United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE.
Levon Derrell Weeden suffered injuries following an
altercation with New Carrollton police officers on May 12,
2016. Plaintiff now brings claims under 42 U.S.C. §
1983, the Maryland Declaration of Rights Articles 24 and 26,
and Maryland common law against Defendants Prince
George's County, the City of New Carrollton ("the
City"), New Carrollton Police Department Chief Col.
David Rice, and the following individual police officers:
Officer S. Whiting, Officer C. Marshall, Corporal B.
Robinson, Sergeant K. Banton, and Sergeant K. Lewis
(collectively, "Defendant Police Officers")- ECF
No. 14. Now pending before the Court is Defendants'
Partial Motion to Dismiss. ECF No. 19.No hearing is
necessary. Loc. R. 105.6 (D. Md. 2016). For the following
reasons. Defendants' Motion is granted.
evening of May 12, 2016, Plaintiff overheard Shaheem McNair
tell Defendant Police Officers Whiting, Marshall, and two
other unknown police officers that Plaintiff broke into
McNaifs home and stole certain items. ECF No. 14 ¶ 10.
Plaintiff believed himself to be in danger and, as he began
to move away, he was "violently accosted" by
Defendant Police Officers, who "slammed him into the
ground and handcuffed him." Id. ¶ 11.
While on the ground, one officer stomped on his head and arms
while another stomped on Plaintiffs ankle, causing it to
break. Id. ¶ 12. Plaintiff required surgery on
his ankle and, in August of 2016, underwent a craniotomy
after experiencing "excruciating headaches"
following the incident. Id. ¶ 15. Plaintiff
alleges that this medical procedure resulted in a loss of
"mental mobility, " and he is now physically
limited and unable to return to his place of employment.
Id. Plaintiff further alleges that Defendant Police
Officers' actions were part of a pattern and practice of
abusive police conduct that continues to occur in accordance
with established policies of the City and Prince George's
County, as well as the instructions, supervision, and
guidance of Rice. Id. ¶ 13.
filed his initial Complaint in the Circuit Court for Prince
George's County on May 11, 2017. Defendants removed the
action to this Court on July 19, 2017 and filed a Partial
Motion to Dismiss Plaintiffs Second Amended Complaint on
January 19, 2018. ECF Nos. 1, 19. Since his initial filing,
Plaintiff has amended his Complaint multiple times, and his
current claims are as follows: Section 1983 Claim for
Violation of Plaintiffs' Freedom from Unreasonable
Searches and Seizures Guaranteed by the Fourth and Fourteenth
Amendment (Count 1); Violation of Plaintiff s Freedom from
Unreasonable Searches and Seizures Guaranteed by Maryland
Declaration of Rights Articles 24 and 26 (Count II);
Bystander Liability (Count III); Supervisory Liability (Count
IV); Battery (Count V); Assault (Count VI); and False
Imprisonment (Count VII).
STANDARD OF REVIEW
state a claim that survives a Rule 12(b)(6) motion to
dismiss, a complaint, relying on only well-pled factual
allegations, must state at least a "plausible claim for
relief." Ashcroft v. Iqbal, 556 U.S. 662. 679
(2009). 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 claim has crossed
"the line from conceivable to plausible, " the
court must employ a "context-specific inquiry, "
drawing on the court's "experience and common
sense." Iqbal, 556 U.S. at 679-80. When
performing this inquiry, the court accepts "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
State Constitutional and Common Law Tort Claims (Counts II,
Notice under Local Government Tort Claims Act
Plaintiff failed to provide Defendants with notice of his
claims as required by the Local Government Tort Claims Act
("LGTCA"), Md. Code Ann. Cts. & Jud. Proc.
§ 5-301 et seq., his state constitutional and
common law tort claims must be dismissed with prejudice.
Pursuant to the LGTCA, "an action for unliquidated
damages may not be brought against a local government or its
employees unless notice of the claim required by this section
is given within 1 year after the injury." §
5-304(b)(1); see also Rounds v. Maryland-Nat. Capital
Park & Planning Comm'n, 109 A.3d 639, 648 (Md.
2015) ("[W]e hold that, generally, the LGTCA notice
requirement applies to both state constitutional and
non-constitutional tort claims for unliquidated
Defendant Prince George's County, notice shall be given
to the county solicitor or the county attorney. §
5-304(c)(3)(iii). For any other local government, the notice
shall be given to the "corporate authorities" of
that local government. § 5-304(c)(4). However, failure
to strictly comply with the notice requirements is not fatal
to a plaintiffs action. See Hansen v. City of
Laurel, 996 A.2d 882, 891 (Md. Ct. Spec. App. 2010)
(citing Barbre v. Pope, 935 A.2d 699 (2007))
("It is now well-established that claimants who fail to
comply with the [LGTCA] notice requirements may prosecute
their lawsuits so long as they have substantially complied
with the notice statute."); see also §
5-304(d) ("unless the defendant can affirmatively show
that its defense has been prejudiced by lack of required
notice, upon motion and for good cause shown the court may
entertain the suit even though the required notice was not
provided notice directly to Rice by letter dated January 31,
2017, but Rice is not a "corporate authority" under
§ 5-304(c)(1)(4).&><? ECF No.
19-2. "Corporate authorities are the
political officials of a municipal corporation-the mayor and
city council-not the administrators charged with carrying out
the day-to-day business of the local government."
Hanson, 996 A.2d at 890 (citations omitted) (holding
that City Administrator is not a "corporate
authority"). Therefore, Plaintiff did not strictly
comply with the LGTCA. Plaintiff argues that even if he did
not strictly comply, he' substantially complied because
"Defendants do not allege that their defense [has] been
prejudiced for lack of notice." ECF No. 22 at
However, Plaintiffs substantial compliance argument is
incomplete because Plaintiff has not attempted to demonstrate
good cause for its failure to provide notice as required by
§ 5-304(d). Cf. Moore v. Norouzi, 807 A.2d 632,
643 (Md. 2002) ("substantial compliance requires more
than a mere lack of prejudice to the government
also argues that he provided the City with constructive
notice pursuant to § 5-304(e) because "to the best
of Plaintiff s information and belief, the appropriate
internal procedure is that once the Chief of Police receives
the notice, he notifies the appropriate county officials that
a lawsuit is expected." ECF No. 22 at 3. Section
5-304(e) provides that the LGTCA notice requirements do not
apply if, within 1 year after the injury, the defendant local
government has actual or constructive notice of the
claimant's injury. Section 5-304(e) was adopted on May
19, 2016 and became effective as of October 1, 2016.
See AN ACT concerning ' Local Government Tort
Claims Act-Notice Requirement-Exception, 2016 Maryland Laws
Ch. 624 ("H.B. 637"). Section 2 of H.B. 637
provides that § 5-304(e) "shall be construed to
apply prospectively and may not be applied or interpreted to
have any effect on or application to any cause of action
arising before the effective date of this Act." However,
Plaintiff overlooks the fact that his claim accrued
before promulgation of the LGTCA's exception for
actual or constructive notice provided in § 5-304(e).
Therefore, even assuming the City had actual notice,
Plaintiff has not demonstrated good cause for his failure to
strictly comply with the ...