Burgess v. Baltimore Police Department et al

Filing 311

MEMORANDUM OPINION Signed by Judge Richard D. Bennett on 10/31/2017. (cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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SABEIN BURGESS,

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Plaintiff,
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v.

Civil Action No.: RDB-15-0834
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BALITMORE POLICE DEPARTMENT,
et al.,

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Defendants.
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MEMORANDUM OPINION
Plaintiff Sabein Burgess (“Burgess” or “Plaintiff”) has brought federal and state
claims against the Baltimore Police Department (“BPD”), individual police officers1, and a
lab technician for conduct resulting in his 19-year incarceration for the murder of Michelle
Dyson on October 5, 1994. (ECF Nos. 1 and 141.) Following this Court’s Order on March
1, 2016, Plaintiff’s remaining claims include Counts I (“42 U.S.C. § 1983 – Due Process”), II
(“42 U.S.C. § 1983 – Malicious Prosecution”), III (“42 U.S.C. § 1983 – Failure to
Intervene”), VI (“Malicious Prosecution”), VII (“Abuse of Process”), VIII (“Intentional
Infliction of Emotional Distress”), and X (“Article 24 of the Maryland Declaration of
Rights”). (ECF Nos. 55 and 56).
Currently pending before this Court are three related Motions for Summary
Judgment by (1) Defendants Goldstein, Ritz, Purtell, Weese, Lehmann, Patton, and

This Court will refer to Defendants Goldstein, Ritz, Purtell, Weese, Lehmann, Patton, and Neverdon as the “Original
Officer Defendants” and Defendants Skinner, Boyd, Miles, and Palmere as the “Added Defendants.”
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Neverdon (ECF No. 179), (2) Defendant Van Gelder (ECF No. 183), and (3) by Defendants
Skinner, Boyd, Miles, and Palmere (ECF No. 189). The parties’ submissions have been
reviewed, and the Court held a motions hearing on October 26, 2017.
For the reasons stated below, the Original Defendants’ Motion for Summary
Judgment (ECF No. 179) is GRANTED IN PART and DENIED IN PART, Defendant
Van Gelder’s Motion for Summary Judgment (ECF No. 183) is GRANTED, and Added
Defendants’ Motion for Summary Judgment (ECF No. 189) is GRANTED IN PART and
DENIED IN PART. Specifically, Plaintiff’s Brady-based claims (under Counts I and X) will
proceed against Defendants Weese, Miles, Boyd, Palmere, Goldstein, and Lehmann.
Plaintiff’s fabrication claims (under Counts I and X) will proceed against Defendants Weese
and Goldstein. Plaintiff’s post-conviction due process claims (under Counts I and X) will
proceed against Defendants Patton, Neverdon, and Goldstein. Plaintiff’s malicious
prosecution claims (Counts II and VI) will proceed against Defendants Weese and
Goldstein. Plaintiff’s failure to intervene claim (Count III) will proceed against Defendants
Weese, Miles, Boyd, Palmere, Goldstein, and Lehmann. Plaintiff’s intentional infliction of
emotional distress claim (Count VIII) will proceed against Defendants Weese, Miles, Boyd,
Palmere, Goldstein, Lehmann, Patton, and Neverdon. Count VII (abuse of process) is
DISMISSED. Summary Judgment shall be ENTERED in favor of Defendants Purtell, Ritz,
Van Gelder, and Skinner.

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PROCEDURAL BACKGROUND
Plaintiff initially filed the present action against Defendants Mayor and City Council
of Baltimore, the Baltimore Police Department, the Officer Defendants, and Van Gelder,
alleging various violations of his federal and state civil rights. Under the auspices of 42
U.S.C. § 1983, he asserts claims of violation of due process (Count I), malicious prosecution
(Count II), failure to intervene (Count III), conspiracy to deprive constitutional rights
(Count IV), and unconstitutional practice or policy, as prohibited by Monell v. Dep’t of Social
Servs. of City of New York, 436 U.S. 658 (1978) (Count V). Plaintiff’s state law claims include
malicious prosecution (Count VI), abuse of process (Count VII), intentional infliction of
emotional distress (Count VIII), civil conspiracy (Count IX), 4 violation of Article 24 of the
Maryland Constitution, Md. Const. Declaration of Rights, Art. 24 (Count X), and
indemnification (Count XI).
Defendants moved to dismiss all counts, and by Memorandum Opinion and Order
dated March 1, 2016, this Court ruled that Counts I, II, III, VI, VII, VIII, and X would
proceed against the Officer Defendants and Van Gelder, while Counts IV, V, IX, and XI
were dismissed; Count V would proceed against the Baltimore Police Department, while
Counts I-IV and VI-XI were dismissed; and all counts against the Mayor and City Council of
Baltimore were dismissed with prejudice. (ECF No. 55.)
On March 23, 2016, the Court granted the BPD’s Motion to Bifurcate and Stay
Discovery related to Plaintiff’s Monell claim (Count V) pursuant to Fed. R. Civ. P. 42(b) and
Marryshow v. Town of Bladensburg, 139 F.R.D. 318, 319-20 (D. Md. 1991). (ECF No. 68.)

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By subsequent order, this Court granted Plaintiff leave to amend his Complaint to
name additional Defendants. (ECF No. 140.) Plaintiff filed his Amended Complaint on
January 23, 2017, naming Kelly Miles, John Boyd, John Skinner, and Dean
Palmere (together, “Added Defendants”) for the first time. (ECF No. 141-1.)
Following the close of discovery, the Original Officer Defendants (ECF No. 179180), Van Gelder (ECF No. 183), and the Added Officers (ECF No. 189) filed motions for
summary judgment. Following a status teleconference, this Court permitted Plaintiff to
supplement his Response (ECF No. 195-1) with the declaration of Rakim Muhammad.
(ECF No. 204.) The Original Defendants filed a Consolidated Reply (ECF No. 215), and
the Added Defendants filed an Abbreviated Reply (ECF No. 307).
On October 26, 2017, the Court held a hearing regarding the Defendants’ pending
motions for summary judgment. At that hearing, the parties clarified and narrowed their
contentions, as discussed below.

FACTUAL BACKGROUND
In ruling on a Motion for Summary Judgment, this Court considers the facts and
draws all reasonable inferences in the light most favorable to the nonmoving party. Scott v.
Harris, 550 U.S. 372, 378 (2007); Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th
Cir. 2013).

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I.

Individual Defendants
Plaintiff’s claims stem from Defendants’ conduct throughout the investigation, both

pretrial and post-conviction, of the murder of Michelle Dyson on October 5, 1994. The
roles of the Defendants in the investigation were as follows:
a. Officers Weese, Miles, Boyd, Palmere, and Skinner responded to the scene. (Defs.
Ex. 3 at 73:2 to 75:1, 123:16 to 124:4; 237:4 to 238:16; Defs. Ex. 4 at 26:1 to
27:15)2.
b. Officer Purtell was conducting an arrest half a block away, and he filed reports of
having heard gunshots. (Defs.Ex. 5 at 112:5 to 113:20; Defs.Ex. 6; Defs. Ex. 7).
c. Detective Goldstein was the primary detective assigned to the case. (Defs. Ex. 1
at Vol. 1, 48:13-17).
d. Detective Ritz was the secondary detective on the case. (Defs. Mot. 54, ECF No.
179-1). Detective Ritz also investigated an inmate, Charles Dorsey, who sought to
take responsibility for the murder in 1999. (Defs. Ex. 2 at 331:11 to 332:10 and
335:14-20).
e. Sergeant Lehmann, who supervised Detectives Goldstein and Ritz, conducted a
telephone interview of Ronald Dyson, the father of the victim. (Defs. Ex. 8 at
153:1-9, 185:1 to 186:8).
f. Mr. Van Gelder was a crime lab technician who tested and reported on gunshot
residue (“GSR”) samples that were taken from Mr. Burgess’s hands. (Defs. Ex. 9
at 164:20 to 165:7, 209:18 to 213:4).

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The Court will cite filings by the Original Defendants with “Defs.” and indicate otherwise for the other Defendants.

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g. Detective Patton was not assigned to the subject homicide, but he took a phone
message from a potential witness, who happened to work at the location where
Detective Patton got his hair cut. (Defs. Ex. 12 at 46:13 to 47:17.) He also took a
statement that included information related to the Dyson homicide from a
witness in a different case, several years later. (Defs. Ex. 10 at 56:14-15, 95:12-18;
Ex. 11 at Burgess 1607 to 1610.)
h. Detective Neverdon was not assigned to the subject homicide, but he later
worked on the same case with Detective Patton. (See Defs. Ex. 11 at Burgess 1607
to 1610; Ex. 13 at 23:17 to 24:2.)
II.

Michelle Dyson’s Homicide
Turning to the chronology of this case, Mr. Burgess began dating Michelle Dyson a

few months before the homicide occurred. (Defs. Ex. 15 at 34:16 to 35:11). Mr. Burgess
stayed with Ms. Dyson at her home at 2703 Barclay Street several nights a week (id. at 42:213), and he had a key to the home (id. at 108:6-7).
According to Mr. Burgess, On October 5, 1994, Mr. Burgess was watching two
videotapes with Ms. Dyson and with Mr. Burgess’s friend, Dwight “Rome” Holmes at 2703
Barclay Street. (Defs. Ex. 15 at 161:19 to 162:17, 166:16-20, and 169:8-9). Mr. Burgess
received a page from an acquaintance, Dominique White, which Mr. Burgess understood to
be a solicitation to purchase drugs. (Id. at 84:13 to 85:21).
Mr. Burgess has explained that he left 2703 Barclay in a white Nissan Pathfinder to
drive Mr. Holmes back to his house further south on Barclay Street (id. at 94:13 to 95:1;
168:15 to 170:1; Defs. Ex. 17; Defs. Ex 18 at Responses 27 and 28) and to deliver the tapes
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to Mr. Burgess’s mother (Defs. Ex. 15 at 218:10-18), after which he planned to proceed to
Mr. White’s home to consummate a drug deal (id. at 170:2-12). Mr. Burgess dropped off Mr.
Holmes and talked with some friends on the street. (Id. at 168:22 to 170:1; 272:14-22.)
Mr. Burgess returned to 2703 Barclay briefly to a videotape that he had left behind
(id. at 212:18 to 213:22), and saw that Ms. Dyson had put her children to bed (id.). Mr.
Burgess then travelled to Mr. White’s home (id. at 415:8-18), where he met with Mr. White,
James Bagley, and a third person to complete the drug deal. (See id. at 84:1 to 85:12; Defs.
Ex. 19 at 32:21 to 33:11). Mr. Burgess then drove to a gas station to buy gas. (Def. Ex. 15 at
187:2-7; 210:11 to 211:7). Mr. Burgess drove to and parked on Whitridge Avenue (just north
of 2703 Barclay), so that he could stop in to call the stash house where he kept his drugs. (Id.
at 71:20 to 72:3; 96:12 to 97:12; 266:22 to 267:13, 416:2-9). As he began to walk to 2703
Barclay, and Mr. Burgess saw the police arresting someone whom he knew as “Jerry.” (Id. at
98:16 to 100:4). Mr. Burgess also saw two persons sitting on the porches of two rowhomes
slightly north of 2703 Barclay and exchanged words in passing. (Id. at 105:11 to 108:4).
Mr. Burgess has testified that he found the door of 2703 Barclay ajar, and that he
smelled a strange odor. (Id. at 108:5 to 109:7). Mr. Burgess ran upstairs to check the
bedrooms. (Id.) Mr. Burgess saw that Ms. Dyson’s bedroom was empty, and that Ms.
Dyson’s four children looked to be asleep. (Id. at 108:5 to 110:2). Mr. Burgess then returned
to the first floor and noticed the basement door was open. (Id. at 108:19-21). Mr. Burgess
saw saw “the basement door cracked where all the smoke was coming from, and then as [he]
was getting ready to go down there, [he saw] [Dyson’s] feet.” (Pl. Ex. 1 at 108.)
Burgess ran outside to find the police he had just seen. (Id. at 115.) The police,
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however, had left, so Burgess instead knocked on his neighbor, Wanda Austin’s door. (Id.)
Burgess told Austin that “something happened to Michelle” and asked Austin to call 911.
(Id. at 115-17.)
Mr. Burgess ran back to 2703 Barclay and went down into the basement. (Defs. Ex.
15 at 115:6-8). Mr. Burgess cradled Ms. Dyson until police arrived, and tried to keep her
from choking on blood that was coming out of her mouth. (Id. at 120:8 to121:4). Mr.
Burgess heard Ms. Dyson gargling blood when he found her in the basement. (See id. at
123:7-17.)
III.

Initial Law Enforcement Response
At 10:27 p.m., Defendant Officer Weese was dispatched to the scene. (Defs. Ex. 29

at BPD. 2482.) Upon arrival, Officer Weese found Mr. Burgess in the basement with Ms.
Dyson’s body and with some blood on his hands. (Defs. Ex. 3 at 73:2 to 75:1; Defs. Ex. 29
at BPD 2482 and 2484; Defs. Ex 30). The Officers handcuffed Mr. Burgess and held him in
the dining room. (Defs. Ex. 3 at 74:12-18).
A crime scene technician took GSR samples from Mr. Burgess’s hands. (Defs. Ex. 3
at 212:2-15; Defs. Ex. 31). Mr. Burgess claims that the sample was taken from his palms,
rather than the webbing of his hands. (Defs. Ex. 15 at 147:17 to 148:18).
Defendant Officer Dean Palmere reported that he spoke to Mr. Burgess at the scene,
and documented his discussions in a report. (See Defs. Ex. 32). Officer Palmere’s report
notes that the back kitchen door was found locked and dead bolted. (Id.).
Defendant Goldstein reported to the scene at 10:45 p.m. (Defs. Ex. 33 at Burgess
3759). Goldstein testified that when he arrived, there were three or four uniformed officers
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present. (Pl. Ex. 26A, Goldstein 11/9/16 Dep. at 10-11.) According to the Defendants’
testimony and the police reports, those officers would include: Defendants Weese, Miles,
Boyd, Purtell and Palmere. (See Pl. Resp. (citing numerous depositions and Pl. Ex. 24, CAD
Report at BPD 2602-03).) Following Detective Goldstein’s arrival, Officer Weese
documented his observations in four pages of police reports. (See Defs. Ex. 29). Defendants
never found a gun at the scene or in the immediate surroundings. Pl. Ex. 29, Boyd Dep. at
152; Pl. Ex. 30A, Goldstein 11/1/16 Dep. at 80-81.
Three of Dyson’s children—Brian Rainey, Tawanda Dyson, and LaShonda Folkes—
remember at least one white male uniformed officer coming to get them. (Pl. Ex. 4, Rainey
Dep. at 30-31; Pl. Ex. 3, T. Dyson Dep. at 23-24; Pl. Ex. 5, Folkes Dep. at 22.) According to
Plaintiff, the police questioned the children at the scene about whether they had seen
anything, and specifically, whether “mom’s boyfriend” was involved. (Pl. Ex.4, Rainey Dep.
at 30; Pl. Ex. 3, T. Dyson Dep. at 25-27.) Rainey told the police that he had seen the
offenders come into the house and knew Burgess was not one of them. (Pl. Ex. 4, Rainey
Dep. at 30 (“[T]he main thing that stuck out was they’re asking was my mom’s boyfriend
involved, and I told them no.”); Pl. Ex. 3, T. Dyson Dep. at 26–27 (recalling Brian telling
officers that Burgess was not among the perpetrators).) Mr. Rainey has testified that upon
seeing the two men, he became scared and ran up the stairs into his bedroom, after which he
heard two gunshots. (Defs. Ex. 39 at 41:8-11, 42:1-6, 42:10-2). One of Mr. Rainey’s sisters,
Tawanda Dyson, has generally corroborated his story. (See Ex. 41).
Mr. Burgess was taken to Homicide, where he waived his Miranda rights and gave a
voluntary interview to Detectives Goldstein and Ritz. (Ex. 15 at 220:17 to 221:8 and 223:22
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to 226:6; Ex. 35; Ex. 36). Mr. Burgess now admits that he lied to Detectives Goldstein and
Ritz about his whereabouts during the murder in order to conceal that he had been engaging
in a drug deal. (Defs. Ex. 15 at 229:14 to 230:1). After one hour, Mr. Burgess invoked
Miranda, and the interview ended. (Defs. Ex. 36 at Burgess 31).
According to Plaintiff, the children were transported to a police station3 for an
additional interview. (Pl. Ex. 4, Rainey Dep. at 47; Pl. Ex. 3, T. Dyson Dep. at 27-28.) At the
police station, Dyson’s children were again “questioned as far as what happened.” (Pl. Ex. 4,
Rainey Dep. at 48; see also Pl. Ex. 3, T. Dyson Dep. at 28.) According to Rainey, at first all of
the children were questioned together; then he remembers “being separated and them asking
me what did I see, and they was asking was Sabein involved or was he the shooter, and I said
no.” Pl. Ex. 4, Rainey Dep. at 50; id. at 52.) The officers also asked Rainey about his mom’s
relationship with Burgess, and Rainey told them that he had never seen Burgess abuse his
mother. (Id. at 54.) Rainey testified that more than one officer questioned him and both
officers were white and male. (Id. at 51.) Finally, Dyson’s children were taken by Defendant
Skinner to the Department of Social Services. (Pl. Ex. 12, Skinner Dep. at 36, 219.)
Defendants Goldstein and Weese wrote reports describing the events of October 5,
1994, and both reports indicated that all children were sleeping at the time of the murder.
(Pl. Ex. 27, Weese Supplemental Report at BPD 2483; Pl. Ex. 45, Goldstein Main Office
Report at Burgess 3760.)
IV.

Pretrial Investigation
Detective Goldstein examined the white Nissan Pathfinder driven by Mr. Burgess

Sometimes referred to as the “homicide [unit]” in the Plaintiff’s briefing. Defendants contend that this stop never
occurred.

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and found that the gas needle, which Burgess claims was broken, pointed to “E.” (Def. Ex.
26 at Burgess 4833 to 4837). Detective Goldstein claims that he then tapped on the gas tank
and concluded the tank was empty. (Id. at Burgess 4869 to 4871).
On October 13, 1994, Defendant Sergeant Steven Lehmann interviewed Ms. Dyson’s
father, Ron Dyson, who relayed that someone known as “Little Man” had something to do
with the crime (see Defs. Ex. 46). Defendant Lehmann’s notes from the call show in part,
“Child Bryan ?Q witne[ss] ‘Get down base-ment.” (Defs. Ex. 46). Detective Goldstein made
efforts to identify who “Little Man” was, including referencing a nickname file from the
BPD Eastern District (Defs. Ex. 48), and running arrest summary reports on persons known
as “Little Man.” (Defs. Ex. 49).
On November 2, 1994, Mr. Burgess’s GSR test results came back positive for the
presence of GSR on both hands. (Defs. Ex. 50). Defendant Daniel Van Gelder conducted
the test and completed the report, which he then sent to Detective Goldstein. (Defs. Ex. 9 at
164:20 to 165:7, 209:18 to 213:4, and 219:3-9). The report indicated by checkbox that:
Gunshot primer residues were found on the hand(s) of the subject. There is a
possibility that the residues were transferred from the surface of a firearm or
from an object which lay immediately adjacent to a firearm during its
discharge. Most probably, however, the subject’s hands were immediately
adjacent to a discharging firearm or were themselves used to fire a firearm . . .
(Defs. Ex. 50).
In 1994, the FBI had an open case matter identified as case “166-0” relating to ITARdrug-related murders. (Defs. Ex. 51). Two documents from FBI case file for Case No. 166-0
contain information relating to the murder of Ms. Dyson. (Id.) These two FBI documents
describe information provided by a confidential informant to the FBI and record providing

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that information to the Baltimore Police Department. The documents indicate that Ms.
Dyson’s death was the result of “drug related problems” (see Defs. Ex. 51) and that she
“may have blown a package of drugs and/or a money package.” (Id.) The document states
that “[redacted] another black male and a black female.”4 (Id.)
Early in the morning on November 9, 1994, Detective Goldstein submitted an
Application for Statement of Charges against Mr. Burgess. (Defs. Ex. 37). The bases were:
(1) that Mr. Burgess had given conflicting accounts of where he was during the time that Ms.
Dyson had been killed; (2) that there was not enough time for Burgess to have completed all
of the tasks that he claimed before discovering Ms. Dyson; (3) that Mr. Burgess had told the
police that he did not enter 2703 Barclay before running to Wanda Austin and therefore
could not have known, as Wanda Austin reported that Mr. Burgess told her, that Ms. Dyson
had been shot; and (4) the presence of GSR on both of his hands. (Id.) The Commissioner
issued a warrant for Mr. Burgess’s arrest. (Defs. Ex. 53). Mr. Burgess was arrested that day.
(Ex. 54). Mr. Burgess again waived Miranda and gave a second statement to the Detectives.
(Defs. Ex. 15 at 245:4-14; Defs. Ex. 55: Ex. 56). Mr. Burgess said that he knew “Little Man,”
but did not know his real name. (Id. at Burgess 51). Detective Goldstein also asked whether
Mr. Burgess knew someone named “Kevin,” which Mr. Burgess denied. (Id. at Burgess 52).
Mr. Burgess engaged Gordon Tayback, now deceased, to defend him. (Defs. Ex. 15
at 230:16-21). The pretrial prosecutor in the criminal case was Ilene Nathan. (Defs. Ex. 27).
The trial prosecutor in the criminal case was Laura Shach (n/k/a Laura Brokaw). (Defs. Ex.
26 at Burgess 4707; Ex. 60 at 237:14 to 238:2).

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The parties dispute the identity of the redacted name.

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The State’s Attorney’s Office could not locate its file for the prosecution of Mr.
Burgess. (Defs. Ex. 61 at 23:16 to 24:8), but Plaintiff obtained certain files of the prosecutor,
Laura Shach, including trial preparation and trial notes. (See Defs. Ex. 62.) Ms. Shach
confirmed that at least some of the notes were in her handwriting. (Defs. Ex. 60 at 260:19 to
261:2.) The file contains a note referring to “brother,” followed by notes reading “told
mother to go to basement: - not loud- Go down basement.” (Defs. 62 at Burgess 3795.) The
parties dispute the meaning and significance of this note.
V.

Mr. Burgess’ Trial
At trial, the State called seven witnesses—including Defendants Weese, Goldstein,

and Van Gelder—and introduced documentary evidence, including Mr. Burgess’s statements
to Detective Goldstein. (See generally Defs. Ex. 26). Mr. Burgess called no witnesses. (See id. at
Burgess 5273). The jury found Mr. Burgess guilty on all charges. (See id. at Burgess 1340-41).
The Circuit Court sentenced him to life in prison plus 20 years. (See id. at Burgess 1364).
While incarcerated, Mr. Burgess was sentenced to five years for rioting.5 (Defs. Ex. 15
at 292:8 to 293:3; Defs. Ex. 73 at Individual Defendants 4022).
VI.

Post-Conviction Investigations
On September 2, 1995, just over two months after Mr. Burgess was convicted,

Kenneth “Guppy” Sewell, was killed in a drug-related homicide. (Defs. Ex. 76). On
September 5, 1995, Mr. Burgess wrote to Gordon Tayback to tell him that Mr. Sewell had
been killed by Howard Rice and that “Howard Rice is one of the people who murdered my
girlfriend back in October of 94 . . . .” (Defs. Ex. 74.) Defendant Detectives Patton and
The record is not clear on whether the sentence was consecutive or concurrent, but the parties agreed at the hearing on
October 26, 2017 that it must have been concurrent.

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Neverdon were assigned to investigate the Sewell homicide. (See, e.g., Defs. Ex. 11.)
A document located in the Sewell file shows includes information from a government
witness implicating Howard Rice in the murder of Michelle Dyson. (See Defs. Ex. 75 at
Burgess 8411). Several copies of the FBI document are included in the file of the Office of
the State’s Attorney for the Sewell homicide. (Defs. Ex. 79).
As part of the Sewell investigation, Defendants Patton and Neverdon also conducted
an interview of an inmate, Raymond Handy. (See Ex. 11.) During that interview, Detective
Patton inquired whether Mr. Handy had heard about Rice’s being involved in a murder of “a
girl on Barclay Street.” (See Ex. 11 at Burgess 1607.) Mr. Handy stated that he had heard that
Rice was the killer, but, during the interview, Mr. Handy revealed that Mr. Burgess was the
source of the information he was providing to the detectives. (See id. at 1608 to 1609.)
Beginning in late 1998 and into 1999, Charles Dorsey, a childhood friend of Mr.
Burgess, wrote letters to Mr. Burgess’s mother and attorney, claiming that Mr. Dorsey, alone,
was responsible for the death of Ms. Dyson. (Defs. Ex. 80.) Mr. Tayback informed the
State’s Attorney’s Office of Dorsey’s letters. (Defs. Ex. 82).
On May 25, 1999, Howard Rice was shot to death. (Defs. Ex. 88 at FBI_015 to
_016).
On September 17, 1999, Detective Ritz and non-party Detective Frank Miller went to
interview Mr. Dorsey. (Defs. Ex. 83). Detective Ritz recorded his general conclusions
concerning Mr. Dorsey in a Report. (Defs. Ex. 83).
In November 2001, Mr. Tayback testified at a hearing on a Petition for Postconviction Relief based on ineffective assistance of counsel stating in part that he decided
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not to hire a GSR defense expert because of the volume of GSR on Mr. Burgess’s hands.
(Defs. Ex. 89 at Burgess 1463 to 1465).
On February 14, 2012, one of the children of Michelle Dyson—Brian Rainey—wrote
a letter that indicated that Mr. Rainey believed Mr. Burgess to be innocent. (Defs. Ex. 38).
In May 2012, Mr. Dorsey executed an affidavit prepared by Mr. Burgess’s attorneys,
now claiming that he and Howard Rice together (and not Mr. Dorsey alone) had shot Ms.
Dyson. (Defs. Ex. 90).
I.

Mr. Burgess’ Release
On December 5, 2013, Mr. Burgess filed a Petition for Writ of Actual Innocence in

the Circuit Court for Baltimore City. (See Defs. Ex. 91.) The bases were: (a) recent changes
in the science of GSR analysis; (b) that Mr. Dorsey had confessed to the crime; and (c) that
Mr. Rainey had come forward with an eyewitness account. (See id. at Burgess 952 to 967.)
At a hearing before the Circuit Court on February 21, 2014, the State elected not to oppose
the Petition. (Defs. Ex. 92 at Individual Defendants 1025 to 1026.) The Circuit Court
therefore vacated the conviction and granted a new trial. (Id.) The State entered a nolle prosequi
on the charges, and Mr. Burgess was freed. (Id. at Individual Defendants 1026.)
On August 7, 2014, Mr. Burgess filed Notices of Claim with the City Solicitor and the
Maryland Treasurer. (See Defs. Ex. 93). The Notices recited claims against Defendants
Goldstein, Ritz, Lehmann, Weese, Palmere, and Purtell alleging that the officers withheld
Mr. Rainey’s statement, and further referencing Mr. Dorsey’s confession. (Id.)
Mr. Burgess commenced this case on March 23, 2015 against the Original Officer
Defendants and Mr. Van Gelder. (Doc. No. 1). On January 1, 2017, Mr. Burgess amended
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his Complaint by identifying new Defendants Palmere, Skinner, Miles, and Boyd. (Doc. No.
141).

STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A
material fact is one that “might affect the outcome of the suit under the governing law.”
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue over a material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. An issue is not “genuine” when the court must “determine which
of the two conflicting versions of the plaintiff’s [factual assertions] is correct.” Barwick v.
Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984), superseded by statute on other grounds as stated
in Blackwell v. City of Concord, No. 1:11CV328, 2013 WL 395107, at *3 n. 3 (M.D.N.C. Jan. 31,
2013); Rohrbough v. Wyeth Lab., Inc., 916 F.2d 970, 975 (4th Cir. 1990) (affirming a district
court’s determination that a witness’s affidavit in conflict with his own prior deposition and
several other documents was properly disregarded as a sham to defeat a motion of summary
judgment).
When considering a motion for summary judgment, a judge’s function is limited to
determining whether sufficient evidence exists on a claimed factual dispute to warrant
submission of the matter to a jury for resolution at trial. Id. at 249.
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Trial courts in the

Fourth Circuit have an “affirmative obligation . . . to prevent factually unsupported claims
and defenses from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514,
526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993)).
In undertaking this inquiry, this Court must consider the facts and all reasonable
inferences in the light most favorable to the nonmoving party. Libertarian Party of Va., 718
F.3d at 312; see also Scott v. Harris, 550 U.S. 372, 378 (2007). This Court “must not weigh
evidence or make credibility determinations.” Foster v. University of Md.-Eastern Shore, 787 F.3d
243, 248 (4th Cir. 2015) (citing Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir.
2007)); see also Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015)
(explaining that the trial court may not make credibility determinations at the summary
judgment stage). Indeed, it is the function of the fact-finder to resolve factual disputes,
including issues of witness credibility. See Tolan v. Cotton, 134 S. Ct. 1861, 1866-68 (2014).

DISCUSSION
I.

Preliminary Issues
A. Abandoned Claims and Defenses
At the hearing of October 26, 2017, Plaintiff affirmatively abandoned (a) his abuse of

process claim in its entirety and (b) all claims against Defendants Purtell and Skinner.
Accordingly, Count VII (abuse of process) and all claims against Defendants Purtell and
Skinner are hereby DISMISSED.

17

Defendants have argued that Plaintiff abandoned a number of other claims, and this
Court confirmed at the hearing that the following due process claims under Count I have
been abandoned:
i. Any claim that Defendants Patton, Neverdon, or Van Gelder knew of and
failed to disclose Brian Rainey’s exculpatory statements – thereby violating
Plaintiff’s pretrial due process rights under Brady v. Maryland;
ii. Any claim that Defendants Ritz, Lehmann, Patton, and Neverdon fabricated
any evidence;
iii. Any claim that Defendant Weese fabricated gunshot residue (“GSR”)
evidence;
iv. Any post-conviction due process claims against Defendants Weese,
Lehmann, and Van Gelder; and
v. Any post-conviction due process claims that Defendants, namely Defendant Ritz,
withheld the (a) Raymond Handy interview or (b) the 1998-99 confession of
Charles Dorsey.

Regarding factual assertions underlying various claims, Plaintiff clarified at the
hearing that he no longer alleges that any Defendant (i) withheld evidence relating to Jerry
Davis before trial or (ii) withheld after conviction the Raymond Hany interview or
confession of Charles Dorsey.

18

Defendants, for their part, have abandoned the assertion that Plaintiff’s claims based
on conduct occurring in the 1990’s are barred by the three-year statute of limitations found
in § 5101 of the Courts and Judicial Proceedings Article of the Maryland Code.6
B. Plaintiff Must Sufficiently Identify Defendants
The Added Defendants argue that a “deprivation” under the 14th Amendment
requires the identification of specific individuals who have taken “deliberate actions” (Added
Defs.’ Mot. 19, ECF No. 189-1), and the Original Defendants assert that Plaintiff has failed
to sufficiently identify the Defendants with knowledge of Mr. Rainey’s exculpatory witness
statement. Regarding knowledge of Mr. Rainey’s statements, Plaintiff responds that he has
sufficiently identified Goldstein, Ritz, Weese, Miles, Boyd, and Palmere, but that such a
“showing is not necessary to survive summary judgment. ‘[C]ase law does not support
Defendants’ argument that plaintiff must identify the exact perpetrators of constitutional
violations.’” (Pl.’s Resp. 50, ECF No. 195) (quoting Niblack v. Murray, No. CV
126910MASTJB, 2016 WL 4086775, at *4 (D.N.J. July 29, 2016)).

This Court rejects

Plaintiff’s proposed rule from Niblack, an unpublished opinion from a district court in
another circuit. Rather, this Court’s decision in Roberts v. Prince George’s County, Maryland, 157
F. Supp. 2d 607 (D. Md. 2001), provides the proper guidance.7
In Roberts, this Court held that “[i]n a § 1983 personal or individual capacity suit, a
plaintiff must show that the official charged personally caused the deprivation of his federal
The parties devoted some briefing but minimal argument to the question of whether Defendants can be held liable for
five years of Burgess’ sentence given his five-year rioting conviction. At the hearing the parties agreed that the sentence
must have been served concurrently. Without objection from the parties, the Court explained that this issue is more
properly addressed at the damages stage in the event of a verdict for the Plaintiff.
7 The parties disagree as to whether the Fourth Circuit in Lugar v. Edmondson Oil Co., 639 F.2d 1058 (4th Cir. 1981), aff'd
in part, rev'd in part on other grounds, 457 U.S. 922 (1982), adopted joint and several liability in the context of §1983 claims.
Even if it did, however, that rule would not absolve the Plaintiff from establishing that specific defendants took specific
actions (that allegedly “concurred in causing the ultimate injury”). See id. at 1065 n.14.
6

19

rights.” 157 F. Supp. 2d at 608 (citing Vinnedge v. Gibbs, 550 F.2d 926, 928–29 (4th Cir. 1977);
see Blackmore v. City of Phoenix, 126 F.App'x 778, 782 (9th Cir. 2005) (affirming district court's
decision to grant summary judgment because “[§ ] 1983 liability . . . cannot be based on a
group liability theory”); Goings v. Chickasaw Cty., Iowa, No. 06-CV-2063-LRR, 2008 WL
686917, at *7 (N.D. Iowa Mar. 10, 2008); Husbands v. City of N. Y., No. 05 Civ. 9252(NRB),
2007 WL 2454106, at *11 (S.D.N.Y. Aug. 17, 2007); Kepley v. Lantz, No. 3:05 CV 7474, 2007
WL 2085401, *5-*7 (N.D. Ohio July 18, 2007); Paul v. City of Rochester, 452 F.Supp.2d 223,
228 (W.D.N.Y.2006); Raines v. Chenowith, No. 1:03CV 1289-JDT-TAB, 2005 WL 1115804, at
*5 (S.D. Ind. Mar. 30, 2005). Plaintiff argued in the hearing that Roberts is inapposite because
Mr. Burgess, unlike the defendants in Roberts, has produced evidence that each of the
identified officers were present in a location where Mr. Rainey allegedly made his statements.
Such evidence is certainly relevant to this Court’s analysis of whether Plaintiff has met his
obligation under Roberts, but those alleged facts do not warrant adopting Niblack’s broad rule
that Plaintiff need not identify the exact perpetrators. For any § 1983 claim against an
individual defendant to survive summary judgment, the record must at least reflect a genuine
dispute as to the specific defendant’s involvement in causing the alleged injury. With respect
to any Brady violation in this case, the record must show a genuine dispute as to the
individual’s knowledge of any allegedly withheld exculpatory evidence.
C. Notice Regarding State Law Claims
Defendants argue that Plaintiff’s Notice of Claims under the Local Government Tort
Claims Act (“LGTCA”) (Pl. Ex. 115, ECF No. 193), which must be filed within 180 of the
alleged injury, failed to (a) name Defendants Patton, Neverdon, Van Gelder, Miles, or Boyd;
20

and (b) address the withholding or fabrication of GSR evidence as a cause of Plaintiff’s
injury. (ECF No. 179-1, at 62.) Defendants also assert that the Notice as to Plaintiff’s
intentional infliction of emotional distress (IIED) claim was untimely because it accrued at
least 180 days prior to the August 7, 2014 filing date of the Notice. Id. at 64. Without
objection at the hearing, this Court held that the alleged omissions may be excused under the
“substantial compliance” standard laid out in Watson v. City of Aberdeen, No. CIV. JKB-150307, 2015 WL 2174885, at *3 (D. Md. May 8, 2015). Defendant’s timeliness argument also
fails because, as Plaintiff notes, Burgess’ IIED claim accrued upon his release from prison
on February 21, 2014, which was within 180 days of the August 7, 2014 Notice. (Pl.’s Resp.
139 (citing Prince George’s County v. Longtin, 19 A.3d 859, 877-78 (Md. Ct. App. 2011)).
II.

Federal Due Process (Count I)
Plaintiff has alleged that various subsets of the Defendants violated his due process

rights in three ways: (a) by withholding exculpatory pretrial evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963), (b) by fabricating evidentiary reports, and (c) by suppressing
post-conviction exculpatory evidence.
A. Pretrial Brady Violation
Plaintiff alleges that Defendants withheld numerous pieces of exculpatory pre-trial
evidence:
i. That Brian Rainey was an exculpatory eyewitness to the murder as evidenced
by (a) statements to officers at the scene, at the police station, and in transit
to the Department of Social Services; and (b) Ronald Dyson’s statement to
Defendant Lehmann that “Child Bryan” might be a “witness”;
21

ii. That Howard Rice may have killed Ms. Dyson, including (a) Ronald Dyson’s
statement implicating someone known as “Little Man,” (b) information that
that “Kevin” was involved, and (c) other information that Howard Rice
murdered Michelle Dyson; and
iii. FBI information indicating that (a) an unnamed source said “[redacted],
another black male and a black female” did it; (b) Ms. Dyson’s murder was
drug-related; and (c) that multiple other witnesses had potentially
exculpatory information.
To make out a Brady claim against a police officer, a plaintiff must show “that (1) the
evidence at issue was favorable to him; (2) the Officers suppressed the evidence in bad
faith; and (3) prejudice ensued.” Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379,
396-97 (4th Cir. 2014) (citing Monroe v. Angelone, 323 F.3d 286, 299-300 (4thCir. 2003)). Any
police officer with knowledge of the exculpatory evidence has a duty to disclose that evidence.
See Owens, 767 F.3d at 397-98 (holding that each of three police officers possessing the same
exculpatory statements could be held liable for failing to disclose them to prosecutors); see
also Steidl v. Fermon, 494 F.3d 623, 630 (7th Cir. 2007) (holding that each of five police
officers who were aware of exculpatory information had a duty to disclose it to a
“competent authority”); Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988) (finding
each of three police supervisors may be held liable under § 1983 when they “know about
[their subordinate’s suppression of exculpatory evidence] and facilitate it, approve it,
condone it, or turn a blind eye for fear of what they might see”).

22

A police officer generally “suppresses” evidence by not disclosing the evidence to the
prosecutor, Owens, 767 F.3d at 396 (citing Barbee v. Warden, Md. Penitentiary, 331 F.2d 842,
846-47 (4th Cir. 1964), but suppression does not occur when the criminal defendant is
already aware of the exculpatory information. See Barnes v. Thompson, 58 F.3d 971, 975-76 (4th
Cir. 1995); see also Stockton v. Murray, 41 F.3d 920, 927(4th Cir. 1994) (“Aware of the existence
of potentially exculpatory information, a defendant cannot sit idly by in the hopes that the
prosecution will discover and disclose that information and, when the prosecution does not
do so, seize upon the prosecution's conduct as grounds for habeas relief.”); United States v.
Wilson, 901 F.2d 378, 381 (4th Cir. 1990).
In Owens, the United States Court of Appeals for the Fourth Circuit adopted the “bad
faith” requirement as espoused in Judge Wilkinson’s concurring opinion in Jean v. Collins, 221
F.3d 656, 660 (4th Cir. 2000) (Wilkinson, C.J., concurring). 767 F.3d at 396 n. 6. Judge
Wilkinson’s opinion therefore provides guidance on how a plaintiff may prove bad faith.
According to Judge Wilkinson, “bad faith” means that the police officer(s) “intentionally
withheld the evidence for the purpose of depriving the plaintiff of the use of that evidence
during his criminal trial.” Jean, 221 F.3d at 663. Relevant considerations include: (a) the
officers’ actual knowledge of “the significance of the withheld evidence”; (b) the “nature of
the withheld material, that would negate any negligent or innocent explanation for the
actions on the part of the police”; and the “concealment, doctoring, or destruction” of
evidence. Id. at 662-663. Negligence or inadvertent miscommunication between police and
prosecutor are insufficient and “conclusory allegations will not suffice.” Id. at 662.

23

The prejudice or “materiality” inquiry asks whether “there is ‘any reasonable
likelihood’ [the evidence] could have ‘affected the judgment of the jury.’” Wearry v. Cain, 136
S.Ct. 1002, 1006 (2016) (quoting Giglio v. United States, 405 U.S. 150 (1972)). To demonstrate
materiality, plaintiff must “show only that the new evidence is sufficient to ‘undermine the
confidence’ in the verdict.” Wearry, 136 S.Ct. at 1006 (quoting Smith v. Cain, 565 U.S. 73, 76
(2012)); see also Kyles v. Whitley, 514 U.S. 419, 441 (1995) (exculpatory evidence is material if it
“would have resulted in a markedly weaker case for the prosecution and a markedly stronger
one for the defense”). The allegedly withheld evidence must be analyzed together rather than
in isolation.8 Kyles, 514 U.S. at 441; Wearry, 136 S.Ct. at 1007. In doing so, the Court must
consider together only those pieces of evidence known to a specific Defendant.
Based on this framework, this Court will first analyze the allegedly withheld evidence
to address whether (1) the evidence is exculpatory and (2) was suppressed. This Court will
complete the analysis by assessing each Defendant’s alleged bad faith and, pursuant to Kyles,
the materiality of the suppressed evidence known to that Defendant.
(1) Brian Rainey’s Eyewitness Account
Defendants do not challenge that Brian Rainey’s eyewitness account, which he
allegedly shared with Defendants on the night of his mother’s murder, is exculpatory
evidence. Rather, Defendants argue that whichever officer knew Rainey was a witness
fulfilled their Brady obligation by disclosing as much to the prosecutor, Laura Shach (n/k/a
Laura Brokaw). Defendants argue broadly, “That Mr. Burgess does not know the contents
of either—(1) the file of the prosecutor; or (2) the file of his criminal defense attorney—is
Plaintiff correctly notes that Defendants’ erred in discussing and analyzing the materiality of each piece of evidence in
isolation.

8

24

dispositive on all of Mr. Burgess’s Brady-based claims.” (Defs. Reply 11.) Defendants also
point to Shach’s handwritten note, indicating that a “brother” overheard someone tell his
mother “go to basement,” as evidence that an officer told Shach that Mr. Rainey was a
witness. (Defs.’ Mot. 49-51, ECF No. 179.)9
Regarding Plaintiff’s inability to prove the contents of either Shach or Tayback’s
complete files, Plaintiff appropriately notes that he may use circumstantial evidence to prove
Defendants failed to disclose exculpatory evidence. (Pl. Resp. 63, ECF No. 195-1 (citing
Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003); Rogers v. Missouri Pacific R. Co., 352 U.S. 500,
508, n.17 (1957).) Specific to Mr. Rainey’s statements, Plaintiff points out that Shach testified
in her deposition that she had no idea what the “brother . . . go to basement” note meant
and emphasized that she had no idea Rainey was a witness. (Pl. Resp. 63-64, ECF No. 195-1
(citing Pl. Ex. 44, [Shach] Dep., at 209-11).) Shach further testified that she did not withhold
from Plaintiff any documents she received from Defendant Goldstein, the case detective
generally responsible for facilitating pretrial disclosures. Id. at 63 n.24. The present record
therefore reflects a genuine issue of fact to be addressed at trial.
(2) Howard Rice
Plaintiff alleges that Defendants withheld various pieces of information that, taken
together, pointed to Howard Rice as the “real perpetrator”: (a) Ronald Dyson’s statement
implicating someone known as “Little Man” (an alleged nickname for Howard Rice), (b)

Defendants assert once again the affirmative defense that Plaintiff failure to exercise reasonable diligence in pursuing
Mr. Rainey’s testimony bars this Brady claim. As Plaintiff notes, this Court rejected that argument at the motion to
dismiss stage. (See Pl. Resp. 60; Mem. Op. on Motion to Dismiss 18-20, ECF No. 55.) The current record does not
provide any reason to disturb that holding.

9

25

information that “Kevin” (an alleged associate of Rice) was involved, and (c) other
information that Howard Rice did it. (Pl.’s Resp. 64, ECF No. 195-1.)
Defendants have argued in their Reply and at the hearing that Plaintiff cannot
maintain a Brady claim for the withholding of information related to Rice because Plaintiff
concedes, “Rice was a name Tayback had pretrial.” (Defs.’ Reply 22-23, ECF No. 215
(quoting Pl.’s Resp. 24, ECF No. 195-1).) Plaintiff also concedes, “Goldstein and Ritz even
interrogated Burgess about [‘Little Man’ and ‘Kevin’] on November 9, 1994.” (Pl. Ex. 89,
Burgess Statement Dated 11/9/94 at ID 26-27.) Plaintiff has not argued that Tayback knew
Howard Rice to be anyone other than the real perpetrator. There is no genuine dispute that
Plaintiff and his counsel were “aware of the existence of potentially exculpatory
information” related to Howard Rice, yet after two decades and extensive discovery, Plaintiff
has not identified what additional piece of evidence related to Howard Rice Defendants
withheld. Stockton, 41 F.3d at 927. As this Court has an “affirmative obligation . . . to
prevent factually unsupported claims . . . from proceeding to trial,” Bouchat, 346 F.3d at 526,
the Court GRANTS IN PART the Defendants’ Motions for Summary Judgment (ECF Nos.
179, 189, 183) as to Plaintiff’s Brady claim related to pretrial Howard Rice evidence.
(3) FBI Reports
Plaintiff alleges that Defendants withheld FBI information as recorded in documents
FBI_252 and FBI_253. (Defs. Ex 51.) FBI_252 indicates that an unnamed source reported
that “[redacted], another black male and a black female” did it and that Ms. Dyson “was
killed because of drug related problems [as s]he may have blown a package of drugs and/or a
money package.” (Id.) FBI_253 indicates that Michelle Dyson’s babysitter and another
26

witness also had potentially exculpatory information. (Id.) Both documents indicate that the
FBI provided this information to the BPD, and “the case detective” whose name is redacted
responded regarding FBI_252 that the “information appeared to be accurate and resulted in
leads on the case.” (Id.) Defendants argue that (a) this information is not exculpatory, (b)
there is no evidence that the information in these reports was withheld, and (c) and that
Plaintiff was aware of Michelle Dyson’s involvement in the drug trade.
Regarding the exculpatory nature of the information, such as the unnamed source’s
identification of “[redacted], another black male and a black female” as the perpetrators,
Plaintiff argues the redacted name cannot be Burgess because (i) Burgess’ name would not
have been redacted as the requestor of the file, (ii) others in the area drove “Pathfinder
truck-type vehicle(s),” and the document indicates a motive contradicting the state’s theory
that Burgess acted alone with an unknown motive. (Pl.’s Resp. 72-75, ECF No. 195-1.) On
this score, Plaintiff has shown make out a genuine dispute as to the exculpatory nature of the
information in FBI_252 and FBI_253.
Regarding Defendants’ next two contentions, this Court notes again that Plaintiff
may prove Defendants withheld information by pointing to circumstantial evidence. (See Pl.
Resp. 63, ECF No. 195-1 (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003); Rogers v.
Missouri Pacific R. Co., 352 U.S. 500, 508, n.17 (1957).) Plaintiff also argues that FBI-vetted
information that the motive for Dyson’s murder related to drugs is “qualitatively different”
different than Plaintiff’s admitted awareness that Dyson used and/or sold drugs. For
example, FBI information explicitly linking the drug trade to the murder may have enabled
Tayback to present the drug angle at trial – where the trial judge had rejected evidence of
27

Dyson’s drug use as “irrelevant.” (Pl. Ex. 34, Criminal Trial Tr. at Burgess 1000-02.) The
record therefore presents a genuine dispute as to the exculpatory nature and suppression of
the information in FBI_252 and FBI_253.
(4) Identifying Defendants
This Court next addresses each Defendant’s knowledge of the exculpatory evidence,
any bad faith in suppressing said evidence, and the materiality thereof. Defendants primary
argument is that, even if Mr. Rainey made the alleged exculpatory statements at the scene
and later, Plaintiff has failed to sufficiently identify to whom the statements were made or
who was ultimately made aware of those statements. Specifically, Mr. Rainey’s description of
the recipients of his statement as “white men,” at least one of whom wore a uniform, is
insufficient. (Defs. Reply 12.) Defendants argue that “[u]nless Mr. Burgess can establish the
identity of every officer at the scene—which he cannot—he cannot use process of
elimination to prove the identity of any officer inferentially.” (Defs. Reply 17, ECF No. 215.)
Regarding FBI documents FBI_252 and FBI_253, Defendants argue there no evidence that
anyone other than the “case detective,” Defendant Goldstein, was informed of this
information, so all other Defendants should be entitled to summary judgment on this issue.
(Defs. Mot. 44.) Defendants also broadly assert that Plaintiff has failed to show any
Defendant acted in bad faith.
Plaintiff responds to the identification challenge by asserting that “Goldstein spoke
with the children at the crime scene; that the uniformed officers involved in that
conversation were Weese, Miles, Boyd, . . . and Palmere; and that Defendants Goldstein and
Ritz spoke with the children at the homicide unit.” (Pl. Resp. 43-44, ECF No. 195-1.)
28

Refuting the possibility that other, unnamed officers on the scene could have been the ones
to elicit Mr. Rainey’s statements, Plaintiff points to the fact that Goldstein “recalled seeing
three or four uniformed officers already present when he arrived.” (Pl. Resp. 47 (citing Pl.
Ex. 26A, Goldstein 11/9/16 Dep. at 8, 10-11).) Plaintiff further argues that, even if not
directly involved in speaking with Mr. Rainey, Defendants Weese, Goldstein, and Lehmann
were aware of Rainey’s exculpatory statements. (Id. at 44.)
(a) Defendant Weese
Defendant Weese was the first responding officer on the scene following Ms.
Dyson’s murder. (Pl. Ex. 23A, Weese 11/10/16 Dep. at 60.) Plaintiff alleges that he was
among the officers to hear Mr. Rainey’s witness statement because, as the first responding
officer, he would have interacted with the children to identify them and notify their next of
kin. Id. at 48 (citing Ex. 83, Weese Incident Report at BPD 2481-83; Ex. 23A, Weese
11/10/16 Dep. at 134, 157-158, 223).) Plaintiff also argues that even if another officer took
the statement, “[e]ach of the responding officers testified that they would have
communicated whatever information they received from any witness to the primary patrol
officer (who would, in turn, convey any information to Goldstein).” Pl. Resp. 53 (citing Pl.
Ex. 28, Miles Dep. at 132-134; Pl. Ex. 11, Palmere Dep. at 94-95, 99-100; Pl. Ex. 23A, Weese
11/10/16 Dep. at 330; Pl. Ex. 29, Boyd Dep. at 96-97).) As noted above, Defendant Weese
denies any knowledge of Mr. Rainey’s statement or the information in the FBI reports, and
he claims there is no evidence of bad faith.
The record reflects a genuine dispute as to Defendant Weese’s knowledge of Mr.
Rainey’s statement, but not as to his knowledge of the FBI reports. Regarding bad faith, the
29

patently exculpatory “nature of [this information] would negate any negligent or innocent
explanation” for the Defendant’s failure to disclose. (See Pl. Resp. 56 (citing Jean v. Collins, 221
F.3d at 663).)

Moving to the final step in the analysis, there is also a genuine dispute as to whether
“there is any reasonable likelihood [such compellingly exculpatory information] could have
affected the judgment of the jury.” Wearry, 136 S.Ct. at 1006 (internal quotations omitted).
(b) Defendants Miles, Boyd, and Palmere
Defendants Miles, Boyd, and Palmere are white men who were among the uniformed
officers on the scene when Defendant Goldstein arrived. (Pl. Resp. 47, ECF No. 195-1
(citing the CAD Report, Pl. Ex. 24).) Plaintiff argues that, if Goldstein and Weese’s denials
are to be credited, Mr. Rainey made his witness statements in the presence of these officers
on the scene. Plaintiff does not allege these officers were present for Mr. Rainey’s additional
statements in the police station. Plaintiff also does not appear to allege that Miles, Boyd, or
Palmere had any knowledge of the FBI reports.
Defendants Miles, Boyd, and Palmere deny any knowledge of Mr. Rainey’s status as
an eyewitness and they assert that Plaintiff’s use of “logic-games approach” to identify these
individuals is insufficient at his stage. These Defendants also challenge the bad faith and
materiality elements of Plaintiff’s claim.
Put simply, this Court would be ill-equipped to hear this case without the benefit of
logic. Especially when this Court must draw all reasonable inferences in favor of the
nonmoving party, Mr. Rainey’s testimony about the circumstances of his statement and the
undisputed presence of Defendants Miles, Boyd, and Palmere on the scene present a
30

genuine dispute as to the knowledge of Defendants Miles, Boyd, and Palmere of Mr.
Rainey’s statements at the scene. Like Defendant Weese, the bad faith and materiality
arguments by Defendants Miles, Boyd, and Palmere also fail.
(c) Defendant Goldstein
Defendant Goldstein was the lead detective on the Dyson murder case who began his
work by taking control of the crime scene on the night of the murder. Plaintiff alleges that
Defendant Goldstein spoke directly with Mr. Rainey at the scene and at the police station.
(Pl. Resp. 43-44, ECF No. 195-1.) Plaintiff asserts, in the alternative, that Goldstein was at
least aware of Rainey’s exculpatory statements. (Id. at 44, 50-52.) “All of the uniformed
officers on the scene testified that Goldstein, as lead detective, would have been the officer
to interview the victim’s children.” (Id. at 47 (citing Ex. 30A, Goldstein 11/1/16 Dep. at 95;
Ex. 23A, Weese 11/10/16 Dep. at 240-241; Ex. 11, Palmere Dep. at 152-153; Ex. 80, Stine
Rebuttal Report at 3).) Regarding the police station statement, Plaintiff points to the
acknowledgement by Defendant Goldstein that the primary detective, himself, would be the
one to interview an eyewitness at the station. (Pl. Ex. 26A, Goldstein 11/9/16 Dep. at 141143.) In terms of the FBI reports, Plaintiff argues that Defendant Goldstein was the “case
detective” who responded to receiving the information in both FBI_252 and FBI_253.
Defendant Goldstein denies any knowledge of Mr. Rainey’s exculpatory statements
and argues, based in part on confidential records from the Department of Social Services,
that the timeline of events precludes Rainey and Goldstein’s simultaneous presence at any
police station. (Defs. Reply 18-20.) Defendant Goldstein also broadly denies any bad faith or
that any withheld evidence was material.
31

Mr. Rainey’s testimony about making multiple statements, with at least one detective
present, combined merely with Defendant Goldstein’s status as the lead detective would be
sufficient to deny summary judgment as to Mr. Rainey’s statement. On top of that evidence,
the uniformed officers on the scene agree that Goldstein would have been the one to
interview the children as potential witnesses. The record also reflects a genuine dispute as to
Defendant Goldstein’s knowledge of the FBI reports. Like Defendants Weese, Miles, Boyd,
and Palmere, Defendant Goldstein’s bad faith and materiality also fail.
(d) Defendant Ritz
Defendant Ritz was the secondary detective on the Dyson case. (Defs. Mot. 54.) He
was on duty that night, but Plaintiff does not allege that he ever visited the crime scene.
Plaintiff alleges that Defendant Ritz was one of two white males who participated in the
alleged interview of Mr. Rainey at the police station because Ritz and Goldstein were the two
detectives in Goldstein’s squad on duty that night (Pl. Resp. 15-16, ECF No. 195-1.) Plaintiff
also alleges that Ritz knew of the FBI reports because FBI_252 indicates that the FBI gave
the information therein to two BPD detectives. Pl. Resp. 71-74.
Defendant Ritz denies any knowledge of Rainey’s exculpatory statements and asserts,
like Defendant Goldstein, that the timeline of events shows that Rainey was never taken to a
police station on the night of the murder. Id. at 18-20. Furthermore, “Goldstein and Mr.
Burgess both testified that they did not see the children at homicide.” (Defs. Repl. 20 (citing
Defs. Repl. Ex. 3 at 144:8-17; Defs. Repl. Ex. 12 at 223:10-11.)
This Court has an “affirmative obligation . . . to prevent factually unsupported claims
and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526. The combination of
32

Burgess’ own admission that he did not see the children at the police station with the
speculative leap from Ritz’s role in the case to his participation in an alleged interview at the
station warrants summary judgment in Defendant Ritz’ favor. Plaintiff’s claim that Ritz had
actual knowledge of either of the FBI reports is similarly speculative. Specifically, FBI_252
merely states that the information therein was “furnished to Det. [redacted] / Det.
[redacted]” yet only “the case detective,” Defendant Goldstein, responded about the
accuracy of the information. (Defs. Ex. 51.) The method by which the information was
“furnished” is unclear. Moreover, the document requires speculation to fill the gaps in
connecting Defendant Ritz to one of the redacted names and in assuming that a detective
gains actual knowledge of everything “furnished” to him or her. Defendant Ritz’s Motion
for Summary Judgment (ECF No. 179) is therefore GRANTED as to Plaintiff’s Brady claim.
(e) Defendant Lehmann
Sergeant Lehmann supervised Defendants Goldstein and Ritz, and he conducted a
telephone interview of Ronald Dyson, the victim’s father, on October 13, 1994. (Defs. Mot.
3.) He was not working on the night of the homicide. (Id.) Plaintiff alleges that by
interviewing Ronald Dyson, Lehmann learned that Brian Rainey witnessed the murder rather
than slept through it.10 (Id. at 4.) Plaintiff claims Lehmann documented that conversation in
a note allegedly indicating that “Child Bryan” was a “witness” (Pl. Resp. 53 (quoting Pl. Ex.
40, Lehmannn Note at BPD 2675)), and explains that Lehmann shared the note with
Goldstein (id. at 52). Plaintiff also alleges that Lehmann’s duties as supervisor, including
reviewing the investigation file for completeness, would have caused him to learn of the full

10

As discussed above, he also learned that “Little Man” may have been involved in the crime.

33

content of Mr. Rainey’s eyewitness account. (Id. at 53-53.) Plaintiff claims that by failing to
turn his note into a formal report and to ensure Goldstein followed up on such a lead,
Lehmann effectively withheld the information from the prosecutor. (Id. 62-63.)
Unlike all other Defendants, Defendant Lehmann does not appear to have refuted his
knowledge of Mr. Rainey’s status an eyewitness, but he argues that he never knew of the FBI
reports. He also broadly challenges any finding of bad faith or materiality under Brady.
Defendant Lehmann has failed to demonstrate, however, that there is no genuine dispute on
any of those fronts. Indeed, Lehmann is the only Defendant tied to a document regarding
Mr. Rainey’s status as an eyewitness, a compellingly exculpatory and material fact in this case.
Given the nature of this information, a genuine dispute as to bad faith remains.
(f) Defendants Van Gelder, Patton, and Neverdon
Plaintiff already abandoned any claim that Defendants Van Gelder, Patton, and
Neverdon knew of and failed to disclose Brian Rainey’s exculpatory statements. There is no
dispute in the record that these Defendants lacked knowledge of any other pretrial
exculpatory information.
(5) Qualified Immunity
Defendants also assert qualified immunity against Plaintiff’s Brady-based claims. “To
establish a qualified-immunity defense, a public official must demonstrate that (1) a plaintiff
has not alleged or shown facts that make out a violation of a constitutional right, or that (2)
the right at issue was not clearly established at the time of its alleged violation.” Owens v.
Baltimore City State's Attorneys Office, 767 F.3d 379, 395–96 (4th Cir. 2014) (internal quotations
omitted).
34

As addressed above, this Court finds genuine disputes of material fact as to
Defendants’ constitutional misconduct under Brady. Additionally, Plaintiff persuasively
quotes the holding in Owens that “our precedent unmistakably provides that by 1988, a police
officer violates clearly established constitutional law when he suppresses material exculpatory
evidence in bad faith.” (Pl. Resp. 84, ECF No. 195-1 (quoting Owens, 767 F.3d at 401).)
Defendants therefore do not have a viable claim of qualified immunity against the Brady
claims discussed above.
B. Allegations of Fabricated Evidence
A § 1983 fabrication claim requires the Plaintiff to show that an officer: (1) fabricated
evidence; and (2) that the fabrication resulted in the deprivation of liberty. Washington v.
Wilmore, 407 F.3d 274, 282 (4th Cir. 2005). Plaintiff asserts that Defendants Weese and
Goldstein fabricated police reports; Defendants Goldstein and Van Gelder fabricated GSR
evidence; and that Defendant Goldstein fabricated the results of his gas tank analysis.
(1) Police Reports
Plaintiff alleges that Defendant Goldstein fabricated at least part of his “Main Office
Report” (Pl. Ex. 45) and that Defendant Weese fabricated at least part of the “Weese
Supplemental Report” (Pl. Ex. 27). (Pl.’s Resp 85-88, ECF No. 195-1.) Specifically, Plaintiff
claims, as discussed above, that Goldstein and Weese knew Rainey had witnessed his
mother’s murderers enter the house, so their reports stating that all the children were
“asleep” were patently false, or “fabricated.” (See Pl. Ex. 45, Goldstein Main Office Report,
at Burgess 3760 (“At the time of this incident there were three children sleeping in a center
bedroom. Continuing back from there is a bathroom and then a rear bedroom. In this last
35

bedroom another child was asleep.”); Pl. Ex. 27, Weese Supplement, at BPD 2483 (“All 4
children were upstairs sleeping at the time of the incident.”).) Regarding the causal
connection between the fabrication and Plaintiff’s injury, Plaintiff explains, “[t]he proper
inquiry . . . is whether [the plaintiff’s] conviction was a reasonably foreseeable result of [the
defendant’s] initial act of fabrication . . . .” Washington, 407 F.3d at 283. In this case, he
argues that the suppression of the only eyewitness account, which is patently exculpatory,
foreseeably resulted in his false conviction.
Defendants Goldstein and Weese insist they had no knowledge of Rainey’s
eyewitness account, so they cannot be said to have fabricated a report indicating that he was
“asleep.” They also argue that the police reports did not contribute to the filing of charges or
the jury’s finding of guilt. (ECF No. 179 at 51-53.)
The Defendants’ arguments are without merit. First, the parties acknowledged at the
hearing that the fabrication claim regarding the children being “asleep” is intricately tied to
whether Defendants Goldstein and Weese had any knowledge of Rainey’s eyewitness
account. As this Court addressed above, the record presents a genuine dispute as to
Goldstein and Weese’s knowledge. Regarding causation under Washington, viewing the
evidence in the light most favorable to the Plaintiff, the fabrication of police reports to
conceal the only eyewitness account, when that account is as exculpatory as Mr. Rainey’s
alleged statement, foreseeably results in a wrongful conviction. Defendants’ Motion for
Summary Judgment is therefore DENIED IN PART as to this fabrication claim.

36

(2) Gunshot Residue Evidence
With respect to the GSR evidence created and used in Burgess’ prosecution, Plaintiff
alleges (1) that Defendant Van Gelder “fabricated” the results of the test by downplaying the
possibility of GSR transfer – contrary to valid science of the day and (2) that Defendants
Goldstein and Van Gelder “fabricated” GSR evidence by electing to conduct a GSR test
known to be “worthless” under the circumstances. (Pl.’s Resp. 117, 119-136, ECF No. 1951.) Plaintiff cites various cases in other circuits to support his theory that a forensic report
with “no valid scientific basis” is necessarily fabricated in violation of a defendant’s due
process rights. (Pl.’s Resp. 126, ECF No. 195-1 (citing Stinson v. Gauger, Nos. 13-3343, 133346 & 13-3347 (7th Cir. Aug. 18, 2017) (en banc); Mills v. Barnard, 869 F.3d 473, 485 (6th Cir.
2017); Brown v. Miller, 519 F.3d 231, 237 (5th Cir. 2008); Gregory v. City of Louisville, 444 F.3d
725, 744 (6th Cir. 2006)).)
Defendants’ argument is simple: “when evidence is not even false, it certainly cannot
be fabricated.” (ECF No. 215 at 32.) Plaintiff himself admitted in his December 2013
Petition for Writ of Actual Innocence (“Petition”) that Van Gelder’s conclusions were valid
in 1994 and 1995. In his Petition, Plaintiff asserts:
At the time, the prevailing opinion in the Baltimore Police Department was
that GSR evidence could not be readily transferred. However, since Burgess’
conviction and subsequent post-trial filings, there have been significant
developments in the area of GSR analysis, both locally and nationally, that
necessitate a rejection of such a conclusion today. . . The development that led
to this revised interpretation occurred after the May 1997 deadline for filing a
motion for a new trial under Rule 4-331, and, thus, Burgess would not have
been able to proffer an expert to refute the State’s expert in time.

37

(Pl. Ex. 76 at Burgess 952-953.)11 In an effort to make out a fabrication claim, Plaintiff now
argues that Van Gelder’s conclusion was “patently false” and that “there was no valid scientific
basis for his false conclusions—not then and not now.” (Pl.’s Resp. 126, ECF No. 195-1.)
Defendants have further argued that Van Gelder’s analysis, which acknowledged but
minimized the possibility of GSR transference, was affirmatively supported by scientific
views of the day, as evidenced in a 1991 FBI Law Enforcement Bulletin (VG Ex. 16 at
156:8-21). Defendants also note that Van Gelder completed the BPD’s standard form12 in a
manner that even the Plaintiff’s own experts, Mr. Niemeyer and Mr. Kilty, have trouble
criticizing. (E.g., Niemeyer Deposition, VG Ex. 11 at 118:13 (“You’d have to select that
choice”); Kilty Deposition, VG Ex. 16 at 88:12-13 (“I don’t think Mr. Van Gelder engaged
in misconduct”).)
Plaintiff seeks stretch a disagreement among experts – among his own views even –
into a fabrication claim under § 1983. The Court has serious concerns about plaintiffs using
§ 1983 as a vehicle for attacking the conclusions of forensic examiners who utilize
procedures later improved upon by the advancement of science or whose analysis is
negligent at worse. Courts sitting at summary judgment may have trouble denying inferences
that a forensic conclusion is knowingly misleading or false when presented with record
evidence of inaccuracies or mere negligence. To be clear, forensic examiners who improperly
manipulate, suppress, or destroy physical evidence in an effort to alter the results of their
Defendants also assert (a) judicial estoppel (VG Mot. at 18, ECF No. 183-1), which the Court declined to impose at
the motion to dismiss stage (see Mem. Op. Mot. Dismiss 15, ECF No. 55), and (b) qualified immunity (Defs.’ Reply at 34
n. 24), but the Court need not analyze the various elements of those defenses given the finding infra.
12 Checking the box next to the statement, “There is a possibility that these residues were transferred from the surface
of a firearm or from an object which lay immediately adjacent to a firearm during its discharge. Most probably, however,
the subject’s hands were immediately adjacent to a discharging firearm or were themselves used to fire the firearm . . .”
(VG Ex. 3 (emphasis added)).
11

38

tests should be liable for fabricating evidence, but courts must be careful not to open the
floodgates of litigation against forensic examiners whose analysis is less than perfect - and
more properly challenged via cross-examination at trial.
Despite these concerns, the Court need not decide the exact contours of a § 1983
fabrication claim in the Fourth Circuit against a forensic examiner for a false scientific
conclusion because Plaintiff asks this Court to find a genuine dispute between “two
conflicting versions of the plaintiff’s” own assertions. Barwick v. Celotex Corp., 736 F.2d 946,
960 (4th Cir. 1984). What’s more, there is no record evidence that Van Gelder doctored or
destroyed the sample or that he tampered with his equipment to obtain a specific result. The
dispute over whether Van Gelder’s conclusions were false – let alone fabricated – is
therefore not “genuine.” Barwick, 736 F.2d at 960.
For the same reason, Plaintiff’s claim that Defendants Goldstein and Van Gelder
fabricated evidence by conducting a GSR test in the first place must also fail. Plaintiff cannot
proceed to trial after maintaining that only after Burgess’ conviction did GSR science advance
to a point where a GSR test would have been generally understood to be worthless, due to
the ease of transfer, in case such as this. Plaintiff’s GSR fabrication claim is creatively alleged
but untenable on the record.
Accordingly, Defendant Van Gelder’s Motion for Summary Judgment (ECF No. 183)
is GRANTED, and Defendant Goldstein’s Motion for Summary Judgment (ECF No. 179)
is GRANTED IN PART as to the GSR fabrication claim.

39

(3) Gas Tank Test
Plaintiff asserts, “Defendant Goldstein fabricated the fact that on the night of the
Dyson homicide, he tapped on Burgess’ gas tank and discovered it was empty.” (Pl.’s Resp.
88, ECF No. 195-1.) Based on Plaintiff’s comments at the hearing, this Court understands
this claim to be an assertion that either Goldstein never conducted the test in the first place
or that Goldstein fabricated his finding of “empty” after performing the test. According to
Plaintiff, the gas tank test caused Burgess’ deprivation of liberty because Goldstein testified
at length at trial that the test “support[ed] the State’s claim that Burgess’ alibi was false and
showed his consciousness of guilt.” (Id. at 90 (citing Pl. Ex. 34, Criminal Trial Tr. at Burgess
1314).) Specifically, it refuted Burgess’ statement that he was getting gas before returning to
Ms. Dyson’s home. (ECF No. 195-1 at 88-90.)

The prosecutor then reinforced this

argument in closing. (Pl. Ex. 34, Criminal Trial Tr. at Burgess 995, 1065-66.)
Defendants argue this claim was waived as Plaintiff raised it for the first time in his
Response (ECF No. 215 at 30 (citing cases)) and that Goldstein’s external tapping of the
tank was negligent at worst – certainly not an intentional fabrication (id. at 31).
Plaintiff did not waive this claim given that the Amended Complaint alleges that
Defendant Goldstein “fabricated false reports.” (Am. Compl. ¶ 94, ECF No. 141-1.) That
discovery has enabled Plaintiff to specifically identify the gas tank test as one of those
reports will not prevent Plaintiff from maintaining such a claim.
On the merits, the record presents a genuine dispute of material fact as to whether
Goldstein fabricated the gas tank test. Burgess maintains that he bought gas on the night of
Ms. Dyson’s murder and that his gas needle – but not fuel level warning light – was broken.
40

(Pl. Ex. 1, Burgess Dep. 12/1/16 at 209-210.) Plaintiff also points to the fact that Goldstein
acknowledged at deposition that the car had enough gas for Burgess to drive out of the
police station. (Pl. Ex. 26A, Goldstein 11/9/16 Dep. at 133-134.) Furthermore, despite his
apparent lack of familiarity with fuel gauge systems,13 Goldstein conducted the gas tank test
personally, which departed from the usual practice of having an experienced evidence
technician conduct such an exam. (Pl. Ex. 26, Goldstein Dep. 11/9/16 at 104-105.) Viewing
this evidence in the light most favorable to the nonmoving party, the record shows a genuine
dispute as to whether the tank was in fact “empty.” Accordingly, Defendant Goldstein’s
Motion for Summary Judgment (ECF No. 179) is DENIED IN PART as to this claim.
C. Post-conviction Due Process
Both parties agree that the United States Supreme Court’s decision in District
Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009) governs Plaintiff’s
post-conviction due process claim. “The post-conviction due process inquiry asks whether
the alleged conduct ‘offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranged as fundamental,’ or ‘transgresses any recognized
principle of fundamental fairness in operation.’” Id. at 69 (quoting Medina v. California, 505
U.S. 437, 446, 448 (1992)).
Plaintiff alleges that Defendants Patton, Neverdon, and Goldstein14 violated Osborne
by withholding the following post-conviction evidence – all pointing to Howard Rice’s role
in the murder:

Pl. Ex. 26, Goldstein Dep. 11/9/16 at 131-133 (explaining that he did not know in 1994 and to date still does not
know what a gas or low fuel light is).
14 Goldstein was responsible for disclosing exculpatory information from the Dyson homicide file up until his departure
from the BPD in 1997. (Pl. Ex. 30A, Goldstein Dep 11/1/2016 at 50-51, 56.)
13

41

i.

An FBI 302 report (“FBI 302”) explicitly implicating Howard Rice in the
murder of Michelle Dyson (Pl. Ex. 67 at BPD 3377)15;

ii.

The “Howard Rice Homicide Chart” tracking “a series of similar murders
in a small geographical area and timeframe” and indicating that Rice was a
suspect in Michelle Dyson’s murder despite (Pl. Resp. 31 (citing Pl. Ex. 53,
Rice Homicide Chart at FBI 0008)); and

i.

A note in the Dyson homicide file saying, “Vehicles used by Rice; Reach
out to Bobby Patton relative to a statement he took from an individual
after suspect was convicted” (Pl. Ex. 69, ECF No. 193-75).16

(See Pl. Resp. 97-99, ECF No. 195-1.)
Defendants assert that, as a matter of law, (1) a post-conviction due process claim
was not properly pled; (2) there is no post-conviction due process right to exculpatory
evidence; (3) and the Officer Defendants are protected by qualified immunity because any
withholdings would not have transgressed a “clearly established” right. Addressing the
factual allegations, Defendants generally argue that (4) the Plaintiff knew of the exculpatory
information because Mr. Burgess’ attorney spoke with the subject of the FBI 302 about the
Dyson homicide (see Defs. Ex. 78 at Burgess 10171-72), or in the alternative, that (5) the
Defendants satisfied due process by disclosing the FBI 302 to other prosecutors. (Defs. Mot.
32-38, ECF No. 179.)
This 302 has been the subject of protective redactions in this case, so the Court provides a general description and
citation rather than direct quotations.
16 Plaintiff alleged for the first time in his Response that Defendants withheld information obtained by Patton from a
confidential source. The information was allegedly recorded in an unidentified DEA file that was ultimately reviewed by
Assistant State’s Attorney Tony Goia (see Pl. Resp. 31 n.7, 98), though Goia is now uncertain as to the contents of those
files (see Defs. Repl. Ex. 22 at 74:3-21, 82:1 to 84:11). The Court agrees with the Defendants that the Court cannot
consider this evidence at this stage because it appears to “present[] insurmountable hurdles in terms of the competency .
. . [and] layers of hearsay accompanying the purported document.” Defs. Reply 38.
15

42

Plaintiff responds that (1) this Court already held that Burgess pleaded a postconviction due process claim (see Mem. Op. 17-18, ECF No. 55); (2) that “[s]uppression of
conclusive evidence that an innocent man is imprisoned for a crime committed by another
person is the quintessential violation of due process” (Pl. Resp. 100, ECF No. 195-1 (citing
cases)); and (3) Defendants cannot assert qualified immunity after admitting during their
depositions that they had a duty to turn over exculpatory evidence discovered after a
criminal trial (id. at 106 (citing Pl. Ex. 26, Goldstein Dep. 11/9/16, at 62; Pl. Ex. 14, Patton
11/10/16 Dep. at 150)). Regarding the factual contentions, Plaintiff argues that (4) even
though Plaintiff or his attorney were aware of Howard Rice’s potential involvement, they
never had access to the highly exculpatory FBI 302; and (5) disclosure to a prosecutor on
another case does not satisfy due process (Pl. Resp. 98 (citing Barbee v. Warden, Md. Penitentiary,
331 F.2d 842, 846 (4th Cir. 1964); Kyles v. Whitley, 514 U.S. at 437)).
Regarding Defendant’s legal arguments, Plaintiff is correct to note that this Court has
already resolved that he pleaded a post-conviction due process claim. (Mem. Op. 17-18, ECF
No. 55.) In terms of the right at stake here, Osbourne does not require the Court to expound a
new, technically outlined, right every time it applies the post-conviction standard to a given
case. This Court has already considered and acknowledged that “continuing efforts to
conceal any possibility of an alternative perpetrator,” presents a viable post-conviction due
process claim – one that Plaintiff must ultimately prove at trial. (Mem. Op. 17, ECF No. 55.)
Burgess’ own continued efforts to prove his innocence before, during, and after trial
underscore that finding. In terms of qualified immunity, even though the parties do not cite
and this Court has not found precedent “on all fours,” courts should not grant qualified
43

immunity if “it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Hope v. Pelzer, 536 U.S. 730, 752, 122 S. Ct. 2508, 2522, 153 L. Ed.
2d 666 (2002) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). Defendants do not claim to
be unreasonable officers, so their own admission at deposition that they should properly
track and disclose post-conviction exculpatory information is fatal to their claim of qualified
immunity.
Turning to the Defendants’ factual contentions, the Wilson 302 and Rice Homicide
Chart present explicit, specific exculpatory information. The record will require a jury to
resolve whether the withheld information exceeds Burgess’ own knowledge at the time and
whether such information could have resulted in Burgess’ earlier release from prison.
Furthermore, the ultimate disclosure of the FBI 302 to the prosecutor on the Sewell case will
not bar Plaintiff’s present post-conviction due process action. Barbee, 331 F.2d at 846; Kyles v.
Whitley, 514 U.S. at 437. Defendants’ own accounts conflict as to whether and how the
information was disclosed,17 presenting another genuine dispute requiring a trial.
III.

Malicious Prosecution (Counts II & VI)
Plaintiff pursues malicious prosecution claims against Defendants Weese, Goldstein,

and Van Gelder. To maintain his federal and state malicious prosecution claims, Plaintiff
must show that the Defendants “(1) caused (2) a seizure of the plaintiff pursuant to legal
process unsupported by probable cause, and (3) criminal proceedings terminated in the
plaintiff’s favor.” Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546, 555 (4th Cir.
17

Patton and Neverdon deny ever seeing the 302 in question, but it appeared in the case file for the Sewell investigation
on which both defendants worked. (Pl. Resp. 32 (citing Pl. Ex. 36, Stine Report at 10; ECF No. 164 at 2).) Goldstein
argues that he had no post-conviction disclosure obligation as the exculpatory information was never placed in the
Dyson file, but Patton says he would have disclosed evidence such as the Raymond Handy interview to Goldstein. (Pl.
Ex. 14, Patton 11/10/16 Dep. at 150.)

44

2017), as amended (Aug. 22, 2017). A police officer may only be found to be liable where he
or she “‘misled or pressured the prosecution’” to pursue charges. Evans v Chalmers, 703 F.3d
636, 647 (4th Cir. 2012). When challenging the veracity of a warrant application, Plaintiff must

show “that the officer(s) deliberately or with a ‘reckless disregard for the truth’ made
material false statements in the warrant application, or omitted from that application
‘material facts with the intent to make, or with reckless disregard of whether they thereby
made, the [application] misleading.’” Humbert v. Mayor & City Council of Baltimore, 866 F.3d
546, 556 (4th Cir. 2017) (internal citations omitted).
Defendants argue that (1) Defendant Goldstein’s application for Mr. Burgess’ arrest
warrant contains no false statements and omits no material information, and (2) there is no
evidence Defendants pressured the prosecutor in any way. Plaintiff responds to the first
point by arguing that the warrant application relied in part on the gas tank test, which
Goldstein allegedly knew to be fabricated, and omitted much of the exculpatory evidence
discussed above, especially Mr. Rainey’s testimony.
This Court has already observed genuine disputes of material fact that foreclose
summary judgment against Defendants Goldstein and Weese. The malicious prosecution
claim against Defendant Goldstein is intricately tied to his knowledge of Mr. Rainey’s
exculpatory statements and to any knowledge that he fabricated the gas tank test or any
other police report. The claim against Defendant Weese is similarly tied to whether he
fabricated the Weese Supplemental Report.
On the other hand, this Court has already granted Defendant Van Gelder’s Motion
for Summary Judgment as to Plaintiff’s fabrication claim, so summary judgment in Van
45

Gelder’s favor is necessarily granted with respect to Plaintiff’s malicious prosecution claims
as well.
IV.

Failure to Intervene (Count III)
The Fourth Circuit has held that a police officer may be held liable under § 1983 for

failing to intervene where “he (1) knows that a fellow officer is violating an individual’s
constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses
not to act.” Randall v. Prince George’s County, 302 F.3d 188, 203-04 (4th Cir. 2002). Plaintiff
alleges that all individual Defendants, except Van Gelder, Patton, and Neverdon, failed to
intervene to prevent Burgess’ constitutional injuries.
Defendants contend that no officer committed any constitutional violations, but if
one did, that there is no evidence any other Defendant knew about it. Plaintiff responds
that he has shown at least a genuine dispute as to the existence of various constitutional
violations and that, despite Defendants’ argument that each individual worked in silos
insulated against knowledge of each other’s misconduct, the roles and responsibilities of
Weese (first responding officer), Goldstein (lead detective), Lehmann (supervisor who
interviewed Ronald Dyson and reviewed the Dyson file’s completeness), and Ritz (second
detective) necessarily would have given them knowledge of and opportunity to prevent
constitutional violations by other officers.
The Court has already resolved that the record will require a jury to determine
whether any Defendant violated Plaintiff’s constitutional due process rights. In terms of the
Defendants’ knowledge of each other’s potential violations, Plaintiff has produced facts that,
when viewed in the light most favorable to the Plaintiff, give rise to reasonable inferences
46

that some of the Defendants would have known of another’s constitutional violation. As
explained above, there is a genuine dispute as to Weese, Goldstein, and Lehmann’s
awareness of Mr. Rainey’s eyewitness account even if they did not speak directly to him.
That dispute also precludes summary judgment on this claim as to Weese, Goldstein, and
Lehmann18.
As to Defendant Ritz, the Court addressed above the lack of a genuine dispute as to
Ritz’s direct or second-hand knowledge of exculpatory information (namely, Mr. Rainey’s
statements and the FBI reports) allegedly withheld in violation of due process. That finding
similarly warrants summary judgment in Ritz’s favor on this count as well.
Regarding Defendants Miles, Boyd, and Palmere, the same evidence showing that
these Defendants overheard Mr. Rainey’s exculpatory statements, see Section II.a.vii. supra,
also supports an inference that they were aware of the other officers having obtained and
withheld knowledge of Rainey’s statement. These individual defendants are therefore not
entitled to summary judgment on this count.
V.

Intentional Infliction of Emotional Distress (Count VIII)
In Maryland, the elements of an intentional infliction of emotional distress (“IIED”)

claim are: “(1) The conduct must be intentional or reckless; (2) The conduct must be
extreme and outrageous; (3) There must be a causal connection between the wrongful
conduct and the emotional distress; [and] (4) The emotional distress must be severe.” Lasater
18

Plaintiff also asserts – for the first time in his Response – that the same evidence makes Lehman liable as a supervisor.
(Pl. Resp. 112-114.) Defendants argue this theory has been brought too late and is barred by qualified immunity in the
absence of a clear law prohibiting Lehman’s conduct. The Brady obligations in this case were clearly established at the
time of Lehman’s conduct, so qualified immunity does not apply, but the Court sees no reason to allow this late claim to
proceed to trial. See e.g., Williams v. Maryland, No. DKC 09-0879, 2011 U.S. Dist. LEXIS 85619, at *13-14 (D. Md. Aug. 3,
2011) (and cases cited therein). The requisite knowledge that would give rise to Lehman’s alleged supervisory liability
would be sufficient to make Lehman directly liable under Brady. With the Brady and failure to intervene claims already
proceeding, supervisory liability would needlessly triplicate the claims against Lehmann.

47

v. Guttmann, 194 Md. App. 431, 448 (2010). Defendants argue that their actions were not
“extreme and outrageous.”19 Plaintiff argues in response that “[a]n average member in the
community would consider it outrageous for police officers to falsely frame, arrest and
imprison an innocent citizen” (Pl. Resp. 141, ECF No. 195-1 (citing Henry v. Ramos, 1997
WL 610781, at *2 (N.D. Ill. Sept., 28, 1997).). Mr. Burgess has constantly maintained that he
is “an innocent citizen.” (See Pl. Resp. 95-97.)
The record shows that Plaintiff is entitled to proceed to trial against the eight
remaining Defendants – namely Defendants Weese, Goldstein, Miles, Boyd, Palmere,
Lehmann, Patton, and Neverdon – for various constitutional violations resulting in his
allegedly wrongful imprisonment. When this Court must draw all reasonable inferences in
favor of the Plaintiff, the record indicates that a reasonable jury could find that the alleged
constitutional violations constitute “extreme and outrageous” conduct.
VI.

State Due Process (Count X)
The parties agree that Article 24 of the Maryland Declaration of Rights has been read

as in pari materia with the due process rights under the Fifth and Fourteenth Amendments of
the United State Consitution. Accordingly, this count will follow the course of Count I in all
respects.

The Court has already rejected Defendants’ LGTCA timeliness argument, and Defendants have abandoned their
assertion of the three-year statute of limitations under state law.

19

48

CONCLUSION
For the reasons stated above, the Original Defendants’ Motion for Summary
Judgment (ECF No. 179) is GRANTED IN PART and DENIED IN PART, Defendant
Van Gelder’s Motion for Summary Judgment (ECF No. 183) is GRANTED, and Added
Defendants’ Motion for Summary Judgment (ECF No. 189) is GRANTED IN PART and
DENIED IN PART. Specifically, Plaintiff’s Brady-based claims (under Counts I and X) will
proceed against Defendants Weese, Miles, Boyd, Palmere, Goldstein, and Lehmann.
Plaintiff’s fabrication claims (under Counts I and X) will proceed against Defendants Weese
and Goldstein. Plaintiff’s post-conviction due process claims (under Counts I and X) will
proceed against Defendants Patton, Neverdon, and Goldstein. Plaintiff’s malicious
prosecution claims (Counts II and VI) will proceed against Defendants Weese and
Goldstein. Plaintiff’s failure to intervene claim (Count III) will proceed against Defendants
Weese, Miles, Boyd, Palmere, Goldstein, and Lehmann. Plaintiff’s intentional infliction of
emotional distress claim (Count VIII) will proceed against Defendants Weese, Miles, Boyd,
Palmere, Goldstein, Lehmann, Patton, and Neverdon.
Plaintiff’s abuse of process claim (Count VII) is DISMISSED.
Summary Judgment shall be ENTERED in favor of Defendants Purtell, Ritz, Van
Gelder, and Skinner.
A separate Order follows.
Dated: October 31, 2017

/s/
Richard D. Bennett
United States District Judge

49