Carter v. Durham et al

Filing 21

MEMORANDUM filed. Signed by Judge William M Nickerson on 2/12/2015. (c/m 2/12/15)(kr, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARVIN CARTER

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Plaintiff

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v

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THERESA DURHAM, et al.

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Defendants

Civil Action No. WMN-14-2635

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MEMORANDUM OPINION

Pending in the above-captioned civil rights action is a Motion to Dismiss filed on behalf
of Defendants Durham, Gelb, Carter, Grims, Helton and the Montgomery County Police
Department (hereinafter “Montgomery County Defendants”). ECF 9. Plaintiff opposes the
motion. ECF 13. The Court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D.
Md. 2014). For the reasons stated below, Defendants’ motion shall be granted and the
Complaint shall be dismissed without requiring further response from the remaining
Defendants.1
Background
In his verified2 Complaint, Plaintiff Marvin Carter (“Carter”), an inmate confined to the
Maryland Division of Correction’s Western Correctional Institution in Cumberland, Maryland,
alleges his constitutional rights were violated by officers of the Montgomery and Prince
George’s County Police Departments. Carter claims a case was developed against him and led to
his arrest through use of Global Location Information generated by his cell phone and GPS
tracking devices placed on his car. ECF 1 at pp. 6 – 8. The investigation led to Carter’s arrest on
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Patrick Devaney, J. Greever, G. Murphy, M. Roller, and Prince George’s County Police Department.
See ECF 1 at pp. 12 – 13.

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April 26, 2012. He was charged with second degree burglary in Prince George’s County “based
on the judicially unauthorized use of Montgomery County Police GLI warrant tracking data
supplied to P[rince] G[eorge’s] District V to aid in a search for the whereabouts” of Carter. Id. at
p. 8. Carter claims “he was not convicted of any such crimes where any Montgomery County
Police GLI cellular phone tracking data was used.” Id. at p. 9. He further asserts that sharing of
this information with Prince George’s County Police violated his Fourth and Fourteenth3
Amendment Rights. Id.
Montgomery County Defendants provide the following background information
regarding Carter’s arrest and subsequent convictions.
On May 8, 2013, in the Circuit Court for Prince George’s County, based on
criminal charges with an incident date of April 26, 2012, Plaintiff pled guilty to
one count of second degree burglary and received a sentence of 15 years, all
but ten suspended, to run concurrent with any sentence he was already serving.
(Circuit Court for Prince George’s County, Maryland, Case No. CT121307X,
May 8, 2013.) Plaintiff also pled guilty to yet another second degree burglary
charge (with an incident date of December 1, 2011) in Prince George’s County
on January 11, 2013, in Case No. CT120873X, receiving another 12 year
sentence to run concurrently with his sentence in the Montgomery County
case. (Circuit Court for Prince George’s County, Maryland, Case No.
CT120873X, January 11, 2013 (plea) and May 3, 2013 (sentencing). On
December 7, 2012, a jury in Montgomery County, Maryland found Plaintiff
guilty of several counts (including three second degree burglary charges) in
Case No. 120848C, where he was sentenced to three 12 year consecutive
sentences on the three second degree burglary charges, as well as 60 days on a
malicious destruction of property charge.
ECF 9 at pp. 4 – 5.
Standard of Review
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the
sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243
(4th Cir. 1999). Except in certain specified cases, a plaintiff's complaint need only satisfy the
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The due process protections of the Fourteenth Amendment do not apply. See Taylor v. Waters, 81 F.3d 429, 435
– 36 (4th Cir. 1996) (the Fourth Amendment provides all of the pretrial process that is constitutionally due to a
criminal defendant).

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"simplified pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513
(2002), which requires a "short and plain statement of the claim showing that the pleader is
entitled to relief." Fed. R. Civ. P. 8(a)(2). Nevertheless, "Rule 8(a)(2) still requires a ‘showing,'
rather than a blanket assertion, of entitlement to relief." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, n.3 (2007). That showing must consist of at least "enough facts to state a claim to
relief that is plausible on its face." Id. at 570.
In its determination, the Court must consider all well-pled allegations in a complaint as
true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the
light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 783 (4th Cir. 1999) (citing Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)). The Court must disregard the contrary allegations of the opposing party. See
A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). The Court need not, however, accept
unsupported legal allegations, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir.
1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286
(1986), or conclusory factual allegations devoid of any reference to actual events, United Black
Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). In sum, "[f]actual allegations 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)." Twombly, 550 U.S. at 555
(internal citations omitted).
Analysis
In order to state a claim under § 1983 for false arrest in violation of the Fourth
Amendment, Carter must show that each arrest was made without probable cause. See Street v.
Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974). Probable cause exists if “at that moment the

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facts and circumstances with [the officers’] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that the petitioner
had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964) (citation
omitted). A probable cause determination is governed by a totality of the circumstances test.
See Illinois v. Gates, 462 U.S. 213, 241 (1983); United States v. Garcia, 848 F.2d 58, 59-60 (4th
Cir. 1988). Whether probable cause to arrest exists is based on information the police had at the
time of the arrest. Id. A warrantless arrest in a public place may be made when the arresting
officers have probable cause to believe that the suspect has committed, is committing, or is
about to commit a crime. See Beck v. Ohio, 379 U.S. 89, 91 (1964) (probable cause exists if “at
that moment the facts and circumstance within [the officers] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing that the
petitioner had committed or was committing an offense.”). Plaintiff’s convictions establish as a
matter of Maryland law the existence of probable cause, regardless of whether the judgments are
later reversed in subsequent proceedings. See Zablonsky v. Perkins, 230 Md. 365, 187 A.2d 314
(1963); Quecedo v. DeVries, 22 Md. App. 58, 321 A.2d 785 (1984). Plaintiff may only succeed
on his claims of false arrest if he is able to demonstrate that in both instances police officers
lacked probable cause to arrest him. See Albright v. Oliver, 510 U.S. 266, 273-74 (1994); Clipper
v. Takoma Park, Md., 876 F.2d 17, 19 (4th Cir. 1989).
Montgomery County Defendants assert that Carter’s claims regarding the legality of his
arrest by Prince George’s County police is barred because he pled guilty to the crime for which
he was arrested. ECF 9-1 at pp. 6 – 7. Carter’s claim that there was no probable cause for his
arrest is, in essence, erased by his conviction under Maryland law. Id. at p. 7, citing Asuncion v.
City of Gaithersburg, 73 F.3d 356 (4th Cir. Jan. 3, 1996) (unpublished opinion) (“Under

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Maryland law, a conviction determines conclusively the existence of probable cause, regardless
of whether or not the judgment is later reversed in a subsequent proceeding”) (citing Zablonsky
v. Perkins, 230 Md. at 367-68 (1963)); Hodge v. Calvert County, 2009 WL 2884928, at *2 (D.
Md. Sept. 4, 2009) (noting that the plaintiff’s “conviction constituted presumptive evidence that
there was probable cause to arrest him at the time of his arrest”); Hodge v. St. Mary’s County
Sheriff’s Office, 2009 WL 8708855, at *4 (D. Md. June 22, 2009) (same); Brown-Rice v.
Maryland, 2009 WL 1690516, at *1 (D. Md. June 16, 2009) (holding that a conviction
“establishes probable cause and bars [the plaintiff’s] claims for malicious prosecution, false
arrest, false imprisonment, and any other claim including lack of probable cause as an
element.”). Defendants further assert that Carter’s claims are barred from consideration under
Heck v. Humphrey, 512 U.S. 477 (1994).
In opposition, Carter maintains his claims are limited to recovery for damages for
conduct committed by Defendants during the investigation up to the time of his arrest. ECF 13.
He further asserts his Complaint states cognizable claims under the Fourth and Fourteenth
Amendments to the Constitution as well as state law claims for false arrest, false imprisonment,
intentional infliction of emotional damage, and loss of property through Defendants’ alleged
conspiratorial acts. Id. at p. 4.
Carter’s claims are frivolous and the assertion in his Complaint that he was not convicted
of any crimes as a result of the use of information obtained by Montgomery County and
allegedly shared with Prince George’s County is at best misleading and bordering on perjurious.
In Heck v. Humphrey, 512 U. S. 477, 487 (1994), the Supreme Court held that claims
challenging the legality of a conviction are not cognizable in a 42 U.S.C. § 1983 action unless
and until the conviction is reversed, expunged, invalidated, or impugned and complaints

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containing such claims must therefore be dismissed without prejudice. Put another way,
Plaintiff’s claims for damages cannot be entertained by this Court unless he has first successfully
challenged his criminal conviction. Carter’s assertions that there was no probable cause for his
arrest and that the evidence gathered against him was obtained illegally is a collateral attack on
his convictions which may not be presented in the context of a claim for damages.
Ordinarily a claim for damages that is barred by the ruling in Heck is dismissed without
prejudice upon initial review4 of the Complaint. Where, as here, the “facts” asserted in the
Complaint obfuscate the true nature of the claims raised, that initial review is thwarted. The crux
of Carter’s claim is based on his assertion that police officers in different counties are prohibited
from sharing information. There is no such prohibition in the law. See United States v. Hensley,
469 U.S. 221, 230 (1985) (the Fourth Amendment does not bar one police department from
relying on articulable facts provided by another for purposes of probable cause). Carter’s claims
of a conspiracy are bald allegations devoid of any legal basis. Moreover, even if Carter could
overcome the bar announced in Heck, his guilty pleas to the multiple charges of burglary are an
admission that probable cause existed for his arrest. See Asuncion., 73 F. 3d 356, 1996 WL 1842
*2 (4th Cir. 1996) (under Maryland law a conviction determines conclusively the existence of
probable cause regardless of whether the conviction is later reversed). The Complaint shall be
dismissed as to all Defendants for failure to state a claim upon which relief may be granted.
Under 28 U.S.C. § 1915(g) a prisoner litigant will not be granted in forma pauperis status
if he has “on 3 or more prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the grounds that it is
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See 28 U.S.C. §1915A (requiring federal courts to screen prisoner complaints and dismiss any complaint that is
frivolous, malicious, or fails to state a claim upon which relief may be granted), see also 28 U.S.C. §1915(e)(2)
(requiring cases to be dismissed any time if it is determined the allegation of poverty is untrue; or the action or
appealBis frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief
against a defendant who is immune from such relief).

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frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.” Because the instant case is
dismissed for failure to state a claim upon which relief may be granted, the Clerk shall be
directed to note a “strike” on the docket. A separate Order follows.

__________/s/________________
William M. Nickerson
Senior United States District Judge

Dated: February 12, 2015

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