United States District Court, D. Maryland, Southern Division
GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE
Plaintiff Alexia Burno-Whalen brought this action against Trooper First Class Oliver Okafor, Trooper First Class Robert Hobbs. and the State of Maryland, alleging common law tort claims of battery and false arrest and constitutional claims of excessive force, pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment, and arrest without probable cause, pursuant to 42 U.S.C. § 1983 and the Fourth Amendment. See ECF No. 16. Now pending before the Court is Defendants" Motion to Dismiss or. in the Alternative. Motion for Summary Judgment of Plaintiff's Amended Complaint and
Burno-Whalen's Motion for Leave to File a Surreply. ECF Nos. 17. 25. A hearing is not necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, the Court grants Burno-Whalen's Motion for Leave to File a Surreply and denies Defendants" Motion to Dismiss or. in the Alternative. Motion for Summary Judgment.
On February 26. 2012. Burno-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. Burno-Whalen remained in her car to wait for the police to arrive. Id. Officer Okafor arrived on the scene and spoke to the other driver first. Id. ¶ 9. Okafor then asked Burno-Whalen to step out of her vehicle to do a breathalyzer test. Id. After Burno-Whalen attempted the test several times, Okafor became angry and yelled at her to blow harder. Id. Following additional attempts. Okafor arrested Burno-Whalen and put her in handcuffs without performing any field sobriety tests or asking for her version of how the accident occurred. Id. Okafor then placed Burno-Whalen in the passenger side of his patrol car and began driving toward the College Park Police Barracks. Id
Once in the patrol car, Burno-Whalen began screaming, rocking back and forth, and kicking her feet because "she did not know why Officer Okafor was taking her to College Park." Id. She spat on the floor "because her nose and mouth were filled with mucus." Id. Okafor then began grabbing at her. Id. Once at the police barracks. Okafor 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 handcuffed behind her back. Id. Blood began "gushing" from her nose and mouth and she could feel that her upper and lower front teeth were broken. Id. She repeatedly screamed. "You knocked all my teeth out of my mouth." and spat out blood and broken teeth. Id. Okafor drove her to the hospital emergency room. and. after she was treated, drove her back to the police barracks. Id. ¶ 10.
Upon returning to College Park. Burno-Whalen and Okafor were met by Officer Hobbs and another officer. Id. 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 door jamb of the patrol car." Id. Despite the fact that she was not resisting arrest or trying to escape, she was kept "hogtied" in the same position
for forty minutes while Hobbs drove her to the jail in Upper Marlboro. Id.
In addition to submitting declarations suggesting a very different version of the facts. the Defendants submitted video footage from a dashboard camera inside of Okafor's patrol car. See ECF No. 17. Ex. C. The video includes footage from the time when Okafor was directed, via radio, to report to the scene of Burno-Whalen's automobile accident, to when Okafor and Burno-Whalen arrived at the College Park Police Barracks. In addition, there are several additional minutes of footage when Burno-Whalen. Okafor. and other officers can be heard speaking just outside of Okafor's patrol car.
The video confirms certain allegations made by each party, but is of limited value because Burno-Whalen is not visible at the moment she suffered her alleged injury. The video clearly shows Burno-Whalen kicking, screaming, rocking back and forth, and becoming free of her seatbelt in the patrol car. allowing her to move around. ECF No. 1 7. Ex. C. The video also shows Burno-Whalen spitting, though her spitting appears to be directed at the floor, and at one point Okafor offers her a cup in which to spit. Id. When they arrive at the barracks. Okafor can be seen pulling Bumo-Whalen from the vehicle with both hands. Id. No baton is visible at that time. Id. at 09:17:53." Seconds later. Burno-Whalen can be heard repeatedly screaming. "You knocked my teeth out." Id. at 09:18:01. Burno-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. Okafor can be heard saying, "she just spat her blood in my face." Id. at 09:21:02. At that time another officer asks Okafor whether he got blood in his mouth, and he says. "I think so." Id. at 09:21:24. After a couple of minutes, an officer asks Okafor for his account of events. Id. at 09:23:31. The officer asks Okafor how Burno-Whalen's hair came out and whether her teeth were actually busted out. Id. at 09:25:11. As the video progresses. Burno-Whalen can be heard cursing and insulting the officers. Id. at 09:26:44. In addition, officers can be heard telling Burno-Whalen to stop moving her head and neck. Id. at 09:27:25. Bumo-Whalen also repeatedly says, '"they're pushing me on the ground." and "get off my neck." Id. at 09:28:21.
Burno-Whalen filed her Amended Complaint on June 4. 2015. Defendants have filed a Motion to Dismiss or. in the Alternative. Motion for Summary Judgment.
A. Motion for Leave to File Surreply
Pursuant to Local Rule 105.2.a. surreply memoranda are not permitted to be filed unless otherwise ordered by the Court. "Surreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve. 268 F.Supp.2d 600, 605 (D. Md. 2003) (citing Lewis v. Rumsfeld. 154 F.Supp.2d 56, 62 (D.D.C. 2001)).
Burno-Whalen argues that she should be granted leave to file a surreply 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 ...