Graham v. Cox, #4760 et al

Filing 39

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 3/29/2019. (c/m 3/29/19 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID GRAHAM,

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Plaintiff

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v

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TROOPER MICHAEL COX, #4760, et al.,

*

Defendants

Civil Action No. ELH-18-221

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***
MEMORANDUM OPINION

In this civil rights action, plaintiff David Graham complains that Maryland State Police
Corporal Michael Cox, Sergeant Sean Harris, and former Sergeant Joshua Justice1 used excessive
force during his arrest on January 30, 2015, resulting in serious injury. ECF 1 (Complaint); ECF
21 (supplement to the Complaint). Defendants have filed a corrected “Motion to Dismiss Or, In
The Alternative, Motion for Summary Judgment” (ECF 17), supported by a memorandum (ECF
17-1) (collectively, the “Motion”) and several exhibits. Plaintiff opposes the Motion (ECF 20;
ECF 26) and defendants replied. ECF 28.
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that
follow, I shall construe the Motion as one for summary judgment and grant it.
I. Background
On January 14, 2019, I issued a Memorandum Opinion (ECF 34) and Order (ECF 35),
ruling on various pending motions. However, I did not rule on defendants’ Motion (ECF 17). To
do so, I draw on the factual summary set forth in ECF 34, at 1-5:
A. Plaintiff’s Complaint
1

I have gleaned the ranks of the defendants from ECF 17. Justice is now a Special Agent
with the FBI. ECF 17-6 (Justice Declaration), ¶ 1

In his unsworn Complaint, plaintiff states that an individual named David
Spratt identified him in a photo array conducted by law enforcement as part of an
investigation into the January 27, 2015 burglary of Cooper’s Market in Elkton,
Maryland. ECF 1 at 5. On January 30, 2015, defendants, who were employees of
the Maryland State Police, had information that “Plaintiff was operating a yellow
Ford Mustang, Maryland Registration IAK6308.” Id. At some point, defendants
observed plaintiff driving the Mustang and pursued him. Id.
Plaintiff states that after “the pursuit was ended . . . Plaintiff surrendered,
and complied with all orders of defendants, i.e. (hand in the air, etc.), yet at this
time defendants collectively and violently yanked this passive Plaintiff from the
vehicle.” Id. at 6. After plaintiff was “forcibly and violently thrown to the
pavement” and handcuffed, defendants pressed plaintiff to the ground “while others
kicked, stomped Plaintiff in his face, head, back and other areas,” despite plaintiff
being “securely restrained” at the time and posing no threat of physical harm to
defendants. Id. According to plaintiff, while he was handcuffed, defendants and
other law enforcement officers who were present collectively “beat Plaintiff’s ribs
and stomach areas”, “unnecessarily used Tasers on Plaintiff . . . until Plaintiff layed
[sic] motionless on the pavement, while blood ran down his face”, “beat Plaintiff
with batons”, and physically assaulted plaintiff with their hands and feet. Id. at 67. Plaintiff reports that, as a consequence of this attack, he experienced
massive swelling to the left and right sides of his head, face, a
broken nose, 2 swollen and closed black eyes, blood spotting in the
whites of both eyes, a severed left ear lobe, busted lips, broken
tooth, cuts, lacerations, and abrasions and avulsions, . . . stressed
tension to the back of the neck, bruised body and back areas, and
extreme pain and discomfort; . . . long term migraine headaches,
neck and shoulder pain, inability to perform and complete short and
long term noncomplicated tasks, suffers loss of memory, and has
difficulty sleeping.
Id.
Although the Complaint does not attribute particular acts to any individual
defendant, plaintiff subsequently filed an unsworn Motion to Amend (ECF 21), in
which he states that, after his car came to a stop,
Plaintiff raised both hands, and Sgt Justice came back and pulled my
hands behind the back and cuffed me, then Sgt. Justice pulled me
out of the car and Justice and Cpl Harris (who helped Justice
handcuffed [sic] Plaintiff) [sic]; . . . After Justice and Harris
handcuffed Plaintiff, Justice began kicking Plaintiff on the right
side, and Harris began kicking Plaintiff on the left side of the face;
2

. . . Tfc. Cox beat Plaintiff with his stick, striking Plaintiff in the
face, shoulder, and on the right side of the body.”
Id. at 2. The Motion also attributes specific acts to particular officers who are not
defendants. Id. at 3.
Plaintiff claims defendants’ vicious use of force was excessive, “completely
out of proportion to any legitimate needs,” and employed with malicious and
sadistic intent. Id. at 7. In particular, he believes that defendants conspired to
physically assault him “in retaliation for an unrelated hit and run that involved
unrelated events, and involving an unrelated law enforcement Officer MSP Trooper
Spinner.” Id. In support of this assertion, plaintiff reports that “MSP Troopers”2
made post-attack statements such as “we got him for Spinner.” Id.
B. Defendants’ Motion & Exhibits
Defendants’ Motion (ECF 17) is supported by an affidavit from each of the
three defendants. ECF 17-4; ECF 17-5; ECF 17-6. Defendants’ version of events
differs significantly from the allegations in Graham’s Complaint.
Each defendant avers that he was assigned to assist with the pursuit of
plaintiff’s vehicle after other law enforcement officers (who were not named as
defendants) initiated the pursuit[.] ECF 17-4 at 2; ECF 17-5 at 2; ECF 17-6 at 2.
Defendants believed that plaintiff “was wanted for several felony warrants” and
were “informed that [plaintiff] always carries a handgun.” Id. Plaintiff drove at
high speeds and continued even after “his tires were punctured with stop sticks.”
ECF 17-4 at 3. Ultimately, the pursuit ended after plaintiff’s car was boxed in by
law enforcement vehicles and brought to a complete stop when plaintiff “us[ed] his
vehicle to ram the rear of the vehicle [defendant Cox] was riding in at the time.” Id.
Cox, Harris, and Justice were all in the same vehicle, which Justice was driving.
ECF 17-4 at 3.
After the passengers in plaintiff’s car were moved to safety, Cox, who
possessed a “duty weapon,” “positioned [him]self by Graham. Graham had refused
to exit the vehicle, and was on the ground at that point.” Id. at 3-4. The three
defendants and other officers “gave Graham verbal commands to put his hands
behind his back for handcuffs. Graham failed to comply and actively resisted
handcuffs by struggling to put his hands in his front waistband.” ECF 17-4 at 4;
ECF 17- 5 at 3; ECF 17-6 at 3.
Cox avers, ECF 17-4 at 4:
Plaintiff does not specify whether the defendants are the “MSP Troopers” who
made these comments.
2

3

A Cecil County Sheriff’s Office deputy attempt[ed] to deploy a
tazer, but it had no effect on Graham. Graham then grabbed for the
deputy’s tazer. . . . Due to Graham’s active resistance and the
concern that Graham was armed, [Cox] used [his] Monadnock
Expandable Baton (MEB), attempting to jab [Graham’s] right
shoulder to prevent him reaching for his waistband. Graham’s
movements deflected this strike from his shoulder to his cheek. The
blow did not seem to have any effect on Graham. [Cox] attempted
strikes with [his] leg in Graham’s shoulder/upper arm area.
Thereafter, the officers present were able to place Graham in handcuffs. Id.
According to Cox, “Graham appeared to be on drugs at the time of his arrest” and
was provided with “immediate medical attention” by a Maryland State Police medic
before EMS arrived. Id. at 5.
Each of the three defendants avers that he did not possess a taser during the
incident, nor did he (or any of the officers that he observed) use force after Graham
was handcuffed. ECF 17-4 at 4; ECF 17-5 at 3; ECF 17-6 at 3. Further, each avers
that “[t]he force employed was limited to what was necessary to apprehend and
handcuff Graham.” Id.
C. Plaintiff’s Response & Motion to Amend3
Plaintiff filed an opposition to the Motion, in which he reiterates his
assertion that he offered no resistance once his vehicle was stopped and that law
enforcement officers severely assaulted him after he was restrained. ECF 20 at 912. Although plaintiff details the various assaults he suffered and the resulting
injuries, plaintiff speaks generally of “police” or unspecified “defendants” exerting
the force, or he uses phrases in such a way as to remove any reference to the identity
of the individual(s) committing the assault. Id. at 14-16.
3

As explained in the Court Order dated August 15, 2018, both the first Response
and the Motion to Amend contain indicia that plaintiff may have intended for the
statements contained within to be sworn, but neither document contained a signed
statement that it was made under penalty of perjury. ECF 25. Because plaintiff is
pro se, the Court granted him “the opportunity to supplement these filings by
signing a declaration under penalty of perjury as to the truth of the allegations they
contain if he, in fact, intends to make these allegations under oath.” Id. The Court
expressly warned plaintiff that if he failed to do so within the 21-day period
provided by the court those filings “SHALL BE treated as unsworn.” Id. Plaintiff
did not submit such declarations, and therefore the Court treats these filings as
unsworn.
4

Plaintiff claims: “All defendants participated in the excessive use of force,
along with defendants initially listed as ‘Cecil County Sheriff Department, et. al.’”
Id. at 15. However, no such defendant was identified in the Complaint. See ECF 1
at 4-5 (naming only Cox, Harris, and Justice, and purporting to “reserve[] the right
to freely amend or add additional unknown defendants, that worked at the Cecil
County Sheriff’s Department” but never identifying any such individual or “John
Doe” defendant).
Subsequently, plaintiff submitted a second response to the Motion. It largely
contains statements of law concerning excessive force and qualified immunity and
reiterates his allegations about the severity of his injuries. ECF 26.
In addition to the foregoing, defendants contend that ample probable cause supported the
arrest of Mr. Graham. ECF 17-1 at 1. Moreover, they point out that Graham was charged, and
ultimately pled guilty to, the offenses of reckless engangerment, possession of crack cocaine, and
fleeing and eluding the police, arising from the incident of January 30, 2015. See ECF 17-3.
Graham filed responses in opposition to the Motion (ECF 20; ECF 26) and a Motion to
Amend Complaint (ECF 21). See also note 3, supra. These submissions contained indications
suggesting that he sought to swear to their contents under oath, but neither filing was made under
penalty of perjury. In my Order of August 15, 2018 (ECF 25), I referenced the opposiiton (ECF
20), and the Motion to Amend (ECF 21), and said: “In view of his pro se status, the Court will
allow Plaintiff the opportunity to supplement these filings by signing a declaration under penalty
of perjury as to the truth of the allegations they contain if he, in fact, intends to makes these
allegations under oath.” Id. But, I cautioned Graham that, if he failed to do so within 21 days, the
Court would treat the filings as unsworn. Id. Graham did nto respond to the Order. See Docket.
On September 11, 2018, defendants filed a Reply. ECF 28. They noted that Graham’s
period for compliance had expired, and they reiterated their request for summary judgment in their
favor. Id. Graham did not respond to the Reply. See Docket.
5

Both the Order and the Reply were mailed to Graham’s address of record as of the time of
mailing (Roxbury Correctional Institution). Neither document was returned to the Court as
undeliverable, nor is there any basis to conclude that Graham did not receive either of these
documents.
Subsequently, Graham filed two notices of change of address. ECF 32; ECF 33. In ECF
32, docketed November 19, 2018, Graham stated that he was transferred to another facility on
November 9, 2018.4

The second notice was docketed on December 17, 2018.

ECF 33.

Unfortunately, the Clerk’s Office did not correctly update the docket sheet in this case to reflect
the changes of address. See ECF 36. Consequently, when the Court issued its Memorandum
Opinion and Order of January 14, 2019 (ECF 34; ECF 35), in which I ruled on other motions, the
Clerk sent it to the wrong address for Graham. See ECF 36. The mailing was returned to the Clerk
on February 25, 2019. Id.
Of relevance, in the Memorandum Opinion and Order of January 14, 2019, I noted that
Graham’s submissions (ECF 20, ECF 21) were not made under oath. Therefore, I granted him,
yet again, an additional period of time to file an affidavit in support of his opposition to ECF 17.
See ECF 34 at 11; ECF 35, ¶ 4.5

4

According to his notices of change of addres, Graham was transferred to Pennsylvania
State Correctional Institution Camp Hill on November 9, 2018, and thereafter he was transferred
to Pennsylvania State Correctional Institution Smithfield on December 10, 2018. ECF 32; ECF
33. However, the mailing address for both institutions is the same post office box in St. Petersburg,
Florida maintained by Smart Communications. Id.; see also Where to Send Your Stuff,
Pennsylvania Dep’t of Corr., https://www.cor.pa.gov/family-and-friends/Pages/Where-to-SendYour-Stuff.aspx (last visited March 29, 2019).
5

This is not to suggest that the Court was required to extend the opportunity to Graham to
supplement his filings.
6

As noted, the Memorandum Opinion and Order were returned to the Clerk on February 25,
2019, because plaintiff had been transferred to another institution. ECF 36. Therefore, by Order
of March 6, 2019 (ECF 37), I directed the Clekr to resend ECF 34 and ECF 35 to Graham, at the
correct address. And, I extended Graham’s response time. ECF 36.
Unfortunately, yet another clerical error occurred in mailing ECF 34, ECF 35, and ECF
36. On March 28, 2019, the documents were returned to the Clerk as undeliverable. ECF 38.
Apparently, this is because the Clerk omitted one digit from the address for the P.O. Box. Id.
II. Standard of Review
Defendants' motion is styled as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in
the alternative, for summary judgment under Fed. R. Civ. P. 56. A motion styled in this manner
implicates the court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See
Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F. Supp. 2d 431, 436-37 (D. Md.
2011). Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual
disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th
Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside
of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one
for summary judgment under Rule 56,” but “[a]ll parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see Adams
Housing, LLC v. The City of Salisbury, Maryland, 672 F. App’x 220, 222 (4th Cir. Nov. 29, 2016)
(per curiam). However, when the movant expressly captions its motion “in the alternative” as one
for summary judgment, and submits matters outside the pleadings for the court’s consideration,
the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court “does

7

not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth.,
149 F.3d 253, 261 (4th Cir. 1998).6
A district judge has “complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6)
motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.” 5 C
WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed. 2004, 2011 Supp.).
This discretion “should be exercised with great caution and attention to the parties’ procedural
rights.” Id. at 149. In general, courts are guided by whether consideration of extraneous material
“is likely to facilitate the disposition of the action,” and “whether discovery prior to the utilization
of the summary judgment procedure” is necessary. Id. at 165, 167.
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc.,
637 F.3d 435, 448-49 (4th Cir. 2012); see Putney v. Likin, 656 F. App’x 632, 638-39 (4th Cir. July
14, 2016) (per curiam); McCray v. Maryland Dep’t of Transportation, 741 F.3d 480, 483 (4th Cir.
However, “the party opposing summary judgment ‘cannot complain that summary

2015).

judgment was granted without discovery unless that party has made an attempt to oppose the

6

In contrast, a court may not convert a motion to dismiss to one for summary judgment
sua sponte, unless it gives notice to the parties that it will do so. See Laughlin, 149 F.3d at 261
(stating that a district court “clearly has an obligation to notify parties regarding any courtinstituted changes” in the posture of a motion, including conversion under Rule 12(d)); Finley
Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp., 109 F.3d 993, 997 (4th Cir. 1997) (“[A]
Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one for
summary judgment until the district court acts to convert the motion by indicating that it will not
exclude from its consideration of the motion the supporting extraneous materials.”); see also
Adams Housing, LLC, 672 F. App’x at 622 (“The court must give notice to ensure that the party is
aware that it must ‘come forward with all of [its] evidence.’” (citation omitted)).
8

motion on the grounds that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet
Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 961 (4th Cir. 1996)); see Dave & Buster’s, Inc. v. White Flint Mall, LLLP, 616
F. App’x 552, 561 (4th Cir. 2015).
To raise adequately the issue that discovery is needed, the nonmovant typically must file
an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for
specified reasons, it cannot present facts essential to justify its opposition,” without needed
discovery.

Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit

requirement of former Rule 56(f)). “[T]o justify a denial of summary judgment on the grounds
that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be ‘essential
to [the] opposition.’” Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D. Md. 2011)
(alteration in original) (citation omitted). A nonmoving party’s Rule 56(d) request for additional
discovery is properly denied “where the additional evidence sought for discovery would not have
by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag v.
Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see McClure v. Ports, 914 F.3d
866, 874-75 (4th Cir. 2019); Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014); Amirmokri v.
Abraham, 437 F. Supp. 2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x. 274 (4th Cir.), cert. denied,
555 U.S. 885 (2008).
If a nonmoving party believes that further discovery is necessary before consideration of
summary judgment, the party fails to file a Rule 56(d) affidavit at his peril, because “‘the failure
to file an affidavit . . . is itself sufficient grounds to reject a claim that the opportunity for discovery
was inadequate.’” Harrods, 302 F.3d at 244 (citations omitted). But, the nonmoving party’s
9

failure to file an affidavit may be excused “if the nonmoving party has adequately informed the
district court that the motion is premature and that more discovery is necessary” and the
“nonmoving party’s objections before the district court ‘served as the functional equivalent of an
affidavit.’” Harrods, 302 F.3d at 244-45 (internal citations omitted); see also Putney, 656 F. App’x
at 638; Nader v. Blair, 549 F.3d 953, 961 (4th Cir. 2008). “This is especially true where, as here,
the non-moving party is proceeding pro se.” Putney, 656 F. App’x at 638.
As the Court explained in its Memorandum Opinion of January 14, 2019 (ECF 34),
plaintiff’s Motion to Amend his Complaint indicated that plaintiff believed discovery was
necessary. Therefore, the Court treated that motion as the functional equivalent of a Rule 56(d)
affidavit. ECF 34 at 10. Nonetheless, the Court concluded: “Plaintiff’s unsworn motion for
discovery fails to explain why, for specified reasons, he cannot present facts essential to justify his
opposition, without needed discovery.” Id. (internal quotation marks and brackets omitted).
The Court determined that plaintiff had not explained why other avenues of information,
such as documents in his criminal case or publicly available court records, were insufficient to
provide some of the information he sought. Id. at 10-11. Further, the Court noted that Graham’s
other claims were based on personal knowledge, meaning plaintiff could oppose defendants’
Motion with an affidavit. Accordingly, I granted plaintiff the opportunity to file such an affidavit.
Id. at 11; see also ECF 37 (resending opinion and order to Graham because of his change of
address).
Unfortunately, as noted earlier, owing to a series of clerical errors, and through no fault of
Graham, the Court’s Memorandum Opinion and Order (ECF 34; ECF 35), and another Order (ECF
36) were sent to the wrong address, so Graham did not timely receive them. Nonetheless, and of
10

import here, in August 2018, the Court previously provided Graham with the opportunity to make
his relevant factual allegations under oath. See ECF 25. Yet, he failed to do so. See Docket. In
view of this critical fact, and considering the amount of time that the Motion has languished, I
decline to delay further the resolution of this case. However, Graham shall have the opportunity
to move for reopening of the case, as outlined, infra.
For the reasons stated in my Memorandum Opinion of January 14, 2019, I conclude that
Graham has failed to articulate adequately why “for specified reasons, [he] cannot present facts
essential to justify [his] opposition,” without needed discovery. Fed. R. Civ. P. 56(d); see Harrods,
302 F.3d at 244-45. Therefore, it is appropriate to construe defendants’ Motion as one for
summary judgment, as this will facilitate the resolution of this case. But, because of the clerical
errors, as recounted earlier, Graham is advised that the Court will reevaluate this decision if, by
April 29, 2019, he files a motion to that effect, supported by an affidavit as described in the
Memorandum Opinion of January 14, 2019.7
Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides, in part: “The
court shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986); see also Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848
F.3d 235, 238 (4th Cir. 2017) (“A court can grant summary judgment only if, viewing the evidence
in the light most favorable to the non-moving party, the case presents no genuine issues of material
fact and the moving party demonstrates entitlement to judgment as a matter of law.”).

7

This option is in addition to and not in lieu of the ordinary post-judgment filings
available to civil litigants. See Fed. R. Civ. P. 59(e), 60(b).
11

The

Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion.
“By its very terms, this standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id.
at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.; see Sharif v. United Airlines, Inc., 841 F.3d
199, 2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party
of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).
Notably, “[a] party opposing a properly supported motion for summary judgment ‘may not
rest upon the mere allegations or denials of [his] pleadings.” Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ.
P. 56(e)), cert. denied, 541 U.S. 1042 (2004). Fed. R. Civ. P. 56(c) provides:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact
The court should “view the evidence in the light most favorable to . . . the nonmovant, and
draw all inferences in [his] favor without weighing the evidence or assessing the witness
12

credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002);
see Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017);
FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013). Moreover, the district court’s “function” is
not “to weigh the evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial.” Anderson, 477 U.S. at 249; accord Guessous v. Fairview Prop. Inv.,
LLC, 828 F.3d 208, 216 (4th Cir. 2016). Therefore, the trial court may not make credibility
determinations on summary judgment. Jacobs v. N.C. Administrative Office of the Courts, 780
F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir.
2007); Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis, 290
F.3d at 644-45. Notably, in the face of conflicting evidence, such as competing affidavits,
summary judgment is generally not appropriate, because it is the function of the fact-finder to
resolve factual disputes, including matters of witness credibility.
Nevertheless, to defeat summary judgment, conflicting evidence, if any, must give rise to
a genuine dispute of material fact. See Anderson, 477 U.S. at 247-48. If “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party,” then a dispute of material fact
precludes summary judgment. Id. at 248; see Libertarian Party of Va. v. Judd, 718 F.3d 308, 313
(4th Cir. 2013). On the other hand, summary judgment is appropriate if the evidence “is so onesided that one party must prevail as a matter of law.” Id. at 252. And, “the mere existence of a
scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Id.
Because plaintiff is self-represented, his submissions are liberally construed. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007). But, the Court must also abide by the “affirmative obligation
13

of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.”
Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d
774, 778–79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)).
III. Discussion
A. Section 1983
Section 1983 of Title 42 of the United States Code provides that a plaintiff may file suit
against any person who, acting under color of state law, “subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws” of the United States. See,
e.g., Filarsky v. Delia, 566 U.S. 377 (2012); see also Owens v. Balt. City State’s Attorney’s Office,
767 F.3d 379 (4th Cir. 2014), cert. denied sub nom. Balt. City Police Dep't v. Owens, 135 S. Ct.
1983 (2015). However, § 1983 “‘is not itself a source of substantive rights,’ but provides ‘a method
for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). In other words, § 1983 allows “a
party who has been deprived of a federal right under the color of state law to seek relief.” City of
Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
To state a claim under § 1983, a plaintiff must allege (1) that a right secured by the
Constitution or laws of the United States was violated, and (2) that the alleged violation was
committed by a “person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48
(1988); see Crosby v. City of Gastonia, 635 F.3d 634, 639 (4th Cir. 2011), cert. denied, 565 U.S.
823 (2011); Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009); Jenkins
v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).
14

Section 1983 also requires a showing of personal fault based upon a defendant’s personal
conduct. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (stating that for an individual
defendant to be held liable pursuant to 42 U.S.C. § 1983, the plaintiff must affirmatively show that
the official acted personally to deprive the plaintiff of his rights). In other words, there is no
respondeat superior liability under § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because
vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the Constitution.”);
see also Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017); Love-Lane v. Martin, 355 F.3d 766,
782 (4th Cir. 2004); Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).
Liability of supervisory officials under § 1983 “is premised on ‘a recognition that
supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative
factor in the constitutional injuries they inflict on those committed to their care.’” Baynard v.
Malone, 268 F.3d 228, 235 (4th Cir. 2001) (citing Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.
1984)). With respect to a supervisory liability claim in a § 1983 action, a plaintiff must allege:
(1) That the supervisor had actual or constructive knowledge that his subordinate
was engaged in conduct that posed a pervasive and unreasonable risk of
constitutional injury to . . . the plaintiff; (2) that the supervisor’s response to that
knowledge was so inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices; and (3) that there was an
affirmative causal link between the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted), cert. denied, 513 U.S. 813
(1994); see also Wilcox, 877 F.3d at 170.
B. Official Capacity
The Complaint specifies that the suit is brought against defendants in both their official
15

and individual capacities. ECF 1 at 8. Plaintiff requests monetary damages and “injunctive relief
as found warranted by the Court.” ECF 1 at 8 (capitalization altered).
As the Supreme Court explained in Kentucky v. Graham, 473 U.S. 159, 165 (1985),
“[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions
he takes under color of state law. Official-capacity suits, in contrast, ‘generally represent only
another way of pleading an action against an entity of which an officer is an agent.’” (quoting
Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978)) (citations omitted). Thus, official
capacity claims are subject to the same immunities the employing entity itself enjoys, such as
sovereign immunity under the Eleventh Amendment. Graham, 473 U.S. at 167; accord Hafer v.
Melo, 502 U.S. 21, 25 (1991).
Congress has not abrogated Eleventh Amendment immunity through § 1983. Indeed,
§ 1983 claims are not cognizable against states, state agencies, or state agents acting in their official
capacities. See Lee-Thomas v. Bd. of Educ., CBD-08-3327, 2010 WL 2365673, at *3 (D. Md. June
8, 2010) (“A state simply cannot be sued as a ‘person’ in a 1983 action.”) (citing Will v. Mich.
Dep't of State Police, 491 U.S. 58, 64 (1989)), aff'd sub nom. Lee-Thomas v. Prince George’s Cnty.
Pub. Sch., 666 F.3d 244 (4th Cir. 2012); Hanifee v. Bd. of Educ., RDB-09-2381, 2010 WL 723772,
at *5 (D. Md. Feb. 24, 2010) (Ҥ 1983 ... cannot be expanded by the states, and furthermore has
never been amended by Congress to make it applicable to damages claims against the states or
their agencies.”). Moreover, the Maryland General Assembly has expressly declined to waive its
sovereign immunity as to claims in federal court. See Md. Code, State Gov't § 12-103(2) (stating
that the Maryland Tort Claims Act does not “waive any right or defense of the State or its units,
officials, or employees in an action in a court of the United States ... including any defense that is
16

available under the 11th Amendment to the United States Constitution”).
An exception to Eleventh Amendment immunity exists, permitting prospective injunctive
relief to correct an ongoing violation, if the suit is brought against state officials in their official
capacities. See Ex parte Young, 209 U.S. 123, 159-60. To determine if the exception applies, “a
court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.” Manion v. N.C.
Med. Bd., 693 F. App'x 178, 180-81 (4th Cir. 2017) (citation omitted).
Although Graham states that he seeks “injunctive relief as found warranted by the Court,”
ECF 1 at 8 (capitalization altered), he has not identified the nature of or any details about the
injunctive relief that he might desire. Moreover, he does not allege an ongoing violation of federal
law. Accordingly, plaintiff’s claims under 42 U.S.C. § 1983, asserted against defendants in their
official capacity, are barred by the Eleventh Amendment.
C. Excessive Force Claim
Claims brought under 42 U.S.C. § 1983, alleging the use of excessive force in effectuating
an arrest or other seizure, are governed by the Fourth Amendment's prohibition against
“unreasonable” seizures. See Graham v. Connor, 490 U.S. 386, 395 (1989).

The Fourth

Amendment guarantees, inter alia, “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend IV. It
is made applicable to the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643,
655 (1961). Section 1983 provides a damages remedy for violations of the Fourth Amendment.
See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999) (Ҥ 1983 allow[s] a plaintiff to seek money
damages from government officials who have violated his Fourth Amendment rights.”).

17

The touchstone case with respect to claims of use of excessive force brought under 42
U.S.C. § 1983 is Graham v. Connor, 490 U.S. 386 (1989). In that case, the Supreme Court said,
id. at 394: “Where . . . the excessive force claim arises in the context of an arrest or investigatory
stop of a free citizen,” then “it is most properly characterized as one invoking the protections of
the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . .
against unreasonable . . . seizures’ of the person.”

Id. (quoting U.S. CONST. amend. IV).

Therefore, the Court concluded that claims of “excessive force . . . in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen” should be evaluated “under the Fourth
Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’
approach.” Id. at 395.
“The Fourth Amendment prohibition on unreasonable seizures bars police officers from
using excessive force to seize a free citizen.” Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir.
2003) (citing Graham, 490 U.S. at 395).

The “‘question [is] whether the totality of the

circumstances justified a particular sort of . . . seizure.’” Jones, 325 F.3d at 527-28 (alteration in
original) (quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).
Whether an officer has used excessive force is analyzed under an objective reasonableness
standard. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). The question of
reasonableness is “wholly objective . . . without regard to [an officer’s] own subjective intent or
motivation. Subjectively bad intentions on the part of the individual officer will not make a
constitutional violation out of an otherwise reasonable seizure; nor will subjectively good
intentions render an objectively unreasonable seizure constitutional.” Martin v. Gentile, 849 F.2d
863, 869 (4th Cir. 1988) (internal citations omitted).
18

Reasonableness is analyzed by weighing “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the importance of the governmental interests
alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. at 8 (citation omitted). The
determination is made “from the perspective of a reasonable officer on the scene rather than with
the 20/20 vision of hindsight. . . . Not every push or shove, even if it may later seem unnecessary
in the peace of a judge’s chambers violates the Fourth Amendment.” Graham, 490 U.S. at 387
(internal quotation marks and citation omitted). Moreover, the Constitution “does not require
police to gamble with their lives in the face of a serious threat of harm.” Elliot v. Leavitt, 99 F.3d
640, 641 (4th Cir. 1996).
To determine the reasonableness of an officer’s actions “‘requires a careful balancing of
the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.’” Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015)
(quoting Graham, 490 U.S. at 396). Notably, the officer’s actions are examined “in light of the
facts and circumstances confronting him, without regard to his underlying intent or motivation.”
Graham, 490 U.S. at 397; accord Pegg v. Herrnberger, 845 F.3d 112, 120 (4th Cir. 2017)
(“‘Subjective factors involving the officer’s motives, intent, or propensities are not relevant.’”)
(quoting Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994)).
Several factors are pertinent to “the reasonableness calculus . . . .”

Holloman v.

Markowski, 661 Fed. App’x 797, 800 (4th Cir. 2016) (per curiam). These include “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.” Graham,
490 U.S. at 396; see also E.W. by and through T.W. v. Dolgos, 884 F.3d 172, 179 (4th Cir. 2018).
19

“The extent of the plaintiff's injury is also a relevant consideration.” Jones, 325 F.3d at 527. And,
“[p]olice officers will not be absolved of liability merely because their conduct, however
unreasonable, results in only de minimis injury.” Dolgos, 884 F.3d at 185.
To be sure, “noncompliance with police directives and nonviolent physical resistance do
not necessarily create ‘a continuing threat to the officers' safety.’” Estate of Ronald H. Armstrong
v. Village of Pinehurst, 810 F.3d 892, 904 (4th Cir. 2016) (citation omitted). But, “the 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, 490 U.S. at 396.
The relevant factors are not “exclusive,” and there could be other “objective circumstances
potentially relevant to a determination of excessive force.” Kingsley v. Hendrickson, ___ U.S.
___, 135 S. Ct. 2466, 2473 (2015). Moreover, the court must consider “the proportionality of the
force in light of all the circumstances.’” Ray, 781 F.3d at 101 (quoting Waterman v. Batton, 393
F.3d 471, 481 (4th Cir. 2005)).
(1) Before Handcuffing
As plaintiff’s Complaint and the information contained within the Supplement offer
competing versions of what occurred in the time before he was handcuffed, the Court will consider
each version. However, as to both versions, plaintiff acknowledges that, immediately before his
interaction with defendants, he led defendants and other law enforcement officers on a vehicle
pursuit. ECF 1 at 5. He does not dispute defendants’ statements that plaintiff drove at high speeds,
continued after “his tires were punctured with stop sticks,” and was only brought to a stop when
his vehicle and defendants’ vehicle collided. See ECF 17-4 at 3.
According to the Complaint, although plaintiff “surrendered, and complied with all
20

orders[,] . . . the “defendants collectively and violently yanked this passive Plaintiff from the
vehicle.” ECF 1 at 6. Plaintiff states that he was then “forcibly and violently thrown to the
pavement” before being handcuffed, although he does not specify whether any of the defendants
were responsible for this. Id. Aside from the subjective characterization of being “yanked” and
“thrown to the pavement” in a violent manner, plaintiff does not offer additional detail about the
acts, such as how they were effectuated, each defendant’s specific role, or if any injuries resulted.8
Given the dearth of objective details in this portion of the Complaint, it is debatable
whether plaintiff’s claim of being handled “violently” and “forcibly” sufficiently states a claim of
excessive force or is too vague. Compare Mustafa v. Povero, 2017 WL 4169339, at *8-9
(W.D.N.Y. Sept. 20, 2017) (finding that plaintiff’s allegation that defendant “‘violently’ pulled
Plaintiff’s arms behind his back to handcuff him, and then ‘violently’ pushed him into the back of
a police car” was “too conclusory to state a plausible claim” of excessive force during arrest);
Johnson v. Hazou, 2017 WL 887162, at *10 (N.D. Ohio Feb. 13, 2017) (“[T]he court cannot find
that excessive force was used to arrest [plaintiff]” based on complaint’s allegations that plaintiff
was “‘forcefully grabbed’ by the arm, and ‘violently yanked’ out of his car,” when plaintiff refused
to comply with officer orders), report and recommendation adopted, 2017 WL 879448 (N.D. Ohio
Mar. 6, 2017); Machie v. Manger, 2010 WL 2132223, at *5 (D. Md. May 25, 2010) (rejecting
excessive force claim that officer “violently grabbed and handcuffed” him, explaining that
“[p]laintiff has not provided anything more than the conclusory allegation that the grab was
‘violent’ to support a claim that the officer's force here was excessive.”); with Jones v. Sutton,

8

Plaintiff reports numerous injuries, but does not attribute any of them to his being yanked
and thrown to the ground.
21

2014 WL 3756325, at *3, 8 (M.D. Ala. July 30, 2014) (adopting recommendation of magistrate
judge that plaintiff adequately stated a claim by alleging that defendants “violently pulled him
from his vehicle and slammed him to the pavement” where there was disputed question over
whether plaintiff led defendants on brief high speed chase or promptly pulled over).
However, even assuming that plaintiff’s claim of being “violently” yanked from his vehicle
onto the ground while offering no resistance is sufficiently specific to allege a prima facie
excessive force claim, plaintiff’s claim suffers from several additional problems. First, plaintiff
fails to distinguish between the defendants. Judge Chasanow previously rejected a similar claim
as conclusory. See Calhoun v. Prince George’s County, Md., DKC-12-2014, 2013 WL 3873224,
*3 (D. Md. July 24, 2013) (“Plaintiff's factual allegations are far too conclusory to state an
excessive force claim adequately. Plaintiff fails to explain any of the facts or circumstances
surrounding the use of force against him. . . . He does not differentiate among the remaining three
[defendant officers], but merely alleges that when he fled from Officer Lacombe, he was
apprehended by all of them and ‘beaten about the head, body, and limbs.’ He mentions no
implements (whether batons or fists were used) and does not describe the nature of the beating (by
time or number of blows).”).
Moreover, despite plaintiff’s claim that he was compliant with the officers’ orders in the
seconds after stopping but before being removed from the vehicle, he fails to acknowledge the
larger factual context—that he had just led multiple officers on a vehicle chase. Even if the officers
did not use the most gentle means to effectuate the arrest, it is difficult to see how forcibly pulling
plaintiff from the vehicle after a vehicle chase would be excessive, given the possibility of danger
suggested by one who has led police on a vehicle chase and who might have been armed. See,
22

e.g., ECF 17-6 (Justice Declaration), ¶ 2 (stating that he “was informed that [Graham] always
carries a handgun”); see also Dunn v. Matatall, 549 F.3d 348, 354 (6th Cir. 2008) (“Evading a
police officer cannot be dismissed as a minor traffic violation, and Dunn’s conduct in fleeing gave
the Officers reason to be especially suspicious of Dunn once he finally did pull over. . . . It would
have been reasonable for the Officers to be apprehensive that Dunn may have a weapon in the car,
that the passenger may have a weapon, or that the car may be used as a weapon.”).
Of relevance here, plaintiff has not offered an affidavit or other evidence to controvert
defendants’ sworn statements, averring that plaintiff actively resisted arrest. ECF 17-4; ECF 175; ECF 17-6. And, he was given two specific opportunities to file such an affidavit. See ECF 25;
ECF 34; see also Fed. R. Civ. P. 56(c) (“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials”); Bouchat, 346 F.3d at 525. Thus, plaintiff has not created a dispute
of material fact sufficient to survive summary judgment.
In contrast to the allegations in the Complaint, stating that all three defendants “violently
yanked” Graham from the vehicle, plaintiff’s Supplement states that Justice, with the assistance of
Harris, “pulled” Graham’s “hands behind the back and cuffed [him], then Sgt Justice pulled [him]
out of the car.” ECF 21 at 2 (emphasis added). Thus, under plaintiff’s version of the facts, as
contained in the Supplement, the only force used prior to handcuffing was Justice pulling
plaintiff’s hands behind his back. Plaintiff does not contend there was anything excessive, violent,
or painful about Justice’s “pulling” of plaintiff’s hands behind his back, an action which is common
23

to many arrests. Thus, under either version of plaintiff’s allegations about defendants’ actions
before plaintiff was handcuffed, defendants are entitled to summary judgment.
Defendant Cox acknowledges that he used his baton and feet against plaintiff prior to
plaintiff being handcuffed. See ECF 17-4 (Cox Declaration), ¶ 13. Plaintiff’s Complaint does not
mention this conduct, however. Plaintiff’s Motion to Amend the Complaint states that Cox “beat
Plaintiff with his stick,” but plaintiff’s allegation (discussed below) is that this occurred after he
had been handcuffed. ECF 21 at 2. Therefore, the Court will not analyze Cox’s conduct in the
context of pre-handcuffing conduct.
(2) After Handcuffing
As for the remainder of the Complaint and Supplement, plaintiff alleges at length that he
was viciously assaulted by defendants and other officers after he was restrained and handcuffed,
and suffered serious injuries as a result. ECF 1 at 6-8. As noted in the preceding subsection, it is
plaintiff’s allegation that Cox hit him with the baton and kicked him after plaintiff was handcuffed.
ECF 21 at 2. He also alleges that Justice and Harris kicked him in the face after he was handcuffed.
Id.
Each defendant denies, under oath, that he used any force against plaintiff, or that he
observed others using force against plaintiff, after plaintiff was handcuffed. ECF 17-4; ECF 175, 17-6. Plaintiff offers no affidavits or other evidence with which to rebut these sworn statements.
See Fed. R. Civ. P. 56(c)(1)(A); Bouchat, 346 F.3d at 525. Although Graham makes statements
that appear to be based on his personal knowledge regarding each defendant’s alleged use of force
after plaintiff was handcuffed, see ECF 21 at 2, these statements were not made under oath, despite
the fact that plaintiff was specifically provided with the opportunity to do so. As plaintiff has
24

failed to offer any affidavit or other material to rebut defendants’ sworn statements that they did
not use force against plaintiff once he was handcuffed, defendants are entitled to summary
judgment.
IV. Conclusion
Defendants’ dispositive Motion, construed as a Motion for Summary Judgment, shall be
granted. As previously noted, because of the complications in mailing the January 14, 2019
Opinion and Order, the Court will reevaluate this decision if, within 28 days, he files a motion to
that effect that is supported by an affidavit as described in the January 14, 2019 opinion.
A separate Order follows.

March 29, 2019
Date

/s/
Ellen L. Hollander
United States District Judge

25