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

Filing 47

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 5/25/2016. (bus, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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DEMETRIOUS QUEEN,
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Plaintiff,
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v.

Case No.: PWG-14-2941
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PRINCE GEORGE’S COUNTY, et al.,
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Defendants.
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MEMORANDUM OPINION
Defendant Christopher May, who at the time was a police officer with Prince George’s
County (the “County”), responded to two noise complaints early on January 19, 2014, along with
other County police officers, and found Plaintiff Demetrious Queen at the scene both times,
alone, yelling loudly. The second time, they handcuffed Queen but then released him when he
calmed down. Both times, they decided not to arrest him. But, about fifteen minutes later, May
arrested Queen, striking him in the face with the heel of his palm when he resisted efforts to
place him under arrest.
Queen retained counsel and filed suit against May and the County, claiming that “Officer
May and other Prince George’s County Police Officers hit plaintiff with their fists and a baton
seven to eight times and dragged him down seven flights of stairs despite the fact that plaintiff
had not committed a crime and despite the fact that plaintiff had not tried to escape or resist
arrest.” Am. Compl. ¶ 7, ECF No. 17-1. His Amended Complaint includes claims for assault,
battery, false arrest, and section 1983 claims based on arrest without probable cause and use of

excessive force in violation of the Fourth Amendment. Id. ¶¶ 13–32. I granted the County’s
unopposed Motion to Bifurcate, ECF No. 11, bifurcating the claims against May from the claims
against the County for purposes of trial, with the claims against May to be considered first, and
staying discovery as to the County’s liability. ECF No. 26. Queen’s counsel withdrew his
appearance, and Queen now proceeds pro se. ECF Nos. 33, 36.
Now pending is May’s Motion for Summary Judgment, ECF No. 45. Although it is
unopposed, and the time for filing an opposition has passed, see Loc. R. 105.2(a), I find that the
materials in the record show that genuine disputes exist as to material facts.1 Therefore, I will
deny May’s motion and appoint pro bono counsel to represent Queen at trial, and this case will
proceed to trial on the claims brought against May.
Standard of Review
Summary judgment is proper when the moving party demonstrates, through “particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials,” that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of
Greensboro, No. 12-1722, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary
judgment demonstrates that there is no evidence to support the nonmoving party’s case, the
burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute
exists as to material facts. See Celotex v. Catrett, 477 U.S. 317 (1986).

1

A hearing is not necessary. See Loc. R. 105.6.
2 

When May stated his intention to move for summary judgment, ECF No. 40, the Court
scheduled a pre-motion conference call and notified Queen, ECF No. 43, but Queen did not
participate in the call, ECF No. 44. May then filed his motion, and the Court informed Queen of
his right to respond to the motion, ECF No. 46, but he did not respond.

Under these

circumstances, “those facts established by the motion” are “uncontroverted.” Custer v. Pan Am.
Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993). Nonetheless, Queen’s “failure to respond …
does not fulfill the burdens imposed on moving parties by Rule 56,” which “requires that the
moving party establish, in addition to the absence of a dispute over any material fact, that it is
‘entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). Thus, “the
court, in considering a motion for summary judgment, must review the motion, even if
unopposed, and determine from what it has before it whether the moving party is entitled to
summary judgment as a matter of law.” Id.
Significantly, what is before the Court includes not only May’s motion but also the
exhibits he attached. ECF Nos. 45-1 – 45-5. Moreover, on a motion for summary judgment,
although “[t]he court need consider only the cited materials,” it “may consider other materials in
the record.” Fed. R. Civ. P. 56(c)(3). And, I am cognizant that Queen is unrepresented, even if
the principle that “[a] document filed pro se is ‘to be liberally construed,’ and ‘a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers,’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)), is inapplicable, given that Queen had counsel at the time he
filed suit, ECF No. 1, and amended his complaint, ECF No. 17, and has not filed any documents
independently.

In this case, I have considered not only the cited material that May selected to

support his motion, but all of the materials in the record, which includes transcripts from the

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depositions of Keona Singletary (Exhibit 1), Shearda Gerald (Exhibit 2), and May (Exhibit 3), as
well as the Affidavit of Pofc. Christyal Boone (formerly Officer Rood) (Exhibit 4), and Queen’s
medical records (Exhibit 5).
Factual Background2
In the early morning hours of Sunday, January 19, 2014, Prince George’s County police
officers responded to two 911 calls from Burnside Road in Palmer Park, Maryland, the first
reporting a vehicle theft, May Dep. 4:20 – 6:9, and the second reporting a fight on the front lawn,
Gerald Dep. 21:5 – 22:3. May was one of the responding officers on the first call. May Dep.
5:20 – 6:11. When he first arrived, he found Demetrious Queen “pacing back and forth in front
of the house, . . . talking to himself.” Id. at 6:22–25. Queen and his girlfriend Keona Singletary
were attending a party at that location. Singletary Dep. 11:4 – 12:13. Queen had started
Singletary’s car to warm it up and left it unattended, at which time it was stolen. Id. at 4:13.
Singletary recalled that she was “angry” and “kind of got upset with him about the incident, why
did he have the car running, things of that nature,” but Queen “really wasn’t upset. He just said
that, you know, he didn’t intend for [her] car to get stolen or whatever.” Id. at 19:1–8.
The police returned when “two gentlem[e]n that were at the party or out in front of the
party had some words with Demetrious or something of that nature. . . . [A] verbal exchange
took place.” Singletary Dep. 21:9–12. The scene escalated to involve about twenty people
“fighting and yelling” outside. Id. at 22:20 – 23:2. Singletary was inside, but she recalled “a lot

2

  In reviewing the evidence related to a motion for summary judgment, the Court considers
undisputed facts, as well as the disputed facts viewed in the light most favorable to the nonmoving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009); George & Co., LLC v. Imagination
Entm’t Ltd., 575 F.3d 383, 391–92 (4th Cir. 2009); Dean v. Martinez, 336 F. Supp. 2d 477, 480
(D. Md. 2004). 

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of arguing. . . . It was loud. A bunch of arguing back and forth.” Id. at 22:4–5, 47:18–21. She
“believe[d]” that Queen was a part of the argument, and that it “started from the car situation.”
Id. at 24:6–16. Queen left before the police arrived, and “the commotion kind of died down
when he left.” Id. at 41:14–18, 48:4–5.
About an hour later, May and other County police officers responded to a noise
complaint from outside 900 Hill Road, Apartment 302, Seat Pleasant, Maryland, where Queen
lived with Singletary.3 Gerald Dep. 19:9–10; 51:17 – 52:11; May Dep. 17:1–21. There, they
found Queen outside, “being loud, screaming, seem[ing] to be at himself,” and smelling of
alcohol. May Dep. 19:4–7, 20:8–9. The officers “had Mr. Queen sit down, began speaking with
him, trying to get him to calm down and figure out why he was outside at that time in the
morning being loud.” Id. at 20:13–16. They “decided that no action needed to be taken, and
[they] left.” Id. at 20:17–19.
“[S]hortly after” they left, they “got called backed there for the same incident, with a loud
person—or a disturbance at 900 Hill Road. May Dep. 21:24 – 22:3. When they returned, “Mr.
Queen was outside, yelling again . . . at himself,” loudly. Id. at 22:9-22. They asked him to calm
down, warned him that “it’s an arrestable offense for disturbing the peace due to the fact that it
was so early in the morning, individuals were calling in on him,” and temporarily handcuffed
him in an effort to calm him down, id. at 23:4–10; Gerald Dep. 12:6–7.
According to May, Queen’s “girlfriend show[ed] up and tr[ied] to calm him down.” May
Dep. 23:11–12. Singletary testified to the contrary that she did not arrive until Queen was inside

3

  Singletary testified on September 10, 2015 that Queen was no longer living at that address.
Singletary Dep. 6:10–16, 51:18–21. Queen has not informed the Court of any change of address,
as Local Rule 102.1(b)(iii) obligates him to do.  

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the apartment. Singletary Dep. 51:2 – 52:5. Queen’s sister Shearda Gerald testified that it was
she who arrived and convinced Queen to calm down. Gerald Dep. 12:4–20. Gerald stated that
the officers “allowed [Queen] to make a decision to either . . . leave with [his] sister or . . . to go
back upstairs.” Id. at 17:8–17. Queen chose to go upstairs. Id. These inconsistencies are
immaterial. What is significant is May’s undisputed testimony that, after Queen calmed down
and “stat[ed] that he’s going upstairs to his apartment and going to bed,” the officers “decided
not to arrest him” and released him, and he went up to the apartment. May Dep. 23:11–14; see
Gerald Dep. 12:13–20.
Gerald recalled that the officers “walk[e]d to their vehicles” and were “about to leave”
when she asked them to stay because Singletary and her friends had arrived and Gerald thought
that “if [the officers] let [Singletary] and her friends go up there it might escalate . . . to probably
them arguing.” Gerald Dep. 17:8 – 18:20. Singletary testified that when she arrived, she “was
stopped by a female officer who informed [her] that [she] could not go . . . in right now because
Demetrious [was] in there getting some of [his] things.” Singletary Dep. 52:7-14. Eventually,
the officer allowed Singletary to enter the apartment. Singletary recalled that she and Queen
“started conversating about the events that were going on that led up to this point and all that
happened” for about fifteen minutes, during which time she “was upset.” Id. at 58:1–17. But,
she insisted, “the conversation wasn’t an angry conversation.” Id. at 59:7–8. She stated that they
were “talking . . . in a normal voice” that she did not “think . . . was too loud.” Id. at 102:17–18.
After about fifteen minutes, the officers knocked and entered the apartment and told
Queen “he needed to leave . . . for the night.” Singletary Dep. 64:4–15. Queen “question[ed]
why he had to leave.” Id. at 64:15-17. Still, he “stood up” and “walked out” as the officers

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“escorted him out into the hall.”

Id. at 65:8–9, 67:1–6.

Gerald’s testimony corroborated

Singletary’s in this regard. Gerald Dep. 22:1–19, 30:20 – 31:9.
Singletary testified that, from her vantage point at the peephole of the door, she saw the
officers handcuff Queen, order him to be quiet, and when he did not comply, one officer struck
him twice in the face and “slammed him to the ground.” Singletary Dep. 66:12–14, 68:2 –
69:15, 71:2–3. She said that they handcuffed him before striking him and did not use pepper
spray, a baton, a taser, or a handgun. Id. at 71:2–12. Gerald agreed that, after the other officer
“pulled out her handcuffs” and “finally put[] Demetrious[’s] arms behind his back,” May
punched Queen twice with his “fist balled up,” and the officers “thr[e]w Demetrious onto the
ground in the hallway,” but did not use any weapons. Gerald Dep. 42:8 – 44:18; 47:6–21.
Singletary testified that “they dragged him down,” although she could only see the beginning of
their departure, and “took him out of the building.” Singletary Dep. 74:11–14. She explained
that they had “lift[ed] him up” so that “he was up but it wasn’t like he was just willingly walking
out.” Id. at 105:3–11.
According to Gerald, the conversation in the apartment was more heated than Signletary
described. She stated that it was not an “argument,” but rather “more of her [Singletary] yelling
at . . . still upset about what happened to her car,” and based on “the tone of [Queen’s] voice,
how loud it was, anybody coming over there probably thought it probably was a[n]
argument . . . .” Gerald Dep. 56:7–12, 57:3-6. Gerald testified that Queen and Singletary were
“belligerent and loud” that night, and that when they started talking in the apartment, “their
voices just started erupting.” Id. at 34:19–21, 67:12–21. As Gerald recalled, before Queen was
handcuffed, he was “yelling,” and afterwards, he was “getting more belligerent” and “cussing.”
Id. at 42:1–15.
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May remembered the evening differently. He and the other officers returned to their cars
after releasing Queen, and then they “heard loud screaming and yelling coming from Apartment
302 at 900 Hill Road.” May Dep. 23:24 – 24:4. He and Officer Rood “approached that
apartment due to the sounds of distress.” Id. He said it “appeared to be a female and male
voice.” Id. at 24:22–23. He said that Officer Rood asked Queen to step outside the apartment to
speak with them, “for officer safety reasons.” Id. at 24:15–18.
In the hallway, Queen “became very loud and belligerent again.” Id. at 27:11–15. “For
him not complying, and for him being belligerent, and continuing to disturb others, we decided
to place him under arrest at that time.” Id. at 30:10–13. May clarified that Queen had not “done
anything physical” at that time, but “was disturbing the peace” by yelling. Id. at 30:14–20. May
stated that he and the other officer tried to calm Queen down “but due to his belligerent state,
[they] decided it was better for the community to go ahead and place him under arrest and
remove him from the incident.” Id. at 77:14–18.
May said that he and Officer Rood had difficulty handcuffing Queen, who “raised his left
elbow and attempted to elude [May’s] control.” May Dep. 31:3–6. May “ordered him to stop
resisting arrest,” and when he “continued to resist,” May “used the stun and distract technique,
and [he] used an armbar to take Mr. Queen to the ground.” Id. at 31:7–11. The “stun and
distract technique” involved “use [of] a palm heel strike to his upper torso, to distract him, to get
him off balance, to then take him to the ground.” Id. at 31:18-23. However, the strike landed on
“his right cheek” instead of his torso “due to his height.” Id. at 32:2–4. The officers “stood Mr.
Queen up and escorted him down to [their] vehicles” and to the hospital. Id. at 45:20 – 46:13.
His physical examination at the hospital revealed “dried blood on lips” and a “facial contusion”;

8 

he was prescribed Naproxen.4 Hosp. Recs. 10–11, 14. While in May’s police cruiser, Queen
was “loud and belligerent” and “spitting blood all over [the] car, which did at one time strike
[May].” Id. at 47:10–14. May charged him with assaulting a police officer, first and second
degree assault based on the blood spatter, disorderly conduct for “being loud and belligerent, and
keeping neighbors in the area continuing calling on him,” failure to obey a lawful order based on
resisting arrest, and malicious destruction of property for “spitting blood all over [his] computer
and all over [his] car,” but ultimately, these charges were dropped. Id. at 59:15 – 66:18.
Discussion
Arrest without Probable Cause and False Arrest
In arguing for judgment in Defendants’ favor on Queen’s § 1983 claims based on arrest
without probable cause, in violation of the Fourth Amendment (Counts VI and VII) and Queen’s
false arrest claim (Count III), May focuses his discussion on his assertion that he had probable
cause, arguing that, because he “had probable cause to make an arrest . . . , he is entitled to
qualified immunity regarding Plaintiff’s Fourth Amendment claim,” and even without probable
cause, Queen’s false arrest claim fails.

Def.’s Mem. 12–13.

“[T]he defense of qualified

immunity . . . protects law enforcement agents from federal claims when they act in objectively
reasonable reliance on existing law.” Rockwell v. Mayor & City Council of Baltimore, No.
RDB-13-3049, 2014 WL 949859, at *8 n.10 (D. Md. Mar. 11, 2014). Thus, police officers are
not liable under § 1983 unless “‘(1) the allegations, if true, substantiate a violation of a federal
statutory or constitutional right and (2) the right was ‘clearly established’ such that a reasonable
person would have known his acts or omissions violated that right.” Streater v. Wilson, 565 F.

4

“Naproxen is a nonsteroidal anti-inflammatory drug (NSAID). It works by reducing hormones
that cause inflammation and pain in the body.” www.drugs.com/naproxen.html.
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App’x 208, 210 (4th Cir. 2014) (quoting Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir.
2011) (internal citations omitted)). Defendant carries the burden of proving qualified immunity.
McDonnell v. Hewitt–Angleberger, No. WMN-11-3284, 2013 WL 4852308, at *3 (D. Md. Sept.
9, 2013) (quoting Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013)).
Queen’s Amended Complaint alleges that May’s acts violated Plaintiff’s right to be free
from arrest without probable cause. Am. Compl. ¶ 21. Certainly, “[a] warrantless arrest of an
individual in a public place for a felony, or a misdemeanor committed in the officer’s presence,
is consistent with the Fourth Amendment if the arrest is supported by probable cause.”5
Maryland v. Pringle, 540 U.S. 366, 370 (2003) (citing United States v. Watson, 423 U.S. 411,
424 (1976); Atwater v. Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to
believe that an individual has committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment, arrest the offender.”)) (emphasis added). Thus,
there is “‘a clearly established Fourth Amendment right to be arrested only upon probable
cause,’” and an “‘arrest[] when no reasonable officer could believe, in light of the contours of the
offense at issue, that probable cause exists to arrest that person,’” violates that right. Peters v.
City of Mount Rainier, No. GLH-14-955, 2016 WL 1239921, at *4 (D. Md. Mar. 24, 2016)
(quoting Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001)). “An officer has probable
cause for an arrest ‘when the “facts and circumstances within the officer’s knowledge . . . are
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing, or is about to commit an

5

In United States v. McNeill, the Fourth Circuit observed that precedent is unclear with regard to
“whether the Fourth Amendment contains an ‘in the presence’ requirement for warrantless
misdemeanor arrests,” and declined to resolve the issue. 484 F.3d 301, 311 (4th Cir. 2007). Its
resolution is not material to this case, as it is undisputed that the conduct at issue occurred in
May’s presence.

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offense.”’” Burno-Whalen v. Maryland, No. GJH-15-564, 2016 WL 1259556, at *6 (D. Md.
Mar. 28, 2016) (quoting Wilson v. Kittoe, 337 F.3d 392, 398 (4th Cir. 2003) (quoting Pritchett v.
Alford, 973 F.2d 307, 314 (4th Cir. 1992))).
Yet, the elements of false arrest under Maryland law are (1) “‘the deprivation of the
liberty of another,’” (2) “‘without consent,’” and (3) “‘without legal justification.’” Prince
George’s County v. Longtin, 19 A.3d 859, 893 (Md. 2011) (quoting Heron v. Strader, 761 A.2d
56, 59 (Md. 2000) (emphasis added in Longtin)). Because it is undisputed that May deprived
Queen of his liberty without his consent when he arrested him for disorderly conduct, see Def.’s
Mem. 7–8, 12, I will focus on the third element. It is true that legal justification for a warrantless
felony arrest exists where a police officer “‘has probable cause to believe that a felony has been
committed, and that the arrestee perpetrated the offense.’” Longtin, 19 A.3d at 893 (quoting
Ashton v. Brown, 660 A.2d 447, 472 (Md. 1995) (citations omitted)). But, legal justification for
a warrantless arrest for a misdemeanor, in contrast, requires that the “misdemeanor was actually
committed in a police officer’s view or presence.” Ashton, 660 A.2d at 472. Thus, “probable
cause is not a defense in an action for false imprisonment based upon a police officer’s
warrantless arrest for the commission of a non-felony offense.” Id. Therefore, the question on
the false arrest count is not one of probable cause but rather whether the undisputed facts show
that May had legal justification for depriving Queen of his liberty without his consent. See
Longtin, 19 A.3d at 893.  And, on summary judgment, the issue for that count is whether, when
viewing the facts “in the light most favorable to the plaintiff, a fact-finder could infer the
plaintiff was not committing the charged crime.” Ross v. Early, 899 F. Supp. 2d 415, 430 (D.
Md. 2012), aff’d, 746 F.3d 546 (4th Cir. 2014).

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Disorderly conduct, the only offense with which May charged Queen that allegedly
already had occurred when May attempted to arrest Queen, May Dep. 59:15 – 66:18, is a
misdemeanor that occurs when a person “willfully act[s] in a disorderly manner that disturbs the
public peace.”6 Md. Code Ann., Crim. Law § 10-201(c)(2) (2015). Here, the undisputed facts
show that May and other County officers, responding to two sequential 911 calls, observed
Queen outside 900 Hill Road smelling of alcohol and “yelling . . . at himself,” loudly; warned
him that his behavior was “an arrestable offense for disturbing the peace,” and temporarily
handcuffed him in an effort to calm him down. May Dep. 23:4–14. Once he calmed down, the
officers released him, id., and Queen does not challenge that detention. Moreover, May’s
undisputed testimony establishes that Queen was not placed under arrest at that time, and, after
he calmed down, the officers decided not to arrest him. See id.
Queen challenges his arrest a short while later. At that time, May and Officer Rood, who
were still in the same location, went up to Singletary’s third-floor apartment. It is disputed why
they went to the apartment and what happened next. According to May, they heard what
sounded like a male and a female voice arguing loudly in the apartment. May Dep. 23:24 –
24:23. Indeed, Gerald testified that Singletary and Queen were “belligerent and loud” and their
voices were “erupting” from the apartment. Gerald Dep. 34:19–21, 67:12–21. Officer Rood
asked that Queen step outside, and in the hallway, Queen “became very loud and belligerent
again.” May Dep. 24:15–18, 27:11–15. The officers then decided to arrest him. Were Queen
still yelling loudly, in the apartment and/or outside the door, after having been the cause of two

6
  Neither party suggests that Queen had committed first degree assault, second degree assault,

failure to obey a lawful order, or malicious destruction of property at the time of his arrest.
Those charges appear to relate to his conduct while in custody, in the police cruiser and at the
hospital. 
12 

prior noise complaints in close succession and having been handcuffed in an effort to quiet him,
May certainly could have had probable cause for arresting him at that point for disturbing the
peace, and he could have had legal justification for the arrest, as he would have been present to
hear Queen yelling at about 4 o’clock in the morning. See Burno-Whalen, 2016 WL 1259556, at
*6; Ashton, 660 A.2d at 472; Crim. Law § 10-201(c)(2).
But, according to Singletary, she and Queen had not raised their voices in the apartment;
the officers apparently went to the apartment because Queen had only gone in to “get[] some of
[his] things” and had not yet returned downstairs. Singletary Dep. 52:7–14, 66:1–5, 102:17–18.
Queen “question[ed] why he had to leave,” but did not raise his voice to the officers either. Id. at
64:15-17. The officers escorted Queen out of the apartment, where he continued to talk and to
question what they were doing, but without yelling. Id. at 65:8–9, 67:1 – 69:5. Therefore, a
genuine dispute exists regarding the material facts that would support May’s assertion of
probable cause.
A court’s task on summary judgment is not to assess credibility or weigh the evidence.
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002); Bennett v.
Green, No. JKB-15-3026, 2016 WL 2866859, at *1 (D. Md. May 17, 2016); see Gunning v.
Cooley, 281 U.S. 90, 97 (1930) (“[T]he credibility of witnesses and the weight to be given to
their testimony are for the jury[.]”). Viewing these facts in the light most favorable to Queen and
accepting Singletary’s credibility as a witness, a reasonable finder of fact could find that Queen
was not committing disorderly conduct at the time of his arrest. See Ross, 899 F. Supp. 2d at
430; Crim. Law § 10-201(c)(2). Thus, were a jury to find Singletary’s testimony more credible,
then, despite his presence at the scene, May could not establish that he had either probable cause
or legal justification for arrest for disorderly conduct. See Wilson, 337 F.3d at 398; Burno13 

Whalen, 2016 WL 1259556, at *6; Ashton, 660 A.2d at 472. As a result, he also could not
establish that he was entitled to qualified immunity on the federal claim. See Streater, 565 F.
App’x at 210. Consequently, summary judgment is not appropriate on these claims. See
Pringle, 540 U.S. at 370; Longtin, 19 A.3d at 893.
Excessive Force
May insists that he “was entitled to use reasonable force to effectuate the lawful arrest,”
and that he “is entitled to qualified immunity regarding Plaintiff’s Fourth Amendment Excessive
Force claim” (Counts IV and V). Queen alleges that May’s acts violated Plaintiff’s right to be
free from excessive force. Am. Compl. ¶ 21. “The right to be free from excessive force stemming
from a beating during an arrest was clearly established at the time of Plaintiff’s alleged assault.”
Brown v. Prince George’s County, No. DKC-07-2591, 2012 WL 3012573, at *8 n.18 (D. Md.
July 20, 2012) (citing Graham v. Connor, 490 U.S. 386, 395–96 (1989)). Thus, the question is
whether May employed excessive force.

See Streater, 565 F. App’x at 210. “‘Whether an

officer has used excessive force is judged by a standard of objective reasonableness.’” Streater,
565 F. App’x at 211 (quoting Clem v. Corbeau, 284 F.3d 543, 550 (4th Cir. 2002)). The Court
considers “‘whether a reasonable officer in the same circumstances would have concluded that a
threat existed justifying the particular use of force.’” Id. (quoting Elliott v. Leavitt, 99 F.3d 640,
642 (4th Cir. 1996)). 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 the suspect ‘is actively resisting arrest or attempting to evade arrest by flight,’” as well
as “[t]he extent of the plaintiff’s injury.” Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003)
(quoting Graham, 490 U.S. at 396; citing Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994);
referring to factors as “Graham factors”).
14 

In Jones, the intoxicated plaintiff was at the police station and in handcuffs voluntarily, in
an effort to sober up for an unrelated court proceeding the next day. Id. at 523. He was “yelling
obscenities” and tried to stand up from the chair where an officer had sat him down roughly.
Id.at 523–24. An officer knocked him down, jumped on him, and punched him in the face. Id.
Jones was charged for “his conduct during this incident,” but the charges were dropped. Id. at
525. He brought an § 1983 case and, after a magistrate judge granted summary judgment in the
officer defendants’ favor, concluding that the amount of force used was reasonable, the Fourth
Circuit reversed. Id. at 523, 525. It reasoned that the first factor weighed in Jones’s favor as
“jones committed no crime,” and “[e]ven in a case in which the plaintiff had committed a crime,
when the ‘offense was a minor one,’ [the court has] found that the first Graham factor weighed
in plaintiff’s favor . . . .” Id. at 528. As for the second factor, the Fourth Circuit stated that
“mere use of foul language, even a drunk’s loud use of such language in a police station, does
not justify an objectively reasonable police officer knocking the drunk down, jumping on him,
and breaking his nose” when he was handcuffed and in a secure location, such that he was not
posing a threat. Id. at 529–30. With regard to the third factor, the court noted that Jones did not
attempt to flee. Id. at 530. And, the fourth factor, like the others, weighed in Jones’s favor, as
the officer “caused severe injuries.” Id.
To determine the availability of qualified immunity, I take the facts alleged “‘in the light
most favorable to the party asserting the injury.’” Meyers v. Baltimore Cnty., 981 F. Supp. 2d
422, 429 (D. Md. 2013) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), receded from on
other grounds in Pearson v. Callahan, 555 U.S. 223 (2009)). Even viewed in the light most
favorable to Queen, the facts certainly do not establish what Queen pleaded – that he was struck
seven or eight times, by multiple officers, and using both their hands and batons. See Am.

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Compl. ¶ 7. Yet, they do show that, based on the alleged commission of the misdemeanor of
disorderly conduct, and after Queen verbally protested but did not physically resist arrest and
was already in handcuffs, May struck him twice with his hand and took him to the ground.
Singletary Dep. 66:12–14, 68:2 – 69:15, 71:2–3; Gerald Dep. 42:1 – 44:18; 47:6–21. There is no
evidence that he attempted to flee. Although Queen’s injuries—a facial contusion and an
unknown cut causing blood on his lips—were not severe, under these circumstances, no threat
existed to justify May’s use of force. See Jones, 325 F.3d at 523–24, 528–31. Consequently, a
reasonable jury could find that May used excessive force and was liable under § 1983. See
Streater, 565 F. App’x at 210. May is not entitled to judgment as a matter of law on Queen’s
excessive force claim. See id.; Fed. R. Civ. P. 56(a).
Assault and Battery
In contending that Queen’s excessive force claim cannot survive the summary judgment
motion, May asserts that “Plaintiff’s claims of common law Assault and Battery also fail,” Def.’s
Mem. 15, but he does not provide any basis for his assertion. Consequently, he has not given the
Court what is necessary to evaluate his entitlement to summary judgment. See Fed. R. Civ. P.
56(a) (stating that movant must show that he “is entitled to judgment as a matter of law”); Fed.
R. Civ. P. 56(c)(3) (stating that “[t]he court need consider only the cited materials” in reviewing
a motion for summary judgment); Loc. R. 105.1 (“Any motion . . . shall be . . . accompanied by a
memorandum setting forth the reasoning and authorities in support of it.”). May’s Motion for
Summary Judgment is denied without prejudice insofar as it seeks judgment on Queen’s assault
and battery claims.

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Conclusion
May’s Motion for Summary Judgment is DENIED. This case will proceed to trial. I will
appoint pro bono trial counsel for Queen and schedule a telephone conference to set in a jury
trial. A separate order shall issue.
Dated: May 25, 2016

/S/
Paul W. Grimm
United States District Judge

lyb

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