Johnson v. Prince George's County, Maryland et al

Filing 29

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/1/11. (sat, Chambers)

Johnson v. Prince George's County, Maryland et al

Doc. 29

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : STEVE JOHNSON : v. : : PRINCE GEORGE'S COUNTY, MARYLAND, et al. : MEMORANDUM OPINION Two motions are presently pending and ready for resolution in this civil rights action: (1) a motion to dismiss or, in the alternative, for summary judgment filed by Defendants Prince Civil Action No. DKC 10-0582

George's County and Prince George's County Police Officer Ruben Paz (ECF No. 20); and (2) a motion to strike certain exhibits to Plaintiff Steve Johnson's opposition, which was also filed by Defendants (ECF No. 26). Because the issues have been fully See

briefed and no hearing is necessary, the court now rules. Local Rule 105.6.

For the reasons that follow, Defendants'

motion to dismiss or for summary judgment, construed as a motion for summary judgment, will be granted in part and denied in part. In addition, Defendants' motion to strike will be denied.1

Defendants filed a motion pursuant to Federal Rule of Civil Procedure 12(f) to strike Exhibits 4 and 5 of Johnson's opposition (ECF Nos. 24-4, 24-5) to Defendants' motion for summary judgment. (See ECF No. 26). Rule 12(f) allows a court to strike from a pleading "redundant, immaterial, impertinent, or scandalous matter." Defendants' motion, however, does not

1

Dockets.Justia.com

I.

Background A. Factual Background

The parties agree on few of the relevant facts of this case. 2009, They agree that early on the morning of September 5, Prince Clark at George's responded Ingrid and County to a Police call in Paz Officers complaining Landover. sprayed Ruben of Paz and

Richard conduct

disorderly the Steve

7625

Place Officer

Somehow, Plaintiff

situation

escalated

Johnson in the face with Oleoresin Capsicum ("O.C.") spray.2 Johnson ended up on the ground. He was then arrested and

criminally charged. prosequi.

Those charges were later dismissed nolle

Beyond these basic facts, there is little accord.

seek to strike any portion of a "pleading," but rather certain exhibits to a motion. Under Rule 7(a), motions, memoranda, and the exhibits attached to them are not pleadings. See also th Cir. 1926) (defining Manson v. Inge, 13 F.2d 567, 568 (4 pleadings as "allegations made by the parties to a civil or criminal case, for the purpose of definitely presenting the issue to be tried and determined between them"). Consequently, the court cannot strike the challenged exhibits. See MJ Harbor Hotel, LLC v. McCormick & Schmick Rest. Corp., 599 F.Supp.2d 612, 623 (D.Md. 2009); Thomas v. BET Sound-Stage Rest./BrettCo, Inc., 61 F.Supp.2d 448, 458 (D.Md. 1999). Even though the exhibits will not be stricken, it is nevertheless largely inappropriate to rely on them in deciding the motion, for reasons explained below.
2

OC spray is commonly referred to as pepper spray. 2

According to Johnson, he was standing on the sidewalk with one another friend on the night in question. 2). (ECF No. 24-1 ¶

Two police officers approached the two men, and one of the (Id.).

officers ordered the men to "[s]it down on the ground."

When Johnson asked the officer why, the officer repeated his request. (Id.). Johnson asked again "whether there was a

reason why [he] should be sitting on the ground" and whether he was under arrest. (Id.). The questioning officer then

purportedly approached Johnson and sprayed him in the face with OC spray. him to (Id.). The two officers allegedly tackled him, threw and began beating him with nightsticks, When an

the

ground,

causing substantial bruising.

(Id.; ECF No. 16-2).

ambulance arrived, the officers "waived the ambulance off" and refused Johnson to was allow medical and treatment. charged (ECF with No. 24-1 ¶ 2).

arrested

disorderly

conduct,

resisting arrest, and "failing to obey the lawful order of a police [officer] designed to prevent a disturbance of the

peace," crimes Johnson says he did not commit. No. 24-3).

(Id. ¶¶ 5-6; ECF

Johnson emphasizes that he was not with a large group of people that night, was not behaving in a disorderly manner, did not resist arrest or otherwise fail to cooperate with police,

3

and

cooperated

when

he

was

taken

to

the

Department

of

Corrections.

(ECF No. 24-1 ¶¶ 3-4). They say

Officers Clark and Pax tell a different story.

that they responded to a call at 7625 Ingrid Place that reported "several males being loud and disorderly and smoking in the area in question." 7). find (ECF No. 20-4 ¶¶ 5-7; see also ECF No. 20-5 ¶¶ 5-

When the officers arrived on the scene, they did in fact a group of males "behaving in a loud and disorderly From

fashion."

(ECF No. 20-4 ¶ 9; see also ECF No. 20-5 ¶ 9).

the cruiser, Officer Paz told the group to disperse. 20-4 ¶ 10; 20-5 ¶ 10).

(ECF Nos.

According to the officers, everyone (ECF Nos. 20-4 ¶ 11; 20-5 ¶ 11).

complied except for Johnson.

Officer Paz told Johnson again to leave the area and asked him where he lived; Johnson purportedly responded that it was none of the officer's business. 15). (ECF Nos. 20-4 ¶ 14-15; 20-5 ¶ 14-

When Officer Paz told Johnson that he would need to leave

if he did not live in the area, Johnson responded that he did not live in the area and "he was not going any fu__ing where." (ECF Nos. 20-4 ¶ 17; 20-5 ¶ 17). Officers Paz and Clark then got out of their cruiser and ordered Johnson to produce identification. 20-5 ¶ 18). (ECF Nos. 20-4 ¶ 18;

He allegedly answered that he "did not have to (ECF Nos. 20-4 ¶ 19; 20-5 ¶ 19). 4 Officer Paz

provide sh--t."

again told Johnson that he would need to produce identification and "verify the nature of his business at the location." Nos. 20-4 ¶ 20; 20-5 ¶ 20). (ECF

Because Officer Paz noticed that

Johnson had his hands in his pockets, he also ordered him to show his hands for safety reasons. 24). Once more, Johnson (ECF Nos. 20-4 ¶ 24; 20-5 ¶ in a hostile manner,

responded

allegedly asking the officers to "give him a fuc--ing reason why he should do that." Clark again (ECF Nos. 20-4 ¶ 24; 20-5 ¶ 24). Johnson to take his hands out Officer of his

commanded

pockets, but he still refused to comply. 26; 20-5 ¶¶ 25-26).

(ECF Nos. 20-4 ¶¶ 25-

Officer Paz then tried to place Johnson under arrest, but Johnson jerked his arms and moved around such that the officer could not grab his hands. 28). (ECF Nos. 20-4 ¶¶ 27-28; 20-5 ¶¶ 27-

After "announc[ing]" that he had O.C. spray twice (ECF No.

20-4 ¶ 29), Officer Paz sprayed Johnson with a burst of the spray for one second in the face (ECF Nos. 20-4 ¶¶ 29-30; 20-5 ¶ 29). Johnson fell to the ground and, after some struggling, the (ECF Nos. 20-4 ¶¶ 31-

officers were together able to cuff him. 33; 20-5 ¶¶ 30-31). Once with he was cuffed, Nos. the 20-4 officers ¶ 34;

decontaminated ¶ 32).

Johnson

water.

(ECF

20-5

Fireboard

personnel arrived and also decontaminated him. 5

(ECF Nos. 20-4

¶¶ 35-36; 20-5 ¶¶ 33-34).

Because he was not injured and he

refused to treatment, Johnson was not taken to the hospital but instead was transported to the DOC. (ECF Nos. 20-4 ¶¶ 37-39, At DOC, Johnson necessary After court (ECF

43; 20-5 ¶¶ 35[a], 32[b], 36; 20-6 ¶¶ 10-13). allegedly information. processing, refused (ECF Johnson to Nos. cooperate 20-4 ¶ by 40; before

providing 20-5 a ¶¶ 33).

appeared

district

commissioner who found probable cause for all charges.

Nos. 20-4 ¶ 41; 20-5 ¶¶ 34; see generally ECF Nos. 20-4, Ex. 1.3; 20-5, Ex. 2.3). Both officers emphasize that they "never hit, beat, kicked, used the asp baton, or injured Johnson." 20-5 ¶ 36). A also later Prince that (ECF Nos. 20-4 ¶ 43; Police Paz's Department of O.C.

George's Officer

investigation

concluded

use

spray was authorized by department policy. 19). B. Procedural Background initially 2010 No. in filed the his

(ECF No. 20-6 ¶¶ 18-

Johnson January County. against 27,

complaint Court for

in

this

case

on

Circuit That

Prince

George's counts false

(ECF Officer

1).

complaint

asserted

six

Paz:

assault,

battery,

negligence,

arrest, excessive force pursuant to 42 U.S.C. § 1983, and arrest without probable cause pursuant to 42 U.S.C. § 1983. 6 (ECF No.

2).

It also stated two counts pursuant to Section 1983 against

Prince George's County premised on excessive force and arrest without probable cause. (Id.). After receiving the Summons and

Complaint on February 23, Prince George's County3 timely removed the matter to this court on March 8, 2010. (ECF No. 1).

Defendants filed a motion to dismiss or, in the alternative, for summary judgment on March 26, 2010 (ECF No. 14), but that motion and an accompanying motion to strike (ECF No. 19) were mooted when Johnson was granted leave to amend4 on April 26 (ECF No. 21).5 On April 23, 2010 ­ before the amended complaint had even

been accepted and docketed by the court ­ Defendants filed a motion to dismiss or, in the alternative, for summary judgment directed opposed. at the amended complaint. (ECF No. 20). Johnson

(ECF No. 24).

Concurrent with their reply (ECF No.

25), Defendants filed another motion to strike (ECF No. 26).

Officer Paz did not join in the notice of removal because he had not yet been served. Although he requested leave to amend on April 6, 2010 (ECF No. 15), Johnson was free to amend as a matter of course because it was still within 21 after service of Defendants' Rule 12(b) motion. The amended complaint restates the same counts as the original complaint, but with additional facts. (ECF No. 22). 7
5 4

3

II.

Standard of Review Defendants have moved to dismiss or, in the alternative,

for summary judgment.

A court considers only the pleadings when Because Defendants'

deciding a Rule 12(b)(6) motion to dismiss.

motion relies extensively on matters outside the pleadings, the court will construe it as a motion for summary judgment. See

Fed.R.Civ.P. 12(b); see also Walker v. True, 399 F.3d 315, 319 n.2 (4th Cir. 2005); Offen v. Brenner, 553 F.Supp.2d 565, 568 (D.Md. 2008). A court may enter summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled 56(a); to judgment Corp. as v. a matter of 477 law. U.S. See 317, Fed.R.Civ.P. 322 (1986); Summary

Celotex

Catrett,

Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).

judgment is inappropriate if any material factual issue "may reasonably be resolved in favor of either party." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). "A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts

showing that there is a genuine issue for trial.'" 8

Bouchat v.

Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). proof . . . will not suffice to prevent "A mere scintilla of summary judgment." "If the

Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).

evidence is merely colorable, or is not significantly probative, summary judgment may be granted." 249-50. construe favorable (citations omitted). the to facts the that are Liberty Lobby, 477 U.S. at

At the same time, the court must presented the in the light most v.

party

opposing

motion.

See

Scott

Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297. III. Analysis A. 1. Claims Against Officer Paz Constitutional Claims

Pursuant to Section 1983, Johnson asserts that Officer Paz violated his constitutional rights "to be free from the use of excessive force" and "to be free from arrest without probable cause." Defendants argue that summary judgment should be

granted as to both claims. First, Johnson alleges that his seizure and arrest violated his Fourth Amendment right in that it was effectuated without probable cause. "Probable cause requires more than bare

suspicion but requires less than evidence necessary to convict." Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998). 9 Probable

cause is based on the "factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act." United States v. Foreman, 369 F.3d 776, 781

(4th Cir. 2004) (citing Ornelas v. United States, 517 U.S. 690, 695-96, (1996)). "Whether probable cause exists depends upon

the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest." Alford, 543 U.S. 146, 152 (2004). Devenpeck v.

A court will examine the

events leading up to the arrest, and then decide whether these facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. 540 U.S. 366, 371 (2003). Viewing the facts in the light most favorable to Johnson, it cannot be said as a matter of law that the officers had probable cause to seize him. Defendants suggest that the Maryland v. Pringle,

seizure was reasonable because Johnson was disorderly, refused to comply with any of the officers' orders, and physically

resisted when Officer Paz attempted to place him under arrest. According to Johnson, however, he merely asked two questions when the officers arrived on scene and began commanding him to sit on the ground. arrested. He was then sprayed with OC spray and

Johnson's account does not present facts establishing

probable cause. 10

Throughout their opposition, Defendants make much of the fact that a Maryland state district court commissioner pursuant to

(apparently

during

Johnson's

initial

appearance

Maryland Rule 4-216) determined that "probable cause existed for all three charges" against Johnson. that There the is no authority

supporting

Defendants'

notion

commissioner's

determination is entitled to some weight in a case such as this one.6 The district court commissioner's only responsibility was

to determine whether the affidavit presented by the arresting officer contained facts supporting probable cause that the

defendant committed the offense charged. Md. 489, 501 (1986).

State v. Smith, 305

In the present action, however, Johnson

contends that the facts as alleged by the officers are untrue. If Johnson successfully demonstrates that the officers'

Defendants cite Torchinsky v. Siwinski, 942 F.2d 257, 262 (4 Cir. 1991), wherein the United States Court of Appeals for the Fourth Circuit determined that a state magistrate's finding of probable cause on an arrest warrant "provide[d] additional support for [an officer's] claim that he acted with objective reasonableness." That reasonableness supported a finding of qualified immunity. Id. In Torchinksy, however, the officer obtained a warrant before he arrested the suspect; thus, it was not the magistrate's decision per se that suggested reasonableness, but the officer's choice to seek the determination before pursuing the arrest. Id. Moreover, unlike this case, the plaintiffs in Torchinsky "proffered no evidence to rebut [the officer]'s sworn statement." Id. at 262.
th

6

11

statements are in fact incorrect, a commissioner's determination based on those misstatements would be entitled to no weight. Cf. Miller v. Prince George's Cnty., Md., 475 F.3d 621, 632 (4th Cir. 2007) ("A magistrate's issuance of the warrant will not shield an officer when . . . the underlying affidavit includes deliberate and reckless misstatements and omissions."). Second, Johnson contends that the officers used excessive force. The Fourth Amendment right to be free from unreasonable

searches and seizures protects an individual's right to be free from excessive force during an arrest. F.3d 520, 527 (4th Cir. 2003). Jones v. Buchanan, 325

Courts must use a standard of

"objective reasonableness" to determine whether force used by police officers was excessive in violation of the Fourth The same

Amendment. question is

Graham v. Connor, 490 U.S. 386, 388 (1989). whether would a have reasonable concluded officer that a in the

circumstances

threat

existed

justifying the particular use of force.

Id. at 395.

Factors to

consider include the severity of the crime, whether there is an immediate threat to the safety of the officer or others, and whether the subject is resisting arrest or attempting to flee. Id. at 396. "A reviewing court must make `allowance for the fact that police officers are often forced to make split-second judgments 12

-

in

circumstances

that

are

tense,

uncertain,

and

rapidly

evolving.'"

Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. "The court's focus

2001) (quoting Graham, 390 U.S. at 397).

should be on the circumstances at the moment force was used and on the fact that officers on the beat are not often afforded the luxury of armchair reflection." Anderson, 247 F.3d at 130

(quoting Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citations omitted)). Taking the facts in light most favorable to Johnson, the force allegedly used here would not be objectively reasonable. Johnson alleges he was not committing any crime. The unarmed

Johnson did not pose any obvious threat to the two officers or anyone else. He was not resisting arrest and by all accounts Put simply, Johnson's affidavit relevant Graham factors favor

was not attempting to flee.7 suggests that none of the

Defendants.

If the sworn testimony of Johnson proves true, it

would have been entirely unreasonable to tackle Johnson, beat him with nightsticks, and spray him in the face with pepper spray. 2001) See, e.g., Park v. Shiflett, 250 F.3d 843, 853 (4th Cir. (finding use of pepper spray excessive when used to

restrain unarmed individual who posed no threat).

Indeed, even the officers allege that began with Johnson's refusal to leave the scene. 13

7

the

incident

Defendants also contend that, even if Johnson created a genuine dispute of material fact as to the constitutional

violations, Officer Paz is still entitled to qualified immunity. The doctrine of qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional Harlow

rights of which a reasonable person would have known." v. Fitzgerald, 457 U.S. 800, 818 (1982). qualified immunity applies, the court

In deciding whether must make two

determinations.

First, it must consider whether, "[t]aken in

the light most favorable to the party asserting the injury, . . . the facts alleged show [that] the officer's conduct

violated a constitutional right[.]" 194, 201 (2001). a constitutional

Saucier v. Katz, 533 U.S.

If the evidence does establish a violation of right, the court should assess whether the

right was "clearly established" at the time of the events at issue. Id.8 "The answer to both Saucier questions must be in

the affirmative in order for a plaintiff to defeat a . . . motion for summary judgment on qualified immunity grounds."

The court may decide which question to consider first "in light of the circumstances in the particular case at hand." Pearson v. Callahan, 129 S.Ct. 808, 818 (2009). 14

8

Henry v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007) (quoting Batten v. Gomez, 324 F.3d 288, 293-94 (4th Cir. 2003)). Because constitutional Johnson has the presented only facts supporting question is

violations,

remaining

whether the relevant rights were clearly established at the time of the events, such that officials had "`fair warning' that their conduct was unconstitutional."9 Ridpath v. Bd. of

Governors Marshall Univ., 447 F.3d 292, 313 (4th Cir. 2006). "[T]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing

violates that right." (1987).

Anderson v. Creighton, 483 U.S. 635, 640

"[A]lthough the exact conduct at issue need not have

been held to be unlawful in order for the law governing an officer's actions to be clearly established, the existing

authority must be such that the unlawfulness of the conduct is manifest." If the Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998). was not clearly established, then qualified

right

immunity shields the officer from liability.

"The existence of disputed material facts ­ which must be submitted to a jury ­ does not alter the `essentially legal' nature of the question of whether the right at issue was clearly established." Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (citation omitted). 15

9

The rights implicated here were clearly established at the time of the incident. Even in the more permissive Eighth

Amendment context, "[i]t is generally recognized that it is a [constitutional] violation . . . to use mace, tear gas, or other chemical agents in quantities greater than necessary." Williams

v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (quotation marks omitted). If the events described in Johnson's sworn affidavit

are true, no reasonable officer could have believed that it was appropriate to tackle, beat, and spray with a chemical agent an individual who was merely present at the scene of a police call and asked the officer reasonable questions. 41 F.3d 167, 174 (4th Cir. 1994) (finding Rowland v. Perry, officer was not

entitled to qualified immunity where arrestee was at most guilty of minor offense, was unarmed and posed no danger to others, and facts regarding resistance to arrest were disputed). Seventh Circuit has explained, "[i]n the As the the

situation

plaintiffs describe, it is clearly established that officers may not, without and provocation, otherwise start beating, people pepper-spraying, around a

kicking,

mistreating

standing

. . . parking lot (even in the middle of the night)." v. City of Elgin, 578 F.3d 526, 541 (7th Cir. 2009).

Gonzalez As for

Johnson's claim based on arrest without probable cause, "the Fourth Amendment right to be arrested only on probable cause is 16

clearly established." Cir. 2000). that More a

Henderson v. Simms, 223 F.3d 267, 273 (4th no reasonable at officer scene of Cf. could of a

specifically, mere

conclude

person's

presence his

the

disturbance questions,

call, would

combined amount to

with

posing

innocuous Taylor v.

probable

cause.

Waters, 81 F.3d 429, 434 (4th Cir. 1996) ("That one is merely present at the to scene of a crime . . . is not, by itself, marks

sufficient omitted)).

establish

probable

cause."

(quotation

Therefore, summary judgment cannot be granted on Johnson's Section 1983 claims against Officer Paz. 2. State Law Tort Claims

Johnson also asserts four state law tort claims against Officer Paz: assault, battery, false arrest, and negligence.

Summary judgment cannot be granted on any of these claims. First, Johnson advances three intentional tort claims

against Officer Paz: one count of battery, one count of assault, and one count of false arrest. "A battery occurs when one

intends a harmful or offensive contact with another without that person's consent." Nelson v. Carroll, 355 Md. 593, 601 (1999);

accord Johnson v. Valu Food, Inc., 132 Md.App. 118, 123 (2000). An assault is an attempt to do the same. Cont'l Cas. Co. v.

Mirabile, 52 Md.App. 387, 398 (1982); accord Lee v. Pfeifer, 916 17

F.Supp.

501,

505-06

(D.Md.

1996).

False

arrest

is

another

intentional tort that occurs when three elements are present: "`1) the deprivation of the liberty of another; 2) without [his] consent; and 3) without legal justification.'" Dett v. State,

161 Md.App. 429, 441 (2005) (quoting Heron v. Strader, 361 Md. 258, 264 (2000)). Defendants note that claims of assault,

battery, and false arrest can only advance "when there is no legal authority or justification" for the officer's actions.

Hines v. French, 157 Md.App. 536, 551 (2004) (quoting Williams v. Prince George's Cnty., 112 Md.App. 526, 554 (1996)); Dett, 161 Md.App. at 441. Johnson has presented facts that, if proven, would

establish that the beating he received was unprovoked and the arrest was without probable cause. Thus, the assault, battery, Even

and false arrest would all be without legal justification.

so, Defendants suggest that Johnson's assault and battery claims fail because Johnson has not shown malice. Malice is not an

element of these offenses ­ it is only required in certain cases to overcome a valid defense of public official immunity. Public intentional official tort immunity would "In not apply to Johnson's official

claims.10

Maryland,

public

Defendants apparently acknowledge that public official immunity does not generally apply to intentional acts. (ECF NO. 18

10

immunity is recognized both at common law and by statute."11 City of District Heights v. Denny, 123 Md.App. 508, 516 (1998). Common law public official immunity does not apply to

intentional or constitutional torts.

Houghton v. Forrest, 412

Md. 578, 586 (2010) (common law public official immunity does not apply to intentional torts); Higginbotham v. Pub. Serv.

Comm'n of Md., 412 Md. 112, 130 (2009) (same).

Maryland courts

have "pointed out that the purpose of these provisions was to codify existing public official immunity, and not to extend the scope of qualified immunity beyond its Maryland common law

boundaries." rev'd on

Houghton v. Forrest, 183 Md.App. 15, 40 (2008), grounds by 412 Md. 578 (2010) (stating that

other

Section "5-507's legislative history indicates that it does not apply to intentional and constitutional torts"); see also Prince George's Cnty. v. Brent, 414 Md. 334, 355, 995 A.2d 672 (2010) ("The immunity contemplated in [Section 5-507] is common law

20-2, at 19). Even so, they cite Goehring v. United States, 870 F.Supp. 106, 108 (D.Md. 1994), for the notion that malice must be shown to hold a law enforcement official liable for assault and battery. Goehring in turn relies on a public official immunity case for that idea. Id. (citing Davis v. Muse, 51 Md.App. 93, 100 (1982)). Although the statute refers only to officials of municipal corporations, it nevertheless "applies to county as well as municipal officials." Livesay v. Baltimore Cnty., 384 Md. 1, 12 (2004). 19
11

public official immunity."); Lee v. Cline, 384 Md. 245, 259 n.2 (2004) (quoting Lovelace v. Anderson, 366 Md. 690, 704, 785 A.2d 726 (2001)) (internal nor quotation common marks law omitted). official Therefore, immunity

neither

statutory

public

applies to the intentional tort claims of assault, battery, and false arrest. Johnson need not show malice on those claims.

Johnson's intentional tort claims may proceed. As to Johnson's negligence claim, Defendants rely on public official immunity. Officer Paz could invoke the doctrine as a

defense if he can show (1) that he was acting in a discretionary capacity, (2) he was acting without malice, and (3) he was

acting within the scope of his employment. the second of these elements: malice.

The parties focus on

Malice in this context

means "actual malice," that is, "conduct characterized by evil or wrongful motive, intent to injure, knowing and deliberate wrongdoing, ill-will, or fraud." Lee v. Cline, 384 Md. 245, 268

(2004) (quotation marks omitted); see also Shoemaker v. Smith, 353 Md. 143, 163 (1999) ("The Court of Special Appeals has long applied that, or some similar, standard of `actual malice' in defining `malice' for purposes of public official immunity under common law or under State and local tort claims laws.").

Defendants suggest Officer Paz did not act with malice, but Johnson has presented evidence that 20 the incident began when

Officer

Paz

responded

to

Johnson's

ordinary

questions

with

pepper spray, threw Johnson to the ground, and beat him with a nightstick. 322 Md. 247, Such facts evidence malice. 261 (1991) ("Wrestling Sawyer v. Humphries, to the ground,

another

pulling his hair, and hitting him on the face, again without cause also or provocation, is certainly malicious conduct."); see

Solis v. Prince George's Cnty., 153 F.Supp.2d 793, 805

(D.Md. 2001) ("Officer Ruffin choked Plaintiff and struck him multiple times for no apparent reason. Such unjustified

application of malignant force may give rise to a reasonable inference that Officer Ruffin was motivated by ill will toward or an affirmative intent to injure Plaintiff."). Summary

judgment on this count, like the other counts against Officer Paz, cannot be granted. B. Claims Against Prince George's County also asserts (and Section Paz 1983 in claims his against Prince

Johnson George's

County

Officer

official

capacity)

premised on excessive force and arrest without probable cause. Recognizing that he cannot bring Section 1983 claims against the County based on respondeat superior liability, Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 690-95 (1978), Johnson instead alleges that "Officer Paz's actions are the

result of Prince George's County's custom, policy, and practice 21

of failing to properly hire, train, and supervise its police officers and the County's deliberate indifference" to widespread uses of excessive force and instances of false arrest. 22 ¶¶ 32, 40). "A county may be found liable under 42 U.S.C. § 1983 only when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Wolf (ECF No.

v. Fauquier Cnty. Bd. of Supervisors, 555 F.3d 311, 321 (4th Cir. 2009). A policy means more than formal legislative enactments;

"it may also be found in formal or informal ad hoc `policy' choices or decisions of municipal officials authorized to make and implement municipal policy." Kirby v. City of Elizabeth

City, N.C., 388 F.3d 440, 451 (4th Cir. 2004) (quotation marks omitted); see also Riddick v. Sch. Bd. of City of Portsmouth, 238 F.3d 518, 522 (4th Cir. 2000) ("A government policy or custom need not have received formal approval through the

municipality's official decisionmaking channels to subject the municipality to liability."). For instance, "[i]f a police

force develops an unconstitutional `custom or usage,' i.e., a widespread practice of a particular unconstitutional method,

such custom or usage may be the basis for municipal liability." Randall v. Prince George's Cnty., Md., 302 F.3d 188, 210 (4th 22

Cir. 2002).

To establish a municipal policy through this method

of proof, a plaintiff must provide evidence of a "widespread and permanent practice," Carter v. Morris, 164 F.3d 215, 220 (4th

Cir. 1999), or produce recorded reports to or discussions by a municipal government body, Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987). "It is well settled that isolated

incidents of unconstitutional conduct by subordinate employees are not sufficient." Lytle v. Doyle, 326 F.3d 463, 473 (4th Cir.

2003) (quotation marks omitted). Johnson provides two forms of purported evidence of Prince George's presents George's County's five alleged of the customs claim" State and practices. submitted by First, to five he

"notice or

letters of

Prince other

County

Maryland

individuals.

(ECF No. 24-4).

These letters request damages

from the County or State based on one alleged instance of false arrest (committed by a Prince George's County Deputy Sheriff), three instances of excessive force and false arrest (all

committed by Prince George's County Police officers), and one instance of only excessive force (committed by a Prince George's County Corrections officer). As an initial matter, to the

extent Johnson offers these claim letters to prove the facts contained in them, they would constitute inadmissible hearsay. Eddy v. Waffle House, Inc., 482 F.3d 674, 682 (4th Cir. 2007), 23

rev'd on other grounds by 554 U.S. 911 (2008) (stating "evidence of other lawsuits and complaints" would constitute hearsay if introduced to prove facts alleged therein). "[H]earsay

evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment." Md. Highways Contractors

Ass'n, Inc. v. State of Md., 933 F.2d 1246, 1251 (4th Cir. 1991). Even overlooking that issue, the mere existence of claims against Prince George's County does not establish the requisite widespread practice of approving excessive force. That would

require an assumption that all the allegations in those claim letters were true. As one court explained:

[T]he mere fact that a number of lawsuits have been filed, [or, in this case, might be filed in the future,] without any information as to whether the suits are meritorious or spurious, or alternatively, any evidence that the municipality ignored such complaints such that it constituted deliberate indifference to any potential problem of excessive force, does not assist a fact-finder in determining whether the [municipality] actually has a historical problem of its . . . officers using unconstitutionally excessive force in the performance of their duties. Ostroski v. Town of Southold, 443 F.Supp.2d 325, 346 (E.D.N.Y. 2006) (listing cases).12

Moreover, two of the letters do not even involve acts by Prince George's County police officers. They are not useful evidence. See, e.g., Vizbaras v. Prieber, 761 F.2d 1013, 1017 24

12

Johnson evidence:

also five

provides printouts

a of

second

category

of

supposed containing

internet

webpages

articles about alleged police abuses in Prince George's County. (ECF No. 24-5). Accident The Law printouts Blog," an include article an article from the in

"Maryland

that

references

passing a case brought against Prince George's County by the Department articles of Justice's 2001 Civil Rights alleged Division, abuses by and the three Prince

from

detailing

George's County Police Department.

These articles suffer from

many of the same deficiencies as the claim letters, but the most glaring of these is the fact that the internet articles are unauthenticated F.App'x 165, hearsay. (4th Cir. See United States v. Heijnen, 149

169

2005)

(concluding

that

"documents

downloaded from the internet . . . are hearsay"); accord United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000). Such

articles are analogous to the newspaper articles that courts in this circuit have frequently recognized as hearsay. See, e.g.,

Gantt v. Whitaker, 57 F.App'x 141, 150 (4th Cir. 2003) ("This circuit has consistently held that newspaper articles are

(4th Cir. 1985) ("As the Vizbarases did not offer any evidence of other alleged incidents involving the use of excessive force by the County police officers, we hold that the district court did not err in dismissing the Vizbarases' claim against the County." (emphasis added)). 25

inadmissible hearsay to the extent that they are introduced to prove the factual matters asserted therein." (quotation marks omitted)); Russ v. Causey, 732 F.Supp.2d 589, 596 n.1 (E.D.N.C. 2010); Precision Components, Inc. v. C.W. Bearing USA, Inc., 630 F.Supp.2d 635, 641 (W.D.N.C. 2008); United States v. Bradshaw, 541 F.Supp. 884, 886 (D.Md. 1982). Moreover, as Judge Grimm

thoroughly explained in Lorraine v. Markel American Insurance Co., 241 F.R.D. 534, 541-62 (D.Md. 2007), electronically stored information must be properly authenticated. attempted presented to do so. When evidence ­ from Johnson has not the any internet attempt is at

without

adornment

without

authentication or any explanation as to how the hearsay rules are satisfied ­ it "is adequate for almost nothing." v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d St. Clair 773, 775

(S.D.Tex. 1999). Thus, on the present record, Johnson's claim against Prince George's County could not survive summary judgment. But Johnson

also argues that summary judgment is inappropriate because he has not had sufficient opportunity for discovery. In

particular, he states: I have not been able to obtain additional evidence on the customs, policies, and practices of the Prince George's County Police Department because the evidence that I need, i.e., records of sustained claims, complaints, and lawsuits alleging false 26

arrest and police brutality against the Prince George's County Police Department, [as well as] training records and procedures and police department general orders[,] is exclusively within the control of Prince George's County. (ECF No. 24-1 ¶ 9). That statement is an apparent attempt to

invoke Rule 56(d) (formerly Rule 56(f)) of the Federal Rules of Civil Procedure. Defendants suggest that such a statement is (ECF

not sufficiently specific to justify further discovery. No. 27, at 2-5).

As a general matter, "summary judgment [must] be refused where the nonmoving party that has is not had the to opportunity to

discover

information

essential

his

opposition."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). On the other hand, the party opposing summary judgment cannot bemoan the lack of discovery unless he opposes the summary

judgment motion on the basis that more time for discovery is needed. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, The non-movant must make it clear to the

961 (4th Cir. 1996).

court that more discovery is needed pursuant to Rule 56(d), which provides that "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may . . . defer considering the motion." "The purpose of the affidavit is to

ensure that the nonmoving party is invoking the protections of 27

Rule 56[(d)] in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition." Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quotation marks omitted). Johnson's bones in declaration, justifies although denying admittedly Defendants' rather motion bare as

form,

premature.

"Generally speaking, sufficient time for discovery

is considered especially important when the relevant facts are exclusively in the control of the opposing party." 47 (quotation marks and brackets omitted). Id. at 246-

Here, Johnson has

stated that the evidence he needs to establish his "policy or custom" claim ­ other allegations and investigations regarding excessive force and false arrest - are within the control of Prince George's County. Therefore, with one exception addressed

below, the court will deny without prejudice Defendants' motion for summary judgment on the claims against Prince George's

County.13

Citing Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), Defendants also suggest that Johnson inadequately pled his policy and practice claims by insufficiently identifying the relevant policy or practice. The complaint is sufficient, as it identifies the wrongful policy as a failure to train, hire, supervise, and cease certain unlawful conduct by County Police officers. 28

13

Johnson's complaint also seeks, punitive damages from the County. "Maryland law disallows any such assessment of punitive Robles v. Prince George's Cnty.,

damages against a county."

Md., 302 F.3d 262, 273 (4th Cir. 2002) (citing Md. Cts & Jud. Proc. Art. § 5-303(c)(1)); see also City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (finding municipalities immune from punitive damages under Section 1983). not be permitted to pursue any claims for Johnson will damages

punitive

against the County. IV. Conclusion For the foregoing reasons, Defendants' motion to dismiss or for summary judgment, be construed in part to as a motion denied will for in be summary In A

judgment, addition,

will

granted

and

part. denied.

Defendants'

motion

strike

separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge

29