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Bey v. Genano

United States District Court, D. Maryland, Southern Division

April 10, 2017

JETZIBELL GENANO, et al., Defendants.



         Self-represented Plaintiff Garry Rosemond Bey[1] is suing Takoma Park Police Officers Kurt Gilbert and Sada Merriman, Maryland District Court Commissioner Jeannine Mizell, [2]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, [3] 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[4]; 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 be dismissed.


         Bey was 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[5] 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, [6] see Id. at 3.

         Standard of Review

         Defendants 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)).

         Further, 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 them.

Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at * 1 (4th Cir. 1992) (per curiam) (internal citations omitted).


         Bey 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.[7] Suffice it to say, courts without exception have found such claims frivolous, and so do I.

         As for 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).

         Nowhere 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.

         Bey's defamation claim is unavailing for similar reasons. To state a defamation claim under Maryland law, a ...

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