# Cannady v. Petticolas

> District Court, D. Maryland · July 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10649426

## Case

- **Court:** District Court, D. Maryland
- **Decided:** July 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10649426

## How later opinions describe it (automated extraction)

- discussing the Anti-Injunction Act’s application to a declaratory judgment claim

## Opinion text

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.
10

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

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10649426. Public record. Not legal advice.