Sweitzer v. McGuinn et al
CORRECTED MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 10/10/2017. (kw2s, Deputy Clerk)(c/m 10.10.17) Modified on 10/10/2017 (kw2s, Deputy Clerk).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PHILIP J. SWEITZER,
* Civil Action No. GLR-17-1741
COLLEEN McGUINN, Esq., Senior
Assistant State’s Attorney,
DARIO J. BROCCOLINO, Esq., State’s
Attorney, Howard County,
STATE OF MARYLAND, Nancy K. Kopp, *
JOHN or JANE DOE GRAND JURORS
DEPARTMENT OF MARYLAND STATE *
WILLIAM TALBERT, TFC,
TFC JOHN DOE,
JOHN DOE HOWARD COUNTY POLICE *
OFFICER or JOHN DOE SHERIFF’S
JOHN DOE HOWARD COUNTY POLICE
OFFICER or JOHN DOE SHERIFF’S
CHARLES P. STRONG, Esq., State’s
JANE DOE, Esq. Assistant State’s Attorney *
ATTORNEY GRIEVANCE COMMISSION
GLENN M. GROSSMAN, Esq., Bar
RAYMOND HEIN, Esq., Deputy Bar
MARIANNE J. LEE, Esq., Senior Assistant
MARC FIEDLER, Investigator,
BRIAN E. FROSH, Esq., Attorney General, *
RYAN DIETRICK, Esq., Assistant
The Honorable DENNIS M. SWEENEY,
THE COURT OF SPECIAL APPEALS OF *
The Honorable MARY ELLEN BARBERA, *
The Honorable CLAYTON GREENE, JR., *
The Honorable MICHELE D. HOTTEN,
The Honorable ROBERT N. McDONALD, *
The Honorable SHIRLEY M. WATTS,
The Honorable SALLY D. ADKINS,
The Honorable JOSEPH M. GETTY,
The Honorable KEVIN F. ARTHUR,
The Honorable DEBORAH S. EYLER,
The Honorable LAWRENCE RODOWSKY, *
THE TRUSTEES of the CLIENT
PROTECTION FUND of the BAR of
JANET C. MOSS, Executive Director,
LEO WESLEY OTTEY, JR., Esq.,
JAMES F. FITZGERALD, Sheriff,
JOHN DOE, Deputy Sheriff,
JANE DOE, Deputy Sheriff,
THE CIRCUIT COURT for HOWARD
WAYNE A. ROBEY, Clerk
DEPARTMENT OF PUBLIC SAFETY and *
STEVEN T. MOYER, Secretary,
The Honorable TIMOTHY J. McCRONE,
The Honorable WILLIAM V. TUCKER,
The Honorable DANIEL P. DWYER,
HOWARD COUNTY, MARYLAND,
ALLEN H. KITTLEMAN,
HOWARD COUNTY DEPARTMENT of
CORRECTIONS, Jack Kavanagh,
JOHN or JANE DOES 1-20 Correctional
RICHARD W. TURNER, Ph.D., Chief
JOHN DOE #1, M.D.,
CHIEF MEDICAL OFFICER
JOHN DOE #2, M.D.,
ALLAN TSAI, D.D.S.,
CLARKE F. AHLERS, Esq.,
On June 26, 2017, Plaintiff Philip J. Sweitzer, a resident of Gettysburg,
Pennsylvania, filed a 185-page complaint, captioned as a civil rights action naming more
than fifty Defendants, accompanied by exhibits, the full filing fee, and a civil cover sheet.
(Compl., ECF No. 1). By Order dated July 6, 2017, Sweitzer was granted leave to amend
his complaint in order to comply with Fed. R. Civ. P. 8(a). (ECF No. 2). Sweitzer’s
amended complaint, submitted August 4, 2017, which contains 27 counts and 157 pages,
is now before the Court for initial review. (Am. Compl., ECF No. 5). Also pending
before the Court is Sweitzer’s Motion to Recuse (ECF No. 7). For reasons set forth
herein, with one exception, the Court will dismiss Sweitzer’s claims and deny the
At its core, the amended complaint seeks compensatory and punitive damages and
injunctive relief based on actions by the “Judiciary and Executive” . . . “to align their
respective interests . . . to subvert and deny him due process of law to unconstitutionally
procure his unlawful conviction and subsequent disbarment . . .” (Am. Compl. at 9).
Nancy K. Kopp, Treasurer for the State of Maryland, is named in the caption of
the amended complaint, but appears to play no role in the matters at issue in this case.
Kopp is entitled to summary dismissal.
Federal jurisdiction over the claims is premised on the civil rights statutes, 42 U.S.C. §§
1983 and 1985, as well as 28 U.S.C. § 1331. Sweitzer also requests this Court take
supplemental jurisdiction over “related and derivative state law claims” pursuant to 28
U.S.C. § 1367. Read in conjunction with the accompanying exhibits and information
gleaned from Maryland’s judiciary website,2 Sweitzer’s complaint, as amended, alleges
the following facts.
Prior to November 4, 2016, Sweitzer had a license to practice law in Maryland.
(Am. Compl. at 26). During 2007 and 2008, he was one of several lawyers representing a
criminal defendant, Abdel Khader Diallo, in the Circuit Court for Baltimore County,
Due to a stroke, Sweitzer was unable to attend the May 9, 2009, oral
argument in the Court of Appeals of Maryland. (Id. at 40–42).
During this time, and while recovering from his illness, Sweitzer withdrew funds,
causing an overdraft in a client escrow account.3 As a result, Assistant Bar Counsel Lee
initiated an inquiry on behalf of the Maryland Attorney Grievance Commission. (Id. at
43). It does not appear that Sweitzer received formal sanction based on this incident.
In February of 2011, Sweitzer agreed to represent Dr. Allen Tsai, a dentist who
Judicial notice will be granted for the purpose of pending motion review. “[A]
court may properly take judicial notice of ‘matters of public record’ and other
information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.’”
Goldfarb v. Mayor of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). Under Federal Rule
of Evidence 201, a court may take judicial notice of an adjudicative fact if it is “not
subject to reasonable dispute,” in that it “(1) is generally known within the trial court’s
territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.”
Sweitzer states that he believed the funds were available in reliance on a banking
had been denied benefits under a disability insurance policy. In December of 2011, Tsai
asked Sweitzer to represent him in a copyright infringement lawsuit brought against Tsai
by a film production company. (Id. at 45–47). Tsai also asked Sweitzer to represent him
in a case against Dr. Robert Gerwin for abandoning him as a patient and as his medical
expert in the insurance claim. Sweitzer indicates Tsai prevailed on his insurance claim
and, on May 21, 2012, met with Sweitzer and turned over the entire settlement proceeds,
amounting to $54,000.00, to Sweitzer for both the insurance claim and work performed to
date in the copyright infringement action. (Id. at 47–48). On June 1, 2012, Sweitzer
deposited the settlement proceeds into an IOLTA account at a Panama City, Florida
branch of PNC Bank, N.A. (Id. at 49).
In late September, 2012, Tsai wrote Sweitzer to demand a refund of the insurance
proceeds. On October 5, 2012, Tsai further requested Sweitzer continue to represent him
in the copyright matter, but on full contingency. The next day, October 6, 2012, Sweitzer
offered to refund all fee and expense proceeds in both the copyright case and the Gerwin
matter. (Id. at 51–52). By that time, however, Tsai had already complained to the
Howard County, Maryland State’s Attorney that Sweitzer had committed a theft.4 On
February 13, 2013, a Howard County grand jury returned an indictment for theft over
$10,000.00. Sweitzer states that Assistant Bar Counsel Lee appeared before the grand
jury. (Id. at 52).
See Maryland v. Sweitzer, Case No. 5T0007925 (Dist. Ct. How. Co) available at
http://casesearch/courts/state.md.us/casesearch/inquiryDetail.jis?. The case was nolle
prossed on November 9, 2012, and later pursued as a Circuit Court criminal matter.
Sweitzer was not immediately arrested following his indictment.5 On March 19,
2013, while driving from BWI Airport to Hagerstown, Maryland, Sweitzer was pulled
over by Maryland State Trooper First Class Talbert, and charged with several traffic
violations. The Howard County Circuit Court warrant was discovered and Sweitzer was
taken into custody and transported to the Howard County Detention Center. He was
released on bond the next day. (Id. at 53–54).
Sweitzer was found guilty on April 28, 2014, and was sentenced to five years of
incarceration, all but four years suspended, with two years of supervised probation upon
See Maryland v. Sweitzer, Case No. 13-K-13053059 (Cir. Ct. How. Co.),
remanded to the custody of the Howard County Department of Corrections, where he
remained from October 7, 2013 until June 25, 2014. He alleges he was denied proper
medical care and subjected to unconstitutional conditions of confinement during this
time. (Am. Compl. at 61–63).
Immediately upon release from his Howard County sentence, Sweitzer was
transported to the District Court for Washington County where, on June 26, 2014, his
traffic violations were nolle prossed.6 Sweitzer asserts that this transfer would not have
Read in its totality, the Amended Complaint suggests Sweitzer was in Florida,
where he was establishing a second residence.
See Case Nos. 1VY0BQC (driving on cancelled out of state license),
http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis? and IVX0BQC (driving
on suspended license) (Dist. Ct. Wash. Co), http://casesearch.courts.state.md.us/
casesearch/inquiryDetail.jis? Both are cited by Sweitzer in his Amended Complaint.
(Am. Compl. at 52). The charges were nolle prossed on May 6, 2014. (Id.).
been necessary had he received notice of the hearing date for the traffic violations while
incarcerated. (Id. at 63–64).
On May 8, 2014, the Circuit Court for Howard County entered a civil judgment
from the criminal restitution order that resulted from Sweitzer’s theft conviction. See
Tsai v. Sweitzer, Case No. 13-C-55-076156 (Cir. Ct. How. Co.). The Client Protection
Fund later sought enforcement of the judgment, beginning on or about November 24,
2014. (Am. Compl. at 65).
Sweitzer was suspended from legal practice on September 22, 2014, on Bar
Counsel’s Petition for Disciplinary Action, pursuant to an order by the Honorable Mary
Ellen Barbera, Chief Judge of the Court of Appeals of Maryland. (Id. at 66). Sweitzer
alleges that his appeal brief attacking his suspension disappeared from the Office of the
Clerk of the appellate court, and should be construed as an attempt by court personnel to
“intentionally manipulate[ed] the appeal” process. (Id. at 67). Sweitzer’s motion to
terminate the petition for disciplinary action pending appeal was denied on May 21, 2015
by the Court of Appeals, and on May 26, 2015, Court of Special Appeals Judge Arthur of
the affirmed the trial court and denied Sweitzer relief. Further review was denied by the
Court of Appeals on August 12, 2015. (Id. at 68–69). Sweitzer outlines a multiplicity of
additional claims of procedural defects in the handling of his disciplinary proceedings
that ended in termination of his law license, including contempt proceedings filed in Tsai
v. Sweitzer. (Id. at 74–78).
While Sweitzer’s petition for writ of certiorari attacking the theft conviction was
pending in the United States Supreme Court, on July 15, 2015, the Department of Parole
and Probation charged Sweitzer with a violation of probation for failure to satisfy the
obligation for restitution. Sweitzer pleads that the Client Protection Fund was already
enforcing this obligation. (Id. at 70). He states that his motions to terminate or modify
probation were subsequently denied, and his motion to vacate his conviction was denied
by the Circuit Court of Howard County on April 14, 2017. (Id. at 74–78).
Standard of Review
Sweitzer has paid the filing fee. Nonetheless, this Court has broad, inherent
power to dismiss an action, or part of an action, which is frivolous, vexatious, or brought
in bad faith. See, e.g., Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d
362, 363-64 (2d Cir. 2000) (district courts have the authority to dismiss frivolous
complaint sua sponte, notwithstanding the payment of the filing fee); Crowley Cutlery
Co. v. United States, 849 F.2d 273, 277 (7th Cir. 1988) (federal district judge has
authority to dismiss a frivolous suit on her own initiative).
Motion to Dismiss
Although a complaint need not contain detailed allegations, the facts alleged must
be enough to raise a right to relief above the speculative level and require “more than
labels and conclusions,” as “‘courts are not bound to accept as true a legal conclusion
couched as a factual allegation.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). The complaint must contain “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. Once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations in the complaint.
Id. at 561.
Further, under Fed. R. Civ. P. 8(d)(1), each allegation in the complaint
“must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). “Threadbare recitals of the
elements of a cause of action, supported by mere statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Therefore, this Court
has the discretion to dismiss a case at any time, notwithstanding the payment of the filing
fee or any portion thereof, if it determines that the action is factually or legally frivolous.
Motion to Recuse
28 U.S.C. § 455(a) provides that a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” The judge’s
purported “bias or prejudice must, as a general matter, stem from ‘a source outside the
judicial proceeding at hand’ in order to disqualify a judge.” Belue v. Leventhal, 640 F.3d
567, 572 (4th Cir. 2011) (concluding that judge’s opinions formed during the proceedings
did not necessitate the judge’s disqualification) (quoting Liteky v. United States, 510 U.S.
540, 545, 551 (1994)). Thus, a judge must recuse himself if an extrajudicial source
provides a reasonable factual basis for calling the judge’s impartiality into question. In re
Beard, 811 F.2d 818, 827 (4th Cir. 1987). “The inquiry is whether a reasonable person
would have a reasonable basis for questioning the judge’s impartiality, not whether the
judge is in fact impartial.” Id.; see Liteky, 510 U.S. at 548 (“[W]hat matters is not the
reality of bias or prejudice but its appearance.”). Conversely, if a judge’s “familiarity
with the facts of a case stem from [the judge’s] judicial conduct in presiding over earlier
proceedings,” the judge typically need not recuse himself or herself, even if the judge has
formed an opinion about the case, In re Beard, 811 F.2d at 827, unless the judge’s stated
opinion “display[s] a deep-seated favoritism or antagonism that would make fair
judgment impossible.” See Liteky, 510 U.S. at 551, 555; Belue, 640 F.3d at 572.
A judge also is required to disqualify himself if the judge has “personal knowledge
of disputed evidentiary facts concerning the proceeding” or if the judge is “likely to be a
material witness in the proceeding.” 28 U.S.C. § 455(b)(1), (5)(iv). As with § 455(a),
the judge’s knowledge referenced in § 455(b)(1) must “stem from a ‘source outside the
judicial proceeding at hand’ in order to disqualify [the] judge.” Belue, 640 F.3d at 572
(quoting Liteky, 510 U.S. at 545). Unlike § 455(a), § 455(b)(1) pertains to knowledge
that is both actual and personal. See Liteky, 510 U.S. at 548.
In his Motion, Sweitzer alleges this Court exhibited bias in ordering him to amend
his Complaint pursuant to Rule 8, and withholding issuance of summons pending
consideration of the initial pleadings.
Sweitzer argues that because the named
Defendants are judicial and governmental employees, the Court’s decision requiring
Sweitzer to amend the Complaint amounts to “advocating for the defense, by postponing
the issuance of process.” (Mot. Recuse at 3) (emphasis omitted). This argument ignores
this Court’s broad, inherent power to dismiss an action, or part of an action, which is
frivolous, vexatious, or brought in bad faith. See Fitzgerald, 221 F.3d at 363–64. In
addition, Sweitzer provides no support for his belief that this Court harbors bias against
him based on the nature of his claims, and thus, he provides no basis for recusal.
Accordingly, the Court will deny the Motion.
As a threshold matter, the Court concludes that Sweitzer’s claims against many of
the named Defendants cannot proceed for lack of subject matter jurisdiction under Rule
12(b)(1) because they are immune from suit in this court.
Eleventh Amendment Immunity
With the exception of Howard County corrections and medical personnel,
Sweitzer’s criminal defense attorney, Clarke F. Ahlers, Esq., and Allan Tsai, Sweitzer’s
former client, the Defendants named by Sweitzer are state employees. State employees
are immune under the Eleventh Amendment to the Constitution from suit in federal court
for claims brought against them in their official capacity.7 The Eleventh Amendment bars
suits for damages against a state in federal court unless the state has waived its sovereign
immunity or Congress has abrogated its immunity. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 101–02 (1984) (“It is clear, of course, that in the absence of
consent a suit in which the State or one of its agencies or departments is named as the
defendant is proscribed by the Eleventh Amendment.”). The Eleventh Amendment also
bars claims brought against state employees in their official capacity because a suit
against a state officer in this regard is tantamount to a suit against the state itself. E.g.,
Brandon v. Holt, 469 U.S. 464, 471–72 (1985). While the State of Maryland has waived
its sovereign immunity for certain types of cases brought in state courts, see Md. Code
Ann., State Gov’t § 12-202(a), it has not waived its immunity under the Eleventh
Amendment to suit in federal court.
Sweitzer does not specify whether the claims are against Defendants in their
official or personal capacities or both.
Thus, Sweitzer’s claims for damages against the State of Maryland, the
Department of the Maryland State Police, the Department of Public Safety and
Correctional Services, the Attorney Grievance Commission of Maryland, 8 the Court of
Special Appeals of Maryland,9 the Trustees of the Client Protection Fund of the Bar of
Maryland,10 and the Circuit Court for Howard County11 are barred by the Eleventh
In addition, all named and unnamed State employees listed in the
captions of the complaint and amended complaint are immune from suit in federal court
from claims raised against them in their official capacities, and the claims against them in
their official capacities will be dismissed.13
Established in 1975, the Attorney Grievance Commission and Office of Bar
Counsel consist of members appointed by the Court of Appeals of Maryland.
The Court of Special Appeals is an intermediate court of appeal authorized by
Art. IV, §§ 1, 14A of the Maryland Constitution. See Md. Code Ann., Cts & Jud. Pro.
Art. § 1-401 (2013).
The Client Protection Fund of the Bar and Maryland was created in 1965 by the
Maryland legislature, which empowered the Court of Appeals of Maryland to provide by
rule for the operation of the Fund to reimburse clients for losses caused by attorneys’
misappropriation of client funds.
Maryland’s Circuit Courts have full common law and equity powers and
jurisdiction in both civil and criminal cases arising in their respective counties. Their
powers are conferred by the Maryland Constitution and by law. See Md. Code. Ann., Cts
& Jud. Pro. Art. § 1-501 (2013).
What is more, none of these Defendants is a “person” subject to suit under §
1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70–71 (1989).
Although they are entitled to dismissal on other grounds noted above, the “John
Doe” Howard County Sheriff’s Deputies also are immune from damages based on their
transporting Sweitzer from Washington County to Howard County following his traffic
stop. As a matter of Maryland law, county sheriffs and deputy sheriffs are officials
and/or employees of the State, not the county. Rucker v. Harford County, 558 A.2d 399,
402 (Md. 1989). A deputy sheriff exercises the same authority as the sheriff and is
likewise a State official/employee. Id. Further, because under Maryland law sheriffs and
deputy sheriffs are not county employees, Howard County cannot be held liable for the
alleged tortious conduct of Howard County Sheriff’s Department employees.
Sweitzer seeks to sue every Maryland state trial and appellate judge who rendered
decisions relating to his criminal trial and probation revocation proceedings, as well as in
matters concerning his disbarment and victim restitution, in both the criminal case and
Attorney Grievance matters. Judges enjoy absolute immunity from liability in damages
for their judicial or adjudicatory acts. Forrester v. White, 484 U.S. 219, 225–26 (1988).
Thus, his claims against members of the Maryland judiciary, including Defendants
Sweeney, Barbera, Greene, Hotten, McDonald, Watts, Adkins, Getty, Arthur, Eyler,
Rodowsky, McCrone, Tucker, and Dwyer, are barred by judicial immunity. Accordingly,
the Court will dismiss Sweitzer’s claims against these judges.
Prosecuting attorneys are quasi-judicial officers who enjoy absolute immunity
when performing prosecutorial, as opposed to investigative or administrative functions.
See Imbler v. Pachtman, 424 U.S. 409 422–23 (1976). Such immunity derives from
absolute immunity, which is designed to protect judicial process; thus, the Court must
inquire whether the prosecutor's actions are closely associated with judicial process. See
Burns v. Reed, 500 U.S. 478, 479 (1991) (citing Imbler, 424 U.S. at 423–23).
The decision as to “whether and when to prosecute” is “quasi-judicial.” Thus,
Sweitzer’s criminal and traffic prosecutions confer absolute immunity to Defendants
Washington County State’s Attorney Strong and Washington County Assistant State’s
Attorney Jane Doe. Likewise, appellate representation on behalf of the State confers
prosecutorial immunity on Maryland Attorney General Frosh and Assistant Maryland
Attorney General Dietrick. See Lyles v. Sparks, 79 F.3d 372, 377 (4th Cir. 1996).
Accordingly, the Court will dismiss Sweitzer’s claims against Strong, Doe, Frosh, and
Sweitzer’s Claims for Relief
Sweitzer brings his federal claims under 42 U.S.C. § 1983.
Under § 1983,
Sweitzer must demonstrate that: (1) he suffered a deprivation of rights secured by the
Constitution of the United States; and (2) the act or omission causing the deprivation was
committed by a person acting under color of law. See West v. Atkins, 487 U.S. 42, 48
At bottom, twenty-six of Sweitzer’s twenty-seven claims for relief will be
Fourth Amendment Claim (Count I), False Arrest (Count XV), and
False Imprisonment (Count XVI)
In his Amended Complaint, Sweitzer seeks to impose liability against Maryland
State Trooper Talbert and the Howard County police officers and/or sheriff’s deputies
who participated in his arrest following a March 20, 2013 traffic stop in Washington
Sweitzer argues Talbert’s assertion that Talbert saw Sweitzer
abruptly pull into a hotel parking lot was unreasonable under the Fourth Amendment.
That stop, which Sweitzer alleges was without probable cause, led to the discovery that
Sweitzer was driving without a valid license or registration and had been indicted for
theft. As a result of the traffic stop, Talbert arrested Sweitzer in Washington County,
Maryland and he was later transported to Howard County authorities. (Am. Compl. at
Sweitzer’s claims against the State Police officers and Howard County officers
and/or sheriffs are two-fold. First, Sweitzer argues that Talbert and Sheriff Fitzgerald
violated his Fourth Amendment rights because they had no right to detain and question
him regarding the alleged traffic violation. Sweitzer contends that the traffic stop was
illegal because Talbert claimed he made an “abrupt lane change,” which is not a statutory
offense. Sweitzer maintains that he instead should have been charged with making an
“unsafe lane change,” which is a statutory traffic offense under Maryland law. (Am.
Compl. at 78–79). Sweitzer implies that Trooper John Doe (who transported him from
Washington County to Howard County) and the Howard County Sheriff’s Deputies
and/or Howard County Police Officers John Doe #1 and #2, who accepted him for
processing and detention, are to be held derivatively liable for civil rights violations
because their actions followed Talbert’s allegedly improper arrest.
In order to state a claim under § 1983 for false arrest, he must show that the arrest
was made without probable cause. See Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir.
1974). Probable cause exists if “at that moment the facts and circumstances with [the
officers’] knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the petitioner had committed or was
committing an offense,” Beck v. Ohio, 379 U.S. 89, 91 (1964) (citation omitted), and
review of the action taken by law enforcement is governed by a totality of the
circumstances test. See Illinois v. Gates, 462 U.S. 213, 241 (1983); United States v.
Garcia, 848 F.2d 58, 59-60 (4th Cir. 1988). Whether probable cause to arrest exists is
based on information the police had at the time of the arrest. Id. at 261. A warrantless
arrest in a public place may be made when the arresting officers have probable cause to
believe that the suspect has committed, is committing, or is about to commit a crime. See
Beck v. Ohio, 379 U.S. 89, 91 (1964) (probable cause exists if “at that moment the facts
and circumstance within [the officers] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that the
petitioner had committed or was committing an offense.”).
Here, based on the facts Sweitzer pleads, the Court concludes that probable cause
existed for Sweitzer’s arrest. Sweitzer first states that Talbert did not have authority to
arrest him because an “abrupt lane change” is not a statutory offense in Maryland.
(Compl. ¶ 134). Sweitzer does acknowledge, however, that an “unsafe lane change” is a
statutory offense. (Id.); see also Md. Code Ann., Transp. § 21-309 (West 2017). More
importantly, Sweitzer only alleges that he “arrived safely at his destination, with no
action to impede the movement of other traffic.” (Id.). This is not sufficient to state a
claim for false arrest because Sweitzer does not deny that he made an unsafe lane change;
Talbert could still have had probable cause for arresting Sweitzer for this offense. In
addition, the court cases Sweitzer relies on in his Complaint, (see Compl. ¶ 67), show that
Talbert also arrested Sweitzer for driving on a suspended license and driving on a
cancelled out-of-state license. See Case Nos. 1VY0BQC (Dist. Ct. Wash. Co) (cancelled
out of state license), http://casesearch.courts.state.md.us/case
search/inquiryDetail.jis? and IVX0BQC (suspended license) (Dist. Ct. Wash. Co),
Sweitzer does not
deny committing these violations in his Complaint, despite mentioning the cases.
Because Sweitzer alleges facts that would show probable cause existed to arrest him, his
Fourth Amendment claim will be dismissed.14
Malicious Prosecution (Counts XVII and XVII)
Second, Sweitzer notes, and the state docket indicates, that a nolle prose was
entered the day after Sweitzer completed his period of incarceration following his
conviction on the theft charge. Based on Sweitzer’s arguments, the Court discerns that he
argues Talbert subjected him to malicious prosecution because the two traffic violations
were later nolle prossed.15 The resolution of the traffic charges by way of nolle prose
does not support Sweitzer’s claim of false arrest or malicious prosecution because it does
not automatically provide evidence of lack of probable cause. See Fisher v. Matthews,
792 F.Supp.2d 745, 776 (M.D.Pa. 2011) (concluding that nolle prossed and withdrawn
charges when plaintiff's case was before the county court does not necessarily show that
defendants lacked probable cause to arrest and issue the criminal complaint against
plaintiff). As observed above, Sweitzer does not deny making an unsafe lane change,
driving on a suspended license, or driving on a cancelled out-of-state license. Based on
Sweitzer’s allegations, Talbert was justified in stopping Sweitzer and issuing him
citations, and consequently, properly arrested Sweitzer for having an open warrant for
Sweitzer’s false arrest and false imprisonment claims will also be dismissed. In
Maryland, an arresting officer’s liability “will ordinarily depend upon whether or not the
officer acted within his legal authority to arrest.” Montgomery Ward v. Wilson, 339 Md.
701, 721 (1995). For the aforementioned reasons, Talbert and Fitzgerald acted within
their authority to arrest and detain Sweitzer.
Sweitzer also argues that Washington County State’s Attorney Charles P. Strong
and Assistant Washington County State’s Attorney Jane Doe engaged in malicious
prosecution for the same reasons. As the Court explained above, however, prosecutorial
immunity bars his claims against Strong and Doe.
theft. Because probable cause exists based on the facts Sweitzer alleges, Sweitzer’s
malicious prosecution claim will be dismissed.
Due Process and Separation of Powers Claims
In Counts II and V, Sweitzer argues that Assistant Bar Counsel Marianne J. Lee
had no authority to testify as a witness before a grand jury, and conspired with Senior
Assistant State’s Attorney Colleen McGuinn to obtain a criminal indictment on theft
charges, violating the separation of powers between the prosecutor and the Office of Bar
Counsel.16 In Count IX, Sweitzer claims McGuinn and Lee, together with Howard
County State’s Attorney Broccolino, Bar Counsel Grossman and Hein, Investigator
Fiedler, Sweitzer’s former client, Tsai, and State Appellate Judges Sweeney and Barbera,
conspired to use a “void and illegitimate criminal conviction as an unconstitutional
‘springboard’ to impose suspension and revocation of his law license. (Am. Compl. at
These claims fail as a matter of law under Heck v. Humphrey, 512 U.S. 477
(1994). There, the Supreme Court held that in order to recover damages for unlawful
actions that “would render a conviction or sentence invalid,” the district court “must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the complaint has already been invalidated.” Id.
Sweitzer names “John or Jane Doe Grand Jurors 1-23” in the caption of his
amended complaint. Grand jury proceedings are secret, and Sweitzer provides no
allegation of wrongdoing on the part of the grand jurors, other than the fact that they
indicted him for theft. As discussed infra, the indictment and subsequent conviction
stand; thus, Sweitzer has no grounds to attack the action of the grand jury.
at 486–87.17 Sweitzer’s conviction has been affirmed on appeal, and stands. Thus, to the
extent the Defendants named in this Count are not immune from liability, each is
otherwise entitled to dismissal under Heck.
Claims Related to Sweitzer’s Prosecution for Theft18
As previously noted, Sweitzer’s theft conviction has been fully and finally
adjudicated and further litigation of possible grounds of attack cannot be presented by
way of a civil action under the holding of Heck.19
Sweitzer’s claim under the Americans with Disabilities Act (“ADA”) references
correspondence between Lee and McGuinn that Sweitzer’s claim of visual difficulty was
an attempt at avoiding service of process. ECF 5-1 at p. 32. Title II of the ADA,
prohibits public entities, including “any State or local government” and “any department,
agency, special purpose district, or other instrumentality of a State or States or local
government,” id. § 12131(1), from discriminating “by reason of” disability against a
“qualified individual with a disability.” Id. § 12132. The Court concludes that the ADA
See also Edwards v. Balisok, 520 U.S. 641, 645 (1997) (Heck precludes claims
that necessarily imply the invalidity of the judgment).
These claims are Counts III (Conspiracy to Deprive of Public Trial), IV (Entry
of Judgment Without Notice), VI (Deprivation of Property Due to Incarceration), X
(Failure to Record Grand Jury Proceedings in Violation of the Fifth Amendment), XI
(Failure to Record Grand Jury Proceedings in Violation of the Sixth Amendment), XII
(ADA claim), XX (Malicious Prosecution of Theft Charge), XXI (Tortious Interference
with Contract), and Count XXII (Tortious Interference with Prospective Advantage).
For the forgoing reasons, the Court will also dismiss Sweitzer’s claims under the
Due Process Clause to the extent he also brings them under the Maryland Declaration of
Rights. The Maryland Declaration of Rights is in pari materia with the United States
Constitution and its Amendments. See Evans v. State, 914 A.2d 25, 67 (2006) (parallel
provisions of the Maryland Declaration of Rights should not be "read more broadly (or
narrowly)" than the Eighth and Fourteenth Amendments to the U.S. Constitution).
is inapplicable here because Sweitzer does not sufficiently allege how Lee or McGuinn
discriminated against him. Their reference to his visual difficulty is not sufficient to state
a claim under the ADA. Thus, the Court will dismiss Sweitzer’s ADA claim.
Sweitzer also alleges a due process violation because after his conviction, the
Clerk of Court for Howard County, Wayne A. Robey, failed to update an address, leading
to a “meritless show cause order against [him] after counsel for the Client Protection
Fund . . . [filed a] motion for contempt.” (Am. Compl. at 11–12). The Court concludes
that Sweitzer does not have standing to bring his due process claim against the Clerk of
Court for Howard County. Standing requires that a plaintiff has “(1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992)). Here, Sweitzer does not sufficiently state that he suffered an injury because he
states that the Clerk of Court for Howard County corrected the error and the show cause
order was vacated. (Am. Compl. at 12). Thus, Sweitzer does not have standing to bring
this due process claim.
Inadequate Medical Care Claims20
Pretrial detainees and convicted prisoners are constitutionally entitled to adequate
medical care while held by the State. The constitutional protections afforded a pretrial
detainee as provided by the Fourteenth Amendment are co-extensive with those provided
These claims are Counts VII (Denial of Medical Care During Pretrial Detention)
VIII (Denial of Medical Care During Incarceration), and XXV (Medical Negligence for
Both Pretrial Detention and Post-Conviction Incarceration).
to convicted prisoners by the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520,
535 (1979); Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (citing Martin v.
Gentile, 849 F. 2d 863, 870 (4th Cir. 1988)). As a practical matter, the Fourth Circuit
does not distinguish between the Eighth and Fourteenth Amendments in the context of a
pretrial detainee’s civil rights claim. See Hill, 979 F.2d at 990–92.
In order for liability to exist under 42 U.S.C. § 1983, there must be personal
involvement by the defendant in the alleged violation. Vinnedge v. Gibbs, 550 F.2d 926.
928 (4th Cir. 1977); see also Rizzo v. Goode, 423 U.S. 362. 370–71 (1976). Here,
Sweitzer names Conmed HealthCare Management, Inc. (“Conmed”), Richard D. Turner,
the Chief Executive Officer of Conmed, “John Doe 1 M.D.” and “Chief Medical Officer”
as Defendants responsible for his allegedly inadequate health care. He also names Jack
Cavanagh, the Director of the Howard County Detention Center and Howard County
Executive Allen H. Kittleman. Nowhere in the Complaint does Sweitzer allege that
Turner or Kittleman had any personal knowledge of the health care provided during his
detention and incarceration, or that either played any direct role in providing such care.
Thus, these Defendants will be dismissed without prejudice for failure to state a claim.21
Additionally, Conmed is not amenable to suit under 42 U.S.C. §1983 because it is
not a “person.” See, e.g., Montgomery v. Conmed, 2016 WL 241738 n.6 (D.Md. January
Similarly, Sweitzer lists “John or Jane Does 1-20, Correctional Officers”
because they “were assigned correctional control” over him while he was housed at the
Howard County Detention Center. (Am. Compl. at 36). No violation of constitutional
rights is attributed to these unidentified individuals. Thus, the Court will dismiss them as
19, 2016). Sweitzer’s claims against John Doe MD #1, and John Doe MD #2, however,
Sweitzer’s state claim of medical negligence cannot proceed because Sweitzer
does not allege that he has complied with Maryland’s Health Claims Arbitration Act, Md.
Code Ann., Cts & Jud. Proc., §3-2A-02. The Act requires, as a condition precedent to
filing suit for “damages of more than the limit of the concurrent jurisdiction of the [state]
district court,” filing of a claim with the Director of the Healthcare Alternative Dispute
Id., see also Md. Cts & Jud. Proc., Code Ann. §3-2A-04(a).
Maryland’s state district courts have exclusive original jurisdiction over “an action in
contract or tort, if the debt or damages claimed to not exceed $30,000, exclusive of
prejudgment or postjudgment interest, costs, and attorney’s fees.” Md. Cts & Jud. Proc.,
Code Ann. §4-401. The instant Complaint seeks $500,000.00 in damages. Thus, because
Sweitzer’s negligence claim does not assert compliance with the Act prior to filing this
action, his claim of medical malpractice/medical negligence will be dismissed without
RICO Claim (Count XIII)
A civil cause of action under 18 U.S.C. §1964(c) or “RICO” requires proof of four
elements: “(1) conduct [causing injury to business or property], (2) of an enterprise, (3)
through a pattern, (4) of racketeering activity.” Sedima S.P.R.L. v. Imrex Company, Inc.,
473 U.S. 479, 496 (1995). “The object of civil RICO is thus not merely to compensate
victims but to turn them into prosecutors, ‘private attorneys general,’ dedicated to
eliminating racketeering activity.” Rotella v. Wood, 528 U.S. 549, 557 (2000), quoting
Klehr v. A.O. Smith, Corp., 521 U.S. 179,187 (1984). Racketeering activity includes
any of the enumerated offenses found in 18 U.S.C. §1961(1).
Because neither an
enumerated offense nor the elements of a RICO claim is identified by Sweitzer, the Court
will dismiss his RICO claim.
Negligent Hiring, Retention or Supervision Claim (Count XXIV)
Sweitzer seeks damages from Defendant Moyer, Secretary of the Department of
Public Safety and Correctional Services (DPSCS). Defendant Frankenberry, a DPSCS
employee, initiated a violation of probation proceeding against him on July 15, 2015, for
failure to pay money to the Client Protection Fund of the Bar of Maryland, even though
the Fund was already attempting to collect the money through a separate civil action.
(Am. Compl. ¶ 292). DPSCS eventually dismissed the violation of probation charge.
(Am. Compl. ¶ 293). Sweitzer asserts that Moyer negligently supervised Frankenberry,
resulting in Frankenberry initiating violation of probation proceedings. (Id. ¶¶ 291–92).
Sweitzer does not impute any personal knowledge to Defendant Moyer in his allegations,
however. Thus, the Court will dismiss Sweitzer’s claims against Moyer.
Legal Malpractice Claim (Count XXVI) and Defamation Claim
Attorney Clarke F. Ahlers represented Sweitzer his criminal trial.
retained attorneys do not act under color of state law. See Deas v. Potts, 547 F.2d 800,
800 (4th Cir. 1976). While an attorney who conspires with a state official to violate
constitutional rights does act under color of state law, a plaintiff must sufficiently state a
claim of conspiracy.
See Tower v. Glover, 467 U.S. 914, 920 (1984); Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (plaintiff must make more than naked
assertion of conspiracy). Sweitzer fails to do so. Thus, the Court will dismiss Sweitzer’s
claim against Ahlers to the extent Sweitzer brings the claim under § 1983.
To the extent Sweitzer brings the claim under Maryland law, Maryland’s threeyear statute of limitations period bars it. See Md. Code Ann., Cts. & Jud. Proc., § 5-101
(2013 Repl. Vol.). Sweitzer’s representation by criminal counsel Clarke Ahlers ended on
May 29, 2014, when the Howard County Circuit Court granted Ahlers’ request to strike
appearance in Case No. 13-K-13053059. The instant claim for legal malpractice against
Ahlers was filed more than three years later, on June 26, 2017. Because the claim is
time-barred, the Court will dismiss the claim.
Sweitzer also brings a defamation claim against Defendants Grossman,
Broccolino, McGuinn, Tsai, McCrone, Tucker, Dwyer, Lee, Hein and others.
Defamation does not state a cognizable claim of constitutional dimension under the Civil
Rights Act. See Paul v. Davis, 424 U.S. 693, 712 (1976). Thus, the Court will dismiss
Sweitzer’s defamation claim to the extent he brings the claim under § 1983.
To the extent Sweitzer brings a defamation claim under Maryland law, Maryland’s
one-year statute of limitations period bars it. See Md. Code Ann., Cts. & Jud. Proc. § 5105 (2013 Repl. Vol.). He pleads that those Defendants involved in attorney grievance
matters “continue to falsely represent that [his] October 7, 2013 conviction and
subsequent imposition of judgment on April 28, 2014, is valid,” despite their “failure to
oppose [his] subject matter jurisdiction challenge [to the conviction] or his representation
that the judgment is void.” (Am. Compl. at 73). But as the Court explained above,
Sweitzer’s conviction remains valid. As a result, reliance upon it does not constitute
defamation. Accordingly, the Court will summarily dismiss the defamation claim.
For the foregoing reasons, the Court will deny Sweitzer’s Motion to Recuse (ECF
No. 7). In addition, the Court will dismiss all Defendants with the exception of John Doe
#1 M.D., Chief Medical Officer, and John Doe #2 M.D., and the Court will dismiss all
counts with the exception of Counts VII and VIII. A separate Order follows.
Entered this 10th day of October, 2017.
George L. Russell, III
United States District Judge
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