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Fish v. Mayor and City Council of Baltimore

United States District Court, D. Maryland

January 10, 2018

HOWARD FISH, JR.
v.
MAYOR AND CITY COUNCIL OF BALTIMORE, BALTIMORE CITY POLICE DEPARTMENT, OFFICER KEVIN TOADE, OFFICER ALLEN, HYATT HOTELS CORPORATION OF MARYLAND, DAVE PECKOO, BISTRO 300 LOUNGE, and DAVE PECKOO SECURITY COMPANY

          MEMORANDUM

          Catherine C. Blake United States District Judge.

         Plaintiff Howard Fish, Jr. (“Fish”) brings this lawsuit against defendants Mayor and City Council of Baltimore (“Baltimore City”), Baltimore City Police Department (“BPD”), Officer Kevin Toade (“Toade”), Officer Allen (“Allen”), Hyatt Hotels Corporation of Maryland (“Hyatt”), Dave Peckoo (“Peckoo”), Bistro 300 Lounge, and Dave Peckoo Security Company seeking damages for alleged violations of state and federal law related to his June 2014 arrest. Now pending are defendant Baltimore City's motion to dismiss (ECF No. 9), defendant BPD's motion to dismiss (ECF No. 10), defendants Hyatt's and Peckoo's motion to dismiss (ECF No. 11), and plaintiff Fish's motion for leave to amend the complaint (ECF No. 28). For the reasons set forth below, Baltimore City's and BPD's motions to dismiss will be granted. Hyatt's and Peckoo's motion to dismiss will be granted in part and denied in part. Fish's motion for leave to amend the complaint will be granted in part and denied in part.

         BACKGROUND

         This dispute concerns alleged injuries Fish sustained during his arrest on June 7, 2014.[1](ECF No. 7, && 30-50). Late in the evening on that date, Fish dined at defendant Bistro 300 Lounge, a restaurant located inside the Hyatt Regency Inner Harbor Hotel, with his friend, Mr. Spencer Corbett (“Corbett”) and two female friends.[2] (ECF No. 7, && 30-33). While Fish and his companions were eating dinner, a stranger approached them and informed them they “need[ed] to hurry up and eat” because the restaurant would be closing soon. (ECF No. 7, & 33). Immediately after this stranger approached, defendant Peckoo “rushed to the table” and insisted Fish and his companions leave Bistro 300 immediately. (ECF No. 7, & 34). This encounter turned violent when Peckoo rushed Fish and pushed him before leaving the table. (ECF No. 7, & 37). Fish and his companions remained at the restaurant “discussing their legal options” after their first encounter with Peckoo. (ECF No. 7, & 39).

         After the initial altercation, defendants Officers Toade and Allen of the defendant BPD arrived on the scene accompanied by Peckoo. (ECF No. 7, & 40). The officers allegedly approached Fish and asked Fish to come to them. (ECF No. 7, & 42). As Fish complied, Toade, Allen, and another security officer “attacked [Fish], punched him in the face…violently tackling him to the ground causing serious bodily injury to [his] face, shoulder, knee and back.” (ECF No. 7, && 42-43). The officers then arrested Fish and Corbett for second degree assault of Peckoo. (ECF No. 7, & 46). At the precinct, a paramedic checked Fish's head wound, but the police did not transport Fish to a hospital for further treatment. (ECF No. 7, & 49). Fish was released from police custody and subsequently went to a hospital where he was treated for “multiple severe injuries.” (ECF No. 7, & 50). The charges against Fish and Corbett were ultimately dismissed. (ECF No. 7, & 51).

         Fish filed a complaint in the District of Maryland on May 24, 2017. (ECF No. 1). On June 25, 2017, Fish filed an amended complaint, alleging nine counts: (I) Assault and Battery against Peckoo; (II) Battery against Allen, Toade, and Peckoo; (III) Violation of Maryland Declaration of Rights, Articles 24 and 26 against Baltimore City, BPD, Toade, and Allen; (IV) False Arrest against Toade and Allen; (V) Malicious Prosecution against Toade and Allen; (VI) Intentional Infliction of Emotional Distress against Toade, Allen, and Peckoo; (VII) Negligence against Toade and Allen; (VIII) Negligence against BPD; and (IX) Violation of Civil Rights under 42 U.S.C. § 1983 against Toade and Allen. Four motions are currently pending. Three motions to dismiss by Baltimore City, BPD, and Hyatt and Peckoo respectively were filed on August 18, 2017. (ECF No. 9, 10, 11). Fourth is Fish's motion for leave to amend the complaint, filed on September 22, 2017. (ECF No. 28).

         STANDARD

         When ruling on a motion to dismiss, a court must accept “all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). However, courts should not afford the same deference to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint, relying on only well-pled factual allegations, must state a “plausible claim for relief.” Id. at 678. The “mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012). To determine whether a complaint has crossed “the line from conceivable to plausible, ” a court must employ a “context-specific inquiry, ” drawing on the court's “experience and common sense.” Iqbal, 556 U.S. at 680.

         Federal Rule of Civil Procedure 15(a) permits a party to amend its pleadings once as a matter of course. After this, a party “may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). The rule sets forth a liberal standard for amendment, specifying that a court “should freely give leave when justice so requires.” Id. The Fourth Circuit has interpreted this rule to permit denial of leave to amend only where the amendment “would be prejudicial to the opposing party, ” the moving party has acted in “bad faith, ” or amendment of the pleading would be “futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (internal quotation marks and citation omitted).

         ANALYSIS

         Plaintiff asserts nine claims against defendants as listed above. In response, defendants have filed three motions to dismiss: (1) by Baltimore City, (2) by BPD, and (3) by Hyatt and Peckoo. Each motion is addressed in turn.

         I. Baltimore City's Motion to Dismiss

         Fish's complaint alleges one count against Baltimore City based on respondeat superior liability for the actions of BPD officers or employees: Violation of Articles 24 and 26 of the Maryland Declaration of Rights (Count III). (ECF No. 7, & 62). Fish also alleges a ' 1983 claim (Count IX), but as a result of a technical error, failed to bring it against Baltimore City. In response, Baltimore City argues it cannot be held liable for BPD's actions or inactions because BPD officers or employees are neither agents nor employees of Baltimore City. I agree with Baltimore City and will dismiss the complaint against it with prejudice.

         Fish cannot bring state law claims or ' 1983 claims against the City based on the actions of BPD officers or employees. To impose respondeat superior liability, the defendant must have an agency or employment relationship with the alleged wrongdoer. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 392 (1982). Under Maryland law, BPD is not an agency of the City; it is an agency of the state. Pub. Local Laws of Md., Art. 4, ' 16-2 (a) (2014) (“The Police Department of Baltimore City is hereby constituted and established as an agency and instrumentality of the State of Maryland.”); Mayor & City Council of Balt. v. Clark, 404 Md. 13, 26-27 (2008). As a result, “the City does not employ Baltimore police officers ...


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