Morales et al v. Richardson et al

Filing 21

MEMORANDUM. Signed by Judge J. Frederick Motz on 1/30/12. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

STEVEN MORALES, et. al.

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Plaintiffs
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v.
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OFFICER DOMMINIQUE RICHARDSON, *
et. al.
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Defendants.
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Civil No. JFM-11-3215

MEMORANDUM
Plaintiffs Steven Morales (“Steven”) and Luciano Morales (“Luciano”) brought this
action against Defendants Officer Dominique Richardson (“Richardson”) and Prince George’s
County, Maryland (the “County”) in the Circuit Court for Prince George’s County, Maryland.
The Moraleses assert that Richardson, a police officer for the County, assaulted Steven Morales
outside of a fraternity party for which Richardson was hired as a security guard. The Moraleses
claim Richardson’s conduct was tortious and that it violated their state and federal constitutional
rights. The County, with the consent of Richardson, removed the action to this court on the
ground that the claims asserted by the Moraleses under 42 U.S.C. § 1983 presented a federal
question. Now pending before the court is the County’s motion to dismiss the claims against it.
The motion has been fully briefed and no hearing is necessary. See Local Rule 105.6. For the
reasons that follow, the § 1983 claim against the County will be dismissed. Further, the case is
remanded to the Circuit Court for Prince George’s County because although Richardson has filed

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an answer, Plaintiffs have no federal constitutional claims against him. For that reason, the
§ 1983 claim against Richardson will also be dismissed.
I.

BACKGROUND

On October 29, 2010, several chapters of the Omega Psi Phi Fraternity at Bowie State
University held a Halloween party in Beltsville, Maryland. (Compl. ¶ 3). The fraternity hired
Richardson, an officer with the Prince George’s County Police Department, to provide security
at the party. (Id. ¶¶ 2–3). Richardson in turn hired other Prince George’s County police officers
to assist him. (Id. ¶ 3).
On October 30, 2010, Steven Morales arrived at the party shortly after midnight and
purchased a ticket to the event. (Id. ¶ 4). Richardson was at the front entrance as Steven stood in
line to enter the party. (Id.). Steven alleges that after he reached the front of that line Richardson
punched him in the mouth, without provocation or justification. (Id.). Steven fell backwards,
and Richardson “got Steven into a choke, cutting off his breathing.” (Id.). Richardson
eventually released the choke hold and made Steven stand up and put his hands against a nearby
police car. (Id.). Steven alleges he was bleeding and in need of medical attention. (Id.).
Richardson then ordered Steven to leave, without identifying who Steven was, notifying a
superior, or filing a use-of-force report. (Id.).
After the altercation Steven drove home, where his father, Luciano Morales, saw that
Steven was injured. (Id. ¶ 5). Luciano drove Steven to the scene of the incident, where Steven
identified Richardson as the person who assaulted him. (Id.). Luciano requested a supervisor
come to the scene and he and Steven reported the assault. (Id.). Luciano then drove Steven to
Sothern Maryland Hospital Center, where Steven was diagnosed with a fractured tooth and
lacerations to the mouth. (Id.). Steven was later seen by a dentist and several specialists who

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tried to save or repair his tooth, but those attempts failed. (Id.). Steven has undergone treatment
to implant an artificial tooth and spent several months without a front tooth, which he avers was
“unsightly and embarrassing.” (Id.).
The Moraleses claim Richardson’s actions were committed within the scope of his
employment as a police officer for the County. (Id. ¶ 6). They allege that as a result of
Richardson’s conduct, Steven suffered physical injuries and mental pain and suffering and that
Luciano incurred medical expenses. (Id. ¶ 7). On November 4, 2010, the Moraleses gave
written notice of their claim, as required by the Local Government Torts Claim Act. (Id. ¶ 8).
An internal affairs investigation in the County police department was initiated, as was a criminal
investigation into Richardson’s actions. (Id. ¶ 10). The Moraleses allege that in retaliation for
pursuing their legal claim, Richardson initiated criminal charges against Steven on March 5,
2011. (Id.). They claim the charging document against Steven “made outlandish factual claims
which were untrue and falsely alleged that Steven assaulted Richardson.” (Id.). The State’s
Attorney entered the charges against Steven nol prossed on May 27, 2011. (Id. ¶ 11).
On Oct 24, 2011, the Moraleses instituted the present action in the Circuit Court for
Prince George’s County, Maryland. The County removed the action to this court on November
10, 2011, based on the original federal jurisdiction over the claims brought under 42 U.S.C.
§ 1983 and pendant jurisdiction over the other claims. (See Notice of Removal, ECF No. 1,
at 2).
II.

STANDARD OF REVIEW

The County moves to dismiss the claims against it pursuant to FRCP 12(b)(6). “‘[T]he
purpose of Rule 12(b)(6) is to test the legal sufficiency of a complaint’ and not to ‘resolve
contests surrounding the facts, the merits of a claim, or the applicability of defenses.’” Presley v.

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City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243–44 (4th Cir. 1999)). To survive a motion to dismiss under Rule
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Generally, when ruling on a 12(b)(6) motion,
the court assumes the facts alleged in the complaint are true and draws all reasonable factual
inferences in the nonmoving party’s favor. Edwards, 178 F.3d at 244. A complaint need not
provide “detailed factual allegations,” but it must “provide the grounds of [the plaintiff’s]
entitlement to relief” with “more than labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555 (internal quotations omitted).
III.

ANALYSIS
a. Section 1983 Claims (Counts I, II)

Counts I and II assert claims of excessive force and malicious prosecution under 42
U.S.C. § 1983. (Compl. ¶¶ 9–12). Section 1983 imposes liability on anyone who, acting under
color of state law, deprives a person of any “rights, privileges, or immunities secured by the
Constitution and laws.” See 42 U.S.C. § 1983; Pee Dee Health Care, P.A. v. Sanford, 509 F.3d
204, 210 (4th Cir. 2007). The § 1983 claims are brought on behalf of both Steven and Luciano
Morales. The County argues the claims should be dismissed for two reasons. First, it argues
Luciano has no standing to bring a § 1983 claim. Second, it asserts that regardless of whether
Luciano has standing, Plaintiffs have not alleged a cognizable § 1983 claim.
i. Luciano Morales’ § 1983 Claims
To have standing, a plaintiff “‘generally must assert his own legal rights and interests,
and cannot rest his claim to relief on the legal rights or interests of third parties.’” Valley Forge

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Christian Coll. v. Americans United for Separation of Church and State, 454 U.S. 464, 474
(1982) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). The few exceptions to this rule
involve situations where the plaintiff has a close relation with the third party and there is some
“hindrance to the third party’s ability to protect his or her own interests.” Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 629 (1991). Parents “generally have standing to assert the claims of
their minor children.” Altman v. Bedford Cent. School Dist., 245 F.3d 49, 70 (2d Cir. 2001). See
also Smith v. Org. of Foster Families for Equality and Reform, 431 U.S. 816, 841 n.44 (1977).
Plaintiffs in this case allege Steven Morales was a minor when the altercation with
Richardson took place, although the County disputes this point. (Pl.’s Opp’n to Mot. to Dismiss,
ECF No. 13, (“Pl.’s Opp’n”) at 4; Def.’s Reply in Support of Mot. to Dismiss, ECF No. 17,
(“Def.’s Reply”) at 5). Even in the light most favorable to Luciano Morales, he fails to state a
§ 1983 claim. Although he could assert a § 1983 claim on Steven’s behalf if Steven were a
minor child, Luciano does not appear to be doing so in the present case because Steven is
bringing his own claim. Instead, Luciano appears to seek redress for expenses he incurred for
Steven’s medical and dental care. (Compl. ¶ 7). Section 1983 does not provide a remedy for
such injuries. Even if such a claim were available, Luciano’s §1983 claim would also fail for the
same reasons, discussed below, that Steven Morales’ § 1983 claims fail. Any claims by Luciano
for § 1983 violations are therefore dismissed.
ii. Steven Morales’ § 1983 Claims
Although Steven Morales would have standing to bring a § 1983 claim, he has failed to
allege any such claim here, against either the County or Richardson.

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1. Section 1983 Claim Against County
To allege a § 1983 claim against a county, a plaintiff must allege that the action at issue
was one that “execute[s] a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by that body’s officers” or that represents informal governmental “custom.”
See Monell v. Dept. of Social Servs. of City of New York, 436 U.S. 658, 690–91 (1978).
Counties and other local governments cannot be held liable under § 1983 for injuries inflicted by
their employees or agents based on the theory of respondeat superior. Id. at 694; Austin v.
Paramount Parks, Inc., 195 F.3d 715, 727–28 (4th Cir. 1999); Powell v. Shopco Laurel Co., 678
F.2d 504, 506 (4th Cir. 1982). In this case, there is no assertion that the § 1983 claims are based
on any policy or custom of the County. The § 1983 claim brought by Steven Morales against the
County is therefore dismissed.
2. Section 1983 Claim against Richardson
Steven Morales also fails to allege a cognizable § 1983 claim against Richardson. This
issue is addressed now, even though it is beyond the scope of the present motion, because it
affects the jurisdiction of this court over the present action. See 28 U.S.C. § 1367(c)(3). Without
a cognizable § 1983 claim, there is no basis for federal jurisdiction in this case. Because the lack
of subject matter jurisdiction may be noticed by the district court sua sponte or by any party, the
court may enter a remand order sua sponte based on a lack of subject matter jurisdiction. See
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008). For the reasons
given below, such an order will be entered in this case.
To state a claim for a violation of § 1983, a plaintiff must allege a deprivation of “rights,
privileges, or immunities secured by the Constitution and laws” by one acting “under color of
state law.” See 42 U.S.C. § 1983; Pee Dee Health Care, 509 F.3d at 210. In this case, Steven

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Morales has failed to allege any facts showing that Richardson’s actions at the fraternity party
were taken under color of state law. The “under color of state law” requirement is synonymous
with state action. Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Merely
private conduct, no matter how discriminatory or wrongful, is not state action. Id. at 181. Acts
of police officers “in the ambit of their personal, private pursuits fall outside of 42 U.S.C.
§ 1983.” Revene v. Charles Cnty. Comm’rs, 882 F.2d 870, 872 (4th Cir. 1989). See also
Rossignol v. Voorhaar, 316 F.3d 516, 524–25 (4th Cir. 2003) (distinguishing between acts of
sheriff’s deputies based on whether they arose from public or private circumstances). The state
action requirement ensures § 1983 is maintained as “a shield that protects private citizens from
the excess of government, rather than a sword that they may use to impose liability upon one
another.” Id.
The Moraleses make only the bare assertion that “the complaint has alleged sufficient
facts . . . that [Richardson] was acting within the scope of his employment for the county.” (Pl.’s
Opp’n at 3). They provide no factual basis for this assertion. The § 1983 claims are based on
both the altercation at the fraternity party and Richardson’s later initiation of criminal charges
against Steven Morales. (Compl. ¶¶ 9–12). But there is no indication that either action was
anything but private conduct, unattributable to the state. See Philips, 572 F.3d at 181. None of
the facts alleged in the complaint bear on the question of whether Richardson’s conduct could
plausibly be said to have been undertaken under color of state law. The Moraleses’ statements
amount to a mere “formulaic recitation of the elements of a cause of action” and do not state a
§ 1983 claim plausible on its face. See Twombly, 550 U.S. at 555, 570. Steven Morales’ § 1983
claims are therefore dismissed.

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b. Remaining State Law Claims
In light of the dismissal of the two federal claims asserted by the Moraleses, the only
remaining claims are state law claims. A District Court generally has discretion to keep or
dismiss a case when it has dismissed all claims over which it has original jurisdiction. 28 U.S.C.
§ 1367(c)(3); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Among the factors that
inform this discretionary determination are convenience and fairness to the parties, the existence
of any underlying issues of federal policy, comity, and considerations of judicial economy. Id.
After reviewing these factors, I find that remanding the case to the Circuit Court for
Prince George’s County is the proper course of action. The remaining state claims present no
issues of federal policy, and all parties are residents of Maryland who appear to face no
inconvenience by having this case litigated in the state courts. Although this leaves undecided
the County’s motion to dismiss the state law claims against it, it should require very little if any
additional legal research to re-file this motion in state court.1 Accordingly, this case shall be
remanded to the Circuit Court for Prince George’s County, Maryland, for resolution of all
remaining issues.

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Although the determination of this matter is left to the state court, the claim under the Maryland Declaration of
Rights appears to suffer the same flaw as the § 1983 claim decided here. Just as the complaint failed to provide any
facts showing Richardson acted under color of state law for purposes of § 1983, it also fails to provide any facts
showing Richardson acted within the scope of his employment with the County, as is required for the County to be
liable for violations of the Maryland Declaration of Rights. See DiPino v. Davis, 729 A.2d 354, 371–72 (Md. 1999)
(providing standard for liability); Sawyer v. Humphries, 587 A.2d 467, 470 (Md. 1991) (providing test for whether
an employee acts within the scope of his employment). Such issues also affect the tort claims. To the extent the
County’s liability for Richardson’s allegedly tortious behavior rests on the theory that Richardson was acting as a
police officer, it appears the County would be immune. See Gray-Hopkins v. Prince George’s Cnty., 309 F.3d 224,
234 (4th Cir. 2002) (finding a County immune from respondeat superior liability for the intentional torts of an offduty police officer because law enforcement is a governmental function).

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IV.

CONCLUSION

For the reasons stated above, the County’s motion to dismiss the claims against it is
granted with respect to the § 1983 claim and the case is remanded to the Circuit Court for Prince
George’s County. A separate order is being entered herewith.

Date: January 30, 2012

/s/
J. Frederick Motz
United States District Judge

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