The Estate of Kendall Arnaz Green et al v. Pinkerton

Filing 28

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/18/2017. (kns, Deputy Clerk)

FILED

u.s. j"T ' :T r"":':T

IN TIlE UNITED STATES IlISTRICT
COUR:G i,~:~ ,:: ,i L;"::)
(~ ..
,.FOR THE DISTRICT
OF MARYLANI>
SOUtIl em Dil'ilioll
ZOIl AUG18 P I: It.l

C' .-""
-,
EST A TE OF KENI>ALL
ARNAZ GI{EEN, et tli.,

*

Plaintiffs,

.

... ,

*

v.

Case No.: G.JH-16-2!l96

*
I\IATTIIEW

PINKERTON,

*
I>cfendant.

*
*

*

*

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*

*

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MEMORANI>UM

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*

*

*

*

OPINION

Thc Estate of Kendall Arnaz Green brings this \\Tongful death and survival action against
Defendant

Sergcant

Scptcmbcr

15.2013.

Matthcw

Pinkerton

for thc 1(ltal shooting of Grecn by Pinkcrton

The action \vas originally

Illcd in thc Circuit Court for Princc Gcorgc's

County. and Dcfendant

removed

jurisdiction.

pending before the Court is Dcfendant's

Defendant's

I

Prcsently

Motion lor Summary

the action to this Court. invoking thc Court's

Judgment.

on

diversity

Motion to Stay. ECF No. 20. and

ECF No. 26. No hearing is necessary.

105.6 (D. Md. 2016). For thc lollowinl.t~reasons. Defendant's

See Loc. R.

Motion IlJr Summarv . Judl.tment is
~

granted. and the Motion to Slay is denicd as moot.

or

1 The decedent.
at all Iimcs relevant to the action. was a resident of the state
Maryland. ECF No. I ~i S'(}t'
4.
../lls/u/e I/IS. Cu. \'. ('hen: •.. No. eIV.A. EI.II-II.2898. 2012 WI. 1425158. at *4 (I). Md. Apr. 23. 2(12) (""a
decedent's estate must be sued through the estate"s personal repn:sclltalive. who is statutorily 'deemed (0 be a
citizen only of the same State as the decedent. "') (citing 28 U.S.c. 1332(c)(2». Defendant Pinl\crton was. at the
time the action was tiled. rind at rill times thcreafter. a resident of the state of Florida. lei. ~i ECF No. 10 4-5:
5:
see Rmr/antl \'. Palla.wn1. 852 F.2d 108. 112 (4th Cir. 1988) (noting that diversity of citizenship is determined whcn
the complaint is liIed). PfrlintiITseeks damagcs in cxcess of $75.000. Thereforc. diversity jurisd ictioll over this
action is propcr. .'-illl..' 28 U.S.c. ~ 1332.

*

'i~

I.

BACKGROUNJ)2
Kendall Arnaz Green. an acquaintance

relationship

with Jessica Pinkerton.

Matthew

also ECF No. 2 ~ 5. During the relationship
towards Jessica. striking. throwing.
learned about Green's

assaulted

home because of his aggressive
assaulted.

Pinkerton's

was engaged in an extramarital

wife. See ECF No. 26-1 'i'll-l0:

and their interactions

see

together. Green was violent

and pushing her. ECF No. 26-1 ~~ 102-106.

violent tendencies

drank. that he had previously

of the Pinkertons.

Jessica also

in other respects -

that Green became violent when hc

his father. that Green's

mother had kicked him out of her

behavior.

and that Green had boasted about other people hc had

See itl. 'i~ 11-18. 107-110. Green allegedly stood at a height of six leet. six inches tall.

See ECF No. 26 at 53
In the early morning

hours ofSeptembcr

phone. See ECI' No. 26-1 '1'133-40.

Grccn was intoxicated.

Jessica. "111bc at your house waiting"'/d
ld. ~~ 40-43.

Green continued

going to pick up'" /d ~'146-49.

15.2013.

'i 40.

Green was texting Jessica on hcr cell

Id. '119. At 1:23 a.Ill .. Green texted

Jcssica respondcd.

"no" and "don't

to text Jessica. stating. "Pick up da phonc'"
Jcssica did not respond to Green's

so [sicl that."

and "Ok you not

Illessages.

At 1:48 a.Ill ..

Green then stated. "if you pick up I wont go the door if you don't 1'111
doing Illorc [thanl
knocking'"

/d ~~ 51-53. Shortly thercatlcr.

Drive. Glcn Burnic. Maryland.

Grecn callle to thc Pinkcrton

house at 424 Arbor

/d 'i'i 19-21. 26-66. No one had invited Grcen to cOllle to the

house. /d ~ 67.

about March 2. 2017. Defendant served upon Plaintiffs written Requests for Admission of Fact. .\~(!l'ECF
Pursuant to Fed. R. Civ. P. 36. each matter of which an admission is requested is deemed to be admitted
unless. within 30 days aller service of the request. the receiving party serves upon the requesting part.y a written
answer or objection addressed to the matter. Fed. R. Civ. P. 36(a)(3). In this case. PlaintilTs did not serve Defendant
\!"'ithan answer or objection: thus. each request j()f admission is deemed admitted. Accordingly, the facts stated
herein are taken from the Requests fc.lrAdmission. l1nles~ otherwise noted.
,l Pin cites to documents
filed on the Court's electronic tiling system (CM/ECF) refer to the page nUl11ber~generated
by that system.
2

On

Of

No. 26-1.

2

When Green arrived at the house, he spoke brietly with Matthew Pinkerton.
I

'i 120. Pinkerton

shut the door with Green still outside the house, and did not reopen the door

for Green. !d. ~ 120-121.
result.!d.

~'lln-131.

td. ~~ 68-72.
aggrcssively,

ECF No. 26-

Green then forccd his way into the house, cracking the Ii"<mtdoor as a

One or more persons inside the house repeatedly

Onec inside the house. Green began cursing at Matthcw

directed Green to leave.
Pinkerton,

acting

td. '1'180-84. Green started to approach

and using racial slurs towards Pinkerton.

Pinkerton.

!d. ~ 85. Pinkerton told Grcen to stop. !d.

n 85-87.

Pinkcrton,

allegedly

a handgun in front of Green. See ECF NO.2

~'18-9.

even after Pinkerton

In fact. PlaintilTalleges

Green. See id.
approached

'i 9. Pinkerton

Pinkerton.

with the handgun,

'1'1 88-90.

Green. !d.

Pinkerton

'I'i 91-95.

to approach

he "did not have it in him" to shoot

backed away li"<JmGreen. and continued

ECF No. 26-1

to back away as Green

then shot Green twice in the chest
Both shots were lired from within the

blood and shell casings were found inside thc home. !d. ~~ 92-99.

being shot. Green staggered
immediately

that Green told Pinkerton

I~Jlally wounding

home, and Green's

brandished

Green continued

onto the porch. td.

after the shooting.

!d.

~',i112-113.

'1 100.

Matthew

Pinkerton

After

called 911

dead on the scene. See id.

Green was pronounecd

~~ 115-118.
The State of Maryland

2013. See ECF Nos. 26-2-26-3:

pursued criminal charges against Matthew

S/(Ile \'. Pinker/on. 02-K-13-1930

A jury trial was held. See id. At the conclusion
Court li.Jr Anne Arundel
acquitting

Pinkerton

Grccn's
Complaint

Pinkerton

in October of

(Cir. Ct. Anne Arundel Cty.).

of the Statc's case, Judge MulfiJrd of the Circuit

County granted Defendant's

Motion lor Judgment

of Acquittal.

of all charges. See ECF No. 26-1 ~ 138; ECF No. 26-3 at 7.

estatc. by and through Green's

mother. Felicia Letitia Carroll, tiled this

in the Circuit Court lor Prince George's

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County. Defendant

removed the action to this

Court on August 17. 2016. Plaintiff brings a survival action and wrongli.il dcath action. alleging
claims ofnegligencc

and battery. Scc Md. Code. Cts. & .Iud. Proc. ~ 3-902: Md. Codc. Est. &

Trusts ~ 7-40I(y). Plaintiff seeks damages in excess ofS2 million dollars.
On December 22, 2016. Defendant moved Ii))'a stay of proceedings because Pinkerton
was to be deployed for military serviee on or about January 9. 2017. and then "Ii,r a period of no
less than 6 months:' ECF No. 20 ~~ 4-5. Plaintiffs opposed the Motion to Stay. ECF No. 21. On
March 17.2017. counsellilr

Delendant indicated that '"Sergeant Pinkerton's present deployment

is scheduled to conclude. subject to change in July 01'2017:' ECF No. 25 at 1. The Court has
received no further inlimnation regarding Pinkerton's availability. In this status report. counsel
lilr Defendant also indicated that hc had propounded written discovery to the Plaintiffs. which
had not been returned. Id Delendant liled his Motion lor Summary Judgment on April 17.2017.
ECl' No. 26. Plaintiffs have not responded to the Motion. and the time tilr doing so has passed.
On June 23. 2017. the Court issued a paperless Order. stating that while the Motion for Summary
Judgment was ripe tilr resolution. because Plaintiffs may have incorrectly belin'ed the case had
been stayed. the Court would allow the Plaintiffs an additional seven days to respond to the
dispositive motion. ECF No. 27. To date. Plaintiffs have not done so. Now. more than lill.ty live
days have elapsed. and the Court is ready to render its Decision. Upon consideration of the
uncontroverted facts set lilrth in Delendant's Motion lilr Summary Judgment. and related
authorities. the Motion is now granted. The Motion to Stay is denied as moot.
II.

STANDARD

OF REVIEW

The court '"shall grant summary judgment iI'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(a). A material l~lCtis one that '"might alkct the outcome of the suit under the

4

governing law:' Andcrson \'. Uhcrl)' I.ohhy. Ine.. 477 U.S. 242. 248 (1986). A genuine issue over
a material fact exists "if the evidcnce is such that a reasonable jury could return a verdict Itlr thc
nonmoving party:' !d In undertaking this inquiry. the Court must consider the lacts and all
reasonable inferences in the light most 1~lvorableto the nonmoving party. Scoll \'. Ilarris. 550
U,S, 372, 378 (2007). But this Court must also abide by its affirmative obligation to prevent
factually unsupported claims and defenses Ii'om going to trial. f)rC\l'ill \'. !'rOll. 999 F.2d 774,
778-79 (4th Cir. 1993).
The burden is on the moving party to show ,.that there is no genuine issue as to any
material fact. However. no genuine issue of material fact exists if the nonmoving party t~lilsto
make a sufficient showing on an essential element of his or her case as to which he or she would
have the burden of proof:' Bemon \'. Princc Gcorgc 's Cm/)'. Co/l .. No. CIV.A. DKC 12-1577.
2013 WL 4501324. at * 3 (D. Md. Aug, 2 I. 2(13) (citing Cclo/cx Corp. \'. C(lIrCII,477 lJ .S. 317.
322-23 (1986», Thus. upon a motion ftlr summary judgment. the opposing party "may not rest
upon. , , mere allegations or denials:' but rather. "must set ftlrth specific I~lctsshowing that there
is a genuine issue tt)r trial. II'the [opposing] party does not s'o respond. summary judgment. if
appropriate. shall be entered against the [opposing] party." (I'll!/' \'. Princc (lcorgc '.\'Cly ..
Ml/Iyland. 16 F, App'x 191. 192 (4th Cir. 2(01) (citing Fed. R. Civ. P. 56(e».
Of note. hO\vcvcr. if thc nonmoving party does not respond to the summary judgmcnt
motion. the failure to respond. in and of itself: "does not fulfill the burdens imposed on moving
parties by Rule 56. Section (c) of Rule 56 requires that the moving party establish. in addition to
the absence of a disputc over any material f~lCt. hat it is 'cntitled to a judgmcnt as a mallcr of
t
law:" Cuslcr )'. Pan

Alii.

Life Ins. Co.. 12 F.3d 410.416 (4th Cir. 1993) (citinl! Fcd, R, Civ, P.
.
~

56(c)). Although the nonmoving party's failure to rcspond "may Icave uncontrovcrtcd those facts

5

established by the motion. the moving party must still show that the uncontrovertcd facts entitle
the party to 'ajudgment

as a matter of law .... Ill. Thus. the Court must revicw a summary

judgment motion. "evcn if unopposed. and determine from what it has before it whether the
moving party is entitled to summary judgment .. :. !d"
III.

ANAL YSIS
In this wrongful death action. the Court applies the law of Maryland. \\'here the alleged

homicide occurred. See Kielar \'. Granile COIISI. Co .. 647 F. Supp. 2d 524. 526 (D. Md. 2009)
("Maryland generally follows the principle of lex loci delicli. which applies the law of the state
where the injury occurred"). Maryland's wrongful death statute provides that "laIn action may be
maintained against a person whose wrongful act causes the death of another:' Md. Code. Cis. &
.Iud. I'roc. ~ 3-902(a)5 Under the common law. "lolrdinarily a person who is attacked is required
to retreat if the means of doing so are within his power and consistent with his safety:' (iaill('/' \'.
Slale. 40 Md. App. 382. 386 (1978): see also Bar/Oil \'. .'lillIe. 46 Md. App. 616.618 (1980).
Ilowever. with respect to this "so-called 'retreat rule.' a universally recognized exception exists:
there is no duty to retreat ifone is attacked in his own home. ifin other respects he brings

~ As an initial matter. Defendant argues that Pinkerton's acquittal in the state COUl1 criminal case collaterally estops
liability in this civil action. Hmvever. the Maryland Court of Appeals has explicitly declined "to npply collateral
estoppel in civil proceedings follO\\'ing acquittals on criminal charges" In re Neil C. 308 Md. 591. 596 (1987). This
is in part because .'the lower burden of proof in the subsequent civil proceeding [as opposed to the burden of proof
in a criminal case] precludc[sl the application of collateral estoppel. Id. (citations omitted). Therefore, Plaintiffs'
wrongful death action is not barred by collateral estoppel.
.<; In a survival
action, Maryland law provides that "[3] personal representative ma.y prosecute, defcnd, or submit 10
arbitration actions, claims, or proceedings in an)' appropriate jurisdiction for the protection or henelit of the estate,
including the commencement ora personal action which the decedent might have cOlllmenced or prosecuted:' Md.
Code, Est. & Trusts ~ 7--10 I. "Under Maryland law, claims for survival and \\Tongful death, although both arising
upon a person's death, differ importantly. In a survival action, claims arc prosecuted fiJrthe benefit orthc estate, and
the measure of damages is the harm to the decedent. A \"'fOngful death claim is for the benefit of the spouse, parent.
or child and includes damages for pecuniary loss and emotional harm to the survivors arising out of the loss ofa
family member:' .\'Ia,.,.", Uniled Slall.'s, 262 F, Supp. 2d 605, 607 (D. Md. 20(3) (citations omitted). These
differences arc, however, irrelevant to this Court's resolution orthe dispositive motion ill this casco as the Cfll'\; of tile
dispute is thc wrongfulness or justifiability of the killing.

6

himself within the ordinary
premised

rules of sell~defense:'

Caill('r.

40 Md, App. at 368, This exception

on the idea that "a man's home is his castle. indeed his ultimate sanetuarv

is

.. :. Iti. at

388.
As Maryland

courts have recognized,

"[iJ I' the peri I-the attack-occurs

sI

in [the defendant'

home. his dwelling

place. he need not retreat Irom it. but may stand his ground and usc whatever

force is reasonable

(including.

himself."

/Jar/all

if necessary.

fatal force) in order to repel the attack and defend

\'. S/(/I('. 46 Md. App, at 618 (1980): .1'('('a/so Crall/im/

361 (1963) (agreeing

\'. SIo/('. 231 Md. 354.

that "a man faced with the danger of an attack upon his dwelling

need not

retreat tr(lln his home to escape the danger. but instead may stand his ground and, iI' necessary
repel the attacK. may kill the attacker."):

Caill('/'.

40 Md. App. at 390 (adopting

reasoning

.. [iJt is not now and never has bccn the law that a man assailed in his own dwelling
retreat. If assailed there. he may stand his ground and rcsistthe
take to thc lields and the highways.

upon a bascless apprehension

Maryland

degree of i()rcc used to repel

21 Md, App, 13. 31 (1974) (noting that "we do

to be so absolute as to sanction promiscuous

by an unreasonablc

Md. App. 382. 388 n.5 (1978) ("One of the most important
excessivc:').

is bound to

attack. lie is under no duty to

and .. [tlhe permissible

Loll' \'. S/(//('.

not find the right to detCnd onc's habitation
shooting

that

a fugitive Irom his own home ... ).

To be sure. this right is not absolute.
an intruder must not be excessive:'

to

pcrson:'):

.\'('(' a/so Gaill(,/, \'. S/a/(', 40

elcments

is that the force used not be

courts. and most American jurisdictions

havc further clarified:

[IJf an assault on a dwelling and an attcmpted forcible entry arc
made under circumstances
which would create a reasonable
apprehension
that it is the design of the assailant to commit a
fCiony or to inflict on thc inhabitants injury which may result in
loss of life or great bodily harm. and that the danger that thc dcsign
will be carried into eflect is imminent. a lawful occupant of the
dwelling may prevent the cntry even by the taking of the intruder's
life.

7

Lalt'. 2 I Md. App. at 27 (citing Crau:timl. 231 Md. at 360).
In Pinkcrton' s casc. thc facts. uncontrovcrtcd in this unopposcd mot ion for summary
judgmcnt. dcmonstrate that Pinkcrton was acting in rcasonable defense of his own homc. In the
middle of the night on Septcmbcr 15. 2013. Kendall Grccn arrivcd at thc Pinkcrton home
uninvited. See ECF No. 26-1 ~~ 60. 67. Grecn eamc to scc Jessica. Pinkerton's wifc. who had
exprcssly directcd him not to come to the house. III. ~~ 39-58. At the time. Grecn had a blood
alcohol content 01'0. I7 perccnt. morc than twice the legal limit for opcrating a motor \'chiclc in
Maryland. III.

'i'i 19-22.

Alier Pinkcrton closed the door on Grcen. Green forccd his way into the

'i'i 127-131. One or morc persons in the home
told Grecn to leavc. Grccn rcfuscd. Id. 'i'i 68-72. Grccnuscd racial slurs towards
cursed at him. and bcgan to approach him. Id. 'i~
84-87. Pinkerton told Grcen to stop.

Pinkerton home. cracking thc front door. Id.
rcpcatedly
Pinkerton.

but Green continued to approach Pinkcrton. Id.

~'I
87-90.

Pinkcrton backcd away

li'0111

Grcen as

he continued to approach him. Id. Even alicr Pinkcrton brandishcd his firearm. Green refused to
cease his aggrcssivc bchavior and leavc thc homc. See ill.: see also ECF No. 26 at 5.
Under thesc facts. no reasonablc juror could tind that Grccn did not forcibly enter thc
Pinkerton dwelling. and commit an assault or attack upon thc dwclling. The circumstanccs
described creatcd a reasonable apprehcnsion that Grecn was about to commit a felony upon the
housc. and inflict scrious bodily harm upon Pinkcrton or upon other inhabitants ofthc homc.
Thcreforc. Pinkerton actcd reasonably in using dcadly force to repel thc attack. whcrc an
intoxicated Green forccd his way into Pinkcrton's house in thc middlc ofthc night. cngagcd in an
altcrcation with Pinkerton. refused to leave. and continued to approach Pinkcrton alier several
directivcs to stop. See Crmffiml \'. Slale. 231 Md. 354. 364 (f963) (finding that appcllant had
mct his "burdcn of proving by a prepondcrancc ofthc evidcnce that he acted reasonably in

8

defense of his habitation against lilrcible entry" where decedent forced his way into appellant's
home seeking to beat and rob appellant). Pinkerton. as lawful occupant of the dwelling. was
under no duty to retreat in his own home. and therelilre cannot be held liable tilr acting in
reasonable defense of his home. See BartOli \'. State. 46 Md. ApI'. 616. 621 (1980) (Iinding
defendant had no duty to retreat and was acting in sell~defense when decedent charged at him
with a knife in a dwelling where defendant resided): cj." (jailler \'. State. 40 Md. ApI'. 382. 384
(1978) (linding that trial court erred in lailing to instruct on "castle doctrine" where defendant
and decedent had verbal altercation in defendant's home and decedent's "blood aleoholle\'el

was

.1T).
Moreover. under these lacts. Pinkerton is allorded civil immunity under Maryland law.
Md. Code. Cts. & .Iud. Proc.

* 5-808 provides civil immunity lilr persons using tilrce against

individuals entering the person's dwelling. It states:
(b) A person is not liable lor damages lor a personal injury or death of an individual \\ho
enters the person's dwelling or place of business if:
(I) The person reasonably believes that force or deadly lill"Ceis necessary to repel an
attack by the individual: and
(2) The amount and nature of the lorce used by the person is reasonable under the
circumstances.
Md. Code. CIs. & .Iud. Proc.

* 5-808. Accordingly.

as the Court reasoned earlier. because

Pinkerton reasonably believed that deadly li)fce was necessary to repel Green's attack on his
home. his person. and his family -

and because the usc of this lilfce was feasonable under the

totality of the circumstances -Pinkerton

is not liable for damages in this action.

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IV.

CONCLUSION
For the foregoing reasons. Defendant"s Motion for Summary Judgment. Eel' No. 26. is

grunted. und the Motion to Stuy. Eel' No. 20. is dcnied as moot. A scparatc Ordcr shall issuc.

/Z~-

Datc: AU1!ust 1¥".2017

GEORGE.J. HAZEL

Unitcd Statcs District Judgc

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