United States District Court, D. Maryland
William M. Nickerson Senior United States District Judge.
the Court is a Motion for Summary Judgment filed by Defendant
Officers Eugene Coker and Ricardo Cabreja. ECF No. 61. The
motion is fully briefed. Upon review of the motion and the
applicable case law, the Court determines that no hearing is
necessary, Local Rule 105.6, and that the motion must be
case arises out of an incident that occurred late in the
evening of August 25, 2013, in Baltimore's Fells Point
neighborhood. Plaintiff's account and Defendants'
account of the incident differ as to many of the details, but
the parties do agree as to the following. Plaintiff and a
male friend, Jeffery Machiran, took a taxi cab from a Fells
Point bar where they had been drinking and socializing with
friends but discovered at some point that they did not have
any means by which to pay the cab driver. Defendants Coker
and Cabreja, who are Baltimore City Police Officers, were
summoned to the scene and, by the end of their encounter with
the couple, Plaintiff and Mr. Machiran were arrested for
“Disorderly Conduct” and “Theft, Less than
filed a Complaint in the Circuit Court for Baltimore City
alleging that, in the course of her arrest, Officers Coker
and Cabreja utilized excessive force which caused her
“severe physical and emotional trauma that continues to
this date.” Compl. ¶ 14 (ECF No. 2). She alleges
that her injuries “include, but are not limited to
seven broken ribs, a collapsed lung, contusions, anxiety,
emotional distress, etc.” Id. As causes of
action, she asserted claims of battery (Count 1); violations
of Articles 16, 19, and 24 of the Maryland Declaration of
Rights (Count 2); negligence (Count 3); and violations of the
Fourth, Eighth and Fourteenth Amendments of the United States
Constitution, those claims being brought pursuant to 42
U.S.C. § 1983 (Count 4). In addition to Officers Coker
and Cabreja, Plaintiff named as Defendants the Mayor and City
Council of Baltimore (City) and the Baltimore City Police
the case was removed to this Court, Plaintiff filed a motion
to remand and Defendants City and BPD filed motions to
dismiss. On October 22, 2015, this Court issued a Memorandum
and Order denying the motion to remand and granting the
motions to dismiss. ECF No. 31. The City's motion was
granted on the ground that the BPD is an agency of the State
of Maryland, and not the City, and therefore the City has no
liability based upon the conduct of officers of the BPD. The
BPD's motion was granted as to all of the Maryland state
law claims on the ground that, as a State agency, it has
sovereign immunity against those claims. As to the federal
constitutional claims, the Court granted the motion after
noting that there were no facts alleged from which it could
be concluded that the Officers' actions were pursuant to
any policy or custom of the BPD. The Court also noted that
the Complaint stated no plausible Eighth Amendment claim as
that amendment is only applicable to convicted and sentenced
prisoners. By that same reasoning, the Court dismissed Count
4 as to the Officers to the extent the claim in that count
was premised on the Eighth Amendment.
the discovery deadline passed, Defendant Officers filed the
pending Motion for Summary Judgment. Their motion is well
supported with admissible evidence, including: a recording of
the 911 call; Plaintiff's discovery responses; medical
records; affidavits from both Defendants; the Statement of
Probable Cause for her arrest; and, perhaps of most
significance, the transcript of Plaintiff's deposition in
which Plaintiff made and was then confronted with numerous
material inconsistencies in her testimony. This evidence
submitted by Defendant Officers details the following series
approximately 11:17 p.m. on the evening of August 25, 2013,
the BPD received a 911 call from cab driver Rupert Campbell.
Mot., Ex. E (audio file of 911 call). In that call, Mr.
Campbell complained that two passengers, later identified as
Plaintiff and Mr. Machiran, after having used his cab
“as a hotel, ” were refusing to pay his fare. Mr.
Campbell also stated that Mr. Machiran was making insulting
comments and, during the course of the call, an individual is
heard arguing with Mr. Campbell in the background.
Id. From the content of the exchange, that
individual was clearly Mr. Machiran.
response to the 911 call, Officer Coker arrived at the Royal
Farms store located at the corner of Dean Street and Fleet
Street and spoke with Mr. Campbell. Coker Aff. ¶¶
2, 3 (ECF No. 61-8). Mr. Campbell reported that the couple
had incurred a $13 fare which they were refusing to pay.
Id. ¶ 5. A witness at the scene, Phillip
Atwood, confirmed that the couple had refused to pay their
fare and had given Mr. Campbell difficulty. Id.
¶ 6. Mr. Campbell then pointed in the
direction of the 600 block of South Dean Street where
Plaintiff and Mr. Machiran had drifted on foot and where they
had been engaging in sexual activity for the last five
minutes. Id. ¶ 7. Officer Coker then drove his
marked police car to that location, which was about a block
away. Officer Coker approached the couple and observed Mr.
Machiran with his head under Plaintiff's dress and heard
Plaintiff making sounds consistent with sexual stimulation.
Id. ¶¶ 9, 10. Officer Coker announced his
presence as “Baltimore Police” and Mr. Machiran
removed his head from under Plaintiff's dress.
Id. ¶ 11.
Cabreja arrived at the scene about that time. From the
couple's slurred speech and potent body odor, Officers
Coker and Cabreja quickly concluded that both Plaintiff and
Mr. Machiran were intoxicated. Id. ¶ 14. They
explained that they were responding to the cab driver's
complaint about the unpaid fare. Mr. Machiran initially
argued with the Officers but eventually agreed to go with
Officer Cabreja to the ATM in the Royal Farms store to
retrieve some cash to pay the fare. Once there, however, Mr.
Machiran claimed that he did not have an ATM or debit card
with which to retrieve any cash. Id. ¶¶
17-18. Officer Cabreja returned with Mr. Machiran to where
Officer Coker was waiting with Plaintiff.
Officers continued their attempt to persuade the couple to
pay their cab fare but Mr. Machiran responded with a
profanity-laced tirade as to why he felt he did not need to
pay Mr. Campbell the cab fare, including his making
disparaging comments regarding Mr. Campbell's
nationality. Id. ¶¶ 19, 20. Mr. Machiran
and Plaintiff also became increasing loud and boisterous
despite the Officers' attempts to persuade them to lower
their voices. When the couple refused to adjust their
behavior, Officer Coker placed them in handcuffs.
Id. ¶¶ 23, 24. Concerned that the
couples' continued disruptive and loud behavior was
disturbing this residential neighborhood, the Officers moved
them closer to the Royal Farms store while awaiting the
transport wagon to take them to the Central Booking Intake
waiting for that transport, “[o]n several occasions,
Plaintiff attempted to rise to her feet. Each time, [Officer
Coker] returned Plaintiff to a seated position.”
Id. ¶ 28. This continued for approximately ten
minutes as Plaintiff continued to yell out and try to get up.
Cabreja Aff. ¶ 19 (ECF No. 61-10). When the transport
arrived, the Officers had to physically lift and force the
Couple into the transport vehicle. Id. ¶ 21.
Mr. Campbell was never paid for his services. The subsequent
charges against Plaintiff of “Disorderly Conduct”
and “Theft, Less than $100” that arose from this
incident were eventually nol prossed in exchange for
Plaintiff's agreement to do 25 hours of community
service. Eastside District Court Record (ECF No. 61-11).
moving for summary judgment, Defendant Officers make the
following legal arguments. Defendants argue that all claims
against Officer Cabreja must be dismissed because Plaintiff
stated in her deposition that it was Officer Coker who
assaulted her but made no similar claim against Officer
Cabreja. Pl.'s Dep. 134-35 (ECF No. 67-3). Defendants
argue that the claim of battery against Officer Coker should
be dismissed as well because police officers
“‘have the right to take reasonably necessary
measures to make the arrest in a manner that protects both
the public and themselves, '” and
“‘[i]n doing so, they may use some degree of
force.'” ECF No. 61-1 (quoting Tavakoli-Nouri
v. State, 779 A.2d 992, 1001 (Md. Ct. Spec. App. 2001)).
In light of the couple's continued disruptive behavior
and Plaintiff's continued efforts to stand up after she
was instructed to remain seated, Defendants contend that the
limited force applied was reasonable.
arguing that Plaintiff's claims under the Maryland
Declaration of Rights must be dismissed, Defendant Officers
highlight the somewhat careless pleading of Plaintiff's
counsel. The Complaint invokes Article 16 which relates to
capital punishment and cruel and unusual punishment which
obviously has no relation to this action. Complaint also
invokes Article 19 which relates to the right to a speedy
trial, again, a provision that is irrelevant to this action.
Similarly, Plaintiff's counsel included a claim under the
Eighth Amendment to the United States Constitution that could
have no possible relation to this case. The Eighth Amendment
addresses excessive bail and cruel and unusual punishment.
Plaintiff's counsel conceded in the Opposition to the
Motion for Summary Judgment that these claims should be
dismissed. ECF No. 67-1 at 10.
negligence claim is also at odds with the allegations in the
Complaint. It has long been established that negligence is
not an intentional tort but, instead, arises where an
individual's unintentional failure to use reasonable care
results in injury to another. Adams v. Carey, 190 A.
815, 821 (Md. 1937) (noting that "the absence of intent
is essential to the legal conception of negligence").
Here, Plaintiff is clearly alleging intentional conduct.
While there is a narrow exception to the unintentional rule
where an intentional act causes ...