James K. Bredar United States District Judge
Antonio Ward (“Plaintiff”) brought this suit against Wal-Mart Stores, Inc. (“Walmart”) and Officer Danielle Barber (identified as Badge No. 5241 in the Baltimore County Police Department) (“Barber” and, collectively with Wal-Mart, “Defendants”) alleging deprivation of rights, pursuant to 42 U.S.C. § 1983, as well as violations of state common law and of state constitutional rights. (Am. Compl., ECF No. 14.) Now pending before the Court is Defendant Barber’s motion to dismiss (ECF Nos. 18) and Defendant Wal-Mart’s motion to dismiss (ECF No. 20).
On April 4th, 2012, at approximately 6:30 p.m., Plaintiff went to the Walmart store in Arbutus, MD to purchase an accessory for his mobile phone. (Am. Compl. at ¶¶ 7, 8.) Having just completed his daily physical workout, Plaintiff was wearing athletic apparel. (Id. at ¶ 9.) When he entered Walmart, he walked to the wireless cell phone center located near the front of the store. (Id. at ¶ 10.) Once there, he found a store representative and explained to him what he was looking to purchase. (Id.) In addition, because he was perspiring, he asked the employee if he could have a plastic cover so that he could sit without “soil[ing]” the “customer seat.” (Id.) However, the employee ignored Plaintiff’s requests. Instead, reacting to the fact that Plaintiff was “perspiring onto the floor, ” he turned to a co-worker, whom he referred to as Donna, and asked her if she could have maintenance come to clean the liquid from the floor. (Id.)
The co-worker left the wireless cell phone center and returned a short time later with Defendant Barber, who was wearing her police uniform, and four other Walmart employees, including one who identified himself as an Assistant Manager. (Id. at ¶¶ 11, 15.) None of them was a “maintenance employee.” (Id.) In a loud voice, Barber told Plaintiff: “You urinated on the floor.” (Id.) For several minutes, she continued to berate Plaintiff and to accuse him of urinating on the floor, while threatening him with arrest. (Id.) In addition, Defendant Barber asked Plaintiff whether he had any money to buy a charger “or to justify his presence in the store.” (Id.) At the time, Plaintiff had $300 in cash, as well as a debit card and several credit cards. (Id.) Defendant Barber’s remarks were overheard by several patrons. (Id.)
Shortly thereafter, Officer D.J. Yirka of the Baltimore County Police Department (“Yirka”), as well as an individual who identified himself as the store manager, arrived. (Id. at ¶ 13.) The manager told Plaintiff he had to leave the store. (Id.) Then, at the request of both the manager and Defendant Barber, Yirka ordered Plaintiff to leave the store, threatening him with arrest if he didn’t comply. (Id.)
Plaintiff filed his initial complaint with this Court on April 4, 2013 (ECF No. 1) and filed an amended complaint on October 9 (Am. Compl.). Defendants Barber and Walmart filed their instant motions to dismiss on October 21 (ECF No. 18) and October 29 (ECF No. 20), respectively.
II. LEGAL STANDARD
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) is a test of the legal sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To pass this test, a complaint need only present enough factual content to render its claims “plausible on [their] face” and enable the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff may not, however, rely on naked assertions, speculation, or legal conclusions. Bell Atl. v. Twombly, 550 U.S. 544, 556-57 (2007). In assessing the merits of a motion to dismiss, the court must take all well-pled factual allegations in the complaint as true and construe them in the light most favorable to the Plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). If after viewing the complaint in this light the court cannot infer more than “the mere possibility of misconduct, ” then the motion should be granted and the complaint dismissed. Iqbal, 556 U.S. at 679.
a. Count I—Deprivation of Civil Rights, 42 U.S.C. § 1983
Plaintiff alleges that “[a]s a direct and proximate result of the actions of defendant Barber, Antonio Ward suffered an unlawful seizure in that he was illegally detained and forced to leave an establishment open to the public outside the parameters of law and decency.” (Am. Compl. at ¶ 16.) The Court notes that only Defendant Barber—and not Walmart—is named in Count I.
A claim under 42 U.S.C. § 1983 has four requirements: “(1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused, (3) by the conduct of a person (4) who acted under color of any statute, ordinance, regulation, custom or usage, of any State . . . .” 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 1.04[A] (4th ed. 2013 suppl.) (collecting cases).
With regard to the first element, Plaintiff alleges that he suffered an “unlawful seizure.” As the Fourth Amendment provides an explicit source of textual protection against government seizure, it provides the frame of analysis for Plaintiff’s claim that he was “illegally detained and forced to leave an ...