United States District Court, D. Maryland
L. Hollander United States District Judge
civil rights action, plaintiff David Graham complains that
Maryland State Police Corporal Michael Cox, Sergeant Sean
Harris, and former Sergeant Joshua Justice 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.
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.
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:
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.
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
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.
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.
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”made post-attack statements such as
“we got him for Spinner.” Id.
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.
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.
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.
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.
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.
Plaintiff's Response & Motion to Amend
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.
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
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.
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.
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.
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.
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 ...