Middleton v. Koushall

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

HENRIETTA MIDDLETON,

Plaintiff,

v.

Civil Action No. ELH-20-3536

BALTIMORE CITY POLICE DEPARTMENT,

et al.

Defendants.

MEMORANDUM OPINION

In this civil rights action, plaintiff Henrietta Middleton, an African American police officer

with the Baltimore City Police Department (the “BPD” or the “Department”), alleges, inter alia,

that in August 2018, while she was off duty, she was “assaulted, battered, and abused” by a fellow

BPD Officer, Sergeant Marlon Koushall. ECF 28 (Amended Complaint), ⁋ 2. Further, she claims

that she was arrested and detained on false charges. Id. ⁋⁋ 4, 15. According to plaintiff, Koushall

was “acting within the scope of his employment” at the time of the incident, and he was “motivated

by racial and gender animus . . . .” Id. ⁋⁋ 4, 19; see also id. ⁋ 13.1

As a result of the events in issue, Middleton has sued the Baltimore City Police Department

(“BPD” or “Department”); the Mayor & City Council of Baltimore (the “City” or “MCC”); Gary

Tuggle, the former interim Police Commissioner for Baltimore City, in his individual and official

1 As discussed, infra, plaintiff asserts that Koushall was subsequently convicted in the

Circuit Court for Baltimore City of second degree assault and misconduct in office. ECF 28, ⁋ 25.

Pursuant to Fed. R. Evid. 201, I may take judicial notice of matters of public record,

including docket entries, pleadings, and papers in other cases. See Schultz v. Braga, 290 F. Supp.

2d 637, 651 n. 8 (D. Md. 2003) (taking judicial notice of dockets in state court proceeding).

Judicial records reflect that Koushall noted an appeal, and his convictions were affirmed by the

Maryland Court of Special Appeals. See Koushall v. State, 249 Md. App. 717, 246 A.3d 764

(2021), cert. granted, 474 Md. 718, 255 A.3d 1090 (2021).

capacity; Koushall, in his individual and official capacity; and BPD Lieutenant Jason Yerg,

individually and in his official capacity. I shall sometimes refer to Koushall and Lieutenant Yerg

collectively as the “Officer Defendants,” and I shall refer to BPD, the City, and Tuggle collectively

as the “City Defendants.”

The Amended Complaint (ECF 28) contains ten counts. In particular, plaintiff lodges

claims of battery (Count I); false imprisonment (Count II); malicious prosecution and abuse of

process (Count III); violation of Articles 24 and 26 of the Maryland Declaration of Rights (Count

IV); intentional infliction of emotional distress (Count V); false arrest (Count VI); a § 1983 claim

for violation of plaintiff’s rights under the Fourth and Fourteenth Amendments to the Constitution

(Count VII); false light invasion of privacy (Count VIII); civil conspiracy (Count IX); and a

conspiracy claim under 42 U.S.C. § 1985(3) (Count X).2

It is not entirely clear which counts are lodged as to which defendants. For example, Count

I makes no mention of a particular defendant, and refers instead to “Defendant Officer.” See id.

⁋⁋ 28, 30. However, each count includes an ad damnum clause in which Middleton asks for

compensatory and punitive damages from all defendants. See, e.g., id. at 9, 10.3

2 Jurisdiction is founded on 28 U.S.C. § 1331, based on plaintiff’s claims arising under 42

U.S.C. §§ 1983 and 1985(3). ECF 28, ⁋ 9. And, the Court has supplemental jurisdiction with

respect to plaintiff’s State law causes of action, pursuant to 28 U.S.C. § 1367.

3 The Amended Complaint was filed on May 10, 2021, twenty-one days after the Officer

Defendants moved to dismiss (ECF 26) the initial Complaint (ECF 1), but more than two months

after the City Defendants had moved to dismiss (ECF 19). Surprisingly, plaintiff did not move for

leave to amend.

Under Fed. R. Civ. P. 15(a), a plaintiff may amend a pleading once, as a matter of course,

within 21 days after service of a responsive pleading or a Rule 12(b) motion. As best as I can

determine, in a multi-defendant case, the 21-day window begins upon the filing of the first Rule

12(b) motion, not the last. See United States ex rel. Carter v. Halliburton Co., 144 F. Supp. 3d

869, 878 (E.D. Va. 2015) (“[T]he twenty-day one period to amend as a matter of course begins on

The City Defendants have moved to dismiss the Amended Complaint under Fed. R. Civ.

P. 12(b)(6) (ECF 29), supported by a memorandum of law. ECF 29-1 (collectively, the “City

Motion”). The Officer Defendants have filed a partial motion to dismiss (ECF 31), pursuant to

Rule 12(b)(6), along with a memorandum of law. ECF 31-1 (collectively, the “Officer Motion”).

Yerg seeks dismissal of Counts I, II, IV, and VI. The Officer Defendants also seek dismissal of

Counts V, VIII, IX, and X. And, they seek dismissal of Count IV and Count VII to the extent that

these counts concern a claim for denial of medical care. As to Count VII, the Officer Defendants

also seek dismissal to the extent the claim is lodged against them in their official capacity.

Middleton opposes the City Motion (ECF 35), accompanied by a memorandum of law.

See ECF 35-1 (collectively, the “Opposition/City”). Plaintiff also opposes the Officer Motion

the date of the earliest defense action.”); LM Insur. Corp. v. L&K Coffee LLC, 1:20-cv-806, 2021

WL 4704836, at **1-2 (W.D. Mich. Apr. 28, 2021) (finding the same); Kieffer v. Tundra Storage,

LLC, 2015 WL 5009012, at *3 (D. Minn. Aug. 21, 2015) (explaining that the 21-day window does

not “reset when subsequent pleadings and motions [are] filed”); Williams v. Black Entm’t

Television, Inc., 13-CV-1459(JS)(WDW), 2014 WL 585419, at **3-4 (E.D.N.Y. Feb. 14, 2014)

(finding that “[f]ollowing the 2009 amendments to Rule 15, it is apparent that the ‘Rule 15(a)(1)(B)

. . . period runs from the earlier action by defendants . . . .’”) (emphasis and alterations in Williams)

(quoting Brown v. W. Valley Envtl. Servs., LLC, No. 10-CV-0210, 2010 WL 3369604, at *9

(W.D.N.Y. Aug. 24, 2010)).

In my view, plaintiff should have filed a motion for leave to amend. Had one been filed,

however, I would have granted it. The court has “broad discretion

concerning motions to amend pleadings.” Booth v. Maryland, 337 F. App'x 301, 312 (4th Cir.

2009) (per curiam); see also Foman v. Davis, 371 U.S. 178, 182 (1962); Labor v. Harvey, 438

F.3d 404, 426-29 (4th Cir. 2006) (en banc). A court may deny leave to amend in three

circumstances “‘when the amendment would be prejudicial to the opposing party, the moving party

has acted in bad faith, or the amendment would be futile.’” Davison v. Randall, 912 F.3d 666, 690

(4th Cir. 2019) (quoting Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir.

2010)); see Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 121 (4th Cir. 2013); Johnson v.

Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986). These criteria do not apply here.

Thus, I shall consider the Amended Complaint (ECF 28) as the operative pleading.

Accordingly, I shall address here the motions that challenge ECF 28, and I shall deny, as moot,

the earlier motions to dismiss (ECF 19, ECF 26).

(ECF 36), supported by a memorandum of law. ECF 36-1 (collectively, the “Opposition/Officer”).

And, defendants have replied. See ECF 39 (Officer Defendants); ECF 40 (City Defendants).

No hearing is necessary to resolve these motions. See Local Rule 105.6. For the reasons

that follow, I shall grant the City Motion (ECF 29). And, I shall grant the Officer Motion (ECF

31) in part and deny it in part.

I. Factual Background4

Middleton is “an African-American female” who is “a sworn member of the Baltimore

City Police Department . . . .” ECF 28, ⁋ 2. At the relevant time, Koushall and Yerg were also

officers with the BPD. Id. ⁋ 3. According to Middleton, Yerg was a supervisor and thus “exercised

final policy making authority for BCPD . . . .” Id. ⁋ 5. At the time, Tuggle served as the Interim

Commissioner of the BPD. Id. ⁋ 8.

The events underlying plaintiff’s claim began on the early morning of August 26, 2018.

Id. ⁋ 11. Ms. Middleton was a guest at a pre-wedding celebration in Baltimore held at “Norma

Jean’s Club” (the “Club”).5 Id. At about 1:20 a.m., Ms. Middleton and a group of her friends left

the Club. Id. Thereafter, “a member of Ms. Middleton’s group informed Ms. Middleton that she

had forgotten her personal belongings inside of the establishment.” Id. ⁋ 12.6 Plaintiff responded

4 Given the posture of the case, the Court assumes the truth of the allegations in the

Amended Complaint. See Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019). I note, however,

that in Koushall v. State, 249 Md. App. 717, 246 A.3d 764 (2021), the Maryland Court of Special

Appeals presented a summary of the underlying incident that differs in some respects from

plaintiff’s account.

5 Middleton usually refers to Norma Jean’s as the “establishment.” ECF 28, ⁋ 11.

According to the Maryland Court of Special Appeals, Norma Jean’s is a “strip club.” See Koushall,

269 Md. App. at 723, 246 A.3d at 768.

6 It is not entirely clear whether “she” referred to Ms. Middleton or the group member.

that “she would retrieve the member’s personal belongings and began to walk back to the front

door of the establishment.” ECF 28, ⁋ 12.

However, “[a]s soon as Ms. Middleton got to the entrance of the establishment, Defendant

Koushall told her to back up.” Id. ⁋ 13. Before she could do so, “Defendant Koushall suddenly,

without provocation and unexpectedly, struck her three (3) times in her face/head/ear.” Id.

Middleton “attempted to retreat,” but “Koushall continued to pursue her, threw her to the ground,

and then grabbed her by her hair and clothing.” Id. And, according to the Amended Complaint,

“Koushall’s physical attack did not cease until another officer grabbed Defendant Koushall and

stopped him from further assaulting and beating Middleton.” Id.

As a result of the assault, plaintiff “sustain[ed] injuries to her face, temple, and head, and

experienced severe pain and suffering, . . . physical injury, and substantial emotional distress.” Id.

⁋ 14. According to plaintiff, Koushall “has a history of physically assaulting other African

American women.” Id. ⁋ 13. And, she asserts that the assault at issue “was motivated by racial

and gender animus as [she] is an African American female.” Id.

Immediately following the assault, plaintiff “was arrested, handcuffed, and further publicly

humiliated when she was forced to walk up the public street from the site of the attack to the

Baltimore City Police Department’s Central District.” Id. ⁋ 15. Specifically, plaintiff contends

that the incident “was observed by no less than 50 people and was captured on CCTV, cell phone

footage, and body-worn camera.” Id. ⁋ 16.

Upon plaintiff’s arrival at “Central Headquarters,” plaintiff was “handcuffed to the wall,”

where she remained “for approximately ten consecutive (10) hours prior to being released . . . .”

ECF 28, ⁋ 16.7 During Middleton’s period of detention, “Defendant Koushall . . . continue[d] his

abuse” of Middleton by “remaining in her presence and not seeking medical attention for her

injuries that he caused.” Id. Further, plaintiff asserts that even after another BPD official,

Detective Dominique Wiggins, “told Koushall that Ms. Middleton needed medical attention,” he

“refused to provide it to her.” Id. By the time Middleton was released, “Koushall’s shift [had]

ended.” Id.

Prior to plaintiff’s release, she was “served with two criminal citations: (i) Failure to Obey

the lawful command of an officer designed to keep the peace and (ii) Disorderly Conduct . . . .”

ECF 28, ⁋ 16. Both citations were “hand-written by . . . Koushall.” Id. Further, plaintiff alleges

that “Koushall intentionally failed to timely file a use of force report pursuant to Baltimore City

Police Department General Orders.” Id. ⁋ 17.

Plaintiff sought medical care following her release. Id. ⁋ 18. According to the Amended

Complaint, Middleton “was treated for numerous injuries, including a concussion, post-traumatic

headaches, and injuries to her neck and back.” Id. Moreover, plaintiff “required physical therapy

and multiple doctor’s appointments for several months . . . .” Id.

Some unspecified time later, “Lietenant [sic] Yerg was placed on notice by the State’s

Attorney’s Office that they were no longer going to pursue Middleton’s charges and instead pursue

Sergeant Koushall for multiple charges . . . .” Id. ⁋ 19. According to plaintiff, “Yerg and Koushall

remained in constant communication via telephone and email” in order to “coordinate with each

other and concoct a way to keep Defendant Koushall free from criminal charges and/or

intradepartmental discipline . . . .” Id. Further, Middleton asserts that Yerg and Koushall sought

7 Plaintiff refers to “Central Headquarters” and “Central District” interchangeably. See id.

⁋⁋ 15, 16.

to “damage Middleton in her own criminal case and assure she would not be given an objective,

fair assessment within the department.” ECF 28, ⁋ 19. Again, plaintiff contends that the conduct

of Koushall and Yerg was “motivated by racial and gender animus based on Ms. Middleton being

an African American female.” Id.

On December 1, 2018, Koushall “drew up and filed additional charges against Middleton,”

including “Assault 2nd Degree and Resist/Interfere with Arrest.” Id. ⁋ 20. Plaintiff asserts that

“[t]hese new criminal charges were sworn out by Defendant Koushall with the advice and guidance

of Defendant Yerg,” who “was assigned to investigate Middleton’s allegations of wrongdoing by

Koushall . . . .” Id.

Moreover, Middleton alleges that the BPD “broadcast a public statement, wrongfully

asserting that Ms. Middleton was intoxicated and charged with being drunk and disorderly.” Id. ⁋

22. According to plaintiff, a BPD spokesperson, T.J. Smith, offered an “official statement to the

11 News I-Team that Middleton [had been] suspended.” Id. Moreover, Smith said, id.:

“‘When officers arrived, they observed the patron acting in a disorderly manner.

The female patron approached an officer and refused to comply. She was arrested

and charged on a criminal citation for drunk and disorderly conduct. She was

identified as Henrietta Middleton, a 12-year veteran of the Baltimore Police

Department, who is currently assigned to the Inspector General’s Office.’”

Thereafter, “numerous media outlets, print and television, aired stories about the attack on

Middleton casting her in a negative and disparaging light; including a report that she was drunk

and disorderly.” Id. ⁋ 23. Further, plaintiff’s “police powers [were] suspended as a result of this

incident from August 2018-September 2019 . . . .” Id. ⁋ 24. And, she was “removed from her

prior assignment as a Sergeant in the Special Investigation Response Team (SIRT),” and

“transferred to administration at the Northern District.” Id. Consequently, Middleton “suffer[ed]

from reduced wages because she was unable to work overtime while her police powers were

suspended . . . .” Id. And, Middleton indicates that “her career path trajectory was negatively

affected.” ECF 28, ⁋ 24.

Ultimately, “all four charges . . . were entered nolle prosequi against Ms. Middleton.” Id.

⁋ 20. However, plaintiff complains that in the interim she “was forced to spend substantial money

and hire private counsel to defend her against the criminal charges lodged by defendants Koushall

and Yerg.” Id. ⁋ 21.

Koushall “was subsequently charged with 2nd Degree Assault and Misconduct in Office for

his attack on Ms. Middleton.” Id. ⁋ 25. Following a bench trial in the Circuit Court for Baltimore

City, Koushall was convicted of both charges. See Koushall v. State, 249 Md. App. 717, 722, 246

A.3d 764, 767 (2021), cert. granted, 474 Md. 718, 255 A.3d 1090 (2021). And, the judge

“sentenced Mr. Koushall to three years’ imprisonment, all suspended except time served for the

assault charge, and six years’ imprisonment, all suspended except time served for the misconduct

charge.” Id. at 726, 246 A.3d at 769-770.8

Koushall subsequently noted an appeal to the Maryland Court of Special Appeals, asserting

that his convictions were not supported by sufficient evidence, and that the trial court erred by

failing to merge his convictions for purposes of sentencing. Id., 246 A.3d at 770. The Maryland

Court of Special Appeals rejected Koushall’s claims and affirmed the trial court. Id. at 738, 246

A.3d at 775. Thereafter, the Maryland Court of Appeals granted certiorari. See Koushall v. State,

474 Md. 718, 255 A.3d 1090 (2021). Oral argument was held on November 11, 2021, and the

court’s decision is pending. See Cases Pending Before the Court of Appeals, MARYLAND COURTS,

https://mdcourts.gov/coappeals/pendingcases (last visited Jan. 27, 2022).

8 Curiously, the Amended Complaint alleges that Koushall “was sentenced to a combined

sixteen (16) years’ incarceration; all active incarceration time suspended, followed by three (3)

years of supervised probation.” ECF 28, ⁋ 25.

II. Legal Principles

A. Fed. R. Civ. P. 12(b)(6)

A defendant may test the legal sufficiency of a complaint by filing a motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6). Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.

2006); see In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Services

Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir.

2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221 (2013); 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 a plaintiff are true, the complaint fails as a matter of law “to state

a claim upon which relief can be granted.” See Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420

(4th Cir. 2005) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); Ibarra v.

United States, 120 F.3d 472, 473 (4th Cir. 1997).

Whether a complaint states a claim for relief is assessed by reference to the pleading

requirements of Fed. R. Civ. P. 8(a)(2). See Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d

321, 325-26 (4th Cir. 2001); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). The

rule provides that a complaint must contain a “short and plain statement of the claim showing that

the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair

notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555-56 (2007).

To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state

a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556

U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly expounded the pleading

standard for ‘all civil actions’. . . .”); see also Fauconier v. Clarke, 996 F.3d 265, 276 (4th Cir.

2020); Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir.

2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). To be sure, a plaintiff need not include

“detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.

Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect

statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574

U.S. 10, 11 (2014) (per curiam). But, mere “‘naked assertions’ of wrongdoing” are generally

insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.

2009) (citation omitted).

In other words, the rule demands more than bald accusations or mere

speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,

350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. “[A]n

unadorned, the-defendant-unlawfully-harmed-me accusation” does not state a plausible claim of

relief. Iqbal, 556 U.S. at 678. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the

complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of

action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote

and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).

In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual

allegations contained in the complaint” and must “draw all reasonable inferences [from those facts]

in favor of the plaintiff.” E.I. du Pont de Nemours & Co., 637 F.3d 435, 440 (4th Cir.

2011) (citations omitted); see Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir.

2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.

Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is

not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S.

265, 286 (1986); Glassman v. Arlington Cnty., 628 F.3d 140, 146 (4th Cir. 2010). “A court decides

whether [the pleading] standard is met by separating the legal conclusions from the factual

allegations, assuming the truth of only the factual allegations, and then determining whether those

allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy

sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert.

denied, 566 U.S. 937 (2012).

Courts ordinarily do not “‘resolve contests surrounding the facts, the merits of a claim, or

the applicability of defenses’” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at

243 (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, “in the

relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in

the complaint, the defense may be reached by a motion to dismiss filed under Rule

12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en

banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir.

2009). Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the

complaint,” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir.

1993), “[t]his principle only applies . . . if all facts necessary to the affirmative defense ‘clearly

appear[ ] on the face of the complaint.’” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250)

(emphasis in Goodman) (citation omitted).

“Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts

are limited to considering the sufficiency of allegations set forth in the complaint and the

‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int'l, Ltd.,

780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448).

Ordinarily, the court “may not consider any documents that are outside of the complaint, or not

expressly incorporated therein[.]” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th

Cir. 2013), abrogated on other grounds by Reed. v. Town of Gilbert, 576 U.S. 155

(2015); see Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007).

But, under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may

consider documents beyond the complaint without converting the motion to dismiss to one

for summary judgment. Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir.

2015). In particular, a court may properly consider documents that are “explicitly incorporated

into the complaint by reference and those attached to the complaint as exhibits.” Goines, 822 F.3d

at 166 (citation omitted); see also Six v. Generations Fed. Credit Union, 891 F.3d 508, 512 (4th

Cir. 2018); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); U.S. ex rel.

Oberg. v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014); Am.

Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543

U.S. 979 (2004); Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir. 1999).

However, “before treating the contents of an attached or incorporated document as true,

the district court should consider the nature of the document and why the plaintiff attached

it.” Goines, 822 F.3d at 167 (citing N. Ind. Gun & Outdoor Shows. Inc. v. City of S. Bend, 163

F.3d 449, 455 (7th Cir. 1998)); see USA Eng. Language Ctr. v. Accrediting Council for Continuing

Educ. & Training, Inc., ___ F. App'x ___, 2021 WL 3162671, at *2 (4th Cir. July 27, 2021). And,

“[w]hen the plaintiff attaches or incorporates a document upon which his claim is based, or when

the complaint otherwise shows that the plaintiff has adopted the contents of the document,

crediting the document over conflicting allegations in the complaint is proper.” Goines, 882 F.3d

at 167. In other words, the “general rule” is that “the exhibit prevails in the event of a conflict

between an attached exhibit and the allegations of a complaint.” Id. at 165. But, “in cases where

the plaintiff attaches or incorporates a document for purposes other than the truthfulness of the

document, it is inappropriate to treat the contents of that document as true.” Id. at 167.

A court may also “consider a document submitted by the movant that [is] not attached to

or expressly incorporated in a complaint, so long as the document was integral to the complaint

and there is no dispute about the document's authenticity.” Id. at 166 (citations omitted); see

also Fusaro, 930 F.3d at 248; Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir.

2017), cert. denied, __U.S.__, 138 S. Ct. 558 (2017); Kensington Volunteer Fire Dep't v.

Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To be “integral,” a document must be one

“that by its ‘very existence, and not the mere information it contains, gives rise to the legal rights

asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602,

611 (D. Md. 2011) (emphasis in original) (citation omitted); see also Fed. R. Civ. P. 10(c) (“A

copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all

purposes.”).

And, as mentioned, “a court may properly take judicial notice of ‘matters of public record’

and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative

facts.’” Goldfarb, 791 F.3d at 508; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.

308, 322 (2007); Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011), cert.

denied, 565 U.S. 825 (2011); Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

However, under Fed. R. Evid. 201, a court may take judicial notice of adjudicative facts only if

they are “not subject to reasonable dispute,” in that they are “(1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort

to sources whose accuracy cannot reasonably be questioned.”

Plaintiff submitted two exhibits with her initial opposition to the earlier motion to dismiss.

See ECF 20-3; ECF 20-4. The first reflects various provisions of the Public Local Laws, which

concern the establishment of Baltimore’s Civilian Review Board and its authority over the BPD.

ECF 20-3. The second exhibit includes a portion of Baltimore City’s “Preliminary Budget Plan”

for Fiscal Year 2021. ECF 20-4. Plaintiff references both exhibits in the Opposition/City. ECF

35-1 at 6. However, she failed to resubmit the exhibits with her Opposition/City. Nevertheless,

both exhibits are matters of public record.9 Therefore, I may consider them in resolving the

motions.

B. Sovereign Immunity

Both the City Motion and the Officer Motion turn, in part, on the defense of sovereign

immunity. See ECF 29-1 at 6-8; ECF 31-1 at 15. Sovereign immunity is “a weighty principle,

foundational to our constitutional system.” Cunningham v. Lester, 990 F.3d 361, 365 (4th Cir.

2021).

The Eleventh Amendment provides: “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or subjects of any Foreign State.”

The Supreme Court has explained: “Although by its terms the Amendment applies only to

suits against a State by citizens of another State, our cases have extended the Amendment’s

applicability to suit for damages by citizens against their own States.” Bd. of Trustees of Univ. of

Alabama v. Garrett, 531 U.S. 356, 363 (2001) (collecting cases); see, e.g., Virginia Office for Prot.

& Advocacy v. Stewart, 563 U.S. 247, 253 (2011); Lapides v. Bd. of Regents of Univ. Sys. of

9 The preliminary budget plain is available on the Internet. See Preliminary Budget Plan,

Fiscal 2021, DEP’T OF FINANCE, BUREAU OF THE BUDGET AND MGMT. RESEARCH,

https://bbmr.baltimorecity.gov/sites/default/files/fy21_prelim_web.pdf (last visited Jan. 2, 2022).

Georgia, 535 U.S. 613, 618 (2002); Kimmel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000).

Thus, “the ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not

be sued by private individuals in federal court.” Garrett, 531 U.S. at 363; see Passaro v. Virginia,

935 F.3d 243, 247 (4th Cir. 2019), cert. denied, __ U.S.__, 140 S. Ct. 903 (2020).

In Pense v. Md. Dep't of Public Safety and Correctional Services, 926 F.3d 97 (4th Cir.

2019), the Fourth Circuit said, id. at 100: “The Supreme Court ‘has drawn on principles of

sovereign immunity to construe the Amendment to establish that an unconsenting State is immune

from suits brought in federal courts by her own citizens as well as by citizens of another State.’”

(Quoting Port Auth. Trans–Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990)); see Lapides, 535

U.S. at 618 (“The Eleventh Amendment provides that the ‘Judicial power of the United States shall

not be construed to extend to any suit . . . commenced or prosecuted against one of the . . . States’

by citizens of another State, U.S. Const., Amdt. 11, and (as interpreted) by its own citizens.”)

(emphasis added; ellipses in Lapides); Lee-Thomas v. Prince George's Cty. Pub. Sch., 666 F.3d

244, 248 (4th Cir. 2012).

Accordingly, absent waiver by the State or a valid congressional abrogation of sovereign

immunity, the states enjoy immunity from suits for damages brought in federal court by their own

citizens, even though the text of the Eleventh Amendment does not explicitly address such a

scenario. See Hans v. Louisiana, 134 U.S. 1, 3 (1890); see also Coleman v. Court of Appeals of

Md., 566 U.S. 30, 35 (2012) (“A foundational premise of the federal system is that States, as

sovereigns, are immune from suits for damages, save as they elect to waive that

defense.”); Garrett, 531 U.S. at 363 (“The ultimate guarantee of the Eleventh Amendment is that

nonconsenting states may not be sued by private individuals in federal court.”); Seminole Tribe of

Fla. v. Florida, 517 U.S. 44, 54-55 (1996) (“For over a century we have reaffirmed that federal

jurisdiction over suits against unconsenting States was not contemplated by the Constitution when

establishing the judicial power of the United States.”) (internal quotation marks and citation

omitted).

Notably, the Supreme Court has construed the Eleventh Amendment to embody the broader

principles of state sovereign immunity. The preeminent purpose of state sovereign immunity is

“to accord states the dignity that is consistent with their status as sovereign entities . . . .” Fed.

Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002); see Garrett, 531 U.S. at 363.

The doctrine of state sovereign immunity from private suit predates the enactment of the Eleventh

Amendment, and is “a broader doctrine . . . .” See Williams v. Morgan State Univ., 850 F. App’x

172, 174 (4th Cir. 2021) (per curiam) (citing Alden v. Maine, 527 U.S. at 724 (1999); Hans, 134

U.S. at 3).10

Of import here, sovereign immunity bars suit not only against a state, but also against an

instrumentality of a state, such as a state agency, sometimes referred to as an “arm of the state.”

See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984) (“It is clear, of

course, that in the absence of consent a suit in which the State or one of its agencies or departments

is named as the defendant is proscribed by the Eleventh Amendment.”); see also Regents of Univ.

of Cal. v. Doe, 519 U.S. 425, 429 (1997); Pense, 926 F.3d at 100; McCray v. Md. Transit Admin.,

741 F.3d 480, 483 (4th Cir. 2014); Bland v. Roberts, 730 F.3d 368, 389 (4th Cir.

2013); Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 479 (4th Cir.

2005). Put another way, sovereign immunity applies when “‘the governmental entity is so

connected to the State that the legal action against the entity would . . . amount to the indignity of

10 In Williams, 850 F. App’x at 174, the Fourth Circuit described the text of the Eleventh

Amendment as a “rather narrow and precise provision . . . .” Id.

subjecting a State to the coercive process of judicial tribunals at the instance of private parties.’”

Lane v. Anderson, 660 F. App’x 185, 195-96 (4th Cir. 2016) (quoting Cash v. Granville Cty. Bd.

of Educ., 242 F.3d 219, 224 (4th Cir. 2001)) (cleaned up).

Moreover, “a suit against a state official in his or her official capacity is not a suit against

the official but rather is a suit against the official's office. As such, it is no different from a suit

against the State itself.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (internal

citation omitted); see Kentucky v. Graham, 473 U.S. 159, 166 (1985). In contrast, sovereign

immunity “does not immunize political subdivisions of the state, such as municipalities and

counties, even though such entities might exercise a ‘slice of state power.’” Ram Ditta by and

through Ram Ditta v. Md. Nat. Capital Park & Planning Comm’n, 822 F.2d 456, 457 (4th Cir.

1987) (quoting Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401

(1979)).

The Fourth Circuit has made clear that the defense of sovereign immunity is a jurisdictional

bar, explaining that “‘sovereign immunity deprives federal courts of jurisdiction to hear claims,

and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack

of subject-matter jurisdiction.’” Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640,

649 (4th Cir. 2018) (citation omitted), cert. denied, ___U.S. ___, 139 S. Ct. 417 (2018). However,

“the burden of proof falls to an entity seeking immunity as an arm of the state, even though a

plaintiff generally bears the burden to prove subject matter jurisdiction.” Williams v. Big Picture

Loans, LLC, 929 F.3d 170, 176 (4th Cir. 2019) (citing Hutto v. S.C. Ret. Sys., 773 F.3d 536, 543

(4th Cir. 2014)); see DiCocco v. Garland, 18 F.4th 406, 414 (4th Cir. 2021).

The Fourth Circuit has identified three exceptions to the Eleventh Amendment's

prohibition of suits against a state or an arm of the state. In Lee-Thomas, 666 F.3d 244, the Court

said, id. at 249 (internal quotations omitted):

First, Congress may abrogate the States' Eleventh Amendment immunity when it

both unequivocally intends to do so and acts pursuant to a valid grant of

constitutional authority. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356,

363 (2001) . . . . Second, the Eleventh Amendment permits suits for prospective

injunctive relief against state officials acting in violation of federal law. Frew ex

rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) . . . . Third, a State remains free to

waive its Eleventh Amendment immunity from suit in a federal court. Lapides v.

Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002).

Pertinent here, sovereign immunity has not been congressionally abrogated for claims

under § 1983. In Quern v. Jordan, 440 U.S. 332, 345 (1979), the Supreme Court concluded

that § 1983 suits by individuals against a state for money damages are barred by the Eleventh

Amendment. It said: “[Section] 1983 does not explicitly and by clear language indicate on its face

an intent to sweep away the immunity of the States[.]”

Without question, a state may waive its sovereign immunity and permit suit in federal

court. See Lapides, 535 U.S. at 618; see also Pense, 926 F.3d at 101; Lee-Thomas, 666 F.3d at

249. But, the test to determine whether a state has waived its immunity from suit in federal court

is a “stringent” one. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240 (1985), superseded on

other grounds, as recognized in Lane v. Pena, 518 U.S. 187, 198 (1996); see Pense, 926 F.3d at

101. Under Atascadero, 473 U.S. at 254, a court may find that a state has waived its immunity

“only where stated by the most express language or by such overwhelming implication from the

text as will leave no room for any other reasonable construction.” (Internal quotation marks and

alteration omitted); accord Pense, 926 F.3d at 101; Lee-Thomas, 666 F.3d at 250-51.

C. Section 1983

The Amended Complaint is styled, in part, as an action brought under 42 U.S.C. § 1983.

ECF 28, ⁋⁋ 54-56. In particular, Count VII asserts a § 1983 claim for violation of plaintiff’s rights

under the Fourth and Fourteenth Amendments. Middleton contends, inter alia, that she was

subjected to an illegal search and seizure, an illegal arrest, illegal detention and prosecution, and

use of excessive force.

Under § 1983, a plaintiff may file suit against any person who, acting under color of state

law, “subjects, or causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws” of the United States. See, e.g., Filarsky v. Delia, 566 U.S. 377 (2012); see

also Owens v. Balt. City State's Attorney's Office, 767 F.3d 379 (4th Cir. 2014), cert. denied sub

nom. Balt. City Police Dep't v. Owens, 575 U.S. 983 (2015). However, § 1983 “‘is not itself a

source of substantive rights,’ but provides ‘a method for vindicating federal rights elsewhere

conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S.

137, 144 n.3 (1979)); see Safar v. Tingle, 859 F.3d 241, 245 (4th Cir. 2017).

In other words, § 1983 allows “a party who has been deprived of a federal right under the

color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687, 707 (1999). Notably, “[t]he first step in any such claim is to pinpoint the specific right

that has been infringed.” Safar, 859 F.3d at 245.

To state a claim under § 1983, a plaintiff must allege (1) that a right secured by the

Constitution or laws of the United States was violated, and (2) that the alleged violation was

committed by a “person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48

(1988); see Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019); Crosby v. City of Gastonia,

635 F.3d 634, 639 (4th Cir. 2011), cert. denied, 565 U.S. 823 (2011); Wahi v. Charleston Area

Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009); Jenkins v. Medford, 119 F.3d 1156, 1159-60

(4th Cir. 1997).

The phrase “under color of state law” is an element that “‘is synonymous with the more

familiar state-action requirement’ for Fourteenth Amendment claims, ‘and the analysis for each is

identical.’” Davison, 912 F.3d at 679 (quoting Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180

(4th Cir. 2009)); see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982). A person acts

under color of state law “only when exercising power ‘possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of state law.’” Polk County v.

Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States v. Classic, 313 U.S. 299, 326

(1941)); see also Philips, 572 F.3d at 181 (“[P]rivate activity will generally not be deemed state

action unless the state has so dominated such activity as to convert it to state action: Mere approval

of or acquiescence in the initiatives of a private party is insufficient.”) (citations and internal

quotation marks omitted).

Section 1983 also requires a showing of personal fault based upon a defendant’s personal

conduct. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (stating that for an individual

defendant to be held liable pursuant to 42 U.S.C. § 1983, the plaintiff must affirmatively show that

the official acted personally to deprive the plaintiff of his rights). In other words, there is no

respondeat superior liability under § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because

vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-

official defendant, through the official’s own individual actions, has violated the Constitution.”);

see also Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017); Love-Lane v. Martin, 355 F.3d 766,

782 (4th Cir. 2004); Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001).

Liability of supervisory officials under § 1983 “is premised on ‘a recognition that

supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative

factor in the constitutional injuries they inflict on those committed to their care.’” Baynard v.

Malone, 268 F.3d 228, 235 (4th Cir. 2001) (citing Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.

1984)). With respect to a supervisory liability claim in a § 1983 action, a plaintiff must allege:

(1) That the supervisor had actual or constructive knowledge that his subordinate

was engaged in conduct that posed a pervasive and unreasonable risk of

constitutional injury to . . . the plaintiff; (2) that the supervisor’s response to that

knowledge was so inadequate as to show deliberate indifference to or tacit

authorization of the alleged offensive practices; and (3) that there was an

affirmative causal link between the supervisor’s inaction and the particular

constitutional injury suffered by the plaintiff.

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted), cert. denied, 513 U.S. 813

(1994); see also Wilcox, 877 F.3d at 170.

III. Discussion

The City Defendants and the Officer Defendants are not represented by the same lawyers.

But, they sometimes advance similar arguments in their challenges to various counts. In other

instances, their grounds are distinct.

For convenience, I have organized the analysis by the groups of defendants. On occasion,

this gives rise to some repetition.

A. City Motion

The City Defendants, i.e., the MCC, Tuggle, and the Department, contend that they are not

proper defendants to this suit. They argue that the City “is not liable for the acts or omissions of

BPD or its officers as a matter of law,” because the BPD is a State agency. ECF 29-1 at 5. Further,

they assert that, to the extent Middleton’s various State law claims are lodged against the BPD and

Tuggle, in his official capacity, they are barred by sovereign immunity. Id. at 6-8. And, they

contend that the BPD and Tuggle cannot be liable for claims arising under 42 U.S.C. § 1983

because the Amended Complaint is devoid of any allegation that they “engaged in the alleged

tortious conduct,” and “there is no respondeat superior or vicarious liability in a § 1983 action.”

Id. at 8. According to the City Defendants, the conduct of Koushall and Yerg cannot be imputed

to them. Id.

In addition, the City Motion asserts that, to the extent plaintiff’s claim under § 1985(3)

applies to the City Defendants, it is not viable because plaintiff does not assert facts to show that

the City Defendants “formed or participated [in] any illegal agreement or conspiracy. . . .” Id. at

9. They note: “The allegations pleaded in the Amended Complaint to support Middleton’s

conspiracy claim under § 1985(3) never even mention MCC, BPD, or Tuggle.” Id. Further, the

City Defendants contend that Count X fails to state a claim because it is foreclosed by the

intracorporate conspiracy doctrine. Id. at 9-11.

And, the City Motion maintains that plaintiff’s State law claims must be dismissed against

Tuggle in his individual capacity. In this regard, the City Defendants contend that the Amended

Complaint fails to allege that Tuggle was involved in the conduct at issue. Id. at 11-12.

I shall address each argument, in turn, as to MCC, BPD, and Tuggle.

1. The City

The City contends that it cannot be liable for the alleged misconduct of the BPD or its

officers because it is well established that the BPD and its officers are not agents or employees of

the City. ECF 29-1 at 5, 6. Rather, the Department is a State agency, not a local one. Id.

Since 1867, the BPD has been regarded as a State agency under Maryland law. Mayor &

City Council of Balt. v. Clark, 404 Md. 13, 23, 944 A.2d 1122, 1128 (2008). In Clark, the

Maryland high court said, id. at 28, 944 A.2d at 1131: “[N]otwithstanding the Mayor’s role in

appointing and removing the City's Police Commissioner, the Baltimore City Police Department

is a state agency.” See also Ashton v. Brown, 339 Md. 70, 104 n. 18, 660 A.2d 447, 464 n. 18

(1995) (stating that “the Baltimore City Police Department, for purposes of Maryland law, is a

state agency”); Clea v. Mayor & City Council of Balt., 312 Md. 662, 668, 541 A.2d 1303, 1306

(1988) (“Unlike other municipal or county police departments which are agencies of the

municipality or county . . . the Baltimore City Police Department is a state agency.”) (citations

omitted). To that end, PUB. LOCAL LAWS OF MD. (“PLL”), Art. 4, § 16-2(a) (2021) states: “The

Police Department of Baltimore City is hereby constituted and established as an agency and

instrumentality of the State of Maryland.”

Nevertheless, plaintiff points out: “The City purchases police uniforms, issues weapons

and equipment (also purchased and maintained by MCC staff and money); ride in the MCC owned,

insured and/or leased police vehicle[s]; occupy MCC owned police station buildings; communicate

on MCC owned and maintained two-way radios; receive MCC funded paychecks and pensions.

Their ability to operate is solely as a result of MCC’s power over them . . . .” ECF 35-1 at 6. She

also directs the Court’s attention to portions of Baltimore City’s budget plan for the fiscal year

2021, which reflects that the City expended substantial sums in support of the Department. Id.;

see ECF 20-4 at 4-5. Further, Middleton posits that “even when police misconduct lawsuits are

brought, such as this one, and either settled or won, it is the MCC that pays the settlements and/or

judgments on behalf of the citizens of Baltimore.” ECF 35-1 at 6.

In addition, plaintiff urges the Court to consider that the MCC staffs the BPD’s Civilian

Review Board, which “reviews complaints brought by civilians against Baltimore City Police

officers for abuses to the public, reviews policies of the BPD, and holds periodic meetings with

the Office of the City Solicitor and the Community Relations Commissions.” ECF 35-1 at 6; see

ECF 20-3. And, Middleton invokes the Maryland Court of Appeals’s decision in Mayor & City

Council of Balt. v. Silver, 263 Md. 439, 283 A.2d 788 (1971), to argue that MCC’s funding of and

authority over the BPD should render the City liable for the misconduct alleged in the Amended

Complaint. ECF 35-1 at 6-7.

However, it is well settled that the City does not “regulate or supervise the BPD.”

Nicholson v. Balt. Police Dep’t, DKC-20-3146, 2021 WL 1541667, at *10 (D. Md. Apr. 20, 2021).

Despite the fact that the Department’s operations are partially funded by the City, the BPD “is

constituted as an agency of the State.” Beca v. City of Baltimore, 279 Md. 177, 180-81, 367 A.2d

478, 480 (1977).

Notably, it is the State of Maryland, not the MCC, that is vested with the power to set rules

and regulations regarding BPD discipline. See PLL, Art. 4, § 16-7(7) (empowering the Police

Commissioner of Baltimore City “[t]o appoint, promote, reduce in rank, grade or position,

reassign, reclassify, retire and discharge all members of the Department in the manner prescribed

by law”); id., Art. 4, § 16-11 (providing for the procedures by which members of the Baltimore

City Police Department may be disciplined as well as specifying the sanctions that may be imposed

against them); see generally Md. Code (2018 Repl. Vol., 2021 Supp.), §§ 3-101 et seq. of the

Public Safety Article (“P.S.”) (outlining the “Law Enforcement Officers’ Bill of Rights,” which

governs disciplinary proceedings instituted against State law enforcement officers, including

officers of the Baltimore City Police Department); Baltimore City Charter, Art. II, § 27 (explicitly

prohibiting any “ordinance of the City or act of any municipal officer” from attempting to “conflict,

impede, obstruct, hinder or interfere with the powers of the Police Commissioner”).

Middleton’s reliance on the MCC’s funding of the BPD does not change the calculus. In

Silver, 263 Md. 439, 283 A.2d 788, the City had been sued by citizens and corporations seeking

to recover for damages to real and personal property resulting from the civil disorder that engulfed

the City following the assassination of Dr. Martin Luther King, Jr. Id. at 443-44, 283 A.2d at 790.

The City filed a petition for declaratory judgment against two plaintiffs, challenging the City’s

liability for damages. Id. at 444, 283 A.2d at 791. In support of its motion for summary judgment,

the City argued that the BPD was an agency of the State, and thus the City was not responsible for

the failures of the BPD in responding to the riot. Id. at 445, 283 A.2d at 791.

The Maryland Court of Appeals concluded that the City’s argument was without merit.

The Silver Court recognized that City funding alone “could not be construed as a method of indirect

control over the police department by the City . . . .” Id. at 451, 283 A.2d at 794. But, the court

indicated that it was for the trier of fact to determine whether the City breached its own duty,

independent of the BPD. The court explained, id. at 452-53, 283 A.2d at 795:

[A]lthough the City of Baltimore had no authority over the police department we

think that among the various courses of action that the Mayor might have taken,

and perhaps did take, was to have conferred with the police commissioner and made

requests for specific kinds of police action . . . . [T]he question as to whether such

action was taken, or whether other action was taken by the Mayor in his capacity

as a conservator of the peace, as well as the practical effect of such action, may well

be questions which should be determined by the trier of facts at a hearing on the

merits of the case . . . . [F]ailure to have control over a municipal police force does

not excuse a municipality from endeavoring to suppress or contain riots or

tumultuous actions by using other reasonable means available.

Thus, the circumstances in Silver differ dramatically from those presented by this case.

Here, Middleton does not allege that MCC failed to take action that would have prevented her

alleged injuries. Rather, she asks the Court to find the City liable solely on the ground that it

exercises sufficient control over the BPD to subject itself to liability based on the actions of

individual BPD officers. See ECF 35-1 at 5-7. See also Chae Brothers, LLC v. Mayor & City

Council of Balt., SAG-17-1657, 2021 WL 3784865, at *7 (D. Md. Aug. 26, 2021) (finding that

plaintiffs’ claims brought against the City under the Riot Act, P.S. §§ 14-1001 et seq., could

survive summary judgment where plaintiffs did “not attempt to hold the City liable for the BPD’s

actions,” but instead “attempt[ed] to hold the City liable for the City’s actions or inactions”)

(emphasis in Chae Brothers, LLC); Earl v. Taylor, CCB-20-1355, 2021 WL 4458930, at *3 (D.

Md. Sept. 29, 2021) (explaining that Silver does not support the proposition that the “City is

responsible for [the] BPD” merely because it “appropriated resources and provided equipment and

buildings for the Department”).

Under 42 U.S.C. § 1983, an individual may sue a person who violates her constitutional

rights while acting under the color of law. A plaintiff may sue a local government, like the City,

under 42 U.S.C. § 1983, but only if the alleged constitutional violation occurred while the

defendant was executing a local government policy or custom. Monell v. Dept. of Soc. Servs., 436

U.S. 658, 690-91 (1978). In other words, “[m]unicipal liability” under § 1983 “is limited to action

for which the municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469,

479 (1986). And, for a § 1983 claim against policymakers, the court must look to state law to

determine which officials are legally responsible. St. Louis v. Praprotnik, 485 U.S. 112, 124

(1988) (“We begin by reiterating that the identification of policy making officials is a question of

state law”).

Plaintiff has not sued the City under Monell. And, “[p]ut simply, because the BPD is not

controlled, managed, or supervised by the City,” plaintiff cannot satisfy the criteria for a Monell

claim against the City under § 1983. Nicholson, 2021 WL 1541667, at *10; see also Bradley v.

Balt. Police Dep’t, 887 F. Supp. 2d 642, 647-48 (D. Md. 2012) (dismissing plaintiff’s § 1983

claims against the City because the City does not exercise sufficient control over BPD to be liable

for its actions).

Moreover, plaintiff cannot pursue a respondeat superior claim against the City based on

the conduct of the BPD Officers. As Judge Chasanow explained in Nicholson, 2021 WL 1541667,

at *10, to impose respondeat superior liability, the City “must have an agency or employment

relationship with the alleged wrongdoer.” However, under Maryland law, the BPD is an agency

of the State, not the City. Id. Thus, the City “‘does not employ the police officers and is not liable

for their conduct under state law.’” Id. (citation omitted).

In Estate of Anderson v. Strohman, 6 F. Supp. 3d 639, 646 (D. Md. 2014), Judge Russell

pointedly explained:

Try as they may, Plaintiffs cannot avoid the mountain of law insisting the City does

not sufficiently control the BPD or Baltimore police officers. . . . Baltimore police

officers are state employees free from the City’s supervision and control. The City

sets no policy or custom that Baltimore police officers execute, and the City cannot

be liable for the conduct of [BPD Officer Defendants] under § 1983 . . . a § 1983

claim cannot be brought against the City for Baltimore police officer conduct

because it does not sufficiently control the BPD and cannot be considered to employ

Baltimore police officers. Municipal liability under Monell cannot attach to the

City for the unconstitutional actions of Baltimore police officers.

Given the absence of the City’s power to control the Department, “liability cannot attach

to the City for actions taken by [BPD] police officers.” Nicholson, 2021 WL 1541667, at *10.

Middleton’s attempts to suggest otherwise are wide of the mark. Because the City “has no power”

over the BPD, Middleton’s claims against the City necessarily fail. Clark, 404 Md. at 26, 944

A.2d at 1130.

2. The BPD and Tuggle

a. Counts I-VI, VIII, IX

The City Defendants contend that the BPD and Tuggle, in his official capacity, “are entitled

to the protections of sovereign immunity against Middleton’s state and common law claims.” ECF

29-1 at 6. They recognize that the Local Government Tort Claims Act (“LGTCA”), Md. Code

(2020 Repl. Vol., 2021 Supp.), §§ 5-301 et seq. of the Courts and Judicial Proceedings Article

(“C.J.”), prohibits the BPD from claiming “‘governmental or sovereign immunity to avoid [its]

duty to defend or indemnify an employee.’” ECF 29-1 at 7 (quoting Balt. Police Dep’t v. Cherkes,

140 Md. App. 282, 323, 780 A.2d 410, 431 (2001)). The City Defendants posit, however, that

plaintiff “has not alleged a claim for indemnification, and any such claim would be premature at

this stage of litigation.” ECF 29-1 at 7 (citing Grim v. Balt. Police Dep’t, ELH-18-3864, 2019 WL

5865561, at *28 (D. Md. Nov. 8, 2019)).

In her Opposition/City, plaintiff asserts that “‘numerous decisions in this District have said

that the BPD is not entitled to Eleventh Amendment immunity in regard to a claim under § 1983.’”

ECF 35-1 at 7 (quoting Burley v. Balt. Police Dep’t, 422 F. Supp. 3d 986, 1026 (D. Md. 2019)).

She argues that the “Baltimore City Police Department and Former Interim Commissioner Tuggle

are only entitled to Eleventh Amendment Immunity in State actions in their official capacity.”

ECF 35-1 at 7.

But, as the City Defendants note, this argument “conflates [plaintiff’s] state and common

law claims with the sole federal § 1983 claim in her Amended Complaint.” ECF 40 at 4. In their

view, Middleton’s “argument also grossly distorts the analyses and applications of Eleventh

Amendment immunity and common law state sovereign immunity,” which are “two separate and

distinct principles . . . .” Id.

The doctrine of State sovereign immunity is “firmly embedded in the law of

Maryland.” Katz v. Wash. Suburban Sanitary Comm'n, 284 Md. 503, 512-13, 397 A.2d 1027,

1032-33 (1979); see Bd. of Educ. of Balt. Cty. v. Zimmer-Rubert, 409 Md. 200, 240, 973 A.2d 233,

211 (2009) (describing the State doctrine of sovereign immunity as “a rule of policy which protects

the State from burdensome interference with its governmental functions and preserves its control

over State agencies and funds”) (citation and internal quotation marks omitted); Bd. of Howard

Cmty College v. Rugg, 278 Md. 580, 584, 366 A.2d 360, 362-63 (1976) (declining to abrogate

sovereign immunity by judicial fiat); Jekofsky v. State Roads Comm'n, 264 Md. 471, 474, 287 A.2d

40, 41-42 (1972) (same). And, as explained, State sovereign immunity “‘is applicable not only to

the State itself, but also to its agencies and instrumentalities . . . .’” Proctor v. Wash. Metro. Area

Transit Auth., 412 Md. 691, 709, 990 A.2d 1048, 1058 (2010) (quoting Katz, 284 Md. at 507-08,

397 A.2d at 1030); see Clea, 312 Md. at 669-70, 541 A.2d at 1306-07. Therefore, unless the

Maryland General Assembly has waived immunity, State sovereign immunity bars an individual

from maintaining a suit for money damages against the State of Maryland or one of its agencies

for violations of State law. See State v. Sharefeldin, 382 Md. 129, 140, 854 A.2d 1208, 1214

(2004); Cherkes, 140 Md. App. at 306, 780 A.2d at 424; see also Samuels v. Tschechtelin, 135

Md. App. 483, 522, 763 A.2d 209, 230 (2000).11 Notably, this “immunity protects the State not

only from damage actions for ordinary torts but also from such actions for State constitutional

torts.” Cherkes, 140 Md. App. at 306, 780 A.2d at 424 (citing Ritchie v. Donnelly, 324 Md. 344,

369 597 A.2d 432, 444 (1991)).

As earlier explained, the BPD is generally regarded as a State agency, and thus enjoys

sovereign immunity as to State law claims. See Chin v. Cty. of Balt., 241 F. Supp. 2d 546, 548-49

(D. Md. 2003); Cherkes, 140 Md. App. at 302-03, 326, 780 A.2d at 422, 436. Likewise, defendant

Tuggle, in his official capacity, is extended the same immunity, because a suit against a public

official in his official capacity is “essentially a claim against the [State] . . . .” Love-Lane, 355

11 The State of Maryland has waived its sovereign immunity for certain cases. See Md.

Code (2021 Repl. Vol.), § 12-202(a) of the State Government Article.

F.3d at 783; see Graham, 473 U.S. at 166 (stating that “an official capacity suit is, in all respects

other than name, to be treated as a suit against the entity”).

The LGTCA provides, in part, that “a local government shall be liable for any judgment

against its employee for damages resulting from tortious acts or omissions committed by the

employee within the scope of employment with the local government.” C.J. § 5-301(b)(1). And,

as the City Defendants observe (see ECF 29-1 at 7), C.J. § 5–303(b)(2) prohibits a local

government from “assert[ing] governmental or sovereign immunity to avoid the duty to defend or

indemnify an employee,” as established in C.J. § 5–303(b)(1). See Cherkes, 140 Md. App. at 318,

780 A.2d at 431.

But, of import here, the LGTCA does not waive the defense of State sovereign immunity

as to suits brought against the State, or an instrumentality of the State, for the misconduct of its

employees. To the contrary, C. J. §§ 5–303(d) and (e) expressly reserve preexisting common law

and statutory defenses and immunities of local governments and their employees, and the right of

the local government to assert such defenses and immunities, as follows:

(d) Notwithstanding the provisions of [§ 5-303(b),] this subtitle does not waive any

common law or statutory defense or immunity in existence as of June 30, 1987, and

possessed by an employee of a local government.

(e) A local government may assert on its own behalf any common law or statutory

defense or immunity in existence as of June 30, 1987, and possessed by its

employee for whose tortious act or omission the claim against the local government

is premised and a local government may only be held liable to the extent that a

judgment could have been rendered against such an employee under this subtitle.

To be sure, the BPD is included in the list of local governments that falls within the ambit

of the LGTCA. See C.J. § 5-301(d)(21). And, this has been a source of “[c]onfusion.” Nicholson,

2021 WL 1541667, at *9 n.8. But, as Judge Chasanow has succinctly explained, id.: “Put simply,

the LGTCA only prohibits the BPD from asserting sovereign immunity to avoid its statutorily

imposed duty to defend or indemnify its employees. Even under the LGTCA, plaintiffs cannot

bring state law claims directly against the BPD for the actions of Baltimore police officers acting

within the scope of their employment.”

Accordingly, Counts I through VI as well as Counts VIII and IX must be dismissed as to

the BPD and Tuggle, in his official capacity, on the basis of State sovereign immunity.

b. Count VII

In Count VII, plaintiff lodges a claim against the BPD and Tuggle under 42 U.S.C. § 1983.

See ECF 28, ⁋⁋ 54-56. The City Defendants urge dismissal of the § 1983 claim, stating that

“Middleton does not allege any facts to support that BPD or Tuggle engaged in the alleged tortious

conduct that caused her injury,” and “neither BPD nor Tuggle can be held vicariously liable” under

§ 1983, “as a matter of law.” ECF 29-1 at 8.

Middleton counters that she lodged a § 1983 claim against the BPD and Tuggle under a

theory of supervisory liability, not vicarious liability. ECF 35-1 at 8. She points out that the

Amended Complaint “includes a direct quote from an official police spokesperson on behalf of

Defendant Baltimore City Police Department, while the BCPD was under the leadership of Former

Interim Commissioner Tuggle.” Id. at 9. Further, she contends that this statement “incorrectly

and maliciously describe[d] Middleton’s conduct at the time of the incident as being illegal . . . .”

Id. Moreover, she avers, for the first time, that “even after reviewing the video recordings of the

incident, witness statements, and other evidence,” the BPD and Tuggle did not “recommend

charging Koushall for his misconduct,” and that “[a]fter the complained of incident, not only did

Tuggle and BCPD not condemn the actions of Koushall and Yerg, but they also condoned that

behavior by merely indefinitely suspending Koushall with full pay.” Id.

The City Defendants maintain that the Amended Complaint includes no allegations that

speak to the decisions made by BPD and Tuggle with respect to the pursuit of disciplinary

sanctions against Koushall or lodging charges against him. ECF 40 at 6. Further, the City

Defendants contend that, even if the Amended Complaint included such an assertion, the mere

allegation that “BPD and Tuggle did not do ‘enough’ . . . cannot satisfy the high standard of

deliberate indifference” required to state a claim for supervisory liability under § 1983. Id. at 7.

Thus, in their view, the Amended Complaint fails to state a § 1983 claim—either for vicarious or

supervisory liability. Id.

As discussed, the BPD is a State entity for purposes of Maryland law. But, for purposes

of 42 U.S.C. § 1983, it is considered a municipal entity. And, as mentioned, the doctrine of State

sovereign immunity “does not immunize political subdivisions of the state, such as municipalities

and counties, even though such entities might exercise a ‘slice of state power.’” Ram Ditta, 822

F.2d at 457 (quoting Lake Country Estates, Inc., 440 U.S. at 401). See Nicholson, 2021 WL

1541667, at *6. Indeed, as judges of this court have consistently explained, the BPD does not

enjoy Eleventh Amendment sovereign immunity for purposes of a § 1983 claim because it is

“sufficiently concerned with local matters, independently funded, interconnected with local

government, and autonomous from state government . . . .” Earl, 2021 WL 4458930, at *3; see

Fish v. Mayor and City of Balt., CCB-17-1438, 2018 WL 348111, at *3 (D. Md. Jan. 10, 2018);

Chin, 241 F. Supp. 2d at 548; Alderman v. Balt. Police Dep’t, 952 F. Supp. 256, 258 (D. Md.

1997). To the contrary, BPD is a “person” subject to suit under § 1983. Fish, 2018 WL 348111,

at *3.

However, a § 1983 suit against a municipality must “be brought under the standard set

forth in Monell.” Nicholson, 2021 WL 1541667, at *10; see Fish, 2018 WL 348111, at *3. And,

liability as to a municipality attaches “only where the municipality itself causes the constitutional

violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (emphasis in original);

accord Holloman v. Markowski, 661 F. App’x 797, 799 (4th Cir. 2016) (per curiam), cert. denied,

___U.S. ___, 137 S. Ct. 1342 (2017). “In suing a municipal government under Monell, a plaintiff

must establish both the existence of a constitutional violation on the part of the police officer and

that any constitutional violation was proximately caused by a policy, custom, or practice of the

defendant municipality.” Nicholson, 2021 WL 1541667, at *10 (citing Monell, 436 U.S. at 694) .

The Amended Complaint does not state a Monell claim, either as to the BPD or Tuggle.

Rather, Count VII is styled as a claim for supervisory liability. Moreover, a suit brought under

§ 1983 against a municipal officer in his official capacity is the same as suing the municipality

itself. Therefore, plaintiff’s § 1983 claim against the BPD, as well as Tuggle in his official

capacity, is subject to dismissal. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (explaining that

“official-capacity suits generally represent only another way of pleading an action against an entity

of which an officer is an agent” and that “[b]ecause the real party in interest in an official-capacity

suit [against a municipal officer] is the governmental entity and not the named official, the entity’s

policy or custom must have played a part in the violation of federal law”) (internal quotation marks

and citations omitted); see also ERWIN CHEMERINSKY, FEDERAL JURISDICTION, § 8.6 at 515 (4th

ed. 2003)).

Concerning plaintiff’s § 1983 claim against Tuggle in his individual capacity, the Amended

Complaint alleges that Tuggle held a supervisory role in the BPD at all relevant times. ECF 28, ⁋

8. In that capacity, according to Middleton, Tuggle “exercised final policy making authority” for

the BPD, and “established the duties, standards of conduct, and discipline of officers,” as well as

“policies regarding hiring, screening, training, monitoring, supervision, and discipline of officers

employed” by the BPD. Id. But, the Amended Complaint includes no further mention of Tuggle,

other than in passing reference in the ad damnum clause that follows each count of the Complaint.

See, e.g., id. at 10, 11, 12.

As mentioned earlier, to state a claim for supervisory liability under § 1983, a plaintiff must

allege facts that, if proven, would show: “(1) That the supervisor had actual or constructive

knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable

risk of constitutional injury to . . . the plaintiff; (2) that the supervisor’s response to that knowledge

was so inadequate as to show deliberate indifference to or tacit authorization of the alleged

offensive practices; and (3) that there was an affirmative causal link between the supervisor’s

inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at 799.

The Amended Complaint is devoid of any allegations pertaining to Tuggle’s knowledge,

actual or constructive, regarding the Officer Defendants’ misconduct. Nor are there facts to show

that Tuggle’s response to the events constituted deliberate indifference that caused Middleton’s

constitutional injuries. Therefore, these allegations are insufficient to state a claim against Tuggle

for supervisory liability under 42 U.S.C. § 1983.

To be sure, in her Opposition/City, plaintiff includes additional assertions that Tuggle and

the BPD failed to do enough to sanction Koushall for his misconduct. ECF 35-1 at 9. However,

these allegations were not included in the Amended Complaint. And, it is well established that “‘a

complaint may not be amended by the briefs in opposition to a motion to dismiss.’” Sager v. Hous.

Comm'n of Anne Arundel County, 855 F. Supp. 2d 524, 557 (D. Md. 2012) (quoting Arbitraje Casa

de Cambio, S.A. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C .2003)).

But, even considering the additional facts alleged in the Opposition/City, Middleton still

fails to state a claim for municipal or supervisory liability under 42 U.S.C. § 1983. She

acknowledges that Koushall was suspended from the BPD for his alleged misconduct, although

she regards this as insufficient punishment. ECF 35-1 at 9. She also alleged that he was prosecuted

for his conduct. ECF 28, ⁋ 25. Her view of the sanctions is of no legal significance. Regardless,

plaintiff did not plead facts that, if proven, would establish that her constitutional injuries were the

result of the actions of Tuggle.

In sum, the Amended Complaint fails adequately to assert that the BPD or Tuggle had any

role in the alleged deprivation of plaintiff’s constitutional rights, so as to establish the liability of

Tuggle or the BPD’s municipal liability. Accordingly, I am persuaded that, as to the BPD and

Tuggle, Count VII is subject to dismissal.

c. Tuggle: State Law Claims, Individual Capacity12

To the extent that plaintiff asserts State law claims against Tuggle in his individual

capacity, the City Defendants contend: “Middleton . . . fails to provide any fact to support that

Tuggle was directly or personally involved with Middleton’s injury.” ECF 29-1 at 11. Plaintiff

counters that Tuggle may be found liable because he served as the Interim Commissioner of the

BPD at the time of the incident. ECF 35-1 at 14. She asserts: “Even after receiving evidence

clearly refuting the statements and allegations made by Koushall, Yerg, and the [BPD] against

Middleton, Tuggle failed to use his authority and power over the [BPD] to clear Middleton’s name

12 When assessing a State law claim, the Court must apply the law of the forum state

(including as to choice of law), whether proceeding under supplemental or diversity

jurisdiction. See, e.g., Nash v. Montgomery Cty., GJH-20-1138, 2021 WL 1222874, at *7 n.7 (D.

Md. Mar. 31, 2021); Ben-Joseph v. Mt. Airy Auto Transporters, LLC, 529 F. Supp. 2d 604, 606

(D. Md. 2008). In tort actions, Maryland adheres to doctrine of lex loci delicti, meaning it applies

the substantive law of the state where the wrong occurred. Ben-Joseph, 529 F. Supp. at 606

(citing Erie Ins. Exch. v. Heffernan, 399 Md. 598, 619, 925 A.2d 636, 648-49 (2007)) (other

citations omitted). Because plaintiff's claim is premised on events that occurred in Maryland (ECF

28, ⁋ 10), Maryland law applies.

by failing to cease the criminal and internal investigations and proceedings against her.” ECF 35-

1 at 14-15.

Plaintiff’s allegations fail entirely to implicate Tuggle in the claims for battery (Count I);

false imprisonment (Count II); violations of Articles 24 and 26 of the Maryland Declaration of

Rights (Count IV); intentional infliction of emotional distress (Count V); or false arrest (Count VI)

Thus, these counts are subject to dismissal as to Tuggle, in his individual capacity.

As to Counts III and VIII, which assert claims for malicious prosecution/abuse of process

as well as false light invasion of privacy, respectively, the Court must assume the truth of the

allegations in the suit, and draw all reasonable inferences in plaintiff’s favor. Even so, plaintiff’s

allegations are insufficient, as a matter of Maryland law, to survive a motion to dismiss for failure

to state a claim.

To state a claim for malicious prosecution in Maryland, a plaintiff must allege that the

defendant instituted or continued a criminal proceeding; the proceeding was resolved in favor of

the accused; there was no probable cause for the proceeding; and the defendant acted with malice,

or for the primary purpose other than that of bringing an offender to justice. See, e.g., Okwa v.

Harper, 360 Md. 161, 183, 757 A.2d 118, 130 (2000). Notably, “[w]here a party instigates, aides

or assist [sic] in a criminal prosecution he/she may be liable even where he/she did not swear out

a warrant.” Smithfield Packing Co., Inc. v. Evely, 169 Md. App. 578, 593, 905 A.2d 845, 854

(2006). Conversely, a person is not liable for malicious prosecution “for relying upon the

independent judgment of a prosecutor or attorney where the defendant has made a full disclosure

of all material facts relative to the charges being made.” Id. at 593-94, 905 A.2d at 854.

In Southern Management Corp. v. Taha, 378 Md. 461, 473, 836 A.2d 627, 633 (2003), the

Maryland Court of Appeals said:

A person is responsible for starting a criminal proceeding who . . . directs or

requests a prosecution based on information which the person knows is false or

withholds information which a reasonable person would realize might affect the

decision to prosecute, . . . or gives inaccurate or incomplete information to those

who prosecute.

But, “the plaintiff must establish that the defendant committed the tort with some improper

purpose or motive. Mere negligence in instituting unjustified criminal proceedings against the

plaintiff cannot satisfy the ‘malice’ element.” Montgomery Ward v. Wilson, 339 Md. 701, 719,

664 A.2d 916, 925 (1995).

Similarly, to establish a claim for abuse of process, plaintiff must prove the (1) willful use

of process for an illegal purpose, after process has been issued; (2) with an underlying ulterior

motive; and (3) resulting damages. Humphrey v. Herridge, 103 Md. App. 238, 243, 653 A.2d 491,

493 (1995); see also Allen v. Bethlehem Steel Corp., 76 Md. App. 642, 650, 547 A.2d 1105, 1109

(1988), cert. denied sub nom. Green and Vernon Green Assocs. v. Allen, 314 Md. 458, 550 A.2d

1168 (1988). The tort occurs only when a person uses criminal or civil process for an illegal

purpose after process has issued. Palmer Ford, Inc. v. Wood, 298 Md. 484, 511, 471 A.2d 297,

310-11 (1984); see One Thousand Fleet Ltd. v. P'ship v. Guerriero, 346 Md. 29, 38, 694 A.2d 952,

956 (1997) (“Some definite act or threat not authorized by the process, or aimed at an objective

not legitimate in the use of the process is required . . . .”) (internal citation omitted).

“The mere issuance of the process itself, however, is not actionable, even if it is done with

an ‘ulterior motive’ or ‘bad intention.’ Rather, ‘[s]ome definite act or threat not authorized by the

process, or aimed at an objective not legitimate in the use of the process is required

. . . .’” Campbell v. Lake Hallowell Homeowners Ass'n, 157 Md. App. 504, 530, 852 A.2d 1029,

1044 (2004). Moreover, with respect to the element of damages, “the injuries contemplated by

this particular tort (and an indispensable element of it) are limited to an improper arrest of the

person or an improper seizure of property.” Herring v. Citizens Bank and Trust Co., 21 Md. App.

517, 536, 321 A.2d 182, 193 (1974); accord One Thousand Fleet Ltd. v. Guerriero, 346 Md. 29,

45-46, 694 A.2d 952, 956 (“The plaintiff [must] establish that an arrest of the person or a seizure

of property of the plaintiff resulted from the abuse of process.”).

As to Count III, Middleton offers neither facts nor legal authority suggesting that Tuggle

took steps to impede the criminal or internal investigation of a BPD officer. Indeed, under

Maryland law, an internal investigation of a law enforcement officer is regulated by the State. See

P.S. §§ 3-104-3-113 (providing the procedural requirements concerning an internal investigation

into alleged misconduct of a law enforcement officer).

And, the torts of malicious prosecution and abuse of process, as set forth above, require an

allegation that the defendant took affirmative actions that subjected plaintiff to an abuse of process

or wrongful prosecution. Yet, there is simply no assertion in the Amended Complaint that Tuggle

was personally involved in the events underlying Count III. Thus, plaintiff fails to state a viable

claim as to Tuggle; the claim is subject to dismissal, without prejudice and with leave to amend.

Middleton also fails to state a claim against Tuggle in Count VIII, alleging the tort of false

light invasion of privacy. In order to establish a claim in Maryland for this tort, a plaintiff must

allege that a defendant has given “publicity to a matter concerning another that places the other

before the public in a false light . . . if (a) the false light in which the other was placed would be

highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless

disregard as to the falsity of the publicized matter and the false light in which the other would be

placed.” Chinwuba v. Larsen, 142 Md. App. 327, 359 n. 8, 790 A. 2d 83, 102 n. 8 (2002), rev'd

on other grounds, 377 Md. 92, 832 A.2d 193 (2003); see Furman v. Sheppard, 130 Md. App. 67,

77, 744 A. 2d 583, 587 (2000); Bagwell v. Peninsula Reg'l Med. Ctr., 106 Md. App. 470, 514, 665

A.2d 297, 318 (1995), cert. denied, 341 Md. 172, 669 A.2d 1360 (1996); see also Holt v. Camus,

128 F. Supp. 2d 812, 816 (D. Md. 1999).

The Amended Complaint includes an assertion that a BPD spokesperson, T.J. Smith,

released a “wrongful” statement to a media organization that indicated Middleton was “‘acting in

a disorderly manner’” at the time of her arrest and that “‘she refused to comply.’” ECF 28, ⁋ 22.

The suit implies that Tuggle is liable because he failed to correct media reports that suggested

Middleton somehow acted inappropriately or unlawfully. Id. ⁋⁋ 57-60; ECF 35-1 at 14. But,

plaintiff offers no facts that suggest Tuggle knew at the time of the media report that the statement

to the media was false or even inaccurate. Nor does Middleton assert any facts that, if proven,

would show that Tuggle was involved in the statement’s dissemination. In short, she does not

claim that Tuggle “had knowledge of or acted in reckless disregard as to the falsity” of the

statement at the time it was issued. Chinwuba, 142 Md. App. at 359 n.8, 790 A. 2d 83, 102 n.8

(2002).

In Count IX, Middleton brings a State law claim against Tuggle, in his individual capacity,

for civil conspiracy. ECF 28, ⁋⁋ 61-64. However, like plaintiff’s other State law claims, it is

subject to dismissal, because Middleton has failed to allege any facts showing that Tuggle was

involved in the alleged unlawful conduct.

To state a claim for civil conspiracy in Maryland, a plaintiff must plead facts that, if proven,

would establish: “‘(1) a confederation of two or more persons by agreement or understanding; (2)

some unlawful or tortious act done in furtherance of the conspiracy or use of lawful or tortious

means to accomplish an act not in itself illegal; and (3) actual legal damages resulting to the

plaintiff.’” Lloyd v. Gen. Motors Corp., 397 Md. 108, 154, 916 A.2d 257, 284 (2007) (quoting Van

Rogen v. Lacey, 262 Md. 94, 97-98, 277 A.2d 13, 14-15 (1971)); see also Bellezza v. Greater

Havre De Grace Yacht Club, Inc., No. 0367, Sept. Term 2014, 2015 WL 6394418, at *9 (Md. Ct.

Spec. App. Oct. 22, 2015), cert. denied, 446 Md. 291, 132 A.3d 194 (2016). But, in Maryland

“civil conspiracy is not a ‘separate tort capable of independently sustaining an award of damages

in the absence of other tortious injury to the plaintiff.’” Bellezza, 2015 WL 6394418, at

*9 (quoting Alleco, Inc. v. Harry & Jeanette Weinberg Found., Inc., 340 Md. 176, 189, 665 A.2d

1038, 1045 (1995)); see also Alexander and Alexander, Inc. v. B. Dixon Evander & Associates,

Inc., 336 Md. 635, 645 n.8, 650 A.2d 260, 265 n.8 (1994).

Accordingly, a plaintiff must allege that she was injured by an overt act done in furtherance

of the conspiracy. Alleco, Inc., 340 Md. at 190, 665 A.2d at 1045. In other words, “‘it is not . . .

for simply conspiring to do the unlawful act that the action [of conspiracy] lies. It is for doing the

act itself, and the resulting actual damage to the plaintiff, that afford the ground of the

action.’” Id. (quoting Kimball v. Harman and Burch, 34 Md. 407, 409 (1871)).

In short, the Amended Complaint includes no facts to suggest that Tuggle was a party to

an unlawful conspiracy. Thus, I am persuaded that Counts I through VI, Count VIII, and Count

IX are subject to dismissal as to Tuggle in his individual capacity, based on plaintiff’s failure to

allege facts that show Tuggle’s participation in the events underlying these claims. Given that

plaintiff has already amended her suit, and her attorneys are experienced in cases of the kind

involved here, I decline to grant leave to amend.

3. City Defendants: 42 U.S.C. § 1985(3)

Count X asserts a claim under 42 U.S.C. § 1985(3). Plaintiff appears to direct the claim to

Koushall and Yerg, asserting that they conspired to deprive her of the equal protections of the law.

ECF 28, ⁋ 67. Although the City, the Department, and Tuggle are not expressly named in Count

X, they have nonetheless moved to dismiss Count X, presumably out of an abundance of caution,

and perhaps because they are included in the ad damnum clause at the close of Count X.

The City Defendants contend that Count X fails to state a claim as to them because the

“Amended Complaint does not plead any facts to support that MCC, BPD, or Tuggle

. . . participated [in] any illegal agreement or conspiracy . . . .” ECF 29-1 at 9.

The Fourth Circuit has explained that, in order to state a claim for civil conspiracy under

§ 1985(3), “Depriving persons of rights or privileges,” a plaintiff must set forth the following:

(1) a conspiracy of two or more persons, (2) who are motivated by a specific class-

based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal

enjoyment of rights secured by the law to all, (4) and which results in injury to the

plaintiff as (5) a consequence of an overt act committed by the defendants in

connection with the conspiracy.

A Society Without A Name, 655 F.3d at 346; see also Simmons v. Poe, 47 F.3d 1370, 1376 (4th

Cir. 1995).

In addition, the plaintiff “‘must show an agreement or a meeting of the minds by [the]

defendants to violate the [plaintiff's] constitutional rights.’” A Society Without A Name, 655 F.3d

at 346 (quoting Simmons, 47 F.3d at 1377). The Simmons Court has said, id.: “[W]e have

specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely

conclusory manner, in the absence of concrete supporting facts.”

In A Society Without A Name, 655 F.3d 342, the Fourth Circuit considered, among other

things, the adequacy of a claim under 42 U.S.C. § 1985(3). It said, id. at 346: “[W]here a

conspiracy is alleged, the plaintiff must plead facts amounting to more than ‘parallel conduct and

a bare assertion of conspiracy . . . . Without more, parallel conduct does not suggest conspiracy,

and a conclusory allegation of agreement at some unidentified point does not supply facts adequate

to show illegality.” (Citing Twombly, 550 U.S. at 556-57). The Court added that “factual

allegations must plausibly suggest agreement, rather than being merely consistent with

agreement.” Id.

In my view, Amended Complaint does not plead facts that, if proven, would establish

liability against the City Defendants under § 1985(3). Indeed, Count X does not even mention the

City Defendants, let alone allege that they conspired with the Officer Defendants. See ECF 28, ⁋⁋

65-71.

In an apparent attempt to remedy this deficiency, Middleton sets forth several new facts in

her Opposition/City. She alleges that on the night of the incident, Tuggle had two telephone

conversations with Edward C. Jackson, then the Baltimore Police Inspector General and

Middleton’s supervisor. ECF 35-1 at 11-14. Among other things, plaintiff avers that, after

reviewing video footage of Koushall’s attack on Middleton, Jackson came to “believe[ ] that

Koushall’s actions were unjustified, and furthermore, his decision to keep [Middleton] hand-cuffed

to the wall at Central District Station was problematic.” Id. at 12. Soon after, Jackson called

Tuggle and advised him of “the Department’s need to adhere to the letter of the law in addressing

this incident.” Id. Further, plaintiff contends that “Jackson believed that Middleton should have

already been provided with medical assistance and released.” Id. According to plaintiff, Tuggle

responded by indicating that he “had already been directly briefed on the matter and that he wanted

the Inspector General’s Office to ‘stay out of it.’” Id.

Middleton also claims that seven hours later, Jackson called Tuggle for a second time, and

urged him to release plaintiff from Central District as soon as possible. Id. at 13. Tuggle allegedly

responded by “shout[ing] that the Inspector General was ‘ordered to stay out of this investigation.’”

Id. And, according to plaintiff, Tuggle followed up on their conversation by emailing Jackson to

instruct him again to “cease investigating this incident.” Id.

As earlier stated, a brief in opposition to a motion to dismiss may not amend the allegations

in a complaint. See Sager, 855 F. Supp. 2d at 557. But, even considering the additional

allegations, plaintiff fails to state a claim in Count X as to the City Defendants.

Simply put, the assertions, if proven, would not establish that the City Defendants were

party to an unlawful conspiracy that was formed for the purposes of depriving Middleton of her

“equal enjoyment of rights secured by the law to all.” Simmons, 47 F.3d at 1376. Rather, as the

City Defendants point out, they show only that there was “a heated disagreement between a former

interim Baltimore Police Commissioner and the then-Baltimore Police Inspector General—who

also happened to be Middleton’s supervisor.” ECF 40 at 9.

Accordingly, I shall dismiss Count X as to the City Defendants.

B. Officer Motion

The Officer Motion urges the dismissal of several counts. In particular, the Officer

Defendants urge the Court to dismiss Count V, which alleges intentional infliction of emotional

distress; Count VIII, asserting false light invasion of privacy; and Count IX and Count X, which

lodge claims for civil conspiracy under Maryland law and federal law, respectively. ECF 31-1 at

1-2. In addition, the Officer Defendants seek dismissal of Count I (Battery); Count II (False

Imprisonment); Count IV (Violation of Maryland Declaration of Rights); and Count VI (False

Arrest), to the extent the claims are lodged against Yerg. Id. at 2. The Officer Defendants also

contend that plaintiff’s § 1983 claim (Count VII) is subject to dismissal to the extent that it is

brought against the Officer Defendants in their official capacity. Id. And, they seek dismissal of

Count IV and Count VII, to the extent that the claims assert the denial of medical care. Id.

As to Koushall, the Officer Motion does not challenge the viability of Count I (Battery),

Count II (False Imprisonment), or Count VI (False Arrest). Further, the Officer Motion does not

seek dismissal of Count III (Malicious Prosecution/Abuse of Process) as to Koushall or Yerg.

And, with the exception of the arguments delineated above, the Officer Motion does not seek

dismissal of Count IV (Violation of Maryland Declaration of Rights) as to Koushall, or Count VII

(§ 1983) as to either Koushall or Yerg.

1. Abandoned Claims

As an initial matter, plaintiff failed to respond to several of the arguments advanced in the

Officer Motion. In particular, Middleton has not challenged the proposed dismissal of plaintiff’s

claims against Yerg for battery (Count I) or intentional infliction of emotional distress (Count V).

Further, she does not challenge the dismissal of the § 1983 claim (Count VII), to the extent it is

lodged against the Officer Defendants in their official capacity, or the false light invasion of

privacy claim against them (Count VIII). And, as to the claim for denial of medical care under

Maryland law (Count IV) or federal law (Count VII), Middleton does not challenge the Officer

Defendants’ contention that the claim as to Yerg is subject to dismissal.

A plaintiff who fails to respond to an argument for dismissal is deemed to have abandoned

the claim. See Ferdinand-Davenport v. Children’s Guild, 742 F. Supp. 2d 772, 783 (D. Md.

2010)); see also Mentch v. E. Sav. Bank, FSB, 949 F. Supp. 1236, 1247 (D. Md. 1997) (explaining

that plaintiff's failure to address an argument raised in defendant's opening brief constitutes

abandonment of the challenged claim). Accordingly, as to Yerg, I shall dismiss Count I and Count

V. And, I shall dismiss Count IV and Count VII as to any claim against Yerg for failure to provide

medical care. Further, I shall dismiss Count VII against the Officer Defendants to the extent it is

lodged against them in their official capacity. I shall also dismiss Count VIII as to both Officer

Defendants.

2. Koushall: Intentional Infliction of Emotional Distress

Count V of the Complaint asserts a claim against Koushall for the tort of intentional

infliction of emotional distress (“IIED”). ECF 28, ⁋⁋ 45-49. He contends that plaintiff’s

allegations are insufficient to sustain such a claim. ECF 31-1 at 6. In particular, he argues that the

only assertions included in the Amended Complaint to support plaintiff’s claim include: “‘(1) she

sought medical treatment and was treated for numerous injuries’; (2) her police powers were

temporarily suspended and she was transferred to administration at the Northern District; and (3)

she ‘suffer[ed] from reduced wages because she was unable to work overtime while her police

powers were suspended’ and ‘her career path trajectory was negatively affected.’” ECF 31-1 at 7

(alterations in the Officer Motion) (quoting ECF 28, ⁋⁋ 18, 24). In the Officer Defendants’ view,

such facts are “woefully deficient,” particularly when “juxtaposed with factual scenarios Maryland

courts have deemed sufficient to continue IIED claims.” ECF 31-1 at 7; see also ECF 39 at 5

(“Plaintiff’s alleged emotional distress does not rise to the level of severity required under

Maryland law.”).

Middleton contends that the Officer Motion overlooks the allegations that Koushall

punched her in the face three times and continued to attack her until another officer intervened.

ECF 36-1 at 5. Moreover, she points out that the Complaint alleges that Koushall then

“outrageously arrested her, handcuffed her, and forced her to walk up the public street in front of

no less than 50 people . . . .” Id. And, plaintiff notes that she “suffered emotionally from mental

anguish, humiliation, and traumatic stress” as a result of Koushall’s conduct. Id. at 6.

In Maryland, in order to prevail on a claim for IIED, a plaintiff must show that (1) the

defendant's conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3)

there was a causal connection between the defendant's wrongful conduct and the emotional distress

suffered; and (4) the emotional distress was severe. Harris v. Jones, 281 Md. 560, 566, 380 A.2d

611, 614 (1977); accord, e.g., Caldor, Inc. v. Bowden, 330 Md. 632, 641-42, 625 A.2d 959, 963

(1993); Mixter v. Farmer, 215 Md. App. 536, 548, 81 A.3d 631, 637 (2013); Lasater v. Guttmann,

194 Md. App. 431, 448, 5 A.3d 79, 89 (2010).

Notably, a defendant's conduct must be “‘so extreme in degree as to go beyond all possible

bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized

community.’” Arsham v. Mayor & City Council of Balt., 85 F. Supp. 3d 841, 850 (D. Md.

2015) (quoting Harris, 281 Md. at 567, 380 A.2d at 614). Indeed, “[t]o be actionable, the conduct

relied upon ‘must strike to the very core of one's being, threatening to shatter the frame upon which

one's emotional fabric is hung.’” Farasat v. Paulikas, 32 F. Supp. 2d 244, 248 (D. Md.

1997) (quoting Hamilton v. Ford Motor Credit Co., 66 Md. App. 46, 59-60, 502 A.2d 1057,

1064, cert. denied, 306 Md. 118, 507 A.2d 631 (1986)), aff'd, 166 F.3d 1208 (4th Cir. 1998).

Generally, claims for IIED are disfavored, difficult to establish and, as such, “rarely viable”

under Maryland law. Respess v. Travelers Cas. & Sur. Co. of Am., 770 F. Supp. 2d 751, 757 (D.

Md. 2011); see Arsham, 85 F. Supp. 3d at 850; Manikhi v. Mass. Transit Admin., 360 Md. 333,

367, 758 A.2d 95, 113 (2000); Bagwell v. Peninsula Reg'l Med. Ctr., 106 Md. App. 470, 514, 665

A.2d 297, 319 (1995) (stating that the tort of intentional infliction of emotional distress is

“difficult to satisfy”), cert. denied, 341 Md. 172, 669 A.2d 1360 (1996); see also DAVID CRUMP,

RETHINKING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, 25 GEO. MASON L. REV. 287, 297

(2018) (noting that an IIED claim is “a kind of vituperative epithet” that “adds little that can be the

subject of a separate or additional recovery” but “makes [the litigation] more expensive”). Indeed,

since the Maryland Court of Appeals first recognized the tort of IIED in 1977, Harris, 281 Md.

560, 380 A.2d 611, it has repeatedly advised that “recovery” for IIED “will be meted out

sparingly[.]” Figueiredo-Torres v. Nickel, 321 Md. 642, 653, 584 A.2d 69, 75 (1991); see Batson

v. Shiflett, 325 Md. 684, 733, 602 A.2d 1191, 1216 (1992); Caldor, Inc., 330 Md. at 642, 625 A.2d

at 963.

Assuming the truth of plaintiff’s allegations, Koushall’s conduct was arguably outrageous.

However, the Amended Complaint fails to state a claim for intentional infliction of emotional

distress because Middleton did not plead facts that, if true, would constitute severe emotional

distress.

Vincent v. Prince George’s County, Md., 157 F. Supp. 2d 488 (D. Md. 2001), is instructive.

There, the plaintiff was accused of stealing flowers from a vendor at a nightclub. Id. at 590-91.

Three uniformed police officers forcibly removed plaintiff from the nightclub’s premises, beat

plaintiff, and sprayed plaintiff in the eyes with pepper spray, which inflicted injuries sufficiently

serious to warrant medical attention. Id. at 591.

In the ensuing lawsuit, plaintiff brought a claim, inter alia, for intentional infliction of

emotional distress, asserting that he “suffered severe emotional distress, mental anguish, anger and

anxiety” and that “he wears visible scars from the incident with the individual officers and now

fears Prince George’s County Police Officers.” Id. at 596 (citation and internal quotation marks

omitted). Judge Chasanow granted summary judgment to the defendants on the IIED claim,

explaining that the plaintiff “failed to establish the severity prong” because he had not offered “any

proof that he suffered a disabling emotional response as a result of Defendants’ conduct.” Id. at

596.

In this case, Middleton has likewise failed to plead any facts that, if proven, would show

that “her emotional distress is so severe as to have disrupted her ability to function on a daily

basis.” Bryant v. Better Business Bureau of Greater Md., Inc., 923 F. Supp. 720, 750 (D. Md.

1996). Rather, the Amended Complaint indicates only that defendants’ conduct caused Middleton

to feel “fear, fright, humiliation, inconvenience, and embarrassment for the totality of events that

she was forced to endure both past, present, and in the future.” ECF 28, ⁋ 49. Such an allegation,

on its own, cannot sustain a claim for intentional infliction of emotional distress. Cf. Krell v.

Queen Anne’s County, JKB-18-637, 2018 WL 6523883, at *14 (D. Md. Dec. 12, 2018) (finding

that plaintiff had plausibly stated a claim for intentional infliction of emotional distress where

plaintiff alleged that he “became suicidal and underwent three psychiatric hospitalizations,” which

“evinc[ed] an inability to function daily”).

Accordingly, Count V shall be dismissed, without prejudice and with leave to amend.

3. Yerg: Counts II, IV, VI

The Amended Complaint lodges claims against Yerg for false imprisonment (Count II),

violation of Articles 24 and 26 of the Maryland Declaration of Rights (Count IV), and false arrest

(Count VI). See ECF 28, ⁋⁋ 32-34, 40-44, 50-53. As to Yerg, the Officer Motion contends that

these claims must be dismissed because plaintiff fails to allege facts that, if proven, would establish

Yerg’s involvement; he was not present when plaintiff was arrested or during Middleton’s

detention. ECF 31-1 at 5.

According to Middleton, Yerg coordinated with Koushall to embark on a “‘campaign to

disparage Ms. Middleton.’” ECF 36-1 at 4 (quoting ECF 28, ⁋ 5). Further, plaintiff alleges in the

Amended Complaint that Yerg “‘drew up and filed additional charges against Middleton,’” which

were “‘sworn out by Defendant Koushall with the advice and guidance of Defendant Yerg.’” ECF

36-1 at 4 (quoting ECF 28, ⁋ 20). And, Middleton alleges that Yerg was “Koushall’s supervisor

and active participant in the charging process,” and he failed “to stop Koushall from falsely

arresting and imprisoning Middleton . . . .” ECF 36-1 at 4.

In order to prevail on a claim for false arrest under Maryland law, “the plaintiff must prove

that the defendant deprived him or her of his or her liberty without consent and without legal

justification.” Scott v. Jenkins, 345 Md. 21, 29, 690 A.2d 1000, 1003 (1997), rev’d on other

grounds, 345 Md. 21, 690 A.2d 1000 (1997); see Wilson, 339 Md. at 721, 664 A.2d at 926; Fine

v. Kolodny, 263 Md. 647, 651, 284 A.2d 447, 411 (1971), cert. denied, 406 U.S. 928

(1972); Fleisher v. Ensminger, 140 Md. 604, 620, 118 A. 153, 158 (1922); Lewis v. Uzuber, 65

Md. 341, 348-49, 4 A. 285, 289 (1886); Mitchell v. Lemon, 34 Md. 176, 180 (1871).

“The elements of false imprisonment are the same as the elements for false arrest.” Davis

v. DiPino, 121 Md. App. 28, 38, 708 A.2d 357, 383 (1998), aff’d in part, rev’d in part on other

grounds, 354 Md. 18, 729 A.2d 354 (1999). Liability for the torts of false arrest and false

imprisonment attaches only where an individual acts so as to create a “‘present restraint of liberty’

of another.” DiPino, 121 Md. App. at 82, 708 A.2d at 384 (quoting Page Keeton et al., Prosser

and Keeton on the Law of Torts § 11, at 51 (5th ed.1984)).

“Legal justification” was defined by the Maryland Court of Appeals in Great Atl. & Pac.

Tea Co. v. Paul, 256 Md. 643, 261 A.2d 731 (1970). The court explained, id. at 655, 261 A.2d at

738 (internal citations omitted):

When the cases speak of legal justification we read this as equivalent to legal

authority . . . . Whatever technical distinction there may be between an “arrest” and

a “detention” the test whether legal justification existed in a particular case has been

judged by the principles applicable to the law of arrest.

Thus, “[w]here the basis of a false imprisonment action is an arrest by a police officer, the liability

of the police officer for false imprisonment will ordinarily depend upon whether or not the officer

acted within his legal authority to arrest.” Wilson, 339 Md. at 721, 664 A.2d at 926.13

Plaintiff does not assert that Yerg was at the scene of her arrest or at Central District during

the ten-hour period when she was detained. Further, there are no allegations that he directed

Koushall to arrest or detain plaintiff. Accordingly, to the extent that plaintiff persists in her claims

against Yerg for false arrest or false imprisonment, the claims are patently specious because the

Amended Complaint is devoid of any allegations that Yerg was in any way involved with

plaintiff’s arrest or subsequent detention.

To the extent that plaintiff’s false imprisonment claim relies on plaintiff’s contention that

Yerg assisted Koushall in bringing additional false charges against Middleton, such a claim asserts

malicious prosecution, rather than false imprisonment. See Wilson, 339 Md. at 723-24, 664 A.2d

at 927 (“‘False imprisonment is the invasion of the interest in freedom from unlawful confinement,

while malicious prosecution is the unlawful use of legal procedure to bring about a legal

confinement.’”) (quoting HARPER, JAMES & GRAY, THE LAW OF TORTS, § 3.9 at 297 (2d ed. 1986));

Lewis, 65 Md. at 348, 4 A. at 289 (explaining that a claim for false imprisonment “can be

maintained only when the arrest is without legal process; and [malicious prosecution] where the

process of the law has been perverted and improperly used”). And, the Officer Motion does not

challenge plaintiff’s malicious prosecution claim at this juncture.

In her Opposition/Officer, plaintiff asserts for the first time that Yerg is liable for

Koushall’s conduct under Counts II and VI because he was Koushall’s supervisor. ECF 36-1 at 4.

13 “An arrest made under a warrant which appears on its face to be legal is legally justified

in Maryland, even if unbeknownst to the arresting police officer, the warrant is in fact

improper.” Ashton, 339 Md. at 120, 660 A.2d 447. But, this case does not involve a warrant.

But, the Amended Complaint alleges only that “Yerg was a supervisor” within the BPD, not that

he specifically was Koushall’s supervisor. ECF 28, ⁋ 5. Moreover, plaintiff did not indicate that

she was pursuing a theory of supervisory liability in regard to Counts II or VI. And, as stated, “‘it

is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to

dismiss.’” Mylan Laboratories, Inc. v. Akzo, 770 F. Supp. 1053, 1068 (D. Md. 1991) (quoting Car

Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984)), aff'd, 2 F.3d 56 (4th

Cir.1993). Accordingly, Counts II and VI shall be dismissed as to Yerg.

In Count IV, Middleton asserts that Yerg violated her “right, privileges, and immunities,”

as guaranteed by Articles 24 and 26 of the Maryland Declaration of Rights. ECF 28, ⁋ 44.

Article 24 is the State's constitutional guarantee of due process and equal protection of the

law. Town of Easton v. Pub. Serv. Comm'n, 379 Md. 21, 41 n.11, 838 A.2d 1225, 1237 n.11

(2003). Thus, it “is the state law equivalent of the Fourteenth Amendment of the United

States.” Hawkins v. Leggett, 955 F. Supp. 2d 474 (D. Md. 2013) (quotation marks omitted).

And, Article 24 is ordinarily interpreted in pari materia with its federal analog. See, e.g., Littleton

v. Swonger, 502 F. App'x. 271, 274 (4th Cir. 2012) (stating that Article 24 is “construed in pari

materia with the . . . Fourteenth Amendment[ ]”); Dent v. Montgomery Cty. Police Dept., 745 F.

Supp. 2d 648, 661 (D. Md. 2010) (stating that Article 24 is “construed in pari materia with

the . . . Fourteenth Amendment[ ]”); Tyler v. City of College Park, 415 Md. 475, 499-500, 3 A.3d

421, 435 (2010) (recognizing that Maryland courts “interpret Article 24 in pari materia with the

Fourteenth Amendment to the United States Constitution.”); Doe v. Dept. of Pub. Safety & Corr.

Servs., 185 Md. App. 625, 636, 971 A.2d 975, 982 (2009) (same).

In other words, Article 24 “has been interpreted to apply ‘in like manner and to the same

extent as the Fourteenth Amendment of the Federal Constitution,’ so that ‘decisions of the

Supreme Court on the Fourteenth Amendment are practically direct authorities.’” Frey v.

Comptroller of Treasury, 422 Md. 111, 176, 29 A.3d 475, 513 (2011) (quoting Attorney Gen. of

Maryland v. Waldron, 289 Md. 683, 704, 426 A.2d 929, 941 (1981)). “Therefore, the analysis

under Article 24 is, for all intents and purposes, duplicative of the analysis under the Fourteenth

Amendment.” Hawkins, 955 F. Supp. 2d at 496.

Article 26 is the State’s analog to the Fourth Amendment. Padilla v. State, 180 Md. App.

210, 225, 949 A.2d 68, 77 (2008); see Dent, 745 F. Supp. 2d at 661 (“Article 26 protects the same

rights as those protected under the Fourth Amendment to the United States Constitution . . . .”)

And, “the cases are legion in which Maryland Courts have construed Article 26 in pari

materia with the Fourth Amendment to the United States Constitution.” Padilla, 180 Md. App. at

226, 949 A.2d at 78. See, e.g., Parker v. State, 402 Md. 372, 400, 936 A.2d 862, 878

(2007); Patterson v. State, 401 Md. 76, 113, 930 A.2d 348, 372 (2007); Byndloss v. State, 391 Md.

462, 465 n. 1, 893 A.2d 1119, 1121 n. 1 (2006); Davis v. State, 383 Md. 394, 408, 859 A.2d 1112,

1120 (2004); Scott v. State, 366 Md. 121, 139, 782 A.2d 862, 873 (2001); Richardson v.

McGriff, 361 Md. 437, 452–53, 762 A.2d 48, 56 (2000); Purnell v. State, 171 Md. App. 582, 607,

911 A.2d 867, 882 (2006), cert. denied, 398 Md. 315, 920 A.2d 1060 (2007). Notably, Article 26

“‘does not accord appellant any greater protection than the Fourth Amendment to the United States

Constitution.’” Blasi v. State, 167 Md. App. 483, 511 n. 12, 893 A.2d 1152, 1168 n. 12

(2006) (citation omitted), cert. denied, 393 Md. 325, 900 A.2d 751 (2007).

As mentioned, to bring a viable claim under 42 U.S.C. § 1983 for the deprivation of

plaintiff’s federal constitutional rights, a plaintiff must assert that the defendant was personally

involved in the alleged violation at issue. See Iqbal, 556 U.S. at 676 (explaining that a viable

claim arising under § 1983 depends, in part, on the inclusion of allegations that “each Government-

official defendant, through the official’s own individual actions, has violated the Constitution.”).

Accordingly, to plausibly state a claim under Article 24 or Article 26 of the Maryland Declaration

of Rights as to Yerg, Middleton must plead that Yerg was personally involved in the pertinent

conduct.

However, Middleton grounds Count IV solely on Koushall’s actions, asserting that “[b]y

illegally seizing, and detaining Ms. Middleton without a warrant, by punching her in her face; and,

dragging her by her hair Defendant Officer and Baltimore City Police Department” violated her

rights under Articles 24 and 26 of the Maryland Declaration of Rights. ECF 28, ⁋ 44. Further,

plaintiff posits that she “suffered damage by being unlawfully held against her will for an extended

period of time . . . .” Id. In other words, Count IV is predicated on the same conduct underlying

Middleton’s claims for battery, false arrest, and false imprisonment. And, that is the conduct of

Koushall, not Yerg.

As explained earlier, plaintiff fails to plead facts that, if proven, would establish that Yerg

engaged in the alleged misconduct. Nor do these counts suggest that plaintiff intended to bring a

claim against Yerg for supervisory liability, or even that Yerg was Koushall’s supervisor.

Accordingly, Count IV must be dismissed as to Yerg.

4. Koushall: Denial of Medical Care

The Officer Motion seeks dismissal of plaintiff’s claim under Article 24 of the Maryland

Declaration of Rights (Count IV) and 42 U.S.C. § 1983 (Count VII), to the extent that those counts

seek to allege a claim based on Koushall’s failure to obtain medical care for plaintiff. See ECF

31-1 at 15-18.

As a pretrial detainee, plaintiff’s claim is analyzed under the Due Process Clause of the

Fourteenth Amendment to the Constitution. See Brown v. Harris, 240 F.3d 383, 388 (4th Cir.

2001); Young v. City of Mt. Ranier, 238 F.3d 567, 575 (4th Cir. 2001); Hill v. Nicodemus, 979 F.2d

987, 991-92 (4th Cir. 1992). In contrast, if Middleton had been serving a sentence after a

conviction, her claim alleging the failure to provide adequate medical care would be analyzed

under the Eighth Amendment. But, of import here, pretrial detainees “possess at least the same

rights as convicted prisoners.” Williamson v. Stirling, 912 F.3d 154, 177 (4th Cir. 2018); see Bell

v. Wolfish, 441 U.S. 520, 545 (1979).

The Eighth Amendment to the Constitution proscribes “unnecessary and wanton infliction

of pain” by virtue of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428

U.S. 153, 173 (1976); see Estelle v. Gamble, 429 U.S. 97, 102 (1976); King v. Rubenstein, 825

F.3d 206, 218 (4th Cir. 2016). But, the Eighth Amendment “proscribes more than physically

barbarous punishments.” Estelle, 429 U.S. at 103. It also “embodies” the “‘concepts of dignity,

civilized standards, humanity, and decency . . . .’” Id. (citation omitted). It “protects inmates from

inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761

(4th Cir. 1996). Moreover, the protection conferred by the Eighth Amendment imposes on prison

officials an affirmative “obligation to take reasonable measures to guarantee the safety of . . .

inmates.” Whitley v. Albers, 475 U.S. 312, 319-20 (1986); see Farmer v. Brennan, 511 U.S. 825,

832 (1994); Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016); cf. DeShaney v. Winnebago Cnty.

Dep't of Soc. Servs., 989 U.S. 189, 199-200 (1989) (stating that “when the State takes a person into

its custody and holds him there against his will, the Constitution imposes upon it a corresponding

duty to assume some responsibility for his safety and general well-being”); John Doe 4 v.

Shenandoah Valley Juvenile Center Comm'n, 985 F.3d 327, 338 (4th Cir. 2021) (same).

The Fourth Circuit has observed that “not all Eighth Amendment violations are the same:

some constitute ‘deliberate indifference,’ while others constitute ‘excessive force.’” Thompson v.

Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (quoting Whitley, 475 U.S. at 319-20). The deliberate

indifference standard applies to cases alleging failure to safeguard an inmate’s health and safety,

including failing to protect inmates from attack, maintaining inhumane conditions of confinement,

and failure to render medical assistance. See Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S.

294, 303 (1991).

“Scrutiny under the Eighth Amendment is not limited to those punishments authorized by

statute and imposed by a criminal judgment.” De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.

2003) (citing Wilson, 501 U.S. at 297). “It is beyond debate that a ‘prison official's deliberate

indifference to an inmate's serious medical needs constitutes cruel and unusual punishment under

the Eighth Amendment.’” Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019) (citation

omitted).

The Fourth Circuit has determined that the Eighth Amendment's deliberate indifference

standard, applicable to convicted prisoners, also applies to claims of inadequate medical treatment

made by pretrial detainees under the Fourteenth Amendment. Hill, 979 F.2d at 991-92 (“[P]rison

officials violate detainee's rights to due process when they are deliberately indifferent to serious

medical needs.”) (citations omitted); see Young, 238 F.3d at 575 (“[D]eliberate indifference to the

serious medical needs of a pretrial detainee violates the due process clause.”); Gordon v. Kidd, 971

F.2d 1087, 1094 (4th Cir. 1992) (“Pretrial detainees, like inmates under active sentence, are

entitled to medical attention, and prison officials violate detainees’ rights to due process when they

are deliberately indifferent to serious medical needs.”); Belcher v. Oliver, 898 F.2d 32, 34 (4th Cir.

1990) (“The Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment right

of convicted prisoners, requires that government officials not be deliberately indifferent to any

serious medical needs of the detainee.”) (citation omitted).14

In order to state a constitutional claim for denial of adequate medical care, a plaintiff must

demonstrate that the actions of the defendants or their failure to act amounted to deliberate

indifference to a serious medical need. See Estelle, 429 U.S. at 106; Jackson v. Lightsey, 775 F.3d

170, 178 (4th Cir. 2014); Iko v. Shreve, 535 F. 3d 225, 241 (4th Cir. 2008). The deliberate

indifference standard is analyzed under a two-pronged test: “(1) the prisoner must be exposed to

‘a substantial risk of serious harm,’ and (2) the prison official must know of and disregard that

substantial risk to the inmate's health or safety.” Thompson, 878 F.3d at 97-98 (quoting Farmer,

511 U.S. at 834, 837-38); see Moskos v. Hardee, ___ F.4th ___, 2022 WL 175659, at *5 (4th Cir.

Jan. 20, 2022); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209 (4th Cir. 2017).

14 In Hill, 979 F.2d at 991, the Fourth Circuit applied the deliberate indifference standard

for a pretrial detainee but recognized that the constitutional protections for pretrial detainees could

arguably be “greater” than those afforded to convicted prisoners. Since Hill, the Supreme Court

has called into question the equivalence between the standards applied to claims

by pretrial detainees and those applied to claims by convicted inmates. In Kingsley v.

Hendrickson, 576 U.S. 389 (2015), the Court said that, unlike the standard applied to post-

conviction excessive force claims under the Eighth Amendment, the standard for a

pretrial detainee’s excessive force claim under the Fourteenth Amendment does not include a

subjective component. Id. at 296-97.

Several circuits have extended this reasoning to hold that the standard for claims

of pretrial detainees alleging inadequate medical care under the Fourteenth Amendment should

not include a subjective component. See Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir.

2018); Gordon v. Cty. of Orange, 888 F.3d 1118,1124-25 (9th Cir. 2018). But, courts in this

circuit, including courts in this district, have declined to extend the holding of Kingsley to claims

of deliberate indifference to a serious medical need, noting that “neither this Court nor the Fourth

Circuit has applied Kingsley to a pretrial detainee's claim of failure to protect or deliberate

indifference to a serious medical need, where there are no allegations of force applied by the

defendants.” See Perry v. Barnes, No. PWG-16-705, 2019 WL 1040545, at *3 n.3 (D. Md. Mar.

5, 2019); accord Mays v. Sprinkle, No. 7:18CV00102, 2019 WL 3848948, at *1 (W.D. Va. Aug.

15, 2019), rev’d and remanded on other grounds, 992 F.3d 295 (4th Cir. 2021); Wallace v. Moyer,

CCB-17-3718; 2020 WL 1506343, at 6*n.9 (Mar. 30, 2020).

As indicated, a deliberate indifference claim has both an objective component and a

subjective component. Objectively, the plaintiff must prove “a ‘deprivation of a basic human

need’ that is ‘sufficiently serious.’” Moskos, 2022 WL 175659, at *5 (citation omitted). And, the

plaintiff “must prove a subjective element; ‘that the officials acted with a sufficiently culpable

state of mind.’” Id. (citation omitted). In other words, plaintiff most prove, objectively, that she

was suffering from a serious medical need and that, subjectively, the defendants were aware of the

need for medical attention but failed either to provide it or to ensure that the needed care was made

available. See Farmer, 511 U.S. at 837; see also Hudson v. McMillian, 503 U.S. 1, 9

(1992); Schilling, 937 F.3d at 357; DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018); King,

825 F.3d at 219. The Fourth Circuit has characterized the applicable standard as an “exacting”

one. Lightsey, 775 F.3d at 178.

A “‘serious . . . medical need’” is “‘one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor's attention.’” Iko, 535 F.3d at 241 (quoting Henderson v. Sheahan, 196 F.3d

839, 846 (7th Cir. 1999)). Proof of an objectively serious medical condition, however, does not

end the inquiry. As the Court explained in Heyer, 849 F.3d at 209-10, “The plaintiff must show

that he had serious medical needs, which is an objective inquiry, and that the defendant acted with

deliberate indifference to those needs, which is a subjective inquiry.”

In the context of a claim concerning the adequacy of medical care, the subjective

component of the standard requires a determination as to whether the defendant acted with reckless

disregard in the face of a serious medical condition, i.e., with “a sufficiently culpable state of

mind.” Wilson, 501 U.S. at 298; see Farmer, 511 U.S. at 839-40; Scinto v. Stansberry, 841 F.3d

219, 225 (4th Cir. 2016). Reckless disregard occurs when a defendant “knows of and disregards

an excessive risk to inmate health or safety; the [defendant] must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists and he must also

draw the inference.” Farmer, 511 U.S. at 837. Similarly, the Fourth Circuit has said: “True

subjective recklessness requires knowledge both of the general risk, and also that the conduct is

inappropriate in light of that risk.” Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir.

1997); see Young, 238 F.3d at 575-76 (“Deliberate indifference requires a showing that the

defendants actually knew of and disregarded a substantial risk of serious injury to the detainee or

that they actually knew of and ignored a detainee's serious need for medical care.”).

As the King Court reiterated, 825 F.3d at 219: “The requisite state of mind is thus ‘one of

deliberate indifference to inmate health or safety.’” (Citation omitted). Put another way, “it is not

enough that an official should have known of a risk; he or she must have had actual subjective

knowledge of both the inmate's serious medical condition and the excessive risk posed by the

official's action or inaction.” Lightsey, 775 F.3d at 178 (emphasis in Lightsey); see Farmer, 511

U.S. at 839-40; Anderson v. Kingsley, 877 F.3d 539, 544 (4th Cir. 2017).

“Actual knowledge or awareness on the part of the alleged inflicter . . . becomes essential

to proof of deliberate indifference ‘because prison officials who lacked knowledge of a risk cannot

be said to have inflicted punishment.’” Brice v. Va. Beach Corr. Center, 58 F.3d 101, 105 (4th

Cir. 1995) (quoting Farmer, 511 U.S. at 844). “The necessary showing of deliberate indifference

can be manifested by prison officials in responding to a prisoner's medical needs in various ways,

including intentionally denying or delaying medical care, or intentionally interfering with

prescribed medical care.” Formica v. Aylor, 739 F. App'x 745, 754 (4th Cir. 2018) (emphasis

in Formica).

A plaintiff can meet the subjective knowledge requirement through direct evidence of an

official’s actual knowledge. Or, the plaintiff can rely on circumstantial evidence tending to

establish such knowledge, including evidence that an official “‘knew of a substantial risk from the

very fact that the risk was obvious.’” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir.

2015) (quoting Farmer, 511 U.S. at 842); see also Gordon, 937 F.3d at 357; Scinto, 841 F.3d at

225. In other words, if a risk is obvious, an official “cannot hide behind an excuse that he was

unaware of a risk.” Brice, 58 F.3d at 105.

Generally, “[a]n actionable deliberate-indifference claim does not require proof that the

plaintiff suffered an actual injury. Instead, it is enough that the defendant's actions exposed the

plaintiff to a ‘substantial risk of serious harm.’” Heyer, 849 F.3d at 210 (quoting Farmer, 511

U.S. at 837) (emphasis added in Heyer); see Thompson, 878 F.3d at 97-98. But, in a case involving

a claim of deliberate indifference to a serious medical need, a detainee must show a “significant

injury.” Danser v. Stansberry, 772 F.3d 340, 346 n.8 (4th Cir. 2014); see De’Lonta v. Johnson,

708 F.3d 520, 525 (4th Cir. 2013).

The Supreme Court has recognized that “prison officials who actually knew of a substantial

risk to inmate health or safety may be found free from liability if they responded reasonably to the

risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844; accord Brown, 240

F.3d at 390-91. The Constitution requires prison officials to ensure “reasonable safety,” a standard

that acknowledges prison officials’ “unenviable task of keeping [sometimes] dangerous [people]

in safe custody under humane conditions[.]” Farmer, 511 U.S. at 845 (citations and quotation

marks omitted). Accordingly, “prison officials who act reasonably cannot be found liable” under

the deliberate indifference standard. Id.; see also Short v. Smoot, 436 F.3d 422, 428 (4th Cir.

2006) (finding that an officer who responds reasonably to a danger facing an inmate is not liable

under the deliberate indifference standard, even when further precautions could have been taken

but were not); Brown, 240 F.3d at 390-91. Reasonableness must be judged in light of the risk the

defendant actually knew at the time. See Brown, 240 F.3d at 390 (citing Liebe v. Norton, 157 F.

3d 574, 577 (8th Cir. 1998) (focus must be on precautions actually taken in light of suicide risk,

not those that could have been taken)).

Of relevance here, deliberate indifference “is a higher standard for culpability than mere

negligence or even civil recklessness” and, “as a consequence, many acts or omissions that would

constitute medical malpractice will not rise to the level of deliberate indifference.” Lightsey, 775

F.3d at 178; see also Scinto, 841 F.3d at 225. Indeed, mere negligence or medical malpractice

does not rise to the level of a constitutional violation “merely because the victim is a prisoner.”

Estelle, 429 U.S. at 106; see Moskos, 2022 WL 175659, at *5; Russell v. Sheffer, 528 F.2d 318,

319 (4th Cir. 1975).

What the Court said in Grayson v. Peed, 195 F.3d 692, 695-96 (4th Cir. 1999), cert.

denied, 529 U.S. 1067 (2000), is pertinent: “Deliberate indifference is a very high standard—a

showing of mere negligence will not meet it . . . . [T]he Constitution is designed to deal with

deprivations of rights, not errors in judgments, even though such errors may have unfortunate

consequences . . . .” See Young, 238 F.3d at 576 (stating that a Fourteenth Amendment deliberate

indifference claim requires more than a showing of “mere negligence”); Johnson v. Quinones, 145

F.3d 164, 166 (4th Cir. 1998) (“[A]ny negligence or malpractice on the part of . . . doctors in

missing [a] diagnosis does not, by itself, support an inference of deliberate indifference.”).

Concerning Koushall, the Officer Motion posits that plaintiffs’ assertions are insufficient

to state a claim for failure to provide medical care. The Officer Defendants state: “Plaintiff fails

to establish there was an objectively serious medical need that warranted any medical attention.”

ECF 31-1 at 17. Further, the Officer Defendants contend that Middleton does not allege that

Koushall had “the subjective knowledge necessary for this Court to determine that [he]

subjectively knew of a serious medical need but chose to ignore it.” Id.

Plaintiff avers that her need for medical care was patent, given that “Koushall struck

Middleton three times in her face, threw her to the ground, and then grabbed her by her hair and

clothing . . . .” ECF 36-1 at 9. And, she indicates that Koushall was subjectively aware of her

need for medical attention because he was her “assailant” and, moreover, Detective Wiggins told

Koushall as much. Id.

Given the posture of the case, Middleton has the better of the argument. Krell v.

Braightmeyer, 828 F. App’x 155, 158-59 (4th Cir. 2020) (per curiam), albeit in the context of

summary judgment, is informative. In that case, the plaintiff showed that the defendant officer

“entered [plaintff’s] residence,” tackled plaintiff “to the ground and smashed [plaintiff’s] face into

the tile floor . . . .” Id. at 158. Thereafter, the officer “declined [plaintiff’s] request to reposition

his handcuffs in order to alleviate his shoulder pain” and “refused to provide [plaintiff] with

medical treatment, despite [plaintiff’s] repeated complaints about his visibly injured shoulder.” Id.

The Fourth Circuit affirmed the district court’s denial of defendant’s summary judgment motion

as to plaintiff’s claim that the officer failed to provide medical care for a serious medical need. It

said, in relevant part, id. at 159 (citations omitted): “A plaintiff can maintain a deliberate

indifference claim based solely on the theory that the defendant withheld, delayed, or interfered

with medical treatment . . . . As a result, even if Krell did not suffer a new or exacerbated injury,

evidence that Defendants failed to provide medical care for Krell's substantial pain is enough to

prevail on a claim of deliberate indifference.”15

Harrison v. Prince William County Police Dep’t, 640 F. Supp. 2d 688 (E.D. Va. 2009), is

also instructive. There, the plaintiff, Harrison, was driving with a companion when he was stopped

by a plainclothes police officer. Id. at 697. A second police officer, John Mora, approached

Harrison’s vehicle, “grabbed Plaintiff’s arm, pulled him out of [his] car, and threw him against it.”

Id. Two other officers arrived on the scene and “picked Plaintiff up bodily while Officer Mora put

him into a headlock.” Id. Mora “then dropped to the ground, causing Plaintiff’s head to hit the

pavement,” and “ground Plaintiff’s head into the pavement . . . .” Id.

Following the assault, Harrison stated that he was seeing double and requested medical

attention. Id. at 697. Further, plaintiff’s companion noticed that Harrison did not look well and

asked the officers for medical attention on Harrison’s behalf. Id. at 705. Harrison was then driven

to a detention center where he again requested medical care. Id. at 697. However, an officer at

the detention center refused to help, instead telling Harrison to wash his face. Id. Plaintiff was

released from the detention center the following morning. Soon thereafter, he collapsed and had

a seizure. Id.

In ruling on a motion to dismiss, Judge Cacheris determined that Harrison plausibly stated

a claim under 42 U.S.C. § 1983 for denial of medical care. Id. at 705. He explained, id. (emphasis

added):

15 However, the Fourth Circuit recently explained that “[m]ere delay is . . . not enough.

Rather, ‘[t]he objective prong requires [the plaintiff] to show that the alleged delay . . . put [her] at

a substantial risk of serious harm.’” Moskos, 2022 WL 175659, at *6 (quoting Moss v. Harwood,

19 F.4th 614, 624 (4th Cir. 2021) (some internal quotation marks and citation omitted)). Notably,

a “commonplace medical delay such as that experienced in everyday life will only rarely suffice

to constitute an Eighth Amendment violation . . . .” Moskos, 2022 WL 175659, at *6.

The Complaint states that Plaintiff was tackled and hit his head, that he was

seeing double, and that he made repeated requests for medical care. Compl. at ⁋⁋

19, 22. One could fairly infer from the Complaint that the injuries were visibly

serious enough for . . . Plaintiff's companion[ ] to notice their severity and request

medical assistance for Plaintiff. Id. at ⁋ 19. While the Complaint does not allege

that Plaintiff was bleeding profusely, it does indicate that there were at least some

visible signs of trauma to Plaintiff's face. Id. at ⁋ 22. At the pleading stage, which

is governed by the notice pleading standard of Rule 8, these allegations are

sufficient to allege that a reasonable officer would have realized that there was a

“substantial risk of serious injury” or a “serious need for medical care.” Young, 238

F.3d at 576.

Unlike the plaintiffs in Harrison and Krell, Middleton does not assert that she exhibited

obvious physical signs of serious trauma. Moreover, she does not allege that she asked for medical

assistance, but her request was ignored.

On the other hand, the Amended Complaint makes clear that Koushall struck plaintiff

multiple times, threw her to the ground, and picked her up by her hair. See ECF 28, ⁋ 13. In

addition, Middleton states that Koushall’s assault resulted in “injuries to her face, temple, and

head,” and by inference these injuries would have been visible. Id. ⁋ 14. Moreover, when plaintiff

was finally able to obtain medical care, she was diagnosed, among other things, with a concussion

and post-traumatic headaches. Id. ⁋ 18. And, Middleton required “physical therapy and multiple

doctor’s appointments for several months after the assault . . . .” Id.

At this stage of litigation, I must assume the truth of the allegations and draw all reasonable

inferences in favor of the plaintiff. E.I. du Pont de Nemours & Co., 637 F.3d at 440 (citations

omitted). And, plaintiff’s assertions make plain that Koushall attacked Middleton, and at least

some of her injuries were sufficiently serious and obvious, so as to alert Koushall to the need for

medical care. ECF 28, ⁋⁋ 13-14, 18-19. In addition, plaintiff claims to have experienced “severe

pain” (id. ⁋⁋ 14, 16), and Koushall was in a position to observe Middleton’s condition for an

extended period of time during her detention at Central District. Moreover, Middleton claims that

another BPD officer told Koushall that Middleton required medical care. Id. ⁋ 16; see Iko, 535

F.3d at 242 (imputing officers’ subjective awareness of a prisoner’s serious need for medical

attention where the officers saw prisoner doused in pepper spray and collapse minutes later).

Accordingly, I am satisfied that the allegations plausibly assert that Koushall’s failure to obtain

medical attention for plaintiff, in the face of her condition and her pain, would satisfy the objective

and subjective components of the deliberate indifference standard.

In other words, plaintiff has plausibly claimed that Koushall was deliberately indifferent to

plaintiff’s “substantial risk of injury” and “serious need for medical care.” Young, 238 F.3d at

576. As a result, I shall deny the Officer Motion as to Koushall with respect to Count IV and

Count VII, to the extent that they assert claims for failure to provide medical care.

5. Counts IX and X

In Counts IX and X, Middleton asserts a claim for civil conspiracy and violation of 42

U.S.C. § 1985(3), respectively. ECF 28, ⁋⁋ 61-64, 65-71. The Officer Defendants posit that these

claims are barred by the intracorporate conspiracy doctrine because both Koushall and Yerg are

officers of the BPD. ECF 31-1 at 14.

The elements of a claim for civil conspiracy under Maryland law and under 42 U.S.C.

§ 1985(3) were set forth earlier. See Lloyd, 397 Md. at 154, 916 A.2d at 284 (delineating the

elements of a State law claim for civil conspiracy in Maryland); Simmons, 47 F.3d at 1376

(outlining the elements of a claim for violation of 42 U.S.C. § 1985(3)). I need not repeat them,

but I incorporate them here.

Of import, the intracorporate conspiracy doctrine may preclude a plaintiff from pursuing a

conspiracy claim under either State or federal law, in certain circumstances. Pursuant to

this doctrine, “an agreement between or among agents of the same legal entity, when the agents

act in their official capacities, is not an unlawful conspiracy.” Ziglar v. Abbasi, __U.S.__, 137 S.

Ct. 1843, 1867 (2017); see Painter's Mill Grille, 716 F.3d at 352; see ePlus Tech., Inc. v. Aboud,

313 F.3d 166, 179 (4th Cir. 2002); Buschi v. Kirven, 775 F.2d 1240, 1251 (4th Cir. 1985). The

doctrine derives from the nature of a conspiracy and the legal conception of a corporation.

On the one hand, “[c]onspiracy requires an agreement—and in particular an agreement to

do an unlawful act—between or among two or more separate persons.” Ziglar, 137 S. Ct. at

1867; see, e.g., Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996) (to establish a

conspiracy under § 1983, a plaintiff must provide “evidence that each member of the alleged

conspiracy shared the same conspiratorial objective”). On the other, under common law agency

principles, the acts of a corporation’s agents are regarded as acts of a single legal actor. See Ziglar,

137 S. Ct. at 1867; see, e.g., United States v. Singh, 518 F.3d 236, 249 (4th Cir. 2008) (recognizing

corporation can be liable for criminal acts of its employees). Therefore, the doctrine “recognizes

that a corporation cannot conspire with its agents because the agents’ acts are the corporation's

own.” Painter's Mill Grille, 716 F.3d at 352; see ePlus Tech, Inc. v. Aboud, 313 F.3d 166, 179

(4th Cir. 2002).

Although the doctrine originally developed in the antitrust context, it has been extended to

civil rights claims. See Buschi, 775 F.2d at 1251-52 (observing that the doctrine “has been applied

in the civil rights area, involving ‘officials of a public body who act within the scope of their

employment’”) (internal citations omitted); accord Hicks v. Ferreyra, 396 F. Supp. 3d 564, 580

(D. Md. 2019) (applying intracorporate conspiracy doctrine to plaintiff's claims arising under

§ 1983); Bumgardner v. Taylor, RBD-18-1438, 2019 WL 1411059, at *5 (D. Md. Mar. 28,

2019) (same); see Burgess v. Balt. Police Dep't, RBD-15-0834, 2016 WL 795975, at **10-11 (D.

Md. Mar. 1, 2016) (same). However, two exceptions exist to this general rule. First, the doctrine

does not apply “‘where a co-conspirator possesses a personal stake independent of his relationship

to the corporation.’” Painter's Mill Grille, 716 F.3d at 352 (quoting ePlus Tech., 313 F.3d at 179).

Second, a plaintiff may assert a conspiracy claim “where the agent's acts were not authorized by

the corporation.” Painter's Mill Grille, 716 F.3d at 352 (citing Buschi, 775 F.2d at 1252-53).

In arguing that the intracorporate conspiracy doctrine bars plaintiff’s claims, the Officer

Motion points out that the Amended Complaint expressly states that “‘that at all times relevant

hereto,” both Koushall and Yerg were “‘duly authorized agent[s], servant[s], and/or employee[s]

of the Baltimore City Police Department who [were] acting within the scope of [their] employment

and for the benefit of the City of Baltimore.’” ECF 31-1 at 14 (alterations added) (quoting ECF

28, ⁋⁋ 4, 5). Plaintiff counters that the intracorporate conspiracy doctrine has no bearing here

because the Officer Defendants’ conduct was clearly unlawful and the “unlawful conspiracy was

not for the purpose of adopting a policy for the [BPD] . . . .” ECF 36-1 at 6. Further, Middleton

points out that the Amended Complaint alleges that Koushall and Yerg “‘remained in constant

communication’” in order to “‘coordinate with each other and concoct a way to keep Defendant

Koushall free from criminal charges and/or intradepartmental discipline as well as to damage

Middleton in her own criminal case and assure she would not be given an objective, fair assessment

within the department.’” ECF 36-1 at 8 (quoting ECF 28, ⁋ 19). Thus, according to Middleton,

Koushall and Yerg had a personal stake independent of their relationship to the BPD: ensuring that

Koushall avoided criminal liability for his misconduct. ECF 36-1 at 8. And, in plaintiff’s view,

“it would be reasonable to infer that such illegal activity was not authorized by the police

department.” Id.

In reply, the Officer Defendants argue that plaintiff’s assertion contradicts the Amended

Complaint, which indicates that Koushall and Yerg were, at all times, acting within the scope of

their employment. ECF 39 at 9. And, in their view, given the inclusion of this allegation in the

Amended Complaint, the Fourth Circuit’s decision in Painter’s Mill Grille, 716 F.3d 342, controls.

ECF 39 at 9-10. In particular, the Officer Defendants point out that the plaintiff in that case alleged

that the “individual defendants were acting at all times as ‘agent[s], servant[s] and/or employee[s],’

of the corporate defendants and that the corporate defendants are therefore vicariously liable.”

ECF 39 at 9 (quoting Painter’s Mill Grille, 716 F.3d at 353) (alterations in Painter’s Mill Grille)).

In my view, the Officer Defendants have engaged in a blinkered reading of Painter’s Mill

Grille. In that case, the owner of a restaurant and its principals sued the landlord and its agents,

alleging interference with the business based on racial animus. Painter’s Mill Grille, 716 F.3d at

346. The claims were based on 42 U.S.C. §§ 1981, 1982, 1985(3) as well as Maryland law. Id.

Of relevance here, as to the § 1985(3) claim, the trial court granted a motion to dismiss, based on

the intracorporate conspiracy doctrine. Id. at 347. The Fourth Circuit affirmed. Id. at 354.

The Fourth Circuit rooted its decision in the fact that plaintiff’s § 1985(3) claim was solely

predicated on an allegation that the individual defendants possessed an independent personal stake,

separate from their employer, because they were acting on their “personal racial animus.” Id. at

353. The Court reasoned that such a motive was insufficient to overcome the intracorporate

conspiracy doctrine, because “it would ‘render[ ] the . . . doctrine meaningless’ in the context of §

1985(3) claims ‘because every claim under that statute depends on a showing that the conspirators

shared an invidiously discriminatory motivation.’” Id. (quoting Hartman v. Bd. of Trustees of

Comm. Coll. Dist. No. 508, 4 F.3d 465, 470 (7th Cir. 1993)).

As I see it, the allegations included in the Amended Complaint are distinguishable from

those at issue in Painter’s Mill Grille. Middleton has alleged that the Officer Defendants’

conspiracy was motivated by their desire to protect Koushall from criminal liability. ECF 28, ⁋

63. And, in furtherance of that alleged conspiracy, the Officer Defendants filed additional charges

against Middleton for the purpose of “overshadow[ing] Defendant Koushall’s wrongdoing.” Id.

In this light, plaintiff has pled facts that fit both exceptions to the intracorporate conspiracy

doctrine. See Painter’s Mill Grille, 716 F.3d at 353 (stating that the doctrine does not apply where

employees are motivated solely by personal bias).

Other courts have found similar actions sufficient to find that the intracorporate conspiracy

doctrine does not bar a conspiracy claim from proceeding beyond the motion to dismiss stage. See

Bright v. City of Killeen, Texas, 532 F. Supp. 3d 389, 402 (W.D. Tex. 2021) (explaining that the

intracorporate conspiracy doctrine did not bar plaintiff’s conspiracy claims, brought under § 1983,

where plaintiff alleged that officers agreed among themselves to cover up their actions during a

police raid); Pena v. Ortiz, 521 F. Supp. 3d 747, 752-53 (N.D. Ill. 2021) (finding that the

intracorporate conspiracy doctrine did not bar plaintiff’s § 1983 and State law conspiracy claims

that officers conspired to falsify police reports about plaintiff’s arrest); Heyward v. Tyner, 2:17-

01545-DCN, 2018 WL 1391434, at *5 (D.S.C. Mar. 20, 2018) (concluding that the intracorporate

conspiracy doctrine did not apply where plaintiff asserted that defendant officers “purposefully

filed false police reports” and that the “other moving defendants made false statements to

substantiate [the officers’] narrative”); Kenley v. District of Columbia, 83 F. Supp. 3d 20, 34

(D.D.C. 2015) (“The Court believes that the decision to falsely charge [plaintiff] with assault on

an officer in order to retaliate against him and cover up the officers’ own misconduct can hardly

be said to fall within the ambit of routine police-department decisionmaking that the

[intracorporate conspiracy] doctrine is meant to cover.”).

Accordingly, I conclude that the intracorporate conspiracy doctrine does not bar plaintiff’s

conspiracy claims as to the Officer Defendants. And, the Officer Motion makes no further

argument as to the viability of these claims.

IV. Conclusion

In light of the foregoing, I shall grant the City Motion (ECF 29). Accordingly, the MCC,

the BPD, and Tuggle shall be dismissed from the suit.

Further, I shall grant the Officer Motion (ECF 31) in part and deny it in part. In particular,

Count V shall be dismissed as to the Officer Defendants. However, with respect to Koushall, the

dismissal of Count V is without prejudice and with leave to amend. Count VII shall be dismissed

as to the Officer Defendants in their official capacities, and as to Yerg in his individual capacity,

to the extent it is based on a claim for denial of medical care. Counts I, II, IV, and VI shall also be

dismissed as to Yerg. And, Count VIII shall be dismissed. The Motion is otherwise denied.

I shall also deny, as moot, defendants’ initial motions to dismiss, docketed at ECF 19 and

ECF 26.

An Order follows.

Date: January 28, 2022 /s/

Ellen L. Hollander

United States District Judge