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Higginbotham v. Brauer

United States District Court, D. Maryland

January 16, 2019

STUART HIGGINBOTHAM
v.
CPL. JEFFREY BRAUER

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution in this civil rights case is Defendant's motion to dismiss counts II, III and IV. (ECF No. 5). The issues are fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, Defendants' motion will be granted.

         I. Background

         Defendant (“Defendant” or “Cpl. Brauer”) seeks dismissal of the state law claims in counts II (battery), III (false arrest), and IV (false imprisonment) of Plaintiff's (“Higginbotham” or “Plaintiff”) complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that Plaintiff failed timely to provide notice under Maryland's Local Government Tort Claims Act (the “LGTCA”). Under Md. Code. Ann., Cts. & Jud. Proc. § 5-304(b) (2015): “an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days after the injury.”[1] Plaintiff alleges that Defendant made an unreasonable seizure of Plaintiff on May 14, 2015.

         “It is a longstanding principle of Maryland jurisprudence that the LGTCA notice provision is a condition precedent to maintaining an action directly against a local government or its employees.” Hansen v. City of Laurel, 420 Md. 670, 682 (2011). Satisfaction of the notice requirement must be pled in the complaint. Id. at 684; Renn v. Bd. of Comm'rs of Charles Cty., MD, 352 F.Supp.2d 599, 602 (D.Md. 2005) (“Maryland courts have consistently held that . . . compliance with the [LGTCA's] notice provision should be alleged in the complaint as a substantive element of the cause of action.”). Here, Plaintiff alleges:

On or about July 19, 2016, Plaintiff Higginbotham acted in a pro se capacity and provided notice of his claims in this action to the Anne Arundel County Office of Law in a manner that substantially complied with Maryland's Local Government Tort Claims Act. On July 28, 2016, Senior County Attorney Jay H. Creech responded by correspondence in which he indicated that a copy of Plaintiff's “notice of claim ha[d] been forwarded to the Risk Management Division of the Anne Arundel County Office of Central Services” and that “[a]n investigation would be conducted . . .” On August 16, 2016, Anne Arundel County Claims Adjuster Ronald C. Brigerman, Jr. advised Plaintiff Higginbotham that the investigation concerning his claim (Claim No. 16-1404) had been complete, and further indicated that the Anne Arundel County was denying liability.

(ECF No. 1 ¶ 5).

         While not contesting that his notice was filed well past the LGTCA deadline, Plaintiff maintains that: (1) his efforts constitute substantial compliance under the LGTCA because his late notice did not “impede[] Anne Arundel County's ability to investigate” and Defendant has not suffered any prejudice, and thus “the purpose of the statute has essentially been fulfilled;” and (2) good cause exists to forgive his failure to comply strictly with the LGTCA's notice provision because Plaintiff is an out-of-state resident who initially attempted to act without the assistance of counsel. (ECF No. 7, at pp. 4-5).

         A. “Altercation” on May 14, 2015

          Plaintiff Stuart Higginbotham, a Delaware citizen (ECF No. 1 ¶ 6), was at the Mall following a work assignment on May 14, 2015 (Id. ¶ 8). At about 2:50, he finished lunch and walked around the Mall. (Id. ¶ 9). He encountered an altercation between two individuals (Calik Smith and Morgan Branch) and several mall security personnel and Anne Arundel County Police Department officers, including Defendant Jeffrey Brauer. (Id. ¶¶ 10-12). He did not know any person in this altercation. (Id. ¶ 11.).

         As Plaintiff observed the scene, he noticed that Ms. Branch looked distraught and was “pull[ed]” by mall security. (Id. ¶ 13). He allegedly witnessed Cpl. Brauer grab Ms. Branch, place her in a chokehold, and “forcibly propel [her] to the ground, ” causing her face to “violently contact[] the mall floor.” (Id.).

         Plaintiff Higginbotham “commented” to Cpl. Brauer that the force directed at Ms. Branch was excessive. (Id. ¶ 14). Cpl. Brauer allegedly yelled at Plaintiff to “shut the fuck up, ” approached him, called him “ignorant, ” and then struck him to the ground. (Id. ¶¶ 14-15). Cpl. Brauer allegedly pushed his knee into Plaintiff's back, manipulated his arms back, and placed him in handcuffs. (Id. ¶ 15). Plaintiff suffered injuries to his right rotator cuff and nerves in his hands. (Id. ¶ 16). He was then arrested, transported to the Anne Arundel County Police Department, and charged with disorderly conduct. (Id. ¶¶ 21-22). He claims that aside from commenting on Cpl. Brauer's degree of force, he did not interfere with Cpl. Brauer's detention of Ms. Branch. (Id. ¶ 14).

         B. Plaintiff's Actions After May 14, 2015

          “Shortly after” the altercation at the Mall, Plaintiff “attempted to” initiate an Internal Affairs complaint against Defendant Brauer with the Anne Arundel County Police Department Professional Standards Section, although he does not explain what this “attempt” entailed and when it occurred. (Id. ¶ 23).

         On November 11, 2015, acting pro se, Plaintiff issued a subpoena in his criminal case to direct the Mall to produce video surveillance. (Id. ¶ 24). On November 23, 2015, counsel for the Mall advised him that “the video tape [he] request[ed] in [his] Subpoena was turned over to the Anne Arundel County Police Department some months ago.” (Id.). On April 17, ...


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