Moore v. Peitzmeier

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

CHRISTOPHER MOORE,

Plaintiff,

V. □

MICHAEL PEITZMEIER, Civil Action No. TDC-18-2151

JOSEPH ALVAREZ,

YVESDIDIER NKODIA and

NATHAN LENHART,

Defendants.

MEMORANDUM OPINION

Plaintiff Christopher Moore has filed this action pursuant to 42 U.S.C. § 1983 alleging

violations of his federal constitutional rights and state law tort claims arising from his arrest outside

his apartment complex by Defendants Officers Michael Peitzmeier, Joseph Alvarez, Yvesdidier

Nkodia, and Nathan Lenhart of the Montgomery County Police Department (“MCPD”). Pending

before the Court are Defendants’ Motion to Strike Plaintiff's Rule 26(a)(2)(C) Disclosures and

Exclude Such Testimony at Trial, Defendants’ Motion for Summary Judgment, and Moore’s

Motion for Summary Judgment. Having reviewed the filings, the Court finds that no hearing is

necessary. See D. Md. Local R. 105.6. For the reasons set forth below, Defendants’ Motion to

Strike will be DENIED, Defendants’ Motion for Summary Judgment will be GRANTED IN PART

and DENIED IN PART, and Moore’s Motion for Summary Judgment will be DENIED.

. BACKGROUND

On the evening of August 20, 2016, Plaintiff Christopher Moore took two Percocet pills.

After taking the medication, he was called in to work at a bar. While at work, he learned that his

uncle had died. Moore began drinking alcohol, and at this point his memory of the evening and

its events ends. His next memory is from a hospital visit some time the next morning.

At 4:38 a.m. on August 21, 2016, the residents of Apartment 21, 3902 Blackburn Lane,

Montgomery County, Maryland called 911 and reported that a man was attempting to break into

their apartment. The man had struck their door with such force that it was stuck partially open and

would not close properly. MCPD Officers Michael Peitzmeier and Nathan Lenhart responded to

the call. In the apartment building’s stairwell, they discovered Moore locked in a scuffle with two

men wearing security guard uniforms. The officers joined the fray in an attempt to get Moore

under control, but he did not cooperate. In addition to yelling about his uncle’s passing, he was

also “struggling with and pulling away from” the group, despite being told to “stop fighting”

multiple times. Joint Statement of Undisputed Facts (“JSUF”) at 2, ECF No. 55-2. It took all four

men to get Moore under control and eventually into handcuffs.

Once Moore was in handcuffs, Officers Peitzmeier and Lenhart investigated the

disturbance. They learned that the security guards were not employed by the apartment complex

but were instead Moore’s co-workers who had taken him home from a bar where he had been

causing a disturbance. Upon meeting with the residents of Apartment 21, the officers learned that

Moore was apparently so intoxicated that he mistakenly believed Apartment 21 was his own

residence and had broken the door trying to get into what he thought was his home. During this

investigation, Moore was “yelling, growling, cursing, and jumping up and down,” in addition to

shouting about his uncle. /d. at 3. The officers eventually determined that Moore actually resided

in Apartment 22. They knocked on the door of this unit, and Moore’s wife answered.

Moore’s wife, one of the security guards named Bang, and the officers discussed what to

do with Moore. The officers stated that, in light of Moore’s intoxication and his grief at his uncle’s

passing, they thought it best to allow Moore to sleep off his intoxication in the apartment rather

than to arrest him. Moore’s wife expressed some reservation about allowing Moore into the

apartment given his intoxicated state, noting that there were young children in the apartment, and

suggested that he sleep in the hallway. After the officers warned that Moore would be arrested if

they were called back to deal with any further disturbances or property destruction by Moore, and

after Bang volunteered to stay with Moore in the apartment to ensure the family’s safety, she

agreed to allow him to enter. Satisfied that Moore would sleep it off in his apartment, the officers

left. The encounter had lasted about 30 minutes.

Just 10 minutes later, however, the residents of Apartment 21 again called 911 and reported

_that the same man was outside their door, fighting other men in the hallway, and making verbal □

‘threats. Officer Peitzmeier, the first officer on the scene, discovered Moore, shirtless and shoeless,

sitting on the front steps of the apartment complex with his head down. Moore was intermittently

yelling incoherently. Officer Peitzmeier spoke to Moore, but Moore did not respond. Officer

Joseph Alvarez was next to arrive, and Officer Peitzmeier told him that it was a “straight up 10-

15,” meaning that Moore needed to be placed in custody. JSUF at 6; Peitzmeier Body Camera

Video (“Body-Cam”) at 3:05-3:15, ECF No. 63. Officer Alvarez approached Moore, speaking to

him but also receiving no response.

As Officer Alvarez reached down to touch Moore, Moore’s head snapped up and he

extended his arms toward Officer Alvarez while yelling “What? What?” Peitzmeier Body-Cam

at 3:23-3:28. His left hand or arm made contact with Officer Alvarez’s upper chest, and though □

Moore had not fully stood up, the contact caused Officer Alvarez to move back. Officer Alvarez

responded by punching at Moore’s face one’or two times, knocking Moore onto his back against

the steps. Officer Peitzmeier attempted to restrain Moore and get him into handcuffs, but he did

not punch Moore.

As the incident was unfolding, two more officers arrived on the scene. Officer Yvesdidier

Nkodia ran forward and helped secure Moore by putting his right knee onto Moore’s lower body.

Officer Lenhart, who had been on the first call, ran forward and began punching Moore in the face.

Lenhart Body-Cam at 1:30-1:50, ECF No. 63. Although Officer Lenhart has testified that he

believed that Moore was continuing to resist and fight, Moore was lying on his back, against the

steps, with his arms down. It appears from body camera video footage that Officer Lenhart

delivered two blows to Moore’s face while Moore’s chest and neck were being held in place. This

flurry of punches lasted only a few seconds.

The officers then rolled Moore onto his stomach and began attempting to handcuff him as

he muttered several times, “Why’d you hit me, dog?” /d. at 1:40-1:55. Moore was bleeding from

the head, with some of his blood pooling on the steps. As the officers continued to attempt to get

Moore’s hands behind his back—a task made more difficult by Moore’s awkward position against

the stairs—Moore told the officers that they were hurting his neck and assured them, “I’m not

fighting you.” Jd. at 2:00-2:30. When Moore was finally in a position to be handcuffed, Officer

Alvarez put his hand on the back of Moore’s neck but released his hold once the handcuffing was

complete. As a result of the injuries he suffered, Moore was taken by ambulance to a hospital,

where he was treated for “an acute head injury, laceration of the eyebrow, abrasions, and neck .

strain.” JSUF at 9.

Officer Peitzmeier completed an Incident Report and a Statement of Charges. In the

Statement, he proposed charges of disorderly conduct, second-degree assault, and resisting arrest.

Although Moore was later charged with these three offenses, the case was ultimately terminated

by nolle prosequi. Officer Peitzmeier later testified that he also believed that there was probable

cause to arrest Moore for malicious destruction of property as well. Defendants have offered the

testimony of MCPD Lieutenant Marc Erme, an expert witness, that there was probable cause to

arrest Moore for disorderly conduct, assault on a police officer, resisting arrest, malicious

prosecution, and attempted burglary. The expert has also testified that each officer’s use of force

was reasonable under the circumstances.

On July 16, 2018, Moore filed the present action. As narrowed by voluntary dismissal of

certain defendants and claims, and by the Court’s ruling on a Motion to Dismiss, Moore is

presently alleging claims of unlawful seizure, excessive force, negligence, gross negligence, and

battery against Officers Peitzmeier, Alvarez, Nkodia, and Lenhart, and a claim of malicious

prosecution against Officer Peitzmeier only.

DISCUSSION

1. Motions for Summary Judgment

In their Motion for Summary Judgment, Defendants seek summary judgment on all six

remaining counts on the grounds that their arrest of Moore was lawful, that the force they used

against Moore was not excessive under the Fourth Amendment and did not constitute battery under

Maryland law, that they were neither negligent nor grossly negligent in arresting Moore, and that

Officer Peitzmeier’s filing of the Statement of Charges against Moore did not constitute malicious

prosecution.

In his Opposition to Defendants’ Motion, Moore abandons his negligence and gross

negligence claims, so the Court will enter summary judgment on those counts. In his Cross Motion

for Summary Judgment, Moore seeks summary judgment in his favor on the malicious prosecution

claim.

A. Legal Standard

Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the

moving party demonstrates that there is no genuine issue as to any material fact, and that the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light

most favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts supported in

the record, not simply assertions in the pleadings. Bouchat v. Balt. Ravens Football Club, Inc.,

346 F.3d 514, 522 (4th Cir. 2003). A fact is “material” if it “might affect the outcome of the suit

under the governing law.” Anderson, 477 U.S. at 248. A dispute of material fact is only “genuine”

if sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict

for that party. Id. at 248-49. “When faced with cross-motions for summary judgment, the court

must review each motion separately on its own merits ‘to determine whether either of the parties

deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516,523 (4th Cir. 2003)

(quoting Philip Morris, Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir. 1997)).

B. Unlawful Seizure

Moore first argues that he was arrested without probable cause in violation of the Fourth

Amendment, which protects “[t]he right of the people to be secure in their persons . . . against

unreasonable searches and seizures.” U.S. Const. amend. IV. With limited exceptions, an arrest

is reasonable only if supported by probable cause. Dunaway v. New York, 442 U.S. 200, 214

(1979). An officer has probable cause for an arrest when “facts and circumstances within the

officer’s knowledge would warrant the belief of a prudent person that the arrestee had committed

or was committing an offense.” United States v. Manbeck, 744 F.2d 360, 376 (4th Cir. 1984)

6 .

(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). As the term implies, probable cause involves

“probabilities,” the “factual and practical considerations of everyday life on which reasonable and

prudent men, not legal technicians, act.” Jd. (quoting Brinegar v. United States, 338 U.S. 160, 175

(1949)). Thus, probable cause requires more than mere suspicion, but less than proof beyond a

reasonable doubt. See Wong Sun v. United States, 371 U.S. 471, 479 (1963). “The question to be

answered is whether an objectively reasonable police officer, placed in the circumstance, had a

‘reasonable ground for belief of guilt’ that was ‘particularized with respect to the person to be

searched or seized.’” United States v. Humphries, 372 F.3d 653, 657-58 (4th Cir. 2004) (quoting

Maryland v. Pringle, 540 U.S. 366, 372-73 (2003)). The arresting officer’s belief need not be

correct, or even more likely true than false, so long as it is reasonable. Texas v. Brown, 460 US.

730, 742 (1983). Furthermore, the officer’s subjective motivations for making the arrest are

immaterial. Whren v. United States, 517 U.S. 806, 813 (1996).

“Because the probable cause inquiry is informed by the contours of the offense at issue,”

the Court must look to Maryland law “in determining the scope of the offense.” Hupp v. Cook,

931 F.3d 307, 318 (4th Cir. 2019). The Statement of Charges filed after Moore’s arrest identified

three separate charges: disorderly conduct, second-degree assault, and resisting arrest. Officer

Peitzmeier, who filed the Statement, has since testified that there was also probable cause to arrest

Moore for malicious destruction of property. While courts may consider whether probable cause

_ arrest existed for crimes other than those charged at the time of arrest, Devenpeck v. Alford, 543:

U.S. 146, 152-53 (2004), in this instance the Court need not do so, for it finds that there was

probable cause to arrest Moore for disorderly conduct and assault.

Maryland law criminalizes several versions of disorderly conduct. The version with which

Moore was charged provides that “a person may not willfully act in a disorderly manner that -

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disturbs the public peace.” Md. Code Ann., Crim. Law § 10-201(c)(2) (LexisNexis 2012). “[T]he

gist of the crime of disorderly conduct . . . is the doing or saying, or both, of that which offends,

disturbs, incites, or tends to incite, a number of people gathered in the same area.” Spry v. State,

914 A.2d 1182, 1187-88 (Md. 2007) (citation omitted). The person need not “act for the purpose

of disturbing the public peace.” Dziekonski v. State, 732 A.2d 367, 372 (Md. Ct. Spec. App. 1999).

“The effect of the actor’s conduct need only be that the peace was disturbed.” Id.

Moore’s conduct satisfies this definition. It is undisputed that after he attempted to break

down aneighbor’s apartment door, Moore was found by the police yelling repeatedly in the middle

of the night in an apartment complex in a manner that could fairly be construed to disturb, at a

minimum, the residents in Apartment 21. The Court of Appeals of Maryland has held that, under

the predecessor to the current disorderly conduct statute, a defendant is “properly convicted of a

violation of the statute” where the defendant’s yelling was “unreasonably loud under the

circumstances—among those circumstances being the fact that the noise produced by [the

defendant] unreasonably disturbed members of a captive audience who were entitled to be free of

that sort of disturbance.” Eanes v. State, 569 A.2d 604, 618-20 (Md. 1990). Moore was also

involved in a physical struggle with two other men when the police arrived and, despite the

officers’ orders, he continued to yell loudly, try to pull away from the others, and resist being

controlled to the point that four men had to physically restrain him. Such actions can also support

a conviction for disorderly conduct. In Streeter v. State, 248 A.2d 119 (Md. Ct. Spec. App. 1968),

example, the court upheld a conviction for disorderly conduct where the defendant, while

intoxicated, repeatedly refused requests to leave'a restaurant at closing time, demanded to be

served despite his inability to pay for his food, and, when a policeman entered the restaurant, tried

to slip a table knife into his pocket. /d. at 120-21. In holding that there was sufficient evidence

for the conviction, the court pointed to the fact that the defendant’s belligerent behavior “could

have precipitated a melee” and the fact that the defendant’s behavior did not cease when a

policeman arrived. /d. at 121. Here, Moore’s behavior was belligerent, actually did precipitate a

physical struggle, and did not end when the officers appeared and sought to restrain him. Thus,

Moore’s physical conduct, in addition to his yelling, gave the officers probable cause to arrest

Moore for disorderly conduct.

Moore, however, argues that none of this conduct may be considered in determining

whether there was probable cause to arrest him for disorderly conduct because “[w]Jarrantless

misdemeanor arrests must be made during one transaction unless there is an objectively necessary

reason for delay.” Pl.’s Opp’n Mot. Summ. J. at 11, ECF No. 56-1. According to Moore, because

there was no such reason for the officers to delay arresting Moore for the misdemeanor of

disorderly conduct when they first left the scene, arresting him during the second call based on his

conduct during the first call would be unlawful. Consequently, Moore argues that the existence of

probable cause for an arrest for disorderly conduct may be judged based only on his actions during

the officers’ second visit to the apartment complex.

In Torres v. State, 807 A.2d 780 (Md. Ct. Spec. App. 2002), cited by Moore, the court held

that a police officer may conduct a warrantless arrest on a misdemeanor charge only if the crime

was “committed in his presence or view,” and only “if the arrest is made with reasonable

promptness after the offense.” Jd. at 781-82. Yet in Torres, there was a delay of 13 days between

the criminal conduct observed by the police officer and the arrest, id. at 789, as opposed to the

mere 10 minutes that passed between the first and second encounters between Moore and the police

in the present case. Though in Torres the court noted that it had “found no case that applied the

reasonable promptness rule [and] found a warrantless misdemeanor arrest valid where the delay

exceeded one hour,” the 10-minute delay falls safely within the requirement of “reasonable

promptness.” Torres, 807 A.2d at 789. Notably, the Court of Appeals of Maryland has since

clarified the “reasonable promptness rule” by stating that “[t]he discretionary aspect of a law

enforcement officer’s authority when arresting without a warrant at the scene of a misdemeanor .

. . 1S limited ordinarily only by a need for the arrest to be effectuated in ‘due time.’” Spry, 914

A.2d at 1189. There, the court stated that a two-day delay between a misdemeanor and a resulting

warrantless arrest “may or may not have implicated the issue of delay.” Jd. By contrast, an arrest

made 10 minutes after the observed criminal conduct is safely made in “due time,” such that the

officers could have lawfully arrested Moore for disorderly conduct during the second call! on the

basis of conduct that occurred during the first call. See id) Where that conduct provided probable

cause that Moore had engaged in disorderly conduct, Moore’s unlawful seizure claim fails.

Even if that were not the case, summary judgment would still be warranted on this count

because there was also probable cause to arrest Moore for an assault upon Officer Alvarez. Under

Maryland criminal law, “[a] person may not commit an assault,” Md. Code Ann., Crim. Law § 3-

203(a), which is defined as “the crimes of assault, battery, and assault and battery, which retain

their judicially determined meanings.” at § 3-201(b). The judicially determined meaning of

battery involves “causing offensive physical contact with another person.” Nicolas v. State, 44

A.3d 396, 406-07 (Md. 2012). Here, the body camera footage shows Moore causing offensive

physical contact with Officer Alvarez. As Officer Alvarez leaned down toward Moore, Moore

swung his right arm toward Officer Alvarez and pushed his left arm against Officer Alvarez’s

upper torso, causing him to move back. To be sure, not every push or contact is offensive. See

Nicolas, 44 A.3d at 412 (“[A] reasonable jury could have determined, for instance, that the brush

or push did not constitute offensive physical contact or that the contact was accidental’). Indeed,

Moore identifies at least one unpublished case in which the Maryland Court of Special Appeals

held that “merely swatting away the officer’s hands . . do[es] not rise to the level of statutory

second-degree assault.” In re O.M., No. 23-J-16-0001 10, 2017 WL 4075169, *6 (Md. Ct. Spec.

App. Sept. 14, 2017). Here, however, the body camera video reveals that Moore’s push to Officer

Alvarez’s chest went beyond such a limited action. Moreover, Defendants need not prove beyond

a reasonable doubt that Moore actually committed an assault; they need only establish that there

was probable cause to arrest Moore for committing an assault. Judged against this lower standard,

the evidence establishes that Defendants had probable cause to arrest Moore for assault. Wilkes v.

Young, 28 F.3d 1362, 1370 (4th Cir. 1994) (“{T]he quantum of evidence required to establish.

probable cause is of course less than that required to establish guilt beyond a reasonable doubt...

..’) (citation omitted); see Leatherberry v. State, 242 A.2d 599, 602 (Md. Ct. Spec. App. 1968)

(holding that there was probable cause to arrest an individual who had pushed a police officer).

Because the Court concludes that there was probable cause to arrest Moore for disorderly

conduct and assault, it need not now address Defendants’ further contentions that there was also

probable cause to arrest Moore for resisting arrest and malicious destruction of property, or that

they are entitled to qualified immunity on this count. The Court will grant summary judgment in

favor of Defendants on the unlawful seizure count.

C. Excessive Force

Moore also claims that Officers Peitzmeier, Alvarez, Nkodia, and Lenhart violated the

Fourth Amendment by using excessive force in arresting him. Defendants move for summary

judgment on this count, arguing that their use of force was objectively reasonable and that, even if

it was not, they are nevertheless entitled to qualified immunity,

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1. Fourth Amendment

A claim of excessive force used during an arrest invokes the protections of the Fourth

Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). To assess whether the force used

was reasonable and not excessive, a court must balance the governmental interests and “the nature

and quality of the intrusion on the individual’s Fourth Amendment interests.” Jd. at 396 (quoting

Tennessee v. Garner, 471 U.S. 1, 8 (1985)). The test is an objective one: whether the officer’s

actions are objectively reasonable under the facts and circumstances, recognizing that officers

often must make “split-second judgments.” Jd. at 397. Relevant considerations include the

seriousness of the crime, whether the individual poses an immediate threat to the safety of others,

and whether the individual is actively resisting or attempting to evade arrest. Jd. at 396. “Not

every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,”

will rise to a Fourth Amendment violation. Jd. (quoting Johnson v. Glick, 481 F.2d 1028, 1033

(2d Cir. 1973)). Notably, “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.” Jd at 396.

Nevertheless, even if an initial use of force is reasonable, “the repeated use of force may be

constitutionally excessive if circumstances change in a material way.” Harris v. Pittman, 927 F.3d

266, 268-69 (4th Cir. 2019).

In a civil action for damages, the question of whether a defendant used excessive force,

and the specific question of whether the force used was reasonable, is a mixed question of law and

fact properly submitted to the jury when “there are disputed issues of material fact” or where “there

is room for a difference of opinion.” Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1253 (10th

Cir. 2013); cf Padula v. Leimbach, 656 F.3d 595, 601 (7th Cir. 2011) (holding that, in wrongful

arrest cases brought under § 1983, “[t]he probable cause determination must be made by a jury if

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there is room for a difference of opinion concerning the facts or the reasonable inferences to be

drawn from them” (quoting Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir. 2008))); O’Brien v.

City of Grand Rapids, 23 F.3d 990, 998 (6th Cir. 1994) (“[I]n a civil damage suit, whether exigent

circumstances existed to excuse a warrantless arrest is a question for the jury provided that, given

the evidence on the matter, there is room for a difference of opinion.”). Here, the record before

the Court consists of only a joint statement of undisputed facts and body camera recordings from

two of the officers. Since Moore had no recollection of the events of the evening in question, there

are no dueling affidavits with conflicting accounts. If the facts are undisputed, or if there is video

evidence that conclusively establishes the relevant facts and supports only one conclusion,

summary judgment may be granted. Scott v. Harris, 550 U.S. 372, 380 (2007).

On this record, the first Graham factor, the seriousness of the offense, weighs in favor of

Moore. The primary offenses drawing the police officers to the apartment complex, disorderly

conduct and malicious destruction of property, are misdemeanors. Although Moore was under the

influence of drugs or alcohol and was hard to control, there was no evidence that he was

intentionally seeking to physically harm anyone during the first encounter. Indeed, the officers

had determined during the first encounter that the damage he caused to the door of Apartment 21

was based on a mistaken belief that it was the door to his unit, not an intent to break into and enter

someone else’s residence. See, e.g, Hupp, 931 F.3d at 322 (treating the misdemeanor

classification of the crime for which plaintiff was arrested as establishing that the crime was “a

minor one,” thus shifting the first Graham factor in plaintiff's favor). Although the assault on □

Officer Alvarez immediately before the arrest could qualify as a felony, see Md. Code Ann., Crim.

Law § 3-203(c), where Moore was not armed and had only momentary contact with Officer

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Alvarez, the offenses at issue are of limited seriousness, particularly when compared with violent

or drug trafficking offenses.

The second and third factors—whether the “suspect pose[d] 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—justify the use of a certain amount of force. When

Defendants approached Moore during the second encounter, he was sitting on the steps, unarmed

and shirtless, and was not at that moment engaged in any threatening behavior. However, once

Officer Alvarez approached him, Moore made a sudden movement directed toward Officer

Alvarez and appears to have struck him in the upper chest. In addition, Defendants were aware,

either from their involvement in the first encounter or from information shared with them, that

during the earlier episode Moore had resisted police efforts to control him. Thus, after Moore

lunged toward Officer Alvarez, Defendants were justified in using some force to address the

possible threat. .

Notably, however, the threat Moore presented to the officers dissipated as quickly as it had

arisen. After his initial movement toward Officer Alvarez, Moore does not appear to have taken

any other threatening actions toward the officers. Rather, he was quickly and immediately taken

and held down by several officers. There was no sign that Moore was armed. As for active

resistance or attempts to flee, before he was tackled, Moore could not have disobeyed or resisted

a police order because no such order was given. Up to that point, Officers Peitzmeier and Alvarez

had attempted only to engage in normal conversation with Moore and had not directed him to do

anything. Although Officer Lenhart has testified that Moore continued to resist arrest after he

punched him for the first time, the only specific failure to obey a direct order came later, after

Moore was rolled on his stomach, and the officers demanded that Moore give them his arms.

14

Although Moore said several times, “I’m not fighting you” and complained about his neck, □□ □□□

present his arms as directed, perhaps because they were wedged beneath him against the stairs.

Under these circumstances, Defendants were entitled to use some amount of force, but the

amount of such force was constrained by the magnitude of the threat or resistance that Moore

presented. See Estate of Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 901 (4th Cir. 2016) (holding

that where the plaintiff presented some risk of flight, the degree of force officers were justified in

using was “the degree reasonably calculated to prevent [plaintiff's] flight’); see also id.

(“Noncompliance with lawful orders justifies some use of force, but the level of justified forced

varies based on the risks posed by the resistance.”). . □

Through this proportional lens, the undisputed evidence, particularly the video recordings,

establish that most of the force Defendants applied was objectively reasonable. Officer Nkodia

only “put his right knee on Plaintiffs lower body because Plaintiff was moving around.” JSUF at

9. He “did not punch Plaintiff.” Jd Officer Peitzmeier likewise did not strike Moore, instead

focusing on restraining him and gaining control over his arms to handcuff him. These exercises

of force were objectively reasonable... See Pegg v. Herrnberger, 845 F.3d 112, 120 (4th Cir. 2017)

(“An efficient, lawful arrest of a resisting suspect that causes the suspect to suffer only de minimis

injuries does not constitute excessive force.”); Estate of Armstrong, 810 F.3d at 907 n.11

(“Applying just enough weight to immobilize an individual continu[ing] to struggle during

handcuffing is not excessive force.”) (citation omitted).

Officer Alvarez’s use of force, while greater than that deployed by Officers Nkodia and

Peitzmeier, was also objectively reasonable. To be sure, punching a suspect in the head, as Officer

Alvarez did here, can be deemed serious enough to constitute excessive force. See, e.g., Thomas

v. Holly, 533 F. App’x 208, 218-19 (4th Cir. 2013) (holding that “punching Plaintiff four or five

15

times in the back of the head with a closed fist and with great force in an effort to arrest him” was

objectively unreasonable). However, Officer Alvarez punched Moore at the moment that Moore

posed the greatest threat, immediately after Moore had swiped at his chest and yelled at him and

before Officer Alvarez and the other officers had subdued Moore. In similar circumstances, the

United States Court of Appeals for the Fourth Circuit has held that an even greater use of force

was objectively reasonable. In Meyers v. Baltimore County, Maryland, 713 F.3d 723 (4th Cir.

2013), the court held that tasing the plaintiff three times did not constitute excessive force when

the plaintiff “was acting erratically, was holding a baseball bat that he did not relinquish until after

he received the second shock, and was advancing toward the officers until the third shock caused

him to fall to the ground.” Jd. at 733. While Moore presented less of a threat than the plaintiff in

Meyers, Officer Alvarez also used less extreme force than the officer in Meyers. Officer Alvarez’s

one or two punches, then, were an objectively reasonable use of force. To the extent Moore’s

claim of excessive force against Officer Alvarez rests on these punches, the Court will grant

summary judgment to Officer Alvarez.

Moore further claims that Officer Alvarez and others used excessive force by pushing his

face into the concrete steps and pressing down on his neck. The body camera footage shows that

after being taken down, Moore ended up face down, with his head in the area where a step met a

concrete wall, and began repeatedly shouting “my neck.” Lenhart Body-Cam at 2:00-2:30.

However, the footage does not show anyone pressing his head into the ground, and Officer

Alvarez’s hold on Moore’s neck was limited to the time period when other officers were

handcuffing Moore. Officer Alvarez stopped holding Moore’s neck once Moore was handcuffed,

and made no attempt to hold him down again.

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In Pegg, the Fourth Circuit held that a similar use of force was objectively reasonable. 845

F.3d at 120. There, after an arrestee tried to yank one of his hands out of the arresting officer’s

grasp, the officer took the arrestee to the ground, where he and another officer “pinned [the

arrestee] and handcuffed him.” Jd. at 116. Like Officer Alvarez, the arresting officer pinned the

arrestee “no longer than the time [the officer] needed to handcuff him,” after which point the

officer “refrained from any further physical contact.” Jd. at 120. Because Officer Alvarez, like

_ the arresting officer in Pegg, used an objectively reasonable amount of force in holding down

Moore’s neck to facilitate handcuffing him, the Court will also grant summary judgment to him

on this aspect of Moore’s claim.

These determinations, however, do not necessitate a grant of summary judgment to the

other officer who punched Moore, Officer Lenhart. “[Florce justified at the beginning of an

encounter is not justified even seconds later if the justification for the initial force has been

eliminated.” Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (citation omitted). In Meyers,

for example, the court held that even though the three initial tasings were objectively reasonable,

the seven subsequent tasings were objectively unreasonable when the plaintiff “fell to the floor,”

officers sat on his back, he “no longer was actively resisting arrest,” and he “did not pose a

continuing threat to the officers’ safety.” Meyers, 713 F.3d at 733-34. In Waterman, the court

held that officers were not objectively unreasonable in firing at a vehicle bearing down on them,

but also that a reasonable factfinder could have found that the officers were unreasonable in

continuing to fire at the vehicle after it had passed them. 393 F.3d at 482.

Here, taking the facts in the light most favorable to Moore, the evidence in the record does

not definitively establish that Officer Lenhart’s three punches to Moore’s head were objectively

reasonable. Although Officer Lenhart has testified that Moore was continuing to resist at the time

17

that he punched Moore, the video evidence does not appear to corroborate his account on this

point. One video, Officer Lenhart’s body camera video, appears to show that by the time Officer

Lenhart punched Moore, he had already been taken down by other officers and had been knocked

on his back, against the stairs. Where the video appears to show that Moore was on his back, being

held down by multiple officers, and with his head not moving at the time that Officer Lenhart

struck him for the second and third times, a reasonable jury could conclude that Moore no longer

posed a threat to the officers at that time. Although the officers testified that Moore resisted arrest

in that he failed to present his arms to be handcuffed, any such resistance would not justify Officer

Lenhart’s multiple punches to Moore’s head because the punches occurred before Moore was

ordered to submit his arms for handcuffing.

Under such circumstances, a reasonable jury could find that Officer Lenhart’s use of force

was unreasonable. In Thomas, officers responded to a report of individuals damaging property

and encountered the plaintiff, who was acting erratically and told them, “I have lost my mind.”

533 F. App’x at 212. Although the Fourth Circuit held that officers acted reasonably in tasing the

unarmed plaintiff multiple times, it concluded that once he was subdued and was pinned down by

multiple officers, a detective who then punched him multiple times in the head acted in an

objectively unreasonable manner. Jd. at 218-19. See also Jones v. Buchanan, 325 F.3d 520, 531

(4th Cir. 2003) (holding that, where the plaintiff was drunk, unarmed, and handcuffed in a police

station, a reasonable jury could find that he did not pose a serious threat and that an officer who

“knocked [him] to the floor and then jumped on him” had used excessive force). Similarly, in

Baker v. City of Hamilton, 471 F.3d 601 (6th Cir. 2006), the court held that, where there was

evidence that the arrestee “was unarmed, was compliant, and was not a significant threat to Officer

Taylor’s safety,” a reasonable factfinder could conclude that “Officer Taylor’s strike to [the

18

arrestee’s] head was unwarranted and unreasonably severe.” Id. at 607. Here, where the video

evidence does not illustrate resistance by Moore at the time that Officer Lenhart punched Moore

in the head, at least as to the second and third punches, a reasonable factfinder could conclude that

these subsequent punches to Moore’s face were unreasonable and excessive under the

circumstances.

At a minimum, the video evidence provides “room for a difference of opinion” that

precludes summary judgment at this time. Cavanaugh, 718 F.3d at 1253; see Waterman, 393 F.3d

at 482 (finding that a reasonable jury could find that officers’ firing of shots continued after they

no longer faced an imminent threat of serious harm). Moreover, the video evidence depicts the

incident from only certain angles and viewpoints, such that there remains a genuine issue of

material fact on whether at the time of the second and third punches, Moore was continuing to

resist in a manner that presented a threat that would justify multiple blows to his head. See Thomas,

533 F. App’x at 218-19. Notably, additional evidence not currently available to the Court could

be presented to a jury at trial. Although the parties have jointly agreed that Officer Lenhart would

testify that at the time of the punches, he believed Moore to be continuing to resist and to present

a threat, and that Defendants’ use of force expert would testify that Officer Lenhart acted

reasonably, Moore has not conceded that such testimony is accurate or credible. Beyond having

an opportunity to review the videos and assess the credibility of these witnesses during live

testimony, a jury would also likely have evidence of Moore’s injuries, through medical records or

other evidence, to shed further light on the reasonableness of Officer Lenhart’s actions. See, e.g.,

Pressly v. Gregory, 831 F.2d 514, 518 (4th Cir. 1987) (rejecting an excessive force claim in part

based on the medical evidence relating to the plaintiffs alleged injuries). The Court will therefore

deny summary judgment to Officer Lenhart on the excessive force claim.

19

Finally, Moore asserts that Officers Peitzmeier and Nkodia could still be held liable as

aiders and abettors of excessive force committed by other officers. An individual may be held

liable for a tort if that person, “by any means (words, signs, or motions) encouraged, incited, aided

or abetted the act of the direct perpetrator of the tort.” Duke v. Feldman, 226 A.2d 345, 347 (Md.

1967). The aider or abettor must have taken this action “knowing that the . . . tortious[] act would

be the natural consequence of his conduct.” Saadeh v. Saadeh, Inc., 819 A.2d 1158, 1171 (Md.

2003). In addition, and more fundamentally, there must be both a direct perpetrator of the tort and

an underlying tortious activity. Alleco Inc. v. Harry & Jeanette Weinberg Found., Inc., 665 A.2d

1038, 1050 (Md. 1995).

This final requirement precludes a finding that Officers Peitzmeier and Nkodia aided and

abetted Officer Alvarez because, as discussed above, the Court will grant summary judgment to

Officer Alvarez on the excessive force claims against him. As for Officer Lenhart, the evidence

does not support a finding that the other officers encouraged, incited, or aided him as he punched

Moore. The body camera footage, which includes audio, reveals no evidence that the officers

approached Moore with a plan to engage in excessive force; rather, the officers’ discussion prior

to the arrest related only to the need to arrest Moore. During the arrest, no officers made statements

encouraging others to punch Moore. Moreover, the rapidity with which the events unfolded—

confirmed by the videos—precludes a finding that Officers Peitzmeier and Nkodia realized that in

the few seconds when they were justifiably holding down Moore after he assaulted Officer

Alvarez, the natural consequence would be that Officer Lenhart would punch Moore in the face -

after he was subdued. Indeed, Officers Peitzmeier and Nkodia provided undisputed testimony that

they were unable to see what the other officers were doing during the arrest. Where Moore has

failed to identify evidence showing that Officers Peitzmeier and Nkodia encouraged or incited

20

excessive force, or restrained Moore with the knowledge that their actions would lead to excessive

force, the Court will grant summary judgment to Defendants on the aiding and abetting theory of

liability.

2. Qualified Immunity

In addition to arguing that the force employed was objectively reasonable, Defendants offer

the additional argument that, even if it was unreasonable, they are nevertheless entitled to summary

judgment on the excessive force claim based on qualified immunity. Because the Court has already

granted summary judgment to Officers Alvarez, Peitzmeier, and Nkodia on the excessive force

claim, it need only address whether Officer Lenhart is entitled to qualified immunity.

Qualified immunity shields government officials performing discretionary functions “from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982); Henry y. Purnell, 501 F.3d 374, 376-77 (4th Cir. 2007). When qualified

immunity is asserted, a court must consider two questions: (1) whether the facts, viewed in the

light most favorable to the plaintiff, show that the official violated a constitutional right; and (2)

“whether the right was clearly established,” that is, “whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.

194, 201 (2001); Henry, 501 F.3d at 377. For qualified immunity to apply, only one of the

questions has to be resolved in favor of the defendant. See Henry, 501 F.3d at 377. Courts may

address the questions in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). As the Court

has denied summary judgment to Officer Lenhart on Moore’s claim under the Fourth Amendment

for excessive force during his arrest, the Court next considers whether Moore’s right to be free

from such force was “clearly established” at the time of the incident. See Harlow, 457 U.S. at 818.

21

In determining whether a right is “clearly established,” the Court considers whether “the

contours of the right are sufficiently clear that a reasonable officer would understand that what he

is doing violates that right” and was thus “on notice” that the conduct violated established law.

E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 185 (4th Cir. 2018). Even if no court has found that

the specific conduct in question violated an individual’s rights, “if a general constitutional rule

already identified in the decisional law applies with obvious clarity to the specific conduct in

question,” the right may be clearly established. Jd. However, “courts must not ‘define clearly

established law at a high level of generality.’” Jd. (citations omitted) (quoting Mullenix v. Luna,

136 S. Ct. 305, 308 (2015)); see White v. Pauly, 137 S. Ct. 548, 552 (2017). The Court must

“identify a case where an officer acting under similar circumstances . . . was held to have violated

the Fourth Amendment.” White, 137 S. Ct. at 552; Safar v. Tingle, 859 F.3d 241, 246 (4th Cir.

2017). Although the facts of such a case need not be “identical” to the present facts, Safar, 859

F.3d at 248, it should be “obvious” that the case applies to the facts, White, 137 S. Ct. at 552.

In assessing this question, a court “first examines ‘cases of controlling authority in [this]

jurisdiction,’” here, the Supreme Court, the Fourth Circuit, and the Court of Appeals of Maryland.

Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 538 (4th Cir. 2017) (quoting Amaechi v. West, 237

F.3d 356, 363 (4th Cir. 2001)). If that authority is not dispositive, the Court may still consider “‘a

consensus of cases of persuasive authority’ from other jurisdictions” as a basis to find that conduct

was barred by clearly established law. Booker, 855 F.3d at 539 (quoting Owens ex rel. Owens v.

Lott, 372 F.3d 267, 280 (4th Cir. 2004)). When considering whether there is such a “consensus,”

a court considers not only the broad holdings of those cases but also the specific requirements

adopted by each court. See Owens ex rel. Owens v. Lott, 372 F.3d 267, 280 (4th Cir. 2004).

22

Here, there is controlling precedent holding that assaulting an unarmed, subdued suspect

or arrestee violates the Fourth Amendment. In Kane v. Hargis, 987 F.2d 1005 (4th Cir. 1993) (per

curiam), the court held that even where the arrestee was suspected of a crime, had been resisting

arrest, and was not yet handcuffed, the fact that the arrestee posed no threat to the officer made his

decision to “push her face into the pavement with such force that her teeth cracked” unreasonable.

Id. at 1008. In Jones, the Fourth Circuit stated that courts “have consistently held that officers

using unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen, do

not act in an objectively reasonable manner and, thus, are not entitled to qualified immunity.”

Jones, 325 F.3d at 532. It went on to deny qualified immunity to the police officer in that case

who had, taking the facts in the light most favorable to the plaintiff, knocked down and jumped on

top of an unarmed, handcuffed individual. Jd. Although Defendants attempt to distinguish Jones

on the basis that there the Graham factors were more favorable to the plaintiff, such subtle factual

distinctions do not change the legal principle established by the Fourth Circuit. In conjunction

with cases from a number of other circuits that have held that using additional force after the

arrestee no longer poses a threat is unreasonable, see Jones, 325 F.3d at 533-34 (collecting cases),

these cases illustrate that at the time of Moore’s arrest, it was clearly established that striking an

arrestee who was already under control violates the Fourth Amendment. Consequently, the Court

will deny qualified immunity to Officer Lenhart.

D. Battery

Moore also asserts a claim of battery against all Defendants based on the same facts

supporting his excessive force claims, and Defendants have moved for summary judgment on that

claim. Under Maryland law, battery is the “unlawful application of force to the person of

another.” Snowden vy. State, 583 A.2d 1056, 1059 (Md. 1991). An officer is not liable for battery,

23

however, for using a reasonable amount of force when effectuating a lawful detention or

arrest. See Ashton v. Brown, 660 A.2d 447, 471 n.24 (Md. 1995); Busch v. State, 426 A.2d 954,

958 (Md. 1981); Hines v. French, 852 A.2d 1047, 1055-56 (Md. Ct. Spec. App. 2004) (holding

that officers were entitled to judgment as a matter of law on claims of battery, false imprisonment,

and false arrest where they had legal justification to arrest the plaintiff). Because the Court has

granted summary judgment to Officers Peitzmeier, Alvarez, and Nkodia with respect to Moore’s

excessive force claim, it will also grant them summary judgment as to Moore’s battery claim.

Conversely, because the Court has found that there is a genuine issue of material fact whether

Officer Lenhart used excessive force and accordingly denied summary judgment on the excessive

force claim against him, it will likewise deny summary judgment to Officer Lenhart on the battery

claim.

E. Malicious Prosecution

Moore has asserted a claim of malicious prosecution against Officer Peitzmeier only. Both

Officer Peitzmeier and Moore seek summary judgment on this claim. The elements of malicious

prosecution are “(1) the defendant instituted a criminal proceeding against the plaintiff; (2) the

criminal proceeding was resolved in the plaintiffs favor; (3) the defendant did not have probable

cause to institute the proceeding; and (4) the defendant acted with malice or a primary purpose

other than bringing the plaintiff to justice.” Okwa v. Harper, 757 A.2d 118, 130 (Md. 2000). The

first two elements are not in dispute here: Officer Peitzmeier filed a Statement of Charges against

Moore after the arrest that included disorderly conduct, second-degree assault, and resisting arrest,

and these charges were all abandoned through a nolle prosequi. The parties dispute, however,

whether there was probable cause to bring these charges and whether there is evidence of malice

on the part of Officer Peitzmeier. Both elements are required to establish malicious prosecution.

24

Walker v. American Sec. & Trust Co. of Wash., D.C., 205 A.2d 302, 308 (Md. 1964) (“There must

be both malice and a want of probable cause to maintain an action for malicious use of process.”).

As discussed above, the Court has found -that there was probable cause to arrest Moore for

disorderly conduct and assault, such that he may not maintain claims of malicious prosecution

based on these charges.

The Court does not find at this juncture, however, that no reasonable jury could find a lack

of probable cause to arrest Moore for resisting arrest. In Maryland, resisting arrest is a statutorily

enacted misdemeanor offense. Md. Code Ann., Crim. Law § 9-408(b) (“A person may not

intentionally . . . resist a lawful arrest.””). The elements of the Maryland offense of resisting arrest

are that (1) a law enforcement officer attempted to arrest the defendant; (2) the defendant knew

that a law enforcement officer was attempting to make an arrest; and (3) the defendant refused to

submit to the arrest and resisted by force.” United States v. Aparicio-Soria, 740 F.3d 152, 155

(4th Cir. 2014). The force requirement contained in the third element requires that the defendant

engage in “offensive physical contact” against another in the course of resisting arrest. Nicolas v.

State, 44 A.3d 396, 409 (Md. 2012); Rich v. State, 44 A.3d 1063, 1077 (Md. Ct. Spec. App. 2012).

Moore’s initial shove of Officer Alvarez cannot constitute the necessary force because at that point

Moore had not been informed that he was going to be arrested. Defendants had asked general

questions of him, such as “You O.K.?” and “What’s the word, man?,” but did not tell him that they

were going to arrest him. Peitzmeier Body-Cam at 1:35-1:40, 3:10-3:20. While Officer Peitzmeier

has testified that he believed there was probable cause to arrest Moore for resisting arrest based on

Moore’s subsequent “withholding of his arms” and failure to present them for handcuffing, JSUF

at 7, such an action does not constitute a use of force. Indeed, the body camera footage does not

show that Moore used force while refusing to give up his arms. Based on this evidence, a

25

reasonable jury could conclude that Moore used no force. such that there was no probable cause

to charge him with resisting arrest. See Padula, 656 F.3d at 601 (stating that the determination of

whether there was probable cause for an arrest must be made by a jury if there was “room for a

difference of opinion concerning the facts or the reasonable inferences to be drawn from them”).

As for the element of malice, “if the jury is permitted under the evidence . . . to find a lack

of probable cause, .. . it may also, if it chooses, infer the existence of malice.” Exxon Corp. v.

_ Kelly, 381 A.2d 1146, 1153 (Md. 1978). Particularly where Moore had disobeyed orders issued

during the first call, and Officer Peitzmeier observed Moore strike Officer Alvarez, the Court

cannot foreclose a finding of malice. Because a reasonable jury could find that all the elements of

malicious prosecution were met, the Court will deny summary judgment to Officer Peitzmeier as

to the malicious prosecution claim relating to the resisting arrest charge. Equal Emp ’t Opportunity

Comm’n v. McLeod Health, Inc., 914 F.3d 876, 880 (4th Cir. 2019) (citation omitted) (“[I]f the

evidence would permit a jury to find in the non-movant’s favor on a disputed question of material

fact, summary judgment is inappropriate.”). Likewise, because the question of malice is properly

a jury question, Exxon Corp., 381 A.2d at 1152, the Court will also deny Moore’s Motion for

Partial Summary Judgment as to this count.

Il. Motion to Strike

Because some of Moore’s claims continue beyond the summary judgment stage, the Court

must also resolve Defendants’ Motion to Strike Plaintiff's Rule 26(a)(2)(C) Disclosures and

Exclude Such Testimony at Trial, see ECF No. 46, which arises out of Moore’s allegedly untimely

and inadequate disclosure of the physicians he intends to call at trial as expert witnesses.

Federal Rule of Civil Procedure 26(a)(2) sets out the requirements for a party to disclose

“the identity of any witness it may use at trial to present” expert evidence. Fed. R. Civ. P.

26

26(a)(2)(A). The specific requirements for disclosing witnesses who, like the treating physicians

at issue here, are not “retained or specially employed to provide expert witness testimony in the

case,” are provided in Rule 26(a)(2)(C). Fed. R. Civ. P. 26(a)(2)(B)-(C); see also Sullivan v. Glock,

Inc., 175 F.R.D. 497, 500 (D. Md. 1997) (“[A] treating physician is the quintessential example of

a hybrid witness for whom no Rule 26(a)(2)(B) disclosures are required... .”). In particular, the

party intending to call these witnesses must provide “the subject matter on which the witness is

expected to present evidence” and “a summary of the facts and opinions to which the witness is

expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). Moreover, this disclosure must be provided “at

the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).

Here, Moore’s Rule 26(a)(2)(C) disclosures were plainly late. The Court’s Amended

Scheduling Order required Moore’s Rule 26(a)(2) disclosures be submitted by February 4, 2019.

See Nov. 7, 2018 Marginal Order, ECF No. 26. However, Moore failed to submit these disclosures

until May 14, 2019, over three months after the Court’s deadline. Moore’s arguments that he

nevertheless substantially complied with Rule 26(a)(2)(C) are unavailing. While Moore claims

that Defendants have been aware of the fact that Moore received medical treatment since the night

of his arrest, this knowledge does not include the identity of Moore’s treating doctors and the facts

and opinions to which they plan to testify. Nor can Moore’s March 1, 2019 disclosure cure his

failure to comply: in response to an interrogatory demanding “all liability and damages experts

whom you propose to call as witnesses,” Moore simply answered, “Please see attached medical

records produced under FRCP 33(d). Plaintiff plans to call the treating physicians as expert

witnesses in this matter.” PI.’s Answers to Def. Alvarez’s Interrogatories at 2, Mot. Strike Ex. 2,

ECF No. 46-2. However, there were “[a]pproximately 20 providers” noted in the referenced

medical records, Mot. Strike at 4, meaning that it was unclear which physicians Moore actually

27

intended to call. Moreover, this reference included no information as to the facts and opinions to

which the physicians intended to testify. Finally, this inadequate disclosure was nearly a month

late.

Rule 37 sets out the proper sanctions for failures to disclose required information. In

particular, Rule 37(c)(1) provides that “[i]fa party fails to provide information or identify a witness

as required by Rule 26(a) . . . the party is not allowed to use that information or witness to supply

evidence . . . at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ.

P. 37(c)(1). In assessing whether either of these circumstances is present, district courts are to “be

guided by the following 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.” S. States Rack & Fixture, Inc. v.

Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). The last of these factors “relates

primarily to the substantial justification exception,” while the first four “relate mainly the

harmlessness exception.” Jd. However, while the Southern States court was admirably clear in its

exposition of the relevant factors, the Fourth Circuit has since held that district courts need not

“tick through each of the Southern States factors.” Wilkins v. Montgomery, 751 F.3d 214, 222 (4th

Cir. 2014).

Guided by these factors, the Court finds that Moore’s failure to disclose expert witnesses

was harmless. Moore’s failure to properly disclose the identity of his treating physicians did not

leave Defendants unfairly surprised, and to the extent there was surprise, they had the ability to

cure that surprise. On the one hand, a court may admit evidence that a party failed to disclose

adequately where the other party knew that the issue to which the evidence related “was a central

28

issue in the case.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 193 (4th Cir. 2017). On the other

hand, a court may exclude undisclosed evidence that “presented an entirely new factual basis” for

the offering party’s defense. Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 397-98 (4th

Cir. 2014). Moore’s Rule 26(a)(2)(C) disclosure more closely aligns with the former case than the

latter. Defendants had been on notice since the filing of the Complaint that Moore was alleging

that his interaction with Defendants had given rise to various medical issues, including “acute

stress disorder, bruises, swelling and lacerations to the face, neck and spinal injuries.” Compl. at

26, ECF No. 1. And since March 1, 2019—admittedly after the disclosure deadline—Defendants

have been aware that Moore planned to call his treating physicians and had access to the medical

records relating to those treating physicians. In light of this information, Defendants should not

have been unduly surprised by Moore’s Rule 26(a)(2)(C) disclosures.

Moreover, Defendants had an opportunity to cure their surprise. After Defendants

communicated that they believed Moore’s Rule 26(a)(2)(C) disclosures to be inadequate, Moore’s

counsel asked whether Defendants were seeking to depose the treating physicians and suggested

that they could reach an agreed-upon solution. Defendants, however, demurred and instead

responded that they would be filing a motion to strike. As Moore points out, the Fourth Circuit

‘has treated such a failure to depose as weighing in favor of the curability of a violation. See

Bresler, 855 F.3d at 194 (“Wilmington did not seek to depose Pugh or to take any other steps to

mitigate the purported surprise caused by the plaintiffs’ delayed disclosure ... .”). Defendants

attempt to distinguish Bres/er on the ground that in that case the proponent of-the disputed exhibit

had properly filed an expert designation and report, while here Moore did not. This distinction

merely differentiates the two cases as to how the proponent violated Rule 26(a)(2)(C). It does not

29 .

make any less significant Defendants’ failure to request depositions of the treating physicians when

offered. in light of this failure, the Court finds this factor to weigh in Moore’s favor as well.

The final two factors relating to the harmlessness of the failure to disclose also weigh in

favor of Moore. Allowing Moore’s treating physicians to testify—and allowing them to be |

deposed beforehand—will not disrupt the trial in this case, as the trial has not yet been scheduled.

Moreover, as Moore notes, the evidence at issue is “critical in that it provides the basis for

Plaintiffs claim for damages.” Pl.’s Opp’n Mot. Strike at 8, ECF No. 47. As discussed above, it

may also be relevant on the issue of liability. See supra Part I.C.1. Because these factors all weigh □

in favor of Moore, the Court declines to exclude testimony from the treating physicians referenced

in Moore’s Rule 26(a)(2)(C) disclosure.

. 30

CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment, ECF No. 55, will

be GRANTED IN PART and DENIED IN PART. The Motion will be granted as to all Defendants

on the unlawful seizure, negligence, and gross negligence counts; as to Officers Peitzmeier,

Nkodia, and Alvarez with respect to the excessive force and battery counts; and as to Officer

Peitzmeier with respect to the malicious prosecution count to the extent it relates to the disorderly

conduct and assault charges. The Motion will be denied as to the excessive force and battery

counts against Officer Lenhart and the malicious prosecution count against Officer Peitzmeier as

it relates to the resisting arrest charge. Because all claims against Officers Alvarez and Nkodia

will be dismissed, they will be DISMISSED as defendants. Moore’s Motion for Summary

Judgment, ECF No. 56, will be DENIED. Defendants’ Motion to Strike, ECF No. 46, will also be

DENIED. A separate Order shall issue.

Date: January 7, 2020 Se

THEODORE D. CHUAN

United States District Jud

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