Cottman v. State of Maryland et al

Filing 61

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 8/29/2017. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NICHOLAS COTTMAN,

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Plaintiff

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v.

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STATE OF MARYLAND, et al.,

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Defendants.
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Civil Action No. RDB-16-3306

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MEMORANDUM OPINION
Plaintiff Nicholas Cottman (“Plaintiff” or “Cottman”), a former1 inmate at the
Maryland Reception, Diagnostic & Classification Center (“MRDCC”), has brought this
action against the State of Maryland, current Secretary of the Maryland Department of
Public Safety and Correctional Services (“DPSCS”) Stephen T. Moyer (“Secretary Moyer”),
in his official capacity2, and former MRDCC Warden Tyrone Crowder (“Crowder”),
individually and in his official capacity3 (collectively the “State Defendants”); MRDCC
“supervising correctional officer” Lieutenant Neil Dupree (“Dupree”), individually and in his
official capacity; MRDCC “corrections officer[s]” Kwasi Ramsey (“Ramsey”), Richard Hanna
(“Hanna”), Jemiah Green (“Green”), and additional “Unknown Corrections Officer(s),”
individually and in their official capacities; and “Unknown Nurses,” individually and in their

1 Cottman is now incarcerated at the “North Branch Correctional Institution at 14100 McMullen Highway,
SW, in Cumberland, Maryland 21502.” Compl., ¶ 10, ECF No. 1.
2 Secretary Moyer did not yet hold the office of Secretary of the Maryland Department of Public Safety and
Correctional Services at the time of the facts alleged in the Complaint. Rather, former Secretary Gary D.
Maynard was the DPSCS Secretary at that time. Cottman has sued Secretary Moyer “in the shoes of all of his
predecessors.” Compl., ¶ 19, ECF No. 1.
3 It is undisputed that Crowder was in fact the Warden of the Maryland Reception, Diagnostic &
Classification Center at the time of the events alleged in Cottman’s Complaint (ECF No. 1).

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official capacities. Compl., ¶¶ 10-22, ECF No. 1. Cottman alleges Excessive Force, in
violation of Article 24 of the Maryland Declaration of Rights (Count One); Cruel and
Unusual Punishment, in violation of Articles 16 and 25 of the Maryland Declaration of
Rights (Count Two); Violations of his Right to Free Speech under Article 40 of the Maryland
Declaration of Rights (Count Three); Battery (Count Four); Intentional Infliction of
Emotional Distress (Count Five); Conspiracy (Count Six); Negligent Hiring, Training,
Retention, and Supervision (Count Seven); Gross Negligence (Count Eight); Respondeat
Superior (Count Nine); Deliberately Indifferent Policies, Practices, Customs, Training, and
Supervision, in violation of Articles 16, 24, 25, and 40 of the Maryland Declaration of Rights
(Count Ten)4; Cruel and Unusual Punishment, in violation of the Eighth Amendment to the
United States Constitution, pursuant to 42 U.S.C. § 1983 (Count Eleven); Violations of his
Due Process Rights under the Fourteenth Amendment to the United States Constitution,
pursuant to 42 U.S.C. § 1983 (Count Twelve); Violations of his Right to Free Speech under
the First Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983
(Count Thirteen); and a Monell liability claim5, pursuant to 42 U.S.C. § 1983 (Count
Fourteen); in connection with his alleged assault by corrections officers Ramsey, Hanna, and
Green on September 30, 2013. Id. ¶¶ 87-260.6

4 Articles 16, 24, 25, and 40 of the Maryland Declaration of Rights are interpreted in pari materia with their
federal counterparts, the First, Eighth, and Fourteenth Amendments to the United States Constitution. See,
e.g., Borzilleri v. Mosby, 189 F. Supp. 3d 551, 557 (D. Md. 2016); Evans v. State, 914 A.2d 25, 67 (Md. 2006);
Pitsenberger v. Pitsenberger, 410 A.2d 1052, 1056 (Md. 1980).
5 Under the United States Supreme Court’s decision in Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658 (1978), a Section 1983 cause of action may lie against a local government or municipality when execution of
the government’s unconstitutional policy or custom causes a plaintiff injury. See also Walker v. Prince George’s Co., 575
F.3d 426, 431 (4th Cir. 2009) (stating that the liability of the municipality only arises where the employees’
unconstitutional actions are taken in furtherance of a municipal policy or custom). 
6 Kevin Younger, one of four other prisoners allegedly assaulted by Ramsey, Hanna, and Green on that day,
has also filed a Section 1983 civil rights action in this Court against the State of Maryland, Secretary Moyer,

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Currently pending before this Court are the State Defendants’ Motion to Dismiss or,
in the alternative, for Summary Judgment (ECF No. 24) and Defendant Dupree’s Motion to
Dismiss or, in the alternative, for Summary Judgment (ECF No. 41).7 This Court has reviewed
the parties’ submissions, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons stated herein, the State Defendants’ Motion to Dismiss (ECF No. 24) is
GRANTED as to all claims against the State of Maryland, all claims against Secretary Moyer,
and Cottman’s claims against former Warden Crowder in his official capacity, pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure, but is DENIED as to Cottman’s
claims against Crowder in his individual capacity.8 Dupree’s Motion to Dismiss (ECF No. 41)
is also GRANTED as to Cottman’s claims against Dupree in his official capacity, pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure, but is DENIED as to Cottman’s
claims against Dupree in his individual capacity. Additionally, the State Defendants’ Motion
to Dismiss (ECF No. 24) and Defendant Dupree’s Motion to Dismiss (ECF No. 41) are

Crowder, Dupree, Ramsey, Hanna, and Green, among others. See Younger v. Crowder, et al., RDB-16-3269. Via
Memorandum Opinion and Order of August 22, 2017 (ECF Nos. 72 & 73), this Court has now dismissed
Younger’s claims against the State of Maryland and Secretary Moyer.
7 Defendants Ramsey, Hanna, and Green have not moved to dismiss Cottman’s claims against them. The
Clerk of this Court has entered Orders of Default (ECF Nos. 31 & 55) against both Green and Hanna for
failure to plead or otherwise defend, and Ramsey has filed an Answer to the Complaint (ECF No. 32).
Presently pending is Cottman’s Motion to Strike Ramsey’s Answer to the Complaint (ECF No. 35) on the
grounds that Ramsey’s Answer is untimely and was in fact filed after the Clerk of this Court had already
entered an Order of Default against Ramsey. However, via Order dated May 31, 2017 (ECF No. 52), this
Court has previously set aside that Order of Default against Ramsey and has already specifically ordered that
Ramsey’s Answer “not be stricken.” It is within this Court’s discretion to extend the deadline by which a
defendant must file an Answer. See, e.g., White v. Gregory, 1 F.3d 267, 270 (1993). Accordingly, Cottman’s
Motion to Strike Ramsey’s Answer to the Complaint (ECF No. 35) is now MOOT.
8 Although Defendants have moved, in the alternative, for summary judgment, this Court will not convert
their motions to motions for summary judgment. Cottman has not yet had the benefit of discovery in this
case and, accordingly, has “had no opportunity to refute any of the facts submitted by Defendants.” Pl.
Response, p. 19, ECF No. 27. “Generally speaking, ‘summary judgment [must] be refused where the
nonmoving party has not had the opportunity to discover information that is essential to his opposition.’ ”
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 n. 5 (1986)).

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both DENIED as to Cottman’s Conspiracy claim (Count Six). Therefore, Defendants State
of Maryland and Secretary Moyer are DISMISSED from this action, and all claims against
Crowder and Dupree in their official capacities are also DISMISSED. Accordingly, Counts
Seven, Nine, Ten, and Fourteen, which named the State of Maryland, Secretary Moyer, and
Defendants Crowder and Dupree in their official capacities only, are also DISMISSED in their
entirety. All other claims, including those against Crowder and Dupree in their individual
capacities in Counts One, Two, Three, Four, Five, Six, Eight, Eleven, Twelve, and Thirteen
of the Complaint, shall remain.9
BACKGROUND
At the motion to dismiss stage, this Court accepts as true the facts alleged in the
Plaintiff’s Complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011).

On

September 29, 2013, Plaintiff Nicholas Cottman (“Plaintiff” or “Cottman”) was an inmate at
the Maryland Reception, Diagnostic & Classification Center (“MRDCC”). Compl., ¶ 23,
ECF No. 1. That evening, “he witnessed a fight between two inmates and a correction
officer” in a “large dormitory style room,” where he was housed.

Id. ¶¶ 23-24.

9 Also pending is Defendant Hanna’s recent request that this Court set aside the Clerk’s Order of Default
against him (ECF No. 55), pursuant to Rule 55(c) of the Federal Rules of Civil Procedure. See Response, p. 1,
ECF No. 56. Hanna represents that he has been named as a defendant in three separate lawsuits pertaining
to the events of September 30, 2013, that “the cost of defending against three separate and simultaneous
lawsuits has caused [him] extreme financial hardship,” and that the complexity of “[t]he various complaints in
separate jurisdictions . . . [has] also contributed to the delays in filing a responsive pleading to this instant
complaint.” Id. Hanna has already filed an Answer in the case of Younger v. Crowder, et al., RDB-16-3269,
referenced supra. He now requests that he be allowed ten days from entry of this Court’s Order to file a
responsive pleading to Cottman’s Complaint. Id. at 2. Rule 55(c) of the Federal Rules of Civil Procedure
authorizes this Court to “set aside an entry of default for good cause.”   The determination of whether good
cause has been shown by the movant is within the sound discretion of this Court. See Consolidated Masonry &
Fireproofing, Inc. v. Wagman Construction Corp., 383 F.2d 249, 251 (4th Cir. 1967). As discussed supra, this Court
has previously set aside the Clerk’s Order of Default against Ramsey, upon a similar petition filed by Ramsey.
See Order, ECF No. 52. For these reasons, the Clerk’s Order of Default against Defendant Hanna (ECF No.
55) shall also be SET ASIDE, and Hanna shall file a responsive pleading to the Complaint within ten (10)
days of this Court’s Order, as requested by counsel for Hanna.

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“Immediately after the conclusion of the fight, the inmates who were involved in the
altercation were removed from the dorm where the fight occurred and placed in various cells
in the MRDCC.” Id. ¶ 27. Although Cottman “was not involved in this fight,” he “and at
least two other inmates” were also removed “and placed in other cells at the MRDCC.” Id.
¶¶ 26-28. Cottman “was placed in a cell by himself.” Id. ¶ 30.
On the morning of September 30, 2013, former MRDCC Warden Tyrone Crowder
(“Crowder”) and “supervising correctional officer” Lieutenant Neil Dupree (“Dupree”) both
appeared at “ ‘roll calls,’ during which corrections officers starting their shift met and were
briefed.” Id. ¶ 31. Cottman alleges that Crowder and Dupree “held up the pictures of all of
the five inmates that had been removed from the dorm room after the fight” the previous
evening, including Cottman, “effectively putting a ‘hit’ out on the[m].” Id. ¶¶ 32-35. He
claims that Crowder and Dupree specifically “identified the five inmates as being responsible
for the fight” and stated that they were “looking for” them, “[d]espite official documents
reflecting that there was no time when [their] location was unknown.” Id. ¶¶ 32-33.
Corrections officers Kwasi Ramsey (“Ramsey”), Richard Hanna (“Hanna”), and
Jemiah Green (“Green”) “attended at least one of the roll calls” that morning. Id. ¶ 36.
Cottman alleges that they were “well known to the inmates, staff and administration as
violent enforcers of jail policies and procedures,” and that Crowder and Dupree “had
knowledge of each of [their] histories of violence.” Id. ¶¶ 37, 80. Cottman claims that
Ramsey, Hanna, and Green “believed that [the five] inmates, including [himself], had fought
with a corrections officer on the previous evening” and “sought to exact revenge on [them].”
Id. ¶ 38. Accordingly, they “moved systematically from one cell . . . to the next, brutally
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assaulting each of the five inmates, including [Cottman],” with the assistance of “unknown
correctional officer[s] who had the keys for [their] respective cell[s].” Id. ¶¶ 40-41.
Cottman alleges that Ramsey, Hanna, and Green entered his cell, told him to “get up”
and proceeded to “kick” and “strike” his face, shoulder, and arm.” Id. ¶¶ 44-47. “Ramsey
struck Mr. Cottman with [ ] handcuffs wrapped around his hands, . . . at least one officer
employed mixed martial arts style punches and kicks, which were designed to inflict
maximum pain, . . . [and] [a]fter the assault, the officers left Mr. Cottman in his cell, bleeding
and drenched in his own blood.” Id. ¶¶ 48-52. “Within two hours of when Mr. Cottman
was assaulted, each of the other four inmates were assaulted . . . in the same brutal manner,”
and “[b]y approximately 8:30 a.m. ‘medical alerts’ began to come in for each of the five
inmates that former Warden Crowder and Lieutenant Dupree had identified in roll call just
two hours before.” Id. ¶¶ 7, 60. Ramsey, Hanna, and Green “proceeded to take each inmate
down individually to the medical wing,” although they “threaten[ed] Mr. Cottman that if he
did not tell the medical staff at MRDCC that [he] had fallen off his bunk, they would beat
him again.” Id. ¶¶ 55, 61. Cottman “complied with the request to concoct a story about
falling out of his bunk,” and “[u]nknown nurses informed [ ] Hanna that they would not
complete a triage report on the injured inmates.” Id. ¶¶ 56, 61. Cottman alleges that
Lieutenant Dupree was responsible “as supervisor to respond to medical alerts” and that he
“accepted the inmates’ assertion that they had ‘fell off a bunk’ or ‘hit their head on their cell’
. . . despite [their] injuries being inconsistent with [that explanation] even to the medically
untrained eye.”

Id. ¶¶ 62-64.

“Lieutenant Dupree failed to seek emergency medical

attention for these inmates or launch an investigation into their injuries despite, by his own
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account, one inmate’s ‘head wrapped up like a mummy,’ another ‘moaning and wheezing’
and another offering that ‘officers beat me up.’ ” Id. ¶ 64.
Cottman contends that the “assaults of the five inmates . . . as a form of discipline . . .
was consistent with culture of the MRDCC under former Warden Crowder’s leadership”
and that Crowder and Dupree encouraged Ramsey, Hanna, and Green “to use vigilante
justice and violence to control inmates and detainees.” Id. ¶¶ 65-66. He further claims that
Crowder “failed to adequately supervise MRDCC corrections officers in proper methods for
disciplining of inmates” and that the Secretary of the Maryland Department of Public Safety
and Correctional Services “had knowledge of Former Warden Crowder and Lieutenant
Dupree’s reputation, tactics, and implementation of policy concerning vigilante justice and
violence as a means of inmate and detainee control.” Id. ¶¶ 69, 86. “An internal affairs
investigation was initiated regarding . . . [the] assault of the five inmates,” and Green,
Ramsey, and Hanna were all criminally indicted in connection with the events alleged herein.
Id. ¶ 76. “Green was tried and found guilty of assault against Mr. Cottman by a jury” and
“Hanna pled guilty to the charges related to the assault on Mr. Cottman on May 6, 2015.”
Id. ¶¶ 77-78. “Crowder is no longer the warden of MRDCC following the . . . assault of the
five inmates.” Id. ¶ 75. Cottman has now brought this civil action against the State of
Maryland, Secretary Moyer, and former Warden Crowder (collectively the “State
Defendants”); Lieutenant Dupree; “corrections officers” Ramsey, Hanna, and Green, and
additional “Unknown Corrections Officer(s);” and “Unknown Nurses,” alleging violations
of his rights under the United States Constitution and the Maryland Declaration of Rights,
Maryland tort law claims, and a single claim of Monell liability against the State of Maryland.
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STANDARD OF REVIEW
I.

Motion to Dismiss Under Rule 12(b)(1) of the Federal Rules of Civil Procedure
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for

lack of subject matter jurisdiction challenges a court’s authority to hear the matter brought
by a complaint. See Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). This
challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the
allegations in the complaint are insufficient to establish subject matter jurisdiction, or a
factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not
true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). With respect
to a facial challenge, a court will grant a motion to dismiss for lack of subject matter
jurisdiction “where a claim fails to allege facts upon which the court may base jurisdiction.”
Davis, 367 F. Supp. 2d at 799. Where the challenge is factual, “the district court is entitled to
decide disputed issues of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at
192. As this Court has explained in Dennard v. Towson Univ., 62 F. Supp. 3d 446, 449 (D. Md.
2014), “[a]n assertion of governmental immunity is properly addressed under Rule 12(b)(1).”
(citing Smith v. WMATA, 290 F.3d 201, 205 (4th Cir. 2002)). A plaintiff carries the burden of
establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).
II.

Motion to Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil Procedure
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain

a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a complaint if it fails to state a claim upon which relief can be granted. The
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purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The United States Supreme Court’s recent
opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009), “require that complaints in civil actions be alleged with greater specificity than
previously was required.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation
omitted). In Twombly, the Supreme Court articulated “[t]wo working principles” that courts
must employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at 678. First,
while a court must accept as true all the factual allegations contained in the complaint, legal
conclusions drawn from those facts are not afforded such deference. Id. (stating that
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to plead a claim); see also Wag More Dogs, LLC v. Cozart, 680 F.3d
359, 365 (4th Cir. 2012) (“Although we are constrained to take the facts in the light most
favorable to the plaintiff, we need not accept legal conclusions couched as facts or
unwarranted inferences, unreasonable conclusions, or arguments.” (internal quotation marks
omitted)). Second, a complaint must be dismissed if it does not allege “a plausible claim for
relief.” Iqbal, 556 U.S. at 679.
ANALYSIS
I.

The State Defendants’ Motion to Dismiss (ECF No. 24)
A.

The State of Maryland

Although Plaintiff Cottman has brought claims against the State of Maryland for
Excessive Force, in violation of Article 24 of the Maryland Declaration of Rights (Count
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One); Cruel and Unusual Punishment, in violation of Articles 16 and 25 of the Maryland
Declaration of Rights (Count Two); Violations of his Right to Free Speech under Article 40
of the Maryland Declaration of Rights (Count Three); Respondeat Superior (Count Nine);
Deliberately Indifferent Policies, Practices, Customs, Training, and Supervision, in violation
of Articles 16, 24, 25, and 40 of the Maryland Declaration of Rights (Count Ten); and a
Monell liability claim, pursuant to 42 U.S.C. § 1983 (Count Fourteen), Cottman now seems to
acknowledge that those claims are barred by “the State’s exercise of Eleventh Amendment
Immunity.” Pl. Response, p. 1, n. 1, ECF No. 27.
As Judge Paul Grimm of this Court has confirmed this month in McIntosh v. Div. of
Corr., No. PWG-16-1320, 2017 WL 3412081, at *4 (D. Md. Aug. 7, 2017), “[t]he Eleventh
Amendment [to the United States Constitution] bars suits for damages against a state in
federal court unless the state has waived sovereign immunity or Congress has abrogated its
immunity.” (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984)).
“Although the State of Maryland has waived its sovereign immunity for certain types of
cases brought in state court, see Md. Code Ann., State Gov’t § 12-104, it has not waived its
immunity under the Eleventh Amendment to suit in federal court.” Id. Additionally,
although “some entities, such as local governing units, have been deemed suable under
§ 1983,” pursuant to the United States Supreme Court’s decision in Monell v. Dep’t of Soc.
Servs. of N.Y, 436 U.S. 658, 690 (1978), “states are not suable under § 1983.” Dingess v.
Virginia Dep't of Corr., No. 7:12CV00630, 2012 WL 6761883, at *1 (W.D. Va. Dec. 31, 2012).
The Supreme Court has made clear in Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)
that states themselves are not suable under Section 1983 because they enjoy Eleventh
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Amendment immunity. “If sovereign immunity has not been waived, federal courts lack
subject-matter jurisdiction over the claim[s].” Robinson v. Pennsylvania Higher Educ. Assistance
Agency, No. GJH-15-0079, 2017 WL 1277429, at *2 (D. Md. Apr. 3, 2017). Therefore, the
State Defendants’ Motion to Dismiss (ECF No. 24) is GRANTED as to Cottman’s claims
against the State of Maryland in Counts One, Two, Three, Nine, Ten, and Fourteen of the
Complaint. All claims against the State of Maryland shall be DISMISSED for lack of
subject-matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Count Fourteen, Cottman’s Monell liability claim against the State of Maryland alone, shall be
DISMISSED in its entirety.
B.

Secretary Stephen T. Moyer

Cottman has brought claims against the current Secretary of the Maryland
Department of Public Safety and Correctional Services (“DPSCS”) Stephen T. Moyer
(“Secretary Moyer”), in his official capacity only, for Negligent Hiring, Training, Retention,
and Supervision (Count Seven); Respondeat Superior (Count Nine); and Deliberately
Indifferent Policies, Practices, Customs, Training, and Supervision, in violation of Articles
16, 24, 25, and 40 of the Maryland Declaration of Rights (Count Ten). Compl., ¶¶ 154-200,
ECF No. 1. As with Cottman’s claims against the State of Maryland, all claims against
Secretary Moyer in his official capacity shall be dismissed under the doctrine of sovereign
immunity. “Although state officials are literally persons, ‘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.’ ” McIntosh, 2017 WL
3412081, at *4 (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (internal
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citations omitted)). Cottman does not contest the dismissal of his claims against Secretary
Moyer in his official capacity. See Pl. Response, p. 1, n. 1, ECF No. 27 (“Plaintiff acknowledges
that the State’s exercise of Eleventh Amendment Immunity prevents him from proceeding
against Defendants Crowder and Moyer in their official capacity.”) As noted supra, he has
raised no claims against Moyer in his individual capacity. Therefore, the State Defendants’
Motion to Dismiss (ECF No. 24) is GRANTED as to Cottman’s claims against Secretary
Moyer in Counts Seven, Nine, and Ten. All claims against Secretary Moyer in his official
capacity shall be DISMISSED for lack of subject-matter jurisdiction, pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure. Accordingly, Counts Nine and Ten, in
which Cottman has named only the State of Maryland and Secretary Moyer, in his official
capacity, shall both be DISMISSED in their entirety.
C.

Former Warden Tyrone Crowder

Cottman has raised a total of eleven counts against the final State Defendant, former
Warden of the Maryland Reception, Diagnostic & Classification Center (“MRDCC”) Tyrone
Crowder (“Crowder”). Cottman has brought claims against Warden Crowder individually and
in his official capacity, for Excessive Force, in violation of Article 24 of the Maryland
Declaration of Rights (Count One); Cruel and Unusual Punishment, in violation of Articles
16 and 25 of the Maryland Declaration of Rights (Count Two); Violations of his Right to
Free Speech under Article 40 of the Maryland Declaration of Rights (Count Three); Battery
(Count Four); Intentional Infliction of Emotional Distress (Count Five); Conspiracy (Count
Six); Gross Negligence (Count Eight); Cruel and Unusual Punishment, in violation of the
Eighth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983 (Count
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Eleven); Violations of his Due Process Rights under the Fourteenth Amendment to the
United States Constitution, pursuant to 42 U.S.C. § 1983 (Count Twelve); and Violations of
his Right to Free Speech under the First Amendment to the United States Constitution,
pursuant to 42 U.S.C. § 1983 (Count Thirteen).

Compl., ¶¶ 87-249, ECF No. 1.

Additionally, Cottman has brought one claim against Crowder in his official capacity only for
Negligent Hiring, Training, Retention, and Supervision (Count Seven). Id. ¶¶ 154-170.
Crowder has now moved to dismiss Cottman’s claims against him.
Cottman’s claims against Crowder, in his official capacity, are likewise barred by the
doctrine of Eleventh Amendment sovereign immunity. As noted supra, “[a]lthough state
officials are literally persons, ‘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.’ ” McIntosh, 2017 WL 3412081, at *4 (quoting
Will, 491 U.S. at 71 (internal citations omitted)). In fact, this Court has specifically held in
Young v. Bishop, No. TDC-16-0242, 2017 WL 784664, at *3 (D. Md. Feb. 28, 2017) that the
Eleventh Amendment immunizes a prison Warden employed by the Maryland Department
of Public Safety and Correctional Services from suit as to all claims, with the exception of
those seeking injunctive relief. As noted above, Cottman has specifically acknowledged
“that the State’s exercise of Eleventh Amendment Immunity prevents him from proceeding
against Defendant[ ] Crowder.” Pl. Response, p. 1, n. 1, ECF No. 27. Therefore, the State
Defendants’ Motion to Dismiss (ECF No. 24) is GRANTED as to Cottman’s claims against
Crowder in his official capacity. All claims against Crowder in his official capacity shall be

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DISMISSED for lack of subject-matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure.
As to Cottman’s claims against Crowder in his individual capacity, Crowder contends
that he is shielded from liability as to all claims under the doctrine of “qualified immunity.”
“Qualified immunity may be invoked by a government official sued in his personal, or
individual, capacity.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir.
2006) (citing Kentucky v. Graham, 473 U.S. 159, 165-67 (1985)). As the United States Court of
Appeals for the Fourth Circuit has explained this month in Humbert v. Mayor & City Council of
Baltimore City, No. 15-1768, 2017 WL 3366349, at *4 (4th Cir. Aug. 7, 2017), “[q]ualified
immunity shields government officials from liability in a § 1983 suit as long as their conduct
has not violated ‘clearly established statutory or constitutional rights of which a reasonable
person would have known.’ ” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To
determine whether an officer is entitled to qualified immunity, the court must examine (1)
whether the facts illustrate that the officer violated the plaintiff’s constitutional right . . . ,
and (2) whether the right was clearly established at the time of the alleged event such that ‘a
reasonable officer would have understood that his conduct violated the asserted right.’ ” Id.
(quoting Miller v. Prince George’s County, 475 F.3d 621, 627 (4th Cir. 2007)). “The answer to
both questions must be in the affirmative to defeat the officer’s entitlement to immunity.” Id.
Although “[a] qualified immunity defense can be presented in a Rule 12(b)(6) motion,” the
Fourth Circuit has observed that “when asserted at this early stage in the proceedings, ‘the
defense faces a formidable hurdle’ and ‘is usually not successful.’ ” Owens v. Baltimore City

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State’s Attorneys Office, 767 F.3d 379, 396 (4th Cir. 2014) (quoting Field Day, LLC v. Cnty. of
Suffolk, 463 F.3d 167, 191–92 (2d Cir. 2006)).
Cottman has undoubtedly alleged a violation of his rights. “There is no serious
dispute concerning the allegations of excessive use of force by certain correctional officers.”
Mem. Supp. State Def. Mot., p. 2, ECF No. 24-1. Although Cottman does not allege that
Crowder personally assaulted him, he has stated a claim for “supervisory liability” under 42
U.S.C. § 1983. As this Court has confirmed this month in Young-Bey v. B.A. Daddysboy, Cos, et
al., No. JFM-15-3642, 2017 WL 3475667, at *6 (D. Md. Aug. 10, 2017), “[i]t is well
established that the doctrine of respondeat superior does not apply in § 1983 claims.” (citing
Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004)). However, “[l]iability of supervisory
officials ‘is not based on ordinary principles of respondeat superior, but rather is premised on a
recognition that supervisory indifference or tacit authorization of subordinates’ misconduct
may be a causative factor in the constitutional injuries they inflict on those committed to
their care.’ ” Id. (quoting Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001)). “Supervisory
liability under § 1983 must be supported with evidence that: (1) the supervisor had actual or
constructive knowledge that his subordinate was engaged in conduct that posed a pervasive
and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) the supervisor’s
response to the knowledge was so inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices; and (3) there was an affirmative causal link
between the supervisor's inaction and the particular constitutional injury suffered by the
plaintiff.” Id. (citing Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)).

15

Cottman has not only alleged that Crowder had actual or constructive knowledge of
his assault on September 30, 2013 and showed deliberate indifference to the actions of
Officers Ramsey, Hanna, and Green, but has in fact alleged that Crowder “effectively put[ ] a
‘hit’ out on” Cottman and the other four inmates he “identified . . . as being responsible for
the fight.” Compl., ¶¶ 32, 35, ECF No. 1. He alleges that Warden Crowder “attended one
of the roll calls” on the morning of September 30, 2013 and “held up pictures of all of the
inmates that had been removed from the dorm room after the fight on September 29, 2013,
including [Cottman].” Id. ¶ 32. Cottman further alleges that during that same roll call,
Warden Crowder “identified the five inmates as being responsible for the fight” and stated
that they were “looking for” them, “[d]espite official documents reflecting that there was no
time when [their] location was unknown.” Id. ¶¶ 32-33. Cottman has alleged that Warden
Crowder “had knowledge” of Green, Hanna, and Ramsey’s “histories of violence,” yet
“failed to discipline” them. Id. ¶¶ 69, 80. As for an “affirmative causal link between
[Crowder’s] inaction and the . . . injury suffered,” Cottman has clearly alleged that, following
the roll calls, Ramsey, Hanna, and Green “believed that [the five] inmates, including
[Cottman], had fought with a corrections officer on the previous evening,” “sought to exact
revenge on [them]” and, accordingly, “moved systematically from one cell . . . to the next,
brutally assaulting each of the five inmates, including [Cottman].” Id. ¶¶ 38, 40-41.
Cottman has likewise sufficiently alleged a violation of rights that were “clearly
established at the time of the alleged event,” the second element necessary to defeat
Crowder’s assertion of qualified immunity at this stage. The United States Court of Appeals
for the Fourth Circuit has recently confirmed in Bounds v. Parsons, No. 16-1686, 2017 WL
16

2992085, at *3 (4th Cir. July 14, 2017) that “satisfy[ing] the ‘clearly established’ prong of the
qualified immunity inquiry [does not] require ‘a case directly on point.’ ” (quoting Smith v.
Ray, 781 F.3d 95, 100 (4th Cir. 2015)). “[T]he lodestar for whether a right was clearly
established is whether the law ‘gave the officials ‘fair warning’ that their conduct was
unconstitutional.’ ” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (quoting Ridpath v. Bd. of
Governors Marshall Univ., 447 F.3d 292, 313 (4th Cir. 2006)). It is well-established that beating
a prison inmate for purposes other than to restore or maintain prison security or for the
prisoner’s own safety violates that prisoner’s rights under the Eighth and Fourteenth
Amendments to the United States Constitution. See, e.g., Hudson v. McMillian, 503 U.S. 1
(1992). As to Cottman’s claim for violations of his right to free speech under the First
Amendment to the United States Constitution in Count Thirteen, he has likewise stated a
claim for relief. As the Fourth Circuit has confirmed in Ross v. Reed, 719 F.2d 689, 695 (4th
Cir. 1983), a prison guard who has “engaged in censorship [is] not entitled to qualified
immunity.” (citing McNamara v. Moody, 606 F.2d 621 (5th Cir. 1979)). Although it is wellestablished that “restrictions on inmates’ first amendment rights . . . must be justified by
using narrowly drawn means to further substantial governmental interests in security,
rehabilitation, and order,” see id., the State Defendants do not argue that Hanna, Green, and
Ramsey’s act of compelling Cottman to lie to medical personnel about the cause of his
injuries was in an way supported by those governmental interests. As this Court has recently
confirmed in Jones v. Chapman, No. ELH-14-2627, 2017 WL 2472220, at *34 (D. Md. June 7,
2017), “although the burden is on the plaintiff to prove that a constitutional violation
occurred, the defendant must prove that the right was not clearly established.” (citing Henry v.
17

Purnell, 501 F.3d 374, 377–78 (4th Cir. 2007)).

Defendants have cited no authority

warranting dismissal of Cottman’s allegations on qualified immunity grounds at this stage,
although this Court’s “ruling on qualified immunity at the motion to dismiss stage does not
necessarily preclude revisiting the issue at the summary judgment stage.” Garcia v. Montgomery
Cty., Maryland, 145 F. Supp. 3d 492, 508 n. 2 (D. Md. 2015) (citing Behrens v. Pelletier, 516 U.S.
299, 309 (1996)). With respect to Cottman’s claims against Crowder under Articles 16, 24,
25, and 40 of the Maryland Declaration of Rights (Counts One, Two & Three), Warden
Crowder’s qualified immunity argument is equally unsuccessful as qualified immunity is not a
defense to claims under the Maryland Constitution. See Jones, 2017 WL 2472220, at *33
(citing Littleton v. Swonger, 502 F. App’x 271, 274 & n. 2 (4th Cir. 2012)).
To the extent Crowder also seeks statutory immunity under the Maryland Tort
Claims Act (“MTCA”), Md. Code Ann., State Gov’t §§ 12–101 et seq., his motion likewise
fails. “Maryland officials are granted immunity under the Maryland Tort Claims Act . . . for
[tortious acts or omissions] committed within the scope of their duties when the violations
are made ‘without malice or gross negligence.’ ” Housley v. Holquist, 879 F. Supp. 2d 472,
482–83 (D. Md. 2011) (quoting Lee v. Cline, 863 A.2d 297, 304 (Md. 2004)). “[A]n officer’s
actions are grossly negligent ‘when they are so heedless and incautious as necessarily to be
deemed unlawful and wanton, manifesting such a gross departure from what would be the
conduct of an ordinarily careful and prudent person under the same circumstances so as to
furnish evidence of indifference to consequences.’ ” Id. (quoting Henry v. Purnell, 652 F.3d
524, 536 (4th Cir. 2011)). For the reasons set forth above, Cottman has clearly stated a claim

18

of “malice or gross negligence,” as he has alleged that Warden Crowder effectively
sanctioned an attack against him and four other inmates.
Although Defendants have submitted a Declaration of Crowder (ECF No. 24-3), in
which he denies Cottman’s allegations, this Court accepts as true the facts alleged in the
Plaintiff’s Complaint  at the motion to dismiss stage. See Aziz v. Alcolac, Inc., 658 F.3d 388,
390 (4th Cir. 2011). As noted supra, this Court will not convert the pending motions to
motions for summary judgment.

Additionally, the Fourth Circuit has made clear that

“[w]hether an officer’s actions are grossly negligent, and therefore unprotected by statutory
immunity, is generally a question for the jury.” Henry, 652 F.3d at 536 (citing Taylor v. Harford
County Dep’t of Soc. Servs., 862 A.2d 1026, 1034 (Md. 2004)). To the extent Crowder seeks to
invoke Maryland common law “public official immunity,” his motion likewise fails. The
Court of Appeals of Maryland has made clear in Lee v. Cline, 863 A.2d 297, 305 (Md. 2004)
that “Maryland common law qualified immunity in tort suits, for public officials performing
discretionary acts, has no application in tort actions based upon alleged violations of state
constitutional rights or tort actions based upon most so-called ‘intentional torts.’ ” For all of
these reasons, the State Defendants’ Motion to Dismiss (ECF No. 24) is DENIED as to
Cottman’s claims against Crowder, in his individual capacity, in Counts One, Two, Three,
Four, Five, Six, Eight, Eleven, Twelve, and Thirteen of the Complaint.
II.

Lieutenant Neil Dupree’s Motion to Dismiss (ECF No. 41)
Cottman has brought eleven counts against Lieutenant Neil Dupree (“Dupree”), a

“supervising correctional officer” at the MRDCC. Cottman has brought claims against
Lieutenant Dupree individually and in his official capacity for Excessive Force, in violation of
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Article 24 of the Maryland Declaration of Rights (Count One); Cruel and Unusual
Punishment, in violation of Articles 16 and 25 of the Maryland Declaration of Rights (Count
Two); Violations of his Right to Free Speech under Article 40 of the Maryland Declaration
of Rights (Count Three); Battery (Count Four); Intentional Infliction of Emotional Distress
(Count Five); Conspiracy (Count Six); Gross Negligence (Count Eight); Cruel and Unusual
Punishment, in violation of the Eighth Amendment to the United States Constitution,
pursuant to 42 U.S.C. § 1983 (Count Eleven); Violations of his Due Process Rights under
the Fourteenth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983
(Count Twelve); and Violations of his Right to Free Speech under the First Amendment to
the United States Constitution, pursuant to 42 U.S.C. § 1983 (Count Thirteen). Compl., ¶¶
87-249, ECF No. 1. Additionally, Cottman has brought one claim against Dupree in his
individual capacity only for Negligent Hiring, Training, Retention, and Supervision (Count
Seven). Id. ¶¶ 154-170.
As discussed supra, when an individual is sued in his official capacity, the suit is
essentially against the governmental entity. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985).
In his opposition to the pending motion, Cottman does not seriously contest the dismissal
of his official capacity suit against Lieutenant Dupree. As with Secretary Moyer and Warden
Crowder, Dupree’s Motion to Dismiss (ECF No. 41) is GRANTED as to all claims against
Lieutenant Dupree in his official capacity. Cottman’s claims against Lieutenant Dupree in his
official capacity shall be DISMISSED for lack of subject-matter jurisdiction, pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure.

Accordingly, Count Seven of the

Complaint, which alleged Negligent Hiring, Training, Retention and Supervision by Secretary
20

Moyer, Warden Crowder, and Lieutenant Dupree, in their official capacities only, shall now be
DISMISSED in its entirety.
Like Crowder, Dupree further contends that Cottman’s claims against him in his
individual capacity are barred by the doctrine of qualified immunity. However, for the same
reasons discussed supra with respect to Crowder, Cottman has alleged facts sufficient to
overcome Dupree’s assertion of qualified immunity at the motion to dismiss stage. As set
forth above,

“[q]ualified immunity shields government officials from liability in a § 1983

suit,” but a plaintiff may defeat an officer’s assertion of immunity by demonstrating that “the
officer violated the plaintiff’s constitutional right [and] . . . the right was clearly established at
the time of the alleged event such that ‘a reasonable officer would have understood that his
conduct violated the asserted right.’ ” Humbert, 2017 WL 3366349, at *4 (quoting Miller, 475
F.3d at 627). As noted supra, although “[a] qualified immunity defense can be presented in a
Rule 12(b)(6) motion, . . . ‘the defense faces a formidable hurdle’ and ‘is usually not
successful.’ ” Owens, 767 F.3d at 396 (quoting Field Day, LLC, 463 F.3d at 191–92). This
Court’s ruling “does not necessarily preclude revisiting the issue at the summary judgment
stage.” Garcia, 145 F. Supp. 3d at 508 n. 2 (citing Behrens, 516 U.S. at 309).
As discussed supra, Cottman has undoubtedly alleged a violation of his constitutional
rights. “There is no dispute that [Cottman] and four other inmates were assaulted by
correctional officers Kwasi Ramsey, Jemiah Green, and Richard Hanna at MRDCC on
September 30, 2013.” Mem. Supp. Dupree Mot., p. 13, ECF No. 41-1. As with Warden
Crowder, Cottman has not alleged that Dupree personally assaulted him, but he has stated a
claim for “supervisory liability” under 42 U.S.C. § 1983. As set forth supra, “[s]upervisory
21

liability under § 1983 must be supported with evidence that: (1) the supervisor had actual or
constructive knowledge that his subordinate was engaged in conduct that posed a pervasive
and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) the supervisor’s
response to the knowledge was so inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices; and (3) there was an affirmative causal link
between the supervisor’s inaction and the particular constitutional injury suffered by the
plaintiff.” Young-Bey, 2017 WL 3475667, at *6 (citing Shaw, 13 F.3d at 799).
Although Dupree denies serving in an “administrative” role at MRDCC, see Mem.
Supp. Dupree Mot., p. 6, ECF No. 41-1, Cottman has specifically alleged that he served as a
“supervising correctional officer” and “Lieutenant” at the time of the events alleged in the
Complaint, Compl., ¶ 16, ECF No. 1. Cottman has alleged that Dupree was “responsible
for the operation and implementation of policies at MRDCC.” Id. ¶ 82. Cottman has not
only alleged that Dupree had actual or constructive knowledge of his assault on September
30, 2013 and showed deliberate indifference to the actions of Officers Ramsey, Green, and
Hanna, but has in fact alleged that he “effectively put[ ] a ‘hit’ out” on Cottman and the four
other inmates and “encouraged” MRDCC correctional officers “to use vigilante justice and
violence to control inmates and detainees.” Id. ¶¶ 35, 66. Cottman alleges that Dupree
appeared at a roll call and “held up the pictures of all of the five inmates that had been
removed from the dorm room after the fight” the previous evening, including Cottman. Id.
¶¶ 32-35. He claims that Dupree “identified the five inmates as being responsible for the
fight” and stated that they were “looking for” them, “[d]espite official documents reflecting
that there was no time when [their] location was unknown.” Id. ¶¶ 32-33.
22

As for an “affirmative causal link between [Crowder’s] inaction and the . . . injury
suffered,” Cottman has alleged that Ramsey, Hanna, and Green “believed that [the five]
inmates, including [Cottman], had fought with a corrections officer on the previous
evening,” “sought to exact revenge on [them]” and, accordingly, “moved systematically from
one cell . . . to the next, brutally assaulting each of the five inmates, including [Cottman].”
Id. ¶¶ 38, 40-41. Cottman further claims that Dupree was responsible “as supervisor to
respond to medical alerts” and that he “accepted the inmates’ assertion that they had ‘fell off
a bunk’ or ‘hit their head on their cell’ . . . despite [their] injuries being inconsistent with [that
explanation] even to the medically untrained eye.” Id. ¶¶ 62-64. “Lieutenant Dupree failed
to seek emergency medical attention for these inmates or launch an investigation into their
injuries despite, by his own account, one inmate’s ‘head wrapped up like a mummy,’ another
‘moaning and wheezing’ and another offering that ‘officers beat me up.’ ” Id. ¶ 64.
As discussed supra, Cottman has also sufficiently alleged that his violated rights were
clearly established at the time of the alleged event, the second element necessary to defeat
Dupree’s assertion of qualified immunity at this stage. It is well-established that beating a
prison inmate for purposes other than to restore or maintain prison security or for the
prisoner’s own safety violates that prisoner’s rights under the Eighth and Fourteenth
Amendments to the United States Constitution. See, e.g., Hudson v. McMillian, 503 U.S. 1
(1992).

With respect to Cottman’s First Amendment claims, the Fourth Circuit has

confirmed in Ross v. Reed, 719 F.2d 689, 695 (4th Cir. 1983) that a prison guard who has
“engaged in censorship [is] not entitled to qualified immunity.” (citing McNamara v. Moody,
606 F.2d 621 (5th Cir. 1979)). Accordingly, Cottman’s Section 1983 claims against Dupree
23

shall not be dismissed on qualified immunity grounds. With respect to Cottman’s claims
against Dupree under Articles 16, 24, 25 & 40 of the Maryland Declaration of Rights
(Counts One, Two & Three), his argument also fails as qualified immunity is not a defense
to claims under the Maryland Constitution, as discussed supra. See Jones, 2017 WL 2472220,
at *33 (citing Littleton, 502 F. App’x at 274 & n. 2).
Dupree additionally argues that he is entitled to statutory immunity under the
Maryland Tort Claims Act (“MTCA”), Md. Code State Gov’t, §§ 12–101 et seq. See Mem.
Supp. Dupree. Mot., p. 18, ECF No. 41-1. As discussed above, “Maryland officials are
granted immunity under the Maryland Tort Claims Act . . . for [tortious acts or omissions]
committed within the scope of their duties when the violations are made ‘without malice or
gross negligence.’ ” Housley, 879 F. Supp. 2d at 482–83 (D. Md. 2011) (quoting Lee, 863 A.2d
at 304). However, as with Crowder, Cottman has clearly stated a claim of “malice or gross
negligence” against Dupree, as he has alleged that he specifically participated in encouraging
the brutal retaliatory attacks on September 30, 2013.
Although Dupree has submitted a Declaration (ECF No. 41-2), in which he denies
Cottman’s allegations, this Court accepts as true the facts alleged in a plaintiff’s complaint  at
the motion to dismiss stage. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). As
noted supra, this Court will not convert the pending motions to motions for summary
judgment. Additionally, the Fourth Circuit has made clear that “[w]hether an officer’s
actions are grossly negligent, and therefore unprotected by statutory immunity, is generally a
question for the jury.” Henry, 652 F.3d at 536 (citing Taylor v. Harford County Dep’t of Soc.
Servs., 862 A.2d 1026, 1034 (Md. 2004)). To the extent Dupree seeks to invoke Maryland
24

common law “public official immunity,” his motion likewise fails. The Court of Appeals of
Maryland has made clear in Lee v. Cline, 863 A.2d 297, 305 (Md. 2004) that “Maryland
common law qualified immunity in tort suits, for public officials performing discretionary
acts, has no application in tort actions based upon alleged violations of state constitutional
rights or tort actions based upon most so-called ‘intentional torts.’ ” For all of these reasons,
Dupree’s Motion to Dismiss (ECF No. 60) is DENIED as to Cottman’s claims against him
in his individual capacity in Counts One, Two, Three, Four, Five, Six, Eight, Eleven, Twelve,
and Thirteen of the Complaint.
III.

Cottman’s Conspiracy Claim (Count Six)
Defendants Crowder and Dupree have both moved to dismiss Cottman’s Conspiracy

claim against them in Count Six of the Complaint. They contend that Cottman has failed to
allege “a concerted effort or agreement between [them] to deny [him] a constitutional right”
and that he has raised only “naked assertions.” Mem. Supp. Dupree Mot., p. 25, ECF No.
41-1. “Under Maryland law, civil conspiracy is defined as the ‘combination of two or more
persons by an agreement or understanding to accomplish an unlawful act or to use unlawful
means to accomplish an act not in itself illegal, with the further requirement that the act or
the means employed must result in damages to the plaintiff.’ ” Marshall v. James B. Nutter &
Co., 758 F.3d 537, 541 (4th Cir. 2014) (quoting Hoffman v. Stamper, 867 A.2d 276, 290 (Md.
2005) (quoting Green v. Wash. Suburban Sanitary Comm’n, 269 A.2d 815, 824 (Md. 1970))). “In
addition to proving an agreement, ‘the plaintiff must also prove the commission of an overt
act, in furtherance of the agreement, that caused the plaintiff to suffer actual injury.’ ” Id.

25

Cottman has specifically alleged that the Defendants “agreed that the corrections
officers would batter, inflict emotional distress upon and deprive the rights of Mr.
Cottman.” Compl., ¶ 150, ECF No. 1 (emphasis added). He has alleged that on the
morning of September 30, 2013, Crowder and Dupree both appeared at “ ‘roll calls,’ during
which corrections officers starting their shift met and were briefed.” Id. ¶ 31. Cottman
alleges that Crowder and Dupree “held up the pictures of all of the five inmates that had
been removed from the dorm room after the fight” the previous evening, including
Cottman, “effectively putting a ‘hit’ out on the[m].” Id. ¶¶ 32-35. He claims that Warden
Crowder and Lieutenant Dupree specifically “identified the five inmates as being responsible
for the fight” and stated that they were “looking for” them, “[d]espite official documents
reflecting that there was no time when [their] location was unknown.” Id. ¶¶ 32-33. For
these reasons, Cottman has alleged both elements of a conspiracy claim. Accordingly, the
State Defendants’ Motion to Dismiss (ECF No. 24) and Defendant Dupree’s Motion to
Dismiss (ECF No. 41) are both DENIED as to Cottman’s Conspiracy claim (Count Six).
CONCLUSION
For the foregoing reasons, the State Defendants’ Motion to Dismiss (ECF No. 24) is
GRANTED as to all claims against the State of Maryland, all claims against Secretary Moyer,
and Cottman’s claims against former Warden Crowder in his official capacity, pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure, but is DENIED as to Cottman’s
claims against Crowder in his individual capacity. Dupree’s Motion to Dismiss (ECF No. 41)
is also GRANTED as to Cottman’s claims against Dupree in his official capacity, pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure, but is DENIED as to Cottman’s
26

claims against Dupree in his individual capacity. Additionally, the State Defendants’ Motion
to Dismiss (ECF No. 24) and Defendant Dupree’s Motion to Dismiss (ECF No. 41) are
both DENIED as to Cottman’s Conspiracy claim (Count Six). Therefore, Defendants State
of Maryland and Secretary Moyer are DISMISSED from this action, and all claims against
Crowder and Dupree in their official capacities are also DISMISSED. Accordingly, Counts
Seven, Nine, Ten, and Fourteen, which named the State of Maryland, Secretary Moyer, and
Defendants Crowder and Dupree in their official capacities only, are also DISMISSED in their
entirety. All other claims, including those against Crowder and Dupree in their individual
capacities in Counts One, Two, Three, Four, Five, Six, Eight, Eleven, Twelve, and Thirteen
of the Complaint, shall remain.
A separate Order follows.
Dated:

August 29, 2017

_____/s/__________________
Richard D. Bennett
United States District Judge

27