# Nichols v. Bumgarner

> District Court, D. Maryland · April 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10209930

## Case

- **Court:** District Court, D. Maryland
- **Decided:** April 1, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

PATRICK NICHOLS,

Plaintiff,

v. Civil Action No. BAH-23-0014

N. BUMGARNER,

Defendant.

MEMORANDUM OPINION

Plaintiff Patrick Nichols, who is incarcerated at Maryland Correctional Training Center
(“MCTC”), has filed this civil action pursuant to 42 U.S.C. § 1983 against Montgomery County
Police Officer N. Bumgarner. ECF 1. Officer Bumgarner moved to dismiss the complaint on
October 17, 2023. ECF 14 (the “Motion”). Nichols was advised of his right to file an opposition
response to Officer Bumgarner’s Motion and of the consequences of failing to do so. ECF 15.
Nichols filed an opposition, ECF 19, to which the Defendant replied, ECF 22. The Court has
reviewed the filings and finds a hearing unnecessary. See Loc. R. 105.6 (D. Md. 2023). For the
reasons stated below, Officer Bumgarner’s Motion shall be granted.
I. BACKGROUND
Nichols’ complaint alleges that on March 24, 2022, Officer Bumgarner slammed him on
the ground during an arrest which “fractur[ed his] arm and crack[ed his] bones.” ECF 1, at 6.
Nichols was taken to a hospital where x-rays confirmed that his arm was fractured. Id.
Additionally, he states that during the arrest “another officer had his knee on” Nichols’ throat and
he “couldn’t [breathe] for a second.” Id. He seeks four million dollars in damages. Id. at 5, 7.
Nichols includes a one-page attachment which largely reiterates what is stated in his complaint.
ECF 1-1.1 He adds in the attachment that he “did not do nothing” to Officer Bumgarner. Id. No
additional detail is provided.
On October 17, 2023, Officer Bumgarner moved to dismiss the complaint. ECF 14.
Specifically, he argues that Nichols’ complaint should be dismissed because it does not comply

with the general rules of pleading, nor does it state a viable claim. ECF 14-1, at 3. More
specifically, Officer Bumgarner argues that there are insufficient facts put forth by Nichols to
demonstrate that Bumgarner’s actions were “unlawful in the context of the events leading to his
arrest, his behavior, or the arrest itself, or that Officer Bumgarner’s action was in any way
unjustified.” Id. at 4. Further, Officer Bumgarner argues that, if Nichols’ complaint is construed
to advance an excessive force claim, Nichols has failed to demonstrate that any force exerted was
excessive. Id. at 4–5. Finally, Officer Nichols argues he is entitled to qualified immunity. Id. at
5–6.

Nichols reiterates in his opposition response that Officer Bumgarner violated his
constitutional rights during the arrest. ECF 19, at 2. He specifies that he is raising a claim of
excessive force under the Fourth Amendment. Id. He further states he does not believe Officer
Bumgarner is entitled to qualified immunity. Id. at 1. He does not provide any additional factual
details regarding the incident.
Officer Bumgarner replied, again maintaining that Nichols has failed to provide a factual
predicate to support his assertion that any force used by Officer Bumgarner was unlawful. ECF
22. Thus, Officer Bumgarner reiterates that Nicholas has not stated a claim, nor has he pled facts

to show he is entitled to relief. Id. Further, he argues that Nichols has failed to overcome Officer

1 This attachment includes case number 22-cv-2662. However, that complaint deals with a medical
care issue at Montgomery County Correctional Facility and appears to be wholly unrelated to this
matter. That case was closed January 5, 2024. See Civ. No. JRR-22-2662, ECF 7.
Bumgarner’s qualified immunity. Id. As such, he asks that this Court dismiss Nichols’ complaint
with prejudice. Id. at 3.
II. STANDARD OF REVIEW
Officer Bumgarner moves to dismiss the complaint for failing to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6). To survive a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), the factual allegations of a complaint “must
be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citations omitted). “To satisfy this standard, a plaintiff need not ‘forecast’
evidence sufficient to prove the elements of the claim. However, the complaint must allege
sufficient facts to establish those elements.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012) (citation omitted).
In reviewing the motion, the Court accepts the well-pleaded allegations as true and in the

light most favorable to Nichols. Twombly, 550 U.S. at 555. “However, conclusory statements or
a ‘formulaic recitation of the elements of a cause of action will not [suffice].’” EEOC v.
Performance Food Grp., Inc., 16 F. Supp. 3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S.
at 555). “Factual allegations must be enough to raise a right to relief above a speculative level.”
Twombly, 550 U.S. at 555. “‘[N]aked assertions’ of wrongdoing necessitate some ‘factual
enhancement’ within the complaint to cross ‘the line between possibility and plausibility of
entitlement to relief.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting
Twombly, 550 U.S. at 557).
Although pro se pleadings are construed generously to allow for the development of a
potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), courts cannot ignore a clear
failure to allege facts setting forth a cognizable claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d
387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude’ with which a district court should view
such pro se complaints does not transform the court into an advocate. Only those questions which
are squarely presented to a court may properly be addressed.” (internal citation omitted)). “A court

considering a motion to dismiss can choose to begin by identifying pleadings that, because they
are not more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556
U.S. 662, 665 (2009).
III. DISCUSSION
Construing Nichols’ complaint liberally, he appears to advance a claim that Officer
Bumgarner utilized excessive force against him during his arrest, as evidenced by Nichols’
fractured arm. Claims of excessive force during an arrest or investigatory stop are examined under
the Fourth Amendment’s objective reasonableness standard. Graham v. Connor, 490 U.S. 386,
395–97 (1989); see also Cty. of Los Angeles v. Mendez, 581 U.S. 420, 427 (2017) (“The framework
for analyzing excessive force claims is set out in Graham.”). Reasonableness is assessed by
weighing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the importance of the governmental interests alleged to justify the intrusion.” Mendez, 581
U.S. at 427 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). The operative question is
“whether the totality of the circumstances justifies a particular sort of search or seizure.” Id. at
427-28 (quoting Garner, 471 U.S. at 8–9). Factors to be included in making this determination
include the severity of the crime at issue, whether there is an immediate threat to the safety of the
officer or others, and whether the subject is resisting arrest or attempting to flee. See Graham, 490
U.S. at 396. The determination is to be made “‘from the perspective of a reasonable officer on the
scene’ . . . ‘based upon the information the officers had when the conduct occurred.’” Mendez,
581 U.S. at 428 (first quoting Graham, 490 U.S. at 397; then quoting Saucier v. Katz, 533 U.S.
194, 207 (2001)). The Constitution “does not require police to gamble with their lives in the face
of a serious threat of harm.” Waterman v. Batton, 393 F.3d 471, 479 (4th Cir. 2005) (quoting
Elliott v. Leavitt, 99 F.3d 640, 641 (4th Cir. 1996)). Further, “‘the right to make an arrest’
‘necessarily carries with it the right to use some degree of physical coercion or threat thereof to
effect it.’” E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 192 (4th Cir. 2018) (quoting Graham, 490
U.S. at 396); see also Martin v. Gentile, 849 F.2d 863, 869 (4th Cir. 1988).
Here, Nichols does not put forth sufficient factual information to state a claim for excessive
force. In both his complaint and his opposition, Nichols puts forth almost no detail, and instead
appears to suggest that his fractured arm alone is evidence that any force utilized by Office
Bumgarner was excessive. See ECFs 1, 19. He provides no information about the circumstances
of the arrest, the severity of the alleged crime at issue, his actions, or any potential threat which
existed to himself, the officers, or bystanders. Without such information, Nichols has not provided
sufficient facts to establish the elements of his claim, and any conclusory statement that the force
used was excessive is not entitled to the presumption of truth. See Iqbal, 556 U.S. at 665. Indeed,
without more detail, Officer Bumgarner cannot properly respond to the claim that any force
utilized was excessive. Further, the Court cannot determine whether any force utilized by Officer
Bumgarner was reasonable in light of the circumstances at issue. Nichols has failed to comply

with the pleading requirements outlined in the Federal Rules of Civil Procedure and has failed to
state a viable claim. As such, his complaint must be dismissed.
Though Officer Bumgarner requested dismissal with prejudice, this request will be denied.
Nichols will be given an opportunity to amend the complaint. “The determination whether to
dismiss with or without prejudice under Rule 12(b)(6) is within the discretion of the district court.”
Weigel v. Maryland, 950 F. Supp. 2d 811, 825 (D. Md. 2013) (internal quotation marks omitted).
Courts may grant a plaintiff leave to amend if “there is a chance that amendment can cure a
deficient complaint.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1725 n.4 (2020). Because the
complaint is being dismissed for failure to state a claim as a result of insufficient information, more
factual allegations may cure the complaint’s deficiencies. Nichols has not otherwise amended his
complaint. As such, the Court will give Nichols twenty-eight (28) days in which to file an amended
complaint. If he does not file an amended complaint within that time, the case will be dismissed
with prejudice without further warning.
IV. CONCLUSION
For the foregoing reasons, Officer Bumgarner’s Motion to Dismiss (ECF 14) is granted.
The complaint is dismissed without prejudice. However, Nichols will be given an opportunity to

amend the complaint within twenty-eight (28) days.
A separate Order follows.

Date: April 1, 2024 ___/s/
BRENDAN A. HURSON
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10209930. Public record. Not legal advice.