United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Defendants Officer Evodio
Hendrix (“Officer Hendrix”) and Officer Maurice
Ward's (“Officer Ward”) Motion to Dismiss
Counts 9-24 and 33 of Plaintiff's Amended Complaint (the
“Motion to Dismiss”) (ECF No. 72) and Motion to
Dismiss the Baltimore City Police Department's
Cross-Claim (the “Motion to Dismiss Cross-Claim”)
(ECF No. 91). This case arises from Defendants and former Gun
Trace Task Force (“GTTF”) members Sergeant Wayne
Jenkins (“Sergeant Jenkins”) and Officers Marcus
Taylor (“Officer Taylor”), Hendrix, and
Ward's (collectively, “Officer Defendants”)
February 9, 2016 assault and arrest of Plaintiff Kenneth
Bumgardner. 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
in part and deny in part the Motion to Dismiss and deny the
Motion to Dismiss Cross-Claim.
February 9, 2016 around 6:30 p.m., Bumgardner was in the 5000
block of Dickey Hill Road, Baltimore, Maryland, sitting in
his car and talking with a friend standing nearby. (2d Am.
Compl. ¶ 93, ECF No. 79). “[S]uddenly and without
warning, ” Officer Defendants reversed their police
vehicle into the front end of Bumgardner's car.
(Id. ¶ 94). “Unaware of what was
occurring, and fearing for his life, [Bumgardner] fled from
his vehicle.” (Id. ¶ 95). As he fled,
“[Bumgardner] was struck from behind with a blunt
object, causing him to fall to the ground and lose
consciousness.” (Id.). Witnesses saw Officer
Taylor strike Bumgardner “in the back from behind with
a blunt object, ” which caused Bumgardner to fall to
the ground. (Id. ¶ 96).
Defendants then “failed to call for medical assistance,
” “failed to personally provide” medical
assistance, and “left [Bumgardner] untreated for nearly
two hours.” (Id. ¶ 97). At about 8:17
p.m., one of Officer Defendants dispatched paramedics to the
scene, and emergency medical technicians responded.
(Id. ¶ 98). When they arrived, Bumgardner
refused medical treatment. (Id. ¶ 99). The next
day, Bumgardner admitted himself to Mercy Medical
Center's Emergency Department, where physicians diagnosed
him with a fractured jawbone and sprained back.
(Id.). On February 16, 2016, Dr. Bernard Krupp
performed surgery to repair Bumgardner's fractured
jawbone. (Id. ¶ 101). Following the surgery,
Bumgardner's jaw was wired shut for nearly two months.
17, 2018, Bumgardner filed a fifty-three-count, 531-paragraph
Complaint against Officers Taylor, Hendrix, and Ward;
Sergeant Jenkins; Thomas Allers; Major Ian Dombrowski
(“Major Dombrowski”); Deputy Police Commissioner
for the Baltimore Police Department Dean Palmere
(“Deputy Commissioner Palmere”); the Baltimore
Police Department (“BPD”); and the Office of
the State's Attorney for Baltimore City (the
“State's Attorney”). (ECF No. 1). Bumgardner
filed an Amended Complaint against all Defendants on June 27,
2018. (ECF No. 12).
February 5, 2019, Officers Hendrix and Ward filed their
Motion to Dismiss Counts 9-24 and 33 of Plaintiff's
Amended Complaint. (ECF No. 72). Bumgardner filed an
Opposition on February 26, 2019. (ECF No. 75). On March 12,
2019, Officers Hendrix and Ward filed a Reply. (ECF No. 77).
March 14, 2019, the Court granted Bumgardner leave to file
his Second Amended Complaint and Jury Trial Demand (the
“Second Amended Complaint”), (Mar. 14, 2019
Order, ECF No. 78), and the Clerk docketed it the same day,
(ECF No. 79). Because the Second Amended Complaint only added
State's Attorney Marilyn Mosby as a Defendant and removed
the State's Attorney as a Defendant, the Court construed
Officers Hendrix and Ward's Motion to Dismiss as filed
against the Second Amended Complaint. (See Mar. 14,
2019 Order). The Second Amended Complaint alleges against
Officers Hendrix and Ward: use of excessive force in the
seizure of Bumgardner in violation of the Fourth and
Fourteenth Amendments to the U.S. Constitution under 42
U.S.C. §§ 1983, 1985, and 1988 (Counts 9 and
alternative use of excessive force in violation of the Fourth
and Fourteenth Amendments under 42 U.S.C. §§ 1983,
1985, and 1988 (Counts 10 and 18); illegal arrest in
violation of the Fourth and Fourteenth Amendments under 42
U.S.C. §§ 1983, 1985, and 1988 (Counts 11 and 19);
false imprisonment in violation of the Fourth and Fourteenth
Amendments under §§ 1983, 1985, and 1988 (Counts 12
and 20); assault (Counts 13 and 21); battery (Counts 14 and
22); intentional infliction of emotional distress (Counts 15
and 23); violation of Article 24 of the Maryland Declaration
of Rights (Counts 16 and 24); and civil conspiracy under 42
U.S.C. §§ 1983, 1985, and 1988 (Count 33). (2d Am.
Compl. ¶¶ 173-292, 353-56). Bumgardner sues
Officers Hendrix and Ward in their individual and official
capacities. (Id. ¶¶ 3-4). Bumgardner seeks
compensatory and punitive damages as well as attorney's
fees and costs. (Id. at 25-26).
16, 2019, BPD filed its Answer, Affirmative Defenses, and
Cross-Claim for Indemnification. (ECF No. 88). BPD brings its
Cross-Claim against Officers Hendrix, Ward, and Taylor; and
Sergeant Jenkins. (Cross-cl. ¶ 1, ECF No. 88). BPD seeks
a declaration that under the Local Government Tort Claims Act
(the “LGTCA”), Md. Code Ann., Cts. & Jud.
Proc. [“CJP”] §§ 5-301 et seq.
(West 2019), Article 15 of the FY 2017- 2018 Memorandum of
Understanding between the BPD and the Fraternal Order of
Police (“MOU”), or both, it has no duty to
indemnify Officer Defendants because the acts and omissions
stated in the Second Amended Complaint, among other things,
occurred “outside the scope of the officers'
employment.” (Id. ¶ 2).
6, 2019, Officers Hendrix and Ward filed their Motion to
Dismiss the Baltimore City Police Department's
Cross-Claim. (ECF No. 91). BPD filed its Opposition on June
20, 2019. (ECF No. 92). On July 5, 2019, Officers Hendrix and
Ward filed a Reply. (ECF No. 97).
Motion to Dismiss 1.Rule 12(b)(6)
Standard of Review
purpose of a motion under Federal Rule of Civil Procedure
12(b)(6) is “to test the sufficiency of a complaint,
” not to “resolve contests surrounding the facts,
the merits of a claim, or the applicability of
defenses.” King v. Rubenstein, 825 F.3d 206,
214 (4th Cir. 2016) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). A
complaint fails to state a claim if it does not contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), or does not “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)). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of America, N.A., 917
F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012)),
aff'd sub nom. Goss v. Bank of America, NA, 546
Fed.Appx. 165 (4th Cir. 2013).
considering a Rule 12(b)(6) motion, a 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) (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). But a court need not accept unsupported or
conclusory factual allegations devoid of any reference to
actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions
couched as factual allegations, Iqbal, 556 U.S. at
bottom, the Court concludes that it will not dismiss
Bumgardner's excessive force, false arrest, and false
imprisonment claims under § 1983 or his state law
battery claim and state constitutional claim under Article 24
of the Maryland Declaration of Rights. The Court further
concludes that it will dismiss Bumgardner's official
capacity claims and civil conspiracy claim, as well as his
state law assault and intentional infliction of emotional
§ 1983 Claims
brings his federal claims against Officers Hendrix and Ward
under § 1983. A civil rights action under § 1983
allows “a party who has been deprived of a federal
right under the color of state law to seek relief.”
City of Monterey v. Del Monte Dunes at Monterey,
Ltd., 526 U.S. 687, 707 (1999). “Section 1983
‘is not itself a source of substantive rights,' but
merely provides ‘a method for vindicating federal
rights elsewhere conferred.'” Albright,
510 U.S. at 271 (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)). To state a claim under § 1983, a
plaintiff must allege that: (1) a right secured by the
Constitution or laws of the United States was violated; and
(2) the alleged violation was committed by a person acting
under the color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988).
alleges excessive force, false arrest and false imprisonment,
and civil conspiracy claims against Officers Hendrix and Ward
under § 1983. The Court first addresses whether it
should dismiss the official-capacity claims against Officers
Hendrix and Ward, and then addresses Bumgardner's federal
constitutional claims in turn.
Hendrix and Ward argue for the first time in their Reply that
the Court should dismiss all § 1983 claims asserted
against them in their official capacities because Bumgardner
fails to allege that they were final decisionmakers.
threshold issue, the Court must determine whether it will
consider Officers Hendrix and Ward's argument. “The
ordinary rule in federal courts is that an argument raised
for the first time in a reply brief or memorandum will not be
considered.” United States v. Freeman, No.
PWG-16-197, 2016 WL 6582645, at *4 (D.Md. Nov. 7, 2016)
(quoting Clawson v. FedEx Ground Package Sys., Inc.,
451 F.Supp.2d 731, 734 (D.Md. 2006)). It is, however, within
the Court's discretion to consider such arguments.
Clawson, 451 F.Supp.2d at 734. The ordinary rule is
meant to address the situation where “[an] opposing
party would be prejudiced by an advocate arguing an issue
without an opportunity for the opponent to respond.”
Id. (alteration in original) (quoting United
States v. Head, 340 F.3d 628, 630 n.4 (8th Cir. 2003)).
Officers Hendrix and Ward informed Bumgardner's counsel
via email before Bumgarder filed his Opposition that they
would be withdrawing their original argument for dismissing
the official capacity claims under Eleventh Amendment
immunity. (Defs.' Reply at 1 n.1, ECF No. 77). Officers
Hendrix and Ward do not, however, indicate whether they
informed Bumgardner that they intended to raise a new
argument in their Reply. Nevertheless, Officers Hendrix and
Ward filed their Reply on March 12, 2019, and Bumgardner has
not moved for leave to file a surreply to address this
argument. Accordingly, the Court will exercise its discretion
and consider the new argument.
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.” Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989)
(citing Brandon v. Holt, 469 U.S. 464, 471 (1985)).
Defendants may be held liable in their official capacities
under § 1983 “only when an injury was inflicted by
a government's ‘lawmakers or by those whose edicts
or acts may fairly be said to represent official
policy.'” City of St. Louis v. Praprotnik,
485 U.S. 112, 121-22 (1988) (quoting Monell v. Dep't
of Soc. Servs. of New York, 436 U.S. 658, 694 (1978)).
The government official being sued must have final
policymaking authority for the governmental entity that he
represents, and the entity's policy must be shown to have
played a role in the constitutional violation. Kentucky
v. Graham, 473 U.S. 159, 166 (1985).
the Second Amended Complaint fails to allege that Officers
Hendrix and Ward possessed any policymaking authority
whatsoever. Bumgardner's failure to advance factual
allegations demonstrating that Officers Hendrix and Ward are
“final policymakers” warrants dismissal of the
§ 1983 claims asserted against them in their official
capacities. See Swagler v. Harford Cty., No.
RDB-08-2289, 2010 WL 1923766, at *5-6 (D.Md. May 10, 2010)
(dismissing § 1983 claims brought against police
sergeant because the amended complaint failed to allege that
the sergeant instituted any policies or procedures, but
rather merely possessed “certain coordinating and
decision-making authority over the troopers on
the Court will grant the Motion to the extent it seeks to
dismiss the official-capacity § 1983 claims against
Officers Hendrix and Ward. The analysis that follows applies
only to the claims asserted ...