Thomas et al v. State of Maryland et al
Filing
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MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 7/22/2019. (heps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
CHRISTOPHER THOMAS,
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Plaintiff,
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v.
Case No.: GJH-17-1739
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ANNE ARUNDEL COUNTY, et al.,
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Defendants.
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MEMORANDUM OPINION
Plaintiff Christopher Thomas alleges that police officers from the Anne Arundel County
Police Department (“AAPD”) and Howard County Police Department (“HCPD”) used excessive
force while arresting him after a high-speed pursuit. The Court previously dismissed all of the
claims except those against Defendants Howard County, Anne Arundel County, HCPD Officer
Jeremy Duncan, and AAPD Corporal Jeffrey Rothenbecker. ECF No. 67. Defendants Anne
Arundel County and Rothenbecker filed a Motion for Summary Judgment, ECF No. 75, as did
Defendants Howard County and Duncan, ECF No. 76. Plaintiff has responded only to the
Rothenbecker Motion. ECF No. 77. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2016).
For the following reasons, Defendants Anne Arundel County and Rothenbecker’s Motion for
Summary Judgment is denied and Defendants Howard County and Duncan’s Motion for
Summary Judgment is granted.
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I.
BACKGROUND1
In the early morning hours of June 3, 2014, an AAPD officer attempted to pull over
Plaintiff, who was driving a Toyota Yaris. ECF No. 76-4 at 7.2 Plaintiff fled and the AAPD
officer pursued him, eventually joined by other officers from the AAPD and HCPD, as well as a
helicopter. See ECF Nos. 76-4 at 9, 76-5 at 3. Plaintiff’s vehicle stopped only after hitting “stop
sticks,” at which point Plaintiff exited the car. ECF No. 75-3 ¶ 9. On the scene when Plaintiff
exited the car was Defendant Rothenbecker and his canine partner “Rocky,” who had been in
pursuit. Id. ¶ 3. Rothenbecker had heard, over the radio, that when the AAPD officer originally
attempted to pull over Plaintiff, Plaintiff drove directly at the officer, forcing him to dive back
into his police cruiser for cover. Id. ¶ 4.
It is here that the record evidence indicates that the parties’ accounts diverge. Defendants
claim that when Plaintiff exited the vehicle, two officers attempted to place him in handcuffs, but
he began to resist and refused to listen to verbal commands. Id. ¶ 10; ECF No. 76-6 at 3.
Defendant Rothenbecker specifically claims that Plaintiff “refused to roll onto his stomach and
place his hands behind his back and instead began to kick and flail,” and that “officers were
unable to get control of the driver and he began to stand to his feet.” ECF No. 75-3 ¶ 10.
Rothenbecker states that he warned Plaintiff to stop fighting, or he would deploy Rocky. Id. ¶ 13.
He claims that Plaintiff continued resisting, and therefore Rothenbecker gave Rocky the order to
apprehend. Id. ¶ 14.
In deposition testimony attached to Defendants’ Motion to Dismiss, Plaintiff tells a
different story. He claims that when he exited the car, he was on his knees attempting to lay
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Unless stated otherwise, the facts herein are undisputed or viewed in the light most favorable to the non-movant.
Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the exhibit and page
numbers generated by that system.
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down when a handcuff was placed on him. ECF No. 76-4 at 12. Plaintiff explains that as he was
being handcuffed, he was forced to the ground by a dozen unknown officers who started kicking
him and swearing at him. Id. at 15-16. He claims he “curled up in a fetal position” to protect
himself, the officers backed off, and then Rocky began attacking him. Id. at 16.
It is undisputed that Plaintiff suffered multiple bites by Rocky, and that he began to resist
the canine attack. See id. at 17-18; ECF No. 75-3 ¶ 14. Plaintiff claims, paradoxically, that he
tried to get his hands into Rocky’s mouth to stop him from biting him; Defendants claim Plaintiff
struck Rocky with a closed fist. ECF Nos. 76-4 at 18, 75-3 ¶ 14; 76-6 at 3. Defendant Duncan,
after providing a warning, then deployed his taser for one five-second cycle, incapacitating
Plaintiff. ECF Nos. 75-3 ¶ 15; 76-5 ¶ 5. Officers then placed Plaintiff under arrest. ECF No. 76-6
at 3.
II.
STANDARD OF REVIEW
Under Fed. R. Civ. P. 56, summary judgment is appropriate only when the Court,
viewing the record as a whole and in the light most favorable to the nonmoving party, determines
that there exists no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The burden is on the
moving party to demonstrate that there exists no genuine dispute of material fact. See Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). To defeat the motion, the
nonmoving party must submit evidence showing facts sufficient for a fair-minded jury to
reasonably return a verdict for that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). Additionally, a party must be able to put facts to be considered in support of or
opposition to a motion for summary judgment in an admissible form. See Williams v. Silver
Spring Volunteer Fire Dep’t, 86 F. Supp. 398, 407 (D. Md. 2015).
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A district court is obligated to thoroughly analyze an unopposed motion for summary
judgment to determine whether the moving party is entitled to summary judgment as a matter of
law. See Maryland v. Universal Elections, Inc., 729 F.3d 370, 380 (4th Cir. 2013). “Although the
failure of a party to respond to a summary judgment motion may leave uncontroverted those
facts established by the motion, the district court must still proceed with the facts it has before
it.” Robinson v. Wix Filtration Corp., 599 F.3d 403, 409 n.8 (4th Cir. 2010) (internal quotations
omitted).
III.
DISCUSSION
As an initial matter, Defendant Rothenbecker’s Motion for Summary Judgment relies, in
part, on Requests for Admissions that Defendant claims were served on May 24, 2018 and
deemed admitted when no response was received after thirty days. See ECF No. 75-1 at 3; Fed.
R. Civ. P. 36(a)(3). Plaintiff’s counsel has submitted a sworn affidavit claiming that he reviewed
and signed Plaintiff’s Response to the Rothenbecker Requests for Admissions on June 19, 2018.
ECF No. 77-1. Plaintiff has also filed a copy of these responses with the Court. ECF No. 77-2.
Regardless of whether Plaintiff properly responded to the Requests for Admissions, the
Court holds “considerable discretion over withdrawal of admissions once they have been made.”
Kress v. Food Emp’rs Labor Relations Ass’n, 285 F. Supp. 2d 678, 681 (D. Md. 2003). Even if
the Court came to the conclusion that the requests had been deemed admitted, it better
“promote[s] the presentation of the merits of the action” not to resolve the case on a technicality.
Fed. R. Civ. P. 36(b). It also appears that Defendants never notified Plaintiff’s counsel that they
had not received a response to the Request for Admissions, apparently seeking to take advantage
of the “conclusively established” admissions. See ECF Nos. 77 ¶ 6; 78 at 4. Therefore, any
prejudice suffered by Defendants is due only to their wager that the Court would resolve this
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dispute on a discovery failure. While the Court will not deem the admissions conclusively
established, Defendant correctly observes that a denial of an admission is not evidence sufficient
to establish a genuine dispute of material fact for the purposes of a motion for summary
judgment. See Bland v. Norfolk & S.R. Co., 406 F.2d 863, 866 (4th Cir. 1969) (“In regard to the
pleadings, however, ‘an adverse party may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.’”) (quoting Fed. R. Civ. P. 56(e)).
Therefore, the Court must turn to the evidence in the record to determine whether Defendants are
entitled to summary judgment.
Plaintiff has brought claims for assault (Count I), battery (Count II), excessive force
pursuant to the Fourth Amendment (Count III), negligence (Count IV), conspiracy to interfere
with civil rights (Count V), violations of the Maryland Declaration of Rights (Count VII), equal
protection (Count VIII), and intentional infliction of emotional distress (Count X).
For the same reasons discussed in the Court’s December 20, 2017 Memorandum
Opinion, Plaintiff’s assault, negligence, conspiracy, equal protection, and intentional infliction of
emotional distress claims have not been adequately pled or proved, and Defendants are entitled
to summary judgment. See ECF No. 66. Therefore, the remaining claims are the battery and
excessive force claims against the individual defendants and the Maryland Declaration of Rights
claims against all defendants. Both the Fourth Amendment excessive force and the Maryland
state law claims are controlled by the Supreme Court’s holding in Graham v. Connor, 490 U.S.
386 (1989). See Richardson v. McGriff, 361 Md. 437, 452-53 (Md. 2000) (observing that federal
Fourth Amendment jurisprudence controls both battery and Article 26 of the Maryland
Declaration of Rights claims against law enforcement officers).
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The Fourth Amendment requires that the use of force by law enforcement officers be
“reasonable.” Graham, 490 U.S. at 395. “Determining whether the force used to effect a
particular seizure is ‘reasonable’ under the Fourth Amendment 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. Therefore, the Court must consider
the “facts and circumstances of each particular case, including 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. This analysis must be
made “from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight,” and the calculus must allow “for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.” Id.
Though Plaintiff failed to submit any admissible evidence in his opposition to
Defendant’s Motion for Summary Judgment, Defendant’s own submissions are sufficient to
establish a genuine dispute of material fact as to whether Defendant Rothenbecker used
excessive force. In his deposition, Plaintiff claims that he was in the process of being handcuffed
when he was attacked, without provocation, by multiple officers who began kicking him. He
asserts that he was on the ground in the fetal position being kicked when Rothenbecker ordered
Rocky to attack. Even though Plaintiff had led police on a dangerous high-speed pursuit, his car
had become disabled after hitting the stop sticks, and there is no evidence he had a weapon or
otherwise posed a danger to officers. No reasonable officer could identify a governmental
interest in ordering a canine officer to attack a suspect who is being kicked while on the ground;
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therefore, there exists a genuine dispute of material fact as to whether Defendant Rothenbecker
used excessive force.
As to Defendant Duncan’s use of a taser against Plaintiff, Defendants have submitted
evidence indicating that Plaintiff struck or attempted to strike Rocky with a closed fist just prior
to Duncan’s use of the taser. See ECF Nos. 75-3 ¶ 14, 76-5 at 5, 76-6 at 3. No evidence in the
record contradicts this account. A reasonable officer could have interpreted these attempted
strikes as resistance requiring the use of additional force. Therefore, summary judgment is
granted to Defendant Duncan and Howard County.
IV.
CONCLUSION
Defendants Rothenbecker and Anne Arundel County’s Motion for Summary Judgment,
ECF No. 75, is denied. Defendant Duncan and Howard County’s Motion for Summary
Judgment, ECF No. 76, is granted. A separate Order shall issue.
Date: July 22, 2019
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GEORGE J. HAZEL
United States District Judge
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