Drury v. Dziwanowski et al

Filing 27

MEMORANDUM AND ORDER granting in part and denying in part Defendants P. Dziwanowski and W. Hick' 21 Motion for Summary Judgment; granting Defendants partial summary judgment; dismissing counts IV malicious prosecution claims and V conspiracy claims; dismissing any "summary punishment" and any denial of medical treatment § 1983 claims; directing the case shall proceed on count I Battery, Count II False Arrest, Count III False Imprisonment and State and Federal Constitutional Claims set forth; setting date for Plaintiff to arrange a telephone conference to address trial scheduling. Signed by Judge Marvin J. Garbis on 3/24/2017. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EDWIN DRURY

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Plaintiff

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vs.

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OFFICER P. DZIWANOWSKI, et al.
Defendants
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CIVIL ACTION NO. MJG-15-3845

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MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
The Court has before it the Motion for Summary Judgment
[ECF No. 21] filed by Defendants and the materials submitted by
the parties relating thereto.

The Court finds that a hearing is

unnecessary.

I.

INTRODUCTION
A.

Factual Background

On April 24, 2013, Plaintiff Edwin Drury (“Drury”) was
arrested by two Anne Arundel County police officers, Cpl. Paul
Dziwanowski (“Dziwanowski”) and Cpl. William Hicks (“Hicks”)
(collectively referred to as “Defendants”).

Drury presents

claims against these Defendants, claiming that they wrongfully
arrested him and, in the course of the arrest, violated his
rights secured by the United States and Maryland Constitutions.

The parties present substantially conflicting versions of the
material facts.
The events at issue grew out a convoluted dispute regarding
ownership of a trailer.

It suffices, for present purposes, to

greatly summarize the matter.
In or about May 2012, Bradford West (“Mr. West”) and/or his
then wife, Ms. Dale Martin (referred to herein as “the First1
Wife”), owned a Hudson trailer but were involved in divorce
proceedings.

Drury paid the First Wife for the trailer and was

given a bill of sale from her but not the title document.
Shortly thereafter the couple was divorced and there were
issues in the divorce regarding the ownership of the trailer.
About a month after the divorce, Mr. West married Cathy Jo
(referred to as “the Second Wife”) and died shortly thereafter.
The Second Wife contended that she owned the trailer and refused
to provide the title document to the First Wife or Drury.

In

February 2014, John Bradford (“Mr. Bradford”) paid the Second
Wife for the trailer who gave him the title document.

Mr.

Bradford, using with the title document, had the Department of
Motor Vehicles transfer the title and he became the registered
owner of the trailer.

1

She was his then wife and is assumed for present purposes
to have been his first wife.

2

Mr. Bradford was, however, not able to obtain possession of
the trailer and found that it was possessed by Drury, who
claimed ownership by virtue of the bill of sale from the First
Wife.
On April 23, 2014, Mr. Bradford contacted the Anne Arundel
County Police claiming that Drury was in possession of stolen
property, i.e., the trailer.

By the end of the day, Dziwanowski

had spoken with Drury and Mr. Bradford.

Dziwanowski understood

that there was a dispute regarding the ownership of the trailer
and suggested that the two of them seek to reach an agreement.
However, there was no agreement.
On April 24, Mr. Bradford called Dziwanowski and told him
that he wanted Drury criminally charged.

Dziwanowski, with

another officer, Hicks, proceeded to Drury’s residence.

While

the parties agree that Defendants arrested Drury at his
residence, they present materially different versions of the
event relating to the arrest.

B.

Procedural Context

In the Complaint, Plaintiff asserted claims against Anne
Arundel County, Maryland (“the County”), Dziwanowski, and Hicks
in ten Counts.
Count I:

Battery - Dziwanowski and Hicks.

3

Count II:

False Arrest – Dziwanowski, Hicks, and the
County.

COUNT III:

False Imprisonment – Dziwanowski, Hicks, and
the County.

COUNT IV:

Malicious Prosecution - Dziwanowski and
Hicks.

COUNT V:

Conspiracy - Dziwanowski and Hicks.

COUNT VI:

Violation of Maryland Declaration of Rights
- Dziwanowski and Hicks.

COUNT VII:

Maryland State Declaration of Rights Longtin
Claim – County.

COUNT VIII:

42 U.S.C. § 1983- Violation of Fourth
Amendment - Dziwanowski and Hicks.

COUNT IX:

Inadequate Supervision and Discipline under
42 U.S.C. § 1983 - County.

COUNT X:

Monell Claim – County.

By the Memorandum and Order Re: Pending Motions [ECF No.
13] the Court dismissed all claims against the County.
By the instant motion, Dziwanowski and Hicks seek summary
judgment in regard to all claims against them.

II. SUMMARY JUDGMENT STANDARD
A motion for summary judgment shall be granted if the
pleadings and supporting documents “show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”

4

Fed. R. Civ. P.

56(c).

The well-established principles pertinent to such

motions can be distilled to a simple statement.
The Court may look at the evidence presented in regard to
the motion for summary judgment through the non-movant’s rose
colored glasses, but must view it realistically.

After so

doing, the essential question is whether a reasonable fact
finder could return a verdict for the non-movant or whether the
movant would, at trial, be entitled to judgment as a matter of
law.

E.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); Shealy
v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).

III. DISCUSSION
Drury presents claims against Dziwanowski and Hicks for:


Battery – Count I



False Arrest – Count II



False Imprisonment – Count III



Malicious Prosecution – Count IV



Conspiracy – Count V



Constitutional rights violation (state) – Count VI



Constitutional rights violation (federal) – Count VIII

5

A.

Legality of Drury’s Arrest

Defendants arrested Drury without a warrant and charged him
with theft of less than $1,000 (misdemeanor under Md. Code Ann.,
Crim. Law § 7-104), unauthorized removal of property
(misdemeanor under Md. Code Ann., Crim. Law § 7-203), second
degree assault, and resisting arrest.
25-17].

Charge Summary [ECF No.

Defendants contend that the arrest was legal pursuant

to Md. Code Ann., Crim. Proc. § 2-203 (2008 Repl. Vol.) that
provides, in pertinent part:
(a) A police officer without a warrant may arrest a person
if the police officer has probable cause to believe:
(1) that the person has committed [an enumerated
crime]; and
(2) that unless the person is arrested immediately,
the person:
(ii) may cause
another;

. . . property damage to

The enumerated crimes in § 2-203 include “a theft crime where
the value of the property or services stolen is less than $1,000
under § 7-104 or § 7-105 of the Criminal Law Article.” Id.
“Probable cause exists when the facts and circumstances
within an officer’s knowledge — or of which he possesses
reasonably trustworthy information — are sufficient in
themselves to convince a person of reasonable caution that an
offense has been or is being committed.” Wadkins v. Arnold, 214

6

F.3d 535, 539 (4th Cir. 2000)(citing Brinegar v. United States,
338 U.S. 160, 175–76 (1949)).
There is no doubt that when Dziwanowski decided to arrest
Drury he had reasonably trustworthy — in fact indisputable —
information that Mr. Bradford was the legal title holder of the
trailer at issue, that Mr. Bradford did not give Drury any right
to possess the trailer, and that Drury had taken possession of
the trailer and refused to give the registered owner, Mr.
Bradford, possession.2

Thus, there is no factual dispute

regarding Defendants having probable cause to believe that Drury
had committed a theft crime and that the value of the stolen
property was at least3 an amount less than $1,000.

2

Certainly, Dziwanowski knew that Drury claimed to have
purchased the trailer from Ms. Martin. However, an officer’s
knowledge that an apparent offender may have a defense against a
charge does not necessarily negate probable cause. See Jocks v.
Tavernier, 316 F.3d 128, 135–36 (2d Cir. 2003) (“We did not
impose a duty on the arresting officer to investigate
exculpatory defenses offered by the person being arrested or to
assess the credibility of unverified claims of justification
before making an arrest.”).
3
If the property value was in excess of $1,000, the
applicable crime would be a felony under Md. Code Ann., Crim.
Law § 7-104 (2012 Repl. Vol.), and a warrantless arrest would
have been justified. See Ashton v. Brown, 660 A.2d 447, 472 (Md.
1995)(noting a police officer is legally justified in making a
warrantless arrest “where he has probable cause to believe that
a felony has been committed, and that the arrestee perpetrated
the offense”).

7

However, the parties dispute whether Defendants had
probable cause to believe that Drury would commit property
damage if not immediately arrested.
Dziwanowski states that that Mr. Bradford told him that
Drury had said during a phone call that he would destroy the
trailer rather than return it. Dziwanowski Dep. [ECF No. 21-3]
165:15-18.

If the jury finds that this statement was made, it

could find that there was probable cause to believe that, absent
immediate arrest, Drury may cause damage to Mr. Bradford’s
property.
However, there is evidence that could cause a reasonable
jury to find that there was no probable cause to believe that
there was concern for immediate property damage absent arrest.
Mr. Bradford testified that he does not recall Drury’s saying he
would destroy the trailer. Bradford Dep. [ECF No. 25-3] at 76:25.

Furthermore, Drury testified that he told Mr. Bradford he

would give him the trailer if Mr. Bradford paid $2,500. Drury
Dep. [ECF No. 25-9] 57:1-8.
not at Drury’s house.

Furthermore, the trailer itself was

Drury states that he told the Defendants

that the trailer was being worked on by a friend and he did not
know its location. Id. at 73:1-16.
The Court concludes that there are genuine issues of
material fact that prevent summary judgment with regard to the

8

claims based on the legality of Defendants’ warrantless arrest
of Drury.

B.

Excess Force

The resolution of the question whether Defendants used
excess force in effecting Drury’s arrest is pertinent to Drury’s
battery and constitutional claims.
Resolution of the question whether Defendants used excess
force in arresting Drury requires an examination of the totality
of the circumstances to determine whether the force used was
objectively reasonable. Yates v. Terry, 817 F.3d 877, 885 (4th
Cir. 2016).

Specifically, the facts and circumstances relating

to “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or
attempting to evade arrest by flight” should be taken into
account.

Graham v. Connor, 490 U.S. 386, 396 (1989).

The

reasonableness of officers’ actions must be evaluated “in light
of the facts and circumstances confronting them, without regard
to their underlying intent or motivation.”

Id. at 397.

The parties present materially conflicting evidence
regarding the force used to arrest Drury.

9

Drury contends that Defendants entered Drury’s home and
found him sitting on his couch.

Drury contends that Defendants

began to lift him off of the couch and pull his arms to place
him in handcuffs.

Drury maintains he was asking the Defendants

what was happening as they were pulling him off of the couch.
Drury claims that after he was standing, one of the Defendants
slammed him on the floor and they all fell next to the couch.
However, Dziwanowski states that he put Drury on the floor
because Drury swung a fist towards his head and then shoved
Dziwanowski into a shelf. Statement of Probable Cause [ECF No.
25-18] at 4.

Drury and his son, who witnessed the struggle,

both deny this.

Edwin Drury III Dep. [ECF No. 25-14] 35:5.

Dziwanowski further testified that as he was putting his
arm around Drury’s head, Drury moved so that his mouth was on
Dziwanowski’s forearm in such a manner that he believed Drury
was going to bite him.
10-11.

Dziwanowski Dep. [ECF No. 21-3] 208:1-3,

Drury denies this.

Drury states that while he was on the floor, Dziwanowski
struck Drury with his knee several times, causing Drury’s ribs
to fracture.

Dziwanowski states that he inadvertently put his

knee into Drury’s side as they were falling to the ground.
at 211:3-9.

10

Id.

Drury claims that while he was pinned on the floor with his
head under the couch, Dziwanowski punched his back several
times. Edwin Drury III Dep. [ECF No. 25-14] 37:18-20.
Defendants claim that the strikes were delivered because Drury
actively resisted and refused to release his left arm to be
handcuffed. Hicks Dep. [ECF No. 21-5] 71:1-12.
The parties agree, at least, that eventually Drury was
handcuffed and escorted out of the home.
It is perfectly clear that the parties present substantial
questions of material fact regarding Defendants’ alleged use of
excess force.

A reasonable jury could find Drury’s version of

the facts and conclude that Defendants used excess force.

On

the other hand, a reasonable jury could fail to find Drury’s
version of the facts and conclude that Defendants did not use
excess force.
Accordingly, there cannot be summary judgment with regard
to the question of whether Defendants used excess force in
arresting Drury.

C.

Drury’s State Common Law Claims
1.

Battery

Under Maryland law, “[a] battery occurs when one intends a
harmful or offensive contact with another without that person’s
consent.”

Nelson v. Carroll, 735 A.2d 1096, 1099 (Md. 1999).

11

Law enforcement officers possess a privilege to commit a
battery in the course of a legally justified arrest.
v. Hines, 957 A.2d 1000, 1037 (Md. Ct. App. 2008).4

See French
However, a

law enforcement officer’s privilege to commit a battery in the
course of a legally justified arrest “extends only to the use of
reasonable force, not excessive force.

To the extent that the

officer uses excessive force in effectuating an arrest, the
privilege is lost.”

Id. Put more simply, “[t]he right to arrest

. . . does not give rise to a privilege to use an unreasonable
amount of force.” Estate of Saylor v. Regal Cinemas, Inc., 54 F.
Supp.3d 409, 423 (D.Md. 2014).
As discussed above, Drury has presented evidence sufficient
to avoid summary judgment with regard to his claim that
Defendants used excess force in effecting his arrest.

Hence,

Defendants are not entitled to summary judgment on Drury’s state
law battery claim.

However, it appears that this claim may be

duplicative of Drury’s constitutional claims based on the use of
excess force.

See Young v. Prince George’s Cty., Maryland, 355

4

Although Maryland police officers are entitled to qualified
immunity when performing their official duties, they lose such
protection when they commit “an intentional tort or act [ ] with
malice.” DiPino v. Davis, 729 A.2d 354, 370 (Md. 1999); see
also Ashton v. Brown, 339 Md. 70, 117, 660 A.2d 447, 470 (Md.
1995)(withholding public official immunity from false
imprisonment and battery claims).

12

F.3d 751, 759 (4th Cir. 2004).
Accordingly the Court will deny summary judgment with
regard to Drury’s battery claim in Count I.

2. False Arrest
In Maryland, to establish a claim of false arrest a
plaintiff must prove the defendant deprived him of his liberty
“without consent and without legal justification.” State v.
Roshchin, 130 A.3d 453, 459 (Md. 2016).

When the “alleged

deprivation involves an arrest by a law enforcement officer, the
officer cannot be held ‘liable for [false arrest or] false
imprisonment in connection with that arrest if [he or she] had
legal authority to arrest under the circumstances.”

Roshchin v.

State, 100 A.3d 499, 507 (Md. App. 2014), rev’d, 130 A.3d 453
(Md. 2016)(quoting Montgomery Ward v. Wilson, 664 A.2d 916, 926
(Md. 1995)).
As discussed above, the Court concludes that there are
genuine issues of material fact regarding the legality of
Defendants’ warrantless arrest of Drury.5

Hence, the Court will

deny summary judgment on Drury’s false arrest claim.

5

The factual dispute also prevents the Court from granting
public official immunity for the false arrest claim. In Thomas
v. City of Annapolis, 688 A.2d 448, 456 (Md. Ct. App. 1997), the
court held that a policeman “performing his or her discretionary

13

3. False Imprisonment
To establish a claim of false imprisonment a plaintiff must
prove the same elements as claim of false arrest, which are
outlined above.

See id. at 506 (“False arrest and false

imprisonment share identical elements.”).
As discussed above, factual issues persist concerning
whether the Defendants possessed legal justification to arrest
Drury.

Hence, Defendants are not entitled to summary judgment

with regard to the false imprisonment claim.

4. Malicious Prosecution
To establish a malicious prosecution claim, a plaintiff
must prove that:

duties within the scope of employment . . . generally will not
have committed actionable conduct” because “the individual will
not be guilty of an intentional tort in the first instance
because the conduct is legally justified.” However, this
instance of false arrest could possibly be an intentional tort
depending on its legal justification, which hinges on the
factual dispute. Thus, the Defendants are not entitled to
public official immunity at this time.

14



A criminal proceeding was brought against plaintiff,



The case terminated in the plaintiff’s favor,



The absence of probable cause, and



Malice, meaning “a primary purpose in instituting the
proceeding other than that of bringing an offender to
justice.”

Exxon Corp. v. Kelly, 381 A.2d 1146, 1149 (Md. 1978) (quoting
Safeway Stores, Inc. v. Barrack, 122 A.2d 457, 460 (Md. 1956)).
As discussed above, there was probable cause to prosecute
Drury even if the probable cause was not adequate to justify a
warrantless arrest.

Moreover, Drury has not presented evidence

adequate to establish malice on the part of Dziwanowski and
Hicks.
Hence Defendants are entitled to summary judgment with
regard to Drury’s malicious prosecution claim.

5.

Conspiracy

In Maryland law, civil conspiracy is not recognized as an
independent tort.

See Alleco Inc. v. Harry & Jeanette Weinberg

Foundation, Inc., 665 A.2d 1038, 1044-45 (Md. 1995).

The Court

of Appeals has “consistently held that ‘conspiracy’ is not a
separate tort capable of independently sustaining an award of
damages in the absence of other tortious injury to the
plaintiff.” Id. at 1045 (quoting Alexander v. Evander, 650 A.2d

15

260, 265 n.8 (Md. 1994)).
Accordingly, Defendants are entitled to summary judgment
with regard to Drury’s claim that they can be liable, somehow,
for entering into a conspiracy.

Of course, Drury can contend

that both of Dziwanowski and Hicks should be held liable for the
joint use of excess force.
D.

Drury’s Constitutional Claims

Drury contends that Defendants violated his rights
guaranteed by the Fourth Amendment6 to the United States
Constitution and Articles 247 and 268 of the Maryland Declaration
of Rights. The Maryland Court of Appeals recognizes that
“Art[icle] 26 is considered in pari materia with the Fourth
Amendment” Carter v. State, 788 A.2d 646, 652 (Md. 2002), and
Article 24 is analyzed under Fourth Amendment and Fourteenth
Amendment jurisprudence. See Okwa v. Harper, 757 A.2d 118, 141
(Md. 2000); Williams v. Prince George's Cty., 685 A.2d 884, 895

6

The Fourth Amendment to the United States Constitution
provides, in pertinent part: “The right of the people to be
secure in their persons, . . . against unreasonable . . .
seizures, shall not be violated.” U.S. Const. amend. IV.
7
Article 24 of the Maryland Declaration of Rights provides
“[t]hat no man ought to be taken or imprisoned . . . or deprived
of his life, liberty or property, but by the judgment of his
peers, or by the Law of the land.” Md. Const. Decl. of Rts.
art. XXIV.
8
Article 26 states, “That all warrants, without oath or
affirmation, . . . to seize any person or property, are grievous
and oppressive.” Md. Const. Decl. of Rts. art. XXVI.

16

(Md. Ct. App. 1996)(“The essential analysis, however, is the
same under Articles 24 and 26 of the Maryland Constitution as
that under the Fourth Amendment.”).

Hence, the state

constitutional claims are duplicative of the federal
constitutional claims.
Drury presents his federal constitutional claims pursuant
to 42 U.S.C. § 1983 (2012).
To establish a § 1983 claim, a plaintiff must prove that a
defendant:
1. Acted under color of state law,
2. Deprived him/her of a right secured by the
Constitution, and
3. Is not entitled to qualified immunity.9
1.

Color of State Law

There is no doubt that all pertinent actions of Defendants
were performed under color of state law, i.e., as state
officials.

2. Deprivation of Rights
Drury contends that Defendants violated his Fourth
Amendment and state constitutional rights by conducting an
9

That is, the right must have been clearly established at
the time of events at issue. See Graham v. Gagnon, 831 F.3d 176,
182 (4th Cir. 2016). See discussion of qualified immunity below.

17

unreasonable search and seizure, depriving him of his liberty
without due process, using excess force during the course of his
arrest, unreasonably denying him medical treatment, and
summarily punishing him.

Compl. ¶ 91.

These claims shall be addressed in turn.
a.

Unreasonable Search and Seizure

Drury’s unreasonable search and seizure claim is based upon
his allegedly being arrested without legal authority (false
arrest) and the warrantless home arrest (unlawful entry).

i.

False Arrest

As discussed above in regard to Drury’s state law false
arrest claim, there are genuine issues of material fact that
prevent a grant of summary judgment to Defendants on this claim.

ii.

Unlawful Entry

It is undisputed that Defendants arrested Drury inside his
home.

And it is well established that law enforcement officers

may not arrest an individual inside of his home without a
warrant absent exigent circumstances.
U.S. 573, 590 (1980).

Payton v. New York, 445

Police bear “a heavy burden” when trying

to demonstrate an exception to the warrant requirement. Welsh v.
Wisconsin, 466 U.S. 740, 749-50 (1984).

18

The Supreme Court has declined to outline a specific test
for determining whether an exigent circumstance is present in a
given case, but the Fourth Circuit has suggested five factors
that could be relevant:
(1) the degree of urgency involved and the amount of time
necessary to obtain a warrant;
(2) the officers’ reasonable belief that the contraband is
about to be removed or destroyed;
(3) the possibility of danger to police guarding the site;
(4) information indicating the possessors of the contraband
are aware that the police are on their trail; and
(5) the ready destructibility of the contraband.
United States v. Reed, 935 F.2d 641, 642 (4th Cir. 1991)
(quoting United States v. Turner, 650 F.2d 526, 528 (4th Cir.
1981)).

A court must also consider the severity of the offense.

Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).
“Exigent circumstances vary from case to case, and a
determination of the issue is of necessity fact-specific.”
Osabutey v. Welch, 857 F.2d 220, 224 (4th Cir. 1988)).
Defendants assert that there were exigent circumstances
justifying their warrantless entry into Drury’s home.
Specifically, they contend that they were in “hot pursuit” of
Drury when they entered his home.
427 U.S. 38, 42-43 (1976).

19

See United States v. Santana,

It is doubtful that the hot pursuit exception should apply,
given that the Defendants’ arrival brought Drury to his door,
there was “no immediate or continuous pursuit of [Drury] from
the scene of [a] crime,” and Drury thought the Defendants were
there to see the bill of sale, not to arrest him.

Welsh, 466

U.S. at 753.
Nevertheless, it is not necessary for the Court to reach
this question since there are genuine issues of material fact
that prevent summary judgment in regard to the existence vel non
of exigent circumstances warranting Defendants entry into
Drury’s home.
There may be no dispute that Defendants approached the door
of Drury’s home, which was located inside of a glass-enclosed
front porch area, that Drury came to the doorway, and then
retreated into his home and tried to close the door.

Nor does

there appear to be a dispute that Defendants blocked the door
from closing, pushed the door open, and followed Drury into his
home where the arrest occurred.
However, there is conflicting evidence as to Drury’s
precise location at the time of the entry.

Compare Drury Dep.

[ECF No. 25-9] 72:6-12 (standing inside his house with door
halfway open before closing it to end conversation), with Hicks
Dep. [ECF No. 21-5] 42:1-5 (standing on enclosed porch before

20

running back inside to evade order).

Courts have determined the

suspect’s position in the threshold area to be relevant to an
exigent circumstances determination.

Compare United States v.

Santana, 427 U.S. 38, 40 (1976)(exigency applies when suspect
stood in open doorway of her house in public view before police
arrived and retreated once police approached); United States v.
McCraw, 920 F.2d 224, 229 (4th Cir. 1990)(no exigency when
suspect opened hotel door halfway to answer the police’s knock
and then shut it).
Defendants also assert exigent circumstances based upon
their belief that Drury threatened to damage the trailer.
However, as discussed above in regard to the false arrest claim,
there are factual issues as to any such belief.
Accordingly, summary judgment shall be denied on the
unlawful entry claim.

b.

Deprivation of Liberty

Drury’s deprivation of liberty claim is based upon his
allegedly being held in custody without legal authority.
As discussed above in regard to Drury’s state law false
imprisonment claim, there are genuine issues of material fact
that prevent a grant of summary judgment to Defendants on this
claim.

21

c. Excess Force
Executing an arrest with excess force is unreasonable under
the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395
(1989); see also Okwa, 757 A.2d at 141 (evaluating excess force
claim under Article 24 of the Maryland Declaration of Rights).
For the reasons already stated herein, there are genuine issues
of material fact that prevent a grant of summary judgment to
Defendants on this claim.

d. Denial of Medical Treatment
The Court will assume that the Fourth Circuit has
recognized a Fourth Amendment or other claim based upon an
unreasonable denial of medical treatment.

Nevertheless, Drury

has not presented evidence from which a reasonable jury could
find that Defendants unreasonably denied him medical treatment.
Thus Defendants are entitled to summary judgment on the
denial of medical treatment claim.

e.

Summary Punishment

Deprivation of recognized rights, for example by using
excess force in an arrest can be described as “summary
punishment.”

However, there does not appear to be any Fourth

22

Amendment claim for “summary punishment” per se.

Hence,

Defendants shall be granted summary judgment in regard to this
claim.

3.

Qualified Immunity

Defendants assert entitlement to qualified immunity from
Drury’s federal10 constitutional claims.
“The doctrine of qualified immunity
protects government officials from liability
for civil damages insofar as their conduct
does
not
violate
clearly
established
statutory or constitutional rights of which
a reasonable person would have known.”
*

*

*

The shield of qualified immunity is
lost when a government official (1) violates
a constitutional right and (2) that right
was clearly established.
Graham v. Gagnon, 831 F.3d 176, 182 (4th Cir. 2016)(internal
citations omitted).
The Court does not find that Defendants are entitled to
summary judgment based upon qualified immunity from Drury’s
federal claims.

When viewing facts in a light most favorable to

10

Defendants are not entitled to common law public official
immunity for violations of the Maryland constitution. Lee v.
Cline, 863 A.2d 297, 305 (Md. 2004).

23

Drury, it is evident that his claims are based upon clearly
established rights.
For a constitutional right to be clearly
established,
its
contours
“must
be
sufficiently
clear
that
a
reasonable
official would understand that what he is
doing violates that right.
This is not to
say that an official action is protected by
qualified immunity unless the very action in
question has previously been held unlawful,
but it is to say that in the light of preexisting
law
the
unlawfulness
must
be
apparent.”
Hope v. Pelzer, 536 U.S. 730, 739 (2002)(quoting Anderson v.
Creighton, 483 U.S. 635, 640, (1987))(internal citations
omitted).
In the instant case, no reasonable officer could have
believed it lawful to forcefully knee and punch a restrained
individual who was outnumbered, unarmed, and not resisting
arrest.

Similarly, no reasonable officer would believe it

lawful to enter a person’s home to effectuate a warrantless
misdemeanor arrest if there was no reason to believe evidence
would be destroyed or that the individual was fleeing arrest.
Thus, if the jury found the facts as asserted by Drury, there
could not be qualified immunity as to these claims.
However, there may be claims as to which Defendants would
have a qualified immunity defense depending upon the jury’s

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resolution of disputed factual issues.

These issues shall be

addressed with the parties prior to trial.

IV. CONCLUSION
For the foregoing reasons:
1. The Motion for Summary Judgment [ECF No. 21] filed by
Defendants is GRANTED IN PART and DENIED IN PART.
2. Defendants are granted partial summary judgment:
a. Dismissing the Count IV malicious prosecution claims
and the Count V conspiracy claims.
b. Dismissing any “summary punishment” and any denial of
medical treatment § 1983 claims.
3. The case shall proceed to trial on the following claims:11
a. Battery (Count I)
b. False Arrest (Count II)
c. False Imprisonment (Count III)
d. Constitutional Claims (state and federal)
i. Unreasonable search and seizure (false arrest and
unlawful entry)
ii. Deprivation of liberty (false imprisonment)
iii. Excess force

11

Subject to possible “consolidation” of duplicative claims.

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4. Plaintiff shall arrange a telephone conference to be held
by April 7, 2017 to address trial scheduling.

SO ORDERED, this Friday, March 24, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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