Floyd v. Baltimore City Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

NOLAN KINARD FLOYD, SR.,

Plaintiff, Civil Action No.: SAG-22-491

v.

BALTIMORE CITY POLICE

DEPARTMENT, et al.,

Defendants.

MEMORANDUM OPINION

Self-represented Plaintiff Nolan Kinard Floyd, Sr., currently incarcerated at North Branch

Correctional Institution (“NBCI”), filed his Complaint in this civil rights actions on March 1, 2022.

ECF No. 1. Floyd subsequently filed a Supplement to the Complaint. ECF No. 15. Defendants

Sergeant Howard; Detectives Christopher Ott, Valentine Nagovich, Keith Savadel, A. Parker; and

the Baltimore Police Department (“BPD”) filed a Motion to Dismiss on September 23, 2022. ECF

No. 18. Plaintiff was notified of his right to respond (ECF No. 19), and was granted additional

time in which to file an opposition to the Motion (see ECF No. 26) to and including April 26, 2023.

However, to date, the Court has not received any response from Floyd. A hearing is not necessary.

See Local Rule 105.6 (D. Md. 2021). For the reasons explained below, the Court will grant

Defendants’ Motion.

Complaint Allegations

Floyd’s verified Complaint states that BPD Detectives Ott and Savadel were investigating

a “non-fatal shooting” that occurred on February 21, 2019, at 3600 E. Lombard Street. ECF No. 1

at 2. Initially, Floyd alleges that on February 25, 2019, Savadel provided a photo array to

“witness/victim” Nikito Gillis at John Hopkins Hospital. Id. Floyd alleges that Savadel turned off

the video recording of the interview and failed to investigate whether Gillis’ statements were true.

Id. However, in Floyd’s Supplement, he asserts that instead Ott and Nagovich conducted the

interview with Gillis and they “stage[d] an agreement to try and have [Floyd] falsely convicted for

a first degree attempt[ed] murder.” ECF No. 15 at 3. Floyd alleges that they too failed to interview

hospital staff to confirm whether Gillis gave a truthful statement. Id. The following day, according

to Floyd, Ott filed an application for a charging document against Floyd. ECF No. 1 at 3. Floyd

alleges that Ott altered the charging document leading to his arrest after it had been signed, noting

that there was a “scribble” on a box indicating that there was a lack of probable cause. Id.

Floyd states that he had a jury trial in Baltimore City Circuit Court in August 2019. ECF

No. 1 at 3. The proceedings ended in a mistrial. Id. Floyd asserts that Ott committed perjury and

violated his rights to due process. Id. Floyd was retried before a jury in March 2022. ECF No.

15 at 3. Apparently referring to the evidence presented at each trial, Floyd states at the first trial

the prosecution submitted “the voice of a man reporting what he seen and heard,” while at the

second trial “a voice of a woman reporting what she seen and heard with a more defined description

of the suspect” was presented. Id. Floyd also claims that the 911 calls were staged to obtain a

false conviction against him; he alleges Parker and Howard were “legally responsible” for the 911

tapes. Id. The second trial concluded in Floyd’s acquittal. See ECF No. 1 at 3; ECF No. 18-4.

Floyd asserts that Defendants’ actions violated his Fourth, Fifth, Eighth, Thirteenth, and

Fourteenth Amendment rights. ECF No. 15 at 4. Floyd seeks declaratory relief and monetary

damages. ECF No. 1 at 4.

Standard of Review

Under Rule 12(b)(6), a defendant may test the legal sufficiency of a complaint by way of

a motion to dismiss. See In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley

Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,

408 (4th Cir. 2010), aff’d sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of

Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by

a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of

law “to state a claim upon which relief can be granted.”

Whether a complaint states a claim for relief is assessed by reference to the pleading

requirements of Federal Rule of Civil Procedure 8(a)(2). That rule provides that a complaint must

contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The

purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds”

for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

To survive a motion under Federal Rule of Civil Procedure 12(b)(6), a complaint must

contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the

pleading standard for all civil actions[.]”) (quotation omitted); see also Willner v. Dimon, 849 F.3d

93, 112 (4th Cir. 2017). However, a plaintiff need not include “detailed factual allegations” in

order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Further, federal pleading rules “do not

countenance dismissal of a complaint for imperfect statement of the legal theory supporting the

claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014) (per curiam).

Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly,

550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a

complaint provides no more than “labels and conclusions” or “a formulaic recitation of the

elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the

minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken

as true) to suggest” a cognizable cause of action, “even if … [the] actual proof of those facts is

improbable and … recovery is very remote and unlikely.” Twombly, 550 U.S. at 556.

In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual

allegations contained in the complaint” and must “draw all reasonable inferences [from those facts]

in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440

(4th Cir. 2011) (citations omitted); see Semenova v. MTA, 845 F.3d 564, 567 (4th Cir. 2017);

Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650

F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). However, a court is not required

to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986).

“A court decides whether [the pleading] standard is met by separating the legal conclusions from

the factual allegations, assuming the truth of only the factual allegations, and then determining

whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the

legal remedy sought. A Soc’y Without a Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011), cert.

denied, 566 U.S. 937 (2012).

Discussion

Defendants assert that they are entitled to dismissal of the Complaint and Supplement

because BPD cannot be held vicariously liable; Floyd fails to plead facts to support a Fourth or

Fourteenth Amendment claim; his Fifth, Eighth, and Thirteenth Amendment claims fail; and

Defendants are entitled to qualified immunity.

I. Baltimore Police Department (“BPD”)

Defendant BPD seeks to have the Complaint dismissed because BPD cannot be held

vicariously responsible for the Defendant Officers’ actions. ECF No. 18-2 at 5. Upon review of

the Complaint, Floyd names BPD only in the caption of the Complaint. ECF No. 1 at 1. Liability

under § 1983 attaches only upon personal participation by a defendant in the constitutional

violation. Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). As there are no factual allegations

raised against BPD, it will be dismissed.

II. Fifth, Eighth, and Thirteenth Amendment

Floyd asserts that the Defendant Officers’ misconduct violated his Fourth, Fifth, Eighth,

Thirteenth, and Fourteenth Amendment rights. Having reviewed the pleadings, the Court finds

that Floyd’s substantive allegations do not invoke either the Fifth, Eighth, or Thirteenth

Amendments. The Court is obligated to liberally construe the Complaint, however, these bare

legal conclusions cannot satisfy the basic pleading requirements of Federal Rule of Civil

Procedure 8. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Moreover, the Court is

not required to accept Floyd’s categorization of his claims. Even if it were, because Floyd proceeds

in forma pauperis, dismissal would be required of any insufficiently stated claims. See 28 U.S.C.

§ 1915(e)(2)(B)(ii). Accordingly, the Motion to Dismiss will be granted and these claims

dismissed for failure to state a claim.

III. Fourth and Fourteenth Amendment

Floyd does not specify which of the protections provided by either the Fourth or Fourteenth

Amendment he seeks to use as the basis for his claims. The Court will liberally construe Floyd’s

pleadings as alleging false arrest and failure to investigate under the Fourth Amendment, and a

Fourteenth Amendment due process violation.

The Fourth Amendment guarantees, among other things, “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …”

U.S. Const. amend IV. It is made applicable to the States through the Fourteenth Amendment.

Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Fourth Circuit has held that “there is no cause of

action for ‘false arrest’ under section 1983 unless the arresting officer lacked probable cause.”

Harrison v. Deane, 426 Fed.App’x 175, 181 (4th Cir. 2011) (quoting Street v. Surdyka 492 F.2d

368, 272-73 (4th Cir. 1974)) (internal quotations omitted). Probable cause exists if “at that moment

the facts and circumstances within [the officers’] knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a prudent man in believing that the petitioner

had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964); accord

Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 466 (4th Cir. 2013); see also Smith v.

Munday, 848 F.3d 248, 253 (4th Cir. 2017). A probable cause determination is governed by a

totality of the circumstances test. See Illinois v. Gates, 462 U.S. 213, 230-31 (1983); Munday, 848

F.3d at 253; United States v. Garcia, 848 F.2d 58, 59-60 (4th Cir. 1988).

Floyd’s allegations do not raise his claim above a speculative level and thus do not give

rise to a plausible claim for relief. He seems to suppose that Ott and Nagovich (or possibly

Savadel, Floyd provides conflicting allegations as to who conducted the photo array with the

victim) turned off the video recording of the interview in order to collude with the victim to make

false claims against Floyd. However, Floyd does not state what lies the victim told detectives, nor

does he state whether the photo array or the victims’ alleged false statements served as the basis

for his arrest. Floyd also summarily concludes that Ott altered the charging document after it was

signed due to a purported scribble on a box indicating a lack of probable cause. Notably, however,

Floyd does not actually allege the detectives lacked probable cause, but rather he simply concludes,

without support, that the charging document was altered.

Similarly, Floyd’s allegation that the detectives failed to thoroughly investigate because

they did not interview hospital staff to confirm the veracity of the victim’s statements is insufficient

to state a claim. The Fourth Amendment does not require that detectives pursue every exculpatory

lead before probable cause exists. See Miller v. Prince George’s Cnty., 475 F.3d 621, 630 (4th

Cir. 2007) (quoting Torchinsky v. Siwinski, 942 F.2d 257, 264 (4th Cir. 1991)). Moreover, Floyd

does not allege that further investigation would have revealed exculpatory evidence, nor does he

explain why hospital staff, who he does not allege were present at the shooting, would have

knowledge of the incident or the veracity of the victim’s statements.

Floyd also alleges that Parker and Howard purportedly “staged” 911 calls; this is, as

Defendants contend, conjecture at best. See ECF No. 18-2 at 9. Floyd includes no facts

establishing how Parker and Howard staged these phone calls. He also fails to provide any

explanation of how the purported difference in evidence presented at his trials supports his

conclusion that the calls were staged. Thus, as Floyd has provided the Court with nothing but

suppositions, his Fourth Amendment claims will be dismissed.

Finally, Floyd alleges that Detective Ott perjured himself, violating Floyd’s right to due

process of law under the Fourteenth Amendment. See ECF No. 1 at 3. To the extent he sought to

bring a procedural due process claim, he cannot reasonably establish such a claim as there were

two trials on the relevant criminal charges and he was ultimately acquitted of those charges. See

Mora v. City of Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008) (“Procedural due process is simply

the guarantee of fair procedures … typically notice and an opportunity to be heard …”) (citing

Zinermon v. Burch, 494 U.S. 113, 125 (1990) and Goss v. Lopez, 419 U.S. 565, 579 (1975)). To

the extent he sought to bring a substantive due process claim, it also fails. “[T]he touchstone of

[substantive] due process is protection of the individual against arbitrary action of the

government.” Mora, 519 F.3d at 230 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 845

(1998)). The Fourth Circuit has held that “substantive due process violations ‘run only to state

action so arbitrary and irrational, so unjustified by any circumstance or governmental interest, as

to be literally incapable of avoidance by any pre-deprivation procedural protections or of adequate

rectification by any post-deprivation state remedies.’” Id. (quoting Rucker v. Harford County,

Md., 946 F.2d 278, 281 (4th Cir. 1991)). Floyd’s general allegations of perjury cannot sustain a

substantive due process claim. Nor can any of his other allegations because, as discussed above,

he fails to plead any plausible cause of action. Therefore, Floyd’s pleadings fail to plausibly state

a due process violation.

Conclusion

For the reasons stated herein, Defendants’ Motion to Dismiss is granted and the Complaint

and Supplement are dismissed.1 A separate Order follows.

July 17. 2023 __________/s/___________________

Date Stephanie A. Gallagher

United States District Judge

1 As Defendants’ Motion will be granted for the foregoing reasons, the Court will not address Defendants’

qualified immunity argument.