United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
pending and ready for resolution in this civil rights case is
Defendants' motion to dismiss for lack of jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 10.
Plaintiff Andre Tyrone Fisher has filed correspondence in
opposition. ECF No. 13. The matter is ripe for disposition
and no hearing is necessary. Local Rule 105.6 (D. Md. 2018).
For the reasons to follow, Defendants' motion will be
Fisher, who is self-represented, claims in his complaint,
supplemented at the direction of the court, that he
“filled out the application” for his pardon (ECF
No. 4 at 1), he was incarcerated for convictions in Somerset
County, Maryland, was later exonerated, and is entitled to
compensation from the Maryland Board of Public Works because
he was imprisoned for crimes he did not commit. ECF Nos. 1,
3, 4. Defendants Governor Larry Hogan, Treasurer Nancy K.
Kopp, Comptroller Peter Franchot, and David Blumberg, Chair
of the Maryland Parole Commission, assert that Mr.
Fisher's claims are barred by Eleventh Amendment immunity
and fail to state a claim for which relief may be granted.
of subject matter jurisdiction must be decided first because
they concern the court's authority to hear the case.
Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.
4 (4th Cir. 1999). The burden of proving there is subject
matter jurisdiction is borne by the plaintiff. Evans v.
B.F. Perkins Co., a Div. of Standex Int'l Corp., 166
F.3d 642, 647 (4th Cir. 1999). In a 12(b)(1) motion, the
court “may consider evidence outside the
pleadings” to help determine whether it has
jurisdiction over the case before it. Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991); see also Evans,
166 F.3d at 647. A Rule 12(b)(1) motion to dismiss may be
presented in either of two ways. “A defendant may
either contend (1) that the complaint fails to allege facts
upon which subject matter jurisdiction can be based; or (2)
that the jurisdictional facts alleged in the complaint are
untrue.” Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982). The court should grant the 12(b)(1) motion
“only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a
matter of law.” Richmond, 945 F.2d at 768.
When Defendants make a facial challenge to subject matter
jurisdiction, as here, “the plaintiff, in effect, is
afforded the same procedural protection as he would receive
under a Rule 12(b)(6) consideration.” Adams,
697 F.2d at 1219. “In that situation, the facts alleged
in the complaint are taken as true, and the motion must be
denied if the complaint alleges sufficient facts to invoke
subject matter jurisdiction.” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009).
also argue that the complaint fails to state a plausible
claim for relief under Fed.R.Civ.P. 12(b)(6). The purpose of
a motion to dismiss under Rule 12(b)(6) is to test the
sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A
plaintiff's complaint need only satisfy the standard of
Rule 8(a), which requires a “short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2)
still requires a ‘showing,' rather than a blanket
assertion, of entitlement to relief.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). There
must be more than “a formulaic recitation of the
elements of a cause of action” or “naked
assertion[s] devoid of further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations omitted). At this stage, all well-pleaded
allegations in a complaint must be considered as true,
Albright v. Oliver, 510 U.S. 266, 268, (1994), and
all factual allegations must be construed in the light most
favorable to the plaintiff, see Harrison v. Westinghouse
Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999)
(citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130,
1134 (4th Cir. 1993)). Although a court 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.
Eleventh Amendment Immunity
the Eleventh Amendment to the United States Constitution, a
state, its agencies and departments are immune from suits for
damages in federal court brought by its citizens or the
citizens of another state, unless it consents. See
Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S.
89, 100 (1984). Also barred by the Eleventh Amendment are
claims brought against state employees in their official
capacity because a suit against a state officer in his
official capacity is tantamount to a suit against the state
itself. Brandon v. Holt, 469 U.S. 464, 471-72
(1985). When defendants are sued in their individual
capacity, however, they are not immune to suit under the
Eleventh Amendment. Hafer v. Melo, 502 U.S. 21, 22
Fisher does not state in the complaint in which capacity he
is suing Defendants. The United States Court of Appeals for
the Fourth Circuit instructs that a court must examine the
substance of the pleadings to determine whether a defendant
is sued in an individual or official capacity for Eleventh
Amendment immunity purposes. Biggs v. Meadows, 66
F.3d 56, 58 (4th Cir. 1995). In making its determination, a
court must examine the nature of the claims, the relief
sought, whether a plaintiff has alleged the defendants acted
pursuant to official customs or policies, and the nature of
the defenses. Id. at 61. Mr. Fisher names Defendants
by their official titles, and Peter Franchot, in regard to
his affiliation with the Board of Public Works. In his
opposition, Mr. Fisher argues that he has standing, although
he does not specifically state whether he is suing Defendants
in their individual capacities or specifically refute
Defendants' arguments in this regard. He requests
“compensation” seemingly from state funds.
Accounting for these factors, the court determines that Mr.
Fisher has sued Defendants in their official capacity.
Defendants are immune from suit from claims against them in
their official capacity, those claims must be dismissed.
See e.g. Rodriquez, aka Michael A. Jones, v. Nancy K.
Kopp, et al., Civil Action No. RDB-17-3827 2019 WL
568877 (D. Md. February 12, 2019) (dismissing official
capacity claims against Treasurer Nancy Kopp, Governor Larry
Hogan on the grounds of Eleventh Amendment immunity);
Denkenberger v. Maryland State Parole Commission, et
al, Civil Action No. WDQ-10-1726, 2011 WL 2600544 (D.
Md. June 24, 2011) (dismissing official capacity claims
against David Blumberg, Parole Commission Chairman, on the
grounds of Eleventh Amendment immunity). Moreover, if the
court treated Mr. Fisher's claims as raised against
Defendants in their personal capacity, his claims are subject
to dismissal as discussed below.
Failure to State A Claim
order to state a claim under 42 U.S.C. § 1983, Plaintiff
must allege: (1) a violation of a right secured by the
Constitution or laws of the United States, and that (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); Philips v. Pitt County Memorial Hosp.,572 F.3d 176, 180 (4th Cir. 2009). Mr. Fisher does not claim
that Defendants deprived of him a right secured by the
Constitution and laws of the United States, nor does he
allege that any Defendant was personally involved in
violating his civil rights or that they tacitly approved such
actions so as to suggest grounds for supervisory liability.
ECF Nos. 1 & 4. Rather, he seeks ...