United States District Court, D. Maryland
JERRY L. TORBIT, II Plaintiff
TYLER SHAFF and BALTIMORE CO. POLICE DEPT. Defendants
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
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.
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.
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,
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.
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 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)..
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.
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.
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.
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 ¶
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.
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)