Gill v. Mallow
MEMORANDUM OPINION. Signed by Judge Stephanie A. Gallagher on 11/13/2023. (c/m 11/13/2023 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No.: SAG-22-2077
Pending in this civil rights case is Defendant Justin Mallow’s Motion to Dismiss or, in the
alternative, for Summary Judgment. ECF No. 17. Self-represented Plaintiff Shawntay Gill
opposes the motion. ECF No. 19. The Court finds a hearing in this matter unnecessary. See Local
Rule 105.6 (D. Md. 2023). For the reasons that follow, Defendant’s motion, construed as a Motion
to Dismiss, shall be denied; Gill shall be granted an opportunity to request appointment of counsel;
and the parties will be directed to file status reports.
Gill alleges that Mallow used excessive force against him while arresting him and
processing him through the Allegany County Detention Center. Specifically, Gill alleges that on
September 14, 2021, a search warrant was executed for 102½ East First Street via forced and
unannounced entry. ECF No. 1 at 5. The search of the residence uncovered controlled substances
as well as related paraphernalia, leading to Gill and two other people being arrested. Id. Gill
claims that an officer with the Cumberland City Police Department (“CCPD”) conducted a search
of his person which included a partial strip search. No weapons or other contraband were found
during that search. Id.
While Gill was in the custody of the CCPD officer who searched him, he claims that
Trooper Justin Mallow asked that officer if he had searched “this Black Monkey,” referring to Gill.
ECF No. 1 at 6. Although the CCPD officer answered that Gill had already been searched, Gill
claims that Mallow “seized [him] from the CCPD Officer . . . pulled Plaintiff’s pants down finding
nothing, then pulled Plaintiff’s pants back up, then pulled them down again this time all the way
to Plaintiff’s shoes, and defendant then shoved a finger into Plaintif’s [sic] rectum.” Id. When
Gill screamed out in pain and told Mallow what he had done was unnecessary, he claims that
Mallow responded: “Nigger I can do whatever the fuck I want and need to do to you Nigger and
don’t you ever forget it Boy.” Id.
According to Gill, while his hands were still restrained behind his back, Mallow forced
him to the floor face first. ECF No. 1 at 6. Gill recalls that Mallow then placed both of his thumbs
behind each of Gill’s ears and put his knee in the middle of his back. Id. Gill claims that Mallow
then told him, “Nigger, shut the fuck up, you should have known you were going to ‘get it’
whenever I saw your no good Nigger ass again.” Id. Shortly thereafter, Gill claims that Mallow
turned him over onto his back and began choking him. Id. When Gill began complaining that he
could not breathe, he alleges that Mallow told him that he better shut up or he would end up like
George Floyd. Id.
Gill claims that Mallow then told the CCPD Officer who had searched Gill to take “that
Nigger out front.” ECF No. 1 at 6. The Officer took Gill outside of the house and sat him down
on the front steps at the front entrance of the house. Id. at 7. Gill was there for approximately ten
minutes when he recalls Mallow exited the house, approached Gill, and said, “I bet you thought I
forgot about you, didn’t you Nigger?” Id. Mallow then struck Gill on the right side of his face
with his closed fist. Id.
Mallow asserts that Gill is mistaken as to his involvement. He claims that his only
involvement was assisting with the search warrant, and further claims that Gill could not have
identified him because his identity was obscured by a face mask, with no visible name tag. Rather,
Mallow claims he did not enter the house until after the Cumberland City CERT team extracted
Gill and “cleared” the house. Mallow entered the house to search it and did not interact with Gill
until much later at the detention center. ECF 17-2 at 8. Mallow further asserts that neither he nor
any of the other officers had body cameras on the day in question and, therefore, the allegation
that he told Gill he was turning his body camera off is not credible. ECF No. 17-2 at 5, 8-9.
Although there is a reference to Mallow’s “sworn testimony” along with a cite to an exhibit, there
is no exhibit attached to Mallow’s motion.
Gill counters that, despite the factors noted by Mallow that obscured his identity, Gill knew
it was Mallow due to prior contacts he had with him. Gill references two cases: State of Md. v.
Shawntay Gill, Crim. No. C-01-CR-19-000944 and C-01-CR-21-0002741 (Allegany Co. Cir. Ct.).
ECF No. 19-1 at 4. Neither case lists Mallow as an arresting officer or an interested party.2
STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), the factual allegations of a complaint “must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). The court may “consider documents attached to the complaint, see Fed.R.Civ.P. 10(c),
The case number referenced by Gill in his Opposition Response is C-01-CR-21-000247. ECF No. 19-1 at 4. That
case number, however, does not exist. Case number C-01-CR-21-000274 is a criminal case against Gill that was
initiated in the Allegany County courts. See. http://casesearch.courts.state.md.us/casesearch/ (last viewed Oct. 30,
See http://casesearch.courts.state.md.us/casesearch/ (last visited Oct. 30, 2023).
as well as those attached to the motion to dismiss, so long as they are integral to the complaint and
authentic[.]” Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
2007) (citation omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence sufficient
to prove the elements of the claim. However, the complaint must allege sufficient facts to establish
those elements.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted).
The court is mindful that Gill is a self-represented litigant. A federal court must liberally
construe pleadings filed by pro se litigants to allow them to fully develop potentially meritorious
cases. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But liberal construction does not mean a
court can ignore a clear failure in the pleadings to allege facts which set forth a claim. See Weller
v. Department of Social Services, 901 F.2d 387, 391 (4th Cir.1990). A court cannot assume the
existence of a genuine issue of material fact where none exists. Fed. R. Civ. P. 56(c).
Although Mallow’s motion pleads in the alternative for summary judgment, there is no
evidence or exhibits submitted outside of the pleadings for this Court to consider. Had Mallow
submitted his declaration, his request for summary judgment would still fail as there are genuine
disputes of material fact prohibiting summary judgment, i.e., whether Mallow was involved, and
whether ill knew him from prior interactions. See Laughlin v. Metro. Washington Airports Auth.,
149 F.3d 253, 261 (4th Cir. 1998) (where matters outside the pleadings are considered, the motion,
plead in the alternative, may be “converted” to one for summary judgment). Determining which
of the parties is telling the truth requires a credibility determination that cannot be made on
summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility
determinations . . . are jury functions, not those of a judge . . . ”).
Taking Gill’s allegations as true, the complaint states a claim of excessive force during
arrest. Claims of excessive force during an arrest or investigatory stop are examined under the
Fourth Amendment's objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 39597 (1989); see also Cty. of Los Angeles v. Mendez, __ U.S. __, 137 S.Ct. 1539, 1546-47 (2017)
(“The framework for analyzing excessive force claims is set out in Graham.”). Reasonableness is
assessed by weighing “the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the importance of the governmental interests alleged to justify the
intrusion.” Mendez, 137 S.Ct. at 1546 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). The
operative question is “whether the totality of the circumstances justifies a particular sort of search
or seizure.” Id. (quoting Garner, 471 U.S. at 8-9). Factors to be included in making this
determination include the severity of the crime at issue, whether there is an immediate threat to
the safety of the officer or others, and whether the subject is resisting arrest or attempting to flee.
See Graham, 490 U.S. at 396. The determination is to be made “‘from the perspective of a
reasonable officer on the scene’ . . . ‘based upon the information the officers had when the conduct
occurred.’” Mendez, 137 S.Ct. at 1546 (first quoting Graham, 490 U.S. at 397; then quoting
Saucier v. Katz, 533 U.S. 194, 207 (2001)). The use of force described by Gill in his verified
complaint has no conceivable legitimate governmental interest. Gill claims he did nothing to
provoke the force used against him. Rather, in one instance he was simply sitting on the sidewalk
with his hands restrained when he was hit on the right side of his face. Thus, his complaint survives
scrutiny under Rule 12(b)(6).
Mallow asserts that he is entitled to avail himself of a qualified immunity defense. ECF
No. 17-2 at 10. “Qualified immunity balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). “In particular, . . . qualified immunity protects law officers
from ‘bad guesses in gray areas’ and it ensures that they may be held personally liable only ‘for
transgressing bright lines.’” Gomez v. Atkins, 296 F.3d 253, 261 (4th Cir. 2002) (quoting
Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)). The defense provides protection for
public officials for mistakes of law, mistakes of fact, or a combination of the two. See Groh v.
Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting). Qualified immunity is a defense
from suit, not simply liability, which is lost if a matter is improperly permitted to go to trial. See
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Resolution of whether an official is entitled to
qualified immunity must be determined “at the earliest possible stage in litigation.” Hunter v.
Bryant, 502 U.S. 224, 227 (1991).
In order to determine if a public official is entitled to the protections afforded by qualified
immunity, two inquiries must be addressed by this court. Although the Supreme Court’s decision
in Saucier v. Katz, 533 U.S. 194 (2001) directed a rigid approach to the inquiries involved, the
requirement that the two-prong analysis must be “considered in proper sequence” has since been
revised. Katz, 533 U.S. at 200. Courts are now “permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 818.
The first prong is whether “[t]aken in the light most favorable to the party asserting the
injury, . . . the facts alleged show [that] the officer’s conduct violated a constitutional right[.]”
Saucier, 533 U.S. at 201. If the evidence establishes a violation of a constitutional right, the second
prong is to assess whether the right was “clearly established” at the time of the events at issue. Id.
If the right was not clearly established, the qualified immunity doctrine shields a defendant officer
from liability. The “answer to both Saucier questions must be in the affirmative in order for a
plaintiff to defeat a . . . motion for summary judgment on qualified immunity grounds.” Henry v.
Purnell, 501 F.3d 374, 377-78 (4th Cir. 2007) (citing Batten v. Gomez, 324 F.3d 288, 293-94 (4th
Cir. 2003)). ‘“Clearly established’ means that, at the time of the officer's conduct, the law was
‘sufficiently clear’ that every ‘reasonable official would understand that what he is doing’ is
unlawful. Dist. of Columbia v. Wesby, _ U.S. _, 138 S. Ct. 577, 589 (2018) citing Ashcroft v. al–
Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Qualified immunity does not insulate Mallow here; a reasonable officer in his position
would have known that the conduct alleged in the complaint violates the constitutional rights of
the arrestee. It has been the well-settled law for more than 20 years that gratuitously punching or
violating the bodily integrity of an arrestee violates the Fourth Amendment. Taking the allegations
of the complaint as true, this was not a gray area where an officer simply made the wrong choice.
Here, the conduct alleged was intentional and, as evidenced by the alleged racial slurs, it was
State Statutory Immunity
This same analysis applies to Mallow’s claim that he is entitled to statutory immunity on
any of Gill’s State claims. ECF No. 17-2 at 11-12, citing Md. Code Ann., State Gov’t §§ 12-101,
12-105; Md. Code Ann., Cts. & Jud. Proc. § 5-522(b). Immunity for State personnel is specifically
reserved for those acts or omissions within the scope of public duties. Id. Again taking the
allegations of the complaint as true, Mallow’s actions were not within the scope of his duties as a
State Trooper and the conduct alleged was malicious.
Having found that Gill’s complaint states a viable claim and that Mallow is not entitled to
dismissal of the complaint, the Motion to Dismiss or, in the alternative. for Summary Judgment,
will be construed as a Motion to Dismiss and denied by separate order which follows.
_November 13, 2023
Stephanie A. Gallagher
United States District Judge
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