Brunio-Whalen v. The State of Maryland et al

Filing 30

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/28/2016. (kns, Deputy Clerk)(c/m 3/28/16)

FILED

h~lf1~~~~RT,

IN THE UNITED STATES DISTRICT COUKrJ/~'1SRI~/f
FOR THE DISTRICT OF MARYLAND
SOllthem Dil'isioll

AND

lOlb MAR 28 P 2: I W

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ALEXIA BURNO-WHALEN,

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Plaintiff,

Case No.: G.IH-15-564

v.

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STATE OF MARYLAND, et aI.,

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Defendants.

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MEMORANDUM OPINION
PlaintifTAlexia Burno- Whalen brought this action against Trooper First Class Oliver
Okafor. Trooper First Class Robcrt Hobbs. and the State of Maryland. alleging common la\\"tort
claims ofbatlery and false arrest and constitutional claims of excessive force. pursuant to 42
U.S.c.

S

1983 and the FOUl1eenthAmendment. and arrest \\"ithout probablc cause. pursuant to 42

U.S.c.

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1983 and the Fourth Amendment. See ECF No. 16. No\\" pending' be/()re the Court is

Defendants' Motion to Dismiss or. in the Alternative. Motion lor Summary Judgment of
Plaintifrs Amended Complaint and Burno- Whalen's Motion fiJI" Leavc to File a Surreply. ECF
Nos. 17, 25. A hearing is not neccssary. See Local Rule 105.6 (D. Md. 20 \4). For the rcasons
stated below. the Court grants Burno-Whalen's Motion\()r Leave to File a Surreply and denies
Defendants' Motion to Dismiss or. in the Alternative. Motion lor Summary Judgmcnt.

I.

BACKGROUNI)'
On February 26. 2012. Burna-Whalen left work and began driving on Route 5 headed

toward her sister's house. ECF No. 16 ~ 8. As she drove onto the exit ramp toward Route 495.
another vehicle drove up next to her on the right shoulder and struck the front passenger's side of
her vehicle. Id. Both drivers pulled over to the side of the road. and the other driver called the
police. Id. Burna-Whalen remained in her car to wait for the pol icc to arrive. Jd. Ollicer Okafi.)r
arrived on the scene and spoke to the other driver lirst. JtI. ~ 9. Okafor then asked Burno- Whalen
to step out of her vehicle to do a breathalyzer test. Id. After Burno- Wlmlen attempted the test
several times, Okalor became angry and yelled at her to blow harder. JtI. Following additional
attempts. Okator arrested Burna-Whalen and put her in handcull's without pertorming any licld
sobriety tests or asking tor her version of how the accident occurred. Jd. Okalor then placed
Burna-Whalen in the passenger side of his patrol car and began driving toward the College Park
Police Barracks. Jd.
Once in the patrol car. Burna-Whalen began screaming. rocking back and lorth. and
kicking her feet because "she did not know why Ollicer Oka!{}rwas taking her to College Park:'
Id. She spat on the floor "because her nose and mouth were lilIed with mucus:' Id. Okafor then

began grabbing at her. Id. Once at the police barracks. Okal{}r grabbed Burno- Whalen. pulled her
out of the patrol car. and then struck her in the mouth with a metal baton while her hands were
still handcutTed behind her back. Il!. Blood began "gushing"

1;'0111

her nose and mouth and she

could feci that her upper and lower front teeth were broken. Jd. She repeatedly screamed. "You
knocked all my teeth out of my mouth:' and spat out blood and broken teeth. Jd. Okalor drove
her to the hospital emergency room. and. after she was treated. drove her back to the police
1 The parties in this case allege vastly dine-rent versions
of the facts. but lor the purposes of this motion. the facts
must be viewed in the light 1110st favorable to Burna-Whalen. the non-moving party. Sc!c!Ce/olc!x Corp. \: Catn:l1.
477 U.S. 317. 322-24 (1986).

2

barracks. lei.

'1 10.

Upon returning to College Park. Burno- Whalcn and Okafor were met by Ollicer Hobbs
and another otlieer. Jd. Hobbs placed Burno- Whalen in the back seat of his patrol car. lying faceup, and "'hogtied' [her] by tying a rope around her legs and pulling and wedging the rope
between the door of the patrol car and the doorjamb of the patrol car'" Jd. Despite the I"actthat
she was not resisting arrest or trying to escape. she was kept "hogtied" in the same position I()r
forty minutes while Hobbs drove her to the jail in Upper Marlboro. lei.
[n

addition to submitting declarations suggesting a very dilferent version of the facts.

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the Defendants submitted video footage from a dashboard camera inside of Okalor's patrol car.
See ECF No. 17, Ex. C. The video includes footage from the timc when Okalor was directed. via
radio, to report to the scene 01" Burno- Whalen's automobile accident. to when Okal"or and BurnoWhalen arrived at the College Park Police BaiTacks. [n addition. there are several additional
minutes of footage when Burno-Whalen. Okalor. and other ollicers can be heard speaking just
outside of Okalor's patrol car.
The video conlinns certain allcgations made by each party. but is of limited value
because Bumo- Whalen is not visible at the moment she sulfered her alleged injury. The video
clearly shows Burno- Whalen kicking, screaming. rocking back and lorth. and becoming free of
her seatbelt in the patrol car. allowing her to move around. ECF No. 17. Ex. C. The video also
shows Burno- Whalen spitting. though her spitting appears to bc directed at the !loor. and at one
point Okafor oilers her a cup in which to spit. Jd. When they arrive at the barracks. Okaf()r can

2 For instance, in his Declaration,

Okafor slates. ill relevant part. that Burno-Whalen performed field sobriety tests.
\\'hich demonstrated psycho-physical impairment. and her Preliminary Breath test resulted in a ".16 SAC:' ECF No.
17-2 ~ 8. In addition. he alleges that he did not hit Burno-Whalen in the 1110uth \vith a baton. but that she was injured
while acting erratically and trying to free herself ofOkafor's grip as he helped her out or the patrol car. causing.her
to fall and hit her mouth on the ground. 1"- ~ 11. Okafor also slates that he did not accompany Burno-Whal~nto th~
hospital, but rather len her in the custody of other troopers and went to the hospital separately to be checked for
contamination alier Burno-\Vhalen allegedly spit blood 011 his nice and in his mouth.ltI. ';flI2-13.

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be seen pulling BUll1o-Whalen from the vehicle with both hands. Id No baton is visible at that
time. Id. at 09: 17:53.3 Seconds later. BUll1o-Whalen can be heard repeatedly screaming. "You
knocked my teeth out:' Id at 09: 18:0 I. Burna-Whalen is not visible at this point and. as a result.
the video does not show how she sustained her injury. A little over three minutes later. OkafoI'
can be heard saying. "she just spat her blood in my face:' I". at 09:21 :02. At that time another
officer asks OkafoI' whether he got blood in his mouth. and he says. "1 think so:' It!. at 09:21 :24.
After a couple of minutes. an ol1icer asks OkafoI' tor his account of events. It!. at 09:23 :31. The
officer asks Okalor how Burno- Whalen's hair came out and whether her teeth were actually
busted out. Id. at 09:25: II. As the video progresses. Burno- Whalen can be heard cursing and
insulting the ot1icers. Id. at 09:26:44. In addition. oflicers can be heard telling Burno- Whalen to
stop moving her head and neck. Id at 09:27:25. Burna-Whalen also repeatedly says ... they'rc
pushing me on the ground:' and "get otT my ncck:' Id. at 09:28:21.
Burna-Whalen tiled her Amendcd Complaint on June 4. 2015.~ Defendants have tiled a
Motion to Dismiss or. in the Alternativc. Motion tor Summary Judgment.
II.

DISCUSSION
A. Motion for Leave to File Surrerly
Pursuant to Local Rule 105.2.a. surreply memoranda are not permitted to be tiled unless

otherwise ordered by the Court. "Surreplies may be permitted when the moving party would be
unable to contest matters prescntcd to the court for the lirst time in the opposing party's reply:'
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The pin cites for the video refer to time stamps embedded on the top-right comer orthe video.

~ Bumo-Whalen properly provided notice to the State of her claim under the Maryland Tort Claims Act by delivering
a claim letter in accordance with Maryland Code Ann .. Cts. & Jud. I'roc. ~~ 12- I06. 12-107. to Nancy K. Kopp.
Treasurer for the State of Maryland, on February 13.2013. ECF No. 16 ~ 20. Likewise. Burna-Whalen properly
filed her action \••..
ithin three years of the alleged tortious acts on February 2. 2015. in the Circuit Court for Prince
George's County. ECF No. I at I: see Md. Code Ann .. State Gov't ~ 12-106(b): II"I/ace I: Kalo. 549 U.S. 384. 387.
127 S. Ct. 109 I (2007) (finding that the relevant statute of limitations for claims brought under 42 U.S.C. ~ 1983 "is
that which the State provides for personal-injury torts"). The action was removed to this Court on February 27.
2015./d.

4

Khoury

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,'v!eserve, 268 F. Supp. 2d 600. 605 (D. Md. 2003) (citing LeH"is

1'.

R/I/I/.~/e/d. 154 F.

Supp. 2d 56, 62 (D.D.C. 200 I)).
Burno- Whalen argues that she should be grantcd leave to tile a surrcply because
Defendants raised certain arguments for the first time in their Reply. The Court agrees that some
new arguments were raised in Defendants' Reply. Additionally. Burno-Whalen's Motion for
Leave to File a Surreply is unopposed. Accordingly. the Court grants Burno- Whalen leave to Iile
her Surrep!y, and will consider the arguments made therein.
B. Motion to Dismiss or, in the Alternativc,
I.

Standard

Motion for Summary

.Judgmcnt

of Rcview

Defendants have styled their motion as a motion to dismiss under Federal Rule of Civil
Procedure ("Rule") 12(b)( 6). or in the alternative. a motion lor summary judgment under Rule
56. '"A motion styled in this manner implicates the court's discretion under Rule 12(d) of the
Federal Rules ofCivill'roeedure"
LEXIS 8513, at

* 15 (D.

McCray \: Md. DOT.. No. ELlI-II-3732.

2013 U.S. Dis!.

Md. Jan. 16. 2013): see also Fed. R. Civ. 1'. 12(d) ("I L on a motion

under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by
the court, the motion must be treated as a one tor summary judgment under Rule 56."'). Pursuant
to Rule 12(d). the Court has discretion to determine whether to aecept evidence outside the
pleadings, and thus convel1 a Rule 12(b)(6) motion to a Rule 56 motion. Id. at

* 16. Typically.

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parties must then be given the opportunity to present all material pertinent to the motion. Fed. R.
Civ. P. 12(d), but when the moving party captions its motion "in thc alternativc" and presents
evidence outside the pleadings lor the court's consideration. the parties are deemed to have
notice that the court may treat the motion as one lor summary judgment under the parameters of
Rule 12(d). McCray. 2013 U.S. Dis!. LEXIS 8513. at

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* 17.

In the instant case, Defendants' motion relies heavily on video footage from a dashboard
camera in Okafor's car. Bumo- Whalen likewise references the video in her responsive motions,
and had full opportunity to respond to this evidence. Thus. it appears that both parties agree the
video is helpful to the Court's resolution of this motion and neither side has requested additional
discovery in this regard. See McCray, 2013 U.S. Dist. LEX[S 8513, at

* 16 ("[n

general. courts

are guided by whether consideration of extraneous material 'is likely to lacilitate the disposition
of the action,' and •whether discovery prior to the utilization of the summary judgment
procedure' is necessary.") (citation omitted). Accordingly, conversion of the motion to a motion
for summary judgment under Rule 56 is appropriate.
Summary judgment is appropriate only when the Court. viewing the record as a whole
and in the light most favorable to the non-moving party, determines that there exists no genuine
issue of material lact and that the moving party is entitled to judgment as a matter of law. See
CelOlex Corp. \~ Call'ell, 477 U.S. 317, 322-24, 106 S. Ct. 2548 (1986): AlI<lersol7 I'. Libel'ly

Lobb}: 1I7c., 477 U.S. 242. 248-50, 106 S. Ct. 2505 (1986). Once a party has properly filed
evidence supporting the motion for summary judgment. the non-moving party may not rest upon
mere allegations in the pleadings, but must instead set forth specilic lacts illustrating genuine
issues for trial. Celolex, 477 U.S. at 322-24.
2.

Common

Law Tort Claims (Counts

I and II)

Burno-Whalen alleges common law tort claims lor battery (Count I) and lalse arrest
(Count II) against the individual ollicers and the State in its capacity as respondeat superior.; The
State seeks dismissal of the counts asserted against the State based on sovereign immunity. When
a state chooses to waives its sovereign immunity by legislative action, courts strictly construe the
The doctrine of respondeat superior is "a means of holding an employer, corporate or othcf\\'isc. vicariousl.y liable
for the tortious conduct of an employee. where it has been shown that the employee was acting within the scope of
the employment retationship at that time." S. '\/gml. Corp. I: Tollo. 836 A.2d 627. 638 (Md. 2003).
j

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waiver in favor of the state. See Proctor

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H!cISh.
Area Transit Allth.. 990 A.2d 1048. 1058 (Md.

2010) (citing Bd. 0.( Edllc. (!lBalt. CtJ: ,'. Zimmer-Rllhert. 973 A.2d 233. 239--40 (Md. 2009)).
The Maryland Tort Claims Act ("MTCA") provides a limited waiver of sovereign immunity for
tort actions against the State. Md. Code Ann .. State Gov't

* 12-104. Among the exceptions to the

State's waiver are claims involving "[aJny tortious act or omission of State personnel that: (i) is
not within the scope of the public duties of the State personnel: or (ii) is made with mal icc or
gross negligence:'

Md. Code Ann .. Cts & .Iud. Proc.

* 5-22(a)(4)(i-ii).

Thus. if a claim requires a

finding that the otlicers acted with either malice or gross negligence. claims based on respondeat
superior cannot survive. See Clew)' \: Green. No. CC13-07-1202. 2007 U.S. Dist. LEXIS 95751,
at * 10 n.2 (D. Md. Nov. 15.2007).
Turning to 13urno-Whalen's tort claims. under Maryland law. battery is delined as the
"unpermitted application of trauma by one person upon the body of another pcrson:' ,\[cQlliggan
v. Boy Scouts of Am., 536 A.2d 137. 141 (Md. 1988). Battery requires an intent by the actor '''to
bring about a harmful or offensive contact ....

[It is] conlincd to intentional invasions ofthc

interests in freedom from harmful or offensive contact'" rather than accidental or inadvertent
contact. Jane/sins I: Bill/on, 648 A.2d 1039. 1042 (Md. Ct. Spcc. App. 1994) (citation omittcd).
In a claim for battery. the element ofintent'''requires

not a specilic desire to bring about a

certain result, but rather a general intent to unlawfully invade anothcr's physical well-being,'''
Beall v. HoIIOlray-.Johl1Son,2016 Md. LEX IS. at *20 (Md. Jan. 21. 2016) (quoting Nelson \:
Carroll, 735 A.2d 1096. 1099 (Md. 1999». Furthermore. '''intent is a subjective element usually
left for the jury's detern1ination.". !d. While battery requires intent. ..thc presence of an intent to
do an act does not preclude negligcnce. [Thus. the) concepts of ncgligcnce and battery arc not
mutually exclusive:' Ghassemieh \: Schq(er. 447 A.2d 84. 89 (Md. Ct. Spec. App. 1982) (citation

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omitted). Moreover. Burno- Whalen's claim of battery is "analytically depcndcnt" on her claim
for false arrest. since the force used to ellectuate a lawful arrest would not be inherently tortious.
Ashton v. Brown. 660 A.2d 447. 471 n.24 (Md. 1995) ("If the plaintill]'sJ arrest[] constituted a
false imprisonment. then the physical force used in ellectuating the arrest[] would give rise to a
cause of action for assault or battery. Conversely. iI'the arrest[] [itself was] not tortious. neither
was the physical force used to etlectuate [it].").
Defendants argue that Okafor acted with legaijustiiication

in arresting Burno- Whalen

since he had reason to believe she was intoxicated. and since Maryland law permits an ollicer to
arrest a person based on the reasonable suspicion that the person has been driving under the
intluence of alcohol. See Md. Code Ann .. Transp.

* 16-205.1 (b)(2). Delendants assert that

Burno- Whalen did not know she had been involved in an automobile accident. and was
"oblivious to the presence ofTFC Okafor:' ECF No. 17-1 at 14. In addition. Delendants allege
that Burno- Whalen admitted to drinking "a lot" of champagnc. and presented with a strong smell
of alcohol on her breath. slurrcd spccch. and balancc problems. Id. In support of their argumcnts.
Defendants cite a written report purporting to show that Okall)r conducted tield sobriety tests.
which Burno-Whalen failed. lOCI"
No. 17-2. Defcndants assert that Okafi.)J"swritten report must
be taken as proof that he conducted tiled sobriety tests. and argue that Burno- Whalen's contrary
affidavit should be rejected as "sell~serving:' Thus. they contcnd that thcre can bc no gcnuinc
issue of material fact about whether Okalor had probable cause to arrest Burtlo-Whalcn. lOCI"
No. 22 at 2-4.
Burno- Whalen's allidavit alleges a vastly ditlercnt vcrsion of thc facts. Shc denics
virtually all of Defendants' allegations regarding the dctails of her arrest. and contends that
Okafor did not conduct any tield sobriety tests and that the results of brcathalyzer tests wcrc

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inconclusive. ECF No. 16 ~ 9. Bumo- Whalen argues that thc written report produced by Okafor
at most raises a genuine issue of material fact as to whether he conducted tield sobriety tests and
obtained conclusive results from a breathalyzer. Specifically. she states that "ftJhe tact that
Officer OkafoI' has memorialized his version of events in a written report does not make his
version of events any more or less credible than that stated by.the plaintifr:' ECF No. 25 at 2.
Taking the facts in the light most tavorable to Bumo- Whalen. the Court tinds that
genuine issues of material fact preclude summary judgment. II' Bumo- Whalen exhibited no signs
of intoxication. cooperated when asked to perform a breathalyzer test with inconclusive results.
and was not asked to perform any field sobriety tests. then a reasonable jury could tind that
OkafoI' did not have probable cause to arrest Burno- Whalen. Although additional discovery may
later, more definitively. relute Burno-Whalen's claims. at this juncture. there remain issues of
material fact which preclude summary judgment.
Furthermore. if the jury finds tortious conduct. the jury could reasonably lind that Okafor
and Hobbs acted with malice. with gross negligence. or with ordinary negligence, based on
Burno- Whalen's affidavit and the video evidence presented by the Defendants. Thus. genuine
issues of material tact about whether Okafor's and Ilobbs's actions tall within the State's limited
waiver of sovereign immunity in the MTCA also preclude resolution of the ease with respect to
the State on Counts I and II.
3. Constitutional

Claims

a. Excessive Force (Count III)
Burno- Whalen alleges claims of excessive foree in violation of 42 U.S.c.

* 1983 and the

Fourteenth Amendment against Defendants Okafi)r and Hobbs. The Defendants argue that these
claims should be dismissed because the Detendants are protected by federal qualified immunity

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under 42 U.S.C.

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1983. "Section 1983 provides a remedy against any person \\ho.under color

of state law, deprives another of rights protected by the United States Constitution:'

lViii/ley v.

Prince Georges 0.1'.. No. GJH-12-03428. 2014 WL 5710058. at *2 (D. Md. Nov. 3, 2014)
(citing 42 U.S.c.

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1983). Section 1983 "'is not itselfa source of substantive rights.' but merely

provides 'a method for vindicating federal rights elsewhere conlerred .... Albright \'. Oliver. 510
U.S. 266, 271, 114 S. Ct. 807 (1994 ) (quoting Baker \: '\/cCollal1. 443 U.S. 137. 144 n.3. 99 S.
Cl. 2689 (1979)).
Qualified immunity is an allirmative defense to section 1983 claims. It protects
government ollicials "from liability for civil damagcs insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known:' Harlow \: Fitzgerald. 457 U.S. 800. 818. 102 S. Ct. 2727 (J 982). To determine the
applicability of qualified immunity. the Court follows a two-stcp analysis. First. it must
determine whether the facts viewed in the light most favorable to the non-moving party establish
the deprivation of a constitutional right. See Saucier v. Katz. 533 U.S. 194. 20 I. 121 S. Ct. 2151
(2001); Wilson \: Layne, 526 U.S. 603. 609.119 S. Cl. 1692 (1999). If so. the Court then
•
proceeds to determine whether. at the time of the alleged violation. the constitutional right was
"clearly established" and "whether a reasonable person in the ollicial's position \\uuld have
known that his conduct would violate that right:' Taylor \: IJ(llers. 81 F.3d 429. 433 (4th Cir.
1996) (quoting Gordon \: Kidd. 971 F.2d 1087. 1093 (4th Cir. 1992)). "Clearly establishcd." for
purposes of qualified immunity. means that the "contours of the right must bc sul1icicntly clear
that a reasonable oflicial would understand that what he is doing violates that right:' Wilson. 526
U.S. at 614-15. The "answer to both

[1

questions must be in the allinnative in order lar a

plaintiff to de teat a ... motion for summary judgment on qualified immunity grounds:' /lell/:\,

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I'.

Purnell, 501 F.3d 374, 377-78 (4th Cir. 2007) (citing Belltell \".Gomez. 324 F.3d 288. 293-94
(4th Cir. 2003)) (ellipses in original). Furthermore. disputes of material lact may preclude a
finding by the Court about whether qualilied immunity applies. and instead convert the inquiry
into a question for the trier oflact.
(citing Artis

I:

See Shoemaker I: Smith. 725 A.2d 549. 561 (Md. 1999)

C)!phers. 642 A.2d 298. 308 (Md. 1994)).

Applying this analysis to the present case. the Court must determine whether the f(lctS.
viewed in the light most lavorable to Burno- Whalen. establish the violation of a constitutional
right. Burno- Whalen claims that her Fourteenth Amendment rights were violated when Oka!'c]r
and Hobbs used excessive forcc in executing hcr arrest. The Defendants argue that Okafor's and
Hobbs's conduct was reasonable and did not constitutc excessive force.
Taking the facts in the light most favorable to Burno- Whalcn. there arc genuine issues of
material fact as to whether the evidence establishes the violation of a constitutional right. BurnoWhalen's primary claim of excessive force against OkafoI' is that he allegedly hit her in the
mouth using a metal baton. However, these alleged actions occurred outside the view of the
dashboard camera that was recording video Irom Okafor's patrol car. The audio that can be heard
from outside the car, when Burno- Whalen can be heard saying rcpeatcdly. "you knocked my
teeth out," does not clarify whether she was struck in the mouth with a baton as she alleges. or
whether she fell and hit her mouth on the ground as a result of her own erratic behavior as the
Defendants assert. While there is only a lapse of less than ten seconds between when Okafor's
hands are visible and when Burno- Whalen states that her teeth have been knocked out. this is a
sufficient lapse to create a genuine issue of material fact as to whether Okafor's actions violated
Bumo- Whalen's Fourteenth Amendment rights. Because a reasonable jury could reach either
conclusion, the question of whether qualified immunity applies to OkafoI' becomcs one for the

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trier of fact. See Shoemaker, 725 A.2d at 561. Thus, summary judgment is precluded on BurnoWhalen's claim of excessive force against Okafor.
Similarly, Burno- Whalen argues that Hobbs violated her Fourteenth Amendment right to
be free from excessive force when he placed her in the back seat of his patrol car, "hogtied-- her.
and left her in that position for forty minutes while he drove her to the jail in Upper Marlboro.
ECF No. 16 ~ 10. Defendants contend that Hobbs acted reasonably in placing an additional
restraint around Burno-Whalen's ankles, based on the fact that she was kicking and screaming in
Okafor's patrol car earlier that day, and had continued to be aggressive toward of1icers
throughout the day. ECF No. 17-1 at 7. Furthermore, they assert that Hobbs did not transport
Burno- Whalen, and did not see her again alier other otlleers transported her to Upper Marlboro.

Id. As above, genuine issues of material fact preclude a tinding of whether Hobbs's actions
violated Burno- Whalen's Fourteenth Amendment rights. Thus. the inquiry of whether qualified
immunity applies becomes one for the trier of fact. and summary judgment is inappropriate.
b. Arrest Without

Probable

Cause (Count IV)

A similar analysis applies to Burno- Whalen's claim that Okafor arrested her without
probable cause pursuant to 42 U.S.c.

* 1983 and the Fourth Amendment. An ollieer has

probable cause for an arrest "when the 'facts and circumstances within the ollicer's knowledge
...

are sutllcient 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
offense.'" Wilson\'. Kiltoe, 337 F.3d 392, 398 (4th Cir. 2003) (quoting Prilchell\'. AI/in'd. 973
F.2d 307, 314 (4th Cir. 1992)). Burno- Whalen was arrested flJr driving under the influence of
alcohol. ECF No. 17 at 4. Maryland law provides that a pcrson may not --drive or attempt to
drive any vehicle while under the intluence of alcohol:' or --drive or attempt to drive any vehicle

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while the person is under the influence of alcohol per se:' Md. Code Ann .. Transp. ~ 21902(a)(1)-(2).

Being "under the influence of alcohol per se" is delined as "having an alcohol

concentration at the time of testing of 0.08 or more as measured by grams of alcohol per 100
milliliters of blood or grams of alcohol per 210 liters or breath:' Md. Code Ann" Transp. ~ II.
1741.1 (a). Maryland courts have found that signs of intoxication. such as the odor of alcohol
emanating from the person of a motorist and failing to drive within a single lane. create at least.
"reasonable grounds" to request that a motorist take an alcohol content test or perform i1eld
sobriety tests. See

MOfol'

Vehicle Admin \~Spies. 82 A.3d 179 (Md. 2013): Blasi \'. ;\/(//:l'!and.

893 A.2d 1152 (Md. Ct. Spec. App. 2006).
Burno- Whalen denies that she exhibited any signs of alcohol intoxication. ECI' No. 16 at
3. Further, she contends that she did not cause a motor vehicle accident. but that another vehicle
collided into her vehicle while passing her on the shoulder of an exit ramp. Id. Burno- Whalen
. maintains that she did not know why Okafor took her into custody. Jd In response. Defendants
argue that Burno-Whalen's

Fourth Amendment claim fails because Okafor had "[aln

[a]bundance" of probable cause to arrest her. The written report produced by Okafor purporting
to show the results from lield sobriety tests and a breathalyzer test stands in direct contrast to
BUffio-Whalen's allegations that no tield sobriety tests were performed. Thus. there is a genuine
issue of material fact about whether Okafor had probable cause to arrest Burno- Whalen. and
summary judgment is precluded.
III.

CONCLUSION
For the reasons stated above. Plaintit1"s Motion for Leave to File a Surreply. ECI' No. 25.

is GRANTED, and Defendants' Motion to Dismiss. or in the Alternative. Motion for Summary

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Judgment ofPlaintitrs

Amended Complaint. ECF No. 17. is DENIED. A separate Order shall

Issue.
Dated: March

&=~-

z,-( 2016

GEORGE J. HAZEL
United States District Judge

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