Tani v. St. Mary's County et al

Filing 79

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 8/25/11. [c/m 8/25/11](cms, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KESIENA TANI

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Plaintiff
v.
ST. MARY’S COUNTY,
MARYLAND, et al.
Defendants

Civil No.: PJM 08-1950

MEMORANDUM OPINION
Pro se Plaintiff Kesiena Tani has sued St. Mary’s County, Maryland; the St. Mary’s
County Sheriff’s Department; Calvert County, Maryland; the State of Maryland; and numerous
state police officers, sheriffs, deputy sheriffs, and other government officials. Invoking 42 U.S.C.
§ 1983 and other federal statutes, Tani alleges violations of his federal constitutional rights,
including excessive use of force and unlawful search and seizure. He also brings what appear to
be numerous claims under Maryland common law, including defamation, false arrest, malicious
prosecution, conversion, and negligence.
Various motions filed by the parties are now pending and ripe for the Court’s review. For
the following reasons, Tani’s Motions for Summary Judgment [Paper Nos. 60 & 70] are
DENIED; St. Mary’s County’s Motion to Dismiss or, Alternatively, for Summary Judgment
[Paper No. 62] is GRANTED IN PART AND DENIED IN PART; the State of Maryland’s
Motion to Dismiss or, in the Alternative, for Summary Judgment [Paper No. 65] is GRANTED
IN PART AND DENIED IN PART; and Calvert County’s Motion to Dismiss or, Alternatively,
for Summary Judgment [Paper No. 68] is GRANTED.

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I.
Although Tani’s rambling, 90-page Complaint is often difficult to decipher, he appears to
allege the following facts:
On or about January 15, 2006, St. Mary’s County Deputy Sheriffs Patrick Handy and Eva
Snyder arrested Tani on suspicion of driving with an expired license and possession of drug
paraphernalia. Sometime after that, Tani filed complaints with the St. Mary’s County Sheriff and
the Maryland State Police, complaining that he had been harassed by St. Mary’s County law
enforcement officers. After receiving no response to his complaints, Tani allegedly contacted
former St. Mary’s County Sheriff David Zylak, who purportedly told him never to contact his
office again and that, if he did, Zylak would “lock [him] up and throw the keys away.”
On March 10, 2006, approximately one week after Tani’s purported exchange with
Zylak, St. Mary’s County Deputy Sheriffs Todd Fleenor and Jay Kirkner arrived at Tani’s home
in Valley Lee, Maryland—allegedly without provocation—and demanded that he surrender his
shotgun. According to Tani, the purpose of their visit was to retaliate against him for making
complaints against the County’s law enforcement officers.
Tani maintains that he told Fleenor and Kirkner that they could not enter his home
without a warrant, after which the officers left the premises. However, according to Tani, the
officers later returned with backup—in his words, a “cavalry of overwhelming force”—and
forcibly entered his home using teargas, guns, and explosives. Tani alleges that he suffered
gunshot wounds and other injuries during the raid, and that property belonging to him was seized
and damaged. Officers arrested Tani sometime in the early morning hours of March 11, 2006 and
charged him with assault, reckless endangerment, disorderly conduct, resisting arrest, and failure
to obey law enforcement.

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In their motions to dismiss, Defendants present a markedly different version of the facts.1
According to them, on the night of March 10, 2006, Tani got into an argument over rent
money with Robert Wayne Wright, who apparently rented property from Tani. After Tani
purportedly pointed a gun at him and threatened to kill him, Wright called the police from Tani’s
home. Deputies Fleenor and Kirkner responded to the call. When they arrived at the property,
they observed Tani holding a 12-gauge shotgun at the front door of the residence. According to
Defendants, Tani, who appeared to be intoxicated, told the officers that they could not enter his
home without a warrant and then loaded a round into the chamber of his shotgun. At that point,
Defendants maintain, the officers called for backup and a seven-hour standoff between Tani and
law enforcement ensued.
Defendants maintain that, during the protracted standoff, the officers attempted—without
success—to negotiate with Tani and convince him to exit the premises unarmed. Ultimately,
after Tani refused to comply with their requests, the officers entered the premises using nonlethal force, in the course of which Tani fired two rounds from his shotgun. The officers
managed to subdue Tani, forcibly removed him from the premises, and subsequently charged
him with assault, reckless endangerment, disorderly conduct, resisting arrest, and failure to obey
law enforcement. At the time of his arrest, Tani allegedly had a blood alcohol level of 0.25.
All parties, including Tani, appear to agree that, at some point subsequent to his arrest,
law enforcement transferred him to the Clifton T. Perkins Hospital Center, where he was found
to be dangerous due to a mental disorder and incompetent to stand trial. He was subsequently
committed for inpatient care and treatment to the Maryland Department of Health and Mental

1

Defendants’ version of the facts is set out in the Statement of Probable Cause attached to the Statement of Charges
filed against Tani in the District Court of Maryland for St. Mary’s County. Tani, who attached the Statement of
Probable Cause to his Complaint, maintains that the facts alleged in the statement were fabricated.

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Hygiene, where staff concluded that he might be suffering from a mental disorder and was
“possibly not competent to stand trial.” Ultimately, on March 30, 2007, the criminal charges
against Tani were dismissed. A few months later, in June 2007, Tani filed notice of his intent to
sue with the Maryland State Treasurer, the St. Mary’s County Attorney, and the Calvert County
Attorney. He filed suit in this Court on July 28, 2008,2 asserting 15 different causes of action
against the various Defendants.3 Defendants have moved to dismiss all of Tani’s claims on
multiple grounds, including sovereign immunity and failure to state a claim upon which relief
can be granted.
II.
Federal Rule of Civil Procedure 8(a) prescribes a “liberal pleading standard,” see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), which requires only that a plaintiff submit a “short
and plain statement of the claim showing that [he] is entitled to relief,” Fed. R. Civ. P. 8(a). A
plaintiff may not, however, rely on naked assertions, speculation, or mere legal conclusions. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). When a defendant moves to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must evaluate the complaint’s
sufficiency, viewing all well-pleaded factual allegations as true and construing them in the light
most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). To
survive such a motion, the plaintiff must present enough factual content to render his claim

2

Tani initially filed suit in this Court’s Northern Division, where Judge Catherine C. Blake dismissed his suit for
failure to properly serve Defendants. See Tani v. St. Mary’s County, Civ. No. CCB-07-1924, 2008 U.S. Dist. LEXIS
36509 (D. Md. Mar. 31, 2008). Tani also filed suit in the Circuit Court for Anne Arundel County, Maryland, where
Judge Philip Caroom also dismissed his suit, again without reaching the merits of the case. See Tani v. St. Mary’s
County, No. 02-C-08-133202 (Cir. Ct. Anne Arundel County Md.).
3

Tani’s 15 causes of action are: Count I (excessive use of force), Count II (false arrest), Count III (false detention),
Count IV (falsified and perjured police report), Count V (unlawful search and seizure), Count VI (malicious
conversion), Count VII (defamation/libel), Count VIII (malicious prosecution), Count IX (speedy trial violation),
Count X (conspiracy), Count XI (negligent supervision), Count XII (warrantless search and seizure), Count XIII
(negligence under color of state law), Count XIV (failure to return unlawfully seized property), and Count XV
(unlawful conviction).

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“plausible on its face,” i.e., to enable the court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
A plaintiff proceeding pro se is entitled to a “less stringent standard” than is a lawyer,
and the court must construe his claims liberally, no matter how “inartfully pleaded.” Erickson,
551 U.S. at 94; see also Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 722 (4th Cir. 2010)
(observing that liberal construction of a complaint is particularly appropriate where a pro se
plaintiff alleges civil rights violations). Nevertheless, even a pro se complaint must meet a
minimum threshold of plausibility. See, e.g., O’Neil v. Ponzi, 394 F. App’x 795, 796 (2d Cir.
2010).
III.
Tani has filed two virtually identical Motions for Summary Judgment [Paper Nos. 60 &
70]. Both can be disposed of without difficulty.
In his Motions, Tani essentially argues that, because Defendants have not filed answers
denying the allegations in his Complaint, he is entitled to summary judgment on all Counts.
What he fails to recognize, however, is that Defendants have filed timely motions to dismiss, all
of which remain pending. Because Defendants have filed timely motions pursuant to Federal
Rule of Civil Procedure 12(b), and because the Court has yet to rule on those motions,
Defendants’ answers are not yet due. See Fed. R. Civ. P. 12(a)(4)(A) (noting that a responsive
pleading is not due until 14 days after denial of a properly filed Rule 12 motion). Accordingly,
Tani’s Motions for Summary Judgment are without merit and are DENIED.

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IV.
Calvert County argues that it and all of its associated individual Defendants (collectively,
the “Calvert County Defendants”) should be dismissed from this suit because Tani’s Complaint
alleges virtually no facts pertaining to them. The Court agrees.
It is axiomatic that “the requirements for pleading a proper complaint are substantially
aimed at assuring that the defendant be given adequate notice of the nature of a claim being
made against him . . . .” See Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). In
addition, Supreme Court precedent leaves no doubt that the factual allegations in a complaint
“must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555,
and “must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face,” Iqbal, 129 S. Ct. at 1949 (internal citation and quotation marks omitted).
Although the plausibility standard is not akin to a “probability requirement,” it asks for “more
than a sheer possibility that a defendant has acted unlawfully.” Id. Thus, when a complaint
pleads facts that are “merely consistent with a defendant’s liability, it stops short of the line
between possibility and plausibility of entitlement to relief.” Id.
As the Calvert County Defendants point out, Tani’s Complaint is devoid of any factual
allegations that might somehow demonstrate that they acted unlawfully. Indeed, with the
exception of the caption, the Calvert County Defendants appear virtually nowhere in Tani’s
Complaint. In light of this, the Court concludes that the allegations in Tani’s Complaint, even if
accepted as true, do not begin to approach the “sheer possibility,” much less the requisite
“plausibility,” that the Calvert County Defendants somehow acted unlawfully. Nor can it be said
that the Complaint provides the Calvert County Defendants with adequate notice of the wrongs
Tani claims they committed. See Walker v. S. Cent. Bell Tel. Co., 904 F.2d 275, 277 (5th Cir.

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1990) (“A complaint which contains a bare bones allegation that a wrong occurred and which
does not plead any of the facts giving rise to the injury, does not provide adequate notice.”). The
Court GRANTS Calvert County’s Motion to Dismiss or, Alternatively, for Summary Judgment
[Paper No. 68] and DISMISSES all the Calvert County Defendants from this lawsuit.
V.
The Court also concludes that most of the other individual Defendants named in the
caption of Tani’s Complaint must be dismissed for the same reasons the Court dismisses the
Calvert County Defendants.
Like the Calvert County Defendants, the names of nearly all of the individual St. Mary’s
County Defendants, as well as most of the individual Defendants associated with the State of
Maryland, appear nowhere in Tani’s Complaint, with the exception of the caption. Indeed, the
only individual Defendants specifically identified within the body of the Complaint are former
St. Mary’s County Sheriff Zylak, St. Mary’s County Deputy Sheriffs Handy, Snyder, Fleenor,
and Kirkner, and Maryland State Police Officer Brian Cedar. All the other individually named
Defendants are therefore DISMISSED.
The Court also concludes that Handy and Snyder, the St. Mary’s County Deputy Sheriffs
who arrested Tani for driving with an expired license and possession of drug paraphernalia in
January 2006, must be dismissed. Tani does not link either of these two to any of the factual
allegations offered in support of his 15 causes of action, i.e., the events of March 10 and 11,
2006. The Court therefore DISMISSES Handy and Snyder from the case.
To this point, the only Defendants that remain in the case are the State of Maryland, St.
Mary’s County, and individual Defendants Zylak, Fleenor, Kirkner, and Cedar.

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VI.
The State of Maryland argues that the Eleventh Amendment to the United States
Constitution immunizes it from suits brought in federal court for monetary damages, and that all
of Tani’s claims against the State must therefore be dismissed. The State further argues that all
claims against the remaining individual Defendants must be dismissed to the extent Tani has
sued them in their official capacities. The Court agrees.
Pursuant to the Eleventh Amendment, a state is immune from a lawsuit brought in federal
court by a litigant seeking monetary damages. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531
U.S. 356, 363 (2001) (“The ultimate guarantee of the Eleventh Amendment is that nonconsenting states may not be sued by private individuals in federal court.”). Although a state may
waive its immunity and consent to suit in federal court, see Green v. Mansour, 474 U.S. 64, 68
(1985), and although Maryland has waived its immunity to suit in state court under certain
circumstances, see Md. Code. Ann., State Gov’t § 12-104(a)(1), the State generally has not
waived its immunity as to suits brought in federal tribunals, see Md. Code. Ann., State Gov’t §
12-103(2); Dixon v. Balt. City Police Dep’t, 345 F. Supp. 2d 512, 513 (D. Md. 2003). Because
Maryland has not waived its immunity from suits seeking monetary damages in federal court,
and because this is not a suit in which the plaintiff has properly sought prospective injunctive
relief,4 all of Tani’s claims against the State of Maryland must be DISMISSED. Similarly, with
respect to the remaining individual Defendants, all of whom are state employees, see Rucker v.

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See Green, 474 U.S. at 68 (noting that Eleventh Amendment immunity does not extend to suits seeking prospective
injunctive relief to prevent continuing violations of federal law). In the instant suit, Tani primarily seeks
compensatory damages in the amount of $30 million. Although his Complaint also contains a prayer for a
“permanent injunction directing Defendants to take affirmative steps necessary to prevent recurrence of the . . .
alleged unlawful actions,” he has not alleged ongoing violations of the law, a failure which is fatal to his request for
injunctive relief. See Merryfield v. Jordan, No. 11-3054, 2011 U.S. App. LEXIS 15686, at *6-10 (10th Cir. July 27,
2011) (noting that a plaintiff may seek prospective injunctive relieve against state officials in federal court only
when he alleges ongoing violations of federal law, and not where he merely alleges prior violations).

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Harford County, 558 A.2d 399, 407 (Md. 1989) (holding that, under Maryland law, sheriffs and
their deputies are state officers), all claims must be DISMISSED to the extent they have been
brought against the individual Defendants in their official capacities. See Gray v. Laws, 51 F.3d
426, 430 (4th Cir. 1995) (noting that the Eleventh Amendment protects not only states
themselves, but also state officers acting in their official capacities).
VII.
St. Mary’s County argues that it is entitled to dismissal of all claims asserted against it,
both state and federal. The Court agrees.
A.
Generally speaking, counties and other local government entities—unlike state
governments—are not fully immune from suit in federal court and may be sued pursuant to 42
U.S.C. § 1983 under certain circumstances. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694-95 (1978). Specifically, a local government may be sued under § 1983 when a local statute,
regulation, official policy, or custom inflicts the alleged deprivation of federal rights. See id. at
694. However, a local government may not be sued for violations of federal law committed via
the tortious conduct of its agents under the doctrine of respondeat superior. See id. (“[A] local
government may not be sued under § 1983 for an injury inflicted solely by its employees or
agents.”).
In the present case, Tani does not appear to allege, nor is it in any way reasonable to
assume, that the wrongs he supposedly suffered were plausibly the outgrowth of an official
policy, custom, statute, or regulation of St. Mary’s County. Indeed, based on the facts alleged,
the only possible theory under which the County could be held liable would seem to be one

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based upon the doctrine of respondeat superior. Tani’s federal claims against St. Mary’s County
will therefore be DISMISSED.
B.
Tani’s state-law claims against the County fare no better.
Pursuant to state law, Maryland counties and municipalities cannot be held liable under
the doctrine of respondeat superior for the torts of state officials or state employees. See Rucker
v. Harford County, 558 A.2d 399, 407 (Md. 1989) (“[C]ounties and municipalities in Maryland
are generally not liable under the doctrine of respondeat superior for the tortious acts of state
officials or state employees acting in the scope of their employment.”). Here, where all of the
remaining individual Defendants are current or former state police officers, sheriffs, or deputy
sheriffs and, therefore, state employees, St. Mary’s County cannot be held liable for their torts.
See Boyer v. State, 594 A.2d 121, 128 (Md. 1991) (holding that a county may not be held liable
for the actions of deputy sheriffs, since sheriffs and their deputies are state—as opposed to
county—employees). Accordingly, all of Tani’s state-law claims against St. Mary’s County must
be DISMISSED.5
VIII.
The only Defendants remaining in the case are Zylak, Fleenor, Kirkner, and Cedar, all
state law enforcement officers. These Defendants argue that they, too, must be dismissed from
the case because, as state officials acting in their official capacities, they are immune from suit in
this Court. For now, the motions of the remaining individual Defendants will be DENIED
WITHOUT PREJUDICE.

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Tani’s claims against the “St. Mary’s County Sheriff’s Department” must also be DISMISSED because there is no
such legally cognizable entity. See Boyer, 594 A.2d at 128 n.9 (noting that a “Sheriff’s Department” is “not an entity
capable of being sued” in Maryland).

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A.
The Court will assume, at least for purposes of ruling on the pending motions to dismiss,
that Tani has sued the remaining officers in their individual as well as their official capacities.
Tani’s Complaint does not explicitly say this. However, when a plaintiff fails to plead capacity
with appropriate specificity, the courts look to various factors to determine whether a person has
been sued in his official or individual capacity. Among these factors are the following: (1)
whether the plaintiff alleges “that the defendant acted in accordance with a governmental policy
or custom”; (2) whether the plaintiff seeks “compensatory or punitive damages, since such relief
is unavailable in official capacity suits”; and (3) whether the defendant has raised a defense of
qualified immunity, since “the assertion of that defense indicates that the defendant interpreted
the plaintiff’s action as being against him personally.” See Biggs v. Meadows, 66 F.3d 56, 61
(4th Cir. 1995).
In the present case, all three of these factors suggest that Tani has endeavored to sue the
remaining individual Defendants in their individual capacities. He does not appear to allege that
the individual officers acted pursuant to “a governmental policy or custom,” see id.; indeed, if
anything, he appears to allege that the officers took certain actions—namely, acts of violence
against him in retaliation for complaints he filed against law enforcement—that are hardly
consistent with official government policy. Additionally, he indicates in his Complaint that he
seeks punitive damages, which, as noted supra, are unavailable in official capacity suits. Finally,
the Court notes that the individual Defendants have asserted a defense of qualified immunity,
suggesting that they at least contemplated the possibility that Tani intended to sue them in their
individual capacities. For these reasons, the Court concludes that Tani has attempted to sue the

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remaining individual Defendants in their individual capacities, and will therefore analyze the
viability of his claims against them in light of that conclusion.
B.
Although a state officer is not categorically immune from suit under § 1983 when sued in
his individual—as opposed to his official—capacity, the affirmative defense of qualified
immunity will still shield him from monetary damages so long as his conduct is not found to
“violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In the present case, the Court
concludes that, although the remaining individual Defendants may ultimately be entitled to a
defense of qualified immunity, it is unable to make that determination at this juncture, since the
allegations in Tani’s Complaint appear to claim that the officers engaged in conduct—including
violent retaliation for complaints against law enforcement—which, if true, would undoubtedly
“violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” See id. Accordingly, the Court concludes that it would be premature at this stage
of the litigation to find that the remaining individual Defendants are entitled to the affirmative
defense of qualified immunity.6
C.
Tani’s state-law claims against the remaining individual Defendants survive this stage of
the litigation for similar reasons. Pursuant to the Maryland Tort Claims Act (“MTCA”), state

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Defendants argue that, because Tani attached the Government’s Statement of Probable Cause to his Complaint, he
has adopted the facts asserted therein, and has thus conceded that Defendants’ actions were lawful. The Court finds
no merit in this argument, since Tani has specifically alleged that the facts set forth in the Statement of Probable
Cause were fabricated, and because—at this stage of the litigation—the Court must assume Tani’s allegations are
true. However, the Court will, as outlined infra, provide the remaining Defendants with an opportunity to file
appropriate motions for summary judgment, to be accompanied by appropriate sworn affidavits, stating why the
Court should accept their version of the facts in favor of Tani’s.

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personnel7 are immune from tort liability for discretionary acts within the scope of their public
duties, but only to the extent that they do not act with malice or gross negligence. See Md. Code.
Ann., Cts. & Jud. Proc. § 5-522(b). Here, where Tani appears to allege that the remaining
officers engaged in violent retaliation for his complaints against law enforcement, it at least
appears, at this initial stage of the case, that he has alleged that the officers acted with malice.
The Court therefore cannot conclude at this juncture that the officers are entitled to a defense of
qualified immunity against Tani’s state-law claims.8
IX.
Of the 15 Counts asserted in Tani’s Complaint, the Court concludes that seven must be
dismissed as time-barred, duplicative, not legally cognizable, or otherwise fatally deficient.
A.
Count VII of the Complaint, for libel, is time-barred pursuant to Maryland’s strictly
construed one-year statute of limitations for defamation claims. See Md. Code Ann., Cts. & Jud.
Proc. § 5-105 (“An action for assault, libel, or slander shall be filed within one year from the date
it accrues.”); Henderson v. Claire’s Stores, Inc., 607 F. Supp. 2d 725, 730 (D. Md. 2009) (noting
that the limitation is strictly construed). The wrongful conduct alleged in Tani’s Complaint ended
no later than March 30, 2007, when the criminal charges against him were dismissed. He filed
suit on July 28, 2008, nearly 16 months after the charges were dismissed, and well over two

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Sheriffs and their deputies are considered state personnel under the MTCA. See Md. Code. Ann., State Gov’t § 12101(a)(6).
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The remaining individual Defendants also argue that they should be dismissed from the suit because Tani failed to
file timely notice of his state tort claims with the state Treasurer, as required by the MTCA. See Md. Code. Ann.,
State Gov’t § 12-106(b)(1) (“A claimant may not institute an action under this subtitle unless . . . the claimant
submits a written claim to the Treasurer or a designee of the Treasurer within one year after the injury to person or
property that is the basis of the claim.”). This argument fails, however, because the MTCA’s notice requirements do
not apply to allegations of malicious or grossly negligent torts committed by state officers in their individual
capacities. See Pope v. Barbre, 915 A.2d 448, 462 (Md. Ct. Spec. App. 2007) (“[T]he State Treasurer does not
require early notice of a claim against an individual officer alleging a malicious or grossly negligent tort.”).

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years after his arrest and detention in March 2006. Accordingly, his libel claim must be
DISMISSED.
B.
Certain Counts must be dismissed as duplicative of other Counts, i.e., because they allege
the same facts and encompass the same wrongs as claims stated elsewhere in Tani’s Complaint.
The duplicative Counts that are DISMISSED are: Count IX (speedy trial violation), which is
virtually identical to Count III (false detention); Count XII (warrantless search and seizure),
which is substantively indistinguishable from Count V (unlawful search and seizure); Count XIII
(negligence under color of state law), which is no more than an amalgamation of Counts I
(excessive use of force), V (unlawful search and seizure), and VIII (malicious prosecution); and
Count XIV (failure to return unlawfully seized property), which is essentially identical to Count
VI (malicious conversion).
C.
Two other Counts must be dismissed as not legally cognizable or otherwise fatally
deficient.
Count IV (falsified and perjured police report) is not a cognizable claim under federal or
state law and, in any event, would merge into Tani’s claim of malicious prosecution, which he
asserts in Count VIII. See McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003) (noting
that a claim stemming from the use of false evidence or false testimony is, in essence, a claim of
malicious prosecution). Accordingly, the Court DISMISSES Count IV.
Count XV (unlawful conviction) appears to allege, among other things, that an unnamed
“visiting judge” deprived Tani of “competent assistance of counsel.” Whatever Tani intends by
this assertion (which is far from clear), there is no legally cognizable claim under federal or state

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law in this regard. Count XV therefore fails to state a plausible claim upon which relief can be
granted and shall be DISMISSED.
X.
Summing up, to this point only the following individual Defendants, all of whom are
state employees, remain in the case: Zylak, Fleenor, Kirkner, and Cedar. In addition, only eight
alleged causes of action remain: Count I (excessive use of force), Count II (false arrest), Count
III (false detention), Count V (unlawful search and seizure), Count VI (malicious conversion),
Count VIII (malicious prosecution), Count X (conspiracy), and Count XI (negligent supervision).
Even so, the case remains subject to possible disposition prior to trial. After a significant
paring down of Tani’s lawsuit, the Court is presented with two very different versions of the
facts of this case. In one, the seemingly improbable version offered by Tani, violent and
vindictive law enforcement officers attacked an innocent man in his home without any
provocation whatsoever, shot him, confiscated his property, and subjected him to prolonged
detention and prosecution without probable cause. In the other version, the one presented by
Defendants, a highly intoxicated and possibly mentally unstable man threatened to shoot his
tenant and, when law enforcement responded to the tenant’s emergency phone call, the man
made threatening gestures with his shotgun, engaged in a seven-hour standoff with police, and—
when law enforcement ultimately entered his home—assaulted one or more of them.
Ultimately, to survive summary judgment in this case, Tani must offer more than his own
allegations of unlawful conduct, since a plaintiff’s case will not go to a jury where he fails to
“substantiate his allegations with sufficient probative evidence that would permit a finding in his
favor based on more than mere speculation, conjecture, or fantasy.” See Putman v. Unity Health
Sys., 348 F.3d 732, 733-34 (8th Cir. 2003) (internal citations and quotation marks omitted).

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Indeed, a plaintiff alleging excessive force by law enforcement cannot create a genuine issue of
material fact merely by asserting that law enforcement’s sworn version of the facts has been
fabricated; rather, “he must provide the Court with some basis to believe that his version of
relevant events is not fanciful,” and he must rely on more than “conclusory statements [or] mere
assertions that affidavits supporting [a motion for summary judgment] are not credible.” See
Yearwood v. LoPiccolo, No. 95-2544, 1998 U.S. Dist. LEXIS 12302, at *7, *15 (S.D.N.Y. Aug.
10, 1998) (internal citations and quotation marks omitted).
In order to probe the substance of Tani’s claims versus their own, the Court will give the
remaining individual Defendants 60 DAYS to submit renewed motions for summary judgment,
which should be supported by sworn affidavits and other relevant documents from the officers,
from Tani’s tenant/alleged victim, from mental health personnel, and from others, and which
should specifically describe: (1) the events that precipitated the alleged emergency call to the
police by Tani’s tenant; (2) the facts and circumstances surrounding Tani’s arrest and detention;
(3) Tani’s blood alcohol level at the time of his arrest; (4) the likely effects of Tani’s blood
alcohol level on his cognitive abilities, including his perception and memory; (5) mental health
personnel’s evaluation of Tani’s mental condition at any relevant time; (6) the likely effects of
Tani’s mental condition on his cognitive abilities, including his perception and memory; and (7)
any other facts which may be relevant to the disposition of this case.
Following submission of the remaining Defendants’ renewed motions for summary
judgment, Tani shall have 30 DAYS to respond, after which Defendants shall have 15 DAYS to
reply.

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XI.
For the foregoing reasons, Tani’s Motions for Summary Judgment [Paper Nos. 60 & 70]
are DENIED; St. Mary’s County’s Motion to Dismiss or, Alternatively, for Summary Judgment
[Paper No. 62] is GRANTED IN PART AND DENIED IN PART; the State of Maryland’s
Motion to Dismiss or, in the Alternative, for Summary Judgment [Paper No. 65] is GRANTED
IN PART AND DENIED IN PART; and Calvert County’s Motion to Dismiss or, Alternatively,
for Summary Judgment [Paper No. 68] is GRANTED. All Defendants other than the following
are DISMISSED from this suit: former St. Mary’s County Sheriff David Zylak, St. Mary’s
County Deputy Sheriffs Todd Fleenor and Jay Kirkner, and Maryland State Police Officer Brian
Cedar. The following Counts are DISMISSED against all Defendants: Count IV (falsified and
perjured police report), Count VII (libel), Count IX (speedy trial violation), Count XII
(warrantless search and seizure), Count XIII (negligence under color of state law), Count XIV
(failure to return unlawfully seized property), and Count XV (unlawful conviction). The
remaining individual Defendants shall have 60 DAYS to SUBMIT renewed motions for
summary judgment that comply with the instructions set forth by the Court. Tani shall then have
30 DAYS to respond, after which Defendants shall have 15 DAYS to reply.
A separate Order will ISSUE.

/s/________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
August 25, 2011

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