Davis v. Baltimore City Community College

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BENJAMIN DAVIS, III, :

Plaintiff, OO

: *

VS. : Civil Action No. ADC-19-2194

BALTIMORE CITY COMMUNITY *

COLLEGE, et al., :

Defendants. *

□□□□□□□□□□□□□□□□□□□□□□□□□□ .

MEMORANDUM OPINION

Defendants, Baltimore City Community College (“B.C.C.C.”) and Darryl C. Moore,

Freddie McGraffinried, Stuart Park, James Wright, Michael Stephens, and Debra L. McCurdy

(collectively “individual Defendants”), move this Court to dismiss the Complaint of pro se

Plaintiff, Benjamin Davis, III, for violations of due process, equal protection, excessive force

pursuant to 42 U.S.C. § 1983, and retaliation (the “Motion to Dismiss”) (ECF No. 16). After

considering the Motion to Dismiss and the responses thereto (ECF Nos. 19, 20), the Court finds

that no hearing is necessary. See Loc.R. 105.6 (D.Md. 2018). For the reasons stated herein, the

Court GRANTS Defendant’s Motion to Dismiss. The Court also GRANTS Plaintiff leave to

amend the Complaint.

FACTUAL BACKGROUND

When reviewing a motion to dismiss, this Court accepts as true the facts alleged in the

challenged complaint. See Aziz vy. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Plaintiff's

"Complaint is brief and contains few specific factual allegations. On May 14, 2019, Plaintiff was

on B.C.C.C.’s campus to register for classes. ECF No. 1 at 2. While on campus, Plaintiff was

.

assaulted by a campus security officer. Jd At some point during the incident, Plaintiff kicked

Defendant DeGraffinried. Id. at 3. Defendants called the Baltimore City Police Department and

“by use of excessive force illegally arrested” Plaintiff. Jd Plaintiff was then placed in involuntary

psychiatric hold, where he received a “clean evaluation and was released expeditiously.” Jd. at 2.

The following day, Plaintiff received a letter from B.C.C.C.’s Vice President for Student

Affairs informing him that he was scheduled for a hearing in front of the Incident Management

Advisory Committee regarding the May 14 incident. ECF No. 16-3 at 2.! The hearing was

scheduled for May 28, 2019. □□ At the hearing, Plaintiff was confronted with allegations he

assaulted Defendant Freddie DeGaffinried, an officer who responded to the May 14 incident. ECF

No. 1 at 3. Defendant DeGaffinried was the only Defendant present at the hearing, and he was the

person who filed an administrative complaint against Plaintiff. Jd.

On May 29, 2019, Plaintiff received notice that the Advisory Committee recommended he

be expelled from B.C.C.C., and the Vice President of Student Affairs was adopting this

recommendation. ECF No. 16-4 at 2. Plaintiff appealed this decision to B.C.C.C. President

Defendant Debra L. McCurdy, who upheld the decision to expel Plaintiff in a letter on August 8,

2019. ECF No. 16-5 at 2.

| The specifics of Plaintiffs disciplinary hearing schedules and decisions are set forth in the

Exhibits to Defendants Motion to Dismiss. See ECF Nos. 16-3, 16-4, & 16-5. The Court may

consider these attachments without converting the Motion to a Motion for Summary Judgment

under Federal Rule of Civil Procedure 12(d), because the Exhibits are letters to the Plaintiff that

contain information that is “integral to the complaint and authentic.” Goines v. Valley Cmty. Servs.

Bd., 822 F.3d 159, 164 (4th Cir. 2016) (quoting Sec’y of State for Defence v. Trimble Nav. Ltd.,

484 F.3d 700, 705 (4th Cir. 2007)); see also Uzoechi v. Wilson, JKB-16-3975, 2017 WL 3968535,

at *1 (D.Md. Sept. 8, 2017) (finding that in a case in which a former student was challenging a

school disciplinary hearing, the Court could rely on both facts alleged in the complaint as well as

in a document attached to the motion to dismiss titled “OFFICIAL NOTICE OF DECISIONS

AND SANCTION(SY’).

PROCEDURAL BACKGROUND

On July 26, 2019, Plaintiff filed suit in this Court against Defendants, alleging

constitutional violations of due process and equal protection, excessive force under 42 U.S.C. §

1983, and retaliation, seeking $10,000,000 in “punitive, monetary, and nominal damages” as well

as a change to the B.C.C.C. administrative hearing procedure. ECF No. 1 at 24.2 On October 1,

2019, Defendant filed the Motion to Dismiss. ECF No. 16. Plaintiff filed an opposition on October

2, 2019, ECF No. 19, to which Defendant replied on October 9, 2019, ECF No. 20.

This matter is now fully briefed, and the Court has reviewed Defendant’s Motion to

Dismiss, as well as the responses thereto. For the following reasons, Defendant’s Motion to

Dismiss (ECF No. 16) will be GRANTED. Additionally, Plaintiff will be GRANTED leave to

amend the Complaint.

DISCUSSION

A. Standard of Review "

Defendants move to dismiss Plaintiff's claims of violation of due process, violation of — -

equal protection, § 1983 excessive force, and retaliation pursuant to Federal Rules of Civil

Procedure 12(b)(5) and 12(b)(6). ECF No. 16-1 at 1.

1. Motion to Dismiss for Insufficient Service of Process

Federal Rute of Civil Procedure 4(c) governs the proper procedure for serving a summons

and complaint; the purpose of a Rule 12(b)(5) motion is to challenge a Plaintiff's failure to comply _

with Rule 4. When a defendant files a Rule 12(b)(5) motion to dismiss, “the plaintiff bears the

burden of establishing the validity of service pursuant to Rule 4.” O’Meara v. Waters, 464

Tn accordance with Standing Order 2018-04 of the United States District Court for the District of

Maryland and upon consent of all parties, this case was directly assigned to United States

Magistrate Judge A. David Copperthite for all proceedings on August 12, 2019. ECF No. 6.

F.Supp.2d 474, 476 (D.Md. 2006). “Generally, when service of process gives the defendant actual

notice of the pending action, the courts may construe Rule 4 liberally to effectuate service and

uphold the jurisdiction of the court.” Jd. (first citing Karisson v. Rabinowitz, 318 F.2d 666, □□□

(4th Cir. 1963), then citing Armco, Inc. v. Penrod-Stauffer Bldg. sys, Inc., 733 F.2d 1087, 1089

(4th Cir. 1984)). Although courts may give Rule 4 liberal construction, the “plain requirements

for the means of effecting service of process may not be ignored.” Armco, 733 F.2d at 1089.

While pro se litigants are typically afforded greater leniency than represented litigants, “[p]ro se

status . . . is insufficient to establish good cause” for failure to comply with Rule 4, “even where

the pro se plaintiff mistakenly believes that service was made properly.” Tann v. Fisher, 276

F.R.D. 190, 193 (D.Md. 2011) (quoting Hanson v. Fairfax Cnty. Sch. Bd., 405 F.App’x 793, 794

(4th Cir. 2010)).

2. Motion to Dismiss for Failure to State a Claim

The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint not to.

“resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”

King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178

F.3d 231, 243 (4th Cir. 1999)). A complaint must contain “sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.”” Ashcroft v. Igbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists

“when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. An inference of a mere possibility of

misconduct is not sufficient to support a plausible claim. Jd at 679. As stated in Twombly,

“[fjactual allegations must be enough to raise a right to relief above the speculative level.” 550

U.S. at 555. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action will not do.” Nor does a complaint suffice if it tenders ‘naked

assertions’ devoid of ‘further factual enhancement.” Jgbal, 556 U.S. at 678 (internal citations

omitted). Although when considering a motion to dismiss a court must accept as true all factual

allegations in the complaint, this principle does not apply to legal conclusions couched as factual

allegations. Twombly, 550 U.S. at 555.

B. Defendant’s Motion to Dismiss

Ll. Plaintiff failed to properly serve Defendants pursuant to Rule 4.

Defendants first contend that they were not properly served pursuant to Rule 4, and,

therefore, Plaintiff has failed to bring them within this Court’s jurisdiction. ECF No. 16-1 at 6—

10. The Court agrees,

. As a Maryland institution of higher education, B.C.C.C. is a state agency. MD. CODE,

EDUC. § 16-503; see also Cmty. Colls—Historic Pres.—Cmty. Coll. Project Subject to State, But

Not Local, Historic Pres. Regulation, 87 Op. Att'y Gen. 17 (Md.A.G.), 2002 WL 337609 (Feb. 27,

2002) (“The Court of Appeals concluded [in Board of Trustees v. John K. Ruff, Inc.] that a

community college is a State agency”). To effectuate service upon a state agency, Plaintiff must □

serve the agency by “(A) delivering a copy of the summons and of the complaint to its chief

executive officer; or (B) serving a copy of each in the manner prescribed by that state’s law for

serving a summons or like process on such a defendant.” FED.R.Crv.P. 4(j)(2). The manner for

serving a state agency under the Maryland Rules allows service upon “(1) the resident agent

designated by the officer or agency, or (2) the Attorney General or an individual designated by the

Attorney General in a writing filed with the Clerk of the Court of Appeals.” Md. Rule 2-124(k).

To effectuate service upon an individual, Plaintiff must serve the individual by

(1) following state law for serving a summons in an action... . ; or

(2) doing any of the following:

(A) delivering a copy of the summons ‘and of the complaint to the individual

personally;

. (B) leaving a copy of each at the individual’s dwelling or usual place of abode

with someone of suitable age and discretion who resides there; or □

(C) delivering a copy of each to an agent authorized by appointment or by law

to receive service of process.

FED.R.CIV.P. 4(e), When serving an individual, the Maryland Rules allow service

(1) by delivering to the person to be served a copy of the summons, complaint, and

all other papers filed with it; (2)... by leaving a copy of the summons, complaint,

and all other papers filed with it at the individual’s dwelling house or usual place

of abode with a resident of suitable age and discretion; or (3) by mailing to the

person to be served a copy of the summons, complaint, and all other papers filed

with it by certified mail requesting: “Restricted Delivery—show to whom, date,

address of delivery.”

Mad. Rule 2-121(a), Even when Defendants receive actual notice of the proceedings against them,

Plaintiff still must comply with “plain requirements for the means of effecting service of process.” □

Armco, 733 F.2d at 1089. □

Here, Plaintiff attempted to serve Defendants by mailing via certified mail copies of the

Summons and Complaint to B.C.C.C. ECF No. 16-1 at 7.3 The Summons for B.C.C.C. and

Defendant Moore are the only Summons for which a delivery receipt was filed. See ECF No. 8.

Both receipts were signed by “F. Smith”—an unidentified person—and fail to indicate the date of

delivery. Jd The Summons for the remaining Defendants are accompanied by United States

Postal Service tracking numbers that merely state they were “Left with Individual.” Jd. at 9, 12,

15, 18,21. None of these service attempts comply with Rule 4(j) or the Maryland Rules for serving □

a state agency. Furthermore, none of these service attempts as to the individual Defendants in their

individual capacities complied with any of the methods prescribed in Rule 4(e) or the Maryland

3 Defendants have attached to their Motion as an Exhibit two emails from Assistant Attorney

General Raymond Mulera to Plaintiff. The Court does not consider these emails in its opinion, as

they are not integral to the Complaint and would force the Court to convert Defendants’ Motion

to Dismiss to a Motion for Summary Judgment. See FED.R.CIv.P. 12(d).

Rules. Although Plaintiff contends that service was proper because he is pro se and “relied solely

on the services provided” by this Court, ECF No. 20 at 1, service was still improper “even where

the pro se plaintiff mistakenly believes that service was made properly.” Tann, 276 F.R.D. at 193

(quoting Hanson, 405 F.App’x at 794). Regardless of whether Defendants had actual notice of

this suit (and the filing of the Motion makes clear they did), Plaintiff still cannot establish that he

properly served Defendants or that there was good cause for his failure to do so. See O’Meara,

464 F.Supp.2d at 476. Accordingly, the Court will GRANT Defendant’s Motion to Dismiss under

Rule 12(b)(5).

2. Plaintiff's claims against B.C.C.C. and Defendants in their official capacities are barred

by the Eleventh Amendment.

Defendants next argue that Plaintiff s claims against them in their official capacities are

barred by the Eleventh Amendment. ECF No. 16-1 at 6. The Court agrees.

The Supreme Court of the United States has definitively established that “an unconsenting

State is immune from suits brought in federal courts by her own citizens as well as by citizens of

another state.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (quoting

Emps. v. Missouri Pub. Health & Welfare Dep't, 411 U.S. 279, 280 (1973)). The State of

Maryland has not “waive[d] any right or defense of the State or its units, officials, or employees

in an action in a court of the United States ... including any defense that is available under the

[Eleventh] Amendment to the United States Constitution.” Mp. CODE, STATE GOv’T § 12-103(2).

detailed above, B.C.C.C. is a state agency. Asa state agency, Maryland law provides B.C.C.C.

is “afforded the protections of sovereign immunity.” Samuels v. Tschechtelin, 135 Md.App. 483,

521-22 (2000); see also Bd. of Trs. of Howard Cmty. Coll. V. John K. Ruff, Ine., 278 Md. 580

(1976) (finding that a Maryland state community college and its Board of Trustees were entitled

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to sovereign immunity). Defendant B.C.C.C. is accordingly entitled to sovereign immunity under

the Eleventh Amendment.

It is unclear whether the remaining individual Defendants are being sued in their official

or individual capacities. To the extent that they are being sued in their official capacities, the

remaining Defendants are also entitled to Eleventh Amendment immunity. The Supreme Court

has held “[t]he Eleventh Amendment bars a suit against state official when ‘the state is the real,

substantial party in interest.”” Pennhurst, 465 U.S. at 101 (quoting Ferd Motor Co. v. Dep’t of

Treasury, 323 U.S. 459, 464 (1945)). “Thus, ‘[t]he general rule is that relief sought nominally

against an officer is in fact against the sovereign if the decree would operate against the latter.””

Id, (quoting Hawaii y. Gordon, 373 U.S. 57, 58 (1963) (per curiam)). Accordingly, “the individual

defendants are immune from liability for damages in their official capacities. Because a Maryland

community college... [is a] state agenc[y], the Eleventh Amendment precludes an unconsented

federal court suit seeking damages or other retrospective remedies against [state community

college] officials.” Williams v. Bd. of Trs. of Frederick Cmty. Coll., CCB-03-2123, 2004 WL

45517 (D.Md. Jan. 8, 2004) (internal citation omitted), Because sovereign immunity extends to

the individual Defendants, Plaintiff cannot sustain his claims against them in their official

capacities.

Because B.C.C.C. and the individual Defendants in their official capacities are immune ~

from suit under the Eleventh Amendment, the Court will GRANT Defendants’ Motion as it

pertains to B.C.C.C. and the individual Defendants in their official capacities and will DISMISS

these parties with prejudice.

3. Plaintiff fails to sufficiently state a claim on which relief can be granted against Defendants

in their individual capacities. .

Defendants also argue that Plaintiff has failed to state claims upon which relief can be

granted against the individual Defendants in their individual capacities. ECF No. 16-1 at 10-16.

The Court agrees.

In order for a claim to be facially plausible to survive a Rule 12(b)(6) motion, the plaintiff

must “plead[] factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Jgbal, 556 U.S. at 678. An inference of a mere

possibility of misconduct is not sufficient to support a plausible claim. Jd at 679. A pro se

complaint, however, is “to be liberally construed,” and “a pro se complaint, however inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Even under the liberal pleading standards afforded to pre se litigants, Plaintiff's Complaint

contains too few factual allegations to sustain any of his claims against Defendants. Notably,

Defendants Stuart Parker, James Wright, and Michael Stephens are not mentioned at all in the

Complaint, other than in the case caption. ECF No. 1 at 1. Plaintiff has also failed to include in

the Complaint what entity employs cach of the individual Defendants, other than Defendant

McCurdy. These omissions prevent the Court from properly evaluating his claims against the

Defendants.

Regarding Plaintiff's claims, first, Plaintiff alleges his due process rights were violated

because he was “denied access to [the] school complaint process.” ECF No. | at2. When a student

faces expulsion, the requirements of due process are met when the student received advance notice

. ofthe charges, a fair opportunity to be heard, and an impartial decision-maker. Goss v. Lopez, 419

U.S. 565, 579-81 (1975). Furthermore, particularly in the academic setting, “due process may be

satisfied by something less than a trial-like proceeding.” Henson v. Honor Comm. Of Univ. Va.,

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719 F.2d 69, 74 (4th Cir. 1983). Plaintiff did receive notice of his disciplinary hearing, which he

attended. /d at 3; see also ECF No. 16-3. Plaintiff also does not allege that the Advisory

Committee that recommended his expulsion was not impartial. Accordingly, Plaintiff does not

sufficiently allege a due process violation.

Next, Plaintiff alleges his equal protection rights were violated because he “had a right to

the same protections as all other students on campus.” ECF No. 19 at 2. Plaintiff, however, fails

to allege that he is a member of a protected class or that he was, in fact, treated differently than

other students. Without these preliminary allegations, the Court cannot proceed to analyze

Plaintiff's equal protection claim. Cf Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)

(“To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been

treated differently from others with whom he is similarly situated and that the unequal treatment

was the.result of intentional or purposeful discrimination. Once this showing is made, the court

proceeds to determine whether the disparity in treatment can be justified under the requisite level

of scrutiny.”). Accordingly, Plaintiff does not sufficiently allege an equal protection violation.

Plaintiff then asserts an excessive force claim under 42 U.S.C. § 1983 regarding his arrest.

ECF Nos. 1 at 2~3, 1-1 at 1. Plaintiff alleges “Defendants retaliated by calling Baltimore City

Police Dep[artment] and by use of excessive force illegally arrested” him. ECF No. 1 at 2. In

Plaintiff's Response in Opposition, he states he was assaulted by Defendant Moore, and was

“further attacked by officer defendants.” ECF No. 19 at 2. Regarding Plaintiff's allegations that

he was “further attacked,” it is unclear whether Plaintiff is alleging an employee of B.C.C.C. or an

employee of the Baltimore City Police Department (which is not a Defendant in this action) used

excessive force against him during his arrest. Plaintiff does not allege what actions Defendants

took against him that caused the excessive force. Plaintiff also admits that he kicked Defendant

DeGraffinried. ECF No. 1 at 3. Itis unclear from the Complaint whether Plaintiff's kick preceded,

coincided with, or followed his allegations of excessive force; Plaintiff only alleges excessive force

was used during his arrest. Jd at 2. Because Plaintiff has not alleged who, other than Defendant

Moore, used excessive force, what actions contributed to the excessive force, or when the

excessive force occurred in relation to Plaintiff's kick, he does not sufficiently allege an excessive

force claim under § 1983.

Finally, Plaintiff asserts that Defendants retaliated against him by arresting him, expelling

him, and filing assault charges against him in violation of the First Amendment. ECF No. 1 at 2—

3. Generally, the First Amendment protects individuals from experiencing retaliatory actions for

engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). To prevail on a

retaliation claim, the plaintiff must demonstrate a “causal connection” between the retaliatory

animus and the plaintiff's injury. Id. at 259. When a plaintiff makes a First Amendment claim of

retaliatory arrest, the plaintiff must establish there was no probable cause for the arrest. Nieves v.

Bartlett, 139 S.Ct. 1715, 1725 (2019). Here, Plaintiff alleges the protected activity in which he

engaged was his request that Defendant Moore be arrested. ECF No. 1 at 2. To sustain his claim

for retaliation, Plaintiff must allege that his call for Defendant Moore’s arrest was the cause of his

own subsequent arrest, expulsion, and assault charges. Furthermore, to sustain his claim for

retaliatory arrest, he must allege that his arrest was not supported by probable cause. Plaintiff has

failed to allege any of these facts. Accordingly, Plaintiff does not sufficiently allege a First

Amendment retaliation claim. .

Accordingly, the Motion to Dismiss is GRANTED. Given Plaintiff's pro se status, he will

be GRANTED leave to amend the Complaint.

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CONCLUSION

In conclusion, for the reasons stated herein, Defendant’s Motion to Dismiss (ECF No. 16)

is GRANTED. Defendant B.C.C.C. and individual Defendants in their official capacities are

DISMISSED with prejudice. Plaintiff is GRANTED leave to amend the Complaint. A separate

Order will follow.

3{ beter Ali

A. David Copperthite

United States Magistrate Judge

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