United States District Court, D. Maryland
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.
March 28, 2019, the Court granted leave for Plaintiff Romeo
Hillman to file a Second Amended Complain.. In the same
Order, the Court denied leave to include in the Second
Amended Complaint claims against the United States of
America, on the grounds that such claims were futile.
verified Second Amended Complaint, Hillman alleges that while
he was a federal pretrial detainee at Chesapeake Detention
Facility in Baltimore, Maryland, he was sexually assaulted by
his cellmate seven times. After the first four occasions,
Hillman "informed Defendant Soroye on or about September
2, 2015 at 9:00 am that my cellmate and I were having
problems, that I was concerned for my safety, and that it was
urgent for him to move either my cellmate or myself to a
separate cell." 2d Am. Compl, ¶
12, ECF No. 25. According to Hillman, "Soroye said that
he would make the change" in cell assignments, but he
failed to do so despite the fact that Hillman alerted him to
an empty cell within the unit. Id.
¶¶ 13, 16. After Hillman was again
sexually assaulted by his cellmate on September 14, 2015, he
reiterated his request for to be moved for safety reasons to
Soroye on September 15, 2015. Nevertheless, Soroye took no
action until September 24, 2015, when he finally arranged to
have Hillman moved to another cell. According to Hillman,
from the time that he first told Soroye on September 2, 2015
about the assaults to the day he was moved to another cell on
September 24, 2015, he was sexually assaulted by his cellmate
on three occasions. In the Second Amended Complaint, Hillman
states that he is bringing suit against Soroye in both his
individual and official capacities and characterizes his
claim as alleging a failure to protect him sexual assault
"in violation of the Fifth and Fourteenth Amendments to
the United States Constitution." Id. ¶ 22.
Hillman seeks monetary damages and a "declaratory
judgment"" stating that Soroye violated his rights.
Id. ¶¶ 23-25.
has responded with a Motion to Dismiss and/or for Summary
Judgmen.. Soroye argues that any claim against him in his
official capacity is barred by the Eleventh Amendment to the
Constitution and that the Fifth Amendment is inapplicable
because Soroye is a state actor, rather than a federal one.
Soroye states that:
The Defendant does not dispute that pretrial detainees enjoy
the protections of the Fourteenth Amendment.. Bell v.
Wolfish, 441 U.S. 520, 545 (1979). Here, CO Soroye
disagrees that Plaintiffs constitutional rights were violated
as alleged, and seeks to vigorously dispute this claim before
the trier of fact. Fundamentally, the issue of whether or not
CO Soroye violated Plaintiffs constitutional rights should be
a matter determined by the trier of fact as a predicate to
awarding or declining to award damages for the alleged
Mot. Dismiss 7-8, ECF No. 26-1. However, Soroye argues that
the Court should deny Hillman's request for declaratory
judgment because it is redundant of his request for damages.
The Motion is fully briefed.
it is unnecessary to review documents outside of the
pleadings, the Court will treat Soroye's Motion as a
Motion to Dismiss under Federal Rule of Civil Procedure
12(b)(6). See Fed. R. Civ. P. 12(d); Bosiger v.
U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). To
defeat a motion to dismiss under Rule 12(b)(6), the complaint
must allege enough facts to state a plausible claim for
relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A claim is plausible when the facts pleaded allow "the
Court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id.
Although courts should construe pleadings of self-represented
litigants liberally, Erickson v. Pardus, 551 U.S.
89, 94 (2007), legal conclusions or conclusory statements do
not suffice, Iqbal, 556 U.S. at 678. The Court must
examine the complaint as a whole, consider the factual
allegations in the complaint as true, and construe the
factual allegations in the light most favorable to the
plaintiff. Albright v. Oliver, 510 U.S.266,
268(1994); Lambeth v. Bd. of Comm'rs of
Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).
Soroye argues that any claims against him in his official
capacity under 42 U.S.C. S 1983 must be dismissed. As the
Supreme Court has stated:
[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a
suit against the official's office. As such, it is no
different from a suit against the State itself.... We hold
that neither a State nor its officials acting in their
official capacities are "persons" under S 1983.
Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989) (citations omitted). Because Soroye is an
employee of the Division of Correction, a state agency, the
suit against Soroye in his official capacity necessary fails.
See Id. Moreover, under the Eleventh Amendment,
states are immune from S 1983 suits other than those for
prospective injunctive relief unless they have waived their
immunity-which Maryland has not done. See Id. at 66,
71 n.10; see also McIntosh v. Div. of
Corr., No. 16-1320, 2017 WL 3412081, at *4 (D. Md.
Aug. 7, 2017) ("Although the State of Maryland has
waived its sovereign immunity for certain types of cases
brought in state court, see Md. Code Ann., State
Gov't S 12-104, it has not waived its immunity under the
Eleventh Amendment to suit in federal court."). Soroye
is therefore immune from the damages claims asserted in the
Second Amended Complaint. For these reasons, the claims
against Soroye in his official capacity will be dismissed.
Soroye argues that any claim against him arising under the
Fifth Amendment must be dismissed because the Due Process
Clause of the Fifth Amendment applies only to federal actors.
Soroye is correct that a claim against a state officer is
properly brought only under the Fourteenth Amendment..
See Massey v. Ojaniit, 759 F.3d 343, 354 n.5 (4th
Cir. 2014) (holding that where the complaint "asserts
claims against state, rather than federal, actors," the
plaintiffs "relevant due process protections are found
in the Fourteenth, rather than the Fifth, Amendment..");
United States v. Hornsby, 666 F.3d 296, 310 (4th
Cir. 2012) (stating that "the Fourteenth Amendment's
Due Process Clause is a limitation on state conduct,"
while the "due process protections against the federal
government are found in the Fifth Amendment"). Because
Soroye is a state officer and not a federal officer,
Hillman's claim under the Fifth Amendment will be
dismissed. This ruling, however, is a mere formality. The
substance of Hillman's allegation-a due process claim
against Soroye for failing to protect Hillman while he was a
pretrial detainee-continues under the Fourteenth Amendment..
although Soroye seeks dismissal of Hillman's request for
a declaratory judgment, the requested relief is not a
freestanding cause of action and is not clearly unavailable.
At this stage of the case, it is unnecessary to address
whether such a remedy is appropriate. The Motion will be
denied on this issue.
the Court notes that Soroye's request that the entire
case should be dismissed is not supported. Soroye provides no
basis to dismiss Hillman's Fourteenth Amendment claim
against Soroye in his personal capacity that he was
deliberately indifferent to Hillman's safety. Indeed,
Soroye acknowledges that there is a dispute of ...