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Schloss v. Lewis

United States District Court, D. Maryland

April 12, 2016



J. Frederick Motz United States District Judge

Plaintiffs Toney A. Schloss and Stuart Schloss bring suit against defendants Michael Lewis and William R. Abey seeking damages for violations of the First Amendment, Fourth Amendment, Fifth Amendment, and Fourteenth Amendment pursuant to 42 U.S.C. § 1983; the Maryland Declaration of Rights; and for intentional infliction of emotional distress. Now pending are defendants' separate motions to dismiss, or in the alternative, for summary judgment. The parties have fully briefed the motions, and no oral argument is necessary. See Local Rule 105.6. For the reasons below, Lewis's motion is granted in part and denied in part without prejudice and Abey's motion is granted.


The parties' dispute arises out of a series of events triggered by defendant Michael Lewis's search of plaintiff Toney Schloss's phone at the Centreville Day Fair on June 30, 2012. An adult fairgoer, Ms. Brinkley, and her 12-year-old child, accused Schloss of taking photos of the 12-year-old child with his phone. (ECF No. 25, Ex. 1, ¶¶ 2, 4, 8). Acting on this information, Lewis, a Centreville police officer, began searching for Schloss at the fair. Id. at ¶¶ 9-10. Upon locating Schloss, Lewis questioned him regarding the Brinkleys' complaint and asked Schloss for his phone. (ECF No. 16, Ex. 1). Schloss refused to turn over the phone. Id At this point, Lewis placed Schloss under the guard of other officers and left to question the Brinkleys further-Ms. Brinkley's daughter told Lewis that Schloss asked her for her phone number, asked her if she had a boyfriend, asked her if she would like to kiss a boy, and told her that she was the "prettiest girl that he's seen." Id. When Lewis left the Brinkleys to consult, over the phone, with Queen Anne's County State's Attorney Lance Richardson regarding the situation, a fellow officer informed Lewis that Schloss had started deleting photographs from his phone. Id. Lewis returned to where Schloss was being held and again asked for his phone. Schloss refused to hand over the phone and after a struggle, Lewis gained possession of the phone and searched the phone for images.[1] Id. Lewis identified over 30 photographs of young girls, some in compromising sexual positions and some with sexual organs interposed on their photographs. (See ECF No. 16, Ex. 1; ECF No. 17, Ex. 11). Although his search of the phone was not complete, Lewis accidently locked himself out of the phone and Schloss refused to enter his passcode. (ECF No. 17, Ex. 1). Lewis again called Richardson to advise him of the situation-after that conversation, Lewis told Schloss he was free to go, but kept Schloss's phone. (ECF No. 25, Ex. 1, ¶ 24). According to Schloss, the detainment lasted at least 75 minutes. Id. at ¶ 13.

Almost a week after the initial encounter, on July 6, another officer of the Queen Anne's County Sherriff's Office, Christopher Schwink, submitted an application and affidavit in support of a search warrant for Schloss's cell phone. The District Court for Queen Anne's County issued the search warrant (ECF No. 25, Ex. 1, ¶ 34), and a search of the phone resumed.

After they searched the phone pursuant to the warrant, the Centreville Police Department asked the Maryland State Police for assistance and the Maryland State Police staffed defendant William R. Abey on the case. (ECF No. 17, Ex. 1, ¶ 4). Upon reviewing Lewis's report, speaking to him, and reviewing evidence from Schloss's phone, Abey applied for a second warrant alleging that Schloss was "involved in the possession of child pornography in Queen Anne's County." (ECF No. 25, Ex. 1, ¶ 45). Before formally filing his application for a warrant, Abey submitted the application for review to, two prosecutors in the Queen Anne's County State's Attorney's Office-Richardson and Deputy State's Attorney Christine Dulla-Rickard. (See ECF No. 17, Exs. 7, 9). In the application, Abey requested permission to again search Schloss's phone and to search Schloss's residence for electronic devices, computers, data storage devices, cameras, and media storage devices. (ECF No. 17, Ex. 5). The District Court for Queen Anne's County issued the warrant and state police executed the warrant at Schloss's residence on August 10 at 4:45 am (ECF No. 17, Ex. 1, ¶ 60), recovering "[c]ell phones, computers, the novel 'Lolita, ' a text book entitled 'Sexual Behavior of the Human Female, ' and other personal property, papers and writings."[2] (ECF No. 4, ¶ 82). Abey also alleges that he found over one hundred additional photographs of child pornography on a protected portion of Schloss' cell phone. (ECF No. 17, Ex. 1, ¶ 6). Schloss alleges that during the search, the police "forcibly restrained . .. [and] hand cuffed" him, causing him to suffer recurring pain in his left arm and back. Id at ¶ 81.

After the search, Abey signed an application for a statement of charges-which Dulla-Rickard and Richardson again reviewed-and a Maryland judicial officer formally charged Schloss with 186 criminal law violations, including 177 counts of misdemeanor possession of child pornography, seven counts of felony creation of a computer image of a minor child engaging in sexual conduct, and one count of possession of a controlled dangerous substance. (ECF No. 4, ¶¶ 83, 86-89). Schloss posted $10, 000 bail and was released. (ECF No. 4, ¶103). Concurrent with the arrest, the Maryland State Police issued a news release informing the public that they had arrested Schloss and charged him with possession of child pornography. (ECF No. 4, ¶112).

On September 7, the state dropped all seven felony charges against Schloss. On the same day, Abey sought another warrant for information related to Schloss's email account, which was again reviewed by Dulla-Rickard and Richardson. (ECF No. 17, Ex. 1, ¶ 5). About four months later, Dulla-Rickard filed a criminal information report in the District Court for Queen Anne's county and another arrest warrant was issued for Schloss charging him with four counts of possession of child pornography. The state detained Schloss and he was released upon posting $5, 000 bail. (ECF No. 4, ¶¶ 137-38).

On March 7, 2013, the state, after dropping all other charges, tried Schloss on one count of possession of child pornography in the Queen Anne's County District Court. The court entered a judgment of acquittal at the close of the state's case-in-chief. Toney Schloss now sues Michael Lewis for violations of his First, Fourth, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 (Counts I-III); and violations of his Article 24 rights under the Maryland Declaration of Rights (Count VII). Toney Schloss sues William Abey for violations of his Fourth, Fifth, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 (Counts IV-VI); and violations of his Article 24 and 26 rights under the Maryland Declaration of Rights (Counts VIII-XIII). Lastly, Stuart Schloss sues Abey for intentional infliction of emotional distress (Count XIV).


When ruling on a motion to dismiss, a court accepts "all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint." Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009). Courts, however, should not afford the same deference to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The "mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6)." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012). A complaint, relying on only well-pled factual allegations, must state at least a "plausible claim for relief." Id. at 678. To determine whether a complaint has crossed "the line from conceivable to plausible, " a court must employ a "context-specific inquiry, " drawing on the court's "experience and common sense." Iqbal, 556 U.S. at 680.

Under Federal Rule of Civil Procedure 56(c), a court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986). A genuine issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Accordingly, when reviewing a motion for summary judgment, the court must look at facts and inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

While the moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact, trial courts have an obligation to prevent "factually unsupported claims and defenses from proceeding to trial." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex, 477 U.S. at 323-24). Therefore, in response to a properly supported motion for summary judgment, the non-moving party must, by affidavit or other evidentiary showing, set out specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248-19; see also Adickes v. S. H Kress & Co., 398 U.S. 144, 160 (1970). A court should also enter summary judgment when a party fails to make a showing sufficient to establish elements essential to a party's case, and on which the party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.


Defendants Abey and Lewis have both filed motions to dismiss, or, in alternative, for summary judgment. As an initial matter, I address the posture of defendants' motions, which defendants filed before any discovery began.

Generally, summary judgment "may only be granted after the nonmoving party has had 'adequate time for discovery."' Tinch v. United States, 189 F.Supp.2d 313, 315 (D. Md. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). This rule, however, does not apply when the nonmoving party has not "made an attempt to oppose [a conversion to a motion for summary judgment] on the grounds that more time was needed for discovery or moved for a continuance to permit discovery." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996). Typically, to oppose a conversion, a nonmovant "must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, 'for specified reasons, it cannot present facts essential to justify its opposition' without needed discovery." Hart v. Lew, 973 F.Supp.2d 561, 573 (D. Md. 2013). Here the nonmovants-plaintiffs-have neither submitted Rule 56(d) affidavits, nor opposed defendants' motions for summary judgment; instead, plaintiffs have implicitly acquiesced to the conversion of defendants' motions by submitting their own matters outside the pleadings for the Court's consideration. (See, e.g., ECF No. 24, Ex. 1). Accordingly, since plaintiffs do not appear to oppose defendants' attempts to convert their motions before discovery, I consider defendants' motions as motions for summary judgment.

A. Defendant Michael Lewis's Motion

I address Lewis's motion first. Lewis's interaction with plaintiff Toney Schloss encompasses his stop and questioning of Schloss; his struggle with Schloss over Schloss's phone; and his search of Schloss's cell phone. Schloss asserts four counts against Lewis: three counts alleging violations of the First, Fourth, and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 (Counts I-III), and one count alleging violations of Article 24 of the Maryland Declaration of Rights (Count VII).

I. § 1983 First Amendment Claim (Count I)

In Count I of his Complaint, plaintiff Toney Schloss alleges that Officer Lewis violated his First Amendment rights of free association and free speech by preventing Schloss from taking photographs with his cell phone at the Centreville Day Fair. Because the First Amendment does not protect Schloss's ability to take non-expressive photographs at the Fair, however, I grant Lewis's motion for summary judgment on the claim.

The First Amendment's protections cover not only speech but also conduct that is "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." Texas v. Johnson, 491 U.S. 397, 404 (1989) (internal quotation marks omitted). To invoke the First Amendment's protections, a plaintiff must show that he had: "(1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is sought to be expressed." Montefusco v. Nassau Cty., 39 F.Supp.2d 231, 242 (E.D.N.Y. 1999) (citing Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 568 (1995)). In other words, to plead a viable free speech or a free association claim under the First Amendment, a plaintiff must show that his underlying conduct was either communicative or expressive. See Willis v. Town of Marshall, 426 F.3d 251, 257-59 (4th Cir. 2005) (holding that the First Amendment does not protect nonexpressive conduct). Because the First Amendment protects only conduct that is expressive or communicative, courts have held that the First Amendment does not protect photography lacking such properties. See Larsen v. Fort Wayne Police Dep't, 825 F.Supp.2d 965, 980 (N.D. Ind. 2010) ("The First Amendment, however, does not protect purely private recreational, non-communicative photography."); Porat v. Lincoln Towers Cmty. Ass % No. 04-3199 (LAP), 2005 WL 646093, at *4 (S.D.N.Y. Mar. 21, 2005) (noncommunicative photography is not covered by the First Amendment) aff'd, 464 F.3d 274 (2d Cir. 2006).

Here, Schloss fails to generate any dispute of material fact, or indeed, make any allegation at all that his photography was expressive or communicative-that is, he makes no move to show that he advanced a message with his photography, or that he intended to share his photography with an audience.[3] Thus, Toney Schloss has not proffered facts showing the First Amendment protected his conduct, and I grant Lewis's motion for summary judgment with respect to Count I of plaintiffs' complaint.

II. § 1983 Fourth Amendment Claim (Count II)

In Count II of plaintiffs' complaint, Toney Schloss alleges that Lewis violated his Fourth Amendment rights by unlawfully searching and seizing his cell phone and detaining him. Lewis argues that Schloss's claim fails because Lewis's search and seizure was lawful, or alternatively, that he is immune under the doctrine of qualified immunity.

The doctrine of qualified immunity protects police officers "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotation marks omitted). The "driving force behind [the] creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims against government officials be resolved prior to discovery." Pearson v.Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). If a defendant officer can show either that no reasonable jury could find that his conduct violated a constitutional right, or that the right at issue was not "clearly established in the specific context of the case, " then he will be entitled to a grant of qualified immunity. Merck v.Bauer, 677 F.3d 656, 662 (4th Cir. 2012). A rule is "clearly established" when existing appellate precedent "placed the ...

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