Frost v. Gansler et al

Filing 44

MEMORANDUM OPINION (c/m to Plaintiff 8/6/14 sat). Signed by Chief Judge Deborah K. Chasanow on 8/6/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JAMES A. FROST
:
v.

:

Civil Action No. DKC 13-2107

:
DOUGLAS F. GANSLER, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in is the motion
to dismiss filed by Defendant Douglas F. Gansler.

(ECF No. 19).1

Also pending is the motion for partial summary judgment filed by
Plaintiff James A. Frost.

(ECF No. 33).

The issues have been

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

Local

Rule

105.6.

For

the

following

reasons,

Defendant’s motion will be granted and Plaintiff’s motion will
be denied.
I.

Background
The following facts are set forth in the amended complaint.

On August 26, 2008, a hearing was held pursuant to Md. Code
Ann.,

Health-Gen.

§

10-632,

to

determine

whether

Plaintiff

should be admitted involuntarily to a medical facility.

The

Administrative Law Judge presiding over the hearing decided to
1

Plaintiff’s original complaint also named as Defendants H.
Scott Curtis, Thomas E. Dewberry, and Wayne A. Brooks.
On
September 23, 2013, Plaintiff voluntarily dismissed these
Defendants. (ECF No. 24).

approve

commitment

and

completed

an

Office

of

Administrative

Hearings (“OAH”) Form 1053 to that effect.
In

the

fall

of

2009,

Plaintiff

applied

to

the

OAH

to

inspect the August 26, 2008 case file pursuant to the Maryland
Public Information Act, Md. Code Ann., State Gov’t § 10-611
(“PIA”).

OAH responded that it did not have the case file.

On July 23, 2010, Plaintiff filed a lawsuit in the Circuit
Court for Baltimore County concerning OAH’s denial.

Defendant

Attorney General Gansler is one of the attorneys of record for
the state in that litigation.
Plaintiff’s Form 1053.
alleges

violates

PIA

The state asked OAH for a copy of

OAH provided a copy, which Plaintiff
Section

10-617(b),

the

prohibition

on

disseminating public records containing an individual’s medical
information.
dismiss

and

On September 23, 2010, the state filed a motion to
attached

a

copy

of

Plaintiff’s

Form

1053

as

an

exhibit.2
On August 7, 2013, Plaintiff, proceeding pro se, filed an
amended complaint in this court, asserting two claims.

First,

he claims that Defendant’s action violates Md. Code Ann., State
Gov’t § 10-626, which makes a person who willfully and knowingly
permits inspection or use of a public record in violation of the
PIA liable to the individual for actual damages.

2

Second, he

As of the date of Plaintiff’s amended complaint, the case
was still open. No updates have been provided.
2

claims that Defendant’s action constitutes the common law tort
of invading Plaintiff’s privacy through unreasonable publicity
about an individual’s private life.3

Plaintiff alleges that

Defendant took these actions because he harbors personal animus
toward Plaintiff because of Plaintiff’s work campaigning against
Defendant and in support of Defendant’s competitor in the 2006
Democratic
won.

primary

for

State

Attorney

General

that

Defendant

Defendant’s actions have severely and irreparably damaged

Plaintiff’s standing in the community and legal profession and,
because the actions were done with actual malice, Defendant is
liable

for

punitive

damages.

Plaintiff

demands

compensatory

damages in the amount of $250,000 and punitive damages in the
amount of $10,000,000.4

On September 12, 2013, Defendant filed a

motion to dismiss for failure to state a claim.

(ECF No. 19).

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
3

On September 23,
count from “invading the
false light before the
(ECF No. 26). Defendant
motion will be granted
amended.

2013, Plaintiff moved to change this
plaintiff’s privacy by placing him in a
public,” to the present formulation.
consented to this change. Plaintiff’s
and the amended complaint will be so

4

Plaintiff cites diversity of citizenship for this court’s
jurisdiction.
28 U.S.C. § 1332.
At the time of filing,
Plaintiff provided an address in Washington, D.C. He has since
indicated that he resides in West Virginia.
Defendant is a
resident of Maryland.
The amount in controversy far exceeds
$75,000.
3

and that he was entitled to file opposition material or risk
entry of judgment against him.

(ECF No. 20).

Plaintiff opposed

on September 24, 2013 (ECF No. 27), and Defendant replied on
October 8, 2013 (ECF No. 32).
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
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
4

(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).
Finally,
pleadings

“to

while

courts

generally

less

stringent

standards

should
than

hold

formal

pro

se

pleadings

drafted by lawyers,” they may nevertheless dismiss complaints
that

lack

a

cognizable

legal

theory

or

that

fail

sufficient facts under a cognizable legal theory.

to

allege

Haines v.

Kerner, 404 U.S. 519, 520 (1972); Turner v. Kight, 192 F.Supp.2d
391, 398 (D.Md. 2002), aff’d, 121 F.App’x. 9 (4th Cir. 2005).
III. Analysis
Defendant makes three arguments in support of his motion to
dismiss: (1) he is immune from suit and liability under the
Maryland

Tort

Claims

Act

(“MTCA”);

(2)

he

is

entitled

to

absolute immunity from suit for statements made in the course of
judicial proceedings; and (3) Plaintiff has failed to state a
claim.

It will only be necessary to address the first argument.

Attorney General Gansler contends that he is entitled to
statutory immunity because his alleged actions were within the
scope of his employment and were not alleged to have been done
5

with malice.

The MTCA is codified in several sections of the

Maryland Code.

Section 12-104 of the State Government Article,

titled “Waiver of Immunity,” provides as follows:
(a) In general. –
(1) Subject
to
the
exclusions
and
limitations in this subtitle and
notwithstanding any other provision
of law, the immunity of the State
and of its units is waived as to a
tort action, in a court of the
State, to the extent provided under
paragraph (2) of this subsection.
(2) The liability of the State and its
units may not exceed $200,000 to a
single claimant for injuries arising
from
a
single
incident
or
occurrence.
(b) Exclusions and limitations. – Immunity
is not waived under this section as
described under § 5-522(a) of the Courts
and Judicial Proceedings Article.
Md. Code Ann., State Gov’t § 12-104(a)-(b).

Section 5-522 of

the Courts and Judicial Proceedings Article states, in relevant
part, that:
(a) Tort liability – Exclusions from waiver
under § 12-104 of the State Government
Article. – Immunity of the State is not
waived
under
§ 12-104
of
the
State
Government Article for:
. . .
(4) Any tortious act or
State personnel that:

6

omission

of

(i) Is not within the scope of the
public
duties
of
the
State
personnel; or
(ii) Is made with
negligence;

malice

or

gross

. . .
(b) In general. – State personnel, as
defined in § 12-101 of the State Government
Article, are immune from suit in courts of
the State and from liability in tort for a
tortious act or omission that is within the
scope of the public duties of the State
personnel and is made without malice or
gross negligence, and for which the State or
its units have waived immunity under Title
12, Subtitle 1 of the State Government
Article, even if the damages exceed the
limits of that waiver.
Md. Code Ann., Courts & Jud. Proc. § 5-522(a)-(b).

The Court of

Appeals of Maryland has observed that, when read in tandem,
these provisions establish that the tort “liability of the State
and

[the

tort]

liability

mutually exclusive.
immune;

if

the

of

individual

State

personnel

are

If the State is liable, the individual is

individual

is

liable,

the

State

Newell v. Runnels, 407 Md. 578, 635 (2009).

is

immune.”

Where a complaint

sufficiently alleges either that an individual State employee
was

acting

with

malice

or

gross

negligence,

or

that

he

was

acting outside the scope of his public duties, dismissal based

7

on statutory immunity grounds is not warranted.

See Barbre v.

Pope, 402 Md. 157, 181-82 (2007).5
The Maryland Court of Appeals has held that the phrase
“scope

of

the

public

duties,”

as

used

in

the

MTCA,

is

“synonymous” with the “scope of employment” analysis used for
common law respondeat superior liability.
322 Md. 247, 254 (1991).

Sawyer v. Humphries,

Pursuant to that general test, the

standard is whether the employee’s allegedly tortious acts “were
in furtherance of the employer’s business” and “were authorized
by

the

omitted).

employer.”

Id.

at

255

(internal

quotation

marks

Although “there are few, if any, absolutes” in the

scope of employment analysis, relevant factors include whether
the “employee’s actions are personal”; whether they “represent a
departure

from

the

purpose

of

furthering

the

employer’s

business”; and whether “the employee is acting to protect his
own interests.”

Id.; see also LePore v. Gulf Oil Corp., 237 Md.

591, 596-98 (1965).
Plaintiff alleges that Defendant filed Form 1053 as part of
the state’s motion to dismiss Plaintiff’s state court challenge
to OAH’s denial of his records request.
5

(ECF No. 6 ¶ 53).

In

Section 10-626 of the PIA specifically includes within the
scope of liability actions taken by individuals, “including an
officer or employee of a governmental unit.” The MTCA acts as a
limitation on this civil action, attaching potential liability
only where the state employee’s allegedly violative acts are
shown not to be in furtherance of the employer’s business or
taken with actual malice.
8

his opposition, Plaintiff argues that Defendant had an ethical
duty to advise OAH officials to comply with the requirements of
the PIA and not do anything he knew or should have known was
illegal

or

criminal.

But

even

assuming

that

the

actions

violated the PIA, “[a]n employee, otherwise acting in the scope
of his or her employment, does not lose that status because the
employee’s tortious act violated a motor vehicle statute or any
other statute.”

Larsen v. Chinwuba, 377 Md. 92, 109 (2003).

Defendant’s filing was incident to his performance of his duties
as

attorney-of-record

Plaintiff.

for

the

OAH

in

its

litigation

with

Plaintiff has not pled facts sufficient to raise an

inference that Defendant was acting outside the scope of his
employment.
For

purposes

of

the

MTCA,

“malice”

refers

to

“actual

malice,” defined as “conduct ‘characterized by evil or wrongful
motive,

intent

to

injure,

ill-will or fraud.’”

knowing

and

deliberate

wrongdoing,

Lee v. Cline, 384 Md. 245, 268 (2004)

(quoting Shoemaker v. Smith, 353 Md. 143, 163 (1999)); see also
Thacker v. City of Hyattsville,

135 Md.App. 268, 300 (2000)

(actual malice can be established by proving that an employee
“intentionally performed an act without legal justification or
excuse, but with an evil or rancorous motive influenced by hate,
the

purpose

plaintiff”).

being

to

deliberately

and

willfully

injure

the

The Maryland Court of Appeals has observed that
9

malice is an “amorphous concept[]” that has “been used in many
different contexts.”
marks omitted).

Newell, 407 Md. at 636 (internal quotation

Malice need not be proven by direct evidence as

it is “seldom admitted” and most commonly “inferred from acts
and circumstantial evidence.”

Id. at 637.

At the motion to dismiss stage, “the mere assertion that an
act ‘was done maliciously, or without just cause, or illegally,
. . . or for improper motive’ is not sufficient.”
Brown,

101

Kupferman,

Md.App.
58

191,

Md.App.

immunity,

“the

precision

those

510,

plaintiff
facts

216
526

must

which

(1994)

(quoting

(1984)).
allege

make

the

Manders v.

with
act

Elliott

Rather,
some

to

v.

defeat

clarity

malicious.”

and
Id.

(internal quotation marks omitted); cf. Ostrzenski v. Seigel, 3
F.Supp.2d 648, 653 (D.Md. 1998) (“It is enough . . . to allege
that a defendant harbored hostility towards the plaintiff and
caused the plaintiff harm.”) (emphases added).
Plaintiff’s

Amended

Complaint

conclusorily

alleges

that

Defendant has a “marked personal animus” toward him, and the
acts were taken with “actual malice.”

(ECF No. 6 ¶¶ 62, 64).

Such meager allegations are plainly insufficient.

Attached to

his original complaint, however, is a letter written to Maryland
State Treasurer Nancy K. Kopp, where he outlines his view that
these

acts

efforts

to

were
get

taken

out

Defendant’s

of

spite

rival
10

because

chosen

as

of

Plaintiff’s

the

Democratic

nominee for State Attorney General instead of Defendant.

Even

if viewed as part of the complaint, these additional allegations
remain insufficient.
One theme from the case law is that actual malice can be
inferred from factual allegations or evidence indicating that
the defendant was motivated by personal animosity toward the
plaintiff or by a specific desire to harm the plaintiff.
example,

in

Newell

v.

Runnels,

407

Md.

578

(2009),

For

several

former employees of the State’s Attorney’s Office sued the newly
elected
shortly

State’s
after

Attorney

he

took

for

terminating

office.

With

their

respect

to

employment
whether

the

State’s Attorney was entitled to immunity under the MTCA, the
court held that a trier of fact could conclude that the State’s
Attorney

acted

maliciously

because

the

evidence

“permits

the

drawing of a permissible inference that Newell’s dismissal of
Plaintiffs was a targeted act of retribution” for campaigning on
behalf of another candidate for the State’s Attorney position.
Id.

at

638.

Of

particular

relevance,

the

plaintiffs

had

produced evidence showing that the defendant “was agitated by
their support” for his rival during the election season and that
the

defendant

had

made

conflicting

statements

their terminations were performance-based.

about

whether

Id.

Similarly, in Ostrzenski v. Seigel, 3 F.Supp.2d at 650, a
gynecological surgeon brought suit against another physician who
11

issued a negative report about the plaintiff as part of a peer
review

process

initiated

Quality Assurance.

by

the

Maryland

Board

of

Physician

The complaint alleged that the defendant was

motivated to write a negative review because the plaintiff had
agreed to testify in a patient’s malpractice action against the
defendant.

Id. at 652-53.

The complaint also asserted that the

defendant harbored anti-Polish and anti-Catholic animus toward
the plaintiff, as evidenced by his comments about a picture of
the plaintiff with the Pope.
that

the

defendant

had

an

Finally, the complaint asserted
economic

incentive

to

issue

an

unflattering review because the plaintiff posed a competitive
threat

to

all

physicians

specialized techniques.

who

were

not

trained

in

certain

Based on these factual assertions, the

court concluded that the complaint sufficiently alleged malice,
“albeit only barely so,” such that

dismissal was not required

based on a Maryland statute immunizing members of the Board from
civil liability.
While

Id. at 653.

Plaintiff

alleges

that

Defendant

harbors

personal

animus toward him, his allegations do not rise to the level of
plausibility
Plaintiff’s

found
letter

sufficient
merely

in

alleges

Newell
that

he

and

Ostrzenski.

worked

to

get

Defendant’s rival elected and that Defendant, as the attorneyof-record, filed this document as part of his defense in the
litigation.

As it stands, it is too much of a leap to connect
12

Plaintiff’s actions to Defendant’s actions such that Defendant
harbored

personal

Plaintiff
malice

has

and

animus

not

claims

Defendant

barred

with

MTCA.

actual

It

In

is

the

acted

necessary to reach the remainder of Defendant’s arguments.
Defendant

by

Consequently,

not

because

are

that

Plaintiff.

is

addition,

his

alleged

against

immune

under

the

MTCA,

Plaintiff’s motion for summary judgment will be denied.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion to dismiss

will

be

granted

and

Plaintiff’s

judgment will be denied.

motion

for

partial

summary

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

13