United States District Court, D. Maryland
HERSCHEL W. VICK-EL Plaintiff,
OFFICER EDWARD CARMEAN CHIEF ARNOLD DOWLING, POLICE DEPT., TOWN OF BERLIN MD. Defendants.
L. Russell, III United States District Judge
MATTER is before the Court on Defendants', Defendants
Edward Carmean and Arnold Dowling, Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment (ECF No. 15).
The Motion is ripe for disposition. Having reviewed the
Motions and supporting documents, the Court finds no hearing
necessary. See Local Rule 105.6 (D.Md. 2016). For
the reasons outlined below, the Court will grant
to Vick-El, he was sitting on the steps of his mother's
residence with James Biddle when Defendant Carmean, a Berlin,
Maryland police officer, pulled into a local park in his
police car. (Compl., ECF No. 1). Vick-El and Biddle began
leaving the yard when Carmean yelled for Vick-El to stop and
asked him if he was David Tanig. (Id.). Vick-El
responded no and Carmean asked him for his name.
(Id.). Vick-El informed Carmean that his name was
[Hershel] Vick-el and that David Tanig was his brother.
(Id.). Carmean then pushed Vick-El up against a
wall, commenced a body search, threw him to the ground, tased
him, kneed him in the back and punched him in the right eye.
(Id.). Vick-El never resisted Carmean.
to Carmean, on August 29, 2014, he encountered Vick-El near a
local park in Berlin, Maryland at approximately at 7:59 p.m.
(ECF Nos. 15-4; 15-5; and 15-6). Vick-El refused to provide
his name to Carmean after he asked twice. (ECF No. 15-4).
Carmean informed Vick-El there was a warrant for his arrest
and asked Vick-El to turn around and place his hands behind
his back. (Id.). Vick-El refused and attempted to
walk around Carmean, bumping Carmean with his shoulders.
(Id.). Carmean placed Vick-El against the wall and
instructed him to drop his cigarette and put his hands behind
his back. (Id.). Vick-el refused Carmean's
commands. (Id.). Instead, Vick-El made numerous
attempts to push off the wall and turn around to face
Carmean. (Id.). Carmean requested backup and knocked
the cigarette out of Vick-El's hand. (Id.).
Vick-El yelled at him several times and a struggle ensued,
where Vick-El struck Carmean in the chest with his elbow.
(Id.). Carmean hooked his arm across Vick-El's
torso, from left rib cage to his right shoulder, and took
Vick-El to the ground, landing on top of him. (Id.).
placed his hands underneath himself. (Id.). Carmean
gave Vick-El numerous orders to put his hands to the side,
but Vick-El refused. (Id.). Carmean radioed for
backup again and struck Vick-El once on the right side of his
face/head area to gain compliance. (Id.). After
Vick-El refused further instructions to put his hands behind
his back, Carmean struck Vick-El a second time on the right
side of his face/head area in a further attempt to gain
compliance. (Id.). After this second strike, Vick-El
stopped resisting and released his hands, allowing Carmean to
place him in handcuffs. (Id.).
was charged with second-degree assault, possession of a
controlled dangerous substance-heroin, possession of a
controlled dangerous substance-cocaine, resisting and
interfering with his arrest, and making a false statement to
an officer. (ECF Nos. 15-4, 15-9). Vick-El was acquitted of
the second-degree assault charge, but was convicted of
cocaine and heroin possession and resisting and interfering
with his arrest. (ECF No. 15-10). The false statement charge
was nolle prossed. (Id.). On November 2, 2015,
Vick-El sued Defendants under 42 U.S.C. § 1983 seeking
declaratory and injunctive relief, along with compensatory
and punitive damages for the alleged use of excessive force
during an August 29, 2014 arrest in Berlin, Maryland.
Standard of Review
considering a Rule 12(b)(6) motion, the court must construe
the complaint in the light most favorable to the plaintiff,
read the complaint as a whole, and take the facts asserted
therein as true. See Harrison v. Westinghouse Savannah
River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993)). But “[w]hen matters outside the pleading
are presented to and not excluded by the court, the
[12(b)(6)] motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56.”
Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 260-61 (4th Cir. 1998) (quoting Fed.R.Civ.P. 12(d)).
Under Rule 56(a), the Court must grant summary judgment if
the moving party demonstrates there is no genuine issue as to
any material fact and the moving party is entitled to
judgment as a matter of law.
reviewing a motion for summary judgment, the Court must draw
all justifiable inferences in the non-moving party's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158-59 (1970)). Once a motion for
summary judgment is properly made and supported, the opposing
party has the burden of showing that a genuine dispute
exists. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986). “[T]he mere
existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.”
Anderson, 477 U.S. at 247-48.
“material fact” is one that might affect the
outcome of a party's case. Id.at 248; see JKC Holding
Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465
(4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249
F.3d 259, 265 (4th Cir. 2001)). Whether a fact is considered
to be “material” is determined by the substantive
law, and “[o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248; accord
Hooven-Lewis, 249 F.3d at 265.
party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or
denials of [his] pleadings, ' but rather must ‘set
forth specific facts showing that there is a genuine issue
for trial.'” Bouchat v. Balt. Ravens Football
Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003)
(alteration in original) (quoting Fed.R.Civ.P. 56(e)). The
court should “view the evidence in the light most
favorable to . . . the nonmovant, and draw all inferences in
[his] favor without weighing the evidence or assessing the
witness' credibility.” Dennis v. Columbia
Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir.
2002). The court must, however, also abide by the
“affirmative obligation of the trial judge to prevent
factually unsupported claims and defenses from proceeding to
trial.” Bouchat, 346 F.3d at 526 (quoting
Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir.
rely on exhibits attached to their Motion. Because the Court
will consider Defendants' exhibits, the Court must
convert the Motion ...