Jensen v. Philips et al

Filing 20

MEMORANDUM. Signed by Judge William M Nickerson on 1/12/2017. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JEFFREY CAMERON JENSEN

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v.
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HOWARD HATTON PHILLIPS et al. *
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Civil Action No. WMN-16-1175

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MEMORANDUM
Before the Court is a Motion to Dismiss Amended Complaint
or, in the Alternative, for Summary Judgment, filed by Defendant
Corporal Howard Hatton Phillips.
fully briefed.

ECF No. 15.1

That motion is

Upon review of the motion and the applicable

case law, the Court determines that no hearing is necessary,
Local Rule 105.6, and that the motion will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of an encounter between Plaintiff
Jeffrey Cameron Jensen and Defendant Corporal Howard Hatton
Phillips of the Wicomico County Sheriff’s Office on April 21,
2013.

On that date, Plaintiff was attending an outdoor festival

in Salisbury, Maryland, with his wife.

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Corporal Phillips

Defendants previously filed a motion to dismiss the original
complaint. ECF No. 7. One day after that motion was fully
briefed, Plaintiff filed a motion for leave to amend his
complaint. ECF No. 12. Corporal Phillips has indicated that,
in the interest of expediency, he does not oppose that motion.
ECF No. 15-1 at 2. The Court will grant Plaintiff’s motion to
amend the complaint, and deny Defendants’ prior motion to
dismiss that complaint as moot.

approached Plaintiff and asked for his identification,
explaining that “we have reports that you are going around
impersonating an officer.”

Def.’s Mot., Ex. B,2

ECF No. 15-3.

Plaintiff was employed at the time as a Compliance Inspector II
for the Comptroller of Maryland.3

Plaintiff had previously

approached a tobacco vender at the festival and asked to see the
vendor’s “Other Tobacco Product” license and certificate.

When

the vendor inquired as to Plaintiff’s identity, Plaintiff
dropped his request and walked away.
In response to Corporal Phillips’ request for
identification, Plaintiff indicated that he had no
identification with him and Plaintiff’s wife explained that
Plaintiff had left his wallet at home.

Corporal Phillips then

asked Plaintiff to provide his name but Plaintiff repeatedly
refused, informing Corporal Phillips that he did not believe he
was required to provide his name.

Corporal Phillips then

ordered him to give his name and indicated that, if he did not
do so, he would be arrested.

Plaintiff continued to refuse to

provide his name, and Corporal Phillips then placed him in
handcuffs.

Id.

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This exhibit is the complaint Plaintiff filed with the Wicomico
County Sheriff’s Office on April 21, 2014.
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Plaintiff asserts his employment was terminated after his
employer was informed of his arrest by the Wicomico County
Sheriff’s Office. Id. at 2; Am. Compl. ¶ 22.
2

By this time, several other Wicomico County Sheriff
Deputies had arrived at the scene.

After Plaintiff was

handcuffed, the Deputies began to search through the pockets of
his clothes.

Plaintiff relates that the Deputies pulled

everything out of his pockets and then either placed the
contents back in his pockets or handed items to Plaintiff’s
wife.

Plaintiff was then walked over to a police car.

As the

Deputies began placing him in a position to be seated in the
back seat, Plaintiff told them to “wait a second,” because he
had a knee injury that required him to use special care.
Plaintiff states that the Deputies threatened to TASER him if he
did not sit down.

When he started to sit down, he again told

the Deputies to wait a second because he had something in his
back pocket and they again threatened to TASER him.

They then

removed the contents from his back pocket and Plaintiff sat down
onto the back seat of the vehicle.

Plaintiff was never TASERed.

Plaintiff’s arrest took place about 3:30 in the afternoon.
He was subsequently charged with obstructing and hindering,
resisting arrest, and disorderly conduct and was released on
bail at about 1:00 the next morning.

On August 5, 2013,

Plaintiff appeared for trial on those charges at the District
Court of Maryland for Wicomico County where he was represented
by private counsel.

Plaintiff entered a guilty plea on the

charge of disorderly conduct and the remaining two charges were
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nol prossed.

Mot., Ex. A.

Plaintiff was sentenced to probation

before judgment and assessed court costs.

Id.

Plaintiff filed suit in this Court on April 20, 2016, one
day shy of three years after the incident in question.
Proceeding pro se, he brought claims against Corporal Phillips,
as well as Michael Lewis, the Sheriff of Wicomico County.

The

original Complaint contained six counts: “Count I – Violation of
42 U.S.C. 1983;” “Count II - Violation of Civil Rights Pursuant

to 42 U.S.C. 1983 Use of Excessive Force;” “Count III Violation of Civil Rights Pursuant to 42 U.S.C. 1983 False
Arrest;” “Count IV - Civil Assault” “Count V – Battery;” and
“Count VI - False Imprisonment.”

Defendants filed a motion to

dismiss the complaint in its entirety.

Plaintiff, now

represented by counsel, filed an opposition in which he
indicated that he did not oppose the dismissal of Counts IV and
V, the assault and battery claims.

He also acknowledged that

there were insufficient allegations in the Complaint to support
the claims against Sheriff Lewis.
In the Amended Complaint filed by Plaintiff’s counsel the
day after Defendants filed their reply brief, the assault and
battery claims were dropped, as well as the claims against
Sheriff Lewis.

While the allegations in the Amended Complaint

are generally the same as the original complaint, Plaintiff’s
counsel attempted to elevate the language relating to the
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physical force used by the arresting officers.

Plaintiff now

alleges that Corporal Phillips attacked Plaintiff by “lunging
towards him, forcefully pulling his shoulder, grabbing hold of
him, and unwelcomely and forcefully reaching repeatedly inside
Plaintiff’s pockets.”

Am. Compl. ¶ 15.4

In addition, the

Amended Complaint attempts to alter the sequence of events, now
alleging that “[b]efore the arrest, Corporal Phillips thrust his
hand into Plaintiff’s top pocket.”
added).

Am. Compl. ¶ 17 (emphasis

As Defendant correctly observes, however, this

resequencing is inconsistent with other allegations in the same
paragraph which allege that a Deputy “placed his hands around
the handcuffs on Plaintiff while Officer Phillips began
searching Plaintiff.”

Id.

Corporal Phillips has moved for dismissal or, in the
alternative, for entry of summary judgment, as to all claims
against him in the Amended Complaint.
II. LEGAL STANDARD
Here, Defendant has submitted material outside the pleadings
with his motion.

When matters outside the pleadings are presented

to and not excluded by the court, a motion under Rule 12(b)(6) must
be treated as one for summary judgment under Rule 56.
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Rule 56(b)

A review of the red-lined version of the Amended Complaint
highlights Plaintiff’s counsel’s repetitious insertion of this
“lunging,” “grabbing,” “forcefully reaching” language into the
Amended Complaint. See ECF No. 13, Redlined Amended Complaint
¶¶ 16, 17, 30, 35.
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of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered in favor of a moving party when there is
no genuine dispute as to any material fact, and the moving party is
entitled to judgment as a matter of law.
Catrett, 477 U.S. 317, 322 (1986).

See Celotex Corp. v.

Rule 56 mandates summary

judgment against a party “who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.”

Id.

Trial judges have an affirmative obligation to

prevent factually unsupported claims from proceeding to trial.
Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1986).
Where, in a case “decided on summary judgment, there have not
yet been factual findings by a judge or jury, and [one party’s]
version of events . . . differs substantially from [the other
party’s,] . . . courts are required to view the facts and draw
reasonable inferences in the light most favorable to the party
opposing the [summary judgment] motion.”
372, 378 (2007).

Scott v. Harris, 550 U.S.

However, “[a]t the summary judgment stage, facts

must be viewed in the light most favorable to the nonmoving party
only if there is a ‘genuine’ dispute as to those facts.”

Id. 550

U.S. at 380.

III. DISCUSSION
The precise scope of Plaintiff’s cause of action in each of
the different counts is less than clear.

Count I, captioned as

“Violation of 42 U.S.C. § 1983” references Plaintiff’s rights
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“to be free from unreasonable searches and seizures;” “not to be
deprived of liberty without due process of law;” “to be free
from excessive force by persons under the color of law;” and “to
be free from false arrest.”

Am. Compl. ¶ 28.

Count II is

captioned as “Violation of Civil Rights Pursuant to 42 U.S.C.
1983 Use of Excessive Force,” but references both the rights to
be free of excessive force and unreasonable seizures.

Id. ¶ 36.

Count IV of the Amended Complaint, which was mis-numbered as
Count VI and captioned “False Imprisonment,” included the
assertion that “Plaintiff had constitutional rights under the
Fourth Amendment to the United States Constitution to be free
from unreasonable seizures and excessive force.”

Am. Compl. ¶

42.
In his motion to dismiss, or for summary judgment, Corporal
Phillips characterizes the Amended Complaint as asserting
essentially three claims under 42 U.S.C. § 1983, claims for
false arrest, excessive force, and an unreasonable search.
No. 15-1 at 5.

ECF

In opposing the motion, Plaintiff only provides

direct argument in support of his claims for “Excessive Force”
(Argument and Analysis III.A) and “Count III - False
Arrest/Count IV –False Imprisonment” (Argument and Analysis
III.B).

Plaintiff references the search of his person, but only

in the context of the amount of force used in conducting the
search.

See, ECF No. 16 at 7 (referencing a dispute over the
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“full extent of police force used to search [Plaintiff]”).

The

Court will assume, for purposes of this memorandum, that
Plaintiff is asserting claims of false arrest, excessive force,
and unlawful search.
Plaintiff’s false arrest claim is foreclosed as a matter of
law by his guilty plea.

A claim of false arrest requires that

that there was no legal authority or justification for the
arresting officer’s actions.
(Md. 1995).

Ashton v. Brown, 660 A.2d 447, 472

A conviction establishes that there was probable

cause for the arrest and bars any claim for false arrest or
false imprisonment.

Brown-Rice v. Maryland, Civ. No. CCB-09-

219, 2009 WL 1690516, at *1 (D. Md. 2009).

Plaintiff was

convicted of disorderly conduct - breach of the public peace,
albeit by the entry of his guilty plea.
In his opposition, Plaintiff does not challenge the
“applicable legal precedent in this regard; he cannot pursue a
false arrest claim if a judgment in his favor would call into
question the validity of his state court convictions.”

ECF No.

16 at 9 (citing Heck v. Humphrey, 512 U.S. 477, 487 (1994)).

He

posits, however, that the application of that principle in his
case is “more nuanced.”

Id.

To avoid the bar created by his

guilty plea, Plaintiff now argues that his disorderly conduct
and breach of the public peace, the crime for which he was

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convicted, did not occur until “after he was arrested for
unknown reasons.”

Id.

The Court notes that the Amended Complaint does not so
narrowly segment the time frame of Plaintiff’s false arrest
claim.5

Even were the Court to read the claim as so narrowly

segmented, the undisputed facts establish that Corporal Phillips
had probable cause to arrest Plaintiff for the crime of
obstruction and hindering prior to effecting Plaintiff’s arrest.
“In Maryland, obstructing and hindering a law enforcement
officer in the performance of his duty is a common law offense.”
Titus v. State, 32 A.3d 44, 50 (Md. 2011).

The offense is

established where there is:
(1) A police officer engaged in the performance of a
duty;
(2) An act, or perhaps an omission, by the accused
which obstructs or hinders the officer in the
performance of that duty;
(3) Knowledge by the accused of facts comprising
element (1); and
(4) Intent to obstruct or hinder the officer by the
act or omission constituting element (2).
Cover v. State, 466 A.2d 1276, 1284 (Md. 1983).

Plaintiff has

acknowledged that when Corporal Phillips approached him he
explained that he was investigating reports that Plaintiff was

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As Defendant observes, it is difficult to imagine what
compensable damages could result from this narrowly defined
period of detention.
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going about impersonating an officer.

Def.’s Mot., Ex. B at 1.

As part of his investigation, Corporal Phillips attempted to
obtain Plaintiff’s name and identity in order to determine
whether Plaintiff had the authority to question vendors
regarding their licensure.

Plaintiff was aware that Corporal

Phillips was a police officer and knew the purpose of his
investigation and, nonetheless, repeatedly refused to simply
provide his name.

Under the facts acknowledged by Plaintiff,

Corporal Phillips had probable cause to arrest Plaintiff for the
crime of obstructing and hindering prior to effecting
Plaintiff’s arrest.
A finding that the arrest was proper also resolves
Plaintiff’s remaining claims.

“[T]he right to make an arrest or

investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.”
Graham v. Connor, 490 U.S. 386, 396 (1989).

In the complaint

submitted to the Wicomico County Sheriff’s Office just one year
after the event in question, the only physical force that Plaintiff
asserted was actually employed was his being handcuffed.

The

Fourth Circuit Court of Appeals has held that the handcuffing of an
arrestee “is so insubstantial that it cannot as a matter of law
support [a] claim under either the Fourth Amendment or the
Fourteenth.”

Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir.

1999).

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Plaintiff’s description of the course of events subsequent to
his arrest belies any inference of excessive force.

While he

asserts that the Deputies reached into his pockets looking for some
identification, he also states that they handed Plaintiff’s phone
to Plaintiff’s wife and replaced other items into Plaintiff’s
pockets.

When placing Plaintiff in the police car, Plaintiff makes

no claim that the Deputies did not permit him to enter the vehicle
in a manner that did not aggravate his preexisting knee injury.
They also stopped the insertion of Plaintiff into the vehicle in
order to remove an object from Plaintiff’s back pocket about which
Plaintiff had expressed concern.

While Plaintiff alleges that the

Deputies threatened to TASER him, he makes no claim that they did
so.
Plaintiff’s counsel’s elevated language inserted into the
Amended Complaint still falls far short of establishing an
excessive force claim.

Simply “lunging” towards an individual is

not a use of force, much less excessive force.

Pulling on a

shoulder or grabbing an individual incident to placing that
individual in handcuffs is not excessive force.

Simply reaching in

an individual’s pockets, even if “unwelcomely and forcefully,”

does not rise to the level of excessive force.
To the extent that Plaintiff is still asserting a claim of
an unreasonable search, it also fails.

It is well established

that a “‘custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion

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being lawful, a search incident to the arrest requires no
additional justification.’”

Spence v. State, 118 A.3d 864, 868

(Md. 2015) (quoting United States v. Robinson, 414 U.S. 218, 235
(1973)).

The Court detects in Plaintiff’s counsel’s attempt in the

Amended Complaint to transport the search back to a time period
before the arrest an implicit acknowledgement that the search

would have been lawful as a search incident to arrest.

This new

re-ordering of events, however, is inconsistent with Plaintiff’s
previous statements as well as other allegations in the Amended
Complaint and will not be credited.
Aside from the unpersuasive arguments going to the merits
of his claims, Plaintiff’s primary argument in opposing the
instant motion is that “[b]efore the Court rules on this Motion
for Summary Judgment, Mr. Jensen must be provided a reasonable
opportunity to discover facts and evidence material to this
case.”

ECF No. 16 at 2.

While there are certainly cases where

a party needs discovery in order to adequately oppose a summary
judgment motion, this is not such a case.

Plaintiff has

firsthand knowledge of all the facts that could support or
defeat his claims, including the sequence of events at the
festival, Corporal Phillips’ use of force and, perhaps most
significantly, Plaintiff’s guilty plea.
For all these reasons, the Court concludes that Corporal
Phillips is entitled to summary judgment on all claims brought
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against him.

A separate order consistent with this memorandum

will issue.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

DATED: January 12, 2017

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