonably accommodate his disability during the
investigation or arrest, causing him to suffer greater injury or
indignity than other arrestees.”

Waller, 556 F.3d at 174.

Examples of this type of claim would be a paraplegic arrestee’s
claim for injuries received when transported in a police van
without wheelchair restraint, Gorman v. Bartch, 152 F.3d 907,
912 (8th Cir. 2012), or the failure to provide the means of
effective communications to a deaf individual during an police
investigation.

See Seremeth v. Bd. Of Cnty. Comm’rs Frederick

Cnty., 673 F.3d 333, 339 (4th Cir. 2012) (holding that such a
claim falls within the ambit of Title II but finding that
exigent-circumstances rendered the accommodations that were
provided reasonable).
Relying on the legislative history of Title II, courts have
also recognized an implicit duty to train officers as to how to
interact with individuals with disabilities in the course of an
investigation or arrest:

33

“In order to comply with the non-discrimination
mandate, it is often necessary to provide training to
public employees about disability. For example,
persons who have epilepsy, and a variety of other
disabilities, are frequently inappropriately arrested
and jailed because police officers have not received
proper training in the recognition of and aid of
seizures. Such discriminatory treatment based on
disability can be avoided by proper training.”
Lewis v. Truitt, 960 F. Supp. 175, 178 (S.D. Ind. 1997) (quoting
H.R. Rep. No. 101–485, pt. III, 101st Cong., 2nd Sess. 50,
reprinted in 1990 U.S.C.C.A.N. 473) (emphasis added by this
Court); see also Hogan v. City of Easton, Civ. No. 04-759, 2004
WL 1836992, at *7 (E.D. Pa. Aug. 17, 2004) (concluding that “the
Complaint states a valid claim under the ADA based on the
failure of the [defendants] to properly train its police
officers for encounters with disabled persons”).
Plaintiffs premise their Title II claim on the contention
that “Mr. Saylor was qualified to receive the benefit of
deputies properly trained to interact with members of the
community with developmental disabilities,” that the State
denied him the benefit of that proper training, and that denial
proximately caused his death.

ECF No. 45 at 7-8.

Plaintiffs

argue that they have sufficiently alleged both types of arrest
cases.

They argue that Mr. Saylor was wrongfully arrested in

that his refusal to leave the theater was “a manifestation of
his disability, not criminal intent” and thus, he was arrested
“‘because of his disability.’”

Id. at 16 (quoting Lewis, 960 F.
34

Supp. at 179).

They also argue that, once the Deputies

determined to take Mr. Saylor into custody, the manner in which
they did so failed to accommodate his disability.
The State proffers a number of challenges to Plaintiffs’
Title II failure to train claim.

First, relying on Waller and

Paulone v. City of Frederick, 787 F. Supp. 2d 360, 378 (D. Md.
2011), the State argues that, because the Fourth Circuit has yet
to recognize such a cause of action, “Plaintiffs’ claim brought
under that legal theory necessarily fails and should be
dismissed.”

ECF No. 44-1 at 11.

In Waller, however, the Fourth

Circuit stated only that “we do not reach the question of
whether the ADA supports a claim for failure to train,” because
they found that, in the case before it, the officers met the
duty of reasonable accommodation.

556 F.3d at 177 n.3.

Similarly, in the portion of the Paulone decision quoted by the
State, this Court simply noted that the Fourth Circuit had “yet
to recognize” such a claim.

787 F. Supp. 2d at 378.

Furthermore, the Paulone quotation was actually taken from a
discussion of claims brought against Frederick County and this
Court alluded to the possibility that “[b]ecause the State, and
not the County, is liable for any ADA violation by the Sheriff's
personnel, it follows that the State, and not the County, would

35

be liable for any failure to train.”

Id.9

That the Fourth

Circuit has yet to have the opportunity to reach the issue is no
indication that it would not follow other courts and recognize
such a claim.
The State next invokes limitations recognized by courts on
the requisite scope of modifications and accommodations that
must be adopted by public entities for the benefit of
individuals with disabilities.

Quoting Tennessee v. Lane, the

State notes that “‘Title II does not require States to employ
any and all means to make . . . services accessible to persons
with disabilities.’”
531-32 (2004)).

ECF No. 44-1 at 15 (quoting 541 U.S. 509,

Quoting Sears v. Bradley County Government, the

State protests that Title II does not “put government agencies
‘on notice of an exhaustive set of particular accommodations and
policies to be proactively implemented with respect to every
conceivable disability.’”

Id. (quoting 821 F. Supp. 2d 987, 994

(E.D. Tenn. 2011)).

9

In a previous decision in that action, this Court found that
the State of Maryland had a duty under the ADA to provide deaf
interpreters in court-ordered alcohol education programs and
that by alleging that the State “breached that duty by failing
to train [its Division of Parole and Probation] to provide such
free service” the plaintiff stated a claim for negligent
supervision and training. Paulone v. City of Frederick, 718 F.
Supp. 2d 626, 638 (D. Md. 2010). Because that claim was brought
as a negligence claim under state law, the Court subsequently
held that the failure to train claim against the State was
barred by sovereign immunity. Paulone v. City of Frederick,
2010 WL 3000989, at *3 (D. Md. July 26, 2010).
36

The accommodation envisioned by Plaintiffs does not
approach the employment of “any and all means” or an
anticipation of “every conceivable disability.”

Plaintiffs

suggest that following the advice of the caregiver of a clearly
disabled individual and simply waiting would have been the most
logical accommodation.

From the allegations in the First

Amended Complaint, it would not appear that the Deputies were
trained to make any modification at all in their treatment of
individuals with developmental disabilities.10

They did not

10

As noted above, the State submitted with its motion a copy of
the section of the Frederick County Sheriff’s Office General
Order regarding the “Investigation of Persons with Mental
Illness,” ECF No. 44-2, and argues that the failure to train
claim against the State should be dismissed because “the Sheriff
had a policy in the General Order Manual that provided specific
protocols for interacting with persons suffering from mental
illness or disease.” ECF No. 44-1 at 14 (emphasis in original).
While the Court has determined that it will not consider this
exhibit at this stage in the litigation, it notes that the
General Order recognizes that an appropriate response when
dealing with person with mental illness includes:
Obtaining relevant information from family members,
friends, others at the scene who know the individual
and his/her history.
. . .
Remain[ing] calm and avoid overacting
. . .
Actions that deputies should avoid include . . .
[t]ouching the person (unless essential to safety);
[c]rowding the person or moving into his or her zone
of comfort
37

appear to have made any adjustment in their response to Mr.
Saylor.
In challenging Plaintiffs’ failure to train claim, the
State relies heavily on a decision of the First Circuit,
Buchanan v. Maine, 469 F.3d 158 (1st Cir. 2006).
44-1 at 12; ECF No. 47 at 2-3, 9.

See ECF No.

In Buchanan, deputies of the

county sheriff’s office fatally shot a mentally ill individual
after making a warrantless entry into his home for the purpose
of checking on his safety and welfare.

469 F.3d at 161.

Among

other claims, the plaintiff asserted under Title II that the
county failed to adequately train its officers on the needs of
the mentally ill public.

469 F.3d at 176.

In affirming the

grant of summary judgment for the county,11 the court concluded

ECF No. 44-2 at 2-4. The General Order also instructs, “[o]nce
sufficient information has been collected about the nature of
the situation, and the situation has been stabilized, there are
a range of options deputies should consider when selecting an
appropriate disposition.” Id. at 4. While one of those
“options” is “[a]rrest, if a crime has been committed,” other
options offered include: “[o]utright release” and “[r]elease to
care of family care giver . . . .” Id. Thus, should these
guidelines be considered relevant to individuals with
developmental disabilities, the argument could be made that the
Deputies were not trained to follow or simply failed to follow
these guidelines in dealing with Mr. Saylor.
11

Unlike those in Maryland, sheriff deputies in Maine are
considered county agents, not state agents, for purposes of §
1983. The claims against the State of Maine in Buchanan
involved, not the actions of the sheriff’s deputies, but rather
the services rendered by the deceased’s mental health case
worker, a state employee, prior to the shooting incident. As
reasonable accommodations, the plaintiff asserted that the case
38

in language quoted by the State, that “‘[a]n argument that
police training, which was provided, was insufficient does not
present a viable claim that Buchanan was “denied the benefits of
the services . . . of a public entity” by reason of his mental
illness.’”

ECF No. 47 at 2 (quoting Buchanan, 469 F.3d at 177).

The State also suggests that its proffer of the portion of the
General Order Manual dealing with mental illness should be
dispositive of the training issue because “Buchanan dispelled
the notion that the ADA requires anything more than the same
type of policy provided by the State.”

ECF No. 47 at 2.

Among other grounds, Buchanan is distinguishable from the
case at bar in that it was decided on summary judgment with the
benefit of a fully developed record.

See 469 F.3d at 167

(specifically noting the “development of facts and a summary
judgment record before the court”).

The court had before it,

not only the sheriff’s department’s policy titled “Response to
Deviant Behavior,” but also a record that the deputies were
worker should have, inter alia, made weekly check-ups, performed
additional medical check-ups, and made other adjustments to his
treatment plan. Buchanan, 469 F.3d at 175. The portion of the
Buchanan opinion cited in the State’s Reply for the proposition
that the ADA does not “impose on the States a ‘standard of care’
for whatever medical services they render,” ECF No 47 at 2
(quoting Buchanan, 469 F.3d at 174), addressed the claims
related to the care provided by this mental health care worker,
not the conduct of the deputies. This difference is based, in
part, on the principle that “courts normally should defer to the
reasonable judgments of public health officials,” 469 F.3d at
174 (emphasis added), and, thus, this language quoted by the
State has little relevance to the case at bar.
39

actually trained on both that policy and the “Use of Force,” and
“also received additional training with respect to the
identification of mentally ill persons and methods to employ
when dealing with such persons.”

Id. at 177.

With the benefit

of that record, the court concluded it was able to “bypass the
question of whether Title II of the ADA imposes duties on a
county sheriff’s department to draft policies and train officers
on the needs of the mentally ill public” because, “[w]hether
obliged to do so by Title II or not, the County did in fact have
such policies and such training.”

Id.

Furthermore, this Court

notes that, unlike the State’s suggestion here that issuing a
policy addressing dealings with individuals with mental illness
absolves its responsibility to develop a policy relating to
those with developmental disabilities, see supra at 9 n.3, the
county in Buchanan was relying on a policy and training that
more directly addressed the disability at issue.
3. Vicarious Liability Under Title II
In Count XI, Plaintiffs assert that, as a joint employer of
the Deputies, the State is liable for their acts done in
violation of Title VII.

ECF No. 19 ¶ 93.

The State’s primary

argument for the dismissal of this claim is simply that the
Deputies did not violate the statute.

See ECF No. 44-1 at 19

(“Absent a violation by the individual officers, there can be no
governmental liability.”).

Because the Court has concluded that
40

the First Amended Complaint provides sufficient allegations to
establish that the Deputies violated Title II, and because it is
undisputed that the State is deemed the employer of the
Deputies, see Paulone, 787 F. Supp. 2d at 378, the Court will
deny the State’s motion as to this claim.

See also, Rosen v.

Montgomery Cnty., 121 F.3d 154, 157 n.3 (4th Cir. 1997) ("Under
the ADA and similar statutes, liability may be imposed on a
principal for the statutory violations of its agent.”).
4. Damages Against the State under Title II
Finally, the State contends that Plaintiffs cannot recover
monetary damages from the State because a plaintiff must show
intentional discrimination on the part of the defendant before
such damages can be recovered.

ECF No. 44-1 at 19.

In making

that argument, however, the State acknowledges that the Fourth
Circuit has yet to resolve whether compensatory damages are
available for failure to provide a reasonable accommodation
claims.

ECF No. 44-1 at 20.

This Court has reached the issue and has concluded that
“[a] successful plaintiff in a suit under Title II of the ADA .
. . is generally entitled to a ‘full panoply’ of legal and
equitable remedies.”

Paulone, 787 F. Supp. 2d at 373.

Following the majority of circuits that have reached the issue,
this Court held that “damages may be awarded if a public entity
‘intentionally or with deliberate indifference fails to provide
41

meaningful access or reasonable accommodation to disabled
persons.’”

Id. (quoting Mark H. v. Lemahieu, 513 F.3d 922, 938

(9th Cir. 2008), and collecting cases).

A plaintiff is entitled

to damages, “even if the violations resulted from mere
‘thoughtlessness and indifference’ rather than because of any
intent to deny Plaintiff’s rights.”

Id. (quoting Proctor v.

Prince George’s Hosp. Ctr., 32 F. Supp. 2d 820, 828 (D. Md.
1998)).

At this stage in the litigation, the allegations are

sufficient to meet the “deliberate indifference” standard.12
C. Regal’s Motion to Dismiss
The claims brought against Regal are claims of negligence
(Count I) and gross negligence (Count IV).

While cast in terms

of state law claims, they are clearly premised on an alleged
violation of Title III of the ADA.

In their First Amended

Complaint, Plaintiffs allege that, as a place of public
accommodation, Regal was “required to make reasonable
modifications in policies, practices, or procedures, when such
modifications are necessary to afford their goods, services,
facilities, privileges, advantages, or accommodations to

12

The State also argues, correctly, that punitive damages are
not available under Title II. See Constantine v. Rectors &
Visitors of George Mason Univ., 411 F.3d 474, 497 n.16 (4th Cir.
2005). To the extent that Plaintiffs are seeking punitive
damages from the State, that prayer will be stricken.
42

individuals with disabilities” and that Regal’s failure “to
modify its policies, practices, and procedures to permit Mr.
Saylor the time and assistance he required to leave the movie
theater (or to have his aide or mother buy him another $12.00
ticket) without the intervention of law enforcement was
negligent.”

ECF No. 19 at ¶¶ 35-36.13

For the reasons that

follow, the Court finds that Title III cannot be used to support
a negligence claim in this context and, furthermore, that the
actions of Regal were not a proximate cause of Mr. Saylor’s
death.
Title III of the ADA provides that “[n]o individual shall
be discriminated against on the basis of disability in the full
and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.”

42 U.S.C. §12182(a).

Regal concedes that its theater is a “place of public
accommodation” and thus, it is subject to the requirements of
Title III.

Regal correctly notes, however, that while

individuals with disabilities can pursue actions for injunctive
13

In opposing the motion to dismiss, Plaintiffs attempt to argue
that, even if Title III is found not to supply a statutory duty
to support their negligence claims, Regal breached a general
duty of reasonable care. ECF No. 37 at 18-19. The negligence
claim in the First Amended Complaint, however, clearly is
premised solely on an alleged breach of a duty under Title III
and the Court will consider it as it was pled.
43

relief to remedy discriminatory conditions in public
accommodations, it is well established that Title III does not
create a private cause of action for money damages.

See Goodwin

v. C.N.J., Inc., 436 F.3d 44, 50 (1st Cir. 2006) (citing an
“unbroken skein of cases makes manifest that money damages are
not an option for private parties suing under Title III of the
ADA”).
Recognizing that Title III cannot support an independent
claim for money damages, Plaintiffs suggest that the alleged
breach of the statutory duty created by Title III constitutes
prima facie evidence of common law negligence.

In making this

argument, Plaintiffs rely primarily on two decisions that have
recognized the viability of a negligence claim premised on a
defendant’s failure to comply with the certain “Accessibility
Guidelines” promulgated under the ADA (ADAAGs), Smith v. WalMart Stores, Inc. 167 F.3d 286 (6th Cir. 1999) and Theatre
Management Group, Inc. v. Dalgliesh, 765 A.2d 986 (D.C. 2001).
ECF No. 37 at 8-9.

In Smith, an elderly individual with a

disability fell in a Wal-Mart restroom which was not equipped
with safety features mandated under the ADAAGs, specifically,
grab bars and bathroom stalls large enough to provide
maneuvering space.

167 F.3d at 292-93.

While acknowledging

that a private party may not recover damages under Title III of
the ADA, the Sixth Circuit held that the plaintiff had “a
44

private right of action against Wal–Mart under Georgia law for
its failure to implement any ADA-mandated requirements designed
for the protection of persons such as herself.”

Id. at 295.

In Dagliesh, a partially disabled person was injured when
he fell while walking down a ramp in defendant’s theater.

The

trial court allowed the plaintiff to introduce as evidence of
negligence the fact that the slope of the ramp exceeded that
permitted under the ADAAGs.

The District of Columbia Court of

Appeals “sustain[ed] the trial judge’s admission of the ADA
standard as evidence of the care required in the circumstances.”
765 A.2d at 987.
Maryland law also allows, in certain circumstances, that
“the breach of a statutory duty may be considered some evidence
of negligence.”

Pananish v. W. Trails, Inc., 517 A.2d 1122,

1132 (Md. Ct. Spec. App. 1986).

Before that breach of statutory

duty can be used in that manner, however, three requirements
must be met:
First, the plaintiff must be a member of the class of
persons the statute was designed to protect. Second,
the injury suffered must be of the type the statute
was designed to prevent. Third, the plaintiff must
present legally sufficient evidence to demonstrate
that the statutory violation was the proximate cause
of the injury sustained.
Id. (citations omitted).

The requirement that the “injury

suffered must be of the type the statute was designed to
prevent” has generally limited the application of this principle
45

to the violation of statutes related to public safety or health
related issues and each of the Maryland cases on which
Plaintiffs rely is so limited.

See, e.g. Brooks v. Lewin Realty

III, Inc., 835 A.2d 616, 627 (Md. 2003) (violation of Baltimore
City Housing Code as evidence of negligence in lead paint
poisoning case); Wietzke v. Chesapeake Conference Ass’n, 26 A.3d
931, 954-55 (Md. 2011) (violation of county code regulating
“land-disturbing activity” as evidence of negligence in claim
arising from the flooding of a basement); Pahanish, 517 A.2d at
1132 (horse stable’s failure to comply with state licensing and
inspection regulations as evidence of negligence in claim
arising from a fall from a horse); Hammond v. Robins, 483 A.2d
379, 381 (Md. Ct. Spec. App. 1984) (violation of county animal
control ordinance as evidence of negligence where unleashed dog
caused bicycle accident); Flaccomio v. Eysink, 100 A. 510, 515
(Md. 1916) (violation of food and drug safety statute could
provide evidence of negligence in adulterated beverage claim).
Regal maintains, and the Court agrees, that as an antidiscrimination statute, Title III was not designed to prevent
the type of injury suffered here.

Smith and Dalgliesh, the ADA

cases on which Plaintiffs rely, are not inconsistent with that
conclusion.

In both, it was violation of public safety

regulations promulgated under the ADA and not the more general

46

anti-discrimination provisions of the statute itself that was
admitted as evidence of negligence.
In opposing Regal’s motion, Plaintiffs argue that the court
in Dalgliesh actually rejected the argument made by Regal here
that the use of violations of statutes as evidence of negligence
is limited to public safety statutes.

There is language in

Dalgliesh that, at first glance, appears to support the
Plaintiffs’ view.

Plaintiffs represent that the court in

Dalgliesh “held that even ‘statutes without [a public safety]
objective but setting forth an arguable standard of care are
admissible to prove negligence.’”

ECF No. 37 at 9 (quoting

Dalgliesh, 765 A.2d at 990, alteration by Plaintiffs).

The

sentence from which that quotation was lifted, however, was not
a holding.

The court, referring to a previous opinion on this

issue, indicated that the previous decision “summarized the law
as being that ‘code violations, especially [of] those
[enactments] with the public safety as an objective, are
evidence of negligence,’ implying that statutes without that
objective but setting forth an arguable standard of care are
admissible to prove negligence.”

Dalgliesh (quoting Jimenez v.

Hawk, 683 A.2d 457, 461 (D.C. 1996), first emphasis added in
Dalgliesh, second by this Court).

The Dalgliesh court went on

to note that “[u]ltimately, however, this case does not compel
us to resolve the issue of evidentiary use of statutes having no
47

public safety objective, because it is evident to us that the
ADA — and specifically the physical accessibility guidelines
promulgated under it — possess such an aim.”
(emphasis added).

Id. at 991

The actual holding of the decision was that

“[s]ince, as we conclude, the ADA standard governing ramps
embodies a public safety objective, it satisfied any
admissibility requirement of such purpose that can be gleaned
from our decisions.”

Id.

Thus, this decision is consistent

with Maryland case law and is of little support for Plaintiffs’
position.

See also, James v. Peter Pan Transit Mgmt, Inc., Civ.

No. 97-747, 1999 WL 735173, at *9 (E.D.N.C. Jan. 20, 1999)
(opining that “[t]he ADA was enacted “to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities” and
“therefore, it is unlikely that the North Carolina courts would
find that the ADA is a safety statute or that violation of the
ADA constitutes negligence per se”).14
Should the Court find that a violation of the ADA could be
used as evidence of negligence, as Plaintiffs suggest, the Court
would, nonetheless, conclude that the claim would fail because
Regal’s conduct was not the proximate cause of Mr. Saylor’s
14

Unlike Maryland courts, North Carolina courts have held that
the violation of a public safety statute is negligence per se.
Id. North Carolina, however, recognizes the same distinction as
Maryland between statutes that are public safety statutes and
those that are not.
48

injury and death.

In Pittway Corporation v. Collins, the

Maryland Court of Appeals provided a thorough and comprehensive
review of the principles of “proximate cause.”
786-792 (Md. 2009).

973 A.2d 771,

The court explained:

Proximate cause involves a conclusion that someone
will be held legally responsible for the consequences
of an act or omission. To be a proximate cause for an
injury, the negligence must be 1) a cause in fact, and
2) a legally cognizable cause. In other words, before
liability may be imposed upon an actor, we require a
certain relationship between the defendant's conduct
and the plaintiff's injuries. The first step in the
analysis to define that relationship is an examination
of causation-in-fact to determine who or what caused
an action. The second step is a legal analysis to
determine who should pay for the harmful consequences
of such an action.
Id. at 786 (internal quotations and citations omitted).
Where, as here, it is alleged that two or more independent
negligent acts bringing about an injury, the “substantial
factor” test controls the determination of “causation-in-fact.”
Id. at 787.

Factors to be considered in determining whether an

actor’s conduct was a “substantial factor” in bring about a
particular harm include:
“(a) the number of other factors which contribute in
producing the harm and the extent of the effect which
they have in producing it;
(b) whether the actor's conduct has created a force or
series of forces which are in continuous and active
operation up to the time of the harm, or has created a
situation harmless unless acted upon by other forces
of which the actor is not responsible.”

49

Id. (quoting Restatement (Second) of Torts § 433).
If causation-in-fact is established, which it arguably is
here, the inquiry turns to whether the defendant’s negligence
actions constitute a legally cognizable cause of the plaintiff’s
injuries.

This part of the proximate cause analysis considers

“whether the actual harm to a litigant falls within a general
field of danger that the actor should have anticipated or
expected.”

Id.

“The question of legal causation most often

involves a determination of whether the injuries were a
foreseeable result of the negligent conduct.

Other public

policy considerations that may play a role in determining legal
causation include “the remoteness of the injury from the
negligence [and] the extent to which the injury is out of
proportion to the negligent party's culpability. . . .”
788.

Id. at

Under this analysis, a “defendant may not be liable if it

appears highly extraordinary and unforeseeable that the
plaintiffs' injuries occurred as a result of the defendants'
alleged tortious conduct.”

Id. (emphasis added).

“Where it

appears to the court in retrospect that it is highly
extraordinary that an intervening cause has come into operation,
the court may declare such a force to be a superseding cause.”
Id. (quoting Restatement (Second) of Torts § 435 cmt. c).
In determining whether an intervening negligent act rises
to the level of a superseding cause that would absolve the
50

initial tortfeasor of liability, it is important to note that
courts consider not only the unforeseeability of the intervening
act, but also “the fact that its intervention brings about harm
different in kind from that which would otherwise have resulted
from the actor's negligence.”
of Torts § 442).

Id. (quoting Restatement (Second)

The Maryland Court of Appeals emphasized that

it “does not limit the superseding cause analysis to a
consideration of either the foreseeability of the harm suffered
by the plaintiffs or the foreseeability of the intervening acts
in its approach to determining superseding causation.

Rather,

[it] consider[s] both the foreseeability of the harm suffered by
the plaintiffs as well as the foreseeability of intervening acts
in determining superseding causation.”

Id. at 792 (emphasis in

original) (citations omitted).
Here, the Court notes that the alleged conduct of Regal is
extremely limited.

Plaintiffs allege that after talking with

Ms. Crosby and telling her that Mr. Saylor needed to purchase
another ticket or leave, the theater manager called for
assistance from an off-duty deputy sheriff and asked him “to
remove Mr. Saylor.”

ECF No. 19 ¶ 22.

Then, at the request of

the original deputy, the manager called for the assistance of
two other deputies.

Id. ¶ 26.

The Court finds that it was

“highly extraordinary and unforeseeable” that Mr. Saylor would
die as a result of that conduct.
51

Perhaps the clearest indication that Regal’s conduct was
not a proximate cause of Mr. Saylor’s death is the manner in
which Plaintiffs felt compelled to argue foreseeability in
opposing Regal’s motion.

Plaintiffs argue that “Regal’s

violation of Title III proximately caused Mr. Saylor’s death” on
the ground that “[o]nce Regal refused the necessary modification
and demanded that the deputies intervene and forcibly remove Mr.
Saylor from the theater, it was foreseeable that Mr. Saylor
would be injured.”

ECF No. 37 at 17 (emphasis added).

The

First Amended Complaint, however, simply alleges that, on
information and belief, the theater employee “asked” the
security guard “to remove Mr. Saylor.”

ECF No. 19 at ¶ 22.

It

does not allege that the employee “demanded” that he be removed
and it certainly does not allege that he demanded that he be
“forcibly” removed.

In their strained effort to establish

proximate cause on the part of Regal, Plaintiffs continue,
“[m]oreover, it was foreseeable that handcuffing an obese Mr.
Saylor on the ground while applying pressure to his back would
fracture his larynx.”

ECF No. 37 at 18.

To suggest that a

theater manager’s request to a law enforcement officer to remove
a patron from a theater would result in the patron being
handcuffed, ending up on the ground, with an officer on his
back, and, with a fractured larynx presumes a degree of

52

clairvoyance on the part of the manager that the law does not
impose.
The Court is aware that the proximate cause analysis is
generally “reserved for the trier of fact.”
at 792.

Pittway, 973 A.2d

Nevertheless, “it becomes a question of law in cases

where reasoning minds cannot differ.”

Id.

Furthermore, as

commentators quoted by the Maryland Court of Appeals opined, the
proximate cause analysis, particularly the concept of “‘legal
causation,’ depends ‘essentially on whether the policy of the
law will extend the responsibility for the conduct to the
consequences which have in fact occurred.’”

Id. (quoting

William Lloyd Prosser & W. Page Keeton, The Law of Torts § 42,
at 273).

Here, imposing liability on Regal would imply that,

where a citizen makes a request of a law enforcement officer to
intervene in a situation, that citizen should be held liable for
the officer’s use of excessive or deadly force should that
citizen’s request be found to have been negligently made.

While

the Court is painfully aware that law enforcement officers do,
at times, employ excessive and deadly force, the Court does not
believe that it has come to the point that citizens must now
anticipate that possibility when simply requesting the
assistance of the police.
The Court will dismiss the negligence claim against
Defendant Regal.

The Court will also dismiss the gross
53

negligence claim against Regal.

In addition to the reasons

given above for dismissing the negligence claim, the Court finds
that there is no support in the First Amended Complaint beyond
Plaintiffs’ bald and conclusory allegations for the conclusion
that Regal acted with either malice or a “wanton or reckless
disregard for human life or for the rights of others.”

See

Wells v. State, 642 A.2d 879, 884 (Md. Ct. Spec. App. 1994).
IV. CONCLUSION
For the above stated reasons the following claims will be
dismissed: the claim against the Deputies for Negligence (Count
II); the Wrongful Death claim against the State (Count XII); and
all claims against Regal (Counts I and IV).

In addition,

Plaintiffs’ prayer for punitive damages against the Deputies
under their Wrongful Death claim and against the State as to all
claims will be stricken.

A separate order will issue.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

DATED: October 16, 2014

54