Erin Burwick v. G. Pilkerton , 700 F. App'x 214 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-2043
ERIN BURWICK,
Plaintiff - Appellant,
v.
CORPORAL G. PILKERTON, #1702; SERGEANT CHARLES RAVENELL,
#0965; OFFICER BOERUM, #1902,
Defendants - Appellees,
and
ANNE ARUNDEL COUNTY, MARYLAND,
Defendant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:15-cv-02785-JFM)
Submitted: May 31, 2017 Decided: July 13, 2017
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George Harper, Upper Marlboro, Maryland, for Appellant. Nancy McCutchan Duden,
County Attorney, Philip E. Culpepper, Senior Assistant County Attorney, Annapolis,
Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Erin Burwick appeals the district court’s order granting Defendants’ motion for
summary judgment and dismissing her amended 42 U.S.C. § 1983 complaint. Burwick
alleged that Corporal Gregory Pilkerton used excessive force by allowing a police dog to
bite her while in pursuit after a reported burglary.
After the completion of discovery, Pilkerton moved for summary judgment,
supporting his motion with his sworn affidavit and with Burwick’s untimely responses to
requests for admissions. * Pilkerton argued that there were no disputes as to any material
fact and that his use of the police dog to track and apprehend Burwick—a fleeing
suspected burglar—was objectively reasonable. Alternatively, Pilkerton argued that he
was entitled to qualified immunity because his use of the police dog did not violate a
clearly established right, where Pilkerton ordered Burwick to show her hands to
determine if she was armed and Burwick refused to comply. Burwick opposed the
motion, and attached as an exhibit her answers to interrogatories. Burwick contended
*
Pilkerton served the requests for admissions on December 11, 2015, and Burwick
responded to the admissions on January 28, 2016, after the 30-day deadline had elapsed.
Thus, by operation of Fed. R. Civ. P. 36(a)(3), her responses were deemed admitted. We
note also that Burwick did not address these admissions in her response to Pilkerton’s
motion for summary judgment; instead, after Pilkerton replied to her opposition, she filed
a surreply without seeking and obtaining leave of the district court, arguing that the
admissions “do not cover or logically preclude the occurrence of the third bite, the crucial
one, which was of excessive duration and was of excessive force.” J.A. 73D.
Alternatively, noting that she “does not believe that it is necessary to do so,” Burwick
moved in her surreply for leave to withdraw the admissions. J.A. 73E. Pilkerton moved
to strike this surreply on June 15, and the district court granted summary judgment to
Pilkerton on June 16, without mentioning the admissions or the surreply. Finally, in her
Fed. R. Civ. P. 59 motion for a new trial, Burwick said nothing about the admissions.
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that her interrogatory answers raised genuine disputes of material fact that precluded
summary judgment—namely, as to whether Burwick ignored Pilkerton’s commands to
show her hands and instead crawled away to evade arrest.
The district court refused to consider Burwick’s answers to interrogatories on the
basis that they “were not based upon personal knowledge but only ‘are true to the best of
. . . plaintiff’s knowledge, information, and belief,’” J.A. 80, and thereby failed to comply
with Fed. R. Civ. P. 56(c)(4). Without the interrogatory answers, the court concluded
that Burwick failed to demonstrate the existence of a genuine dispute of material fact and
found that Pilkerton’s use of the police dog was constitutional. In the alternative, the
court concluded that Pilkerton was protected by qualified immunity. The district court
thus granted Defendants’ motion.
On appeal, Burwick contends that the district court erred when it granted summary
judgment in favor of Pilkerton without considering her interrogatory answers. Pilkerton
responds that the district court properly disregarded the answers because they failed to
comply with Fed. R. Civ. P. 56(c)(4). Alternatively, Pilkerton argues that Burwick
cannot use her interrogatory answers to contradict matters established by her untimely
response to requests for admissions in order to defeat summary judgment. Although we
conclude that the district court erred in not considering Burwick’s interrogatory answers,
we conclude nonetheless that Burwick has failed to demonstrate the existence of a
genuine dispute of material fact, and therefore affirm the grant of summary judgment to
Pilkerton.
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When supporting or opposing a summary judgment motion, a party may rely on
depositions, affidavits, admissions, and answers to interrogatories that would be
admissible in evidence at trial. Fed. R. Civ. P. 56(c). Consequently, answers to
interrogatories used to “oppose a motion [for summary judgment] must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4). The “personal knowledge requirement prevents statements in affidavits that are
based, in part, upon information and belief—instead of only knowledge—from raising
genuine issues of fact sufficient to defeat summary judgment.” Pace v. Capobianco, 283
F.3d 1275, 1278 (11th Cir. 2002) (internal quotation marks omitted).
Here, Burwick affirmed that her interrogatory answers “are true, to the best of
[her] knowledge, information and belief.” J.A. 65. Rule 56, however, requires that
supporting documents be based on “personal knowledge,” Fed. R. Civ. P. 56(c)(4), an
attestation not included with the oath affirming Burwick’s interrogatory answers. But
Burwick’s failure to append such an attestation notwithstanding, it’s obvious that
Burwick’s answers—recounting her experience on the night in question—are based on
her personal knowledge.
The fact remains, however, that Burwick failed to timely respond to Pilkerton’s
requests for admissions and that, by operation of Fed. R. Civ. P. 36, Burwick has
admitted that she ignored Pilkerton’s commands to show her hands and crawled away
from Pilkerton and the police dog. Contrary to Burwick’s contention in her surreply that
the admissions do not cover the third time she was bitten by the police dog, her
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admissions state that she “stopped crawling away and began to comply with police
commands” only after the police dog bit and held onto her lower left leg—the third bite.
J.A. 27. These admissions thus directly contradict Burwick’s interrogatory answers,
which assert that Burwick complied with Pilkerton’s commands and did not evade arrest.
As such, any disputes of material facts in this case arise from Burwick’s own inconsistent
statements and are therefore insufficient to survive Defendants’ summary judgment
motion. See Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“A genuine
issue of material fact is not created where the only issue of fact is to determine which of
the two conflicting versions of the plaintiff’s testimony is correct.”).
Accordingly, we affirm the district court’s order granting summary judgment in
Defendants’ favor. In light of our disposition, we need not address the district court’s
alternative finding that Pilkerton was entitled to qualified immunity. We dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
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