United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM, UNITED STATES DISTRICT JUDGE
Plaintiff Garry Rosemond Bey is suing Takoma Park Police
Officers Kurt Gilbert and Sada Merriman, Maryland District
Court Commissioner Jeannine Mizell, Maryland State's Attorney
John McCarty and Assistant State's Attorney Michael J.
Algeo, Residential One, LLC and Jetssibel Genao. Defendants
move to dismiss the Complaint, Compl., ECF No. 2,
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a
claim for which relief can be granted, Defs.' Mot., ECF
No. 28. The Motion is fully briefed, Defs.' Mem., ECF No.
28-1; Pl.'s Opp'n, ECF No. 36; Def.'s Reply, ECF No.
39, and no hearing is necessary, Loc. R. 105.6 (D. Md.).
Because Plaintiff fails to state a claim, his Complaint will
arrested in February 2016 on charges of burglary, destruction
of property and theft pursuant to a warrant issued by
Defendant Commissioner Mizell, which allegedly contained
unspecified false statements made by Defendants Takoma Park
Police Officers Gilbert and Merriman and Residential One
employee Genao. Compl. 2. Roughly one month after his arrest,
the state of Maryland elected not to prosecute Bey and
dropped the charges against him. Id. Bey alleges
that his arrest violated his Fourth Amendment
rights and his supposed rights as an individual
of “Moorish” descent, id., and that the
statements made by the police officers and Genao, which were
memorialized in the warrant for his arrest, defamed him,
see Id. at 3.
move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Under this
Rule, Bey'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)).
to withstand dismissal, Bey must make his allegations in a
pleading, such as a complaint or an amended complaint. Where,
as here, a plaintiff attempts to cure pleading deficiencies
by making factual assertions in a memorandum opposing the
motion to dismiss, the Court may not consider them with
respect to determining whether plaintiff has filed a
plausible claim. Zachair, Ltd. v. Driggs, 965
F.Supp. 741, 748 n.4 (D. Md. 1997) (noting that a plaintiff
“is bound by the allegations contained in [his]
complaint and cannot, through use of motion briefs, amend the
complaint”). Bey is proceeding pro se, and his
Complaint is to be construed liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972); however, liberal
construction does not absolve Plaintiff from pleading
plausible claims. See Holsey v. Collins, 90 F.R.D.
122, 128 (D. Md. 1981) (citing Inmates v. Owens, 561
F.2d 560, 562-63 (4th Cir. 1977)).
It is neither unfair nor unreasonable to require a pleader to
put his complaint in an intelligible, coherent, and
manageable form, and his failure to do so may warrant
dismissal. District courts are not required to be mind
readers, or to conjure questions not squarely presented to
Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at *
1 (4th Cir. 1992) (per curiam) (internal citations omitted).
devotes the majority of his Complaint to asserting his rights
under the “Divine Constitution and By-Laws of the
Moorish Science Temple of America” under which he
suggests that he is not subject to the jurisdiction of the
United States insofar as it conflicts with Moorish law.
Compl. 2. I have discussed similar claims before and will not
dwell on this claim. Suffice it to say, courts without
exception have found such claims frivolous, and so do I.
Bey's § 1983 claim, Defendants note in their
Memorandum in Support of their Motion to Dismiss, Defs.'
Mem. 6, that under exceptionally narrow circumstances, a
plaintiff may pursue damages through § 1983 for an
unlawful seizure pursuant to an arrest warrant, Miller v.
Prince George's County, 475 F.3d 621, 627 (4th Cir.
2007). “An accused is generally not entitled to
challenge the veracity of a facially valid . . . warrant
affidavit, ” United States v. Allen, 631 F.3d
164, 171 (4th Cir. 2011), and “[w]here the alleged
Fourth Amendment violation involves a . . . seizure pursuant
to a warrant, the fact that a neutral magistrate . . . issued
a warrant is the clearest indication that the officers acted
in an objectively reasonable manner, ”
Messerschmidt v. Millender, 565 U.S. 535, 546
(2012). But a facially valid warrant can be attacked by
establishing by a preponderance of the evidence that (1)
“a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant
in the warrant affidavit”; and (2) that the false
statement was “necessary to the [neutral
magistrate's] finding of probable cause.”
Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
in the Complaint does Bey even specify which statements in
the warrant affidavit were false, much less provide evidence
that either the police officers or Ms. Genao were
intentionally or recklessly responsible for the inclusion of
the unspecified statements in the warrant affidavit. For the
same reason, it is impossible to conclude from the
allegations in the Complaint that a neutral magistrate would
have found probable cause lacking if the warrant affidavit
were purged of the allegedly false statements. Bey's
conclusory statements do not state a Fourth Amendment
violation that could support a § 1983 claim. See
Iqbal, 566 U.S. at 678.
defamation claim is unavailing for similar reasons. To state
a defamation claim under Maryland law, a ...