United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
the termination of his employment from the Prince
George's County Police Department, where he worked as a
police officer, Kevin Butterworth filed suit in this Court
pursuant to 42 U.S.C. § 1983, alleging that Corporal
Clarence Black, Lieutenant Jason Fisher, and Prince
George's County (the “County”) harassed him,
suspended him, and terminated his employment in retaliation
for whistleblowing. Compl., ECF No. 1. The County has moved
to dismiss on Younger or
Rooker-Feldman abstention grounds or under the
doctrine of collateral estoppel, based on state court
litigation in which the court found that Butterworth used
excessive force and affirmed the administrative board's
termination of his employment on that basis. Def.'s Mot.
1, ECF No. 14; Def.'s Reply 3, ECF No. 16; Def.'s
Supp. 5-8, ECF No. 32.Dismissal is not warranted under either
abstention doctrine, but the Younger abstention
doctrine requires that I stay his claims, which seek monetary
relief, during the pendency of the state court litigation,
which currently is on appeal. Dismissal is not warranted
under collateral estoppel, either, even though Butterworth is
estopped from re-litigating the factual findings of the state
court. The scope of this litigation is much broader,
encompassing claims that the County retaliated in other ways
and that the termination of his employment, even if justified
by his excessive force, was in retaliation for his
whistleblowing. Therefore, collateral estoppel does not bar
Butterworth's § 1983 claims. Accordingly, I will
deny the County's motion in part and grant it in
November 21, 2013 Kevin Butterworth, who was a County police
officer at that time, responded to another officer's call
for assistance and was pursuing a suspect when a woman
“jumped on his back.” Compl. ¶¶ 54-57.
Butterworth “struck her with his baton” until she
“was subdued.” Id. ¶ 58.
Butterworth was advised on December 11, 2013 that Internal
Affairs would investigate the incident. Def.'s Ex. 2, ECF
on April 16, 2014, before the investigation of the November
incident had concluded,  Butterworth reported to Corporal Kyle
Bodenhorn in Internal Affairs a March 9, 2014 incident in
which Butterworth's immediate supervisor, Defendant
Corporal Clarence Black, “had a citizen strip searched
on the side of the road, without probable cause, in full view
of the public, ” in violation of the citizen's
“civil rights and Prince George's Police Department
policy.” Compl. ¶¶ 5, 23, 29-33. Butterworth
gave Corporal Bodenhorn an “anonymous letter”
regarding the incident for him to “pass. . . on to
higher officials, ” but “[b]y the end of April
2014, word had spread throughout District 4 that Officer
Butterworth had filed a police abuse complaint.”
Id. ¶¶ 33, 34, 42.
claims that “Corporal Black was telling the members of
Officer Butterworth's squad to stay away from Office
Butterworth because he's a ‘snitch' and a
‘rat, '” “not to talk to him, ”
and “not to respond to Officer Butterworth's calls
for back up.” Id. ¶¶ 37- 38, 47.
Three weeks after Butterworth's anonymous letter, on May
7, 2014, Butterworth was suspended “without an official
reason for the suspension.” Id. ¶ 46.
Then, on July 18, 2014, he was suspended again “without
an official reason for the suspension.” Id.
that, the investigation of the November incident concluded
and Butterworth was charged with three counts of excessive
force and four of lying and “served with termination
papers” on September 1, 2014. Id. ¶¶
53-55. The police disciplinary board cleared all but one
excessive force charge, and his employment was terminated
based on that one charge on April 17, 2015. Id.
filed a Petition for Judicial Review in the Circuit Court for
Prince George's County, in which he sought “to
reverse the decision of the Administrative Hearing Board that
found him guilty of Charge 1, use of excessive force.”
Pl.'s Opp'n 7. He did not raise any constitutional
claims in state court. The state court affirmed the
administrative decision “to terminate
[Butterworth's] employment for excessive force, ”
see Def.'s Ex. 13, ECF No. 16-1, and Plaintiff
appealed. See Def.'s Ex. 9, ECF No. 14-9. That
appeal is pending.
the state court issued its ruling, Butterworth filed a
three-count, § 1983 complaint against Corporal Black,
Lieutenant Jason Fisher, and the County, alleging violations
of his First Amendment right to freedom of speech. Compl.
¶¶ 65-83. He believes that he was subjected to
“harassment, threats, an intolerable and hostile work
environment, and termination” in retaliation for
“his whistleblowing police misconduct” regarding
the March 2014 incident. Id. ¶¶ 71, 78,
82. In his view, his whistleblowing “was a substantial
or motivating factor for the adverse employment
action.” Id. ¶ 73. While Plaintiff
characterizes his pleading as one for “declaratory
relief; injunctive relief, damages and to secure protection
of and to redress deprivation of freedom of speech rights,
” he only asks the Court to “[i]ssue a
declaratory judgment that Defendants' acts, policies,
practices and procedures complained of herein  violated
Plaintiff's rights . . . and, Order Defendants to make
whole Plaintiff” and “compensate the Plaintiff
for emotional pain and suffering, and los[t] pay and benefits
. . . .” Compl. 2, 11. He does not seek injunctive
relief. See Id. at 11-12.
County moves to dismiss and/or for summary judgment.
Butterworth'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
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)).
County also asserts collateral estoppel as an affirmative
defense. The Court may consider affirmative defenses such as
collateral estoppel on motions to dismiss only when they
“‘clearly appear on the face of the
complaint.'” 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)). That is not the case here, as Butterworth filed
suit before the circuit court issued its ruling, and
collateral estoppel does not apply until there is a final
adjudication on the merits. GAB Enters., Inc. v. Rocky
Gorge Devel., LLC, 108 A.3d 521, 530 (Md. Ct. Spec.
App.), cert. denied sub nom. Rocky Gorge Dev. v. GAB
Enters., 114 A.3d 711 (Md. 2015). Therefore, I will
treat the County's motion as one for summary judgment
insofar as it relies on collateral estoppel. See
Kalos, 2012 WL 6210117, at *2.
reviewing a motion for summary judgment, the Court considers
the facts in the light most favorable to the nonmovant,
drawing all justifiable inferences in that party's favor.
Ricci v. DeStefano, 557 U.S. 557, 585-86 (2009);
George & Co., LLC v. Imagination Entm't
Ltd., 575 F.3d 383, 391-92 (4th Cir. 2009). Summary
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
County first argues that this Court should abstain from
ruling in this case based on Younger v. Harris, 401
U.S. 37 (1971). Def.'s Mot. 3. The Younger
“requires a federal court to abstain from interfering
in state proceedings, even if jurisdiction exists, ”
when there is “(1) an ongoing state judicial
proceeding, instituted prior to any substantial progress in
the federal proceeding; that (2) implicates important,
substantial, or vital state interests; and (3) provides an
adequate opportunity for the [party] to raise the federal
constitutional claim advanced in the federal lawsuit.”
B.G. v. Malhotra, No. RDB-15-2663, 2016 WL 3384941,
at *6 (D. Md. June 20, 2016) (quoting Laurel Sand &
Gravel, Inc. v. Wilson, 519 F.3d 156, 165 (4th Cir.
abstention is an exception to the general rule that
“federal courts are obliged to decide cases within the
scope of federal jurisdiction, ” and the Supreme Court
has “cautioned . . . that federal courts ordinarily
should entertain and resolve on the merits an action within
the scope of a jurisdictional grant, and should not
‘refus[e] to decide a case in deference to the
States.'” Sprint Commc'ns, Inc. v.
Jacobs, 134 S.Ct. 584, 588 (2013) (quoting New
Orleans Public Service, Inc. v. Council of City of New
Orleans,491 U.S. 350, 368 (1989)
(“NOPSI”)). While the Supreme Court
“has extended Younger abstention, ”
which originally only applied to state criminal prosecutions,
“to particular states civil proceedings that are akin
to criminal prosecutions, or that implicate a State's
interest in enforcing the orders and judgments of its courts,
” the doctrine nonetheless applies only under