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Jensen v. Philips

United States District Court, D. Maryland

January 12, 2017



          William M. Nickerson Senior United States District Judge.

         Before the Court is a Motion to Dismiss Amended Complaint or, in the Alternative, for Summary Judgment, filed by Defendant Corporal Howard Hatton Phillips. ECF No. 15.[1] That 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 will be granted.


         This case arises out of an encounter between Plaintiff Jeffrey Cameron Jensen and Defendant Corporal Howard Hatton Phillips of the Wicomico County Sheriff's Office on April 21, 2013. On that date, Plaintiff was attending an outdoor festival in Salisbury, Maryland, with his wife. Corporal Phillips approached Plaintiff and asked for his identification, explaining that “we have reports that you are going around impersonating an officer.” Def.'s Mot., Ex. B, [2] ECF No. 15-3. Plaintiff was employed at the time as a Compliance Inspector II for the Comptroller of Maryland.[3] Plaintiff had previously approached a tobacco vender at the festival and asked to see the vendor's “Other Tobacco Product” license and certificate. When the vendor inquired as to Plaintiff's identity, Plaintiff dropped his request and walked away.

         In response to Corporal Phillips' request for identification, Plaintiff indicated that he had no identification with him and Plaintiff's wife explained that Plaintiff had left his wallet at home. Corporal Phillips then asked Plaintiff to provide his name but Plaintiff repeatedly refused, informing Corporal Phillips that he did not believe he was required to provide his name. Corporal Phillips then ordered him to give his name and indicated that, if he did not do so, he would be arrested. Plaintiff continued to refuse to provide his name, and Corporal Phillips then placed him in handcuffs. Id.

         By this time, several other Wicomico County Sheriff Deputies had arrived at the scene. After Plaintiff was handcuffed, the Deputies began to search through the pockets of his clothes. Plaintiff relates that the Deputies pulled everything out of his pockets and then either placed the contents back in his pockets or handed items to Plaintiff's wife. Plaintiff was then walked over to a police car. As the Deputies began placing him in a position to be seated in the back seat, Plaintiff told them to “wait a second, ” because he had a knee injury that required him to use special care. Plaintiff states that the Deputies threatened to TASER him if he did not sit down. When he started to sit down, he again told the Deputies to wait a second because he had something in his back pocket and they again threatened to TASER him. They then removed the contents from his back pocket and Plaintiff sat down onto the back seat of the vehicle. Plaintiff was never TASERed.

         Plaintiff's arrest took place about 3:30 in the afternoon. He was subsequently charged with obstructing and hindering, resisting arrest, and disorderly conduct and was released on bail at about 1:00 the next morning. On August 5, 2013, Plaintiff appeared for trial on those charges at the District Court of Maryland for Wicomico County where he was represented by private counsel. Plaintiff entered a guilty plea on the charge of disorderly conduct and the remaining two charges were nol prossed. Mot., Ex. A. Plaintiff was sentenced to probation before judgment and assessed court costs. Id.

         Plaintiff filed suit in this Court on April 20, 2016, one day shy of three years after the incident in question. Proceeding pro se, he brought claims against Corporal Phillips, as well as Michael Lewis, the Sheriff of Wicomico County. The original Complaint contained six counts: “Count I - Violation of 42 U.S.C. 1983;” “Count II - Violation of Civil Rights Pursuant to 42 U.S.C. 1983 Use of Excessive Force;” “Count III -Violation of Civil Rights Pursuant to 42 U.S.C. 1983 False Arrest;” “Count IV - Civil Assault” “Count V - Battery;” and “Count VI - False Imprisonment.” Defendants filed a motion to dismiss the complaint in its entirety. Plaintiff, now represented by counsel, filed an opposition in which he indicated that he did not oppose the dismissal of Counts IV and V, the assault and battery claims. He also acknowledged that there were insufficient allegations in the Complaint to support the claims against Sheriff Lewis.

         In the Amended Complaint filed by Plaintiff's counsel the day after Defendants filed their reply brief, the assault and battery claims were dropped, as well as the claims against Sheriff Lewis. While the allegations in the Amended Complaint are generally the same as the original complaint, Plaintiff's counsel attempted to elevate the language relating to the physical force used by the arresting officers. Plaintiff now alleges that Corporal Phillips attacked Plaintiff by “lunging towards him, forcefully pulling his shoulder, grabbing hold of him, and unwelcomely and forcefully reaching repeatedly inside Plaintiff's pockets.” Am. Compl. ¶ 15.[4] In addition, the Amended Complaint attempts to alter the sequence of events, now alleging that “[b]efore the arrest, Corporal Phillips thrust his hand into Plaintiff's top pocket.” Am. Compl. ¶ 17 (emphasis added). As Defendant correctly observes, however, this resequencing is inconsistent with other allegations in the same paragraph which allege that a Deputy “placed his hands around the handcuffs on Plaintiff while Officer Phillips began searching Plaintiff.” Id.

         Corporal Phillips has moved for dismissal or, in the alternative, for entry of summary judgment, as to all claims against him in the Amended Complaint.


         Here, Defendant has submitted material outside the pleadings with his motion. When matters outside the pleadings are presented to and not excluded by the court, a motion under Rule 12(b)(6) must be treated as one for summary judgment under Rule 56. Rule 56(b) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered in favor of a moving party when there is no genuine dispute as to any 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 (1986). Rule 56 mandates summary judgment against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. Trial judges have an affirmative obligation to prevent factually unsupported claims from proceeding to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1986).

         Where, in a case “decided on summary judgment, there have not yet been factual findings by a judge or jury, and [one party's] version of events . . . differs substantially from [the other party's, ] . . . courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion.” Scott v. Harris, 550 U.S. 372, 378 (2007). However, “[a]t the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.” Id. 550 U.S. at 380.

         III. ...

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