Calhoun v. Prince George's County, Maryland et al
Filing
33
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/24/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARTIN CALHOUN
:
v.
:
Civil Action No. DKC 12-2014
:
PRINCE GEORGE’S COUNTY,
MARYLAND, et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this civil rights
case
is
the
motion
to
dismiss
filed
by
Defendants
Prince
George’s County (“the County”) and Prince George’s County Police
Officers
Paul
(together,
Schweinsburg,
“the
individual
Jason
Avery,
officers”).
and
(ECF
Sean
No.
Burroughs
29).1
The
issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
For the
following reasons, the motion to dismiss will be granted without
prejudice
to
Plaintiff’s
right
to
file
an
amended
complaint
within fourteen days.
I.
Background
The amended complaint alleges that on May 21, 2009, in
Prince George’s County, Plaintiff Martin Calhoun was:
1
On July 13, 2012, Defendants filed a suggestion of death
as to Officer James Lacombe (ECF No. 13), and he was dismissed
as a Defendant on November 19, 2012 (ECF No. 30).
approached by OFC LACOMBE #3110, with a
police baton held high, as if ready for an
assault upon the plaintiff, who then fled,
was apprehended by the aforesaid police
officers, and was beaten, about the head,
body,
and
limbs,
assaulted,
battered,
falsely imprisoned, and falsely arrested, by
the defendants OFC SCHWEINSBURG #3331, OFC
LACOMBE #3110, OFC BURROUGHS #2879, OFC
AVERY #2401.
(ECF No. 23 ¶ 5).
Plaintiff alleges that, as a result, he
suffered serious injuries that required medical attention.
¶ 7).
(Id.
Plaintiff also alleges that Officer Schweinsburg filed a
false statement of probable cause, resulting in charges that
were later resolved in Plaintiff’s favor.
On
May
18,
2012,
Defendants
in
the
Maryland.
(ECF No. 2).
Plaintiff
Circuit
Court
(Id. ¶ 6).
filed
for
a
complaint
Prince
against
George’s
County,
Defendants removed the case to this
court on July 6, 2012, based on federal question jurisdiction.
(ECF
No.
1).
Plaintiff’s
initial
complaint
constitutional and tort claims against Defendants.
Defendants moved to dismiss the complaint.
asserted
ten
On July 13,
(ECF No. 16).
On
July 31, Plaintiff filed a motion for leave to file an amended
complaint (ECF No. 18), which was granted on August 13, 2012
(ECF No. 22).
alleging
The amended complaint contains a single count
excessive
force
in
violation
of
Plaintiff’s
Fourth
Amendment rights and his rights under the Maryland Declaration
of Rights, Articles 24 and 26.
2
(ECF No. 23, ¶¶ 9-12).
On
November 29, 2012, Defendants filed a motion to dismiss the
amended complaint for failure to state a claim upon which relief
can be granted.
(ECF No. 29).
Plaintiff opposed this motion
(ECF No. 31), and Defendants replied (ECF No. 32).
II.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Charlottesville,
464
F.3d
480,
483
(4th
Presley v. City of
Cir.
2006).
A
plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n. 3 (2007).
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light
most
favorable
to
the
plaintiff,
see
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
3
(4th Cir. 1993)).
In evaluating the complaint, unsupported legal
allegations
not
need
be
accepted.
Revene
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cnty.
Legal conclusions
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979).
III. Analysis
Plaintiff purports to bring claims against the County and
the individual officers under 42 U.S.C. § 1983 for violations of
the Fourth Amendment to the United States Constitution, as made
applicable to the states through the Fourteenth Amendment, and
Articles
24
and
26
of
the
Maryland
Declaration
of
Rights.
Section 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).
“Section 1983 ‘is not itself a source of substantive
rights,’ but merely 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)).
To state a claim under § 1983, a plaintiff must allege
that “the conduct complained of was committed by a person acting
under color of state law,” and “this conduct deprived a person
of rights, privileges, or immunities secured by the Constitution
4
or laws of the United States.”
Parratt v. Taylor, 451 U.S. 527,
535 (1981).
Claims
of
“excessive
force
.
.
.
in
the
course
of
an
arrest, investigatory stop, or other seizure of a free citizen”
should
be
evaluated
“under
reasonableness standard.”
the
Fourth
Amendment
and
its
Graham v. Connor, 490 U.S. 386, 395
(1989); see also Henry v. Purnell, 652 F.3d 524, 536 (4th Cir.
2011) (summarizing Maryland law and noting that the standard for
analyzing excessive force claims under Articles 24 and 26 of the
Maryland Declaration of Rights is “the same as for analyzing
Fourth
Amendment
claims”).
The
“reasonableness
standard”
entails assessment of a variety of factors:
The
inquiry
is
“whether
the
officer’s
actions are ‘objectively reasonable’ in
light
of
the
facts
and
circumstances
confronting them, without regard to their
underlying intent or motivation.”
[Graham,
490 U.S.] at 397.
The relevant facts and
circumstances 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.”
Id.
The
reasonableness test “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.” Id. at 396.
Felarca
v.
Birgeneau,
No.
11-5719,
(N.D.Cal. Feb. 22, 2013).
5
2013
WL
663921,
at
*4
A.
Individual Officers’ Liability
The
entirety
of
Plaintiff’s
allegations
is
found
in
paragraph 5 of the complaint:
On May 21, 2009, in Prince George’s County,
Maryland, the plaintiff was approached by
OFC LACOMBE #3110, with a police baton held
high, as if ready for an assault upon the
plaintiff, who then fled, was apprehended by
the aforesaid police officers, and was
beaten, about the head, body, and limbs,
assaulted, battered, falsely imprisoned, and
falsely arrested, by the defendants OFC
SCHWEINSBURG #3331, OFC LACOMBE #3110, OFC
BURROUGHS #2879, OFC AVERY #2401.
(ECF No. 23 ¶ 5).
Plaintiff alleges that these officers were
acting under the color of state law.
(Id. ¶ 11).
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.
The sparse factual allegations and legal
conclusions included in the amended complaint are not entitled
to judicial deference.
See Twombly, 550 U.S. at 570 (stating
that “courts ‘are not bound to accept as true a legal conclusion
couched as a factual allegation’”) (citations omitted).
Plaintiff
asserts
that
there
were
four
police
officers
involved in his apprehension, one of whom is no longer a party
to the action.
three,
but
He does not differentiate among the remaining
merely
alleges
that
when
he
fled
from
Officer
Lacombe, he was apprehended by all of them and “beaten about the
6
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).
In a somewhat similar
case, such meager facts were found to be insufficient:
Plaintiff states Officer Haak “violently
grabbed and handcuffed” him . . . There is
not an outright ban on a police officer’s
use of force, but rather, “Fourth Amendment
jurisprudence has long recognized that 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 police officer’s grab of
Plaintiff to put handcuffs on him, in the
style alleged here, does not rise to the
level of excessive force.
A police officer
must make some contact with a person to
effect an arrest, and Plaintiff 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.
Because Plaintiff has
not provided any specific details that could
give rise to an excessive force claim, the
Court cannot allow this claim to proceed.
Machie v. Manger, No. AW-09-2196, 2010 WL 2132223, at *5 (D.Md.
May 25, 2010).
once,
he
will
Although Plaintiff has amended his complaint
be
permitted
an
opportunity
to
supply
enough
factual detail to state a claim and the complaint against the
three
officers
will
be
dismissed
without
prejudice
Plaintiff’s right to file a second amended complaint.
7
to
B.
Liability as to Prince George’s County
Even if Plaintiff had stated a plausible claim for the
deprivation
of
his
rights
at
the
hands
of
the
officers, his claim against the County would fail.
individual
To recover
against the County, Plaintiff must allege that the County was
the “moving force” behind the deprivation of his rights, and
that a “policy or custom” of the County, “played a part in the
violation of federal law.”
Graham, 473 U.S. at 166.
Such a
policy or custom may be found in “formal or informal ad hoc
‘policy’
choices
or
decisions”
made
authorized to conceive of such policies.
F.2d 1380, 1385 (4th Cir. 1987).
such policy or custom.
by
officials
who
are
Spell v. McDaniel, 824
Plaintiff does not identify any
Indeed, the amended complaint does not
make any factual allegations with respect to Defendant Prince
George’s County and the basis upon which Plaintiff attempts to
state a cause of action against it.
to state a claim against the County.
8
Therefore, Plaintiff fails
IV.
Conclusion
For the foregoing reasons, the motion to dismiss filed by
Defendants
Prince
George’s
County,
Paul
Schweinsburg,
Avery, and Sean Burroughs, will be granted.
A separate Order
will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
9
Jason
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