Mathis v. McDonough

• Decision Date: 07 August 2014
• Docket Number: Civil Action No. ELH-13-2597
• Parties: JERRY J. MATHIS, Plaintiff, v. JOHN P. MCDONOUGH, et al., Defendants.
• Court: U.S. District Court — District of Maryland

JERRY J. MATHIS, Plaintiff, v. JOHN P. MCDONOUGH, et al., Defendants.

Civil Action No. ELH-13-2597

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

August 7, 2014

MEMORANDUM OPINION

Plaintiff Jerry J. Mathis, who is self-represented, filed suit, individually and as a representative of the organization Citizens for Change, against various Maryland public officials and employees.¹ In particular, plaintiff raises claims pursuant to 42 U.S.C. § 1983 et seq. against several defendants in their individual and official capacities: Secretary of State John P. McDonough; Assistant Attorney General Kathleen E. Wherthey; Attorney General Douglas F. Gansler; State Senator C. Anthony Muse; Deputy L. Berryman of the Prince George's County Sheriff's Department; Jared DeMarinis, a Director of the Maryland Board of Elections; and Prince George's County Circuit Court Judge Larnzell Martin, Jr. See ECF 1 ("Complaint").² Plaintiff's suit arises from his candidacy for the County Council in Prince George's County, Maryland, in the 2010 Democratic primary election, held on September 14, 2010. His centralallegation is that defendants violated his constitutional rights by interfering during the primary campaign with the distribution of a particular sample ballot (the "Sample Ballot").

The Complaint contains four counts: (1) Count I, brought pursuant to 42 U.S.C. § 1983, alleging "Deprivation of Constitutional Rights under Color of State Law," including plaintiff's rights under the First, Fourth, Sixth, and Fourteenth Amendments of the U.S. Constitution, and which cites alleged acts of defendants McDonough, Wherthey, Gansler, Muse, Berryman, and Judge Martin; (2) Count II, brought pursuant to "42 U.S.C. § 1983-1996," alleging "Civil Conspiracy to Interfere with Constitutional Rights under color of state law in violation of Plaintiff's rights [under the] 1^st, 6^th and 14^th Amendment," and which cites acts of defendant Gansler; (3) Count III, brought pursuant to 42 U.S.C. § 1983, alleging "Selective Treatment under Color of State Law and Equal Protection of the Law, 14^th Amendment to the United States Constitution guaranteeing Equal Protection of the Law," and which cites acts of defendants DeMarinis and Gansler; and (4) Count IV, brought pursuant to 42 U.S.C. § 1983, alleging "Violation of 14^th Amendment to the United States Constitution guaranteeing DUE PROCESS OF LAW," based upon a "Lack of Jurisdiction to Prosecute - Administrative and Investigative Misconduct," and which cites acts of defendant Gansler.³

In an Order dated September 11, 2013 (ECF 2), Judge Williams dismissed Judge Martin as a defendant, sua sponte, on the ground that Judge Martin was entitled to judicial immunity in connection with "actions taken in his capacity as a state court judge." See id. at 1-2 & n.1 (citing Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). In a Memorandum Opinion of October 11,2013, Judge Williams denied plaintiff's motion seeking reconsideration of Judge Martin's dismissal. See ECF 7 at 4-10; Mathis v. Martin, 2013 WL 5609134, at *3-6 (D. Md. Oct. 11, 2013).

Now pending is defendants' Motion to Dismiss the Complaint (ECF 9), to which they have attached a supporting memorandum (ECF 9-2, "Memorandum" or "Mem.") (collectively, the "Motion"). Plaintiff opposes the Motion (ECF 11, "Opposition" or "Opp."), and defendants have replied (ECF 12, "Reply"). With leave of court, plaintiff also filed a surreply (ECF 15, "Surreply"). No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will grant the Motion.

I. Background⁴

In 2010, plaintiff sought the Democratic nomination for a seat on the Prince George's County Council for District 8. Complaint ¶¶ 11, 13; id. Exh. D (ECF 1-4). Plaintiff was defeated in the Democratic primary election by Obie Patterson. Complaint ¶ 13.

During the primary campaign, plaintiff, in his capacity "as a representative of the community group, Citizens for Change," "participated in the production and distribution" of the Sample Ballot, a copy of which is attached to the Complaint. See id. Exh. D; see also Complaint¶ 31. The Sample Ballot purported to be the "Official Democratic Ballot" for the 26th District, Prince George's County, and states, in small type, "By Authority, Citizens for Change, Charles Summers, Treasurer." See Complaint Exh. D. In the Complaint, plaintiff asserts that he "has been an outspoken critic of slate and sample ballot tactics used by the Democratic political machine as a tool to mislead voters and ensure their odds of winning elections. Plaintiff's production of the sample ballot with alternative candidates for office was purposely designed to change the dynamics of how the Democratic machine intentionally misled voters for the machine's preferred candidates." Complaint ¶ 11.

Some allegations pertain to an incident that occurred at the Oxon Hill library in Prince George's County, where early voting was taking place for the primary election. One news article characterized the incident as a "heated confrontation," involving several candidates and their supporters. See Complaint ¶¶ 54-66; id. Exh. E. This portion of plaintiff's allegations focuses on the conduct of two defendants: Senator Muse and Deputy Berryman. Although the Complaint alleges that the incident occurred "[o]n or about . . . September 13, 2010," see Complaint ¶ 62, apparently the incident took place on September 6, 2010.⁵

With respect to the Oxon Hill library incident, Senator Muse is alleged to have "ordered Plaintiff and his supporters to cease distribution of Plaintiff's sample ballots under threat of lawenforcement intervention." Complaint ¶ 55. Senator Muse, purportedly acting "under color of law," also "summoned the Prince George's County Police Department and Sheriff's Department to harass Plaintiff and his supporters," and ordered Sheriff's deputies "to confiscate the Sample Ballot and intimidate Plaintiff's supporters under threat of arrest to cease and desist distribution of Plaintiff's sample ballot." Id. ¶¶ 56-57. Moreover, "[u]nder the direction of" Senator Muse, the Sheriff's deputies "intimidated Plaintiff and his supporters by confiscating their literature and their ID[s], while questioning their citizenship" and threatening them "with arrest if they refused to stop distributing Plaintiff's sample ballot." Id. ¶ 58 (identifying supporters as "primarily of Filipino de[s]cent"). According to plaintiff, Senator Muse's actions "violated Plaintiff's constitutional rights guaranteed by the 1^st, 4^th, 6^th, and 14^th Amendments to the United States Constitution." Id. ¶ 59.

As for Deputy Sheriff Berryman, plaintiff alleges that she violated those same constitutional rights in connection with the incident of September 6, 2010. See Complaint ¶¶ 61-66. According to plaintiff, Deputy Berryman "ordered Plaintiff and his supporters to cease the distribution of Plaintiff's sample ballot under threat of arrest or retribution"; "intimidated Plaintiff and his supporters by confiscating their ID[s] and questioning their citizenship"; and threatened them "with arrest if they violated the deputies' orders to cease and desist distribution of Plaintiff's sample ballot." Id. ¶¶ 61-64. However, plaintiff does not allege that either he or his supporters were placed under arrest.

With respect to several other alleged statements by Senator Muse on which plaintiff relies, the Complaint is ambiguous (at best) as to whether plaintiff is asserting that Muse made those statements during the course of the Oxon Hill library incident on September 6, 2010. Inthis regard, plaintiff alleges that Senator Muse objected to the Sample Ballot, publicly accusing plaintiff "of fraud and other violations of the law" while insisting that "only he as the Senator was authorized to produce and distribute a sample ballot." Complaint ¶ 54. See also id. ¶ 12. According to a news article attached to the Complaint, Senator Muse asserted that the Sample Ballot "'deceives the voters'" and was "'illegal,'" violating "'election law and many other laws, including mail fraud.'" Complaint Exh. E (ECF 1-5) at 2 (quoting Muse). The article states that Muse believed that, as a State senator, only he was authorized to issue official ballots for his district. Id. at 1.

On September 7, 2010, Secretary of State McDonough, allegedly "at the request of" Attorney General Gansler, "filed an emergency motion for a temporary restraining order and injunctive relief in the Circuit Court for Prince George's County against Plaintiff and Citizens for Change . . . to cease and desist the production and distribution of Plaintiff's campaign sample ballot." Complaint ¶ 24. See id. Exh. C (ECF 1-3, "Emergency Motion for Temporary Restraining Order and Injunctive Relief," the "TRO Motion"). The TRO Motion asserted, "falsely and erroneously," that the Sample Ballot was "fraudulent," "false," and "misleading." Complaint ¶ 29. According to plaintiff, McDonough relied on "fabricated, misleading, unsubstantiated and undeniably false accusations" in bringing the TRO Motion. Complaint ¶ 25; see generally id. ¶¶ 23-36.

Plaintiff raises similar allegations against Assistant Attorney General Wherthey, who "by her signature authored the motion" seeking the restraining order. Complaint ¶ 39; see generally id. ¶¶ 37-47. Ms. Wherthey, by signing the motion, allegedly "became a complaining witness rather than a prosecutor" and thus "is not entitled to absolute immunity." Id. ¶ 40. See also id.¶ 47. Further, plaintiff alleges that Attorney General Gansler, "as the supervising authority" of Wherthey, is "jointly responsible for all constitutional violations" that she allegedly committed. Id. ¶ 50.

Judge Martin issued a temporary restraining order (the "TRO") on September 7, 2010, which prevented plaintiff and others acting under his supervision from distributing the Sample Ballot. Complaint ¶ 15; id. Exh. B (ECF 1-2, copy of the TRO). The TRO stated that the "order is being...