Thomas et al v. State of Maryland et al

Filing 66

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/20/2017. (tds, Deputy Clerk)

~- ! ;.,

IN THE UNITED STATES DISTRICT couiiT
FOR Tm: DISTRICT OF MARYLAND
Southern ()i\'ision

"

1011 DEC 20 A II:

III

*
CIIIUSTOPHER

THOMAS,

III

al.•

*
Plaintiff,

*
v.

Case No.: G.III-I7-17J9

*
STATE OF MARYLAND,

III

al.,

*
Defendants.

*

*

*

*

*

*

*

*

MEMORANDUM

*

*

*

*

*

*

OPINION

Christopher Thomas and Alexandra Curbelo ("Plaintiffs") allege constitutional and state
law tOl1violations against a number of entities within the State of Maryland. including Anne
Arundel County. Prince George's County. Howard County. associated pol icc depar1ments.
county cxecutives. police chiefs. and 28 individual police officers (collectively. "Defendants").'
The Complaint arises out of a purported high-speed pursuit on Route 295 that ended in Plaintirts'
arrest. ECF NO.2. Presently pending before the COUl1are motions to dismiss from defendants
Anne Arundel County. ECF Nos. 30. 3 1.35. IIowaI'd County. lOCI'No. 29. Prince George's
County. ECF No. 36. and the State of Maryland. ECF No. 49. and the State of Maryland's
Motion to Strike PlaintitTs Opposition. ECF No. 56. No hearing is necessary to adjudicate the
motions. Loc. R. 105.6 (D. Md. 2016). For the following reasons. the State of Maryland's

I Following submission of the motions to dismiss by the County Defendants. Plaintiffs conceded to dismissal of
Prince George's Coullty. the Howard County Police Department. the Anne Arundel County Police Department.
Howard County Executive Allan Kittleman. and Anne Arundel County Executive Steven Schull. ECF No, 49 at 5.
As such. these defendants are dismissed and the Court need not consider Defendants' motions in SUPP0I1 thereof.

motions arc granted. Anne Arundel and Howard Counties'
denied. in part. and Prince George's

I.

County's

motions arc granted. in part. and

motion is denied as moot.

BACKGROUND
A. Factual Background"

,

On June 3. 2014. police officers employed

by the State of Maryland.

Anne Arundel

County. and/or Howard County initiated pursuit of a speeding vehicle on Route 295. going
through Prince George's
County. Maryland.

County. Anne Arundel County. and ultimatcly

ECF No. 2 ~~ 36-37.

Curbelo was a passenger.

stopping

Plaintiff Thomas operated the vehicle and Plaintiff

Upon stopping the vehicle. and in compliance

with police orders.

Thomas exited the vehicle and laid face down on the ground in anticipation
While on the ground. an unidentified
40. and additional

police officer placed Thomas'

of1icers punched and kicked Thomas repeatedly

ground. !d ~141. Prior to Thomas being handcuffed
subdued.

Of1icer Jeffery Rothenbecker

46. Thereafter.
maintain

police orders. "demonstrated

!d '139.

hands behind his back. !d

'i

as he lay helpless on the

and arrested. but while on the ground and
a police canine to maul Thomas.
a Taser gun on Thomas.

!d

'I~i
42-43.

Id. ~ 44. Plaintiffs

the police stop. Thomas was acting in full compliance

no acts of restraint or unwillingness

to cooperate

with police:'

with
and

!d ~ 45. Following

arrest. Plaintiff Curbelo exited the vehicle from the front passenger

door in compliance

that could cause a reasonable

with police orders. Id. ~ 49. Upon exit. an unidentified

police officer grabbed Curbelo and

"hurled her body over a guardrail directly adjacent to the vehicle:'
Once in custody.
for treatment.

2

of arrest.

officer to feci threatened.

made no movements
Thomas'

instructed

Officer Jeremy Duncan employed

that at all times following

in lloward

Plaintiffs were transported

Id.

'149.

to the Anne Arundel County Medical Center

Id. ~ 51. PlaintifTs note that in response

to a question

from a nurse as to why

Unless stated otherwise. the facts arc taken from the Complaint and assumed to be true.

2

Thomas "was beaten so badly:' an unidentilied officer commented that "he shouldn't have ran:'
Id ~ 52. Further. Plaintiffs allcge that while Thomas was receiving treatment. an unidcntified
officer was rclicvcd of his duties by a superior. whereby the superior officer stat cd that hc would
..take care ufthe police report" and that the relieved ofticer would not need ..to worry about it:'
Id

'1'; 56-57.
As a result ufthe arrcst. Thomas suffercd bruising to his body and l(lce and lacerations

intlicted by the police canine. including a large gash on his lower back. Id '161. In addition.
Plaintiffs allege that while in custody. Thomas received inadequate medicallrcatment.

resulting

in pemlanent injuries including sciatic nerve damage and scarring. It!. ~~ 53-55. 61. Plaintiffs
also allege that Thomas continues to suffer from severe emotional distress. including "major
depression. trouble concentrating. recurring nightmares. distress as a result of permanent injuries
to his person. and extreme anxiety:' It!. '162. Curbelo's physical injuries included bruises and
cuts to her body. and she continues to sufTer 1i'0I11 severe emotionaf distress. including "major
depression. crying spells. poor concentration. sleep disturbance. appetite disturbance. poor
energy. and fleeing suicidal ideations:" It!. ~~ 59. 60.

B. Proccdunll Background
Plaintiffs filed the instant action in the Circuit Court for Prince George's County on May
26.2017 and bring the following claims: Assault (Count I); Battery (Count II): Excessive Force.
42 U.S.c.

S

1983 (Count Ill); Negligence (Count IV): Conspiracy to Interfere with Civil Rights.

42 U.S.c.

S

1985(3) (Count V): Monell Allegations. 42 U.S.C.

S

1983 (Count VI): Violation of

Article 24 of the Maryland Declaration of Rights (Count VII); Equal Protection. 42 U.S.c.

S

1983 (Count VlIl): Negligent Supervision and Training (Count IX): and Intentional Intliction

of Emotional Distress (Count X). ECF NO.2.

3

Prior to filing the Complaint. Plaintiffs sent a Notice of Claim to the County Delendants
on December 1.2014. !d 'i,\31-33. PlaintilTs sent a Notice of Claim to the Maryland State
Treasurer in accordance with ~ 12-107(a) of the Maryland Tort Claims Act (""MTCA") on June
1.2015. Id. ~ 34. Following removal to this Court. Defendant Rothenbecker Iilcd an answer.
ECI' No. 32. and Defendants Howard County. Anne Arundel County. and Prince George's
County liled motions to dismiss on behalf of the counties. county executives. police chie[,.
police departments. and individual police ofticers. See ECF Nos. 29. 30. 31. 35. 36.3 On October
10.2017. the Court denied Plaintiffs' Combined Motion to Amend the Complaint and Remand to
State Court. ECI' No. 39. See ECF No. 44. Therealier. the State of Maryland filed a Motion to
Dismiss. ECI' No. 45. and Plaintiffs filed responses to all motions to dismiss by the County
Defendants. ECI' No. 49. and the State of Maryland. ECF No. 51. I'inally. the State of Maryland
moved to strike Plaintiffs Response to its Motion to Dismiss. ECI' No. 56.
II.

STANDARD OF REVIEW
Defendants may "test the adequacy of a complaint by way of a motion to dismiss under

Rule 12(b)(6):' Prelich \'. Aled. Res.. Inc.. 813 F. Supp. 2d 654. 660 (D. Md. 2011) (citing
German

1'.

Fox. 2671'. App'x 231. 233 (4th Cir. 2008)). Motions to dismiss for lailure to state a

claim do "not resolve contests surrounding the lacts. the merits of a claim. or the applicability of
defenses." Prelich. 813 F. Supp. 2d at 660 (citing Edward.,. 1'. Cify (I/Goldsboro. 17S F.3d 23 I.
243 (4th Cir. 1999)). To overcome a Rule 12(b)(6) motion. a complaint must allege enough f~lctS
to state a plausible claim fl)r relief. Ashcnjji \'. Iqbal. 556 U.S. 662. 678 (2009). A claim is

~ While Rothenbecker. an Anne Arundel County police officer, sets forth affirmative defenses similar to arguments
presented in the various motions to dismiss. Defendant Anne Arundel Coullty indicates that Rothenbecker does not
join its Motion to Dismiss at this time. ECF No. 35-1 at 5 n. 7. On December 4.2017. Duncan tiled all Answer with
similar affirmative defenses but does not join any oflhe motions to dismiss presently pending before the Court. ECF
NO.61
4

plausible when "the plaintilTpleads factual content that allows the Court to draw the reasonable
inference that the delendant is liable for the misconduct alleged:' Id.
In evaluating the sufficiency of Plaintiffs' claims, the Court accepts f~letualallegations in
the complaint as true and construes the 1~ICllIaI
allegations in thc light most f~1Vorable the
to
Plaintiff. See Albri~ht v. Oliver, 510 U.S. 266. 268 (1994): Lall/beth \'. 1M o{COII/II/

'1'.\'

oj"

Dal'idso/1 Oy.. 407 F.3d 266. 268 (4th Cir. 2005). However. the complaint must contain morc
than "legal conclusions. elements of a cause of action. and bare assertions devoid of further
factual enhancement:'

Nell/et Chevrolet, Lid v, CO/1slII/1era[{airs.colI/, l/1c.. 591 F.3d 250. 255

(4th Cir. 2009). The C011l1should not grant a motion to dismiss for failure to state a claim for
relief unless "it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations:'

GE 1/11'.Pril'l/te Placell/e/1tPartners

548 (4th Cir. 2001) (citing 11..1.Inc. v. Northwestern
III.

II \', Parker. 247 F.3d 543.

Bell Tel. Co .. 492 U.S. 229. 249-50 (1989)).

DISCUSSION
Plaintiffs appear to bring each individual state tort and constitutional claim against all

Defendants collectively. irrespective of the individual delendant's status as a municipality. state
entity. supervisor. or individual police officer. l3ecause certain claims are dependent upon the
status of the individual defendant. the Court will first address claims that do not state a claim for
relief irrespective of the individual delendant and will then evaluate the remaining claims based
on the status of the individual delendant.
A. Assault (Count I)
In Maryland. assault claims arc subject to a one year statute of limitations. See Md. Code.
Cts. & Jud. Proc .. ~ 5-105. Accordingly. Plaintiffs' assault claim expired on or about June 4.
2015. almost two years prior to tiling the instant action. Plaintiffs acknowledge that Curbelo's
claim is time barred but argue that the Court should toll Thomas' limitations period because he
5

was incarcerated in Connecticut during that time. See ECI' No. 49 at 134 To receive equitable
tolling. Plaintiffs bear the burden of proving that Thomas has diligently pursued his rights and
some extraordinary circumstance beyond his control stood in his way. preventing timely liling.
Uniled Slales

I'.

Sosa. 364 F.3d 507. 512 (4th Cir. 2004). However. no sueh extraordinarv

circumstances exist. See. e.g, Downes

I'.

Carroll. 348 F. Supp. 2d 296. 303 (D. Del. 2004)

(noting that incarceration in another state is not an extraordinary circumstance justifying
equitable tolling for petition under 28 U.S.c.

* 2254). Plaintiffs tail to show that Thomas'

incarceration. alone. qualities as an extraordinary circumstance justifying equitable tolling or that
Thomas diligently pursued his claim while incarcerated or upon rclease. Moreover. Plaintiffs'
counsel represented Thomas immediately following his arrest and pursued Plaintiffs' state law
tort claims against the County Defendants while Thomas was incarcerated. See Eel' No. 2 ~~
31-33. As such. Plaintiffs do not establish that Thomas diligently pursued his claim. Plaintiffs'
assault claim is time barred and therefore dismissed.
B. Intentional

Infliction of Emotional

Distress (Count X)

To state a common law claim for Intentional Infliction of Emotional Distress ("IIED").
Plaintiffs must allege that: "(1) the defendant's conduct was intentional or reckless: (2) the
conduct was extreme and outrageous: (3) there was a causal connection between the wrongful
conduct and the emotional distress: and (4) that the emotional distress was severe." Ilarri.\' I'.
Jones, 281 Md. 560. 566 (1977). The lort of liED "is to be used sparingly and only IlJr
opprobrious behavior that includes truly outrageous conduct .. ,. Williams
emy .. 112 Md. ApI'. 526. 555 (1996) (quoting Balson

I'.

l'.

Prince George's

Shif/ell. 325 Md. 684. 734-35 (1992».

Accordingly. an lIED claim is subject to a heightened pleading standard. and each clement of the
claim must be "pled with specificity." Washinglon \'. Maynard. No. GLR-13-3767. 2016 WL
~ Pin cites to documents filed on the Court's electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
6

865359. at *10 (D. Md. Mar. 7. 2016) (citing Fool'\' . .JuI'ellile Ser\'s. Adl/lill.. 552 A.2d 947. 959
(Md. Ct. Spec. App. 1989»
Defendants argue that Plaintiffs' liED claim docs not meet the second and lourth prongs
of the tort. see. e.g.. ECF Nos. 29.1 at 17: 35.1 at 10, and that use of lorce to make an arrest
during a "felony stop" is not extreme and outrageous. See ECF No. 29.1 (citing A4uIlyiri \'.
Haduch. 585 F. Supp. 2d 670. 677 (D. Md. 2008). While the right to make an arrest "carries
with it the right to use the amount of force that a reasonable ofticer would think necessary"
iv/ullyiri. 585 F. Supp. 2d at 677 (citing Marlill\'. Gelllile. 849 F.2d 863. 869 (4th Cir.1988)).
Plaintiffs allege that when they were mauled. tased. and/or thrown over a guardrail. they were
complying with ofticers' instructions. and in the case of Thomas. under the officers' control.
ECF No. 2 'i~ 121. While discovery and/or trial may prove that the officers' conduct was
119.
reasonablc. the Court has no basis to find that. as alleged. such conduct did not "go beyond all
possible bounds of decency. and [should] be regarded as atrocious. and utterly intolerable in a
civilized community"

Harris. 281 Md. at 567 (internal citation omitted).

Next. Defendants' argue that Plaintiffs have not "alleged the kind of severe emotional
distress envisioned by the Maryland Court of Appeals as a necessary predicate to a claim for
intentional infliction of emotional distress" ECF No. 35.1. To succeed on a claim of liED.
Plaintiffs must show that they "suffered a severely disabling emotional response to the
defendant's conduct:' and that the distress was so severe that "no reasonable man could be
expected to endure it," Thacker \'. Cily of Hyall.\Tille. 135 Md. App. 268. 315 (citing Harris. 281
Md. at 570-71): see also Bryant \'. Beller Busilless Bureau (!f Grealer AId.. Illc.. 923 F.Supp.
720,750 (D. Md. 1996) (plaintiffs only entitled to relief when the "emotional distress is so
severe as to have disrupted [plaintiffs] ability to function on a daily basis,").

7

Here. Plaintiffs'
allegations

claims of emotional

distress arc conclusory-Plaintiffs

that they sought medical treatment

their lives in a meaningful

and particularized

16-326 I. 2017 WL 416225 I. at
severely disabling

condition

* 5 (0, Md,

make no

fiJr their distress or that their distress has impacted
way. See Kam \'. I'TS ojAmerica,

LLC No, G.lH-

Sept. 19. 2017) (finding that plainti IT lailed to show a

when plaintiff has not alleged that he required psychological

treatment.

was hospitalized

for mental anguish. or that he was no longer able to work or function

nonnally):

Rohinson \" ell/chin. 140 F, Supp, 2d 488. 494 (D, Md. 2001) (no severely disabling

emotional

response

emotional

condition).

Maryland

eourts that their emotional

when plaintiffwas

not treated by a physician or hospitalized

As sueh. Plaintiffs'

because of her

liED claim fails to meet the high burden imposed by

Manikhi \'.

distress be severe and is there lore dismissed.

Mass Transi/ Admin .. 360 Md. 333. 368-69 (2000).
, C. Equall'roteetion,
42 U.S.c. ~ 1983 (Count VIII) and Conspiracy
with Civil Rights, 42 U.S.c. ~ 1985(3) (Count V)
To succeed on an equal protection
demonstrate
differently

that. as a result of purposeful
than other similarly

2002). Plaintiffs'
protected

claim. Plaintiffs must allege facts sufficient
or intentional

situated individuals.

to

they were treated

Veney \', W\'che. 293 F.3d 726. 731 (4th Cir.

claim I~lils on its face because Plaintiffs have not alleged that they are in a

F. Supp, 2d 306. 311 (D, Md. 2003) (dismissing

Plaintiffs

discrimination.

class. Nor have Plaintiffs alleged any acts of discrimination.

to plead allegations

to Interfere

of discriminatory

argue that Thomas.

equal protection

"a person assumed to have committed

a criminal act. was treatcd

and Curbelo. "a mere passenger

was treated differently

protected

'Lew}'. 264

claim where the plaintiff f~liled

status was not expressly
8

in a vchicle

than other persons similarly situated:'

No. 49 at 19. and contend the Court should infer that Plaintiffs are members
even though Plaintiffs'

1.)'1111 \', ()

purpose or motive), In response to the motions to dismiss,

difTerently than other pcrsons similarly situated:'
being driven on a highway.

See

ECF

of a "c1ass of one"

alleged in thc Complaint.

Id. (citing

Willoll'brook \'. OIech. 528 U.S. 562.565 (2000)). Such an inference does not arise from the
allegations in the Complaint. While Plaintiffs' Complaint alleges facts to suggest that they were
subject to abusive treatment. the Complaint alleges no tllcts to suggest that they were subject to
di.\jJarale treatment.
Similarly. to state a viable claim for conspiracy under 42 U.S.c.

S

1985(3). Plaintiffs

must show: "(I) a conspiracy of two or more persons. (2) who are motivated by a specilic c1assbased. invidiously discriminatory animus to (3) deprive the plaintilTofthe

equal enjoyment of

rights secured by the law to all. (4) and which results in injury to the plaintiffas (5) a
consequence of an overt act committed by the defendants in connection with the conspiracy:' II
Sociely Wilholl! A Nallle

1'.

Virginia. 655 ['.3d 342. 346 (4th Cir. 201 I) (citing Sillllllons

1'.

Poe.

47 F.3d 1370. 1376 (4th Cir. 1995)). At the outset. because there has not been an allegation ofa
specilic class-based discriminatory animus. the claims for conspiracy under

S

1985(3) must also

fail. Sillllllons. 47 r.3d at 1376.
Separate from whether an underlying constitutional violation occurred. Plaintiffs' also
fail to adequately plead any conspiracy or associated overt act. "[MJerely conclusory allegations
of conspiracy. unsupported by a factual showing of participation in a joint plan of action. are
insufficient to support a section 1985(3) action:' !d. While Plaintiffs allege that various unnamed
ofticers engaged in a conspiracy to use excessive force. not report officers using excessive lorce.
and falsify police reports. ECr No. 2 ~ 95. the only factual allegation supporting the claim is that
an unnamed supervisor told a subordinate officer that he would ..take care of the police report."

Id. ~ 57. Moreover. the Complaint is devoid of any facts suggesting that any police reports were
in fact falsi lied. Such ..[tJhreadbare recitals of the elements ofa cause of action. supported by
mere eonclusory statements:' are insufficient to support Plaintiffs' conspiracy claim. See Iqbal.
556 U.S. at 678. Counts VIII and V are dismissed as to all Defendants.
9

I). Claims Against Individual

Police Officers

Plaintiffs bring their claims against 28 individual police officer but only allegc litcts
related to the actual conduct of two officers. Rothenbecker and Duncan. Sec ECF No. ~~ 42. 44
(alleging Rothenbecker as responsible tor the use of the police canine and Duncan fClruse of the
Taser). As clarified by Defendants. Rothenbecker is currently a police officer with the Anne
Arundel County Police Department. and Duncan is a former police officer with the Iloward
County Police Department. ECF No. 29-1 at I. Neither of the two joins any of the motions to
dismiss herein.
I.

Intentional Torts :lIld Constitutional
VII, VIII, X)

Violations (Counts I, II, III, V, VI,

Defendants argue that Plaintiffs. in "Iump[ing] togcther the patrol officer defendants:'
cannot attribute any specifie conduct to the remaining individual officers and therelilre fail to
plead facts to "allow the court to draw the reasonable inferences that Ihe de/el1llanl is liable tor
the misconduct alleged:' Sce ECF No. 29-1 at 9 (citing Iqhal. 556 U.S. at 678) (emphasis in ECF
No. 29-1); see also Vinnedge v. Gihbs. 550 F.2d 926. 928-29 (4th Cir. 1977) (noting that tor

* 1983 claims. plaintifTs must allege a "personal connection"

between each individual defendant

and the violation of a constitutional right). In opposition to the motions to dismiss. PlaintifTs
indicate that subsequent to removal. they have been able to "ascertain with greater specificity as
to which officers were involved in the direct brutalization of PlaintifTs. which ollicers failed to
intervene to prevent the brutalization to Plaintiffs. and the supervising officers who are believed
to have been involved with the remaining accusations:'

ECF No. 49 at 8. However. Plaintiffs

have not moved to amend their Complaint based on this infon11ation. and the allegations as set
forth in their Complaint fail to provide enough specificity to put the individual officers on
sufficient notice of the possible claims against them.

10

Plaintiffs argue that attributing all claims to all 18 individual police officcrs through
"group plcading" is sufficient to state a plausible claim for rclief in advance of discovery. ECF
No. 49 at 9. In support of thcir argumcnts. Plaintiffs cite to J. A. \'. Mil'llnda, No. PX- I6-3953.
1017 WL 3840026, at *3 (D. Md. September L 2017) where the Court notcd that "Rule 8(a) is
not so rigid that it requircs a plaintill without the benelit of discovery. to eonncet every single
alleged instance of misconduct in the complaint to cvcry single specific officer." But unlike the
defendant otliccrs in J\Jil'llnda, Plaintiffs arc unable to identify evcn a limitcd group of ofliccrs
actually responsiblc lor the alleged harms. Rathcr, Plaintiffs seemingly list cvery possiblc officcr
they can find. potentially including otlicers that were not present on thc sccne or omitting others
that were. Such an approach falls short of that which is required to overcome a motion to
dismiss. See Proc/or

I'.

,\Je/ro. Mone)' S/ore Corp .. 579 F. Supp. 2d 724. 744 (D. Md. 1008) ("At

worst. the repeated rcfrain that all three individuals committed each and every act must be read
as an allegation that onc of the three did each act. an assertion that amounts to speculation and
which is defieient under Tll'ombl)'. ").
Regardless, even if PlaintitlS were able to assign specific names responsible for thesc
alleged "brutalizations,"

Plaintiffs only allege vague and conclusory statements supporting

claims of battery and excessive force against all otlicers othcr than Rothenbecker and Duncan.
See Calho/ln \'. Prince George '.\'CO/ln/)'. Md .. No. DKC- I2-2014, 2013 WL 2873214. at *3 (D.
Md. July 24. 2013) (dismissing excessive lorce claim where complaint fails to di fferentiate
amongst three individual officers and merely alleges that plaintiff was "beatcn about thc head,
body. and limbs"); see also Dale \'. Ma)'or, No. WDG-14-2152, 2015 WL 5521815, at *9 (D.
Md. Sept 15.2015) (dismissing battery claims because "complaint does not identify which of the
many police otlieers in the complaint committed these alleged batteries. when they occurred. or

11

how they oceun-ed"),' Therefore, Counts I, II. III. V, VI. VII. VIII. and X are dismissed as to all
individual police ofticers other than Rothenbecker and Duncan,
2. Negligence Torts (Counts IV and IX)
Public ofticials, including police ofticers, arc protected by common law immunity from
liability for tortious conduct that occurred while performing discretionary acts within the scope
of his or her ot1icial duties. See Hough/on v. FOrl'e.l'/,412 Md. 578. 585 (20 10) (noting that an
arrest by a police ofticer is a discretionary act within the scope of his or her official duties). For
negligence torts, County police ofticers are also protected by statutory immunity pursuant to ~ 5507(b) of the Courts and Judicial Proceedings Article of the Maryland Code. See Lm'e/ace \',
Anderson. 366 Md. 690. 704 (2001) (noting that this provision codifies existing public ofticial
immunity under common law): see a/so Ilough/on. 412 Md. at 586 (common law public
immunity does not apply to intentional torts), As such. Counts IV and IX must be dismissed as to
all individual police oftieers other than Rothenbecker and Duncan.1>
E. Claims Against County Defendants
I. State Tort Claims (Counts I, II, IV, IX, X)
County Defendants enjoy immunity from tort liability arising out of functions
characterized as "governmental:'
Mon/golllel)'

COUl1ly,

such as running and supervising a police department.

Naill I'.

127 Md. ApI'. 172, 182-84 (1999) (also noting that the Local Government

Tort Claims Act does not provide a waiver of governmental immunity for tortious acts of a

Plaintiffs also Hlil to allege any specific injuries sustained from Anne Arundel County Police Orficer Ilclicoptcr
Pilot "John Doe:" and the Complaint offers no suggestion as to how a helicopter pilot could have contributed to any
or the alleged harms. See ECF NO.2 23. Moreover. Maryland docs not authorize pleadings against lictitiolls
persons. lly'am l'. A/on/}!,ome/:\, County. 127 Md. App. 172. 185 (1999).
b Plaintiffs
attempt to re-classi fy their negligence claims as "a cause of action for gross negligence or f()r torts
committed with malice" in an etlort to bypass public official immunity. ECF No. 49 at 11-12. However. PlaintifTs
have not indicated how such claims are dilTerent from the intcntional torts and constitutional
violations otherwise
alleged, and the Court will not construc the Complaint to include these additional claims. See .Iei/rie.\' \', Waf-I\lar!
5

Stores E.. LI', No. GJII-15-473. 2016 WL 430479, at *4 (D. Md. Feb. 3, 2016) (quoting Zachair Lid. l'. Driggs, 965
F.Supp. 741. 748 n. 4 (D. Md. 1997) ("[AJ plaintiff 'cannot. through the use of motion briefs. amend the
complaint. "').

12

county's agents or employces); see also Clark v. Prince George's C/1/y.. 211 Md. App. 548. 55859 (2013) (holding that county could not bc sued for common law tort liability. including torts of
negligent hiring. retention. or entrustment. arising out of actions of defendant police oflicer).
Moreover. there can be no respondeal SIIperior liability for the intentional malicious conduct of
individual employees. including liED. because such lorts "can never be considered to havc becn
donc in the furtherance of the beneticent purposcs" of the County Defendants. See Jallles ".
Frederick Counly Puhlic Schools. 441

r. Supp.

2d 755. 760-761 (citing Hunler v. Board oj'

Educ. 1!j'Molllgolllel)' Counly. 292 Md. 481. 491 n.8 (1982». Theretlwe. Plaintitfs state tort
claims against County Defendants fail.7
2. Constitutional

Claims (Counts III, V, VII, VII)

Similar to the intentional malicious conduct of individual employees. there is no doctrine
of re,\jJOIlIlealsuperior in ~ 1983 actions. and the County Defendants cannot bc liable for the
alleged constitutional violations of their police oflicers. See MOllell v. Depl. o(Social Sen'ices oj'
Cily 1!j'Nell' York. 436 U.S. 658. 691 (1978) ("we conclude that a municipality cannot be held
liable solely becausc it employs a tortfeasor--or.

in other words. a municipality cannot be held

liable under ~ 1983 on a respondeal superior theory"). County Defendants arc only subject to
liability if Plainti ffs' constitutional violations were the result of an unconstitutional policy.
practice. or custom employed by the County Detendants. See MOllell. 436 U.S. at 690-91.

7 While Plaintiffs concede dismissal
of all claims against the County Executives and police departments. Plaintiffs
do not concede dismissal of any claims against II00vard County Police Chief Gary Gardner and Anne Arundel
County Police Chief Timothy Altomare. However. Plaintiffs do not allege any affirmative conduct of the police
chiefs and fail to state a claim against them in their individual capacities. See jJalt;more City Police IJi!P" l'.
Cherkes. 140 Md. App. 282. 333-34 (2001): see alsa Sha1l' v. Strolld. 13 F.3d 791. 799 (4th Cir. 1994) (supervisor
liability requires a showing that the supervisor was deliberately indifferent to the constitutional violations). To the
extent that the police chiefs arc sued in their official capacities. these claims arc duplicative with the claims against
the County Defendants and will suffer the same fate. See Kel11l1cky\'. Graham. 473 U.S. 159. 165-66 (1985) (citing
,\lonel/, 436 U.S. at 690 n.5 (an official capacity suit against a govcl11lllcnt official is effectively a suit against the
government entity itself).

13

To establish this associated Monell claim. Plaintiffs must "(I) identify the specific policy
or custom at issue: (2) fairly attribute the policy and lault for its creation to the municipality: and
(3) prove the necessary aftirmative link between the identified policy or custom and specific
violation:' Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir. 1987). Plaintiffs assert a litany of
allegedly unconstitutional practices by County Defendants. ECF No. 2 ~~ 100a-n. but have not
alleged any facts to suggest that such practices were created by. supported by. or evident to the
County Defendants. At best. Plaintiffs have pled an isolated incident potentially giving rise to a
constitutional violation. See L({Ii/lml v. Prince GeorKe's Cnly .. J 99 F. Supp. 2d 297. 305 (D. Md.
2002) (dismissing Monell claim where plaintifr"provided

no allegations. except those

surrounding his own arrest or injury"). But mere eonclusory statements that police ofticers were
acting pursuant to such policies. or that such policies even exist. arc insufticient to support
municipal liability under Monell. See Lee \'. () 'Malley. 533 F. Supp. 2d 548. 553 (D. Md. 2007):
see also /vlilligan v. Cily o/Ne\l'Porl News. 743 F.2d 227. 229-30 (4th Cir. 1984) ("[AJ
municipal policy or custom giving rise to

* 1983 liability will not be inferred merely Ii'om

municipal inaction in the face of isolated constitutional deprivations by municipal employees.").
As such. Plaintiffs do not have a viable claim under

* 1983 against County Defendants.

3. Article 24 Claim (Count VII)

In asserting their claim under Article 24 of the Maryland Declaration ofrighls. Plaintiffs
reiterate the same allegations made in support of their claims under the U.S. Constitution. See
ECF No. 2 ~~105-108. Such claims arc identical as Article 24 is read in pari maleria to the
Fourteenth Amendment. Williams. 112 Md. App. at 548: sec also 0I01'({\'. Ilarper. 360 Md. 161.
203-205 (2000) (noting that equal protection claims arc impliedly guaranteed through Article 24
and that excessive force claims brought under Article 24 or Article 26 arc judged under the
Fourth Amendment's "reasonableness standard"). Because Plaintiffs have not brought viable
14

equal protection,

or Monell claims pursuant to ~ 1983 and ~ 1985(3), such claims are

conspiracy,

not viable under Article 24.
However,

unlike PlaintifTs' ~ 1983 claims, a local government

State Constitutional

torts of its employees.

can be held liable for the

See Di Pilla ,'. Doris, 354 Md. 18, 51-52 (1999) ("We

shall now dispcl any doubt in the matter and make clear. as a matter of common
governmental

law, that local

entities do, indeed, have respolldeal superior liability lor civil damages

from State Constitutional
of the employment."):

(1995) (Defendants

violations

committed

by their agents and employees

resulting

within the scope

see also ECF No. 29-1 at 20 (citing As!lloll \'. Browll, 339 Md. 70, 112
acknowledging

re.\jJondeal superior liability for State Constitutional

violations )).
County Defendants
purportedly

argue that because Plaintiffs

used excessive

force in arresting

them:'

fail to identify a county actor "who

Plaintiffs'

No. 29-1 at 19: ECF No. 54 at 3. While true for the individual
motions to dismiss submitted
Rothenbecker

by the County Defendants.

and Duncan, who were employed

subject arrest. remain. Thercforc,

Plaintiffs'

related to the alleged use of excessive

AI1icle 24 claim must fail. ECF
ofticers who havc joined the

Plaintiffs'

excessive

by the County Defendants

force claim against

at the time of the

Article 24 claim against the County Defendants,

force by Rothenbecker

as

and Duncan, cannot be dismissed

at this time.

F. Claims Against the State of Maryland
Finally. Plaintiffs
Maryland

bring their claims against the State of Maryland,

State Police ("MSP"),

Governor

Col. William Pallozzi. and three individual

R

Larry Ilogan. Secretary
Maryland

including the

of the Maryland

State Police Officers.s

State Police

Because Plaintiffs

The individual MSP officers listed have not been served and are not. nor ever werc. MSP employees. ECF No. 45-

1 at II. While Plaintiffs argue that they have obtained police reports and radio logs "demonstrating that Maryland
State Police officers \\-'ere involved with the underlying chase and that at least one Maryland State Police Officer

15

havc not allcgcd any spccific acts or omissions by the State of Maryland. or any of its
employees. Plaintiffs claims must bc dismissed. Thc claims cannot survivc for a numbcr of
additional reasons. as set forth bclow.
First. the Statc of Maryland itself is immune from suit in fedcral court undcr thc Elcvcnth
Amcndment. U,S, Cons!. amend. XI. "Thc ultimatc guarantee of thc Elevcnth Amcndmcnt is that
nonconsenting States may not be sued by privatc individuals in fedcral court:' Board oj'7"lIslees
(!t' University a/Alahal/1a v, Garrell. 531 U.S. 356. 363 (200 I), The Statc of Maryland has

expressly waived its sovereign immunity as to tort actions in slale court subjcct to ccrtain
conditions set forth in the MTCA. See MD Code. State Gov!..

S

12-104. See also Pennhllrsl Stale

School & HO,ljJ.1', Halderl/1an. 465 U.S. 89. 99 n,9 (1984) ("a State's waivcr of sovercign
immunity in its own courts is not a waiver ofthc Elevcnth Amcndment immunity in the fedcral
courts"). As such. Maryland's waiver of sovcrcign immunity docs not apply in this case.
Second. Plaintiffs have not complied with the requircments ofthc MTCA nccessary to
bring their tort claims in statc court. At thc time of Plaintiffs' arres!. on June 3. 2014. thc MTCA
provided that a claimant may not institute a tort action against thc State unlcss thc claimant
submits a writtcn claim to thc Trcasurer within onc year aftcr the injury occulTcd. See MD Codc.
Statc Gov!.

S

12-106(b)(I) (1995): see also Condoll v, Slale. 332 Md. 481. 485-86 (1993) ("Thc

Maryland Tort Claims Act ... waivcs thc Statc's immunity from tort liability in ccrtain cases. but
requires that a claim first bc tilcd within a designatcd time period with the State Treasurcr as a
prerequisite to initiating a lawsuit against the Statc:)
make timely notiticationto

Plaintiffs do not dispute that they failed to

the Treasurer but instead arguc that they "substantially complied"

was directly involved in subduing [Thomas]:' ECF No. 51 at 8. such facts arc not alleged in the Complaint.
Regardless. the claims against any additional un-named MSP officers must be dismissed for the same reasons that
these claims are dismissed against the individual County police ofiicers who have joined the Illotions to dismiss
herein.

16

with the requirements of the MTCA or. alternatively. that the State of Maryland had m:tuai or
constructive notice of their claim. ECF No. 51 at 5-9. However. Plaintiffs also failed to make
this argument in a timely manner. Pursuant to Local Rule I05(2)(a). Plaintiffs had fourteen days
to respond to the State of Maryland's Motion to Dismiss. tiled on October 13.2017. ECF No. 45.
Plaintiffs' Opposition. ECF No. 51. was tiled on November 2. 2017. approximately one week
late. The State of Maryland moves to strike Plaintiffs' Opposition as untimely. lOCI'No. 56. to
which Plaintiffs have not replied. Having received no request for leave of court to excuse the late
filing. or an explanation for the late filing. the Court will strike Plaintiffs' Opposition9
Third. Plaintiffs do not state a viable claim against the MSP. Governor Hogan. or Col.
Pallozzi. The MSP is a principal department of the State Govcrnmcnt. Md. Code. Pub. Safety.
~ 2-20 I. and a suit against the MSP is a suit against thc State itself: As such. MSP lacks thc
capacity to be sued. See Owens ". Baltimore Cily Stllie '.\'Ally's Office .. 767 F.3d 379. 393 (4th
Cir. 2014) (citing Boyer

1'.

Siale. 323 Md. 558.594 n.1 (1991 )). And like the County Pol icc

Chiefs, state personnel are immune from liability for tortious conduct committed within the
scope of their public duties without malice or gross negligence. Md. Code Cts. & .Iud. Proc. ~ 5522(b). This immunity applies to both intentional torts and constitutional torts. See I.ee ". Cline.
384 Md. 245. 257 (2004). The Complaint does not attribute any acts or omissions to either
Governor I-logan or Col. Pallozzi suggestive of an act of malice or gross negligence necessary to
ovcrcome immunity. or even personal knowledge or involvement with the circumstances
surrounding Plaintiffs' arrest. As such. claims against these officials in their individual capacities
must be dismissed. To the extent that they are sued in their official capacities. those claims are
again duplicative with those against the State of Maryland and must also be dismissed.
Even if the Court accepts Plaintiffs' untimely Opposition. the Court will not excuse Plaintiffs' f..lilurc 10 make a
timely notification under the MTCA. Plaintiffs have not identified any case la\\/ whereby a Maryland court has
applied the doctrine of substantial compliance to excuse an untimely notification made under the MTCA or allowed
a plaintilTto rely 011 constructive notification in lieu of complying \\'ith the MTCA.

<)

17

IV.

CONCLUSION
For the foregoing reasons, Howard and Anne Arundel Counties' motions to dismiss, ECF

Nos. 29, 30, 31, 35, shall be granted, in part, and denied, in part. Prince George's County's
Motion to Dismiss, ECF No. 36. shall be denied as moot. The State of Maryland's Motion to
Dismiss, ECF No. 45, and Motion to Strike Plaintiff s Opposition brief as time-barred. ECF No.
56, shall be granted. A separate Order follows.

Dated: December

Zp 2017
GEORGE J. HAZEL
United States District Judge

18