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

Filing 58

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 2/12/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARTIN CALHOUN
:
v.

:

Civil Action No. DKC 12-2014

:
PAUL SCHWEINSBURG,
et al.

:
MEMORANDUM OPINION

Presently pending and ready for resolution in this civil
rights

case

are

a

motion

for

summary

judgment

filed

by

Defendants Paul Schweinsburg, Jason Avery, and Sean Burroughs
(ECF

No.

51),

and

a

motion

to

withdraw

Plaintiff Martin Calhoun, (ECF No. 53).

admissions

filed

by

The issues have been

fully briefed, and the court now rules, no hearing being deemed
necessary.

Local

Rule

105.6.

For

the

following

reasons,

Defendants’ motion for summary judgment will be granted in part
and

denied

in

part,

and

Plaintiff’s

motion

to

withdraw

admissions will be granted.
I.

Background1
A.
On

Factual Background
May

21,

2009,

Plaintiff

was

driving

his

vehicle

in

Clinton, Maryland, when he observed that he was being followed
1

Unless otherwise noted,
construed in the light most
nonmoving party.

the facts outlined here
favorable to Plaintiff,

are
the

by a police cruiser.

As soon as Plaintiff noticed that the

police cruiser had activated its sirens, he pulled his vehicle
over into the parking lot of a gas station.

Plaintiff watched

as Officer James Lacombe approached his vehicle, and noticed
that he had raised his baton.

Plaintiff, who had been beaten by

police before, panicked when he saw the raised baton and drove
away.

Officer

Lacombe

got

back

in

his

police

cruiser

continued pursuing Plaintiff with his sirens activated.

and

During

the pursuit, Officer Lacombe radioed for back-up and requested a
stolen vehicle check.

(ECF No. 51, at 2).

The dispatcher

informed him that the vehicle driven by Calhoun was not stolen.
(Id.).

Plaintiff drove for a short while and then subsequently

returned to the same gas station, parked his vehicle, got out,
put his hands up and yelled “don’t shoot.”
11).

(ECF No. 51-11, at

At this point, Officers Schweinsburg and Burroughs, and

Lieutenant Avery, had arrived on the scene.
2).

Plaintiff

saw

multiple

police

(ECF No. 51-2, at

officers

arrive,

again

started panicking, and began to flee from the officers on foot.
(ECF

No.

51-11,

at

11).

Officers

Schweinsburg

and

Lacombe

chased Plaintiff on foot while Lt. Avery and Officer Burroughs
secured Plaintiff’s vehicle.
point,

Plaintiff’s

and

(ECF No. 51-2, at 2).

Defendants’

diverge.

2

version

of

the

At this
events

1.

Plaintiff’s Version of the Events

During the on-foot pursuit, Plaintiff yelled out to the
officers that he was unarmed and asked them not to shoot him.
(ECF No. 45 ¶ 21).

Plaintiff heard the officers yelling “shoot

him” and “tase him.”

(ECF Nos. 54-1, at 2 and 51-11, at 11).

Plaintiff was tased by one of the officers, lost control of his
muscles, and fell to the ground into a hole.

(Id.).

While

Plaintiff was on the ground, he was punched and kicked by the
Officers for approximately five minutes.
28 and 51-11, at 11, 20-21).

(ECF Nos. 45 ¶¶ 24-25,

Plaintiff curled up in a ball to

protect his face and his previously injured hip.
27 and 51-11, at 11).

(ECF Nos. 45 ¶

Eventually one of the officers said “let

him up” and the officers proceeded to handcuff Plaintiff.

(ECF

No. 54-1, at 2).
Following this incident, Plaintiff was taken by ambulance
to Southern Maryland Hospital, where he was treated.
36).

(Id. ¶

Upon release, Plaintiff was taken to the Department of

Corrections in Upper Marlboro, Maryland.

Plaintiff states that

he suffered painful injuries as a result of Defendants’ conduct,
including bruises, lacerations, and contusions, suffered severe
physical and mental pain and suffering, and incurred expenses
for

legal

care[.]”

services

as

well

as

(ECF No. 45 ¶ 37).

3

for

hospital

and

physician

2.

Defendants’ Version of the Events

During

the

on-foot

pursuit,

Officers

Schweinsburg

and

Lacombe chased Plaintiff, and Officer Schweinsburg repeatedly
called out to him to “stop, show his hands, and that he was
under arrest.”

(ECF No. 51-2, at 2).

Officer Schweinsburg’s commands.
the

pursuit

Plaintiff

turned

Plaintiff did not obey

Instead, at some point during

toward

Officer

Schweinsburg

and

with one fist clenched started to approach the officer in an
aggressive manner.

Officer Schweinsburg, who could only see one

of Plaintiff’s hands, deployed his taser because he could not
tell if Plaintiff was holding a weapon in his other hand.
being tased, Plaintiff fell into a hole.

After

Plaintiff continued to

resist Officer Lacombe and Schweinsburg’s attempts to arrest him
by struggling and crawling further into the hole.

The Officers

were finally able to handcuff Plaintiff and pull him from the
hole.

During the struggle, neither of the officers tackled

Plaintiff, nor did they hit, beat, kick, or punch him.

(ECF No.

51-2,

Maryland

at

Hospital
prongs

3-4).
where

and

Plaintiff
he

then

was

was

treated

released

taken

for

and

to

the

taken

Southern

removal
to

the

of

the

taser

Department

of

Corrections.
B.
On

Procedural Background
May

Defendants

in

18,
the

2012,

Plaintiff

Circuit

Court
4

filed
for

a

Prince

complaint

against

George’s

County,

Maryland.2

(ECF No. 2).

Defendants removed the case to this

court on July 6, 2012, based on federal question jurisdiction.
(ECF No. 1).
25,

2013,

Plaintiff filed an amended complaint on September

asserting

two

counts:

(1)

false

arrest

without

probable cause under 42 U.S.C. § 1983; and (2) excessive force
under § 1983 in violation of Plaintiff’s Fourth Amendment rights
and

his

rights

under

Articles 24 and 25.
On

May

judgment.

2,

the

Maryland

Declaration

of

Rights,

for

summary

(ECF No. 45).

2014,

Defendants

(ECF No. 51).

filed

a

motion

Defendants requested in their motion

that their requests for admissions that were sent to Plaintiff
on

February

6,

2014

and

March

26,

2014,

failed to respond, be deemed admitted.

to

which

Plaintiff

(ECF No. 51-2, at 5).

On June 14, 2014, Plaintiff opposed the motion and moved for
leave to withdraw admissions.

(ECF Nos. 53 and 54).

Defendants

opposed Plaintiff’s motion to withdraw admissions (ECF No. 55),
and replied to Plaintiff’s opposition.
II.

(ECF No. 57).

Standard of Review
A motion for summary judgment will be granted only if there

exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

2

as

a

matter

of

law.

See

Plaintiff’s original complaint was filed against several
other Defendants, including Prince George’s County, Maryland and
Officer James Lacombe, who have been dismissed from this case.
(ECF Nos. 30 and 44).
5

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

(1986).

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

Once a properly supported motion for summary judgment

is filed, the nonmoving party is required to make a sufficient
showing on an essential element of that party’s claim as to
which that party would have the burden of proof to avoid summary
judgment.

Celotex, 477 U.S. at 322–23.

Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material

fact,

and

the

moving

party

is

plainly

judgment in its favor as a matter of law.

In

entitled

to

Anderson v.

Liberty Lobby, Inc., 477 U.S. at 249 (1986), the Supreme Court
explained that, in considering a motion for summary judgment,
the “judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

A dispute about a material fact

is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Id. at 248.

Thus,

“the judge must ask himself not whether he thinks the evidence
unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
6

favorable to the party opposing the motion.”

Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting

United

States

v.

Diebold,

Inc.,

369

U.S.

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence

in

support

The mere existence of a “scintilla” of
of

the

non-moving

party's

case

is

sufficient to preclude an order granting summary judgment.

not
See

Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”

Shin v.

Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,

this

court

has

an

affirmative

obligation

to

prevent

factually unsupported claims and defenses from going to trial.
See

Drewitt

v.

Pratt,

999

F.2d

774,

778–79

(4th

Cir.

1993)

(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
III. Analysis
A.

Plaintiff’s Motion to Withdraw Admissions

Defendants

assert

that

they

sent

Plaintiff

two

sets

of

requests for admissions on February 6, 2014 and March 26, 2014
(ECF Nos. 51-21 and 51-22), and that as of May 2, 2014, the day
they filed their motion for summary judgment, Plaintiff had not
responded to either request.

Defendants contend that because

Plaintiff failed to respond to their requests for admissions
7

within the thirty-day time frame required by Fed.R.Civ.P. 36(a),
“all

of

the[ir]

Requests

for

Admissions

should

be

deemed

admitted for the purpose of this summary judgment motion.”
No. 51-2, at 13).

(ECF

In response, Plaintiff moved to withdraw

admissions on June 14, 2014 (ECF No. 53), and filed responses to
Defendants’ second set of requests for admission pursuant to
Fed.R.Civ.P. 36(b).3

(ECF No. 53-2).

Pursuant to Rule 36(a), because Plaintiff failed to respond
to Defendants’ requests for admissions within thirty days, the
matters which Defendants requested admitted were automatically
deemed

admitted.

Rule

permit

withdrawal

of

36(b),

however,

admissions

“if

allows

it

would

the

court

promote

to
the

presentation of the merits of the action and if the court is not
persuaded

that

it

would

prejudice

the

requesting

maintaining or defending the action on the merits.”
Charles

A.

Wright

&

Arthur

R.

Miller,

Federal

party

in

See 8B

Practice

and

Procedure § 2257 (3d ed. 2002) (“[An] admission that otherwise
would result from a failure to make timely answer should be
avoided when to do so will aid in the presentation of the merits
of the action and will not prejudice the party who made the
request.”).

“The court has ‘considerable discretion over the

3

Plaintiff notes in his opposition to Defendants’ motion
for summary judgment that Defendants’ first set of requested
admissions related only to his false arrest claim, as to which
he has already “concede[d] defeat.” (ECF No. 54-1, at 3).
8

withdrawal of admissions once they have been made.’”

Kress v.

Food Employers Labor Relations Ass’n, 285 F.Supp.2d 678, 681
(D.Md. 2003) (quoting U.S. v. Turk, 139 F.R.D. 615, 618 (D.Md.
1991)).
Defendants’ requested admissions involve matters central to
the resolution of this dispute.
Plaintiff

to

admit

in

For example, Defendants ask

request

number

15

that

“Officer

Schweinsburg did not use excessive force against the Plaintiff”
and

in

request

number

18

that

entitled to qualified immunity.”

“[Officer]

Schweinsburg

(ECF No. 51-22, at 7).

[is]
Both

of these requests go to the heart of Plaintiff’s excessive force
claim.

It is clear that refusal to allow Plaintiff to withdraw

the admissions would unduly hamper his ability to present the
merits

of

his

case.

In

addition,

it

does

not

appear

from

Defendants’ summary judgment motion that they are relying on
Plaintiff’s admissions, such that they would be prejudiced if
the

admissions

were

withdrawn.

(ECF

No.

51).

Therefore,

Plaintiff’s motion to withdraw admissions will be granted.
B.

Motion for Summary Judgment

After
conceded

Defendants

in

his

moved

opposition

for

summary

memorandum

judgment,

that

summary

Plaintiff
judgment

should be entered in favor of all Defendants and against him on
the

false

arrest

claim,

and

should

be

entered

in

favor

of

Defendants Avery and Burroughs on the excessive force claim.
9

(ECF No. 54, at 1).

Accordingly, Plaintiff’s only remaining

claim is against Defendant Schweinsburg for excessive force.4
Defendant
qualified

Schweinsburg

immunity

as

to

contends

that

Plaintiff’s

he

is

excessive

entitled
force

to

claim

because the force he used to seize Plaintiff was objectively
reasonable
Defendant
because

under

the

Schweinsburg
a

reasonable

circumstances.
is

not

entitled

official

would

Plaintiff
to

argues

qualified

have

that

immunity

understood

that

Defendant’s continued use of force against Plaintiff after he
had been apprehended constituted excessive force and violated
Plaintiff’s rights.
Qualified

immunity

is

an

affirmative

defense

to

Section

1983 claims and “protects government officials ‘from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.’”

Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).

Two inquiries must be satisfied to determine

whether an official is entitled to qualified immunity:

(1)

whether, after viewing the facts in the light most favorable to
the party asserting the injury, there was a deprivation of a
constitutional right; and, if so, (2) whether the right was

4

Because Officer Schweinsburg is the only remaining
Defendant, he will hereinafter be referred to in the singular.
10

clearly established at the time of the deprivation such that a
reasonable
unlawful.

official
See

would

Saucier

understand

v.

Katz,

that

533

their

U.S.

conduct

194,

201

was

(2001),

overruled in part on other grounds in Pearson, 555 U .S. at 236.
Courts

are

deciding

“permitted

which

of

to

the

exercise

two

their

prongs

of

sound

the

discretion

qualified

in

immunity

analysis should be addressed first in light of the circumstances
in the particular case at hand.”

Pearson, 555 U.S. at 236.

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.”
F.3d 288, 293–94 (4th Cir. 2003).
to

prove

that

the

alleged

Batter v. Gomez, 324

The burden is on the Plaintiff

conduct

violated

the

law,

while

Defendant must prove that the right was not clearly established.
Henry v. Purnell, 501 F.3d 374, 377–78 (4th Cir. 2007).
Here,

Plaintiff

asserts

that

Defendant

Schweinsburg

violated his right under the Fourth Amendment to be free from
unreasonable and excessive force during a seizure.

Excessive

force claims are “analyzed under the Fourth Amendment and its
‘reasonableness’ standard.”

Noel v. Artson, 641 F.3d 580, 590

(4th Cir. 2011) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)).
the

Reasonableness of force is analyzed on the basis of

totality

standard.

of
This

the

circumstances

process

requires
11

according

to

an

balancing

“the

objective

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. 1, 8 (1985) (citation omitted).

Relevant factors in making

this determination include the severity of the crime, whether
there is an immediate threat to the safety of the officer or
others,

and

attempting

to

whether

determination

the

flee.
is

subject

See

to

be

is

Graham,

made

resisting
490

“from

reasonable officer on the scene.”

Id.

U.S.

the

the
at

stop

396.

perspective

or
The

of

a

The Fourth Circuit has

held that reasonableness is determined “based on the information
possessed by the officer at the moment that force is employed.”
Waterman v. Batton, 393 F.3d 471, 477 (4th Cir. 2005).
Plaintiff does not challenge Defendant Schweinsburg’s use
of the taser as being excessive — he admits that the taser use
was justified because he ran from the Officers and was resisting
arrest.
Defendant

(ECF No. 53-2, at 2).
Schweinsburg’s

use

Instead, Plaintiff challenges

of

force

after

he

was

tased,

stating that “Defendant Schweinsburg could not have reasonably
believed

that

apprehension.

it

was

lawful

to

beat

the

[P]laintiff

after

Such use of force is unnecessary, gratuitous, and

disproportionate.”

(ECF No. 54-1, at 4).

Plaintiff asserts

that before he began to flee from the officers, he raised his
hands in the air to show that he was unarmed and while running
12

yelled to the Officers that he was unarmed.

Plaintiff also

states that after he was tased, he lost control of his muscles
and fell into a hole in the ground.
was

in

the

hole,

Officer

He alleges that while he

Schweinsburg

and

Officer

Lacombe

continued to beat him, by elbowing him and punching him “in his
ribs, his back, and his hips.”

(ECF No. 54-1, at 2).

Plaintiff

contends that while this beating persisted, he was not resisting
the Officers, but was curled up trying to protect himself.
No. 54-1, at 2).

(ECF

He also alleges that the beating went on for

several minutes until the officers finally handcuffed him.
Defendant

Schweinsburg

contends

that

circumstances, his use of force was reasonable.

given

the

He points to a

number of factors, which he alleges support the reasonableness
of the force he employed:

Plaintiff was actively resisting

arrest; Plaintiff’s behavior appeared to pose a threat towards
the officers pursuing him; and finally, the injuries Plaintiff
sustained were minor and not substantial enough to sustain a
Section

1983

claim.

(ECF

No.

51-2,

at

9-12).

Defendant

Schweinsburg also argues that his use of force was not excessive
because Plaintiff continued to struggle with the officers while
they were trying to handcuff him.

(ECF No. 57, at 4).

Crediting Plaintiff’s version of events, there is a genuine
dispute

as

to

whether

Defendant

Schweinsburg

force against Plaintiff after he had been tased.
13

used

excessive

See Saucier,

533 U.S. 201 (when determining whether defendants are entitled
to qualified immunity, a court must consider the facts “in the
light most favorable to the party asserting the injury”).

Any

continued beating of Plaintiff by Defendant Schweinsburg after
Plaintiff was tased, fell to the ground, temporarily lost muscle
control, and was no longer resisting arrest, would constitute
excessive force despite the fact that Plaintiff had not yet been
handcuffed

because

Defendant

Schweinsburg’s

force

would

have

differs

from

been unnecessary.
Defendant

Schweinsburg’s

version

of

events

Plaintiff in that he recalls Plaintiff continuing to struggle
after he fell in the hole and insists that he did not kick or
beat Plaintiff.

As noted in Cole v. Prince George’s County Md,

798 F.Supp.2d 739, 743 (D.Md. 2011), “granting ‘summary judgment
on

qualified

remains

any

immunity

grounds

is

material

factual

dispute

conduct of the defendants.’”
973

F.2d

321,

324

(4th

Cir.

improper

as

long

regarding

as

the

there
actual

Id. (quoting Rainey v. Conerly,
1992)).

Moreover,

Defendant’s

argument that Plaintiff’s de minimis injuries are not enough to
sustain a Section 1983 claim is without merit.
Plaintiff’s

injuries

is

only

a

single

factor

The extent of
that

can

be

considered when determining whether Defendant’s use of force was
reasonable.

Additionally, Defendant Schweinsburg has not argued

that the right to be free from excessive force was not clearly
14

established

by

May

2009,

the

day

Plaintiff

was

apprehended.

Accordingly, summary judgment will be denied as to the excessive
force claim.
IV.

Conclusion
For the foregoing reasons, Plaintiff’s motion to withdraw

admissions

will

be

granted.

Defendants’

motion

for

judgment will be granted in part and denied in part.

summary
Summary

judgment will be granted in favor of Defendants and against
Plaintiff on all of the claims, except the claim for excessive
force

against

Officer

Schweinsburg.

A

separate

order

will

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

15