United States District Court, D. Maryland
HOWARD FISH, JR. Plaintiff,
BALTIMORE CITY POLICE DEPARTMENT, et al.,  Defendants.
Catherine C. Blake, United States District Judge
pending are defendants Hyatt Hotels Corporation of Maryland
("Hyatt") and David Peckoo's motion for
summary judgment, (Hyatt/Peckoo Mot., ECF No. 68),
defendants Kevin Tode and Christian Allen's motion for
partial summary judgment, (Tode/Allen Mot., ECF No. 70). The
motions are fully briefed, and no hearing is
AND PROCEDURAL HISTORY
action stems from a series of altercations that occurred late
one night at the Hyatt Regency Inner Harbor Hotel ("the
hotel") in Baltimore, Maryland. On or about June 7,
2014, plaintiff Howard Fish was invited to the hotel by his
friend, Spencer Corbett, who was staying there as a guest.
When Fish arrived, he, Corbett, and several other friends
dined and drank in the Bistro 300 Lounge ("the
lounge") in the hotel. Sometime thereafter, two hotel
employees approached Fish and his group, informed them that
the lounge was closing, and told them that they would need to
footage from the lounge depicts the following series of
events. At approximately 1:55 a.m., two hotel
employees approach Fish and his group. (Video Footage of
Bistro 300 Lounge ("Bistro Video") at 8:57-9:19,
Pl's Opp'n to Hyatt/Peckoo Mot. Ex. 1 (on file with
the court)). The hotel employees speak with Fish and his
group for approximately one minute. After the exchange, the
hotel employees walk away. (Id. at 9:19-10:45).
Another minute later, the male hotel employee (later
identified as Rodney Brown) approaches the group again,
shortly followed by a man later identified as Peckoo, a
plain-clothed security officer employed by the hotel. While
Brown speaks to the group, Peckoo first observes the
interaction from several feet away, (id. at
11:47-12:40), then walks closer, (id. at 12:45). As
Peckoo approaches, Fish, who had been seated, stands up and
points his finger at Peckoo. (Id. at 12:50). Other
members of the group also stand up, and the situation quickly
escalates. Fish continues to speak to Peckoo while pointing
his finger at him. A female member of the group appears to be
pushed onto a couch by either Fish or another male member of
the group. (Id. at 13:07).
point, a pillar in the center of the lounge partially
obscures the altercation from view, but it is apparent that
the situation becomes increasingly heated. At one point, Fish
and Peckoo are inches apart. (Id. at 13:38). Two
female members of Fish's group are shown holding
Fish's arms, apparently trying to hold him back, as
Peckoo backs up. (Id. at 13:38-14:04). The women let
go of Fish, Fish continues to advance on Peckoo, and Peckoo
grabs Fish's arm. (Id. at .14:06-14:11). Fish
and Peckoo then begin shoving each other. (Id. at
14:11-14:29). The shoving abates, but the two men continue
their verbal exchange. (Id. at 14:29-15:50). A
little over a minute later, a male member of Fish's group
grabs Fish's arm, appearing to hold him back from Peckoo.
(Id. at 15:55). The man then gets between Peckoo and
Fish, and the three men move behind the pillar. (Id.
at 16:00). When the men come back into view, they are again
shoving each other, and a female member of Fish's
group-who was between Peckoo and Fish-falls to the floor.
(Id. at 16:03). With his arms up, Fish again
advances on Peckoo, who takes a few steps back and then
extends his arm towards Fish's face or throat.
(Id. at 16:05-08). Fish knocks Peckoo's arm
away, puts his hands near Peckoo's face, and continues to
advance, (Id. at 16:09-12). Fish then pushes Peckoo
out of the frame. (Id. at 16:13). Peckoo moves
quickly at Fish, and Fish punches Peckoo in the face.
(Id. at 16:14-16). The two men are then held back by
others, and Peckoo exits the frame. (Id. at 16:35).
The last two minutes of the video show Fish speaking with his
group, some of whom still appear to be restraining him, and
interacting with Brown. (Id. at 16:35-18:55).
after this altercation, the Baltimore City Police Department
was called. (Brown Depo. at 53:7-13,  Pl's Opp'n to
Tode/Allen Mot. Ex. 3, ECF No. 74-2). The police arrived at
approximately 2:15 a.m. (Id. at 54:7-9). Video
footage of another area of the hotel captured Fish's
interaction with the police. (Video Footage of hotel hallway
("Hallway Video") at 0:01, Pl's Opp'n to
Hyatt/Peckoo Mot. Ex. 2 (on file with the court)). The video
depicts the following events. Fish is standing in the
hallway, apparently speaking with four police officers. The
police officer on Fish's far right (later identified as
Allen) puts his hand on Fish's arm, and then the police
officer to Fish's left grabs Fish's other arm. The
two officers appear to be attempting to put Fish's hands
behind his back, which Fish appears to resist. (Id.
at 00:08-13). Fish bends over at the waist, and Fish and the
two officers fall to the ground. A scuffle ensues on the
floor, which is only partially visible, as other officers are
standing over Fish. (Id. at 00:16-18). Fish remains
on the floor, initially face down, but then is rolled over.
(Id. at 00:51). At this point, Fish is largely
blocked from view, but is clearly sitting up. (Id.
at 00:55). After several minutes, during which Fish remains
seated on the floor and apparently handcuffed, (id.
at 00:55-6:40), two officers lift Fish to his feet from
either side and lead him out of the frame. (Id. at
filed a complaint in this court on May 24, 2017. He filed his
first amended complaint on June 25, 2017, asserting claims
against defendants Mayor and City Council of Baltimore
("Baltimore City"), Baltimore City Police
Department ("BPD"), Tode, Allen, Hyatt, Peckoo,
Bistro 300 Lounge, and Dave Peckoo Security Company. On
January 10, 2018, the court dismissed all claims against
Baltimore City, the state law claims against BPD, and the
assault claims against Hyatt and Peckoo. (Memorandum and
Order, ECF Nos. 36, 37). Fish filed a second amended
complaint on February 1, 2018, reasserting claims against all
defendants except Baltimore City. (ECF No. 40).-
remaining claims against Peckoo and Hyatt are Battery (Count
II) and TIED (Count VI).,  Fish's claims against Tode
and Allen are: Battery (Count II); Violation of Maryland
Declaration-of Rights, Articles 24 and 26 (Count HI); False
Arrest (Count IV); Malicious Prosecution (Count V);
Intentional Infliction of Emotional Distress
("IIED") (Count VI); Negligence (Count VII); and
Violation of Civil Rights (Count VIII).
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "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."
Fed.R.Civ.P. 56(a) (emphases added). "A dispute is
genuine if 'a reasonable jury could return a verdict for
the nonmoving party.'" Libertarian Party of Va.
v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting
Dulaney v. Packaging Corp. of Am, 673 F.3d 323, 330
(4th Cir. 2012)). "A fact is material if it 'might
affect the outcome of the suit under the governing
law.'" Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly,
"the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment[.]"
Anderson, 477 U.S. at 247-48 (emphasis in original).
The court must view the evidence in the light most favorable
to the nonmoving party, Tolan v. Cotton, 572 U.S.
650, 656-57 (2014) (per curiam) (citation and quotation
omitted), and draw all reasonable inferences in that
party's favor, Scott v. Harris, 550 U.S. 372,
378 (2007) (citations omitted); see also Jacobs v. N.C.
Admin, Office of the Courts, 780 F.3d 562, 568-69 (4th
Cir. 2015). At the same time, the court must "prevent
factually unsupported claims and defenses from proceeding to
trial." Bouchat v. Bali. Ravens Football Club,
Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting
Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir.
Claims against Hyatt and Peckoo
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment." Scott, 550 U.S. at 380. Summary
judgment is proper when there is evidence "of undisputed
authenticity that shows some material element of the
plaintiffs account to be blatantly and demonstrably
false." Harris v. Pittman, 927 F.3d 266, 276
(4th Cir. 2019) (quoting Blaylock v. City of
Philadelphia, 504 F.3d 405, 414 (3d Cir. 2007))
(internal quotation marks omitted). When "the record
contains an unchallenged videotape capturing the events in
question, [the court] must only credit the plaintiffs version
of the facts to the extent it is not contradicted by the
videotape." Iko v. Shreve, 535 F.3d 225, 230
(4th Cir. 2008).
Count I of the Second Amended Complaint, Fish claims that
Peckoo, "acting within the scope of his employment
intentionally verbally and physically assaulted the
plaintiff." (Second Am. Compl. ¶ 54). Over the
course of this litigation, Fish has repeatedly described an
altercation in which Peckoo was the initial aggressor.
(Second Am. Compl. ¶¶ 35-38; Fish Depo. at
87:18-93:12, Hyatt/Peckoo Mot. Ex. A, ECF No. 68-1; Pl's
Opp'n to Hyatt/Peckoo Mot. at 2, ECF No. 76-1). The video
evidence, however, contradicts Fish's claims.
states that he first saw Peckoo when he "rushed to the
table as a very aggressive and angry stranger." (Second
Am. Compl. ¶ 35). The video, however, shows Peckoo walk
slowly toward Fish and his group, (Bistro Video at 12:07),
observe a conversation between Brown and the group from
several feet away, (id. at 12:07-40), and then walk
closer to directly interact with the group, (id. at
12:45). Peckoo's approach to Fish and his group cannot be
reasonably interpreted as "rushing" or "very
aggressive." Fish then claims that Peckoo "rushed
plaintiff, pushing him whereupon plaintiff responded in kind
in an act of self-defense" and "quickly
retreated." (Second Am. Compl. ¶ 38). This
recitation of facts implies a brief altercation in which Fish
only makes physical contact with Peckoo once. The video, by
contrast, shows an altercation that escalates over the course
of several minutes, during which Fish never appears to
retreat. Indeed, the video shows Peckoo standing still as
Fish moves close to him, (Bistro Video at 13:37), and then
shows Peckoo backing away from Fish, (id. at
14:00-12). The only time Peckoo appears to "rush"
at Fish is after the physical altercation is already
underway, just before Fish punches Peckoo in the face.
(Id. at 16:13-16:16).
it is not clear from the video who touched whom first,
Fish's body language was plainly more aggressive earlier
in the altercation: When the men first begin interacting
verbally, Peckoo stands with his hands by his sides or in his
pockets, while Fish repeatedly points his finger in
Peckoo's face, (Bistro Video at 13:02-16); when Peckoo
backs away with his hands by his sides, Fish advances as his
friends hold back his arms, (id. at 13:30-14:12);
and when Peckoo finally appears to make physical contact with
Fish, it is by grabbing Fish's outstretched arm,
(id. at 14:10-15). The court thus finds that
Fish's claim that Peckoo was the initial aggressor is not
supported by the video evidence.
also makes two claims in the Second Amended Complaint that he
seemingly retracted during his deposition. First, Fish states
in the Complaint that "Peckoo pushed Mr. Corbett"
before the altercation between Fish and Peckoo began. (Second
Am. Compl. ¶ 37). Fish testified at his deposition,
however, that Peckoo never grabbed or hit Corbett, (Fish
Depo. at 93:17-22). Second, Fish states in the Complaint
that "one of their female companions [was] knocked to
the floor by Dave Peckoo." (Second Am. Compl. ¶
37). But in his deposition, Fish stated that the woman was
not pushed to the floor by Peckoo. (Fish Depo. at 99:12-22).
on the evidence in the record, the court finds that no
reasonable jury could believe Fish's version of events,
and thus cannot "adopt that version of the facts for
purposes of ruling on a motion for summary judgment."
Scott, 550 U.S. at 380. Viewing "the facts in
the light depicted by the videotape," id. at
380-81, the court finds that any harmful or offensive contact
by Peckoo was in justifiable self-defense. See
Richardson v. McGriff, 361 Md. 437, 453 (2000)
("Self-defense is a defense to the common law tort of
battery.") (internal citation omitted). Accordingly,
Hyatt and Peckoo are entitled to summary judgment on the
Intentional Infliction of ...