Grim v. Baltimore Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

TARA GRIM

Plaintiff,

v. Civil Action No. ELH-18-3864

BALTIMORE POLICE

DEPARTMENT et al.,

Defendants.

MEMORANDUM

This civil rights case stems from a traffic stop that occurred in the early evening of January

1, 2016. Plaintiff Tara Grim has sued the Baltimore City Police Department (“BPD”); BPD Officer

Marcos Paul, who conducted the traffic stop; former BPD Commissioner Kevin Davis; “Unknown

Supervisors” of the BPD; the Mayor and City Council of Baltimore (the “City”); and the State of

Maryland (the “State). She alleges that, during the traffic stop, Officer Paul groped her breasts

and exposed her vagina and buttocks, under the guise of a search, in violation of her rights under

the Fourth and Fourteenth Amendments to the Constitution as well as the Maryland Declaration

of Rights and common law. ECF 13 (the “Amended Complaint”). The individual defendants have

been sued in their personal and official capacities. Id. ¶¶ 9, 10, 11.

The State moved to dismiss the Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(1)

and Fed. R. Civ. P. 12(b)(6). ECF 18. Thereafter, plaintiff filed a Notice of Voluntary Dismissal

as to the State (ECF 26), which I approved by Order of April 2, 2019. ECF 27.

The City also moved to dismiss plaintiff’s Amended Complaint under Fed. R. Civ. P.

12(b)(6). ECF 19. Similarly, the BPD and Davis moved to dismiss, pursuant to Rule 12(b)(6).

ECF 20. Plaintiff opposed both motions in a consolidated opposition (ECF 25), and the City and

the BPD replied. ECF 28; ECF 29. In a Memorandum Opinion (ECF 37) and Order (ECF 38) of

November 11, 2019, the Court granted the City’s motion, thereby dismissing the City from the

suit. ECF 37 at 58. As to the BPD, I dismissed plaintiff’s failure-to-train claim, lodged under 42

U.S.C. § 1983 and Monell v. Department of Social Services, 436 U.S. 658 (1978). ECF 37 at 30-

33. However, I denied the motion as to plaintiff’s Monell claim based on a condonation theory of

liability. ECF 37 at 34-39. And, I stayed plaintiff’s indemnification claim lodged against the BPD.

Id. at 47-50.

The BPD answered the suit on November 25, 2019. ECF 39.1 And, on December 12,

2019, the BPD filed a “Motion To Bifurcate And Stay Discovery” under Fed. R. Civ. P. 26(b) and

42(b). ECF 42. The motion is supported by a memorandum of law. ECF 42-1 (collectively, the

“Motion” or the “Motion to Bifurcate”). Plaintiff opposes the Motion (ECF 49-1), to which the

BPD has replied. ECF 50.

No hearing is necessary to resolve the Motion. See Local Rule 105(6). For the reasons

that follow, I shall grant the Motion to Bifurcate. ECF 42. Therefore, I will stay discovery as to

the claims against the BPD, pending disposition of the claims against Officer Paul.

I. Factual Background

On January 1, 2016, at approximately 7:00 p.m., BPD Officer Marcos Paul effectuated a

traffic stop of Grim while she was driving on Greenspring Avenue in Baltimore, Maryland. ECF

13, ¶ 15. After Officer Paul checked Grim’s license and registration, he asked Grim questions

1 In the BPD’s Answer, it explained that Former PBD Commissioner Davis did not answer

the suit because there are no active claims against him as a result of the Court’s Memorandum

Opinion and Order of November 11, 2019. ECF 39 at 1 n.1. The BPD is correct. The Amended

Complaint lodges three counts against Davis: a Monell claim (Count I); a § 1983 supervisory

liability claim (Count II); and a State law pattern-and-practice claim (Count IV). ECF 13 at 10,

11-12, 13-14. Because I dismissed Count I as to Davis and dismissed Counts II and IV in their

entirety, ECF 37 at 58, Davis shall be dismissed from the suit.

unrelated to the stop, including why she had a child’s car seat in her backseat and where she

worked. Id. ¶¶ 16, 17. Officer Paul told Grim that she needed to follow his patrol car to a separate

location, so that he could conduct a search of her vehicle. Id. ¶ 18. When Grim questioned this

procedure, Officer Paul responded that she could either obey his command or be arrested. Id.

“[T]errified,” Grim followed Officer Paul’s patrol car. Id. ¶ 19. While driving, she tried

to call a friend on her cell phone. Id. However, Officer Paul stopped abruptly and screamed out

of his window that Grim “better not be on [her] fucking phone.” Id. ¶ 20. Grim was unable to

reach her friend. Id. ¶ 19.

Grim followed Officer Paul to a “secluded area.” Id. ¶ 21. There, Officer Paul searched

Grim’s vehicle and Grim’s person. According to plaintiff, Officer Paul “unzipped her jacket and

groped her breasts.” Id. ¶ 22. Officer Paul then “pulled the front area of Ms. Grim’s leggings,

exposing her genitalia,” and “shined a flashlight down Ms. Grim’s leggings and viewed her

genitalia in the guise of a ‘search.’” Id. ¶ 23. Similarly, Officer Paul proceeded to “pull[] the rear

area of Ms. Grim’s leggings,” exposing her buttocks. Id. ¶ 24. Again, he shined the flashlight

down her leggings. Id.

Plaintiff, who was pregnant at the time, was “convinced that the officer was going to rape

her.” Id. She was both “frightened and humiliated.” Id.

When another vehicle approached, Officer Paul ceased his action. Id. ¶ 25. Although

Officer Paul told Grim that she could leave, he also said he would follow her home. Id. Officer

Paul did not issue a citation or a ticket to Grim. Id. ¶ 26.

Plaintiff drove to her residence on Greenspring Avenue, where she was living with her

uncle. Id. ¶ 26. Officer Paul followed Grim, and said “words to the effect of, ‘so this is where

you live’” and “words to the effect of, ‘I’ll be contacting you for counseling.’” Id. ¶ 28.

Grim entered her home and told her sister and uncle what had just happened. Id. ¶ 30. Her

sister called 911. Id. ¶ 31. Officer Paul initially responded to the 911 call, but he soon left the

scene. Id. ¶ 32. Shortly thereafter, a BPD detective arrived and interviewed Grim about the stop.

Id. ¶ 33. Grim provided a recorded statement to the BPD on January 5, 2016. Id. ¶ 34.

Scared for her safety, Grim moved out of her home and into another residence, and sold

her car. Id. ¶ 35. In addition, plaintiff alleges that she “was unable to perform her day-to-day

functions and lost her job.” Id. ¶ 36.

Plaintiff contends that the “unconstitutional strip search was not an isolated event.” Id.

¶ 43. Rather, she alleges that “it was undertaken pursuant to, and caused by, BPD’s policy and

practice of providing deficient oversight and accountability, failure to train, supervise and

discipline its officers, failing to reliably record when officers conduct a frisk, failing to ensure that

officers comply with its strip search policy, failing to separately categorize or track complaints

alleging unlawful strip searches and internal affairs officials failing to adequately investigate

complaints that officers violate its strip search policy.” Id. To support these allegations, plaintiff

relies on an investigative report issued by the Department of Justice (“DOJ”) on August 10, 2016,

regarding BPD policies and procedures (the “DOJ Report”). Id. ¶¶ 37-41.

II. Discussion

A.

The BPD seeks to bifurcate the claims against Officer Paul and the BPD, pursuant to Fed.

R. Civ. P. 42(b). ECF 42-1 at 2. Further, defendant urges the Court to stay discovery against the

BPD, pending resolution of the § 1983 claims against Officer Paul. Id.

Rule 42(b) provides: “For convenience, to avoid prejudice, or to expedite and economize,

the court may order a separate trial of one or more separate issues, claims, crossclaims,

counterclaims, or third-party claims.” Notably, Rule 42(b) is disjunctive, meaning “[o]nly one of

these criteria need be met to justify bifurcation.” Saxion v. Titan-C-Mfg., 86 F.3d, 553 556 (6th

Cir. 1996) (citations omitted).

District courts have “broad discretion in deciding whether to bifurcate claims for trial, and

the exercise of that discretion will be set aside only if clearly abused.” Dodson v. Prince George’s

Cty., GJH-13-2916, 2014 WL 4799032, at 1 (D. Md. Sept. 25, 2014) (citing Dixon v. CSX Transp.,

Inc., 990 F.2d 1440, 1443 (4th Cir. 1993), cert. denied, 510 U.S. 915 (1993)); see also Shetterly v.

Raymark Indus., Inc., 117 F.3d 776, 782 (4th Cir. 1997); Brown v. Bailey, RDB-11-1901, 2012

WL 2188338, at *4 (D. Md. June 13, 2012); Beasley v. Kelly, DKC-10- 0049, 2010 WL 3221848,

at *3 (D. Md. Aug. 13, 2010); Dawson v. Prince George’s Cty., 896 F. Supp. 537, 539 (D. Md.

1995); 9A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2388 (3d ed. 2019) (“It is

well-established by a wealth of case law that ultimately the question of whether to conduct separate

trials under Rule 42(b) should be, and is, a matter left to the sound discretion of the trial court[.]”).

B.

Resolution of the bifurcation motion requires a brief review of 42 U.S.C. § 1983, on which

some of plaintiff’s claims are based. Section 1983 provides that a plaintiff may file suit against

any person who, acting under color of state law, “subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C.

§ 1983; see, e.g., Filarsky v. Delia, 566 U.S. 377, 383 (2012). However, § 1983 “‘is not itself a

source of substantive rights,’ but merely provides ‘a method for vindicating federal rights

elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan,

443 U.S. 137, 144 n.3 (1979)).

“To state a claim under Section 1983, a plaintiff must show that the alleged constitutional

deprivation at issue occurred because of action taken by the defendant ‘under color of . . . state

law.’” Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019) (quoting Philips v. Pitt Cty. Mem’l

Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see also Filarsky, 566 U.S. at 383; Wahi v. Charleston

Area Medical Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009). The phrase “under color of state law”

is an element that “is synonymous with the more familiar state-action requirement—and the

analysis for each is identical.” Philips, 572 F.3d at 180.

In Monell, 436 U.S. at 690-91, the Supreme Court explained that local government entities

are subject to suit under § 1983 based on the unconstitutional actions of individual defendants

where those defendants were executing an official policy or custom of the local government that

violated the plaintiff’s rights.2 As the Monell Court said, “when execution of a government’s

policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be

said to represent official policy, inflicts the injury the government as an entity is responsible under

§ 1983.” Id. at 694; see also Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004). Therefore,

“Section 1983 plaintiffs seeking to impose liability on a municipality must . . . adequately plead

and prove the existence of an official policy or custom that is fairly attributable to the municipality

and that proximately caused the deprivation of their rights.” Jordan by Jordan v. Jackson, 15 F.3d

333, 338 (4th Cir. 1994); see Board of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403

2 As explained in the Memorandum Opinion of November 8, 2019, the BPD is a local

government entity and therefore is subject to plaintiff’s Monell claim. See ECF 37 at 23-27.

(1997); Kirby v. Elizabeth City, 388 F.3d 440, 451 (4th Cir. 2004), cert. denied, 547 U.S. 1187

(2006); Young v. City of Mount Ranier, 238 F.3d 567, 579 (4th Cir. 2001).

It is axiomatic that a Monell claim cannot lie “where there is no underlying constitutional

violation by the employee.” Young, 238 F.3d at 579; see also City of Los Angeles v. Heller, 475

U.S. 796, 799 (1996) (per curiam) (“[N]either Monell . . . nor any other of our cases authorizes the

award of damages against a municipal corporation based on the actions of one of its officers when

the jury has concluded that the officer inflicted no constitutional harm.”); Anderson v. Caldwell

Cty. Sherriff’s Office, 524 F. App’x 854, 862 (4th Cir. 2013) (“No actionable claim against

supervisors or local governments can exist without a constitutional violation committed by an

employee.”); Burgess v. Balt. Police Dep’t, RDB-15-0834, 2016 WL 1159200, at *1 (D. Md. Mar.

23, 2016); Williamson v. Prince George’s Cty., DKC-10-1100, 2011 WL 1065780, at *2 (D. Md.

Mar. 21, 2011).3

Moreover, Monell liability attaches “only where the municipality itself causes the

constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (emphasis

in original); accord Holloman v. Markowski, 661 F. App’x 797, 799 (4th Cir. 2016) (per curiam),

cert. denied, 137 S. Ct. 1342 (2017). In other words, there is no vicarious liability under § 1983.

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . .

§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s

3 To be sure, “Monell . . . and its progeny do not require that a jury must first find an

individual defendant liable before imposing liability on [a] local government.” Anderson v. City

of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985) (emphasis added). Thus, although an individual

defendant may be entitled to qualified immunity, the local government entity can be liable under

§ 1983. See Int’l Ground Transp., Inc. v. Mayor & City Council of Ocean, 475 F.3d 214, 219 (4th

Cir. 2007) (observing that “a finding of no liability on the part of the individual municipal actors

can co-exist with a finding of liability on the part of the municipality”). However, in such a

scenario, the plaintiff still must establish that the individual defendant committed constitutional

violations in order for the entity defendant to be held liable under § 1983.

own individual actions, has violated the Constitution.”); see also Wilcox v. Brown, 877 F.3d 161,

170 (4th Cir. 2017); Love-Lane, 355 F.3d at 782. Therefore, “a city or other local governmental

entity cannot be subject to liability at all unless the harm was caused in the implementation of

‘official municipal policy.’” Lozman v. City of Riviera Beach, ___ U.S. ___, 138 S. Ct. 1945, 1951

(2018) (quoting Monell, 436 U.S. at 691).

As a result, in most cases, a plaintiff’s § 1983 claims against a municipality “hinge on his

ability to show that [individual defendants] violated his constitutional rights.” Dawson, 896 F.

Supp. at 540; see also Young, 238 F.3d at 579; Temkin v. Frederick Cty. Comm’rs, 945 F.2d 716,

724 (4th Cir. 1991) (“A claim of inadequate training under section 1983 cannot be made out against

a supervisory authority absent a finding of a constitutional violation on the part of the person being

supervised.”), cert. denied, 502 U.S. 1095 (1992); Burgess, 2016 WL 1159200, at *1; Williamson,

2011 WL 1065780, at *2; Marryshow v. Town of Bladensburg, 139 F.R.D. 318, 319 (D. Md. 1991)

(“Under Section 1983, to hold the [supervisor and municipal] Defendants liable, Plaintiff must

first establish that at least one [individual] Defendant violated his constitutional rights.”).

In sum, a viable § 1983 Monell claim consists of two components: (1) the municipality had

an unconstitutional policy or custom; and (2) the unconstitutional policy or custom caused a

violation of the plaintiff’s constitutional rights. See, e.g., Brown, 520 U.S. at 403; Kirby, 388 F.3d

at 451; Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003).

Cases that contain Monell claims “are good candidates for bifurcation.” Beasley, 2010 WL

3221848, at *3. Bifurcation can advance the efficient and convenient resolution of the case

because where there is no “initial finding that a government employee violated a plaintiff’s

constitutional rights, . . . . no subsequent trial of the municipality is necessary.” Id. In addition,

bifurcation might spare the parties from expending valuable resources in discovery, because

resolution of the claims as to the individual defendants may obviate the need to litigate the Monell

claim. See Burgess, 2016 WL 1159200, at *1 (finding bifurcation appropriate “[g]iven the

derivative nature of [the police department’s] potential liability”); Taylor v. Maryland, DKC-10-

2167, 2010 WL 5247903, at *2 (D. Md. Dec. 16, 2010) (reasoning that due to the “secondary

nature of a municipality on potential liability under § 1983,” courts “have frequently bifurcated

discovery and or trial so that cases proceed first with a trial against the individual defendant(s)

alleged to be primarily liable”) (alteration in original).

Equally important, bifurcation prevents the potential prejudice to individual defendants

that may result from the introduction of inflammatory evidence concerning the municipality’s

policies, practices, or customs. Taylor, 2010 WL 5247903, at *2; Beasley, 2010 WL 3221848, at

*3. This is especially true in excessive force cases, where the Monell evidence would include

“prior incidents of police brutality and policymakers’ reactions to such incidents.” Beasley, 2010

WL 3221848, at *3. Although such evidence “is relevant under the Monell analysis,” it might

unfairly bias the jury as to the liability of the individual defendants. See id. (observing that the

introduction of instances of police misconduct at trial “would be highly prejudicial to the

individual government employees”).

Courts in this district have consistently ruled that in cases such as this one bifurcation “is

appropriate and often desirable.” Brown, 2012 WL 2188338, at *4; see also, e.g., McCullough v.

Anne Arundel Cty., CCB-19-926, 2020 WL 836235, at *7 n. 15 (D. Md. Feb. 20, 2020); Peprah v.

Williams, GLR-18-990, 2019 WL 224245, at *10 (D. Md. Jan. 15, 2019); accord Peterson v.

Prince George’s Cty, PWG-16-1947, 2017 WL 2666109 at *4 (D. Md. June 21, 2017); Humbert

v. O’Malley, WDQ-11-0440, 2012 WL 1066478, at *2 (D. Md. Mar. 27, 2012), rev’d on other

grounds, 866 F.3d 546 (4th Cir. 2017); James v. Frederick Cty. Pub. Schs., 441 F. Supp. 2d 755,

762 (D. Md. 2006); Robertson v. Prince George’s Cty., 215 F. Supp. 2d 664, 665 (D. Md. 2002);

Dawson, 896 F. Supp. at 539; Marryshow, 139 F.R.D. at 319.

C.

The BPD argues that bifurcation of plaintiff’s Monell claim is “highly desirable” because

it promotes judicial economy. ECF 42-1 at 4; see id. at 5. Further, defendant contends that

bifurcation is “essential” to prevent juror confusion and prejudice either to the BPD or Officer

Paul. Id. at 6. Ms. Grim counters that bifurcation will cause her undue prejudice by “thwart[ing]”

her ability to fully investigate her claim against Def. Paul.” ECF 49-1 at 4. Specifically, she

contends that bifurcation will deprive her of evidence necessary to establish that Officer Paul acted

under color of state law when he violated her rights. Id. at 5.

In my view, bifurcation is appropriate in this case because it will prevent prejudice to

Officer Paul and because it best serves judicial economy.

In Monell, 436 U.S. 658, the Supreme Court determined that local governmental bodies

are liable under § 1983 only if the plaintiff’s constitutional rights were violated by government

employees who were executing an official policy or custom of the local government. Id. at 690-

91; see also Love-Lane, 355 F.3d at 782. Therefore, “[s]ection 1983 plaintiffs seeking to impose

liability on a municipality must . . . adequately plead and prove the existence of an official policy

or custom that is fairly attributable to the municipality and that proximately caused the deprivation

of their rights.” Jordan, 15 F.3d at 338.

To “adequately plead” such a claim against the BPD in this case, it is highly likely that

plaintiff will rely on evidence of other unconstitutional strip searches. Indeed, this is already

apparent from plaintiff’s Amended Complaint. See ECF 13, ¶¶ 37-41. As discussed, evidence of

the BPD’s “custom, practice or policy may include evidence of ‘prior incidents of police brutality,

the nature of such incidents, and the municipal policy-makers’ reaction to them.’” Beasley, 2010

WL 3221848, at *3 (citations omitted). But, this evidence is not relevant to plaintiff’s suit against

Officer Paul. See id.; see also Humbert, 2012 WL 1066478, at *2 (noting that a plaintiff’s

submission of “evidence of prior misconduct by police officers” to demonstrate “deliberate

indifference, or a custom or policy of constitutional violations . . . . would unduly prejudice” the

individual defendants); Beasley, 2010 WL 3221848, at *3 (finding that such evidence against a

municipality “would be highly prejudicial to the individual government employees”). Thus,

bifurcation will prevent unfair prejudice to Officer Paul that would result if other instances of

police misconduct were introduced in a joint trial involving the BPD and Officer Paul.

Moreover, bifurcation will promote judicial economy. See Fed. R. Civ. P. 42(b).

Determining whether Officer Paul violated Ms. Grim’s constitutional rights is a prerequisite to

establishing liability against the BPD. See Young, 238 F.3d at 579; Peprah, 2019 WL 224245, at

*10; Burgess, 2016 WL 1159200, at *1; Williamson, 2011 WL 1065780, at *2; Marryshow, 139

F.R.D. at 319. Failure to bifurcate the Monell claim would prolong the trial, because plaintiff

would necessarily have to present evidence pertinent to the Monell claim, while also producing

evidence as to Officer Paul. Bifurcation “preserves scarce judicial and party resources by avoiding

expenses related to [plaintiff’s] Monell claims until [she] has established the existence of an

underlying constitutional violation.” Peprah, 2019 WL 224245, at *10.

In other words, bifurcation will facilitate an expeditious trial as to Officer Paul by avoiding

the delay inherent in the discovery process and trial that would be required in regard to the

contemporaneous pursuit of the Monell Claim. This could lead to a reduction of costs, without

any real prejudice to plaintiff. See Taylor, 2010 WL 5247903, at *2 (“Streamlining the issues and

limiting discovery . . . will curb rather than increase costs[.]”).

Nonetheless, plaintiff insists that bifurcating her Monell claim will result in unfair prejudice

by precluding her from obtaining discovery from the BPD concerning Officer Paul. ECF 49-1 at

5. This argument is without merit. As the BPD points out, bifurcation will stay discovery related

to plaintiff’s Monell claim, i.e., evidence of the BPD’s policies, practices or customs. It will not,

however, effect plaintiff’s ability to pursue discovery concerning her claims against Officer Paul.

See ECF 50 at 4. Bifurcation therefore erects no barrier to plaintiff’s ability to obtain documents

pertaining to Officer Paul from the BPD to the extent that the BPD is the custodian of such records.

III. Conclusion

In my view, bifurcation is appropriate because it will promote judicial economy, conserve

the parties’ resources, prevent prejudice to the Officer Paul, and will not prejudice plaintiff.

Bifurcation “streamline[s] the issues for trial [and] it prevents prejudice to the individual defendant

that would otherwise arise from the introduction of evidence of prior incidents of police brutality

in order to make a case against the municipality.” Taylor, 2010 WL 5247903, at *2.

Therefore, I shall grant the Motion to Bifurcate (ECF 42) as to Count I. And, discovery

pertaining to Count I shall be stayed, pending resolution of plaintiff’s claims against Officer Paul.

An Order follows.

Date: March 5, 2020 _______/s/______________

Ellen L. Hollander

United States District Judge