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Torbit v. Shaff

United States District Court, D. Maryland

February 26, 2018

JERRY L. TORBIT, II Plaintiff
v.
TYLER SHAFF and BALTIMORE CO. POLICE DEPT. Defendants

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

         In response to the above-entitled civil rights complaint, Defendants move to dismiss or for summary judgment. ECF 15. Plaintiff opposes the motion. ECF 17. The Court finds a hearing unnecessary to determining the matters pending before it. See Local Rule 105.6 (D. Md. 2016). For the reasons following, Plaintiffs claims of malicious prosecution and unlawful search and arrest shall be dismissed without prejudice; Defendants' motion shall be granted as to the claim of excessive force; Plaintiffs pending Motions to Amend shall be granted in part and his Motion to Appoint Counsel shall be denied.[1]

         Background

         Plaintiff Jerry Torbit, who is currently incarcerated in Jessup Correctional Institution and was incarcerated in the Baltimore County Detention Center at the time he initiated this lawsuit, claims Defendants violated his Fourth and Fourteenth Amendment rights in the course of his arrest. Torbit states that on August 18, 2016, Officer Shaff used something called a Pitt maneuver during a car chase which caused the car Torbit was traveling in to "flip 7 times." ECF No. 1 at p. 1. Torbit states he was thrown from the vehicle and sustained the following injuries: broken bones in his toes, leg (femur and hip); damage to his liver and colon; shoulder injury; and facial lacerations. Id. at p. 2. He claims the injuries he sustained rendered him disabled and claims entitlement to $350 thousand in "non-economical" damages. Id.

         Torbit further claims that Shaff committed perjury in the statements made to obtain a search warrant on August 19, 2016. ECF No. 1 at p. 2. In addition, Torbit states that Shaff provided false statements in charging documents and police reports, Id.

         In a Motion to Amend (ECF No. 12), Torbit seeks to amend the complaint to add as Defendants Baltimore County and the State of Maryland. He also seeks to add a claim for malicious prosecution against Shaff for providing "misrepresented information under the penalty of perjury" in charging documents. Id. Torbit further amends his request for relief raising his claim from $350 thousand to $500 thousand and adding a demand for $350 thousand in "compensatory, pecuniary and exemplary damages" as well as a claim of $150 thousand for emotional distress. Id. at pp. 2-3.

         The Motion to Amend shall be granted to the extent it seeks to amend the request for relief and to add a claim for malicious prosecution, but denied to the extent it seeks to add Baltimore County and the State of Maryland as Defendants. A Motion to Amend is governed by Fed.R.Civ.P. 15(a) which provides that "[a] party may amend its pleading once as a matter of course within 21 days after serving it, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). Rule 15 dictates that "[t]he court should freely give leave when justice so requires." Id. Where, as here, the proposed amendment to the complaint appears to be a futility, this Court has the discretion to deny leave to amend. Baltimore County and the State of Maryland are not "persons" within the meaning of 42 U.S.C. §1983[2] and are therefore not proper Defendants. In addition, the State of Maryland is immune from suit under the Eleventh Amendment. See Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (A state, its agencies and departments are immune from suit in federal court brought by its citizens or the citizens of another state)..

         In response to the complaint, Defendant Shaff submits an Affidavit in support of the Motion to Dismiss or for Summary Judgment. ECF No. 15-2. Shaff states that on August 18, 2016, he was on routine patrol with Officer Chih when they were dispatched to the Seven-Eleven Store located at 8601 Liberty Road in Randallstown, Maryland on a report of a "hold-up alarm." Id. at ¶ 6. When they arrived on the scene, Shaff and Chih were met by Jasvir Singh and Femi Ogumotoyindo, the victims of the armed robbery. Mat ¶ 7.

         Singh told Shaff and Chih that two black males, later identified as Torbit and Ricky Hickman, came into the store and demanded Singh give them all the cash in the register while Hickman pointed a gun at Singh. Id. at ¶ 7. Singh stated that Torbit took the cash as well as four cartons of Newport cigarettes and put it into a plastic trash bag. Id. Singh and Ogumotoyindo reported that Torbit and Hickman ran from the store and fled the scene in a gold-colored SUV onto Old Court Road, heading south. Id. at ¶ 9.

         During the interview of the victims, a gold-colored SUV drove by the store going north on Old Court Road and turning onto Liberty Road. Id. at ¶ 10. Both victims reported to Shaff and Chih that the vehicle was the same one that Torbit and Hickman fled in after the robbery. Id. Chih and Shaff entered their marked police cars, gave chase, and caught up with the SUV. Id. at ¶ 11. It was determined, through search of the registration tags, that the Ford Explorer was registered to Wayne Freeman, later determined to be the driver of the SUV at the time of the pursuit. ECF No. 15 at Ex. 1, p. 8 and Ex. 2, p. 1.

         Shaff attempted to initiate a stop of the SUV by turning on the overhead emergency lights and siren on the police car. ECF 15-2 at ¶ 12. Freeman, the driver of the SUV, did not stop but instead accelerated and traveled east on Liberty Road. Id. at ¶¶ 12, 13. Shaff was traveling in the lead police car during the pursuit on Liberty Road; Chih was second in line. Id. at ¶ 12.

         Near the intersection of Liberty Road and Milford Mill Road, Freeman rammed the Ford Explorer into Shaff s police car and Shaff notified dispatch. See ECF 15 at Ex. 2, p. 2 (Dispatch transcript). Freeman repeated this action near the intersection of Liberty Road and Brubar Court. ECF 15 at Ex. 1, p. 8. Freeman subsequently lost control of the SUV and crashed. Id. Torbit, Hickman, and Freeman were apprehended at the scene of the crash; the money and Newport cigarettes stolen from the store were also recovered at the scene. Id. at ¶ 17. Defendants explain that a PIT ("Pursuit Intervention Technique") maneuver is a pursuit tactic where the pursuing car can force a fleeing car to abruptly turn sideways, causing the driver to lose control and stop. ECF 15 at Ex. 3. They deny such a maneuver was utilized in the pursuit of Torbit and his cohorts and Shaff denies that Baltimore County trains its officers to perform such a maneuver.

         At the time he filed his complaint and Defendants responded to it, Torbit had not yet stood trial on charges of armed robbery. On October 11, 2017, Torbit pled guilty to armed robbery and was sentenced to serve 15 years with 8 years suspended and 3 years of probation. See State of Maryland v. Jerry Lee Torbit, Case No. 03K16004692 (Bait. Co. Cir. Ct. 2017) at http://casesearch.courts.state.md.us/inquiry.

         Standard ...


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