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Vanderhurst v. Mohardt

United States District Court, D. Maryland, Southern Division

June 22, 2015

AVERY C. VANDERHURST, Plaintiff,
v.
NEIL MOHARDT, Defendant.

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

Four police officers arrested Plaintiff Avery C. Vanderhurst on July 31, 2012 and, in the process of bringing him under control so that he could be handcuffed, one of them deployed a taser against him two or three times. At the police station following the arrest, Corporal Neil Mohardt and another officer conducted a cavity search.[1] Believing these acts to violate 42 U.S.C. § 1983 and the Eighth Amendment[2] to the United States Constitution, Plaintiff (then pro se ) filed suit against Corporal Neil Mohardt on July 24, 2013. Compl. 4-5, ECF No. 1. Defendant has moved for summary judgment, ECF No. 29, and the parties[3] fully briefed the motion, ECF Nos. 29-1, 32, 33, 34. A hearing is not necessary. See Loc. R. 105.6. Because there is no genuine dispute that it was not Corporal Mohardt who used the taser, summary judgment in Defendant's favor is appropriate on the excessive force claim. However, Plaintiff will have the opportunity to amend to name the proper defendant for this claim. Additionally, the cavity search was justified and reasonable, and therefore summary judgment in Defendant's favor is appropriate on that claim as well.

I. 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, 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). A "genuine" dispute of material fact is one where the conflicting evidence creates "fair doubt"; wholly speculative assertions do not create "fair doubt." Cox v. Cnty. of Prince William, 249 F.3d 295, 299 (4th Cir. 2001); see also Miskin, v. Baxter Healthcare Corp., 197 F.Supp.2d 669, 671 (D. Md. 1999). And, the existence of only a "scintilla of evidence" will not defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id.

Relevantly, when the nonmoving party does not oppose summary judgment as to one or more claims, "those facts established by the motion" with regard to those claims are "uncontroverted." Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993). Nonetheless, the moving party still must demonstrate that, based on those facts, that party is entitled to judgment as a matter of law, because "[t]he failure to respond to the motion does not automatically accomplish this." Id.

II. DISCUSSION

A. Use of Taser

"[T]o hold an officer personally liable for violation of the Fourth Amendment, the plaintiff must at a minimum be able to demonstrate that the officer actually terminated [his or] her freedom of movement by means of the alleged excessive force." Schultz v. Braga, 455 F.3d 470, 483 (4th Cir. 2006). Plaintiff claims that Corporal Mohardt "shot [him] with a taser 3 times" while arresting him on July 31, 2012. As he sees it, the use of force was excessive, given that Plaintiff "was found not guilty of resisting arrest." Compl. 4. Defendant moves for summary judgment, insisting that he "neither possessed nor used a taser during Plaintiff's arrest, " and in any event, "the use of force did not violate Plaintiff's constitutional rights because it was objectively reasonable as a matter of law." Def.'s Mot. ¶ 3.

In support, Defendant provides affidavits from Corporal Mohardt and Sergeant John Mullaney, which state that Defendant "was not taser certified, nor was he assigned or issued a taser, " and "[a]t no time during the subject incident did Cpl. Mohardt handle, touch or use a taser." Def.'s Mem. 9 (citing Mullaney Aff. ¶¶ 3, 5, Def.'s Mem. Ex. 6, ECF No. 29-8; Mohardt Aff. ¶ 22, Def.'s Mem. Ex. 4, ECF No. 29-6); see Mullaney Aff. ¶ 7 ("The Use of Force Report specifically excludes Cpl. Mohardt in connection with the use of a TASER during the incident involving Mr. Vanderhurst."). Certainly, Plaintiff testified that Defendant tased him three times and that he saw Defendant "tase [him] the first two times." Vanderhurst Dep. 27:11-18, 96:8-11, Def.'s Mem. Ex. 1, ECF No. 29-3. Yet, according to Defendant, when Plaintiff was deposed, he described Defendant as "Caucasian, 5'9" to 5'10" tall, medium build, with red hair and wearing a brown baseball cap." However, "Cpl. Mohardt is 5'8", does not have red hair, and was not wearing a brown baseball cap at the time of the incident." Def.'s Mem. 9 (citing Vanderhurst Dep. 96:8-16, 131:2-8; Mohardt Aff. ¶ 23). In response, Plaintiff acknowledges Defendant's "claim[] that he did not deploy the taser, " and Sergeant Mullaney's affidavit stating that "Defendant was not TASER-certified." Pl.'s Opp'n 2 n.1. Rather than providing any evidence to rebut these assertions, Plaintiff seems to concede that he has named the wrong defendant, stating that "[i]t is likely the case that Plaintiff simply did not know the name of the officer Plaintiff describes in his deposition as having red hair." Id. Because there is no genuine dispute of material fact that it was not Defendant who used a taser on Plaintiff, Defendant is entitled to summary judgment on Plaintiff's excessive force claim. See Fed.R.Civ.P. 56.

Nonetheless, a genuine dispute exists as to the reasonableness of the use of force, as Plaintiff testified that he did not resist arrest, making any force unnecessary, Vanderhurst Dep. 82:15 - 85:3, and Defendant provided an affidavit justifying the use of force based on Plaintiff's criminal history, Mohardt Aff. Moreover, although Plaintiff does not seek either leave to amend to name the proper defendant pursuant to Rule 15(a)(2) or to pursue discovery to identify the proper defendant pursuant to Rule 56(d)(2), it appears that Plaintiff readily could identify the proper defendant, as the Use of Force Report referenced in Sergeant Mullaney's affidavit likely identifies the individual who used the taser. See Mullaney Aff. ¶ 7. Indeed, Defendant does not deny that "one of the [arresting] officers deployed the probes of his taser into Plaintiff's back." Def.'s Mem. 13. Rather, Defendant denies only that he was the officer who deployed the taser. Therefore, Plaintiff will be granted until July 22, 2015 to amend his Complaint to name the proper defendant.

B. Strip Search

Plaintiff also claims that Corporal Mohardt "conduct[ed] a cavity search of [Plaintiff's] rectum with a flashlight." Compl. 4. Defendant argues that he "did not violate Plaintiff's constitutional rights because there was justification for initiating the search, and the place, scope and manner of the search was reasonable." Def.'s Mot. ¶ 4. Plaintiff does not address this argument. See Pl.'s Opp'n. Consequently, the following facts are uncontroverted, see Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993):

Plaintiff... is a known distributor of controlled ...

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