# Koontz v. Kimberley

> District Court, D. Maryland · September 17, 2019

URL: https://www.frixlaw.com/law-library/cases/10202512

## Case

- **Court:** District Court, D. Maryland
- **Decided:** September 17, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10202512

## How later opinions describe it (automated extraction)

- noting burden of proof in a malicious prosecution claim includes that prosecution is unsupported by probable cause

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

DAVID KOONTZ *

Plaintiff, *

v. * Civil Case No. 19-CV-01321-JMC

JULIA KIMBERLEY, et al, *

Defendants *

* * * * * * * * * * * * * * *

MEMORANDUM OPINION
This suit arises from injuries sustained by David Koontz (“Plaintiff” or “Mr. Koontz”)
during an altercation between Mr. Koontz, eight employees of the Washington County Sheriff’s
Office, and two employees of Meritus Hospital. (ECF No. 1). Plaintiff asserts claims under 42
U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments of the Federal
Constitution, violations of Articles 24 and 26 of the Maryland Declaration of Rights, and various
common law tort claims. The parties consented to proceed before a magistrate judge pursuant to
28 U.S.C. § 636(c) and Local Rule 301.4.
On August 13, 2019, Plaintiff filed an Amended Complaint. (ECF No. 67).1 Pending
before this Court are three dispositive motions. First, Defendants Julia Kimberley, Greg Alton,
Howard Ward, Daniel Monn, Bryan Glines, Spencer Shank, Clayton Stottlemeyer and Ben Jones,
all of whom are employees of the Washington County Sheriff’s Office (collectively “Defendant
Deputies”) filed a Motion to Dismiss All Claims for Failure to State a Claim, or in the Alternative

1 This Amended Complaint was filed in response to the Court’s concerns regarding the inclusion of John Doe
Defendants.
for Summary Judgment in their favor.2 (ECF No. 49). Second, Defendant Board of
Commissioners of Washington County (the “Commissioners”) filed its own Motion to Dismiss, or
in the Alternative to Bifurcate. (ECF No. 48). Finally, Defendant State of Maryland (the “State”)
has filed a Motion to Dismiss. (ECF No. 54). The issues have been fully briefed and no hearing
is necessary to resolve this motion. See Local Rule 105.6. For the reasons that follow, this Court

will:
1. GRANT IN PART and DENY in PART the Defendant Deputies’ Motion to
Dismiss or in the Alternative for Summary Judgment;
2. GRANT the Commissioners’ Motion to Dismiss and DENY the Commissioners’
Motion to Bifurcate as moot; and
3. GRANT the State’s Motion to Dismiss.

I. FACTUAL BACKGROUND
According to the Amended Complaint, on January 4, 2018, Plaintiff was driving a two-
door gray Hyundai Sonata and running errands in Hagerstown, Maryland. (ECF No. 67 at p. 6).
At some point during these errands, Plaintiff noticed that he was being surveilled by Defendant
Deputies Monn, Kimberley and Ward. Id. at p. 7–8. For their part, the Defendant Deputies explain
they were engaged in a directed enforcement operation targeting an area pawn shop, which was
believed to be patronized by drug addicted individuals pawning stolen goods to obtain drug money,
and began surveilling Plaintiff when he was observed exiting that pawn shop. (ECF No. 49-1 at

p. 12–13).

2 The parties recognize that the Amended Complaint contains no substantive changes such that their already-pending
motions filed in response to the original Complaint should be applied to the Amended Complaint.
Plaintiff explains that eventually he pulled over at a Super 8 Hotel, 16805 Blake Road, and
parked his vehicle in the gravel parking lot to urinate in a bottle that he kept in his vehicle. (ECF
No. 67 at p. 8). To that point, Mr. Koontz had not been seen or alleged to be under the influence,
or in possession of drugs or alcohol, issued any citation, or accused of committing or attempting
to commit any crime. Id. at 7.

The parties agree that Defendant Deputy Alton, using binoculars, allegedly observed Mr.
Koontz lean forward in the driver’s seat of his vehicle. (Id. at p. 8; ECF No. 49-1 at p. 13). By
way of supporting affidavit, Defendant Deputy Alton states that this behavior “was similar to
individuals who Alton had previously observed injecting drugs.”3 (ECF No. 49-2 at p. 2).
Defendant Deputy Alton then instructed Defendant Deputy Kimberley, by radio, to approach
Plaintiff’s vehicle. (ECF No. 67 at p. 8). Defendant Deputy Kimberley, by way of her own
affidavit, corroborated that Defendant Deputy Alton radioed, and said that she should perform a
well-being check on Plaintiff. (ECF No. 49-3 at p. 2).
According to Plaintiff, Defendant Deputy Kimberley approached the driver’s side of his

vehicle and falsely stated to Plaintiff that his car matched the description of a suspicious vehicle
in the area, asking for Plaintiff’s identification.4 (ECF No. 67 at p. 8). Plaintiff did not provide
identification but instead rolled up his window, locked his car, and began to cover his windshield
and windows with sun shades, to, according to Plaintiff, “prevent Defendant Kimberley from
seeing Mr. Koontz urinate and to avoid a situation involving indecent exposure.” (Id.; ECF No.
49 Ex. A (body camera footage), at 0:45–1:14). While Plaintiff was covering his windshield,

3 Defendant Deputy Alton further states in his affidavit that he then saw Plaintiff “fall backward in his seat with his
head tipped back,” followed by seeing Plaintiff “slump forward over the steering wheel.” (ECF No. 49-2 at p. 2).

4 Defendant Deputy Kimberley further explained that she used this deception in order to protect the covert nature of
the pawn shop surveillance operation. (ECF No. 49-3 at p. 2).
Defendant Deputy Kimberley radioed her colleagues and noted that Plaintiff had locked himself
inside his vehicle and was putting up sun shades. (Id.; ECF No. 49 Ex. A, at 0:50–1:04).
According to Plaintiff, Defendant Deputy Ward, in plain clothes, then rushed towards Plaintiff’s
vehicle with his gun drawn and aggressively screamed at Plaintiff to “[o]pen the fu**ing window
or it’s getting busted!” (ECF No. 67 at p. 8). However, the body camera footage indicates that

Defendant Deputy Ward instructed Plaintiff to open his window three times (all of which were
ignored by Plaintiff) before he drew his weapon. (ECF No. 49 Ex. A, at 1:47–1:55).
At this point, the parties’ description of events, while somewhat consistent on key points,
differ in the amount of detail provided. According to Plaintiff, he removed the sun shades, and
upon command from Defendant Deputy Ward, slowly raised his hands. (ECF No. 67 at p. 9). He
then “unlocked the driver side door, opened the door,” and began exiting voluntary, but Defendant
Deputy Ward grabbed him and pulled him from the car. Id. According to Plaintiff, because he
was frightened by Defendant Ward’s aggressive demeanor, Plaintiff tried to free himself of
Defendant Deputy Ward’s grasp by pulling away. However, he was tackled to the ground by

Defendant Deputies Ward, Monn, and Glines, while Defendant Deputy Kimberley stood to the
side and observed. Id. Thereafter, Plaintiff contends that Defendant Deputy Ward wrapped
Plaintiff’s legs together and Defendant Deputies Glines and Monn “took control of Mr. Koontz’s
arms and upper body.” Id. While restrained, Plaintiff stated that he was on medication and that
he wanted to go retrieve the medication, but the Defendant Deputies did not respond to his request.
Id. at p. 10. Next, Plaintiff was ordered to put his hands behind his back (while being restrained
by Defendants Ward, Monn, and Glines) and “less than three seconds after the command,
Defendant Kimberley deployed her taser and struck Mr. Koontz once in the middle of the back.”
Id. Plaintiff was then “further physically restrained,” and placed into handcuffs. Id.
Defendants’ version of these events, supported by affidavit and body camera footage, 5
adds important detail to Plaintiff’s recital. Defendants state that after refusing Defendant Deputy
Ward’s third command to lower his window, Plaintiff had to be instructed twice to show his hands.
(ECF No. 49-1 at p. 15; Ex. A, at 1:55–2:09). He was ordered twice to open the car door and,
because he had his keys in his hand, was further ordered not to put the keys in the ignition but to

exit the vehicle. Id. He was again ordered to show his hands, and then ordered four times to exit
his vehicle. (Ex. A, at 1:55–2:21). Although Plaintiff opened the door and placed one foot outside
the vehicle, he did not exit the vehicle completely, but instead twisted to reach back inside the
vehicle towards the console. (ECF No. 49-1 at p. 15; Ex. A, at 2:11–2:34). At this point, Defendant
Deputy Ward grabbed him to pull him out of the vehicle. Id. A struggle ensued between Plaintiff
and Defendant Deputies Glines, Monn and Ward, resulting in Plaintiff and Defendant Deputy
Ward falling to the ground. Id. The footage demonstrates that Plaintiff was actively noncompliant
with requests to present his hands behind his back for handcuffing. (ECF No. 49 Ex. A, at 2:40–
2:50). At that point, Defendant Deputy Alton who had arrived at the scene, instructed Defendant

Deputy Kimberley to use her taser on Plaintiff. (ECF No. 49-1 at p. 16; Ex. A, at 2:50–3:05).
Once in custody, Plaintiff was charged with one count of common law obstructing and
hindering and one count of resisting arrest in violation of Maryland Criminal Code § 9–408(b).
Id. However, before booking, pursuant to the Washington County Sheriff’s Office’s Policy,
Plaintiff was transported by EMS to Meritus Medical Center for an evaluation and removal of the
taser probe.

5 See Harris v. Pittman, 927 F.3d 266, 275–76 (4th Cir. 2019) (“In Scott v. Harris, which also involved a Fourth
Amendment excessive force claim, the Supreme Court was faced with a videotape of the incident in question that
“utterly discredited” the plaintiff’s account, rendering it a “visible fiction.” As between a videotape of undisputed
authenticity, and the plaintiff’s story, the Court held, the videotape should prevail.”) (internal citations omitted).
According to the Amended Complaint, Plaintiff was temporarily admitted to Meritus
Medical Center for evaluation. (ECF No. 67 at p. 11). During this time, he was under the
supervision and custody of Defendant Deputies Shank and Stottlemyer and “his hands and wrists”
were handcuffed to the hospital bed. Id. At Defendant Deputy Stottlemeyer’s request, Defendant
Deputy Jones joined the other Defendant Deputies to assist in transporting Plaintiff from the

hospital to the Washington County Detention Center. Id. Around 8:27 P.M. the hospital cleared
Plaintiff for release. Id. At this time, Plaintiff contends that he was vulnerable, in severe pain
from the previous altercation, and “confused and frightened by the presence and dominance being
exerted by Defendants Jones, Shank, and Stottlemeyer.” Id. Due to this confusion and “upon a
legitimate concern for his physical safety following the violent interaction near his vehicle, Mr.
Koontz refused to leave Meritus Medical with the Defendant Deputies by holding on to the railings
along the hospital bed.” Id.
At this impasse, because Plaintiff refused to leave with the Defendant Deputies, Defendant
Deputy Jones tried to pry Plaintiff’s hands from the bed rail by pressing on various pressure points

in his jaw. Id. at p. 12. Plaintiff contends that despite his legs being shackled and his being
physically restrained by three law enforcement officers (Defendant Deputies Jones, Shank and
Stottlemeyer), they also asked for additional assistance from two agents of Defendant Meritus
Medical Center. Id. Because Plaintiff refused to let go of the bed, Defendant Shank asked
Defendants Stottlemyer and Jones, “should I tase him?” Id. Plaintiff alleges that the Defendant
Deputies in the room expressly or tacitly encouraged the discharge of Defendant Shank’s taser.
Consequently, around 8:45 p.m., Defendant Shank tased Plaintiff once in the abdomen. Id. At
this time, Plaintiff was also allegedly being restrained by agents of Meritus Medical Center, Jones,
and Stottlemyer, and his legs were bound by shackles. Id. “As an immediate and involuntary
result of being tased for the second time that evening, Mr. Koontz fell back into the hospital bed
and his legs flew upwards, allegedly striking Defendant Shank in the face.” Id. at p. 13. This
resulted in him being tased a third time. Id. Plaintiff was examined by another physician and the
taser probes were removed, which caused Plaintiff to further scream out in pain and to break down
in tears and cry. Id. Then, Plaintiff “wearing only his tattered boxer–briefs, was aggressively and

forcibly dragged from the Hospital, down a hallway and outside to the patrol vehicle.” (ECF No.
67 at p. 13).
Defendants’ version of these events– supported both by affidavit and additional body
camera footage (ECF No. 49 Ex. D and E) – does not significantly depart from Plaintiff’s basic
narrative, other than to emphasize Plaintiff’s continued hostility towards the Defendants and his
active resistance towards being moved from the hospital into custody, despite repeated instructions
and warnings. Id. at pp. 16 –17. Charges of second degree assault, resisting arrest and disorderly
conduct were added to his existing charges. Id. at pp. at p. 18–19.
Based upon these encounters, Plaintiff asserts thirty claims (and claims within claims)

under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments to the Federal
Constitution, violations of Articles 24 and 26 of the Maryland Declaration of Rights, and various
common law torts including false arrest, false imprisonment, malicious prosecution and intentional
infliction of emotional distress.
II. STANDARD OF REVIEW

The Defendants’ Motions are predicated on Federal Rule of Civil Procedure 12(b)(6) and,
as to the Defendant Deputies, alternatively Rule 56. (ECF No. 49). The purpose of Federal Rule
of Civil Procedure 12(b)(6) “is to test the sufficiency of a complaint and ‘not to resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.’” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (quoting Edwards v. City of Goldsboro, 178
F.3d 231, 243 (4th Cir. 1999)). A Rule 12(b)(6) motion “constitutes an assertion by a defendant
that, even if the facts alleged by plaintiff are true, the complaint fails as a matter of law, to state a
claim upon which relief can be granted.” Jones v. Chapman, 2015 WL 4509871, at *5 (D. Md.
July 24, 2015).

Whether a complaint states a claim for relief is assessed in accordance with the pleading
requirements of FRCP 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss “detailed factual
allegations are not required, but a ‘plaintiff must provide the grounds of his entitlement to relief’
and this requires ‘more than labels and conclusions, or a formulaic recitation of the elements of a
cause of action.’” Petry v. Wells Fargo Bank, N.A., 597 F. Supp. 2d 558, 561– 62 (D. Md. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007)). In reviewing a Rule 12(b)(6)
Motion to Dismiss, “the Court must accept the complaint’s allegations as true, and must liberally
construe the complaint as a whole.” Humphrey v. National Flood Ins. Program, 885 F. Supp. 133,
136 (D. Md. 1995). Further, the Court must draw all reasonable inferences “derived therefrom in

the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.
1997).
In resolving a motion under Rule 12(b)(6), a court considers matters only within the
pleadings. If matters outside the pleadings are presented, and are considered, the motion shall be
treated as one for summary judgment pursuant to Rule 56. Humphrey, 885 F. Supp at 136. Federal
Rule of Civil Procedure Rule 56(a) requires the Court to “grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” The moving party bears the burden “to demonstrate the absence of any genuine
dispute of material fact.” Jones v. Hoffberger Moving Servs, 92 F. Supp. 3d 405, 409 (D. Md.
2015). A “dispute as to a material fact ‘is genuine if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” J.E. Dunn Const. Co. v. S.R.P. Dev. Ltd. P’ship,
115 F. Supp. 3d 593, 600 (D. Md. 2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)).

III. DISCUSSION
In sum, Mr. Koontz sues three6 different entities and their agents, and asserts nearly
identical claims against each. Specifically, Plaintiff’s claims fall under 42 U.S.C. 1983 (based
on the Fourth and Fourteenth Amendments), Maryland Declaration of Rights Articles 24 and
26, and the common law torts of false imprisonment, false arrest, malicious prosecution, and
intentional infliction of emotional distress. Because the applicable legal standard depends upon

the entity being sued, the Court has divided the claims with respect to such entities: (1) the
Defendant Deputies; (2) the Commissioners; and (3) the State.
Koontz v. Defendant Deputies
The Complaint contains multiple counts against the Defendant Deputies.7 With respect to
these claims, each Deputy is sued in his or her individual capacity. (ECF No. 67 at pp. 4, 15).8
Although the claims against each Defendant Deputy are asserted in separate Counts, they are all
nearly identical. The Defendant Deputies’ Motion articulates five generalized arguments in

6 In fact, Plaintiff sued four entities. However, Meritus Medical did not file a Motion to Dismiss, but rather filed an
Answer to the Amended Complaint.

7 After parsing through these claims within claims, it appears that the Counts, as alleged against each individual Deputy
are as follows: Kimberley- Counts I -VI; Ward- Counts VII-IX; Glines- Counts X-XII and XIV-XV; Monn- Counts
X-XI and XIII-XV; Alton- Counts X, XI and XVI1; Shank- Counts XVII-XXI; Stottlemyer- Count XXII; Jones-
Count XXII.

8 However, while neither party addressed this, Maryland law does not distinguish between a defendant’s “individual
capacity” and “official capacity” for purposes of state constitutional claims. Bumgardner v. Taylor, 2019 WL
1411059, at *6 (D. Md. Mar. 28, 2019) (citing Ritchie v. Donnelly, 324 Md. 344, 375 (Md. 1991)).
support of Summary Judgment. These contentions are: (1) the force used during both incidents
was objectively reasonable; (2) the existence of probable cause to arrest and charge Plaintiff
negates all claims grounded on false arrest, imprisonment, and malicious prosecution; (3) the
Deputy Defendants are entitled to the protection of qualified immunity from the § 1983 claims;
(4) the individual Deputies are entitled to statutory public official immunity as to the claims under

the Maryland Declaration of Rights and common law torts; and (5) the intentional infliction of
emotional distress claims have been insufficiently pleaded. (ECF No. 49-1).
“In this case, we adhere to ‘the better approach to resolving cases in which the defense of
qualified immunity is raised,’ that is, we ‘determine first whether the plaintiff has alleged a
deprivation of a constitutional right at all.” Armstrong v. Village of Pinehurst, 810 F.3d 892, 898
(2016) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Generally, to state a valid claim
for relief under § 1983, the plaintiff must demonstrate: (1) the defendants acted under color of state
law, and (2) the plaintiff was thereby deprived of a constitutionally or federally protected right.
See Gomez v. Toledo, 446 U.S. 635, 640 (1980).

Because the parties do not dispute that the Defendant Deputies acted under color of state
law, we will turn to the second inquiry—whether Plaintiff was deprived of a constitutionally or
federally protected right.
1. Unlawful Seizure9
As described by the Fourth Circuit, our initial inquiry is this: “[t]aken in the light most
favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated
a constitutional right?” Armstrong, 810 F.3d at 989 (quoting Brosseau v. Haugen, 543 U.S. 194,

9 Plaintiff also generally asserts unlawful searches during the arrest process, but does not articulate them with
enough particularity to be considered separate from the seizure or whether they are allegedly objectionable simply
because they were incident to the seizure of his person.
197 (2004)). In this case, regarding the unlawful seizure allegations, the answer is no. Even taking
Plaintiff’s allegations as true (where not specifically supplemented or contradicted by the body
camera footage), the conduct of the Deputy Defendants in approaching, questioning and taking
Plaintiff into custody was justified.10
The Fourth Amendment to the United States Constitution provides “[t]he right of the

people to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures . . . .” U.S. CONST. AMEND IV. The Fourth Amendment is violated when a warrantless
arrest is made without probable cause. Beck v. Ohio, 379 U.S. 89, 91 (1964). The Fourth Circuit
has identified “three categories of police-citizen interactions subject to Fourth Amendment
analysis: (1) an arrest, which requires probable cause; (2) a brief investigatory stop, which requires
reasonable suspicion; and (3) brief encounters, which do not implicate the Fourth Amendment.”
Jones v. Jordan, 2017 WL 4122795, at *4 (D. Md. Sept. 18, 2017).
Reasonable suspicion to justify a brief investigatory stop requires only that the “totality of
the circumstances” demonstrate that criminal activity may be afoot. Jones, 2017 WL 4122975, at

*6. See also United States v. Foster, 824 F.3d 84, 88–89 (4th Cir. 2016) (“While a mere hunch is
insufficient, reasonable suspicion is less demanding than probable cause and may well fall
considerably short of satisfying a preponderance of the evidence standard.”). By comparison,
“[p]robable cause to justify an arrest means facts and circumstances within the officer’s knowledge
that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed an offense.” Humbert v. Mayor of Balt., 866
F.3d 546, 555 (4th Cir. 2017). The probable-cause inquiry turns on two factors: “the suspect’s

10 The Complaint is unclear as to whether Plaintiff also claims a separate “seizure” (as opposed to “excessive force”)
violation inside the hospital. To the extent that it does, these claims are also not sustainable given that the parties do
not attack the necessity of Plaintiff’s medical evaluation after the first incident of tasing.
conduct as known to the officer, and the contours of the offense thought to be committed by that
conduct.” Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017) (citing Graham v. Gagnon, 831
F.3d 176, 184 (4th Cir. 2016)).
Applying these two standards to the conduct at issue, Plaintiff came to the attention of the
Defendant Deputies within the course of a directed enforcement operation focused on individuals

potentially pawning stolen goods to obtain money for drugs. (ECF No. 49-1 at p. 12). Plaintiff
was seen leaving the pawn shop, and then was further observed in his vehicle in the back portion
of a parking lot bent over his steering wheel in a manner that Defendant Deputy Alton has indicated
by affidavit was consistent with individuals he previously observed using illegal drugs. (ECF No.
49-2 at p. 5). Based on this articulable suspicion, Defendant Deputy Alton radioed Defendant
Deputy Kimberley to approach the vehicle for a welfare check. (ECF No. 49-3 at p. 2). Even
when viewed in the light most favorable to the Plaintiff, and accepting Plaintiff’s account that he
was bending forward to urinate, at the time of Defendant Deputy Kimberley’s approach, she had
sufficient reasonable suspicion through the information conveyed by Defendant Deputy Alton to
conduct an initial inquiry and ask Plaintiff for his identification. 11 This remains true even though,

Defendant Deputy Kimberley’s stated reason for approaching Plaintiff and asking him for
identification was, in fact, a ruse to protect the integrity of the covert pawn shop surveillance
project. 12 (ECF No. 49-3 at p. 2).
When Plaintiff failed to comply with the request and instead rolled up his window, locked
his door and began putting obstructions on the windshield and windows, Defendant Deputy

11 Wilkes v. State, 364 Md. 554, 578 (2001) (“Conducting checks of driver’s licenses, vehicle registration, and possible
warrants is reasonable.”).

12 Brown v. State, 387 Md. 355, 362 (2003) (“The Supreme Court has long and consistently held that deception is a
proper tool in crime detection, and that its use to obtain entry into Fourth Amendment-protected areas for the purpose
of observation does not necessarily contravene any Fourth Amendment rights.”).
Kimberley had sufficient reason to ask him to exit the vehicle. Plaintiff failed to comply with both
Defendant Deputy Kimberley’s and then Defendant Deputy Ward’s multiple orders to open the
window, show his hands, and exit the vehicle. Further, when Plaintiff did exit the vehicle, he did
so only partially, reaching back towards his vehicle’s console, culminating in a struggle with the
Defendant Deputies. This behavior against the backdrop of the offense thought to be committed—

the possession and use of a controlled substance—supports probable cause to charge Plaintiff with
obstructing and hindering the investigation and resisting arrest, thus rendering his arrest lawful.
Further, after actively refusing to be taken from the hospital and then kicking Defendant Deputy
Shank, there was sufficient to support the additional charges incurred. The Court therefore
concludes that Plaintiff cannot establish any constitutional or statutory right regarding his seizure
and detention that was violated by his being taken into custody and processed accordingly.
Moreover, given the Court’s finding of probable cause, justifying his arrest and both sets of
charges, Plaintiff cannot sustain his claims of false arrest, false imprisonment or malicious
prosecution. Ross v. Early, 899 F. Supp. 2d 415, 429 (D. Md. 2012), aff’d, 746 F.3d 546 (4th Cir.

2014) (reiterating no cause of action exists for false arrest unless probable cause is lacking); Evans
v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (noting burden of proof in a malicious prosecution
claim includes that prosecution is unsupported by probable cause).
Given the Court’s findings above, the Court will therefore GRANT judgment as a matter
of law in favor of the Deputy Defendants as to all counts based on an unlawful stop, seizure, arrest,
detention or prosecution as premised on the Fourth Amendment or Fourteenth Amendments,13

13 Fundamentally, this Court must be “mindful of the Supreme Court’s injunction that the Due Process Clause is not
the proper lens through which to evaluate law enforcement’s pretrial missteps.” Safar v. Tingle, 859 F.3d 241, 245
(4th Cir. 2017). This is because the Fourth Amendment “provides an explicit textual source of constitutional
protection against [unreasonable seizures and arrests],” Graham, 490 U.S. at 395 (1989), and “define[s] the ‘process
that is due’ for seizures of persons or property in criminal cases.” Id. (quoting Gerstein v. Pugh, 420 U.S. 103, 125
n. 27 (1975)).
Article 24 of the Maryland Declaration of Rights14 or the state law torts of false arrest, false
imprisonment and malicious prosecution as might be alleged in Counts I, II, III, IV, VII, VIII, IX,
X, XII, XIII, XIV, XV,XVI, XVII, XVIII, XIX, XXI, and XXII.
2. Excessive Force– Objective Reasonableness

Having found that Plaintiff cannot sustain his claims against the Defendant Deputies based
on his stop, seizure, arrest or prosecution, the Court will next consider Plaintiff’s claims of
excessive force based on Plaintiff’s physical exchanges with the Defendant Deputies, including
being subject to a taser on three occasions (once in the parking lot and twice at the hospital).
Claims of this nature are “properly analyzed under the Fourth Amendment’s ‘objective
reasonableness’ standard.” Armstrong, 810 F.3d at 899 (quoting Graham v. Connor, 490 U.S.
386, 388 (2007)). The Court of Appeals for the Fourth Circuit “has counseled that the test ‘requires
a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.’” Id. (quoting Smith v. Ray,

781 F.3d 95, 101 (4th Cir. 2015)). Specifically, three considerations guide the Court’s balancing:
(1) “the severity of the crime at issue”; (2) the extent to which “the suspect poses an immediate
threat to the safety of the officers or others”; and (3) “whether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight.” Id.
Viewed in the light most favorable to the Plaintiff, notwithstanding the body camera
evidence, the Court cannot conclude as a matter of law that the complained of use of force was
objectively reasonable based on the record before it. This is particularly true in this context,

14 Article 24 of the Maryland Declaration of Rights is the state law equivalent of the Fourteenth Amendment of the
United States. Rosa v. Bd. of Educ., 2012 WL 3715331, at *6 (D. Md. Aug. 27, 2012). Because Article 24 protects
the same rights as the Fourteenth Amendment, the analysis is, for all intents and purposes “duplicative of the
analysis under the Fourteenth Amendment.” Id.
whereby a taser was used when officers faced a resisting detainee, which, in the Court’s view,
requires an even more exacting balancing. With regard to tasers, our Circuit has stated:
Our precedent, then, leads to the conclusion that a police officer may only use serious
injurious force, like a taser, when an objectively reasonable officer would conclude that the
circumstances present a risk of immediate danger that could be mitigated by the use of
force. At bottom, “physical resistance” is not synonymous with “risk of immediate
danger.”

Armstrong, 810 F.3d at 905.

For example, even if Plaintiff refused to release his arms for handcuffing, a fact-finder may
not view this behavior as sufficient to justify the officer’s force. Id. at 904 (“Such a refusal,
therefore, does not justify deploying a taser when the subject ‘[i]s unarmed and there [i]s little risk
[he] could access a weapon,’ according to the Seventh Circuit.”) (quoting Cyrus v. Town of
Mukwonago, 624 F.3d 846, 863 (7th Cir. 2010). Therefore, in this case, the Defendant Deputy’s
use of force would only be deemed proportional if Plaintiff’s resistance raised a risk of immediate
danger that outweighed the Graham factors, as discussed above. This type of balancing is for the
fact-finder to consider, rather than the Court, at the pre-discovery stage as a dispositive motion.
To be clear, in denying the Defendant Deputies’ dispositive motion regarding excessive
force at this time, the Court is expressing no view as to whether Plaintiff will ultimately meet his
burden. A reasonable fact-finder on a fully developed record might well conclude that the use of
force was objectively reasonable when analyzing all the circumstances of this case. Additionally,
the Defendant Deputies are free to re-visit this issue by way of dispositive motion when the record
is more fully developed at the conclusion of discovery.
Qualified Immunity
Qualified immunity intends to “balance two important interests — the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability, when they perform their duties reasonably.” Hupp v. Cook,
931 F.3d 307, 310 (4th Cir. 2019). Qualified immunity protects government officials from suit for
damages when their conduct does not violate a “clearly established constitutional right.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). The Fourth Circuit engages in a two-fold analyses to
determine if the Defendants are entitled to qualified immunity. First, the Court must determine

whether the facts, when viewed in the light most favorable to the non-moving party, show that
Defendants violated Plaintiff’s constitutional or other rights, and, second whether those rights were
clearly established at time of the conduct such that a reasonable officer would have known that
such conduct was unconstitutional. Hupp, 391 F.3d at 310. The question of whether a right is
clearly established is a question of law for the Court to decide. Id. at 318. However, the question
of whether a reasonable officer would have known that the conduct at issue was unconstitutional
cannot be decided on summary judgment if disputes of the historical facts exist. Id. Having found
summary disposition is appropriate for Plaintiff’s “seizure” claims, the Court need not reach the
question of qualified immunity with regard to such claims. By contrast, having found that

summary disposition is inappropriate for Plaintiff’s excessive force claims, it is for a fact-finder to
decide whether constitutional violation(s) took place based on such claims. The Court’s next
inquiry turns to whether, even if a violation took place, the right was “clearly established” at the
time of Plaintiff’s injury. Given that Armstrong’s balancing, which specifically included the use
of tasers on individuals resisting being taken into custody, was established law in our Circuit as of
January 2016 (thus predating the events in this case by approximately two years) the Court finds
that this right was clearly established at the time of Plaintiff’s encounter. The record before the
Court is insufficient, at present, to reach a finding as to whether a reasonable officer in the
Defendant Deputies’ position would be aware of such right.
Statutory Public Official Immunity

The Deputy Defendants assert that they are entitled to Statutory Public Official Immunity
for all state common law torts and violations of the Maryland Declaration of Rights pursuant to
Maryland Courts and Judicial Proceedings Article § 5–522(b). (ECF No. 49-1 at p. 27). This
Court agrees. Under the Maryland Tort Claims Act, and 5–22(b), state officials are immune from
liability in tort for an act or omission that is within the scope of their public duties and is made
without malice or gross negligence. Specifically, the MTCA includes “a sheriff or deputy sheriff
of a county” as state personnel falling within the ambit of the statute. MD. CODE, STATE GOV’T §
12–101(a)(6).15
Whether a complainant has sufficiently alleged malice to defeat the defense of Statutory
Public Official Immunity is a question of law. Shoemaker v. Smith, 353 Md. 143, 167 (1999). In
order for Plaintiff to defeat the motion based on governmental immunity, he must point to facts
sufficient to raise an inference of malice, and these allegations must allege with “some clarity and
precision those facts which make the act malicious.” Thacker v. City of Hyattsville, 135 Md. App.
268, 301 (2000). There are no allegations of gross negligence anywhere in the Amended
Complaint. As for malice, despite sprinkling the word “malice” throughout the Complaint,
Plaintiff’s factual allegations do not support a finding of malice. For purposes of 5-222(b), malice
means “actual malice” which is characterized by evil or wrongful motive, intent to injure, knowing

and deliberate wrongdoing, ill will, or fraud. Estate of Saylor v. Regal Cinemas, Inc., 54 F. Supp.
3d 409, 422 (D. Md. 2014). Plaintiff’s Amended Complaint is void of the clarity and precision
required under Maryland law, nor is the Court permitted to infer malice simply from the

15 Jones, 2015 WL 4509871, at *10 (holding the Baltimore Police Department “enjoys sovereign immunity from
actions for damages based on state common law torts or state constitutional torts,” warranting the claims based on
state law be dismissed, on the grounds of sovereign immunity).
commission of a particular act (such as, in this case, a struggle or tasing during arrest). See
Chinwuba v. Larsen, 149 Md. App. 327, 382–83 (2002). Consequently, the Court agrees with the
Defendant Deputies that they are immune from liability for state common law torts and state
constitutional torts, making dismissal of such claims within Counts II, III, IV, V, VI, VIII, IX, X,
XI, XIV, XV, XVIII, XIX, XX, and XXI appropriate.

IV. Koontz v. Board of Commissioners of Washington County
On June 28, 2019, the Commissioners filed a Motion to Dismiss, or, in the Alternative to
Bifurcate. (ECF No. 48). On July 12, 2019, Plaintiff filed an answer stating that it “did not oppose
the complaint against the Defendant Board of County Commissioners of Washington County being
dismissed without prejudice.” (ECF No. 57). Of particular import, to the extent that Plaintiffs

seeks to sue the Washington County Commissioners by asserting state law claims against the
individual Deputy Defendants, those claims are barred by the doctrine of sovereign immunity. See
Balt. Police Dep’t v. Cherkes, 140 Md. App. 282, 313 (2001). Consequently, the Court shall
GRANT the Board of Commissioners of Washington County’s Motion to Dismiss as to Counts
XXVI–XXVIII without prejudice.16 The Court correspondingly DENIES the Commissioners’
Motion to Bifurcate as moot.

V. Koontz v. State of Maryland
The Plaintiff’s First Amended Complaint contains three Counts against the against State of
Maryland—XXIII –XXV. (ECF No. 67). The State filed a Motion to Dismiss on July 3, 2019.
Plaintiff filed a response on July 17, 2019, in which he “submit[ted]” on the Motion to Dismiss

16 Note that in order to assert a valid claim against the Commissioners, it would have to be one that did not run afoul
of Cherkes and would otherwise have to be one for which Plaintiff had a good faith basis to assert, as consistent with
his obligations under Rule 11 of the Federal Rules of Civil Procedure.
and Memorandum of Support filed by the State of Maryland.” (ECF No. 60). Accordingly, this
Motion to Dismiss is uncontested. Nonetheless, the Court will exercise its judgment before
granting the State’s motion. See Radfar v. Rockville Auto Grp., 2018 WL 2972458, at *2 (D. Md.
June 12, 2018).
As addressed above, Plaintiff brings nearly identical claims against the State, alleging that

the State (itself) is liable for failing to train the Defendant Deputies, and that the State is responsible
for establishing a policy or practice wherein the Sheriff’s Department established a policy, practice,
and pattern of excessive force. (ECF No. 67 at p. 61). The State argued, inter alia, that it retains
its Eleventh Amendment Immunity from suit.
Plaintiff offers no explanation as to why this Court should, or could, subject the State of
Maryland to suit in federal court, in the face of unambiguous precedent prohibiting such. As
recognized by this Court, the Supreme Court plainly held that Section 1983 provides a federal
forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for
litigants who seek a remedy against a State for alleged deprivations of civil liberties. Three Lower

Ctys. Cmty. Health Servs., Inc. v. Maryland Dep’t of Health, 2011 WL 3740781, at *3–4 (D. Md.
Aug. 23, 2011), aff’d, 490 F. App’x 601 (4th Cir. 2012). Further, 42 U.S.C. § 1983 only authorizes
suits against persons. The Supreme Court made it abundantly clear in Will v. Michigan
Department of Police that neither a State nor its officials acting in their official capacities are
“persons” who are subject to suit for money damages under Section 1983. 491 U.S. 58, 71 (1989).
Further, this Court has consistently, and recently, reiterated that claims such as these are “not
cognizable against states, state agencies, or state agents acting in their official capacities.” Brown
v. Dep’t of Pub. Safety, 383 F. Supp. 3d 519, 538–39 (D. Md. 2019) (citing Graham v. Cox, 2019
WL 1427860, at *10 (D. Md. March 29, 2019)). This sovereign immunity shields the State from
actions seeking damages for State constitutional violations. See Jones, 2015 WL 4509871, at *9
–10. Accordingly, State of Maryland’s Motion to Dismiss as to Counts XXIII–XXV, is
GRANTED.

VI. CONCLUSION
For the foregoing reasons:
1. The Defendant Deputies’ Motion to Dismiss is GRANTED in part and DENIED in Part;
2. The Washington County Commissioner’s Motion to Dismiss is GRANTED and its
Motion to Bifurcate is DENIED as moot; and
3. The State of Maryland’s Motion to Dismiss is GRANTED.
A separate order will follow.

Date: September 17, 2019 /s/
J. Mark Coulson
United States MagistrateMagistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10202512. Public record. Not legal advice.