CATHERINE C. BLAKE, District Judge.
Plaintiff Anthony McCullough filed an eighteen-count complaint against defendants Anne Arundel County, Maryland ("Anne Arundel"), and Anne Arundel County Police Department ("AACPD") police officers Paul Smith, Devin Simmons, and Michael Radzibaba (the "officer defendants"), alleging violations of the U.S. and Maryland constitutions as well as various tort claims. (Am. Compl, ECF 16).
The following facts are taken from the Amended Complaint. On or about June 24, 2016, at approximately 1:10 am, McCullough was driving below the posted speed limit of 50 miles per hour ("mph") on Fort Smallwood Parkway in Anne Arundel County, Maryland. (Am. Compl. ¶¶ 10, 12, 16). After McCullough passed a gas station where several marked police cars were parked, one of the police cars pulled out of the gas station and began following him. (Id. ¶¶ 11, 13). McCullough slowed down and turned onto a side street, Manchester Road, at which point the lights on the police car, which was still following him, began flashing. (Id. ¶¶ 14-15). McCullough was not sure if he was being pulled over and did not immediately stop, but moved to the side of the road to let the car pass. (Id. ¶ 17). When the police car continued following behind him, McCullough realized he was being pulled over and "slowly rolled his car further towards the curb and then placed his vehicle in park." (Id. ¶ 17).
After McCullough stopped his car, an officer later identified as Smith exited the police car, began yelling at McCullough, and approached McCullough's driver's side door. (Am. Compl. ¶ 19). Smith, who had his hand on his weapon, yelled at McCullough to place his hands out of the window. (Id. ¶ 20). McCullough placed his left hand out the driver's-side window and his right hand through the sun roof. (Id.).
McCullough was informed that he was pulled over for speeding, as he had been driving 49 mph in a 35-mph zone. (Am. Compl. ¶ 35). McCullough was placed in handcuffs, pulled to his feet, placed in the front seat of a police car, and taken to the local detention facility. (Id. ¶¶ 33, 39). McCullough was not read his Miranda rights. (Id. ¶ 39). Sometime later, McCullough was taken to the emergency room, where he received minimal treatment. (Id. ¶¶ 40-43). McCullough was then taken to central booking. (Id. ¶ 44). While McCullough was being discharged, Smith reviewed McCullough's information, including his address, and said, "Oh, you live in that area," meaning the area where McCullough was arrested. (Id.).
The next day, McCullough received additional medical treatment and was informed that his shoulder was dislocated, and that he would need a second rotator cuff surgery. (Am. Compl. ¶ 45). McCullough also sustained bruising, broken veins, and a fracture in his right hand. (Id. ¶ 46). McCullough's knees were also injured in the police altercation, and he eventually underwent a total knee replacement of his right knee. (Id.).
When McCullough attempted to retrieve his vehicle from the police, he was informed that it would not be released for several days. (Am. Compl. ¶ 47). When McCullough finally gained access to his car, it had been "ransacked" and its interior damaged. (Id. ¶ 51).
McCullough was charged with nine offenses: (1) disorderly conduct; (2) failure to obey a reasonable lawful order; (3) resisting arrest; (4) disturbing the peace/loud noise; (5) speeding; (6) driving in excess of reasonable and prudent speed; (7) failure to obey properly placed traffic control devices; (8) negligent driving; and (9) driver use of horn when not reasonably necessary. (Am. Compl. ¶ 53). At his jury trial on July 26, 2017, McCullough was found not guilty of eight of the nine offenses, but received a probation before judgment ("PBJ") on the speeding citation. (Id. ¶¶ 54-55).
McCullough's Amended Complaint asserts eighteen counts against the defendants: violations of Fourteenth Amendment due process and equal protection (Count I); use of excessive force in violation of the Fourth Amendment (Count II); unlawful seizure in violation of the Fourth Amendment (Count III); unlawful search in violation of the Fourth Amendment (Count IV); use of an unconstitutional policy or practice (Monell claim) (Count V); violations of due process and equal protection under Articles 24 and 26 of the Maryland Declaration of Rights (Count VI); use of excessive force in violation of Articles 24 and 26 of the Maryland Declaration of Rights (Count VII); unlawful seizure under Articles 24 and 26 of the Maryland Declaration of Rights (Count VIII); unlawful search under Articles 24 and 26 of the Maryland Declaration of Rights (Count IX); use of an unconstitutional policy or practice (Longtin claim) (Count X); malicious prosecution (Count XI); negligence (Count XII); gross negligence (Count XIII); false arrest (Count XIV); false imprisonment (Count XV); abuse of process (Count XVI); negligent training, supervision, and retention (Count XVII); and battery (Count XVIII). As the Amended Complaint does not suggest otherwise, the court assumes that all Counts are asserted against all defendants.
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). "To satisfy this standard, a plaintiff need not `forecast' evidence sufficient to prove the elements of the claim. However, the complaint must allege sufficient facts to establish those elements." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). "Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is `probable,' the complaint must advance the plaintiff's claim `across the line from conceivable to plausible.'" Id. (quoting Twombly, 550 U.S. at 570). Additionally, although courts "must view the facts alleged in the light most favorable to the plaintiff," they "will not accept `legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments'" in deciding whether a case should survive a motion to dismiss. U.S. ex rel. Nathan v. Takeda Pharm. North Am., Inc., 707 F.3d 451, 455 (4th Cir. 2013) (quoting Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)).
The defendants argue that certain claims against Anne Arundel and the officer defendants must be dismissed under the doctrines of governmental immunity and public official immunity, respectively. The court will address each in turn.
In Maryland,
McCullough does not appear to contest that the officers' actions were "governmental" in nature. He instead argues that under the Local Government Tort Claims Act ("LGTCA"), Anne Arundel is not immune from suit. He is mistaken. The LGTCA provides, in relevant part, that "[a] local government may not assert governmental or sovereign immunity to avoid the duty to defend or indemnify an employee established in this subsection." Md. Code Ann., Cts. & Jud. Proc. § 5-303(b)(2) (emphasis added). The Maryland Court of Special Appeals has likened this indemnity provision to an insurance policy: "The insurance company is liable for such damages as its assured may inflict, but, generally speaking, the insurance company is not an entity which may be sued for its assured's torts." Nam, 127 Md. App. at 184. The LGTCA does not contain a "specific waiver of governmental immunity when a governmental entity is sued in its own capacity," and thus "does not create liability on the part of the local government as a party to the suit." Nam, 127 Md. App. at 184 (quoting Khawaja v. Mayor & City Council, City of Rockville, 89 Md.App. 314, 325 (1991)) (emphasis omitted). Accordingly, Anne Arundel is immune from direct suit based on the alleged torts of its police officers, and Counts XI-XVIII against it must be dismissed.
The defendants argue that the officer defendants are immune from suit on Counts XII (negligence), XIII (gross negligence), XVII (negligent training, supervision, and retention), and XVIII (battery), under the doctrine of public official immunity. Police officers are public officials who enjoy common law immunity from suit for negligent acts performed during the course of their discretionary duties. Houghton v. Forrest, 412 Md. 578, 585 (2010). Common law public official immunity does not, however, extend to intentional torts, id. at 586, nor does it apply to malicious or grossly negligent acts, Cooper v. Rodriguez, 443 Md. 680, 714 (2015). Malicious conduct is "conduct characterized by evil or wrongful motive, intent to injure, knowing and deliberate wrongdoing, ill-will or fraud." Barbre v. Pope, 402 Md. 157, 182 (2007). Gross negligence is "an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them." Id. at 187 (quoting Liscombe v. Potomac Edison Co., 303 Md. 619, 635 (1985)).
McCullough's negligence claim—as distinguished from his gross negligence claim— consists of the allegation that "[t]he Defendants breached [a] duty of care by engaging in excessive force by manhandling Plaintiff despite his pleas and entreaties to treat him with care because of his recent surgeries." (Am. Compl. ¶ 222). In order to state a claim of negligence against the officer defendants that would not be barred by public official immunity, McCullough must allege that the negligent use of excessive force was malicious. McCullough contends that his allegation, incorporated into all 18 counts of the Amended Complaint, that "Defendant officers committed each of the acts knowingly, intentionally, and maliciously" suffices to plead malice with respect to his negligence claim. (Opp'n at 31, ECF 20 (quoting Am. Compl. ¶ 66)). Not so. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). McCullough's allegation that "[t]he officers' actions against Mr. McCullough were committed because of his race," (Am. Compl. ¶ 60), is exactly the kind of conclusory statement deemed insufficient by the Supreme Court in Iqbal. See 556 U.S. at 680-81 (the "bare assertion" that federal officials "maliciously" agreed to subject a detainee to harsh conditions of confinement "solely on account of [his] religion, race, and/or national origin" was insufficient to survive Rule 12(b)(6) dismissal). Accordingly, McCullough's negligence claim fails, and Count XII against the officer defendants will be dismissed.
The defendants argue that McCullough's failure to plead malice with respect to the gross negligence and battery claims also compels dismissal. As common law public official immunity does not apply to these claims, the defendants rely on a Maryland statute which provides that "[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." See Md. Code Ann., Cts. & Jud. Proc. § 5-507(a)(1). But McCullough contends that municipal liability under § 5-507 does not apply to AACPD officers. (Opp'n at 31-32). He points to Houghton v. Forrest, in which the Maryland Court of Appeals held that the Baltimore City Police Department ("BCPD") is not a "municipal corporation" within the meaning of § 5-507 and that its officers are not entitled to immunity under that statute. See Houghton, 412 Md. at 588-89. Without providing supporting authority, McCullough asserts that the same is true for AACPD officers. The defendants do not respond to this argument in their Reply.
While AACPD's status as a state or municipal agency within the meaning of § 5-507 may be an interesting question of Maryland law,
While the defendants appear to argue that McCullough's negligent training, supervision, and retention claim (Count XVII) against the officer defendants should be dismissed pursuant to public official immunity, (Mot. at 16-17, ECF 18-1), the claim instead must be dismissed for the simple reason that McCullough asserts this claim only against Anne Arundel. (Am. Compl. ¶¶ 254-60). McCullough cannot prevail on a claim of negligent training, supervision, and retention against the officer defendants because he does not allege that the officers themselves engaged in negligent training, supervision, and/or retention. (Am. Compl. ¶¶ 254-60). Accordingly, Count XVII against the officer defendants will be dismissed.
McCullough alleges violations of the Fourth and Fourteenth Amendments of the U.S. Constitution (Counts I-V) and violations of Articles 24 and 26 of the Maryland Declaration of Rights (Counts VI-X). The defendants argue that all constitutional claims, except Count VII, should be dismissed as to Anne Arundel, and that all constitutional claims, except Counts II and VII, should be dismissed as to the officer defendants.
In Counts V and X, McCullough alleges that the defendants' "pattern and practice" of abusing authority, using excessive force, and conducting unreasonable searches and seizures violated his rights under the federal constitution (Count V) and the Maryland Declaration of Rights (Count X). (Am. Compl. ¶¶ 133-36; 209-10).
With respect to the Monell claim (Count V) against Anne Arundel, the defendants argue that McCullough pleads insufficient facts to establish an unconstitutional pattern or practice. Count V, like all federal constitutional claims brought against state officials, is brought pursuant to 42 U.S.C. § 1983, which provides that any person who, "under color" of state law, "shall be liable to the party injured." See 42 U.S.C. § 1983. "[A] municipality is liable under § 1983 if it follows a custom, policy, or practice by which local officials violate a plaintiff's constitutional rights." Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 402 (4th Cir. 2014). To prevail on a Monell claim,
Owens, 767 F.3d at 402-03 (internal citations, quotation marks, and alterations omitted).
In his Opposition, McCullough clarifies that his allegations "regarding the unconstitutional pattern and practice of Defendant County" appear in paragraphs 135-36 and 138-44 of the Amended Complaint. (Opp'n at 13-14). In this portion of the Amended Complaint, McCullough alleges that Anne Arundel "permitted and tolerated" patterns and practices of "excessive force," "brutality," "abuse of power and authority," and "illegal searches and seizures."
Having determined that Count V should not be dismissed at this stage, the court also finds that McCullough's Longtin claim (Count X) should proceed as well. Courts in this district have stated that "`Longtin claims are essentially Maryland's version of Monell claims.'" Krell v. Queen Anne's Cty., No. CV JKB-18-637, 2018 WL 6523883, at *16 (D. Md. Dec. 12, 2018) (quoting Rosa v. Bd. of Ed. of Charles Cty., Civ. No. AW-11-2873, 2012 WL 3715331, at *9 (D. Md. Aug. 27, 2012). Moreover, the defendants argue in their motion to dismiss that "the analysis for Count V and X is identical." (Mot. at 8). Accordingly, Count X will not be dismissed.
The defendants argue that McCullough's Fourth and Fourteenth Amendment claims (Counts I-IV), asserted via § 1983, against Anne Arundel fail as attempts to assert respondeat superior claims. (Mot. at 7-8); see Monell, 436 U.S. at 691 ("[A] municipality cannot be held liable under § 1983 on a respondeat superior theory.").
It is not clear from the face of the Amended Complaint that McCullough intended to assert Counts I-IV against Anne Arundel under a theory of Monell liability. Indeed, the only reference to Monell in the entire Amended Complaint is in Count V.
The defendants argue that McCullough's claims challenging his arrest (Counts I, III, IV, VI, VIII, and IX) fail, as the entry of a PBJ on McCullough's speeding charge establishes that the officers had probable cause to stop, arrest, and search McCullough. The arrest-related § 1983 claims appear in Counts I (violations of Fourteenth Amendment due process and equal protection rights), III (unlawful seizure in violation of the Fourth Amendment), and IV (unlawful search in violation of the Fourth Amendment), and the arrest-related Maryland constitutional claims appear in Counts VI, VIII, and IX (asserting the same claims, but under Articles 24 and 26 of the Maryland Declaration of Rights).
Where a judgment in favor of a plaintiff's § 1983 claim would "necessarily imply" the invalidity of a criminal conviction, the claim "must be dismissed unless the plaintiff can demonstrate that the conviction ... has already been invalidated." See Ballenger v. Owens, 352 F.3d 842, 846 (4th Cir. 2003) (quoting Heck v. Humphrey, 512 U.S. 477, 487 (2003)). A PBJ, which "necessarily comes after a finding of guilt," "is the equivalent of a conviction" for purposes of determining the viability of a § 1983 claim. Stutzman v. Krenik, 350 F.Supp.3d 366, 379 (D. Md. 2018). A judgment in favor of McCullough on Counts III and the claims in Count I relating to the seizure would require a finding that there was no probable cause to stop and arrest McCullough, which would necessarily imply that the PBJ on the speeding charge was invalid. The PBJ establishes that McCullough was speeding, and "[a] police officer may arrest without a warrant a person who commits ... [a] misdemeanor
The analysis of McCullough's seizure-related state constitutional claims is similar. "Under Maryland law, a conviction for a crime `conclusively establishes the existence of probable cause' to support the criminal offense, even if the conviction is later reversed, unless it was obtained fraudulently." See Stutzman, 350 F. Supp. 3d at 380 (quoting Zablonsky v. Perkins, 230 Md. 365, 368-69 (1963)). McCullough's PBJ thus "conclusively establishes" that the officers had probable cause to stop and arrest him. See id. In his Opposition, however, McCullough attempts to avoid dismissal of the seizure claims by arguing that "his PBJ was a result of the fraud of the officer." (Opp'n at 23 (internal capitalization omitted)). McCullough's fraud claim consists entirely of his assertion Smith must have "lied to prosecutors" about the probable cause for the stop and arrest because McCullough was not speeding, (Opp'n at 25, 23-24 (quoting Am. Compl. ¶¶ 11, 12, 16, 35-37)), and that Smith's statement that McCullough was speeding cannot be trusted, as it appears in a "seriously compromised police report," (id. at 25). As evidence of the "seriously compromised" nature of the police report, McCullough directs the court to the Dash Cam Video. McCullough claims that the following statements from the police report are "false" and "refuted by the dash cam footage": (1) the statement that McCullough "sped off' after Smith stopped him; (2) the statement that McCullough did not comply with orders to put his hands outside the window; (3) the statement that McCullough blew his horn continually; and (4) the statement that McCullough resisted arrest. Upon review of the Dash Cam Video, the court disagrees that the statements in the police report are so refuted by the footage as to constitute fraud. Indeed, the footage shows that McCullough did continue driving after Smith initially stopped him, (Dash Cam Video at 1:00-15, Opp'n Ex. A, ECF 20-2), and that McCullough did initially refuse to comply with the demand that he place both hands outside the window, see supra note 4. Despite McCullough's claims to the contrary, the footage does not "clearly show[] that Defendant Smith set off Mr. McCullough's car alarm when he angrily reached into the vehicle and attempted to turn it off," (Mot. at 24); the sound that emanated from the vehicle when Smith reached into the car is also consistent with someone pressing on the horn, (Dash Cam Video at 2:00-35). It is also not "clear" from the footage that McCullough "never resisted Defendant Smith." (Opp'n at 25). Based on the arguments in his Opposition, then, McCullough's fraud claim is premised entirely on Smith's supposed untrustworthiness, supported only through overstated claims about what the Dash Cam Video shows. The court cannot find that this adequately states a claim of fraud that "falls within [the] narrow exception to the Maryland rule that a conviction determines conclusively the existence of probable cause[.]" See Asuncion v. City of Gaithersburg, Md., 73 F.3d 356, 1996 WL 1842, at *2 (4th Cir. 1996) (unpub.) ("mere recitation of factual inaccuracy" insufficient to demonstrate that a § 1983 plaintiff's underlying conviction was obtained through perjury). Accordingly, the PBJ establishes that the officers had probable cause to stop and arrest McCullough. Count VIII and the seizure claims contained in Count VI will be dismissed.
It is less obvious that the PBJ compels dismissal of Counts IV and IX, in which McCullough challenges the alleged search of his vehicle. (Am. Compl. ¶¶ 122, 124). The defendants argue that a judgment in favor of McCullough's search claims would imply the invalidity of the state court conviction for speeding. (Mot. at 14). This is not necessarily true. The Fourth Amendment, as well as Maryland statutory law, permits a police officer to effectuate a warrantless arrest where a misdemeanor has been committed in her presence. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001); Md. Code, Crim. Proc. § 2-202(a). But a misdemeanor arrest does not always justify a vehicular search. In Arizona v. Gant, the Supreme Court held that a vehicle search incident to arrest does not comply with the Fourth Amendment unless police reasonably believe that the arrestee "could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein[.]" 556 U.S. 332, 343-44 (2009). In so holding, the Gant Court noted that "when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence." Id. at 343. The court thus finds that judgment in favor of McCullough on Count IV would not necessarily imply the invalidity of the PBJ; that is, even if the stop and arrest of McCullough was permissible, it is possible that the search of his vehicle was not. Similarly, with respect to McCullough's state constitutional search claim (Count IX), the probable cause for the stop established by the PBJ does not necessarily translate to probable cause for the search. See Scott v. State, 366 Md: 121, 139 (2001) ("[W]e have consistently construed Article 26 as being in pari materia with the Federal provision and have accepted as persuasive the Supreme Court's construction of the Fourth Amendment."). As the defendants advance no other arguments for dismissal of these claims, Counts IX (against all defendants) and IV (against the officer defendants
The defendants ostensibly seek dismissal of Counts I and VI in their entirety, but the motion to dismiss only argues for dismissal of the search and seizure claims contained therein. Counts I and VI, however, contain vague and expansive allegations of federal and state constitutional violations beyond those directly challenging McCullough's search and seizure. In Count I, McCullough alleges multiple violations of his Fourteenth Amendment rights to due process and equal protection, alleging that
(Am. Compl. ¶ 74). McCullough also appears to assert an excessive force claim, (id. ¶¶ 75-76), a claim that he was "deprived of numerous protected property and liberty interests," (id. ¶ 77), a failure to render aid and/or a deliberate indifference to serious medical need claim, (id. ¶¶ 78, 88),
As explained in Part II.C, supra, the court will dismiss the portions of Counts I and VI that challenge his seizure. But the defendants have not argued for dismissal of the other claims that appear in these Counts. Perhaps the defendants did not present arguments relating to these claims because they, like the court, had difficulty understanding what claims McCullough asserts in Counts I and VI. Nevertheless, the defendants have not moved for a more definite statement, see Fed. R. Civ. P. 12(e), and the court declines to dismiss these claims in the absence of arguments from the defendants. Accordingly, Counts I and VI against the officer defendants, except for the portions relating to McCullough's seizure, will proceed, on the assumption that McCullough may be able to clarify his claims in the future. Count VI against Anne Arundel will proceed, but as Count I against Anne Arundel is cumulative of Count V, see supra Part II.B, Count I will not.
Lastly, the defendants argue that the claims of malicious prosecution (Count XI), false arrest (Count XIV), false imprisonment (Count XV), and abuse of process (Count XVI) should be dismissed. As explained in Part I.A, supra, Anne Arundel is immune from suit on these tort claims, and the court will only analyze these claims as to the officer defendants.
"The elements of malicious prosecution are: 1) a criminal proceeding instituted or continued by the defendant against the plaintiff; 2) without probable cause; 3) with malice, or with a motive other than to bring the offender to justice; and 4) termination of the proceedings in favor of the plaintiff." Heron v. Strader, 361 Md. 258, 264 (2000). The defendants argue that McCullough fails on element four, as the proceedings terminated in a PBJ, which was unfavorable to McCullough. McCullough counters that while he received a PBJ on the speeding charge, he was acquitted at a jury trial for the other eight charges. Even if his malicious prosecution fails as to the speeding charge, he argues, it should not be dismissed as to the others.
In support of their position that the proceedings did not terminate in McCullough's favor, the defendants rely on Candelero v. Cole, 152 Md.App. 190, 200 (2003). In Cole, the Maryland Court of Special Appeals held that proceedings did not terminate in a plaintiff's favor where the plaintiff was charged with multiple offenses and convicted on one, but the prosecution nolle prossed
Relying on the persuasive authority of Candelero, Hines, and Albertson, the court finds that eight of the nine charges terminated in McCullough's favor. McCullough was acquitted of these charges by a jury, which makes his argument of favorable termination stronger than the Candelero and Hines plaintiffs'. Moreover, as McCullough was acquitted of all but one charge, he would likely prevail under the Albertson test, where the court "consider[s] a plaintiff's overall innocence of the prior charges." Albertson, 2017 WL 2687763, at *10. As the defendants point out in their Reply, however, the existence of probable cause defeats a malicious prosecution claim even when proceedings terminated in the plaintiff's favor. (Reply at 15). Here, McCullough's speeding conviction establishes probable cause not only for that charge, but also for three of the other charges: driving in excess of reasonable and prudent speed, failure to obey properly placed traffic control devices, and negligent driving. Accordingly, Count XI against the officer defendants will proceed, but only with respect to four of the criminal charges: disorderly conduct, failure to obey a reasonable lawful order, resisting arrest, and disturbing the peace/loud noise.
"The elements of false arrest and false imprisonment are identical. Those elements are: 1) the deprivation of the liberty of another; 2) without consent; and 3) without legal justification." Heron, 361 Md. at 264. The defendants argue that McCullough's claims fail on element three, as his seizure was legally justified. "Whether legal justification exists depends on whether the officer acted with legal authority to arrest." Stutzman, 350 F. Supp. 3d at 380 (citing Montgomery Ward v. Wilson, 339 Md. 701, 721 (1995)). As the court explained in Part II.C.i, supra, the PBJ establishes that the the officers had probable cause to effectuate a warrantless misdemeanor arrest. Counts XIV and XV will thus be dismissed.
To state an abuse of process claim, a plaintiff must allege facts relating to the "misuse of the tools the law affords litigants" once proceedings have been instituted. See One Thousand Fleet Ltd. P'ship v. Guerriero, 346 Md. 29, 39 (1997) (explaining the difference between malicious prosecution and abuse of process claims) (emphasis omitted). The only conduct relevant to McCullough's abuse of process claim, then, is alleged conduct that occurred after criminal proceedings were instituted against him. Id. at 39-40. The defendants argue that McCullough has failed to allege any such facts. Indeed, the Amended Complaint makes only conclusory allegations against the defendants in Count XVI, claiming that "Defendants took advantage of the ordinary criminal process to harass and retaliate against Plaintiff'; "Defendants' actions were willful"; "This type of harassment and retaliation is not contemplated by law"; and "Defendants engaged in this harassment and retaliation for ulterior motives and out of ill will." (Am. Compl. ¶¶ 248-52). McCullough tries to rehabilitate this claim in his Opposition, arguing that all post-arrest conduct by the defendants qualifies as an abuse of process. (Opp'n at 35-38). McCullough, however, does not make these allegations in the Amended Complaint and the court will not consider them now. See Zachair, Ltd v. Driggs, 965 F.Supp. 741, 748 n. 4 (D. Md. 1997) (a plaintiff "is bound by the allegations contained in its complaint and cannot, through the use of motion briefs, amend the complaint"). McCullough has thus failed to state a claim for abuse of process, and Count XVI will be dismissed.
For the foregoing reasons, the defendants' motion to dismiss will be granted in part and denied in part. The court will dismiss, in their entirety, Counts I-IV, VIII, and XI-XVIII against Anne Arundel, and Counts III, V, VIII, X, XII, and XIV-XVII against the officer defendants. The seizure-related claims in Counts I and VI will be dismissed, but remaining claims in Count I against the officer defendants, and Count VI against all defendants, will proceed. Counts V, IX, and X against Anne Arundel will not be dismissed, nor will Counts IV, IX, XVIII, and XVIII against the officer defendants. Count XI against the officer defendants will proceed with respect to four of the criminal charges—disorderly conduct, failure to obey a reasonable lawful order, resisting arrest, and disturbing the peace/loud noise—but will be dismissed with respect to the other charges. As the defendants do not seek dismissal of Count VII or Count II against the officer defendants, these claims also remain. The court will also bifurcate Counts V and X against Anne Arundel from the remaining claims and stay resolution of these Counts until the other claims are resolved. A separate order follows.
