United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
David Graham, who is self-represented, filed the
above-captioned civil rights action against Trooper Michael
Cox, Corporal Sean Harris, and Corporal J. Justice, in which
he challenged as excessive the force used against him in
connection with his arrest on January 30, 2015. ECF 1.
Defendants moved to dismiss or for summary judgment (ECF 17),
supported by a memorandum (ECF 17-1) (collectively, the
“Motion”) and exhibits.
filed several documents contradicting the defense
submissions. However, his submissions were not made under
oath. ECF 20; ECF 21. Therefore, in orders of August 15,
2018, January 14, 2019, and March 6, 2019, the Court
instructed plaintiff to supplement and verify his
submissions, under penalty of perjury, if he intended for
them to be treated as sworn, and cautioned him that if he did
not do so within the time provided, his statements would be
treated as unsworn. See ECF 25; ECF 35; ECF 37.
Through a series of unfortunate clerical errors, it appears
that plaintiff did not timely receive the Court's
docket reflects plaintiff's repeated efforts to notify
the Court of his changes in his address. See,
e.g., ECF 32; ECF 33; ECF 42. And, the docket
indicates that mail sent to plaintiff by the Clerk was
returned, apparently because it was not sent to the correct
address. See, e.g., ECF 36; ECF 38; ECF 41.
given the length of time that the Motion was pending, and
based on the lack of evidence provided by plaintiff disputing
defendants' submissions, the Court granted
defendants' Motion. ECF 39; ECF 40. However, given the
history of clerical errors, the Court also stated that it
would “reevaluate the ruling herein if, by April 29,
2019, Graham files a motion asking the Court to do so,
supported by an affidavit as described in the Court's
Memorandum Opinion of January 14, 2019.” ECF 40.
April 15, 2019, the Memorandum Opinion and Order that had
been mailed to plaintiff, was returned to the Court as
undeliverable. ECF 41. And, on April 29, 2019, the Court
received another notice of plaintiff's address change.
ECF 42. Therefore, the Memorandum Opinion and Order were
resent to Graham. On June 14, 2019, the Court received
plaintiff's “Motion to Re-Open” (ECF 43),
accompanied by Graham's Declaration, disputing
defendants' version of events. ECF 43-1.
plaintiff did not submit his motion (ECF 43) by April 29,
2019, as instructed, the delay is attributable to the return
of the Memorandum Opinion and Order and plaintiff's
address change. Thus, pursuant to my earlier Order, I will
evaluate my ruling in light of plaintiff's Declaration
and the standard that governs summary judgment.
Declaration creates a dispute of material fact as to what
occurred during plaintiff's arrest. Notably, plaintiff
avers that defendants hit and kicked him after he was
handcuffed and laying on the ground, while defendants aver
that they did not touch plaintiff after he was handcuffed.
Civ. P. 56. Rule 56(a) provides, in part: “The court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” The
Supreme Court has clarified that this does not mean that any
factual dispute will defeat the motion. “By its very
terms, this standard provides that the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original).
is “material” if it “might affect the
outcome of the suit under the governing law.”
Id. at 248. There is a genuine issue as to material
fact “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Id.; see Sharif v. United Airlines, Inc.,
841 F.3d 199, 2014 (4th Cir. 2016); Raynor v. Pugh,
817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of
Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).
party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or
denials of [his] pleadings,' but rather must ‘set
forth specific facts showing that there is a genuine issue
for trial.'” Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003)
(alteration in original) (quoting Fed.R.Civ.P. 56(e)),
cert. denied, 541 U.S. 1042 (2004). Plaintiff has
done so by filing his Declaration.
and of relevance here, the court must “view the
evidence in the light most favorable to . . . the nonmovant,
and draw all inferences in [his] favor without weighing the
evidence or assessing the witnesses' credibility.”
Dennis v. Columbia Colleton Med. Ctr., Inc., 290
F.3d 639, 644-45 (4th Cir. 2002); see Harris v.
Pittman, ___F.3d___, 2019 WL 2509240, at *5 (4th Cir.
June 18, 2019); Roland v. United States Citizenship &
Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017);
Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir.
2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir.
2013). Put another way, the district court's
“function” is not “to weigh the evidence
and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249; accord Guessous v.
Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir.
and also pertinent here, the trial court may not make
credibility determinations on summary judgment. Jacobs v.
N.C. Administrative Office of the Courts, 780 F.3d 562,
569 (4th Cir. 2015); Mercantile Peninsula Bank v.
French, 499 F.3d 345, 352 (4th Cir. 2007); Black
& Decker Corp. v. United States, 436 F.3d 431, 442
(4th Cir. 2006); Dennis, 290 F.3d at 644-45.
Therefore, in the face of conflicting evidence, such as
competing affidavits, summary judgment is generally not
appropriate, because it is the function of the fact-finder to
resolve factual disputes, including matters of witness
plaintiff is self-represented, his submissions are liberally
construed. See Erickson v. Pardus, 551 U.S. 89, 94
(2007). And, summary judgment is generally inappropriate
“where the parties have not had an opportunity for
reasonable discovery.” E.I. du Pont De Nemours and
Co. v. Kolon Industries, Inc., 637 F.3d 435,
448-49 (4th Cir. 2012); see Putney v. Likin, 656
Fed.Appx. 632, 638-39 ...