UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6403
RODNEY WILLIAM WOLFE,
Plaintiff - Appellant,
v.
JOEL FOOTEN, Dep., W.C.S.D.; THOMAS ROUTZAHN, Dep.,
W.C.S.D.; WASHINGTON COUNTY, MARYLAND,
Defendants – Appellees,
and
WASHINGTON COUNTY SHERIFF’S DEPARTMENT,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:08-cv-03479-PJM)
Argued: January 26, 2011 Decided: March 21, 2011
Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
Reversed and remanded by unpublished opinion. Judge Duncan
wrote the opinion, in which Judge Davis and Judge Wynn joined.
John Edgar Mallonee, MALLONEE LAW FIRM, Bethesda, Maryland, for
Appellant. Rodger Owen Robertson, LAW OFFICE OF JOSEPH M.
JAGIELSKI, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
This appeal arises out of the district court’s grant of
summary judgment to defendant Maryland police officers, and
their employer Washington County, on plaintiff Rodney Wolfe’s
excessive force claim under 42 U.S.C. § 1983. Wolfe argues that
Officers Joel Footen and Thomas Routzahn violated his Fourth and
Fourteenth Amendment rights while arresting him on domestic-
violence charges. As our review of the record discloses
disputed issues of material fact, we reverse the grant of
summary judgment.
I.
We review the facts in the light most favorable to Wolfe,
drawing all reasonable inferences in his favor. See Robinson v.
Clipse, 602 F.3d 605, 607 (4th Cir. 2010). On January 24, 2008,
at around 11:20 pm, Officers Footen and Routzahn, defendants
here, responded to a report of domestic violence at a residence
in Williamsport, Maryland. While en route, they were informed
that the suspect, Wolfe, was violating a Final Protective Order.
They were also informed that Wolfe had a history of violence.
Officers Footen and Routzahn were the first to arrive on the
scene, along with a third police officer who remained outside
the residence for the duration of the events at issue.
3
Upon arriving at the residence, the officers were
approached by fourteen-year-old Tiffany Wolfe, who informed them
that she had run out of the house when her father, Mr. Wolfe,
had started hitting her mother and sister. When nobody
responded to the officers’ shouts at the front entrance,
Officers Footen and Routzahn opened the unlocked door and
entered the home. The two began to investigate the first floor
of the multi-story residence, but were stopped short by a female
voice’s cry for help from upstairs. The officers proceeded up
the stairs and entered a dark bedroom, in which they found two
women lying on a bed: Heather Twigg--whom Officer Footen knew
from an earlier encounter--and Kayla Wolfe (“Kayla”), Ms.
Twigg’s daughter with Mr. Wolfe. The officers asked the women
where they could find Wolfe, but neither woman told them.
As Officers Footen and Routzahn continued their search of
the house, three more officers arrived on the scene: Officers
Price, Embly, and McCarty. Officer Price spoke with Ms. Twigg
and Kayla. He learned that Wolfe was somewhere in the same
upstairs bedroom in which the two women had been found and that
Wolfe was unarmed. Officer Price sent Kayla to get the other
officers. After ensuring that Ms. Twigg had also left the room,
Officers Footen, Routzahn, Price, Embly, and McCarty entered to
search for Wolfe.
4
The officers found Wolfe hiding between a television stand
and the bed on which the women had been lying. Wolfe was drunk.
Officer Price shone his Taser’s laser sight on Wolfe, and
another officer ordered Wolfe to show his hands. Wolfe
complied, extending his hands while remaining in a seated
position. Officer Footen handcuffed Wolfe’s hands in front of
his body. Wolfe was “physically calm and not fighting.” J.A.
301.
Officer Footen told Wolfe to stand up so that he could walk
downstairs. Again, Wolfe complied. 1 As Wolfe was rising to his
feet, Officer Footen pulled his handcuffs to help him stand up.
Officer Footen’s pressure on the “tight” handcuffs cut Wolfe’s
wrists and caused particular pain to his left hand, where he had
a prior injury. Wolfe “tugged” backwards on his handcuffs, J.A.
151, and began to curse, declaring “This is why you mother
fuckers are getting killed.” J.A. 137. Wolfe maintains that
his statement was a reference to a then-recent incident in which
a Police Academy classmate of Officer Footen had been killed.
Officer Footen had spoken at the slain officer’s funeral.
1
Wolfe’s account of succeeding events diverges sharply from
the officers. As discussed below, the officers have presented
no evidence to corroborate their competing version of events.
Consistent with our obligation to draw all reasonable inferences
in Wolfe’s favor, Clipse, 602 F.3d at 607, we treat his
testimony as true for purposes of summary judgment.
5
After Wolfe’s exclamation, Officer Footen threw him down
onto the bed. Wolfe laughed, at which point Officer Routzahn
placed his boot on the middle of Wolfe’s neck. As Wolfe moved
his head, struggling to breathe, Officer Footen “jumped on [his]
midsection.” J.A. 152. Wolfe tried to inform the officers that
he had previously injured his ribs, stating “Look, I got broken
ribs. . . you all don’t have to do this.” Id. He also moved
his legs forward and backwards in an effort to maneuver into a
fetal position to protect his ribs and face.
In the meantime, Officer Footen grabbed Wolfe’s hands in
one hand and began “elbowing” Wolfe in the right side with his
other arm. J.A. 154. Officer Routzahn removed his foot from
Wolfe’s throat and kicked him twice in the side of his face. In
response, Wolfe laughed and called the officers insulting names,
including “bitches.” J.A. 162. He also made a “hocking” sound
to “insinuate” that he would spit at the officers. J.A. 243-44.
At that point, Officer Routzahn “stomped” on Wolfe’s face
and said “Don’t spit on us.” J.A. 166. Officer Footen released
his grip on Wolfe’s hands, whereupon Officer Routzahn punched
Wolfe. Wolfe again laughed at the blow and said “You hit like a
little bitch.” J.A. 244.
Officer Routzahn unholstered his flashlight and struck
Wolfe twice in his forehead. Wolfe responded “Is that all you
got?” and once again called Officer Routzahn a “bitch.” J.A.
6
244. Officer Routzahn then raised his flashlight and “swung it
like a club” into the side of Wolfe’s head. Id.
As a result of the blows he had sustained, Wolfe was, at
this point, unable to stand up. The officers shackled his feet
and carried him to the top of the stairs. They were assisted by
a sixth officer, who arrived on the scene while Wolfe was being
moved. As Wolfe could not or would not walk, the officers began
to “slide” him down the steps, with his body stretched out
between at least two officers. J.A. 224. In an effort to
“persua[de]” Wolfe to walk down the stairs, Officer Routzahn
“[k]icked [him] four or five times” in the groin. J.A. 223,
225. At least one kick to Wolfe’s groin was observed by Wolfe’s
mother, who was, at this point, present downstairs. 2 The
officers then helped Wolfe walk out of the house.
After Wolfe was taken outside, he was re-handcuffed with
his hands behind his back and transported by ambulance to the
Washington County Hospital, where he received treatment for a
bleeding head wound and other injuries. Shortly after the
incident, Wolfe filed a state-court criminal complaint against
Officers Footen and Routzahn. Wolfe’s complaint was dismissed
and no criminal charges were brought against either officer.
2
At oral argument, Wolfe’s counsel was unable to explain
why Wolfe’s mother was present or when she had arrived.
7
Wolfe was charged in Maryland state court for a variety of
offenses arising out of the events of January 24, including
assaults upon Ms. Twigg and Officer McCarty. On October 30,
2008, Wolfe pleaded guilty to those two assaults and was
sentenced to twenty-years’ imprisonment.
In December 2008, Wolfe filed a handwritten civil complaint
against Officers Routzahn and Footen in the federal district
court of Maryland, alleging unspecified violations of his
constitutional rights under 42 U.S.C. § 1983 and seeking $2.5
million in damages. On September 25, 2009, he filed an amended
complaint, clarifying that he sought damages for excessive force
under the Fourth and Fourteenth Amendments, as well as on
various state law claims. 3 The amended complaint also added the
officers’ employer, Washington County, as a defendant.
In an oral decision on February 17, 2010, the district
court granted summary judgment for defendants on Wolfe’s
excessive force claims and dismissed his state law claims
without prejudice. This appeal followed.
3
As discussed at oral argument, Wolfe made the unusual
decision to include all of his § 1983 claims against both
officers in a single count. This choice renders it somewhat
difficult to determine what aspect of the night’s events
constituted the factual predicate for his excessive force claim.
However, in light of his complaint’s statement of relevant facts
and his argument to the district court and on appeal, we assume
that his § 1983 claim is based on both the struggle in the
upstairs bedroom and the subsequent groin kicks.
8
II.
We review the district court’s grant of summary judgment de
novo. Clipse, 602 F.3d at 607. We may affirm only if there are
no genuine issues of material fact and defendants are entitled
to judgment as a matter of law. Id. For the reasons described
below, we believe that key issues of material fact preclude the
entry of summary judgment.
A.
As a threshold matter, we reject defendants’ attempt to use
Wolfe’s statements at his state-court plea colloquy against him.
Defendants argue in particular that Wolfe’s alleged acceptance
of responsibility for the struggle with the officers in the
context of his state-court guilty plea forecloses his present
claims. Defendants are correct that the doctrine of judicial
estoppel can preclude relief “where a criminal convicted on his
own guilty plea seeks as a plaintiff in a subsequent civil
action to claim redress based on a repudiation of the
confession.” Lowery v. Stovall, 92 F.3d 219, 225 (4th Cir.
1996). We do not question this settled principle. We instead
hold only that judicial estoppel is inappropriate on the basis
of a state-court record as incomplete as this one.
Significantly, the seven pages from Wolfe’s October 30,
2008, state-court plea colloquy included in the record before us
represent a bare fraction of the pertinent proceedings. The
9
excerpted portion consists of a cover sheet, and pages 8, 12,
13, 14, 15, and 35 of the transcript. J.A. 328-334. It is not
apparent from the parties’ briefing why the transcript was
edited in this manner or what is contained in the balance of the
state-court transcript. Nonetheless, for whatever reason, the
excerpt begins in the middle of Wolfe’s plea colloquy and does
not, for instance, include any explicit acknowledgement by Wolfe
that he considered himself guilty of the crimes to which he was
pleading.
Further, the transcript’s rendering of the government’s
recitation of what it could prove at trial is also replete with
missing words, marked by ellipses and/or the notation
“inaudible.” J.A. at 331-32. Some of these omissions occur at
key junctures, as on line 5 of page 332 of the Joint Appendix,
which reads “The Defendant . . . ., Trooper McCarty was hit
back.” J.A. at 332 (alteration in original). As Wolfe argues,
these gaps could well contain material information. Moreover,
Wolfe’s statement to the court, which includes language on which
the defendants seek to rest much of their argument, 4 appears on
the final page of the excerpted transcript, is cut off mid-
sentence, and is presented without any context as to why it was
4
As the language at issue is sufficiently divorced from
context as to be potentially misleading, we do not quote it
here.
10
offered or how it was received by the district court. See J.A.
334.
On this fragmentary record, defendants cannot satisfy our
three-part test for judicial estoppel. See Zinkand v. Brown,
478 F.3d 634, 638 (4th Cir. 2007) (noting that estoppel requires
(1) a party “to adopt a position that is inconsistent with a
stance taken in prior litigation,” (2) the relevant position to
“be one of fact as opposed to one of law,” and (3) the party to
“have intentionally misled the court to gain unfair advantage”);
see also United States v. Simmons, 247 F.3d 118, 124 (4th Cir.
2001). A complete version of Wolfe’s plea proceedings and the
facts to which he pleaded guilty may reveal compelling
inconsistencies between his guilty plea and his present claim.
Cf. Hadley v. Gutierrez, 526 F.3d 1324, 1332 (11th Cir. 2008).
Such material may prove informative on remand. But the
substantial gaps in the record preclude our reliance on Wolfe’s
guilty plea for purposes of this appeal. 5
5
Our application of judicial estoppel in similar
circumstances has relied on a far more complete record than that
presented here. See, e.g., Lowery, 92 F.3d at 225 (noting that
the “record of the plea proceeding shows beyond dispute that the
trial judge carried out [his] mandate” “to determine that [the
defendant] entered his guilty plea voluntarily with an
understanding of the nature of the charge and the consequences
of the plea”) (internal quotations omitted); id. at 221-22
(quoting extensively from the defendant’s signed statement that
accompanied his plea agreement).
11
B.
With the state-court plea colloquy excluded from our
consideration, the record at summary judgment is reduced to a
set of competing factual claims, many of which implicate the
nature and quantity of force that the officers used while
restraining Wolfe. Not surprisingly, the defendants paint a far
more controlled portrait of their actions than that described
above; they urge that Wolfe pulled Officer Footen to the ground
and struggled with the officers, cursing at them and ignoring
their repeated verbal commands until Officer Routzahn struck him
once with his flashlight. However, they have cited no evidence
beyond their own statements and reports--which are materially
inconsistent with Wolfe’s testimony and his mother’s affidavit--
to corroborate their version of events.
For instance, although Wolfe received medical treatment
immediately after the incident, defendants’ motion for summary
judgment does not include any medical records. The only medical
evidence presented to us on appeal is a two-page excerpt from a
doctor’s deposition. The doctor testified that Wolfe suffered
“lacerations” and “soft tissue injur[ies].” J.A. 326. Yet,
because the excerpt begins in the middle of the doctor’s
12
testimony, it is unclear if that was the extent of the harm
Wolfe suffered. 6
Absent any corroborating evidence, assessment of the
parties’ competing narratives rests on a quintessential
credibility determination, which “[w]e, of course, may not make”
at the summary judgment stage. Smith v. Ozmint, 578 F.3d 246,
254 (4th Cir. 2009). For purposes of summary judgment, the
salient question is whether the facts taken in the light most
favorable to Wolfe present an issue of triable fact. EEOC v.
Fairbrook Med. Clinic, 609 F.3d 320, 322 (4th Cir. 2010). As
described below, our assessment of Wolfe’s account under the
relevant legal standards confirms that they do.
We evaluate excessive force claims “under the Fourth
Amendment’s objective reasonableness standard.” Wilson v.
Flynn, 429 F.3d 465, 468 (4th Cir. 2005) (quoting Graham v.
Connor, 490 U.S. 386, 388 (1989)). Although this fact-specific
inquiry defies “precise definition,” Valladares v. Cordero, 552
F.3d 384, 388 (4th Cir. 2009), the Supreme Court has identified
several relevant factors, see Graham, 490 U.S. at 396. These
include “the severity of the crime at issue, whether the suspect
6
The record also contains photographs of Wolfe’s bleeding
head, which were apparently taken on the night of his arrest.
These images depict injuries consistent with either parties’
account.
13
pose[d] an immediate threat to the safety of the officers or
others, and whether he [wa]s actively resisting arrest or
attempting to evade arrest by flight.” Id.
Because the officers were acting in their official
capacities--and are therefore potentially entitled to qualified
immunity--a finding that they may have violated Wolfe’s
constitutional rights does not automatically defeat summary
judgment. See Ridpath v. Bd. of Governors Marshall Univ., 447
F.3d 292, 306 (4th Cir. 2006). Such a determination satisfies
only the first prong of our two-part qualified immunity
analysis. Id. Wolfe must still show that the right violated
was “clearly established,” i.e., one “of which a reasonable
person would have known.” Id.; see also Valladares, 552 F.3d at
388. We evaluate the officers’ conduct under this deferential
standard and find that neither officer is entitled to qualified
immunity.
Assuming, as we must, that Wolfe’s testimony is accurate,
the objective unreasonableness of the officers’ behavior is
readily apparent. Any threat presented by the unarmed Wolfe had
largely abated by the time he was handcuffed. Even if the
officers initially imagined Wolfe’s exclamation, accompanied by
a “tug” on his handcuffs, to be potentially dangerous
resistance, that did not warrant Officer Footen holding him down
and elbowing him while Officer Routzahn choked him with his
14
boot, kicked him twice, stomped on his face, and struck him
multiple times with his service flashlight. See Bailey v.
Kennedy, 349 F.3d 731, 744 (4th Cir. 2003) (“[T]he extensive
blows and kicks used against an unarmed man were unreasonable,
especially the use of force that continued after [the suspect]
was bound hand and foot and lying face down on the floor.”).
Given Wolfe’s evident helplessness, his laughter, use of
profanity, and “insinuation” that he might spit, also did not
justify the amount of force used against him. The fact that
Wolfe explicitly assured the officers that their blows were
unnecessary in light of his preexisting injuries underscores the
unreasonableness of their behavior.
Officer Routzahn’s kicks to Wolfe’s groin on the stairway
were similarly unreasonable. Defendants argue that such kicks
were warranted, as Wolfe’s proximity to his earlier domestic
violence victims “rais[ed] the volatility level of his criminal
acts and increas[ed] the potential danger to civilians.”
Appellees’ Br. at 20. The claim lacks merit. According to
Wolfe’s testimony and his mother’s affidavit, he was handcuffed,
shackled, and surrounded by armed police officers when he was
kicked in the groin. Under these circumstances, such blows
15
would not have been a reasonable means of reducing the risk
posed to civilians. 7
Nor, on these facts, is either officer entitled to
qualified immunity. “[C]ourts have consistently applied the
Graham holding and 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.” Bailey, 349 F.3d at 744-45; see also Jones v.
Buchanan, 325 F.3d 520, 532 (4th Cir. 2003).
In short, the version of events supported by Wolfe’s
testimony and his mother’s affidavit presents a triable issue of
material fact. The district court erred by concluding
otherwise, despite prevailing factual questions as to the
quantity of force used by the officers and the circumstances
under which their blows were inflicted. As we have explained,
“the purely legal question of whether the constitutional right
at issue was clearly established ‘is always capable of decision
at the summary judgment stage,’” but “a genuine question of
material fact regarding ‘[w]hether the conduct allegedly
7
Defendants’ argument is further undermined by Officer
Footen’s testimony that a kick to the groin would not have been
justified at any point that night (which is why, he claimed,
such a kick was never administered).
16
violative of the right actually occurred . . . must be reserved
for trial.’” Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir.
2005) (quoting Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.
1992)).
III.
For the foregoing reasons we reverse the grant of summary
judgment and remand for further proceedings.
REVERSED AND REMANDED
17