Gill v. Mallow

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SHAWNTAY GILL,

Plaintiff,

v. Civil Action No.: SAG-22-2077

JUSTIN MALLOW,

Defendant.

MEMORANDUM OPINION

Pending in this civil rights case is Defendant Justin Mallow’s Motion to Dismiss or, in the

alternative, for Summary Judgment. ECF No. 17. Self-represented Plaintiff Shawntay Gill

opposes the motion. ECF No. 19. The Court finds a hearing in this matter unnecessary. See Local

Rule 105.6 (D. Md. 2023). For the reasons that follow, Defendant’s motion, construed as a Motion

to Dismiss, shall be denied; Gill shall be granted an opportunity to request appointment of counsel;

and the parties will be directed to file status reports.

BACKGROUND

Gill alleges that Mallow used excessive force against him while arresting him and

processing him through the Allegany County Detention Center. Specifically, Gill alleges that on

September 14, 2021, a search warrant was executed for 102½ East First Street via forced and

unannounced entry. ECF No. 1 at 5. The search of the residence uncovered controlled substances

as well as related paraphernalia, leading to Gill and two other people being arrested. Id. Gill

claims that an officer with the Cumberland City Police Department (“CCPD”) conducted a search

of his person which included a partial strip search. No weapons or other contraband were found

during that search. Id.

While Gill was in the custody of the CCPD officer who searched him, he claims that

Trooper Justin Mallow asked that officer if he had searched “this Black Monkey,” referring to Gill.

ECF No. 1 at 6. Although the CCPD officer answered that Gill had already been searched, Gill

claims that Mallow “seized [him] from the CCPD Officer . . . pulled Plaintiff’s pants down finding

nothing, then pulled Plaintiff’s pants back up, then pulled them down again this time all the way

to Plaintiff’s shoes, and defendant then shoved a finger into Plaintif’s [sic] rectum.” Id. When

Gill screamed out in pain and told Mallow what he had done was unnecessary, he claims that

Mallow responded: “Nigger I can do whatever the fuck I want and need to do to you Nigger and

don’t you ever forget it Boy.” Id.

According to Gill, while his hands were still restrained behind his back, Mallow forced

him to the floor face first. ECF No. 1 at 6. Gill recalls that Mallow then placed both of his thumbs

behind each of Gill’s ears and put his knee in the middle of his back. Id. Gill claims that Mallow

then told him, “Nigger, shut the fuck up, you should have known you were going to ‘get it’

whenever I saw your no good Nigger ass again.” Id. Shortly thereafter, Gill claims that Mallow

turned him over onto his back and began choking him. Id. When Gill began complaining that he

could not breathe, he alleges that Mallow told him that he better shut up or he would end up like

George Floyd. Id.

Gill claims that Mallow then told the CCPD Officer who had searched Gill to take “that

Nigger out front.” ECF No. 1 at 6. The Officer took Gill outside of the house and sat him down

on the front steps at the front entrance of the house. Id. at 7. Gill was there for approximately ten

minutes when he recalls Mallow exited the house, approached Gill, and said, “I bet you thought I

forgot about you, didn’t you Nigger?” Id. Mallow then struck Gill on the right side of his face

with his closed fist. Id.

Mallow asserts that Gill is mistaken as to his involvement. He claims that his only

involvement was assisting with the search warrant, and further claims that Gill could not have

identified him because his identity was obscured by a face mask, with no visible name tag. Rather,

Mallow claims he did not enter the house until after the Cumberland City CERT team extracted

Gill and “cleared” the house. Mallow entered the house to search it and did not interact with Gill

until much later at the detention center. ECF 17-2 at 8. Mallow further asserts that neither he nor

any of the other officers had body cameras on the day in question and, therefore, the allegation

that he told Gill he was turning his body camera off is not credible. ECF No. 17-2 at 5, 8-9.

Although there is a reference to Mallow’s “sworn testimony” along with a cite to an exhibit, there

is no exhibit attached to Mallow’s motion.

Gill counters that, despite the factors noted by Mallow that obscured his identity, Gill knew

it was Mallow due to prior contacts he had with him. Gill references two cases: State of Md. v.

Shawntay Gill, Crim. No. C-01-CR-19-000944 and C-01-CR-21-0002741 (Allegany Co. Cir. Ct.).

ECF No. 19-1 at 4. Neither case lists Mallow as an arresting officer or an interested party.2

STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6), the factual allegations of a complaint “must be enough to raise a right to relief

above the speculative level on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

omitted). The court may “consider documents attached to the complaint, see Fed.R.Civ.P. 10(c),

1 The case number referenced by Gill in his Opposition Response is C-01-CR-21-000247. ECF No. 19-1 at 4. That

case number, however, does not exist. Case number C-01-CR-21-000274 is a criminal case against Gill that was

initiated in the Allegany County courts. See. http://casesearch.courts.state.md.us/casesearch/ (last viewed Oct. 30,

2023).

2 See http://casesearch.courts.state.md.us/casesearch/ (last visited Oct. 30, 2023).

as well as those attached to the motion to dismiss, so long as they are integral to the complaint and

authentic[.]” Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.

2007) (citation omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence sufficient

to prove the elements of the claim. However, the complaint must allege sufficient facts to establish

those elements.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted).

The court is mindful that Gill is a self-represented litigant. A federal court must liberally

construe pleadings filed by pro se litigants to allow them to fully develop potentially meritorious

cases. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But liberal construction does not mean a

court can ignore a clear failure in the pleadings to allege facts which set forth a claim. See Weller

v. Department of Social Services, 901 F.2d 387, 391 (4th Cir.1990). A court cannot assume the

existence of a genuine issue of material fact where none exists. Fed. R. Civ. P. 56(c).

Although Mallow’s motion pleads in the alternative for summary judgment, there is no

evidence or exhibits submitted outside of the pleadings for this Court to consider. Had Mallow

submitted his declaration, his request for summary judgment would still fail as there are genuine

disputes of material fact prohibiting summary judgment, i.e., whether Mallow was involved, and

whether ill knew him from prior interactions. See Laughlin v. Metro. Washington Airports Auth.,

149 F.3d 253, 261 (4th Cir. 1998) (where matters outside the pleadings are considered, the motion,

plead in the alternative, may be “converted” to one for summary judgment). Determining which

of the parties is telling the truth requires a credibility determination that cannot be made on

summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility

determinations . . . are jury functions, not those of a judge . . . ”).

DISCUSSION

A. 12(b)(6) dismissal

Taking Gill’s allegations as true, the complaint states a claim of excessive force during

arrest. Claims of excessive force during an arrest or investigatory stop are examined under the

Fourth Amendment's objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 395-

97 (1989); see also Cty. of Los Angeles v. Mendez, __ U.S. __, 137 S.Ct. 1539, 1546-47 (2017)

(“The framework for analyzing excessive force claims is set out in Graham.”). Reasonableness is

assessed by weighing “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.” Mendez, 137 S.Ct. at 1546 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). The

operative question is “whether the totality of the circumstances justifies a particular sort of search

or seizure.” Id. (quoting Garner, 471 U.S. at 8-9). Factors to be included in making this

determination include the severity of the crime at issue, whether there is an immediate threat to

the safety of the officer or others, and whether the subject is resisting arrest or attempting to flee.

See Graham, 490 U.S. at 396. The determination is to be made “‘from the perspective of a

reasonable officer on the scene’ . . . ‘based upon the information the officers had when the conduct

occurred.’” Mendez, 137 S.Ct. at 1546 (first quoting Graham, 490 U.S. at 397; then quoting

Saucier v. Katz, 533 U.S. 194, 207 (2001)). The use of force described by Gill in his verified

complaint has no conceivable legitimate governmental interest. Gill claims he did nothing to

provoke the force used against him. Rather, in one instance he was simply sitting on the sidewalk

with his hands restrained when he was hit on the right side of his face. Thus, his complaint survives

scrutiny under Rule 12(b)(6).

B. Qualified Immunity

Mallow asserts that he is entitled to avail himself of a qualified immunity defense. ECF

No. 17-2 at 10. “Qualified immunity balances two important interests—the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). “In particular, . . . qualified immunity protects law officers

from ‘bad guesses in gray areas’ and it ensures that they may be held personally liable only ‘for

transgressing bright lines.’” Gomez v. Atkins, 296 F.3d 253, 261 (4th Cir. 2002) (quoting

Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)). The defense provides protection for

public officials for mistakes of law, mistakes of fact, or a combination of the two. See Groh v.

Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting). Qualified immunity is a defense

from suit, not simply liability, which is lost if a matter is improperly permitted to go to trial. See

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Resolution of whether an official is entitled to

qualified immunity must be determined “at the earliest possible stage in litigation.” Hunter v.

Bryant, 502 U.S. 224, 227 (1991).

In order to determine if a public official is entitled to the protections afforded by qualified

immunity, two inquiries must be addressed by this court. Although the Supreme Court’s decision

in Saucier v. Katz, 533 U.S. 194 (2001) directed a rigid approach to the inquiries involved, the

requirement that the two-prong analysis must be “considered in proper sequence” has since been

revised. Katz, 533 U.S. at 200. Courts are now “permitted to exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 818.

The first prong is whether “[t]aken in the light most favorable to the party asserting the

injury, . . . the facts alleged show [that] the officer’s conduct violated a constitutional right[.]”

Saucier, 533 U.S. at 201. If the evidence establishes a violation of a constitutional right, the second

prong is to assess whether the right was “clearly established” at the time of the events at issue. Id.

If the right was not clearly established, the qualified immunity doctrine shields a defendant officer

from liability. The “answer to both Saucier questions must be in the affirmative in order for a

plaintiff to defeat a . . . motion for summary judgment on qualified immunity grounds.” Henry v.

Purnell, 501 F.3d 374, 377-78 (4th Cir. 2007) (citing Batten v. Gomez, 324 F.3d 288, 293-94 (4th

Cir. 2003)). ‘“Clearly established’ means that, at the time of the officer's conduct, the law was

‘sufficiently clear’ that every ‘reasonable official would understand that what he is doing’ is

unlawful. Dist. of Columbia v. Wesby, _ U.S. _, 138 S. Ct. 577, 589 (2018) citing Ashcroft v. al–

Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Qualified immunity does not insulate Mallow here; a reasonable officer in his position

would have known that the conduct alleged in the complaint violates the constitutional rights of

the arrestee. It has been the well-settled law for more than 20 years that gratuitously punching or

violating the bodily integrity of an arrestee violates the Fourth Amendment. Taking the allegations

of the complaint as true, this was not a gray area where an officer simply made the wrong choice.

Here, the conduct alleged was intentional and, as evidenced by the alleged racial slurs, it was

malicious.

C. State Statutory Immunity

This same analysis applies to Mallow’s claim that he is entitled to statutory immunity on

any of Gill’s State claims. ECF No. 17-2 at 11-12, citing Md. Code Ann., State Gov’t §§ 12-101,

12-105; Md. Code Ann., Cts. & Jud. Proc. § 5-522(b). Immunity for State personnel is specifically

reserved for those acts or omissions within the scope of public duties. Id. Again taking the

allegations of the complaint as true, Mallow’s actions were not within the scope of his duties as a

State Trooper and the conduct alleged was malicious.

CONCLUSION

Having found that Gill’s complaint states a viable claim and that Mallow is not entitled to

dismissal of the complaint, the Motion to Dismiss or, in the alternative. for Summary Judgment,

will be construed as a Motion to Dismiss and denied by separate order which follows.

_November 13, 2023 ________/s/_____________________

Date Stephanie A. Gallagher

United States District Judge