Dent v. Montgomery County Police Department et al
Filing
48
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/17/10. (sat, Chambers)
Dent v. Montgomery County Police Department et al
Doc. 48
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MELISSA DENT v. MONTGOMERY COUNTY POLICE DEPARTMENT, et al. : : : : : Civil Action No. DKC 08-0886
MEMORANDUM OPINION Presently pending and reading for review in this civil
rights case are: (1) a motion for summary judgment filed by Defendants Montgomery County Police Department, et al. (Paper 35) and (2) a motion to modify the scheduling order and extend time to respond to Defendants' motion for summary judgment
(Paper 39).
The issues have been fully briefed and the court
now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendants' motion for
summary judgment will be granted in part and denied in part and Plaintiff's denied. I. Background A. Facts As of October 2006, occurred, Plaintiff Maryland. motion to modify the scheduling order will be
The following facts are undisputed. when the events Dent relevant a to this of case
Melissa
was
resident
Gaithersburg,
Dockets.Justia.com
Defendants are the Montgomery County Police Department, Officer Adam Siegelbaum, Officer Kimberly Wilson, Officer John Mullaney, and Officer Jennifer Phoenix. On October 7, 2006, Officers Siegelbaum, Wilson, Mullaney, and Phoenix (the "Officers") were dispatched to Plaintiff's home after Plaintiff's friend, Sabrina Gorham, called 911 for
emergency assistance.
(Paper 35, Ex. 1, Nos. 4, 7; Paper 43, Ms. Gorham told the 911
Ex. A ¶ 16; Paper 43, Ex. B ¶ 6).
dispatcher that Plaintiff had taken some pills and asked for an ambulance. house first. (Id.). Officer Siegelbaum arrived at Plaintiff's
(Paper 35, Ex. 1, No. 7; Paper 43, Ex. A ¶ 17; Plaintiff, Ms. Gorham, and her husband Officer Siegelbaum
Paper 43, Ex. B ¶ 9).
Sean Gorham were inside Plaintiff's home.
questioned Plaintiff about whether she was attempting to commit suicide and how many pills she took. (Paper 35, Ex. 1, No. 7; Officer
Paper 43, Ex. A ¶¶ 18-24; Paper 43, Ex. B ¶ 10-11, 17).
Siegelbaum told Plaintiff that she was going to be taken to the hospital. Plaintiff (Paper 35, Ex. 2, No. 4; Paper 43, Ex. A ¶ 26). refused to be taken to the hospital. (Paper 35,
Ex. 1, No. 4; Paper 35, Ex. 3, No. 4; Paper 43, Ex. A ¶ 26). While this exchange took place, Officers Mullaney and Phoenix arrived, followed by Officer Wilson. Paper 43, Ex. B ¶¶ 15). (Paper 43, Ex. A ¶¶ 29-30;
These Officers also asked Plaintiff and 2
her friends questions about whether Plaintiff was attempting to commit suicide and how many pills she took. (Paper 35, Ex. 1,
No. 4; Paper 35, Ex. 2, No. 4; Paper 43, Ex. A ¶¶ 29-30; Paper 43, Ex. B ¶¶ 15). Nearly all of the remaining facts are in dispute. The Officers report the following facts: The Officers were
dispatched to Plaintiff's house for a "suicide in progress." (Paper 35, Ex. 1, No. 4, 7). The Officers observed beer and (Id.). When the Officers
pill bottles lying around the home.
arrived, they observed that Plaintiff had red, watery, bloodshot eyes and spoke in slurred speech. (Paper 35, Ex. 5, at 28).
The Officers asked Plaintiff how many pills she had taken and she gave varying that she responses had taken to the question, eventually bottle."
responding
the
"whole
fucking
(Paper 35, Ex. 1, No. 4).
The Officers pleaded with Plaintiff
for her to go with them for an emergency evaluation petition at the Shady Grove Adventist Hospital. 7; Ex. 2; Ex. 3, No. 4; Ex. 4). the Officers. Plaintiff (Paper 35, Ex. 1, Nos. 4,
Plaintiff refused to go with violent, combative, and
became
agitated.
(Paper 35, Ex. 1, Nos. 4, 7, 22; Ex. 2, Nos. 4, 22).
The Officers were concerned about Plaintiff's health and safety and thought she had ingested drugs and alcohol. (Paper 35, Ex.
3
1, No. 7). occur.
The Officers thought that an overdose effect might
(Id.).
The Officers told Plaintiff that they needed to handcuff her and take her to the hospital. Plaintiff (Paper 35, Plaintiff's swung Ex. her 1, No. lit 7). (Paper 35, Ex. 2, No. 4). at Officer Siegelbaum. to grab
cigarette Officer
Mullaney and
tried
left
arm
for
handcuffing,
Plaintiff
actively
resisted, kicked, and tried to bite the Officers. Ex. 1, No. 7; Ex. 2, No. 4). to stop resisting, calm
(Paper 35,
The Officers instructed Plaintiff and give them her hands.
down,
(Paper 35, Ex. 1, No. 7; Ex. 2, No. 4; Ex. 3, No. 4). responded with more physical resistance. (Paper
Plaintiff 35, Ex. 1,
No. 4; Ex. 2, No. 4; Ex. 3, No. 4; Ex. 4, No. 4).
The Officers
warned Plaintiff that she needed to cooperate or she would be Tased. (Paper 35, Ex. 3, No. 4). Officer Mullaney attempted to
handcuff Plaintiff's left arm, Officer Siegelbaum attempted to handcuff her right arm, and Officer Wilson attempted to control Plaintiff's kicking legs. (Paper 35, Ex. 1, No. 7; Ex. 2,
No. 4; Ex. 3, No. 4). inner No. 4; backup. thigh Ex. and 1, bit
Plaintiff kicked Officer Wilson in the Officer Siegelbaum. Wilson (Paper radioed 35, for Ex. 3,
No.
16).
Officer
further
(Paper 35, Ex. 3, No. 4).
Officer Siegelbaum and
4
Officer Wilson Tased Plaintiff so that they could handcuff her. (Paper 35, Ex. 1, No. 4; Ex. 3, No. 4; Ex. 4, No. 4). Emergency fire and rescue personnel were on the scene, but it was decided that Plaintiff would be transported to the
hospital in the police cage car because of Plaintiff's violent behavior. (Paper 35, Ex. 2, No. 8; Ex. 3, No. 8). The Officers
asked the fire and rescue personnel what symptoms of overdose they should watch for during transport and were warned about possible complaints of chest pain. (Paper 35, Ex. 2, No. 8).
In route to the hospital, Plaintiff complained of chest pains. (Paper 35, Ex. 1, No. 8; Ex. 2, No. 8). Officer Siegelbaum
pulled the car over at a fire station so Plaintiff could be transferred into an ambulance for the rest of the ride to the hospital. Mullaney Ex. 1, (Paper 35, Ex. 1, No. 18; Ex. 2, No. 18). rode 8; with Ex. Plaintiff 2, No. in the ambulance. Phoenix was Officer 35, an at
(Paper prepared evaluated
No.
8). and
Officer
emergency
evaluation
petition
Plaintiff
Shady Grove Adventist Hospital. blood alcohol level was .284.
(Paper 35, Ex. 8). (Paper 35, Ex.
Plaintiff's 9, at 7).
Plaintiff was transferred to Potomac Ridge Behavioral Health, where she was admitted for three days. (Paper 35, Ex. 10).
Plaintiff's version of the facts is strikingly different. Plaintiff reports the following facts: 5 On October 7, 2006,
Plaintiff drank approximately four beers during the day in the company of two of her neighbors. ¶ 3). (Paper 43, Ex. A ¶ 3, 4; Ex. C
That day, Plaintiff's children were at Ms. Gorham's home. Plaintiff decided to go to (Paper 43, Ex. A
(Paper 43, Ex. A ¶ 4; Ex. B ¶ 1).
bed early, and took one or two sleeping pills. ¶¶ 6-7).
Before Plaintiff went to sleep, she called Ms. Gorham
to make sure that everything was set for Plaintiff's children to stay overnight at the Gorhams' home. Ex. B ¶ 2). that Plaintiff she said told Ms. (Paper 43, Ex. A ¶ 9; to tell she Plaintiff's loved them.
Gorham and
children
goodnight
that
(Paper 43, Ex. A at ¶ 11; Ex. B ¶¶ 2-3). that Plaintiff sounded loopy or drowsy. Ex. B ¶ 3).
Ms. Gorham expressed (Paper 43, Ex. A ¶ 10;
Plaintiff indicated that she was fine and that her (Paper 43, Ex. A ¶ 10).
sleeping pills made her drowsy.
Shortly thereafter, Ms. and Mr. Gorham decided to check on Plaintiff to make sure that she was okay, so they let themselves into her house with a key. (Paper 43, Ex. A ¶ 13; Ex. B ¶ 4).
Plaintiff was in her room, and Ms. Gorham asked Plaintiff to come downstairs and sit on the couch; she did so and began to smoke cigarettes. (Paper 43, Ex. A ¶ 14; Ex. B ¶ 5). There
were no beer or pill bottles lying around the home. Ex. A ¶ 37; Ex. B ¶¶ 12-13). for an ambulance.
(Paper 43,
Ms. Gorham called 911 and asked Ms.
(Paper 43, Ex. A ¶ 16; Ex. B ¶ 6). 6
Gorham told the dispatcher that Plaintiff sounded a bit loopy and that she had taken a couple of pills. (Id.). Ms. Gorham (Paper 43,
told the dispatcher that Plaintiff was not suicidal. Ex. B ¶ 7). (Id.).
Ms. Gorham reported that Plaintiff seemed alert.
The 911 dispatcher said that an ambulance would be sent (Id.). later, Ex. B Officer ¶ and 9). Ms. Siegelbaum Officer Gorham arrived. Siegelbaum accused
to Plaintiff's house. About (Paper 43, ten Ex.
minutes A ¶ 17;
repeatedly
questioned
Plaintiff
and
Plaintiff of attempting suicide. Ex. B ¶¶ 10-11, 17).
(Paper 43, Ex. A ¶¶ 18-24;
Plaintiff told Officer Siegelbaum that she (Id.). Officer Siegelbaum told (Paper 43,
had taken one or two pills.
Plaintiff that she would be taken to the hospital. Ex. A ¶ 26).
Plaintiff did not want to go to the hospital in (Id.). Officer Siegelbaum
the custody of a police officer.
continued to tell Plaintiff that she had attempted suicide and question her about the number of pills she took. Ex. A ¶¶ 18-24; Ex. B ¶¶ 10-11, 17-18). The other Officers arrived and questioned Plaintiff in an aggressive and hostile manner. ¶ 15). The emergency (Paper 43, Ex. A ¶¶ 29-30; Ex. B personnel waited outside of (Paper 43,
medical
Plaintiff's home but were not permitted to enter. Ex. A ¶ 28; Ex. C ¶¶ 7-9).
(Paper 43,
No Officer asked Plaintiff if she 7
would be willing to be seen by a paramedic or other emergency medical professional. (Paper 43, Ex. A ¶ 28). Officer
Siegelbaum asked Ms. Gorham to retrieve the pill bottle for her sleeping pills, which she did. ¶ 14). (Paper 43, Ex. A ¶ 37; Ex. B
Officer Siegelbaum called Poison Control, and the other (Paper 43, Ex. A
Officers continued to question Plaintiff. ¶ 38).
Plaintiff did not become aggressive with the Officers or (Paper 43, Ex. A ¶¶ 27,
verbally or physically threaten them. 32-34; Ex. B at ¶¶ 18-22).
When asked how many pills she took, I took one or two!" but did not (Paper 43, Ex. A
Plaintiff did state, "Fuck it!
say that she took "the whole fucking bottle." ¶¶ 35-36; Ex. B ¶¶ 11, 16).
Plaintiff told the officers that
she was not going anywhere and instructed them to get out of her house. (Paper 43, Ex. A ¶¶ 39-40). reports that Officers Siegelbaum and Mullaney
Plaintiff
picked or dragged her up off the couch and slammed her face down on the floor. Officer Mullaney (Paper 43, Ex. A ¶¶ 40, 43-44; Ex. B ¶ 22). drove his knee into Plaintiff's back and
grabbed her left arm and twisted it behind her back, and told her that he would break her other arm if she did not give it to her. (Paper 43, Ex. A ¶¶ 44-45; Ex. B ¶¶ 23-24). Officer
Siegelbaum drove his knee into Plaintiff's and into her eye, causing it to become severely black and blue and swell shut. 8
(Paper 43, Ex. A ¶¶ 46, 53; Ex. B ¶ 23; Ex. E).
Officers
Siegelbaum and Wilson proceeded to Tase Plaintiff several times on her back. (Paper 43, Ex. A ¶¶ 47-48; Ex. B ¶¶ 22-24). (Paper 43,
Plaintiff had twelve Taser burn wounds on her back. Ex. F).
Ms. Gorham pleaded with the officers to stop, and (Paper 43, Ex. A (Paper 43,
Officer Phoenix threatened to Tase Ms. Gorham. ¶ 50; Ex. B ¶ 25). Ex. A ¶ 54). Officer handcuffs. Plaintiff Siegelbaum led Plaintiff out
Plaintiff had trouble breathing.
of
her
home
in
(Paper 43, Ex. A ¶ 55; Ex. B ¶ 26; Ex. C ¶ 10). asked if she would be taken to the hospital, and
Officer Siegelbaum responded that she would after he finished his paperwork. (Paper 43, Ex. A ¶ 56). Officer Siegelbaum
placed Plaintiff in his patrol car, later stopped and placed her on a curb, and finally placed her in an ambulance that took her to the hospital. B. (Paper 43, Ex. A ¶ 57; Ex. C ¶ 10).
Procedural History
On April 14, 2008, Plaintiff filed a complaint in this court, which alleged deprivation of her civil rights and gross negligence County. against certain police officers and Montgomery
(Paper 1).
Plaintiff filed an amended complaint and (Papers 8
later, on July 23, 2008, a second amended complaint. and 14). Discovery ended on August 7, 2009. 9
On September 8,
2009,
Defendants
filed
a
motion
for
summary
judgment.
(Paper 35). modify the
On October 15, 2009, Plaintiff filed a motion to scheduling order and extend time to respond to
Defendants' motion for summary judgment. II. Summary Judgment Defendants have moved for summary
(Paper 39).
judgment
pursuant
to
Federal Rule of Civil Procedure 56.
It is well established that
a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). other words, if there clearly exists factual issues In
"that
properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986); JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See Scott v. Harris, 127 S.Ct. A party who bears
1769, 1774 (2007); Emmett, 532 F.3d at 297.
the burden of proof on a particular claim must factually support 10
each element of his or her claim. 323.
Celotex Corp., 477 U.S. at
"[A] complete failure of proof concerning an essential
element . . . necessarily renders all other facts immaterial." Id. Thus, on those issues on which the nonmoving party will
have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a
genuine issue for trial. Corp., 477 U.S. at 324. will not suffice F.3d to 307,
See Anderson, 477 U.S. at 254; Celotex "A mere scintilla of proof, however, summary Cir. judgment." 2003). Peters must v. be
prevent 314
Jenney,
327
(4th
There
"sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249.
"If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." (citations omitted). III. Analysis A. Fourth Amendment Claims second amended complaint alleges that the Id. at 249-50.
Plaintiff's
Officers violated Plaintiff's Fourth Amendment rights by using excessive force against her and by forcing her go to the
hospital for an emergency evaluation. Officers had probable cause to
Defendants argue that the Plaintiff to the
transport 11
hospital for her own safety and that none of the officers used excessive force against her. Defendants liken this case to three cases considered by the United States Court of Appeals for the Fourth Circuit that
address detentions for emergency evaluation. See S.P. v. City of Takoma Park, 134 F.3d 260 (4th Cnty., Md., 954 F.2d 960 (4th Cir. 1998); Cir. Gooden v. Howard Vanderwaart v.
1992);
Baltimore Cnty., Md., 836 F.2d 548 (Table), No. 87-2067, 1987 WL 30227, *1 (4th Cir. 1987). Defendants note that it was reported
to the Officers that Plaintiff had attempted to take her own life and the Officers saw empty beer and drug bottles in her home; as such, they thought she had the wherewithal to commit suicide. Defendants assert that "[b]ased on their training,
investigation and observations, the officers reasonably believed Plaintiff had a mental disorder, and that there was a clear and imminent danger of her doing bodily harm to herself." 35, Attach. 1, at 13). (Paper
Defendants also argue that they are
entitled to immunity for their actions under Md. Code Ann., Cts. & Jud. Proc. § 5-623. Additionally, Defendants argue that the force used by the Officers Phoenix was had reasonable. no hands-on Defendants contact with assert that (1) Officer (2) Officer
Plaintiff,
Mullaney's physical contact with Plaintiff was limited to him 12
grabbing
her
left
arm
and
attempting
to
handcuff
her,
(3)
Officer Siegelbaum's physical contact with Plaintiff was limited to grabbing her arm, placing her on the floor, and using a Taser on Plaintiff so that he could handcuff her, and (4) Officer Wilson's physical contact was limited to attempting to control Plaintiff's legs when she was on the floor and using a Taser on Plaintiff. (Id. at 15-19).
Plaintiff counters that Defendants did not have probable cause to detain her for an emergency evaluation and that the force used against her was excessive. Plaintiff argues that,
after talking with her and her friends, the Officers had no reason to believe that she had a mental disorder or that she was a danger to herself or others. Plaintiff also contends that (Paper 43, Attach. 1, at 11). Defendants are not entitled to
immunity for detaining her under Maryland law because they did not act "in good faith and with reasonable grounds."
(Id. at 12).
Plaintiff asserts that the cases that Defendants
cite are inapposite because the plaintiffs in those cases had exhibited seriously psychotic or violent behaviour. Plaintiff
instead likens this case to Bailey v. Kennedy, 349 F.3d 731 (4th Cir. 2003), in which the Fourth Circuit found that officers did not have probable cause to detain the plaintiff for a
psychiatric violation even though they had been informed that 13
the
plaintiff
was
suicidal.
Id.
at
740-41.
Additionally,
Plaintiff argues that the Officers used excessive force against her because (1) Officer Phoenix did not protest or attempt to stop the other Officers and threatened to Tase Ms. Gorham; (2) Officer Mullaney threw Plaintiff on the ground, kneed her, and assisted the other Officers in Tasing her; (3) Officer
Siegelbaum dragged Plaintiff off of her couch, slammed her on the floor, kneed her in the back and eye, twisted her arms, and Tased her no less than six times; and (4) Officer Wilson bound Plaintiff and Tased her no less than six times. Plaintiff
argues that summary judgment should be denied because of genuine disputes of material fact. To prevail on a claim pursuant to Section 1983, a plaintiff must show that (1) the defendant deprived her of a right secured by the Constitution or the laws of the United States and (2) and the deprivation was achieved by the defendants acting under
color of state law. There is no
Paul v. Davis, 424 U.S. 693, 696-97 (1976). that the police officers' actions
dispute
constituted state action. The rights first issue is whether the Plaintiff's officers Fourth Amendment the
were
violated
when
made
Plaintiff
subject of a petition for an emergency evaluation. Health General Code provides: 14
The Maryland
(a) A petition for emergency evaluation of an individual may be made under this section only if the petitioner has reason to believe that the individual: (1) Has a mental disorder; and (2) The individual presents a danger to the life or safety of the individual or of others. Md. Code Ann., Health-Gen § 10-622. Cts. & Jud. Proc. § 5-624 provides: (b) Any petitioner who, in good faith and with reasonable grounds, submits or completes a petition under Title 10, Subtitle 6, Part IV of the Health-General Article is not civilly or criminally liable for submitting or completing the petition. (c) Any peace officer who, in good faith and with reasonable grounds, acts as a custodian of an emergency evaluee is not civilly or criminally liable for acting as a custodian. Section 5-623 (b) also provides that "A person who in good faith and with reasonable grounds applies for involuntary admission of an individual is not civilly or criminally liable for making the application under Title 10, Subtitle 6, Part III of the HealthGeneral Article." To seize an individual for an emergency medical evaluation, "an officer must posed have a probable to cause to believe or that the Furthermore, Md. Code Ann.,
individual
danger
herself
others
before
involuntarily detaining the individual." 266. 15
See S.P., 134 F.3d at
In Bailey, 349 F.3d at 739, the Fourth Circuit explained: Probable cause is a "practical, nontechnical conception" that addresses the "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Illinois v. Gates, 462 U.S. 213, 231, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1993)(quotation marks omitted). It is a "fluid concept" that cannot be "reduced to a neat set of legal rules." Id. at 232, 103 S.Ct. 2317. We have previously held that in the case of the law governing seizures for psychological evaluations, there is a "lack of clarity" as far as what constitutes probable cause. Gooden [], 954 F.2d [][at] 968 []. Viewing the facts in the light most favorable to Plaintiff, it cannot be determined as a matter of law that the officers had probable cause to seize Plaintiff Defendants in were for an emergency that medical were
evaluation. dispatched evidence for that
Although a
assert
they
"suicide
progress," informed
Plaintiff multiple
presented that
Defendants
times
Plaintiff was not suicidal.
Ms. Gorham reported that she told When the sitting
the 911 dispatcher that Plaintiff was not suicidal. officers arrived at Plaintiff's house, Plaintiff was
calmly on her couch.
Plaintiff asserts that she told each of
the officers that she had not attempted suicide and was not attempting to commit suicide. Plaintiff also contends that she
told the officers that she had only taken one or two sleeping pills. Plaintiff, Ms. Gorham, 16 and Plaintiff's neighbor
Christine Nitterhouse testified that pills and beer bottles were not strewn about Plaintiff's house. Defendants' version of the
facts, of course, contradicts Plaintiff's account and calls into question whether Plaintiff was acting violently during their
interaction with her. that the 911 call
Defendants particularly rely on the fact was coded as a "suicide in progress."
However, as in Bailey, "[w]ithout more, the 911 report cannot bear the weight that the officers would place on it. The law
does not permit `random or baseless detention of citizens for psychological evaluations.'" Gooden, 954 F.2d at 968). Bailey, 349 F.3d at 740 (quoting
There are genuine issues of material
fact as to whether Defendants had probable cause for detaining Plaintiff for an emergency medical evaluation and, in regard to the state law immunity defenses, as to whether Defendants acted "in good faith and with reasonable grounds" to petition for an emergency hospital. evaluation or involuntarily summary admit Plaintiff be to the on
Therefore,
judgment
will
denied
Plaintiff's Fourth Amendment claim that she was involuntarily detained and forced to go to the hospital for an emergency
evaluation. The second issue is whether, even assuming there was
probable cause to detain Plaintiff, the officers used excessive force against Plaintiff. The Supreme Court of the United States 17
has clarified that courts must use a standard of "objective reasonableness" to determine whether force used by police
officers was excessive in violation of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 388 (1989). The question is
whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force. Id. at 395. "A reviewing court must make
`allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving.'" F.3d 125, 129 (4th Cir. 2001), Anderson v. Russell, 247 denied, 534 U.S. 949
cert.
(2001)(quoting Graham, 390 U.S. at 397).
"The court's focus
should be on the circumstances at the moment force was used and on the fact that officers on the beat are not often afforded the luxury of armchair Elliott reflection." Leavitt, 99 Anderson, F.3d 247 F.3d at 130 Cir.
(quoting
v.
640,
642
(4th
1996)(citations omitted)). There is a genuine dispute of material fact as to whether the force the officers used against Plaintiff was excessive. Plaintiff testified that she was not aggressive toward the
officers and that she asked them to leave her home.
Plaintiff
recalls that the officers picked or dragged her off her couch
18
and threw her to the floor, kneeing her in the back and eye before they used their Tasers on her at least six times. On acted the with other hand, the officers of recount that and Plaintiff violence. kicked
increasing the
levels
agitation that
Specifically,
officers
testified
Plaintiff
Officer Wilson in the inner thigh and bit Officer Siegelbaum. The officers report that they warned Plaintiff that they would have to use their Tasers on her if she would not submit to being handcuffed and taken to the hospital. The only officer who had no hands-on contact with Plaintiff was Officer Phoenix. Plaintiff asserts that Officer Phoenix
threatened to Tase her friends, but the Gorhams are not parties to this suit. Because Plaintiff has not presented evidence that
Officer Phoenix used force against her, Officer Phoenix entitled to judgment as a matter of law rights that by he using did not violate force not
Plaintiff's against
Fourth The
Amendment
excessive are
her.
remaining
defendants,
however,
entitled to summary judgment as to Plaintiff's excessive force Fourth Amendment claim because there are genuine issues of
material fact as to whether their actions were reasonable. B. Fourteenth Amendment Claims
Plaintiff's complaint alleged that Defendants violated her Fourteenth Amendment rights when 19 they displayed deliberate
indifference
to
her
medical
needs
and,
according
to
her
opposition brief, when the officers "attempted to rob Plaintiff of her liberty without legal justification . . . and attempted to handcuff Plaintiff and drag her out of her home at night . . . ." 24). Defendants assert that Plaintiff was not deprived of any Fourteenth Amendment right because the officers did not display deliberate Attach. 1, indifference at 19). to her medical contends needs. that her (Paper 35, (Paper 1 ¶¶ 22, 42, 62, and 82; Paper 43, Attach. 1, at
Plaintiff
Fourteenth
Amendment claims are not limited to the officers' deliberate indifference officers' to her medical of needs, her but liberty also include the legal
deprivation
without
justification. The
(Paper 43, Attach. 1, at 24). Amendment provides that no state "shall
Fourteenth
deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV. The due process
clause of the Fourteenth Amendment "guarantees more than fair process" and "includes a substantive component that provides with
heightened
protection
against
government
interference
certain fundamental rights."
Martin v. St. Mary's Dep't of The core of
Social Servs., 346 F.3d 502, 511 (4th Cir. 2003).
substantive due process is to protect the individual against 20
"arbitrary
action
of
government."
County
of
Sacramento
v.
Lewis, 523 U.S. 833, 845 (1998). "Only governmental conduct that `shocks the conscience' is actionable as a violation of the Fourteenth Amendment." Young
v. City of Mount Rainer, 238 F.3d 567, 574 (2001)(quoting County of Sacramento, 523 U.S. at 846). "[C]onduct that amounts to
`deliberate indifference' [] is viewed as sufficiently shocking to the conscience that it can support a Fourteenth Amendment claim." Young, 238 F.3d at 575 (citations omitted).
"Deliberate indifference requires a showing that the defendants actually knew of and disregarded a substantial risk of serious injury to the detainee or that they actually knew of and ignored a detainee's serious need for medical care." (citations omitted). Plaintiff asserts that, after she was handcuffed, Officer Siegelbaum led her out of her home. Plaintiff asked if she Id. at 575-76
would be taken to the hospital, and Officer Siegelbaum responded that she would after he finished his paperwork. not presented evidence of how long she had to Plaintiff has wait to be
transported.
Officer Siegelbaum placed Plaintiff in his patrol
car, later stopped at a fire station when she complained of chest pain, and finally placed her in an ambulance that took her to the hospital. Plaintiff has not presented evidence that 21
Defendants actually knew of and disregarded a substantial risk of serious injury to her or that they actually knew of and ignored her serious need for medical care. has not presented sufficient evidence Therefore, Plaintiff regarding deliberate
indifference for a jury to return a verdict in her favor. Additionally, as the Supreme Court explained in Graham v. Connor, 490 U.S. 386, 395 (1989), there is no separate due
process claim for excessive force claims: Today we make explicit what was implicit in Garner's analysis, and hold that all claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims. All of Plaintiff's claims regarding the deprivation of her
liberty due to the officers' actions of handcuffing her and taking her out of her home must be analyzed under the Fourth Amendment. Therefore, summary judgment will be granted in favor of Defendants on Plaintiff's Fourteenth Amendment claims because she has not presented sufficient evidence for her deliberate 22
indifference
claim
and
her
excessive
force
claims
will
be
evaluated under the Fourth Amendment. C. The Qualified Immunity doctrine of qualified immunity shields government
officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
"Qualified immunity is `an immunity from suit, rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Mitchell Scott v. Harris, 550 U.S. 372, 376 n.2 (2007)(quoting v. Forsyth, 472 U.S. 511, 526 (1985)(emphasis in
original)). The Supreme Court of the United States recently revised the procedure for determining whether a defendant is entitled to qualified immunity. Pearson v. Callahan, 129 S.Ct. 808 (2009).
Courts are no longer required to consider a rigid two prong analysis "in proper sequence," as directed in Saucier v. Katz, 533 U.S. 194, 200 (2001). Instead, courts are "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 23
hand." in the
Id. at 818. light most the
The first prong considers whether, "[t]aken favorable to the show party [that] asserting the the
injury, . . .
facts
alleged
officer's
conduct violated a constitutional right[.]" at 201. If the evidence establishes a
Saucier, 533 U.S. 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.
The United States Court of Appeals for the Fourth Circuit set out the proper way to evaluate the separate Saucier issues: 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." Batten v. Gomez, 324 F.3d 288, The plaintiff bears 293-94 (4th Cir. 2003). the burden of proof on the first question i.e., whether a constitutional violation occurred. Bryant v. Muth, 994 F.2d 1082, th Cir. 1993)("Once the defendant 1086 (4 raises a qualified immunity defense, the plaintiff carries the burden of showing that the defendant's alleged conduct violated the law"); see also Crawford-El v. Britton, 523 U.S. 574, 589, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998)(noting that the Court's qualified immunity holding in Harlow "related only to the scope of an affirmative defense" and did not change "the plaintiff's burden of proving a constitutional violation"); Carr v. Deeds, 453 F.3d 593, Cir. 2006)(affirming summary 608 (4th judgment in qualified immunity appeal "because the plaintiff failed to bring forth admissible evidence from which the jury could conclude" that the officer used 24
excessive force); Figg v. Schroeder, 312 F.3d 625, 642 (4th Cir. 2002)(noting that a § 1983 plaintiff "must prove the illegality of the seizure"). The defendant bears the burden of proof on the second question - i.e., entitlement to qualified immunity. Wilson v. Kittoe, 337 F.3d 392, th 397 (4 Cir. 2003)("The burden of proof and persuasion with respect to a claim of qualified immunity is on the defendant official."); see also Bailey [], 349 F.3d [][at] 739 [](same); Tanner v. Hardy, 764 F.2d 1024, 1027 (4th Cir. 1985)("It is a well established principle that qualified immunity . . . is a matter on which the burden of proof is allocated to the defendants."); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981)("the good faith immunity of individual police officers is an affirmative defense to be proved by the defendant"); cf. Dennis v. Sparks, 449 U.S. 24, 29, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980)(noting that in a § 1983 action "the burden is on the official claiming immunity to demonstrate his entitlement"); but cf. Harlow, 457 U.S. at 815 n. 24, 102 S.Ct. 2727, 73 L.Ed.2d 396 (explaining that the Court had not decided which party bears the burden of proof). Henry v. Purnell, 501 F.3d 374, 377-78 (4th Cir. 2007)(footnotes omitted). In considering the second prong of the Saucier framework, the key issue is whether the law at the time the events in question occurred "gave the officials `fair warning' that their conduct Marshall contours was unconstitutional." 447 F.3d 292, must Ridpath 313 be 25 (4th v. Bd. of Governors "[T]he that a
Univ., of the
Cir.
2006). clear
right
sufficiently
reasonable
official
would
understand
that
what
he
is
doing
violates that right." (1987).
Anderson v. Creighton, 483 U.S. 635, 640
"[A]lthough the exact conduct at issue need not have
been held to be unlawful in order for the law governing an officer's actions to be clearly established, the existing
authority must be such that the unlawfulness of the conduct is manifest." aff'd, 526 Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998), U.S. 603 (1999). If the right was not clearly
established, the qualified immunity doctrine shields a defendant officer from liability. Plaintiff has met her burden for showing that the officers' conduct violated her Fourth Amendment rights, both as to her right to be free of excessive force and to not be seized for an emergency medical evaluation without probable cause. have not met to their burden of proof to demonstrate the to law be is Defendants they are
entitled
qualified that
immunity. have course
First, a
clearly from v.
established excessive
individuals during the
right a
free
force
of
seizure,
Turmon
Jordan, 405 F.3d 202, 206 (4th Cir. 2005)(finding the "general right to be free from unreasonable seizures is as old as the Fourth Amendment"). It is equally well established that police Second, Defendants
may not use a Taser on a compliant adult.
have failed to demonstrate as a matter of law that Plaintiff's 26
right
to
be
free
from
seizure
for
an
emergency
medical
evaluation absent probable cause was not clearly established at the time of the incident. right is not clearly Defendants do not explain why the after the Fourth Circuit's Therefore, qualified
established
opinion in Bailey, 349 F.3d at 731, decided in 2003. summary judgment will be denied as to Defendants'
immunity claim. D. 1. Maryland State Law Claims Articles 24 and 26 of the Maryland Declaration of Rights
Article 24 of the Maryland Declaration of Rights protects substantive due process rights and Article 26 protects the right to be free from unreasonable searches and seizures. The
provisions are construed in pari materia with the Fourteenth and Fourth Amendments See of Canaj, the Inc. United v. States & Constitution, Phase III,
respectively.
Baker
Div.
391 Md. 374, 424 (2006); see also Carter v. State, 367 Md. 447, 458 (2002); State v. Smith, 305 Md. 489, 513-514 (1986),
cert. denied, 476 U.S. 1186 (1986). granted in favor of Defendants as
Summary judgment will be to Plaintiff's Fourteenth
Amendment claims so summary judgment will also be granted on Plaintiff's due process claims under Article 24.
27
Article 26 of the Maryland Declaration of Rights protects the right to be free from unreasonable searches and seizures.1 Maryland courts "have long recognized that Article 26 is in pari materia with the Fourth Amendment," Richardson v. McGriff, 361 Md. 437, 452-53, 762 A.2d 48, 56 (2000)(internal citations
omitted).
As such, the disposition of Plaintiff's § 1983 claim
under the Fourth Amendment "dictates the same result on [her] Article 26 claim." Cir. 2006). Just Mazuz v. Maryland, 442 F.3d 217, 231 (4th as summary judgment will be denied on
Plaintiff's Fourth Amendment claims, with the exception of her Fourth Amendment excessive force claim as to Officer Phoenix, summary judgment will be denied as to Plaintiff's claims under Article 26. See id. ("Although, theoretically, the resolution
of claims under the Fourth Amendment and Article 26 can differ, we discern no basis in this record or under Maryland law to support a different construction of these provisions.")
(internal citation omitted)).
Article 26 provides: "That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted." 28
1
2.
Municipal Liability argue that Plaintiff's evidence against
Defendants
Montgomery County is insufficient under Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978). 26). (Paper 35, at 23-
Plaintiff concedes that she cannot prove her municipal claim against Montgomery County without additional
liability discovery.
(Paper 43, Attach. 1, at 28).
As discussed below,
Plaintiff will not be permitted to conduct additional discovery. Therefore, summary judgment will be granted in favor of
Montgomery County on Plaintiff's municipal liability claim. 3. Article III, § 40
Defendants move for summary judgment on Plaintiff's claim under Article III, § 40 of the Maryland Constitution because Plaintiff has not made any claim that her property was taken for public use. § 40 claim. Plaintiff agrees to a dismissal of her Article III, Therefore, Plaintiff's Article III, § 40 claim will
be dismissed with prejudice. E. Punitive Damages
Defendants move for summary judgment on Plaintiff's claim for punitive damages, asserting that she has no evidence that the officers acted with malice. Plaintiff counters that she has (Paper 35, Attach. 1, at 30). presented evidence that the
29
officers
acted
in
a
hostile
and
violent
manner
without
an
objective basis for doing so. Assuming compensatory that damages Plaintiff against
(Paper 43, Attach. 1, at 31). can the establish entitlement she to may
Defendant
Officers,
only recover punitive damages against them under Section 1983 if she can show their conduct "to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." U.S. 30, 56 (1983). damages are Smith v. Wade, 461
Similarly, under Maryland law, "[p]unitive against individuals upon a showing of
available
actual malice."
Robles v. Prince George's County, 302 F.3d 262,
273 (4th Cir. 2002)(citing Bowden v. Caldor, Inc., 350 Md. 4, 23, 710 A.2d 267, 276 (1998)). Plaintiff has provided evidence that
the officers unnecessarily restrained, kneed, and Tased her and forced her to go to the hospital in response to her denial of trying to commit suicide and her request for them to leave her home. Viewing the facts in the light most favorable to
Plaintiff, there are sufficient disputes of material fact for the jury to decide the question of malice.
30
IV.
Motion to Modify the Scheduling Order and to Extend Time to Respond to Defendants' Motion for Summary Judgment Plaintiff moves to modify the scheduling order to allow
additional time for discovery.1 case history:
Plaintiff recounts the following
Per the Court's Order of May 8, 2009, discovery closed and a status report was due on August 7, 2009 and dispositive motions were due on September 8, 2009. On August 7, 2009, through a joint status report, Plaintiff's former attorney apparently agreed that the parties had completed discovery. However, that same day, Plaintiff's former attorney filed a motion to withdraw his appearance. The Court granted the motion on September 1, 2009. (Paper 39, Attach. 2, at 2). Plaintiff notes that she was not
able to retain new counsel until October 2009, in part because her former attorney at 4-5). would not give now her the that case her file. former
(Paper 41,
Plaintiff
asserts
attorney neglected to complete discovery and asks for discovery to be reopened so that she may retain experts to offer opinions as to (1) whether the force used by the officers was reasonable, (2) whether the training offered by Montgomery County was
reasonable, (3) what are the appropriate police procedures in cases like this one, and (4) what are the methods,
This motion also requested an extension of time to file a response to the motion for summary judgment. That aspect of the motion was granted and Plaintiff's response was filed December 4, 2009. See paper 42. 31
1
reasonableness, and appropriateness of Taser usage in this case. (Paper 39, Attach. 2, at 3). Defendants respond that discovery should not be reopened and that Plaintiff's opposition to their motion for summary
judgment was untimely.
(Paper 40, at 3-4).
Defendants contend
that Plaintiff has failed to establish "excusable neglect" by her former attorney under Fed.R.Civ.P. 6(b)(1)(B). Because deadline Plaintiff's the motion to extend time was (Id. at 5). after the
filed had
for
Plaintiff's motion will
opposition be
brief
passed, to
reviewed
pursuant
Fed.R.Civ.P. 6(b)(1)(B).
This Rule requires "excusable neglect"
for a motion to extend time when the motion is made after the time for the moving party to act has already expired.
"[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable neglect.'"
Thompson v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 533 (4th Cir. 1996). While Plaintiff had ample time to find a new
attorney and respond to Defendants' motion for summary judgment, Plaintiff's delay in responding did not prejudice Defendants. Fed.R.Civ.P. 16(b) governs the modification of a scheduling order. District courts have broad discretion to manage the
timing of discovery, Ardrey v. United Parcel Service, 798 F.2d 679, 682 (4th Cir. 1986), cert. denied, 480 U.S. 934 (1987), and 32
the only formal limitation on this discretion with respect to consideration of motions to amend scheduling orders is that the moving party demonstrate good cause. Fed.R.Civ.P. 16(b)(4).
"Good cause" is shown when the moving party demonstrates that the scheduling order deadlines cannot Power be Co. met v. despite Elec. its Motor
diligent
efforts.
Potomac
Elec.
Supply, Inc., 190 F.R.D. 372, 375 (D.Md. 1999)(quoting Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C. 1997), aff'd by unpublished opinion, 129 F.3d 116
(Table), 1997 WL 702267 (4th Cir. 1997). The parties have briefed the issue of excusable neglect under Rule 6(b)(1)(b) instead of good cause under Rule 16(b). Nevertheless, Plaintiff had ample time to conduct discovery.
The discovery deadline was extended twice, from December 8, 2008 to February 23, 2009 and later August 7, 2009. former attorney propounded written discovery on Plaintiff's all four
officers and Montgomery County. shown why Plaintiff's former
Plaintiff's new counsel has not attorney lacked diligence in
conducting discovery. additional modified. discovery
Plaintiff will not be allowed to conduct and the scheduling order will not be
Therefore, Plaintiff's motion will be denied as to
her request for additional time for discovery.
33
V.
Conclusion For the foregoing reasons, Defendants' motion for summary
judgment
will
be
granted to
in
part the
and
denied
in
part to
and
Plaintiff's
motion
modify
scheduling
order
allow
further discovery will be denied.
A separate Order will follow.
/s/ DEBORAH K. CHASANOW United States District Judge
34
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