Williams v. Mayor and City Council of Baltimore City et al

Filing 17

MEMORANDUM. Signed by Judge William M Nickerson on 11/4/2014. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

TROY WILLIAMS

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v.
MAYOR AND CITY COUNCIL
OF BALTIMORE CITY et al.
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Civil Action No. WMN-14-1125

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MEMORANDUM
Before the Court is a motion to dismiss filed by the
Baltimore Police Department and Police Commissioner Anthony
Batts, ECF No. 6, as well as a partial motion to dismiss filed
by Defendants Sergeant Brian Flynn and Detective Dane Hicks.
ECF No. 11.

The motions are fully briefed.

Upon review of the

Complaint, the briefing, and the applicable case law, the Court
determines that no hearing is necessary, Local Rule 105.6, and
that both motions will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of an alleged brutal attack on
Plaintiff by Defendant Brian Flynn, an officer of the Baltimore
City Police Department (BPD).

Plaintiff asserts that this

attack, which occurred on July 22, 2011, was in retaliation for
his submission a few weeks earlier of a complaint to the BPD
concerning another attack he had witnessed by a different BPD
officer on another individual.

Plaintiff also asserts that this

kind of misconduct was widespread in the BPD.

The allegations

in the Complaint are as follows.
On June 24, 2011, Plaintiff was taken into custody during a
police raid of a local bar and was held in jail overnight.
While in the jail, Plaintiff observed “John Doe #1” enter a cell
and attack another individual who had been arrested in the same
raid.

ECF No. 1 ¶ 24.

Upon release the next morning, Plaintiff

filed a complaint with the BPD concerning the attack he had
witnessed.

On or about July 1, 2011, Plaintiff had a

conversation with Lieutenant Colonel Melvin Russell of the BPD
who was the supervisor of John Doe #1 and Defendant Flynn and,
by happenstance, is also Plaintiff’s cousin.

Plaintiff inquired

about the complaint he had filed and Russell responded that he
had heard nothing about it, but would “get to the bottom of what
happened.”

Id. ¶ 27.

A few weeks later, as Plaintiff was coming out of church in
East Baltimore, an unmarked BPD cruiser driven by John Doe #1
approached him.

Id. ¶ 30.

Defendant Flynn jumped out of the

passenger side of the vehicle and ran at Plaintiff.

Flynn

“began aggressively touching Mr. Williams’ body” and swung his
left fist at Plaintiff’s head but Plaintiff was able to move out
of the way.

Id.

Flynn then swung the police radio that he was

holding in his right hand and hit Plaintiff on the top of his
head with the radio.

Plaintiff lost consciousness and awoke a
2

few moments later lying in a pool of his blood with mechanical
restraints on his wrists.
Shortly thereafter, a female BPD officer, Jane Doe #1,
arrived in her police cruiser and recognized Plaintiff as a
family friend.1

She also informed Defendant Flynn that Plaintiff

was Lieutenant Russell’s cousin.

Plaintiff alleges that “in

what only could have been an effort to save face,” Flynn began
questioning Plaintiff “where ‘it’ was,” pretending that he was
searching for some sort of drugs or weapon.

Id. ¶ 34.

Plaintiff was then taken to the emergency room where the wound
on his head was treated.

Plaintiff asserts that Flynn

instructed the emergency room staff to note in the medical
records that Plaintiff was a heroin addict although Plaintiff
denies that he is an addict or that Flynn had any reason to
believe that he is an addict.

Plaintiff was then falsely

charged with possession of a controlled dangerous substance but
the charge was subsequently nolle prossed.
Plaintiff has filed a five count complaint in this Court
naming as Defendants: the Mayor and City Council of Baltimore

1

It is unclear why this female officer was able to immediately
recognize Plaintiff as a family friend and yet, now years after
this incident, her identity is still unknown to Plaintiff. It
also seems unusual that Plaintiff is still unable to identify
“John Doe #1,” raising at least some question as to the due
diligence employed by Plaintiff’s counsel prior to the filing of
this action.
3

City; Baltimore Mayor Stephanie Rawlings-Blake;2 the BPD; BPD
Commissioner, Anthony Batts; Brian Flynn; and Dane Hicks.3
Plaintiff brings a Monell4 claim against the BPD (Count One),

2

It is not clear why Plaintiff named the “Mayor and City Council
of Baltimore City” and Stephanie Rawlings-Blake separately. In
the caption of the Complaint, Plaintiff indicates that Stephanie
Rawlings-Blake is being sued “in her capacity as Mayor of the
City of Baltimore.” In the body of the Complaint, however,
Plaintiff states that she is being sued in her individual and
official capacity. ECF No. 1 ¶ 12. In addition to this
confusion as to the capacity in which the Mayor is being sued,
the undersigned notes that Judge George Russell of this Court
recently issued an opinion holding that “a § 1983 claim cannot
be brought against the City [of Baltimore] for Baltimore police
officer conduct because it does not sufficiently control the BPD
and cannot be considered to employ Baltimore police officers.”
Estate of Anderson v. Strohman, Civ. No. GLR-13-3167, 2014 WL
1153785, at *6 (D. Md. Mar. 19, 2014).
While noting the difficulties in the claims against these
parties, these claims will not be resolved in this opinion as
those parties have neither answered the Complaint nor filed a
motion to dismiss. There is, in fact, no indication in the
docket that they have been served with the summons and
Complaint. Under Rule 4(m) of the Federal Rules of Civil
Procedure, if a defendant is not served within 120 days of the
filing of a complaint, the claim against that defendant should
be dismissed, without prejudice, unless good cause is shown for
the failure to serve. Plaintiff shall be given ten days from
the date of this Memorandum and Order to show cause why the
claims against the Mayor and City Council of Baltimore and Mayor
Stephanie Rawlings-Blake should not be dismissed.
3

In the section of the Complaint listing “Defendants,” Plaintiff
references “John and Jane Does 1-20, police officers of the
[BPD]” and “Richard and Jane Roes 1-20, supervisory officials of
the [BPD].” ECF No. 1 ¶¶ 17, 18.
These Defendants do not
appear in the caption of the Complaint and none of the counts in
the Complaint indicated that any of those counts are being
asserted against these Defendants.
4

Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S.
658 (1978).
4

arguing that the BPD had “policies, customs, and/or patterns,
and practices encouraging and requiring officers to fabricate
evidence,” “to use excessive force,” and “to intimidate
civilians with unlawful physical force.”

Id. ¶¶ 43-45.

Within

that same count, Plaintiff also alleges that the BPD has failed
to discipline, train, and supervise its personnel.

In Count

Two, asserted against Commissioner Batts in his individual and
official capacities, Plaintiff alleges that Batts either knew
or, in the exercise of due diligence, should have known that BPD
officers, particularly those named in the Complaint, “posed a
pervasive and unreasonable risk of harm to civilians.”
64.

Id. ¶

Plaintiff contends that Batts’ failure to train and

discipline his officers led to the incident of which he
complains.
In Count Three, Plaintiff asserts an excessive use of force
claim under 42 U.S.C. § 1983 against Defendant Flynn.

Counts

Four and Five are also claims under § 1983, Count Four for
malicious prosecution and Count Five for false arrest and
imprisonment.

Named as Defendants in these last two counts are

Defendants Flynn and Hicks.

The Complaint is not at all clear

as to the role played by Defendant Hicks, however, alleging only
that “Defendant Flynn and Defendant Hicks falsely arrested and
imprisoned Mr. Williams,” with no additional detail.

Id. ¶ 51.

These counts also allege, in addition to the underlying
5

constitutional violations, conspiracies to violate those
constitutional rights.
Defendant BPD has moved to dismiss the claims against it,
arguing that the Complaint contains insufficient factual
allegations to support a Monell claim, but instead, relies
solely on formulaic legal conclusions.

Defendant Batts moves to

dismiss the claim against him on the ground that the Complaint
contains no allegations that he had any direct contact with
Plaintiff or direct involvement with the incident.
at 13-15.5

ECF No. 6-1

Although in his “Omnibus Opposition” to the motions

to dismiss, Plaintiff suggests that Defendants are seeking to
dismiss his Complaint in its entirety, Defendants Flynn and
Hicks in their partial motion to dismiss seek only the dismissal
of the conspiracy aspects of Counts Four and Five.

5

Although not mentioned in the motion, in the Reply memorandum,
Batts’ counsel seems to have suddenly come to the realization
that Batts had yet to be appointed as the Commissioner of the
BPD at the time of the incidents referenced in the Complaint.
Batts did not become Commissioner until September 2012. See ECF
No. 16 at 6 n.3. The Court notes in this context a general lack
of care and attention to the drafting of the motion. The
memorandum in support of the motion was clearly cut and pasted
from pleadings in other cases. At one point, Plaintiff is
referred to as “the decedent.” ECF No. 6-1 at 12. In other
places, counsel carelessly used a “find and replace” word
processing function to replace “plaintiff” with “Mr. Williams,”
not realizing he was inserting “Mr. Williams” in quotations from
other cases. See id. at 6. Counsel also pasted the exact same
full-page discussion of a Judge Chasanow’s decision in two
different places in the memorandum. Id. at 9 and 11-12.

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II. LEGAL STANDARD
To survive a Federal Rule of Civil Procedure 12(b)(6)
motion, the complaint must allege enough facts to state a
plausible claim for relief.

Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).

A claim is plausible when “the plaintiff pleads

factual content that allows the Court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”

Id. (citing Twombly, 550 U.S. at 556).

A complaint

need not contain detailed factual allegations, but “a
plaintiff's obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555 (quotation marks and

citations omitted).

Rather, “[f]actual allegations must be

enough to raise a right to relief above the speculative level.”
Id.

In ruling on a motion to dismiss, the Court must examine

the complaint as a whole, consider the factual allegations in
the complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff.

Albright v. Oliver,

510 U.S. 266, 268 (1994).
Of note, while Plaintiff’s counsel references Twombly in
his discussion of the legal standard for a motion to dismiss
under Rule 12(b)(6), he actually relies on language from pre7

Twombly/Iqbal decisions.

Plaintiff’s counsel posits that a

claim can only be dismissed “‘if it appears beyond doubt that
the [P]laintiff can prove no set of facts to support his
allegations.’”

ECF No. 12 at 11 (quoting Richmond,

Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244 (4th Cir.
1993)).

This standard, however, which originated in Conley v.

Gibson, 355 U.S. 41 (1957) was specifically abrogated in
Twombly.

550 U.S. at 561-62.

Elsewhere in his opposition,

Plaintiff’s counsel erroneously states that “to withstand a
motion to dismiss, the pleadings must meet only the basic
standard established in Conley v. Gibson.”

ECF No. 12 at 18.

III. DISCUSSION
A. Claims Against the BPD
Section 1983 provides a remedy against any person who,
under color of law, deprives another of rights protected by the
United States Constitution.

42 U.S.C. § 1983.

It is well

established that municipalities and other local government units
may be found liable under § 1983 where they cause a
constitutional deprivation through an official “policy or
custom.”

See Monell, 436 U.S. at 690.

They can only be held

liable, however, “where the municipality itself causes the
constitutional violation at issue.”
489 U.S. 378, 375 (1989).

City of Canton v. Harris,

A municipality or local government

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unit like the BPD cannot be held liable in a § 1983 action under
a theory of respondeat superior.

Monell, 436 U.S. at 694.

To assert a viable § 1983 Monell claim against a
municipality, a plaintiff must establish that (1) the
municipality had an unconstitutional “policy or custom”; and (2)
that this “policy or custom” caused a violation of the
plaintiff’s constitutional rights.
1380, 1387 (4th Cir. 1987).

Spell v. McDaniel, 824 F.2d

A plaintiff can establish the

existence of an unconstitutional policy or custom in one of four
ways: (1) a formal policy, regulation or ordinance; (2) an
express decision of an official with “final policymaking
authority”; (3) the municipality’s failure to train its
employees, such that the municipality was “deliberately
indifferent” to the constitutional rights of its citizens; or
(4) a “persistent and widespread practice” of unconstitutional
conduct by municipal employees so as to become a “custom or
usage” of the municipality.
1350, 1359 (2011).

Connick v. Thompson, 131 S. Ct.

Plaintiff relies on the latter two ways in

his attempt to establish an unconstitutional policy or custom of
the BPD.
To prevent municipalities from simply being held
vicariously liable for the acts of their employees, courts have
established strenuous limits on Monell theory claims.

Where the

claim is based on inadequate training, courts require a
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plaintiff to establish (1) “a specific deficiency rather than
general laxness or ineffectiveness in training,” and (2) “that
the deficiency or deficiencies [are] such as to make the
specific violation almost bound to happen, sooner or later,
rather than merely likely to happen in the long run.”
824 F.2d at 1390.

Spell,

Where plaintiffs attempt to establish the

existence of a policy or custom based on alleged “persistent and
widespread” practices, courts have dismissed those claims where
they have failed to plead facts of prior similar incidents.
Carter, 164 F.3d at 220.

A “meager history of isolated

incidents” does not “approach the ‘widespread and permanent’
practice necessary to establish municipal custom.”

Id. (quoting

Greensboro Prof’l Fire Fighters Ass’n v. City of Greensboro, 64
F.3d 962, 967 (4th Cir. 1995)).
Courts have also held that, when considering the
relationship between the alleged policy or custom and the
specific constitutional violation alleged, “rigorous standards
of culpability and causation must be applied to ensure that the
municipality is not held liable solely for the actions of its
employee.”

Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S.

397, 403-404 (1997).

To establish a Monell claim, the plaintiff

must show “a close fit between the unconstitutional policy and
the constitutional violation.”

Carter, 164 F.3d at 218.

“[A]

plaintiff cannot rely upon scattershot accusations of unrelated
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constitutional violations to prove either that a municipality
was indifferent to the risk of [his] specific injury or that it
was the moving force behind [his] deprivation.”

Id.

Here, the BPD moves to dismiss the Monell claim on the
ground that Plaintiff has offered nothing more than conclusory,
formulaic legal assertions of a policy or custom on the part of
the BPD.

Plaintiff protests that his Complaint, “consists of 95

paragraphs and alleges facts that are more than sufficient to
support the Plaintiff’s causes of action alleged therein, some
in painstaking detail.”

ECF No. 12 at 12.

Looking at the

actual Complaint, however, the Court observes that, while
Plaintiff provides considerable detail concerning the incident
involving Plaintiff, only four of those 95 paragraphs even
arguably allege any facts in support of policies or customs of
the BPD, and Plaintiff seems to concede as much.

See id. at 15

(identifying the four paragraphs “discussing known patterns,
practices, and/or policies and customs” in the BPD, i.e.,
paragraphs one, two, three, and thirty-eight).

The Court

observes, however, that even the few paragraphs that go beyond
the specific incident involving Plaintiff either do not reflect
any unconstitutional policy or custom that is closely fitted to
the constitutional violation suffered by Plaintiff or are
themselves unsupported by any factual allegations.

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Plaintiff alleges that he was hit in the head, arrested,
and charged with a crime in retaliation for having filed a
complaint with the BPD about an assault by John Doe #1 on an
unknown individual.

It also appears that Plaintiff is alleging

that it was John Doe #1 that drove Flynn to the scene where
Plaintiff was accosted.

Thus, while Plaintiff cites two

incidents of the use of excessive force by BPD officers, both
seem to revolve around the same individual, John Doe #1.6
As purported evidence of some broader policy, Plaintiff
cites a Slate.com blog discussing “flex squads,” or “jump out
boys” which it describes as “speciality units []tasked with
moving into high-crime areas and rapidly lowering crime rates .
. . where success is measured by the number of arrests made or
the amount of contraband seized.”

ECF No. 1 ¶ 1 (citing Justin

Peters, Do Arrest Quotas Encourage Police Officers to Break the
Law, http://www.slate.com/blogs/crime/2013/03/15/kendell_
richburg_baltimore_police_do_arrest_quotas_encourage_cops_to_bre
ak.html; March 15, 2013).

Plaintiff does not allege that

Defendant Flynn or John Doe #1 were part of any “flex squad” or
that their motivation related to increasing their arrest

6

Because the attack on the unknown individual took place at a
Maryland State Correctional Facility, the BPD suggests that John
Doe #1 is “quite likely” a state correctional officer and not a
BPD officer. ECF No. 16 at 7. The Complaint, however, has John
Doe #1 driving a BPD cruiser, ECF No. 1 ¶ 30, so it could be
inferred that John Doe #1 was a BPD officer.
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statistics.

The only similarity between the conduct described

in the article and the incident involving Plaintiff is the
generalized description that the officers in the flex squads
“tend to jump out of cars and aggressively pursue their
targets,” ECF No. 1 ¶ 1, which is not the kind of “close fit” by
which Monell claims can be supported.

This article was also

written two years after the incident involving Plaintiff.
Plaintiff next cites a 2009 WBALTV.com article relating the
opinion of a former BPD official that the BPD is “rife with
corruption and turns a blind eye to bad officers patrolling the
streets.”

Id. ¶ 2 (quoting WBALTV.com, Former City Official:

Police Dept. Full Of Corruption (July 2, 2009)).

Because the

discipline of officers is inconsistent, the article reports, bad
officers are “running willy-nilly in the city, undermining
public safety.”

Id.

Plaintiff’s quotation of this article

still amounts to nothing more than generalized, vague
allegations and points to no specific previous similar incidents
or causal connection to the alleged deprivation of Plaintiff’s
rights.
Next, Plaintiff references a quotation from Lieutenant
Russell that Plaintiff set out as an introduction to his
Complaint.

Id. ¶ 3 and Introduction (quoting Melvin Russell,

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Racial Differences in Arrests: Are Community – Police
Partnerships a Solution, Open Society).7

The quotation appears

to relate to one of the “jump out boy’s” use of racial epithets
and excessive force against African American youths.

This

quotation is of marginal relevance as there does not appear to
be any racial aspect to Plaintiff’s case; he is alleging
retaliation for filing a BPD complaint.
Finally, in paragraph thirty-eight of the Complaint,
Plaintiff alleges that Flynn instructed the hospital staff to
falsely note in Plaintiff’s medical record that he is addicted
to heroin and that doing so, “is a pattern, practice, and/or
policy and custom within the [BPD] that is utilized by police
officers after they have brutally attacked so-called suspects.”
Id. ¶ 38.

While this alleged policy or custom has at least an

arguably closer fit with the constitutional violation alleged
here, Plaintiff has still failed to plead any facts of any prior
similar incidents.
Thus, while Plaintiff peppers his Complaint with conclusory
allegations concerning BPD policies and customs, he has alleged
no specific facts in support of those conclusions, beyond those
7

Although Plaintiff does not explain the source of this quote
beyond the reference to “Open Society,” this appears to be from
a transcript of a June 17, 2013, Open Society Foundation panel
discussion in which Russell participated. See http://www.
opensocietyfoundations.org/sites/default/files/racialdifferences-arrests-are-community-police-partnerships-solution20130617_0.pdf
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concerning his own injury.

Where a plaintiff fails “to support

th[e] bald conclusion [of municipal policy or custom] with any
factual allegations beyond those surrounding his own injury and
arrest,” his Monell claims must be dismissed.

Ross v. Prince

George’s Cnty, Md., Civ. No. DKC-11-1984, 2012 WL 1204087, at *9
(D. Md. Apr. 10, 2012); see also Lee v. O'Malley, 533 F. Supp.
2d 548, 553 (D. Md. 2007) (concluding that a plaintiff's mere
assertion that “arrests [were] a matter of policy, tradition and
custom within the Baltimore City Police Department” failed to
support “any claim that [his] arrest was the result of some
custom or policy”).
B. Claims Against Commissioner Batts
To the extent Plaintiff is asserting a claim against
Commissioner Batts in his official capacity, it fails on the
same grounds as the claims against the BPD.

To the extent

Plaintiff intended to assert a claim against him in his
individual capacity, the claim fails because the Complaint
alleges no personal involvement on his part in the alleged
unconstitutional conduct.

Given that Batts was not a part of

the BPD at the time of the incident, having not been appointed
as Commissioner until September 2011, he obviously could not
have been involved in these events.
C. Claims Against Defendants Flynn and Hicks

15

Defendants Flynn and Hicks move to dismiss only the
conspiracy claims brought against them, arguing that these
claims fail under the “intracorporate conspiracy doctrine.”
This doctrine, which originated in the field of antitrust law,
teaches that “‘[a] corporation cannot conspire with itself any
more than a private individual can, and it is the general rule
that the acts of the agent are the acts of the corporation.’”
Buschi v. Kirven, 775 F.2d 1240, 1251 (4th Cir. 1985) (quoting
Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914
(5th Cir. 1952)).

Thus, agents from a single legal entity are

“legally incapable of conspiracy, which requires multiple
parties acting together.”

Lewin v. Cooke, 28 Fed. App'x 186,

195 (4th Cir. 2002) (citation omitted).

This doctrine has been

held to be applicable to government entities as well.

Because

Defendants Flynn and Hicks are both employees of the BPD and are
alleged to have been acting within the scope of their employment
at all times relevant, these Defendants argue that they could
not have formed a conspiracy.
There are two recognized exceptions, however, to the
intracorporate conspiracy doctrine: (1) when a corporate officer
has an “independent personal stake in achieving the
corporation’s illegal objectives,” Greenville Publ'g Co. v.
Daily Reflector, Inc., 496 F.2d 391, 399 (4th Cir.1974), and (2)
when the agent's acts are “unauthorized.”
16

Buschi, 775 F.2d at

1252–3; Hodgin v. Jefferson, 447 F. Supp. 804 (D. Md. 1978).
Plaintiff argues that the second exception applies here.

In

opposing the motion to dismiss, Plaintiff suggests that when
Flynn and Hicks “targeted, assaulted,8 falsely arrested, falsely
imprisoned, and maliciously prosecuted” him, they “ignored the
stated policies” of the BPD and, thus, their actions were
unauthorized.

ECF No. 12 at 19.

While arguing in his opposition that the conduct was
unauthorized, Plaintiff alleges in the Complaint that Flynn and
Hicks were “at all times pertinent” acting within the scope of
their employment as agents, servants, and employees of the BPD.
ECF No. 1 ¶¶ 15-16.

Furthermore, Plaintiff alleges that, at all

times relevant, these Defendants were acting under color of law
and “pursuant to [their] authority as [] police officer[s] of
the [BPD].”

Id.

Although addressing the issue in a different

context, the Maryland Court of Appeals has observed that making
arrests is a function incident to a police officer’s “general
authority as a police officer,” even if the arrest in question
was deemed unlawful.

Houghton v. Forrest, 989 A.2d 223, 231

(Md. 2010).
In Kangelee v. Baltimore City Police Dep’t, Civ. No. RDB12-1566, 2012 WL 5457231 (D. Md. Nov. 7, 2012), this Court
8

The Court notes that there is nothing in the Complaint to
support the conclusion that Defendant Hicks was in any way
involved in the alleged assault of Plaintiff.
17

rejected an argument similar to that raised by Plaintiff in the
context of an alleged conspiracy to violate the plaintiff’s
civil rights.

In Kangelee, an off-duty and allegedly drunk BPD

officer took out his department-issued weapon and pointed it at
the plaintiff.

The officer subsequently shot and killed the

plaintiff’s brother.

The plaintiff alleged that the BPD police

commissioner conspired with the off-duty officer to deprive her
of her rights by, inter alia, failing to properly train him
despite previous incidents of “alchohol-fueled” shootings.
at *7.

Id.

In response to the defendants’ invocation of the

intracorporate conspiracy doctrine, the plaintiff argued that
the doctrine was inapplicable “because although [the officer]
acted under color of law, ‘he exceeded the bounds of his
authority when pointing his duty weapon at [the plaintiff]
without probable cause or even suspicion.’”
plaintiff’s opposition).

Id. (quoting the

This Court noted, however, that

because the plaintiff had alleged in her complaint that the
officer “at all times relevant . . . acted under color of law,”
she “therefore claims that in all circumstances he was acting as
an agent of the [BPD].”

Id.

Accordingly, this Court concluded

that “the intracorporate conspiracy doctrine is applicable.”
Id.

18

On that same basis, the Court will therefore dismiss the
conspiracy aspects of Count Four and Five.9

The Court notes that

these counts will go forward as to the underlying wrongful
prosecution and false arrest/imprisonment claims.

Although the

Complaint could be more clear, Plaintiff asserted claims for
“Violation and Conspiracy to Violate” his constitutional rights.
See Captions of Counts Four and Five.

Defendants did not

challenge the underlying claims, just the conspiracy aspect of
those claims.
IV. CONCLUSION
For these reasons, the motion to dismiss filed by the BPD
and Commissioner Batts will be granted and those Defendants will
be dismissed from this action.

The partial motion to dismiss

filed by Defendants Flynn and Hicks will also be granted and the
conspiracy claims against them asserted in Counts Four and Five
will be dismissed.
forward.

Counts Four and Five will otherwise go

A separate order will issue.

9

An argument could perhaps be made that Plaintiff’s claim falls
within the other exception to the intracorporate conspiracy
doctrine, i.e., that Flynn and Hicks had some independent and
predominate personal stake in their actions. If Plaintiff had
alleged a conspiracy involving John Doe #1 and Flynn, one might
infer that the attack was motivated by retaliation for
Plaintiff’s filing of the complaint against John Doe #1.
Plaintiff, however, provides no factual allegations, whatsoever,
about Hicks’ conduct or motivation beyond the allegation that he
was somehow involved in Plaintiff’s arrest.
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_______________/s/________________
William M. Nickerson
Senior United States District Judge

DATED: November 4, 2014

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