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Fish v. Baltimore City Police Department

United States District Court, D. Maryland

December 9, 2019

HOWARD FISH, JR. Plaintiff,


          Catherine C. Blake, United States District Judge

         Now pending are defendants Hyatt Hotels Corporation of Maryland ("Hyatt") and David Peckoo's[2] motion for summary judgment, (Hyatt/Peckoo Mot., ECF No. 68), [3] and 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 necessary.[4]


         This 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 leave.

         Video footage from the lounge depicts the following series of events.[5] 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).

         At this 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).

         Immediately after this altercation, the Baltimore City Police Department was called. (Brown Depo. at 53:7-13, [6] 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 6:43-51).[7]

         Fish 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).[8]-[9]

         Fish's remaining claims against Peckoo and Hyatt are Battery (Count II) and TIED (Count VI).[10], [11] 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).


         Federal 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. 1993)).


         I. Claims against Hyatt and Peckoo

         "When 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).

         A. Battery

         In 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).[12] 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.

         Fish 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).

         While 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.

         Fish 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).[13] 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).

         Based 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[14] 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 battery claim.

         B. Intentional Infliction of ...

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