United States District Court, D. Maryland
HOWARD FISH, JR.
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
Catherine C. Blake United States District Judge.
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.
dispute concerns alleged injuries Fish sustained during his
arrest on June 7, 2014.(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. (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).
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).
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).
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.
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).
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.
Baltimore City's Motion to Dismiss
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.
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 ...