Bumgardner v. Taylor

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge

         THIS 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.

         I. BACKGROUND^[1]

         On 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).

         Officer 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. (Id.)

         On May 17, 2018, Bumgardner filed a fifty-three-count, 531-paragraph Complaint against Officers Taylor, Hendrix, and Ward; Sergeant Jenkins; Thomas Allers;^[2] Major Ian Dombrowski (“Major Dombrowski”); Deputy Police Commissioner for the Baltimore Police Department Dean Palmere (“Deputy Commissioner Palmere”); the Baltimore Police Department (“BPD”);^[3] 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).

         On 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).

         On 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 17)^[4]; 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).^[5]

         On May 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).

         On June 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).

         II.DISCUSSION

         A. Motion to Dismiss 1.Rule 12(b)(6) Standard of Review

         The 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).

         In 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 678.

         2. Analysis

         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 distress claims.

         a. § 1983 Claims^[6]

         Bumgardner 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).

         Bumgardner 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.

         I Official-Capacity Claims

         Officers 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.

         As a 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)).

         Here, 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.

         “[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.” 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).

         Here, 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 patrol”).

         Accordingly, 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 ...