DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for review in this case is the motion to dismiss or for partial dismissal filed by Defendants City of Greenbelt, Maryland ("the City of Greenbelt"), Sgt. Matthew Carr, Pfc. Johnnie Guy, and Pfc. Young Hur. (ECF No. 6). The issues have been fully briefed, and the court now rules, no hearing deemed necessary. Local Rule 105.6. For the following reasons, the motion will be granted in part and denied in part.
Plaintiffs Blanche Mang and Lynda Sheppard, as personal representatives of the estate of Michael Mang, and Lynda Sheppard, in her individual capacity, allege the following facts.
In the early morning of May 26, 2010, Ms. Sheppard contacted the City of Greenbelt Police Department and requested that someone "check on" the welfare of her son, Michael Mang. (ECF No. 2 ¶ 12). Ms. Sheppard believed that Mr. Mang was asleep in her house. In response to Ms. Sheppard's request, Sgt. Carr and Pfc. Guy accompanied her to her home and knocked on the door to wake Mr. Mang. When Mr. Mang did not answer, Sgt. Carr and Pfc. Guy left.
Ms. Sheppard then went to the District Court Commissioner's Office and obtained a protective order and arrest warrant against Mr. Mang. Mr. Mang had previously threatened her physically and destroyed property. Ms. Sheppard believed that Mr. Mang was using controlled substances and alcohol.
Later that day, Ms. Sheppard returned to the City of Greenbelt Police Department to request assistance again. Sgt. Carr, Pfc. Guy, and Pfc. Hur accompanied Ms. Sheppard to her home. The officers could not enter her home, however, because the door was locked. At Ms. Sheppard's suggestion, the officers "jiggled" a window until the window could be opened. (Id. ¶ 16). Pfc. Hur entered Ms. Sheppard's home through the window, at which point he observed Mr. Mang sleeping on the living room sofa.
While Mr. Mang was still asleep, Pfc. Hur "grabbed" his wrists, which woke him, and advised him that he was under arrest. (Id. ¶ 18). Sgt. Carr entered the home through the same open window to assist Pfc. Hur in handcuffing Mr. Mang. Lastly, Pfc. Guy entered through the window and proceeded to use a stun gun to force Mr. Mang into submission. In their attempts to subdue Mr. Mang, the officers "punched and beat [him] repeatedly, ca[us]ing a fractured nose and numerous bruises." (Id. ¶ 22).
Pfc. Guy and Mr. Mang arrived at the hospital at around 5:37 a.m. The hospital staff examined Mr. Mang. According to hospital records, Mr. Mang was initially "awake, alert, cooperative and with an affect that [was] calm and appropriate" and "speaking coherently," though he complained of pain "in the left side of his head and left ribs." (Id. ¶ 27). Later, Mr. Mang also complained of chest pain and shortness of breath. According to the records, Mr. Mang suffered from "bilateral abrasion to knees," an "episode of vomiting," and a "large b[ru]ise on left side of chest, lower abdomen, . . . tenderness. . ., [and] scratches to back." (Id. ¶¶ 29-31). At around 9:20 a.m., Mr. Mang was released into Pfc. Guy's custody.
Pfc. Guy brought Mr. Mang to the City of Greenbelt Police Department and placed him in the "processing area" of the station. (Id. ¶ 33). At around 9:55 a.m., Pfc. Guy noticed that Mr. Mang was lying unconscious on the floor. Pfc. Guy called for assistance. An ambulance took Mr. Mang back to the hospital where the hospital staff attempted to revive him. Their efforts were unsuccessful, and Mr. Mang was pronounced dead at around 10:46 a.m.
On May 25, 2011, Plaintiffs filed a complaint against Defendants in the Circuit Court for Prince George's County, Maryland. After service, Defendants timely removed to this court on the basis of federal question jurisdiction. (ECF No. 1). The complaint contains nine counts: (1) a violation of 42 U.S.C. § 1983 for excessive force against Sgt. Carr, Pfc. Guy, and Pfc. Hur, on behalf of both the estate of Mr. Mang and Ms. Sheppard in her individual capacity; (2) a violation of Article 24 of the Maryland Declaration of Rights for excessive force against Sgt. Carr, Pfc. Guy, and Pfc. Hur, on behalf of both the estate of Mr. Mang and Ms. Sheppard in her individual capacity; (3) battery against Sgt. Carr, Pfc. Guy, and Pfc. Hur, on behalf of the estate of Mr. Mang and Ms. Sheppard in her individual capacity; (4) negligence against Sgt. Carr, Pfc. Guy, and Pfc. Hur, on behalf of the estate of Mr. Mang and Ms. Sheppard in her individual capacity; (5) negligent training and supervision against the City of Greenbelt, on behalf of the estate of Mr. Mang and Ms. Sheppard in her individual capacity; (6) "wrongful death" against Sgt. Carr, Pfc. Guy, and Pfc. Hur, on behalf of the estate of Mr. Mang; (7) respondeat superior against the City of Greenbelt on behalf of the estate of Mr. Mang; (8) wrongful death against Sgt. Carr, Pfc. Guy, and Pfc. Hur, on behalf of Ms. Sheppard in her individual capacity; and (9) respondeat superior against the City of Greenbelt on behalf of Ms. Sheppard in her individual capacity.
On July 11, 2011, Defendants answered the complaint. That same day, after filing the answer, they filed the pending motion to dismiss or for partial dismissal. (ECF No. 6). Plaintiffs filed opposition papers on July 25, 2011. (ECF No. 9). Defendants replied on July 27, 2011. (ECF No. 10).
Although Defendants style their motion as a motion to dismiss or for partial dismissal, it is actually a motion for judgment on the pleadings because they filed an answer to the complaint prior to their motion. Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Under the circumstances here, the motion is governed by the same standard governing motions to dismiss for failure to state a claim under Rule 12(b)(6). Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. See Presley v. City of Charlottesville, 464 F.3d 480, 483 (4
At this stage, the court must consider all well-pleaded allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4
Defendants move for judgment on the pleadings as to Counts Four, Five, Six, Seven, Eight, and Nine, opting not to contest the federal or state constitutional claims or the battery claim against Sgt. Carr, Pfc. Guy, and Pfc. Hur in Counts One, Two, and Three, except to argue that combining the claims on behalf of the estate of Mr. Mang and Ms. Sheppard individually in a single count is confusing.
Counts Seven and Nine of the complaint are both labeled "respondeat superior." They are respectively asserted by the estate of Mr. Mang and by Ms. Sheppard in her individual capacity. Respondeat superior is a theory of liability, not an independent cause of action. See Mason v. Bd. of Educ., No. WMN-10-3143, 2011 WL 89998, at2 n.3 (D.Md. Jan. 11, 2011). As Defendants recognized in their reply, Counts Seven and Nine allege that the City of Greenbelt is "vicariously liable for all of the individual officers' alleged misdeeds." (ECF No. 10, at 3). Despite Plaintiffs' inelegant pleading, their intent to allege all causes of action against the City of Greenbelt was evident, and the complaint will be so construed. As a result, it is appropriate to discuss whether the City of Greenbelt is an appropriate defendant in the counts in which it is not specifically named.
As to Count One, Defendants argue that "there is . . . no vicarious liability under § 1983," so judgment on the pleadings should be entered in favor of the City of Greenbelt. (ECF No. 6, at 5). Indeed, "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978). Accordingly, the City of Greenbelt will not be included in Count One.
As to Count Two, Defendants appear to concede that the City of Greenbelt may be vicariously liable for the state constitutional violations of its employees. (ECF No. 6, at 4-5). The Court of Appeals of Maryland has made clear that this is indeed the case: "[L]ocal governmental entities do, indeed, have respondeat superior liability for civil damages resulting from State Constitutional violations committed by their agents and employees within the scope of the employment." DiPino v. Davis, 354 Md. 18, 51-52 (1999). Thus, Count Two will go forward against the individual Defendants and the City of Greenbelt.
As to the state tort of battery in Count Three, the City of Greenbelt is entitled to immunity. Under Maryland law,
DiPino, 354 Md. at 47. "Enforcing the criminal law is `quintessentially governmental in nature.'" Hirpassa v. Prince George's Cnty., Md., No. RWT 09cv2631, 2010 WL 2730651, at *10 (D.Md. July 9, 2010) (quoting DiPino, 354 Md. at 48). Here, the cause of action giving rise to the battery claim arose out of an incident in which the City of Greenbelt was acting in a governmental capacity, so its governmental immunity shields it from liability. See Morrill v. Prince George's Cnty., Md., No. AW-94-22, 1995 WL 626523, at1 (D.Md. Aug. 15, 1995) (holding that governmental immunity protected county from liability for battery).
Accordingly, the City of Greenbelt will not be included in this count.
In Count Four, Defendants seek judgment on the pleadings as to the individual Defendants based on statutory immunity under section 5-507(b)(1) of the Courts and Judicial Proceedings Article of the Maryland Code. Pursuant to this section, "[a]n official of a municipal corporation, while acting in a discretionary capacity, without malice, and within the scope of the official's employment or authority shall be immune as an official or individual from any civil liability for the performance of the action." Md. Code Ann., Cts. & Jud. Proc. § 5-507(b)(1).
In response, Plaintiffs contend that they have sufficiently pleaded that the individual Defendants acted with malice, so section 5-507(b)(1) does not protect them from suit. (ECF No. 9, at 3-4). The malice required to strip away statutory immunity is "actual malice." See Shoemaker v. Smith, 353 Md. 143, 163 (1999). Under Maryland law, to act with actual malice means one "intentionally performed an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately injure the plaintiff." Houghton v. Forrest, 183 Md.App. 15, 26-27 & n.5 (2008) (internal quotations omitted) (synchronizing various definitions of actual malice used in immunity cases), rev'd on other grounds, 412 Md. 578 (2010). This court recently explained that for a complaint to survive a motion to dismiss:
Ames v. Harford Cnty., No. RDB 09-1929, 2010 WL 1791547, at4 (D.Md. May 4, 2010).
Here, Plaintiffs have sufficiently alleged that Defendants acted with actual malice. Plaintiffs point to paragraph 42 of the complaint as meeting the requirements for alleging malice, but this paragraph is precisely the type of conclusory statement that Ames rejected as inadequate. Instead, actual malice can be inferred from paragraph 22 of the complaint, which reads: "During their attempts to force Michael Mang into submission, Sgt. Carr, Pfc. Guy and Pfc. Hur punched and beat Michael Mang repeatedly, ca[us]ing a fractured nose and numerous bruises." (ECF No. 2 ¶ 22) (emphasis added). Taken in the light most favorable to Plaintiffs, this allegation of repeated and injurious physical contact defeats Defendant's defense of statutory immunity at this stage of the pleadings. See Solis v. Prince George's Cnty., 153 F.Supp.2d 793, 805 (D.Md. 2001) ("Officer Ruffin choked Plaintiff and struck him multiple times for no apparent reason. Such unjustified application of malignant force may give rise to a reasonable inference that Officer Ruffin was motivated by ill will toward or an affirmative intent to injure Plaintiff."); Sawyer v. Humphries, 322 Md. 247, 261 (1991) ("Wrestling another to the ground, pulling his hair, and hitting him on the face, again without cause or provocation, is certainly malicious conduct.").
Defendants reply that even if Plaintiffs' allegations are sufficient, it is not possible to plead both malice and negligence simultaneously, though they do not explain why this is so. (ECF No. 10, at 1-2). Based on their cited cases in support, which do not address this exact question, it seems that Defendants are arguing that malice and intent are synonymous and that intent is incongruous with negligence. In Maryland, however, it is not correct to equate malice and intent, insofar as tort law and immunity are concerned. In Thomas v. City of Annapolis, 113 Md.App. 440 (1997), the Court of Special Appeals of Maryland reviewed the level of malice necessary to overcome an assertion of public official immunity. In concluding that actual malice was the appropriate standard, the court distinguished between malicious acts and intentional acts:
See id. at 453-56 (emphasis added) (footnote omitted). Indeed, several Maryland courts have recognized that the concepts of actual malice and negligence are reconcilable. See, e.g., Johnson v. Prince George's Cnty., Md., No. DKC 10-0582, 2011 WL 806448, at7 (D.Md. Mar. 1, 2011) (denying summary judgment for defendant police officer on negligence claim because evidence of actual malice existed); Williamson v. Prince George's Cnty., Md., No. DKC 10-1100, 2011 WL 280961, at6 (D.Md. Jan. 26, 2011) (same); Solis, 153 F.Supp.2d at 805 (same); see also Hines v. French, 157 Md.App. 536, 564 (2004) (holding that a state official could not invoke qualified immunity as a defense to a negligence claim because there was evidence that he acted with actual malice). Therefore, Plaintiffs' allegation of actual malice on the part of the individual Defendants does not preclude their stating a negligence claim.
Again, however, the City of Greenbelt is entitled to immunity and will not be included in this count.
In Count Five, Plaintiffs allege that the City of Greenbelt negligently failed to train and supervise properly its police officers, including the individual Defendants, in arresting suspects and placing them into custody. Defendants argue that judgment on the pleadings should be entered in their favor as to this count based on the City of Greenbelt's governmental immunity. As previously discussed, the City of Greenbelt is generally "immune from liability for tortious conduct committed while the entity is acting in a governmental capacity." DiPino, 354 Md. at 47. The employment and supervision of police officers, which includes their training, is a governmental function, not private or proprietary. Lanford v. Prince George's Cnty., Md., 199 F.Supp.2d 297, 302 (D.Md. 2002). Thus, the City of Greenbelt is immune from allegations of negligent training and supervision, and Defendants' motion should be granted as to Count Five.
Plaintiffs contend that their negligent training and supervision claim actually arises under the United States Constitution and the Maryland Declaration of Rights, and governmental immunity does not apply to such violations. (ECF No. 9, at 4-5). Indeed, as Plaintiffs point out, to the extent their cause of action is constitutional in nature rather than at common law, governmental immunity would not apply. See Town of Port Deposit v. Petetit, 113 Md.App. 401, 419 (1997). As the complaint is structured, however, this argument is fairly disingenuous. Nowhere in Count Five do Plaintiffs mention or allude to either the United States Constitution or the Maryland Declaration of Rights. The most natural reading of the complaint leads to the conclusion that Plaintiffs' constitutional causes of action, whether federal or state, are limited to Counts One and Two, which are not presently at issue.
Even if Plaintiffs' sly reading of their own complaint is accepted, judgment on the pleadings in favor of Defendants would still be entered as to this count. Plaintiffs cite to Drewry v. Stevenson, No. WDQ-09-2340, 2010 WL 93268 (D.Md. Jan. 6, 2010), for the basic — and correct — proposition that a negligent supervision and training claim may constitute a constitutional violation. Indeed, as Drewry noted, the United States Supreme Court recognized that "a city can be liable under § 1983 for inadequate training of its employees." City of Canton v. Harris, 489 U.S. 378, 388 (1989). The Supreme Court strictly qualified the degree of fault that a municipality must exhibit, however, before it can be held liable for this sort of violation:
Id. at 388-89 (second alteration in original).
Here, the complaint falls remarkably short of the threshold needed to state a claim for a constitutional deprivation based on a failure to train or supervise. See Drewry, 2010 WL 93268, at4 (dismissing a constitutional failure to train claim because the complaint "alleges no facts showing (1) the nature of the training of sheriff's officers by the County, (2) that any failure to train was a `deliberate or conscious' choice by the County, or (3) that Stevenson's conduct was caused by a failure to train"). Plaintiffs' allegations related to this count speak nothing of any actionable "policy or custom" or "deliberate indifference" to inhabitants, let alone any facts supporting these elements.
Therefore, regardless of what type of failure to train and supervise claim Plaintiffs meant to advance, Defendants' motion will be granted as to this count.
Plaintiffs style Count Six as a wrongful death claim on behalf of the estate of Mr. Mang against the individual Defendants.
Smith v. Borello, 370 Md. 227, 233 (2002) (internal citations omitted).
Defendants request judgment on the pleadings as to this count by arguing that the survival statute cited by Plaintiffs, Md. Code Ann., Est. & Trusts § 7-401(y), "does not provide an independent basis of liability," and thus "Count[] VI . . . cannot stand on [its] own." (ECF No. 6-1, at 4). Indeed, Maryland's survival statutes did not create a new cause of action. See Trimper v. Porter-Hayden, 305 Md. 31, 38-39 (1985), overruled on other grounds by Md. Code Ann., Cts. & Jud. Proc. § 3-904(g)(2); Smith v. Gray Concrete Pipe Co., 267 Md. 149, 158-59 (1972), overruled on other grounds by Owens-Ill., Inc. v. Zenobia, 325 Md. 420 (1992); see also Md. Code Ann., Est. & Trusts § 7-401(y) ("[A personal representative] may prosecute, defend, or submit to arbitration actions, claims, or proceedings. . . for the protection or benefit of the estate, including the commencement of a personal action which the decedent might have commenced or prosecuted. . . ." (emphasis added)). Although courts often use the term "survival action" loosely to refer to any claim brought by a decedent's estate, to be precise a "survival action" is merely the mechanism by which an estate brings a claim that the decedent could have asserted had he survived. It is not a "claim" in the sense that, for example, one might assert a battery or negligence claim.
In this case, Count Six fails to describe a separate tort or other claim that Mr. Mang could have brought had he survived the alleged beating. At best, this count tries to allege a wrongful death claim, but a wrongful death claim can be maintained only by a decedent's relatives — not his estate. Borello, 370 Md. at 233.
Therefore, to the extent that Count Six attempts to state a claim for a "survival action" as an independent cause of action, judgment on the pleadings must be entered in favor of Defendants.
In contrast, Plaintiffs' assertion of a wrongful death claim in Count Eight on behalf of Ms. Sheppard in her individual capacity is styled correctly. Defendants contend that, like a survival action, the wrongful death statute does not provide an independent basis of liability. (ECF No. 6-1, at 5-6). This time, however, Defendants' argument is unavailing.
Unlike a "survival action," a wrongful death action is itself a claim that can be asserted. Under Maryland law, "[a]n action may be maintained against a person whose wrongful act causes the death of another." Md. Code Ann., Cts. & Jud. Proc. § 3-902; see also Smith v. Westinghouse Electric Corp., 266 Md. 52, 55 (1972) (recognizing that this code provision "created a new cause of action"). Here, Plaintiffs properly allege a wrongful death claim on behalf of Ms. Sheppard in her individual capacity. Accordingly, this claim may proceed.
With respect to the City of Greenbelt, Defendants' motion must be granted for the same reasons that their motion was granted as to the battery, negligence, and negligent training and supervision claims. Because the cause of action giving rise to the wrongful death claim arose out of an incident in which the City of Greenbelt was acting in a governmental capacity, its governmental immunity shields it from liability. See Hirpassa, 2010 WL 2730651, at10 (holding that governmental immunity protected county from liability in a wrongful death action).
For the foregoing reasons, the motion to dismiss or for partial dismissal filed by Defendants City of Greenbelt, Maryland, Sgt. Matthew Carr, Pfc. Johnnie Guy, and Pfc. Young Hur will be granted in part and denied in part. A separate order will follow.
