United States District Court, D. Maryland
L. Russell, III United States District Judge.
MATTER is before the Court on Defendants P.O. Chris Florio
(“Officer Florio”), P.O. John Romeo
(“Officer Romeo”), and P.O. Billy Shiflett's
(“Officer Shiflett”) (collectively, the
“Officer Defendants”) Motion for Summary Judgment
(ECF No. 36). This action under 42 U.S.C. § 1983 (2018)
arises from Plaintiffs K.V. and Theresa Rouse's
interaction with Officer Defendants in May 2016. The Motion
is ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2018). For the following
reasons, the Court will grant the Motion in part and deny it
7, 2016, Plaintiff K.V., a thirteen-year-old boy, and other
juveniles, entered a gas station (the “Gas
Station”) on 900 N. Monroe Street in Baltimore,
Maryland. (Am. Compl. ¶ 15, ECF No. 5). At around 12:00
p.m., Sergeant Michael Brinn (“Sergeant Brinn”)
and Officer Anthony Ward (“Officer Ward”), who
are not named as Defendants in the Amended Complaint,
responded to a call-for-service at the Gas Station regarding
juveniles who were fighting. (Defs.' Mot. Summ. J.
[“Defs.' Mot.”] Ex. A [“Ward Incident
Report”] at 1-2, ECF No. 36-3; Pls.' Resp.
Opp'n Defs.' Mot. Summ. J. [“Pls.'
Resp.”] Ex. 3 [“Florio Interrogs.”] at 7,
ECF No. 39-3). As Officers Brinn and Ward approached the Gas
Station, they saw male juveniles rolling and smoking an
object that appeared to be a hand-rolled cigar. (Ward
Incident Report at 2). The Gas Station owner approached
Sergeant Brinn and told him that these were the juveniles who
were smoking marijuana inside his store, prompting his 9-1-1
call. (Id.). Officer Ward smelled marijuana on one
of the juveniles, M.H., searched him, and found a hand-rolled
cigar containing green leaves. (Id.).
other officers, including Officer Defendants, arrived at the
Gas Station. (See id.; Florio Interrogs. at 7;
Defs.' Mot. Ex. D [“Shiflett Interrogs.”] at
7, ECF No. 36-6). Officer Romeo and Officer Ryan Ernst
(“Officer Ernst”) stopped three more juveniles
who Sergeant Brinn had observed inside the Gas Station who
smelled of marijuana. (Ward Incident Report at 2; Florio
Interrogs. at 14). Officer Shiflett arrived and monitored the
crowd gathered in front of the Gas Station. (See
Shiflett Interrogs. at 7).
Theresa Rouse heard about the incident and walked up to the
Gas Station, where she saw that M.H. was one of the detained
juveniles. (See Defs.' Mot. Ex. C [“Rouse
Dep.”] 16:1-6, 22:8-12, ECF No. 36-5; Pls.' Resp.
Ex. 2 [“Rouse Crim. Charges”] at 2, ECF No.
39-2). Rouse told Officer Defendants that she was the
grandmother of one of the juveniles. (Rouse Dep. 16:8-10).
Officer Defendants allege that Rouse said she was the
grandmother of M.H. specifically. (Defs.' Mot. Ex. J
[“Florio Incident Report”] at 2, ECF No. 36-12).
Officer Shiflett called M.H.'s mother, who denied that
Rouse was M.H.'s grandmother but said Rouse was dating
M.H.'s grandfather. (Id.; Rouse Dep. 22:19-21).
Officer Defendants then asked Rouse to leave and she did.
(Rouse Dep. 16:12-14).
K.V. had fled the Gas Station, but Sergeant Brinn apprehended
him in a nearby alley. (See Ward Incident Report at
2; Defs.' Mot. Ex. E [“K.V. Dep.”] 12:2-13,
ECF No. 36-7). Sergeant Brinn searched K.V. and brought him
back to the Gas Station to sit with the other juveniles.
(Ward Incident Report at 2). Rouse then returned to the scene
and saw the officers detaining K.V., her actual grandson.
(Rouse Dep. 16:16-21). A cell phone video (the “Cell
Phone Video”) taken by an onlooker offers a view of
what happened next. (Florio Interrogs. at 12; see
generally Defs.' Mot. Ex. G [“Cell Phone
Video”], ECF No. 36-9).
Florio observed two other officers searching or adjusting the
handcuffs on K.V. as K.V. sat on a curb with his head close
to his knees. (Cell Phone Video 00:01- 00:33). Rouse
approached the Officers, protesting their treatment of K.V.,
at which point Officer Florio told her to “get
back.” (Id. 00:32-00:36). Around this time,
Officer Florio also told Rouse to dispose of the lit
cigarette she had in her hand. (See Rouse Dep. 30:1-
2). As Officer Florio approached her, Rouse, who was facing
Officer Florio, “plucked” her cigarette behind
him. (Id. at 30:1-3; see Cell Phone Video
00:35-00:38). Officer Florio then moved to arrest Rouse.
(Cell Phone Video 00:38-00:40). Defendants allege Rouse
stepped back to resist arrest, whereas Rouse alleges she was
pushed back. (Florio Interrogs. at 7-8; Rouse Dep. 29:3-5).
Florio and Officer John Rosenblatt (“Officer
Rosenblatt”) then forced Rouse to the ground, Officer
Florio put his knee against her back, and pulled her hands
behind her body to handcuff her while she lay on her stomach.
(Cell Phone Video 00:38-00:49; see Florio Interrogs.
at 7-8). Officers Florio and Rosenblatt then carried Rouse by
her hands and feet to a nearby police car. (Cell Phone Video
00:38-01:04). When Officers Florio and Rosenblatt could not
get Rouse fully into the police car, they then carried her to
the Gas Station curb and sat her there. (Id.
01:04-01:45). Rouse then fell to her side and yelled that she
was injured and needed to go to the hospital. (Id.
01:45-02:37). Officer Florio then called an ambulance, which
took Rouse to the hospital. (Florio Incident Report at 2).
Officers continued to detain the juveniles, including K.V.,
at the Gas Station until their parents or guardians arrived
to pick them up. (See Ward Incident Report at 2). At
approximately 1:12 p.m., about twenty minutes after
Rouse's arrest, K.V. was released to his mother.
(Id.; K.V. Dep. 13:13-15, 14:17-19). Upon
Rouse's release from the hospital, she was charged with
second-degree assault, possession of a dangerous weapon with
intent to injure, reckless endangerment, and disorderly
conduct, all of which were eventually dismissed. (Rouse Crim.
Charges at 2-3)
November 22, 2017, Plaintiffs sued Officer Defendants, John
Doe Officers (collectively, with Officer Defendants,
“All Officer Defendants”) and John Doe
Supervisors, and the City of Baltimore (the
“City”). (ECF No. 1). On November 29, 2017,
Plaintiffs filed an eight-count Amended Complaint, alleging:
violations of the Fourth, Fifth, Sixth, and Fourteenth
Amendments to the U.S. Constitution against the
(Count I); violations of the Fourth and Fourteenth Amendments
against John Doe Supervisors (Count II); false arrest in
violation of the Fourth and Fourteenth Amendments against All
Officer Defendants (Count III); excessive force in violation
of the Fourth and Fourteenth Amendments against All Officer
Defendants (Count IV); failure to intervene to stop the
excessive force in violation of the Fourth Amendment against
All Officer Defendants (Count V); malicious prosecution in
violation of the Fourth Amendment against Defendants (Count
VI); and abuse of process in violation of the Fourth
Amendment against Defendants (Count VII). (Am. Compl.
¶¶ 31-126). Plaintiffs bring their claims under 42
U.S.C. § 1983 (2018). (Id. at 7, 15, 17, 20,
23, 25, 27). They seek compensatory and punitive damages, as
well as attorney's fees under 42 U.S.C. § 1988
(2018). (Id. ¶¶ 1, 126).
January 24, 2019, Officer Defendants filed their Motion for
Summary Judgment. (ECF No. 36). On February 7, 2019,
Plaintiffs filed an Opposition. (ECF No. 39). On February 27,
2019, Officer Defendants filed a Reply. (ECF No. 40).
Standard of Review
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party's favor. Ricci
v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)). Summary judgment is proper when the movant
demonstrates, through “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
. . . admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A).
Significantly, a party must be able to present the materials
it cites in “a form that would be admissible in
evidence, ” Fed.R.Civ.P. 56(c)(2), and supporting
affidavits and declarations “must be made on personal
knowledge” and “set out facts that would be
admissible in evidence, ” Fed.R.Civ.P. 56(c)(4).
motion for summary judgment is properly made and supported,
the burden shifts to the nonmovant to identify evidence
showing there is genuine dispute of material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986). The nonmovant cannot create a
genuine dispute of material fact “through mere
speculation or the building of one inference upon
another.” Othentec Ltd. v. Phelan, 526 F.3d
135, 141 (4th Cir. 2008) (quoting Beale v. Hardy,
769 F.2d 213, 214 (4th Cir. 1985)).
“material fact” is one that might affect the
outcome of a party's case. Anderson, 477 U.S. at
248; see also JKC Holding Co. v. Wash. Sports Ventures,
Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
2001)). Whether a fact is considered to be
“material” is determined by the substantive law,
and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248; accord
Hooven-Lewis, 249 F.3d at 265. A “genuine”
dispute concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to
return a verdict in the nonmoving party's favor.
Anderson, 477 U.S. at 248. If the nonmovant has
failed to make a sufficient showing on an essential element
of her case where she has the burden of proof, “there
can be ‘no genuine [dispute] as to any material
fact,' since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23