Nicholson v. State of Maryland

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

JAWONE D. NICHOLSON

:

v. : Civil Action No. DKC 20-3146

:

BALTIMORE POLICE DEPARTMENT,

et al. :

MEMORANDUM OPINION

Presently pending and ready for resolution in this civil

rights action are three motions to dismiss filed by a Defendant or

groups of Defendants: (1) the State of Maryland (the “State”)

(ECF No. 25); (2) Officer Damond Durant (“Individual Officer” or

“Officer Durant”) (ECF No. 27); and (3) and the Baltimore Police

Department (the “BPD”) and the Mayor and City Council of Baltimore

(the “City”) (ECF No. 28). The issues have been fully briefed,

and the court now rules, no hearing being deemed necessary. Local

Rule 105.6. For the following reasons, two of the motions will be

granted, and one will be denied.

I. Background1

Around 3:45 pm on November 10, 2017, sixteen-year-old Jawone

D. Nicholson (“Plaintiff”), who is an African American male, was

waiting for his after-school pick-up van on a cul-de-sac behind

1 Unless otherwise noted, the facts outlined here are set

forth in the amended complaint and construed in the light most

favorable to Plaintiff.

his house.2 Plaintiff’s classmate, Brian Hatcher, was also waiting

with Plaintiff for the van. As the boys waited, they were

approached by Officer Durant, a BPD officer. Officer Durant was

not wearing a police uniform or other attire that would signal

that he was a police officer and he did not identify himself as

one.3 Without cause or provocation, Officer Durant aggressively

demanded to know who Plaintiff was and why he was there. He

remarked that he lived in the neighborhood and had never seen

Plaintiff before. Plaintiff replied that he also lived in the

neighborhood and was waiting for his after-school pick-up van.

Plaintiff added that he had never seen Officer Durant before either

and that he did not have to answer his questions. Officer Durant

continued to question Plaintiff in an intimidating manner and

threatened to call the police on him. Plaintiff responded that he

and Brian were not doing anything wrong so Officer Durant could

call the police if he liked. Officer Durant continued to question

Plaintiff while obscuring his hands in his coat pocket. Observing

this, Plaintiff began to fear for his safety and attempted to walk

2 Nowhere does the complaint specify the location by county

or address. Plaintiff’s current residence is identified as

Columbia, Maryland, in Howard County, but Officer Durant assumes

that the events happened in Baltimore City. (ECF No. 27-1, at 1.)

The City, on the other hand, assumes that Officer Durant was off-

duty and in Columbia, in Howard County. (ECF No. 28-2, at 2).

3 The amended complaint does not state whether Officer Durant

was on-duty at the time of the incident, and, as noted above, the

location of the events is unclear.

away from Officer Durant and to call his grandmother on his cell

phone for help. As he did, Officer Durant yelled at him, “Oh,

cause you wasn’t gonna do shit.” Plaintiff, afraid, turned back

to face Durant and watch his movements. Officer Durant then pulled

a firearm from his coat pocket and aimed it at Plaintiff.

Plaintiff thought he was being robbed and feared for his life. By

this time, Plaintiff’s grandmother had answered his call and he

explained to her that a man was pulling a gun on him behind their

house. Plaintiff’s grandmother, mother, and sister quickly ran

outside and confronted Officer Durant, asking why he had pulled a

gun on a sixteen-year-old child. As they approached, Officer

Durant concealed his gun but kept his hands in his pocket in a

threatening manner. Plaintiff’s sister asked him to remove his

hands from his pocket since he was carrying a firearm and he

responded he did not have to show his hands because he was

“Baltimore City.” Plaintiff’s mother asked what that meant and

only then did Officer Durant remove a police badge from his coat

pocket and reveal that he was a Baltimore City police officer.

Both Plaintiff’s mother and Officer Durant called the police,

although it is unclear whether or not they came.

The next day, Plaintiff’s mother went to BPD headquarters to

file a complaint with the internal affairs office. The officers

on duty laughed at her request, stating “We heard about this. At

least your son didn’t die.” The officers then told her that there

were no internal investigators there on a Saturday and she could

come back on Monday.

Plaintiff has been required to relive this traumatic

experience on a daily basis because his bedroom window looks out

onto the cul-de-sac where the incident took place and because he

must walk past the cul-de-sac in order to get to school. Plaintiff

has suffered from severe emotional stress physically manifesting

as anxiety, loss of sleep, depression, bouts of spontaneous crying,

hypervigilance, days-long period of social withdrawal, and fear of

the police.

On or about December 7, 2017, Plaintiff’s mother filed a

complaint against Officer Durant with the Baltimore City Civilian

Review Board. The Civilian Review Board complaint led to an

internal investigation of Officer Durant, but no disciplinary

charges were filed until after the statute of limitations for doing

so had expired. Thus, the disciplinary charges were dismissed,

and Officer Durant faced no consequences for his conduct. Officer

Durant and the City were previously sued over an incident in which

Officer Durant assaulted a citizen and broke his jaw while

responding to a call for service. Plaintiff believes the lawsuit

terminated in a settlement.

On September 23, 2020, Plaintiff filed a complaint in the

Circuit Court for Baltimore City against Officer Durant, the State,

the City, and the BPD. (See ECF No. 2). On October 29, 2020, the

City and the BPD, with consent of the State, removed the case to

the United States District Court for the District of Maryland.

(ECF No. 1). On November 24, 2020, Plaintiff filed an amended

complaint, (ECF No. 18), containing twelve counts:

Count I: Fourth Amendment Violation under 42 U.S.C. § 1983

– False Arrest – against all Defendants

Count II: Fourth Amendment Violation under 42 U.S.C. § 1983

– False Imprisonment – against all Defendants

Count III: Fourth Amendment Violation under 42 U.S.C. § 1983

– Excessive Force – against all Defendants

Count IV: Maryland Declaration of Rights, Art. 24 and 26

claims, for False Arrest – against all Defendants

Count V: Maryland Declaration of Rights, Art. 24 and 26

claims, for False Imprisonment – against all Defendants

Count VI: Maryland Declaration of Rights, Art. 24 and 26

claims, for Excessive Force – against all Defendants

Count VII: False Arrest – against all Defendants

Count VIII: False Imprisonment – against all Defendants

Count IX: Intentional Infliction of Emotional Distress

– against all Defendants

Count X: Gross Negligence – against all Defendants

Count XI: Negligent Training, Supervision, and

Retention – against Defendants State, City, and BPD

Count XII: Fourth Amendment Monell Claim – against Defendants

State, City, and BPD (This claim was added in the amended

complaint.)

All four Defendants moved to dismiss some or all of the claims

against them. (ECF Nos. 25, 27, 28). Plaintiff opposed the

motions, (ECF Nos. 29, 30, 31), and Defendants replied. (ECF Nos.

32, 33, 37).

II. Standard of Review

A. Fed.R.Civ.P. 12(b)(1)

Motions to dismiss for lack of subject matter jurisdiction

are governed by Fed.R.Civ.P. 12(b)(1). The plaintiff bears the

burden of proving that subject matter jurisdiction properly exists

in the federal court. See Evans v. B.F. Perkins Co., a Div. of

Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In

a 12(b)(1) motion, the court “may consider evidence outside the

pleadings” to help determine whether it has jurisdiction over the

case before it. Richmond, Fredericksburg & Potomac R.R. Co. v.

United States, 945 F.2d 765, 768 (4th Cir. 1991); see

also Evans, 166 F.3d at 647. The court should grant the 12(b)(1)

motion “only if the material jurisdictional facts are not in

dispute and the moving party is entitled to prevail as a matter of

law.” Richmond, 945 F.2d at 768.

B. Fed.R.Civ.P. 12(b)(6)

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the

sufficiency of the complaint. Presley v. City of Charlottesville,

464 F.3d 480, 483 (4th Cir. 2006). A plaintiff’s complaint need

only satisfy the standard of Fed.R.Civ.P. 8(a), which requires a

“short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed.R.Civ.P. 8(a)(2). At this stage, all

well-pleaded allegations in a complaint must be considered as true,

Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual

allegations must be construed in the light most favorable to the

plaintiff, see Harrison v. Westinghouse Savannah River Co., 176

F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari,

7 F.3d 1130, 1134 (4th Cir. 1993)). See also, Mays v. Sprinkle,

--- F.3d ---, 2021 WL 1181273, *6 (4th Cir. March 30, 2021) (“[O]n

a motion to dismiss, we cannot rely on facts not found in the

complaint or draw inferences in the [defendant’s] favor.”). But

“[r]ule 8(a)(2) still requires a ‘showing,’ rather than a blanket

assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 556 n.3 (2007).

In evaluating the complaint, unsupported legal allegations

need not be accepted. Revene v. Charles Cty. Comm’rs, 882 F.2d

870, 873 (4th Cir. 1989). Legal conclusions couched as factual

allegations are insufficient, Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009), as are conclusory factual allegations devoid of any

reference to actual events. United Black Firefighters of Norfolk

v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “[W]here the well-

pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged - but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal,

556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus,

“[d]etermining whether a complaint states a plausible claim for

relief will . . . be a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense.” Id.

III. Analysis

A. Individual Officer’s Motion to Dismiss

While Officer Durant is named as a Defendant in Counts I-X,

he moves to dismiss only Count IX (Intentional Infliction of

Emotional Distress) and filed an answer as to all other claims

asserted against him. (See ECF Nos. 26 & 27). Officer Durant

argues that Count IX fails to state a claim under Fed.R.Civ.P.

12(b)(6) because it fails to allege the second and fourth elements

necessary to state a claim under Maryland law for IIED. (See ECF

No. 27-1, at 5-8).

To recover for IIED under Maryland law, a

plaintiff must show that: (1) the defendant’s

conduct was intentional or reckless; (2) the

conduct was extreme or outrageous; (3) there

is a causal connection between the wrongful

conduct and the emotional distress; and (4)

the emotional distress is severe. [Harris v.

Jones, 281 Md. 560, 566 (Md. 1977)]; see also

Interphase Garment Solutions, LLC v. Fox

Television Stations, Inc., 566 F.Supp.2d 460,

466 (D.Md. 2008) (citing Hamilton v. Ford

Motor Credit Co., 66 Md.App. 46, 58, 502 A.2d

1057 (1986)). All four elements must be

established, and the liability for the tort

should be imposed sparingly, “its balm

reserved for those wounds that are truly

severe and incapable of healing themselves.”

Caldor, Inc. v. Bowden, 330 Md. 632, 642, 625

A.2d 959 (1993) (quoting Figueiredo–Torres v.

Nickel, 321 Md. 642, 653, 584 A.2d 69 (1991)).

Brengle v. Greenbelt Homes, Inc., 804 F. Supp. 2d 447, 452 (D.Md.

2011).

Plaintiff’s amended complaint sufficiently alleges both that

Officer Durant’s conduct was extreme and outrageous, and that he

has suffered severe emotional distress as a result of such conduct.

As noted above, the amended complaint alleges that, without

identifying himself as a police officer, Defendant Durant detained

a minor child at gunpoint simply because he had not seen him in

the neighborhood before. Such conduct, when viewed in the light

most favorable to Plaintiff, can be “so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.” Lasater v. Guttmann, 194 Md. App. 431,

448 (2010) (quoting Harris, 281 Md. at 567). These allegations

far surpass those presented in Williams v. Prince George’s County,

112 Md. App. 526 (1996), where a person clearly identified as a

police officer stopped the plaintiff, who was on his way to work,

based on probable cause to believe the car he was driving was

stolen. The plaintiff was driving his mother’s car with her

permission. The car had previously been stolen, but after its

recovery, erroneously remained listed as stolen. The presence of

probable cause and a uniform are two significant differences. The

age of the plaintiff might be a third. In any event, the facts,

construed in the light most favorable to the Plaintiff, as is

required at this stage of the case, are adequate.

As to the fourth element, Officer Durant argues that Plaintiff

has failed to plead sufficiently severe emotional distress because

“[t]here are no monetary facts that describe the extent of his

financial hardship . . . or other expenses . . . [and] no subjective

facts to describe his alleged mental anguish, emotional distress,

loss of dignity, trauma, inconvenience, or exacerbation of

preexisting condition.” Again, to the contrary, Plaintiff has

sufficiently alleged severe emotional distress including that he

suffers from: anxiety, loss of sleep, depression, bouts of

spontaneous crying, hypervigilance, fear of the police, and days-

long period of social withdrawal. (ECF No. 18, at 9-10). Officer

Durant does not dispute that Plaintiff has pled facts sufficient

to establish the first and third elements of an IIED claim and the

court finds that such elements are also sufficiently pled.

Accordingly, Officer Durant’s motion to dismiss Count IX, (ECF No.

27), will be denied.

B. The State’s Motion to Dismiss

Plaintiff lodges four claims against the State under 42 U.S.C.

§ 1983 for violating his Fourth Amendment right to be free from

unreasonable seizures (Counts I-III and XII). Plaintiff also

asserts a variety of state constitutional (Counts IV-VI) and tort

claims (Counts VII-XI).4

The State argues that all of Plaintiff’s claims against it

should be dismissed because the State is entitled to Eleventh

Amendment immunity. Plaintiff argues that the State has waived

its entitlement to Eleventh Amendment immunity by consenting to

removal of this case from state court. (ECF No. 29, at 6-10)

(citing Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535

U.S. 613, 619–20 (2002)).

Sovereign immunity is the privilege of the

sovereign not to be sued without its consent. The

language of the Eleventh Amendment only eliminates

the basis for our judgment in the famous case of

Chisholm v. Georgia, 2 U.S. 419, 2 Dall. 419, 1

L.Ed. 440 (1793), which involved a suit against a

State by a noncitizen of the State. Since Hans v.

Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842

(1890), however, we have understood the Eleventh

Amendment to confirm the structural understanding

that States entered the Union with their sovereign

immunity intact, unlimited by Article III’s

jurisdictional grant. Blatchford v. Native Village

of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115

L.Ed.2d 686 (1991); see Pennhurst State School and

Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct.

900, 79 L.Ed.2d 67 (1984). Our cases hold that the

States have retained their traditional immunity

from suit, “except as altered by the plan of the

Convention or certain constitutional amendments.”

4 Maryland state courts recognize a common law action for

damages when an individual is deprived of his liberty in violation

of the Maryland Declaration of Rights. See Okwa v. Harper, 360

Md. 161, 757 A.2d 118, 140 (2000) (recognizing a common law action

for damages for an alleged violation of Article 24 in an excessive

force case); Ford v. Baltimore City Sheriff’s Office, 149 Md.App.

107, 814 A.2d 127, 143 (2002) (same for an excessive force claim

under Article 26).

Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240,

144 L.Ed.2d 636 (1999). A State may waive its

sovereign immunity at its pleasure, College Savings

Bank v. Florida Prepaid Postsecondary Ed. Expense

Bd., 527 U.S. 666, 675–676, 119 S.Ct. 2219, 144

L.Ed.2d 605 (1999), and in some circumstances

Congress may abrogate it by appropriate

legislation. But absent waiver or valid

abrogation, federal courts may not entertain a

private person’s suit against a State.

Virginia Office for Protection and Advocacy v. Stewart, 563 U.S.

247, 253-54 (2011) (footnotes omitted). Removal of an action to

federal court is one species of waiver. In Lapides, 122 S.Ct. at

1646, the Court ruled that “the State’s action joining the removing

of this case to federal court waived its Eleventh Amendment

immunity.” Importantly, however, the Court limited its ruling to

“state-law claims, in respect to which the State has explicitly

waived immunity from state-court proceedings.” Id. at 1643. The

federal claim that was the basis for removal was, as here, under

42 U.S.C. § 1983. The “State is not a ‘person’ against whom a

§ 1983 claim for money damages might be asserted.” Id. Because

the § 1983 claim was not viable, it was not necessary to consider

Eleventh Amendment immunity as to the only federal claim. So, too,

here. The immunity arguments concerning the state-law claims will

be discussed below.

1. Section 1983 and Monell Claims

The State alternatively moves to dismiss Plaintiff’s § 1983

and Monell claims pursuant to Fed.R.Civ.P. 12(b)(6), arguing that

Plaintiff fails to state a claim because the State of Maryland is

not a “person” subject to suit under 42 U.S.C. § 1983.

To state a claim under § 1983, a plaintiff must allege (1)

that a right secured by the Constitution or laws of the United

States was violated, and (2) that the alleged violation was

committed by a “person acting under the color of state law.” West

v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). A state is

not a “person” within the meaning of § 1983. See Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 64–65 & 70–71 (1989)). Thus,

Plaintiff could present no set of facts to support his claims

against the State in Counts I-III and such counts must be dismissed

with prejudice. See Weigel v. Maryland, 950 F. Supp. 2d 811, 826

(D.Md. 2013) (noting that “dismissal with prejudice is proper if

there is no set of facts that plaintiff could present to support

his claim.”).

Likewise, Plaintiff can assert no claim against the State

under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.

658 (1978). The Supreme Court determined in Monell that local

governmental bodies may be liable under § 1983 based on the

unconstitutional actions of individual defendants . . . where those

defendants were executing an official policy or custom of the local

government resulting in a violation of the plaintiff’s rights.

See id., at 690 (holding that “[m]unicipalities and other local

government units” are “persons” within the meaning of § 1983).

The State, however, is not a local government entity and therefore,

cannot be sued under Monell. Accordingly, Count XII also fails to

state a claim under Fed.R.Civ.P. 12(b)(6) and must be dismissed.

2. State Claims

The State moves to dismiss Plaintiff’s Counts IV-XI on the

ground that it is entitled to Eleventh Amendment immunity and,

alternatively, to state sovereign immunity because it has not

waived such immunity under the Maryland Tort Claims Act (“MTCA”).

(ECF No. 25-1, at 6-10). Plaintiff insists that the State enjoys

no immunities. (ECF No. 29, at 10-13).

The doctrine of state sovereign immunity is “firmly embedded

in the law of Maryland.” Katz v. Wash. Suburban Sanitary Comm’n,

284 Md. 503, 507, 397 A.2d 1027, 1030 (1979); see Bd. of Educ. of

Balt. Cty. v. Zimmer-Rubert, 409 Md. 200, 240, 973 A.2d 233, 211

(2009); Bd. of Howard Cmty College v. Rugg, 278 Md. 580, 584, 366

A.2d 360, 362-63 (1976) (declining to abrogate sovereign immunity

by judicial fiat); Jekofsky v. State Roads Comm’n, 264 Md. 471,

474, 287 A.2d 40, 41-42 (1972) (same). Therefore, unless the

Maryland General Assembly has waived immunity, state sovereign

immunity bars an individual from maintaining a suit for money

damages against the State of Maryland or one of its agencies for

violations of State law. See Balt. Police Dep’t v. Cherkes, 140

Md. App. 282, 306, 780 A.2d 410, 424 (2001) (citing Catterton v.

Coale, 84 Md. App. 337, 345-46, 579 A.2d 781, 785 (1990)); see

also Samuels v. Tschechtelin, 135 Md. App. 483, 522, 763 A.2d 209,

230 (2000). As the State correctly notes in its motion to dismiss,

the Maryland Tort Claims Act (“MTCA”) is a limited waiver of the

State’s sovereign immunity that applies only to “tortious conduct

. . . committed by ‘State personnel’- a defined term.” Estate of

Burris v. State, 360 Md. 721, 737 (2000). See also State v. Card,

104 Md.App. 439, 447, 656 A.2d 400, 404, cert. denied, 339 Md.

643, 664 A.2d 886 (1995) (“There is nothing in [the MTCA] itself,

or in its history, suggesting an intent that the State be liable

for the conduct of persons other than those included within the

definition of ‘State personnel.’”). Critically, the definition of

“State personnel” does not include members of the Baltimore Police

Department. See Md. Code Ann., State Gov’t § 12-101(a).

Accordingly, the State retains immunity from all state-law claims

asserted against it in Counts IV-XI.

Because all of Plaintiff’s federal and state claims against

the State will be dismissed, the State will be dismissed as a

Defendant in this case.

C. The BPD’s Motion to Dismiss

Plaintiff asserts claims against the BPD under § 1983 and

Monell for violations of his Fourth Amendment rights (Counts I-

III and XII), for violations of state law under Articles 24 and 26

of the Maryland Constitution’s Declaration of Rights (Counts IV-

VI), and for common law torts (Counts VII-XI).5

1. Section 1983 and Monell Claims

The BPD argues that this court lacks subject matter

jurisdiction over Plaintiff’s § 1983 and Monell claims because it

is a state entity entitled to Eleventh Amendment immunity.6

Alternatively, it argues that pursuant to Fed.R.Civ.P. 12(b)(6),

Counts I-III should be dismissed because there is no respondeat

superior liability under § 1983 and that Count XII should be

dismissed because Plaintiff’s allegations fail to satisfy the

requirements for asserting a Monell claim. Plaintiff maintains

that the BPD is not entitled to any immunities and that he has

sufficiently pleaded a Monell claim.

5 Plaintiff states that he has pled two types of claims against

Defendant BPD: (1) claims arising under respondeat superior

liability and (2) claims arising directly against the BPD based on

its own negligence for failing appropriately to operate a law

enforcement agency, including a failure to train. (See ECF No.

30, at 7). Plaintiff does not explicitly state which claims arise

under which theories, but the court presumes based on the

allegations in the amended complaint that all claims against the

BPD arise under respondeat superior liability except for Counts XI

(Negligent Training, Supervision, and Retention) and Count XII

(Monell Claim).

6 See Est. of Bryant v. Baltimore Police Dep’t, No. CV ELH-

19-384, 2020 WL 673571, at *28 (D.Md. Feb. 10, 2020) (“[S]tate

sovereign immunity also bars suit against an instrumentality of a

state, sometimes referred to as an ‘arm of the state,’ including

state agencies.”).

The BPD, while a state entity under Maryland law, is

considered a municipal entity subject to suit for purposes of

§ 1983.7 The Monell Court explained that, “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 Love-Lane v. Martin,

355 F.3d 766, 782 (4th Cir. 2004). But, 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). There can be no vicarious liability under § 1983,

see Connick v. Thompson, 563 U.S. 51, 60 (2011). Thus, the only

possible claim Plaintiff could bring against the BPD for the

7 Suggestions that BPD is a state agency for Eleventh

Amendment purposes in dicta in two cases in 2019 have since been

rejected. Cases now are uniform that “for the purpose of § 1983

‘the BPD is too interconnected with the government of the City so

as to constitute a State agency’ and thus the BPD is subject to

suit under § 1983.” Grim v. Baltimore Police Department, No. CV

ELH 18-3864, 2019 WL 5865561 at *14 (D.Md. Nov. 8, 2019) (quoting

Chin v. City of Balt., 241 F. Supp. 2d 545, 548 (D.Md. 2003)).

See also Hill v. CBAC Gaming LLC, No. CV DKC 19-0695, 2019 WL

6729392, at *4–5 (D.Md. Dec. 11, 2019). The factors weighing most

heavily against recognizing BPD as an arm of the state are

financial and its involvement in local, not statewide concerns.

The degree of autonomy from state control presents a mixed picture,

and state law labels BPD as a state agency. Est. of Bryant, 2020

WL 673571 at *29-31.

actions of Officer Durant is a Monell claim. Accordingly,

Plaintiff’s Counts I-III against BPD must be dismissed for failure

to state a claim.

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., Bd. of Comm’rs of

Bryan Cty., v. Brown, 520 U.S. 397, 403 (1997); Kirby v. City of

Elizabeth City, 388 F.3d 440, 451 (4th Cir. 2004), cert. denied,

547 U.S. 1187 (2006); Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir.

2003). There are two general theories under which a Monell claim

can be made in the context of alleged civil rights violations by

local police:

The principal theory locates fault in

deficient programs of police training and

supervision which are claimed to have resulted

in constitutional violations by untrained or

mis-trained police officers. A second theory,

sometimes imprecisely subsumed within the

first, locates fault in irresponsible failure

by municipal policymakers to put a stop to or

correct a widespread pattern of

unconstitutional conduct by police officers of

which the specific violation is simply an

example.

Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir. 1987). Either

type of claim must

be carefully controlled at critical points to

avoid imposing by indirection a form of

vicarious municipal liability flatly rejected

by Monell. Those critical points are (1)

identifying the specific “policy” or “custom”;

(2) fairly attributing the policy and fault

for its creation to the municipality; and (3)

finding the necessary “affirmative link”

between identified policy or custom and

specific violation.

Id. Here, Plaintiff’s Count XII seems to allege municipal

liability under both a failure to train theory and a condonation

theory. For the reasons stated below, however, both theories fail.

a. Failure to Train

A municipality can [] be liable for an

established “policy” through a failure to

train, if it “reflects a ‘deliberate’ or

‘conscious’ choice” to not do so. [Harris,

489 U.S. at 389]. Training policy

deficiencies can include (1) “express

authorizations of unconstitutional conduct,”

(2) “tacit authorizations” of such

unconstitutional conduct, and (3) failures to

adequately “prohibit or discourage readily

foreseeable conduct in light of known

exigencies of police duty.” Spell, 824 F.2d

at 1390. No matter which theory is alleged,

the plaintiff must point out “a specific

deficiency” in training, “rather than general

laxness or ineffectiveness in training.” Id.

But the municipality will only be liable if

“the need for more or different training is so

obvious, and the inadequacy so likely to

result in the violation of constitutional

rights, that the policymakers of the city can

reasonably be said to have been deliberately

indifferent to the need.” Harris, 489 U.S. at

390, 109 S.Ct. 1197 (emphasis added); accord

Jordan by Jordan v. Jackson, 15 F.3d 333, 341

(4th Cir. 1994).

Johnson v. Baltimore Police Dep’t, 452 F. Supp. 3d 283, 309 (D.Md.

2020). Importantly, such a deliberate or conscious choice by a

municipality cannot be shown simply by proving a single instance

of police misconduct and without “submitting proof of a single

action taken by a municipal policymaker.” Doe v. Broderick, 225

F.3d 440, 456 (4th Cir. 2000) (quoting City of Oklahoma City v.

Tuttle, 471 U.S. 808, 821 (1985)). Even at the pleading stage, a

plaintiff seeking to impose liability on a failure to train theory

cannot rely on legal conclusions and speculations, but must allege

at least some “facts revealing: (1) the nature of the training;

(2) that any failure to train was a deliberate or conscious choice

by the municipality; and (3) that any alleged constitutional

violations were actually caused by the failure to train.” Lewis

v. Simms, AW-11-CV-2172, 2012 WL 254024, at *3 (D.Md. Jan. 26,

2012) (quoting Drewry v. Stevenson, WDQ-09-2340, 2010 WL 93268, at

*4 (D.Md. Jan. 6, 2010), aff’d, 582 F. App’x 180 (4th Cir. 2014)).

Here, Plaintiff alleges that Defendant BPD:

had a duty to ensure Baltimore Police

Department officers were trained to conduct

their law enforcement activities within

constitutional bounds, ensure officers knew

how to treat and process citizen complaints of

misconduct, ensure Internal Affairs

investigators were trained to understand

statutes of limitation and the relevant time-

frame in which investigations must conducted

and disciplinary charges filed, and a duty to

discipline and/or fire officers who failed to

conduct their law enforcement activities in a

constitutional manner.

(ECF No. 18, at 29). Without any factual enhancement, he then

concludes that the BPD “failed to ensure that their officers

conducted their law enforcement activities within constitutional

bounds.” (ECF No. 18, at 29). Plaintiff does not allege any

factual details about the sort of training that BPD Officers

actually receive. His references to generalized deficiencies

within the department do not sufficiently flesh out his

allegations. Even if Plaintiff had sufficiently alleged a

deficiency in the training program, however, he also has not

alleged that any such failure reflects a deliberate or conscious

choice by any municipal decisionmaker as he points to only a single

prior instance of police misconduct. Finally, Plaintiff has not

alleged any facts sufficient to establish the required causal nexus

between the alleged failure to train and his injuries. For these

reasons, Plaintiff has not sufficiently stated a Monell claim based

on failure to train.

b. Condonation Theory

Plaintiff’s assertions of liability based on the BPD’s

purported inaction are similarly insufficient. Under the

condonation “theory of liability, a [municipal entity] violates

§ 1983 if municipal policymakers fail ‘to put a stop to or correct

a widespread pattern of unconstitutional conduct.’” Owens v.

Baltimore City State’s Att’ys Off., 767 F.3d 379, 402 (4th Cir.

2014) (quoting Spell, 824 F.2d at 1390). To prevail under this

theory, a plaintiff must point to a “persistent and widespread

practice[ ] of municipal officials,” the “duration and frequency”

of which indicate that policymakers (1) had actual or constructive

knowledge of the conduct, and (2) failed to correct it due to their

“deliberate indifference.” Spell, 824 F.2d at 1386–91

(alterations omitted). Both knowledge and indifference can be

inferred from the “extent” of employees’ misconduct. Id. at 1391.

Sporadic or isolated violations of rights will not give rise to

Monell liability; only “widespread or flagrant” violations will.

Id. at 1387. The existence of such a “custom or usage” may be

found in “persistent and widespread . . . practices of [municipal]

officials [which] [a]lthough not authorized by written law, [are]

so permanent and well-settled as to [have] the force of law.”

Monell, 436 U.S. at 691. A policy or custom that gives rise

to § 1983 liability will not, however, “be inferred merely from

municipal inaction in the face of isolated constitutional

deprivations by municipal employees.” Milligan v. City of Newport

News, 743 F.2d 227, 230 (4th Cir. 1984). Only when a municipality’s

conduct demonstrates a “deliberate indifference” to the rights of

its inhabitants can the conduct be properly thought of as a “policy

or custom” actionable under § 1983. Jones v. Wellham, 104 F.3d

620, 626 (4th Cir. 1997).

Plaintiff asserts that the BPD “permitted and tolerated a

pattern and practice of unjustified, unreasonable, and unlawful

abuses of their officers’ law enforcement authority” and “caused

[its] employees to believe that conducting their law enforcement

activities unconstitutionally would not be aggressively, honestly,

and properly investigated.” (ECF No. 18, at 29). To support these

allegations, Plaintiff points to a single prior incident in which

the BPD was sued related to allegations that Officer Durant broke

an individual’s jaw while responding to a call for service.

Plaintiff essentially argues that because such allegations

ultimately resulted in a settlement rather than Officer Durant’s

termination or the taking of his firearm, the BPD created a custom

by condonation giving rise to § 1983 liability. This is not so.

This isolated incident of prior misconduct alone is insufficient

to meet the high bar required for stating a Monell claim based on

a theory that the BPD acquiesced in a widespread pattern of

constitutional violations. See Lytle, 326 F.3d at 473 (“It is

well settled that isolated incidents of unconstitutional conduct

by subordinate employees are not sufficient to establish a custom

or practice for § 1983 purposes.”); see also Carter v. Morris, 164

F.3d 215, 220 (4th Cir. 1999) (internal citations and quotations

omitted)(“[A] meager history of isolated incidents does not

approach the widespread and permanent practice necessary to

establish municipal custom.”). Accordingly, Plaintiff fails to

state a Monell claim against the BPD under any viable theory and

his Count XII must be dismissed.

2. State Claims

Plaintiff’s state-law claims against the BPD are a different

matter. State law defines the BPD as a State agency.8 See Est.

of Anderson v. Strohman, 6 F. Supp. 3d 639, 642 (D.Md. 2014)

(“Contrary to commonly held belief, the BPD has long been

considered a state agency with sovereign immunity to state law

claims.”); see also Mayor & City Council of Balt. v. Clark, 404

Md. 13, 944 A.2d 1122, 1128–30 (2008). “State sovereign immunity

‘protects the State not only from damage actions for ordinary torts

but also from such actions for State constitutional torts.’” Chin

v. City of Baltimore, 241 F. Supp. 2d 546, 548 (D.Md. 2003) (citing

Baltimore Police Department v. Cherkes, 780 A.2d 410, 424

(Md.Ct.Spec.App. 2001)). Thus, the BPD “enjoys sovereign immunity

8 Confusion stems, however, from the fact that, despite being

considered a state agency under Maryland law, the BPD is also

included among the list of “local governments” under the Local

Government Tort Claims Act (“LGTCA”). See Md.Code Ann., Cts. &

Jud. Proc. § 5–301(d)(21). The LGTCA was enacted by Maryland

General Assembly to limit the civil liability of local governments

and their employees. See Md. Code Ann., Cts. & Jud. Proc. § 5–

303(a)(1) (limiting the damages recoverable against local

government agencies). But the LGTCA is applicable to the BPD only

to the extent that it imposes on the BPD the duty to pay judgments

entered against its employees. The LGTCA preserves, however, the

defenses and immunities the BPD otherwise has at common law. See

Md.Code Ann., Cts. & Jud. Proc. § 5–303. Put simply, the LGTCA

only prohibits the BPD from asserting sovereign immunity to avoid

its statutorily imposed duty to defend or indemnify its employees.

Even under the LGTCA, plaintiffs cannot bring state law claims

directly against the BPD for the actions of Baltimore police

officers acting within the scope of their employment. See Est. of

Anderson, 6 F. Supp. 3d at 642–43.

from actions for damages based on state common law torts or state

constitutional torts” asserted against it. Burley v. Baltimore

Police Dep’t, 422 F. Supp. 3d 986, 1026 (D.Md. 2019). Accordingly,

all claims asserted against the BPD based on state law (Counts IV-

XI) must be dismissed. Because none of Plaintiff’s claims against

the BPD survive, the BPD will be dismissed as a Defendant in this

case.

D. The City’s Motion to Dismiss

Plaintiff alleges against the City four separate violations

of his Fourth Amendment rights under § 1983 and Monell (Counts I-

III and XII). Plaintiff also alleges violations of state law

including violations of Articles 24 and 26 of the Maryland

Constitution’s Declaration of Rights (Counts IV-VI) and common law

torts (Counts VII-XI). The City moves to dismiss all claims

asserted against it, arguing that it cannot be held liable for

actions or inactions of Officer Durant or the BPD because, as

discussed above, BPD officers are agents of the state and thus,

neither agents nor employees of the City. The City is correct,

and all claims asserted against it will be dismissed.

1. Section 1983 and Monell Claims

The City argues the court should dismiss Plaintiff’s § 1983

and Monell claims because the BPD is not controlled, managed, or

supervised by the City and therefore, as a matter of law, Plaintiff

can prove no set of facts entitling him to judgment against the

City for the alleged conduct of Officer Durant.

As a preliminary matter, because the City is a municipality,

Plaintiff’s claims against it under § 1983 for violations of his

Fourth Amendment rights can only be brought under the standard set

forth in Monell. Accordingly, Counts I-III, which assert claims

directly under § 1983 rather than under Monell, must be dismissed.

In suing a municipal government under Monell, a plaintiff

must establish both the existence of a constitutional violation on

the part of the police officer and that any constitutional

violation was proximately caused by a policy, custom, or practice

of the defendant municipality. See Monell, 436 U.S. at 694.

Plaintiff’s Count XII fails because he cannot satisfy the second

requirement. The City, as a matter of law, is not permitted to

regulate or supervise the BPD. See Baltimore City Charter, Art.

II, § 27 (explicitly prohibiting any “ordinance of the City or act

of any municipal officer” from attempting to “conflict, impede,

obstruct, hinder or interfere with the powers of the Police

Commissioner”). Absent the power to control the police department,

liability cannot attach to the City for actions taken by police

officers. As this Court has observed:

Baltimore police officers are state employees

free from the City’s supervision and control.

The City sets no policy or custom that

Baltimore police officers execute, and the

City cannot be liable for the conduct of [BPD

Officer Defendants] under § 1983 . . . a § 1983

claim cannot be brought against the City for

Baltimore police officer conduct because it

does not sufficiently control the BPD and

cannot be considered to employ Baltimore

police officers. Municipal liability under

Monell cannot attach to the City for the

unconstitutional actions of Baltimore police

officers.

Estate of Anderson, 6 F. Supp. 3d at 644–46; see also Bradley v.

Balt. Police Dep’t, 887 F. Supp. 2d 642, 647-48 (D.Md. 2012)

(dismissing plaintiff’s § 1983 claims against the City because the

City does not exercise sufficient control over BPD to be liable

for its actions). Put simply, because the BPD is not controlled,

managed, or supervised by the City, Plaintiff cannot satisfy the

second requirement for bringing a Monell claim under § 1983.

Accordingly, Plaintiff’s Monell claim against the City in Count

XII also fails.

2. State Claims

Likewise, Plaintiff cannot bring state-law claims against the

City based on the actions of BPD officers or employees.9 To impose

respondeat superior liability, the defendant must have an agency

or employment relationship with the alleged wrongdoer. See General

Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 392 (1982).

As stated above, under Maryland law, BPD is not an agency of the

9 All factual allegations in Counts IV-XI pertain only to

conduct by Officer Durant and thus, are necessarily asserted

against the City under a theory of respondeat superior.

City; it is an agency of the state. See PUB. LOCAL LAWS OF MD.,

Art. 4, § 16-2 (a) (2014) (“The Police Department of Baltimore

City is hereby constituted and established as an agency and

instrumentality of the State of Maryland.”); Clark, 404 Md. at 26-

27. As a result, “the City does not employ Baltimore police

officers and is not liable for their conduct under state law.”

Estate of Anderson, 6 F. Supp. 3d at 644. Thus, all of Plaintiff’s

state-law claims against the City (Counts IV-XI) must be dismissed.

Given that none of Plaintiff’s claims against the City survive,

the City will be dismissed as a Defendant in this case.

Conclusion

For the foregoing reasons, the partial motion to dismiss filed

by Officer Durant will be denied; and the motions to dismiss filed

by the State, and the City and BPD will be granted. A separate

order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge