EALY v. TOEY et al

Filing 30

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 3/18/2016. (dass, Deputy Clerk) (c/m 3/18/16-das)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LARRY E. EALY, SR.,

:

Plaintiff,

:

v.

:

TOEY, et al.,

:

Defendants.

Civil Action No. GLR-15-545

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant’s, Maryland
State Police Trooper First Class Christopher Toey, Motion to
Dismiss

or

for

Summary

Judgment

(ECF

No.

17)

and

Motion

to

Strike Plaintiff’s, Larry E. Ealy, Sr., First Amended Complaint
(ECF No. 23).

Also pending are Defendant’s, City of Cumberland

(“Cumberland”), Motion to Dismiss or in the Alternative, Motion
for

Summary

Judgment

(ECF

No.

18)

and

Motion

Plaintiff’s First Amended Complaint (ECF No. 24).
are ripe for disposition.
supporting

documents,

the

below,

Cumberland’s

the
first

Dismiss

The Motions

Having considered the Motions and
Court

finds

no

pursuant to Local Rule 105.6 (D.Md. 2014).
forth

to

Court

will

grant

Motion

to

Dismiss,

second Motion to Dismiss as moot.

hearing

For the reasons set

Toey’s
and

necessary

Motions,

deny

grant

Cumberland’s

BACKGROUND 1

I.
On

August

16,

2012,

Ealy,

a

resident

of

Ohio,

and

his

companion were driving in a 2012 GMC Cheyenne along Route 68, a
Maryland State highway.

That day, Toey, a Maryland State Police

officer, was conducting traffic enforcement in Allegany County,
Maryland in a marked police vehicle on Route 68.

Toey’s vehicle

was equipped with a license plate scanner that issued alerts
when a vehicle associated with a scanned license plate has been
reported stolen.
At or around 10:48 a.m., Toey received an alert regarding a
stolen vehicle matching the vehicle description of and license
plates on Ealy’s car.

Toey initiated a traffic stop.

During

the stop, Toey also confirmed that Ealy’s driver’s license was
suspended.

Toey placed Ealy and his companion under arrest and

transported

them

to

Cumberland,

Maryland

the
for

Maryland

State

processing.

Police

Ealy

was

Barracks
charged

in
with

unlawful taking of a motor vehicle, driving without a license,
and

driving

$5,000

bail,

with
Ealy

a

suspended

was

sent

license.

to

the

After

Allegany

being

County

held

on

Detention

Center in Cumberland, where he was strip searched.
Ealy was held in the detention center from August 18, 2012
until October 23, 2012, when the unlawful taking of a vehicle
1

Unless otherwise noted, the following facts are taken from
the parties’ briefings on the instant Motions, and are viewed in
the light most favorable to the nonmoving party.
2

charge against him was nol-prossed.

See State of Maryland v.

Ealy, No. 3W00062569 (D.Ct. Allegany Cty. Oct. 23, 2012).

As to

the charge for driving without a license, the District Court for
Allegany County found Ealy guilty and sentenced him to sixty
days of incarceration, but credited him for time served in the
detention center.

State of Maryland v. Ealy, No. 01K12014812

(Cir.Ct. Allegany Cty. Feb. 8, 2013).

On appeal to the Circuit

Court for Allegany County, Ealy’s license-related charges were
nol-prossed on February 8 and June 24, 2013.

Id.

On February 4, 2015, Ealy filed a Complaint in this Court
regarding his arrest and detention, alleging violations of the
United States Constitution under 42 U.S.C. §§ 1983 and 1985(3)
(2012)

(Counts

2–5)

and

the

Maryland

Declaration

of

Rights

(Count 6); false arrest (Count 1); malicious prosecution (Count
5); and intentional infliction of emotional distress (Counts 7–
9).

(ECF

No.

1).

Plaintiff

invokes

this

Court’s

federal

question and diversity jurisdiction pursuant to 28 U.S.C. §§
1331 and 1332 (2012), respectively.
On

May

27,

2015,

Toey

and

Dismiss or for Summary Judgment.

Cumberland

filed

Motions

(ECF Nos. 17, 18).

to

On July

29, 2015, rather than oppose the Motions, Ealy filed an untimely
First Amended Complaint without seeking the Court’s leave in an
apparent attempt to address the Defendants’ arguments in their
Motions.

(ECF No. 22).

On August 11, 2015, Toey filed a Motion
3

to Strike the First Amended Complaint (ECF No. 23).

On August

19, 2015, Cumberland filed a Motion to Dismiss the First Amended
Complaint.
Ealy

an

(ECF No. 24).

extension

of

On October 6, 2015, the Court granted

time

to

file

responses

Motions to Dismiss or for Summary Judgment.

to

the

pending

To date, however,

the Court has no record that Ealy has filed responses to the
Motions.

The Court will deem the Motions unopposed.
II.

DISCUSSION

A. Motion to Strike First Amended Complaint
1. Standard of Review
A “court may strike from a pleading an insufficient defense
or

any

redundant,

matter.”
Procedure]

immaterial,

Fed.R.Civ.P.
12(f)

impertinent,

or

“[Federal

Rule

12(f).

motions

are

generally

viewed

scandalous
of

with

Civil

disfavor

‘because striking a portion of a pleading is a drastic remedy
and

because

it

is

dilatory tactic.’”

often

sought

by

the

movant

simply

as

a

Waste Mgmt. Holdings, Inc. v. Gilmore, 252

F.3d 316, 347 (4th Cir. 2001) (quoting 5A Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 1380, 647 (2d
ed.

1990)).

“[F]ederal

courts

generally

require

the

moving

party to establish that the materials to be struck prejudice the
moving party in some way.”
Can.,

Inc.,

965

F.Supp.2d

Asher & Simons, P.A. v. j2 Glob.
701,

705

Wright & Miller, supra, § 1381 n.34).
4

(D.Md.

2013)

(citing

5C

Toey argues the First Amended Complaint should be stricken
because Ealy failed to seek leave from the Court to amend his
Complaint

pursuant

however,

the

to

court

should

justice so requires.
federal

policy

instead

of

in

Rule

freely

Rule

give

leave

15(a)
to

states,

amend

when

“This liberal rule gives effect to the

favor

disposing

15(a)(2).

of

of

resolving

them

on

cases

on

their

technicalities.”

Harvey, 438 F.3d 404, 426 (4th Cir. 2006).

merits

Laber

v.

According to the

United States Court of Appeals for the Fourth Circuit, “leave to
amend a pleading should be denied only when the amendment would
be prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would have
been futile.”

Id. (quoting Johnson v. Oroweat Foods Co., 785

F.2d 503, 509 (4th Cir. 1986)).
“Futility
fails

to

is

state

apparent
a

claim

if

the

under

proposed
the

amended

applicable

complaint
rules

and

accompanying standards: ‘[A] district court may deny leave if
amending the complaint would be futile—that is, if the proposed
amended

complaint

federal rules.’”

fails

to

satisfy

the

requirements

of

the

Katyle v. Penn Nat. Gaming, Inc., 637 F.3d

462, 471 (4th Cir. 2011) (quoting United States ex rel. Wilson
v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir.
2008)).

The Rule 12(b)(6) standard, therefore, governs futility

arguments.

Sherwin-Williams Co. v. Coach Works Auto Collision
5

Repair Ctr., Inc., No. WMN-07-CV-2918, 2010 WL 889543, at *2
(D.Md. Mar. 4, 2010) (citing Openshaw v. Cohen, Klingenstein &
Marks, Inc., 320 F.Supp.2d 357, 359 (D.Md. 2004)).
To survive a Rule 12(b)(6) motion to dismiss, a complaint
must set forth “a claim to relief that is plausible on its
face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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

A claim

is facially 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.”
U.S. at 678 (citing Twombly, 550 U.S. at 556).

Iqbal, 556

Pro se pleadings

are liberally construed and held to a less stringent standard
than pleadings drafted by lawyers.
89,

94

(2007)

(citing

Estelle

Erickson v. Pardus, 551 U.S.

v.

Gamble,

429

U.S.

97,

106

(1976)); accord Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 722
(4th Cir. 2010).

“In considering a motion to dismiss, the court

should accept as true all well-pleaded allegations and should
view the complaint in a light most favorable to the plaintiff.”
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
Toey

argues

Ealy’s

First

Amended

Complaint

is

futile

because the amendments do not cure the substantive defects of
the original Complaint.

The Court agrees.

The First Amended

Complaint does not include any additional factual allegations,

6

but adds defendants and claims for violations of the Federal
Tort Claims Act and 42 U.S.C. § 14141, and a “Bivens Action.”
2. Newly-Added Defendants
In the First Amended Complaint, Ealy adds Maryland Governor
Larry

Hogan,

Lieutenant

Governor

Boyd

K.

Rutherford,

“State

Representatives,” Attorney General of Maryland Brian E. Frosh,
and the State of Maryland as Defendants (the “State Defendants”)
without including any additional factual allegations to support
his claims against them.
Further, under the Eleventh Amendment to the United States
Constitution, a state, its agencies, and departments are immune
from

suits

in

federal

court

brought

by

its

citizens

citizens of another state, unless it consents.

State

of

Maryland

has

waived

its

sovereign

the

See Penhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
the

or

While

immunity

for

certain actions brought in state courts, see Md.Code Ann., State
Gov’t § 12-104(a) (West 2015), it has not waived its immunity
under the Eleventh Amendment to suit in federal court, see id. §
12-103(2).

Also, “a suit against a state official in his or her

official capacity is not a suit against the official but rather
is a suit against the official’s office.

As such, it is no

different from a suit against the State itself.”

Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989) (citing Brandon v.
Holt, 469 U.S. 464, 471 (1985)).
7

The Court, therefore, finds

the

State

Defendants

Accordingly,

Ealy’s

are

claims

protected
against

from

the

Ealy’s

State

claims.

Defendants

are

futile.
Additionally, Ealy does not include Cumberland, but adds
Allegany County, as a Defendant in the First Amended Complaint.
The

Court

Complaint

will,
as

an

therefore,
attempt

County as a Defendant.

to

construe
replace

Ealy’s

First

Amended

with

Allegany

Cumberland

Construing the First Amended Complaint

liberally, Ealy also attempts to allege federal constitutional
claims against Allegany County under 42 U.S.C. § 1983.
Section

1983

provides,

in

pertinent

part:

“Every

person

who, under color of [law], subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction

thereof

to

the

deprivation

of

any

rights,

privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law . . .
.”

Id.

Municipalities are considered persons under § 1983 and

may be sued for damages for constitutional deprivations.

Monell

v. N.Y. Dep’t of Social Servs., 436 U.S. 658, 690 (1978).
deprivations,
policy
alleged

or

however,

custom.

the

Id.

existence

must
at
of

be

attributable

690-91.
a

Ealy,

municipal

to

a

municipal

however,
policy

Such

or

has

not

custom

implemented by Allegany County that has violated his federal

8

constitutional rights.

Thus, Ealy has failed to allege a § 1983

claim against Allegany County.
Similarly,

Ealy

attempts

to

allege

a

class-based

discrimination claim under § 1985(3) against Allegany County for
denying poor or lower-class individuals equal protection under
the law with its bail system.

“To recover under § 1985(3), a

plaintiff must establish the existence of a conspiracy and show
‘some

racial

or

perhaps

otherwise

class-based,

invidiously

discriminatory animus behind the conspirators’ action.’”

C & H

Co.

2003)

v.

Richardson,

78

F.App’x

894,

901-02

(4th

Cir.

(quoting Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)).
Ealy states Allegany County denied him equal protection due to
his economic status, not due to his race.
Claims under § 1985(3) cannot be based on a plaintiff’s
membership

in

a

particular

economic

class.

United

Bhd.

of

Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463
U.S. 825, 837-38 (1983) (“[W]e find no convincing support in the
legislative history for the proposition that [§ 1985(3)] was
intended to reach conspiracies motivated by bias towards others
on account of their economic views, status, or activities. . . .
We

thus

cannot

construe

§

1985(3)

to

reach

motivated by economic or commercial animus.”).
not

sufficiently

alleged

a

§

9

1985(3)

claim.

conspiracies

Thus, Ealy has
The

Court,

therefore,

finds

that

Ealy’s

federal

constitutional

claims

against Allegany County are futile.
Additionally, Ealy attempts to allege claims for violations
of

his

rights

Declaration

of

under

Articles

Rights

regarding

strip

search

24

and

at

the

of

the

Maryland

arrest

his

26

by

Toey

and

Allegany

County

his

detention

and

Detention

Center. 2

“Articles 24 and 26 of the Maryland Declaration of

Rights are the state counterparts to the Due Process Clause and
the

Fourth

Amendment

of

the

United

States

Constitution,

respectively.”

Kashaka v. Balt. Cty., 450 F.Supp.2d 610, 618

(D.Md. 2006).

Supreme Court interpretations of the Fourth and

Fourteenth Amendments function as authority for interpretation
of Articles 24 and 26.
2010

WL

1980094,

at

See Johnson v. Maryland, No. AW-09-2594,
*5

(D.Md.

May

13,

2010)

(quoting

Pitsenberger v. Pitsenberger, 410 A.2d 1052, 1056 (Md. 1980)).
“Local

government

entities

have

respondeat

superior

liability for violations of the Maryland Declaration of Rights
that were committed by the entity’s agents and employees acting
within the scope of their employment.”

Kashaka, 450 F.Supp.2d

at 618 (citing DiPino v. Davis, 729 A.2d 354, 372 (Md. 1999)).
Because

Ealy

does

not

allege

that

2

Toey

is

an

employee

of

Ealy also attempts to allege false arrest, malicious
prosecution, and intentional infliction of emotional distress
claims against Allegany County.
10

Allegany

County,

Ealy

cannot

bring

state

law

claims

against

Allegany County regarding the arrest.
As to his detention and strip search, Ealy cannot bring his
claims

against

Allegany

County

because

a

municipality

is

entitled to immunity when it performs “governmental, as opposed
to propriety functions.”

Gray-Hopkins v. Prince George’s Cty.,

309 F.3d 224, 232 (4th Cir. 2002); see also Dotson v. Chester,
937 F.2d 920, 928 (4th Cir. 1991) (implying the operation of a
county

jail

is

a

governmental

waived

this

immunity

for

function).

Maryland

municipalities.

See

has

Md.Code

not

Ann.,

Cts.& Jud.Proc. § 5-303(d) (West 2016); Clark v. Prince George’s
Cty.,

65

A.3d

Government

785,

Tort

791

(Md.Ct.Spec.App.

Claims

Act

of

the

2013)
Courts

(“[T]he
and

Local

Judicial

Proceedings Article, does not specifically waive immunity for
common law tort claims against a County or municipality in its
own capacity, for governmental actions.”).
“Thus,

any

state

against

individual

Paulone

v.

City

of

law

County

tort

claim

employees,

Frederick,

787

would

not

have

the

F.Supp.2d

to

County
360,

proceed
itself.”

378

(D.Md.

2011); see Kashaka, 450 F.Supp.2d at 619 (finding county could
not be held vicariously liable for violations of Articles 24 and
26

because

employees).

plaintiff
Ealy,

failed
however,

to
has

identify
not

Allegany County employees as defendants.
11

individual

named

any

county

individual

The Court, therefore,

finds that Ealy’s state law claims against Allegany County are
futile.
3. Newly-Added Claims
In the First Amended Complaint, Ealy also adds claims for
violations of the Federal Tort Claims Act and 42 U.S.C. § 14141,
and a “Bivens Action.”

First, the Federal Tort Claims Act, 28

U.S.C. § 2674, applies to the federal government, not state and
local

governments.

Second,

42

U.S.C.

§

14141

“permits

the

Attorney General of the United States to bring constitutional
tort

claims

responsibility

against
for

government

officials

administration

incarceration of juveniles.”

of

or

employees

juvenile

with

justice

or

Awah v. Bd. of Educ. of Balt.

Cty., No. WMN-09-CV-1044, 2010 WL 1929908, at *2 (D.Md. May 11,
2010).
action.

Section

14141

does

not

provide

a

private

right

of

Id.

Third, Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), “established that the victims of
a constitutional violation by a federal agent have a right to
recover damages against the official in federal court despite
the absence of any statute conferring such a right.”

Carlson v.

Green, 446 U.S. 14, 18 (1980) (emphasis added).

Ealy, however,

does not allege a claim against a federal agent.

Because Ealy’s

added claims cannot be asserted against the named Defendants in
this matter, the Court finds that they are futile and will be
12

striken. 3

As such, the Court will grant the Motion to Strike the

First Amended Complaint. 4
B. Motions to Dismiss or, Alternatively, for Summary Judgment
1. Standard of Review
As

stated

above,

to

survive

a

Rule

12(b)(6)

motion

to

dismiss, a complaint must set forth “a claim to relief that is
plausible

on

its

face.”

Twombly, 550 U.S. at

Iqbal,

570).

556

U.S.

at

678

(quoting

“When matters outside the pleading

are presented to and not excluded by the court, the [12(b)(6)]
motion shall be treated as one for summary judgment and disposed
of as provided in Rule 56.”
Auth.,

149

F.3d

Fed.R.Civ.P. 12(d)).
the

Court

must

253,

Laughlin v. Metro. Wash. Airports

260-61

(4th

Cir.

1998)

(quoting

Under Federal Rule of Civil Procedure 56,

grant

summary

judgment

if

the

moving

party

demonstrates there is no genuine issue as to any material fact,
and the moving party is entitled to judgment as a matter of law.
In reviewing a motion for summary judgment, the Court must
draw all justifiable inferences in the non-moving party’s favor.
3

Ealy also attempts to add a claim under the “1871 Force
Act,” which is also known as the Civil Rights Act of 1871, 17
Stat. 13, where 42 U.S.C. § 1983 derived. See Adickes v. S. H.
Kress & Co., 398 U.S. 144, 203 (1970).
In essence, the Civil
Rights Act of 1871 is surviving in § 1983. Id. 205-06. Because
Ealy has already brought a claim under § 1983 in his original
Complaint, the Court finds the added 1871 Force Act claim to be
redundant and will strike it.
4
Because the Court will strike the First Amended Complaint,
Cumberland’s Motion to Dismiss the First Amended Complaint will
be denied as moot.
13

Anderson

v.

Liberty

Lobby,

Inc.,

477

(citing Adickes, 398 U.S. at 158-59).

U.S.

242,

255

(1986)

Once a motion for summary

judgment is properly made and supported, the opposing party has
the burden of showing that a genuine dispute exists.

Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986).
between

“[T]he mere existence of some alleged factual dispute
the

parties

will

not

defeat

an

otherwise

properly

supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.”

Anderson, 477 U.S.

at 247-48.
A “material fact” is one that might affect the outcome of a
party’s case.
Ventures,

Id. at 248; see JKC Holding Co. v. Wash. Sports

Inc.,

264

F.3d

459,

465

(4th

Cir.

2001)

(citing

Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by
the substantive law, and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”

Anderson, 477

U.S.

265.

at

248;

accord

Hooven-Lewis,

249

F.3d

at

Here,

because the Court will consider matters outside of the pleading,
the Motions to Dismiss will be construed as motions for summary
judgment.

14

2. Cumberland’s Motion
The Court will grant Cumberland’s Motion.
bring

several

Maryland

claims

common

law

against
for

Cumberland

Toey’s

allegedly

Ealy attempts to

under

improper

Toey, however, is not an employee of Cumberland.
3, ECF No. 18-2).
Cumberland.

The

federal

and

actions.

(Leake Aff. ¶

Ealy fails to demonstrate any claims against
Court,

therefore,

finds

that

Cumberland

is

entitled to judgment as a matter of law and will grant its
Motion.
3. Toey’s Motion
a.

Federal Constitutional Claims

The Court finds Toey cannot be held liable for violating
Ealy’s federal constitutional rights.
In Counts 2, 3, 4, and 5 of the Complaint, Ealy attempts to
assert claims against Toey under 42 U.S.C. § 1983 for violations
of

his

constitutional

rights. 5

Liberally

construing

the

Complaint, Ealy alleges he was arrested without probable cause
in violation of the Fourth Amendment.

5

Toey argues he did not

The Court will dismiss the federal constitutional claims
against Toey in his official capacity as an employee of the State
of Maryland. Md.Code Ann., State Gov’t § 12-103(2); Will, 491 U.S.
at 71 (citing Brandon, 469 U.S. at 471); supra page 7-8. Further,
the Court will dismiss Count 3, in which Ealy asserts his federal
constitutional rights were violated during a strip search at the
Allegany County Detention Center, because Ealy has not demonstrated
that Toey conducted the strip search.
(Toey Decl., ECF No. 17-2).

15

violate

Ealy’s

constitutional

rights

because

the

arrest

was

supported by probable cause.
Arrests are illegal when probable cause did not exist at
the time of the arrest.
227 (4th Cir. 1990).

United States v. McCraw, 920 F.2d 224,

Probable cause exists where “the facts and

circumstances within the [the officer’s] knowledge and of which
they had reasonably trustworthy information were sufficient to
warrant

a

prudent

man

in

believing

that

committed or was committing an offense.”
Ohio, 379 U.S. 89, 91 (1964)).

the

[suspect]

had

Id. (quoting Beck v.

Examining the events preceding

the arrest, the court must decide whether the facts amount to
probable

cause

when

viewed

from

the

objectively reasonable police officer.
U.S.

366,

371

(2003).

A

finding

perspective

of

an

Maryland v. Pringle, 540
of

probable

cause

would

eliminate Ealy’s claims regarding his arrest because “there is
no cause of action for ‘false arrest’ under Section 1983 unless
the

arresting

officer

lacked

probable

cause.”

Claiborne

v.

Cahalen, 636 F.Supp. 1271, 1277 (D.Md. 1986) (quoting Street v.
Surdyka, 492 F.2d 368, 372–73 (4th Cir. 1974)).
Toey
stolen

received

vehicle

in

an

alert

violation

stating
of

§

that

7-105

Article of the Maryland Code——a felony.
§ 7-105(c)(1) (West 2015).

Ealy
of

the

was

driving

Criminal

a

Law

Md.Code Ann., Crim.Law

Toey then initiated a traffic stop

and confirmed Ealy was also driving with a suspended license.
16

At that point, Toey placed Ealy under arrest.

These undisputed

facts amount to probable cause for Ealy’s arrest. 6

The Court,

therefore, Toey has demonstrated that the arrest did not violate
Ealy’s constitutional rights. 7

As such, the Court finds Toey is

entitled to judgment as a matter of law and will grant Toey’s
Motion as to Ealy’s § 1983 claims. 8
b.

Maryland State Law Claims

The Court finds that Toey is entitled to statutory immunity
from Ealy’s state law claims.
In Count 6, Ealy attempts to allege claims for violations
of his rights under the Maryland Declaration of Rights, stating
Toey

arrested

him

without due process.

without

probable

cause

and

detained

him

Also, in Counts 1, 5, 7, 8, and 9, Ealy

6

To the extent Ealy asserts the charges against him were
nullified because they were nol-prossed, that argument does not
support his Fourth Amendment claim because “a nolle prosequi
does not automatically provide evidence of lack of probable
cause.”
Palmer v. Griffith, No. JKB-15-1586, 2015 WL 6152282,
at *3 (D.Md. Oct. 16, 2015).
7
Ealy also alleges that he was arrested and detained
without due process of law, in violation of the Fifth and
Fourteenth Amendments.
“These claims are merely other ways of
pleading ‘false arrest’ under Section 1983,” and because
probable cause existed for Ealy’s arrest, Toey is entitled to
summary judgment on these claims as well.
Claiborne, 636
F.Supp. at 1277 (citing Street, 492 F.2d at 372).
8
Because the Court finds Ealy has failed to demonstrate a
federal constitutional violation, the Court will not address
Toey’s qualified immunity argument.
Meyers v. Balt. Cty., 981
F.Supp.2d 422, 429 (D.Md. 2013) (“Qualified immunity extends to
protect officials ‘who commit constitutional violations . . .
.’” (quoting Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir.
2013))).
17

attempts

to

allege

claims

for

false

arrest,

malicious

prosecution, and intentional infliction of emotional distress.
Toey argues he is entitled to statutory immunity from Ealy’s
state law claims under the Maryland Tort Claims Act (“MTCA”),
Md.Code Ann., State Gov’t, §§ 12–101 et seq. (West 2015).
Section

5-522

of

the

Courts

and

Judicial

Proceedings

Article of the Maryland Code provides that state personnel are
immune

from

suit

and

from

liability

for

tortious

conduct

committed within the scope of their public duties and without
malice or gross negligence.

“The ‘MTCA does not distinguish

between constitutional torts and common law torts.’”

McDaniel

v. Arnold, 898 F.Supp.2d 809, 849 (D.Md. 2012) (quoting Newell
v. Runnels, 967 A.2d 729, 766 n.28 (Md. 2009)); accord Lee v.
Cline,

863

A.2d

297,

310

(Md.

2004)

(“[W]e

hold

that

the

immunity under the [MTCA], if otherwise applicable, encompasses
constitutional torts and intentional torts.”).
“Under

Maryland

law,

the

malice

necessary

to

defeat

immunity under section 5-522 is what is often referred to as
‘actual malice’—that is, conduct ‘motivated by ill will, by an
improper motive, or by an affirmative intent to injure.’”

Young

v. City of Mount Ranier, 238 F.3d 567, 578 (4th Cir. 2001)
(quoting Shoemaker

v.

Smith,

725

A.2d

549,

560

(Md.

1999)).

Gross negligence occurs when the defendant acts “with wanton or
reckless

disregard

for

the

safety
18

of

others.”

Id.

(quoting

Boyer v. State, 594 A.2d 121, 132 (Md. 1991)).
Actual malice cannot be inferred from allegations of a lack
of probable cause, but it “‘can be inferred from an arrest that
was so lacking in probable cause and legal justification as to
render [the arresting officer’s] stated belief in its existence
unreasonable and lacking in credibility,’ when all of the facts
are

considered

in

context.”

McDaniel,

898

F.Supp.2d

at

850

(quoting Thacker v. City of Hyattsville, 762 A.2d 172, 193–94
(Md.Ct.Spec.App. 2000)); accord DiPino v. Davis, 729 A.2d 354,
374

(Md.

1999)).

insufficient

to

Also,

mere

establish

allegations

actual

malice

of

or

negligence

gross

are

negligence.

Young, 238 F.3d at 579.
Construing

the

Complaint

liberally,

Ealy

alleges

Toey

maliciously and negligently arrested him without probable cause.
Toey demonstrates that he had probable cause to believe that
Ealy was committing a felony——i.e., driving a stolen vehicle——
and placed Ealy under arrest.

Though the charges against Ealy

were later nol-prossed, Ealy has not presented any evidence to
demonstrate

that

the

entry

absence of probable cause.
1058

(Md.

2004)

(“The

of

nolle

prosequi

constitutes

an

See Hines v. French, 852 A.2d 1047,

effect

of

the

entry

of

a

nol

pros,

however, is not crystalline and ‘the court must look at the
circumstances
determine

surrounding

whether

there

the

was

an
19

State’s

decision

absence

of

so

probable

as

to

cause.’”

(quoting

Allen v. Bethlehem Steel Corp., 547 A.2d 1105, 1110

(Md.Ct.Spec.App. 1988))).

Furthermore, Ealy has not presented

any facts to give rise to an inference of gross negligence or
actual malice.

The Court, therefore, finds Toey is protected by

section 5-522 from the state law claims asserted against him and
entitled to judgment as a matter of law.
will

grant

Toey’s

Motion

as

to

the

Accordingly, the Court

state

constitutional

and

common law claims. 9
III.

CONCLUSION

For the foregoing reasons, Toey’s Motions (ECF Nos. 17, 23)
are GRANTED, Cumberland’s first Motion to Dismiss (ECF No. 18)
is GRANTED, and Cumberland’s second Motion to Dismiss (ECF No.
24) is DENIED AS MOOT.
is STRICKEN.

The First Amended Complaint (ECF No. 22)

The Complaint (ECF No. 1) is DISMISSED.

The Clerk

will be directed to CLOSE this case. A separate Order follows.
Entered this 18th day of March, 2016
/s/
_____________________________
George L. Russell, III
United States District Judge

9

The Court notes that qualified immunity is not a defense
to claims brought under the Maryland Declaration of Rights.
Wallace v. Poulos, No. DKC 2008-0251, 2009 WL 3216622, at *15
(D.Md. Sept. 29, 2009) (citing Okwa v. Harper, 757 A.2d 118 (Md.
2000)).
20