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Graham v. Cox

United States District Court, D. Maryland

March 29, 2019

DAVID GRAHAM, Plaintiff
v.
TROOPER MICHAEL COX, #4760, et al., Defendants

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         In this civil rights action, plaintiff David Graham complains that Maryland State Police Corporal Michael Cox, Sergeant Sean Harris, and former Sergeant Joshua Justice[1] used excessive force during his arrest on January 30, 2015, resulting in serious injury. ECF 1 (Complaint); ECF 21 (supplement to the Complaint). Defendants have filed a corrected “Motion to Dismiss Or, In The Alternative, Motion for Summary Judgment” (ECF 17), supported by a memorandum (ECF 17-1) (collectively, the “Motion”) and several exhibits. Plaintiff opposes the Motion (ECF 20; ECF 26) and defendants replied. ECF 28.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall construe the Motion as one for summary judgment and grant it.

         I. Background

         On January 14, 2019, I issued a Memorandum Opinion (ECF 34) and Order (ECF 35), ruling on various pending motions. However, I did not rule on defendants' Motion (ECF 17). To do so, I draw on the factual summary set forth in ECF 34, at 1-5:

         A. Plaintiff's Complaint

         In his unsworn Complaint, plaintiff states that an individual named David Spratt identified him in a photo array conducted by law enforcement as part of an investigation into the January 27, 2015 burglary of Cooper's Market in Elkton, Maryland. ECF 1 at 5. On January 30, 2015, defendants, who were employees of the Maryland State Police, had information that “Plaintiff was operating a yellow Ford Mustang, Maryland Registration IAK6308.” Id. At some point, defendants observed plaintiff driving the Mustang and pursued him. Id.

         Plaintiff states that after “the pursuit was ended . . . Plaintiff surrendered, and complied with all orders of defendants, i.e. (hand in the air, etc.), yet at this time defendants collectively and violently yanked this passive Plaintiff from the vehicle.” Id. at 6. After plaintiff was “forcibly and violently thrown to the pavement” and handcuffed, defendants pressed plaintiff to the ground “while others kicked, stomped Plaintiff in his face, head, back and other areas, ” despite plaintiff being “securely restrained” at the time and posing no threat of physical harm to defendants. Id. According to plaintiff, while he was handcuffed, defendants and other law enforcement officers who were present collectively “beat Plaintiff's ribs and stomach areas”, “unnecessarily used Tasers on Plaintiff . . . until Plaintiff layed [sic] motionless on the pavement, while blood ran down his face”, “beat Plaintiff with batons”, and physically assaulted plaintiff with their hands and feet. Id. at 6-7. Plaintiff reports that, as a consequence of this attack, he experienced

massive swelling to the left and right sides of his head, face, a broken nose, 2 swollen and closed black eyes, blood spotting in the whites of both eyes, a severed left ear lobe, busted lips, broken tooth, cuts, lacerations, and abrasions and avulsions, . . . stressed tension to the back of the neck, bruised body and back areas, and extreme pain and discomfort; . . . long term migraine headaches, neck and shoulder pain, inability to perform and complete short and long term noncomplicated tasks, suffers loss of memory, and has difficulty sleeping.

Id.

         Although the Complaint does not attribute particular acts to any individual defendant, plaintiff subsequently filed an unsworn Motion to Amend (ECF 21), in which he states that, after his car came to a stop,

Plaintiff raised both hands, and Sgt Justice came back and pulled my hands behind the back and cuffed me, then Sgt. Justice pulled me out of the car and Justice and Cpl Harris (who helped Justice handcuffed [sic] Plaintiff) [sic]; . . . After Justice and Harris handcuffed Plaintiff, Justice began kicking Plaintiff on the right side, and Harris began kicking Plaintiff on the left side of the face; . . . Tfc. Cox beat Plaintiff with his stick, striking Plaintiff in the face, shoulder, and on the right side of the body.”

Id. at 2. The Motion also attributes specific acts to particular officers who are not defendants. Id. at 3.

         Plaintiff claims defendants' vicious use of force was excessive, “completely out of proportion to any legitimate needs, ” and employed with malicious and sadistic intent. Id. at 7. In particular, he believes that defendants conspired to physically assault him “in retaliation for an unrelated hit and run that involved unrelated events, and involving an unrelated law enforcement Officer MSP Trooper Spinner.” Id. In support of this assertion, plaintiff reports that “MSP Troopers”[2]made post-attack statements such as “we got him for Spinner.” Id.

         B. Defendants' Motion & Exhibits

          Defendants' Motion (ECF 17) is supported by an affidavit from each of the three defendants. ECF 17-4; ECF 17-5; ECF 17-6. Defendants' version of events differs significantly from the allegations in Graham's Complaint.

         Each defendant avers that he was assigned to assist with the pursuit of plaintiff's vehicle after other law enforcement officers (who were not named as defendants) initiated the pursuit[.] ECF 17-4 at 2; ECF 17-5 at 2; ECF 17-6 at 2. Defendants believed that plaintiff “was wanted for several felony warrants” and were “informed that [plaintiff] always carries a handgun.” Id. Plaintiff drove at high speeds and continued even after “his tires were punctured with stop sticks.” ECF 17-4 at 3. Ultimately, the pursuit ended after plaintiff's car was boxed in by law enforcement vehicles and brought to a complete stop when plaintiff “us[ed] his vehicle to ram the rear of the vehicle [defendant Cox] was riding in at the time.” Id. Cox, Harris, and Justice were all in the same vehicle, which Justice was driving. ECF 17-4 at 3.

         After the passengers in plaintiff's car were moved to safety, Cox, who possessed a “duty weapon, ” “positioned [him]self by Graham. Graham had refused to exit the vehicle, and was on the ground at that point.” Id. at 3-4. The three defendants and other officers “gave Graham verbal commands to put his hands behind his back for handcuffs. Graham failed to comply and actively resisted handcuffs by struggling to put his hands in his front waistband.” ECF 17-4 at 4; ECF 17- 5 at 3; ECF 17-6 at 3.

Cox avers, ECF 17-4 at 4:

A Cecil County Sheriff's Office deputy attempt[ed] to deploy a tazer, but it had no effect on Graham. Graham then grabbed for the deputy's tazer. . . . Due to Graham's active resistance and the concern that Graham was armed, [Cox] used [his] Monadnock Expandable Baton (MEB), attempting to jab [Graham's] right shoulder to prevent him reaching for his waistband. Graham's movements deflected this strike from his shoulder to his cheek. The blow did not seem to have any effect on Graham. [Cox] attempted strikes with [his] leg in Graham's shoulder/upper arm area.

         Thereafter, the officers present were able to place Graham in handcuffs. Id. According to Cox, “Graham appeared to be on drugs at the time of his arrest” and was provided with “immediate medical attention” by a Maryland State Police medic before EMS arrived. Id. at 5.

         Each of the three defendants avers that he did not possess a taser during the incident, nor did he (or any of the officers that he observed) use force after Graham was handcuffed. ECF 17-4 at 4; ECF 17-5 at 3; ECF 17-6 at 3. Further, each avers that “[t]he force employed was limited to what was necessary to apprehend and handcuff Graham.” Id.

         C. Plaintiff's Response & Motion to Amend [3]

         Plaintiff filed an opposition to the Motion, in which he reiterates his assertion that he offered no resistance once his vehicle was stopped and that law enforcement officers severely assaulted him after he was restrained. ECF 20 at 9-12. Although plaintiff details the various assaults he suffered and the resulting injuries, plaintiff speaks generally of “police” or unspecified “defendants” exerting the force, or he uses phrases in such a way as to remove any reference to the identity of the individual(s) committing the assault. Id. at 14-16.

         Plaintiff claims: “All defendants participated in the excessive use of force, along with defendants initially listed as ‘Cecil County Sheriff Department, et. al.'” Id. at 15. However, no such defendant was identified in the Complaint. See ECF 1 at 4-5 (naming only Cox, Harris, and Justice, and purporting to “reserve[] the right to freely amend or add additional unknown defendants, that worked at the Cecil County Sheriff's Department” but never identifying any such individual or “John Doe” defendant).

         Subsequently, plaintiff submitted a second response to the Motion. It largely contains statements of law concerning excessive force and qualified immunity and reiterates his allegations about the severity of his injuries. ECF 26.

         In addition to the foregoing, defendants contend that ample probable cause supported the arrest of Mr. Graham. ECF 17-1 at 1. Moreover, they point out that Graham was charged, and ultimately pled guilty to, the offenses of reckless engangerment, possession of crack cocaine, and fleeing and eluding the police, arising from the incident of January 30, 2015. See ECF 17-3.

         Graham filed responses in opposition to the Motion (ECF 20; ECF 26) and a Motion to Amend Complaint (ECF 21). See also note 3, supra. These submissions contained indications suggesting that he sought to swear to their contents under oath, but neither filing was made under penalty of perjury. In my Order of August 15, 2018 (ECF 25), I referenced the opposiiton (ECF 20), and the Motion to Amend (ECF 21), and said: “In view of his pro se status, the Court will allow Plaintiff the opportunity to supplement these filings by signing a declaration under penalty of perjury as to the truth of the allegations they contain if he, in fact, intends to makes these allegations under oath.” Id. But, I cautioned Graham that, if he failed to do so within 21 days, the Court would treat the filings as unsworn. Id. Graham did nto respond to the Order. See Docket.

         On September 11, 2018, defendants filed a Reply. ECF 28. They noted that Graham's period for compliance had expired, and they reiterated their request for summary judgment in their favor. Id. Graham did not respond to the Reply. See Docket.

         Both the Order and the Reply were mailed to Graham's address of record as of the time of mailing (Roxbury Correctional Institution). Neither document was returned to the Court as undeliverable, nor is there any basis ...


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