Opinion
Civil Action No. CCB-06-0097.
March 25, 2009
MEMORANDUM
Now pending before the court are two motions for summary judgment, one filed by defendants James Greene and Donald A. Kellum of the Cecil County Sheriff's Office, and one filed by defendants Angelo Giafes and Timothy Goss of the Elkton Police Department (collectively "defendants"). Plaintiff Gilbert R. Kimpel has sued these and other officers of both departments, as well as the Board of County Commissioners of Cecil County, Maryland, for alleged violations of his Fifth and Fourteenth Amendment rights during pretrial detention (Count I); alleged violations of his Fourth Amendment rights by failing to properly train officers (Count III); alleged deprivation of rights under color of law, including the right "to be free from excessive force" (Count IV); and alleged battery and violation of his First Amendment rights during a subsequent interaction with Elkton police (Counts V and VI). In their motions, defendants Giafes, Goss, Greene, and Kellum seek summary judgment as to Count I, and defendants Giafes, Goss, and Greene seek summary judgment as to Count IV. The issues in this case have been fully briefed and no hearing is necessary. For the reasons stated below, the defendants' motion for summary judgment will be granted.
This count, brought under both 42 U.S.C. § 1983 and 18 U.S.C. § 242, will be treated as a claim under only § 1983 because there is no private cause of action under § 242, a criminal statute. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994).
Count II, alleging conspiracy against all defendants under 42 U.S.C. §§ 1983 1985, was previously dismissed by my September 13, 2006 Memorandum and Order. ( See docket entry nos. 52 53.)
Also pending are a motion to strike plaintiff's designation of additional expert witnesses, brought by defendants Giafes, Goss, Greene, and Kellum (as well as others no longer in this case), and a motion for sanctions for failure to supplement discovery, brought by defendants Giafes and Goss (as well as others no longer in this case).
Regarding Mr. Kimpel's designation of additional expert witnesses, the defendants' motion to strike will be granted. Rule 26(a)(2) states that a party "must disclose to the other parties the identity of any witness it may use at trial," and that this disclosure "must be accompanied by a written report . . . if the witness is one retained or specifically employed to provide expert testimony." Fed.R.Civ.P. 26(a)(2)(A)-(B). These disclosures must be made "at the times and in the sequence that the court orders." Fed.R.Civ.P. 26(a)(2)(C). In my October 6, 2006 scheduling order, I set January 15, 2007 as the deadline for plaintiff's Rule 26(a)(2) disclosures, a deadline that I eventually extended to July 13, 2007.
Mr. Kimpel's failure to disclose Dr. Kofi Boahene, Dr. Alan Miller, and Dr. Anand Murthi as potential medical experts until August 6, 2008 — particularly when Drs. Boahene and Murthi had examined Mr. Kimpel in the fall of 2007 — constitutes an unexcused and prejudicial delay. See Carr v. Deeds, 453 F.3d 593, 601-02 604-05 (4th Cir. 2006) (finding no abuse of discretion when district court excluded unnecessarily tardy expert disclosures); see also Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278-79 (4th Cir. 2005) (noting that a party's failure to timely provide Rule 26 disclosures "unfairly inhibits its opponent's ability to properly prepare, unnecessarily prolongs litigation, and undermines the district court's management of the case").
Regarding Mr. Kimpel's late submission of photographs purportedly taken on September 20, 2005, the defendant's motion for sanctions will be granted. When a party fails to timely disclose evidence as required by Rule 26(e), Rule 37(c) gives the court broad discretion to impose sanctions which include the exclusion of that evidence, unless the failure was "substantially justified" or is "harmless." Fed.R.Civ.P. 37(c); see So. States Rack Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003). In making its decision whether the untimely disclosure of such evidence is "substantially justified" or "harmless," the court is guided by the following five factors:
(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.Id. at 597.
Here, the photographs at issue were taken five days after an alleged incident of police misconduct central to Mr. Kimpel's complaint ( see Compl. ¶¶ 116-131 159), and appear to show injuries to Mr. Kimpel's body, yet they were not provided to opposing counsel in any form until three days before the close of discovery, and not provided in hard copy until the last day of discovery. This belated and surprising disclosure of important photographic evidence is not harmless, and Mr. Kimpel's counsel's sparse explanation that the photos were "recently received from our client" fails to provide substantial justification for the delay. (Def.'s Mot. for Sanctions at Ex. 1.) Furthermore, Mr. Kimpel's counsel had been aware for nearly a year that Mr. Kimpel had taken such photographs (Def.'s Mot. for Sanctions at Ex. 4), but failed to obtain them and present them to opposing counsel until the day discovery closed, thus precluding defendants from curing the surprise of this new evidence. Accordingly, these photographs will be excluded.
BACKGROUND
Facts relevant to the present motions are set forth below in some detail, presented in the light most favorable to the plaintiff. See Winfield v. Bass, 106 F.3d 525, 535 (4th Cir. 1997). On January 11, 2003, Mr. Kimpel went hunting with friends while his mother, Retha Kimpel, watched his children. At the end of the day, soon after he and his friends had finished hunting, Mr. Kimpel called his mother to find out how his children were faring, and was informed that his mother-in-law, the mother of his wife Missy Kimpel ("Missy"), had come to take them to Missy's residence. Mr. Kimpel, who is separated from Missy, has full custody of their children, but had recently agreed to return partial visitation rights to Missy. When he learned that Missy's mother had come to take his children, Mr. Kimpel called his mother-in-law, and when Missy got on the phone, the conversation quickly became heated. Mr. Kimpel told her that she was not supposed to have unsupervised contact with the children and said he was coming over to get them; Missy responded by telling him that her boyfriend, Elkton police officer Randy Bertram, would "beat [him] up" if he came over and tried to take the children. (Compl. ¶ 28.)Concerned by this response, Mr. Kimpel got into his vehicle, a Dodge 2500 Series extended cab pick-up truck, and drove to his mother-in-law's house to retrieve the children. Once there, the arguing escalated to such a degree that the children became visibly upset, and "seeing the kids upset [Mr. Kimpel] left." (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 59.) Mr. Kimpel then proceeded to the Cecil County Courthouse in downtown Elkton, apparently in an effort to collect the documents he needed to go back and lawfully retrieve his children. While driving to the Courthouse, Mr. Kimpel noticed that he was being followed by multiple police cruisers. Mr. Kimpel claims he was following traffic regulations the entire time. Eventually, after having stopped at a stop sign downtown near the courthouse, Mr. Kimpel resumed driving and the police lights were activated on one of the cruisers. Mr. Kimpel then pulled to a stop at the next available shoulder of road. By this point, Mr. Kimpel alleges that there were several cruisers gathered near his vehicle. ( See id. at 65-67; see also Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 39 (suggesting that there were eight vehicles on the scene).) Contact was initiated when one of the cruisers, driven by defendant Timothy Goss, activated its lights and siren and pulled up behind Mr. Kimpel's vehicle. Three sets of events occur after this point that are in considerable dispute.
This truck contained an unloaded shotgun. (Pl.'s Opp. at Ex. 12, Walter Dep. at 24-25.)
Even though it was now well after close of business, Mr. Kimpel thought that a magistrate judge was always on duty. (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 63.)
This claim is consistent with the testimony of other officers. ( See, e.g., Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 35-36.)
A. Car Stop
According to Mr. Kimpel, after he stopped his vehicle, Officer Goss started yelling profanities at him, and then got out of his squad car, drew his firearm, and stood between the open door and the main cab of his car facing Mr. Kimpel, resting his arms on the roof of the car and pointing the firearm at Mr. Kimpel's head from a distance of about six to eight feet away. (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 71-72; see id. at Ex. 2, Sewell Dep. at 32.) Officer Goss then ordered him to roll down his driver's side window and "stick [his] f'n hands out the window." (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 73.) Officer William Sewell of the Cecil County Sheriff's Office, who was one of the officers on the scene, recalls seeing Mr. Kimpel comply with this request at some point by sticking his left hand out of the window. (Pl.'s Opp. at Ex. 2, Sewell Dep. at 30.) Officer Sewell also recalls that several other officers — perhaps as many as nine — got out of their vehicles at approximately the same time Goss exited his, and that more than one had their weapons drawn. ( Id. at 26-27.) Mr. Kimpel, now panicked, yelled at Officer Goss not to point the gun at his head, apparently out of worry that Officer Goss would accidentally shoot him. (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 71 74.) During this exchange, in which at least Officer Goss and Mr. Kimpel were yelling at each other and other officers were apparently yelling too ( see Pl.'s Opp. at Ex. 2, Sewell Dep. at 28), Mr. Kimpel heard a "loud boom" that he thought was a gunshot, and saw that both his rear driver's-side window and his front passenger-side window were now shattered. (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 75) "When that happened, it sounded like a gunshot to me, I left. I pulled out and left." ( Id.) Upon pulling away from the gathered police cruisers, Mr. Kimpel then headed out of downtown Elkton and toward his mother's apartment, apparently out of a desire to get to a safe place. ( Id. at 78 80.) He claims he obeyed all traffic regulations along the way.
Mr. Kimpel and Officer Goss admit that they knew about each other prior to this encounter. (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 70; Giafes/Goss S.J. Mot. at Ex. 1, Goss. Dep. at 18.) Mr. Kimpel claims this is because he had read in the newspaper that Goss had recently "shot a guy and killed a guy." (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 70.) This claim has not been substantiated.
Extended cab pick-up trucks have two rows of seats, and thus two separate side passenger windows on each side.
According to Officers Giafes, Goss, and Greene, the scene unfolded in a very different manner. Officer Goss claims that he initially started following Mr. Kimpel's truck because he had heard a dispatch over the radio that the Cecil County Sheriff's Office was in pursuit of that truck. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 17-18.) He then relayed to other officers that he was in pursuit. ( Id. at 19.) Seeing Mr. Kimpel fail to stop at a stop sign, he activated his lights and sirens to signal Mr. Kimpel to stop; when Mr. Kimpel did so, Officer Goss stopped his vehicle behind Mr. Kimpel's. ( Id. at 22-25.) After he stopped his vehicle behind Mr. Kimpel's vehicle, he saw two other officers approach the truck. These were Officers Giafes and Greene, who had joined the pursuit after hearing a dispatch with the truck's description over the police radio. Officer Giafes recalls hearing in the dispatch that the vehicle was fleeing from an incident involving the Cecil County Sheriff's Department. ( Id. at Ex. 2, Giafes Dep. at 11-13.) Officer Greene recalls hearing in the dispatch a statement that Mr. Kimpel was believed to be armed. (Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 20-21.)
He also recalls this dispatch being preceded by a dispatch from the Cecil County Sheriff's Office directing a Deputy Gregory Hall to Missy's address for violation of a protective order. (Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 17-18.)
As these officers approached the truck, the engine of which was still running (Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 61), Giafes testifies that he told Mr. Kimpel to exit the vehicle entirely at least four times and he did not do so. (Giafes/Goss S.J. Mot. at Ex. 2, Giafes Dep. at 25-26, 29; id. at Ex. 1, Goss Dep. at 37.) Seconds later, Officer Giafes arrived at the driver's side of Mr. Kimpel's truck, and Officer Greene arrived at the passenger side. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 33-34; Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 54-55.) When they were alongside the truck, it lurched forward momentarily, prompting Officer Giafes to break the rear driver's-side window with his flashlight "to get his attention to stop the pursuit." (Giafes/Goss S.J. Mot. at Ex. 2, Giafes Dep. at 37 39; id. at Ex. 1, Goss Dep. at 32.) At the same moment, Officer Greene was attempting to enter Mr. Kimpel's truck through the passenger side by breaking the front passenger-side window with his baton, because Mr. Kimpel was not complying with verbal commands to exit the truck. (Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 55-57.) This scene was witnessed by Officer Sewell. (Pl.'s Opp. at Ex. 2, Sewell Dep. at 29.) After both officers broke the glass, Mr. Kimpel pulled away. According to Greene, "As I started to climb into the window he drove off with me hanging out of the window," forcing Greene to jump back. (Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 66.) During this entire sequence of events, which lasted only a minute or two, neither Officer Goss nor Officer Giafes remember any weapons being drawn, and Officer Greene only remembers weapons being drawn toward the end. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 34; id. at Ex. 2, Giafes Dep. at 40; Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 58).
Indeed, Officer Greene remembers seeing Mr. Kimpel directly contravene this order by trying to hold the driver's side door shut during the ensuing altercation. (Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 63-64.)
B. Apartment Seizure
The next disputed event occurred once Mr. Kimpel reached his mother's apartment. According to Mr. Kimpel, he ran inside, took his mother's phone, and went to the bathroom, where he sat down on the toilet and called Missy to find out what she had told the police and to convince her to call them back and recant her statements to them. (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 83-84.) After several minutes of heated phone conversation, police arrived and barged into his mother's apartment, shoving her out of the way and recklessly causing damage to her property. They then stormed into the bathroom through the partly open bathroom door, at which point Officer Kellum, the first through the door, hit Mr. Kimpel across the face with the butt of his firearm, injuring his nose and knocking him into the adjacent bathtub. ( Id. at 86-88.) At least three other officers then followed into the bathroom behind him, including Officer Goss and Officer Giafes, and they tackled him in the tub, with at least Officer Goss throwing punches at his nose and head in the process. ( Id. at 93-94.) Eventually — after about a minute of scuffling — they managed to handcuff his hands behind his back, and they then "savagely punched and kicked [him] and repeatedly struck him with the butt end of their revolvers." (Compl. ¶ 58.) Throughout this period, Mr. Kimpel claims he did not resist at all. (Compl. ¶ 59.) The officers then carried Mr. Kimpel out of the apartment while he drifted in and out of consciousness, ramming his head into a table along the way out and injuring him further. (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 94-97; Compl. ¶ 64.) By this time Mr. Kimpel's face was bloody, and Retha Kimpel — seeing "blood coming out all over" — called 911 for help, a call that was interrupted by one of the officers. (Pl.'s Opp. at Ex. 7, Retha Kimpel Dep. at 39-40.) After Mr. Kimpel was placed down outside the apartment, lying belly-down with his hands cuffed behind him, he alleges that an unknown officer pulled his head up and punched him in the face. ( Id. at Ex. 1, Kimpel Dep. at 97-98.) Mr. Kimpel's next memory is of waking up in the Cecil County Detention Center. ( Id. at 98.)
Officer Kellum had joined other officers in the pursuit that occurred between the initial stop in Elkton and the arrival at Retha Kimpel's apartment.
According to the defendants, when they arrived at Retha Kimpel's apartment, Officer Kellum knocked on the door and then waited about fifteen seconds. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 66; id. at Ex. 2, Giafes Dep. at 59; Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 68.) Retha Kimpel then answered the door and "said something to the effect that he's in the back and I don't want him hurt" and they then walked into the apartment and toward the bathroom. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 68.) She was not shoved aside in the process. ( Id.; Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 72.) As they approached the closed bathroom door, Officer Kellum unholstered his weapon, and when they reached the bathroom, they ordered Mr. Kimpel to exit the bathroom or else they would kick in the door. (Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 69.) Mr. Kimpel did not comply, yelling "F___ you" instead (Giafes/Goss S.J. Mot. at Ex. 2, Giafes Dep. at 65-66; Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 77), and so Kellum kicked in the door, and the officers entered. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 71-75.) Kellum claims that Mr. Kimpel was standing when they entered, with his hands up in a "fighting fashion," and that once he entered, everybody fell upon Mr. Kimpel and into the bathtub. (Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 82 85.) During the ensuing scuffle, the defendants claim that Mr. Kimpel kicked and fought with them and generally resisted arrest until he was handcuffed. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 81; id. at Ex. 2, Giafes Dep. at 72.) Officers Goss and Kellum deny that any officer struck Mr. Kimpel, either with a fist or with the butt of a revolver. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 95; Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 89 102.) Defendants deny that Mr. Kimpel's face was bloodied (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 85; id. at Ex. 2, Giafes Dep. at 73; Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 103 (remembering seeing only "a little bit of blood coming out" and no evidence of a broken nose)), and Goss denies hearing a request for an ambulance. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 91.) As for why Mr. Kimpel was carried out of the apartment, the officers claim that it was because he refused to walk ( id. at Ex. 2, Giafes Dep. at 93; id. at Ex. 1, Goss Dep. at 85; Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 94), and further claim that any injury he may have received from the table was due in part to his kicking furniture. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 86.) At least one officer remembers that Mr. Kimpel was laid on the pavement outside the apartment (Pl.'s Opp. at Ex. 2, Sewell Dep. at 49), but the accused officers deny any mistreatment of Mr. Kimpel at that stage, and claim that he was still conscious and talking. (Giafes/Goss S.J. Mot. at Ex. 2, Giafes Dep. at 108; Greene/Kellum Dep. at Ex. 2, Kellum Dep. at 99.) For the officers, this scene ended with Mr. Kimpel being placed under arrest, loaded into Sewell's squad car, and sent to the Cecil County Detention Center.
Officer Kellum appears to remember Officer Goss entering the bathroom first. (Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 69.) Goss, however, claims that, by the time he entered the bathroom, Mr. Kimpel was already lying in the bathtub. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 75.)
This is consistent with the testimony of Officer Sewell, who recalls seeing "a little bit of blood" on Mr. Kimpel's face after he was removed from the apartment. (Pl.'s Opp. at Ex. 2, Sewell Dep. at 49.)
Officer Kellum actually claims that he struck the furniture, not Mr. Kimpel. (Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 95.)
C. Treatment while in the Cecil County Detention Center
The final disputed event occurred after Mr. Kimpel arrived at the Cecil County Detention Center ("CCDC"). Mr. Kimpel claims that, while unconscious at the CCDC, he was "viciously and savagely beat[en] and kicked" by Officers Goss and Kellum and other defendants not involved in the present motions. (Compl. ¶¶ 56 78.) Mr. Kimpel believes that he regained consciousness about one and one half hours later in a different cell. (Compl. ¶¶ 85-86.) When he awoke, he was lying in a pool of blood, and was told by an unknown inmate in the cell that he had been severely beaten and needed medical attention. (Compl. ¶ 88; Pl.'s Opp. at Ex. 1, Kimpel Dep. at 102.) That same inmate told him to take off his shirt and tie it to the cell bars and around his neck so he could keep from falling back into the pool of blood and drowning in it if he lost consciousness again. (Compl. ¶ 88.) The inmate then called for help, and at some point later the paramedics came and transported Mr. Kimpel via Medevac to the University of Maryland's Shock Trauma Center ("Shock Trauma").
Officers Goss and Kellum give a different account. Officer Goss claims no involvement in the alleged CCDC beating, stating that he never went to either the CCDC or Shock Trauma during the time period in question. (Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 95.) Officer Kellum admits to traveling to the CCDC after Mr. Kimpel's apprehension, but denies any knowledge of what happened from the time Mr. Kimpel was booked to the time he received a phone call back at his office that Mr. Kimpel had attempted suicide in his cell. (Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 116-17.) Upon receiving this call, Mr. Kimpel went to the cell, where he saw that "paramedics [were] treating Mr. Kimpel for a hanging." ( Id. at 118.) He was also taken to the cell in which Mr. Kimpel was originally held, and saw a message scrawled on its wall that said something like "I love my kids." ( Id. at 121.) This is the extent of his knowledge of the alleged incidents at the CCDC.
Officers Giafes and Greene also deny going to the CCDC or to Shock Trauma during the time period in question. (Giafes/Goss S.J. Mot. at Ex. 2, Giafes Dep. at 80-81; Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 97-98.)
It is undisputed that Mr. Kimpel needed medical attention when the paramedics arrived. He was found unconscious in his cell "with seizure-like activity" (Pl.'s opp. at Ex. 11, Carney Dep. at 42) and was not responding to attempts to resuscitate, and therefore the paramedics determined that he needed to be flown to Shock Trauma. ( Id. at 28-34.) The paramedics reported seeing blood around his nose, but did not report seeing blood anywhere else on his body or on the cell floor. ( Id. at 52.) The medical report generated at Shock Trauma indicates that he had some dried blood around his nostrils, "some swelling and obvious deformity to his nose," and bruises to his neck. (Greene/Kellum Reply at Ex. 6, p. 1.) The contemporaneous consultation report further indicates that Mr. Kimpel admitted that he "attempted to hang self tonight" and expressed a willingness to "harm himself again" if he was returned to jail. ( Id. at p. 5-6.) The attending physician recommended returning him to jail nonetheless, and he was eventually returned there. ( Id. at p. 7; see also id. at p. 2 ("The patient had a psychiatric consult. . . . [and the] [p]sychiatrist seemed to think that the suicide attempt was just a gesture to prevent the patient from going to jail").) He now brings this lawsuit.
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original)."A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
A. Deliberate Indifference Excessive Force Toward Pretrial Detainee in Violation of Fifth Fourteenth Amendments (Count I)
Mr. Kimpel alleges that all the defendants violated his Fifth and Fourteenth Amendment Due Process Clause rights by acting with deliberate indifference toward his medical needs when they failed to provide him medical care both immediately after his arrest — by preventing his mother from completing a call to 911 (and failing to call 911 themselves) when he was bleeding and allegedly slipping in and out of consciousness — and during his detention — by allegedly beating him senseless and leaving him in his cell for over an hour before calling for help. (Compl. ¶¶ 78 143-146.) The officers defend by claiming that they did not violate Mr. Kimpel's constitutional rights during either his detention or the period immediately following his arrest, and further claim that they are entitled to qualified immunity from civil liability for their actions.
Law enforcement officers performing discretionary functions are entitled to qualified immunity from suit to the extent that 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). This protection is extended to "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). When evaluating a claim of qualified immunity, the court must first consider the threshold question of whether the facts alleged, taken in the light most favorable to the plaintiff, show that the officers' conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 200-201 (2001). If the court finds no constitutional violation, then there is no need to inquire further into qualified immunity. Id. at 201. If, however, the court finds a constitutional violation, then it must determine whether the right was "clearly established" at the time of the violation. Id. This second step in the qualified immunity analysis asks "whether it would have been clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. Because qualified immunity is an affirmative defense, the officers must establish that it would not be clear to a reasonable officer that their conduct was unlawful in the situation presented.
i. Deliberate Indifference — During Apprehension and at Cecil County Detention Center
The Due Process Clause of the Fourteenth Amendment requires government officials to provide appropriate medical care to persons in pretrial detention and persons "who have been injured while being apprehended by the police." City of Revere v. Massachusetts Gen. Hosp. 463 U.S. 239, 244 (1983); see Young v. City of Mount Ranier, 238 F.3d 567, 574-75 (4th Cir. 2001). "[D]eliberate indifference to the serious medical needs of a pretrial detainee violates the due process clause." City of Mount Ranier, 238 F.3d at 575. Deliberate indifference is a high threshold, however; to successfully demonstrate a violation of constitutional rights due to deliberate indifference, a plaintiff must show 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." Id. at 576; see also Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004). As the Fourth Circuit has explained, this showing involves two parts:
Because the defendants are not federal actors, the court's analysis of the deliberate indifference and excessive force claims here are governed by the Fourteenth Amendment rather than the Fifth Amendment. See U.S. Const. amends. V XIV; cf. Winfield, 106 F.3d at 530 n. 2.
First, the evidence must show that the official in question subjectively recognized a substantial risk of harm. It is not enough that the officers should have recognized it; they actually must have perceived the risk. Second, the evidence must show that the official in question subjectively recognized that his actions were inappropriate in light of that risk. As with the subjective awareness element, it is not enough that the official should have recognized that his actions were inappropriate; the official actually must have recognized that his actions were insufficient.Parrish, 372 F.3d at 302-303 (internal quotations and citations omitted) (emphasis in original).
With respect to his arrest, the plaintiff has only shown that the officers were aware he had a bloody nose at the time Retha Kimpel sought medical attention for her son via 911. His and Retha Kimpel's testimony as to his bloodied state and degree of consciousness are not sufficient to show that the officers knew of — let alone suspected — a substantial risk of injury to Mr. Kimpel if he did not receive medical care. All of the officers testified in their sworn depositions that they detected no signs of flagging consciousness, and perceived only a small amount of bleeding from Mr. Kimpel's nose. Given that, at the time of his arrest, none of the officers perceived any injury necessitating emergency medical care and that they intended to transport him only a short distance to the CCDC where his needs could be evaluated, their alleged decision not to allow an ambulance to be called at that time does not amount to deliberate indifference in violation of the Fourteenth Amendment. See Parrish, 372 F.3d at 303.
With respect to Mr. Kimpel's treatment while in CCDC, any claim of deliberate indifference to medical needs is predicated upon Mr. Kimpel's establishing his prior claim that the defendants savagely beat him and then left him in his cell for over an hour before seeking medical attention. This he has not done. For one, Officer Goss denies ever going to the CCDC on the night in question, and Mr. Kimpel has brought forward no evidence showing otherwise. Officer Kellum, while admitting being present in the CCDC that night, swears that he took no part in the alleged beating and that paramedics had already been called to assist Mr. Kimpel by the time he learned of the injuries Mr. Kimpel sustained while there, testimony that has not been contradicted. Furthermore, while it is a serious matter that Mr. Kimpel lost consciousness, Mr. Kimpel admitted in his complaint that he tied a shirt around his neck while in the cell (Compl. ¶ 88), and admitted to a doctor at Shock Trauma that he did this to stage a hanging (Greene/Kellum Reply at Ex. 6, p. 4), strongly suggesting that his loss of consciousness was self-induced, along with the accompanying neck bruising observed by Shock Trauma doctors. No other injuries were observed by either the paramedics or the doctors at Shock Trauma, with the exception of a broken nose, and the doctors recommended his return to jail that night.
As mentioned above, defendants Giafes and Greene have not been accused of being involved in the events at the CCDC, and deny any involvement as it is. See supra note 17 and accompanying text.
Mr. Kimpel does not assert — and the evidence does not suggest — that any officer was aware that Mr. Kimpel had a broken nose and was deliberately indifferent to any need he might have had to get his nose examined before the time he was taken to Shock Trauma.
For all of these reasons, Mr. Kimpel has failed to show that the officers subjectively recognized a substantial risk of harm or medical need and disregarded it. Therefore, no related violation of his constitutional rights has been made out. Accordingly, the court need not reach the issue of qualified immunity on this claim. See City of Mount Ranier, 238 F.3d at 577-78; see also Kane v. Hargis, 987 F.2d 1005, 1009 (4th Cir. 1993) (finding no due process violation where pretrial detainee with cut nose and bruised face was denied access to medical treatment for four hours).
ii. Excessive Force — Cecil County Detention Center
Because Mr. Kimpel's allegation in Count I that he was subjected to cruel and unusual punishment while a pretrial detainee (Compl. ¶¶ 78 143-144) is raised under the Fifth and Fourteenth Amendments, it is best understood as a Fourteenth Amendment Due Process Clause excessive force claim. See Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998) (quoting Riley v. Dorton, 115 F.3d 1159, 1166 (4th Cir. 1997) (en banc); see also Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008). To succeed on such a claim, Mr. Kimpel "must show that Defendants `inflicted unnecessary and wanton pain and suffering'" upon him. Orem, 523 F.3d at 446 (quoting McDuffie, 155 F.3d at 483).
Mr. Kimpel, however, has failed to make this showing, and indeed the evidence submitted strongly suggests that the pain and suffering he endured while in the CCDC was largely self-inflicted. As already mentioned, when Mr. Kimpel was finally taken to a hospital, doctors found no unusual bruising other than a broken nose and bruises at his neck. According to Mr. Kimpel's own narration of events, his nose was broken during his apprehension at his mother's apartment, so this wound was not received while he was in the CCDC. The bruises to his neck are easily attributable to his admitted tying of his shirt around it; Mr. Kimpel has not suggested otherwise. Even if these bruises were shown to have been inflicted by one or more of the defendants while Mr. Kimpel was in the CCDC, they fall far short of the sort of injury courts would consider "unnecessary and wanton pain and suffering." Compare Orem, 523 F.3d at 447 (denying summary judgment where 280-pound officer repeatedly used a taser on an unruly 100-pound detainee), with McDuffie, 155 F.3d at 481-83 (affirming summary judgment in favor of defendants where uncooperative detainee was allegedly punched in the ribs, hit in the back, bruised in the nose, and shoved in the mouth, resulting in a cracked tooth).
For the above reasons, Mr. Kimpel has failed to show that his Fourteenth Amendment right to be free from excessive force was violated, and so the court need not reach the issue of qualified immunity on this claim. See Orem, 523 F.3d at 445. Therefore, summary judgment is warranted as to Count I for defendants Giafes, Goss, Greene, and Kellum.
B. Excessive Force Under 42 U.S.C. § 1983 (Count IV)
Mr. Kimpel also alleges that all the defendants violated his constitutional rights by using excessive force against him on other occasions. Relevant to the present motions are Mr. Kimpel's specific allegations in his complaint of excessive force during his initial car stop and his apprehension at his mother's apartment. ( See Compl. ¶ 158.) Officers Giafes, Goss, and Greene defend by claiming that they did not violate Mr. Kimpel's constitutional rights by their actions, and further that they are entitled to qualified immunity from civil liability for their actions. See Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir. 1991).
Although the specific allegation of excessive force during the car stop is not explicitly mentioned in Count IV of the complaint, it appears from the entirety of the complaint and from subsequent papers that Mr. Kimpel meant to include it among his excessive force allegations. ( See Pl.'s Opp. at 9-11; Compl. ¶¶ 43 157). Accordingly, the court will consider that event as well.
The question whether Officer Kellum used excessive force during any of these events is not before the court at this time.
Claims of excessive force during the course of an investigatory stop, arrest, or other "seizure" of a person are governed by the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 388 (1989). To determine whether an officer's conduct in one of these situations constitutes excessive force in violation of the Constitution, the Fourth Amendment's "objective reasonableness" standard is applied. Graham, 490 U.S. at 388, 395. According to this standard, an officer's actions are not excessive if they are "objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397 (internal quotations omitted); see also Carr v. Deeds, 453 F.3d 593, 600 (4th Cir. 2006). Application of this standard "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. Moreover, because "police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation," Graham, 490 U.S. at 397, the reasonableness of the force used is assessed from the perspective of a reasonable officer on the scene, rather than the perspective of one with the benefit of hindsight. Id. at 396; see also Carr, 453 F.3d at 600. Finally, because many of the situations officers face in the course of their duties are ambiguous, the court must allow for reasonable mistakes. See Schultz v. Braga, 455 F.3d 470, 478 (4th Cir. 2006).
i. Excessive Force — Car Stop
Applying the Graham factors to the facts before this court, it is clear that the force used by officers Giafes, Goss, and Greene during the car stop was not excessive. Officer Goss actually used no force at all; Mr. Kimpel only suggests that he threatened to use force, and it is well established that an officer may threaten to use force during a traffic stop. See Graham, 490 U.S. at 396 ("the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it"). Accordingly, Mr. Kimpel has no viable excessive force claim against Officer Goss for his actions during the car stop.
Furthermore, there is no evidence that Goss or any other officer shot a bullet through Mr. Kimpel's window.
The actions of Officers Giafes and Greene were informed by circumstances in line with the Graham factors supporting objectively reasonable use of force. Officer Giafes' use of force, namely his breaking of the rear driver's-side window of Mr. Kimpel's truck with his flashlight, was prompted by (a) his understanding that Mr. Kimpel had been attempting to evade apprehension by the Cecil County Sheriff's Office (Giafes/Goss S.J. Mot. at Ex. 2, Giafes Dep. at 11-13); and (b) Mr. Kimpel's failure to obey his repeated orders to step out of his vehicle, a failure which, according to Officer Greene, actually involved active resistance to Officer Giafes' orders. (Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 63-64.) Officer Greene's use of force, specifically breaking the front passenger-side window of Mr. Kimpel's truck with his baton, was prompted by (a) his understanding that Mr. Kimpel had violated a protective order, was fleeing apprehension, and was possibly armed (Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 17-21); and (b) his witnessing of Mr. Kimpel's repeated failure to obey orders to exit his vehicle. (Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 55-57.) The testimony of both Officers Giafes and Greene, therefore, suggests that, at the time they committed their acts of force, they viewed Mr. Kimpel as both evading arrest (which at least Officer Greene understood to be an arrest for a serious crime) and threatening the safety of other officers. In light of the circumstances revealed through their sworn testimony, and the fact that neither officer's actions actually resulted in any injury to Mr. Kimpel, the court concludes that Officers Giafes' and Greene's use of force was not objectively unreasonable under the circumstances. See Graham, 490 U.S. at 396; Wilson v. Flynn, 429 F.3d 465, 469 (4th Cir. 2005).
Because family protective orders are issued to prevent further abuse, see Md. Code, Family Law §§ 4-501(b)(1) 4-504, it would be reasonable for an officer who learns that a person has violated a protective order to think that that person may be capable of violent action.
Indeed, the only nearly-injured party during the car stop was Officer Greene, who testifies that he was attempting to enter the truck as Mr. Kimpel pulled away, and was left "hanging out of the window" as a result. (Greene/Kellum S.J. Mot. at Ex. 1, Greene Dep. at 66.)
ii. Excessive Force — Apartment Seizure
Likewise, the facts suggest that the force used by officers Giafes, Goss, and Greene during the apartment seizure was not excessive. At this point in the evening in question, Mr. Kimpel himself admits that he was actively attempting to evade arrest by flight, and so the third Graham factor weighs strongly against him. Additionally, if his own account of the initial car stop is to be believed — an account in which several officers were approaching him with weapons drawn — the fact that he chose to drive away in the midst of this armed altercation demonstrates that he now could reasonably be perceived as a threat to the safety of officers and others. If the officers' account is to be believed, Mr. Kimpel's threat to the safety of others was underscored by his apparent departure with Officer Greene still partway in his truck, and by his near collision with Officer Kellum's cruiser as he fled the scene. ( See Giafes/Goss S.J. Mot. at Ex. 1, Goss Dep. at 55-56; id. at Ex. 2, Giafes Dep. at 47; Greene/Kellum S.J. Mot. at Ex. 2, Kellum Dep. at 50-52.) All of these circumstances make the second Graham factor weigh strongly against Mr. Kimpel as well.
There is no reason for the officers to have believed this threat to their safety would be reduced by the time they next encountered Mr. Kimpel. Indeed, when they arrived at Retha Kimpel's apartment after having pursued Mr. Kimpel to that location, Mr. Kimpel admits that he was in the bathroom yelling and screaming rather than taking any action resembling submission to police orders. (Pl.'s Opp. at Ex. 1, Kimpel Dep. at 85.) According to the sworn accounts of all three officers, when they encountered Mr. Kimpel in the bathroom he actively resisted arrest by punching and kicking them until he was handcuffed. In light of the preceding difficulties during the traffic stop, the ensuing pursuit, and the tense circumstances that confronted the officers when they came upon Mr. Kimpel, the court concludes that neither the nose injury Kimpel sustained during the scuffle preceding his handcuffing nor the head injury he allegedly sustained as he was being carried out of the apartment amount to excessive force. Compare Wilson, 429 F.3d at 467-68 (excessive force not found where officer punched plaintiff in the face while he was actively resisting arrest) with Young v. Prince George's County, 355 F.3d 751, 757-58 (4th Cir. 2004) (excessive force found where officer placed handcuffed plaintiff in a headlock, threw him head-first to the ground, and then beat him, even though plaintiff was fully cooperating); Bailey v. Kennedy, 349 F.3d 731, 744 (4th Cir. 2003) (excessive force found where, during an arrest, officers caused "severe injuries" to a man who posed no threat to the safety of others and whom they knew had committed no crime); and Jones v. Buchanan, 325 F.3d 520, 530 (4th Cir. 2003) (excessive force found where officers crushed plaintiff's nose and caused other injuries requiring multiple stitches despite knowing that he was not suspected of any crime).
The court notes that no evidence has been submitted regarding Mr. Kimpel's claim that he was punched in the face after being carried out of the apartment. Given that Mr. Kimpel does not identify any of the defendants here as the person who delivered that punch, despite being able to identify the defendants at all other relevant points during his seizure and arrest, the court concludes that this allegation of excessive force does not apply to them.
Because the force used by Officers Giafes, Goss, and Greene during the car stop and apartment seizure was not objectively unreasonable based on the undisputed facts, they are entitled to summary judgment as to Count IV.
CONCLUSION
For the foregoing reasons, defendants Giafes's, Goss's, Greene's, and Kellum's motion for summary judgment as to Count I will be granted, as will defendants Giafes's, Goss's, and Greene's motion for summary judgment as to Count IV. A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. The motions by defendants Angelo Giafes, Timothy Goss, James Greene, and Donald A. Kellum for summary judgment (docket entry nos. 96 98) are GRANTED;
2. The defendants' motion to strike the designation of additional medical experts (docket entry no. 91) is GRANTED;
3. The defendants' motion for sanctions for failure to supplement discovery (docket entry no. 94) is GRANTED; and
4. Counsel shall file statements by Friday, April 3, 2009 as to the claims and defendants they contend remain in the case for trial.