Fether v. Frederick Cnty.

NANCY FETHER, as Personal Representative for the Estate of Justin Michael Lihvarchik, Plaintiff,

v.FREDERICK COUNTY, MARYLAND, et al. Defendants.

Civil No. CCB 12-1674

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Date: March 29, 2013

MEMORANDUM

Plaintiff Nancy Fether, as personal representative of the estate of Justin Michael Lihvarchik (the "Estate" or "plaintiff"), brought this action against the following defendants: Frederick County, Maryland (the "County"); Sheriff Charles Jenkins; Frederick County Detention Center officers Jessie Burris, Ryan Harris, Orlando Rosa, and Gilbert Sackett; and "John and Jane Does 1-10" (collectively, the "defendants"). In its first amended complaint, the Estate seeks a declaratory judgment that the instant lawsuit is not barred by res judicata, as well as relief for survival claims under 42 U.S.C. § 1983 and the Maryland Declaration of rights, and relief for two state common law tort claims. Now pending before the court is defendants' motion to dismiss the first amended complaint. (ECF No. 12.) The issues have been fully briefed, and the court finds no hearing is necessary. See Local Rule 105.6. For the reasons stated below, defendants' motion to dismiss will be granted in part and denied in part.

BACKGROUND

The following facts are alleged by the Estate in its first amended complaint and arise out of Justin Lihvarchik's arrest and subsequent suicide on June 10, 2009, while he was in custody at the Frederick County Detention Center (the "Detention Center"). (See ECF No. 12.)

I. Factual Background

On the evening of June 9, 2009, Mr. Lihvarchik became intoxicated while attending a gathering at a friend's home. (Am. Compl. ¶¶ 43-44.) After the gathering, Mr. Lihvarchik returned to his basement apartment in Sabillasville, Maryland, where he continued to drink alcohol with his girlfriend and his landlord. (Id. ¶ 45.) Mr. Lihvarchik's landlord observed that Mr. Lihvarchik "was very intoxicated and may have been under the influence of drugs." (Id. ¶ 46.) Mr. Lihvarchik subsequently began threatening suicide, holding a steak knife and a pizza cutter to his throat. (Id. ¶¶ 49-50.) This caused "visibly apparent redness, bleeding, and scarring" on his neck. (Id. ¶ 51.) Mr. Lihvarchik's girlfriend and his landlord got the steak knife and pizza cutter away from him and retreated to a small bathroom in the house. (Id. ¶ 52.) Mr. Lihvarchik then entered the bathroom and knocked his girlfriend and his landlord into the bathtub. (Id. ¶ 53.) He subsequently left the house, entered his vehicle, and rammed it repeatedly into a dirt embankment in the driveway. (Id. ¶¶ 53-54.) Mr. Lihvarchik attempted to reenter the residence, but his girlfriend and his landlord locked the doors and called the police. (Id. ¶¶ 55-56.) During the 911 call, Mr. Lihvarchik's landlord informed the police dispatcher of Mr. Lihvarchik's erratic behavior and attempts to harm himself. (Id. ¶¶ 56-59.)

According to the first amended complaint, the Frederick County Sheriff's Deputies who responded to the scene were informed of Mr. Lihvarchik's behavior and his attempts to harm himself. (Id. ¶¶ 60-63.) At about 2:30 a.m. on the morning of June 10, 2009, Mr. Lihvarchikwas taken by Sheriff's Deputies to the Detention Center "where he was booked and placed alone and unsupervised in a cell." (Id. ¶ 64.) No psychiatric or medical treatment was provided to Mr. Lihvarchik. (Id. ¶¶ 65-66.) Defendants Burris and Rosa "conducted a pro-forma medical screening/assessment" of Mr. Lihvarchik, "but disregarded his mental health and the cut [he] had made to his own neck." (Id. ¶ 67.)

Between approximately 2:30 a.m. and 5:37 a.m. on June 10, 2009, Mr. Lihvarchik was left alone in his holding cell with no one checking on his status. (Id. ¶ 68.) The first amended complaint alleges that Detention Center officers, including defendants Harris and Sackett, were required by Detention Center policy to check on Mr. Lihvarchik at least every twenty minutes. (Id. ¶ 69.) These officers, however, allegedly falsified logs showing that they had checked on Mr. Lihvarchik every twenty minutes. (Id. ¶ 70.) Instead of checking on inmates and detainees, including Mr. Lihvarchik, the first amended complaint alleges that defendants Harris and Sackett were using a computer in their office to participate in a fantasy baseball league. (Id. ¶ 71.) "At or about 5:37 a.m., a correctional officer conducting the feeding process for the Holding Unit inmates found [Mr. Lihvarchik] dead in his cell, where he had hanged himself with his shoelaces from the top bunk" in his holding cell. (Id. ¶ 73.) Mr. Lihvarchik was survived by his parents— Nancy Fether and Francis Lihvarchik—as well as his minor child, "C.L." (See id. ¶¶ 37, 85.)

II. Procedural Background

After his death, Mr. Lihvarchik's parents "contacted Frederick County attorney Richard Bricken ... regarding the possibility of pursuing appropriate civil claims." (Am. Compl. ¶ 85.) In August 2009, Mr. Bricken sent notices of claims to: John Mathias, Office of County Attorney; Commissioner Jan H. Gardner, Office of County Commissioner; Frederick County Sheriff Charles A. Jenkins; and Nancy K. Kopp, State Treasurer of Maryland. (Id. ¶ 86.) The August2009 notices of claims were sent on behalf of Francis Lihvarchik, individually and on behalf of his grandson, C.L., and Nancy Fether, individually and on behalf of her grandson, C.L. (Def.'s Mem. Mot. Dismiss, Ex. A.)

By November 2009, Ms. Fether had gained full legal custody of C.L., and Mr. Bricken therefore sent new notices of claims on behalf of Ms. Fether "in her capacity as guardian of C.L." (Am. Compl. ¶ 87.) In response to the notices of claims, "Frederick County's insurer offered $50,000 in settlement of the wrongful death claims that [Mr.] Lihvarchik's relatives might bring." (Id. ¶ 88.) On November 17, 2009, both of Mr. Lihvarchik's parents signed "renunciations" of their right to bring a wrongful death claim, choosing instead to assign their rights to Mr. Lihvarchik's minor child, C.L. (Id. ¶ 89, Ex. C.) Subsequently, on February 19, 2010, Ms. Fether signed a "Custodian and Guardian's Release and Indemnity Agreement" in her capacity "as sole and Legal Custodian of [C.L.], a minor." (Id. ¶ 90, Ex. D.) Because C.L. was a minor, Ms. Fether filed a "friendly suit" complaint on February 24, 2010 in the Circuit Court for Frederick County, seeking approval of the settlement reached with Frederick County on C.L.'s behalf. (See Def.'s Mem. Mot. Dismiss, Ex. B.) On March 25, 2010, the circuit court entered an order approving the settlement. (Id., Ex. C.) The parties subsequently entered into a stipulation of dismissal with prejudice. (Id., Ex. D.)

On February 12, 2012, Ms. Fether filed a petition in Frederick County to be appointed as the personal representative of Mr. Lihvarchik's estate. (Am. Compl. ¶ 15.) Ms. Fether's petition was granted on March 7, 2012, by the Register of Wills for Frederick County. (Id., Ex. D.) As the Estate's personal representative, Ms. Fether brought this action seeking a declaratory judgment that the instant lawsuit is not barred by res judicata, as well as relief for survivalclaims under 42 U.S.C. § 1983 and the Maryland Declaration of rights, and relief for two state common law tort claims.

ANALYSIS

I. Legal Standard

"[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks and alterations omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true," and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).

To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted). Thus, the plaintiff's obligation is to set forth sufficiently the "grounds of his entitlement to relief," offering more than "labels and conclusions." Id. (internal quotation marks and alterations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complainthas alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)).

II. Res Judicata

Defendants have moved to dismiss the Estate's first amended complaint in its entirety, arguing that the dismissal with prejudice of the February 24, 2010 "friendly suit" bars the instant lawsuit on res judicata grounds. This court must apply Maryland law in deciding the preclusive effect of the dismissal of the "friendly suit." See Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 162 (4th Cir. 2008) ("Generally, the preclusive effect of a judgment rendered in state court is determined by the law of the state in which the judgment was rendered."). As explained below, the requirements for res judicata under Maryland law have not been established here.

"It is well established that the doctrine of res judicata bars the relitigation of matters previously litigated between parties and...