Cannady v. Petticolas

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

VINCENT CANNADY, □

Plaintiff, *

y. te

CIVIL NO. JKB-21-0869

LAWRENCE JOSEPH HOGAN, JR, ,

GOVERNOR OF MARYLAND, et al.,

Defendants. *

te * * Xe x * x * te *

MEMORANDUM

Plaintiff Vincent Cannady has sued various Maryland officials, including Governor

Lawrence Joseph Hogan, Jr.; Scott G. Patterson, State’s Attorney for Talbot County; Stephen

Hughes Kehoe, Administrative Judge for Talbot County Circuit Court (collectively,

“Government Defendants”); and Public Defender Kisha Petticolas. Although Plaintiff has

alleged numerous constitutional and statutory violations and sought millions of dollars in

damages, he explains that his main goal in filing this lawsuit is “getting ADR with the State of

Maryland” in an unspecified state court litigation, (See ECF No. 3 at 2; see also Compl. at 5,

ECF No. 1 (seeking “Injnctive Relief of Court Ordered ADR in Liue of Payment for the

Violations, [or] ifno ADR then the Plaintiff seeks 9 million 9 hundred and 99 thoughsand for the

violations of Plaintiffs Civil Rights”).)! Currently pending before the Court is the Government

Defendants’ Motion to Dismiss the Complaint (ECF No. 8). The motion is fully briefed, and no

hearing is required. See Local Rule 105.6 (D. Md. 2021). For the following reasons, an Order

Quotations from Plaintiff's filings are reproduced verbatim.

shall issue granting the Government Defendants’ Motion to Dismiss and directing Plaintiff to

show proof of service on Petticolas.

I Factual Background

Plaintiff is a disabled veteran and resident of Missouri who describes himself as a “person

of color with Caucasian Ancestry but [who] the State Court of Maryland list[s] [ ] as Black while

he identifies with his Irish Ancestry.” (Compl. at 1, 9.) The nexus of Plaintiff’s allegations

appears to be an unspecified, ongoing criminal prosecution brought against him by the State of

Maryland (the “State Case”). (/d. at 4.) He alleges that this case was dismissed based on “an

ADA Nolle [Prosequi] Plaintiff submitted in 2019 April 22"4,” but was then subsequently

“reinstated on 090909.” (id.) Plaintiff has filed this lawsuit against various persons who are

involved in the State Case, and who he alleges “are working in collusion . . . to convict Plaintiff

of a crime that he did not commit.” (/d. at 15.) He has also brought claims against Governor

Hogan, which appear to derive from Governor Hogan’s supervisory role as the chief executive of

Maryland. (See id, at 8-10 (alleging, inter alia, that “Lawrence J. Hogan Jr. is the Chief

executive Officer of the State of Maryland and as such is responsible for the actions of the

agencies he controls”).) Plaintiff alleges that the Government Defendants’ actions have violated

the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, e¢. seg.; the Civil Rights Act

of 1964, 42 U.S.C. §§ 1981, ef. seg.; various constitutional amendments; and Title 38 of the U.S.

Code. (Ud. at 8.) Plaintiff principally seeks alternative dispute resolution (“ADR”) or mediation

with respect to the State Case, though he also alleges significant damages flowing from the

Government Defendants’ conduct. (/d. at 4; see also ECF No. 3 at 2.)

? The facts in this section are taken from the Amended Complaint and construed in the light most favorable to Plaintiff.

See fbarra vy. United States, 120 F.3d 472, 474 (4th Cir, 1997),

ID. Legal Standard

When “considering a motion to dismiss” pursuant to Federal Rule of Civil Procedure

12(b)(6), the Court must “accept as true all well-pleaded allegations and view the complaint in the

light most favorable to the plaintiff.” Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir.

2005). In addition, the Court must “construe pro se pleadings liberally . . . particularly if the pro

se plaintiff raises civil rights issues.” DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018)

(citations omitted).

Even though a pro se complaint is construed liberally, it must still “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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Igbal, 446

US. at 662. “A pleading that offers ‘labels and conclusions’ or .. . ‘naked assertion[s]’ devoid of

‘further factual enhancement’” will not suffice. Jd. (alteration in original) (quoting Twombly, 550

U.S. at 555, 557).

HE. Analysis’

Even with a liberal construction, the Court finds it challenging to effectively crystallize

Plaintiff's allegations into cogent claims. This is further complicated by the fact that Plaintiff has

not opposed the Government Defendants’ Motion to Dismiss, despite twice being provided

additional time to do so. (See ECF Nos. 12, 16.) However, for purposes of the pending Motion to

3 The gravamen of Plaintiff's Complaint appears to be that he is being maliciously prosecuted in the State Case,

allegedly because of his race. (See Compl. at 15.) Such a pleading would fail on its face because “a prima facie case

of malicious prosecution must include ... [a] termination of [the prosecution in a way that is] favorable to the plaintiff.”

Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (emphasis added). Here, it appears that the State Case is

ongoing, so a malicious prosecution claim is premature, However, because Plaintiff makes additional allegations, the

Court proceeds beyond this core claim to explain why Plaintiff has also failed to plead any other claims.

Dismiss, the Court discerns four analytically distinct claims from Plaintiff's Complaint: (1) a

generalized request for an injunction requiring the Government Defendants to engage in alternative

dispute resolution in the State Case; (2) a claim for money damages for violations of the ADA;

(3) section 1983 claims seeking money damages against the Government Defendants in their

official capacity; and (4) section 1983 claims seeking money damages against the Government

Defendants in their personal capacities.4 Each of these allegations “fail[s] to state a claim upon

which relief can be granted” by this Court because the Government Defendants are either immune

from suit for the alleged conduct or the requested relief exceeds this Court’s authority. See Fed.

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

A, Injunctive Relief

The Complaint seeks an injunction requiring the State of Maryland to engage in ADR or

mediation in the State Case. (Compl. at 5.) Plaintiff does not tie this requested injunctive relief to

any particular violation of his statutory or constitutional rights. However, the Court need not

attempt to make the connection between Plaintiff's alleged harm and requested relief because the

injunctive relief Plaintiff seeks exceeds the limits placed on this Court’s remedial authority by the

Anti-Injunction Act. See 28 U.S.C. § 2283.

The Anti-Injunction Act prevents “[a] court of the United States” from “grant[ing] an

injunction to stay proceedings in a State court except as expressly authorized by Act of Congress,

or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” Jd. This

prohibition extends to relief that has the “same effect as” a stay on proceedings or that has

“virtually the same practical impact as a formal injunction would.” Tucker v. Specialized Loan

4 Plaintiff also includes a passing reference to violations of Title 38 of the U.S. Code, which governs Veteran’s

Benefits. (See Compl. at 8-9.) Even under the most generous construction of the pleadings, the Court is unable to

identify the basis of, or any factual support for, these claims.

Servicing, LLC, 83 F. Supp. 3d 635, 641 (D. Md. 2015) (discussing the Anti-Injunction Act’s

application to a declaratory judgment claim). The Court sees no way in which it could grant

Plaintiff's requested injunctive relief and require the State of Maryland to engage in ADR in the

State Case without formally, or at least practically, staying the state court proceedings.

Accordingly, Plaintiff's request for injunctive relief is barred by the Anti-Injunction Act.°

B. Money Damages

Because the Court is unable to grant Plaintiff the injunctive relief that he seeks, it now turns

to his claims for money damages. (See Compl. at 5 (“[I]f no ADR then the Plaintiff seeks

[$9,999,000] for the violations of the Plaintiffs Civil Rights.”).) The Court concludes that all of

Plaintiff's claims for money damages are barred by either sovereign immunity or various forms of

personal immunity.

I, ADA Claims

Plaintiff's Complaint states that all of the Government Defendants’ conduct alleged in the

supplemental statement violates the ADA. (See id at 8-15.) However, the only conduct that

appears to stem from Plaintiff's disability in any way is his allegation that Judge Kehoe ordered

Plaintiff to appear in person in the State Case, despite Plaintiff's preexisting conditions that render

him susceptible to COVID-19. (/d. at 11.) The Court does not definitively resolve whether this

order would constitute an ADA violation, because the claim, as plead, is barred by judicial

immunity.

5 Further, granting an injunction requiring ADR in the State Case would also likely violate the comity principles

articulated by the Supreme Court in Younger v. Harris, 401 U.S. 37 (1971). These principles “plainly declare[] that

federal court equitable interference with state criminal proceedings should not be undertaken except in the most narrow

and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir, 1996). The Court finds that no

part of Plaintiff's pleadings suggests that such extraordinary circumstances are present, except for allegations that are

too speculative and conclusory to justify setting aside the “premise that ordinarily a pending state prosecution provides

the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Jd. at 904 (internal

quotations marks and citation omitted). Thus, the Court believes federal intervention in the State Case would be

premature and unfounded for this additional reason.

“The doctrine of judicial immunity extends, of course, to judges” and is “designed to

protect the judicial process.” Williams v. Hanlon, Civ. No. RDB-19-0550, 2019 WL 1597320, at

*3 (D. Md. Apr. 15, 2019). Judicial immunity “protects a judge from damages suits entirely . . .

even if the judge commits grave procedural errors.” Mireles v. Waco, 502 U.S. 9, 11 (1991) (per

curiam). There are two exceptions to judicial immunity: (1) “a judge is not immune from liability

for nonjudicial actions,” and (2) “a judge is not immune for actions, though judicial in nature,

taken in the complete absence of ail jurisdiction.” Jd. at 11-12.

Here, Plaintiff alleges that Judge Kehoe violated the ADA by entering an order in the State

Case requiring that Plaintiff appear in person to discharge his court-appointed public defender.

Such an action falls squarely within both Judge Kehoe’s judicial role and the jurisdiction of the

Circuit Court of Talbot County. See Mp. CoDE ANN., CTs. & JuD. Proc. § 1-501 (providing that

a circuit court possesses “full common-law and equity powers and jurisdiction in all civil and

criminal cases within its county, and all additional powers and jurisdiction conferred by the

Constitution and by law, except where by law jurisdiction has been limited or conferred

exclusively upon another tribunal”). Accordingly, Judge Kehoe is entitled to judicial immunity

with respect to Plaintiff's ADA claim.

2. Official Capacity § 1983 Claims

The Court now turns to Plaintiff's constitutional claims, which allege repeated violations

of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. Construed

broadly, the pleadings appear to allege both official-capacity and personal-capacity § 1983 claims

against the Government Defendants. (See, e.g., Compl. at 12 (alleging claims against “Stephen J.

Leyhoe in his Official and UN-Official Capacity”).) The Government Defendants assert that

Plaintiffs official-capacity claims are barred by sovereign immunity. The Court agrees.

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.” Criscione v. U.S. Nuclear Regul. Comm’n, 493 F. Supp. 3d 423, 430 (D. Md.

2020); see also United States v. Wilson, 699 F.3d 789, 793 (4th Cir. 2012) (“Subject matter

jurisdiction defines a court’s power to adjudicate cases or controversies—its adjudicative

authority—and without it, a court can only decide that it does not have jurisdiction.”), A state’s

sovereign immunity derives from the Eleventh Amendment, which provides that “[t]he 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

Subject of any Foreign States.” U.S. Const. amend. XI, “The ultimate guarantee of the Eleventh

Amendment is that nonconsenting states may not be sued by private individuals in federal court.”

Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). This immunity extends to

actions “against state officials that are in fact actions against the state as the real party in interest.”

Wicomico Nursing Home v. Padilla, 910 F.3d 739, 746 (4th Cir. 2018). The state is the real party

in interest when state officers are sued under § 1983 in their official capacity, and therefore “the

immunities available to the defendant in an official-capacity action are those that the governmental

entity possesses.” Hafer v. Melo, 502 U.S. 21, 25 (1991).

These principles bar Plaintiffs official-capacity claims, which effectively seek money

damages against the State of Maryland. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989) (“[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.”). These claims will therefore be dismissed for lack of subject matter jurisdiction.

All three Government Defendants are state officials. See MD. CODE. ANN., STATE GOV’T § 12-101(a).

3. Personal Capacity § 1983 Claims

Construing Plaintiffs claims as being brought against the Government Defendants in their

personal capacities fares no better. “While the defense of sovereign immunity is unavailable to

those sued in personal-capacity suits, defenses of absolute or qualified immunity may still be

available.” DeLong v. LR.S., 908 F.2d 966, at *1 (4th Cir. July 10, 1990) (table). Here, all three

Government Defendants may avail themselves of either absolute or qualified immunity to defeat

Plaintiff's personal-capacity claims.

a. Judicial Immunity

For similar reasons to those stated above, Plaintiff's constitutional claims against Judge

Kehoe are barred by judicial immunity. See supra Part III.B.1. Like Plaintiff's ADA claims,

Plaintiffs constitutional claims against Judge Kehoe are complaints as to Judge Kehoe’s handling

of the State Case that are foreclosed by judicial immunity. (See Compl. at 11-12 (alleging

constitutional violations based on Judge Kehoe’s refusal to transfer case; appointment of a public

defender for Plaintiff; and denial of Plaintiff's motion to dismiss the State Case).) Although

Plaintiff speculates that Judge Kehoe’s orders were entered as part of a conspiracy among the

Government Defendants to “convict Plaintiff of a crime that he did not commit” (Compl. at 15}—

an allegation that would likely not be covered by judicial immunity—Plaintiff offers no allegations

that are probative of that conspiracy, and accordingly fails to state a claim that is not subject to

judicial immunity. See Twombly, 550 U.S. at 556-57 (“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.”).

6. Prosecutorial Immunity

State’s Attorney Patterson is similarly protected by prosecutorial immunity, which is

“based on the same considerations as the doctrine of judicial immunity” and provides that

“prosecuting attorneys enjoy absolute immunity when performing prosecutorial functions, as

opposed to investigative or administrative ones.” Westfall v. Tichnell, Civ. No. GJH-20-0271,

2021 WL 2434432, at *3 (D. Md. June 15, 2021). Here, Plaintiff claims that State’s Attorney

Patterson has violated his constitutional rights by “refusing ADR and to acknowledge that the

[State Case] was dismissed under a Nolle Prosecui.” (Compl. at 13.) A prosecutor’s “decision to

file charges” is entitled to absolute prosecutorial immunity, so these claims fail. Kalina v. Fletcher,

522 U.S. 118, 130 (1997).

Absolute immunity also extends to a prosecutor’s negotiations of a plea agreement, because

these functions are “intimately associated with the judicial phase of the criminal process.”

Hamilton v, Min. Cnty, W. Va., Civ. No. OJA-16-10562, 2017 WL 9517521, at *4 (S.D.W. Va.

Mar. 29, 2017) (quoting Jmbler v. Pachtman, 424 U.S. 409, 430 (1976)) (collecting cases). This

Court finds no meaningful distinction between those cases and the present one, in which Plaintiff

claims that State’s Attorney Patterson has refused to engage in negotiations aimed at identifying

alternative means for resolving the State Case.’ Patterson’s “activities [were] intimately associated

with the judicial phase of the criminal process, and thus [were] functions to which the reasons for

absolute immunity apply with full force.” Jmbler, 424 U.S. at 430. State’s Attorney Patterson is,

7 Plaintiff asserts that State’s Attorney Patterson’s refusal to participate in such negotiations stems from racial animus.

(See Compl. at 13.} Plaintiffhas completely failed to substantiate this serious allegation, so the Court will not consider

whether, if pleaded properly, such an allegation would be sufficient to vitiate absolute prosecutorial immunity. See

Vanover v. Hirsch, Civ. No. TER-14-0277, 2014 WL 12526345, at *3 (D.S.C. Apr. 2, 2014) (“Moreover, even if [ ]

the lack of any indication of race or class-based discrimination did not completely bar Plaintiffs Complaint, to the

extent that it seeks damages for alleged “unjust incarceration” from Richland County Assistant Solicitor Hirsch, it is

barred by the well-established legal doctrine of prosecutorial immunity.”).

therefore, entitled to prosecutorial immunity with respect to Plaintiff's personal-capacity § 1983

claims.

c. Qualified Immunity®

Last, Plaintiff's claims against Governor Hogan fail under the doctrine of qualified

immunity, which “shields government officials performing discretionary functions from personal-

capacity liability for civil damages under § 1983, insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th Cir. 2013) (internal quotation marks and

citation omitted). Qualified immunity protects government officials unless they are “plainly

incompetent or knowingly violate the law.” Jd. (internal quotation marks and citation omitted).

Plaintiff's ostensible constitutional claims against Governor Hogan are (1) that he failed to

remedy the “woeful state of he State of Maryland’s roads . . . prior to the Plaintiff's auto accident;”

(2) that he “targeted [P]laintiff for criminal prosecution even though he has no criminal record of

convictions;” and (3) that he “did not protect veterans from illegal prosecutions by instituting a

law that allows Veterans to seek veterans Court BEFORE a conviction.” (Compl. at 9-10.) While

the Court is extremely skeptical that these unsubstantiated allegations articulate constitutional

claims at all, the Court is certain that they do not articulate violations of “clearly established

constitutional rights.” Occupy Columbia, 738 F.3d at 118 (emphasis added).

As an initial matter, “[t]o determine whether a right was clearly established, the court first

must define the right at issue,” because “[a] right is clearly established only if its contours are

Governor Hogan also suggests that he is entitled to public official immunity. (See Mot. Dismiss Mem. Supp. at 10—

11, ECF No. 8-1.) However, public official immunity in Maryland is “generally applicable only in negligence actions

or defamation actions based on allegedly negligent conduct” and “is defeated if the actor . . . commits a state

constitutional tort.” Johnson v. Balt, City Police Dep't, 452 F, Supp. 3d 283, 297-98 (D. Md. 2020). Here, the Court

does not believe that public official immunity applies to Plaintiff's Complaint, but because it concludes that Governor

Hogan is entitled to qualified immunity, it need not definitively resolve this issue.

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sufficiently clear that a reasonable official would understand that what he is doing violates that

tight.” Saltz v. City of Frederick, Md., Civ. No. ELH-20-0831, 2021 WL 1856636, at *25 (D. Md.

May 10, 2021); see also Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (citation omitted)

(“To be clearly established, a legal principle must have a sufficiently clear foundation in then-

existing precedent. The rule must be ‘settled law.’”). Here, Plaintiff's allegations fail to show that

Governor Hogan violated “clearly established” law, particularly because “courts are not to define

clearly established law at a high level of generality.” Wilson v. Prince George’s Cnty, Md., 893

F.3d 213, 221 (4th Cir. 2018) (internal quotation marks and citation omitted). Even providing the

Complaint with its most generous construction, the Court is unable to disentangle if and how

Plaintiff's allegations against Governor Hogan constitute violations of the “4th, 5th, 6th and 14th

Amendments.” (Compl. at 11-12.) However, given the Supreme Court’s insistence that “lower

courts should think hard and then think hard again, before addressing both qualified immunity and

the merits of an underlying constitutional claim,” this Court need not continue with a more granular

parsing to confirm its suspicion that these claims are substantively meritless. Wesby, 138 S. Ct. at

589 n.7. Suffice it to say that any constitutional claims against Governor Hogan that could be

derived from these pleadings would not be based on violations of Plaintiffs “clearly established”

constitutional rights. Jd. at 589.

C. Claims Against Petticolas

The dismissal of Plaintiff's above claims leaves intact only his claims against Petticolas,

who has not moved to dismiss, and has apparently not entered an appearance in this case. Further,

the record is unclear as to whether and when service was effectuated on Petticolas. For instance,

in Plaintiff's Motion to Amend the Complaint, Plaintiff notes that he “has not served the

Defendants yet due to his hopes of getting ADR with the State of Maryland.” (See ECF No. 3 at

11

2.) This record, combined with the fact that Petticolas is the only defendant who has failed to

appear in this case, raises concerns that Petticolas may have been served improperly or not served

at all. Accordingly, before the Court will permit Plaintiff to move forward with his claims against

Petticolas, Plaintiff must confirm that Petticolas is aware of those claims. Plaintiff is therefore

directed to show proof that the Complaint was served on Petticolas within thirty (30) days.

IV. Conclusion

For the foregoing reasons, an Order will issue granting the Government Defendants’

Motion to Dismiss the Complaint (ECF No. 8) and directing Plaintiff to show proof of service on

Defendant Petticolas within thirty (30) days.

DATED this □□ day of July, 2021.

BY THE COURT:

KQDame 1

James K. Bredar

Chief Judge

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