Mclean v. Broadfoot, 4:10CV00019

Decision Date13 May 2011
Docket Number4:10CV00019
CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
PartiesMURRILL L. MCLEAN, Plaintiff, v. PHILIP A. BROADFOOT, Chief of Police of the City of Danville, Defendant.

MURRILL L. MCLEAN, Plaintiff,
v.
PHILIP A. BROADFOOT, Chief of Police of the City of Danville, Defendant.

4:10CV00019

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA DANVILLE DIVISION

ENTERED : May 13, 2011.


MEMORANDUM OPINION

By: Jackson L. Kiser
Senior United States District Judge

Before me is a Motion for Summary Judgment filed on March 4th, 2011 by Defendant Philip Broadfoot, who is the Chief of the Danville Police Department. Mot. for Summ. J., Mar. 4, 2011, ECF No. 12; Def.'s Br. in Supp., Mar. 4, 2011, ECF No. 13. Under the Scheduling Order issued in this case, the Plaintiff, Murrill McLean, had fourteen days to submit his response. Pretrial Order 2, June 30, 2010, ECF No. 6 (providing that, "[b]riefs in opposition must be filed within 14 days of the date of service of the movant's brief.. EXCEPT FOR GOOD CAUSE SHOWN, IF BRIEFS IN OPPOSITION TO THE MOTIONS ARE NOT FIELD, IT WILL BE DEEMED THAT THE MOTION IS WELL TAKEN") (bold text and capital letters in the original). Twenty-four days later, the Plaintiff filed a Motion for Extension of Time to Respond and a Proposed Response. Mot. for Extension, Mar. 28, 2011, ECF No. 16. Unfortunately, everything beyond the first two pages of the eight page Proposed Response concerned another case with which Plaintiff's counsel is involved in the Eastern District of Virginia. See Proposed Resp. 3-8, Mar. 28, 2011, ECF No. 16-1. Furthermore, the Plaintiff never noticed his Motion for an Extension of Time for a hearing despite being reminded to do so by the Clerk's Office. The Scheduling Order provides that "[i]t shall be the obligation of the

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moving party to bring the motion on for hearing by notice." Pretrial Order 2. Over the next two days, the Defendant filed two Responses in Opposition to the Plaintiffs Motion for an Extension of Time. Def.'s Resp. in Opp'n I, Mar. 29, 2011, ECF No. 19; Def.'s Resp. in Opp'n II, Mar. 30, 2011, ECF No. 20. It was not until April 1st, fifteen days beyond the fourteen day deadline, that the Plaintiff submitted a meaningful Response. Pl.'s Resp., Apr. 1, 2011, ECF No. 21-1. Along with that second Response, Plaintiffs counsel submitted a Reply to the Defendant's two Responses in Opposition. Pl.'s Reply, Apr. 1, 2011, ECF No. 21. On May 5th, 2011 the Court held a hearing on both the Defendant's Motion for Summary Judgment and the Plaintiffs Motions for an Extension of Time. For the reasons explained herein, the Court GRANTS the Plaintiffs Motions for an Extension of Time, but HOLDS Plaintiffs counsel in civil contempt for his two violations of the Scheduling Order and IMPOSES A FINE of FIVE HUNDRED DOLLARS upon Plaintiff's counsel. The Court further GRANTS the Defendant's Motion for Summary Judgment on the Title VII claim and DECLINES to exercise supplemental jurisdiction over the Plaintiffs Virginia Human Rights Act claim.

FACTS

This case arises out of a contentious police shooting incident that occurred in the summer of 2009. Compl. 2-3, May 21, 2010, ECF No. 1. The parties agree that on June 8th, 2009, Officer Murrill McLean, the Plaintiff, was attempting to serve warrants at a house in north Danville. Compl. 2; Answer 1, June 30, 2010, ECF No. 4. While doing so, the Plaintiff was approached by a dachshund that had a history of attacking people in the community. Compl. 2; Answer 2. The Plaintiff admits that, in light of the dog's aggressive behavior, he shot the dachshund. Compl. 2; Aff. of Def. 5, Mar. 4, 2011, ECF No. 13-1. An investigation ensued amid rising tension and controversy. Compl. 3; Answer 2. The Defendant initially supported the

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Plaintiff, but later changed his position and said that the Plaintiff had acted improperly. Compl. 3; Aff. of Def. 3-5. On July 1st, 2009, the Defendant suspended the Plaintiff with pay and put him on notice of his intent to terminate him. July 1 Letter, Mar. 4, 2011, ECF No. 13-4. On July 10th, 2009, the Defendant terminated the Plaintiff, citing that the Plaintiffs "accounts of the event are factually incorrect and misleading" and his "reasoning for using deadly force was based on [an] overwhelming fear of contracting rabies," which "impairs [his] ability to make sound judgments." July 10 Letter, Mar. 4, 2011, ECF No. 13-5; Compl. 3. It is the details of these incidents over which the two sides disagree.

The first and most major disagreement is over what, exactly, happened on June 8th in north Danville. According to the Plaintiff, while attempting to serve warrants, he "was approached by a vicious dog from an adjacent driveway." Aff. of Pl., Mar. 28, 2011, ECF No. 16-2; Compl. 2. The Plaintiff made verbal attempts to scare the dog away, whereupon "the dog lunged to attack [him]." Aff. of Pl. 2; Compl. 2. The dog apparently "lunged at [him] a second time," prompting the Plaintiff to shoot the dachshund. Aff. of Pl. 2; Compl. 2. The Defendant demands strict proof of the Plaintiffs version of events. Answer 2.

In his affidavit, the Defendant provides more details about the findings made during the course of the investigation. Immediately after the shooting, the Plaintiffs two supervisors, Lieutenant Eanes and Corporal Chivvis, came to the scene. Aff. of Pl. 2. The Plaintiff was instructed to prepare a report of what occurred and Lieutenant Eanes was told to take pictures of the scene. Id. The Plaintiffs first statement indicates that he "pulled into the driveway at the residence and noticed a dog barking in the driveway." Pl.'s First Incident Report, Mar. 4, 2011, ECF No. 13-2. The Plaintiff went to the front door of the house, no one answered, at which time the Plaintiff avers:

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...I turned to go back to my vehicle. The dog ran up behind me growling and lunged as I turned to leave. I felt certain that if I had hesitated for a moment the dog would have attacked and would have been too close to me to shoot. I barely had time to draw my weapon and fire hitting the animal at the foot of the steps approximately 2 to 3 feet from me. It spun once or twice then ran to the side of [the residence] where it died.

Id. The pictures taken by Lieutenant Eanes "depicted a dead dachshund lying on the ground near three wooden steps." Aff. of Def. 3. There was no blood on these wooden steps, which were located at the side of the residence. Id. at 4.

Two days later, on June 10th, both the Plaintiff and another one of his supervisors, Captain Jones, were asked to write detailed reports about the shooting. Id. at 2. In that second report the Plaintiff states that the dog was in the neighbor's driveway when he arrived, not the driveway of the residence where he was attempting to serve the warrants. Pl.'s Second Incident Report, Mar. 4, 2011, ECF No. 13-3. Upon arrival, the Plaintiff alleges that the following events took place:

I went up 3 stairs to the front porch, which has trees on both sides of it and knocked on the front door. After waiting a few minutes I decided to leave, then from behind me as I turned I heard the growling of a dog at the foot of the steps, the animal showed his teeth and hunkered down, I was boxed in, the door I was knocking on was behind me and about three feet to the left of me another door and wall. While still standing at the door on the porch that was only 6 feet wide, I told it to "get" and it lunged forward towards me to attack. I had my metal clipboard with warrants in my left hand and had only seconds to un-holster. The dog was only two to three feet from me at this time and it started to lunge towards me and I fired one shot hitting the animal.

Id. Captain Jones also interviewed the Plaintiff and prepared a report for the Defendant. Aff. of Def. 3. The next day, on June 11th, the Defendant returned from a few days' vacation and spoke with the Plaintiff by telephone and reviewed Captain Jones' report. Id. Based on the aforementioned two sources, the Defendant believed that the Plaintiff "was trapped and had very little time to react," prompting him to shoot the dog on the residence's wooden side steps.Id.

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The Defendant even admits that "[b]ased on the information provided to me at the time, I publicly supported [the Plaintiff] and his actions." Id. The Plaintiff contends that, at this point, the internal investigation ended with the conclusion that he "had acted properly in defending [him]self against an attack by a vicious dog." Aff. of Pl. 2. It appears that the Plaintiff would characterize anything beyond this point as "continuous questioning, only to look for a pretext to fire [the Plaintiff]." Pl.'s Resp. 5, Apr. 1, 2011, ECF No. 21-1. Whether this difference in labeling creates a genuine issue of material fact is another matter. See Wards Co., Inc. v. Stamford Ridgeway Assocs., 761 F.2d 117, 210 (2d Cir. 1985) ("[c]ontorted semanticism must not be permitted to create an issue where none exists"); Kinsey v. Cendant Corp., 521 F.Supp.2d 292, 306 (S.D.N.Y. 2007) (semantic distinction was insufficient to create a genuine issue of material fact); Harmon v. Baltimore and Ohio R. Co., 560 F.Supp. 914, 916 (D.D.C. 1983) (same).

Later in the day on June 11th, the Defendant learned from news stories that there was blood on the porch steps of the house at which the shooting occurred. Aff. of Def. 3. The Defendant found this odd, since the pictures taken by Lieutenant Eanes showed no sign of blood on the wooden side steps. Id. This also seemed to contradict the Plaintiffs first report, in which the Plaintiff averred that he "fire[d] hitting the animal at the foot of the steps approximately 2 to 3 feet from [him]." Pl.'s First Incident...

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