Case 1:08-cv WDQ Document 37 Filed 12/10/2008 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION

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1 Case 1:08-cv WDQ Document 37 Filed 12/10/2008 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION JEFFREY GRAY, Individually; as the next best friend of and Personal Representative of the Estate of Jarrel Gray, et al., Plaintiffs, v. CIVIL NO.: WDQ RUDY TORRES, Defendant. MEMORANDUM OPINION Jeffrey Gray and Tanya Thomas, individually, and as the next best friends and personal representatives of the estate of Jarrel Gray, sued the Board of County Commissioners of Frederick County, Maryland (the Board ); Frederick County Sheriff Charles Jenkins, in his official and individual capacities; and Deputy Frederick County Sheriff Rudolph Torres, in his official and individual capacities for the death of Jarrel Gray. Pending is the Plaintiffs motion for leave to file a second amended complaint. For the following reasons, the Plaintiffs motion will be granted in part and denied in part. I. Background On the evening of November 18, 2007, Torres and other County Sheriff s Deputies arrived at Gresham Court in Frederick, 1

2 Case 1:08-cv WDQ Document 37 Filed 12/10/2008 Page 2 of 7 Maryland. Amended Compl. 1. Torres encountered Jarrel Gray and his friends, and fired a Taser at Gray. Id. 13. Gray was rendered unconscious. Id. Twenty-three seconds later, Torres again fired the Taser at Gray. Id. 14. Gray died. Id. 15. The Board and Jenkins had implemented Taser policies and procedures and were responsible for Torres s training, supervision, and discipline. Id. 21. On May 28, 2008, the Plaintiffs sued the Defendants in this Court. The Plaintiffs claims include: (1) survival and wrongful death (all Defendants - Counts I and II); (2) excessive force and police brutality (all Defendants - Count III); (3) assault and battery (Torres and the Board - Count IV); (4) negligent training and supervision (Jenkins and the Board - Count V); (5) intentional infliction of emotional distress (Torres - Count VI); (6) violation of 42 U.S.C (Torres - Count VII); and (7) violations of Article 24 and 26 of the Maryland Declaration of Rights (Torres and the County - Count VIII). On August 12, 2008, this Court dismissed the claims against the Board, Sheriff Jenkins, and Deputy Torres in his official capacity. On September 27, 2008, the Plaintiffs moved for leave to file a second amended complaint. II. Analysis Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend shall be freely given when justice so 2

3 Case 1:08-cv WDQ Document 37 Filed 12/10/2008 Page 3 of 7 requires. Fed. R. Civ. P. 15(a)(2); Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008). A motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile. Nourison Rug Corp., 535 F.3d at The Plaintiffs move for leave to file a second amended complaint on the ground that the Court erroneously dismissed the claims against the Board and Sheriff Jenkins. Pl. Mot. at 1. The Court was incorrect, the Plaintiffs argue, in finding that: (1) Sheriff Jenkins and Deputy Torres are state officials, (2) Sheriff Jenkins and Deputy Torres did not act as County officials, and (3) Sheriff Jenkins and Deputy Torres did not act on behalf of the County. Id at 3. Deputy Torres has opposed the motion. The Plaintiffs assert that the Court misapplied the law to find that Sheriff Jenkins and Deputy Torres are state officials. Specifically, the Plaintiffs argue the Court misconstrued Ritchie v. Donnelly, 324 Md. 344, 597 A.2d 432 (1991), Rucker v. Harford County, 316 Md. 275, 558 A.2d 399 (1989), and Dotson v. Chester, 937 F.2d 920 (4th Cir. 1991). Pl. Mot. at 1. Additionally, the Plaintiffs introduce deposition testimony of Sheriff Jenkins and 1 Rule 16(b) provides that a scheduling order shall not be modified except upon a showing of good cause and by leave of the district judge. Fed. R. Civ. P. 16(b)(4). Because the amended complaint, if granted, will not disrupt the scheduling order, Rule 16(b) is inapplicable. 3

4 Case 1:08-cv WDQ Document 37 Filed 12/10/2008 Page 4 of 7 Commissioner Charles Arthur Jenkins that Deputy Torres is a County employee. 2 Id. at 2. In the Memorandum Opinion that accompanied the Order dismissing the complaints against the County, this Court held that Sheriff Jenkins and Deputy Torres were state employees. As a result, the Board was found generally not liable for their actions. This holding is not contrary to law. Ritchie, Rucker, and the Annotated Code of Maryland clearly define sheriffs as state employees under Maryland law. MD. CODE ANN., STATE GOV T (a)(6); Ritchie, 324 Md. at 357, 597 A.2d at 438; Rucker, 316 Md. at 281, 558 A.2d at 402. This holding is correct despite Sheriff Jenkins s and Commissioner Jenkins s contrary deposition testimony because the issue is a question of law, not fact. This Court also found that the Plaintiffs had failed to plead that the Board was responsible for the Sheriff s law 2 Sheriff Jenkins and Commissioner Jenkins prepared errata sheets to correct their deposition statements that Deputy Torres was a County employee. The errata sheets state that Deputy Torres is a state employee. Rule 30(e), however provides that errata sheets should be stricken where it is apparent to the Court that a party seeks to undo the testimony of its 30(b)(6) witnesses by adding errata. Wyeth v. Lupin, 252 F.R.D. 295, 297 (D. Md. 2008) (citing Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 (10th Cir. 2002), Paul Harris Stores, Inc. v. Pricewaterhouse Coopers LLP, 2006 WL , at 3 (S.D. Ind. Sept. 14, 2006), Eckert v. Kemper Fin. Servs., Inc., 1998 WL at 5 (N.D. Ill. Sept. 30, 1998)). Lawyerly fixing of potentially problematic testimony will not be allowed. Id. Here, it seems clear that the errata sheets were prepared to alter detrimental testimony. As a result, the errata sheets will be ignored. 4

5 Case 1:08-cv WDQ Document 37 Filed 12/10/2008 Page 5 of 7 enforcement training program. As a result, the County was not liable under 42 U.S.C A municipality has no respondeat superior liability under 1983 for its employees actions, but it is liable when the municipality itself causes [a] constitutional violation[.] Monell v. New York Department of Social Services, 436 U.S. 658, 694 (1978); City of Canton v. Harris, 489 U.S. 378, 385 (1989). A municipality is liable if it causes a deprivation of constitutional rights through an official policy or custom. Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999). Municipal policy or custom is made formally and through informal ad hoc decisions of... officials authorized to make and implement municipal policy. Spell v. McDaniel, 824 F. 2d 1380, 1385 (4th Cir. 1987). State law determines which municipal officers are authorized to make official policy. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). Unlike the Amended Complaint, the Second Amended Complaint alleges that the Board fully funds the Sheriff Department. 3 3 The Second Amended Complaint differs from the Amended Complaint in the order of the Counts and in the text of four paragraphs. Paragraph 9 of the Second Amended Complaint adds the words fully funds to the description of the relationship of the County and the Sheriff Department and states that the Board is being sued individually and under the theory of respondeat superior. Paragraph 18 offers slightly different language. Paragraph 49 of the Second Amended Complaint omits Frederick County is also liable for its own violations of the Maryland Constitution in that it failed to supervise Defendant Torres, and for its failure to train, discipline and supervise its police 5

6 Case 1:08-cv WDQ Document 37 Filed 12/10/2008 Page 6 of 7 Although Dotson acknowledges that funding is not dispositive of Monell liability, the Fourth Circuit explained that County funding of activity run by the sheriff s department was a factor in determining Monell liability. Dotson, 937 F.2d at 930. Additionally, the Complaint alleges: (1) that the Board maintains the Sheriff Department, which operates and administers law enforcement policies, practices and customs involving the hiring, training, and supervision of its Deputy Sheriffs, Compl. 9; (2) that the Board has acted with deliberate indifference to the risk of constitutional violations and failed to properly train its sheriff s deputies to use tasers when one person is tasered multiple times, Compl , 37-38; that Deputy Torres was acting within the scope of his employment, Compl. 20; (3) that the Board was responsible for the policies and procedures followed by Defendant Torres in the actions taken relating to the decedent, and were further responsible for the hiring, training, supervision, monitoring, and disciplining of the Deputy Sheriff involved, Compl. 21;. Accordingly, the Plaintiffs have stated a claim of Board liability under See Spell v. McDaniel, 824 F,2d 1380 (4th Cir. 1987). Additionally, the Second Amended Complaint states a claim force in the use of lethal force and the prevention of violations of the federal and state constitutions, language that was included in the original Complaint. Paragraph 50 is deleted from the Second Amended Complaint. 6

7 Case 1:08-cv WDQ Document 37 Filed 12/10/2008 Page 7 of 7 against Sheriff Jenkins under Accordingly, the Plaintiffs motion will be granted to allow a claim of 1983 liability against Sheriff Jenkins. III. Conclusion For the above stated reasons, the Plaintiffs motion for leave to file an amended complaint will be granted to allow Plaintiffs to file a Second Amended Complaint alleging 1983 liability by the Board, and will be denied otherwise. December 10, 2008 /s/ Date William D. Quarles, Jr. United States District Judge 4 Paragraph 37 of the Second Amended Complaint states that Defendants Frederick County and Jenkins acted negligently, carelessly, recklessly and with deliberate indifference by failing to properly train, supervise, control, direct and monitor Defendant Torres in his duties and responsibilities. Compl. 37. Paragraph 38 states that Gray s death was the direct and proximate result of the omissions of the Board and Sheriff Jenkins. Id. at 38. Failure to train must be proved with specificity under Spell v. McDaniel, 824 F.2d 1380, 1390 (4th Cir. 1987) ( a specific deficiency rather than general laxness or ineffectiveness in training must be shown). Id. The specificity requirement is not present at the pleading stage, however. Vincent v. Prince George s County, MD, 157 F. Supp. 2d 588, 592 (D. Md. 2001) (citing Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993). Instead, only a short plain statement in the pleadings is required to put the defendants on notice of the claim being asserted. Id. 7