v. Brito, Civil Case No. ELH-17-2670

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen L. Hollander United States District Judge
PartiesB.N.S. minor child by her parents and next friends Christine and Brian Stuart Plaintiff v. VICTOR BRITO, et al. Defendants
Decision Date06 November 2018
Docket NumberCivil Case No. ELH-17-2670

B.N.S. minor child by her parents
and next friends Christine and Brian Stuart Plaintiff
v.
VICTOR BRITO, et al.
Defendants

Civil Case No. ELH-17-2670

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

November 6, 2018


MEMORANDUM OPINION

Plaintiff B.N.S., a minor child, by her parents and next friends, Christine and Brian Stuart, has filed a civil rights suit against multiple defendants. In an Amended Complaint (ECF 32), filed with exhibits (ECF 34), B.N.S. sued Victor Britto, in his official capacity as Police Chief of the Hagerstown Police Department; the Hagerstown City Police Department ("Department"), a municipal corporation; Police Officer Andrew Eichelberger, Sergeant Casey Constable, and Police Officer Zachary Rowe, and unknown officers, in their personal and official capacities; Bob Bruchey, in his official capacity as Mayor of the City of Hagerstown; the City of Hagerstown, a Maryland municipal corporation (the "City"); and five members of the City Council of Hagerstown, in their official capacities: Kristin Aleshire, Paul Corderman, Emily Keller, Lewis Metzner, and Donald Munson.

The suit is rooted in events that occurred on September 18, 2016, when B.N.S., then a 15-year-old riding a bicycle, was involved in a motor vehicle accident in Hagerstown. ECF 32, ¶ 23; ECF 42 at 3. Plaintiff alleges that police officers employed by the Hagerstown Police Department arrived at the scene and used excessive and violent force against B.N.S., handcuffed

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her, arrested her, and unlawfully detained her. ECF 32, ¶¶ 1-6, ¶¶ 23-35. Portions of the incident were captured on video. See ECF 34-1; ECF 40.

The Amended Complaint contains seven counts. Count I asserts a claim against all defendants, alleging the use of excessive force, in violation of the Fourth Amendment, pursuant to 42 U.S.C. § 1983. Count II lodges a claim against all defendants for unlawful seizure, in violation of the Fourteenth Amendment. Count III alleges a claim against all defendants for false arrest, pursuant to 42 U.S.C. § 1983. In Count IV, plaintiff asserts a claim against all defendants for intentional infliction of emotional distress, under 42 U.S.C. § 1983. Count V is lodged against all defendants, citing "28 USC 1983 (Monell custom or practice)." In Count VI, plaintiff asserts a claim, apparently against "Defendant Police Department" (see ¶ 63), for the use of excessive force, in violation of the 8th Amendment. Count VII contains a claim, apparently against the Police Department (¶ 78), for "Violation of Maryland Declaration of Rights, Article 24." Plaintiff seeks compensatory and punitive damages.

Defendants have filed a pre-discovery motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment under Rule 56. ECF 37. It is supported by a memorandum (ECF 37-2) (collectively, the "Motion") and multiple exhibits. See ECF 38; ECF 40; ECF 46. B.N.S. opposes the Motion (ECF 42) with a Memorandum (ECF 42-1) (collectively, "Opposition"), and has submitted plaintiff's affidavit. ECF 45. Defendants replied (ECF 44, "Reply") and submitted additional exhibits. See ECF 46; ECF 49. Plaintiff filed a surreply, without leave of court. See ECF 47. See Local Rule 105.2(a).

No hearing is necessary to resolve the Motion. See Local Rule 105(6). I shall construe the Motion as one to dismiss. And, for the reasons that follow, I shall grant the Motion in part and deny it in part.

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I. Factual Background1

On September 18, 2016, officers from the Hagerstown City Police Department arrived at the scene of an accident involving B.N.S., a minor child who had been riding her bicycle, and a motor vehicle. ECF 32, ¶ 1. B.N.S. alleges that she was "struck by a motorist and knocked unconscious for a few minutes" as a result of the incident. Id. ¶ 23. Emergency medical personnel arrived at the scene, but B.N.S. refused transport to the hospital. Id. ¶¶ 1, 25.

Police officers, including P.O. Andrew Eichelberger, Sergeant Casey Constable, and P.O. Zachary Rowe, arrived at the scene, and two of the officers were operating body cameras. ECF 34-1; ECF 38-3, ¶ 10, ECF 38-5, ¶ 8; ECF 42-1 at 3. B.N.S. alleges that "[t]he video shows police refused to permit [B.N.S.] to contact her parents or family police friend." ECF 32, ¶ 27. According to B.N.S., when she tried to get back onto her bicycle, the officers forcibly "yanked" her from it (ECF 32, ¶ 27) and detained her. Id. at 28. Eventually, B.N.S. was placed under arrest, handcuffed, and placed into the police cruiser. ECF 32, ¶¶ 28-30; ECF 34-1, ECF 38-3, ECF 38-5. While B.N.S. was in the police cruiser, the officers used pepper spray at least one time. Id.; ECF 32, ¶ 30. Eventually, B.N.S. was transported to the Hagerstown jail and subsequently released to the custody of a parent. ECF 32, ¶¶ 31, 33-34.2

Plaintiff claims that she suffered bilateral eye injuries from the use of pepper spray, multiple contusions, whiplash, abdominal pain, and other injuries. Id. ¶ 34. She seeks compensatory and punitive damages. ECF 32 at 19.

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II. Legal Standards
A.

As noted, defendant has moved to dismiss or, in the alternative, for summary judgment. ECF 37. A motion styled in the alternative, to dismiss or for summary judgment, implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery Cnty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011).

Ordinarily, a court "is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court has discretion to consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, "the motion must be treated as one for summary judgment under Rule 56," and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). But when, as here, the movant expressly captions its motion "in the alternative," as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court "does not have an obligation to notify parties of the obvious." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).

A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C Alan Wright & Arthur Miller et al., Federal Practice & Procedure § 1366 (3d ed.). This discretion "should be exercised with great caution and attention to the parties' procedural rights." Id. In general, courts are guided by whether consideration of extraneous

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material "is likely to facilitate the disposition of the action," and "whether discovery prior to the utilization of the summary judgment procedure" is necessary. Id.

Summary judgment is usually inappropriate "where the parties have not had an opportunity for reasonable discovery." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448-49 (4th Cir. 2011); see Putney v. Likin, 656 Fed. Appx. 632, 638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014). However, "the party opposing summary judgment 'cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.'" Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)); see also Dave & Buster's, Inc. v. White Flint Mall, LLP, 616 Fed. Appx. 552, 561 (4th Cir. 2015). To raise adequately the issue that discovery is needed, the nonmovant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, "for specified reasons, it cannot present facts essential to justify its opposition," without needed discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing the affidavit requirement of former Rule 56(f)). If a nonmoving party believes that further discovery is necessary before consideration of summary judgment, the party who fails to file a Rule 56(d) affidavit does so at her peril, because "'the failure to file an affidavit ... is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.'" Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961); see also Dave & Buster's, Inc., 616 Fed. Appx. at 561. But, the nonmoving party's failure to file a Rule 56(d) affidavit does not obligate a court to issue a summary judgment ruling that is obviously premature.

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Although the Fourth Circuit has placed "'great weight'" on the Rule 56(d) affidavit, and has said that a mere "'reference to Rule 56(f) [now Rule 56(d)] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for [an] affidavit,'" the appellate court has "not always insisted" on a Rule 56(d) affidavit. Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961). According to the Fourth Circuit, the failure to file an affidavit may be excused "if the nonmoving party has adequately informed the district court that the motion is pre-mature [sic] and that more discovery is necessary," and the "nonmoving party's objections before the district court 'served as the functional equivalent of an affidavit.'" Id. at 244-45 (quoting First Chicago Int'l v. United Exchange Co., Ltd., 836 F.2d 1375, 1380-81 (D.C. Cir. 1988)).

Plaintiff does not make clear her position as to the Motion, and she addresses...

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