Walker et al v. Maryland et al
MEMORANDUM AND ORDER GRANTING 47 Motion to Dismiss, or in the Alternative, for Summary Judgment; GRANTING 50 Motion to Dismiss for Failure to State a Claim; DISMISSING all claims in plaintiffs' 3 Complaint; Plaintiffs may, by 10/15/17, file an amended complaint consistent with this opinion. Signed by Judge Marvin J. Garbis on 8/30/2017. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VERONICA WALKER, et al.
* CIVIL ACTION NO. MJG-16-3136
STATE OF MARYLAND, et al.
MEMORANDUM AND ORDER RE: DISMISSAL MOTIONS
The Court has before it Defendants1 State of Maryland, et
al.’s Motion to Dismiss Or, In the Alternative, Motion for
Summary Judgment [ECF No. 47], Defendant Reginald Heavener’s
Motion to Dismiss [ECF No. 50], and the materials submitted
The Court finds that a hearing is
On September 13, 2013, inmate Jason Wallace (“Wallace” or
“Decedent”) was beaten to death by his cellmate, Darnell
Thompson (“Thompson”), in their cell at Western Correctional
Thompson was later convicted of second degree
murder for the death of Wallace.
Wallace’s parents, Veronica
Defendants State of Maryland, Roderick R. Sowers, Frank B.
Bishop, Jr., Captain George Sneathen, William May, David Stevey,
and Drew Cook.
Walker2 and Gilbert Wallace, and his surviving minor children,
V.W. and K.W., (collectively, “Plaintiffs”), bring the instant
suit against the State of Maryland, the former Secretary of the
Maryland Department of Public Safety and Correctional Services
(“DPSCS”) Gary D. Maynard, the Director of Corrections Roderick
R. Sowers, the former Warden Frank B. Bishop, Jr., Captain
George Sneathen, Correctional Officer William May, Correctional
Officer Reginald Heavener, Correctional Officer David Stevey,
Correctional Officer Drew Cook, and three “John Doe”
Correctional Officers (collectively, “Defendants”).
present federal and state constitutional claims and state law
By the instant Motions, Defendants seek dismissal pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in
the alternative, for summary judgment pursuant to Rule 56.3
Court finds the summary judgment motion premature and disallows
it without prejudice.
As discussed herein, the Court finds that the Complaint4
does not adequately state a plausible claim against the State of
Maryland or any individual Defendant.
The State of Maryland is
Individually and as Personal Representative of the Estate
of Jason Wallace.
Defendant Heavener’s separate Motion [ECF No. 50] does not
request summary judgment.
References herein to “Complaint” are to the redacted
Complaint [ECF No. 3].
immune from suit in federal court on the claims at issue by
virtue of the Eleventh Amendment.
Each Individual Defendant5 is
entitled to dismissal due to the absence of factual allegations
adequate to present a plausible claim against him.
may be possible for Plaintiffs to draft an adequate Complaint
against some, if not all, of the Individual Defendants, the
Court shall provide them the opportunity to file an Amended
Complaint asserting such claims, if any, they adequately can
A motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6)7 tests the legal sufficiency of a complaint.
A complaint need only contain “a short and plain statement of
the claim showing that the pleader is entitled to relief, in
order to give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.”
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)(citations omitted).
Roderick R. Sowers, Frank B. Bishop, Jr., Captain George
Sneathen, William May, David Stevey, Reginald Heavener, and Drew
Plaintiffs state, for some unspecified reason that they
consent to dismissing their § 1983 claims against all Defendants
except the State and Officer Heavener. Pls.’ Opp. [ECF No. 70-1]
at 10. This statement does not bar Plaintiffs from asserting
any such claims in the Amended Complaint.
All “Rule” references herein are to the Federal Rules of
evaluating a 12(b)(6) motion to dismiss, a plaintiff’s wellpleaded allegations are accepted as true and the complaint is
viewed in the light most favorable to the plaintiff.
conclusory statements or a “formulaic recitation of the elements
of a cause of action” will not suffice.
A complaint must
allege sufficient facts to “cross ‘the line between possibility
and plausibility of entitlement to relief.’”
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)(quoting Twombly,
550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim
is “a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
if the well-pleaded facts contained within a complaint “do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown –
that the pleader is entitled to relief.”
Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009)).
Generally, a motion to dismiss filed under Rule 12(b)(6)
cannot reach the merits of an affirmative defense.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007).
affirmative defenses are appropriate to consider at the Rule
12(b)(6) stage “when the face of the complaint clearly reveals
the existence of a meritorious affirmative defense.” Occupy
Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013) (emphasis
added) (quoting Brockington v. Boykins, 637 F.3d 503, 506 (4th
A. Factual Allegations8
At times relevant hereto, Jason Wallace was incarcerated at
the Maryland Western Correctional Institution (“WCI”).
September 3, 2013, Wallace was assigned by someone not
identified to a cell occupied by one Darnell Thompson
(“Thompson”) in Housing Unit #3 B-Wing.
The Complaint alleges
“upon information and belief” that Wallace was assigned by some
unspecified Defendant to share the cell with Thompson, then
serving a life sentence for murder, intentionally as retaliation
for an “earlier altercation” between Wallace and a WCI staff
member. ¶9 27.
Moreover, Thompson had been charged with and
convicted of two crimes committed while he was incarcerated —
reckless endangerment in 2002 and second degree assault on law
enforcement in 2009. ¶¶ 32-33.
Thompson had a history of
violence in prison, including attacking inmates, and it was
well-known that he suffered from a mental illness.
allegedly “ate foreign objects, put strange materials in his
The “facts” are stated herein as alleged in the Complaint
and are not necessarily agreed to by Defendants.
All “¶” references herein are to paragraphs in the
Complaint [ECF No. 3].
hair, would constantly talk to himself, talked about hurting
others, and walked around the prison and pretended like he was
shooting others.” ¶ 34.
Despite these behaviors, Thompson was
not assigned to a single cell or put in segregated housing.
Wallace reported to an unspecified person at unspecified
times Thompson’s “unbalanced behavior” and threats against
Wallace of “impending violence and/or death and other strange
and irrational behavior.” ¶ 31.
On September 3, 2013, Wallace wrote a letter to his family
wherein he stated that he was concerned for his safety and
wanted to be transferred into a different cell. ¶ 26.
Complaint does not allege that Wallace requested a transfer in
On the night of Wallace’s murder, September 13, 2013, the
video cameras in Housing Unit #3 B-Wing were broken and not
functioning. ¶ 50.
On September 13, 2013, Defendant Captain George Sneathen
was the highest ranking official in charge of B-Wing.
Officer Drew Cook was the Officer in Charge of B-Wing, and
Defendants Officers Stevey, Heavener, and May were assigned as
officers “responsible for the supervision, inspection, search,
and placement of inmates assigned to Housing Unit #3 B-Wing.” ¶¶
After dinner on September 13, Wallace and Thompson were
locked in their cell.
An unidentified officer conducted a head
Sometime between 6:00 and 6:30 p.m., Thompson was taken
out of his cell by Defendant Stevey to the Special Housing
Observation Unit for urinalysis testing.10 ¶ 47. Defendant Stevey
did not observe the cell when he took Thompson to the
Observation Unit. Id.
At some time after the head count and before the time when
Thompson was summoned out of his cell, Thompson brutally
assaulted and killed Wallace.
During the assault, there was a
“prolonged struggle, yelling for help, suspicious movement
and/or noises emanating” from Wallace’s cell. ¶ 46.
Complaint does not allege where Officers Sneathen, Cook,
Heavener, Stevey, and May were located during this time.
there any factual allegation as to whether they saw or heard
anything regarding the altercation.
No Officer took any action
to stop the attack.
In the Observation Unit, Thompson was strip searched by
someone who observed blood on his clothing and that his shirt
was ripped. ¶ 47.
Allegedly “up to an hour” after Thompson had left the cell,
It is unclear from the Complaint and briefs whether
Plaintiffs are alleging that Officer Stevey or any other Officer
actually went to Thompson’s cell or saw inside.
another inmate told Defendants Heavener and May that Wallace was
lying on his cell floor, unresponsive, coughing up blood, and
having trouble breathing. ¶ 48.
The Complaint alleges that
Defendants (presumably Heavener and May) at approximately 8:10
PM discovered Wallace’s body in the floor of his cell.
Wallace’s head and chest were under his bunk and blood was
around his body.
“Decedent’s entire facial area was reduced to
mush, his face and forehead had a noticeable deformity, brain
matter was exposed, and his jaw was broken.” ¶ 43.
from his injuries.
B. Procedural Posture
On September 12, 2016, Gilbert Wallace and Veronica Walker,
Individually and as Personal Representative of the Estate of
Jason Wallace, filed the instant Complaint [ECF No. 3].
22, 2017, this Court granted Minor Plaintiffs V.W. and K.W.’s
Motion to Intervene in the case as potential wrongful death
beneficiaries. See Order Re: Intervention [ECF No. 78].
In the Complaint, Plaintiffs assert claims in Seven Counts:
Violation of 42 U.S.C. § 1983
Violation of Maryland Declaration of Rights
Articles 24 and 26
Compl. [ECF No. 3].
On March 6, 2017, Defendant State of Maryland and the
Individual Defendants, other than Reginald Heavener and the
“John Doe” Defendants,11 filed the instant Motion to Dismiss, or,
in the Alternative, Motion for Summary Judgment [ECF No. 47].
On the same day, Defendant Heavener filed his separate Motion to
Dismiss [ECF No. 50].
All movants seek dismissal of all Counts.
C. Sovereign Immunity — the Eleventh Amendment
Defendant State of Maryland contends that it is immune from
Plaintiffs’ claims in this suit by virtue of the Eleventh
Amendment to the Constitution of the United States.
Eleventh Amendment provides: “The Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or subjects of any
U.S. Const. amend. XI.
states are immune from suit in federal court, even by their own
The unnamed “John Doe” Defendants, identified as Officer
#1, Officer #2, and Officer #3 in the Complaint, have not been
identified, nor are they stated to be movants of the instant
motions to dismiss.
citizens, absent an exception.
See Lee-Thomas v. Prince
George’s Cty. Pub. Sch., 666 F.3d 244, 248-49 (4th Cir. 2012).
None of the exceptions are applicable here.
Congress did not abrogate States’ Eleventh
Amendment immunity for 42 U.S.C. § 1983
claims. See Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 65–66, 109 S.Ct. 2304,
105 L.Ed.2d 45 (1989) (finding that a state
is not a person within the meaning of § 1983
and that Eleventh Amendment bars § 1983
suits unless the state has waived its
inapplicable here because Plaintiffs are not
seeking any prospective injunctive relief,
but instead only damages. Finally, the State
of Maryland has not waived its Eleventh
Amendment immunity in this case.
Hodge v. Coll. of S. Maryland, 121 F. Supp. 3d 486, 495 (D. Md.
2015)(involving Fourteenth Amendment claim against State of
“The waiver of sovereign immunity in the Maryland
Torts Claims Act clearly limits the state’s waiver of immunity
to actions brought in the Maryland state courts.
waiver of immunity from suit in state court ‘is not enough to
waive the immunity guaranteed by the Eleventh Amendment.’”
Weller v. Dep’t of Soc. Servs. for City of Baltimore, 901 F.2d
387, 397–98 (4th Cir. 1990)(citations omitted)(quoting
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985));
see also Hyde v. Maryland State Bd. of Dental Examiners, No.
1:16-CV-02489-ELH, 2017 WL 2908998, at *7 (D. Md. July 7,
Accordingly, the Eleventh Amendment bars Plaintiffs from
pursuing this suit against the State of Maryland in federal
All claims against the State shall be dismissed.
In addition, the Eleventh Amendment also precludes suits
brought against state employees in their official capacities
because, in those circumstances, the State is the real,
substantial party in interest. See Brandon v. Holt, 469 U.S.
464, 471-72 (1985).
Thus, “[t]he general rule is that relief
sought nominally against an officer is in
fact against the sovereign if the decree
would operate against the latter.” And, as
when the State itself is named as the
defendant, a suit against state officials
that is in fact a suit against a State is
damages or injunctive relief.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–02
(1984)(internal citations omitted).
Accordingly, all federal
claims12 against the Individual Defendants in their official
capacities shall be dismissed.
The Court will herein discuss all claims against the
Individual Defendants asserted against them in their individual
“The official/individual capacity distinction that is a
part of 42 U.S.C. § 1983 does not apply to Maryland
constitutional violations.” Barbre v. Pope, 935 A.2d 699, 703
n.4 (Md. 2007).
D. Count I — Federal Constitutional Claims
Plaintiffs assert claims pursuant to 42 U.S.C. § 1983 for
alleged violations of the rights provide by the Eighth and
Fourteenth Amendments to the United States Constitution.
Section 1983 provides in pertinent part:
Every person who, under color of [state law]
subjects, or causes to be subjected, any
citizen of the United States . . . to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured
. . . .
42 U.S.C. § 1983 (2012).
To establish a § 1983 claim, a plaintiff must prove that a
1. Acted under color of state law,
2. Deprived him/her of a right secured by the
3. Is not entitled to qualified immunity.13
Color of State Law
There is no doubt that all pertinent actions of Defendants
were performed under color of state law, i.e., as state
That is, the right must have been clearly established at
the time of events at issue. See Graham v. Gagnon, 831 F.3d 176,
182 (4th Cir. 2016).
2. Deprivation of Rights
a. Eighth Amendment Violation
Plaintiffs claim that Defendants violated Wallace’s Eighth
Amendment rights by failing to protect him from Thompson and by
inadequately attending to his medical needs after the attack.
The Eighth Amendment to the United States Constitution
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted.
U.S. Const. amend. VIII.
The Complaint asserts that Defendants violated Wallace’s
Eighth Amendment rights by
to protect Decedent from physical
harm inflicted by Thompson, despite specific
knowledge of Thompson’s history of violence
prior to and while in prison, his history of
attempts and/or threats to severely injure
and/or murder other inmates and staff at
Western Correctional, in direct violation of
Western Correctional’s policies, procedures,
“The Eighth Amendment imposes a duty on prison officials
‘to protect prisoners from violence at the hands of other
prisoners.’” Odom v. S.C. Dep’t of Corr., 349 F.3d 765, 770 (4th
Cir. 2003)(quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)).
To establish a failure to protect claim under the Eighth
Amendment’s prohibition of cruel and unusual punishment, a
plaintiff must prove that:
1. there was a “sufficiently serious” deprivation, and
2. the defendants had a “sufficiently culpable state of
Farmer, 511 U.S. at 834.
To meet the first part of the test, “the inmate must show
that he is incarcerated under conditions posing a substantial
risk of serious harm.” Id. “[T]o demonstrate such an extreme
deprivation, a prisoner must allege a serious or significant
physical or emotional injury resulting from the challenged
conditions . . . .”
Odom, 349 F.3d at 770 (alteration in
original)(quoting De’Lonta v. Angelone, 330 F.3d 630, 634 (4th
Here, Wallace died as a result of the challenged
condition of being forced to share a cell with an allegedly
violent, mentally unstable inmate.
Thus, Plaintiffs have
adequately alleged the element of serious harm. See Parker v.
Maryland, 413 F. App’x 634, 638 (4th Cir. 2011)(“Since Parker
was murdered while in custody, the first part of the test is
For the second test, the requisite state of mind “is one of
‘deliberate indifference’ to inmate health or safety.” Farmer,
511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297
Deliberate indifference “entails something more than
mere negligence” but it can be “satisfied by something less than
acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.” Id. at 835. “It is, indeed,
fair to say that acting or failing to act with deliberate
indifference to a substantial risk of serious harm to a prisoner
is the equivalent of recklessly disregarding that risk.” Id. at
Courts apply a subjective standard, under which “the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Id. at 837.
Thus, the Court must decide whether the Complaint presents
adequate allegations to make plausible an inference that a
specific Individual Defendant was aware of facts upon which he
could draw an inference that a substantial risk of serious harm
existed either before or during Thompson’s attack, and that the
Defendant actually drew such an inference.
The Court may
consider as facts only non-conclusory factual allegations in the
According to the Complaint, it was well-known that Thompson
was generally violent, mentally unstable, and threatening.
Additionally, Wallace reported to someone that Thompson had
The Court may not take into consideration any materials or
exhibits attached to the parties’ Motions or facts included in
the Motions that were not included in the Complaint.
Also, the Complaint alleges that Wallace was
purposely assigned to Thompson’s cell as retribution for an
altercation with an unidentified staff member.
As for the
attack itself, the Complaint alleges that there were sounds and
signs of an altercation in Wallace’s cell when he was being
beaten, and that Defendant Stevey should have noticed something
was awry when Thompson left the cell to go to the Observation
The Complaint presents no factual allegations that
adequately connect alleged tortious actions or relevant
knowledge with any particular Individual Defendant.
To state a
claim against an individual under § 1983, a plaintiff must show
“that the official charged acted personally in the deprivation
of the plaintiffs’ rights.”
Vinnedge v. Gibbs, 550 F.2d 926,
928 (4th Cir. 1977)(quoting Bennett v. Gravelle, 323 F. Supp.
203, 214 (D. Md. 1971), aff’d 451 F.2d 1011 (4th Cir. 1971)).
To the extent the Complaint purported to present any claims
against the Warden, the Secretary of the Department of Public
Safety and Correctional Services, or other supervisors,
respondeat superior liability does not apply in § 1983 cases.
See Monell v. Department of Social Services, 436 U.S. 658, 691
(1978); Love–Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004);
see also Eastman v. Warden, Baltimore City Det. Ctr., No. CIV.A.
CCB-10-2389, 2011 WL 210343, at *2 (D. Md. Jan. 21,
2011)(finding an inmate’s claim against the Warden defective
when the inmate “raises no allegations in the complaint against
There must be a personal connection between the
Defendants and the denial of Wallace’s constitutional rights.
The Complaint does not clearly, if at all, allege who did
what and who knew what regarding Thompson’s behavior and alleged
The Complaint does not state who it was that assigned
Wallace to Thompson’s cell as retaliation, with whom Wallace had
an altercation, or who knew the pertinent facts.
also fails to allege which Defendants were present on Housing
Tier #3 B-Wing and where they were located at the time of the
assault so as to present a plausible claim that they knew15 that
an assault was happening yet failed to take possible action or
provide medical care to help Wallace.
Therefore, the Complaint does not adequately present a
plausible claim for violation of the Eighth Amendment against
any of the Individual Defendants.
Eighth Amendment claims in Count I shall be dismissed.
However, the Court cannot determine on the present record
whether Plaintiffs can plead a plausible Eighth Amendment claim
against one or more of the Individual Defendants and shall
The non-operational state of the cameras is a fact that
cuts against Plaintiffs’ claim that Defendants contemporaneously
were aware of the assault.
provide them an opportunity to file an Amended Complaint to
attempt to do so.
b. Fourteenth Amendment Violation
The Fourteenth Amendment to the United States Constitution
provides, in pertinent part:
No State shall . . . deprive any person of
life, liberty, or property, without due
process of law.
U.S. Const. amend. XIV, § 1.
In the Complaint, Plaintiffs state that the Defendants
violated Wallace’s Fourteenth Amendment “right to be free from
the deprivation of life and liberty without due process of law.”
This claim is based upon Wallace’s death at the hands of
Thompson and stems from Plaintiffs’ Eighth Amendment failure to
protect and render aid claims.
Plaintiffs have not alleged that
Wallace was denied any procedural rights, and have not made out
any procedural due process claim.
An inmate’s Fourteenth
Amendment substantive due process claim is essentially
equivalent to an Eighth Amendment claim.16
Cf., Hill v. Nicodemus, 979 F.2d 987, 990-91 (4th Cir.
1992); Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001); KingFields v. Leggett, No. CIV.A. ELH-11-1491, 2014 WL 694969, at
*10 (D. Md. Feb. 19, 2014)(Hollander, J.)(applying Eighth
Amendment standards used to assess claims brought by convicted
prisoners to Fourteenth Amendment claims asserted by pretrial
To state a substantive due process claim, a plaintiff must
allege that a defendant abused executive power in a way that
“shocks the conscience” because of its egregiousness. Cty. of
Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998).
deliberate indifference standard used in Eighth Amendment cases
may also “satisfy the fault requirement for due process
Id. at 850.
Allegations of negligent lack of due care
by prison officials do not trigger procedural or substantive due
process protections.17 Davidson v. Cannon, 474 U.S. 344, 348
The Complaint contains allegations that possibly could
present a plausible claim of violation of Wallace’s due process
rights by a particular Defendant who knowingly maliciously
assigned Wallace to share a cell with Thompson, an allegedly
well-known violent and mentally unstable individual, with
knowledge that Thompson had threatened Wallace, or who knew that
a violent beating was occurring in Wallace’s cell, yet
intentionally failed to intervene or provide aid.
allegations in the Complaint regarding the Fourteenth Amendment
claims suffer from the same defects as the Eighth Amendment
Thus, any claims based upon negligent failure to follow
policies or provide adequate resources or staff are
claims in that the allegations fail to connect concrete actions
and knowledge with specific individuals.
Therefore, Plaintiffs’ Fourteenth Amendment claims in Count
I shall be dismissed.18
Nevertheless, the Court shall provide
Plaintiffs the opportunity to file an Amended Complaint to
attempt to file plausible claims against one or more of the
E. Counts II - VII — State Law Claims
In Counts II through VII, Plaintiffs state claims under the
Maryland Declaration of Rights Articles 2419 and 26,20 and common
law claims of wrongful death, a survival action, negligence,
gross negligence, and funeral expenses.
The Declaration of Rights claims are essentially
duplicative of the federal constitutional claims under Count I.21
In light of the inadequate allegations against any
Individual Defendant, the Court shall refrain from considering
the application of qualified immunity at this time.
“[N]o man ought to be taken or imprisoned or disseized of
his freehold, liberties or privileges. . . or deprived of his
life, liberty or property, but by the judgment of his peers, or
by the Law of the land.” Md. Const. Decl. of Rts. art. XXIV.
“[A]ll warrants, without oath or affirmation, . . . to
seize any person or property, are grievous and oppressive.” Md.
Const. Decl. of Rts. art. XXVI.
Although Plaintiffs nominally bring claims pursuant to
Articles 24 and 26 of the Maryland Declaration of Rights, the
substance of their claims seems to fall under Article 25, the
analogue to the Eighth Amendment. Article 25 provides,
See Okwa v. Harper, 757 A.2d 118, 140–41 (Md. 2000).
Defendants assert that Plaintiffs’ state law claims
must fail because, among other things, Plaintiffs have
failed to comply with the notice provision of the Maryland
Tort Claims Act (“MTCA”), and additionally, that the
Individual Defendants are entitled to MTCA statutory
immunity from Plaintiffs’ state constitutional and common
1. MTCA Notice Provision
Section 12-106(b) of the MTCA provides, subject to
certain exceptions not here pertinent, that “a claimant may
not institute an action under this subtitle unless:
(1) the claimant submits a written claim to the Treasurer
or a designee of the Treasurer within 1 year after the
injury to person or property that is the basis of the
(2) the Treasurer or designee denies the claim finally; and
(3) the action is filed within 3 years after the cause of
Md. Code Ann., State Gov’t § 12-106(b) (2014 Repl. Vol.).
However, a claimant may sue a state official without
providing notice under the MTCA if the claimant
“That excessive bail ought not to be required, nor
excessive fines imposed, nor cruel or unusual punishment
inflicted, by the Courts of Law.”
Md. Const. Decl. of Rts. art. XXV.
sufficiently alleges malicious or grossly negligent
See Barbre v. Pope, 935 A.2d 699, 714 (Md. 2007).
Plaintiffs allege in their Opposition brief that they
complied with the notice provision, but failed to plead
such compliance. Pls.’ Opp’n [ECF No. 70] at 31. Plaintiffs
may correct this oversight in an Amended Complaint.
2. Statutory Immunity
Section 12-105 of the MTCA provides that “State
personnel shall have the immunity from liability described
under § 5-522(b) of the Courts and Judicial Proceedings
Article.” Md. Code Ann., State Gov’t § 12-105.
State personnel, as defined in § 12-101 of
the State Government Article, are immune
from suit in courts of the State and from
liability in tort for a tortious act or
omission that is within the scope of the
public duties of the State personnel and is
made without malice or gross negligence.
Md. Code Ann., Cts. & Jud. Proc. § 5-522(b)(2013 Repl. Vol.)
“If ‘State personnel’ perform a negligent
act, for which the State has waived immunity, then ‘State
personnel’ are immune from suit.” Conaway v. State, 672 A.2d
162, 172 (Md. Ct. Spec. App. 1996); see also Young v. City Of
Mt. Ranier, 238 F.3d 567, 578 (4th Cir. 2001).
immunity extends to claims for violations of the state
constitution. See Lee v. Cline, 863 A.2d 297, 310 (Md. 2004).
“State personnel” includes “a State employee or official
who is paid in whole or in part by the Central Payroll Bureau in
the Office of the Comptroller of the Treasury.”
State Gov’t § 12-101(a)(1).
Md. Code Ann.,
There has been presented no reason
why the Individual Defendants22 are not state employees or should
not qualify as “state personnel.”
Cf. Cooper v. Rodriguez, 118
A.3d 829 (Md. 2015)(applying MTCA immunity analysis to claims
against state correctional officers).
Thus, Plaintiffs’ negligence claims in Count V, and any
other common law claims based on negligent conduct, shall be
dismissed because the Individual Defendants are immune from such
However, the scope of statutory immunity does not extend to
tortious actions committed with malice or gross negligence.
“Malice” for statutory immunity purposes “requires a
showing that ‘the official intentionally performed an act
without legal justification or excuse, but with an evil or
rancorous motive influenced by hate, the purpose being to
deliberately injure the plaintiff’” and “may be inferred from
the surrounding circumstances.”
Talley v. Farrell, 156 F. Supp.
The Individual Defendants positions are as follows:
Secretary of the Maryland DPSCS, Director of Corrections, Warden
of WCI, Captain at WCI, and Correctional Officers at WCI.
2d 534, 545 (D. Md. 2001)(citations omitted)(quoting Green v.
Brooks, 725 A.2d 596, 610 (Md. Ct. Spec. App. 1999)).
Plaintiffs “‘must allege with some clarity and precision those
facts which make the act malicious.’” Id.
Gross negligence, in the context of statutory immunity, has
been defined as:
something more than simple negligence, and
likely more akin to reckless conduct; gross
negligence is “an intentional failure to
disregard of the consequences as affecting
the life or property of another, and also
implies a thoughtless disregard of the
consequences without the exertion of any
effort to avoid them.”
Cooper, 118 A.3d at 845-46 (quoting Barbre, 935 A.2d at 717).
As described herein, the conduct and knowledge alleged in
the Complaint, particularly the allegation that Wallace was
deliberately assigned to Thompson’s cell as punishment, might
present against one or more of the Individual Defendants a
plausible claim of malice or gross negligence necessary to
overcome statutory immunity.
Nevertheless, as stated before,
the Complaint as drafted suffers from a lack of adequate
particularity as to which specific individual Defendants could
be held to have had malice or acted with gross negligence.
Accordingly, Count II (Maryland Declaration of Rights),
Count III (wrongful death), Count IV (survival action), Count V
(negligence), and Count VI (gross negligence) shall be dismissed
against the Individual Defendants.23
Plaintiffs may, however,
include any adequately presented Maryland law claims against
individual Defendants in the permitted Amended Complaint.
3. Count VII — Funeral Expenses
Plaintiffs assert a claim as a separate Count for recovery
of funeral expenses.
A personal representative may recover
funeral expenses, in addition to other damages, in a survival
action pursuant to § 7-401(y) of the Estates and Trusts Article.
Md. Code Ann., Est. & Trusts § 7-401(y) (2011 Repl. Vol.).
Thus, a separate cause of action for funeral expenses is
included within and essentially duplicative of Plaintiffs’
§ 7-401 survival action asserted in Count IV.
Accordingly, the claims in Count VII shall be dismissed.
For the foregoing reasons:
1. Defendants’ Motion to Dismiss, Or In the Alternative,
for Summary Judgment [ECF No. 47] and Defendant Reginald
Heavener’s Motion to Dismiss [ECF No. 50] are GRANTED.
2. All claims in Plaintiffs’ Complaint [ECF No. 3] are
Because the Court finds that the Individual Defendants are
entitled to statutory immunity, it is not necessary for the
Court to address Defendants’ public official immunity defenses.
But see Cooper, 118 A.3d at 849 (holding that gross negligence
is an exception to public official immunity).
3. The following claims are dismissed with prejudice:
a. All claims against the State of Maryland;
b. Count V (Negligence); and
c. Count VII (Funeral Expenses).
4. Plaintiffs may, by October 15, 2017, file an Amended
Complaint consistent with this opinion.
SO ORDERED, this Wednesday, August 30, 2017.
Marvin J. Garbis
United States District Judge
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