Bey v. Genano et al

Filing 41

MEMORANDUM OPINION AND ORDER granting 28 Joint MOTION to Dismiss; dismissing complaint with prejudice;directing clerk to close case. Signed by Judge Paul W. Grimm on 4/10/2017. (c/m 4/10/2017 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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GARRY ROSEMOND BEY
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Plaintiff,
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v.

Case No.: PWG-16-2800
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JETZIBELL GENANO, et al.,
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Defendants.
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MEMORANDUM OPINION AND ORDER
Self-represented Plaintiff Garry Rosemond Bey1 is suing Takoma Park Police Officers
Kurt Gilbert and Sada Merriman, Maryland District Court Commissioner Jeannine Mizell,2
Maryland State’s Attorney John McCarty and Assistant State’s Attorney Michael J. Algeo,
Residential One, LLC and Jetssibel Genao. Defendants move to dismiss the Complaint, Compl.,
ECF No. 2,3 pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which relief can
be granted, Defs.’ Mot., ECF No. 28. The Motion is fully briefed, Defs.’ Mem., ECF No. 28-1;

1

It appears from the District Court for Montgomery County’s records that the Plaintiff’s given
surname is Rosemand, however, he refers to himself as Bey throughout his court filings.
Accordingly, I too will refer to him as Bey.
2

The Complaint misspells Mizell’s name as “Jeannie Mizell.” In addition, Genao’s name was
misspelled as “Jetzibell Genano.”
3

Defendants note that Bey omitted the final page of his Complaint when he filed it and failed to
sign the filing. Defs.’ Mem. 5. They urge me to dismiss the Complaint pursuant to Fed. R. Civ.
P. 11(a). Id. If I dismissed the Complaint for Bey’s failure to comply with Rule 11(a), I would
need to give him an opportunity to submit an amended complaint. It is doubtful that this is the
relief that the Defendants seek. Because of the substantive deficiencies in Bey’s filings, I need
not reach the failure-to-sign issue.

Pl.’s Opp’n, ECF No. 364; Def.’s Reply, ECF No. 39, and no hearing is necessary, Loc. R. 105.6
(D. Md.). Because Plaintiff fails to state a claim, his Complaint will be dismissed.
Background
Bey was arrested in February 2016 on charges of burglary, destruction of property and
theft pursuant to a warrant issued by Defendant Commissioner Mizell, which allegedly contained
unspecified false statements made by Defendants Takoma Park Police Officers Gilbert and
Merriman and Residential One employee Genao. Compl. 2. Roughly one month after his arrest,
the state of Maryland elected not to prosecute Bey and dropped the charges against him. Id. Bey
alleges that his arrest violated his Fourth Amendment rights5 and his supposed rights as an
individual of “Moorish” descent, id., and that the statements made by the police officers and
Genao, which were memorialized in the warrant for his arrest, defamed him,6 see id. at 3.
Standard of Review
Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Under this Rule, Bey’s
Complaint is subject to dismissal if it “fail[s] to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). A complaint must contain “a short and plain statement of the claim
4

In addition to his Opposition, Bey also filed a response to my Letter Order Regarding the Filing
of Motions, in which he opposes Defendants’ Motion. ECF No. 37. As this letter provides no
relevant additional information, I will not consider it.
5

I will construe Bey’s Fourth Amendment claim as an action pursuant to 42 U.S.C. § 1983. The
Complaint also twice invokes the Fifth Amendment. Id. at 2, 8. As Bey never faced a trial at
which his Fifth Amendment trial rights could have been infringed, id. at 2, I suspect that he
mistakenly references this Amendment rather than the Fourteenth Amendment as the vehicle
through which the Fourth Amendment has been made applicable to the states. See Mapp v.
Ohio, 367 U.S. 643, 655 (1961).
6

Bey cites Md. Code Ann., Crim. Law § 9-501, which criminalizes making false statements to
law-enforcement officers, as a cause of action for his defamation claim. Id. Mindful of my
obligation to construe the Complaint liberally, I infer that Bey misunderstood the statute to
prohibit false statements made by rather than to law enforcement officers and will construe the
allegation as a common-law defamation claim. To the extent that Bey invokes the statute based
upon statements made by Genao to the police officers, it is a criminal statute with no private
cause of action and is not Bey’s to enforce.
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showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and must state “a plausible
claim for relief,” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).

“A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Rule
12(b)(6)’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.” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v.
City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).
Further, to withstand dismissal, Bey must make his allegations in a pleading, such as a
complaint or an amended complaint. Where, as here, a plaintiff attempts to cure pleading
deficiencies by making factual assertions in a memorandum opposing the motion to dismiss, the
Court may not consider them with respect to determining whether plaintiff has filed a plausible
claim. Zachair, Ltd. v. Driggs, 965 F. Supp. 741, 748 n.4 (D. Md. 1997) (noting that a plaintiff
“is bound by the allegations contained in [his] complaint and cannot, through use of motion
briefs, amend the complaint”). Bey 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 plausible claims. 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)).
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. District courts are not required to be mind readers, or to conjure
questions not squarely presented to them.
Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at * 1 (4th Cir. 1992) (per curiam) (internal
citations omitted).

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Discussion
Bey devotes the majority of his Complaint to asserting his rights under the “Divine
Constitution and By-Laws of the Moorish Science Temple of America” under which he suggests
that he is not subject to the jurisdiction of the United States insofar as it conflicts with Moorish
law. Compl. 2. I have discussed similar claims before and will not dwell on this claim. 7 Suffice
it to say, courts without exception have found such claims frivolous, and so do I.
As for Bey’s § 1983 claim, Defendants note in their Memorandum in Support of their
Motion to Dismiss, Defs.’ Mem. 6, that under exceptionally narrow circumstances, a plaintiff
may pursue damages through § 1983 for an unlawful seizure pursuant to an arrest warrant, Miller
v. Prince George’s County, 475 F.3d 621, 627 (4th Cir. 2007). “An accused is generally not
entitled to challenge the veracity of a facially valid . . . warrant affidavit,” United States v. Allen,
631 F.3d 164, 171 (4th Cir. 2011), and “[w]here the alleged Fourth Amendment violation
involves a . . . seizure pursuant to a warrant, the fact that a neutral magistrate . . . issued a warrant
is the clearest indication that the officers acted in an objectively reasonable manner,”
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012). But a facially valid warrant can be
7

In Fullard v. Maryland, I noted:
The legal assertions raised in the complaint and declaration involving Fullard’s
Moorish-American descent amount to nonsensical gibberish. Fullard claims that
he is a “Moorish American” and that, based on his ancestry, the State of Maryland
does not have jurisdiction over him. Fullard is not the first person to raise this or
similar claims based on an alleged status as a “Moorish American.” These claims
have been rejected. See Pitt–Bey v. District of Columbia, 942 A.2d 1132, 1136
(D.C.2008); Ferguson-el v. Virginia, 2011 WL 3652327 (E.D.Va.2011); Albert
Fitzgerald Brockman–El v. N.C. Dep't of Corr., Civil Action No. WO-09-633
(M.D.N.C.2009), appeal dismissed for lack of a substantial showing of the denial
of a constitutional right, 373 F. App’x 332 (4th Cir.2010). The court is not aware
of any instance where the United States has recognized the so-called
“Moorish/Muurish Nation” as a sovereign.

No. PWG-14-3405, 2015 WL 1517393 at *1 n.1 (Mar. 31, 2015).
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attacked by establishing by a preponderance of the evidence that (1) “a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant
in the warrant affidavit”; and (2) that the false statement was “necessary to the [neutral
magistrate’s] finding of probable cause.” Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
Nowhere in the Complaint does Bey even specify which statements in the warrant
affidavit were false, much less provide evidence that either the police officers or Ms. Genao were
intentionally or recklessly responsible for the inclusion of the unspecified statements in the
warrant affidavit. For the same reason, it is impossible to conclude from the allegations in the
Complaint that a neutral magistrate would have found probable cause lacking if the warrant
affidavit were purged of the allegedly false statements. Bey’s conclusory statements do not state
a Fourth Amendment violation that could support a § 1983 claim. See Iqbal, 566 U.S. at 678.
Bey’s defamation claim is unavailing for similar reasons. To state a defamation claim
under Maryland law, a plaintiff must allege facts that show:
(1) that the defendant made a defamatory communication—i.e., that he
communicated a statement tending to expose the plaintiff to scorn, hatred,
contempt, or ridicule to a third person who reasonably recognized the statement as
being defamatory; (2) that the statement was false; (3) that the defendant was at
fault for communicating the statement; and (4) that the plaintiff suffered harm.
Peroutka v. Streng, 695 A.2d 1287, 1293 (Md. 1997) (quoting Shapiro v. Massengill, 661 A.2d
202, 216–17 (Md. 1995). As Bey never alleges what false statements any Defendant made,
much less provide facts that establish the statements’ falsity or any Defendant’s culpability in
propagating the alleged falsehoods, he has not stated a defamation claim.
Thus, Bey’s Complaint does not state any viable claim and shall be dismissed.
Moreover, I find that any attempt to amend the Complaint would be futile. See Laber v. Harvey,
483 F.3d 404, 426 (4th Cir. 2006) (interpreting Fed. R. Civ. P. 15(a) “to provide that ‘leave to

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amend should be denied only when 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 have been
futile.’ ” (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986))). As Bey
has not disputed that Officers Gilbert and Merriman were acting in their official capacities in
executing the arrest warrant, they would be shielded by qualified immunity, meaning that Bey
would have to identify with particularity a clearly established right that they violated in order to
obtain relief. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Nor has Bey disputed that
Commissioner Mizell was acting in her judicial capacity when she issued the warrant and that
State’s Attorney McCarty and Assistant State’s Attorney Algeo were acting in a prosecutorial
capacity when they refrained from pursuing charges against Bey. Thus, all three Defendants are
entitled to absolute immunity. See Briscoe v. LaHue, 460 U.S. 325, 335 (1983) (holding that
“persons—governmental or otherwise—who [are] integral parts of the judicial process” are
absolutely immune from damages suits); Imbler v. Pachtman, 414 U.S. 409, 427 (1976) (holding
that state prosecutors are absolutely immune from damages suits). As for Defendants Residential
One, LLC and Jetssibel Genao, it is utterly unclear from Bey’s Complaint what role, if any, they
played in the sequence of events that prompted this suit.

Accordingly, I will dismiss the

Complaint with prejudice.
ORDER
Accordingly, it is this 10th day of April, 2017, by the United States District Court for the
District of Maryland, hereby ORDERED that:
1. Defendants’ Motion to Dismiss, ECF No. 28, IS GRANTED;
2. Plaintiff’s Complaint IS DIMSISSED with prejudice;
3. The Clerk SHALL CLOSE the case.

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/S/
Paul W. Grimm
United States District Judge

jlb

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