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Carey v. Throwe

United States District Court, D. Maryland

January 31, 2019

JOANNE THROWE, et al., Defendants.



         THIS MATTER is before the Court on Defendants Deputy Secretary Joanne Throwe (“Deputy Secretary Throwe”), Captain Edward Johnson (“Captain Johnson”), Captain Charles Vernon (“Captain Vernon”), and Superintendent Robert K. Ziegler's (“Superintendent Ziegler”) Motion to Dismiss and/or for Summary Judgment (ECF No. 25) and Captain Edward Johnson's Motion to Dismiss Count III of the Complaint (ECF No. 13).[1] This 42 U.S.C. § 1983 (2018) action arises from Plaintiff Norris Paul Carey, Jr.'s termination from the Maryland Department of Natural Resources (“DNR”) and the revocation of his Law Enforcement Officer Safety Act (“LEOSA”), 18 U.S.C. § 926C (2018), certification card. The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will grant the Motions.[2]

         I. BACKGROUND[3]

         On December 31, 2013, Carey retired from the Maryland Natural Resources Police (“MNRP”) after twenty-six years of service. (Am. Compl. ¶ 8, ECF No. 21). Three months prior to retiring from MNRP, Carey received a Notification of Complaint stating that Carey improperly communicated with another MNRP employee who was under investigation about the content of the investigation. (Id. ¶¶ 10-11). Captain Johnson, who was Captain of the Internal Affairs Unit at that time, oversaw the investigation. (Id. ¶ 13). Carey admitted to speaking with the employee in question, but denied disclosing any information about the investigation. (Id. ¶ 12). MNRP never brought any charges against Carey related to the Notice of Complaint, and Carey retired from MNRP in good standing. (Id. ¶¶ 19, 22).

         On August 12, 2015, Carey began working for DNR. (Id. ¶ 23). On April 25, 2017, Carey received a LEOSA certification, which allowed him to carry a semi-automatic weapon. (Id. ¶ 69). On May 25, 2017, three months before Carey's contract expired, Deputy Secretary Throwe abruptly fired Carey. (Id. ¶¶ 29-32). She did not give Carey a reason for his termination, and prior to being terminated, Carey's supervisor had assured him that his contract would be renewed. (Id. ¶¶ 33-34).

         Carey alleges that he was fired from DNR in retaliation for two blog posts he submitted anonymously to the Salisbury News Blog (the “Blog”) about Captain Johnson in December 2016 and January 2017. (Id. ¶¶ 44-59). The first blog post (the “December Post”) displayed MNRP's Code of Conduct and Agency Values alongside photographs from Captain Johnson's personal Facebook page of women in “sexually provocative poses and the back of a man wearing a Pagan motorcycle jacket.” (Id. ¶ 52). The second post (the “January Post”) displayed photographs of Captain Johnson's assault weapon and his corresponding comments on Facebook, which made light of guns and gun violence. (Id. ¶ 59). One particular comment stated, “I don't think the game warden can catch us . . . LOL.” (Id.).

         On January 21, 2017, an anonymous commenter on Carey's January Post stated: “Since you seem to be protected on this site Paul Carey your deeds will be spread far and wide elsewhere including disparaging the very Department you're still employed by-for now . . . .” (Id. ¶ 60). On April 28, 2017, Captain Vernon called Carey and informed him that he had not retired from the MNRP in good standing and therefore had to return his LEOSA certification card. (Id. ¶ 70). Carey, confused by this assertion, checked his retirement status with an official of the Maryland Police and Correctional Training Commission who confirmed that he retired in good standing. (Id. ¶ 73). Carey therefore refused to return his LEOSA card, but stopped carrying a concealed firearm. (Id. ¶¶ 74, 81-82). Between May 9, 2017 and May 25, 2017-the date of Carey's termination from DNR-several MNRP officials repeatedly contacted Carey's supervisors at DNR to inform them that Carey had not retired in good standing and that his LEOSA card was invalid. (Id. ¶ 80).

         Around this time, Carey was also participating as a polygraph expert in an unrelated lawsuit regarding the winner of a fishing competition, the White Marlin Open (the “White Marlin Litigation”). (Id. ¶¶ 86-90). On May 8, 2017, Captain Johnson emailed Carey about the White Marlin Litigation in what Carey perceived to be a threatening manner. (Id. ¶ 92). Captain Johnson's email stated: “What is the date and time for the White Marlin Open trial in Baltimore Federal Court?” (Id. ¶ 91). An anonymous post also appeared on the Blog that stated, “[c]onsider the drama in court when they learn one of the polygraph examiners has a less than stellar background and lacks integrity.” (Id. ¶ 93). On June 15, 2017, Captain Johnson wrote on the Facebook page for the White Marlin Open: “Too bad one of the polygraphers-Paul Carey, has the integrity of a lifer on death row.” (Id. ¶ 101).

         On January 18, 2018, Carey sued the MNRP, Deputy Secretary Throwe, Captain Johnson, and Captain Vernon. (ECF No. 1). On May 3, 2018, Carey filed an Amended Complaint that terminated MNRP as a Defendant and added MNRP Superintendent Ziegler as a Defendant. (ECF No. 21).

         In his three-Count Amended Complaint, Carey alleges: First Amendment free speech retaliation under 42 U.S.C. § 1983 against Deputy Secretary Throwe, Captain Johnson, and Captain Vernon (Count I); violation of Carey's right to a LEOSA certification card under § 1983 against Superintendent Ziegler and Captain Vernon (Count II); and defamation per se against Captain Johnson (Count III). (Am. Compl. ¶¶ 105-32). Carey seeks declaratory and injunctive relief as well as monetary damages. (Id. at 17-20).

         On April 13, 2018, Captain Johnson filed a Motion to Dismiss Count III of the Complaint. (ECF No. 13). Carey filed an Opposition on April 25, 2018. (ECF No. 17). To date, the Court has no record that Captain Johnson filed a Reply.

         On July 2, 2018, Defendants filed a Motion to Dismiss and/or for Summary Judgment. (ECF No. 25). On August 7, 2018, Carey filed an Opposition. (ECF No. 29). On September 24, 2018, Defendants filed a Reply. (ECF No. 30).


         A. Defendants' Motion to Dismiss and/or for Summary Judgment

         1. Conversion of Defendants' Motion

         Defendants style their Motion as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule 56. A motion styled in this manner implicates the Court's discretion under Rule 12(d). See Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D.Md. 2011), aff'd, 684 F.3d 462 (4th Cir. 2012). Pursuant to Rule 12(d), when “matters outside the pleadings are presented to and not excluded by the court, the [Rule 12(b)(6)] motion must be treated as one for summary judgment under Rule 56.” The United States Court of Appeals for the Fourth Circuit has articulated two requirements for proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion. First, that the “parties be given some indication by the court that it is treating the 12(b)(6) motion as a motion for summary judgment” and second, “that the parties first ‘be afforded a reasonable opportunity for discovery.'” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985)).

         When the movant expressly captions its motion “in the alternative” as one for summary judgment and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur. See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005). “[T]he party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.'” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). Rule 56(d) provides that the Court may deny or continue a motion for summary judgment “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” “[T]he failure to file an affidavit under Rule 56[(d)] is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.” Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994)).

         Here, Defendants caption their Motion in the alternative for summary judgment and attach supporting affidavits for the Court's consideration. In response, Carey filed a Rule 56(d) affidavit, requesting discovery. (Carey Aff., ECF No. 29-1). In light of Carey's affidavit and because the Court does not rely on the supporting affidavits ...

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