Brissett v. Paul

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORMAN BRISSETT,
Plaintiff-Appellant,

v.

BRIAN C. PAUL, Officer, Badge No.
5534, individually and in his
official capacity as a Rockville City
Police Officer; CAPTAIN ENGLAND,
Individually and in his official
capacity as a Rockville City Police
Officer; CHARLES HOLZBERGER,
Lieutenant, Rockville City Police
Department, individually and in his
official capacity; THE SEVERAL
UNNAMED ROCKVILLE CITY POLICE
OFFICERS, with the Rockville City
No. 97-6898
Police Department, individually and
in their official capacity as
Rockville City Police Officers;
TERRANCE TRESCHUK, Chief of
Police; THE CITY OF ROCKVILLE,
MARYLAND; C. JAN GRAHAM,
Lieutenant, former Deputy
Commander for the Rockville
District Station, individually and in
her official capacity as a
Montgomery County Police Officer;
EDWARD CLARKE, Captain,
individually and in his official
capacity as a Montgomery County
Police Officer; J. P. QUINN,
Lieutenant, individually and in his
official capacity as a Montgomery
County Police Officer; RODERICK
STEPHENS, Officer, individually and
in his official capacity as a
Montgomery County Police Officer;
DONALD E. MATES, Director, Office
of Internal Affairs for Montgomery
County, individually and in his
official capacity as a Montgomery
County Police Officer; THE SEVERAL
UNNAMED MONTGOMERY COUNTY
POLICE OFFICERS, with the
Montgomery County Police
Department, individually and in
their official capacity as
Montgomery County Police
Officers; CLARENCE EDWARDS,
Former Chief of Police for
Montgomery County, in his official
capacity; MONTGOMERY COUNTY,
MARYLAND,
Defendants-Appellees,

BALTIMORE POLICE DEPARTMENT,
Movant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-95-866-AW)

Submitted: February 10, 1998

Decided: April 6, 1998

Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.

_________________________________________________________________

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Mayda Colon Tsaknis, Rockville, Maryland, for Appellant. Charles
W. Thompson, Jr., County Attorney, Linda B. Thall, Chief Counsel,
Rockville, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Norman Brissett, a Jamaican-born Montgomery County, Maryland,
police officer, was driving an unmarked police cruiser on his way to
a dental appointment when the cars in front of him came to a stop at
an intersection with a red light. When the light turned green, several
vehicles in front of Officer Brissett moved through the intersection,
but a white van immediately in front of Officer Brissett's vehicle
stopped in the middle of the intersection. Officer Brissett and several
drivers behind him blew their horns to encourage the van driver to
proceed through the intersection because the light was still green.1

In response to the horn blowing, Defendant Brian C. Paul, a Cauca-
sian Rockville, Maryland police officer, approached Officer Brissett's
vehicle and began shouting about Officer Brissett's horn-blowing.2
An argument between the two officers ensued. During the argument,
Officer Paul asked Officer Brissett several times for his driver's
_________________________________________________________________
1 Unbeknownst to Officer Brissett, there was an accident in the inter-
section which caused the white van to stop.
2 Officer Paul had been going to the scene of the accident when the
altercation with Officer Brissett began.

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license. Officer Brissett responded that he had identification on him,
but never physically handed the license over and never informed Offi-
cer Paul that he was a police officer. Officer Brissett claims that he
did not retrieve his identification because it was located on the same
side of his body as his personal weapon, and considering Officer
Paul's state of mind, he feared for his personal safety if Officer Paul
saw the weapon. Officer Paul eventually asked Officer Brissett to step
out of his vehicle. Shortly thereafter, Officer Paul arrested Officer
Brissett. During the arrest, Officer Paul pushed Officer Brissett
against his vehicle and then handcuffed him and escorted him to the
back seat of Officer Paul's police cruiser.

Officer Brissett filed suit pursuant to 42 U.S.C.§§ 1981, 1983,
1985, & 1988 (1994). He alleged violations of his First, Fourth, Fifth,
Eighth, and Fourteenth Amendment rights and raised various com-
mon law claims.3 By order dated November 10, 1995, the district
court granted Defendants' motion for partial dismissal. The court dis-
missed Officer Brissett's state law claims for assault, battery, false
arrest, false imprisonment, and slander because Officer Brissett failed
to file a notice of claim within 180 days as required by the Maryland
Local Government Tort Claims Act. See Md. Code Ann., Cts. & Jud.
Proc. § 5-404(a) (1995). The court also dismissed Officer Brissett's
claims of First and Eighth Amendment violations and his claims
under 42 U.S.C. §§ 1985, 1986 (1994), for failure to state a claim.
Finally, the court dismissed the claims against Defendants Clarence
Edwards and Terrance Treschuk, in their official capacities as Chiefs
of Police, because Officer Brissett named the local governments that
employed them and naming the local officials in their official capaci-
ties was, therefore, redundant and unnecessary. 4

Thereafter, the district court granted Defendants' motion to bifur-
cate the individual claims against Officer Paul from the claims against
the city and Officer Paul in his official capacity. Defendants then
moved for summary judgment, which the district court granted by
order dated May 27, 1997. The court granted the motion as to Officer
_________________________________________________________________
3 Officer Brissett voluntarily abandoned his Fifth and Fourteenth
Amendment claims.
4 The only claims remaining were Officer Brissett's claims against
Officer Paul and the City of Rockville under 42 U.S.C. §§ 1981, 1983.

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Brissett's § 1981 claim of discriminatory arrest, finding that he failed
to put forth any evidence of intentional discrimination. The court also
dismissed Officer Brissett's § 1983 claims. The court found Officer
Brissett's claim that Officer Paul lacked probable cause to arrest him
meritless because Officer Brissett's act of blowing the horn violated
Md. Code Ann., Transp. § 22-401(b) (1992). 5 In addition, Officer
Brissett failed to physically surrender his license upon demand, which
violated Md. Code Ann., Transp. § 16-112(a), (c) (1992).6 The court
found that Officer Brissett's violation of the Maryland traffic laws,
coupled with the tense situation resulting from the argument, gave
Officer Paul probable cause to arrest Officer Brissett.7 The court also
found no merit to Officer Brissett's claim that Officer Paul used
excessive force to effectuate the arrest when Officer Paul pushed
Officer Brissett against the vehicle to handcuff him and then held his
arms in such a way as to inflict pain because there was no proof that
Officer Brissett suffered any major physical injuries. Furthermore,
Officer Brissett admitted in court that his physical injuries were minor
and that his injuries were "more emotional" than physical. In addition
to finding both claims under § 1983 meritless, the court also found
that Officer Paul was entitled to qualified immunity. Accordingly,
because the City of Rockville's liability was derivative and because
the court dismissed all claims against Officer Paul in his individual
capacity, the court also dismissed all claims against the City of Rock-
_________________________________________________________________

5 The Maryland Vehicle Law provides that the driver shall only use the
horn "when reasonably necessary to insure safe operation." Md. Code
Ann., Transp. § 22-401(b). The district court found that Officer Brissett
blew his horn out of frustration and impatience and thereby violated the
statute.
6 The Maryland Vehicle Law provides that "`display' means the man-
ual surrender of the licensee's license into the hands of the demanding
officer for inspection." Md. Code Ann., Transp.§ 16-112(a). The statute
also provides that every vehicle driver must "display the license to any
uniformed police officer who demands it." Md. Code Ann., Transp. § 16-
112(c).
7 The court also took note of Md. Code Ann., Transp. § 26-202(a)(2)(I)
(1992), which provides that a police officer may make a warrantless
arrest of an individual who violates a Maryland Vehicle Law "within the
view or presence of the officer, and . . . the person does not furnish satis-
factory evidence of identity."

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ville and Officer Paul in his official capacity. Officer Brissett timely
noted an appeal.8

I.

This court reviews de novo a district court's Fed. R. Civ. P.
12(b)(6) dismissal. See Mylan Laboratories, Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993).

A.

Officer Brissett contends that the district court erred when it dis-
missed his state law claims for failure to comply with the 180 day
Notice of Claim requirement found in the Maryland Local Govern-
ment Tort Claims Act. See Md. Code Ann., Cts. & Jud. Proc. § 5-
404(a). Although he concedes that he notified the municipality 181
days after the incident with Officer Paul, he alleges that Defendants
were not prejudiced by his delay. Thus, because Defendants failed to
establish prejudice under § 5-404(c), Officer Brissett claims that the
district court should have waived the notice requirement and evalu-
ated his claims.

The notice requirement of § 5-404(c) may be waived "unless the
defendant can affirmatively show that its defense has been prejudiced
by lack of required notice, upon motion and for good cause shown."
Thus, to obtain a waiver of the notice requirement, Officer Brissett
must establish good cause for his failure to comply, and the Defen-
dants must be unable to establish that they were prejudiced by the
default. See Md. Code Ann., Cts. & Jud. Proc. § 5-404(c). Officer
Brissett failed to proffer any reason for failing to meet the notice
requirement. Accordingly, the district court did not err in refusing to
waive the notice requirement and in dismissing Officer Brissett's state
law claims for failing to comply with the notice of claim statute.
_________________________________________________________________
8 Officer Brissett's notice of appeal did not specifically identify the dis-
trict court's November 10, 1995, order; however, because Officer Bris-
sett's timely notice of appeal was "from the judgment as a whole, this
court obtained jurisdiction to review the entire judgment." LaFaut v.
Smith, 834 F.2d 389, 394 n.9 (4th Cir. 1987).

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B.

Officer Brissett next challenges the district court's dismissal of his
First Amendment claim. The court properly dismissed the claim,
however, because Officer Brissett failed to allege any facts in his
Complaint to establish that his speech was restrained. On appeal,
Officer Brissett states that the use of his horn to tell the driver in front
of him to move along constituted protected speech. He also contends
that his statements to Officer Paul during the altercation constituted
protected speech. However, Officer Brissett failed to raise these argu-
ments before the district court. He is therefore precluded from raising
them for the first time on appeal. See Singleton v. Wulff, 428 U.S.
106, 120-21 (1976); Bakker v. Grutman, 942 F.2d 236, 242 (4th Cir.
1991).

C.

The district court dismissed Officer Brissett's conspiracy claims
brought under 42 U.S.C. §§ 1985, 1986, because Officer Brissett
failed to allege facts suggesting a meeting of the minds or a conspir-
acy. Rather, Officer Brissett's Complaint contained conclusory alle-
gations that Defendants conspired with one another to deprive him of
his constitutionally protected rights, to deny a citizen's complaint he
filed against Officer Paul, and to find him guilty of the charges of
non-conformance to law and conduct unbecoming a police officer. To
prove a § 1985 conspiracy, Officer Brissett must show an agreement
or a meeting of the minds among the Defendants to violate his consti-
tutional rights. See Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir.
1995). The threshold requirement is very high, and this court "has
rarely, if ever, found that a plaintiff has set forth sufficient facts to
establish a section 1985 conspiracy." See id. Mere conclusory allega-
tions "unsupported by a factual showing of participation in a joint
plan of action, are insufficient to support a § 1985(3) action." See id.
As the district court properly found, Officer Brissett offered only
unsupported, conclusory allegations that lacked a factual basis. Thus,
this claim was properly dismissed.

The insufficiency of Officer Brissett's § 1985 claim renders insuffi-
cient his § 1986 claim. Section 1986 provides a cause of action
against any party with knowledge of a § 1985 conspiracy who fails

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to attempt to prevent the conspiracy. Officer Brissett's claim fails
because a § 1986 claim is dependent on the existence of a § 1985
claim. See Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985).
Because the § 1985 claim is meritless, the§ 1986 claim fails as well.

II.

We review an order granting summary judgment de novo. See
Jones v. Wellham, 104 F.3d 620, 626 (4th Cir. 1997). Summary judg-
ment is properly granted if the movant can show that there is no mate-
rial fact in dispute when viewing the evidence in the light most
favorable to the nonmovant. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256-57 (1986). If the nonmovant fails to establish an essen-
tial element of his claim, summary judgment is appropriate. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

A.

Officer Brissett contends that the district court erred by granting
summary judgment on his 42 U.S.C. § 1981 claim. Taking the facts
in the light most favorable to Officer Brissett, the record reveals that:
(1) several motorists, including Officer Brissett, blew their horns after
the white van failed to proceed through the intersection; (2) Officer
Brissett was located in the line of traffic immediately behind the
white van; (3) Officer Brissett was the only black person in the line
of traffic; and (4) the only motorist that Officer Paul questioned or
arrested about blowing the car horn was Officer Brissett. These facts,
however, are not sufficient to establish intentional discrimination as
required to state a claim under § 1981. Officer Brissett has provided
nothing more than conclusory allegations of discrimination. There is
no evidence that Officer Paul's motive for approaching Officer Bris-
sett's vehicle, which happened to be the first vehicle located directly
behind the white van, was racially motivated. Accordingly, the district
court properly granted summary judgment on this claim. See Simpson
v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) ("[C]onclusory allegations
of discrimination and harassment do not state a claim upon which
relief can be granted.").

B.

Officer Brissett next argues that Officer Paul did not have probable
cause to arrest him. A district court's determination of probable cause

8
under the Fourth Amendment is an issue of law that this court reviews
de novo. See United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir.
1996). A warrantless arrest is valid if the arresting officer has proba-
ble cause to believe the suspect has committed an offense, and the
officer's decision that probable cause is present is reviewed under a
totality of the circumstances test. See Illinois v. Gates, 462 U.S. 213,
238 (1983). The district court's determination of probable cause will
be sustained if the court had a substantial basis for its conclusion. See
Gates, 462 U.S. at 236; United States v. Depew, 932 F.2d 324, 327
(4th Cir. 1991).

The district court concluded that Officer Paul had probable cause
to arrest Officer Brissett because Officer Brissett blew his horn twice
in violation of Md. Code Ann., Transp. § 22-401(b), and because he
refused to display his license when requested to do so by Officer Paul
in violation of Md. Code Ann., Transp. § 16-112(a), (c). Even if Offi-
cer Paul did not actually witness Officer Brissett blow his horn, as
Officer Brissett contends on appeal, Officer Paul did hear the sound
of horns coming from the row of traffic. Subsequently, during the
argument between the two officers, Officer Brissett admitted he had
blown his horn twice. This admission gave Officer Paul probable
cause to arrest Officer Brissett. Furthermore, under Md. Code Ann.,
Transp. § 26-202(a)(2)(I), Officer Brissett's refusal to display his
license and failure to provide any identification gave Officer Paul
authority to arrest Officer Brissett. Therefore, because there was sub-
stantial evidence to support the district court's determination that the
arrest was supported by probable cause, the district court properly
granted summary judgment on this claim.

C.

Next, Officer Brissett contends that Officer Paul's acts of pushing
him into the vehicle, handcuffing him, and then holding his arms in
such a way as to inflict pain constituted excessive force. A claim that
a police officer used excessive force in attempting to make an arrest
is analyzed under the Fourth Amendment reasonableness standard.
See Graham v. Connor, 490 U.S. 386, 395 (1989)."Not every push
or shove, even if it may later seem unnecessary in the peace of a
judge's chambers'" violates the Fourth Amendment. Id. at 396 (quot-
ing Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)). Indeed,

9
"[t]he reasonableness of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight. . . ." Id. at 397. Force is not excessive
if it is objectively reasonable under the circumstances facing the offi-
cer, without regard to his underlying intent. See id. Thus, "[a]n offi-
cer's evil intentions will not make a Fourth Amendment violation out
of an objectively reasonable use of force." Id.

As the district court correctly found, there is no evidence that Offi-
cer Brissett sustained any major physical injury, and he admitted that
his injuries were more emotional than physical. Furthermore, in light
of the heated nature of the argument between the two officers and the
fact that Officer Brissett failed to identify himself to Officer Paul, we
agree with the district court that the minimal amount of force used to
effectuate the arrest was reasonable.

D.

Finally, Officer Brissett contends that the district court erred by
bifurcating the municipal claims from the individual claims against
Officer Paul. Officer Brissett alleges that the bifurcation of discovery
caused him to incur unnecessary expenses and precluded him from
proceeding expeditiously to try his claims against the other Defen-
dants.

This court reviews the district court's decision to bifurcate a trial
for an abuse of discretion. See In re Hutchinson , 5 F.3d 750, 758 (4th
Cir. 1993). When the district court bifurcated the claims, the only
claims remaining were the §§ 1981, 1983 claims against the City of
Rockville and Officer Paul. Before finding the City liable, Officer
Brissett had to prove that Officer Paul in fact violated Officer Bris-
sett's rights. See Los Angeles v. Heller, 475 U.S. 796, 799 (1986);
Kopf v. Wing, 942 F.2d 265, 269 (4th Cir. 1991). Furthermore, the
municipality is only responsible for a violation when the execution of
the governmental body's policy or custom inflicts injury. See Monell
v. Department of Social Servs., 436 U.S. 658, 694 (1978); Spell v.
McDaniel, 824 F.2d 1380, 1385 (4th Cir. 1987). Thus, because the
City's liability was derivative of Officer Paul's liability, and because
the evidence needed to establish the City's policies and customs was
less likely to be affected by a delay in discovery than the eyewitness

10
evidence needed to establish the claims against Officer Paul, we find
that the district court did not abuse its discretion in bifurcating the
claims. See In re Hutchinson, 5 F.3d at 758.

Consequently, we affirm the district court's orders granting partial
dismissal, granting bifurcation, and granting summary judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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