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Sullivan v. City of Frederick

United States District Court, D. Maryland

January 9, 2018

DANIEL SULLIVAN, Plaintiff
v.
CITY OF FREDERICK, et al., Defendants.

          MEMORANDUM

          James K. Bredar Chief Judge

         Plaintiff Daniel Sullivan is a police officer currently employed by the Frederick City Police Department (“FPD”) in Frederick, Maryland. On July 7, 2017, he brought this lawsuit against the City of Frederick, the FPD, the Chief of (Frederick) Police Edward Hargis in his personal and professional capacities, two other named FPD employees, Cpt. Patrick Grossman and Lt. Thomas Tokarz, both in their personal and professional capacities, and two unnamed FPD employees, John Doe and Jane Doe, both in their personal and professional capacities. (Compl., ECF No. 1.) On September 20, 2017 the Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12). Plaintiff filed an amended complaint on October 18, 2017. (ECF No. 17). Defendants moved to strike the amended complaint on November 17, 2017. (ECF No. 22.) Plaintiff has responded to the motion to dismiss and the motion to strike, and Defendants have replied to both responses. Both motions are therefore ripe for review. There is no need for a hearing to resolve the matter. See Local Rule 105.6 (D. Md. 2016). Plaintiff has failed to state any claim upon which relief can be granted in either his original or amended complaint, and therefore his complaint will be dismissed in its entirety, and Defendants' motion to strike Plaintiff's amended complaint will be granted, by accompanying order.

         I. Background [1]

         In early July 2016 “anti-police demonstrations . . . were occurring all over the country, ” including in Frederick, Maryland. (Id. pp. 3-4, ¶¶ 1-2.) In response, Plaintiff, an FPD police officer, made “‘rapid deployment bags' for the FPD Special Response Team and Street Crimes Unit.” (Id. p. 4, ¶ 2.) In mid-July, Plaintiff decided to host a pro-police “Blue Lives Matter” rally and announced as much on social media. (Id. p. 5, ¶ 7; see Social Media Post, Compl. Ex. G, ECF No. 1-7.)

         The FPD, by means of unspecified “extreme measures, ” encouraged Plaintiff to cancel the rally, and a Lt. Pennington of the FPD, “under . . . pressure” from FPD command, called Plaintiff to “demand” that he cancel the rally. (Compl. pp. 6-7, ¶¶ 10, 14.) Though the nature of this “pressure, ” or what any of the “extreme measures” were, is unclear from Plaintiff's complaint, what is clear is that Plaintiff “politely declined” this alleged demand and held the rally anyway on July 24. (Id. ¶ 14.) Despite attempts by the FPD to discourage other police officers from attending the rally, it was a success. (Id. ¶ 23.) Directly after the rally Plaintiff reported for duty “to work the Frederick Fireworks make-up event” (the July 4 fireworks display had been rained out). (Id. ¶¶ 24, 26.) Plaintiff's was assigned to a busy intersection far from the park and was not assigned a patrol car. (Id. ¶¶ 26-27.) He was the only officer not assigned a patrol car. (Id. ¶¶ 28.)

         Before the rally, on July 20, a “local anarchist” (the “protester”) published a Facebook post that identified Plaintiff as the organizer of the upcoming rally and accused Plaintiff of murder, referring to an officer-involved shooting in Frederick in 2008. (Compl. ¶ 19.) Plaintiff responded with a Facebook post of his own in which he defended himself against the accusation. (Sullivan Facebook Posts, Compl. Ex. N, ECF No. 1-14.) On July 23 another person reposted one of the protester's posts which seemed to call for violence at the July 24 rally. (See Palkovic Facebook Post, Compl. Ex. O, ECF No. 1-15; see also Neely Facebook Post 1, Compl. Ex. D, ECF No. 1-4.) In response, Plaintiff published a Facebook post stating that the protester was mentally ill and that “law enforcement” was “under equipped, and under trained.” (Sullivan Facebook Posts at 3.)

         The following day, July 25, Lt. Tokarz “reprimanded” Plaintiff and stated: “If you ever feel the need to exercise your First Amendment rights again, I hope you come to me your Lieutenant and ask my advice prior to doing so.” (Compl. ¶ 31.) Roughly a week later, Plaintiff informed FPD command that he would be undergoing neck surgery, and Lt. Tokarz ordered him to turn in his gun and badge as a result. (Compl. ¶ 37.) “It was highly unusual for Tokarz to issue an oral order, ” but after someone demanded “written process . . . a written order was signed” in accordance with FPD policy. (Compl. ¶ 39.)

         On September 20, 2016, Lt. Hennyberry informed Plaintiff of an internal investigation that the FPD had been conducting into his Facebook posts.[2] (Compl. ¶¶ 42-43.) The investigation concerned three “charges”: that Plaintiff posted unprofessional remarks regarding the protester's mental health and that law enforcement was under equipped and under trained (two charges), and that he “used [proprietary] information . . . to determine that [the protester] is bi-polar.” (Id. ¶ 47.) Plaintiff was ultimately “exonerated and cleared of any wrongdoing.” (Id. ¶ 52.) On October 7, Plaintiff was “interrogated by Lt. Henneberry” who “appeared to acknowledge that the internal investigation . . . was not supported by any legitimacy or evidence and that [Lt. Hennyberry] was just doing what he had been ordered to do.” (Id. ¶ 59.)

         Plaintiff checked his personnel file on September 22, 2016 and “noticed that at least one of his evaluations for positive performance had been removed.” (Compl. ¶ 53.) This was done to “remove and destroy that particular performance evaluation in order to destroy evidence of a crime committed by a one-time supervisor (now a Lt.), in order for the FPD leadership to promote that individual.” (Id. ¶ 54.) Plaintiff also noticed that there was a letter in his personnel file from eight years prior falsely stating that there were “performance issues . . . regarding the shooting of the Active Shooter even though the Department had been ordered by prior action at law to remove all negative references from [Plaintiff's] personnel file.” (Id. ¶ 56.) The complaint does not explain if these were Plaintiff's “performance issues, ” what the “shooting of the Active Shooter” was, [3] what legal action he is referring to, or what “negative references” were supposed to be removed.

         On January 2, 2017, Plaintiff met with several FPD officers, including Lt. Tokarz, who informed Plaintiff that the investigation was closed and all three charges “were unfounded.” (Compl. ¶ 62.) Tokarz did, however, note several “performance issues” related to the rally that Tokarz wanted to make note of in Plaintiff's file, namely that Plaintiff made deployment bags without informing the chain of command, and had failed to inform command about the rally. (Id. ¶¶ 64, 65.) Plaintiff responded that he had informed some officers about the deployment bags, and asserted that Tokarz's statement regarding the rally was a violation of Plaintiff's first amendment rights. (Id. ¶ 65.)

         As a result of this encounter, Lt. Tokarz produced two memoranda. The first was from Tokarz to Sgt. Carr, Plaintiff's supervisor. (Tokarz Memoranda 1, Compl. Ex. V, ECF No. 1-22.) This memorandum instructed Carr to “make the following evaluation notes in [Plaintiff's] file, ” then listed five sections of the FPD General Orders, and concluded by saying that “These notes should reflect the fact that the above described sections were read and reviewed with [Plaintiff].” (Id.) The second memorandum was from Tokarz to Chief Hargis. (Id. at 2-4.) This memorandum was a recap of the investigation into Plaintiff's Facebook posts and other conduct related to the rally. It noted again that the charges were “unfounded” but that there were several “performance issues, ” and it detailed the meeting Tokarz had with Plaintiff on January 2. (Id.)

         On January 9, Plaintiff filed a Public Information Act (“PIA”) request with the FPD and Frederick County Information Technology Departments and the Office of the Chief of Police, “asking for e-mails and documents related to these matters.” (Compl. ¶ 68.) The Public Information Act is a Maryland state statute that provides for citizens to access certain types of information held by Maryland state government, similar to the Federal Freedom of Information Act. The PIA request “has not been completely responded to.” (Id. ¶ 70.)

         On January 17, 2017, Chief Hargis met with Plaintiff. (Compl. ¶ 73.) Chief Hargis said he had “ordered the negative evaluation” in Plaintiff's personnel record, and he stated that Plaintiff's “exercising his First Amendment speech with the Rally might cause him to, like another officer [Chief Hargis] knew, end up serving ‘two years for manslaughter' in any future shooting.” (Id. ¶¶ 73-74.)

         In July Plaintiff filed the instant action, putting forth eight claims, including first amendment retaliation, an equal protection violation, a civil conspiracy claim, defamation, and violations of two Maryland state statutes. After Defendants moved to dismiss, Plaintiff sought Defendants' consent for additional time to respond to their motion. Defendants consented to additional time and a consent motion was entered by the Court. (ECF No. 15.) On October 18, 2017, more than twenty-one days after Plaintiff had received Defendants' motion, Plaintiff filed a response and an amended complaint. (ECF Nos. 16, 17.) Defendants moved to strike Plaintiff's amended complaint on November 17, 2017. (See ECF No. 22.) Before the Court is Defendants' motion to dismiss (ECF No. 12) and motion to strike Plaintiff's amended complaint (ECF No. 22.)

         II. Standards for Motion to Strike Amended Complaint and Motion to Dismiss

         A plaintiff has twenty-one days after receipt of a Rule 12(b) motion to amend his complaint. Fed.R.Civ.P. 15(a)(1). Under Federal Rule of Civil Procedure 15(a)(2), if a party has missed the Rule 15(a)(1) deadline for amending a pleading, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” “Whether to grant a motion for leave to amend is within this Court's discretion, ” Young v. Giant Food Stores, LLC, 108 F.Supp.3d 301, 308 (D. Md. 2015), and the Court “should freely give leave when justice so requires, ” Fed.R.Civ.P. 15(a)(2). The Fourth Circuit has stated that leave to amend under Rule 15(a) should be denied only in three situations: when the opposing party would be prejudiced, when the amendment is sought in bad faith, or when the proposed amendment would be futile. Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). “[A]n amendment is futile if it ‘would not survive a motion to dismiss.'” Young, 108 F.Supp.3d at 308 (quoting Rawlings v. City of Baltimore, Civ. No. L-10-2077, 2011 WL 1375603, at *4 (D. Md. April 12, 2011)).

         A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' . . . Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

         III. ...


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