Bratton-Bey v. Straughan et al

Filing 23

MEMORANDUM OPINION (c/m to Plaintiff 1/31/14 sat). Signed by Chief Judge Deborah K. Chasanow on 1/31/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MOADIAH ELAM BRATTON-BEY
:
v.

:

Civil Action No. DKC 13-1964

:
JASON STRAUGHAN, et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this civil rights
case are four motions.

First, Defendants Jason Straughan and

Casey Diaz filed a motion to dismiss or, in the alternative,
summary judgment.

(ECF No. 14).

Second, Plaintiff Moadiah Elam

Bratton-Bey filed a motion to proceed on his state tort and
state

constitutional

Finally,
surreply

Defendants
(ECF

No.

claims

for

filed

a

20),

and

good

cause.

motion

to

Plaintiff

(ECF

strike

No.

17).

Plaintiff’s

subsequently

moved

leave to file his already submitted surreply (ECF No. 21).

for
The

issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, Plaintiff’s motion to file a surreply will be
granted

and

Defendants’

motion

to

strike

will

be

denied.

Defendants’ motion to dismiss will be granted and Plaintiff’s
motion to proceed will be denied as moot.

I.

Background
The following facts are either set forth in the complaint,

evidenced

by

documents

referenced

or

relied

upon

in

the

complaint, or are matters of public record of which the court
may take judicial notice.1
This case centers around a traffic stop.
Montgomery County police officers.

Defendants are

On June 23, 2009, Defendants

were working in plain clothes at a shopping center in Silver
Spring,

Maryland.

Defendants

observed

Plaintiff

enter

the

supermarket within the shopping center, take a shopping cart,
and walk into the store.

Plaintiff was in the supermarket for

approximately five minutes and left without any shopping bags.
Plaintiff returned to his car and sat in it for approximately
fifteen minutes, then changed his hat, and again walked into the
supermarket.

The officers stated that they observed Plaintiff

peruse the gift card selection for several minutes and then take
a

shopping

anything.
wallet

in

cart

through

several

aisles

but

never

purchased

Officer Diaz observed that Plaintiff was carrying his
his

identification.

hand
The

on

top

of

which

identification

was

some

appeared

to

sort

of

be

a

Pennsylvania driver’s license because it had a photograph on it
1

“[A] federal court may consider matters of public record
such as documents from prior . . . court proceedings in
conjunction with a Rule 12(b)(6) motion.” Walker v. Kelly, 589
F.3d 127, 139 (4th Cir. 2009).
2

and was in a blue, white, and yellow color scheme.

Plaintiff

returned to his car and left the shopping center.
Officer

Straughan

testified

that

Plaintiff commit a crime to that point.

he

had

not

observed

Officer Straughan asked

Officer Diaz – who was following Plaintiff - to observe for any
traffic violations and if any presented themselves, to stop the
vehicle.

Officer

Straughan

instructed

Officer

Diaz

in

this

manner “because we hadn’t witnessed any crimes, but based on his
activity, I believed that he may be involved in some sort of
criminal

activity,

whether

it

be

theft.”

(ECF No. 2-5, at 5-6).

shoplifting

or

credit

card

Officer Straughan testified

that he wanted a traffic violation in addition to their prior
observations to justify the stop: “We always use traffic to back
up

our

observations,

interpretation
observed

of

the

Plaintiff

because
[c]ourt.”

driving

it’s
(Id.

without

violation of Maryland’s driving laws.
he

was

in

fact

wearing

his

obviously
at

wearing

a

to

the

Officer

6).

up

Diaz

seatbelt,

a

Plaintiff contends that

seatbelt.

Because

observations, Officer Diaz performed a traffic stop.

of

his

Plaintiff

provided his proper name but admitted that he did not have his
driver’s

license

on

him.

Consequently,

Officer

Diaz

asked

Plaintiff to exit the vehicle and began questioning him about
his activities at the supermarket.

Plaintiff stated that he was

looking for a phone card but could not find one.
3

He could not

answer why he went into the supermarket a second time.
Diaz

asked

Plaintiff

for

Plaintiff responded “no.”

consent

to

(Id. at 14).

search

his

Officer
vehicle.

Plaintiff provided his

proper name when asked, which revealed that he was in possession
of a valid Maryland driver’s license.

Before learning that

Plaintiff had a valid license, Officer Straughan observed the
Pennsylvania driver’s license seen earlier in plain view on the
car’s

center

console.

Officer

Straughan

Plaintiff’s car and took the driver license.
Plaintiff’s
Straughan

photo

ran

a

but

the

check

of

name
the

was

“Malik

license

and

into

This license had
Jones.”
discovered

registered to a completely different individual.
then placed under arrest.

reached

Officer
it

was

Plaintiff was

Pursuant to a search incident to

arrest, the police recovered four Discover credit cards that
were not in Plaintiff’s name.

On June 24, 2009, Plaintiff was

charged by complaint with four counts of possessing counterfeit
credit cards, five counts of fraudulent assumption of another’s
identity,

and

one

count

of

displaying

a

fictitious

fraudulently altered government identification document.
posting bail, he was released from custody the same day.
No. 14-3, at 2-3).

or

After
(ECF

Later, on August 24, 2009, an Information

was filed in District Court and, on September 3, 2009, the case
was transferred to Circuit Court.

4

After the case proceeded to Circuit Court, Plaintiff moved
to

suppress

all

evidence

collected

from

the

traffic

stop,

arguing that the driver’s license was illegally seized from the
center console.

The Circuit Court for Maryland for Montgomery

County held a hearing on January 6, 2010 and denied Plaintiff’s
motion,
under

holding

the

that

doctrine

Defendants

of

plain

lawfully

view,

and

seized

the

following

license

the

lawful

seizure, Defendants had probable cause to arrest appellant.

On

November 9, 2010, Plaintiff was found guilty of one count of
possession of a falsely made credit card.
Plaintiff
Appeals,

appealed

contending

to

that

the

the

trial

Plaintiff’s motion to suppress.
February

23,

2012,

the

Maryland

Court

court

of
in

erred

Special
denying

By an unreported opinion filed

Court

of

Special

Plaintiff, reversing the trial court.

Appeals

found

for

The court found that two

of the three conditions that must be present for the plain view
doctrine to apply were absent: the incriminating nature of the
driver’s

license

was

not

“immediately

apparent,”

and

Officer

Straughan had no lawful right of access to the driver’s license.
As

to

the

officers

first

absent

observed

supermarket,
questioning.

a

condition,

Plaintiff

suspicion

“Nonetheless,

the

acting

which
even

was
after

court

found

suspiciously
not

that

the

in

the

dispelled

speaking

to

him,

upon
the

officers had no more than a suspicion that appellant was engaged
5

in criminal activity.
license

was

Straughan

not

seized

The incriminating nature of the driver’s

‘immediately
the

apparent’

license

from

until

the

car

after
and

Officer
saw

the

discrepancy between the picture and the name on the license.”
(ECF No. 14-2, at 11).
state

argued

that

As to the second absent condition, the

because

the

officers

could

have

arrested

Plaintiff for the combination of violating a traffic law along
with failure to furnish satisfactory evidence of identity, Md.
Code Ann., Transp. § 26-202(a)(2), the subsequent seizure of the
license

was

a

valid

search

incident

to

arrest.

The

court

rejected this argument, writing that “[t]o hold otherwise would
gut the protections afforded by the Fourth Amendment.”
12).

(Id. at

The court denied the state’s motion to reconsider on May

8, 2012.

Plaintiff filed a claim against Montgomery County,

which was acknowledged as received on June 27, 2012.

As a

result

state

of

the

Court

of

Special

Appeals’

ruling,

the

entered a nolle pros as to all counts on December 3, 2012.
On April 8, 2013, Plaintiff, proceeding pro se, filed a
complaint

in

the

complaint

brings

Straughan

alleging

Circuit
multiple

Court

for

claims

violations

of

Montgomery

against
numerous

County.

Officers

Diaz

provisions

of

The
and
the

United States Constitution, Maryland Declaration of Rights, and
state tort law stemming from the alleged false arrest, false
imprisonment, and malicious prosecution.
6

(ECF No. 2).

Officer

Straughan

was

served

on

June

served on June 12, 2013.
notice

of

in

2013,

and

(ECF No. 1).

this

court

on

Officer

Diaz

was

Defendants filed a
2013,

with

jurisdiction based on federal question, 28 U.S.C. § 1331.

(ECF

No. 1).

removal

6,

July

8,

On July 15, 2013, Defendants filed a motion to dismiss

or, in the alternative, for summary judgment.

(ECF No. 14).

In

accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), the clerk of court mailed a letter to Plaintiff on the
same day, notifying him that a dispositive motion had been filed
and that he was entitled to file opposition material or risk
entry of judgment against him.

(ECF No. 15).

Plaintiff opposed

Defendants’ motion on August 2, 2013 (ECF No. 16), to which
Defendants replied on August 8, 2013 (ECF No. 18).

Plaintiff

filed

No.

a

surreply

on

September

9,

2013.

(ECF

19).

Defendants moved to strike this surreply on September 11, 2013.
(ECF No. 20).

Plaintiff opposed Defendants’ motion and moved

for leave to file a surreply on October 7, 2013 (ECF No. 21),
and Defendants replied the next day (ECF No. 22).
II.

Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is

to test the sufficiency of the complaint.
Charlottesville,

464

F.3d

480,

483

(4th

Presley v. City of
Cir.

2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
7

showing that the pleader is entitled to relief.”
8(a)(2).

Fed.R.Civ.P.

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n.3 (2007).

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed 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)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events.

United Black Firefighters v. Hirst,

604 F.2d 844, 847 (4th Cir. 1979).

8

III. Analysis
A.

Plaintiff’s Surreply

Plaintiff filed a sixteen page surreply on September 9,
2013 (ECF No. 19), which Defendants then moved to strike (ECF
No.

20).2

“Unless

otherwise

ordered

by

the

Court,

surreply

memoranda are not permitted to be filed.” Local Rule 105.2(a).
Although a district court has discretion to allow a surreply,
surreplies

are

generally

disfavored.

Chubb

&

Son

v.

C.C.

Complete Servs., LLC, 919 F.Supp.2d 666, 679 (D.Md. 2013).

A

surreply may be permitted “when the moving party would be unable
to contest matters presented to the court for the first time in
the opposing party’s reply.”
600,

605

(D.Md.

2003)

Khoury v. Meserve, 268 F.Supp.2d

(citation

omitted).

By

contrast,

“[a]

motion for leave to file a surreply may be denied when the
matter addressed in the reply is not new.” Marshall v. Capital
View Mut. Homes, No. RWT–12–3109, 2013 WL 3353752, at *3 (D.Md.
July 2, 2013) (citation omitted).
Defendants’ motion will be denied and Plaintiff’s motion
will be granted.

In light of Plaintiff’s pro se status and the

fact that Defendant’s reply raised additional case law regarding
the

relation

claim.

back

doctrine

and

his

retaliation

prosecution

Plaintiff’s surreply will remain part of the record and

2

Plaintiff subsequently filed a motion for leave to file a
surreply. (ECF No. 21).
9

has

been

considered

in

connection

with

the

other

pending

motions.
B.

Motion to Dismiss: Timeliness of Plaintiff’s Claims

Turning

to

Defendants’

motion

to

dismiss,

their

first

argument is that Plaintiff’s claims alleging violations of the
First,

Fourth,

Constitution,

and

Fifth

Articles

17,

Amendments
24,

26

to

and

the
40

of

United
the

States
Maryland

Declaration of Rights, and state tort law in the form of the
alleged false seizure, arrest, and imprisonment is barred by the
statute of limitations.3
The statute of limitations is an affirmative defense that a
party typically must raise in a pleading under Rule 8(c) and is
not usually an appropriate ground for dismissal.

See Eniola v.

Leasecomm Corp., 214 F.Supp.2d 520, 525 (D.Md. 2002); Gray v.
Metts, 203 F.Supp.2d 426, 428 (D.Md. 2002).

However, dismissal

is proper “when the face of the complaint clearly reveals the
3

Articles 24, 26 and 40 are “co-extensive” with the Due
Process
Clause,
Fourth
Amendment,
and
First
Amendment,
respectively, and are construed in pari materia with those
federal protections.
Kensington Volunteer Fire Dep’t, Inc. v.
Montgomery Cnty., Md., 684 F.3d 462, 468 n.3 (4th Cir. 2012)
(Article 40); Richardson v. McGriff, 361 Md. 437, 452-53 (1999)
(Article 26); Doe v. Dep’t of Pub. Safety and Corr. Servs., 185
Md.App. 625, 636 (2009) (Article 24). Article 17 generally has
the same meaning as the Ex Post Facto clause in the federal
Constitution, but the Maryland Court of Appeals has read Article
17 to be broader in certain contexts.
Doe v. Dep’t of Pub.
Safety and Corr. Servs., 430 Md. 535, 548-49 (2013).
Defendants do not contend
malicious prosecution is untimely.
10

that

Plaintiff’s

claim

of

existence of a meritorious affirmative defense.”

Brooks v. City

of Winston–Salem, N.C., 85 F.3d 178, 181 (4th Cir. 1996); see 5B
Charles

A.

Wright

&

Arthur

R.

Miller,

Federal

Practice

&

Procedure § 1357, at 714 (3d ed. 2004) (“A complaint showing that
the governing statute of limitations has run on the plaintiff's
claim

for

relief

is

the

most

common

situation

in

which

the

affirmative defense appears on the face of the pleading and
provides a basis for a motion to dismiss under Rule 12(b)(6).”).
Plaintiff’s

federal

claims

are

brought

pursuant

to

42

U.S.C. § 1983, but the statute of limitations is identical.
When enacting 42 U.S.C. § 1983, Congress determined that gaps in
federal civil rights acts should be filled by state law, as long
as that law is not inconsistent with federal law.
v.

Grattan,

468

U.S.

42,

47–48

(1984).

Because

See Burnett
no

federal

statute of limitations governs, federal courts routinely measure
the timeliness of federal civil rights suits by state law.

See

id. at 49; Chardon v. Fumero Soto, 462 U.S. 650, 655–656 (1983);
Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 464 (1975).
The

tradition

of

borrowing

analogous

limitations

statutes

is

premised on a congressional decision to defer to “the State’s
judgment on the proper balance between the policies of repose
and the substantive polices of enforcement embodied in the state
cause of action.”

Wilson v. Garcia, 471 U.S. 261, 271 (1985).

Maryland's general three-year statute of limitations for civil
11

actions

is

most

applicable

Plaintiff’s claims.

to

the

case

at

bar

for

all

of

See Md. Code Ann., Cts. & Jud. Proc., § 5–

101.
Federal law, however, governs the question of when a cause
of action accrues under 42 U.S.C. § 1983.
549 U.S. 384, 387 (2007).

See Wallace v. Kato,

Under the general rubric, the running

of the statute of limitations begins when a plaintiff knows or
has reason to know of his injury.

Id.

A claim of unlawful

seizure accrues on the date of the alleged incident.

See Gray

v. State of Maryland, 228 F.Supp.2d 628, 635 (D.Md. 2002).

A

claim for false arrest accrues on the date of initial appearance
before a neutral magistrate.

See Wallace, 549 U.S. at 387.

A

claim for false imprisonment accrues once the victim is bound
over by a magistrate or arraigned on charges.

Id. at 389.

Maryland

treats

in

manner.

See, e.g., Prince George’s Cnty. v. Longtin, 419 Md.

each

450, 476 (2011).

of

these

causes

of

action

the

same

Therefore, all claims are operating on the

same calendar: claims stemming from the alleged illegal seizure
accrued on June 23, 2009, when Plaintiff’s driver’s license was
seized from his vehicle by Defendants; claims stemming from the
alleged false arrest and false imprisonment accrued on June 24,
2009,

the

day

Plaintiff

was

arraigned

in

state

court.

The

Complaint, however, was not filed until April 8, 2013, more than
three years after the date these causes of action accrued.
12

Plaintiff argues that these claims are timely because they
relate back to his “original pleading.”

Plaintiff contends that

he filed his original pleading in the Montgomery County Circuit
Court on January 5, 2012.

(ECF No. 16-1).

In that complaint,

he does not name Officers Diaz and Straughan as defendants, but
their names appear in the body of the complaint which describes
the alleged wrongful activity at issue in the instant case along
with

additional

allegations

the

judge

against

who

his

presided

criminal

over

the

defense

attorney

and

suppression

hearing.

This complaint was dismissed on February 13, 2012 with

no judgment on the merits, findings of fact, or conclusions of
law.

Plaintiff contends that the instant complaint – filed on

April 8, 2013 – is an amended complaint and all claims relate
back

to

his

original,

complaint

which

was

filed

timely

on

January 5, 2012.
This argument will be rejected.

Plaintiff is attempting to

utilize the relation back doctrine embodied in Rule 15(c).
an

amendment

satisfies

the

requirements

of

Rule

15(c),

If
the

amended pleading “relates back” to the original pleading for
statute of limitations purposes.

The plain language of Rule 15,

however, speaks of an “amendment to a pleading,” not an entirely
separate

cause

application

of

only

amended. . . .

action.

in

“The

instances

relation

where

an

back

original

doctrine
pleading

has
is

The amendment does not, however, relate back to
13

any

prior

question.”

proceedings
Rayo

v.

which
State

are
of

not

New

part

York,

of
882

the

action

F.Supp.

37,

in
40

(N.D.N.Y. 1995); Angles v. Dollar Tree Stores, Inc., 494 F.App’x
326, 330 n.8 (4th Cir. 2012) (“In cases involving the relation
back of an amended complaint to an ‘original pleading,’ under
Rule 15(c), courts have held that a complaint in one case may
not relate back to a complaint in another case to avoid the
statute of limitations.” (citing Morgan Distrib. Co., Inc. v.
Unidynamic Corp., 868 F.2d 992, 994 (8th Cir. 1989); Bailey v. N.
Ind. Pub. Serv. Co., 910 F.2d 406, 413 (7th Cir. 1990))); Carter
v. Tex. Dep’t of Health, 119 F.App’x 577, 581 (5th Cir. 2004)
(upholding district court’s holding that an “original pleading”
within the meaning of Rule 15(c) cannot be a pleading filed in a
different case); Jones v. Morton, 195 F.3d 153, 160-61 (3d Cir.
1999)

(denying

habeas

petitioner’s

relation

back

argument,

reasoning that “typically, when a complaint (or habeas petition)
is dismissed without prejudice, that complaint or petition is
treated as if it never existed,” and a subsequent action “cannot
be considered an amendment . . . but must be considered a new
action.”); Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.
1994) (“a separately filed claim, as opposed to an amendment or
a supplementary pleading, does not relate back to a previously
filed

claim.”);

Smith

v.

Husband,

376

F.Supp.2d

603,

614

(E.D.Va. 2005) (“[Rule 15(c)] does not contemplate a relation
14

back to a prior dismissed case.

Although Plaintiff’s cause of

action is the same, and the defendant is the same and was aware
of the allegations against him, the situation is different from
that

of

an

amended

complaint

complaint in the same action.
can

the

complaint

Court

find

back

to

any
a

relating

to

the

original

Plaintiff has cited no law, nor

precedent

prior

back

for

complaint

relating
in

a

a

subsequent

separate,

though

related, action that was dismissed because of the plaintiff’s
error.”); Lucchesi v. Experian Info. Solutions, Inc., 226 F.R.D.
172,

174-75

(S.D.N.Y.

2005)

(“The

Federal

Rules

of

Civil

Procedure contemplates the relation back of pleadings only in
the context of a single proceeding.”); 6A Charles Alan Wright,
et al., Federal Practice & Procedure § 1496 n.2 (3d ed. 2010).
All of the cases Plaintiff cites concern situations where a
party

sought

to

amend

a

pending

complaint.

See,

e.g.,

W.

Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir.
1989).

Plaintiff has failed to offer any reason to justify

tolling the applicable three-year statute of limitations.

See

Lekas v. United Airlines, Inc., 282 F.3d 296, 301 (4th Cir. 2002)
(“Equitable

tolling

applies

where

a

defendant,

by

active

deception, conceals a cause of action.”); Hecht v. Resolution
Trust Corp., 333 Md. 324, 333 (1994) (holding that Maryland does
not allow implied or equitable exceptions to the statute of
limitations,

absent

legislative
15

exception).

Consequently,

Plaintiff’s January 5, 2012 state court complaint cannot be used
as an “anchor” upon which many of the claims in his present
complaint – filed outside the limitations period – can latch
upon to situate themselves within the statute of limitations.
This bars his federal and state constitutional claims, and state
common law claims arising out of the alleged illegal seizure,
false arrest, and false imprisonment – whether against Officers
Diaz and Straughan or Montgomery County.4
C.

Malicious Prosecution

The only timely cause of action remaining is for malicious
prosecution.5

Giving the complaint a liberal reading, Plaintiff

appears to be bringing a claim under Maryland common law and the
Fourth Amendment seeking damages through § 1983.6

To prevail

4

Because all of Plaintiff’s claims arising out of the
alleged illegal seizure, false arrest, and false imprisonment
are
barred
by
Maryland’s
general
three-year
statute
of
limitations, it is unnecessary to consider whether his claims
are sufficiently pled and whether – in regards to those claims
sounding in state law – he provided the notice to Montgomery
County required by the Local Government Tort Claims Act, Md.
Code Ann., Cts. & Jud. Proc. § 5-304.
Therefore, Plaintiff’s
motion to proceed on his state tort and state constitutional
claims for good cause (ECF No. 17) will be denied as moot.
5

Defendants do not dispute that Plaintiff’s malicious
prosecution claim is timely.
A malicious prosecution cause of
action accrues when the case terminates in plaintiff’s favor.
Heck v. Humphrey, 512 U.S. 477, 489-90 (1994); Heron v. Strader,
361 Md. 258, 260-62 (2000). The state entered a nolle pros on
December 3, 2012.
Plaintiff’s complaint was filed April 8,
2013, well within the three-year statute of limitations.
16

under

either

prosecution

claim,
under

Plaintiff
Maryland

must

law.

demonstrate
Asuncion

a
v.

malicious
City

of

Gaithersburg, Md., 73 F.3d 356, 1996 WL 1842, at *2 (4th Cir.
1996)

(unpublished

table

decision)

(applying

Maryland

law

to

malicious prosecution claim raised under § 1983 (citing Goodwin
v. Metts, 885 F.2d 157, 160 n.1 (4th Cir. 1989))).

The elements

of a claim for malicious prosecution under Maryland law are “(1)
a criminal proceeding instituted or continued by the defendant
against

the

plaintiff;

(2)

without

probable

cause;

(3)

with

malice, or with a motive other than to bring the offender to
justice; and (4) termination of the proceedings in favor of the
plaintiff.”

Heron, 361 Md. at 264.

Defendants contend that

Plaintiff cannot satisfy the second and fourth elements and has
not

sufficiently

pled

the

third

element.7

Specifically,

Defendants point to Plaintiff’s conviction in Montgomery County

6

The United States Court of Appeals for the Fourth Circuit
has held that “there is no such thing as a ‘§ 1983 malicious
prosecution’ claim.” Lambert v. Williams, 223 F.3d 257, 262 (4th
Cir. 2000). It is properly understood as a claim founded on a
Fourth Amendment seizure that incorporates elements of the
analogous
common
law
tort
of
malicious
prosecution
–
specifically,
the
requirement
that
the
prior
proceeding
terminate favorably to the plaintiff.
Id. (citing Brooks, 85
F.3d at 183).
7

Although at least one of the officers filed a statement of
charges on the early morning of Plaintiff’s arrest, he was
released immediately after posting bail.
The later charging
document was filed by the State’s Attorney, and not by either of
the Defendants.
Defendants, for present purposes, do not
challenge the first element.
17

Circuit Court as establishing the existence of probable cause,
despite the fact that that conviction was later reversed by the
Court of Special Appeals, which held that the officers’ seizure
of Plaintiff’s driver’s license was not supported by probable
cause or the plain view doctrine.
“The conviction of the accused by a magistrate or trial
court although reversed by an appellate tribunal, conclusively
establishes
conviction
means.”

the
was

existence
obtained

Zablonsky

v.

by

of

probable

fraud,

Perkins,

cause,

perjury

230

Md.

or

365,

unless

other
368–69

the

corrupt
(1963)

(quoting Restatement (First) of Torts § 667 (1938)); see also
Quecedo v. DeVries,

22 Md.App. 58, 70 (1974) (conviction on

criminal charge is conclusive determination of the existence of
probable cause); Asuncion, 1996 WL 1842, at *2 (acknowledging
these principles of Maryland law).

Plaintiff was convicted and

makes no allegation that that conviction was obtained by fraud,
perjury or other corrupt means.

He argues instead that the

Restatement principles relied upon by the Court of Appeals in
Zablonsky are no longer good law, having been overruled by the
Supreme Court of the United States in Heck v. Humphrey, 512 U.S.
477 (1994).

Plaintiff mischaracterizes Heck, which concerned

when a Section 1983 plaintiff could bring a claim for damages
for

allegedly

unconstitutional

conviction

or

imprisonment.

Concerned with situations where a civil tort action is used as a
18

vehicle to challenge the validity of an outstanding criminal
judgment, the Court held that in order to proceed on a Section
1983 claim, the plaintiff must prove that the conviction:
has been reversed on direct appeal, expunged
by executive order, declared invalid by a
state tribunal authorized to make such
determination, or called into question by a
federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254.
A claim for
damages bearing that relationship to a
conviction . . . that has not been so
invalidated is not cognizable under § 1983.
Id. at 487 (emphasis in original).

Heck concerned when Section

1983 claims were cognizable, and it merely used the common law
tort of malicious prosecution as an analogy; it did not alter
the substantive elements a plaintiff needs to demonstrate to
succeed on a malicious prosecution claim, whether brought under
state law or the Fourth Amendment via Section 1983.

Plaintiff

points to Justice Souter’s concurrence in Heck, where, according
to Plaintiff, he discusses the Restatement rule and notes that
the Court disclaims the “untenable” position that a conviction
“wipes

out

a

unconstitutional

person’s
conviction

§

1983
or

claim

for

post-conviction

damages

for

confinement.”

(ECF No. 16, at 7 (quoting Heck, 512 U.S. at 496 (Souter, J.,
concurring))).
majority

This was, of course, a concurring, and not the

opinion.

Moreover,

Plaintiff’s

argument

mischaracterizes the thrust of a criminal conviction in terms of
the probable cause element.

A conviction does not “wipe out” an
19

action for damages under § 1983, but instead presumes probable
cause existed for the prosecution, a presumption that can be
rebutted by evidence that the conviction was obtained through
fraud,

perjury,

conviction
proof

of

or

creates
probable

other
a

corrupt

rebuttable

cause.

means.

The

presumption,

While

the

United

fact

not
States

of

a

conclusive
Court

of

Appeals for the Third Circuit came to the contrary conclusion,
holding that a conviction that has been subsequently overturned
does not raise a presumption of probable cause in a Section 1983
action, Montgomery v. De Simone, PTL, 159 F.3d 120, 125 (3d Cir.
1998), numerous courts in this district have applied Maryland’s
common law to these situations, as had the one Fourth Circuit
decision

to

consider

the

issue.

See

Catlett

v.

Cnty.

of

Worcester, Civ. Action No. PJM-11-162, 2011 WL 6002044, at *3
(Nov. 29, 2011); Mowatt v. Chick, Civ. Action No. DKC-09-3377,
2011

WL

2711167,

at

*4

(D.Md.

July

8,

2011);

Brown-Rice

v.

Maryland, Civ. No. CCB-09-219, 2009 WL 1690516, at *1 (D.Md.
June 16, 2009); Asuncion, 1996 WL 1842, at *2.
not

demonstrated

practice.

a

compelling

reason

to

Plaintiff has

depart

from

this

Accordingly, he fails to plead a claim for malicious

prosecution.

20

D.
Leave to Amend Complaint to Add Claim of Retaliatory
Prosecution
Finally, in Plaintiff’s opposition brief he requests leave
to

amend

his

complaint

to

add

the

claim

of

retaliatory

prosecution under the First Amendment and/or Article 40 of the
Maryland

Declaration

of

Rights.

(ECF

No.

16,

at

5).

The

Federal Rules of Civil Procedure provide that a party may amend
his complaint as a matter of course within 21 days of serving it
or within 21 days of a responsive pleading or Rule 12(b) motion.
Fed.R.Civ.P. 15(a)(1).

Because Plaintiff acted within 21 days

of Defendants filing their Rule 12(b)(6) motion, and had not
previously amended his complaint in this court, he is free to
amend

without

15(a)(1).

receiving

leave

of

the

court.

Fed.R.Civ.P.

Plaintiff’s request will be considered an amendment

to his complaint to include a claim of retaliatory prosecution.
The

First

retaliating

against

prosecutions,
speech.
Fourth

Amendment

for

an

prohibits

government

individual,

exercising

his

or

officials

including
her

via

protected

criminal
right

Hartman v. Moore, 547 U.S. 250, 256 (2006).
Circuit,

a

plaintiff

seeking

to

recover

on

from

of

In the
a

First

Amendment retaliation claim must prove the following elements:
(1) he engaged in protected First Amendment activity; (2) the
defendants took some action that adversely affected his First
Amendment

rights;

and

(3)

there

21

was

a

causal

relationship

between

his

protected

activity

and

the

defendants’

conduct.

Constantine v. Rectors and Visitors of George Mason Univ., 411
F.3d 474, 499 (4th Cir. 2005).
This claim is untimely as the claim accrued in June 2009,
outside the general three-year statute of limitations.

Mata v.

Anderson, 635 F.3d 1250 (10th Cir. 2011), is very similar.

In

Mata, criminal charges were brought against the plaintiff by the
local

police

chief

after

plaintiff

stood

outside

the

police

department holding signs calling the police chief “dirty” and a
“liar.”

Id. at 1252.

The plaintiff was never arrested; he

first learned of the actions against him when he received the
criminal complaint.

The plaintiff was initially convicted of

criminal charges, but that conviction was reversed.
brought

a

retaliatory

prosecution

claim

Plaintiff

against

the

police

officer, but the United States Court of Appeals for the Tenth
Circuit

ruled

that

the

claim

was

untimely.

Drawing

on

its

accrual doctrine in other First Amendment retaliation claims,
the court held that plaintiff’s retaliatory prosecution claim
accrued

when

he

knew

or

had

reason

to

know

of

the

alleged

retaliatory prosecution; thus, when he learned that the criminal
complaint had been filed against him.

Id. at 1253.

The Tenth

Circuit rejected plaintiff’s analogy to malicious prosecution
claims,

which

do

not

accrue

until

the

alleged

malicious

prosecution terminates in favor of the plaintiff, observing that
22

unlike

a

malicious

retaliatory

prosecution

prosecution

claim

claim,

does

not

termination of the underlying action.

a

First

require

Amendment

a

favorable

Id. at 1253; see also

Loumiet v. United States, --- F.Supp.2d ---, 2013 WL 4852304, at
*6 (D.D.C. Sept. 12, 2013) (collecting cases).

While the Fourth

Circuit has not opined on when a retaliatory prosecution claim
accrues, it has held that “[a] civil rights claim accrues when
the plaintiff knows or has reason to know of the injury which is
the basis of the action.”
655

F.3d

omitted).

342,

(4th

348

A Soc’y Without A Name v. Virginia,
Cir.

2011)

(internal

quotation

marks

Consequently, Mata’s distinction between retaliatory

prosecution and malicious prosecution and their respective times
of accrual is persuasive.
As applied to this case, it is clear that Plaintiff’s newly
added

retaliatory

prosecution

claim

is

untimely.

Plaintiff

claims that he engaged in protected First Amendment activity by
answering “no” to Defendants’ request that they be allowed to
search his car.
adversely

affected

specifically
vehicle.

As a consequence, Defendants took action that

his

Plaintiff’s

right

to

refuse

Fourth
a

Amendment

request

to

rights,

search

his

This ultimately led to the allegedly illegal seizure,

arrest, and subsequent prosecution.

Even assuming Plaintiff has

pled a claim for retaliation for exercising his First Amendment
rights – as opposed to merely repackaging his Fourth Amendment
23

illegal seizure claim – it is barred by the general three-year
statute of limitations, as the injury flowing from the alleged
retaliation was his arrest on June 23, 2009.
IV.

Conclusion
For the foregoing reasons, the court will grant Plaintiff’s

motion to file a surreply and Defendants’ motion to dismiss.
separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

24

A