United States District Court, D. Maryland
W. Grimm United States District Judge
December 12, 2016, Michael Moment filed suit pursuant to 28
U.S.C. 91983 against Renee Mortel, alleging that on February
3, 2011, Mortel illegally initiated an indictment against him
in Montgomery County, Maryland. He claims Mortel was an
"ordinary citizen" without legal authority to
investigate or indict him for a crime committed outside
Prince George's County. He claims that he was subjected
to illegal prosecution and illegal imprisonment, and seeks $5
million dollars in damages. Compl. 2-3, ECF No. I.
February 4, 20JI, Moment was indicted in the Circuit Court
for Montgomery County for intimidating or corrupting an
officer of the court and threatening a state official. Docket
No. 2, Maryland v. Moment, No. 117643C (Cir. Ct.
Montgomery Cty., Md. Feb. 4, 2011). The Chief Judge of the
Maryland Court of Appeass designated the Honorable Dwight D.
Jackson, Associate Judge of the Circuit Court of Maryland for
Prince George's County, to sit alone or with one or more
other judges as a judge of the Circuit Court of Maryland for
Montgomery County to hear the case. Id. Docket No.
10. Assistant State's Attorney Renee Mortel Joy was the
prosecutor in the case. Id. Docket NO.3. On August
8, 2011, Moment was found guilty on all counts and was later
sentenced to a term of incarceration. Id. Docket
Nos. 126, 145.
filed the Complaint under 28 U.S.C. S 1915,  which
permits an indigent prisoner to commence an action in federal
court without prepaying the filing fee. To protect against
abuse of this privilege, the statute requires a court to
dismiss any claim that fails to state a claim for which
relief may be granted or seeks monetary relief from a
defendant who is immune from such relief." 28 U.S.C. SS
1915(e)(2)(B)(ii), (in), 1915A(b)(1) (2). This Court is
mindful of its obligation to liberally construe the pleadings
of pro se litigants such as Moment. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se
complaint, a plaintiffs allegations are assumed to be true.
Id. (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Nonetheless, liberal construction
does not mean that a court can ignore a clear failure in the
pleading to allege facts which set forth a claim cognizable
in a federal district court. See Weller v. Dep't of
Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990);
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985) (stating a district court may not
"conjure up questions never squarely presented".
rights action under 42 U.S.C. S 1983 addresses unlawful
conduct under color of law. See Owens v. Baltimore City
State 's Attorney Office, 767 F.3d 379, 402 (4th
Cir. 2014). To state a claim under 42 U.S.C. S1983, a
plaintiff must demonstrate (1) that he was "deprived of
a right secured by the Constitution or laws of the United
States" and (2) that "the alleged deprivation was
committed under color of state law." Am Mfrs. Mut.
Insur. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
Specifically, the person charged with the civil rights
violation must be a state official; someone who has acted
with a state official; someone who has obtained significant
aid from a state official; or someone whose conduct is
somehow attributable to the state. Id. at 57-58. If
a defendant was acting as a private citizen, then the
defendant is not amenable to suit under S 1983. Id.
Plaintiff alleges that Mortel Joy was acting as "an
ordinary citizen" without legal authority when she
prosecuted him. Compl. 2. Under these alleged facts,
Defendant is not amenable to suit under S 1983. Consequently,
this matter must be dismissed for failure to state a claim.
what Plaintiff claims, it is likely Defendant was actually
acting in her capacity as an Assistant State's Attorney
in the matter at issue. If so, Defendant is entitled to
absolute immunity from civil liability for alleged conduct
-'intimately associated with the judicial phase of the
criminal process." Imbler v. Pachtman, 424 U.S.
409, 430 (1976). "In other words, absolute immunity is
afforded prosecutors when acting 'within the advocatess
role.' " Dababnah v. Keller-Burnside, 208
F.3d 467, 470 (4th Cir. 2000) (quoting Buckley v.
Fitzsimmons, 509 U.S. 259, 278(1993)).
Imbler, the Supreme Court stated that a prosecutor,
acting within the scope of his or her duties in initiating
and prosecuting a case, has the same absolute immunity from
liability for damages for alleged violation of another's
constitutional right, notwithstanding that such '
immunity leaves the genuinely wronged defendant without civil
redress against a prosecutor whose malicious or dishonest
action deprives him or her of liberty. Imbler, 424
U.S. at 427. The Court explained that if the prosecutor had
only a qualified immunity, the threat of litigation would
undermine performance of the prosecutorss duties. Public
trust of the prosecutorss office would suffer if he or she
were constrained in making decisions by potential liability
for damages. And if the prosecutor could be made to answer in
court each time he or she was charged with wrongdoing,
attention would be diverted from the duty of enforcing
criminal laws. Id. Noting that prosecutors often act
under strict constraints of time and a prosecutor may make
decisions that engender colorable claims of constitutional
deprivation, the Court reasoned that defending such decisions
could impose unique and intolerable burdens upon a
prosecutor. Id. at 426. Therefore, the Court
concluded that permitting only qualified immunity to a
prosecutor could have an adverse effect upon the functioning
of the criminal justice system. Id. at 426-27.
noted, absolute prosecutorial immunity may not apply when a
prosecutor is engaged In other tasks, such as investigative
or administrative assignments. Id. at 430;
Harlow v. Fitzgerald, 457 U.S. 800, 811 n.16 (1982);
Van De Kamp v. Goldstein, 555 U.S. 335, 342-13
(2009). Therefore, when asked to determine whether a
prosecutor is entitled to absolute immunity, a court examines
"the nature of the function performed, not the identity
of the actor who performed it." Forrester v.
White, 484 U.S. 219, 229 (1988). Preparation of the
indictment is clearly within the ambit of the protection
contemplated by absolute judicial immunity. See Kalina v.
Fletcher, 522 U.S. 118, 129 (1997) (upholding absolute
immunity for prosecutorss actions related to the preparation
and filing of charging documents); Buckley, 509 U.S.
at 273 (holding that a prosecutor is entitled to absolute
immunity for "the professional evaluation of the
evidence assembled by the police and appropriate preparation
for its presentation at trial or before a grand
jury after a decision to seek an indictment has been
made"). Moment's claims against Defendant directly
challenge her involvement in the preparation of the
indictment which is a prosecutorial function clearly within
the judicial phase of the criminal process. Defendant's
actions initiating and pursuing a criminal prosecution
against him fit squarely within the range of absolute
a colorable claim were raised, the Complaint presents
questions concerning timeliness. While S 1983 provides a
federal cause of action, it "looks to the law of the
State in which the cause of action arose, " adopting the
statute of limitations applicable in the relevant state for
personal-injury torts. Wallace v. Kato, 549 U.S.
384, 387 (2007) (citing Owens v. Okure, 488 U.S.
235, 249-50 (1989); Wilson v. Garcia, 471 U.S. 261,
279-80 (1985)). In Maryland the applicable statute of
limitations is three years from the date of the occurrence.
See Md. Cts & Iud. Proc. Code Ann. S 5-101. At the
latest, this claim arose on November 7, 2011, when Moment was
sentenced. When Moment filed this Complaint on December 12,
2016, the three-year limitations period had long expired.
Consequently, this matter must also be dismissed as time
forma pauperis statute at 28 U.S.C. S 1915(g) provides that a
prisoner may not bring a civil action without complete
prepayment of the appropriate filing fee if the prisoner has
brought, on three or more occasions, an action or appeal in a
federal court that was dismissed as frivolous, as malicious,
or for failure to state a claim upon which relief may be
granted, unless the prisoner is in imminent danger of serious
physical injury. As Moment was incarcerated at the time he
initiated this Complaint and for the reasons stated above,
the Complaint fails to state a claim upon which relief may be
granted. Accordingly, a first "strike" will be
assigned to Moment pursuant to 28 U.SC. s 1915(g). Conclusion
For these reasons, the Court will deny and dismiss the
Complaint with prejudice for failure to state a claim. A
"first strike" will be assigned to Moment pursuant
to 28 U.S.C. § 1915(g) in a separate Order to follow.