Mathis v. McDonough et al
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 8/7/14. (ca2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JERRY J. MATHIS,
Civil Action No. ELH-13-2597
JOHN P. MCDONOUGH, et al.,
Plaintiff Jerry J. Mathis, who is self-represented, filed suit, individually and as a
representative of the organization Citizens for Change, against various Maryland public officials
and employees.1 In particular, plaintiff raises claims pursuant to 42 U.S.C. § 1983 et seq. against
several defendants in their individual and official capacities: Secretary of State John P.
McDonough; Assistant Attorney General Kathleen E. Wherthey; Attorney General Douglas F.
Gansler; State Senator C. Anthony Muse; Deputy L. Berryman of the Prince George’s County
Sheriff’s Department; Jared DeMarinis, a Director of the Maryland Board of Elections; and
Prince George’s County Circuit Court Judge Larnzell Martin, Jr. See ECF 1 (“Complaint”).2
Plaintiff’s suit arises from his candidacy for the County Council in Prince George’s County,
Maryland, in the 2010 Democratic primary election, held on September 14, 2010. His central
Defendants have not challenged plaintiff’s right, as a self-represented litigant, to bring
claims “as a representative of” an organization, Citizens for Change. Given the disposition here,
it is unnecessary to address whether plaintiff may bring claims “as a representative of” Citizens
This case was originally assigned to Judge Alexander Williams. It was subsequently
reassigned to me upon Judge Williams’s retirement.
allegation is that defendants violated his constitutional rights by interfering during the primary
campaign with the distribution of a particular sample ballot (the “Sample Ballot”).
The Complaint contains four counts: (1) Count I, brought pursuant to 42 U.S.C. § 1983,
alleging “Deprivation of Constitutional Rights under Color of State Law,” including plaintiff’s
rights under the First, Fourth, Sixth, and Fourteenth Amendments of the U.S. Constitution, and
which cites alleged acts of defendants McDonough, Wherthey, Gansler, Muse, Berryman, and
Judge Martin; (2) Count II, brought pursuant to “42 U.S.C. § 1983-1996,” alleging “Civil
Conspiracy to Interfere with Constitutional Rights under color of state law in violation of
Plaintiff’s rights [under the] 1st, 6th and 14th Amendment,” and which cites acts of defendant
Gansler; (3) Count III, brought pursuant to 42 U.S.C. § 1983, alleging “Selective Treatment
under Color of State Law and Equal Protection of the Law, 14th Amendment to the United States
Constitution guaranteeing Equal Protection of the Law,” and which cites acts of defendants
DeMarinis and Gansler; and (4) Count IV, brought pursuant to 42 U.S.C. § 1983, alleging
“Violation of 14th Amendment to the United States Constitution guaranteeing DUE PROCESS
OF LAW,” based upon a “Lack of Jurisdiction to Prosecute – Administrative and Investigative
Misconduct,” and which cites acts of defendant Gansler.3
In an Order dated September 11, 2013 (ECF 2), Judge Williams dismissed Judge Martin
as a defendant, sua sponte, on the ground that Judge Martin was entitled to judicial immunity in
connection with “actions taken in his capacity as a state court judge.” See id. at 1-2 & n.1 (citing
Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). In a Memorandum Opinion of October 11,
Defendants assert, without any citation, that plaintiff “seeks $25 million in
compensatory and punitive damages against the Defendants acting in their individual and official
capacities.” ECF 9-2 at 1-2; see also ECF 12 at 1. However, it does not appear that plaintiff’s
Complaint contains such a request.
2013, Judge Williams denied plaintiff’s motion seeking reconsideration of Judge Martin’s
dismissal. See ECF 7 at 4-10; Mathis v. Martin, 2013 WL 5609134, at *3-6 (D. Md. Oct. 11,
Now pending is defendants’ Motion to Dismiss the Complaint (ECF 9), to which they
have attached a supporting memorandum (ECF 9-2, “Memorandum” or “Mem.”) (collectively,
the “Motion”). Plaintiff opposes the Motion (ECF 11, “Opposition” or “Opp.”), and defendants
have replied (ECF 12, “Reply”). With leave of court, plaintiff also filed a surreply (ECF 15,
“Surreply”). No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the
reasons that follow, I will grant the Motion.
In 2010, plaintiff sought the Democratic nomination for a seat on the Prince George’s
County Council for District 8. Complaint ¶¶ 11, 13; id. Exh. D (ECF 1-4). Plaintiff was
defeated in the Democratic primary election by Obie Patterson. Complaint ¶ 13.
During the primary campaign, plaintiff, in his capacity “as a representative of the
community group, Citizens for Change,” “participated in the production and distribution” of the
Sample Ballot, a copy of which is attached to the Complaint. See id. Exh. D; see also Complaint
This Background is drawn largely from the Complaint. The court “‘must accept as true
all of the factual allegations contained in the complaint,’” and must “‘draw all reasonable
inferences in favor of the plaintiff.’” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011) (citations omitted). Under the applicable Rule 12(b)(6) standard,
discussed infra, a court “may properly consider documents attached to a complaint or motion to
dismiss ‘so long as they are integral to the complaint and authentic.’” Anand v. Ocwen Loan
Servicing, LLC, --- F.3d ----, 2014 WL 2535405, at *2 (4th Cir. June 6, 2014) (quoting Philips v.
Pitt County Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). Plaintiff attached sixteen
exhibits to the Complaint, labeled Exhibits A through P (ECF 1-1 through 1-16). Additionally,
he attached nine exhibits to the Opposition, labeled Exhibits A through I (ECF 11-1 through 119). And, plaintiff attached eight exhibits to the Surreply, labeled Exhibits A through H (ECF 151 through ECF 15-8).
¶ 31. The Sample Ballot purported to be the “Official Democratic Ballot” for the 26th District,
Prince George’s County, and states, in small type, “By Authority, Citizens for Change, Charles
Summers, Treasurer.” See Complaint Exh. D. In the Complaint, plaintiff asserts that he “has
been an outspoken critic of slate and sample ballot tactics used by the Democratic political
machine as a tool to mislead voters and ensure their odds of winning elections. Plaintiff’s
production of the sample ballot with alternative candidates for office was purposely designed to
change the dynamics of how the Democratic machine intentionally misled voters for the
machine’s preferred candidates.” Complaint ¶ 11.
Some allegations pertain to an incident that occurred at the Oxon Hill library in Prince
George’s County, where early voting was taking place for the primary election. One news article
characterized the incident as a “heated confrontation,” involving several candidates and their
supporters. See Complaint ¶¶ 54-66; id. Exh. E. This portion of plaintiff’s allegations focuses
on the conduct of two defendants:
Senator Muse and Deputy Berryman.
Complaint alleges that the incident occurred “[o]n or about . . . September 13, 2010,” see
Complaint ¶ 62, apparently the incident took place on September 6, 2010.5
With respect to the Oxon Hill library incident, Senator Muse is alleged to have “ordered
Plaintiff and his supporters to cease distribution of Plaintiff’s sample ballots under threat of law
In the Opposition, plaintiff states: “After further review and investigation, Plaintiff
calculates the date [of the Oxon Hill libarary incident] specifically as being Monday, September
6, 2010 at approximately 3:00 pm.” Opp. at 15. A news item, attached to the Complaint as
Exhibit E, and which apparently describes the incident at the Oxon Hill library, is dated
September 9, 2010. See Joshua Garner, “Muse investigates ‘fake’ campaign ballots,”
Gazette.Net, Sept. 9, 2010, available at http://ww2.gazette.net/stories/09092010/largnew
150123_32547.php (last accessed Aug. 7, 2014). And, in the Reply, defendants do not dispute
plaintiff’s assertion that the incident at the Oxon Hill library preceded Judge Martin’s issuance of
a temporary restraining order on September 7, 2010. In light of those considerations, I will treat
that incident as having occurred on September 6, 2010.
enforcement intervention.” Complaint ¶ 55. Senator Muse, purportedly acting “under color of
law,” also “summoned the Prince George’s County Police Department and Sheriff’s Department
to harass Plaintiff and his supporters,” and ordered Sheriff’s deputies “to confiscate the Sample
Ballot and intimidate Plaintiff’s supporters under threat of arrest to cease and desist distribution
of Plaintiff’s sample ballot.” Id. ¶¶ 56-57. Moreover, “[u]nder the direction of” Senator Muse,
the Sheriff’s deputies “intimidated Plaintiff and his supporters by confiscating their literature and
their ID[s], while questioning their citizenship” and threatening them “with arrest if they refused
to stop distributing Plaintiff’s sample ballot.” Id. ¶ 58 (identifying supporters as “primarily of
According to plaintiff, Senator Muse’s actions “violated Plaintiff’s
constitutional rights guaranteed by the 1st, 4th, 6th, and 14th Amendments to the United States
Constitution.” Id. ¶ 59.
As for Deputy Sheriff Berryman, plaintiff alleges that she violated those same
constitutional rights in connection with the incident of September 6, 2010. See Complaint ¶¶ 6166. According to plaintiff, Deputy Berryman “ordered Plaintiff and his supporters to cease the
distribution of Plaintiff’s sample ballot under threat of arrest or retribution”; “intimidated
Plaintiff and his supporters by confiscating their ID[s] and questioning their citizenship”; and
threatened them “with arrest if they violated the deputies’ orders to cease and desist distribution
of Plaintiff’s sample ballot.” Id. ¶¶ 61-64. However, plaintiff does not allege that either he or
his supporters were placed under arrest.
With respect to several other alleged statements by Senator Muse on which plaintiff
relies, the Complaint is ambiguous (at best) as to whether plaintiff is asserting that Muse made
those statements during the course of the Oxon Hill library incident on September 6, 2010. In
this regard, plaintiff alleges that Senator Muse objected to the Sample Ballot, publicly accusing
plaintiff “of fraud and other violations of the law” while insisting that “only he as the Senator
was authorized to produce and distribute a sample ballot.” Complaint ¶ 54. See also id. ¶ 12.
According to a news article attached to the Complaint, Senator Muse asserted that the Sample
Ballot “‘deceives the voters’” and was “‘illegal,’” violating “‘election law and many other laws,
including mail fraud.’” Complaint Exh. E (ECF 1-5) at 2 (quoting Muse). The article states that
Muse believed that, as a State senator, only he was authorized to issue official ballots for his
district. Id. at 1.
On September 7, 2010, Secretary of State McDonough, allegedly “at the request of”
Attorney General Gansler, “filed an emergency motion for a temporary restraining order and
injunctive relief in the Circuit Court for Prince George’s County against Plaintiff and Citizens for
Change . . . to cease and desist the production and distribution of Plaintiff’s campaign sample
Complaint ¶ 24.
See id. Exh. C (ECF 1-3, “Emergency Motion for Temporary
Restraining Order and Injunctive Relief,” the “TRO Motion”). The TRO Motion asserted,
“falsely and erroneously,” that the Sample Ballot was “fraudulent,” “false,” and “misleading.”
Complaint ¶ 29.
According to plaintiff, McDonough relied on “fabricated, misleading,
unsubstantiated and undeniably false accusations” in bringing the TRO Motion. Complaint ¶ 25;
see generally id. ¶¶ 23-36.
Plaintiff raises similar allegations against Assistant Attorney General Wherthey, who “by
her signature authored the motion” seeking the restraining order. Complaint ¶ 39; see generally
id. ¶¶ 37-47. Ms. Wherthey, by signing the motion, allegedly “became a complaining witness
rather than a prosecutor” and thus “is not entitled to absolute immunity.” Id. ¶ 40. See also id.
¶ 47. Further, plaintiff alleges that Attorney General Gansler, “as the supervising authority” of
Wherthey, is “jointly responsible for all constitutional violations” that she allegedly committed.
Id. ¶ 50.
Judge Martin issued a temporary restraining order (the “TRO”) on September 7, 2010,
which prevented plaintiff and others acting under his supervision from distributing the Sample
Ballot. Complaint ¶ 15; id. Exh. B (ECF 1-2, copy of the TRO). The TRO stated that the “order
is being granted because a sufficient showing has been made that violations of [Md. Code (2010
Repl. Vol., 2013 Supp.) §§ 13-401 and 13-602 of the Election Law Article (‘E.L.’)] have
occurred in the form of circulation of fraudulent and legally non-compliant campaign
materials . . . and that immediate, substantial, and irreparable harm in the form of presentation of
false and misleading advocacy information to the electorate will result if such violations were to
continue . . . .” Complaint Exh. B at 1; see Complaint ¶¶ 102-03.
Plaintiff alleges that on November 9, 2010, Attorney General Gansler filed criminal
charges against Mr. Mathis in connection with the alleged election violations. Complaint ¶ 13.6
In Count IV, plaintiff challenges Attorney General Gansler’s jurisdiction to bring
election law charges against him. See infra. A press release from the Office of the Attorney
General announcing the filing of criminal charges against Mr. Mathis is attached to the
Complaint in both Exhibit F (ECF 1-6) and Exhibit O (ECF 1-15). Notably, the press release is
dated October 8, 2010—approximately a month before plaintiff alleges that charges were filed.
See id. Neither party addresses that discrepancy. However, this Court may take judicial notice
of the unofficial electronic case dockets available on the Maryland Judiciary Case Search
website, http://casesearch.courts.state.md.us/ (last accessed Aug. 7, 2014). See Bey v. Shapiro
Brown & Alt, LLP, --- F. Supp. 2d ----, 2014 WL 661586, at *5 n.4 (D. Md. Feb. 20, 2014); see
also Fed. R. Evid. 201(b).
According to that docket information, two criminal actions were filed against Mr. Mathis
in the Circuit Court for Prince George’s County. In one case (“Case CT101224X”), filed on
October 1, 2010, Mathis was charged with three counts of violating E.L. § 13-401(a)(1)(i).
Based on the number of counts and the dates of the alleged conduct, the criminal information
attached to the Complaint (as Exhibit G, ECF 1-7) would have been filed in Case CT101224X.
The case was tried to a jury in April 2011, and Mathis “was convicted of three counts of election
violations pertaining to distribution of campaign material without the proper authority line.”
casesearch.courts.state.md.us/ (last accessed Aug. 7, 2014), Case CT101380X (indicating that
Mathis was convicted of three E.L. § 13-401(a)(1)(i) charges and acquitted of one E.L. § 13601(a) charge). Plaintiff alleges that, “in order to prove his innocence on appeal,” he declined an
offer from the sentencing judge for probation before judgment, and instead was “sentenced to
three months unsupervised probation and one hundred community [service] hours at a venue of
his choice.” Complaint ¶ 13.7 As the Maryland Judiciary Case Search docket reflects, Mathis
appealed his convictions, unsuccessfully, to the Maryland Court of Special Appeals. See Mathis
v. State, No. 1165 (Md. Ct. Sp. App. Mar. 14, 2013) (unpublished), referenced at http://
Aug. 7, 2014). On July 5, 2013, the Maryland Court of Appeals denied Mathis’s petition for
certiorari. See Mathis v. State, Pet. Docket No. 167, referenced at http://www.courts.state.md.us/
coappeals/petitions/201307petitions.html (last accessed Aug. 7, 2014).
According to plaintiff, Attorney General Gansler “publicly accused Plaintiff in the press
However, Case CT101224X was resolved by an entry of nolle prosequi, on January 12, 2011. In
a separately numbered case (“Case CT101380X”), filed November 5, 2010, Mathis was charged
with three counts of violating E.L. § 13-401(a)(1)(i) and with one count under E.L. § 13-601(a),
which pertains to false statements in campaign finance reports. Indeed, in the Complaint,
plaintiff indicates that he was charged with four counts of election law violations. Id. ¶¶ 83, 85;
see also id. Exh. O (ECF 1-15) at 6 (news article dated Nov. 17, 2010, addressing new charge
filed against Mathis). As discussed, infra, Case CT101380X proceeded to trial.
The Maryland Judiciary Case Search docket for Case CT101380X indicates that, on
July 15, 2011, Mathis received concurrent six-month sentences, all suspended, for the three E.L.
§ 13-401(a)(1)(i) counts, and that he was placed on unsupervised probation for a period of six
via press releases and press conferences of being guilty of fraud and fraudulent acts,” even
though “Plaintiff was never investigated, charged or prosecuted for fraud.” Complaint ¶ 69; see
also id. ¶ 12. This “pre-trial publicity” allegedly “destroyed the integrity of the trial resulting in
Plaintiff’s conviction.” Id. ¶ 75; see also id. ¶ 77. Plaintiff also asserts that Attorney General
Gansler’s alleged misrepresentations to the press and the public caused “irreparable harm to
Plaintiff’s reputation and standing in the community”; “caused Plaintiff to suffer emotional
distress”; and “irreparably destroyed Plaintiff’s . . . ability to earn a livelihood,” leaving a “taint”
that “may never wash entirely clean.” Complaint ¶¶ 71, 78; see generally id. ¶¶ 67-80. Notably,
a press release issued by the Office of the Attorney General, dated October 8, 2010, and which is
the only such press release of Gansler’s that plaintiff has attached to his pleadings, stated: “A
criminal charge is merely an accusation of wrongdoing and the defendant is presumed innocent
unless the State proves his guilt beyond a reasonable doubt.” Complaint Exh. F (ECF 1-6, press
release) at 1; id. Exh. O (ECF 1-15, press release) at 3.
Beginning in the second half of September 2010 and continuing until at least March
2011, plaintiff filed complaints with the Maryland Board of Elections, the Office of the State
Prosecutor, and the Office of the Attorney General against campaign committees associated with
Obie Patterson, Muse, Jay Walker, Mark Spencer, Steven Morris, Ollie Anderson, and Archie
O’Neal. See Complaint ¶ 86; id. Exh. H (ECF 1-8, regarding Patterson) and Exh. I (ECF 1-9,
regarding O’Neil, Spencer, Morris, Muse, Walker, and the “Team 26” campaign committee).
According to plaintiff, those campaign committees violated the same election laws under which
plaintiff was convicted, yet those candidates were never criminally charged. Complaint ¶¶ 84,
86. For instance, Senator Muse allegedly violated § 13-401(a) of the Election Law Article,
which, plaintiff says, “is the exact same violation of the election law that Plaintiff was charged,
prosecuted and convicted of.” Id. ¶ 87. Plaintiff asserts: “The Maryland Board of Elections
verified that Senator Muse’s campaign literature violated Maryland Election Law § 13-401 and
issued a directive to the Muse campaign committee to bring their campaign literature in
compliance with the law within thirty (30) days.”
Complaint ¶ 87 (citing id. Exh. J,
memorandum from DeMarinis to the Chairman and Treasurer of Friends of C. Anthony Muse,
dated Oct. 23, 2010). By contrast, plaintiff “was not afforded the same opportunity to bring any
alleged violations of his campaign literature in compliance within thirty (30) days,” as he was
instead “prohibited from distributing his campaign literature, investigated, charged, prosecuted
and convicted of the same violation that Senator Muse and his Team 26 were given thirty (30)
days to correct.” Complaint ¶ 87.
Additional facts are included in the Discussion.
II. Legal Standards
Defendants’ Motion is predicated in part on Fed. R. Civ. P. 12(b)(6). A motion to
dismiss pursuant to Rule 12(b)(6) constitutes an assertion by a defendant that, even if the facts
alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which
relief can be granted.” Whether a complaint states a claim for relief is assessed by reference to
the pleading requirements of Fed. R. Civ. P. 8(a)(2). It provides that a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” The
purpose of the rule is to provide the defendant with “fair notice” of the claim and the “grounds”
for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 n.3 (2007); see
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
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A plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2).
Twombly, 550 U.S. at 555.
But, the rule demands more than bald accusations or mere
speculation. Id.; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). To
satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual
matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of
those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at
556. In other words, the complaint must contain facts sufficient to “state a claim to relief that is
plausible on its face.” Id. at 570; see Iqbal, 556 U.S. at 684; Simmons v. United Mortg. and Loan
Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011).
In reviewing such a motion, a court “‘must accept as true all of the factual allegations
contained in the complaint,’” and must “‘draw all reasonable inferences [from those facts] in
favor of the plaintiff.’” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440
(4th Cir. 2011) (citations omitted); see Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir.), cert.
denied, ___ U.S. ___, 132 S. Ct. 402 (2011); Monroe v. City of Charlottesville, 579 F.3d 380,
385-86 (4th Cir. 2009), cert. denied, 559 U.S. 991 (2010). However, a complaint that provides
no more than “labels and conclusions,” or “a formulaic recitation of the elements of a cause of
action,” is insufficient. Twombly, 550 U.S. at 555. Moreover, the court is not required to accept
legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986);
Monroe, 579 F.3d at 385-86.
A Rule 12(b)(6) motion will be granted if the “well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679 (citation omitted).
“A court decides whether [the pleading] standard is met by separating the legal conclusions from
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the factual allegations, assuming the truth of only the factual allegations, and then determining
whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the
legal remedy sought. A Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011),
cert. denied, ___ U.S. ___, 132 S. Ct. 1960 (2012).
“‘Dismissal under Rule 12(b)(6) is
appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to
support a cognizable legal theory.’” Hartmann v. Calif. Dept. of Corr. & Rehab., 707 F.3d 1114,
1122 (9th Cir. 2013) (citation omitted); accord Commonwealth Prop. Advocates, LLC v. Mortg.
Elec. Reg. Sys., Inc., 680 F.3d 1194, 1201-02 (10th Cir. 2011) (“When reviewing a 12(b)(6)
dismissal, ‘we must determine whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory proposed.’
Dismissal is appropriate if the law simply affords no relief.”) (citation omitted).
A motion asserting failure to state a claim typically “does not resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses,” Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (quotation marks omitted), unless such a defense
can be resolved on the basis of the facts alleged in the complaint. See Goodman v. Praxair, Inc.,
494 F.3d 458, 464 (4th Cir. 2007). “This principle only applies, however, if all facts necessary
to the affirmative defense ‘clearly appear on the face of the complaint,’” or in other documents
that are proper subjects of consideration under Rule 12(b)(6).
Id. (quoting Richmond,
Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)) (emphasis in
In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a
court ordinarily “may not consider any documents that are outside of the complaint, or not
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expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557
(4th Cir. 2013). In considering a challenge to the adequacy of the Complaint, however, the court
“may properly consider documents attached to a complaint or motion to dismiss ‘so long as they
are integral to the complaint and authentic.’” Anand v. Ocwen Loan Servicing, LLC, --- F.3d ----,
2014 WL 2535405, at *2 (4th Cir. June 6, 2014) (quoting Philips v. Pitt County Memorial Hosp.,
572 F.3d 176, 180 (4th Cir. 2009)); see also E.I. du Pont de Nemours & Co., 637 F.3d at 448.
To be “integral,” a document must be one “that by its ‘very existence, and not the mere
information it contains, gives rise to the legal rights asserted.’” Chesapeake Bay Found., Inc. v.
Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (citation omitted)
(emphasis in original).
Finally, because plaintiff is a self-represented litigant, his pleadings are “‘liberally
construed’” and “‘held to less stringent standards than formal pleadings drafted by lawyers.’”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). “However, liberal construction
does not absolve Plaintiff from pleading a plausible claim.” Bey v. Shapiro Brown & Alt, LLP,
--- F. Supp. 2d ----, 2014 WL 661586, at *3 (D. Md. Feb. 20, 2014); see also Coulibaly v. J.P.
Morgan Chase Bank, N.A., 2011 WL 3476994, at *6 (D. Md. Aug. 8, 2011) (“[E]ven when pro
se litigants are involved, the court cannot ignore a clear failure to allege facts that support a
viable claim.”), aff’d, 526 F. App’x 255 (4th Cir. 2013). The Fourth Circuit has stated:
It is neither unfair nor unreasonable to require a pleader to put his complaint in an
intelligible, coherent, and manageable form, and his failure to do so may warrant
dismissal. Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir.), cert. denied, 382 U.S.
966 (1965); Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981). District courts
are not required to be mind readers, or to conjure questions not squarely presented
to them. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert.
denied, 475 U.S. 1088 (1986).
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Harris v. Angliker, 955 F.2d 41 (Table), 1992 WL 21375, at *1 (4th Cir. Feb. 10, 1992)
A. Section 1983
Pursuant to 42 U.S.C. § 1983, a plaintiff may file suit against any person who, acting
under color of state law, “subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws” of the United States. See, e.g., Filarsky v.
Delia, ___U.S. ___, 132 S. Ct. 1657 (2012). Section 1983 “‘is not itself a source of substantive
rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’”
Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3
B. Maryland election law
Central to this case are several Maryland election law provisions, including the one under
which plaintiff was convicted: E.L. § 13-401. That provision states, in part:
(a)(1) Except as otherwise provided in this section, each item of campaign
material shall contain, set apart from any other message, an authority line that
(i) as to campaign material published or distributed by a campaign finance
1. the name and address of the treasurer of each campaign finance entity
responsible for the campaign material; and
2. as to each treasurer named under item 1 of this item, the name of each
campaign finance entity for which the treasurer is acting; and
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(ii) as to campaign material published or distributed by any other person, the
name and address of the person responsible for the campaign material.
(2) The authority line may omit an address that is on file with the State Board or a
(3) If the campaign material is too small to include all the information specified in
paragraph (1) of this subsection in a legible manner, the authority line need only
contain the name and title of the treasurer or other person responsible for it.
(4) The authority line for campaign material that is a commercial advertisement
need only contain the information specified in paragraphs (1) and (2) of this
subsection for one campaign finance entity or other person responsible for the
Notably, “[t]he Secretary of State may seek an immediate injunction against any violation
of ” Title 13. E.L. § 13-605(a). And, except as otherwise provided in the statute, “a person who
knowingly and willfully violates a provision of [Title 13] is guilty of a misdemeanor and on
conviction is subject to a fine not exceeding $25,000 or imprisonment not exceeding 1 year or
both.” Id. § 13-603.
C. “Official capacity” claims
As noted, plaintiff has brought suit against defendants in both their individual and their
official capacities. Complaint at 1. In the Motion, defendants argue that “[b]ecause a State
official acting in his or her official capacity is an arm of the State, the Defendants are entitled to
Eleventh Amendment immunity for acts allegedly committed within their official capacity and
for which Mr. Mathis seeks monetary damages.” Mem. at 2 n.1 (citing Bland v. Roberts, 730
F.3d 368, 389-90 (4th Cir. 2013)). See, e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989) (Eleventh Amendment bars claims for damages brought against state officials in their
official capacities); Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir.) (same), cert. dismissed sub
nom. Stork v. Gilchrist, 548 U.S. 939 (2006); Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir.
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Plaintiff does not challenge that argument.
See Ferdinand-Davenport v.
Children’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010) (“By her failure to respond to [the
defendant’s] argument” in dispositive motion, “the plaintiff abandons [her] claim.”); Mentch v.
E. Sav. Bank, FSB, 949 F. Supp. 1236, 1247 (D. Md. 1997) (plaintiff’s failure to address in
opposition brief an argument raised in defendant’s opening brief constitutes abandonment of
claim). Nor does the Complaint specifically request injunctive relief or other remedies as to the
remaining defendants that might survive the bar of Eleventh Amendment immunity.
Accordingly, I will dismiss plaintiff’s claims against defendants in their official capacities.
D. Absolute and qualified immunity
1. Absolute Immunity
The defense of absolute immunity protects “officials whose special functions or
constitutional status requires complete protection from suit[.]” Harlow v. Fitzgerald, 457 U.S.
800, 807 (1982). A defendant bears the burden of showing entitlement to absolute immunity.
Burns v. Reed, 500 U.S. 478, 486 (1991); see, e.g., Stapley v. Pestalozzi, 733 F.3d 804, 811 (9th
It is well settled that judges and prosecutors are safeguarded by absolute immunity from
individual-capacity suits when exercising their discretionary judgment. See Imbler v. Pachtman,
424 U.S. 409, 423 (1976). “[T]he purpose of absolute immunity ‘is not to protect an erring
official, but to insulate the decisionmaking process from the harassment of prospective
litigation.’” Goldstein v. Moatz, 364 F.3d 205, 212 (4th Cir. 2004) (quoting Westfall v. Erwin,
484 U.S. 292, 295 (1988)). Nevertheless, “courts are obliged to apply absolute immunity
sparingly, because ‘[t]he presumption is that qualified rather than absolute immunity is sufficient
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to protect government officials in the exercise of their duties.’” Goldstein, 364 F.3d at 212
(quoting Burns, 500 U.S. at 486-87) (modification in Goldstein).
2. Qualified Immunity
Under federal law, “[t]he doctrine of qualified immunity protects police officers and
public officials from claims of constitutional violations ‘for reasonable mistakes as to the legality
of their actions.’” Merchant v. Bauer, 677 F.3d 656, 661 (4th Cir. 2012) (quoting Saucier v.
Katz, 533 U.S. 194, 206 (2001)), cert. denied, ___ U.S. ___, 133 S. Ct. 789 (2012). See Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982); Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th Cir.
2013); Bland, 730 F.3d at 391. “Qualified immunity extends to protect officials ‘who commit
constitutional violations but who, in light of clearly established law, could reasonably believe
that their actions were lawful.’” Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013)
(quoting Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.) (en banc), cert. denied, ___ U.S. ___,
132 S. Ct. 781 (2011)); accord Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012). In other
words, qualified immunity “‘gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.’” Lane v. Franks, ___ U.S. ___, 134 S. Ct.
2369, 2381 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. ___, 131 S. Ct. 2074, 2085 (2011)).
A qualified immunity analysis involves two inquiries: (1) whether the facts alleged,
“[t]aken in the light most favorable to the party asserting the injury, . . . show the officer’s
conduct violated a constitutional right,” Saucier, 533 U.S. at 201; and (2) whether the right at
issue “‘was clearly established in the specific context of the case—that is, [whether] it was clear
to a reasonable officer that the conduct in which he allegedly engaged was unlawful in the
situation he confronted.’” Merchant, 677 F.3d at 662 (citation omitted). The “two inquiries . . .
- 17 -
may be assessed in either sequence.” Id. at 661-62; accord Pearson, 555 U.S. at 236 (2009)
(judges are “permitted to exercise their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand”).
The second inquiry “turns on the ‘objective legal reasonableness’ of the action, assessed
in light of the legal rules that were ‘clearly established’ at the time it was taken.” Messerschmidt
v. Millender, ___ U.S. ___, 132 S. Ct. 1235, 1245 (2012) (citing Anderson v. Creighton, 483
U.S. 635, 639 (1987)). “To be clearly established, a right must be sufficiently clear that ‘every
reasonable official would [have understood] that what he is doing violates that right.’ In other
words, ‘existing precedent must have placed the statutory or constitutional question beyond
debate.’” Reichle v. Howards, ___ U.S. ___, 132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft,
131 S. Ct. at 2078) (some quotation marks and citations omitted). Accord Plumhoff v. Rickard,
___ U.S. ___, 134 S. Ct. 2012, 2023 (2014).
If the law at the time of the alleged violation was not “clearly established,” the official
will be entitled to qualified immunity, because “an official could not reasonably be expected to
anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law
forbade conduct not previously identified as unlawful.” Harlow, 457 U.S. at 818. On the other
hand, “[i]f the law was clearly established, the immunity defense ordinarily should fail, since a
reasonably competent public official should know the law governing his conduct.” Id. at 818-19.
In determining whether a right was clearly established, courts in this Circuit ‘“ordinarily need
not look beyond the decisions of the Supreme Court, [the Fourth Circuit], and the highest court
of the state in which the case arose,’” as of the date of the conduct at issue. Doe ex rel. Johnson
- 18 -
v. S.C. Dept. of Soc. Servs., 597 F.3d 163, 176 (4th Cir.) (citations omitted), cert. denied, ___
U.S. ___, 131 S. Ct. 392 (2010).
Notably, “[b]ecause an official ‘who performs an act clearly established to be beyond the
scope of his discretionary authority is not entitled to claim qualified immunity,’ the defendant
bears the initial burden ‘of demonstrating that the conduct of which the plaintiff complains falls
within the scope of the defendant’s duties.’” Henry v. Purnell, 501 F.3d 374, 377 n.2 (4th Cir.
2007) (quoting In re Allen, 106 F.3d 582, 593, 594 (4th Cir. 1997), cert. denied sub nom.
McGraw v. Better Government Bureau, Inc., 522 U.S. 1047 (1998)). See also, e.g., Holloman ex
rel. Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th Cir. 2004).
E. Count I: TRO Motion and Oxon Hill library incident
Count I, brought pursuant to 42 U.S.C. § 1983, alleges a “Deprivation of Constitutional
Rights under Color of State Law.” Plaintiff, invoking his rights as a member of a “Class of
One,” alleges violations of his rights under the First, Fourth, Sixth, and Fourteenth Amendments,
including, inter alia, his rights to free speech, equal protection, and due process. See Complaint
¶¶ 14, 61.
1. TRO Motion
Defendants argue that Attorney General Gansler and Assistant Attorney General
Wherthey are entitled to absolute immunity in connection with their efforts to obtain a temporary
restraining order against plaintiff. Mem. at 7. As defendants note, see id., absolute immunity
protects a “prosecutor when serving as an advocate in judicial proceedings,” including for “‘acts
undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and
which occur in the course of his role as an advocate for the State[.]’” Kalina v. Fletcher, 522
- 19 -
U.S. 118, 126 (1997) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). Likewise,
defendants assert that Secretary of State McDonough is entitled to absolute immunity, as
“Maryland law expressly authorizes the Secretary of State to ‘seek an immediate injunction
against any violation’ of the State’s election law.” Mem. at 7 (quoting E.L. § 13-605(a)). Thus,
defendants maintain that McDonough “is absolutely immune from suit either as a prosecutor or
as a party advocating on the State’s behalf.” Mem. at 8 (citing Briscoe v. Lahue, 460 U.S. 325,
In his Opposition, plaintiff argues, inter alia, that principles applicable to prosecutors in
the context of criminal cases do not extend to the TRO Motion brought by the three defendants.
Opp. at 4. In connection with that claim, plaintiff acknowledges that “Gansler and Wherthey
were acting in the role of attorneys representing the State on behalf of Secretary of State
McDonough,” but he asserts that they were “not [acting] in the capacity of prosecutors,” insofar
as no criminal indictment had been filed at the time the TRO was sought. See id.; see also, e.g.,
Surreply at 5.
Although plaintiff is correct that the TRO Motion was not filed in a traditional criminal
proceeding, that fact does not end the absolute immunity analysis. That is because courts have
found absolute immunity to apply to advocates in a number of other contexts beyond traditional
criminal prosecutions, including where government attorneys pursue civil enforcement actions
analogous to the proceeding at issue here.
For instance, in Butz v. Economou, 438 U.S. 478, 512 (1978), the Supreme Court
considered the applicability of absolute immunity in the context of adjudication within a federal
administrative agency, and concluded that such a proceeding “shares enough of the
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characteristics of the judicial process that those who participate in such adjudication should also
be immune from suits for damages.” Id. at 513. Of relevance here, absolute immunity extends
not only to hearing officers presiding over administrative adjudications, but also to agency
officials who initiate the proceedings and serve as advocates. The Supreme Court said in Butz,
id. at 515:
We also believe that agency officials performing certain functions
analogous to those of a prosecutor should be able to claim absolute immunity with
respect to such acts. The decision to initiate administrative proceedings against
an individual or corporation is very much like the prosecutor’s decision to initiate
or move forward with a criminal prosecution. An agency official, like a
prosecutor, may have broad discretion in deciding whether a proceeding should be
brought and what sanctions should be sought.
Further, the Butz Court observed, id.: “The discretion which executive officials exercise
with respect to the initiation of administrative proceedings might be distorted if their immunity
from damages arising from that decision was less than complete.” Similarly, the Butz Court
concluded that it “can see no substantial difference between the function of the agency attorney
in presenting evidence in an agency hearing and the function of the prosecutor who brings
evidence before a court.” Id. at 516. Accordingly, the Court held “that an agency attorney who
arranges for the presentation of evidence on the record in the course of an adjudication is
absolutely immune from suits based on the introduction of such evidence.” Id. at 517.
Vosburg v. Department of Social Services, 884 F.2d 133 (4th Cir. 1989), also provides
guidance. There, the Fourth Circuit concluded that “state social workers are absolutely immune
from liability arising from their role in filing a removal petition,” which in that case had deprived
the plaintiff of the custody of her daughter. Id. at 134. In so holding, the Vosburg Court rejected
the claim that “the function of a social worker in this situation is more analogous to that of a
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police officer than that of a prosecutor,” thus entitling a social worker only to qualified
immunity. Id. at 135. Rather, the Fourth Circuit said that “in filing the Removal Petition the
social workers were acting in a prosecutorial, rather than an investigative or ‘policing’ capacity,”
and therefore “must be afforded absolute immunity from any liability arising from this conduct.”
Id. (citing Butz, 438 U.S. 478, and Imbler, 424 U.S. 409). The Court observed that in Butz “the
Supreme Court extended absolute immunity to all federal officials whose ‘special functions
required a full exemption from liability,’” which included “‘activities intimately associated with
the judicial process’—i.e. activities that constitute the functional equivalent of those engaged in
by judges, advocates, and witnesses.” Vosburg, 884 F.2d at 136 (quoting Butz, 438 U.S. at 508,
Further, the Vosburg Court reasoned, 884 F.2d at 137:
Under Virginia law, the filing of a removal petition is, in essence, the start of
judicial proceedings against the parent or guardian of a minor child, and the duties
of the social worker at that point are those of an advocate in that process . . . .
Like a prosecutor, a social worker must exercise her best judgment and discretion
in deciding when to file a Removal Petition. The welfare of the state’s children
would be jeopardized if social workers had to weigh their decision in terms of
their potential personal liability. In short, the denial of absolute immunity here
has the potential to adversely affect the efficient functioning of the state’s child
welfare system. Additionally, the chances are high that suits against the social
workers would occur with some degree of regularity. Parents, resentful of and
humiliated by an attempt to usurp their rights, would likely channel their
frustration “into the ascription of improper and malicious actions to the State’s
See also, e.g., Evans v. Perry, --- F. App’x ----, 2014 WL 3378025, at *2 (July 11, 2014) (per
curiam) (“Social workers are entitled to absolute immunity for actions taken in a prosecutorial
rather than investigative or policing capacity,” including for “preparing and filing a removal
petition and prosecuting that action.”).
- 22 -
In other instances, the Fourth Circuit and district courts within this Circuit have extended
absolute immunity outside the context of traditional criminal prosecutions.
See, e.g., Pak v.
Ridgell, 2011 WL 3320197, at *7 (D. Md. Aug. 1, 2011) (concluding that “bar counsel
prosecutors are afforded absolute immunity for conduct performed in a judicial capacity”), aff’d,
476 F. App’x 750 (4th Cir. 2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1279 (2013); Hunter v.
Virginia State Bar, 786 F. Supp. 2d 1107, 1112 (E.D. Va. 2011) (extending prosecutorial
immunity to an assistant bar counsel); see also Ostrzenski v. Seigel, 177 F.3d 245, 250 (4th Cir.
Courts outside the Fourth Circuit have reached similar conclusions, including in cases
involving either assistant state attorneys general, civil enforcement actions, or both. See, e.g.,
Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (extending absolute immunity to state
assistant attorney general); Fry v. Melaragna, 939 F.2d 832, 837-38 (9th Cir. 1991) (stating that
“the principles outlined in Butz should a fortiori apply to the government attorney’s initiation and
handling of civil litigation in a state or federal court” and extending absolute immunity to IRS
attorneys who initiated civil tax litigation); Murphy v. Morris, 849 F.2d 1101, 1005 (8th Cir.
1988) (extending absolute immunity to “the advocacy functions of a state assistant attorney
general defending state officials” in civil litigation); Barrett v. United States, 798 F.2d 565, 57173 (2d Cir. 1986) (extending absolute immunity to state assistant attorney general in connection
with defense of a civil suit); Dukes v. Pappas, 2010 WL 571779, at *8-9 (E.D. Pa. Feb. 17, 2010)
(extending absolute immunity to Maryland assistant attorney general regarding conduct
pertaining to civil enforcement action brought against plaintiff).
- 23 -
Plaintiff raises a host of arguments in response to defendants’ assertion of absolute
immunity. However, none of those contentions is compelling.
To begin, in his Surreply, plaintiff argues that the motion and proceedings that resulted in
the issuance of the TRO “cannot be deemed a judicial proceeding that would entitle Defendants
to absolute immunity because the proceedings lacked sufficient procedural safeguards adequate
to minimize the occurrence of injury to the Plaintiff.” Surreply at 4. However, as defendants
note, “the TRO hearing involved an impartial arbiter, Judge Martin, the presentation of evidence
in the form of Mr. Mathis’s campaign materials on the record and—although that particular
hearing was conducted ex parte—an opportunity for Mr. Mathis to challenge any falsehoods
through a later proceeding.” Reply at 5-6 (citing Md. Rule 15-504 (addressing, inter alia,
procedures for the modification or dissolution of temporary restraining orders); Smith v.
Danielczyk, 400 Md. 98, 126, 928 A.2d 795, 812 (2007) (“Even in sub-proceedings that may
themselves be ex parte in nature, such as requests for temporary restraining orders, the
opportunity exists later in the case to expose and sanction false statements.”)). Indeed, the TRO
issued by Judge Martin stated that “any party or person affected by this Order may apply for a
modification or dissolution of it on two days’ notice (or such shorter notice as the court may
prescribe) to the party who obtained the order.” Complaint Exh. B (ECF 1-2, copy of the TRO).8
Plaintiff’s repeated assertions that defendants “fabricated” evidence, see, e.g., Complaint
¶¶ 32, 39, 46, 47, 53, are also unavailing.
“Prosecutorial immunity applies even when a
Plaintiff complains that he was not served with the TRO until September 30, 2010.
Opp. at 16. Notably, an email message attached as Exhibit A to the Opposition indicates that an
Assistant Sheriff with Prince George’s County emailed plaintiff on September 8, 2010, stating
that he “would like to meet with [plaintiff regarding] the Temporary Restraining Order issued
yesterday and provide you with a copy.” Exh. A at 1. However, for reasons that are not clear
from that correspondence, plaintiff did not reply to that message until September 30, 2010.
- 24 -
prosecutor fabricates evidence so long as the prosecutor is acting in a semi-judicial capacity.”
Pak, 2011 WL 3320197, at *6. In any event, plaintiff’s allegations that defendants “fabricated”
evidence are wholly conclusory, as they fail to identify what evidence presented in connection
with the TRO Motion was purportedly fabricated.
Also unconvincing is plaintiff’s claim that Assistant Attorney General Wherthey, “by
signing [the TRO Motion,] did swear under oath to all the false statements of fact in the motion,”
and thus “became a complaining witness rather than a prosecutor[.]” Complaint ¶ 40; see also
id. ¶¶ 47, 53.
Defendants argue, and I agree, that plaintiff has not plausibly alleged how
Wherthey’s conduct was akin to that of a witness, rather than counsel. See Mem. at 8-9. Nor has
plaintiff plausibly alleged that Wherthey functioned as an “administrator and/or investigative
officer,” rather than as an advocate. See Complaint ¶ 47.
Further, in the Opposition, plaintiff insists that as of 2010 the Attorney General lacked
authority “to institute an action in Circuit Court for a temporary restraining order.” Opp. at 5.
Yet, he also concedes that, at that time, the Secretary of State did have authority to seek an
injunction. Id. As the TRO Motion reflects, the “Plaintiff/Petitioner” bringing the action was
Secretary of State McDonough, and not the Attorney General. And, as defendants note, see
Reply at 5, Maryland law provides that, unless a statute expressly provides otherwise, “the
Attorney General is the legal adviser and shall represent and otherwise perform all of the legal
work for each officer and unit of the State government.” See Md. Code (2009 Repl. Vol., 2011
Supp.) § 6-106(b) of State Government Article.
In my view, none of the arguments that plaintiff offers undermines the entitlement of
Attorney General Gansler, Assistant Attorney General Wherthey, and Secretary of State
- 25 -
McDonough to absolute immunity in connection with allegations raised in Count I concerning
the TRO Motion. As a result, that aspect of Count I will be dismissed as to defendants Gansler,
Wherthey, and McDonough.
2. Senator Muse and Deputy Berryman
As noted, plaintiff’s allegations regarding Senator Muse and Deputy Berryman largely
arise from the incident at the Oxon Hill library on September 6, 2010. With respect to Senator
Muse, defendants argue that plaintiff fails to allege that Senator Muse acted under color of state
law, and that the § 1983 claim against Senator Muse fails on that basis alone. Alternatively, even
if Senator Muse did act under color of law, defendants maintain that he would be entitled to
qualified immunity. See Mem. at 9-11.9 As for Deputy Berryman, defendants argue that she is
entitled to qualified immunity. See id. at 11-15.
As an initial matter, defendants assert that, to the extent plaintiff seeks to pursue a claim
based on alleged violations of the constitutional rights of his supporters who were present during
the incident at the Oxon Hill library, plaintiff lacks standing to raise such a claim. Therefore, in
defendants’ view, purported violations of the rights of Mathis’s supporters are irrelevant to the
Court’s analysis. Mem. at 12 n.3. Plaintiff does not challenge that argument, and thus has
abandoned any claim premised on alleged violations of his supporters’ rights. See FerdinandDavenport, supra, 742 F. Supp. 2d at 777; Mentch, supra, 949 F. Supp. at 1247.
Defendants do not argue that Senator Muse is entitled to absolute immunity pursuant to
the doctrine of legislative immunity, which applies only to legislative activities. See McCray v.
Maryland Dept. of Transp., Maryland Transit Admin., 741 F.3d 480, 484-85 (4th Cir. 2014);
Kensington Volunteer Fire Dept., Inc. v. Montgomery County, Md., 684 F.3d 462, 470 (4th Cir.
2012); see also, e.g., Carlos v. Santos, 123 F.3d 61, 67 (2d Cir. 1997) (“A viable § 1983 claim
against a town legislator in his individual capacity must allege acts taken under color of state
law, but not acts that were legislative in nature.”).
- 26 -
Of relevance to plaintiff’s claim concerning a violation of his own First Amendment
rights, the Supreme Court has made clear that the First Amendment “has its fullest and most
urgent application to speech uttered during a campaign for political office.” Citizens United v.
FEC, 558 U.S. 310, 339 (2010) (citations and quotation marks omitted). And, “the Supreme
Court has emphasized the importance of providing the electorate with information about the
source of campaign spending—even when these disclosure requirements burden election-related
speech.” Center for Individual Freedom, Inc. v. Tennant, 706 F.3d 270, 275 (4th Cir. 2013).
Plaintiff also seeks to vindicate his right against unreasonable searches and seizures,
guaranteed by the Fourth Amendment to the Constitution. The Fourth Amendment protects,
inter alia, “[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” Section 1983 provides a damages remedy for
violations of the Fourth Amendment. See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999)
(“§ 1983 allow[s] a plaintiff to seek money damages from government officials who have
violated his Fourth Amendment rights.”).
In Santos v. Frederick County Bd. of Com’rs, 725 F.3d 451, 460-61 (4th Cir. 2013), the
Fourth Circuit summarized “three categories of police-citizen encounters” recognized by the
First, “consensual” encounters, the least intrusive type of police-citizen
interaction, do not constitute seizures and, therefore, do not implicate Fourth
Amendment protections. Florida v. Bostick, 501 U.S. 429, 434 (1991). Second,
brief investigative detentions—commonly referred to as “Terry stops”—require
reasonable, articulable suspicion of criminal activity. Terry [v. Ohio, 392 U.S. 1,
21 (1968)]. Finally, arrests, the most intrusive type of police-citizen encounter,
must be supported by probable cause. Devenpeck v. Alford, 543 U.S. 146, 152
- 27 -
A police-citizen encounter rises to the level of a Fourth Amendment
seizure when “the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen . . . .” United States v. Jones, 678
F.3d 293, 299 (4th Cir. 2012) (quoting Terry, 392 U.S. at 19 n.16). This inquiry
is objective, [United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002)], asking
whether “‘in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.’” Jones, 678
F.3d at 299 (quoting [United States v. Mendenhall, 446 U.S. 544, 554 (1980)].
An encounter generally remains consensual when, for example, police officers
engage an individual in routine questioning in a public place. United States v.
Gray, 883 F.2d 320, 323 (1989); see also Bostick, 501 U.S. at 434 (“[M]ere
police questioning does not constitute a seizure.”).
As indicated, defendants first challenge plaintiff’s § 1983 claim against Senator Muse on
the ground that none of the alleged actions were performed “under color of state law.” To state a
claim under § 1983, “a plaintiff must aver that a person acting under color of state law deprived
him of a constitutional right or a right conferred by a law of the United States.” Wahi v.
Charleston Area Medical Center, Inc., 562 F.3d 599, 615 (4th Cir. 2009) (emphasis added). The
“under color of state law” element “is synonymous with the more familiar state-action
requirement—and the analysis for each is identical.” Philips, supra, 572 F.3d at 180.
Acting “under color of state law” is a jurisdictional prerequisite for a § 1983 action. Polk
County v. Dodson, 454 U.S. 312, 315 (1981). In Polk County, the Supreme Court said: “[A]
person acts under color of state law only when exercising power ‘possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of state law.’” Id. at
317-18 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). As a result, “a public
employee acts under color of state law while acting in his official capacity or while exercising
his responsibilities pursuant to state law.” West v. Atkins, 487 U.S. 42, 50 (1988). However,
“[n]ot every action by a state official or employee is to be deemed as occurring ‘under color’ of
state law. Action is taken under color of state law when it is ‘made possible only because the
- 28 -
wrongdoer is clothed with the authority of state law.’” Hughes v. Myer, 880 F.2d 967, 971-72
(7th Cir. 1989) (quoting West, 487 U.S. at 49) (further citation omitted). Further, the Fourth
Circuit has indicated that actions may be said to have occurred “under color of state law” where
they “were committed while the defendants were purporting to act under the authority vested in
them by the state, or were otherwise made possible because of the privileges of their
employment.” Hughes v. Halifax County School Bd., 855 F.2d 183, 186-87 (4th Cir. 1988). See
also Monroe v. Pape, 365 U.S. 167, 184 (1961); Williams v. United States, 341 U.S. 97, 100
(1951) (“the manner of his conduct . . . makes clear that he was asserting the authority granted
him and not acting in the role of a private person”).
“Like the state-action requirement of the Fourteenth Amendment, the under-color-ofstate-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how
discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)
(citations omitted). See also, e.g., Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1523 (11th
Cir. 1995) (“The dispositive issue is whether the official was acting pursuant to the power he/she
possessed by state authority or acting only as a private individual.”). Nevertheless, a private
party may be “considered a state actor for purposes of § 1983 if ‘the deprivation [is] caused by
the exercise of some right or privilege created by the State . . . [and] the party charged with the
deprivation [is] a person who may fairly be said to be a state actor.’” Gregg v. Ham, 678 F.3d
333, 339 n.3 (4th Cir. 2012) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982);
modifications in Gregg).
- 29 -
Regarding the distinction between private and state action, the Fourth Circuit explained
in Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.), cert. denied, 540 U.S. 822 (2003)
If the substance of § 1983 is not to be substantially eviscerated, . . . “its ambit
cannot be a simple line between States and people operating outside formally
governmental organizations.” Brentwood Acad. v. Tennessee Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 (2001). Section 1983 therefore includes
within its scope apparently private actions which have a “sufficiently close nexus”
with the State to be “fairly treated as that of the State itself.” Jackson v. Metro.
Edison Co., 419 U.S. 345, 351 (1974). “[T]here is no specific formula for
defining state action” under this standard. Hicks v. Southern Maryland Health
Sys. Agency, 737 F.2d 399, 402 n.3 (4th Cir. 1984) (quoting Howerton v. Gabica,
708 F.2d 380, 383 (9th Cir. 1983)). Rather, the question of what is fairly
attributable to the State “is a matter of normative judgment, and the criteria lack
rigid simplicity.” Brentwood Academy, 531 U.S. at 295[.]
Although the facts of Rossignol are markedly different from those alleged here, the
Fourth Circuit’s analysis is instructive as to the “under color of state law” issue. In Rossignol,
316 F.3d at 519, the plaintiff brought § 1983 claims against, among others, sheriff’s deputies.
The deputies, while off duty and wearing plainclothes, completed a “mass purchase” of
plaintiff’s St. Mary’s Today newspaper, in order to suppress unfavorable coverage of their
official conduct. Id. at 520-21. The district court granted summary judgment to the deputies, on
the ground that “‘the mass purchase constituted private conduct not executed under color of state
law[.]’” Id. (quoting district court opinion). The Fourth Circuit reversed, concluding that the
deputies’ conduct was attributable to the state, due in part to their motivation to stifle criticism of
the Sheriff’s Department’s official conduct.
Id. at 524-25 (noting that “if a defendant’s
purportedly private actions are linked to events which arose out of his official status, the nexus
between the two can play a role in establishing that he acted under color of state law”). The
Rossignol Court also emphasized the deputies’ “ability to use their positions in the Sheriff’s
- 30 -
Department” to advance their effort and to shield themselves from consequences for their acts.
See id. at 525-26 (noting that “the deputies’ identities as state officers played a role at several
points during the seizure” and citing the undoubted “effect of a police presence on a store owner
As indicated, plaintiff’s allegations concerning Senator Muse relate primarily to the
incident of September 6, 2010, when Senator Muse allegedly “ordered Plaintiff and his
supporters to cease distribution of Plaintiff’s sample ballots under threat of law enforcement
intervention.” Complaint ¶ 55. Senator Muse is also alleged to have “summoned the Prince
George’s County Police Department and Sheriff’s Department to harasss Plaintiff and his
supporters,” and to have ordered Sheriff’s deputies “to confiscate the Sample Ballot and
intimidate Plaintiff’s supporters under threat of arrest to cease and desist distribution of
Plaintiff’s sample ballot.” Id. ¶¶ 56-57. Moreover, “[u]nder the direction of” Senator Muse, the
Sheriff’s deputies “intimidated Plaintiff and his supporters by confiscating their literature and
their ID[s], while questioning their citizenship” and threatening them “with arrest if they refused
to stop distributing Plaintiff’s sample ballot.” Id. ¶ 58.
With respect to other statements allegedly made by Senator Muse, the Complaint does
not make clear whether those statements were made during the Oxon Hill library incident of
September 6, 2010. Among those allegations is the claim that Senator Muse publicly accused
plaintiff “of fraud and other violations of the law” while insisting that “only he as the Senator
was authorized to produce and distribute a sample ballot.” Complaint ¶ 54. In a news article
attached to the Complaint, Muse is quoted as asserting that the Sample Ballot “‘deceives the
voters’” and was “‘illegal,’” violating “‘election law and many other laws, including mail
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fraud.’” Complaint Exh. E at 2 (quoting Muse). Also in the article, Muse is said to have
asserted that, as a State senator, only he was authorized to issue official ballots for his district.
Id. at 1.
In the Motion, defendants assert: “None of [plaintiff’s] allegations raise an inference that
Senator Muse’s alleged conduct was ‘in [any] way dependent on state authority.’” Mem. at 10
(quoting Polk County, 454 U.S. at 318). In their view, even though Senator Muse was a State
official, he “was not acting within his authority as a State Senator when he commented to the
press about Mr. Mathis’s illegal campaign materials. Nor was he exercising any power granted
to him under State law when he ‘ordered’ Mr. Mathis to cease distributing his campaign
materials or when he summoned law enforcement.” Mem. at 10. In this regard, defendants note
that, as “a member of the State’s legislative branch of government, [Senator Muse] has no
authority to enforce the law or to direct the actions of local law enforcement and the Complaint
makes no allegation that he is a law enforcement official.”
Similarly, in the Reply,
defendants insist that Muse “took no official enforcement action that could be fairly attributable
to the State.” Id. at 7 (citing Filarsky, supra, 132 S. Ct. at 1661 (2012)) (quotation marks
Plaintiff challenges defendants’ position that Senator Muse did not act “under color of
law.” See Opp. at 13-15, 17-18. He asserts that Senator Muse “falsely informed the Sheriff’s
deputies, under the pretense or appearance of legal right . . . that he as Senator was the only
legal entity authorized to issue official ballots for the District.” Id. at 15.10 Further, plaintiff
Neither the Complaint nor a news article attached to it, which indicates that Senator
Muse made this assertion, specifically states that Muse made that remark to Sheriff’s deputies
during the course of the incident at the Oxon Hill library. See Complaint ¶ 54; id. Exh. E at 1.
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insists: “As a legislator and lawmaker, Defendant Muse deceptively and intentionally used the
power inherent in the office he holds to persuade both the Police Department and Deputy
Berryman to unconstitutionally harass, intimidate and seize Plaintiff’s campaign literature.”
Opp. at 17.
Plaintiff does not allege that Senator Muse, as a State legislator, possessed any actual law
Some courts have taken the position, including in cases involving
legislators, that government officials do not act “under color of state law” in connection with
actions that they have no legal authority to perform. See, e.g., Wilson v. Price, 624 F.3d 389,
393 (7th Cir. 2010) (“Because [defendant, an alderman] had no enforcement authority, none of
the actions taken to compel [plaintiff] to move the illegally parked cars were effectuated under
color of state law, as one cannot misuse power one does not possess.”); Gibson v. City of
Chicago, 910 F.2d 1510, 1518 (7th Cir. 1990) (“[W]e have found no authority for expanding this
concept of [acting under color or pretense of law] to encompass the actions of an official who
possessed absolutely no authority to act but nonetheless assumed the position of an imposter in
pretending that he did.”) (emphasis in original); see also Myers v. Bowman, 713 F.3d 1319,
1329-31 (11th Cir. 2013) (conduct by magistrate judge); Marion v. Groh, 954 F. Supp. 39 (D.
Conn. 1997) (conduct by selectwoman). But cf. Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997)
(suggesting that if members of a town board had “provided scurrilous information to the FBI . . .
in their official capacities, they might have been acting under color of law,” but affirming
dismissal of allegation for lack of proof).
When viewed in isolation, certain aspects of Senator Muse’s alleged conduct, including
the mere fact that he reported unlawful activity to the police, would fall short of occurring “under
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color of state law.” However, plaintiff alleges that Senator Muse did far more than merely report
wrongdoing. According to plaintiff, Senator Muse “ordered deputies . . . to confiscate Plaintiff’s
sample ballot and intimidate Plaintiff’s supporters under threat of arrest to cease and desist
distribution of Plaintiff’s sample ballot,” and “[u]nder the direction of [Senator Muse], the
Sheriff’s deputies intimidated Plaintiff and his supporters . . . .” Particularly in light of those
allegations, it would be premature to decide at this stage that Senator Muse did not act “under
color of state law” in connection with the Oxon Hill library incident.11
In the alternative, defendants argue that, even if plaintiff sufficiently alleged that Senator
Muse acted “under color of state law,” Muse is protected by qualified immunity. Mem. at 10.
To that end, defendants note that plaintiff acknowledges he was convicted of violating Maryland
election law in connection with his distribution of the Sample Ballot—which is the very conduct
about which Senator Muse complained. See Mem. at 10-11. Defendants add that, “given that no
court has questioned the constitutionality of Maryland’s election laws pertaining to campaign
finance disclosures, a reasonable official would not understand that efforts to stop an individual
from violating those State laws violated that individual’s constitutional rights.” Mem. at 11
(citing Bland, supra, 730 F.3d at 391). See also Reply at 8-9.
Plaintiff also invokes the principle that a private actor may be held liable under § 1983
for conspiring with a state official to violate a private citizen’s constitutional rights. Opp. at 14
(citing Dossett v. First State Bank, 399 F.3d 940, 950 (8th Cir. 2005)). In Dossett, the Eighth
Circuit made clear that, “[u]nder § 1983, a plaintiff must establish not only that a private actor
caused a deprivation of constitutional rights, but that the private actor willfully participated with
state officials and reached a mutual understanding concerning the unlawful objective of a
conspiracy.” Id. at 951 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)). Under
that standard, plaintiff’s allegations fall well short of plausibly alleging any such understanding
between Muse and either Deputy Berryman or any other law enforcement official.
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With respect to the qualified immunity argument, plaintiff insists that Senator Muse’s
“accusations of illegal activity” were based on Muse’s “personal beliefs and not on any legal
theory or statute.” Opp. at 20. Mathis argues that the Sample Ballot’s authority line did not
appear, on its face, to be deficient; that the “authority line on his campaign literature was not
adjudicated to be defective until April 12, 2011”; and that, at the time of Senator Muse’s
purportedly unlawful conduct, “no restraining order had been issued [and] there was no
indication in the press or otherwise that Plaintiff had violated any election laws.” Opp. at 20.
Moreover, in the Surreply, plaintiff argues, inter alia, that the notion advanced by defendants—
that Muse’s actions are not fairly attributable to the State—“militate[s] against their claim that
Senator Muse is entitled to qualified immunity.” Id. at 14.
Regarding this final point, I agree with plaintiff that defendants have not shown how
Senator Muse’s alleged actions are of the type that, when committed by a legislator, are entitled
to the protection of qualified immunity. That is because qualified immunity protects an official
for conduct that falls within “‘the scope of [the official’s] discretionary authority,’” and requires
a showing “‘that the conduct of which the plaintiff complains falls within the scope of the
defendant’s duties.’” Henry, supra, 501 F.3d at 377 n.2 (citation omitted). Because defendants
plainly have not established that Senator Muse’s actions fell within the scope of his discretionary
authority as a State senator, he does not enjoy here the protection afforded by qualified
immunity. Nevertheless, to state a claim under § 1983, plaintiff must still plausibly allege (and
ultimately prove) a violation of his federal rights. As discussed, infra, he fails to do so.
With respect to Deputy Berryman, defendants argue that she is entitled to qualified
immunity for her alleged conduct. Mem. at 11. They reiterate that plaintiff was convicted in
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State court of election law violations, does not challenge his conviction in this § 1983 action, and
“does not claim that the State’s election laws violate the Constitution.”
As a result,
defendants say, plaintiff’s “allegations that Deputy Berryman attempted to enforce valid State
election law by ordering him to cease and desist distributing the unlawful campaign materials do
not raise any inference that Deputy Berryman violated his clearly established constitutional
Defendants observe that “an investigative detention” runs afoul of the Fourth
Amendment only when it is not supported by reasonable suspicion. See Mem. at 12 (citing
United States v. Sokolow, 490 U.S. 1, 7 (1989) (“[T]he police can stop and briefly detain a
person for investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”)
(quoting Terry, 392 U.S. at 30)). According to defendants, plaintiff’s allegations indicate that,
“when Deputy Berryman encountered Mr. Mathis distributing his sample ballot, the deputy had
more than a reasonable suspicion that Mr. Mathis was violating State law; the deputy had
probable cause to believe Mr. Mathis was violating [E.L. § 13-401] and, thus, was guilty of a
misdemeanor” under Maryland law. Mem. at 12 (quotation marks omitted). As defendants note,
“[f]or probable cause to exist, there need only be enough evidence to warrant the belief of a
reasonable officer that an offense has been or is being committed; evidence sufficient to convict
is not required.” Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002).
Moreover, defendants maintain that plaintiff has identified no violation of his clearly
established constitutional rights based on Deputy Berryman’s conduct in “detaining him in order
to investigate his conduct, ordering him to cease his unlawful conduct, or threatening to arrest
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him if he did not abide by her lawful order.” Mem. at 13. To that end, defendants argue that
plaintiff committed a further violation of Maryland law by initially refusing to abide by Deputy
Berryman’s cease-and-desist order. See id. at 13-14 (citing Carter v. Jess, 179 F. Supp. 2d 534,
546 (D. Md. 2001); Md. Code (2012 Rep. Vol., 2013 Supp.) § 10-201(c)(3) of the Criminal Law
Article (making it a criminal offense for a person to “willfully fail to obey a reasonable and
lawful order that a law enforcement officer makes to prevent a disturbance to the public peace”)).
Notably, plaintiff does not challenge the assertion that he failed to obey a lawful order; rather, he
insists, albeit without citation to authority, that “a citizen has a legal right to verbally oppose or
challenge police activities without resisting arrest as long as Plaintiff was engaged in
constitutionally protected activities.” Opp. at 21.
In my view, plaintiff’s § 1983 claims against Senator Muse and Deputy Berryman suffer
from a crucial defect: the lack of any plausible allegation that the conduct of either defendant
violated the constitutional rights that plaintiff invokes. See 42 U.S.C. § 1983 (creating liability
for “the deprivation of . . . rights, privileges, or immunities secured by the Constitution and laws”
of the United States); Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997) (to state a
§ 1983 claim, “a plaintiff must establish three elements,” including “the deprivation of a right
secured by the Constitution or a federal statute”). As plaintiff’s allegations reflect, his claims
against Senator Muse and Deputy Berryman are largely grounded in the notion that the Sample
Ballots were legal as of September 6, 2010. However, I am not persuaded that plaintiff has
plausibly shown, particularly in light of Mr. Mathis’s criminal conviction for distributing the
Sample Ballot, how the conduct of either defendant, in response to Mathis’s distribution of that
very ballot, violated his constitutional rights.
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Plaintiff’s claims against Senator Muse and Deputy Berryman rest on several flawed
premises. For one, in connection with his claim against Senator Muse, plaintiff insists that
Muse’s report of wrongdoing was baseless, because at that time no TRO had issued and the
Sample Ballot had not yet been “adjudicated to be defective.” Opp. at 20. Similarly, as to
Deputy Berryman, plaintiff argues that because the encounter at the Oxon Hill library occurred
“prior to the issuance of the temporary restraining order by Judge Martin to cease and desist,”
Deputy Berryman “was not enforcing any legal order . . . .” Id. at 18; see also id. at 20 (noting
that at the time of Deputy Berryman’s actions, “it had not been adjudicated or determined that
Plaintiff had violated any election laws; therefore it would be impossible for Defendant to be
enforcing a law that legally had not been determined to have [been] violated”). 12
arguments are unpersuasive. A TRO or other court order is not a prerequisite for an investigative
detention or arrest, where reasonable suspicion or probable cause otherwise can be established.
Under plaintiff’s logic, a wide range of investigative activity, which necessarily precedes the
criminal prosecution of a defendant, could be rendered unlawful.
Second, plaintiff insists that he was convicted only “because the treasurer listed on the
literature, Charles Summers, falsely testified that Plaintiff did not have permission to use his
name.” Opp. at 21. See also Surreply at 15 (asserting that, in the absence of Summers’
“perjured testimony,” the Sample Ballot “would have been in total conformance with the law”).
Arguably, that assertion amounts to a legal conclusion couched as a factual allegation, of the sort
This argument raised by plaintiff may derive from First Amendment cases concerning
purportedly obscene materials, for which there exist certain “procedural safeguards [that] must
be employed before expressive materials can be seized as ‘obscene.’” Fort Wayne Books, Inc. v.
Indiana, 489 U.S. 46, 62 (1989) (concluding that the seizure of “literally thousands of books and
films” was improper, as it occurred before any determination that the materials were “obscene”).
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that this Court is not required to accept as true. See Papasan, supra, 478 U.S. at 286.13 And, any
claim based upon Summers’s purported perjury, if raised, did not prevail in the Maryland state
appellate courts; plaintiff’s criminal conviction was affirmed on appeal.
As to the First Amendment claims, plaintiff argues that Senator Muse, through his direct
actions and in collaboration with the Sheriff’s Department, violated plaintiff’s rights by
interfering with the distribution of the Sample Ballot. Likewise, plaintiff insists that Deputy
Berryman’s “seizure of Plaintiff’s sample ballot violated Plaintiff’s right to disseminate core
political speech.” Opp. at 19.14 However, what plaintiff’s allegations do not establish is how a
First Amendment violation occurs where defendants’ actions targeted a Sample Ballot shown to
violate Maryland election law. That is particularly so where plaintiff has offered only a wholly
conclusory theory as to why the Sample Ballot was lawful as of September 6, 2010, and where
plaintiff has not questioned the constitutionality of E.L. § 13-401(a).
Plaintiff’s argument also rings hollow in light of his allegations in Count IV that
enforcement action should have been taken against other candidates and campaign committees
for what plaintiff portrays as the exact same conduct for which he was charged. See Complaint
The Complaint contains no direct allegation that Deputy Berryman herself seized any
copies of the Sample Ballot. Rather, plaintiff alleges, in the context of his claims against Senator
Muse, that, “[u]nder the direction of” Muse, “the Sheriff’s deputies intimidated Plaintiff and his
supporters by,” among other things, “confiscating their literature[.]” Complaint ¶ 58. Although
plaintiff raises a number of specific allegations against Deputy Berryman, see id. ¶¶ 61-66,
absent from those allegations are any indication that she seized any copies of the Sample Ballot.
Defendants do not address the seizure or confiscation in their Motion or Reply. Notably, in the
Opposition, plaintiff asserts that Deputy Berryman did, in fact, seize copies of the Sample Ballot.
See Opp. at 19; see also id. at 17. However, plaintiff cannot supplement the allegations found in
his Complaint by adding allegations through the Opposition. See Mylan Laboratories, Inc. v.
Akzo, N.V., 770 F. Supp. 1053, 1068 (D. Md. 1991) (citing Car Carriers, Inc. v. Ford Motor Co.,
745 F.2d 1101 (7th Cir. 1984)), aff’d, 2 F.3d 56 (4th Cir. 1993); see also Zachair Ltd. v. Driggs,
965 F. Supp. 741, 748 n.4 (D. Md. 1997), aff’d, 141 F.3d 1162 (4th Cir. 1998).
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One question relevant to the Fourth Amendment aspect of plaintiff’s claims is whether
the Sample Ballot’s illegality was established at the time of defendants’ actions on September 6,
2010. In this regard, the parties sharply disagree as to whether the Sample Ballot was facially
unlawful. Defendants argue that, “[o]n their face,” plaintiff’s Sample Ballots violated E.L. § 13401(a)(1). See Mem. at 11-12. Under that provision, the “authority line” of such materials is
generally required to include “the name and address of the treasurer of each campaign finance
entity responsible for the campaign material[.]” The Sample Ballot attached to the Complaint
plainly contains no address information. See Complaint Exh. D. Plaintiff disputes defendants’
characterization, arguing that it was “literally impossible” for an officer to believe that the
Sample Ballot was defective and that, to the contrary, the Sample Ballot “on its face was
clearly compl[ia]nt with § 13-401(a)(1).” See Opp. at 21. Significantly, E.L. § 13-401(a)(2)
provides: “The authority line may omit an address that is on file with the State Board or a local
board.” To be sure, plaintiff does not allege that such an address was on file. Nevertheless, it
does appear, in light of that exception, that the Sample Ballot’s illegality was not necessarily
apparent on its face.
In any event, the issue of the Sample Ballot’s facial legality is not dispositive. This is
because plaintiff’s own allegations indicate that the deputies’ actions followed one or more
reports, including by Senator Muse, that the Sample Ballot being distributed was illegal.
Because Senator Muse was present on the scene, defendants say, Deputy Berryman would have
been able to assess his credibility, a factor that, in defendants’ view, supports the reasonableness
of the deputy’s actions. See Reply at 10 (citing United States v. Griffin, 589 F.3d 148, 152 (4th
Cir. 2009) (factors relevant to whether an informant’s tip supports reasonable suspicion include
- 40 -
whether “the officer had the opportunity to observe the informant’s credibility and demeanor”;
“whether the officer could later hold the informant accountable for making false accusations”;
and “whether the informant reported to the police in public, exposing himself to retaliation from
the suspect and increasing the informant’s reliability”), cert. denied, ___ U.S. ___, 131 S. Ct.
1599 (2011)). See also, e.g., United States v. Lawing, 703 F.3d 229, 236 (4th Cir. 2012)
(reasonable suspicion existed where confidential informant “had relayed information to the
police in a face-to-face setting thereby affording them the clear ability to judge his credibility
and corroborate the information he provided”), cert. denied, ___ U.S. ___, 133 S. Ct. 1851
(2013); United States v. Perkins, 363 F.3d 317, 323 (4th Cir. 2004) (in a face-to-face encounter
with an informant, police can “judge the credibility of the tipster firsthand and thus confirm
whether the tip is sufficiently reliable to support reasonable suspicion”), cert. denied, 543 U.S.
1056 (2005); United States v. Miller, 925 F.2d 695, 699 (4th Cir. 1991) (probable cause existed
where police sufficiently corroborated a tip from an unknown informant), cert. denied, 502 U.S.
Plaintiff’s allegations also indicate that Deputy Berryman observed plaintiff and his
supporters engaging in the distribution of the Sample Ballots. Under Maryland law, “[a] police
officer may arrest without a warrant a person who commits or attempts to commit a felony or
misdemeanor in the presence or within the view of the police officer.” Md. Code (2008 Repl.
Vol., 2013 Supp.), § 2-202 of the Criminal Procedure Article (“C.P.”). Although a violation of
E.L. § 13-401(a) is only a misdemeanor, see id. § 13-603, it is an offense that occurred in view of
the deputy, and for which arrest is authorized under C.P. § 2-202. Notably, plaintiff alleges that
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the deputies threatened him and his supporters with arrest, but he does not allege that either he or
any supporter was actually placed under arrest.
Also relevant to the Fourth Amendment aspect of Count I is plaintiff’s allegation that
Deputy Berryman “acted solely based on Senator Muse’s false allegations.” Opp. at 18-19.
However, in my view, plaintiff has failed to allege facts plausibly showing how Senator Muse’s
allegations were false.
After all, plaintiff was convicted of three election law counts in
connection with his distribution of the Sample Ballot. And, in support of plaintiff’s claim that
the Sample Ballot was legal as of September 6, 2010, plaintiff has offered nothing more than a
bald claim that he was convicted only because of perjured testimony from Charles Summers.
Regarding the other assertions that plaintiff levies against Deputy Berryman, I am not
persuaded that he has identified any constitutional violation based on vague allegations of her
purported “harassment” of plaintiff. See Complaint ¶ 65. Cf. Carter, supra, 179 F. Supp. 2d at
546 (officer’s “rude, unprofessional, and overly aggressive” conduct did not undermine probable
cause or pose a barrier to qualified immunity). To the extent that plaintiff alleges that Deputy
Berryman questioned plaintiff (as opposed to only his supporters) regarding his citizenship
status, and it is far from clear that he does, see Complaint ¶ 64, plaintiff’s allegations fail
plausibly to allege any constitutional violation based on that conduct. See Muehler v. Mena, 544
U.S. 93, 100-101 (2005). Moreover, in the Opposition, plaintiff fails to raise any argument in
response to defendants’ claim that such questioning did not violate a constitutional right of
Mathis. Rather, plaintiff merely reiterates his factual allegation found in the Complaint. See
Opp. at 17, 19. As such, plaintiff has abandoned that aspect of his claim.
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Finally, even assuming that plaintiff has plausibly identified a constitutional violation by
Deputy Berryman, she would be entitled to qualified immunity in connection with her conduct at
the Oxon Hill library. Qualified immunity “protects all but the plainly incompetent or those who
knowingly violate the law,” and it safeguards “law enforcement officers from bad guesses in
gray areas,” by “ensur[ing] that they are liable only for transgressing bright lines.” Waterman v.
Batton, 393 F.3d 471, 476 (4th Cir. 2005) (citations and quotation marks omitted). See Malley v.
Briggs, 475 U.S. 335, 341 (1986); Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th Cir. 2013).
Here, plaintiff fails to allege facts to show that a reasonable official in Deputy Berryman’s shoes
would have understood that the challenged conduct was unlawful. See Reichle, 132 S. Ct. at
2093 (citation omitted). Deputy Berryman did not transgress a bright line when, in response to a
complaint about the legality of the Sample Ballot, she acted in the manner that plaintiff alleges.
F. Count II
In connection with Count II, titled “False and Defamatory Statements against Plaintiff in
the Press,” plaintiff alleges that Attorney General Gansler “publicly accused [him] via press
releases and press conferences of being guilty of fraud and fraudulent acts,” even though
“Plaintiff was never investigated, charged or prosecuted for fraud.” Complaint ¶ 69. According
to plaintiff, the “pre-trial publicity” created by Attorney General Gansler “destroyed the integrity
of the trial resulting in Plaintiff’s conviction.” Id. ¶ 75. See also id. ¶ 77. Plaintiff also alleges
that Gansler’s alleged misrepresentations to the press and the public caused “irreparable harm to
Plaintiff’s reputation and standing in the community”; “caused Plaintiff to suffer emotional
distress”; and “irreparably destroyed Plaintiff’s . . . ability to earn a livelihood.” Complaint
¶¶ 71, 78; see generally id. ¶¶ 67-80.
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Defendants seek dismissal of Count II on the grounds that Attorney General Gansler is
entitled to qualified immunity and for failure to state a claim. Mem. at 15. As both parties
acknowledge, see Complaint ¶ 68, Mem. at 15, a prosecutor’s statements to the press are subject
to qualified immunity. See Buckley, supra, 509 U.S. at 277-78; Carter v. Burch, 34 F.3d 257,
262 (4th Cir. 1994).
Significantly, in the section of the Opposition that purportedly pertains to Count II, see
Opp. at 22-31, plaintiff does not refute defendants’ legal arguments challenging the viability of
Instead, plaintiff raises arguments concerning an alleged conspiracy involving
McDonough, Wherthey, Gansler, Muse, DeMarinis, and others associated with Maryland’s
“Democratic political machine,” to thwart Mathis’s “successful political campaign and his future
pursuit of elected office.” Opp. at 24; see generally id. at 22-31. Because the Opposition lacks
any response to defendants’ arguments that Count II fails to state a claim upon which relief may
be granted, and that Attorney General Gansler is entitled to qualified immunity, dismissal of
Count II is warranted.
In any event, Court II’s allegations against Attorney General Gansler fail to state a claim.
In connection with Count II, plaintiff relies on Exhibit F of the Complaint, which consists of two
separate documents. See Complaint ¶ 69. The first is a press release, dated October 10, 2010,
which announces the filing of criminal charges against Mr. Mathis, summarizes the allegations
against him, and provides the maximum penalties associated with the charges. See id. Exh. F. at
1. Significantly, the press release makes no mention of “fraud.” Nor does it otherwise suggest
that plaintiff’s conduct amounted to fraud. Moreover, the press release makes clear, in its
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“A criminal charge is merely an accusation of wrongdoing and the
defendant is presumed innocent unless the State proves his guilt beyond a reasonable doubt.” Id.
The second document found in Exhibit F is a news item that, like the press release,
contains no statement attributable to the Attorney General stating that Mathis committed “fraud.”
See id. at 2-3 (Daniel Valentine, “Former Prince George’s council candidate denies wrongdoing
related to campaign fliers,” Gazette.Net, Oct. 14, 2010, available at http://ww2.gazette.net/
stories/10142010/prinnew150108_32533.php (last accessed Aug. 7, 2014)). Rather, the article
indicates that a Gansler spokeswoman stated, with apparent reference to plaintiff’s case: “‘[Y]ou
have to have a ballot authority . . . . In this case, it was all bogus.’” Complaint Exh. at 3 (ellipsis
Notably, “‘pretrial publicity—even pervasive, adverse publicity—does not inevitably
lead to an unfair trial.’” Skilling v. United States, 561 U.S. 358, 384 (2010) (quoting Nebraska
Press Assn. v. Stuart, 427 U.S. 539, 554 (1976)). Regarding Mathis’s right to a fair trial,
defendants argue that plaintiff fails to allege how he was deprived of that right. Mem. at 15-16.
To that end, defendants point out that the alleged statements attributed to Attorney General
Gansler “do not contain any accusations of ‘fraud.’” Id. at 15. Particularly given the mild nature
of the statements at issue, defendants argue, and I agree, that plaintiff “failed to allege any facts
that would raise an inference that he did not receive a fair trial,” and therefore “failed to allege a
deprivation of his federal rights.” Mem. at 15.
Defendants also argue that plaintiff has failed to state a claim based on his allegation that
Gansler’s statements resulted in “irreparable harm to Plaintiff’s reputation and standing in the
community” as well as his “ability to earn a livelihood.” Complaint ¶¶ 71, 78. Of relevance to
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that claim, in Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 314-15 (4th Cir. 2012), the Fourth
“[T]he Supreme Court has required plaintiffs in cases involving allegedly
defamatory statements by the government to show more than reputational injury in order to
prevail on a constitutional claim.” This is because, under Paul v. Davis, 424 U.S. 693 (1976),
“injury to reputation by itself [is] not a ‘liberty’ interest protected under the Fourteenth
Amendment.” Siegert v. Gilley, 500 U.S. 226, 233 (1991). Accordingly, because plaintiff has
failed to allege how “his reputational injury was accompanied by a state action that ‘distinctly
altered or extinguished’ his legal status,” this aspect of Count II also fails to state a claim. See
Shirvinski, 673 F.3d at 315 (citing Paul, 424 U.S. at 711).
Further, to the extent plaintiff seeks in his Opposition to transform Count II into a vehicle
to raise additional conspiracy allegations, that effort fails as both procedurally improper and
inadequately pleaded. Although the heading of Count II makes reference to “Civil Conspiracy,”
the remainder of Count II focuses on Attorney General Gansler’s conduct in making allegedly
false and defamatory statements to the press about Mr. Mathis. By contrast, the portion of the
Opposition that ostensibly pertains to Count II portrays an alleged conspiracy involving
McDonough, Wherthey, Gansler, Muse, DeMarinis, and others associated with Maryland’s
“Democratic political machine,” to block plaintiff’s “successful political campaign and his future
pursuit of elected office.” Opp. at 24; see id. at 22-31. To the extent plaintiff seeks to amend his
Complaint by adding new allegations by way of his Opposition, that effort must fail, as “‘it is
axiomatic that the complaint may not be amended by the briefs in opposition to a motion to
dismiss.’” Mylan Laboratories, Inc. v. Akzo, N.V., 770 F. Supp. 1053, 1068 (D. Md. 1991)
(quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)), aff’d, 2
- 46 -
F.3d 56 (4th Cir. 1993); see also Zachair Ltd. v. Driggs, 965 F. Supp. 741, 748 n.4 (D. Md.
1997) (stating that a plaintiff “is bound by the allegations contained in its complaint and cannot,
through the use of motion briefs, amend the complaint”), aff’d, 141 F.3d 1162 (4th Cir. 1998).
As for the substance of plaintiff’s allegations, he has plainly failed to state an actionable
With respect to claims for civil conspiracy brought under 42 U.S.C.
§ 1985(3), the Fourth Circuit has explained that, to state a claim, a plaintiff must show:
“(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.”
A Society Without A Name, supra, 655 F.3d at 346 (quoting Simmons v. Poe, 47 F.3d 1370, 1376
(4th Cir. 1995)). Further, a plaintiff “‘must show an agreement or a meeting of the minds by
[the] defendants to violate the [plaintiff’s] constitutional rights.’” Id. at 346 (quoting Simmons,
47 F.3d at 1377; modifications and quotation marks omitted in A Society Without A Name).
Similarly, “‘[t]o establish a conspiracy claim under § 1983, a plaintiff ‘must present
evidence that [the defendants] acted jointly in concert and that some overt act was done in
furtherance of the conspiracy which resulted in [a] deprivation of a constitutional right.” Massey
v. Ojaniit, --- F.3d ----, 2014 WL 3563221, at *11 (4th Cir. July 21, 2014) (quoting Hinkle v. City
of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996)). Accord Glassman v. Arlington County, VA,
628 F.3d 140, 150 (4th Cir. 2010). “An essential element for a claim of conspiracy to deprive
Plaintiff of a constitutional right is an agreement to do so among the alleged co-conspirators.”
Brightwell v. Moultrie, 2013 WL 4495793, at *7 (D. Md. Aug. 19, 2013) (Chasanow, J.) (citing
Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1006-07 (4th Cir.), cert. denied, 484
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U.S. 897 (1987)); see also Simmons, 47 F.3d at 1377 (noting that a conspiracy claimant “must
show an agreement or a ‘meeting of the minds’ by defendants to violate the claimant’s
constitutional rights”). And, “‘courts have  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.’” Simmons, 47 F.3d at 1377 (citation omitted; modification in
In my view, plaintiff falls far short of pleading any “agreement or meeting of the minds”
among defendants. Notwithstanding the voluminous allegations and arguments found in the
Complaint and in plaintiff’s Opposition and Surreply, those assertions amount to little more than
“‘parallel conduct and a bare assertion of a conspiracy.’” A Society Without A Name, 655 F.3d at
347 (quoting Twombly, supra, 550 U.S. at 556). See also, e.g., Brightwell, 2013 WL 4495793, at
*7. In addition, a § 1985(3) conspiracy claim requires the defendants to be “motivated by a
specific class-based, invidiously discriminatory animus.” See Simmons, 47 F.3d at 1376
(emphasis added). Plaintiff’s “class of one” theory is not based on his membership in any
protected class, however. Therefore, the § 1985(3) aspect of his conspiracy claim must fail for
that reason as well. See C & H Co. v. Richardson, 78 F. App’x 894, 901-02 (4th Cir. 2003) (per
curiam). As such, the conspiracy portion of Count II must be dismissed.
G. “Class of One”/“Selective Enforcement” claims (Counts I and III)
Plaintiff also alleges a violation of his rights under the Equal Protection Clause of the
Fourteenth Amendment, as the member of a “class of one.” Although Count I focuses on the
TRO Motion and the Oxon Hill library incident, plaintiff also raises equal protection and
“Selective Enforcement” claims in that count. See Complaint ¶ 14. The heart of plaintiff’s
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“class of one” theory is found in Count III, which alleges unconstitutional “Selective Treatment”
of plaintiff, as a “Class of One,” in violation of his equal protection rights. Specifically, plaintiff
maintains that “while others similarly situated have not been proceeded against because of
conduct of the type forming the basis of the charges against him, he has been singled out for
prosecution and unlawful oppression.” Complaint ¶ 81. To that end, plaintiff cites various
complaints he filed with the Maryland Board of Elections, State Prosecutor, and Office of the
Attorney General regarding the conduct of other political candidates, including Senator Muse
and Attorney General Gansler, in their capacity as political candidates. In plaintiff’s view, those
candidates committed the same acts that he did, yet faced lesser or no consequences for their
conduct. See Complaint ¶¶ 84-91.
Also in the context of Count III, plaintiff accuses Attorney General Gansler of
“Investigative Misconduct” by prosecuting plaintiff while declining to investigate or prosecute
other “similarly situated individuals or entities that violated the same election laws as the
Plaintiff was charged with violating.” See Complaint ¶ 96; see generally ¶¶ 95-104. Notably,
although the paragraphs encompassing Count III cite only acts of DeMarinis and Gansler,
plaintiff alleges that they “conspired with the other named defendants in this complaint to pursue
the vindictive and malicious prosecution of Plaintiff . . . .” Id. ¶ 93.
The Fourteenth Amendment’s Equal Protection Clause “commands that no State shall
‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a
direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216
(1982)). However, the Equal Protection Clause does not itself provide a private cause of action.
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Rather, 42 U.S.C. § 1983 is the mechanism that “provides a cause of action for all citizens
injured by an abridgment” of the Equal Protection Clause. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 119-20 (1992).
As noted, 42 U.S.C. § 1983 establishes a cause of action
against any “person” who, acting under color of state law, “subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws” of the United
In Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), the Supreme Court
recognized that a plaintiff, although not invoking membership in a protected class, may prevail
on an equal protection claim by showing “that she has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in treatment.” See
Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 328 (4th Cir. 2005));
Maages Auditorium v. Prince George’s County, Md., --- F. Supp. 2d ----, 2014 WL 884009, at
*17 (D. Md. Mar. 5, 2014); see also, e.g., Lauth v. McCollum, 424 F.3d 631, 633 (7th Cir. 2005)
(“The paradigmatic ‘class of one’ case,  sensibly conceived, is one in which a public official,
with no conceivable basis for his action other than spite or some other improper motive
(improper because unrelated to his public duties), comes down hard on a hapless private
However, in Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008), the
Supreme Court limited the availability of the “class of one” theory, concluding it does not apply
in the context of public employment. The Court reasoned, id. at 603:
There are some forms of state action . . . which by their nature involve
discretionary decisionmaking based on a vast array of subjective, individualized
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assessments. In such cases . . . treating like individuals differently is an accepted
consequence of the discretion granted. In such situations, allowing a challenge
based on the arbitrary singling out of a particular person would undermine the
very discretion that such state officials are entrusted to exercise.
Taking a cue from the Supreme Court’s reasoning, a number of courts have questioned
whether “class of one” claims in the context of discretionary decision-making remain viable after
Engquist. See, e.g., Rapp v. Dutcher, 557 F. App’x 444, 449 (6th Cir. 2014); Flowers v. City of
Minneapolis, Minn., 558 F.3d 794, 799-800 (8th Cir. 2009) (“[W]e conclude that while a police
officer’s investigative decisions remain subject to traditional class-based equal protection
analysis, they may not be attacked in a class-of-one equal protection claim.”); United States v.
Moore, 543 F.3d 891, 898-99 (7th Cir. 2008) (“[A] class-of-one equal protection challenge . . . is
just as much a ‘poor fit’ in the prosecutorial discretion context as in the public employment
context” because “there is no readily apparent standard against which departures can be assessed
for arbitrariness.”); see also Uzoukwu v. Prince George’s Community College Bd. of Trustees,
2013 WL 4442289, at *9-10 (D. Md. Aug. 15, 2013) (Chasanow, J.) (dismissing class-of-one
equal protection claim as not viable after Engquist in the public education context).
To date, the Fourth Circuit has not addressed the impact of Engquist on the viability of
class-of-one equal protection claims. See Sansotta v. Town of Nags Head, 724 F.3d 533, 542
n.13 (4th Cir. 2013) (observing that other circuits have discussed the impact of Engquist on
class-of-one claims, but concluding that “such discussion is not necessary to resolving the claim
before us”). Nevertheless, subsequent to Engquist, the approaches of other courts cast significant
doubt on the viability of a class-of-one theory in this context.
Even assuming, arguendo, that a “class of one” equal protection claim remains viable,
defendants argue that this claim must be dismissed, see Mem. at 17, because plaintiff has failed
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adequately to allege that he “has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.” Olech, 528 U.S. at
564 (quotation marks omitted). See also Rapp, 557 F. App’x at 449-50 (assuming that a “class
of one” claim survives Engquist, a plaintiff “must plead and prove” both intentional mistreatment
and a lack of a rational basis for a difference in treatment, by alleging “enough factual matter to
plausibly show there was not ‘any conceivable basis’ that rationally supported the enforcement
of the” provisions at issue) (emphasis in original; citation omitted).
Before turning to the substance of plaintiff’s allegations, I pause to comment on
plaintiff’s conspiracy claims relating to defendants’ alleged selective enforcement. As indicated
with regard to the conspiracy allegations in Count II, the Fourth Circuit has explained that, in
order to state a claim for a civil conspiracy under § 1985(3), a plaintiff must show, inter alia,
“‘an agreement or a meeting of the minds by [the] defendants to violate the [plaintiff’s]
constitutional rights.’” A Society Without A Name, supra, 655 F.3d at 346 (quoting Simmons,
supra, 47 F.3d at 1377; modifications and quotation marks omitted in A Society Without A
Name). In my view, plaintiff has plainly failed to plead any “agreement or meeting of the
minds” pertaining to selective enforcement against Mathis. Notwithstanding the voluminous
allegations and arguments found in the Complaint and in plaintiff’s Opposition and Surreply,
those assertions amount to little more than “‘parallel conduct and a bare assertion of a
conspiracy.’” A Society Without A Name, 655 F.3d at 347 (quoting Twombly, supra, 550 U.S. at
556). See also, e.g., Brightwell, 2013 WL 4495793, at *7. Accordingly, that aspect of Count III
must be dismissed.
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Regarding Mr. DeMarinis, identified as the Director of Candidacy and Campaign Finance
for the Maryland State Board of Elections, defendants argue that plaintiff fails to allege any
enforcement action by DeMarinis taken against Mathis, and that plaintiff cannot state a viable
claim wholly premised on DeMarinis’s failure to take action against others. Mem. at 18. Of
relevance to that final point, the Supreme Court concluded in Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973): “[I]n American jurisprudence at least, a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.”
In the Opposition, plaintiff disputes defendant’s claim that DeMarinis took no
enforcement action against him. Opp. at 33. In particular, plaintiff insists that DeMarinis, “in
his capacity as Director of Candidacy and Finance for the board of elections is the individual
responsible for initiating any investigative or enforcement action,” and thus was the “‘moving
force’ behind the investigative and enforcement actions perpetrated against the Plaintiff.” Id.
Plaintiff also asserts: “DeMarinis admitted in Court testimony that he received and reviewed
complaints against Plaintiff and his organization, Citizens for Change, for alleged distribution of
fraudulent campaign material.” Opp. at 34. However, these allegations are absent from the
Complaint. As stated earlier, “‘it is axiomatic that the complaint may not be amended by the
briefs in opposition to a motion to dismiss.’” Mylan Laboratories, Inc., 770 F. Supp. at 1068
(quoting Car Carriers, Inc., 745 F.2d at 1107); see also Zachair Ltd., 965 F. Supp. at 748 n.4.
Plaintiff also insists in the Opposition that DeMarinis “did not refer Plaintiff’s complaints
against similarly situated individuals to either” the State Prosecutor or the Office of the Attorney
General. Opp. at 34. That assertion, however, is contradicted by plaintiff’s own allegations in
the Complaint. Specifically, plaintiff alleges that he “filed a specific complaint against Senator
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C. Ant[h]ony Muse with the Maryland Board of Elections” and others, alleging that Muse
committed “the exact same violation of the election law that Plaintiff was charged, prosecuted
and convicted of”; that the “Maryland Board of Elections as required by law also forwarded this
election violation by Senator Muse to the State Prosecutor’s office”; and that it was the Office of
the State Prosecutor—which is not a defendant in this suit—that “declined to prosecute Senator
Muse.” Complaint ¶¶ 87-88. See also id. Exh. J (memorandum from DeMarinis, dated Oct. 23,
2010, indicating that alleged authority line violation by campaign committee associated with
Senator Muse had been referred by DeMarinis to the Office of the State Prosecutor).
As indicated, defendants also argue that dismissal of plaintiff’s selective enforcement and
class-of-one allegations is required because plaintiff has failed adequately to allege that he “has
been intentionally treated differently from others similarly situated and that there is no rational
basis for the difference in treatment.” Olech, 528 U.S. at 564. In his Complaint and briefing,
plaintiff cites multiple examples of acts by other candidates and campaign committees that, in his
view, were no different than the conduct for which he was charged. However, in several
instances, plaintiff has merely alleged in conclusory terms that another candidate committed, yet
was not prosecuted for, the same election law violation as Mathis. See Complaint ¶ 84 & Exh. H
(regarding alleged violation by Obie Patterson); Complaint ¶ 86 & Exh. I at 3-5, 9 (regarding
alleged violations by Archie O’Neil, Mark Spencer, Steven Morris, C. Anthony Muse, Obie
Patterson, and Jay Walker); Complaint Exh. L. at 1-2 (regarding alleged violations by Melvin
High and Michael Jackson). Moreover, among several of the other candidates and entities,
plaintiff alleges that some violated only other provisions of Maryland election law.
Complaint ¶ 90 (alleging that Gansler violated E.L. § 13-235); id. ¶ 91 & Exh. I at 6 (alleging
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that Muse violated E.L. §§ 13-202 and 13-207); see also Exh. I at 11-12 (alleging violations of
E.L. §§ 229 and 601).
Plaintiff’s assertions regarding Senator Muse are also illustrative. Specifically, plaintiff
maintains that, although Muse committed “the exact same violation of the election law that
Plaintiff was charged, prosecuted and convicted of,” Muse’s campaign committee was given an
opportunity “to bring their campaign literature in compliance with the law within thirty (30)
days.” Complaint ¶ 87 (citing id. Exh. J at 1).
However, as plaintiff’s own allegations and exhibits reflect, it is apparent that Senator
Muse and other associated candidates purportedly engaged in conduct distinct from the
allegations that Mathis faced. As reflected in a letter sent by Mathis to the Office of the Attorney
General, dated November 10, 2010, Senator Muse’s campaign materials bore the name of a
campaign committee similar to one that, by the time of Mathis’s complaints, had already
registered with the State. See Complaint Exh. N (ECF 1-14) at 3 (acknowledging that the “26th
District Slate” registered with the State on September 1, 2010); id. Exh. I at 2 (same); see also
Complaint ¶ 22.
Also relevant is a letter from the Office of the State Prosecutor, dated
November 2, 2010, see Complaint Exh. K (ECF 1-11), which provided three reasons as to why
the State Prosecutor was declining to bring charges against Senator Muse’s campaign committee:
This Office has reviewed the campaign committee’s materials and found them to
be substantially in compliance with the Election Law Article’s authority line
strictures. As the committee has not been previously referred to this office for
any such violations and appears to be making every effort to comply with the
spirit, if not the letter of the law, this office is declining to prosecute in this
In contrast, as plaintiff acknowledges, a press release from the Office of the Attorney
General “stated that one of the reasons Plaintiff was being prosecuted was because ‘Citizens for
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Change . . . is not registered with the State Board of Elections, and does not exist as a campaign
finance entity in Maryland [as] defined under Maryland [l]aw.’” Complaint ¶ 92 (quoting id.
Exh. O at 3, ECF 1-15, press release dated Oct. 8, 2010). Indeed, plaintiff never alleges that
Citizens for Change ever registered with the State. To the contrary, a news article that plaintiff
attached to the Complaint states: “Mathis said a resident group,” which he apparently believed
Citizens for Change qualified as, “does not have to be registered with the board of elections to
circulate campaign literature because it’s freedom of speech.” Complaint Exh. E at 3. Another
aspect of plaintiff’s Sample Ballot, referenced in a number of exhibits, is that the ballot suggests
that candidates have endorsed other candidates who they did not, in fact, support. See, e.g., TRO
Motion at 2; Complaint Exh. E. at 1-3 (news articles).
In other words, plaintiff’s own allegations reflect several factors, which he has not
disputed, that differentiate his conduct from the acts of the other candidates whose conduct he
cites in connection with the “class of one” claim. Given these circumstances, plaintiff falls well
short of alleging “enough factual matter to plausibly show there was not ‘any conceivable basis’
that rationally supported the enforcement of” Maryland election law. See Rapp, 557 F. App’x at
449-50; see also, e.g., Herman v. Lackey, 309 F. App’x 778, 785 (4th Cir. 2009) (per curiam)
(affirming dismissal of “class of one” equal protection claim, where “‘one can easily hypothesize
‘rational’ scenarios for [defendant’s] alleged conduct’”) (quoting district court opinion).15
Defendants maintain that plaintiff’s State conviction bars any malicious prosecution
claim. Mem. at 21 n.5. In his Surreply, plaintiff disputes that he is pursuing a claim of malicious
prosecution. Id. at 19-20. In any event, the Fourth Circuit addressed malicious prosecution
claims in Snider v. Seung Lee, 584 F.3d 193, 199 (4th Cir. 2009) (citations omitted), explaining
that although “it is not entirely clear whether [there is] a separate constitutional right to be free
from malicious prosecution, if there is such a right, the plaintiff must demonstrate . . . favorable
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Defendants also argue, see Mem. at 17, and I agree, that to the extent plaintiff has stated a
“class of one” equal protection claim, they are entitled to qualified immunity in connection with
their enforcement decisions. Given the uncertainty after Engquist regarding “class-of-one”
claims, and the discretionary and individualized nature of decision-making in the context of
enforcing Maryland’s election laws, I am persuaded that plaintiff has failed to allege any right
that, for a member of a “class of one,” was “sufficiently clear” such that “‘every reasonable
official would [have understood] that” their enforcement actions “‘violate[d] that right.’”
Reichle, supra, 132 S. Ct. at 2093 (2012) (citation omitted). Accordingly, plaintiff’s “class of
one” equal protection claims raised in Counts I and III will be dismissed.
H. Count IV
In Count IV, plaintiff raises a Fourteenth Amendment due process claim under § 1983
against Attorney General Gansler, based upon an alleged lack of jurisdiction to criminally
prosecute plaintiff in State court. See Complaint ¶¶ 105-15. In particular, plaintiff insists that
the Office of the State Prosecutor or a State’s Attorney’s Office, rather than the Office of the
Attorney General, is authorized to prosecute alleged election law violations. See id. ¶¶ 107-08.
In this regard, he cites several provision of the Election Law Article, § 602(c) and § 13-604(b),
as well as the State Government Article, §§ 9-1203 to 1205. Complaint ¶ 107. Indeed, E.L.
§ 602(c) and § 13-604(b) refer to criminal and civil enforcement by the State Prosecutor and by a
State’s Attorney, but not by the Attorney General. As for the three State Government Article
provisions, §§ 9-1203 to 1205, those provisions were repealed as of 2008 and replaced by
termination of the criminal proceeding . . . .” Because plaintiff does not allege that his State
conviction was reversed, a malicious prosecution claim must fail.
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Criminal Law Article, §§ 14-107 through 109, which address the authority of the Office of the
Also relevant is an exhibit attached to plaintiff’s Opposition as Exhibit B (ECF 11-2), a
letter dated September 7, 2010. In that letter, the State’s Attorney for Prince George’s County,
Glenn F. Ivey, wrote to Attorney General Gansler under the subject line, “Fake Sample Ballots.”
In the letter, Ivey advised: “While my office handles criminal prosecutions, I believe that your
office [that is, the Attorney General’s Office] is best suited to pursue the possible prosecution of”
individuals involved with the “[f]ake sample ballots.” Id. Further, Ivey stated: “Since I am
active in [Prince George’s] County politics and candidates whom I have endorsed may be
affected, my recusal from the investigation and possible prosecution in this matter is
In the Motion, defendants argue that Count IV amounts to an effort by plaintiff to
challenge and “relitigate” his State criminal case. Mem. at 21. Defendants observe that plaintiff
does not allege any procedural violation that occurred in the course of his criminal trial and,
further, that plaintiff “acknowledges that the State’s Attorney or Office of the State Prosecutor
could have prosecuted him for the same conduct.” Mem. at 22 (citing Complaint ¶ 107). If
plaintiff believed jurisdiction was lacking, defendants say, the “proper forum for bringing this
jurisdictional challenge was in the State court proceedings.”
Mem. at 22.
defendants, because plaintiff has, at most, alleged a violation of state law by Gansler, he fails to
identify any federal right of which he has been deprived. See id.
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In neither the Opposition nor the Surreply does plaintiff offer any argument in response
to defendants’ well stated contentions. Count IV will be dismissed. See Ferdinand-Davenport,
supra, 742 F. Supp. 2d at 777; Mentch, supra, 949 F. Supp. at 1247.
I. With or without prejudice
The only remaining question is whether the Complaint should be dismissed with or
without prejudice. Defendants seek dismissal of the Complaint in its entirety, with prejudice.
Mem. at 22; Reply at 14. Plaintiff does not address this question in either the Opposition or the
Denial of leave to amend is appropriate where “‘the amendment would be prejudicial to
the opposing party, there has been bad faith on the part of the moving party, or the amendment
would be futile.’” Edwards, supra, 178 F.3d at 242 (quoting Johnson v. Oroweat Foods Co.,
785 F.2d 503, 509 (4th Cir. 1986)). See Anand, supra, 2014 WL 2535405, at *4; Balas v.
Huntington Ingalls Industries, Inc., 711 F.3d 401, 409 (4th Cir. 2013); Green v. Wells Fargo
Bank, N.A., 927 F. Supp. 2d 244, 257 (D. Md. 2013).
With respect to Count II and Count IV, plaintiff has effectively abandoned his claims.
Because plaintiff has failed to pursue those counts at this stage, dismissal with prejudice
undoubtedly is appropriate. As for plaintiff’s conspiracy allegations, raised primarily in Count II
and Count III, plaintiff has failed, despite supplementing his allegations through the Opposition
and Surreply, to allege the elements of any actual conspiracy. Dismissal of his conspiracy claims
under 42 U.S.C. § 1983 and 1985(3), with prejudice, is warranted. Nor is it apparent how
plaintiff could cure the defects found in his claims in Count I pertaining to the TRO Motion or in
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his “class of one” claims in Counts I and III pertaining to selective enforcement, particularly
given the protections afforded by absolute and qualified immunity.
Plaintiff’s allegations in Count I concerning Senator Muse and Deputy Berryman present
a closer question. In my view, it is not certain that amendment would prove futile, and thus
dismissal with prejudice is premature. In the event plaintiff wishes to amend that aspect of
Count I, he must file an amended complaint within 21 days of the date of this Memorandum
Opinion. If no amended complaint is filed by that time, the claims in Count I against Senator
Muse and Deputy Berryman will be dismissed, with prejudice.
For the foregoing reasons, defendants’ Motion (ECF 9) will be granted. A separate Order
follows, consistent with this Memorandum Opinion.
Date: August 7, 2014
Ellen Lipton Hollander
United States District Judge
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