United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
pending and ready for resolution in this civil rights case is
Defendant's motion to dismiss counts II, III and IV. (ECF
No. 5). The issues are fully briefed, and the court now
rules, no hearing being deemed necessary. Local Rule 105.6.
For the reasons that follow, Defendants' motion will be
(“Defendant” or “Cpl. Brauer”) seeks
dismissal of the state law claims in counts II (battery), III
(false arrest), and IV (false imprisonment) of
Plaintiff's (“Higginbotham” or
“Plaintiff”) complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6), contending that Plaintiff failed
timely to provide notice under Maryland's Local
Government Tort Claims Act (the “LGTCA”). Under
Md. Code. Ann., Cts. & Jud. Proc. § 5-304(b) (2015):
“an action for unliquidated damages may not be brought
against a local government or its employees unless the notice
of the claim required by this section is given within 180
days after the injury.” Plaintiff alleges that Defendant
made an unreasonable seizure of Plaintiff on May 14, 2015.
is a longstanding principle of Maryland jurisprudence that
the LGTCA notice provision is a condition precedent to
maintaining an action directly against a local government or
its employees.” Hansen v. City of Laurel, 420
Md. 670, 682 (2011). Satisfaction of the notice requirement
must be pled in the complaint. Id. at 684; Renn
v. Bd. of Comm'rs of Charles Cty., MD, 352 F.Supp.2d
599, 602 (D.Md. 2005) (“Maryland courts have
consistently held that . . . compliance with the
[LGTCA's] notice provision should be alleged in the
complaint as a substantive element of the cause of
action.”). Here, Plaintiff alleges:
On or about July 19, 2016, Plaintiff Higginbotham acted in a
pro se capacity and provided notice of his claims in
this action to the Anne Arundel County Office of Law in a
manner that substantially complied with Maryland's Local
Government Tort Claims Act. On July 28, 2016, Senior County
Attorney Jay H. Creech responded by correspondence in which
he indicated that a copy of Plaintiff's “notice of
claim ha[d] been forwarded to the Risk Management Division of
the Anne Arundel County Office of Central Services” and
that “[a]n investigation would be conducted . .
.” On August 16, 2016, Anne Arundel County Claims
Adjuster Ronald C. Brigerman, Jr. advised Plaintiff
Higginbotham that the investigation concerning his claim
(Claim No. 16-1404) had been complete, and further indicated
that the Anne Arundel County was denying liability.
(ECF No. 1 ¶ 5).
not contesting that his notice was filed well past the LGTCA
deadline, Plaintiff maintains that: (1) his efforts
constitute substantial compliance under the LGTCA because his
late notice did not “impede Anne Arundel County's
ability to investigate” and Defendant has not suffered
any prejudice, and thus “the purpose of the statute has
essentially been fulfilled;” and (2) good cause exists
to forgive his failure to comply strictly with the
LGTCA's notice provision because Plaintiff is an
out-of-state resident who initially attempted to act without
the assistance of counsel. (ECF No. 7, at pp. 4-5).
“Altercation” on May 14, 2015
Plaintiff Stuart Higginbotham, a Delaware citizen (ECF No. 1
¶ 6), was at the Mall following a work assignment on May
14, 2015 (Id. ¶ 8). At about 2:50, he finished
lunch and walked around the Mall. (Id. ¶ 9). He
encountered an altercation between two individuals (Calik
Smith and Morgan Branch) and several mall security personnel
and Anne Arundel County Police Department officers, including
Defendant Jeffrey Brauer. (Id. ¶¶ 10-12).
He did not know any person in this altercation. (Id.
Plaintiff observed the scene, he noticed that Ms. Branch
looked distraught and was “pull[ed]” by mall
security. (Id. ¶ 13). He allegedly witnessed
Cpl. Brauer grab Ms. Branch, place her in a chokehold, and
“forcibly propel [her] to the ground, ” causing
her face to “violently contact the mall floor.”
Higginbotham “commented” to Cpl. Brauer that the
force directed at Ms. Branch was excessive. (Id.
¶ 14). Cpl. Brauer allegedly yelled at Plaintiff to
“shut the fuck up, ” approached him, called him
“ignorant, ” and then struck him to the ground.
(Id. ¶¶ 14-15). Cpl. Brauer allegedly
pushed his knee into Plaintiff's back, manipulated his
arms back, and placed him in handcuffs. (Id. ¶
15). Plaintiff suffered injuries to his right rotator cuff
and nerves in his hands. (Id. ¶ 16). He was
then arrested, transported to the Anne Arundel County Police
Department, and charged with disorderly conduct.
(Id. ¶¶ 21-22). He claims that aside from
commenting on Cpl. Brauer's degree of force, he did not
interfere with Cpl. Brauer's detention of Ms. Branch.
(Id. ¶ 14).
Plaintiff's Actions After May 14, 2015
“Shortly after” the altercation at the Mall,
Plaintiff “attempted to” initiate an Internal
Affairs complaint against Defendant Brauer with the Anne
Arundel County Police Department Professional Standards
Section, although he does not explain what this
“attempt” entailed and when it occurred.
(Id. ¶ 23).
November 11, 2015, acting pro se, Plaintiff issued a
subpoena in his criminal case to direct the Mall to produce
video surveillance. (Id. ¶ 24). On November 23,
2015, counsel for the Mall advised him that “the video
tape [he] request[ed] in [his] Subpoena was turned over to
the Anne Arundel County Police Department some months
ago.” (Id.). On April 17, ...