Crouch v City of Hyattsville, et al

Filing 34

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/15/10. (sat, Chambers)

Crouch v City of Hyattsville, et al

Doc. 34

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MATTHEW J. CROUCH v. CITY OF HYATTSVILLE, et al. : : : : : Civil Action No. DKC 09-2544

MEMORANDUM OPINION Presently pending and ready for resolution in this civil rights case are four motions: (1) a motion to dismiss (Paper 5)

filed by the City of Hyattsville and others, (2) a motion to dismiss or for summary judgment (Paper 7) filed by Defendants Glenn Ivey and the State of Maryland, (3) a motion for extension of time to file an opposition and to amend the complaint (Paper 14) filed by Plaintiff, and (4) a motion to amend the complaint (Paper 30) filed by Plaintiff. The issues are fully briefed and

the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion

to dismiss filed by the City of Hyattsville, et al. will be granted in part and denied in part and the motion to dismiss filed by Glenn Ivey, et al. will be granted. The motion for

leave to file an amended complaint will be granted in part and denied in part, and the motion for an extension of time to file will be denied as moot.

Dockets.Justia.com

I.

Background Plaintiff Matthew J. Crouch brings an action for violation

of his civil rights stemming from the alleged use of excessive force and an unlawful arrest. citizen of Maryland. Plaintiff is an adult individual

His complaint alleges that, shortly after

midnight on the morning of September 29, 2008, Plaintiff and his friend Anthony Heidenberg ("Heidenberg") returned from College Park to Hyattsville by way of Queensbury Road. (Paper 1 ¶ 13).

They parked in front of a friend's house on 41st Avenue, but, after (Id.). finding that he was not home, returned to their car.

They noticed a red truck fail to stop at a stop sign at

the corner of Queensbury and 41st Avenue, and they began to shout and gesture to the truck to slow down. (Id.). The driver of

the truck then stopped in the middle of 41st Avenue to confront them. Heidenberg approached the truck to tell the driver to "go away" and a white male jumped out with a handgun pointed at Heidenberg. Heidenberg, (Paper after 1 ¶ 14). The man began to assault The man

which

Plaintiff

approached.

identified himself as an off-duty Hyattsville police officer and pointed his weapon at Plaintiff. "surrender," but the officer Plaintiff raised his hands to attacked Plaintiff in the

then

course of arresting him, hitting Plaintiff multiple times with 2

his

handgun.

(Id.).

This

officer

was

later

identified

as

Defendant Todd Prawdzik ("Prawdzik"), who at the time was an officer with the City of Hyattsville Police Department. The beating rendered Plaintiff unconscious and left him

bleeding profusely. transport diagnosed him with to

(Paper 1 ¶ 15). Washington Hospital

An ambulance arrived to Center, and where he was for

severe

open-head

trauma

treated

lacerations and other injuries.

He was then released to the

D.C. Metropolitan Police Department and transported to the Fifth District precinct. (Paper 1 ¶ 16). While at the of insulin.

Plaintiff is an insulin-dependent diabetic. police station, Plaintiff became ill from lack

Plaintiff was taken to Providence Hospital in the morning of September 30, 2008 for treatment with Novolog. (Paper 1 ¶ 17).

After his visit to the hospital, Plaintiff was taken to his initial District appearance to await and subsequently taken back to He the then Fifth lost

further

proceedings.

consciousness and was admitted to Howard University Hospital, where he was diagnosed with ketoacidosis from high blood glucose levels. He was held at Howard University Hospital for several Plaintiff alleged

days and was released on October 8, 2008.

that, following his release, he has experienced attacks of posttraumatic stress anxiety and has been under the care of a neuro3

psychiatrist for treatment from his severe head trauma. 1 ¶ 18). Plaintiff Maryland for made Prince his appearance in the on District December

(Paper

Court 15,

of

George's

County

2008.

(Paper 1 ¶ 19; Paper 9, at 5 n.3).1 ("Pile"), and several other

Prawdzik, Corporal Kirk Pile all attended. The

officers

Hyattsville Police Department and State's Attorney obtained a continuance. (Paper 1 ¶ 19). Plaintiff alleges that after that

date, police subjected him to harassment near his residence. (Id.). On February 27, 2009, the State entered a nolle prosequi (Paper 7, at 3).

in the case.

Plaintiff filed a complaint in this court on September 29, 2009. (Paper 1). The original complaint was filed against

eleven defendants: (1) City of Hyattsville ("the City"); (2) City Council of the City of Hyattsville ("the City Council"); (3) William Gardiner ("Gardiner"), in his capacity as Mayor of Hyattsville; (4) Douglas Holland ("Holland"), in his capacity as chief of police; (5) Officer Pile; (6) John Doe Police Officer 1; (7) John Doe Police Officer 2; (8) Prawdzik, (9) Glenn Ivey ("Ivey"), in his capacity as State's Attorney for Prince

In his complaint, Plaintiff lists the date as October 14, but in later documents notes that the date he listed was incorrect. 4

1

George's

County;

(10)

Jane

Doe,

Esq.,

in

her

capacity

as

assistant state's attorney; and (11) the State of Maryland ("the State"). action. alone, (Id. at 1-2). Counts include a one The complaint asserts twelve causes of five, of asserted rights against under Prawdzik U.S.C.

through

violation

civil

42

§ 1983, false arrest, false imprisonment, assault, and battery. Count six, malicious prosecution, is asserted against Prawdzik and others. In counts seven and eight, Plaintiff pleads claims

of negligent hiring and supervision and gross negligence against Holland, Gardiner, and the City. four Ivey, nine), additional Jane Doe, counts and against the Finally, Plaintiff asserts the City, Gardiner, (count of

Prawdzik,

State, ten),

including

defamation

false

light

(count (count

intentional and state

infliction

emotional

distress

eleven),

constitutional

claims under Articles 24 & 26 of the Maryland Declaration of Rights (count twelve). (Id.).

Plaintiff did not serve the complaint upon all Defendants at once, and their Answers have trickled in over the period since the filing of the complaint. The following Defendants

have filed Answers: Prawdzik (Paper 31), Pile (Paper 26), and the City, which filed a Partial Answer (Paper 4). Ivey filed a

motion to dismiss on behalf of himself and the State on March 1, 2010. (Paper 7). The City Council, the City, Gardiner, and 5

Holland (collectively, the "City Defendants") all filed a joint motion to dismiss on February 23, 2010. (Paper 5). Plaintiff

has filed oppositions to both motions to dismiss, and Defendants have replied. leave to file On June 20, 2010, Plaintiff filed a motion for a first amended complaint. (Paper 30).

Defendants have not filed any opposition to that motion. Because the motions to dismiss affect the motion to amend, the court will consider those motions first. II. Motions to Dismiss A. Standard of Review

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) complaint. (4th Cir. is to test the sufficiency of the plaintiff's

See Edwards v. City of Goldsboro, 178 F.3d 231, 243 1999). Except in certain specified cases, a

plaintiff's complaint need only satisfy the "simplified pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), which requires a "short and plain statement of the claim showing that the pleader is entitled "Rule blanket to relief." still of

Fed.R.Civ.P. requires a

8(a)(2). `showing,'

Nevertheless, rather than a

8(a)(2)

assertion,

entitlement to relief." 544, 555 n.3 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

That showing must consist of more than "a

formulaic recitation of the elements of a cause of action" or 6

"naked Ashcroft

assertion[s] v. Iqbal,

devoid 129

of

further 1937,

factual 1949

enhancement." (internal

S.Ct.

(2009)

citations omitted). The court must consider all well-pled allegations in a

complaint as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse

Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). The court need not accept, however, unsupported legal

allegations, Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual

allegations, Iqbal, 129 S.Ct. at 1950, or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).; see also 2009). to Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.

"[W]here the well-pleaded facts do not permit the court more than the mere possibility of misconduct, the

infer

complaint has alleged, but it has not `show[n] . . . that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950

(quoting Fed.R.Civ.P. 8(a)(2)).

Thus, "[d]etermining whether a

complaint states a plausible claim for relief will . . . be a

7

context-specific task that requires the reviewing court to draw on its judicial experience and common sense." B. Motion to Dismiss by City Defendants Id.

The causes of action against the City in the complaint are counts seven through twelve. It has filed an Answer with

respect to count twelve.2

(Paper 4).

Counts seven through

twelve are also asserted against Gardiner; counts six and seven are additionally alleged against Holland. Initially, City

Defendants state that the City Council is not a legal entity separate and apart from the municipal corporation known as the City of Hyattsville, and so Defendants assume that Plaintiff intended to assert his claims against the municipal corporation itself as an entity. same can be said of (Paper 5, at 2 n.2). Gardiner, although They note that the 11 of the

Paragraph

complaint seems to indicate that Plaintiff intends to assert a claim against Mayor Gardiner in both his individual and official capacity. (Id.).

City Defendants claim that, as a municipal corporation, the City is immune from liability under state law for acts or On

omissions that are governmental, as opposed to proprietary.

In its motion to dismiss, the City acknowledges that it is "potentially vicariously liable for state constitutional torts committed by" Prawdzik and that count twelve states "a potential claim for relief against" the City. 8

2

the other hand, City Defendants claim that the counts against Gardiner and Holland fail as a matter of law due to statutory public official immunity. 1. Governmental Immunity

The doctrine of governmental immunity is "deeply ingrained in Maryland law" and may not be waived without express or

implied statutory authorization. Md.App. 172, 182 (1999).3 common law tort suits

Nam v. Montgomery Cnty., 127

The doctrine provides immunity from for governmental, as opposed to

proprietary, acts.

DiPino, 354 Md. at 47; see also Ashton v.

Brown, 339 Md. 70, 101 (1995) (citing Clea v. City of Baltimore, 312 Md. 662, 667 (1988)). such Any as municipality a city, is exercising entitled a to

governmental

function,

governmental immunity.

Nam, 127 Md.App. at 183 ("When the state

gives a city or county part of its police power to exercise, the city or county to that extent is the state."). of a police force is a governmental "The operation Hector v.

function."

Weglein, 558 F.Supp. 194, 206 (D.Md. 1982) (citations omitted). Thus, asserted a city it is immune on as to common law by tort its claims police

against

based

torts

committed

The Local Government Tort Claims Act, which does impose a degree of liability on local governments, does not waive governmental immunity. See Khawaja v. Mayor & City Council, City of Rockville, 89 Md.App. 314, 325 (1991). 9

3

officers.

Gray-Hopkins v. Prince George's Cnty., Md., 309 F.3d

224, 234 (4th Cir. 2002); DiPino, 354 Md. at 47; Williams v. Prince George's Cnty., 112 Md.App. 526, 553-54 (1996).4 As such,

governmental immunity bars the claims asserted against the City (and City Council) in counts state seven through eleven. violations, Count will

twelve,

which

asserts

constitutional

remain in place as against the City. (stating that governmental violations entities by their

See DiPino, 354 Md. at 53 may be held under liable for

constitutional

agents

respondeat

superior theory). 2. Public Official Immunity statutory as law well. grants "In Gardiner Maryland, and Holland some

Maryland degree of

immunity

public

official City

immunity is recognized both at common law and by statute." of District Heights v. Denny, 123 Md.App. 508, 516

(1998).

Although Gardiner and Holland attempt to rely on the latter type (Paper 5-1, at 4-5), some understanding of common law immunity is necessary to understand the statutory type. Md. Code Ann., Cts. & Jud. Proc. § 5-507(b)(1) states:

It makes no difference that Plaintiff's tort claims allegedly "arise from the flagship claim alleging a violation of constitutional rights." (Paper 9, at 4). Plaintiff may obtain relief for the alleged violation through count twelve. 10

4

An official of a municipal corporation,[5] while acting in a discretionary capacity, without malice, and within the scope of the official's employment or authority shall be immune as an official or individual from any civil liability for the performance of the action. Maryland courts have "pointed out that the purpose of these provisions was to codify existing public official immunity, and not to extend common the law scope of qualified immunity v. beyond Forrest, its 183

Maryland

boundaries."

Houghton

Md.App. 15, 40 (2008), rev'd on other grounds by 412 Md. 578 (2010) (stating that that it Section does not "5-507's apply legislative to history and

indicates

intentional

constitutional torts"); see also Prince George's Cnty. v. Brent, 414 Md. 334, 355 (2010) ("The immunity contemplated in [Section 5-507] is common law public official immunity."); Lee v. Cline, 384 Md. 245, 259 n.2 (2004) (quoting Lovelace v. Anderson, 366 Md. 690, 704 (2001)) (internal quotation marks omitted). Common

law public official immunity does not apply to intentional or constitutional torts. Houghton v. Forrest, 412 Md. 578, 586

(2010) (common law public official immunity does not apply to intentional torts); Okwa v. Harper, 360 Md. 161, 201 (2000)

"Municipal corporations are cities, towns, and villages created under any general or special State law and are subject to Article XI-E of the Maryland Constitution." Houghton, 183 Md.App. at 34. The City of Hyattsville is such a corporation. 11

5

(common

law

public

official

immunity

does

not

apply

to

constitutional torts).

Therefore, although the statutory text

contains no indication that statutory immunity was not intended to apply to intentional or constitutional torts, the court will nevertheless decline to apply them to those types of torts. Admittedly, the statutory text is susceptible to the

broader reading that Gardiner and Holland give it.

Moreover, as

the Fourth Circuit has observed, the Maryland Court of Appeals has not directly decided this issue. at 233 n.3. See Gray-Hopkins, 309 F.3d

Even so, this court must defer to the few hints

that have been provided and the interpretation that Maryland courts have suggested. Cir. 2003). Wilson v. Kittoe, 337 F.3d 392, 399 (4th

As such, public official immunity will not bar the

intentional tort claims lodged against Gardiner in counts nine, ten, and eleven, or the constitutional claim lodged against

Gardiner in count twelve. Counts claims. seven and eight, however, assert only negligence

Thus, statutory public official immunity will apply

unless Plaintiff can demonstrate that Gardiner and Holland acted with malice. The malice required to strip away statutory

immunity is "actual malice." (1999); Hector, 558 F.Supp.

Shoemaker v. Smith, 353 Md. 143 at 194. Actual malice under

Maryland law means "conduct characterized by evil or wrongful 12

motive,

intent

to

injure,

knowing

and

deliberate

wrongdoing,

ill-will or fraud," and may be present even when "the conduct is objectively reasonable." Lee v. Cline, 384 Md. 245 (2004)

(citations omitted). In order to survive a motion to dismiss, Plaintiff's

complaint must have alleged facts rising to a level of actual malice on the part of Gardiner and Holland. Nowhere in the

complaint does Plaintiff use the term "malice," or any term implying such a sentiment, to describe acts by either Defendant. He claims merely that "Defendants knew or had reason to know of Defendant Prawdzik's abusive and violent history" and that he "was likely to abuse his position of authority." 48). (Paper 1 ¶

The complaint also alleges that Holland and Gardiner had internal investigations and had "specific, prior

conducted

knowledge that Prawdzik had conducted previous assaults against members of the public." explained, malice: Plaintiffs asserting malice are held to a high pleading standard that may not be satisfied by conclusory allegations. See Elliott v. Kupferman, 58 Md. App. 510, 528, 473 A.2d 960 (1984)("[m]erely asserting that an act was done maliciously, or without just cause, or illegally, or for improper motive does not suffice. To overcome a motion raising governmental immunity, the plaintiff must allege with some clarity and 13 none of (Paper 1 ¶ 52). assertions As this court recently to the level of

these

rises

precision those facts which make the act malicious"); Hovatter v. Widdowson, No. CCB03-2904, 2004 U.S. Dist. LEXIS 18646, at *23 (D.Md. Sept. 15, 2004) ("although the amended complaint repeatedly states that all of the defendants acted with malice towards [Plaintiff] . . . these bare legal conclusions are not binding on the court"). Ames v. Harford Cnty., No. RDB 09-1929, 2010 WL 1791547, at *4 (D.Md. May 4, 2010). Plaintiff has not met the required

standard.

Therefore, the claims against Gardiner and Holland in

counts seven and eight will be dismissed. C. Motion to Dismiss or for Summary Judgment by Ivey and the State of Maryland Ivey6 and the State (collectively, "State

Defendants

Defendants") move to dismiss or for summary judgment7 on the claims against them, claiming immunity. claims of malicious prosecution (count The complaint states six), common law

defamation (count nine), common law false light (count ten), common law intentional infliction of emotional distress (count

In discussing claims against Defendant Ivey, the court will equate Ivey with the Office of the State's Attorney. Although Plaintiff only asserts a claim against Ivey and a "Jane Doe, Esq." in the first complaint, the amended complaint seeks to add two named attorneys working for Ivey. Because Plaintiff asserts no new facts against these attorneys in the proposed amended complaint that would change the outcome of the motion to dismiss, it would be futile to add them to the complaint. Because the court can determine from the face of the complaint that the claims against Ivey and the State must be dismissed, this motion is construed as a motion to dismiss. 14
7

6

eleven) and violation of state constitution Articles 24 and 26 (count twelve) against State Defendants. 1. Claims Against the State Amendment bars suits in federal court for

The Eleventh

monetary damages against a state or state officials acting in their official capacity. Ballenger v. Owens, 352 F.3d 842, 844-

45 (4th Cir. 2003); Lewis v. Bd. of Ed., 262 F. Supp. 2d 608, 612 (D.Md 2003). Three exceptions exist to a state's sovereign

immunity and none of those exceptions are present in this case. First, a state may waive its immunity and consent to suit in federal Although court. the Green State v. Mansour, of 474 U.S. has 64, 68 (1985). its

Maryland

waived

sovereign immunity for certain types of actions brought in state court Ann., pursuant State to the Maryland § 12-104, Tort has Claims not Act, see Md. Code

Gov't

it

waived

its Eleventh

Amendment immunity for actions brought in federal court, see Md. Code Ann., State Gov't § 12-103(2). Second, immunity does not bar a suit against a state

official when a plaintiff is seeking prospective relief to end a continuing violation. Ex Parte Young, 209 U.S. 123, 167 (1908). Finally, Congress

That exception does not apply in this case.

may validly abrogate a state's Eleventh Amendment immunity, but it has obviously not done so here. 15 Seminole Tribe of Florida v.

Florida, 517 U.S 44, 55 (1996).

Therefore, none of the possible

exceptions apply in this case and the claims against the State must be dismissed. The claims against Ivey in his official

capacity will also be dismissed ­ as such claims are simply another manner of suing the State. 2. Claims Against Ivey (In His Personal Capacity)

Ivey also argues that the claims filed against him in his personal capacity must be dismissed because he is entitled to prosecutorial immunity. (Paper 7, at 12). Plaintiff insists

that Ivey's actions were "extra-prosecutorial" and that he was giving advice to the police department during the course of the hearing on December 15, 2009. (Paper 16, at 8). Plaintiff

contends that Ivey should not receive immunity due to the types of actions he took throughout the proceeding. counts light, against him: malicious infliction prosecution, of There are five false and

defamation, distress,

intentional

emotional

violation of Articles 24 & 26. "[I]n initiating a prosecution and in presenting the

State's case, the prosecutor is immune from a civil suit for damages under § 1983." (1976). Similarly, as a matter of Maryland common law, . . . prosecutors enjoy absolute immunity with respect to claims arising from their role in the judicial process -- evaluating whether 16 Imbler v. Pachtman, 424 U.S. 409, 431

to commence a prosecution by criminal information, presenting evidence to a grand jury in the quest for an indictment, filing charges, and preparing and presenting the State's case in court. Gill v. Ripley, 352 Md. 754, 770 (1999); cf. Springmen v.

Williams, 122 F.3d 211, 214 (4th Cir. 1997) ("While the Supreme Court has not extended absolute immunity to all legal advice by prosecutors, it has never hesitated to grant such immunity to prosecutors acting as [the prosecutor] did here - in their core role as advocates for the state. The primary check on

prosecutors acting in that role lies in the judicial process, not in section 1983 suits."). The facts related to Ivey

contained in Plaintiff's complaint all concern acts that fall well within the ambit of protected conduct described in Gill. The initial complaint seeks to hold Ivey liable for (1) his decision to initiate Plaintiff's prosecution and (2) his

propagation of certain facts in the course of that prosecution. Such claims are textbook examples of claims foreclosed by

prosecutorial immunity.

See Gill, 352 Md. at 764 (noting that

prosecutorial immunity originally developed in cases involving malicious prosecution and defamation claims). Even if prosecutorial immunity did not apply, Plaintiff has inadequately pled each of his claims against Ivey and dismissal would be appropriate under Rule 12(b)(6). 17

To state a viable malicious prosecution claim in Maryland, Plaintiff must show: (1) that a criminal proceeding was instituted or continued by the defendant against the plaintiff, (2) that the proceeding terminated in favor of the plaintiff, (3) the absence of probable cause for the proceeding, and (4) malice, meaning that a primary purpose in instituting the proceeding was other than that of bringing the plaintiff to justice. DiPino, 354 Md. at 54. Plaintiff asserts facts that support He

only the first three prongs of this test in his complaint.

discusses the criminal proceeding and he notes that the state entered a nolle prosequi in his favor, which supports factors two and three. Nowhere, however, does he assert facts

sufficient to show evidence of malice on the part of Ivey or anyone else in the Office of the State's Attorney. has therefore failed to state a prima facie case. Plaintiff Plaintiff and also placed attempts his to argue in a that false Ivey light defamed because Plaintiff

name

Plaintiff's case was published on the Maryland Judiciary Case Search ("MJCS") (which Plaintiff refers to as the Courts and Judicial Information System). defamation under Maryland To present a prima facie case of Plaintiff must establish four

law,

elements: "(1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, (3) that the 18

defendant was legally at fault in making the statement, and (4) that the plaintiff thereby suffered harm." 402 Md. 191, 198 (2007). Offen v. Brenner,

To establish a prima facie case of

false light under Maryland law, Plaintiff must show: (1) the false light in which he was placed would be highly offensive to a reasonable person; and (2) Ivey had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which Plaintiff would be placed. Holland

v. Psychological Assessment Res., Inc., 482 F.Supp.2d 667, 681 (D.Md. 2007) (internal citations and quotations omitted).

"Publicity consists of communication to the public at large, or to so many persons that the matter must be regarded as

substantially certain to become one of public knowledge."

Mayer

v. Safeway, Inc., 398 F.Supp.2d 412, 429 (D.Md. 2005) (citing Restatement (Second) of Torts § 652D, cmt. A (1977)). In

addition to the fact that the State's Attorney's office does not control the MJCS ­ courts control it ­ Plaintiff's complaint is missing a basic element of both torts: falsity. Although the

charges against Plaintiff were ultimately dropped, he was in fact charged with a crime and the publication of that fact on MJCS was not false. Hence, there was no false statement or

publicized falsity and Plaintiff has failed to state a claim for defamation or false light. 19

Plaintiff also brings a claim of intentional infliction of emotional distress against Ivey. To recover for intentional

infliction of emotional distress, Plaintiff must be able to show that Ivey's conduct was (1) intentional or reckless, (2) extreme and outrageous, (3) causally connected to Plaintiff=s emotional distress, and (4) the distress caused was severe. Baltimore-

Clark v. Kinko's Inc., 270 F.Supp.2d 695, 701 (2003) (citing Harris v. Jones, 281 Md. 560, 566 (1977)). "Each of these It is not

elements must be pled and proved with specificity.

enough for a plaintiff merely to allege that they exist; he must set forth facts that, if true, would suffice to demonstrate that they exist." Foor v. Juvenile Servs. Admin., 78 Md.App. 151,

175 (1989); see also Arbabi v. Fred Myers, Inc., 205 F.Supp.2d 462, 466 (D.Md. 2002). show that Ivey acted There are no facts in the complaint to intentionally or recklessly to cause

Plaintiff any emotional distress.

Nor is there any hint of Most of the Beyond those

outrageous behavior by Ivey directed at Plaintiff. claim in fact refers to Prawdzik's says behavior. the

allegations,

Defendant

simply

that

other

Defendants

"acted to protect the police officer in question despite the gravity and severity of his conduct and to insulate him and themselves from accountability." (Paper 1 ¶ 66). This

statement lacks specificity and does not provide any information 20

regarding how Defendants' behavior was extreme, outrageous, or intentional. against Ivey. Finally, in count twelve, Plaintiff alleges that Prawdzik, the Hyattsville seized Police and Department, Crouch and other a Defendants warrant and Therefore, Plaintiff has failed to state a claim

illegally

detained

without

therefore abridged his rights and immunities guaranteed under Articles 24 & 26 in the Maryland Declaration of Rights. facts in no way implicate the State or Ivey. These

Therefore, this

count as well must be dismissed as to those defendants. III. Motion to Amend the Complaint Plaintiff filed a motion to amend on June 20, 2010, well after Defendants filed motions to dismiss and answers. 30). Fed.R.Civ.P. 15(a) provides that, after 21 (Paper have

days

passed from the filing of a responsive pleading or Rule 12(b) motion, "a party may amend its pleading only with the opposing party's written consent or the court's leave. freely give leave when justice so requires." has said that In the absence of any apparent or declared reason, such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc., the leave sought to amend a 21 The court should The Supreme Court

complaint should, as the rules require, be "freely given." The grant or denial of an opportunity to amend is within the discretion of the district court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules of Civil Procedure. Foman v. Davis, 371 U.S. 178, 182 (1962). "Whether an amendment is prejudicial will often be A

determined by the nature of the amendment and its timing.

common example of a prejudicial amendment is one that `raises a new legal theory that would require the gathering and analysis of facts not already considered by the [defendant, and] is

offered shortly before or during trial.'"

Laber v. Harvey, 438

F.3d 404, 426-27 (2006) (citing Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). not prejudicial if it merely By contrast, an amendment is an additional theory of

adds

recovery to the facts originally pled and is offered before any discovery has occurred. Id. (citing Davis v. Piper Aircraft

Corp., 615 F.2d 606, 613 (4th Cir. 1980)). In this case, allowing the amended complaint will not cause undue delay, and there is no evidence of any bad faith or

dilatory motive. that was not

Plaintiff has added new supporting information available real when he is initially whether the filed the

readily The only

complaint.

question 22

proposed

amendment would be futile.

The standard for futility is the

same as a motion to dismiss under Fed. R.Civ.P. 12(b)(6). See Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995)

(amendment is futile if the amended claim would fail to survive motion to dismiss). "Leave to amend should be denied on the

ground of futility only when the proposed amendment is clearly insufficient or frivolous on its face." Cappetta v. GC Servs.

Ltd. P'ship, No. 3:08CV288, 2009 WL 482474 at *4 (E.D.Va. Feb. 24, 2009) (citing Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1986); Oroweat Foods Co., 785 F.2d at 510). Although complaint, the he asserts many new is facts still in the amended with

proposed

amendment

insufficient

respect to the claims dismissed above. have Eleventh Amendment immunity and

The State will still the City will retain

governmental immunity.

The amended complaint does not include

any facts indicating malice; statutory public official immunity therefore remains intact for Gardiner and Holland on the

negligence claims.

And, even with the new facts, the claims

against Ivey still fail to state a claim. Finally, Plaintiff seeks to assert an additional claim:

conspiracy to deprive Plaintiff of constitutional rights under 42 U.S.C. § 1985. Plaintiff contends that the State's Attorneys

entered into an agreement with the individual police defendants 23

to deprive Plaintiff of his constitutional rights.

According to

the amended complaint, these individuals procured Plaintiff's medical records and removed documents from Plaintiff's criminal file that were damaging to Prawdzik's credibility and the

credibility of police officials to ensure that Plaintiff could not access them. (Paper 30, Ex. 2 ¶¶ 80-81). Although

Title 42 U.S.C. § 1985 has several sections.

Plaintiff does not indicate under which section he seeks to invoke, the court will interpret his complaint as one under 42 U.S.C. § 1985(3). This section creates a cause of action for

those who have been deprived of rights or privileges by two or more persons acting in a conspiracy. The Fourth Circuit has explained: The law is well settled that to establish a sufficient cause of action for "conspiracy to deny equal protection of the laws" under section 1985(3), a plaintiff must prove: (1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy. Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985); see also Griffin v. Breckenridge, 403 U.S. 88, 102-03, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). Moreover, the law is well settled that to prove a section 1985 "conspiracy," a claimant must show an agreement or a "meeting of the minds" by defendants to 24 See 42 U.S.C § 1985(3).

violate the claimant's constitutional rights. See Caldeira v. County of Kauai, 866 F.2d 1175, 1181 (9th Cir. 1989), cert. denied, 493 U.S. 817, 107 L. Ed. 2d 36, 110 S. Ct. 69 (1989); see also Lenard v. Argento, 699 F.2d 874, 882-83 (7th Cir. 1983), cert. denied, 464 U.S. 815, 78 L. Ed. 2d 84, 104 S. Ct. 69 (1983) (a civil conspiracy under section 1985 is a combination of two or more persons acting in concert to commit an unlawful act, the principal element of which is an agreement or single plan between the parties to inflict a wrong against or injury upon another). Simmons v. Poe, 47 F.3d 1370, 1376-77 (4th Cir. 1995). Even when

all the facts stated are taken as true, Plaintiff simply does not allege sufficient facts to support a claim for violation of Section 1985(3). There is no information as to what rights

Plaintiff was deprived of, as he simply says he was deprived of his "constitutional rights." Moreover, there is no allegation There is

that Defendants were motivated by any discrimination.

nothing wrong with the State's Attorneys were working with the police to investigate the crime they alleged Plaintiff

committed; that is the function of the prosecutor as a part of the prosecutorial process. Simply stating that the

prosecutorial process was a "ruse" and "fishing expedition" does not make it so. Conclusory statements such as these are

inadequate to support the claimed violation and thus it would be futile to allow Plaintiff to amend his complaint to add this 25

cause of action.

See Gooden v. Howard Cnty., 954 F.2d 960, 969-

970 (4th Cir. 1992) (noting that "courts have thus required that plaintiffs alleging unlawful intent in conspiracy claims under § 1985(3) or § 1983 plead specific facts in a nonconclusory fashion to survive a motion to dismiss"). The court will grant leave to amend with respect to any remaining Defendants. Finally, the motion for an extension of time to file an opposition and for leave to file an amended complaint will be denied as moot. (Paper 14). Plaintiff filed his opposition and

the court has now decided the issue of whether the complaint may be amended.

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IV.

Conclusion For the foregoing reasons, Defendants' motions to dismiss

will be granted in part and denied in part, and Plaintiff's motion for an extension of time will be denied as moot.

Plaintiff's motion for leave to file an amended complaint will be granted in part and denied in part. been dismissed will not be Those parties which have and the additional

reinstituted

asserted claim for a violation of 42 U.S.C. § 1985 will be struck. All other amendments will be accepted. A separate

Order will follow.

/s/ DEBORAH K. CHASANOW United States District Judge

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