Boyle v. Azzari

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

*

KRISTEE ANN BOYLE, individually,

and as Personal Representative of the Estate *

of PEYTON ALEXANDER HAM

*

Plaintiff,

v. * Case No.: GJH-22-0884

JOSEPH CHARLES AZZARI JR., *

Defendant. *

* * * * * * * * * * * * *

MEMORANDUM OPINION

Plaintiff Kristee Ann Boyle, individually and in her capacity as personal representative of

the estate of Peyton Alexander Ham (“Decedent”), brings this action against Defendant Joseph

Azzari Jr. alleging violations of Decedent’s Fourth and Fourteenth Amendment rights under 42

U.S.C. § 1983, (Count I against Defendant in his individual capacity); various state tort claims:

Assault (Count II); Battery (Count III); and Intentional Infliction of Emotional Distress (Count

IV); and a survival action under Md. Code Ann., Est. & Trusts §7-401(y) (Count V). Pending

before the Court is Defendant’s Motion to Dismiss or, in the Alternative, Motion for Summary

Judgment. ECF No. 10.1 No hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the

following reasons, Defendant’s Motion is granted.

1 Also pending before the Court is Defendant’s Consent Motion for Extension of Time to File Response to

Complaint, ECF No. 9, and Defendant’s Consent Motion for Extension of Time to File Reply to Plaintiff’s

Response, ECF No. 14, both of which are granted.

I. BACKGROUND2

Plaintiff Kristee Boyle is the mother of Peyton Alexander Ham, and the personal

representative of the estate of Peyton Alexander Ham. ECF No. 1 at 1.3 Defendant Joseph

Azzari, Jr. is a Trooper with the Maryland State Police. Id. ¶ 7.

On April 13, 2021, Defendant Azzari was on duty as a Maryland State Trooper, when he

received a county-wide dispatch reporting a man with a gun in a neighborhood nearby his

location. Id. ¶¶ 7–10. According to the Complaint, Defendant Azzari responded to the “wrong

address,” arriving at the house next door to the address identified by dispatch, and drove there

without activating his lights, sirens, or in-car camera. Id. ¶¶ 11–16. Upon exiting his vehicle,

Defendant observed Decedent on the neighboring property and believed him to be holding a

handgun which the Decedent pointed directly at Defendant Azzari. Id. ¶¶ 17–18. The gun was

actually a toy gun. Id. ¶ 19.

Defendant Azzari shot approximately eleven rounds from his firearm at Decedent, at least

one of which injured him. Id. ¶¶ 20–22. Decedent was still conscious and able to communicate.

Id. ¶ 22. Defendant then reloaded his firearm and yelled and screamed at Decedent, at times

getting close enough to touch the Decedent. Id. ¶ 26. Defendant Azzari observed a knife in the

possession of Decedent and observed that Decedent had an injury to his right arm. Id. ¶¶ 28, 30.

Defendant then stopped approximately fifteen to twenty-five feet from Decedent with his firearm

pointed at Decedent while he was on his knees. Id. ¶¶ 31, 33. At least fifty-seven seconds had

passed from the firing of the first round of shots before Defendant Azzari fired approximately

2 Unless otherwise noted, the following facts are undisputed and construed in the light most favorable to the

nonmoving party.

3 Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated

by that system.

four additional rounds at Decedent, striking him with multiple rounds. Id. ¶¶ 34, 35. Decedent

succumbed to his injuries. Id. ¶ 38.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555 (“a plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of a cause of action's elements will not do.”)).

The purpose of Rule 12(b)(6) “is to test the sufficiency of a complaint and not to resolve

contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v.

City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal quotation marks

omitted). When deciding a motion to dismiss under Rule 12(b)(6), a court “must accept as true

all of the factual allegations contained in the complaint,” and must “draw all reasonable

inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon

Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations and internal quotation marks omitted).

The Court need not, however, accept unsupported legal allegations, see Revene v. Charles Cty.

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations,

Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any

reference to actual events, United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th

Cir. 1979).

Defendant’s Motion is styled as a Motion to Dismiss or, in the Alternative, Motion for

Summary Judgment. If the Court considers materials outside the pleadings, the Court must treat a

motion to dismiss as one for summary judgment. Fed. R. Civ. P. 12(d). When the Court treats a

motion to dismiss as a motion for summary judgment, “[a]ll parties must be given a reasonable

opportunity to present all the material that is pertinent to the motion.” Id. When the moving party

styles its motion as alternatively seeking dismissal or summary judgment and attaches additional

materials, as is the case here, the nonmoving party is, of course, aware that materials outside the

pleadings are before the Court, and the Court can treat the motion as one for summary judgment.

See Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260–61 (4th Cir. 1998).

Summary judgment is appropriate if “materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials,” Fed. R. Civ. P. 56(c), show that there is

“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

party moving for summary judgment bears the burden of demonstrating that no genuine dispute

exists as to material facts. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.

1987). If the moving party demonstrates that there is no evidence to support the nonmoving

party’s case, the burden shifts to the nonmoving party to identify specific facts showing that

there is a genuine issue for trial. See Celotex, 477 U.S. at 322–23. A material fact is one that

“might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass,

242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). 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. Anderson, 477 U.S.

at 248. However, the nonmoving party “cannot create a genuine issue of material fact through

mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213,

214 (4th Cir. 1985). When ruling on a motion for summary judgment, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson,

477 U.S. at 255.

While the Court may rule on a motion for summary judgment prior to commencement of

discovery, see, e.g., Demery v. Extebank Deferred Comp. Plan (B), 216 F.3d 283, 286 (2d Cir.

2000), Federal Rule of Civil Procedure 56(d) “mandates that summary judgment be denied when

the nonmovant has not had the opportunity to discover information that is essential to his

opposition,” Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014) (internal citation and quotation

marks omitted). “To obtain Rule 56(d) relief, the non-moving party bears the burden of showing

how discovery could possibly create a genuine issue of material fact sufficient to survive

summary judgment or otherwise affect the court’s analysis.” Poindexter v. Mercedes-Benz Credit

Corp., 792 F.3d 406, 411 (4th Cir. 2015).

III. DISCUSSION

Defendant Azzari contends that Plaintiff has failed to state a claim upon which relief can

be granted, and that because there is no genuine issue of material fact, Defendant is entitled to

summary judgment as a matter of law. ECF No. 10. The Court evaluates each Count in turn.

A. Fourth and Fourteenth Amendment Claim Under § 1983 (Count I)

Defendant states that he is entitled to summary judgment on Plaintiff’s § 1983 claim

because (1) he was justified in using deadly force and (2) he has qualified immunity. ECF No.

10-2 at 7, 10. A § 1983 claim for excessive force is analyzed under the Fourth Amendment’s

objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 388 (1989). The Fourth

Amendment, made applicable to the states by the Fourteenth Amendment, guarantees citizens the

right to be secure in their persons against unreasonable seizures. Id. at 394.

“The Fourth Amendment’s bar on unreasonable seizures prohibits the use of excessive

force by a police officer in effectuating an arrest.” Harris v. Pittman, 927 F.3d 266, 272 (4th Cir.

2019). There is no question that “apprehension by the use of deadly force is a seizure subject to

the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7

(1985). “To determine the constitutionality of a seizure [the court] ‘must balance 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.’” Garner, 471 U.S. at 7–8 (quoting

United States v. Place, 462 U.S. 696, 703 (1983)).

“Several factors are considered in assessing the governmental interests at stake, including

the ‘severity of the crime at issue, [and] whether the suspect posed an immediate threat to the

safety of the officer or others[.]’” Brockington v. Boykin, 637 F.3d 503, 506 (4th Cir. 2011)

(citations omitted). A police officer may use deadly force if a suspect threatens an officer with a

weapon. Garner, 471 U.S. at 12. The inquiry into excessiveness turns on the information

possessed by the officer the moment the force is employed. Harris, 927 F.3d at 272. “Because

police officers are often forced to make split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving, the facts must be evaluated from the perspective of a reasonable

officer on the scene, and the use of hindsight must be avoided.” Brockington, 637 F.3d at 506–07

(citing Graham, 490 U.S. at 396) (internal quotations omitted). Even where an initial use of

deadly force is reasonable, the repeated use of deadly force may be excessive if circumstances

change in a material way. Harris, 927 F.3d at 268–69.

Qualified immunity protects government officials performing duties within the scope of

their employment from suit under § 1983 as long as their conduct does not “violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Brockington, 637 F.3d at 506. The qualified immunity inquiry is a two-step process which courts

can evaluate in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). At step one, the court

asks, “whether the facts alleged or shown, taken in the light most favorable to the plaintiff,

establish that the police officer's actions violated a constitutional right.” Harris, 927 F.3d at 279

(quoting Meyers v. Balt. Cty., 713 F.3d 723, 731 (4th Cir. 2013)). “At step two, the question is

whether the right at issue was ‘clearly established’ at the time of the officer's conduct.” Id. The

first step of the qualified immunity inquiry, whether Decedent’s constitutional rights were

violated, requires determining whether Defendant’s use of force was reasonable, thus merging

with the Court’s determination of whether Plaintiff has alleged a constitutional violation.

Here, the first round of shots fired by Defendant Azzari were justified by his belief that

decedent was pointing a firearm at him. ECF No. 1 ¶ 21; ECF No. 10-5 (photograph of replica

gun). Seemingly conceding that point, Plaintiff focuses on the second round of shots fired by

Defendant Azzari. See ECF No. 13-1 at 2–3. Plaintiff’s argument centers around the dispute over

whether decedent made it to his feet with the knife and was approaching Defendant Azzari as

Azzari contends or remained on his knees. This dispute is not material. Even taking Plaintiff’s

version of the facts as true, that Decedent was on his knees, never stood up, and never took a step

towards Defendant, it is undisputed that approximately a minute after believing decedent was

pointing a handgun at him and immediately before Defendant Azzari fired the second round of

shots at Decedent, Decedent was armed with a knife. See ECF No. 10-4 at 2 (picture of bloody

knife found by Decedent’s body). It is further undisputed that at the time of the brandishing of

the knife and the second round of shots, Decedent was approximately fifteen to twenty-five feet

away from Defendant. ECF No. 13-1 at 3 n.1; ECF No. 10-2 at 4. Thus, it was reasonable to

conclude that decedent continued to pose an immediate threat of serious injury or death.

Defendant’s belief that Decedent was dangerous, armed with a knife immediately after pointing a

firearm at him, and within approximately twenty feet of Decedent, is enough to justify his use of

deadly force. See Sigman v. Town of Chapel Hill, 161 F.3d 782, 788 (4th Cir. 1998) (officers’

perception that decedent had a knife in his hand and fatally wounding him was not

unreasonable); Anderson v. Russell, 247 F.3d 125, 132 (4th Cir. 2001) (although mistaken,

officer’s decision to use deadly force was reasonable because he believed that Plaintiff was

reaching for a handgun and thus posed a deadly threat). Thus, Defendant acted reasonably in

using deadly force and there was no violation of Decedent’s Fourth Amendment Constitutional

right.4

B. State Tort Claims – Assault, Battery, and Intentional Infliction of Emotional

Distress (Counts II, III, and IV)

Defendant argues that Plaintiff’s state tort claims fail because (1) Defendant acted

reasonably in using deadly force and (2) Defendant has state statutory immunity. ECF No. 10-2

4 Plaintiff argues that in the event the Court is inclined to grant Defendant’s Motion, the Court should instead permit

Plaintiff discovery pursuant to Fed. R. Civ. P. 56(d). Plaintiff’s request for discovery focuses on (1) a photograph

drawn by Defendant that depicts the location of where events took place, from which Plaintiff will use to deduce the

distance between the Decedent and Defendant at the time the second shots took place; (2) a request for the final

autopsy report; (3) a request to depose Defendant Azzari to explain the apparent differences in his two statements;

(4) information as to Defendant’s training; and (4) video footage from the day of the incident. ECF No. 13-1 at 17–

19. The Court will deny this request as none of this information would change the Court’s ruling. Plaintiff has

already asserted that they “have had an opportunity to measure the distance between Defendant and Decedent and

she believes it was approximately seventeen feet[.]” ECF No. 13-1 at 3 n.1. Furthermore, none of these additional

facts would negate the fact that at the time of the second round of shots, Decedent was holding a knife after pointing

what appeared to be a firearm at the Defendant. A witness provided by Plaintiff has corroborated that fact as does

the photograph depicting the bloody knife found beside Decedent’s body.

at 14–17, 18–19. Because the Court agrees that Defendant’s use of force was reasonable, it does

not address the immunity argument.

In Maryland, an assault is “any unlawful attempt to cause a harmful or offensive

contact[.]” Continental Cas. Co. v. Mirabile, 52 Md. App. 387, 398–99 (1982). A battery is “the

intentional unpermitted touching of the body of another that is harmful or offensive.” Doe v.

Archdiocese of Washington, 114 Md. App. 169, 180 (1997). To state a claim for intentional

infliction of emotional distress the conduct alleged must be “extreme and outrageous.”

Continental Cas. Co., 52 Md. App. at 403.

A police officer will only be held liable for an assault or battery if their actions are not

justified. Koushall v. State, 249 Md. App. 717, 728 (2021). “The law enforcement justification

defense provides that if an officer uses only ‘that force reasonably necessary to discharge his

official duties ..., [the officer] is not liable civilly or criminally for the assault or battery that may

result[.]’” Id. (quoting Wilson v. State, 87 Md. App. 512, 519 (1991)). The standard of review is

one of a reasonable police officer similarly situated. Id. at 729. Because this Court has already

determined that Defendant Azzari acted reasonably in using deadly force against the Decedent,

Plaintiff’s assault and battery claims fail, as does her intentional infliction of emotional distress

claim because Defendant Azzari’s reasonable conduct cannot be said to be “extreme and

outrageous.” See Jackson v. Pena, 28 F. Supp. 3d 423, 432 (D. Md. 2014) (plaintiff could not

show extreme and outrageous conduct as required for intentional infliction of emotional distress

claim because the Court determined the officers did not act unreasonably). Thus, the Court will

grant summary judgment to Defendant on Plaintiff’s state tort claims.

C. Count V – Survival Action

Defendant argues that Plaintiff cannot sustain a survival action because there is no

liability for the underlying state tort claims. ECF No. 10-2 at 17. Plaintiff brings her survival

action pursuant to Md. Code Ann., Est. & Trusts § 7-401(y), which permits a personal

representative to commence an action for which the decedent may have commenced or

prosecuted. In “survival actions, recovery is limited to damages that the decedent could have

recovered had the decedent survived and brought the action.” Beynon v. Montgomery

Cablevision Ltd. Pshp., 351 Md. 460, 475 (1998). Because this Court has granted summary

judgment in favor of Defendant on the underlying claims, Plaintiff can not maintain this action,

and it will therefore be dismissed.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion is granted. A separate Order follows.

Date: January 10, 2023 _____/s/_____________________

GEORGE J. HAZEL

United States District Judge