# Nicholson v. State of Maryland

> District Court, D. Maryland · April 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10205156

## Case

- **Court:** District Court, D. Maryland
- **Decided:** April 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10205156

## How later opinions describe it (automated extraction)

- recognizing a common law action for damages for an alleged violation of Article 24 in an excessive force case
- noting that “dismissal with prejudice is proper if there is no set of facts that plaintiff could present to support his claim.”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10205156. Public record. Not legal advice.