United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE.
Christopher Thomas alleges that police officers from the Anne
Arundel County Police Department (“AAPD”) and
Howard County Police Department (“HCPD”) used
excessive force while arresting him after a high-speed
pursuit. After the Court dismissed all of the
claims except those against Howard County, Anne Arundel
County, Officer Jeffrey Rothenbecker, and Officer Jeremy
Duncan, the parties agreed to a scheduling order with
deadlines of April 23, 2018 to amend pleadings and October
15, 2018 for dispositive pretrial motions, and engaged in
over six months of discovery. ECF No. 72. Consistent with the
Scheduling Order, Anne Arundel County and Officer
Rothenbecker filed a Motion for Summary Judgment on October
15, 2018. ECF No. 75. Howard County and Officer Duncan also
filed a Motion for Summary Judgment on October 15, 2018. ECF
No. 76. Plaintiff has responded to the Howard County Motion,
see ECF No. 77, but has not responded to the Anne
Arundel County Motion. Instead, on November 16, 2018, he filed a
Motion for Leave to File a Second Amended Complaint. ECF No.
oppose this motion. ECF Nos. 81, 82. No. hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Plaintiff's Motion for Leave to Amend is denied.
seeks leave to amend his Complaint in two ways of note.
First, Plaintiff seeks to add sixteen named defendants. The
proposed additionally named officers are AAPD Chief Timothy
Altomare, HCPD Chief Gary Gardner, Nathaniel Hollis, Stephen
Hennessey, James Abrashoff, James Morrison, Steven Thomas,
Glenn Wright, Alphonse Fister, Amanda Everly, Joseph
Pazulski, James Horne, Stephen Taylor, Trey Keller, and David
Foster. ECF No. 80-2 at 2-4. Plaintiff also seeks to add
Howard County Executive Allan Kittleman and Anne Arundel
County Executive Steven Schuh, as well as the HCPD and the
AAPD. Id. at 1-2. Second, Plaintiff adds one new
factual allegation to his complaint: that Officer Duncan and
all of the additional officers except the Chiefs punched,
kicked, and dragged Plaintiff repeatedly after taking him
into custody. Id. ¶ 34. Plaintiff re-alleges
the same Assault, Battery, Negligence, Excessive Force,
Conspiracy to Interfere with Civil Rights, Monell,
Maryland Declaration of Rights, Negligent Supervision and
Training, and Intentional Infliction of Emotional Distress
(“IIED”) claims from his original Complaint.
Id. ¶¶ 59-117.
previously consented to the dismissal of the HCPD, the AAPD,
Kittleman, and Schuh. ECF Nos. 66 at 1 n.1, 49 at 5. Each of
the named officers was also dismissed from this case by the
Court's order granting in part earlier motions to dismiss
in this case. See ECF No. 67.
STANDARD OF REVIEW
the deadline for amendment of pleadings in the Court's
Scheduling Order has passed, a plaintiff must show good cause
why leave to file an amended complaint should be
granted.” Downing v. Baltimore City Bd. of Sch.
Comm'rs, No. RDB-12-1047, 2014 WL 12781222, at *1
(D. Md. 2014). The good cause inquiry is “less focused
on the substance of the proposed amendment and more concerned
with the timeliness of the motion to amend and the reasons
for its tardy submission.” Id. (cleaned up).
Once “good cause” is shown, leave to amend a
pleading “shall be freely given when justice so
requires, ” Fed.R.Civ.P. 15(a); however, a motion for
leave to amend should be denied when the amendment would be
futile. Devil's Advocate, LLC v. Zurich Amer. Ins.
Co., 666 Fed.Appx. 256, 267. An amendment to a complaint
is futile when the amended complaint could not survive a
motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id. A
court may not deny a party's motion to amend solely on
the basis of delay; the “delay must be accompanied by
prejudice, bad faith, or futility.” Jones v. HSBC
Bank USA, N.A., 444 Fed.Appx. 640, 643 (4th Cir. 2011)
(quoting Edwards v. City of Goldsboro, 178 F.3d 231,
242 (4th Cir. 1999)).
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court “must accept the
factual allegations of the complaint as true and construe
them in the light most favorable to the nonmoving
party.” Rockville Cars, LLC v. City of Rockville,
Md., 891 F.3d 141, 145 (4th Cir. 2018). To overcome a
12(b)(6) motion, the “complaint must contain sufficient
factual matter, accepted as true, ‘to state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plaintiffs must “provide sufficient
detail” to show “a more-than-conceivable chance
of success on the merits.” Upstate Forever v.
Kinder Morgan Energy Partners, 887 F.3d 637, 645 (4th
Cir. 2018) (citing Owens v. Balt. City State's
Attorneys Ofice, 767 F.3d 379, 396 (4th Cir. 2014)). The
mere recitation 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). Nor must the Court accept unsupported legal
allegations. Revene v. Charles Cnty. Commis., 882
F.2d 870, 873 (4th Cir. 1989). A plausibility determination
is a “context-specific inquiry” that relies on
the court's “experience and common sense.”
Iqbal, 556 U.S. at 679-80.
Court previously dismissed Plaintiff's Assault claim
because the statute of limitations had already run, ECF No.
66 at 6; Plaintiff's IIED claim because he failed to
plausibly allege severe emotional distress, id. at
8; Plaintiff's Equal Protection claim because he failed
to allege that he was in a protected class and did not allege
he was treated differently than other persons similarly
situated, id; Plaintiff's § 1985(3) claim
because he did not plead any conspiracy or overt act,
id. at 9; Plaintiff's negligence claims due to
common law immunity, id. at 12, and Plaintiff's
Monell claims due to the conclusory nature of the
allegations, id. at 14. Plaintiff alleges no new
facts that would change the Court's analysis of these
claims, so amendment would be futile.
having previously consented to the dismissal of the HCPD, the
AAPD, Kittleman, and Schuh, now seeks to re-add them to the
lawsuit. Defendants HCPD and AAPD lack the capacity to be
sued, as they are merely departments within the executive
branches of Howard County and Anne Arundel County,
respectively. See Owens v. Baltimore City State's
Attorney's Office, 767 F.3d 379, 393 (4th Cir. 2014)
(“absent a statutory or constitutional provision
creating a government agency, an ‘office' or
‘department' bears no unique legal identity, and
thus, it cannot be sued under Maryland law”).
Therefore, adding them back to the case would be futile.
has not made clear whether County Executives Kittleman and
Schuh are being sued in their individual or official
capacities, but in any case, Plaintiff's Amended
Complaint fails to allege any unlawful actions taken by
either party. Plaintiff only mentions Kittleman and Schuh
once each in the Amended Complaint, alleging only that they
are the county executives of their respective counties. They
cannot be held liable under respondeat superior
theories of liability, so absent any allegations of improper
behavior by them personally, amendment to include them as
defendants would be futile. See Vinnedge v. Gibbs,
550 F.2d 926, 928 (4th Cir. 1977) (no respondeat
superior liability under § 1983); Baltimore
City Police Dep't v. Cherkes, 140 Md.App. 282,
331-33 (Md. 2001) (no vicarious liability for state common
law or constitutional torts).
only Plaintiff's Battery and Excessive Force/Maryland
Declaration of Rights claims are potentially affected by the
new allegation that each of the re-added Officers
“punched, kicked and dragged” Plaintiff after he
was taken into custody. ECF No. 80-2 ¶ 34. This single,
bare allegation comes nearly seven months after the deadline
for amended pleadings, see ECF No. 72, and over a
month after Defendants filed their Motions for Summary
Judgment. The only reason Plaintiff offers for the delay is
an allegation, unbacked by any attached evidence, that
Plaintiff failed to provide reasonable discovery-not in this
case, but in Plaintiff's criminal case in the District
Court for Anne Arundel County. See ECF No. 80 at 7.
That case was disposed of in May 2015, two years before this
case was even filed. See State of Maryland v.
Thomas, No. 5A00286711 (Anne Arundel Cty. Dist. Ct.
filed June 3, 2014). There is no allegation that Defendants
refused to comply with Plaintiff's requests for discovery
in this case. Plaintiff offers no evidence, learned of during
discovery or otherwise, in support of his new allegation.
See Tawwab v. Va. Linen Serv., Inc., 729 F.Supp.2d
757, 768-69 (D. Md. 2010) (good cause generally exists
“where at least some of the evidence necessary to prove
a claim did not come to light until after the amendment
deadline”) (citing In re Lone Star Indus., Inc.
Concrete R.R. Cross Ties Litig., 19 F.3d 1429 (4th Cir.
1994)). And Plaintiff's proposed Amended ...