United States District Court, D. Maryland
Xinis United States District Judge
case arises from Plaintiff Lanier Brown having been bitten by
a police dog during his arrest. Plaintiff files suit pursuant
to 42 U.S.C. § 1983, alleging excessive use of force in
violation of the Fourth Amendment of the United States
Constitution and failure to provide adequate medical
treatment following that arrest in violation of the Eighth
Amendment right to be free from cruel and unusual punishment.
Plaintiff seeks $10 million in damages. ECF No. 1 at 1.
Defendant Matthew Myers moves to dismiss the Complaint, or in
the alternative, for summary judgment (ECF No. 11-1), which
is opposed by Brown. ECF No. 15. The Court has reviewed the
submissions and finds no hearing necessary. See
Local Rule 105.6 (D. Md. 2016). Because Defendant seeks this
Court's review of materials outside of the Complaint, his
motion will be treated as one for summary judgment. See
Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir.
2007); see also Fed. R. Civ. P. 12(d) and 56. For
the reasons set forth below, Myers' Motion IS DENIED.
Further, the Court will appoint Pro Bono counsel to represent
Brown for all purposes going forward, including amendment of
the pleadings, discovery and trial.
following facts are undisputed. On April 28, 2014, at
approximately 4:08 PM, Officer Myers, Officer Tracy Ather and
other Baltimore County police officers responded to a report
of a burglary in progress at 205 East Cherry Hill Road in
Reisterstown, Maryland. (ECF No. 1, p. 3; ECF No.
11-1). Witnesses claim to have seen Brown run
toward Mardan Drive and attempt to conceal a television
inside a book bag. Brown then abandoned the items and
continued to flee. K-9 Officer, Derek W. Clark, arrived on
the scene with his K-9 partner “Justice” and
joined the search for Brown. (Id., p. 6). A
helicopter pilot observed Brown enter a residence located at
231 Parkholme Circle through the rear patio door. (ECF No. 1,
p. 3). Clark and Justice responded to 231 Parkholme Circle
with other officers and began to search the residence. (ECF
No. 11-1, p. 6).
happened during the search, however, is a matter hotly
disputed by the parties. Defendant submits the sworn
affidavit of Officer Clark who claims that he opened the
sliding glass door and gave three loud K-9 warnings, but upon
hearing no response, deployed Justice. (ECF No. 11-7, ¶
11). Clark then heard Brown scream and shout “I give
up.” Clark entered the living room, and saw Justice
biting and holding Brown's left arm. Brown then released
a door knob with his right hand, and according to Clark,
raised his clenched fist as if to strike Justice.
(Id., ¶¶ 13-15). Other officers
immediately grabbed Brown's right arm, forced him to the
ground. Justice, still latched onto Brown's left arm, had
to be forcibly removed from Brown by Clark exerting pressure
on the dog's neck. Clark attests that this method of
release allows the officer to control the dog and reduce the
risk that others in the vicinity may be bitten.
(Id., ¶ 18).
further asserts that Brown received medical treatment from
desk officers at the precinct for puncture wounds to the left
arm and right hand. (ECF No. 11-1, p. 5). According to Clark,
Brown refused further treatment. (Id., p. 6; ECF No.
11-7, ¶ 21). K-9 Commander Lt. Joseph Peach met Clark at
the Precinct and interviewed Brown in Clark's presence.
(Id., ¶ 22). In a subsequent interview with
burglary Detectives Gene Pryor and Robert Inge, Brown again
declined medical treatment for the dog bites and stated that
he was “okay” and “fine.” (ECF No.
11-1, p. 8).
by contrast, attests to a very different series of events.
Brown asserts that while in the residence, the officers never
warned him that he should surrender or Justice would be
deployed. ECF No. 15. Brown also disputes that he refused
medical treatment, but instead states that he was discouraged
from seeking further treatment. Id. p. 4; ECF No.
15-1). Brown claims to have suffered permanent physical
injuries from the dog bites, including limited strength and
mobility in his arm, slight uncontrolled shaking of the arm,
tingling, numbness, and aching. (ECF No. 15, p. 9). In
addition to alleging excessive force claims against the
individual officers, Brown also argues that Baltimore County
has failed to properly train its K-9 officers (id.,
p. 13), and suggests municipal authorities are to blame.
(Id., pp. 13-14).
STANDARD OF REVIEW
district court treats a motion to dismiss as one for summary
judgment, “[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to
the motion. Id. Where the nonmoving party attaches
exhibits to its opposition, the Court may treat the nonmoving
party as having availed himself of the reasonable opportunity
to present materials pertinent to the motion and proceed to
summary judgment. See Laughlin v. Metropolitan Wash.
Airports. Auth., 149 F.3d 253, 260-61 (4th Cir. 1998).
The Court will do so here.
judgment is appropriate if “materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials,
” show 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); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
moving party bears the burden of demonstrating that no
genuine dispute of material fact exists. Pulliam Inv.,
Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). A material fact is one that “might affect the
outcome of the suit under the governing law.”
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183
(4th Cir. 2011) (internal quotation marks omitted). A dispute
of material fact is only genuine if sufficient evidence
favoring the non-moving party exists for the trier of fact to
return a verdict for that party. Id. at 248.
However, the nonmoving party “cannot create a genuine
issue of material fact through mere speculation or the
building of one inference upon another.” Beale v.
Hardy, 769 F.2d 213, 214 (4th Cir. 1986). The Court may
only rely on facts supported in the record, not simply
assertions in the pleadings, to fulfill its
“affirmative obligation . . . to prevent
‘factually unsupported claims or defenses' from
proceeding to trial.” Felty v. Grave-Humphreys
Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting
Celotex, 477 U.S. at 324-25). When ruling on a
motion for summary judgment, “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Because Brown is
self-represented, his submissions are liberally construed.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
of excessive force during arrest are examined under the
Fourth Amendment's objective reasonableness standard.
See Graham v. Connor, 490 U.S. 386, 395 (1989).
“The right to make an arrest carries with it the right
to use the amount of force that a reasonable officer would
think necessary to take the person being arrested into
custody.” See Martin v. Gentile, 849 F.2d 863,
869 (4th Cir. 1988) (citing Lester v. Chicago, 830
F.2d 706, 712 (7th Cir. 1987)). This “requires
balancing the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify
the intrusion.” Tennessee v. Garner, 471 U.S.
1, 8 (1985) (citation omitted). Factors to be considered are
the severity of the crime, whether there is an immediate
threat to the safety of the officer or others, and whether
the subject is resisting arrest or attempting to flee.
See Graham, 490 U.S. at 396. The determination is to
be made “from the perspective of a reasonable officer
on the scene.” Id. at 387.
genuine issues of material fact as to whether the officers
were “objectively reasonable” in deploying K-9
Justice preclude summary judgment. The parties dispute
whether Brown was given notice and an opportunity to
surrender prior to Justice being let loose in the residence.
Additionally, no discovery has been taken regarding police
K-9 practices and training by which to assess whether the
Defendant and other officers behaved in an objectively
with regard to Plaintiff's claims of receiving
constitutionally inadequate medical treatment, genuine issues
of disputed fact bar summary judgment. Defendant mainly
contends that Brown has put forth no evidence to support that
Brown was treated with “deliberate indifference.”
The Court disagrees. Brown attests that his wounds were
serious enough to have sustained permanent physical
impairment. The parties also do not dispute that K-9 Justice
bit and held his right arm with sufficient force that the
officer had to manually remove the dog from Brown's arm.
Construing these facts in the light most favorable to Brown,
this Court cannot find without further factual development
that officers provided ...