Dunbar v. Biedlingmaier

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

TILMAN DUNBAR, JR., et al.

:

v. : Civil Action No. DKC 20-0738

:

CORPORAL R. BIEDLINGMAIER,

et al. :

MEMORANDUM OPINION

Presently pending and ready for resolution in this civil

rights action is the motion to dismiss filed by Defendants Corporal

Ryan Biedlingmaier (“Corporal Biedlingmaier”), the Montgomery

County Police Department (“MCPD”), and Montgomery County, Maryland

(“Montgomery County”) (collectively “Defendants”). (ECF No. 54).

The issues have been briefed, and the court now rules, no hearing

being deemed necessary. Local Rule 105.6. For the following

reasons, the motion to dismiss will be granted.

I. Background

These following facts are alleged in Plaintiffs’ second

amended complaint, ECF No. 45, unless otherwise stated. Plaintiff

Tilman Dunbar, Jr., is a licensed attorney residing in Virginia

with his wife and co-Plaintiff, Bindu M. Dunbar (“Mrs. Dunbar”).

Kaiser Permanente was Plaintiff Tilman Dunbar, Jr.’s health

insurance provider, and was privy to his personal health

information.

Tilman Dunbar, Jr., shares a nearly identical name with his

nephew, Tilman Dunbar. At the time of the relevant events, Tilman

Dunbar worked at Kaiser as an independent contractor. Tilman

Dunbar is believed to have stolen computers from Kaiser’s

technology facility in Silver Spring, Maryland on multiple

occasions throughout January 2017. The computers were

collectively worth approximately $175,400.00. The thefts were

captured on Kaiser’s video surveillance cameras and were

subsequently reviewed by Kaiser personnel. A Kaiser employee,

identified by Plaintiffs as John Doe, attempted to obtain Tilman

Dunbar’s information through Kaiser’s employee database. Due to

Tilman Dunbar’s classification as an independent contractor,

however, his information was not contained in Kaiser’s employee

database. Thus, John Doe accessed Kaiser’s subscriber database in

search of Tilman Dunbar’s information. The subscriber database

did not contain any information on Tilman Dunbar, leading John Doe

to access Tilman Dunbar, Jr.’s personal information instead. John

Doe then reported the thefts to the Montgomery County Police

Department and disclosed Tilman Dunbar, Jr.’s personal information

to Corporal Ryan Biedlingmaier, an officer with the MCPD. Acting

upon the information obtained from Kaiser and his personal viewing

of the surveillance footage, Corporal Biedlingmaier procured a

Maryland arrest warrant and a Virginia search warrant for Tilman

Dunbar, Jr., and his Woodbridge, Virginia residence rather than

for Tilman Dunbar and his Reston, Virginia residence. On the

morning of January 25, 2017, Tilman Dunbar, Jr., was arrested

outside his home in public view of his neighbors. The next day,

however, January 26, 2017, the charges against Tilman Dunbar, Jr.,

were entered nolle prosequi.1

II. Procedural Background

Plaintiffs originally filed suit against Kaiser Permanente

Insurance Company (“KPIC”), Corporal Biedlingmaier, the MCPD, and

Montgomery County in the Circuit Court for Montgomery County,

Maryland on January 24, 2020. (ECF No. 3). Defendants

subsequently removed the case to the United States District Court

for the District of Maryland. (ECF No. 1). Plaintiffs filed a

first amended complaint on December 11, 2020, adding Defendants

Kaiser Foundation Health Plan, Inc. (“KFHP”) and Kaiser Foundation

Health Plan of the Mid-Atlantic States, Inc. (“KFHP-Mid”). (ECF

No. 30). On January 20, 2021, the court ordered dismissal of KPIC

with prejudice. (ECF No. 42). On March 24, 2021, the court issued

an order directing Plaintiffs to clarify inconsistent and

contradictory allegations contained in their amended complaint.

1 Plaintiffs’ complaint omits several details which Defendants

have subsequently provided, and which Plaintiffs’ have not

challenged. Specifically, while Corporal Biedlingmaier conducted

the initial investigation, other MCPD officers wrote and submitted

affidavits to obtain the warrants. ECF No. 54-2, at 5.

Furthermore, Corporal Biedlingmaier released Plaintiffs from any

detention at their home upon realizing the mistaken identity. Id.

at 11.

(ECF No. 44). On April 2, 2021, Plaintiffs filed a second amended

complaint, clarifying their allegations. (ECF No. 45). On April

15, 2021, KFHP, KFHP-Mid, and John Doe Kaiser Employee filed a

motion to dismiss Counts V and VI of Plaintiffs’ second amended

complaint. (ECF No. 47). On July 23, 2021, the court granted the

motion to dismiss and ordered the dismissal of Count V of

Plaintiffs’ complaint in its entirety, a portion of Count VI

against the Kaiser defendants, and KFHP, KFHP-Mid, and John Doe

Kaiser Employee as defendants. ECF No. 51.

Corporal Biedlingmaier, Montgomery County, and the MCPD have

also filed motions to dismiss. On December 28, 2020, they filed

a motion to dismiss the first amended complaint. ECF No. 33. On

July 23, 2021, the court denied that motion to dismiss as moot.

ECF No. 53. On August 13, 2021, Corporal Biedlingmaier, Montgomery

County, and the MCPD filed another motion to dismiss the second

amended complaint. ECF No. 54.

Defendants’ current motion to dismiss seeks the dismissal of

the remaining counts of Plaintiffs’ second amended complaint. ECF

No. 54. The remaining claims are Count I—Second Degree Assault

(asserted only by Tilman Dunbar, Jr.); Count II—False Arrest; Count

III—False Imprisonment; Count IV—Violation of 42 U.S.C. § 1983;

and Count VI—Negligence. ECF No. 45. Defendants first argue that

Plaintiffs’ claims are barred by the statute of limitations. In

the alternative, they make various arguments that Plaintiffs’

second amended complaint still does not state a claim. Finally,

Defendants move for summary judgment in the alternative.

III. Standard of Review

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the

sufficiency of the complaint. Presley v. City of Charlottesville,

464 F.3d 480, 483 (4th Cir. 2006). “To survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). “[T]he district

court must accept as true all well-pleaded allegations and draw

all reasonable factual inferences in plaintiff’s favor.” Mays v.

Sprinkle, 992 F.3d 295, 299 (4th Cir. 2021) (reversing a district

court’s dismissal of a complaint because “we must accept the well-

pleaded facts and draw reasonable inferences in favor of the

plaintiff”). In evaluating the complaint, unsupported legal

allegations need not be accepted. Revene v. Charles Cnty. Comm’rs,

882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as

factual allegations are insufficient, Iqbal, 556 U.S. at 678, as

are conclusory factual allegations devoid of any reference to

actual events. United Black Firefighters of Norfolk v. Hirst, 604

F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588

F.3d 186, 193 (4th Cir. 2009). “[W]here the well-pleaded facts do

not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged - but it has not ‘show[n]’

– ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at

679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, “[d]etermining whether

a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw on

its judicial experience and common sense.” Id.

IV. Choice of Laws

The parties dispute whether Virginia or Maryland law applies

to this case, and thus whether Maryland’s three year or Virginia’s

two-year statute of limitations applies. The parties suggest that

choice of laws analysis is merely whether Maryland or Virginia law

applies. The analysis, however, is more nuanced than that. Which

state’s substantive law and which state’s procedural law applies

to Plaintiffs’ common law claims must be analyzed separately.

Moreover, the statute of limitations that applies to a § 1983 claim

also requires separate analysis.

A. Common Law Claims

The Fourth Circuit has described Maryland’s choice of laws

analysis for substantive law:

A federal court sitting in diversity[2] must

apply the choice-of-law rules from the forum

state. See Klaxon Co. v. Stentor Elec. Mfg.

Co., 313 U.S. 487, 496–97, 61 S.Ct. 1020, 85

L.Ed. 1477 (1941). For tort claims, Maryland

adheres to the First Restatement of Conflict

of Laws rule, lex loci delicti commissi, or

2 The same principle applies when a court exercises

supplemental jurisdiction over state law claims. ITCO Corp. v.

Michelin Tire Corp., 722 F.2d 42, 49 n. 11 (4th Cir. 1983).

the law of the place of the harm, to determine

the applicable substantive law. See Naughton

v. Bankier, 114 Md.App. 641, 691 A.2d 712, 716

(1997). Under the First Restatement, the

place of the harm is defined as “the state

where the last event necessary to make an

actor liable for an alleged tort takes place.”

Restatement (First) of Conflict of Laws § 377

(1934); see generally Eugene F. Scoles & Peter

Hay, Conflict of Laws 571 (2d ed.1992)

(discussing lex loci delicti); Robert L.

Felix, Leflar in the Courts: Judicial

Adoptions of Choice-Influencing

Considerations, 52 Ark. L.Rev. 35 (1999)

(surveying states’ decisions to move away from

lex loci delicti regime).

Wells v. Liddy, 186 F.3d 505, 521 (4th Cir. 1999) (emphasis added).

Maryland law, however, applies its own procedural law. Lewis

v. Waletzky, 422 Md. 647, 664 (2011) (quoting Vernon v. Aubinoe,

259 Md. 159, 162 (1970)). For choice of laws purposes, Maryland

law treats statute of limitations as procedural. Id.; Doughty v.

Prettyman, 219 Md. 83, 88 (1959) (applying Virginia substantive

law but Maryland statute of limitations where car accident occurred

in Virginia but suit was brought in Maryland).

B. Section 1983 Claim

While § 1983 provides a federal cause of action, it does not

also provide a statute of limitations. Owens v. Okure, 488 U.S.

235, 249-50 (1989). Instead, “federal law looks to the law of the

State in which the cause of action arose” to determine the length

of the statute of limitations. Wallace v. Kato, 549 U.S. 384, 387

(2007). Thus, “[i]n cases brought under Section 1983, we apply

the statute of limitations for personal injuries of the state in

which the alleged violations occurred.” DePaola v. Clarke, 884

F.3d 481, 486 (4th Cir. 2018) (citing Wallace, 549 U.S. at 387;

Okure, 488 U.S. at 249-50; TwoRivers v. Lewis, 174 F.3d 987, 991

(9th Cir. 1999)).

Although state law determines the applicable

statute of limitations for § 1983 claims,

federal law governs the date on which that

limitations period begins to run. Wallace v.

Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166

L.Ed.2d 973 (2007). Federal law, in turn,

“conform[s] ... to common-law tort principles”

for purposes of determining this date. Id.

“Under those principles, it is the standard

rule that accrual occurs when the plaintiff

has a complete and present cause of action”

against a defendant—that is, when the

plaintiff knows or has reason to know of his

injury. Id. (internal quotation marks and

brackets omitted).

Owens v. Baltimore City State’s Att’ys Off., 767 F.3d 379, 388–89

(4th Cir. 2014).

V. Assault

Plaintiff Tilman Dunbar, Jr., alleges Corporal Biedlingmaier

and unnamed MCPD personnel committed a second degree assault upon

him when they arrested him. ECF No. 45, at 7. It is not necessary

to resolve the choice of law question for this claim. Maryland,

as the forum state, would apply Maryland’s statute of limitations

irrespective of where the alleged assault occurred or which state’s

substantive law applies.

Maryland’s statute of limitations for an assault claim is 1-

year. Md. Code Ann. Cts.&Jud.Proc. § 5-105; Magnas v. Perlman, No.

20-cv-2862-PWG, 2021 WL 915352, at *3 (D.Md. Mar. 10, 2021)

(dismissing second degree assault claim that accrued in 2017, but

which was brought in 2020, because it was filed after Maryland’s

one-year assault statute of limitations expired).

The statute of limitations is an affirmative defense that a

party typically must raise in a pleading under Rule 8(c) and is

not usually an appropriate ground for dismissal. See Eniola v.

Leasecomm Corp., 214 F.Supp.2d 520, 525 (D.Md. 2002);  Gray v. Metts,

203 F.Supp.2d 426, 428 (D.Md. 2002). Dismissal, however, is proper

“when the face of the complaint clearly reveals the existence of

a meritorious affirmative defense.” Brooks v. City of Winston—

Salem, N.C., 85 F.3d 178, 181 (4th Cir. 1996); see  5B Charles A.

Wright & Arthur R. Miller, Federal Practice & Procedure § 1357, at

714 (3d ed. 2004) (“A complaint showing that the governing statute

of limitations has run on the plaintiff’s claim for relief is the

most common situation in which the affirmative defense appears on

the face of the pleading and provides a basis for a motion to

dismiss under Rule 12(b)(6).”).

Although Plaintiffs’ complaint puzzlingly omits the date of

their alleged arrest and detention, the existence of a statute of

limitations affirmative defense is logically clear on the face of

the amended complaint. The amended complaint states that after

Defendants realized they had the wrong Tilman Dunbar a Nolle

Prosequi was entered to each of the theft charges on January 26,

2017. Logically, the arrest and detention had to occur at some

time before the entry of Nolle Prosequi. The second degree assault

claim was not brought within one year of its accrual and is barred

by the statute of limitations.

VI. False Arrest and Imprisonment

Plaintiff Tilman Dunbar, Jr., and Plaintiff Bindu M. Dunbar

allege claims of false arrest and false imprisonment against

Corporal Biedlingmaier and the MCPD. ECF No. 45, at

7. Plaintiffs’ second amended complaint remains unclear as to

precisely what facts they allege in support of any particular

claim. It is likely that they allege that Plaintiff Tilman Dunbar,

Jr., was unlawfully detained and arrested by Corporal

Biedlingmaier pursuant to the Montgomery County arrest warrant,

and that Plaintiff Bindu M. Dunbar was unlawfully detained by

Corporal Biedlingmaier pursuant to the Virginia search warrant.

Again it is not necessary to resolve the choice of law

question for these two claims because Maryland and Virginia law

treats these claims the same. Under Maryland law, the elements of

a claim for false imprisonment and false arrest are identical: (1)

deprivation of the liberty of another; (2) without consent; and 3)

without legal justification.” Heron v. Strader, 361 Md. 258, 264

(2000). Under Virginia law, there is a single tort of false

imprisonment. Coughlan v. Jim McKay Chevrolet, Inc., et al., 18

Va.Cir. 265, 1989 WL 646497, at *1 (Va.Cir. Nov. 13, 1989) (citing

Sands v. Norvell, 126 Va. 384, 400 (1919)). Virginia law requires

a plaintiff to prove that his or her “liberty was restrained,

either by words or acts that [he or she] would fear to disregard,

and that there was no sufficient legal excuse to justify the

restraint.” Dill v. Kroger Ltd. P'ship I, 300 Va. 99, 114

(2021).

Under the law of both states, a claim for false arrest or

false imprisonment cannot be stated when the detention or arrest

is pursuant to a facially valid warrant. The Court of Appeals of

Maryland has said “the tort of false imprisonment does not lie

where the sole basis for the tort action is an arrest made by a

police officer pursuant to a warrant which appears on its face to

be valid.” Montgomery Ward v. Wilson, 339 Md. 701, 721 (1995).

See also Green v. Brooks, 125 Md.App. 349, 374 (1999) (describing

requirements for false arrest claim); Ashton v. Brown, 339 Md. 70,

120 (1995) (“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.”). Both the Court of Appeals and the Court of

Special Appeals of Maryland have favorably quoted the Restatement

(Second) of Torts in evaluating false arrest and imprisonment.

Wilson, 339 Md. 701, 726; Green, 125 Md.App. at 374 (quoting

Restatement (Second) of Torts for definition of valid warrant).

Section 123 of the Restatement (Second) of Torts states:

A warrant is valid if

(a) it is regular in form, and

(b) it is issued by a court, body, or

official

(i) having authority to issue the

warrant for the conduct for which it

is issued and which is described

therein, and

(ii) having jurisdiction over the

person sufficiently named or

otherwise described therein, and

(c) all proceedings required for the

proper issuance of such a warrant have

duly taken place.

Comment (a) to § 123 states:

A warrant is valid even though the court,

through lack of information or otherwise, has

issued it for the arrest of a person in fact

innocent of the offense alleged. The guilt or

innocence of the accused is not a matter which

concerns the officer. It is his duty to serve

the warrant and he is privileged to do so,

even though he has reason to believe or even

knows that the person for whose arrest the

warrant is issued is in fact innocent of the

offense with which he is charged.

Restatement (Second) of Torts § 123 (1965). Cf. Wilson, 339 Md.

at 725 (“By invoking the machinery of the independent judicial

system, therefore, the [person who falsely sought a warrant]

insulates himself from liability for false imprisonment. By the

same token, however, he may become liable for malicious

prosecution.”); Restatement (Second) of Torts § 45A Comment (b)

(“One who instigates or participates in a lawful arrest, as for

example an arrest made under a properly issued warrant by an

officer charged with the duty of enforcing it, may become liable

for malicious prosecution, as stated in Chapter 29, or for abuse

of process, as stated in Chapter 31, but he is not liable for false

imprisonment, since no false imprisonment has occurred.”).

The Supreme Court of Virginia has similarly stated that “a

plaintiff cannot maintain an action for false imprisonment because

of an arrest pursuant to a regular and valid warrant[.]” Dill ,

300 Va. at 114. See also Montanile v. Botticelli, No. 1:08cv716,

2008 WL 5101775, at *4 (E.D.Va. Nov. 25, 2008) (“A warrant that is

regular on its face—even one procured without probable cause—does

not create a cause of action for false imprisonment.”) (citing

Cole v. Eckerd Corp., 54 Va.Cir. 269, 2000 WL 33595085, at *2

(Va.Cir. 2000)) (emphasis added).

Plaintiff Tilman Dunbar, Jr., has not stated a claim for false

arrest or false imprisonment under the law of either state because

he has not pleaded that the arrest warrant in this case was not a

facially valid warrant.3 Instead, he alleges that he was falsely

3 Elsewhere, in support of his § 1983 claim, Plaintiff Tilman

Dunbar, Jr., alleges that Corporal Biedlingmaier “falsely obtained

a fraudulent and erroneous search and arrest warrant for Plaintiff

Attorney Tilman Dunbar, Jr.” That, however, is a legal conclusion

unsupported by factual allegations.

arrested and imprisoned because Corporal Biedlingmaier knew or

should have known from viewing the Kaiser Permanente surveillance

footage that Tilman Dunbar, Jr., was not the individual in the

footage.4 ECF No. 45, at 6-7. That allegation does not challenge

the facial validity of the arrest warrant. See Green, 125 Md.App.

at 373-74 (1999) (affirming summary judgment for police officers

who were sued for false imprisonment for arresting plaintiff

pursuant to a facially valid warrant which in fact should have

been issued for plaintiffs’ cousin, and where plaintiffs argued

4 The video, ECF No. 54-6, was submitted only on a flash

drive. It is not available in the electronic record but was viewed

by the court on a separate computer. The court may consider the

surveillance video in ruling on the motion to dismiss because it

is integral to and relied upon by Plaintiffs’ complaint, and

Plaintiffs’ do not dispute its authenticity. ECF No. 45, at

Blankenship v. Manchin, 471 F.3d 523, 526 n1 (4th Cir. 2006); see

also Thompson v. Badgujar, No. 20-cv-1272-PWG, 2021 WL 3472130, at

*3 (D.Md. Aug. 6, 2021) (considering body-worn camera footage in

police shooting case and stating that “when, as here, a document

or video is referenced as integral to the complaint, disputes

between the allegations of the complaint and what is plain from

the video are resolved in favor of the video”). The video footage

contradicts Plaintiffs’ allegations that it was clear that the

person in the video is not Plaintiff Tilman Dunbar, Jr., because

of that person’s height and facial hair. The two videos purporting

to show the suspect show a Black man with facial hair walking

through an office building. The camera footage is looking down

from an angle. The suspect never stands next to another person,

which would have permitted a comparison of heights. See Sanders

v. City of New York, No. 12 CV 113(PKC)(LB), 2015 WL 1469514, at

*9 (E.D.N.Y Jan. 7, 2015) (finding reasonable jury could have ruled

out plaintiff as suspect because suspects in surveillance footage

were same height as people around them, and plaintiff was 6’6”).

It is also not clear to what extent the suspect has facial hair.

The camera angle, footage quality, and fact that the suspect is

wearing a hooded sweatshirt with the hood raised make it difficult

to determine the full extent of the suspect’s facial hair.

police should have done more investigation before executing

warrant); Dill, 300 Va. at 114 (affirming dismissal of false

imprisonment claim where store employee had mistaken plaintiff for

shoplifter on surveillance footage but arrest warrant for

plaintiff issued based on employee’s report was facially valid).

Plaintiff Bindu M. Dunbar has likewise not stated a claim for

false imprisonment or false arrest under the law of either state.

She has not pleaded that the search warrant was facially

invalid. Moreover, a search warrant permits detention of the

occupant of a house when the search warrant is executed. Michigan

v. Summers, 452 U.S. 692, 705 (1981) (“[W]e hold that a warrant to

search for contraband founded on probable cause implicitly carries

with it the limited authority to detain the occupants of the

premises while a proper search is conducted.”); Fields v. State,

203 Md.App. 132, 141 (2012); Whitaker v. Commonwealth, 37 Va.App.

21, 31 (2001).

Neither Plaintiff Tilman Dunbar, Jr. nor Plaintiff Bindu M.

Dunbar has stated a claim for false arrest or false imprisonment

under Maryland or Virginia law against Corporal Biedlingmaier and

the MCPD. Defendants’ motion to dismiss will be granted on these

claims.

VII. Section 1983 Claim

Plaintiffs’ § 1983 claim also remains imprecise and

unclear. The second amended complaint states that Corporal

Biedlingmaier, acting under color of state law and within the scope

of his employment as a member of the MCPD:

(1) Falsely arrested Plaintiff Attorney

Tilman Dunbar, Jr. and detained Plaintiff

Bindu M. Dunbar;

(2) Falsely obtained a fraudulent and

erroneous search and arrest warrant for

Plaintiff Attorney Tilman Dunbar, Jr.;

(3) Falsely imprisoned and restrained

Plaintiffs’ freedom;

(4) Illegally, falsely, unjustly, unfairly,

and unconstitutionally violated

Plaintiffs’ civil rights in violation of

Section 1983.

ECF No. 45, at 9.

The court assumes Plaintiffs to be asserting that (1) their

seizures by Corporal Biedlingmaier were unlawful under the Fourth

Amendment to the United State Constitution and (2) the arrest and

search warrants in this case were not supported by probable cause

because of something Corporal Biedlingmaier did in securing the

warrants. False arrest and false imprisonment claims brought under

§ 1983 are typically interpreted to allege “a seizure of the person

in violation of the Fourth Amendment.” See Rogers v. Pendleton,

249 F.3d 279, 294 (4th Cir. 2001). See also Brooks, 85 F.3d 178,

182 (4th Cir. 1996) (“[A]llegations that an arrest made pursuant

to a warrant was not supported by probable cause, or claims seeking

damages for the period after legal process issued, are analogous

to the common-law tort of malicious prosecution.”); Evans v.

Chalmers, 703 F.3d 636, 650 (4th Cir. 2012) (analyzing whether

plaintiffs stated claim for unlawful seizure of physical evidence

in which they asserted police seized evidence pursuant to a state

non-testimonial order which had been obtained with dishonest

supporting affidavits). See also Latimer v. Jones, No. 18-cv-

2243-PX, 2019 WL 2142537 at *5 (D.Md. May 16, 2019) (evaluating

whether plaintiff stated claim that Fourth Amendment rights were

violated by falsifying evidence to obtain a search warrant).

Stating a § 1983 claim for a malicious-prosecution-type

violation of the Fourth Amendment requires a plaintiff to show the

defendant (1) caused; (2) a seizure of the plaintiff pursuant to

legal process unsupported by probable cause; and (3) criminal

proceedings terminated in plaintiff’s favor. Evans, 703 F.3d at

647. For such claims, the Fourth Circuit has imported the Franks

v. Delaware analysis to evaluate whether an arrest warrant was

unsupported by probable cause:

A party challenging the veracity of a warrant

application must show that the officer(s)

deliberately or with a “reckless disregard for

the truth” made material false statements in

the warrant application, Franks v. Delaware,

438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d

667 (1978), or omitted from that application

“material facts with the intent to make, or

with reckless disregard of whether they

thereby made, the [application]

misleading,” United States v. Colkley, 899

F.2d 297, 300 (4th Cir. 1990) (citation

omitted).

. . .

Moreover, a plaintiff must demonstrate that

the false statement or omission is material,

“that is, ‘necessary to the [neutral and

disinterested magistrate’s] finding of

probable cause.’” Id. at 628 (quoting Franks,

438 U.S. at 156, 98 S.Ct. 2674). To determine

materiality, the Court must “excise the

offending inaccuracies and insert the facts

recklessly omitted, and then determine whether

or not the corrected warrant affidavit would

establish probable cause.” Id. (quoting

Wilson, 212 F.3d at 789).

Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546,

556 (4th Cir. 2017) (evaluating whether evidence supported

plaintiff’s allegation of malicious prosecution under § 1983 where

police officers were alleged to have included false statement in

affidavit for arrest warrant). The same requirements apply to

claims challenging search warrants. See Evans, 703 F.3d at 650

(reciting requirements of an intentional or reckless false

statement or omission that is material) (quoting Miller, 475 F.3d

at 628).

The Fourth Circuit has explained reckless disregard:

“Reckless disregard” can be established by

evidence that an officer acted “with a high

degree of awareness of [a statement’s]

probable falsity,” that is, “when viewing all

the evidence, the affiant must have

entertained serious doubts as to the truth of

his statements or had obvious reasons to doubt

the accuracy of the information he reported.”

Wilson v. Russo,  212 F.3d 781, 788 (3d Cir.

2000) (internal quotation marks omitted); see

also,Forest v. Pawtucket Police Dept., 377

F.3d 52, 58 (1st Cir.2004); United States v.

Clapp, 46 F.3d 795, 801 n. 6 (8th Cir.1995).

With respect to omissions, “reckless

disregard” can be established by evidence that

a police officer “failed to inform the

judicial officer of facts [he] knew would

negate probable cause.”  Beauchamp v. City of

Noblesville, Inc., 320 F.3d 733, 743 (7th Cir.

2003); see also Wilson,  212 F.3d at 788;  United

States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.

1993).  A plaintiff’s “allegations of

negligence or innocent mistake” by a police

officer will not provide a basis for a

constitutional violation.  Franks, 438 U.S. at

171, 98 S.Ct. 2674.

Miller v. Prince George's Cty., MD, 475 F.3d 621, 627–28 (4th Cir.

2007) (emphasis added).

Plaintiff Tilman Dunbar, Jr.’s claim appears to be for

malicious prosecution due to the arrest (and search) warrant and

Plaintiff Bindu M. Dunbar’s claim of necessity arises only from

the search warrant. The precise classification of the claims,

however, need not be determined now. Central to both claims is

the allegation that a warrant was not supported by probable cause.

Both Plaintiffs have failed to support such an allegation with

facts.

Plaintiffs only allege that Corporal Biedlingmaier, upon

viewing the surveillance footage, should have known the person on

the video did not match the biographical data of Plaintiff Tilman

Dunbar, Jr. ECF No. 45, at 6. This is not an allegation that

Corporal Biedlingmaier intentionally or recklessly fabricated or

omitted a fact during the application process for the arrest and

search warrants. At most, it is an allegation that Corporal

Biedlingmaier made a “negligen[t] or innocent mistake” when

viewing evidence. See Payne v. City of Laurel, et al., No. 07-

cv-583-RDB, 2009 WL 1871258, at *10 (D.Md. June 29, 2009) (finding

failure to notice evidence which would have established that

plaintiff was not lying about living in community was possibly a

negligent mistake, but was not deliberate or reckless disregard

for the truth).

In their motion papers, but not in the § 1983 section of the

Second Amended Complaint itself, Plaintiffs bemoan the manner in

which their detentions were carried out, possibly implying that

excessive force was used. A claim of excessive force used during

an arrest invokes the protections of the Fourth Amendment. Graham

v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443

(1989). Similarly, use of unnecessary force or restraints during

the execution of a search warrant would violate the Fourth

Amendment. Muehler v. Mena, 544 U.S. 93, 99 (2005); Los Angeles

Cty., CA v. Rettele, 550 U.S. 609, 614 (2007). Unlike the § 1983

claims discussed above, which either involved conduct in Maryland

or required the nolle prosequi to be viable, any excessive force

claim would necessarily have occurred in Virginia and its statute

of limitations would apply. See, e.g., Tanksley v. Rose, Civil

Action No. 3:19cv229-HEH, 2019 WL 6709386 (Dec. 9, 2019). The

Virginia statute of limitations is two years and this suit was

initiated more than two years after the events in Virginia. Thus,

even had Plaintiffs asserted an excessive force claim, it would

not be able to proceed. They waited too long to file suit.

Count 4 will be dismissed.

VIII. Negligence

Both Plaintiffs allege a claim of simple negligence against

Corporal Biedlingmaier and MCPD. A choice of laws decision is not

necessary here because neither Maryland nor Virginia law would

recognize such a claim.

Maryland law would not recognize Plaintiffs’ negligence claim

for several reasons. First, police officers are entitled to public

official immunity. Public official immunity is a legal defense

available to certain limited classes of local government

employees. Dipino v. Davis, 354 Md. 18, 729 A.2d 354 (Md. Ct.

App. 1999).

In accordance with the doctrine of public

official immunity, a governmental actor enjoys

a certain public official immunity for his or

her non-malicious acts if it is determined

that: (1) he is a “public official,” and (2)

his tortious conduct occurred while he was

performing discretionary acts in furtherance

of his duties. Ashburn v. Anne Arundel County,

306 Md. 617, 622, 510 A.2d 1078 (Md. Ct. App.

1986) (quoting James v. Prince George's

County, 288 Md. 315, 418 A.2d 1173 (Md. Ct.

App. 1980)). Law enforcement officers are

public officials for the purposes of public

official immunity. Cooper v. Rodriguez, 443

Md. 680, 727, 118 A.3d 829 (Md. Ct. App. 2015).

The public official immunity police officers

enjoy in accordance with the doctrine frees

them from suit for their alleged negligent

acts. However, there is no immunity for any

alleged intentional torts or any alleged acts

committed with actual malice. Ashton v.

Brown, 339 Md. 70, 118, 660 A.2d 447 (1995).

McGowan v. Prince George's Cty., Maryland, 401 F.Supp.3d 564, 571–

72 (D.Md. 2019). “Actual malice is established by proof that the

officials intentionally performed an act without legal

justification or excuse, but with an evil or rancorous motive

influenced by hate, the purpose being to deliberately and willfully

injure the plaintiff.” Owen-Williams v. City of Gaithersburg, No.

10-cv-185-PJM, 2011 WL 53082, at *5 (D. Md. Jan. 7, 2011) (citing

Elliott v. Kupferman, 58 Md.App. 510, 526 (1999)). Gross

negligence can also defeat Maryland’s public official

immunity. Johnson v. Baltimore Police Dept., 452 F.Supp.3d 283,

298 (2020). Gross negligence is defined as

[A]n intentional failure to perform a manifest

duty in reckless disregard of the consequences

as affecting the life or property of another,

and also implies a thoughtless disregard of

the consequences without the exertion of any

effort to avoid them. Stated conversely, a

wrongdoer is guilty of gross negligence or

acts wantonly and willfully only when he [or

she] inflicts injury intentionally or is so

utterly indifferent to the rights of others

that he [or she] acts as if such rights did

not exist.

Cooper v. Rodriguez, 443 Md. 680, 708 (2015).

Second, county police departments are not separate entities

subject to suit. County police departments are agents of the

governmental entity and should not be viewed as separate legal

entities. Hines v. French, 157 Md. App. 536, 573, (2004). See

also Rhodes v. Montgomery Cnty. Dept. of Corrections and

Rehabilitation, No. 12-cv-03172-AW, 2013 WL 791208, at *6 (D.Md.

Mar. 1, 2013) (dismissing MCPD from lawsuit).

Third, counties have governmental immunity for tortious acts

of their employees, when the county is acting in its governmental

capacity. DiPino, 354 Md. at 47-48. “The operation by a county

of its police department is quintessentially governmental.” Clark

v. Prince George’s Cnty., 211 Md.App. 548, 558 (2013). See also

Devi v. Prince George’s Cnty., No. 16-cv-3790-DKC, 2017 WL 3592452,

at *2 (D.Md. Aug. 21, 2017) (reciting “deeply ingrained” principles

of governmental immunity in Maryland law and finding tort claims

against county for actions of police officers were barred).

Governmental immunity includes intentional tort claims based on

respondeat superior. Gray-Hopkins v. Prince George’s Cnty.,

Maryland, 309 F.3d 224, 234 (4th Cir. 2002) (“[Prince George’s

County] enjoys governmental immunity with respect to the claims

that seek to impose respondeat superior liability for an

intentional tort committed by [defendant police officer.]”)

(citing DiPino, 354 Md. at 47). See also Bearnarth v. Montgomery

Cnty., Md., No. 09-cv-0501-DKC, 2009 WL 10685439, at *5 (D.Md.

June 18, 2009) (finding fact that defendant police officer was not

entitled to public official immunity with respect to intentional

torts committed with malice, or that defendant county might have

to indemnify or pay judgment, did not mean county was without

governmental immunity with respect to direct liability for the

same torts).

Maryland law would not recognize a claim against Corporal

Biedlingmaier because he is protected by public official immunity,

and Plaintiffs have not alleged that Corporal Biedlingmaier acted

with malice—that he acted intentionally or deliberately to injure

them.5 Maryland law would also not recognize Plaintiffs’ claim

against the MCPD because the MCPD is a subordinate agency of

Montgomery County and thus not an entity subject to suit. See

Montgomery County Code §§ 1A-201 and 2-43. Finally, Maryland law

would not recognize Plaintiffs’ claim against Montgomery County

because (1) they have alleged no claim against Montgomery County

5 Likewise, Plaintiffs have not pleaded gross negligence.

While Plaintiffs assert the bald legal conclusion that

Corporal Biedlingmaier acted “recklessly,” they have supplied no

factual allegations to support this conclusion. At best, they

have alleged that Corporal Biedlingmaier should have drawn a

different conclusion from reviewing the surveillance

footage. Under neither Virginia nor Maryland law does such a

discretionary decision support the kind of intentional disregard

or recklessness necessary to support an allegation of gross

negligence. See Nero v. Mosby, 890 F.3d 106, 129 (4th Cir. 2018)

(holding plaintiffs’ facts did not support gross negligence where

the facts did not show that defendant knew that her statements

were false, and that plaintiffs’ mere disagreement with

conclusions defendant drew from evidence while investigating

plaintiffs did not show a reckless disregard of plaintiffs’

rights); Muse v. Schleiden, 349 F.Supp.2d 990, 1001 (E.D.Va. 2004)

(denying motion to amend and add gross negligence claim for

futility where police officer mistook color of traffic light

because he did not look directly at it and thus caused traffic

accident).

and (2) they only allege claims based on the actions of Montgomery

County’s police officers. Thus, Montgomery County would have

governmental immunity.

Under Virginia law, counties and county police departments

have sovereign immunity. Ligon v. Cnty. of Goochland, 279 Va.

312, 316 (2010) (“The same [sovereign] immunity principles apply

to counties, which are political subdivisions of the

Commonwealth.”); Harrison v. Prince William Cnty. Police Dept.,

640 F.Supp.2d 688, 712 (2009) (finding sovereign immunity barred

plaintiff’s state law claims against Prince William County and the

Prince William County Police Department because the alleged

negligent acts and intentional torts committed by police officers

were committed while officers were executing a search warrant—

i.e., performing police duties). Sovereign immunity immunizes

counties for both negligence and intentional torts committed by

their employees. See, e.g., Niese v. City of Alexandria, 264 Va.

230, 239-40 (2002) (holding municipalities immune from liability

for negligence associated with performance of “governmental”

functions, and from liability for intentional torts committed by

an employee during the performance of a governmental function).

Virginia law extends sovereign immunity to individual police

officers depending on the four Messina factors:

(1) The nature of the function performed by

the employee;

(2) The extent of the state’s interest and

involvement in the function;

(3) The state’s degree of control and

direction over the employee; and

(4) Whether the alleged act involved the use

of judgment and discretion.

Shafer v. Virginia, No. 6:20-cv-000044, 2021 WL 1156859, at *3

(W.D.Va. Mar. 26, 2021) (quoting Messina v. Burden, 228 Va. 301,

313 (1984)). Courts have repeatedly found that police officers

conducting official investigations and executing arrests meet

these requirements. See Shafer, 2021 WL 1156859, at *3 (finding

all four Messina factors met where police officers were carrying

out their duties investigating crimes and executing arrests);

Booker v. City of Lynchburg, No. 6L20-cv-00011, 2020 WL 4209057,

at *5 (W.D.Va. July 22, 2020) (granting motion to dismiss on simple

negligence claim asserted against city police officers); Cromartie

v. Billings, 298 Va. 284, 297-98 (finding Messina factors met when

officer executed arrest and that police officer would have been

entitled to sovereign immunity had the claim alleged against him

been simple negligence). “Virginia’s sovereign immunity doctrine

protects officers only for simple negligence.” Cromartie, 298

Va. at 297 (2020).

Virginia law would not recognize Plaintiffs’ claim because of

sovereign immunity. Moreover, Virginia would apply Maryland

immunity doctrines. See Catholic Diocese of Arlington Virginia v.

Commonwealth Transp. Com’r, 74 Va.Cir. 154 (2007) (applying

Maryland sovereign immunity in Virginia court as matter of comity);

cf. Franchise Tax Bd. of California v. Hyatt, 139 S.Ct. 1485, 1492

(2019) (“We . . . hold that States retain their sovereign immunity

from private suits brought in the courts of other States). Even

if Virginia law did not do so, Maryland choice of law analysis

would treat immunity law as procedural, and not substantive. Marks

v. Dann, No. 13-cv-0347-DKC, 2013 WL 8292331, at *9 (D.Md. July

24, 2013) (finding based on analysis of Maryland law that “even if

a plaintiff’s tort causes of action arise under another

jurisdiction’s law, a Maryland court would apply Maryland law to

determine whether a State employee was entitled to immunity[,]”

because statutory immunity is a threshold matter of whether the

court is open to a particular litigant).

Accordingly, Montgomery County and the MCPD are immune from

suit. Corporal Biedlingmaier would likewise be immune because he

was executing search and arrest warrants in his capacity as a

Montgomery County police officer, and because Plaintiffs have only

alleged a claim of negligence. Thus, neither Maryland nor Virginia

law would recognize Plaintiffs’ claim for negligence. The

negligence claim will be dismissed.

IX. Conclusion

For the foregoing reasons, Defendants’ motion to dismiss will

be granted. Plaintiffs have had several opportunities to clarify

and plead their claims. Many of the issues resolved in this

Memorandum were raised in response to the first amended complaint

and Plaintiffs failed to remedy the defects in the second amended

complaint. They have not sought leave to amend in their response

to this motion to dismiss. Accordingly, the dismissal is without

leave to amend.

/s/

DEBORAH K. CHASANOW

United States District Judge