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
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