Glover v. Patterson et al

ETHAN GLOVER,
Plaintiff,
V.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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* 	Civil No. 25-1679-BAH
BRIAN PATTERSON ET AL.,
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Defendants.
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MEMORANDUM OPINION
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Plaintiff Ethan Glover ("Glover" or "Plaintiff') brought suit in the Circuit Court for
Baltimore City against two Federal Bureau of Investigation ("FBI") Task Force Officers, Brian
·Patterson ("Patterson") and Jared Stem ("Stem"), in their individual and official capacities
(collectively "Defendants"). ECF 1 (notice of removal); ECF 5 (original complaint). Defendants
removed the action to this Court pursuant to 28 U.S.C. § 1331. See·ECF 1. 	Glover's operative
·complaint contains one Bivens1 count arising out of Defendants' investigation into Glover for theft
of government property and making false statements to law enforcement. 	ECF 14 (amended
complaint). Pending before the Court is Defendants' motion to dismiss. ECF 17. Glover filed an
.opposition, ECF 20, as well as a motion to strike the affidavits attached to Glover's opposition,2
ECF 21. Defendants filed a reply, ECF 26, and Glover filed a motion for leave to file a surreply,
1 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
2 Because the Court concludes that the operative complaint should be dismissed on bases unrelated
to Glover's motion to strike, the Court denies that motion as moot.
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ECF 29. All filings include memoranda of!aw and most include exhibits.3 The Court has reviewed
all relevant filings and finds that no hearing is necessary. 	See Loe. R. 105.6 (D. Md. 2025).
Accordingly, for the reasons stated below, Glover's motion to strike is DENIED as moot, Glover's.
motion to file a surreply is DENIED,4 and Defendants' motion to dismiss is GRANTED.
However, Glover will be granted leave to amend his complaint to re-assert any 42 U.S.C. § 1983
claim(s) against Defendants within 21 days of the issuance of this opinion and the implementing
order to follow.
I. 	BACKGROUND
A. 	Factual Background
The Court accepts as true all well-pleaded facts in Glover's complaint and draws all
reasonable factual, inferences in his favor. 	See Vital, S.A. v. Primerose Shipping Co., 708 F.3d
527, 539 (4th Cir. 2013). 	At all times relevant to the complaint, Patterson and Stem worked as
officers for the Baltimore Police Department ("BPD") and were on assignment with the Public
Integrity Section of the FBI as Task Force Officers ("TFO"). 	ECF 14, at 212. Glover is also a
former BPD officer, and he was assigned as a TFO for the Drug Enforcement Agency's ("DEA's")
Group 51, a unit q:sponsible for investigating violent drug traffickers. Id. at 1-2 1 1._ Defendants·
investigated Glover for theft of government property and making false statements to federal law
enforcement related to the illegal conduct "of the infamous Gun Trace Task Force," or "GTTF,"
3 The Court references all filings by their respective ECF numbers and page numbers by the ECF-
generated page numbers at the top of the page.
4 Though surreplies are generally not permitted under Local Rule 105.2(a), "the Court in its
discretion may allow a party to file a surreply." Boland v. Amazon.com Sales, Inc., 628 F. Supp.
3d 595, 599 (D. Md. 2022) (citation omitted). "This discretion is typically used in the interest of
fairness to permit parties to respond to new matters raised for the first time in the opposing parties'
reply briefs." Id. Because Glover will have an opportunity to respond to the arguments Defendants
assert in reply by 1way of opposition to any future motion to dismiss a second amended complaint,
the Court denies rover leave to file a surreply here.
2
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which was "led by the infamous BPD Officer, Wayne Jenkins." Id. at 4 ,r 6. Defend!Ults apparently
believed Glover "had purloined monies seized in a drug bust/raid" carried out by members of the
'GTTF. 	Id. 	Defendants' investigation of Glover included the swearing out and execution of a
search warrant at Glover's home. Id.
Glover argues that Patterson made "false & misleading allegations" about Glover's
·involvement with the GTTF on December 4, 2020 in his swearing out of the search warrant for
Glover's house. 	Id. 	Glover alleges that Patterson "knew that Plaintiff had never been a part of
GTTF," knew that Glover and Jenkins "were merely classmates in the police academy," "knew
-that Plaintiff only three times in his entire career responded to addresses where Jenkins was
present," "knew that each time Plaintiff responded, it was a part of his official duties as a DEA
Task Force Officer," and "knew that Plaintiff was called to testify against Jenkins" in Jenkins'
.criminal trial for police corruption. Id. ,r 7. Glover also alleges that Patterson "knew that no illegal
activity or police wrongdoing directed at Plaintiff were alleged to have occurred at any of those
three locations or during any of the aforementioned three times," including any suspected
misappropriation of money. Id. at 5 ,r,r 8-9.
Defendants also allegedly relied on evidence "from an un-vetted and unverified, single-
occasion confidential informant, Kimberly Campbell," and Glover avers Defendants "knew that
Campbell had a motive to be untruthful as she was Plaintiffs openly and notoriously disgruntled
ex-lover" and they were in an "ongoing child custody dispute." Id. at 5 ,r JO, at 6 ,r 14. Campbell
told Defendants that in April of 2016 "Plaintiff secreted behind the refrigerator of his residence
$10,000 cash" that "was purportedly stolen during his transport ofa large volume money seizure"
and that she had "seen money in a shoe box in Plaintiffs basement in the past described as 'work
money' having a value of less than $100." Id. at 5 ,r 1 I. 	Campbell also reported in a December
3
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2020 interview that "in the Fall of 2019, a so-called unidentified 'mutual associate' of theirs, Larry
Evans, was asked to remove_ some 'junk' from Plaintiff's garage to be later 'destroyed."' Id. at 7
, 	15. 	According to Campbell, Evans returned "two large trash bags containing items labeled
'evidence' as well as files that appeared to belong to the Baltimore City police department," and
"[t]he bags were pl11ced under Plaintiffs deck in his backyard." Id.
Glover alleges that Patterson "intentionally misrepresented in his search warrant affidavit
that Campbell resided with Plaintiff until August 2020" despite knowing that "Campbell and
Plaintiff ended their relationship in August 2019 when Campbell moved out," information that
was allegedly provided to Defendants "by Campbell during her December 3, 2020, interview with
them." Id. at 6, 12. Glover asserts that Patterson knew "ifhe averred that Campbell moved out
of Plaintiff's home in 2019 rather than 2020, the affidavit for the search warrant of Plaintiff's
'
house would havei lacked sufficient temporal proximity between the alleged crime or criminal
subject matter and the information received." 	Id. , 13. 	Defendants also apparently "fail[ed] to·
conduct any independent investigation of the information provided by Campbell" or to interview
Evans. Id. at 6, 14, at 7, 17. Glover also asserts Defendants did not verify information with or
interview "the alleged drug dealer, Enixae Hernandez-Barba, from whom the large volume of
money was seized to determine whether he believed the money turned over from the seizure was
less than the amoupt he had in his possession." Id. at 9 , 22.
According to Glover, Patterson's "false search warrant affidavit combined with the false-
grand jury testimony of' Defendants, "which repeated the sum and substance of the allegations
contained" in the affidavit, "led Plaintiff to be federal[ly] indicted." Id. at 8, 20. The complaint
states that Defendants provided false testimony that on "April 8, 2016, Plaintiff stole $9,775 from.
a $2,428,900 large money seizure during the transport of said money from the crime scene to the
4
I,
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DEA's office" and that Glover "secreted the money behind the refrigerator in his home in April
2016." 	Id. at 8 121. Defendants also allegedly testified that on "April 23, 2016, Plaintiff used
.$295 of the allegedly stolen money to purchase a pair of shoes for Campbell at a Neiman Marcus
store in King of Prussia, Pennsylvania," despite Defendants' possession ofa receipt reflecting that
the shoes "were purchased by Campbell and shipped by her to her parent's address." Id.
In early April of 2021, a Federal Grand Jury returned an indictment against Glover, and,
on September 30, 2021, a Federal Grand Jury returned a superseding indictment against Glover.
See ECF 14, at 9124; ECF 17, at 4. Glover was charged "with two counts of Theft of Government
Property[] and one count of False Statement to Federal Law Enforcement." ECF 24, at 9124. In
January of 2023, Plaintiff was tried and acquitted of the charges in the superseding indictment in
federal court. Id.
B. 	Procedural History
On January 29, 2025, Glover filed a complaint in the Circuit Court for Baltimore City
against Defendants. 	ECF 5, at 1. 	His original complaint contained four counts alleging claims
under the Federal Constitution pursuant to 42 U.S.C. § 1983, as well as under the Maryland
Constitution and Maryland common law. Id. at 9-23. On May 27, 2025, Defendants removed the
case to this Court. See ECF l; ECF 4 (supplement to.notice ofremoval). On June 18, 2025, Glover
amended his complaint to include only one count for money damages under Bivens. ECF 14, at
10-14. 	Specifically, 	Glover alleges 	that Defendants violated his 	Fourth and Fourteenth
Amendment rights by including misleading or false information and omitting other material
information from the affidavit supporting the search warrant issued for Glover's home, as well as
'for providing false testimony to a grand jury. 	See, e.g., id. at 11 1 29. 	Glover alleges that he
suffered financially 	and emotionally as a result of Defendants' 	conduct, and he requests
compensatory and punitive damages in an amount exceeding $75,000. Id. at 14134. On July 22,
5
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2025, Defendants filed a motion to dismiss for failure to state a claim under Rule 12(b)(6) and for
lack ofjurisdiction,under Rule 12(b)(l). See ECF 17. That motion is now ripe for resolution.
II. 	LEGAL STANDARD
A. 	Rulr 12(b)(l)
Federal Rule of Civil Procedure 12(b)(l) allows a party to move to dismiss a complaint for
a lack of subject matter jurisdiction. "Rule 12(b)(1) governs motions to dismiss for mootness and
for lack of standing, which pertain to subject matter jurisdiction." Stone v. Trump, 400 F. Supp.
' 	'
3d 317, 333 (D. Md. 2019); see also Pruitt v. Resurgent Cap. Servs., LP, 610 F. Supp. 3d 775, 779
(D. Md. 2022) (explainip.g that motions to dismiss for lack of standing are considered under Rule
12(b)(l)). 	In deciding whether a complaint alleges facts sufficient to support subject matter
jurisdiction, the Court assumes the truthfulness of the facts alleged. Kerns v. United States, 585
F.3d 187, 193 (4th Cir. 2009). 	"Motions to dismiss for lack of subject_ matter jurisdiction are
properly granted where a claim fails to allege facts upon which the court may base jurisdiction."
Davis v. Thompson, 367 F. Supp. 2d 792, 7~9 (D. Md. 2005) (citing Crosten v. Kamauf, 932 F.
Supp. 676,679 (D. Md. 1996)). 5
B. 	Rule 12(b)(6)
'
Federal Rule of Civil Procedure 12(b)(6) governs dismissals for failure to "state a claim
upon which relief.can be granted." In considering amotion under this rule, courts discount legal
conclusions stated in the complaint and "accept as true all of the factual allegations contained in·
5 Defendants bring their motion to dismiss urider Rule 12(b)(l) in addition to Rule 12(b)(6). The
Court observes that arguments for dismissal based on lack of an implied cause of action under
'	Bivens have been made under both Rules 12(b)(l) and 12(b)(6). 	See Lackner v. United States,
Civ. No. 22-4951, 2025 WL 314965 (D.N.J. Jan. 28, 2025) (granting defendants' 12(b)(l) motion·
where claim improperly presented a new Bivens context); Clutts v. Lester, 676 F. Supp. 3d 698,
704, 710 (N.D. Igwa 2023) (holding extension of Bivens context warranted dismissal under Rule
12(b)(6)). Becad~e Defendants' motion to dismiss is brought under both rules, the Court need not
decide which rul~ encapsulates Defendants' Bivens challenge. 	•
!I 	6
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the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). 	A court then draws all reasonable inferences in favor of the plaintiff and
considers whether the complaint states a plausible claim for relief on its face. Nemet Chevrolet,
Ltd. v. 	Consumerajfairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). 	"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." Iqbal, 556 U.S. at 678.
"The complaint must offer 'more than labels and conclusions' or 'a formulaic recitation of
the elements ofa cause of action[.]'" Swaso v. Onslow Cnty. Bd. of Educ., 698 F. App'x 745, 747
(4th Cir. 2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). At the same time,
a "complaint will not be dismissed as long as [it] provides sufficient detail about [the plaintiffs]
claim to show that [the plaintiff] has a more-than-conceivable chance of success on the merits."
Owens v. Bait. City State's Att'ys Off, 767 F.3d 379,396 (4th Cir. 2014).
'III. 	ANALYSIS
Defendants move to dismiss Glover's complaint on three bases. See ECF 17-1, at 4. First,
Defendants argue that the case should be dismissed "because it is barred by the statute of
·limitations." 	Id. 	Second, they argue that "Plaintiffs claims present a new Bivens context, and
Bivens should not be expanded to include the allegations in this case." 	Id. 	Third, Defendants
argue for dismissal because of"absolute and/or qualified immunity." Id. Because the Court agrees
.that Plaintiffs claim presents a new Bivens context where special factors exist counseling
/
hesitation, the Court agrees with Defendants that the complaint should be dismissed on that basis
and thus does not reach Defendants' other arguments.
A. 	Bivens·
"In Bivens v. Six Unknown Fed Narcotics Agents, 403 U.S. 388 (1971), [the ~upreme]
Court authorized a damages action against federal ·officials for alleged violations of the Fourth
7
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Amendment." Egbert v. Boule, 596 U.S. 482,486 (2022). "In that case and then in two subsequent
cases, the Supreme Court allowed plaintiffs alleging certain Fourth, Fifth, and Eighth Amendment
violations to procet;d under this implied cause of action." Annappareddy v. Pascale, 996 F .3d 120, •
133 (4th Cir. 2021). "Over the past 42 years, however," the Supreme Court has "declined 11 times
to imply a similar cause of action for other alleged constitutional violations." Egbert, 596 U.S. at
486. 	Over that time, "the Supreme Court's approach to implied damage remedies has changed·
dramatically, to the point that 'expanding the Bivens remedy is now a disfavored judicial activity."'
Earle v. Shreves, 990 FJd 774, 778 (4th Cir. 2021) (quoting Ziglar v. Abbasi, 582 U.S. 120, 135
(2017)). Indeed, the Supreme Court has "gone so far as to observe that if the Court's three Bivens.
cases [had] been ... decided today, it is doubtful that [it] would have reached the same result."
Annappareddy, 996 F.3d at 133 (internal quotation marks omitted) (quoting Hernandez v. Mesa,
589 U.S. 93, 101 (2020)) (first alteration in Hernandez, second alteration inAnnappareddy).
"Consistent with that view, the Abbasi framework for determining whether a Bivens
remedy is available 'places significant obstacles in the path to recognition of an implied cause of
action."' Id. (quoting Earle, 990 F.3d at 778). 	'.'First, the court must evaluate 'whether a given
case presents a new Bivens context,"' a question which does not require any "radical difference"
to be answered in the affirmative. 	Id. (internal quotation marks omitted) (quoting Tun-Cos v.
Perrotte, 922 F.3d 514, 522 (4th Cir. 2019)). 	Meaningful differences that may "make a given
context a new one" include:
the rank of the officers involved; the constitutional right at issue; the generality or
specificity of the official action; the extent of judicial guidance as to how an officer
should respond to the problem or emergency to be confronted; the statutory or other
legal mandate under which the officer was operating; the risk of disruptive intrusion
by the Judiciary into the functioning of other branches; or the presence of potential
special factors that previous Bivens cases did not consider.
8
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Ziglar, 582 U.S. at 139-40. "If the context is not new ... then a Bivens remedy continues to be
available." Tun-Cos, 922 F.3d at 522-23 (emphasis in original). "But if the context is new, then
courts must, before extending Bivens liability, evaluate whether there are 	'special factors
counselling hesitation in the absence of affirmative action by Congress.'" 	Id. at 523 (quoting
Abbasi, 582 U.S. at 136). The "special factors" inqui_ry "must concentrate on whether theJudiciary
is well suited, absent congressional actio•n or instruction, to consider and weigh the costs and
"benefits of allowing a damages action to proceed." Abbasi, 582 U.S. at 136.
The Fourth Circuit recently considered a Bivens action against federal investigators brought
under several theories of liability arising from a search, arrest, and trial of a plaintiff that bears
·close resemblance to this case. 	See Annappareddy, 996 F.3d at 130. 	Among other theories of
liability, the plaintiff in Annappareddy alleged that federal "investigators violated the Fourth
Amendment in two respects: first by falsifying the affidavit submitted to obtain the search warrant
-(the 'Franks claims'), and then by falsifying evidence in support of the arrest warrant and original
indictment (the 'false arrest claims')." Id. at 135 (referencing Franks v. Delaware, 438 U.S. 154
(1978)). 	On appeal, the plaintiff urged the Fourth Circuit to "treat those claims separately," but
.the court observed that such claims "are not so easily disentangled." 	Id. 	"Nevertheless," the
Fourth Circuit treated those claims "separately to the extent possible and useful for [its] analysis,"
ultimately concluding "that no Bivens remedy is available for any of these factually intertwined
Fourth Amendment claims." Id
In so holding, the Fourth Circuit first concluded that the plaintiffs claims constituted a
new Bivens context. See id at 135-37. "[A]lthough Bivens, too, was a Fourth Amendment case,
' [c]ourts do not define a Bivens cause of action at the level of the Fourth Amendment' or even at
the level of the unreasonable-searches-and-seizures clause."' Id. at 13 5 (quoting Cantu v. Moody,
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933 F.3d 414,422 (5th Cir. 2019)) (alteration inAnnappareddy). "What Bivens involved was the
Fourth Amendment right to be free of unreasonable warrantless searches and seizures; this case,
by contrast, involv\')s searches and a seizure conducted with a warrant. It thus implicates a distinct
Fourth Amendment guarantee - that 'no Waqants shall issue, but upon probable cause,' see U.S.
Const. amend. IV~ governed by different legal standards." Id. The Fourth Circuit thus reasoned
that "the 'right at issue' [there was] meaningfully different from the one at issue in Bivens itself."
Id. at 136 (quoting Abbasi, 582 U.S. at 140) .. The court also noted that "the 'alleged misdeeds'"
differed meaningfully: "[s]peaking 'to witnesses, draft[ing] reports, and.shar[ing] information with
prosecutors and other investigators' are 'information-gathering and case-building activities' that
represent 'a different part of police work than the apprehension, detention, and physical searches
at issue in Bivens.'," Id. (quoting Farah v. Weyker, 926 F.3d 492, 498-99 (8th Cir. 2019)).
Such differences. meant that the claims "would require 'a different type of showing' than·
did the claims in Bivens," "one that would pose a greater risk of intruding on the investigatory and
prosecutorial functions of the executive branch." 	Id. (first quoting Ahmed v. Weyker, 984 F.3d
564,569 (8th Cir. 2020); and then citing Abbasi, 582 U.S. at 140). For example, to succeed on the·
Franks 	claim, 	the plaintiff "would have to 	establish that the 	defendants knowingly 	and
intentionally or wjth reckless disregard for the truth made false statements or omissions in the
warrant affidavit, and that those false statements or omissions were material to the magistrate.
judge's finding of probable cause." 	Id (citing Evans v. Chalmers, 703 F.3d 636, 650 (4th Cir.
2012)). 	"And to prevail on his Fourth Amendment false arrest claims, [the plaintiff] similarly
would have to establish, among other things, that the defendants had 'deliberately or with a
reckless disregard, for the truth' made material false statements or omissions, 'undercut[ting] the
grand jury's probable cause determination."'. Id. (quoting Massey v. Ojaniit, 759 F.3d 343, 357
I 	.
II
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·(4th Cir. 2014)). 	But "Bivens did not require this type of fact-checking and conscience-probing,
... which can, as the Supreme Court has warned, impose substantial costs."_ Id. (internal quotation
marks omitted) (quoting Ahmed, 984 F.3d at 569).
The Fourth Circuit next concluded that '"special factors' 	counsel[ed] 	hesitation in
extending the Bivens implied cause of action to [the plaintiff]'s Fourth Amendment claims." Id.
at 137. 	The court noted that one special factor was "the existence of 'an alternative remedial
_structure,' even if it does not go so far as a Bivens remedy would." Id. (quoting Abbasi, 582 U.S.
at 137). 	"Congress indeed has created a distinct and limited set of remedies to compensate
individuals who suffer as a result of wrongful governmental conduct in the course of criminal
_prosecutions." 	Id. (citing Farah, 926 F.3d at 501). 	That "Congress has expressly provided a
damages remedy for some victims of this particular type of injury" counseled against the creation
of a freestanding remedy in damages under Bivens:" 	Id. (quoting Farah, 926 F.3d at 501-02).
The Fourth Circuit further reasoned that another factor "counseling hesitation is the risk that a
Bivens action for these Fourth Amendment claims would require courts to interfere in the executive
branch's investigative and prosecutorial functions."· Id.
Annappareddy v. Pascale is dispositive here. 	Glover brings a single count alleging
violations of the Fourth Amendment arising out ofrepresentations made by federal officers during
the search warrant and grand jury indictment process associated with Glover's eventual arrest and
prosecution. See ECF 14, at 10 1 28 ("TFOs Defendants Patterson and Stem violated Plaintiffs
clearly established rights at the time, under the Fourth and Fourteenth Amendments, when they
caused Plaintiff to be falsely arrested and imprisoned, falsely indicted Plaintiff with two felony
crimes ... and maliciously prosecuted, under color of Federal, State and local Jaw, without
·probable cause, or legal justification[.]"). 	Glover's claims rest on the assertion that Patterson
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submitted a search warrant affidavit containing knowingly false, reckless, and intentionally
misleading statements and omissions, and that Defendants both gave false or misleading testimony.
to the grand jury to secure Glover's·indictment. 	See, e.g., id at 8 ~ 20. 	Like inAnnappareddy,
"proving the claims here. would require 'a different type of showing' than did the claims in Bivens
- one that would pose a greater risk of intrudiJg on the investigatory and prosecutoria!" functions
of the executive branch." 996 F.3d at 136 (citations omitted). 	Resolving the merits in this case
"would involve delving into the evidence before numerous decisionmakers, including federal
investigators, prosecutors, and the grand jury." Farah, 926 F.3d at 499. The information provided
by Patterson and Stem to the magistrate judge, prosecutors, and the federal grand jury would ''need
to _undergo examination for its truth or falsity." Id 	"Nothing so intrusive was required to prove
the claims in Bivens." Id. 	Accordingly, the Court concludes that this action would constitute a
new Bivens context. 6
The Court is further unable to distinguish the special factors counseling hesitation observed
in Annappareddy from _those present here. 	"So long as Congress or the Executive has created a
remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot
second-guess that calibration by superimposing a Bivens remedy." Egbert, 596 U.S. at 498. "That
is true even if a .court independently concludes that the Government's procedures are 'not as
effective as an individual damages remedy."' Id (quoting Bush v. Lucas, 462 U.S. 367 (1983)).
"[A]s the Eighth Circuit explained in Farah, Congress indeed has created a distinct and limited set
of remedies to compensate individuals who suffer as a result of wrongful governmental conduct
6 In Annappareddy, the Fourth Circuit also found it "significant that the search warrants" at issue
"ran against the corporate entity of Pharmacare, and not the plaintiff himself." 	996 F.3d at 136.
Although that is not a consideration here, as the warrant ran against Glover himself, the Court does
not read the Fourth Circuit's decision to rest primarily on this point and thus does not find this
factual distinction significant enough to yield a different result.
II 12
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in the course of criminal prosecutions." Annappareddy, 996 F.3d at 137 (citing Farah, 926 F.3d
at 501). For example, "[t]he so-called Hyde Amendment allows courts to award attorney .fees to
·criminal defendants who prevail against 'vexatious; frivolous, or ... bad[-]faith' positions taken
by the government." Farah, 926 F.3d at 501 (quoting Act ofNov. 26, 1997, Pub. L. No. 105-119,
§ 617,-111 Stat. 2440, 2519 (codified at 18 U.S.C. § 3006A note)). 	Moreover, "those who are
wrongly convicted and sentenced may seek release under 28 U.S.C. § 2255 or sue the government
for damages." 	Id (citing 28 U.S.C. §§ 1495, 2513(e)). 	That such options may not have been
available to Glover do not alter the Court's conclusion, but "actually cut[] against recognizing a
new cause of action." Id. at 501-02 (alteration added). "[P]laintiffs are ineligible for relief under
the unjust-conviction statute precisely because they were acquitted or had their charges dropped
before trial." 	Id at 502 (emphasis added). 	"The fact that Congress has expressly provided a
damages remedy for some victims of this particular type of injury, but not for others, suggests that
it considered the issue and made a deliberate choice." 	Id 	That choice is not for this Court to
•disturb. 7
Like Annappareddy, "[a]lso counseling hesitation is the risk that a Bivens action for these
Fourth Amendment claims would require courts to interfere in the executive branch's investigative
·and prosecutorial functions." Annappareddy, 996 F.3d at 137. Glover's Fourth Amendment claim
asserts knowing or reckless misconduct throughout Defendants' investigation and the indictment
of Glover. See, e.g., ECF 14, at 8 ,r 20. Although the misconduct alleged here is somewhat Jess
·extensive and complex than the scheme alleged in Annappareddy, it is unclear to the Court how
the claims here "could avoid 'a wide-ranging dive into all actions taken by each actor as well as
7 Though, as the Fourth Circuit observed, "[t]hat does not mean that [the Court] can think of no
policy reasons for making such a remedy available." Annappareddy, 996 F.3d at 138.
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all evidence available to \nvestigators, prosecutors,judges, and juries."' 996 F.3d at 138 (citations
omitted); see also Farah, 926 F.3d at 500 ("This type of showing would invite a wide-ranging·
inquiry 	into 	the 	evidence 	available 	to 	inves'.igators, 	prosecutors, 	and 	the 	grand jury.").
Accordingly, the Court concludes that "special factors" counsel against extension of an implied
cause of action into this new Bivens context. Glover's Bivens count will thus be dismissed.
B. 	Request to Amend
In Glover's opp~sition memorandum, he notes that to the extent the Court agrees with
Defendants that dismissal is proper, "Plaintiff alternatively moves to amend his complaint to_
reintroduce his § 1983 claims in order to illuminate his causes of actions against Defendants in
their respective capacities and roles as BPD PIB officers." 	ECF 20, at 3. 	Defendants oppose
Glover's request for two reasons, including (1) that Glover's request fails to comply with Local
Rule 103.6, governing leave to amend, and (2) because Glover's proposed amendment as gleaned	,,
from his opposition would be futile. ECF 26; at 10.
I
As an initial matter, the Court observes that Glover's "informal request does not comport
with the Federal Rules or the Local Rules of this Court." 	Woodward v. GEICO Advantage Ins.
Co., Civ. No. GLR-21-952, 2022 WL 2953053, at *16 (D. Md. July 25, 2022) (first citing Fed. R.
Civ. P. 7(b); then citing Local Rule 103.6 (D. Md. 2021); and then citing Ha// v. JPMorgan Chase
Bank, N.A., Civ. No. JKB-19-2510, 2020 WL 1452132, at *8 (D. Md. Mar. 25, 2020)). 	"Under
Fed. R. Civ. P. 7(b), a plaintiffs request to ilmend the complaint should come in the form of a
motion to amend." Jones v. Glendale Apartment Props. LLC, Civ. No. DKC 24-3731, 2025 WL
2659875, at *7 (D. Md. Sept. 17, 2025). 	For example, "[t]he Fourth Circuit has held that a
'
plaintiffs request for 'leave to amend [made] only in a footnote of their response to Defendants'
motion to dismiss' does not constitute a proper motion to amend." 	Id. (quoting Cozzarelli v.
Inspire Pharms. Inc., 549 F.3d 618, 630-31 (4th Cir. 2008)); see also Cozzarel/i, 549 F.3d at 630- .
. 	14
'I
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31 ("[W]e cannot say that the district court abused its discretion by declining to grant a motion
that was never properly made." (citing United States ex rel. Williams v. Martin-Baker Aircraft
Co., 389 F.3d 1251, 1259 (D.C. Cir. 2004))).
Moreover, the Local Rules of this Court provide that "[w]henever a party files a motion
'requesting leave to file an amended pleading, the original of the proposed amended pleading shall
accompany the motion." 	Loe. R. 103.6(a) (D. Md. 2025). 	Additionally, "the party filing an
amended pleading shall file and serve (1) a clean copy of the amended pleading and (2) a copy of
'the amended pleading in which stricken material has been lined through or enclosed in brackets
and new material has been underlined or set forth in bold-faced type." Loe. R. 103.6(c) (D. Md.
2025). Glover does not ~ttach a proposed amended complaint to his opposition. See ECF 20; see
·also Demurjian v. Dunbar, Civ. No. BAH-23-3180, 2025 WL 404380, at *6 (D. Md. Feb. 5, 2025)
("Where a request for leave to amend is made outside the bounds of a formal motion, a court is
likely to deny the request if it does not specify what the proposed amendment is and what it will
.accomplish.").
Nevertheless, this Court has still granted a request for leave to amend made informally.
See, e.g., McCray v. Wells Fargo Bank, NA, Civ. No. GLR 13-1518, 2017 WL 11849521, at *3
_(D. Md. Nov. 	13, 2017) (granting leave to amend where request was made in plaintiffs
opposition). 	In such cases, however, "a court is likely to deny the request if it does not specify
what the proposed amendment is and what it will accomplish." Demurjian, 2025 WL 404380, at
*6. 	Glover's request specifies that he would re-assert§ 1983 claim(s) against Defendants, and
notes that Glover's original state court complaint contained a § 1983 count, ECF 5, at 9-14,
although it is not entirely clear whether Glover's· amended complaint would contain a count
identical to that asserted prior. The Court agrees that such an amendment would not be subject to
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the basis upon which the operative complaint is now dismissed. 	However, Defendants oppose
Glover's request to amend on the grounds that the amendment would be futile because (1)
"Defendants clearly were acting within their roles as federal TFOs at all times relevant to the
matters at issue in this case" and (2) "Plaintiffs purported Section 1983 claims would be barred
by the applicable statute oflimitations." ECF 26, at 11-12.
Rule 15 of the Federal Rules of Civil Procedure provides that the Court "should freely give
leave [to amend] when justice so requires." 	Fed. R. Civ. P. 15(a)(2). 	The Fourth Circuit has
i
"interpreted Rule 15(a) to provide that 'leave to amend a pleading should be denied only when the
amendment would be prejudicial to the opposing party, there has been bad faith on the part of the
moving party, or the amendment would have been futile."' Laber v. Harvey, 438 F.3d 404, 426-
27 (4th Cir. 2006) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).·
."There is no question, to be sure, that leave to amend would be futile when an amended complaint
could not survive a Rule 12(b)(6) motion." Lavin v. Safeco Ins. Co. of Am., Civ. No. SAG-22-
1788, 2022 WL 17342051, at *2 (D. Md. Nov. 30, 2022) (citing U.S. ex rel. Wilson v. Kellogg·
Brow,:z & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008)). "Yet the Court need not apply the Rule
12(b)(6) standard when determining whether leave to amend would be futile." 	Id. 	It instead
applies a "much less demanding standard." Id. "Leave to amend ... should only be denied on the.
ground of futility when the proposed amendment is clearly insufficient or frivolous on its face."
Johnson, 785 F.2? at 510.
Although the Court has not yet seen the proposed amended complaint, Defendants' futility
arguments do not suggest that Glover's second amended complaint would be "clearly insufficient
or frivolous on its face." See Johnson, 785 F.2d at 510. For example, Defendants do not cite case'
law in support of their, assertion that Defendants, who were state police officers and also federal
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TFOs at the time of the events relevant to the complaint, cannot be subject to a § 1983 claim. See
'ECF 26, at 12. 	The Court also does not find Defendants' arguments related to the statute of
limitations to be so cut and dry. 8
For example, Defendants' statute oflimitations arguments appear to treat any § 1983 claim
·Glover would file as two separate claims---<me for alleged false or misleading testimony before a
grand jury, and another based on the allegedly false or misleading affidavit supporting the warrant.
CJ ECF 26, at 3 ("Plaintiffs claims related to the Affidavit in Support of Search Warrant are
.untimely."), at 4 ("Plaintiffs claims related to Defendants' presumed grand jury testimony are
untimely."). 	Defendants cite Miller v. Spiers, a case from the District of New Mexico, for the
proposition that a plaintiff's§ 1983 Fourth Amendment claim based on his allegedly false arrest
."accrued on the date legal process was initiated against him," the latest possible date in that case
being "the date the Second Grand Jury returned an indictment." 	Civ. No. 05-0577, 2007 WL
9724663, at *7 (D.N.M. Apr. 13, 2007), vacated and remanded, 339 F. App'x 862 (10th Cir.
2009); ECF 26, at 4. There, the district court read the plaintiffs complaint to contain three separate
§ 1983 claims arising out of the Fourth Amendment based on a search of plaintiffs residence,
plaintiffs arrest, and testimony provided to the a grand jury. See id. at *6-7. However, the Tenth
Circuit vacated and remanded that opinion in part because the plaintiff's complaint was properly
read to "state a single claim for malicious prosecution," rather than multiple § 1983 claims, for
•8 "Ordinarily, a defense based on the statute of limitations must be raised by the defendant through
an affirmative defense, see Fed. R. Civ. P. 8(c), and the burden of establishing the affirmative
defense rests on the defendant." 	Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007).
"But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense
are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule
12(b)(6)." Id. 	However, all facts necessary to the affirmative defense must clearly appear on the
.face of the complaint. See id. (citing Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d
244,250 (4th Cir. 1993)).
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which the statute of limitations analysis was different. Miller, 339 F. App'x at 869 (holding that.
the appropriate accrual date for such a claim is when favorable termination occurs, there when the
prosecutor filed the nolle prosequi as to the pending charges).
Other federal courts have before rejected reading § 1983 claims so narrowly where
allegations of false or misleading grand jury testimony are involved. See Downing v. Thompson,
No. 5:24-CV-00277-TES, 2024 WL 4829476, at *5 n.14 (M.D. Ga. Nov. 18, 2024) ("Defendants
... argue count 13 is simply 'based on misrepresenting facts to a grand jury,' and that the statute. 	.
oflimitations ran from the date of the grand jury meeting .... Instead, the Court reads Plaintiffs'
count as a malicious prosecution claim for lying before a grand jury-a claim that did not accrue
until termination of the criminal action in Downing's favor."). 	Relatedly, the Fourth Circuit in
Annappareddy observed "significant overlap in the alleged wrongdoing associated with each"
Fourth Amendment.claim asserted. 	996 F.~d at 135. 	The Fourth Circuit treated those claims
"separately to the extent possible and useful for [its] analysis," but noted that it did not believe
those claims were "so easily disentangled," and described the claims later as "intertwined
allegations 	of wrongdoing 	by 	prosecutors 	and 	criminal 	investigators 	in 	Annappareddy's
prosecution." Id. ~t 126, 135.
In this Cm,rrt's view, the cleanest record will be produced by permitting Plaintiff to file a·
second amended complaint, and then allowing Defendants to re-file their arguments in favor of
dismissal, if they so choose, for the Court's substantive consideration under the Rule 12(b)(6)
standard. 	Cf Lavin, 2022 WL 17342051, at *2 (adopting the same procedure). 	Accordingly,'
Glover will be granted 21 days to file a second amended complaint asserting any § 1983 claims
against Defendants. Pursuant to Rule 15 of the Federal Rules of Civil Procedure, Defendants must
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respond "within 14 days after service of the amend'ed pleading," if one is filed. 	Fed. R. Civ. P.
15(a)(3).
IV. 	CONCLUSION
For the foregoing reasons, Glover's motion to strike is denied as moot, Glover's motion to
file a surreply is denied, and Defendants' motion to dismiss is granted. Glover's Bivens count is
dismissed, but he is granted 21 days to file a second amended complaint asserting any § 1983
claim(s).
Ji.. separate implementing order will issue.
Dated: March 3, 2026 	/s/
Brendan A. Hurson
United States District Judge
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