Marcella Holloman v. Paul Markowski , 661 F. App'x 797 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1878
MARCELLA HOLLOMAN,
Plaintiff - Appellant,
v.
PAUL MARKOWSKI; GREGORY BRAGG,
Defendants - Appellees,
and
STEPHANIE RAWLINGS-BLAKE; BERNARD “JACK” YOUNG; JAMES B.
KRAFT; BRANDON SCOTT; ROBERT CURRAN; BILL HENRY; ROCHELLE
RIKKI SPECTOR; SHARON GREEN MIDDLETON; NICK MOSBY; HELEN
HOLTON; WILLIAM “PETE” WELCH; EDWARD REISINGER; WILLIAM
COLE; CARL STOKES; WARREN BRANCH; MARY PAT CLARKE; GREGG
BERNSTEIN; ANTHONY BATTS,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, Chief District
Judge. (1:14-cv-01516-CCB)
Argued: September 20, 2016 Decided: October 7, 2016
Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Louis Braga, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant. Frederic Nelson
Smalkin, Jr., William Rowe Phelan, Jr., BALTIMORE CITY LAW
DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF:
Hardev Chhokar, Brian Remondino, Josh Robbins, Andrew Selman,
Third Year Law Students, Appellate Litigation Clinic, UNIVERSITY
OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for
Appellant. George Nilson, City Solicitor, BALTIMORE CITY LAW
DEPARTMENT, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Marcella Holloman brought this 42 U.S.C. § 1983 action
stemming from the fatal shooting of her son Maurice Donald
Johnson by two officers of the Baltimore City Police Department.
Holloman asserts a municipal liability claim against the Mayor
and City Council of Baltimore, Maryland and individual liability
claims against the two officers. The district court granted the
City’s motion to dismiss and the officers’ motion for summary
judgment. For the reasons that follow, we affirm in all
respects.
I.
On the afternoon of May 19, 2012, Holloman hosted a
birthday party for her granddaughter. During the party,
Johnson, who had previously been diagnosed with bipolar
disorder, came to Holloman’s house, where he also lived.
Holloman first noticed that Johnson had returned when she
heard the sound of breaking glass coming from Johnson’s upstairs
bedroom. Johnson then broke the forty-two-inch television and
the mirror in his room. Holloman went upstairs to ask her son
to stop, explaining that after the party ended she would take
him to the hospital to receive psychiatric treatment. Johnson
told her that she would have to get the police to take him to
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the hospital because he would not go willingly. Holloman and
her daughter decided to remove the children from the house.
Johnson continued to destroy property. He smashed
Holloman’s television and threw his mattress onto the front
lawn, where he ripped it apart. While Johnson was outside,
Holloman and her daughter locked him out of the house and
Holloman called 911. In the process of trying to re-enter the
house, Johnson kicked the front door and, announcing that he was
“coming in,” pulled the back screen door off its hinges.
At this point, Officer Paul Markowski arrived, followed
shortly by Officer Gregory Bragg. Holloman told the officers
that Johnson had psychiatric issues and would not stop his
destructive behavior. She asked them not to shoot him, but
suggested that they employ a Taser.
The officers opened the back door and asked Johnson to calm
down. The officers attempted to restrain Johnson, at which
point he lunged at them, pinned Officer Markowski to the ground
with his knees, and fought with him. Officer Bragg tried, but
failed, to pull Johnson off Officer Markowski. Holloman heard
Officer Bragg fire at least two gun shots, wounding Johnson, who
later died from his injuries. Holloman alleges that the entire
altercation lasted at most one minute.
Holloman, proceeding pro se before the district court,
brought this action against the City, numerous municipal
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officials, and the individual officers. The district court
entered judgment for all defendants. This appeal followed.
II.
We first address the municipal liability claim. “We review
de novo the grant of a motion to dismiss for failure to state a
claim. In doing so, we accept as true the well-pled allegations
of the complaint and construe the facts and reasonable
inferences derived therefrom in the light most favorable to the
plaintiff.” Harbourt v. PPE Casino Resorts Maryland, LLC, 820
F.3d 655, 658 (4th Cir. 2016) (internal citations omitted).
“[W]hile a plaintiff does not need to demonstrate in a complaint
that the right to relief is ‘probable,’ the complaint must
advance the plaintiff’s claim ‘across the line from conceivable
to plausible.’” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Because Holloman was pro se before the district court,
we construe her complaint liberally. See Jehovah v. Clarke, 798
F.3d 169, 176 (4th Cir. 2015).
In Monell v. Dept. of Social Servs. of City of New York,
436 U.S. 658, 690-91 (1978), the Supreme Court held that
municipalities face liability under § 1983 if a municipal policy
or custom itself causes a deprivation of constitutional rights.
Holloman alleges that the City failed to supervise and train its
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police officers to handle interactions with mentally ill
individuals and “had a general policy, pattern and/or practice
of not disciplining police officers for their conduct, thereby
sanctioning the police officers’ actions.”
To prevail on a Monell claim, Holloman “must point to a
‘persistent and widespread practice[] of municipal officials,’
the ‘duration and frequency’ of which indicate that policymakers
(1) had actual or constructive knowledge of the conduct, and (2)
failed to correct it due to their ‘deliberate indifference.’”
Owens v. Baltimore City State’s Attorney’s Office, 767 F.3d 379,
402 (4th Cir. 2014) (quoting Spell v. McDaniel, 824 F.2d 1380,
1386-91 (4th Cir. 1987)) (alteration in Owens). While we can
infer both knowledge and deliberate indifference “from the
extent of employees’ misconduct[, s]poradic or isolated
violations of rights will not give rise to Monell liability;
only widespread or flagrant violations will.” Id. at 402-03
(internal citations and quotations omitted).
The only facts Holloman has pled in support of these
allegations were four specific instances of city police officers
killing in the course of their duties and an August 22, 2012
Baltimore Sun article reporting that, year-to-date, city police
officers had shot ten individuals (eight fatally), “[a] number
of [whom] had been diagnosed with some sort of mental illness.”
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Importantly, Holloman does not allege any facts showing
that any of these incidents involved constitutional violations,
let alone that the City improperly failed to discipline or train
any officers. Cf. Owens, 767 F.3d at 403 (holding that a
plaintiff alleging “the existence of ‘reported and unreported
cases’ and numerous ‘successful motions’” regarding the improper
withholding of exculpatory evidence stated a Monell claim).
Holloman’s allegations are too speculative to state a plausible
claim for municipal liability. We thus affirm without reaching
the City’s argument that the police department is a state, not
city, agency.
III.
We next consider the claims against the two officers, whom
Holloman alleges used excessive force in violation of the Fourth
Amendment. We review the district court’s grant of summary
judgment to them de novo. PBM Prods., LLC v. Mead Johnson &
Co., 639 F.3d 111, 119 (4th Cir. 2011). We analyze excessive
force claims “under the Fourth Amendment’s ‘objective
reasonableness’ standard,” Graham v. Connor, 490 U.S. 386, 388
(1989), and evaluate an officer’s particular use of force “from
the perspective of a reasonable officer on the scene,” id. at
396. Three guiding factors in the reasonableness calculus are
the severity of the relevant crime, the immediate threat the
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suspect poses, and the intensity of the suspect’s resistance to
arrest. Estate of Armstrong ex rel. Armstrong v. Vill. of
Pinehurst, 810 F.3d 892, 899 (4th Cir. 2016).
“A government official sued under § 1983 is entitled to
qualified immunity unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.” Carroll v. Carmon, 135 S. Ct. 348, 350
(2014). A plaintiff seeking to avoid an officer’s qualified
immunity defense must demonstrate both that (1) “the facts,
viewed in the light most favorable to the plaintiff, show that
the officer’s conduct violated a federal right,” and (2) this
“right was clearly established at the time the violation
occurred such that a reasonable person would have known that his
conduct was unconstitutional.” Smith v. Ray, 781 F.3d 95, 100
(4th Cir. 2015).
We exercise our discretion to begin with the second
question--whether the asserted right was clearly established.
See Pearson v. Callahan, 555 U.S. 223, 236 (2009). “The
dispositive question is whether the violative nature of
particular conduct is clearly established . . . in light of the
specific context of the case . . . .” Mullenix v. Luna, 136 S.
Ct. 305, 308 (2015) (internal citations and quotations omitted).
“We do not require a case directly on point, but existing
precedent must have placed the statutory or constitutional
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question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011).
Thus, here we must determine whether, as of May 19, 2012,
relevant precedent established that an officer’s use of lethal
force is objectively unreasonable and therefore constitutionally
excessive when used against an unarmed but physically resistant
suspect, who has destroyed property, attacked an officer, and
given no indication that he will yield. There is no such
precedent.
Holloman conceded at oral argument that no case “anywhere”
addresses similar facts. The relevant precedent most helpful
for her, Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002), contains
too many material distinctions to clearly establish that the
officers acted unconstitutionally in the case at hand. In Clem,
we denied summary judgment to an officer who allegedly “shot a
mentally disabled, confused older man, obviously unarmed, who
was stumbling toward the bathroom in his own house with pepper
spray in his eyes, unable to threaten anyone.” Id. at 552.
Officers Markowski and Bragg faced markedly different
circumstances.
Unlike Clem, Johnson engaged in a physical altercation with
the two officers. Moreover, Holloman, Johnson’s mother, had
told the officers that Johnson had destroyed substantial
property that evening and that he likely would not stop; no one
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told the officers similar facts about Clem. Furthermore,
despite having no weapon, Johnson had already dragged Officer
Markowski to the ground, held him down, fought with him, and
fended off Officer Bragg’s effort to pull him away. Again, Clem
engaged in no similar activity.
In sum, regrettable as Johnson’s death is, under these
circumstances neither Clem nor any other precedent established
that the officers employed constitutionally excessive force.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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