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Nero v. Mosby

United States District Court, D. Maryland

August 23, 2018

Edward Michael Nero, et al.
Marilyn Mosby, et al. Brian Scott Rice
Marilyn Mosby, et al. Alicia White, et al.
Marilyn Mosby, et al.


          Catherine C. Blake, United States District Judge.

         This is a consolidated civil action arising out of criminal prosecutions against several police officers after the death of Freddie Carlos Gray Jr. ("Gray") in Baltimore, Maryland. The court has before it Defendant Samuel Cogen's Renewed Motion to Dismiss [ECF No. 9l], [1]which has been fully briefed by the parties. No. oral argument is necessary to resolve the motion. Local Rule 105.6 (D. Md. 2016). For the reasons that follow, the motion will be granted.


         The court provides only a brief summary of the factual allegations. A full discussion is contained in the Corrected Memorandum and Order Re: Dismissal Motions [ECF No. 54].[2]

         Around 9:15 AM on April 12, 2015, Baltimore City police officers detained and arrested Gray for allegedly possessing an illegal knife under the Baltimore City Code. Corrected Mem. & Order at 47-48. The officers placed him in the back of a police wagon. Id. at 48. At the time of the arrest, Gray was not suffering from any medical emergency. Id.

         The police wagon made four stops before reaching the police station. Id. One block south of the arrest location, officers removed Gray from the wagon, switched his handcuffs for flex cuffs, and placed shackles on his legs. Id. at 49. At both of the final two stops, Gray asked for medical assistance. Id. at 49-51. When the wagon arrived at the police station, Gray was unresponsive. Id. He was transported to the University of Maryland Shock Trauma Unit for surgery and died a week later from a spinal cord injury. Id. After the State Medical Examiner ruled his death a homicide, six officers (Caesar Goodson, Edward Nero, Garrett Miller, Brian Rice, Alicia White, and William Porter) were suspended and arrested on charges relating to his death. Id. at 3.

         On May 1, 2015, Major Samuel Cogen ("Cogen") of the Baltimore City Sheriffs Office signed the Application for Statement of Charges and corresponding probable cause affidavits for each of the officers charged (collectively, "Application"). Id. at 4 n.6. The Application was submitted to a Maryland state court Commissioner, who approved it and issued warrants for the officers' arrests. Id. at 4.

         The same day, Marilyn Mosby ("Mosby"), the State's Attorney, held a press conference to announce that she had conducted an independent investigation of Gray's death and planned to pursue charges against the six officers. Id. at 4-5. She read verbatim from the Application. Id. at 4, 23. She explained that accusations against the six offers were not an indictment of the entire police force and that the case would not harm the working relationship between police and prosecutors in the state. Id. at 5 n.8, n.9. She also called for peace. Id. at 6 n.10.

         Following indictments by a grand jury, none of the six officers was convicted of any crime. Three officers proceeded to a bench trial and were acquitted, and one officer proceeded to a jury trial but the jury could not reach a unanimous verdict. Id. at 7. Charges against that officer and two others ultimately were dismissed. Id.

         Subsequently, five of the six officers filed lawsuits against Mosby, Cogen, and the State of Maryland in federal court.[3] Plaintiffs' legal theories included false arrest and false imprisonment, malicious prosecution, abuse of process, defamation, false light, conspiracy, Section 1983 violations of the Fourth and Fourteenth Amendments, and violations of the Maryland Declaration of Rights Articles 24 & 26. The cases were consolidated in this court with Nero as the lead case.

         Defendants sought dismissal of all claims. Following oral argument, this court dismissed all claims except malicious prosecution (based on Section 1983 violations of the Fourth Amendment, the Maryland Declaration of Rights, and state common law), defamation, and false light. Mat 46. The court also dismissed all claims against the State of Maryland. Id.

         Mosby appealed the decision on February 3, 2017. On May 7, 2018, the Fourth Circuit reversed this court's decision, holding that all malicious prosecution claims against Mosby were barred by absolute prosecutorial immunity. See Nero v. Mosby, 890 F.3d 106, 119-24 (4th Cir. 2018). The Fourth Circuit also found that Mosby's press conference statements were made within the scope of her employment and without malice or gross negligence so that she was entitled to statutory immunity under the Maryland Tort Claims Act ("MTCA") for the defamation and false light claims. Id. at 126-31.

         The Fourth Circuit did not address any of the claims relating to Cogen or the State of Maryland.[4] Following this decision, Cogen moved to dismiss all remaining claims against him.


         When ruling on a motion under Rule 12(b)(6), the court must "accept the well-pled allegations of the complaint as true" and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 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) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). "To satisfy this standard, a plaintiff need not 'forecast' evidence sufficient to prove the elements of the claim. However, the complaint must allege sufficient facts to establish those elements." Walters, 684 F.3d at 439 (citation omitted). "Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is 'probable,' the complaint must advance the plaintiffs claim 'across the line from conceivable to plausible.'" Id. (quoting Twombly, 550 U.S. at 570).

         Following the Nero decision, Cogen is the remaining defendant in this case. The only pending claims against him are the malicious prosecution claims (based on Section 1983 violations of the Fourth Amendment, the Maryland Declaration of Rights, and state common law) and the defamation and false light claims. Corrected Mem. & Order at 46, ECF No. 54.

         A. Section 1983 Claim

         The court will dismiss Plaintiffs' Section 1983 claim because the Fourth Circuit decision leaves little room for doubt that probable cause existed to bring charges against the Plaintiffs. Furthermore, Cogen is entitled to qualified immunity.

         1. Probable Cause&Lack ...

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