June v. Thomasson

Filing 40

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 11/18/2015. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VINCENT E. JUNE. JR.,

:

Plaintiff,

:

v.

:

OFFICER E. THOMASSON,

:

Defendant.

Civil Action No. GLR-14-2450

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant’s, Officer Eric
Thomasson, Motion for Summary Judgment (ECF No. 27) and Motion to
Strike Exhibits Attached to Plaintiff’s, Vincent E. June, Jr.,
Opposition to Motion for Summary Judgment (ECF No. 32), and June’s
Motion to Strike Inadmissible Evidence (ECF No. 29).

June brings

this 42 U.S.C. § 1983 (2012) action (“Section 1983 action”) against
Officer Thomasson, alleging malicious prosecution in violation of
June’s rights under the Fourth and Fourteenth Amendments to the
United States Constitution to be free from unreasonable seizure.
Principally at issue is whether there is a genuine dispute that
there was probable cause to arrest June.
The

Court,

having

reviewed

the

Motions

and

supporting

documents, finds no hearing necessary pursuant to Local Rule 105.6
(D.Md. 2014).

For the reasons that follow, the Court will deny

June’s Motion and grant Officer Thomasson’s Motions.

BACKGROUND1
On August 30, 2011, Officer Thomasson, then a newly-minted
police officer with the Anne Arundel County Police Department, was
on patrol investigating a traffic accident when he learned of an
assault that occurred several blocks away.

Officer Thomasson

located the victim and identified him as Antonio Goodwin.

At some

point during his investigation of the assault, Officer Thomasson
turned his attention to June.

On September 15, 2011, Officer

Thomasson filed an Application for Statement of Charges against
June and then arrested him pursuant to a warrant on September 24,
2011.

After June successfully asserted an alibi defense, the State

dismissed the charges.
June brought a Section 1983 action against Officer Thomasson
on July 31, 2014.

(ECF No. 1). Officer Thomasson filed a Motion

for Summary Judgment on June 23, 2015.

(ECF No. 27).

June then

filed his Response in Opposition on July 10, 2015 (ECF No. 28), and
Officer Thomasson filed his Reply on July 23, 2015 (ECF No. 31).
Pursuant to the Court’s October 21, 2015 Order granting leave, June
filed a Surreply on October 28, 2015.

June also filed a Motion to

Strike Inadmissible Evidence on July 10, 2015 (ECF No. 29), and
Officer Thomasson filed a Motion to Strike Exhibits Attached to
Plaintiff’s Opposition to Motion for Summary Judgment on July 23,
1

Unless otherwise noted, the following facts are taken from
the Complaint and the parties’ briefings on the instant Motions,
and are viewed in the light most favorable to the nonmoving party.
2

2015 (ECF No. 32); both Motions are opposed.

All Motions are ripe

for disposition.
DISCUSSION
A.

Analysis
1.

Motion for Summary Judgment
a.

Standard of Review

Under Federal Rule of Civil Procedure 56, the Court must grant
summary judgment if the moving party demonstrates there is no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a).

In

reviewing a motion for summary judgment, the Court views the facts
in a light most favorable to the non-moving party.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.
H. Kress & Co., 398 U.S. 144, 157 (1970)).
Once a motion for summary judgment is properly made and
supported, the opposing party has the burden of showing that a
genuine dispute exists.

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586–87 (1986).
nonmoving

party

to

go

beyond

the

Rule 56(c) requires the

pleadings

and

by

its

own

affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.
324 (1986).

Celotex Corp. v. Catrett, 477 U.S. 317,

The nonmoving party “cannot create a genuine issue of

material fact through mere speculation or the building of one
3

inference upon another.”

Beale v. Hardy, 769 F.2d 213, 214 (4th

Cir. 1985) (citing Barwick v. Celotex Corp., 736 F.2d 946, 963 (4th
Cir. 1984)).
“[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine
issue of material fact.”

Anderson, 477 U.S. at 247–48.

A

“material fact” is one that might affect the outcome of a party’s
case.

Id. at 248; see also JKC Holding Co. v. Wash. Sports

Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing HoovenLewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
fact

is

considered

to

be

“material”

is

Whether a

determined

by

the

substantive law, and “[o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”

Anderson, 477 U.S. at

248; accord Hooven-Lewis, 249 F.3d at 265.

A “genuine” issue

concerning a “material” fact arises when the evidence is sufficient
to allow a reasonable jury to return a verdict in the nonmoving
party’s favor.
b.

Anderson, 477 U.S. at 248.
Section 1983 Action For Malicious Prosecution

“A ‘malicious prosecution claim under § 1983 is properly
understood as a Fourth Amendment claim for unreasonable seizure
which incorporates certain elements of the common law tort.’”
Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (quoting
4

Lambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)).

“To state

such a claim, a plaintiff must allege that the defendant (1) caused
(2)

a

seizure

unsupported

by

of

the

pursuant

to

legal

and

(3)

terminated in plaintiff’s favor.”

Id.

Although Officer Thomasson

that

he

arrested

June

and

criminal

process

cause,

acknowledges

probable

plaintiff

the

State

proceedings

ultimately

dismissed the charges against him, he argues he is entitled to
judgment as a matter of law because there is no genuine dispute
that there was probable cause for June’s arrest.

Before reviewing

this argument, the Court must resolve the parties’ Motions to
Strike to determine which facts it may consider.
i.

June’s Motion to Strike

The Court will deny June’s Motion to Strike because hearsay is
admissible for determining whether there was probable cause to
arrest June.
June moves to strike several statements in the affidavits of
Officer Thomasson, Goodwin, and Goodwin’s mother (“Mrs. Goodwin”),
arguing they are inadmissible hearsay.

“[T]o be entitled to

consideration on summary judgment, the evidence supporting the
facts set forth by the parties must be such as would be admissible
in evidence.”

Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534,

535–36 (D.Md. 2007).

Although hearsay is generally not admissible,

see Fed.R.Evid. 802, it is admissible for the limited purpose of
ascertaining whether there was probable cause for an arrest,
5

Richardson v. State of Md., 398 F.Supp. 425, 428 n.4 (D.Md. 1975).
Thus, because all the hearsay statements that June moves to strike
are relevant to whether there was probable cause to arrest June,
the Court will deny June’s Motion to Strike.
ii.

Officer Thomasson’s Motion to Strike

Officer Thomasson moves to strike June’s Answer #5 in his
March 16, 2015 Answers to Interrogatories propounded by Officer
Thomasson (“Answer #5”) and Goodwin’s June 12, 2015 Affidavit
(“Goodwin’s Second Affidavit”).

Officer Thomasson argues the Court

should strike Answer #5 because it is not based on personal
knowledge.

Further, he contends the Court should strike Goodwin’s

Second Affidavit for two independent reasons: (1) it is a sham; and
(2) Rule 37(c)(1) prevents June from relying on it.
a.

Answer #5

The Court will strike Answer #5 because it does not satisfy
Rule 56(c)(4)’s personal knowledge and competence requirements.
Rule 56(c)(4) provides that “[a]n affidavit or declaration
used to support or oppose a motion [for summary judgment] must be
made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.”

A sworn statement is not based on

personal knowledge when the declarant does not state how he became
aware of the information asserted in the statement.

See McLaughlin

v. Copeland, 435 F.Supp. 513, 520 (D.Md. 1977) (granting motion to
6

strike).

Additionally, a sworn statement “couched in terms of ‘to

the best of [one’s] knowledge’” does not satisfy the competence
element of Rule 56(c)(4).

Id.

In Answer #5, June explains that when his parents met with
Mrs. Goodwin to discuss the assault, she said that the police told
Goodwin that June participated in the assault and that when Goodwin
identified June in a photo array, the police asked Goodwin to
identify anyone with whom he was familiar.

(Pl.’s Resp. in Opp. to

Def.’s Mot. Summ. J. Ex. F, at 5–6, ECF No. 28-6).

June, however,

was incarcerated when his parents allegedly met with Mrs. Goodwin,
(id. at 5), and he never explains how he became aware of the
information that Mrs. Goodwin purportedly shared with his parents.
June swore and affirmed that his Interrogatory Answers were true
and correct “to the best of [his] knowledge, information and
belief.”

(Id.

at

2).

What

is

more,

June

stated

that

the

information supplied in his answers “is not based solely on the
knowledge of the executing party, but includes knowledge of [his]
agents,

representatives,

and

attorney.”

(Id.

at

1)

(emphasis

added).
Accordingly, the Court finds Answer #5 does not satisfy the
personal knowledge and competence requirements of Rule 56(c)(4) and
will strike it.

7

b.

Goodwin’s Second Affidavit

The Court will strike Goodwin’s Second Affidavit because it is
a sham and Rule 37(c)(1) prevents June from relying on it.
Pursuant to the sham affidavit doctrine, “a party cannot
create a genuine issue of fact sufficient to survive summary
judgment simply by contradicting his or her own previous sworn
statement
contradicts
explaining
disparity.”

(by,
that
the

say,

filing

party’s

a

later

earlier

contradiction

or

affidavit

sworn

that

deposition)

attempting

to

flatly
without

resolve

the

Ervin v. JP Morgan Chase Bank NA, No. GLR-13-2080,

2014 WL 4052895, at *2 (D.Md. Aug. 13, 2014) (quoting Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)).

“Application

of the sham affidavit rule at the summary judgment stage ‘must be
carefully limited to situations involving flat contradictions of
material fact.’”

Id. (quoting Zimmerman v. Novartis Pharm. Corp.,

287 F.R.D. 357, 362 (D.Md. 2012)).
Officer Thomasson supports his Motion for Summary Judgment
with

Goodwin’s

April

1,

2015

Affidavit

(“Goodwin’s

First

Affidavit”) in which he stated that: (1) a day or two after the
assault, he prepared a written statement in which he identified
June as one his attackers; (2) the police did not tell him what to
write in the statement; (3) he picked June’s photo out of an array
when asked to identify someone who assaulted him; and (4) the
police did not tell him which photo to pick.
8

(First Goodwin Aff.

at 1–2, ECF No. 27-3).

June supports his Opposition with Goodwin’s

June 12, 2015 Affidavit (“Goodwin’s Second Affidavit”), which was
not disclosed to Officer Thomasson until June attached it to his
Opposition.

Goodwin’s Second Affidavit completely contradicts

almost every factual assertion in his First Affidavit, including
the material fact of whether Goodwin identified June as one of his
attackers.

(See Second Goodwin Aff. at 2–4, ECF No. 28-7).

Because June did not explain these contradictions, the Court finds
Goodwin’s Second Affidavit is a sham.2
Under Rule 26(e)(1)(A), a party is required to supplement or
correct its discovery responses in a timely manner when the party
learns its responses are incomplete or incorrect.

When a party

fails to do so, Rule 37(c)(1) prevents the party from using the
information that was not disclosed to supply evidence on a motion,
unless the failure was substantially justified or harmless.
determining
2

whether

a

failure

to

disclose

was

When

substantially

Goodwin argues the sham affidavit doctrine should not apply
because Goodwin is a witness, not a party. Even assuming, without
finding, however, the sham affidavit doctrine only applies to
parties, June contends he did not disclose Goodwin’s Second
Affidavit until he filed his Opposition because it is protected by
the work product doctrine. “Work product protection[, however,]
was intended to encompass documents prepared by a party or someone
acting on the party’s behalf to aid that party in the litigation.”
Collins v. Mullins, 170 F.R.D. 132, 137 (W.D.Va. 1996) (citing
Rickman v. Deere & Co., 154 F.R.D. 137, 138 (E.D.Va. 1993), aff’d,
36 F.3d 1093 (4th Cir. 1994)); see also Collins, 170 F.R.D. at 137
(concluding witness statements were not entitled to work product
protection). As such, by asserting work product protection, June—a
party to this case—has essentially asserted he prepared Goodwin’s
Second Affidavit, thereby rendering the sham affidavit doctrine
9

justified or harmless, the Court is guided by a five-factor test:
“(1) the surprise to the party against whom the witness was to have
testified; (2) the ability of the party to cure that surprise; (3)
the extent to which allowing the testimony would disrupt the trial;
(4) the explanation for the party’s failure to name the witness
before trial; and (5) the importance of the testimony.”

S. States

Rack And Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596
(4th Cir. 2003) (quoting Rambus, Inc. v. Infineon Techs. AG, 145
F.Supp.2d 721, 726 (E.D.Va. 2001)).
June

failed

to

timely

disclose

Affidavit in violation of Rule 26(e).

Goodwin’s

June

12,

2015

He waited until two weeks

after the close of discovery to secure Goodwin’s Second Affidavit,
and he did not disclose it to Officer Thomasson until approximately
a month and a half after the close of discovery.
not substantially justified or harmless.

This failure was

First, because Officer

Thomasson had no reason to believe Goodwin would contradict nearly
all of the statements in his First Affidavit, Goodwin’s Second
Affidavit

represents

a

complete

surprise.

Second,

Officer

Thomasson has no ability to cure that surprise by examining Goodwin
regarding the contradictions because discovery has ended.

Finally,

Goodwin’s affidavit statements are of paramount importance because
they deal with a material fact—whether Goodwin identified June as
one of his attackers.

The Court, therefore, finds Rule 37(c)

applicable even under June’s interpretation.
10

prevents June from relying on Goodwin’s Second Affidavit.
Thus, because Goodwin’s Second Affidavit is a sham and Rule
37(c) prevents June from relying on it, the Court will strike it.
iii. It Is Undisputed That There Was Probable Cause
For June’s Arrest.
The Court will grant Officer Thomasson’s Motion for Summary
Judgment because it is undisputed that there was probable cause for
June’s arrest.
There is probable cause for an arrest when “the facts and
circumstances within [the officers’] knowledge and of which they
had reasonably trustworthy information were sufficient to warrant a
prudent man in believing that the [defendant] had committed or was
committing an offense.”

Cloaninger ex rel. Estate of Cloaninger v.

McDevitt, 555 F.3d 324, 334 (4th Cir. 2009) (quoting Beck v. Ohio,
379 U.S. 89, 91 (1964)).
identifies his attacker.

One such circumstance is when a victim
See Torchinsky v. Siwinski, 942 F.2d 257,

262 (4th Cir. 1991) (“It is surely reasonable for a police officer
to base his belief in probable cause on a victim’s reliable
identification of his attacker.

Indeed, it is difficult to imagine

how a police officer could obtain better evidence of probable cause
than an identification by name of assailants provided by a victim,
unless, perchance, the officer were to witness the crime himself.”)
(internal citation omitted).

“[R]easonable law officers need not

‘resolve every doubt about a suspect’s guilt before probable cause
is established.’”

Gomez v. Atkins, 296 F.3d 253, 262 (4th Cir.
11

2002) (quoting Torchinsky v. Siwinski, 942 F.2d 257, 264 (4th Cir.
1991)).

Furthermore, “[w]hile officers ‘may not disregard readily

available exculpatory evidence . . . the failure to pursue a
potentially exculpatory lead is not sufficient to negate probable
cause.’”

Id. (quoting Wadkins v. Arnold, 214 F.3d 535, 541 (4th

Cir. 2000)).
In his affidavit, Officer Thomasson stated that during his
investigation, he learned from Officer Levar DeLoatch that Goodwin
had identified “Vincent” as one of his attackers.
¶ 5, ECF No. 27-2).

(Thomasson Aff.

Officer Thomasson also stated that Goodwin

prepared a written statement in which he identified “Vincent” as
one of his attackers, Officer Michael Bembe told Officer Thomasson
that “Vincent” might be “Vincent June,” and Goodwin selected June’s
photo from an array when asked to identify one of his attackers.
(Id. ¶¶ 5–7).

In another affidavit, Officer DeLoatch stated that

Goodwin provided the name “Vincent” to him as someone who was
involved

in

the

assault

and

Officer

information to Officer Thomasson.
1).

DeLoatch

relayed

that

(DeLoatch Aff. at 1, ECF No. 31-

Furthermore, in Mrs. Goodwin’s affidavit and Goodwin’s First

Affidavit, they confirm that Goodwin gave June’s name to the police
and Goodwin picked June’s photo out of an array when asked to
identify one of his attackers.

(First Goodwin Aff. at 1–2); (Mrs.

Goodwin Aff. at 1–2, ECF No. 27-4).

12

June argues that there is a genuine dispute that Goodwin
identified June as one of his attackers because Officer Thomasson’s
Interrogatory Answers are inconsistent concerning whether he was
present when Goodwin first stated that “Vincent” was involved in
the assault.

This argument fails because whether Officer Thomasson

was present when Goodwin identified Vincent is not a material fact.
Whether Officer Thomasson learned that Goodwin stated June was
involved in the attack is material, and that fact is undisputed.
Only

genuine

judgment.

disputes

See

of

Anderson,

material

fact

477

at

U.S.

will

defeat

247–48.

summary

Furthermore,

regardless of who was present when Goodwin said “Vincent” was
involved, there is no dispute that Goodwin picked June out of a
photo array when asked to identify one of his attackers.
June further argues Officer Thomasson’s failure to investigate
June’s alibi constitutes a genuine dispute of material fact.

This

argument also fails because the Court finds it undisputed that
Officer Thomasson did not know about June’s alibi.

June did not

identify the two police officers to whom he purportedly provided
his alibi on August 31, 2011.
2015,

ECF

No.

28-3).

introduced themselves.

He

(June Dep. 36:14–37:6, Mar. 20,

testified

(Id. 37:2-3).

that

the

officers

never

What is more, Officer

Thomasson testified that he never learned that June had an alibi.
(Thomasson Dep. 81:6-9, 82: 6-9, Mar. 20, 2015, ECF No. 28-2).
In sum, the undisputed material facts support probable cause
13

for June’s arrest, and, thus, Officer Thomasson is entitled to
judgment as a matter of law.3
CONCLUSION
Based on the foregoing reasons, June’s Motion to Strike
Inadmissible Evidence (ECF No. 29) will be DENIED and Officer
Thomasson’s Motion to Strike Exhibits Attached to Plaintiff’s
Opposition to Motion for Summary Judgment (ECF No. 32) and Motion
for Summary Judgment (ECF No. 27) will be GRANTED.

A separate

Order follows.
Entered this 18th day of November, 2015

Very truly yours,
/s/
____________________________
George L. Russell, III
United States District Judge

3

Officer Thomasson also argues he is entitled to judgment as
a matter of law because he is protected by qualified immunity.
This argument is not central, however, to his Motion for Summary
Judgment—he only raises it in the final section of his Reply to
Plaintiff’s Opposition to Motion for Summary Judgment. (ECF No.
31-1).
The Court finds Officer Thomasson would be entitled to
qualified immunity because it is undisputed that there was probable
cause for June’s arrest, and, therefore, Officer’s Thomasson’s
conduct did not violate June’s constitutional rights. See Gomez,
296 F.3d at 261 (stating that the threshold question when
evaluating a qualified immunity defense is whether the officer’s
conduct violated a constitutional right (citing Saucier v. Katz,
533 U.S. 194, 201 (2001))).
14