Wallace v. Lamson et al
Filing
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MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 11/7/2014. (c/m 11/7/2014 aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
KELSO DAVID WALLACE,
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Plaintiff,
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v.
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BERNADETTE LAMSON, et al.,
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Defendants.
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Case No.: PWG-14-2089
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MEMORANDUM OPINION
Plaintiff Kelso David Wallace worked for Defendant Montgomery County, Maryland for
more than a decade, during which time he suffered from disabilities and was injured, both on and
off the job, and ultimately he applied for disability retirement. Dissatisfied with the conduct and
outcome of his disability retirement hearing and other aspects of his employment history, he filed
suit against Defendants Bernadette Lamson, Dianna Gunther, and Linda Bird. I dismissed his
suit with prejudice, be he has filed a second lawsuit against the same Defendants, alleging, in
essence, the exact same claims. Yet, res judicata precludes the re-litigation of the material facts
and issues Plaintiff raises in this lawsuit. On that basis, I will dismiss Plaintiff’s claim with
prejudice.1
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Defendants have moved to dismiss, and the parties have briefed the motion fully. ECF Nos. 4,
6, 7, & 9. A hearing is not necessary. See Loc. R. 105.6.
FACTUAL AND PROCEDURAL BACKGROUND2
I.
Mr. Wallace, who has dyslexia and related disabilities, began working for Montgomery
County, Maryland (the “County”) in 1987. Compl. 7–8, ECF No. 1.3 Over the years, he was
injured in different incidents, both on the job and off the job, and he began to suffer from
arthritis. Plaintiff was terminated in 1998, allegedly based on his dyslexia and related disabilities
that pre-dated his employment, but after filing an EEOC complaint, he was reinstated in 1999.
Id. at 22–28.
Plaintiff’s health problems continued, in part due to an on-the-job assault in late 2001.
Id. at 28–29. By early 2003, Plaintiff no longer could walk or work. Id. at 31. Plaintiff had
back surgery later that year, took “sick leave due to his duty related injury,” and worked part
time while continuing to receive medical care. Id. at 32–36. He “was retired by the Defendant”
and “placed on Non Duty Related Disability Retirement” on November 30, 2003, in what he
characterizes as a “wrongful separation.” Id. at 36. On February 18 and 19, 2009, Plaintiff’s
application for disability retirement was the subject of a hearing (the “Hearing”). Id. at 2; Defs.’
Mem. 1.
Feeling that he had been discriminated against on the basis of his disabilities and been
denied his right to a fair hearing with respect to his disability benefits, Plaintiff filed a twentytwo page, four-count complaint in this Court on March 22, 2013. Wallace v. Lamson (“Wallace
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For the purposes of resolving Defendants’ Motion to Dismiss, I accept the facts alleged in
Plaintiff’s Complaint as true. See Aziz v. Alcoac, 658 F.3d 388, 390 (4th Cir. 2011). Yet, I need
not “‘accept as true allegations that contradict matters properly subject to judicial notice or by
exhibit.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). And, I may take judicial notice of the existence of
court records. Fed. R. Evid. 201(b); see also WW, LLC v. Coffee Beanery, Ltd., No. WMN–05–
3360, 2012 WL 3728184, at *6 (D. Md. Aug. 27, 2012).
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Citations are to this case, PWG-14-2089, unless otherwise noted.
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I”), No. PWG-13-866 (D. Md.).
In that first complaint against the County and County
employees Bernadette Lamson, Dianna Gunther, and Linda Bird, he alleged “handicap
discrimination,” negligence, insurance fraud, and breach of contract. Compl. 21–22, ECF No. 1
in Wallace I.
Defendants moved to dismiss, arguing, inter alia, that Plaintiff’s claims were
time-barred. Defs.’ Mot. to Dismiss, ECF No. 8 in Wallace I. I granted their motion on March
11, 2014, finding that Plaintiff’s claims were barred by the statute of limitations and dismissing
the case with prejudice. Mem. Op. & Order, ECF Nos. 29 & 30 in Wallace I. Plaintiff filed a
Motion to Set Aside Order dismissing Case, ECF No. 31 in Wallace I, on March 21, 2014, but
simultaneously filed a Notice of Appeal, ECF No. 32 in Wallace I, which divested this Court of
jurisdiction to consider his motion. See Griggs v. Provident Discount Co., 459 U.S. 56, 58
(1982); Panowicz v. Hancock, No. DKC-11-2417, 2013 WL 5442959, at *2 (D. Md. Sept. 27,
2013) (citing Griggs). That appeal still is pending before the Fourth Circuit.
Thereafter, on June 26, 2014, Plaintiff filed the forty-nine page complaint that now is
before me. Compl. Plaintiff names the same Defendants as in Wallace I.4 He once again
recounts his employment history, injuries during his period of employment, medical
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The docket lists “Montgomery County Government Maryland” as a separate defendant, but it is
clear that Plaintiff is naming “Montgomery County, Maryland” as Defendant and not also
“Montgomery County Government Maryland” as a separate entity. The docket shall be changed
to reflect that “Montgomery County Government Maryland” is not a defendant.
On August 22, 2014, Plaintiff filed a Motion for Alternate Service as to Linda Bird, ECF
No. 8, to which Ms. Bird has filed a Response, ECF No. 10. In his motion, Plaintiff states that
“Defendant Bird has acknowledged service through her attorneys acting on her behalf” and
“filed [a] motion to dismiss through her attorneys.” Pl.’s Mot. for Alt. Serv. 1. In her Response,
Ms. Bird notes that she has filed a motion to dismiss. Def. Bird’s Resp. 1. It is evident that Ms.
Bird has received the complaint and, therefore, Plaintiff’s Motion for Alternate Service will be
denied as moot. Indeed, on July 18 and July 23, 2013, I denied as moot two similar motions that
Plaintiff filed with regard to Ms. Bird in Wallace I, ECF Nos. 20 & 23 in Wallace I; the first of
those orders should have alerted Plaintiff that it was unnecessary to file his later motions
regarding service on Ms. Bird.
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appointments, and employment issues related to his injuries and disabilities. Compl. 7–38, 40.
Despite its length, Plaintiff’s complaint includes only one count, for a violation of 42 U.S.C.
§ 1983, in which he claims that Defendants “acted with Malice against the Plaintiff during the
2009 [Disability Arbitration Board] DAB Hearing to prevent him from having a fair DAB
Hearing under law, which violated his Constitutional Right under the Sixth Amendment to have
a fair trial or hearing under law.” Compl. 3. Plaintiff raises various issues with how the 2009
Hearing was handled, including alleging that Defendants “brought past false accusations and
unrelated prejudicial statements into the present DAB Hearing record.” Id. at 3, 4–5, 38–39, 40–
42, 43–47. According to Plaintiff, “a final decision has still not been handed down” from the
Hearing. Id. at 48.
Once again, Defendants have moved to dismiss. ECF No. 4. Plaintiff filed a Response5
and a Rebuttal, ECF Nos. 6 & 7, and Defendants filed a Reply, ECF No. 9. Additionally,
Plaintiff moved to file a surreply, ECF No. 12, to which Defendants filed an Opposition, ECF
No. 14. Defendants contend that the proposed surreply “is redundant of Plaintiff’s previous
submission,” as it “simply restates and re-hashes the same arguments that Plaintiff has already
placed before the Court in his opposition to the Motion to Dismiss.” Defs.’ Opp’n 2. Having
reviewed Defendant’s proposed surreply, as well as his Response and Rebuttal, I find the
proposed surreply does not address any argument raised for the first time in Defendants’ Reply
or raise any argument that Plaintiff failed to make in his Response and Rebuttal. Therefore,
Plaintiff’s motion will be denied. See Interphase Garment Solutions, LLC v. Fox Television
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Plaintiff’s Response, styled as a letter, also appears as ECF No. 34 in Wallace I. It clearly
refers to both cases, as Plaintiff mentions the “Dismissal of [his] case . . . and the new motion to
dismiss.” Pl.’s Resp. 1.
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Stations, Inc., 566 F. Supp. 2d 460, 467 (D. Md. 2008). I note that, even if I were to consider the
surreply, the outcome of this case would not change.
Plaintiff also has filed a motion to supplement his complaint, which includes the
supplemental information he wants the Court to consider, ECF No. 11, which Defendants have
not opposed. Therefore, Plaintiff’s motion to supplement is granted in that I will consider the
supplemental submissions in this Memorandum Opinion and Order.
In his motion to
supplement, Plaintiff restates the relief he is requesting. Specifically, he seeks a ruling “that the
Plaintiff[’s] injuries were in the line of duty”; back pay, including “three missing increments
steps that were withheld”; costs for spinal surgery; and attorney’s fees for his representation at
the Hearing. Mot. 1.
II.
DISCUSSION
A. Motion to Dismiss
Plaintiff is proceeding pro se and his complaint is to be construed liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, liberal construction does not absolve Plaintiff from
pleading a plausible claim. See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981) (citing
Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir. 1977)). As stated by the Fourth Circuit,
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).
Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at *1 (4th Cir. 1992) (per curiam).
Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it
fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237,
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2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule’s purpose “‘is to test the sufficiency
of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.’” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483
(4th Cir. 2006)).
However, if an affirmative defense “‘clearly appears on the face of the
complaint,’” the Court may rule on that defense when considering a motion to dismiss. Kalos v.
Centennial Sur. Assocs., No. CCB-12-1532, 2012 WL 6210117, at *2 (D. Md. Dec. 12, 2012)
(quoting Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000) (citation and quotation marks
omitted)).
One such affirmative defense is res judicata, which “‘bars a party from suing on a claim
that has already been litigated to a final judgment by that party or such party’s privies and
precludes the assertion by such parties of any legal theory, cause of action, or defense which
could have been asserted in that action.’” Reid v. New Century Mortg. Corp., No. AW-12-2083,
2012 WL 6562887, at *3 (D. Md. Dec. 13, 2012) (quoting Ohio Valley Envtl. Coal. v. Aracoma
Coal Co., 556 F.3d 177, 210 (4th Cir. 2009) (citation and internal quotation marks omitted).
When considering this defense, “‘a court may take judicial notice of facts from a prior judicial
proceeding when the res judicata defense raises no disputed issue of fact.’” Kalos, 2012 WL
6210117, at *2 (quoting Andrews, 201 F.3d at 524 n.1). Res judicata provides grounds for
dismissal if a defendant establishes “‘(1) a judgment on the merits in a prior suit resolving (2)
claims by the same parties or their privies, and (3) a subsequent suit based on the same cause of
action.’” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009)
(quoting Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir. 1990)). Even if the plaintiff’s legal
theory differed in the earlier dispute, res judicata still bars the current action, provided that “the
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second suit ‘arises out of the same transaction or series of transactions as the claim resolved by
the prior judgment.’” Id. (quoting Aliff, 914 F.2d at 42). Further,
The preclusive [e]ffect of a prior judgment extends beyond claims or defenses
actually presented in previous litigation, for “[n]ot only does res judicata bar
claims that were raised and fully litigated, it prevents litigation of all grounds for,
or defenses to, recovery that were previously available to the parties, regardless of
whether they were asserted or determined in the prior proceeding.” Peugeot
Motors of America, Inc. v. Eastern Auto Distributors, Inc., 892 F.2d 355, 359 (4th
Cir. 1989), quoting Brown v. Felsen, 442 U.S. 127, 131 (1979) (internal quotation
marks deleted).
Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991).
Here, it is undisputed that the parties are the same. See Defs.’ Mot. 1–2; Pl.’s Rebuttal
12. Additionally, the dismissal with prejudice in Wallace I is a judgment on the merits. See
Walls v. Wells Fargo Bank, N.A., 557 F. App’x 231, 233 (4th Cir. 2014); In re Tomlin, 105 F.3d
933, 936–37 (4th Cir. 1997); see also Shoup v. Bell & Howell Co., 872 F.2d 1178, 1178–79 (4th
Cir. 1989) (holding that “[an] earlier statute of limitations ruling is a judgment on the merits
subject to claim preclusion”). As such, it resolved the parties’ claims. See Walls, 557 F. App’x
at 233; In re Tomlin, 105 F.3d at 936–37; see also Shoup, 872 F.2d at 1178–79. Therefore, the
first and second element of res judicata are present. See Ohio Valley Envtl. Coal., 556 F.3d at
210.
With regard to the third element, although Plaintiff insists that “there are two separate
individual … cases by the Plaintiff concerning completely different statutes and elements under
law,” Pl.’s Rebuttal 10, the claims in this case all “‘arise[] out of the same transactions’” as those
resolved in Wallace I. See Ohio Valley Envtl. Coal., 556 F.3d at 210 (quoting Aliff, 914 F.2d at
42). Specifically, as noted, the claims in this case stem from Plaintiff’s perceived injustices and
Sixth Amendment violations in the 2009 Hearing. Compl. 3, 4–5, 38–39, 40–42, 43–47; Pl.’s
Resp. 2. These same transactions were at issue in Wallace I, in which Plaintiff claimed:
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On February 18–19, 2009, a retirement review hearing (the “Hearing”)
was held with regard to Plaintiff. It appears that Defendant Bernadette Lamson,
an Assistant County Attorney, represented the County at that hearing. Plaintiff
alleges several improprieties at that hearing, including the introduction of
evidence that had been altered and may not have been authenticated properly, and
the use of deceptive, false, or incomplete evidence. Plaintiff also alleges that
Lamson presented her evidence in a manner contrived to make it more difficult
for Plaintiff to present his case, asked leading questions designed to create
inferences against Plaintiff, and introduced irrelevant evidence “in order to
discredit the Plaintiff during the hearing.” Plaintiff also appears to take issue with
the lack of discovery permitted with respect to the Hearing. Plaintiff implies—
but does not allege—that the Hearing panel never issued a decision as required.
Mem. 3–4 (citing Compl. ¶¶ 7, 29, 35) in Wallace I (citations omitted). And, in opposing
Defendants’ motion to dismiss in the earlier case, Plaintiff contended that Defendants’ actions at
the Hearing violated § 1983 and specifically his “right to a Fair Tr[ial] (a deprivation of federal
protected rights.) Right to a fair Trial, Sixth Amendment to the United States Constitution.”
Pl.’s Opp’n 2, ECF No. 10 in Wallace I. Additionally, Plaintiff now argues that the statute of
limitations has not run with regard to events at the Hearing because “a final decision has still not
been handed down” from the Hearing, Comp. 48; Pl.’s Resp. 3; Pl.’s Rebuttal 3, echoing his
earlier argument that “[t]he Statute of limitations cannot apply when the discrimination is an
ongoing issue and will start after the Board issues a final decision,” Pl.’s Opp’n 4 in Wallace I.
Significantly, I concluded that “any claims arising out of . . . the 2009 Hearing are time-barred
and must be dismissed” because “[n]othing that took place at the hearing . . . falls within the
[three-year Maryland] statute of limitations: the hearing was concluded by February 19, 2009,
over four years before Plaintiff filed his complaint.” Id. at 7–8. Further, it is clear that Plaintiff
could have sought recovery under § 1983 explicitly in Wallace I, as Plaintiff alleged the same
facts in his complaint in the earlier case. See Meekins, 946 F.2d at 1057. Therefore, the third
element of res judicata also is present. See id.; Ohio Valley Envtl. Coal., 556 F.3d at 210.
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In sum, all of the elements of res judicata are present, and it is clear that Mr. Wallace
already “had a full and fair opportunity to litigate [his] claims against Defendants” in Wallace I.
See Hasan v. Friedman & MacFadyen, P.A., No. DKC-11-3539, 2012 WL 3012000, at *7 (D.
Md. July 20, 2012). Given that, in Wallace I, I found that Plaintiff could not state a claim against
Defendants based on the events of the 2009 Hearing and I dismissed Plaintiff’s claims with
prejudice, res judicata bars the case currently before this Court. Defendants’ Motion to Dismiss
IS GRANTED on this ground.6
B. Appointment of Counsel
Plaintiff requests that an attorney “be assigned or appointed . . . to help [him],” and states
that, if he does not have an attorney, he “must concede and drop [his] case as without proper
legal representation . . . it would be impossible for [him] to continue with this case.” Pl.’s Resp.
6. Pursuant to 28 U.S.C. § 1915(e)(1), a court of the United States may request an attorney to
represent any person unable to afford counsel. This power is discretionary one that may be
considered where an indigent claimant presents exceptional circumstances. See Cook v. Bounds,
518 F.2d 779, 780 (4th Cir.1975). The question of whether such circumstances exist in a
particular case hinges on the characteristics of the claim and the litigant. See Whisenant v. Yuam,
739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Court,
490 U.S. 296, 298 (1989). Where a colorable claim exists but the litigant has no capacity to
present it, counsel should be appointed. Id.
Upon careful consideration of Plaintiff’s filings, I find that he has demonstrated the
wherewithal either to articulate the legal and factual basis of his claims himself or to secure
meaningful assistance in doing so. Indeed, in Wallace I, “having read his filings and spoken
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Defendants also argue for dismissal on other grounds, but I need not address these arguments
because res judicata bars Plaintiff’s claim.
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with him during a telephonic Fed. R. Civ. P. 16 status conference, I … concluded that Plaintiff
has the capacity to represent himself adequately, and that no further action [was] required by
Fed. R. Civ. P. 17(c)(2).” Mem. 2 n.1 in Wallace I. And, the dismissal of his pending claim is
not based on its presentation but rather on res judicata, a ground that cannot be overcome by
representation from counsel.
Plaintiff simply does not have a colorable claim, and the
appointment of an attorney to represent him under § 1915(e)(1) is not warranted.
III.
CONCLUSION
In sum, Plaintiff’s Motion for Alternate Service as to Linda Bird, ECF No. 8, IS DENIED
AS MOOT; Plaintiff’s Motion to Supplement, ECF No. 11, IS GRANTED, to the extent that the
supplemental information has been considered; Plaintiff’s Motion to File a Surreply, ECF No.
12, IS DENIED; Plaintiff’s request for counsel in his Response, ECF No. 6, IS DENIED;
Defendants’ Motion to Dismiss, ECF No. 4, IS GRANTED; and Plaintiff’s case IS DISMISSED
WITH PREJUDICE. The Clerk SHALL CLOSE this case.
A separate order will issue.
Dated: November 7, 2014
/S/
Paul W. Grimm
United States District Judge
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