Owens v. Mayor and City Council of Baltimore et al, No. 1:2011cv03295 - Document 179 (D. Md. 2016)
Court Description: MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 9/29/2016. (dass, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES OWENS, : Plaintiff, : v. : Civil Action No. GLR-11-3295 BALTIMORE CITY STATE’S ATTORNEYS OFFICE, et al.,1 : : Defendants. : MEMORANDUM OPINION THIS MATTER is before the Court on Defendants’, Gary Dunnigan, Jay Landsman, Thomas Pellegrini’s (collectively, “the Officers”) Amended Motion for Summary Judgment (ECF No. 159), Defendant Marvin Brave’s Motion for Summary Judgment (ECF No. 157), and Defendant Baltimore City Police Department’s (“BCPD”) Motion to Strike (ECF No. 171) and Motion for Summary Judgment (ECF No. 158). The Motions are ripe for disposition. Having reviewed the Motions and supporting documents, the Court finds no hearing necessary pursuant to Local Rule 105.6 (D.Md. 2016). For the Officers’ reasons Motion, outlined grant below, Brave’s the Court Motion, and will deny grant the BCPD’s Motions. 1 The Court will direct the Clerk to amend the case caption and remove Baltimore City State’s Attorneys Office as a Defendant because it is not included in the Second Amended Complaint. (ECF No. 147). I. BACKGROUND This 42 U.S.C. § 1983 action arises from the investigation and prosecution of Plaintiff James Owens for the 1987 murder of Colleen Williar. On August 2, 1987, Williar was raped, robbed, and murdered in the second-floor bedroom of her apartment in Baltimore, Maryland. assigned to the Defendant BCPD Detective Pellegrini was case, Sergeant Landsman oversaw him, and Detective Dunnigan assisted as needed. On August 3, 1987, Pelligrini went to the crime scene and one of Williar’s neighbors, James Thompson, approached him. Thompson told Pelligrini that he found a bloody knife lying in the grass across the street from Williar’s apartment the night of August 2, 1987. pocket of his Thompson said he put the knife in the back shorts, took it home, and cleaned it off. Thompson presented Pelligrini with the knife and shorts. On August 5, 1987, Thompson gave a formal statement to a BCPD detective. Thompson stated that he purchased the knife four months prior while Owens was present and that Owens stole the knife before Williar’s murder. Thompson further stated that on the morning of August 3, 1987, Owens came to Thompson’s home and told Thompson that he dropped the knife in a neighbor’s yard and had sex with Williar. Also on August 5, 1987, Owens gave a formal statement to the police stating he had no knowledge of 2 Williar’s murder and denied entering her home. Owens was then arrested and charged with first-degree murder. Beginning on February 23, 1988, Defendant Marvin Brave, the Assistant State’s Attorney responsible for prosecuting Owens’s case in the Circuit Court for Baltimore City, Maryland, presented several witnesses, none of whom saw Owens commit the murder. August One witness testified that Owens worked the morning of 3, 1987. Another witness, Larry Oliver, Brave’s jailhouse informant, testified that Owens admitted to attacking and murdering Williar.2 Thompson to discuss his On February 26, 1988, Brave met with trial testimony because he found Thompson was his key witness and he found Thompson’s story to be implausible. During the meeting, Brave assured Thompson that he would not be prosecuted for making a false statement. Thompson then changed his story, stating that he did not find the knife in his neighbor’s yard, but Owens returned the stolen knife to him on the morning of August 3, 1987. Thompson later testified to the same during Owens’s trial. During Thompson’s testimony, Dunnigan realized that Thompson was lying because Owens worked the morning of August 3, 1987 and, therefore, could not have been at Thompson’s home handing over a knife. Dunnigan 2 informed Brave of this Brave received multiple letters from Oliver requesting rewards in exchange for his testimony at Owens’s trial. 3 inconsistency. Over the weekend after Thompson testified, Brave contacted Pelligrini on a Sunday night to discuss the pubic hairs found on Williar’s body that were not a match to Owens. Due to Thompson’s apparent inaccurate testimony during trial, Brave realized that Thompson was not eliminated as a suspect because he never considered Thompson to be possible suspect. To obtain evidence negating Thompson’s involvement and to boost his credibility, Brave told Pelligrini to have Thompson’s pubic hair and blood tested. On the following Monday, February 29, 1988, during a break in trial, Brave, Pelligrini, and Dunnigan met with Mark Profili, the BCPD technician who completed the hair analysis. stated that he believed the hair found on Williar Profili may have matched Thompson’s hair and the saliva found on a cigarette at the crime scene matched Thompson’s blood type. Pelligrini called Thompson and requested that he return to the courthouse for another interview. During the interview, Landsman advised Thompson of his Miranda rights and told him that his hair and blood was found in Williar’s home. Thompson then stated he was in Williar’s house with Owens on August 2, 1987, but only remained on the first floor. The Officers then told him that his hair was found on the second floor. Thompson then stated he was on the second floor, Owens went into Williar’s bedroom, and Thompson stood on 4 the stairs. Thompson further stated he heard a woman pull up towards the home in a car and when she came inside, he hid in the bathroom. house. Owens attacked her and Thompson ran out of the The Officer then told Thompson that his pubic hairs were found on Williar’s buttocks, which implied that his pants were down. Thompson then stated he entered the bedroom masturbated over her body while Owens attacked Williar. and At that point, the Officers decided to stop questioning Thompson and take a full written statement from him. Landsman walked to the courtroom and passed a note to Brave indicating house that with whether the Thompson Owens. confessed There Officers told is a Brave to burglarizing dispute, about however, the Williar’s regarding multiple Thompson told leading to his final confession.3 stories Brave approached the bench with Owens’s defense counsel, David Eaton, and read Landsman’s note. Before the Officers could get a written statement from Thompson, Brave called him back to testify. On the stand, Thompson testified about the final version of his story. Owens was ultimately convicted of felony-murder and burglary and sentenced to life imprisonment. 3 Compare (ECF No. 1) (demonstrating that the detectives did not tell Brave the multiple stories Thompson told them on February 29, 1988), with (ECF No. 154-7) (stating that Landsman testified that he told Brave “the exact story from beginning to the end.”). 5 In 2006, Owens filed a post-conviction petition for DNA testing in the Circuit Court for Baltimore City. Through DNA evidence, Owens showed that neither he nor Thompson matches for either the blood or semen found at the crime scene. Through an agreement between counsel and the court, the court granted Owens a new trial on June 7, 2007. On October 15, 2008, the Maryland State’s Attorney’s Office entered nolle prosequi and released Owens from detention. On October 12, 2011, Owens filed the instant case in the Circuit Court for Baltimore City, alleging violations of his due process rights under the Fourteenth States Constitution. (ECF No. 1). removed to the matter this Amendment to the United On November 16, 2011, BCPD Court under jurisdiction pursuant to 28 U.S.C. § 1331. federal question (Id.). On December 9, 2015, Owens filed a Second Amended Complaint against the Officers, Brave, and BCPD. (ECF No. 147). On December 23, 2015, Brave and BCPD each filed a separate Motion for Summary Judgment (ECF Nos. 157, 158), and on December 28, 2015, the Officers filed an Amended Motion for Summary Judgment (ECF No. 159). On February 12 and 13, 2016, Owens filed Responses to the Motions. (ECF Nos. 163—165). Reply to Owens’s Response. On March 21, 2016, Brave filed a (ECF No. 170). On April 4, 2016, the Officers and BCPD each filed a Reply to Owens’s Responses. (ECF No. 173). 6 II. A. DISCUSSION Standard of Review Under Federal Rule of Civil Procedure 56(a), the Court must grant summary judgment if the moving party demonstrates there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970)). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). If the nonmoving party has failed to make a sufficient showing on an essential element of her case where she has the burden of proof, “there can be ‘no genuine [dispute] as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “[T]he between the mere existence parties will of some not defeat alleged an factual otherwise dispute properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” 7 Anderson, 477 U.S. at 247-48. A “material fact” is one that might affect the outcome of a party’s case. Id. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)). Whether a fact is considered to be “material” is determined by the substantive law, and “[o]nly disputes over facts that governing might law judgment.” affect will the properly outcome preclude of the the suit entry under of the summary Anderson, 477 U.S. at 248; accord Hooven-Lewis, 249 F.3d at 265. B. Officers’ Motion for Summary Judgment At bottom, a genuine dispute exists regarding whether the Officers informed Brave of the multiple stories Thompson told them during his February 1987 interrogation. The Court must determine whether the Officers’ failure to disclose the multiple stories to Brave would constitute a violation of Owens’s due process rights, whether the Officers would be entitled to qualified immunity for such a violation, and whether Owens’s claim is barred by the doctrine of collateral estoppel. 1. Brady Violation The Officers argue that if they did fail to disclose Thompson’s multiple stories, such a failure does not constitute an unlawful suppression of evidence under Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Supreme Court of the United 8 States held that a prosecutor’s suppression of evidence “favorable to the accused” violates the Due Process Clause of the Fourteenth Amendment when the evidence proves “material to either guilt or punishment.” such evidence Id. at 87. “encompasses The duty to disclose impeachment evidence as well as exculpatory evidence.” Strickler v. Greene, 527 U.S. 263, 280 (1999) States (citing (1985)). United v. Bagley, 473 U.S. 667, 676 The evidence is considered material “if there is a reasonable probability that, had the evidence been disclosed to the defense, different.” the Such officer’s of the proceeding would have been Id. (quoting Bagley, 473 U.S. at 682). a constitutional suppression Penitentiary, Strickler, result 527 331 U.S. of F.2d at violation evidence. 842, 846–47 280–81 extends Barbee (4th (explaining to a police v. Warden, Md. Cir. 1964); see Brady “encompasses evidence ‘known only to police investigators and not to the prosecutor.’” (1995))). (quoting Kyles v. Whitley, 473 U.S. 419, 438 “[A] police officer violates a criminal defendant’s constitutional rights by withholding exculpatory or impeachment evidence from prosecutors.” Owens v. Balt. City State’s Attorneys Office, 767 F.3d 379, 396 (4th Cir. 2014) (citing Goodwin v. Metts, 885 F.2d 157, 163–64 (4th Cir. 1989)). To prove a claim for a violation of his due process rights by unlawfully suppressing exculpatory 9 evidence, Owens must demonstrate that “(1) the evidence at issue was favorable to him; (2) the Officers suppressed the evidence in bad faith; and (3) prejudice uncontested ensued.” that Id. Thompson’s at 396–97. various Because stories are it is favorable to Owens, the Court will turn to the second and third elements of the Brady violation claim. a. “Suppressed” in Bad Faith First, the Officers argue that Thompson’s multiple stories were not “suppressed” because accessible to Specifically, Thompson’s confession Owens. was the revealed information the in was Officers open court readily state in that Owens’s presence and Owens knew Thompson changed his story previously. The Court, however, is not persuaded by this argument. The simple fact that Owens was aware that Thompson’s story changed several times during the investigation did not give Owens reason to believe that Thompson would give four versions of his confession during his February 29, 1988 interrogation, as the Officers placed slowly him at informed the crime him of scene. the If evidence the they Officers believed failed to disclose the four versions to Brave, Owens could only be aware of Thompson’s stories told to the Officers on August 3 and 5, 1987, on the witness stand on February 26, 1988, and to the Officers as his final confession on February 29, 1988. 10 As such, the Court concludes that such a failure to disclose could constitute “suppression” under Brady. Next, the Officers argue Owens cannot demonstrate that they failed to disclose the impeaching evidence in bad faith. Owens, however, has produced evidence showing that the Officers may have acted in bad faith. Though Dunnigan informed Brave of Thompson’s inconsistency, the Officers made the decision, after some disagreement, not to inform Brave of the multiple stories they elicited from Thompson. As soon as Thompson stated a version of events placing him at the crime scene with Owens, the Officers decided to stop questioning Thompson and immediately informed Brave that Thompson confessed. “The temporal proximity between Thompson’s succession of narratives and the Officers’ report to [Brave] lends support to the contention that Thompson's inconsistent narratives were fresh in the Officers’ minds, and thus, the Officers’ omissions were not accidental, but intentional and malicious.” Owens, 767 F.3d at 398. The Court, therefore, concludes that Owens has demonstrated that the Officers exhibited bad faith during their disputed failure to disclose. b. Prejudice The Officers also contend Owens cannot demonstrate that the undisclosed impeachment evidence resulted in prejudice. 11 Prejudice ensues if “there is a reasonable probability” that the jury would have reached a different result had the evidence been properly disclosed. The adjective “reasonable” is important in this context. As the Supreme Court has explained, “[t]he question is not whether the defendant would more likely than not have received a different verdict” had the evidence been disclosed. Rather, the question is whether, in the absence of disclosure, the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Owens, 767 F.3d at 397 (citations omitted). Because Officers was the impeachment favorable to information Owens, the withheld by the disclosure of the information would have supported his defense that Thompson raped and murdered Williar, not Owens. “At a minimum, the [impeachment evidence] would have aided Owens in his attempt to discredit Thompson’s testimony and sow reasonable doubt in the minds of the jurors.” Owens, 767 F.3d at 397. Also, Thompson was the State’s key witness. “Certainly, it is plausible that impeachment of such a key witness could have altered the outcome at trial. . . . Brady does not require that disclosure probably would have modified a trial’s result. . . . [I]t is enough that the suppression of evidence cast serious doubt on the proceedings’ integrity.” Strickler, 527 U.S. at 289–90). Id. at 398 (citing The Court, therefore, concludes 12 that the Officers’ disputed non-disclosure of impeachment evidence resulted in prejudice. 2. Qualified Immunity “Qualified immunity shields government officials from civil liability insofar established as their statutory or conduct does not constitutional reasonable person would have known.” violate rights of clearly which a Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013) (quoting Trulock v. Freeh, 275 F.3d 391, 399 (4th Cir. 2001)). officer is entitled to When determining whether a defendant qualified immunity, the court must examine (1) whether the facts alleged show the officer’s conduct violated a constitutional right; and, (2) if so, whether the officer’s conduct was “objectively reasonable in view of the clearly established law at the time of the alleged event.” Id. As stated above, the Supreme Court held in 1963 that a prosecutor may not suppress exculpatory evidence in a criminal trial. Brady, 373 U.S. at 87. extended the constitutional suppression of evidence. Fourth Circuit impeachment cases). disclose As held violation the evidence. See such, 1988 Thompson’s to a police Barbee, 331 F.2d at 846. that by In 1964, the Fourth Circuit various duty Owens, -- to 767 when stories the on In 1976, the disclose F.3d at encompassed 399 Officers February officer’s (citing failed 29 -- to they “violate[d] clearly established constitutional law when [they] 13 suppresse[d] material exculpatory evidence in bad faith.” Id. at 401. Because the Court concludes that a reasonable jury could find that the Officers acted in bad faith, the Officers are not entitled to qualified immunity. 3. Collateral Estoppel Lastly, the Officers argue that Owens’s claim is barred by the doctrine of non-mutual collateral estoppel. Under this doctrine, “once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation.” United States v. Mendoza, 464 U.S. 154, 158 (1984) (citing Montana v. United States, 440 U.S. 147, 153 (1979)). The doctrine may be used “defensively” by a non-party to the prior litigation. Co. v. Shore, 439 U.S. 322 Id. (citing Parklane Hosiery (1979)); see Welsh v. Gerber Products, Inc., 555 A.2d 486, 489 n.6 (Md. 1989) (“Defensive use of nonmutual collateral estoppel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue the plaintiff has previously litigated unsuccessfully against a different party.”). in another action “The applicable law for purposes of preclusion in federal court is the law of the tribunal in which the prior judgment was entered.” ELH-11-2000, 2013 WL 1314194, at 14 *10 Haskins v. Hawk, No. (D.Md. Mar. 29, 2013) (citing Migra Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)). Because the Officers argue Owens’s claim is barred by the Maryland Court of Special Appeals’s judgment affirming the denial of Owens’s motion for new trial, the Court will apply Maryland law. In Maryland, a party asserting collateral estoppel must satisfy four conditions: 1. Was the issue decided in the prior adjudication identical with the one presented in the action in question? 2. Was there a final judgment on the merits? 3. Was the party against whom [collateral estoppel] is asserted a party or in privity with a party to the prior adjudication? 4. Was the party against whom [collateral estoppel] is asserted given a fair opportunity to be heard on the issue? Colandrea v. Wilde Lake Cmty. Ass’n, Inc., 761 A.2d 899, 909 (Md. 2000). On October 20, 1989, the Court of Special Appeals issued an opinion concerning Owens’s direct appeal of the Circuit Court for Baltimore City’s denial of his motion for a new trial. Owens based his motion on the discovery of new evidence, namely Thompson’s recantation of his confession and testimony regarding Owens’s involvement in Williar’s murder. The court found that Thompson’s “‘bizarre’ and ‘incredulous’” recantation would have produced a different verdict. not consider whether the It is clear that the Court did Officer’s 15 failure to disclose the impeachment evidence resulted in prejudice. See Owens, 767 F.3d at 397 (quoting Kyles, 514 U.S. at 434) (stating “prejudice” in the context of a Brady violation looks to “whether, in the absence of disclosure, the defendant ‘received a fair trial, understood as confidence’”). a trial The resulting Court, in therefore, a verdict concludes Brady claim is not barred by collateral estoppel.4 worthy that of Owens’s Accordingly, the Court will deny the Officers’ Motion. C. Brave’s Motion for Summary Judgment Brave argues that he has absolute immunity from Owens’s claim that he failed to disclose exculpatory and impeachment evidence during his criminal trial. absolute immunity from civil Prosecutors are entitled to liability for alleged conduct “intimately associated with the judicial phase of the criminal 4 The Officers briefly state Owens’s claim may be barred by the doctrine of laches because Owens should have known about the undisclosed impeachment evidence by July 11, 1988, the date of the suppression hearing. “To establish the affirmative defense of laches . . . the defendant must prove: ‘(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.’” Knickman v. Prince George’s Cty., 187 F.Supp.2d 559, 565 (D.Md. 2002) (quoting White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990)). “[M]ere delay not resulting in injury to [the] defendant is insufficient to foreclose an award of relief . . .” Ray Commc’ns, Inc. v. Clear Channel Commc'ns, Inc., 673 F.3d 294, 305 (4th Cir. 2012). The Officers have not shown that Owens lacked diligence in bringing his claim in spite of the Fourth Circuit’s determination that Owens’ claim is timely. See Owens, 767 F.3d at 392. Further, the Officers have not demonstrated that they have suffered any prejudice. The Court, therefore, finds that Owens’s claim is not barred. 16 process.” other Imbler v. Pachtman, 424 U.S. 409, 430 (1976). words, acting absolute ‘within the immunity is advocate’s afforded role.’” prosecutors Dababnah v. “In when Keller- Burnside, 208 F.3d 467, 470 (4th Cir. 2000) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 278 (1993)). “A prosecutor prosecution or performing presenting a the case duties is of initiating entitled to a absolute immunity in an action for damages claiming that the prosecutor violated the plaintiff’s constitutional rights.” Seigel, 177 F.3d 245, 249 (4th Cir. 1999). Ostrzenski v. A prosecutor is not entitled to absolute immunity “[w]hen a prosecutor performs the investigative functions police officer.” normally performed by a detective or Id. (quoting Buckley, 509 U.S. at 273). There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. Buckley, 509 U.S. at 273. “[P]rosecutors are entitled to absolute immunity from civil liability for the allegation that they withheld exculpatory [or impeachment] Brady material.” 1679, 2000). 1680, 2000 WL 1455443, Brown v. Daniel, Nos. 99-1678, at *2 (4th Cir. September 29, “The decision whether to turn [exculpatory] evidence 17 over to defense counsel would have occurred after [plaintiff’s] arrest, but before his conviction, and is clearly part of the presentation of the State’s case.” Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994). Also, prosecutors are absolutely immune for from judicial civil liability proceedings and testimony from witnesses. making eliciting false false statements and in defamatory Burns v. Reed, 500 U.S. 478, 489–90 (1991). Owens presents evidence that Brave failed to disclose the following evidence: Brave assuring Thompson prior to trial that Thompson would not be prosecuted for making a false statement; Brave’s knowledge Thompson’s story was not consistent with other evidence; Brave’s knowledge that his informant Oliver perjured himself during trial; Brave’s receipt of the multiple letters from Oliver requesting rewards in exchange for Oliver’s testimony; and Brave’s preliminary review of Profili’s report matching Thompson’s hair to the hair found on Williar. Brave’s decision not to turn this potentially exculpatory or impeachment evidence over to Eaton occurred during Owens’s trial, and thus was clearly part of his presentation of the State’s case against Owens. Owens also presents evidence that Brave directed the Officers to test Thompson’s pubic hair and blood to compare to the hair found on Williar. Brave demonstrates that he ordered 18 the additional testing because he wanted to preserve Thompson’s credibility by showing that Thompson was not a participant in the crime. The Court finds that Brave was acting as an advocate in evaluating evidence and the credibility of his key witness as he presented the State’s case against Owens. The Court, therefore, concludes that Brave is entitled to absolute immunity regarding his failure to disclose this evidence. As such, the Court will grant Brave’s Motion.5 5 In his Opposition to Brave’s Motion for Summary Judgment, Owens asserts, for the first time, a fabrication of evidence claim against Brave. (ECF No. 165). Notably, the Second Amended Complaint only asserts this claim against BCPD and the Officers in Count 4. (ECF No. 147). “When confronted with new facts alleged for the first time in opposition papers, a court must confine its analysis to the facts presented in the complaint.” Young v. AT & T Mobility, LLC, No. RDB 09-2292, 2010 WL 2573982, at *2 (D.Md. June 22, 2010) (citing Love v. Smith, No. CCB 04– 0370, 2005 WL 1163143, at *1 n.1 (D.Md. May 17, 2005)). Owens cannot seek to avoid summary judgment by relying on a claim he did not allege in his Second Amended Complaint. See Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 731 (4th Cir. 2010) (“[I]t is well established that a plaintiff may not raise new claims after discovery has begun without amending his complaint.”); see also Barclay White Skanska, Inc. v. Battelle Mem’l Inst., 262 F.App’x 556, 563 (4th Cir. 2008) (“A plaintiff may not amend [his] complaint through argument in a brief opposing summary judgment.” (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004))); Zachair Ltd. v. Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997) (stating that a plaintiff “is bound by the allegations contained in its complaint and cannot, through the use of motion briefs, amend the complaint”), aff’d, 141 F.3d 1162 (4th Cir. 1998). As such, the Court will not consider Owens’s fabrication of evidence claim as to Brave. 19 D. BCPD’s Motion to Strike Prior to addressing BCPD’s Motion for Summary Judgment (ECF No. 158), the Court must first address BCPD’s Motion to Strike (ECF No. 171). In his Opposition to BCPD’s Motion for Summary Judgment, Owens submitted, among other items, four declarations from post-conviction attorneys, a declaration from Stephen Tabeling, a former BCPD officer, and an affidavit from Joseph Wase, a former assistant state’s attorney. 166-34, 166-36, 166-43, 166-44). documents related to three Baltimore City. Owens also submitted court cases from the Circuit Court for (ECF Nos. 166-26 through 166-28, 166-30 through 166-32, 166-33, 166-37 through 166-42). any of the (ECF Nos. 166–21, declarants, interrogatory responses. affiants, or Owens did not identify Circuit Court cases in Owens did not previously turn over any of the court documents either. At bottom, the Court concludes it must strike declarations, affidavits, and documents for two reasons. these First, the Court must strike them under Federal Rule of Civil Procedure 37(c)(1) because Owens failed to timely identify these individuals and court cases in his responses to interrogatories requesting relevant facts, a list knowledge, and relevant documents. of persons with relevant Second, Rule 56(c)(4) also bars the Court from considering the declarations, affidavits, and documents because they set 20 out facts that would be inadmissible in evidence and because some of the declarants lack personal knowledge. 1. Rule 37(c)(1) Federal Rule of Civil Procedure 26(e)(1)(A) provides, in pertinent part: A party . . . who has responded to an interrogatory, request for production, or request for admission -- must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.] Rule 37(c)(1) provides, in pertinent part, that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified or is harmless.” Courts consider nondisclosure of harmless: the (1) five evidence surprise factors is to to determine substantially the party whether justified against whom a or 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 21 disclose the evidence. S. States Rack and Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). Owens’s main argument is that he is substantially justified in failing to disclose the witnesses and documents because he asked BCPD to identify instances of its officers withholding Brady material in his own interrogatories, but BCPD failed to identify any. surprise identification violations BCPD’s by BCPD failure, of Owens court officers cases and surprise attorneys who worked on those cases. to properly answer argues, Owens’s justifies relating to his Brady identification of Even assuming BCPD failed interrogatories concerning Brady violations by its officers, however, Owens is “not excused from [his] obligations under the rules of procedure merely because an opponent has failed to comply with his obligations.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 330 (4th Cir. 2011) (quoting Carr v. Deeds, 453 F.3d 593, 604 (4th Cir. 2006)). The Court concludes that Owens has not demonstrated that his failure substantially to disclose justified the or witnesses harmless. and documents Specifically, was BCPD has been prejudiced by the surprise identification of the declarants as witnesses and court documents as evidence. Had Owens properly and timely identified the declarants as witnesses and documents as evidence, BCPD would have had the opportunity to depose the declarants to assess their degree of knowledge and 22 obtain evidence to counter their statements and the evidence within the court documents. unable to meaningfully Without that opportunity, BCPD is refute or otherwise challenge the veracity of the statements contained in the declarations and the of evidence contained in the court documents. And, at this late stage in the litigation, BCPD cannot cure the impact of Owens’s newly introduced evidence without causing significant disruption to this case. Discovery is closed, BCPD’s summary judgment motion is fully briefed, and this matter has been pending for almost five years. The Court, therefore, concludes that Rule 37(c)(1) does not permit Owens to use his late disclosures to oppose BCPD’s Motion for Summary Judgment. 2. Rule 56(c)(4) Rule 56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Federal Rule of Evidence 602 embodies the personal knowledge requirement. To satisfy is Rule 602, evidence must be introduced that “sufficient to support a finding that the witness has personal knowledge of the matter.” The 23 witness must have actually observed the fact. Fed.R.Evid. 602 advisory committee’s note to 1972 proposed rules. In his late disclosures, Owens offers declarations from post-conviction attorneys who lack personal knowledge of whether BCPD maintained a custom, policy, or practice of withholding and suppressing Brady material. The declarations only describe experiences litigating alleged Brady violations by BCPD officers at the post-conviction stage. As a result, while they may have personal knowledge of Brady material they discovered in BCPD files relating to those cases, they do not have personal knowledge of whether the relevant BCPD officer withheld that material from prosecutors. officer and assistant Presumably, only the relevant BCPD state’s attorney knowledge, as Owens himself concedes. possess this personal (See Pl.’s Opp’n Def.’s Mot. Strike at 22, ECF No. 177) (“It is difficult to imagine how defense counsel, whether trial or post-conviction, would have personal knowledge of internal communications between the BCPD and the State’s Attorney’s Office.”). Thus, some of the post-conviction attorney declarants rely on the personal knowledge of assistant state’s attorneys or the findings of judges, rather than their own personal knowledge, to declare that the BCPD officers withheld Brady information from prosecutors. No. 166-34) (See, e.g., Decl. Michelle Nethercott at 12, ECF (“According to the 24 prosecutors who handled the proceedings that resulted in the vacating of these convictions, the BCSAO was unaware of the Brady information previously described herein.” (emphasis added)); Decl. Michelle M. Martz, ECF No. 166-43 (authenticating a transcript of an oral decision in Baltimore City Circuit Court granting a new trial based on a Brady violation). None of this evidence demonstrates the post- conviction attorney declarants “actually observed the fact” of BCPD officers withholding Brady material from prosecutors, as required by Rule 602.6 Fed.R.Evid. 602 advisory committee’s note to 1972 proposed rules. The Court, therefore, concludes that Rule 56(c)(4) bars Owens’s declarations from post-conviction attorneys because they lack personal knowledge concerning whether BCPD maintained a custom, policy, or practice of withholding and suppressing Brady material. Rule 56(c)(4) bars the Court from considering the remaining late disclosures Owens offered because they set out facts that 6 The other two attorney declarants offered in Owens’s late disclosures, Shawn Armbrust and C. Justin Brown, identified cases where Brady violations allegedly occurred but failed to describe the basis for their knowledge, other than declaring they were post-conviction counsel in those cases. (See Decl. Shawn Armbrust, ECF No. 166-36; Decl. C. Justin Brown, ECF No. 166-44). For the foregoing reasons, the Court finds that their litigation of alleged Brady violations, itself, does not sufficiently demonstrate they had personal knowledge bearing on whether BCPD maintained a custom, policy, or practice of withholding and suppressing Brady material. 25 would not be admissible. Specifically, the facts Owens offers in these remaining late disclosures are irrelevant. Under Rule 401 of the Federal Rules of Evidence, “[r]elevant evidence is admissible.” “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence Evidence in determining that is Fed.R.Evid. 402. not the relevant action.” is generally Fed.R.Evid. not 401. admissible. These evidentiary relevance “principles apply to summary judgment motions.” Ziskie v. Mineta, 547 F.3d 220, 225 (4th Cir. 2008). The Affidavit of Joseph Wase describes a case that took place in 1975. (Aff. Joseph Wase at 1, ECF No. 166-28). Similarly, the Declaration of Stephen B. Tabeling describes his personal knowledge of BCPD training practices until 1979, when he retired from BCPD. No. 166-21). 2009. (Decl. Stephen B. Tabeling at 1–2, ECF Tabeling eventually returned to BCPD from 2000– Id. at 2. But the investigation giving rise to Owens’s Monell claims against BCPD took place in 1987 and 1988.7 Wase’s affidavit and Tabeling’s declaration, therefore, fail to offer evidence of BCPD practices during the relevant time period. 7 The Specifically, Owens alleges that “[a]t all times relevant to this case,” BCPD violated his federal constitutional rights under a municipal custom, policy, or practice. (See Compl. at 35, ECF No. 2). The murder took place on August 2, 1987, and Owens was ultimately convicted in 1988. Id. at 3, 7. 26 Court, therefore, Affidavit of concludes Joseph Wase that and the Rule 56(c)(4) Declaration of bars the Stephen B. Tabeling because they are not relevant. Finally, Owens offers the following court documents in his late disclosures: a post-conviction motion, transcripts, legal opinions, and docket sheets from three cases in the Circuit Court for Baltimore City where Brady violations were alleged -Austin v. Pettiford. Maryland, Coleman v. Maryland, and Maryland v. (ECF Nos. 166-26 through 166-28, 166-30 through 166- 32, 166-33, 166-37 through 166-42). Owens and BCPD agree that the court documents cannot be admitted for the truth of the Brady violations they may allege. (Pl.’s Opp’n Def.’s Mot. Strike, ECF No. 177, at 18); (Def.’s Reply Pl.’s Opp’n Def.’s Mot. Strike, ECF No. 178, at 24). Rather, Owens asserts these documents would nonetheless be admissible because the Court may take judicial notice of “docket information” relating to the Coleman and Pettiford cases. Owens further asserts the Court should take judicial notice of “the fact that” Austin raised a Brady argument in his post-conviction motion, the Circuit Court for Baltimore City’s subsequent granting of Austin’s motion, and the Maryland Court of Special Appeals’s decision to vacate the Circuit Court’s decision denying Coleman post-conviction relief. Neither docket information, nor the raising of a Brady argument in another case, is relevant to Owens’s claim against 27 BCPD. Such evidence simply establishes that other litigation relating to Brady violations exists. The bare existence of other litigation does not make it any more or less probable that BCPD maintained a custom, policy, or practice of withholding and suppressing anything Brady further material from in the the instant existence of case. infer litigation the To would admit the court documents for the truth of the Brady violations they may allege, which as the parties already agree, the Court may not do. Similarly, the dispositions of the Austin and Coleman cases in the Circuit Court for Baltimore City and the Court of existence Special of other Appeals, respectively, litigation relating either to Brady prove the violations, which is irrelevant, or are being offered for the truth of the matters asserted in those cases, which the parties agree the Court may not consider. The Court, therefore, concludes that Rule 56(c)(4) bars Owens’s court documents because they are not relevant. In sum, the Court concludes it must strike Owens’s declarations, affidavits, and documents because (1) he failed to timely identify the relevant individuals and court cases in his responses to interrogatories in violation of Rule 37(c)(1), and (2) Rule 56(c)(4) declarations, bars affidavits, the and Court documents from considering because some of the the declarants lack personal knowledge, and because they set out 28 facts that would be inadmissible in evidence. As such, the Court will grant BCPD’s Motion to Strike.8 E. BCPD’s Motion for Summary Judgment Having disposed of BCPD’s Motion to Strike, the Court will now review BCPD’s Motion for Summary Judgment. A municipality, such as BCPD, is subject to suit under 42 U.S.C. § 1983. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690 (1978). only for Liability its own under Monell’s standard. Under Monell, “a municipality is liable illegal acts.” respondeat Owens, superior is See 436 U.S. at 693–94. 767 F.3d at insufficient 402. under Rather, “[o]nly if a municipality subscribes to a custom, policy, or practice can it be said to have committed an independent act, the sine qua non of Monell liability.” Owens, 767 F.3d at 402. There are four theories that Owens can pursue to show a custom, policy, or practice: (1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an 8 BCPD also challenges Owens’s reliance on the documents identified in his Opposition to BCPD’s Motion for Summary Judgment as “Other Authorities” and “Periodicals” in the Table of Authorities. Owens did not attach these documents as exhibits and states they were relied upon “to support Mr. Owens’s legal analysis or demonstrate general public knowledge, not to prove the factual matters therein.” (Pl.’s Opp’n Def.’s Mot. Strike at 25, ECF No. 177). Accordingly, the Court will not consider these documents as evidence when evaluating BCPD’s Motion for Summary Judgment. 29 omission, such as a failure to properly train officers, that “manifest[s] deliberate indifference to the rights of citizens”; or (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of law.” Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)). Here, Owens’s Complaint alleges that “[a]t all times relevant to this case,” BCPD “maintained a custom, policy, and/or practice” of condoning its officers’ conduct in “knowingly, consciously, and repeatedly with[holding] evidence. and suppress[ing]” (Compl. at 35, ECF No. 2). exculpatory Owens’s Complaint thus alleges the fourth way of proving a custom, policy, or practice: a theory of condonation. “Under th[e] [condonation] theory of liability, a city violates § 1983 if municipal policymakers fail ‘to put a stop to or correct a widespread pattern of unconstitutional conduct.’ ” Owens, 767 F.3d at 402 (quoting Spell v. McDaniel, 824 F.2d 1380, 1390 (4th Cir. 1987)) (alterations in original). Earlier in this case, the Fourth Circuit provided further illumination of what Owens is required to prove: Prevailing under such a theory is no easy task. A plaintiff must point to a “persistent and widespread practice of municipal officials,” the “duration and frequency” of which indicate that policymakers (1) had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their “deliberate 30 indifference.” Both knowledge and indifference can be inferred from the “extent” of employees’ misconduct. Sporadic or isolated violations of rights will not give rise to Monell liability; only “widespread or flagrant” violations will. Id. at 402–03 (quoting Spell, 824 F.2d at 1386–91) (citations and alterations omitted). Here, Owens has failed to present any evidence to support his Monell claim under a theory of condonation. evidence Owens relies upon to support his Most of the claim has been stricken by the Court because it was untimely under Rule 37(c) and barred remaining by Rule evidence 56(c), Owens as stated offers to previously. support his The Monell only claim under a theory of condonation is a reference to the case Griffin v. Baltimore expressly Police held that Department, it but “expresses Griffin’s Brady claim . . .” no the court view on in the that case merits 804 F.3d 692 (4th Cir. 2015). of The rest of Owens’s Opposition to BCPD’s Motion for Summary Judgment is dedicated towards arguing why summary judgment in favor of BCPD is precluded under a “failure to train” theory of Monell liability. But Owens did not plead this Complaint; he only pled a theory of condonation. theory in his (See Compl. at 35, ECF No. 2) (alleging BCPD “maintained a custom, policy, or practice to allow” Brady violations “either directly or by facilitating it, approving it, condoning it, and/or knowingly 31 turning a blind eye to it” (emphasis added)); see also Owens, 767 F.3d at 402 (“Owens’s complaint thus alleges a theory of custom ‘by condonation.’” (citation omitted)). Thus, the Court will not consider this theory of liability. As such, the Court will grant BCPD’s Motion for Summary Judgment. III. CONCLUSION For the reasons stated above, the Officers’ Amended Motion for Summary Judgment (ECF No. 159) is DENIED.9 for Summary Judgment (ECF No. 39) is GRANTED. Brave’s Motion BCPD’s Motion to Strike (ECF No. 171) and Motion for Summary Judgment (ECF No. 158) are GRANTED. The Clerk is directed to amend the case caption and remove Baltimore City State’s Attorneys Office as a Defendant. A separate Order follows. Entered this day 29th of September, 2016 /s/ ________________________ George L. Russell, III United States District Judge 9 See supra note 5. 32
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