Horowitz v. Sherman

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

ROBERT HOROWITZ, et al.

:

v. : Civil Action No. DKC 19-2459

:

BRUCE SHERMAN, et al.

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this pro se

civil rights case are (1) a motion for summary judgment filed by

Defendant Sheriff’s Deputy Kevin Brown, (ECF No. 78), and (2) a

motion to strike or, in the alternative, to seal filed by Defendant

Sheriff’s Deputy Nelson Rosales, (ECF No. 92). The issues have

been fully briefed, and the court now rules, no hearing being

necessary. Local Rule 105.6. For the following reasons, the

motion for summary judgment will be granted and the motion to

strike or seal will be granted in part and denied in part.

I. Factual Background

In November 2014, Selzer Gurvitch Rabin Wertheimer & Polott,

P.C. (“Selzer”) obtained a judgment against Plaintiff Robert

Horowitz and his wife Cathy Horowitz for unpaid legal fees in the

Circuit Court for Montgomery County, Maryland. An earlier

memorandum opinion outlines the protracted history of Selzer’s

collection efforts. (See ECF No. 30, at 2-4). Ultimately, after

Cathy and Robert Horowitz failed to comply with an appraiser order

and were found in contempt, the Circuit Court issued a body

attachment order for the arrest of Robert Horowitz on August 2,

2016. (ECF No. 78-2, at 1-2).

According to Deputy Brown, multiple unsuccessful attempts to

make contact with Mr. Horowitz were made by deputies in the

following weeks. (ECF No. 78-3, at 8:4-20 (Brown Depo.)).1 On

August 25, Deputies Brown and Rosales were ordered to try again.

(ECF No. 78-3, at 8:15-9:8, 64:10-65:1; 78-8, at 2 (Arrest

Summary)). Both Deputies testify that they did not know of Mr.

Horowitz before receiving his body attachment order. (ECF Nos.

78-3, at 7:9-14, 9:17-10:7; 78-4, at 9:3-6 (Rosales July Depo.);

78-5, at 5:17-6:1 (Rosales August Depo.)). Nor were they provided

any personal information about him or special directions for his

arrest. (ECF Nos. 78-3, at 9:9-14, 13:3-7; 78-4, at 15:5-7,

112:21-113:21; 78-5, at 6:2-4). Around midday, (ECF Nos. 40-2,

¶ 5 (Rosales Affidavit); 40-3, ¶ 7 (Brown Affidavit)), they went

to Mr. Horowitz’s neighborhood and parked two doors down, (ECF

Nos. 78-3, at 12:16-17, 28:17-20; 78-4, at 9:14-16). Within

fifteen-to-twenty minutes, they saw Mr. Horowitz walk out of his

home toward his mailbox. (ECF Nos. 78-3, at 12:19-20, 31:1-14;

1 Deposition citations are to the transcript page number,

rather than the ECF page number.

78-4, at 10:17-21). At this point, the Defendants’ versions of

events diverges somewhat from Mr. Horowitz’s.

The Defendants testify that Deputy Rosales approached Mr.

Horowitz, calling out to him by name and identifying himself as an

employee of the Montgomery County Sheriff’s Office (“MCSO”). (ECF

Nos. 78-3, at 31:18-32:3, 51:13-21; 78-4, at 11:1-4). Mr. Horowitz

then turned around and “started to try to run into [his] house.”

(ECF No. 78-3, 52:7-10; see also ECF No. 78-4, at 11:4-5, 18:15-

17). According to Deputy Rosales, he caught Mr. Horowitz and

grabbed his left arm, but both men were still running and their

“feet got tangled up and that’s when [Mr. Horowitz] went to the

ground.” (ECF No. 78-4, at 29:5-10). According to Deputy Brown,

Mr. Horowitz tussled with or resisted Deputy Rosales and then fell

forward onto the ground. (ECF Nos. 78-3, at 52:10-16, 53:4-54:18).

Deputy Brown then grabbed Mr. Horowitz’s free arm and either Deputy

Rosales alone or the two Deputies working together handcuffed Mr.

Horowitz. (ECF Nos. 78-3, at 52:15-53:3; 78-4, at 30:5-10).

According to Mr. Horowitz, he had gotten his mail and was

walking back to his front door when he heard people running toward

him. (ECF No. 78-7, at 79:17-80:1 (Horowitz Depo.)). He didn’t

hear anyone call out to him beforehand. (Id., at 80:21-81:14).

“As [he] looked up, coming in front of [him] and from the right,

Deputy Rosales grabbed [him] and tackled [him].” (Id., at 80:1-

3, 85:21-86:1). More specifically, Deputy Rosales came up in front

of Mr. Horowitz, grabbed his left arm with both hands and then

“pulled down, reached around, and drove [him] into the ground,”

shouting “Horowitz mother f---er.” (Id., at 86:4-88:20, 92:1-17,

93:4-13). The whole encounter lasted a couple seconds. (Id., at

90:17-91:3). Separately, Mr. Horowitz asserts that Deputy Brown

“did all the handcuffing.” (Id., at 84:15-20, 94:3-21).

II. Procedural Background

In August 2019, Mr. Horowitz, his wife Cathy, and their

daughter Elizabeth, filed this suit without legal representation

against the MCSO, seven MCSO deputies (including Deputies Brown

and Rosales), Selzer, and two Selzer attorneys. (ECF No. 1). In

May 2020, all claims were dismissed with prejudice except a

potential excessive force claim by Mr. Horowitz against Deputies

Brown and Rosales. (ECF Nos. 30; 31). In September 2020, Mr.

Horowitz was permitted to amend his complaint to allege more

clearly that the Deputies tackled him without justification and

handcuffed him too tightly. (ECF Nos. 36, at 9-12; 38 (amended

complaint)). In November 2020, before discovery had commenced,

Deputies Brown and Rosales were granted partial summary judgment

on Mr. Horowitz’s handcuffing allegations on qualified immunity

grounds. (ECF No. 44, at 4-9).

Mr. Horowitz’s Section 1983 excessive force tackling claim is

the sole claim remaining in the case. After discovery was largely

completed, although disputes continue (see, e.g., ECF No. 102),

Deputy Brown filed the pending motion for summary judgment in

September 2021, (ECF No. 78). Mr. Horowitz opposed and Officer

Brown replied. (ECF Nos. 91; 93). Deputy Rosales separately moved

to strike in part, or seal entirely, an exhibit attached to Mr.

Horowitz’s opposition. (ECF No. 92). Mr. Horowitz opposed and

Deputy Rosales replied. (ECF Nos. 94; 95). Deputy Rosales did

not, however, move for summary judgment and Mr. Horowitz’s case

against him will proceed to trial.

III. Motion for Summary Judgment

A. Standard of Review

A motion for summary judgment will be granted only if there

exists no genuine dispute as to any material fact and the moving

party is entitled to judgment as a matter of law. See Fed.R.Civ.P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[S]ummary

judgment should be granted only when it is perfectly clear that no

issue of material fact exists.” Raynor v. Pugh, 817 F.3d 123, 129

n.2 (4th Cir. 2016) (quotation omitted). A material fact is one

that “might affect the outcome of the suit under the governing

law[.]” Liberty Lobby, 477 U.S. at 248. A dispute about a material

fact is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Id. A court

must view the facts and the reasonable inferences drawn therefrom

“in the light most favorable to the party opposing the motion,”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (quotation omitted), but “a party cannot create a

genuine dispute of material fact through mere speculation or

compilation of inferences,” Shin v. Shalala, 166 F.Supp.2d 373,

375 (D.Md. 2001).

To prevail on a motion for summary judgment, the moving party

generally bears the burden of showing that there is no genuine

dispute as to any material fact. No genuine dispute of material

fact exists, however, if the nonmoving party fails to make a

sufficient showing on an essential element that he bore the burden

to prove. Celotex, 477 U.S. at 322–23. Therefore, on those issues

on which the nonmoving party has the burden of proof, it is his

responsibility to confront the summary judgment motion with an

“affidavit or other evidentiary showing” demonstrating that there

is a genuine issue for trial. See Ross v. Early, 899 F.Supp.2d

415, 420 (D.Md. 2012), aff’d, 746 F.3d 546 (4th Cir. 2014).

B. Analysis

“The Fourth Amendment prohibits law enforcement officers from

using excessive or unreasonable force in the course of making an

arrest or otherwise seizing a person.” Betton v. Blue, 942 F.3d

184, 191 (4th Cir. 2019). Courts analyze excessive force claims

using “an ‘objective reasonableness’ standard,” looking to the

totality of the circumstances of each case. Yates v. Terry, 817

F.3d 877, 884-85 (4th Cir. 2016) (quoting Graham v. Connor, 490

U.S. 386, 395 (1989)). They therefore “do not consider the

officer’s intent or motivation, [but] ask whether a reasonable

officer in the same circumstances would have concluded that a

threat existed justifying the particular use of force[.]” Hupp v.

Cook, 931 F.3d 307, 321-22 (4th Cir. 2019) (cleaned up). This

requires balancing “the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the importance of

the governmental interests alleged to justify the intrusion.”

Tennessee v. Garner, 471 U.S. 1, 8 (1985) (quotation omitted).

Deputy Brown is entitled to summary judgment on Mr. Horowitz’s

remaining excessive force claim against him. The sole theory of

liability for that claim is that excessive force was used against

Mr. Horowitz when he was tackled. All parties agree, however,

that Deputy Rosales tackled Mr. Horowitz, not Deputy Brown.

Because Deputy Brown did not use any force against Mr. Horowitz,

he cannot be liable on an excessive force claim. Nor can he be

vicariously liable for Deputy Rosales’ actions, as Mr. Horowitz

suggests by pointing to Deputy Brown’s possible supervisory role

over Officer Rosales and arguing that Deputy Brown led and

choreographed the “ambush.” (ECF No. 91, at 2 (citing ECF No. 78-

3, at 7:7), 5). Even if these references could satisfy Mr.

Horowitz’s burden, supervisory liability is not recognized under

Section 1983. See Love–Lane v. Martin, 355 F.3d 766, 782 (4th

Cir.2004).

Mr. Horowitz’s opposition otherwise sidesteps the merits of

the excessive force tackling claim and attempts either to introduce

new claims or revive claims that this court has already resolved.

He argues that Deputy Brown conducted improper surveillance,

failed to intervene to stop the use of excessive force, and

fastened his handcuffs too tightly. (ECF No. 91, at 5-8). He

also argues that Deputy Brown unlawfully endangered him, in

violation of the Eighth Amendment prohibition on cruel and unusual

punishment, “by portraying [him] to other inmates as a person with

a Jewish last name who was reluctant to reveal his religion in a

setting where it is notoriously dangerous to do so.” (Id., at 6

& n.2).

First, Mr. Horowitz has never mentioned improper surveillance

or endangerment or that Deputy Brown had a duty to intervene. The

only claim pending in this case is styled as a “42 U.S.C. § 1983 –

Excessive Force” claim. (ECF No. 38, at 21). Second, even if Mr.

Horowitz could proceed with these new claims, none would succeed.

Any surveillance by Deputy Brown could not have intruded on any

reasonable privacy expectation because it was conducted from a

public street. See Leaders of a Beautiful Struggle v. Balt. Police

Dep’t, 2 F.4th 330, 340-41 (4th Cir. 2021) (“[P]eople have no

reasonable expectation of privacy” in what they “voluntarily

convey” to anyone who wants to look.). Mr. Horowitz has not shown,

as required under the Eighth Amendment, that he was jailed “under

conditions posing a substantial risk of serious harm.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994). Nor did Deputy Brown have the

necessary opportunity to intervene to stop Deputy Rosales because,

as Mr. Horowitz’s own testimony suggests, the entire encounter

with Deputy Rosales lasted a couple seconds, (ECF No. 78-7, at

90:17-91:3). See Randall v. Prince George’s Cnty., 302 F.3d 188,

204 (4th Cir. 2002). Lastly, the Deputies have qualified immunity

from Mr. Horowitz’s handcuffing theory of liability, as this court

held in November 2020. (ECF Nos. 44, at 9). Mr. Horowitz cannot

shoehorn the pending motion into a reconsideration of that earlier

decision.

Deputy Brown’s motion for summary judgment on Mr. Horowitz’s

excessive force claim against him will be granted.

IV. Motion to Strike or Seal

Under Fed.R.Civ.P. 5.2(e), a court may “require redaction of

additional information” beyond that otherwise mandated under

Rule 5.2. A motion to strike or seal must comply with Local Rule

105.11, which requires: “(a) proposed reasons supported by

specific factual representations to justify the sealing and (b) an

explanation why alternatives to sealing would not provide

sufficient protection.” This rule endeavors to protect the common

law right to inspect and copy judicial records and documents, Nixon

v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978), while

recognizing that competing interests sometimes outweigh the

public’s right of access, In re Knight Publ’g Co., 743 F.2d 231,

235 (4th Cir. 1984).

In his opposition to Deputy Brown’s motion for summary

judgment, Mr. Horowitz attached an excerpt of Deputy Rosales’

August 2021 deposition. A stipulated order requires that all

“sensitive personal information, medical information, or employee

personnel information which is in fact confidential” be filed under

seal. (ECF Nos. 49, ¶¶ 1(a), 3; 50). Deputy Rosales maintains

that the deposition excerpt includes sensitive medical and

personnel information. (ECF No. 92, ¶ 5). He seeks either to

exclude all parts of the excerpt that Mr. Horowitz does not rely

on or to seal the excerpt entirely. (Id., ¶¶ 7-9).

Deputy Rosales’ motion will be granted in part and denied in

part. The deposition includes medical information that the court

assumes is confidential and should remain so. It is far from

clear, however, that the personnel information is confidential

because Deputy Rosales acknowledges that a “proceeding” was held

to investigate the matter. The Deputy has not done enough to

justify sealing that information. Nor has he made any effort to

justify excluding other non-sensitive information from the record.

The motion will therefore be granted as to Deputy Rosales’ medical

information and otherwise denied. The court will prepare a version

of the deposition excerpt in which the medical information is

redacted and instruct the clerk to docket it.

V. Conclusion

For the foregoing reasons, Deputy Brown’s motion for summary

judgment will be granted and Deputy Rosales’ motion to strike or

seal will be granted in part and denied in part. A separate order

will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge