McLamb v. The City of Mt. Rainier

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

PATRICIA MCLAMB

:

v. : Civil Action No. DKC 23-3365

:

CITY OF MOUNT RAINIER, et al.

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this civil

rights case arising from a building permit dispute is a motion to

dismiss, or in the alternative, for summary judgment, filed by

Defendants City of Mount Rainier (the “City”), Alma Ferrufino (“Ms.

Ferrufino”), and Ukkundo’Oohwaka (“Mr. Ukkundo’Oohwaka”)

(collectively, “City Defendants”). (ECF No. 13).1 The issues are

briefed, and the court now rules, no hearing being deemed

necessary. Local Rule 105.6. For the following reasons, the

motion to dismiss will be granted.

I. Background

A. Factual Background2

On September 27, 2018, Patricia McLamb (“Plaintiff”)

purchased the property located at 3716 37th Street, Mount Rainier,

1 Other defendants, Prince George’s County (the “County”) and

its employee, filed an answer and the claims against them are not

at issue in this motion.

2 The following facts are set forth in the complaint and

construed in the light most favorable to Plaintiff.

Maryland 20712 (the “Property”). (ECF No. 1 ¶ 12) [hereinafter

“Compl.”]. Plaintiff sought to remodel the Property and hired

Anthony Frazier (“Mr. Frazier”), an architect, to prepare a site

plan (the “Site Plan”) for submission to the Prince George’s County

Department of Permitting, Inspections, and Enforcement (“DPIE”).

(ECF No. 1-2). From 2019 to 2021, DPIE issued several permits to

Plaintiff to remodel the Property based on the Site Plan. (ECF

No. 1-3).

The Mount Rainier, Maryland Code of Ordinances (the “City

Code”) provides that:

Every construction, enlargement, permanent

paving, removal or demolition within the City

that requires a [County building permit] shall

also require a permit from the City of Mount

Rainier. All applicable lot coverage,

building height, setback, stormwater

management, sediment control, conservation

plan, and other requirements of the County

zoning and building codes and regulations must

be met in order to obtain a City permit.

Examples of construction that require a City

building permit, whether or not a County

building permit also is required, include

. . . (f) Demolition of a building or

structure with a footprint of one hundred

fifty (150) square feet or more that is under

a permanent roof, including but not limited to

portions of buildings and accessory

structures.

Mt. Rainier, Md., Code § 3-104 (A) (2024). The County permit is

a prerequisite for the City permit because applicants for a City

permit are also required to submit to the City, among other things,

“a copy of all County building or other permit(s) issued for the

work, along with copies of all plans and specifications submitted

to the County as part of such permit application and approval[.]”

Mt. Rainier, Md., Code § 3-104 (D)(3) (2024).

On November 2, 2021, after Plaintiff submitted the requisite

County permits and the Site Plan, the City issued a building permit

to Plaintiff authorizing a “40x8x29 second story addition” at the

Property “in accordance with the approved drawings and the Prince

George’s County Permit.” (ECF No. 1-4). On January 11, 2022,

Plaintiff began demolition work at the Property “in accordance

with the issued permits and approved Site Plan.” (Compl. ¶ 18).

On January 14, 2022, Ms. Ferrufino, Code Compliance Director

of the City Code Compliance Department, and Mr. Ukkundo’Oohwaka,

Code Compliance Inspector of the City Code Compliance Department,

visited the Property and ordered Plaintiff to “immediately cease-

and-desist all further work on the Property.” (Compl. ¶ 19). Ms.

Ferrufino and Mr. Ukkundo’Oohwaka then issued a stop work order

which ordered Plaintiff to “stop working on the property,” until

a building permit was obtained from the County and the City. (ECF

No. 1-5). Prior to issuing the stop work order, Ms. Ferrufino and

Mr. Ukkundo’Oohwaka refused to review DPIE’s permit database to

confirm whether Plaintiff had the proper permits. Upon receiving

the stop work order, Plaintiff asked if “she could secure one of

the two walls that remained standing following the demolition of

the other two walls” as “the Site Plan indicated that three of the

four walls were to be demolished and that one wall would remain in

place.” (Compl. ¶ 22). Ms. Ferrufino and Mr. Ukkundo’Oohwaka

denied Plaintiff’s request and the unsecured wall fell, damaging

the adjoining fence belonging to Plaintiff’s neighbor.

On January 18, 2022, Mr. Ukkundo’Oohwaka issued a notice of

violation warning to Plaintiff stating that Plaintiff did not have

the correct building permit to perform demolition work at the

Property. (ECF No.1-6).

On January 19, 2022, Darrel Terry (“Mr. Terry”), a supervisor

in the Residential/Light Construction Inspection Section of the

DPIE, and another DPIE inspector, visited the Property. Mr. Terry

“claimed [Plaintiff] did not have the proper temporary electrical

power permit for the [Property],” which the other inspector refuted

upon checking DPIE’s system. (Compl. ¶ 27). Mr. Terry asked the

other inspector to leave, and then issued a stop work order and

correction order to Plaintiff, stating that Plaintiff: (1) “Must

obtain raze permit for house taken down to foundation[;] (2) Must

revise permit from 2nd floor addition to permit for new single

family dwelling [; and] (3) Must obtain sprinkler permit.” (ECF

No. 1-7).

On January 27, 2022, Mr. Frazier contacted George Holmes (“Mr.

Holmes”), DPIE’s Assistant Associate Director, to discuss the

problems Plaintiff had with Ms. Ferrufino, Mr. Ukkundo’Oohwaka,

and Mr. Terry. In turn, Mr. Holmes asked Nabeel Waseem (“Mr.

Waseem”), Chief of the Building Plan Review Division, to resolve

the matter with Mr. Frazier. Mr. Holmes stated, “the approved

Site Plan authorized demolition of three walls, but that the plans

would . . . need to be revised due to the collapse of the fourth

wall.” (Compl. ¶ 29).

On March 23, 2022, DPIE approved the revised plans that

addressed the collapsed wall but did not issue the permit to

Plaintiff because Mr. Terry refused to lift the stop work order he

placed on the Property. On April 5, 2022, Mr. Frazier was informed

that DPIE listed the revised permit as “Ready to Issue” in its

database but refused to issue the permit because of the stop work

order issued by Mr. Terry. On June 13, 2022, Mr. Holmes told

Plaintiff that he would contact Mr. Terry and request that he

remove the stop work order.

On July 13, 2022, Kenneth Harrison (“Mr. Harrison”), a DPIE

Inspector, contacted Plaintiff to inform her that the County

intended to take her home. Later that day, Mr. Terry called

Plaintiff and told her that “Mr. Frazier was lying to her about

the permitted work that had been approved by DPIE,” and he advised

Plaintiff to fire Mr. Frazier. Mr. Terry then told Plaintiff the

County would put a lien on her home and take it, but he and “Mr.

Johnson” could “quickly resolve everything related to the . . .

Property.” (Compl. ¶ 37). Plaintiff attempted to find out who

the “Mr. Johnson” referenced by Mr. Terry was until a friend

informed her “that ‘Mr. Johnson’ likely referred to male

genitalia.” (Compl. ¶¶ 38-9).

In August 2022, Mr. Waseem informed Plaintiff that

“everything was in order and that the permit revisions were

approved,” but “he was unable to issue the approved permit due to

the stop work order that was still in place by [Mr.] Terry.”

(Compl. ¶ 42).

On September 20, 2022, Mr. Ukkundo’Oohwaka issued a $1,000

citation and a notice to Plaintiff stating that she needed to

obtain a vacant lot permit for the Property due to its unfinished

condition. On December 1, 2022, Mr. Ukkundo’Oohwaka issued a

letter to Plaintiff stating that the City intended to file a lien

on the Property for $1,000 for “Section 3B-101 Noncompliance of

Registering a Vacant Property.” (ECF No. 1-8).

On January 11, 2023, Bellur Ravinshankar (“Mr.

Ravinshankar”), informed Mr. Frazier that he would instruct Mr.

Moseley to request the stop work order be immediately lifted.

Behdad Kashanian, Associate Director of DPIE’s inspections

Division, told Mr. Ravinshankar that nothing had changed to justify

removal of the stop work order. (Compl. ¶ 46).

On February 16, 2023, and March 10, 2023, Plaintiff received

violation notices from Mr. Ukkundo’Oohwaka, requiring her to

“[r]epair or place damaged fence” and “[c]onstruct building or

raze it.” (ECF No. 1-9). On March 27, 2023, DPIE also issued a

citation to Plaintiff for $4,000, alleging that she did not have

the required permit to perform interior renovations at the Property

even though Plaintiff never performed interior renovation work on

the Property and had ceased all work on the property following the

issuance of the stop work orders.

On May 9, 2023, Plaintiff, through counsel, sent a Notice of

Representation, Evidence Preservation Request, and Notice of Local

Government Tort Claims Act Claim to the City and the County. (ECF

No. 1-9). On May 12, Mr. Harrison contacted Plaintiff to discuss

the Property and refused to talk to Plaintiff’s attorney despite

requests that Mr. Harrison communicate with Plaintiff’s attorney.

(Compl. ¶ 50).

On May 19, 2023, Mr. Ukkundo’Oohwaka issued a criminal

citation to Plaintiff for “noncompliance of constructing or raze

an unsafe building.” (ECF No. 1-11). On July 19, 2023, Plaintiff

pleaded guilty to the City’s criminal citation. (ECF No. 13-8).

On August 2, 2023, DPIE issued a citation to Plaintiff for

$4,000, alleging she did not have the required permit to perform

interior renovations at the Property. The issued citation had a

permit number that was not associated with Plaintiff or the

Property.

To date, the stop work order issued by Mr. Terry remains on

the Property. (Compl. ¶ 56).

B. Procedural Background

On December 12, 2023, Plaintiff filed a complaint against the

City, the County, Ms. Ferrufino, Mr. Ukkundo’Oohwaka, and Mr.

Terry. (Compl.). On January 18, 2024, the County and Mr. Terry

filed an answer. (ECF No. 10). On February 12, 2024, the City,

Ms. Ferrufino, and Mr. Ukkundo’Oohwaka filed a motion to dismiss,

or in the alternative, for summary judgment. (ECF No. 13).

Plaintiff filed a response in opposition to City Defendants’ motion

on February 26, 2024. (ECF No. 14). She also submitted an

affidavit pursuant to Federal Rule of Civil Procedure 56(d).3 On

March 26, 2024, City Defendants filed a reply to Plaintiff’s

opposition. (ECF No. 17).

II. Standard of Review

City Defendants styled their motion as a motion to dismiss

or, in the alternative, for summary judgment.

A motion to dismiss under Rule 12(b)(6) tests the sufficiency

of the complaint. Presley v. City of Charlottesville, 464 F.3d

480, 483 (4th Cir. 2006). “[T]he district court must accept as

true all well-pleaded allegations and draw all reasonable factual

inferences in plaintiff’s favor.” Mays v. Sprinkle, 992 F.3d 295,

299 (4th Cir. 2021). A plaintiff’s complaint needs only satisfy

the standard of Rule 8(a)(2), which requires a “short and plain

3 Plaintiff refers to Jordan D. Howlette’s affidavit as a Rule

56(f) motion; however, that is the former rule. The rule is now

Fed.R.Civ.P. 56(d).

statement of the claim showing that the pleader is entitled to

relief.” Fed.R.Civ.P. 8(a)(2). “[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.’” Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). A Rule

8(a)(2) “showing” requires “stat[ing] a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that defendant is liable for the misconduct alleged.”

Mays, 992 F.3d at 299-300 (quoting Iqbal, 556 U.S. at 663). Legal

conclusions couched as factual allegations are insufficient,

Iqbal, 556 U.S. at 678, 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).

“As a general rule, the court does not consider extrinsic

evidence at the motion to dismiss stage[.]” Faulkenberry v. U.S.

Dep’t of Def., 670 F.Supp.3d 234, 249 (D.Md. 2023) (quoting Reamer

v. State Auto. Mut. Ins. Co., 556 F.Supp.3d 544, 549 (D.Md. 2021),

aff’d, No. 21-2432, 2022 WL 17985700 (4th Cir. Dec. 29, 2022)).

“However, ‘the court may consider, without converting the motion

to dismiss into one for summary judgment, documents attached to

the complaint as exhibits, and documents attached to a motion to

dismiss if the document is integral to the complaint and there is

no dispute about the document’s authenticity.’” Faulkenberry, 670

F.Supp.3d at 249 (quoting Reamer, 556 F.Supp.3d at 549). “A

document is integral to the complaint if its very existence, and

not the mere information it contains, gives rise to the legal

rights asserted.” Faulkenberry, 670 F.Supp.3d at 249 (quoting

Reamer, 556 F.Supp.3d at 549) (internal quotation marks omitted).

A court may also “consider ‘matters of which a court may take

judicial notice.’” Faulkenberry, 670 F.Supp.3d at 249 (quoting

Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322

(2007)). “[A] court may properly take judicial notice of matters

of public record and other information that, under Federal Rule of

Evidence 201, constitute adjudicative facts.” Faulkenberry, 670

F.Supp.3d at 249 (quoting Taylor v. Go-Getters, Inc., No. 20-cv-

3624-ELH, 2022 WL 1127902, at *7 (D.Md. Apr. 15, 2022)).

The documents attached to City Defendants’ motion are: (1)

the DPIE Permit history report showing the McLamb Addition; (2)

photos of the Property; (3) the January 14, 2022 stop work order;

(4) excerpts from the City Code; (5) electronic case records of

judicial proceedings; and (6) a DPIE permit history report showing

Permit 8094-2023-00. (ECF Nos. 13-2 through 13-8). Both the DPIE

Permit history report and the January 14, 2022 stop work order are

attached to the complaint.4 (See ECF Nos. 1-3; 1-5; 13-2; 13-4).

The DPIE Permit history report showing permit 8094-2030-00 is

incorporated by reference in the complaint and there is no dispute

regarding its authenticity, so it may be considered without

converting the motion to dismiss into one for summary judgment.

Additionally, the court may take judicial notice of the three

electronic case records offered by City Defendants as well as the

excerpts from the City Code. (ECF Nos. 13-5 through 13-8). The

photo of the Property, however, will not be considered by the court

as it is not integral to the complaint, a public record, or

adjudicative fact warranting judicial notice and is therefore

improper for consideration on a motion to dismiss. (ECF No. 13-

3).5

III. Analysis

Five counts are relevant to the pending motion: violation of

the Equal Protection Clause (Count I), an unconstitutional taking

of property in violation of the Fifth Amendment (Count II),

Maryland state law violations (Count III), violation of due process

under the Fourteenth Amendment (Count IV), and negligence (Count

V). In their motion to dismiss, City Defendants argue that (1)

4 The DPIE Permit history report is a condensed version of

the individual DPIE permits presented in the complaint, but the

information offered is identical.

5 It is not necessary to review the photo submitted by City

Defendants for the court to resolve this matter.

Plaintiff has failed to plead plausible claims for Counts I, II,

and IV; (2) qualified immunity bars Counts I, II, and IV; (3)

Plaintiff has failed to plead plausible claims for Count III; and

(4) common law public official immunity bars Count V. (ECF No. 13-

1). They also argue, as a matter of fact, that Plaintiff never

possessed the proper permits to perform demolition work.

A. Counts I, II, and IV: Plaintiff’s Section 1983 Claims

Plaintiff has filed suit against the City, Ms. Ferrufino, and

Mr. Ukkundo’Oohwaka under 42 U.S.C. § 1983. Count I alleges that

Ms. Ferrufino and Mr. Ukkundo’Oohwaka are liable in their

individual capacities under § 1983 for violating Plaintiff’s right

to equal protection under the law. (Compl. ¶¶ 57-64). Count II

lodges a claim against the City and Ms. Ferrufino and Mr.

Ukkundo’Oohwaka in their official capacities, under § 1983,

asserting violations of the Fifth Amendment’s Takings Clause.

(Compl. ¶¶ 65-73). Finally, Count IV alleges that Ms. Ferrufino

and Mr. Ukkundo’Oohwaka are liable in their individual capacities

under § 1983 for violating Plaintiff’s substantive due process

rights. (Compl. ¶¶ 83-88).

Under 42 U.S.C. § 1983, a plaintiff may file suit against an

individual who, under color of state law, “subjects, or causes to

be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by

the Constitution and laws” of the United States. A person acts

under color of state law “only when exercising power ‘possessed by

virtue of state law and made possible only because the wrongdoer

is clothed with the authority of state law.’” Polk Cnty. V.

Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States v.

Classic, 313 U.S. 299, 326 (1941)). “Because vicarious liability

is inapplicable to . . . § 1983 suits, a plaintiff must plead that

each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Iqbal, 556

U.S. 662, 676 (2009).

1. Plaintiff’s Equal Protection Claim

In Count I, Plaintiff alleges a § 1983 against Ms. Ferrufino

and Mr. Ukkundo’Oohwaka based on a violation of the Fourteenth

Amendment’s Equal Protection Clause. (Compl. ¶¶ 57-64).

Plaintiff asserts that Ms. Ferrufino and Mr. Ukkundo’Oohwaka,

acting under color of state law, “arbitrarily singled out

[Plaintiff] in the code enforcement process and deprived her of

equal protection under the law.” (Compl. ¶ 59). This equal

protection claim presents a “class-of-one” theory, rather than one

based on class-based discrimination. (ECF No. 14, at 5-6).

Specifically, Plaintiff alleges that she was treated differently

than her neighbor, the holder of County Permit Number 8094-2023-

00 (“County Permit 8094-2023-00”). (Compl. ¶ 60). City Defendants

contend that Plaintiff fails to allege facts sufficient to

establish that she was treated differently than a similarly

situated permit holder as Permit 8094-2023-00 explicitly allows

for “main floor non load bearing demolition,” where Plaintiff’s

permit does not. (ECF Nos. 13-1; 13-9).

“The Equal Protection Clause of the Fourteenth Amendment

commands that no State shall ‘deny to any person within its

jurisdiction the equal protection of the laws,’ which is

essentially a direction that all persons similarly situated should

be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 439 (1985) (quoting U.S. Const. amend. XIV, § 1). To

succeed on a class-of-one theory, a party must allege that he or

she “has been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S.

562, 564 (2000).

Here, Plaintiff has not adequately alleged that she was

treated differently from others who were similarly situated.

Plaintiff’s March 26, 2019 County permit lists the following work

description as: “Addition: 40’ X 8’ 29’ Second Story Addition.”

(ECF No. 1-3, at 2). In contrast, County Permit 8094-2023-00 lists

the work description as: “Main floor non load bearing demolition.

Main floor renovation. R&R windows, kitchen cabinets, flooring,

new drywall, paint.” (ECF No. 13-9, at 1). Plaintiff has not

provided any factual allegations to support that she and the holder

of Permit 8094-2023-00 or any other individual were similarly

situated and thus has failed to state a plausible claim of

discrimination. Accordingly, the motion to dismiss will be granted

as to Count I.

City Defendants argue, in the alternative, that even if

Plaintiff pleaded a sufficiently similar comparator, she has not

alleged acts that would fail the requisite level of scrutiny. (ECF

No. 13-1, at 16).

Governmental action that does not burden a fundamental right

or employ a suspect classification will not violate the Equal

Protection Clause if government officials “reasonably could have

believed that the action was rationally related to a legitimate

governmental interest.” Front Royal & Warren Cnty. Indus. Park

Corp. v. Town of Front Royal, 135 F.3d 275, 290 (4th Cir. 1998).

The question is whether “any state of facts reasonably may be

conceived to justify” the actions of Ms. Ferrufino and Mr.

Ukkundo’Oohwaka. See McGowan v. Maryland, 366 U.S. 420, 426

(1961).

Plaintiff alleges the actions of Ms. Ferrufino and Mr.

Ukkundo’Oohwaka were “unreasonable under the circumstances,” which

“intentionally and maliciously” deprived Plaintiff of equal

protection under the law. (Compl. ¶¶ 62-63). In response, City

Defendants argue the demolition work was unpermitted and unsafe,

as evidenced by the collapsed fourth wall, as the rationale for

the issuance of the stop work order and subsequent infractions.

(ECF No. 13-1, at 16). Plaintiff’s conclusory statements, without

factual allegations, are insufficient to overcome the presumption

that Ms. Ferrufino and Mr. Ukkundo’Oohwaka’s issuance of a stop

work order or subsequent action was rational.

Accordingly, because Plaintiff asserts only a class-of-one

equal protection claim and she has not overcome the deference

afforded by rational basis review, the motion to dismiss will be

granted, and as stated above, Count I will be dismissed as to Ms.

Ferrufino and Mr. Ukkundo’Oohwaka.6

2. Plaintiff’s Fifth Amendment Takings Clause Claim

In Count II, Plaintiff asserts a § 1983 claim against the

City (and Ms. Ferrufino and Mr. Ukkundo’Oohwaka in their official

capacities7) for a violation of the Fifth Amendment,8 based on

6 Plaintiff refers to her Rule 56(d) affidavit asserting the

need for discovery related to Count I. City Defendants’ motion is

being construed as a 12(b)(6) motion to dismiss for failure to

state a claim rather than one for summary judgment. The “need for

discovery to complete the factual basis for alleged claims is not

an excuse to allege claims with no factual basis.” In re Kunstler,

914 F.2d 505, 516 (4th Cir. 1990). Rule 11 requires a pre-filing

factual investigation. A complaint containing factual allegations

unsupported by any information obtained prior to filing violates

this requirement. Fed.R.Civ.P. 11(b)(3).

7 Plaintiff agrees to dismiss the portion of Count II naming

Ms. Ferrufino and Mr. Ukkundo’Oohwaka in their official capacity.

(See ECF No. 14, at 7).

8 Plaintiff asserts that she was deprived of her property

without compensation in violation of her rights under the Fifth

Amendment. (Compl. ¶¶ 65-73). The Takings Clause of the Fifth

Amendment applies only to the conduct of federal actors, not state

actors like the Defendants in this matter. The Fifth Amendment is

Monell v. Department of Social Services, 436 U.S. 658 (1978).

(Compl. ¶¶ 65-73). Plaintiff alleges that the City, through its

agents, Ms. Ferrufino and Mr. Ukkundo’Oohwaka, and official

policies or customs, deprived Plaintiff of the “beneficial use and

economic value of her property” which constitutes an

unconstitutional taking. (Compl. ¶ 71). Plaintiff alleges the

City has “a practice of not reviewing permits approved and issued

by DPIE prior to determining whether a homeowner is authorized to

perform construction and/or demolition work on their property” and

“a practice of not reviewing its own permits and the meeting

minutes from its Design Review Board prior to determining whether

a homeowner is violating local code enforcement regulations.”

(Compl. ¶ 68). In response, City Defendants assert that: (1)

Plaintiff has failed to state an unconstitutional policy, custom,

or practice attributable to the City; (2) Plaintiff has failed to

plead the alleged failure to check building permits prior to

issuing a stop work order ever occurred; and (3) even assuming Ms.

Ferrufino and Mr. Ukkundo’Oohwaka failed to check the issued

permits, Plaintiff has “failed to identify an official policy or

single additional instance of a stop work order being improperly

issued.” (ECF No. 13-1, at 17-19).

made applicable to the States through the Fourteenth Amendment.

See Phillips v. Wash. Legal Found., 524 U.S. 156, 163-64 (1998).

a. Plaintiff’s Monell Claim

A municipality is subject to suit under § 1983 based on the

unconstitutional actions of individuals who were “executing an

official policy or custom of the local government that violated

the plaintiff’s rights.” Little v. Mayor of Ocean City, No. 18-

cv-00360-ELH, 2019 WL 4689238, at *11 (D.Md. Sept. 26, 2019)

(citing Monell, 436 U.S. at 690-91 (1978)). This court has

previously explained Monell liability:

Under Monell, “[l]iability arises only where

the constitutionally offensive acts of city

employees are taken in furtherance of some

municipal ‘policy or custom.’” Milligan v.

City of Newport News, 743 F.2d 227, 229 (4th

Cir. 1984). Policy or custom may be found in

a number of ways, such as “in . . .

‘persistent . . . practices of [municipal]

officials having the de facto force of law.’”

Milligan, 743 F.2d at 229. “[L]ocal

governments . . . may be sued for

constitutional deprivations visited pursuant

to governmental ‘custom’ even though such a

custom has not received formal approval

through the body’s official decision making

channels.” Monell, 436 U.S. at 690–91.

Policy or custom may also “be inferred from

continued inaction in the face of a known

history of widespread constitutional

deprivations on the part of city employees.”

Milligan, 743 F.2d at 229–30. Under narrow

circumstances, policy may also be inferred

“from the manifest propensity of a general,

known course of employee conduct to cause

constitutional deprivations to an

identifiable group of persons having a special

relationship to the state.” Id. at 230.

However, “a municipal policy or custom giving

rise to § 1983 liability will not be inferred

merely from municipal inaction in the face of

isolated constitutional deprivations by

municipal employees.” Id.

Lanford v. Prince George’s Cnty., 199 F.Supp.2d 297, 304 (D.Md.

2002) (citations omitted).

Plaintiff attempts to allege municipal liability based on the

City’s official policies, practices, and customs. (Compl. ¶¶ 68-

69). Specifically, Plaintiff alleges that the City has: (1) “a

practice of not reviewing permits approved and issued by DPIE prior

to determining whether a homeowner is authorized to perform

construction . . . on their property;” and (2) “a policy or

practice of refusing to lift Stop Work Orders . . . even when

instructed to do so by [DPIE’s] Building Plan Review Division.”

(Compl. ¶¶ 68-70). Plaintiff has alleged no facts, except those

surrounding her own claim, to show that the City has a policy,

practice, or custom of (1) not reviewing permits issued by DPIE or

(2) refusing to lift stop work orders when instructed to do so by

DPIE. These allegations alone are not sufficient to state a Monell

claim. See Boliek v. Frendlich, No. 04-cv-03655-RDB, 2005 WL

1363980, at *6 (D.Md. June 7, 2005) (reasoning that “boilerplate

allegations of a municipal policy, entirely lacking in any factual

support that a city policy does exist, are insufficient.”) (quoting

Lanigan v. Vill. Of E. Hazel Crest, 110 F.3d 467, 479 (7th Cir.

1997)). Additionally, Plaintiff fails to offer factual

allegations of known, widespread conduct by City employees

comparable to that allegedly committed by Ms. Ferrufino and Mr.

Ukkundo’Oohwaka. See Milligan, 743 F.2d at 230. Even if Ms.

Ferrufino and Mr. Ukkundo’Oohwaka violated Plaintiff’s

constitutional rights, these violations alone do not permit a

proper inference of municipal liability because Plaintiff has not

adequately plead a practice, policy, or custom exists. See Bd. of

Cnty. Comm’rs v. Brown, 520 U.S. 397, 406 (1997).

Accordingly, the motion to dismiss Count II against the City

will be granted.

3. Plaintiff’s Substantive Due Process Claim

In Count IV, Plaintiff asserts a substantive due process claim

against Ms. Ferrufino and Mr. Ukkundo’Oohwaka in their individual

capacities. (Compl. ¶¶ 83-88). Plaintiff alleges that Ms.

Ferrufino and Mr. Ukkundo’Oohwaka deprived her of her property

interest in the permits issued by DPIE and the City when they

“refused to allow her perform the construction and demolition work

within the scope of the issued permits.” (Compl. ¶¶ 83-88).9 In

response, City Defendants argue: (1) Plaintiff failed to plead a

legitimate source of entitlement to the DPIE and City permits;

(2) even if Plaintiff held a legitimate claim of entitlement to

DPIE permits, Ms. Ferrufino and Mr. Ukkundo’Oohwaka do not have

the power to revoke County permits; (3) the City permits did not

allow demolition, and (4) Ms. Ferrufino and Mr. Ukkundo’Oohwaka’s

9 Confusingly, the complaint explicitly asserts that Plaintiff

had a property interest in the DPIE permit, (Compl. ¶ 85), but

then contends that she was deprived of a protected property

interest by the refusal to allow her to perform work within the

scope of the “issued permits.” (Compl. ¶ 86).

actions were within the bounds of legitimate governmental action.

(ECF No. 13-1, at 20-22).

Substantive due process is a far “narrower concept than

procedural due process, for it serves as ‘an absolute check on

certain governmental actions notwithstanding the fairness of the

procedures’ used to implement those actions.” Heward v. Bd. Of

Educ., 23-cv-00195-ELH, 2023 WL 6381498, at *49 (D.Md. Sept. 29,

2023) (quoting Front Royal, 135 F.3d 275, 278-88)). “Substantive

due process protections ‘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.’” (Tri-Cnty. Paving, Inc. v.

Ashe Cnty., 281 F.3d 430, 441 (4th Cir. 2002)). To establish a

violation of substantive due process, a plaintiff must

“‘demonstrate (1) that they had property or a property interest;

(2) that the state deprived them of this property or property

interest; and (3) that the state’s action falls so far beyond the

outer limits of legitimate governmental action that no process

could cure the deficiency.’” MCL Auto., LLC v. Town of S. Pines,

532 F.3d 269, 282 (4th Cir. 2008) (quoting Sylvia Dev. Corp. v.

Calvert Cnty., 48 F.3d 810, 827 (4th Cir. 1995)). “To have a

property interest in a benefit, a person clearly must have more

than an abstract need or desire for it. [They] must have more

than a unilateral expectation of it. [They] must, instead, have

a legitimate claim of entitlement to it.” Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 577 (1972). Property owners obtain

a vested right in a permit when they “(1) obtain a lawful building

permit; (2) commence building in good faith; and (3) complete a

substantial portion of construction.” Rockville Cars, LLC v. City

of Rockville, 891 F.3d 141, 147 (4th Cir. 2018).

Here, Plaintiff has sufficiently alleged that she has a vested

right to the permits because she (1) applied for and obtained the

permits; (2) began construction in January of 2022 “in accordance

with the issued permits”; and (3) completed demolition of three of

the four exterior walls prior to the issuance of the stop work

order. (Compl. ¶¶ 13-18). City Defendants’ contention that the

County and City Codes provide DPIE and the City the authority to

grant, deny, suspend, or revoke permits could have merit if

Plaintiff were seeking to establish a claim of entitlement or

approval to an unissued permit, but here Plaintiff had already

issued permits. See Gardner v. City of Baltimore Mayor, 969 F.2d

63, 68 (4th Cir. 1992) (“Under [Roth’s claim of entitlement]

approach, whether a property-holder possesses a legitimate claim

of entitlement to a permit or approval turns on whether . . . the

local agency lacks all discretion to deny issuance of the permit

or to withhold its approval.”).

Plaintiff sufficiently pleads the second element of a

substantive due process claim by alleging that Ms. Ferrufino and

Mr. Ukkundo’Oohwaka deprived her of the City permit while “acting

under color of state law.” (Compl. ¶ 86). She does not, however,

allege facts demonstrating that Ms. Ferrufino and Mr.

Ukkundo’Oohwaka deprived her of the DPIE permits.

Plaintiff fails to plead the third element, sufficiently or

explicitly. Even taking Plaintiff’s allegations as true,

Plaintiff has not alleged that the actions of Ms. Ferrufino and

Mr. Ukkundo’Oohwaka were so arbitrary as to be incapable of

avoidance by post deprivation state remedies. See Tri-Cnty.

Paving, 281 F.3d at 440 (“[W]hether [defendants] violated state

law in regulating land use is not determinative of whether

[plaintiff’s] substantive due process rights were violated. If

state law is transgressed, state courts are open to redress that

violation and remedy an unlawful deprivation of property.”).

Accordingly, Plaintiff does not adequately plead a

substantive due process violation and Count IV will be dismissed

as to Ms. Ferrufino and Mr. Ukkundo’Oohwaka.

4. Qualified Immunity

City Defendants generally contend that even if the conduct of

Ms. Ferrufino or Mr. Ukkundo’Oohwaka were found to violate

Plaintiff’s constitutional rights under Counts I, II10, or IV, they

are entitled to qualified immunity on each count. (ECF No. 13-1,

at 23-24). It is not necessary to address this argument in light

of the dismissal of those counts for failure to state a claim.

B. Counts III and V: State Law Claims

1. Plaintiff’s Claims Under Article 24 of the Maryland

Declaration of Rights and Article III

Count III of the complaint alleges violations of Plaintiff’s

rights under the Article 24 of the Maryland Declaration of Rights

and Article III, § 40 of the Maryland Constitution against Ms.

Ferrufino and Mr. Ukkundo’Oohwaka in their individual capacities.

(Compl. ¶¶ 74-82).

Plaintiff alleges that Ms. Ferrufino directed the City Code

Compliance Enforcement Division to adopt “enforcement policies and

customs that went too far by depriving [Plaintiff] of the

beneficial and economic value of her property without

compensation. (Compl. ¶ 77). Plaintiff alleges that Ms. Ferrufino

knew or should have known that the policies she “developed and/or

sanctioned were being enforced . . . in a manner that reflected a

deliberate indifference to the risk” of constitutional violations.

(Compl. ¶ 79). Plaintiff also alleges that Mr. Ukkundo’Oohwaka,

10 Count II is only against the City at present, because

Plaintiff agrees to dismiss the official capacity claims against

Ms. Ferrufino and Mr. Ukkundo’Oohwaka. Qualified immunity does

not apply to official capacity suits, in any event. Biggs v.

Meadows, 66 F.3d 56, 61 (4th Cir. 1995) (citation omitted).

“through [his] . . . actions,” violated her rights under the

Maryland Declaration of Rights and the Maryland Constitution, and

that he did so with a “deliberate indifference to the risk that a

constitutional violation would occur.” (Compl. ¶¶ 80-81). City

Defendants argue that Plaintiff has failed to identify a specific

policy or custom that led to a deprivation or rights and failed to

identify how any unconstitutional policy or custom would be

attributed to Ms. Ferrufino. (ECF No. 13-1, at 25). City

Defendants further argue that Plaintiff’s assertion that Ms.

Ferrufino and Mr. Ukkundo’Oohwaka deprived her of all “beneficial

use and economic value of her property” is a “misstatement of

fact.” (ECF No. 13-1, at 25).11

Article III, Section 40 of the Maryland Constitution contains

a provision that parallels the Fifth Amendment Takings Clause of

the United States Constitution and is interpreted in pari materia

with the federal provision. Maryland Const., Art. III, Sec. 40;

Litz v. Md. Dep’t of Env’t, 446 Md. 254, 265-66 (2016).

Article 24 of the Maryland Declaration of Rights is analogous

to the Fourteenth Amendment and protects an individual’s interest

in both substantive and procedural due process. See Off. of

People’s Couns. v. Md. Pub. Serv. Comm’n, 355 Md. 1, 25-27 (1999)

(discussing substantive due process); Roberts v. Total Health

11 Any factual dispute between the parties is irrelevant at

this stage of the litigation.

Care, Inc., 349 Md. 499, 508-09 (1988) (discussing procedural due

process). Article 24 has been interpreted to have “the exact same

meaning an effect” as Article III, Section 40 as it relates to an

exaction of property. Student “C” v. Anne Arundel Cnty. Cmty.

Coll., 513 F.Supp. 658, 667 (D.Md. 2021) (quoting Bureau of Mines

of Md. v. George’s Creek Coal Land Co., 272 Md. 143, 156 (1974)).

Although in some instances, a claim under Article III and

Article 24 requires a separate analysis, one is not necessary here

because Plaintiff’s Article III claim fails for one of the same

reasons as her takings claim in Count II. Plaintiff provides no

factual support for her allegations of a policy or practice

implemented by Ms. Ferrufino and carried out by Mr. Ukkundo’Oohwaka

that deprived her of her rights. The motion to dismiss Count III

against Ms. Ferrufino and Mr. Ukkundo’Oohwaka will be granted.

2. Plaintiff’s Negligence Claim

Count V is brought against Ms. Ferrufino and Mr.

Ukkundo’Oohwaka in their individual capacities. Plaintiff alleges

that Ms. Ferrufino and Mr. Ukkundo’Oohwaka were negligent in the

performance of “their code enforcement activities” with respect to

Plaintiff and the Property. (Compl. ¶ 90). Specifically,

Plaintiff alleges that Ms. Ferrufino and Mr. Ukkundo’Oohwaka had

a duty to engage with her in a “lawful manner” and that Ms.

Ferrufino and Mr. Ukkundo’Oohwaka breached that duty “through the

issuance of unreasonable orders and baseless citations.” (Compl.

¶¶ 90-91). In response, City Defendants do not challenge

Plaintiff’s allegation of negligence, rather they assert that Ms.

Ferrufino and Mr. Ukkundo’Oohwaka are entitled to public official

immunity under Maryland law. (ECF No. 13-1, at 26-28).

a. Public Official Immunity

Common law public official immunity applies to “public

officials (as opposed to mere employees) who perform negligent

acts during the course of their discretionary (as opposed to

ministerial) duties.” Houghton v. Forrest, 412 Md. 578, 585

(2010).

The Supreme Court of Maryland explained: “The term discretion

denotes freedom to act according to one’s judgment in the absence

of a hard and fast rule. When applied to public officials,

discretion is the power conferred upon them by law to act

officially under certain circumstances according to the dictates

of their own judgment and conscience and uncontrolled by the

judgment or conscience of others.” Livesay v. Balt. Cnty., 384

Md. 1, 16 (2004).

The City Code makes clear that an individual acting as a

building inspector “may” suspend or revoke a City building permit,

and that a building inspector “may issue a stop work order or other

notice of violation.” Mt. Rainier, Md., Code §§ 3-114 (B), 3-

103(E) (2024). Courts generally interpret “may” as permissive, in

contrast with “shall,” which is interpreted as mandatory. See Bd.

Of Physician Quality v. Mullan, 381 Md. 157, 166 (2004); State v.

Green, 367 Md. 61, 82 (2001). The plain language of the City Code

establishes that the duties performed by Ms. Ferrufino and Mr.

Ukkundo’Oohwaka were discretionary as opposed to ministerial in

nature. See Livesay, 384 Md. at 16 (finding that an Operations

Manual’s use of “may” as opposed to “shall” gave officers

discretion to select the appropriate response based on the

circumstances). Thus, because the City Code authorizes Ms.

Ferrufino and Mr. Ukkundo’Oohwaka to use discretion in carrying

out their official duties, their actions were discretionary in

nature, not ministerial. Accordingly, Ms. Ferrufino and Mr.

Ukkundo’Oohwaka are entitled to public official immunity.

b. Malice Exception

Plaintiff further asserts that Ms. Ferrufino and Mr.

Ukkundo’Oohwaka acted in a “malicious or wanton manner in the

actions they took against” Plaintiff and the Property. (Compl. ¶

92). Public official immunity is not afforded for any alleged

intentional torts or acts committed with actual malice.12 Ashton

12 An allegation of gross negligence can also defeat public

official immunity. See Cooper v. Rodriguez, 443 Md. 680, 723

(2015) (“[I]f a public official’s actions are grossly negligent,

the public official is not entitled to common law public official

immunity.”). Plaintiff attempts to allege gross negligence on the

part of Ms. Ferrufino and Mr. Ukkundo’Oohwaka in her opposition.

(ECF No. 14, at 14). That allegation, though not relevant here as

it was not alleged in the complaint, fails for the same reasoning

as Plaintiff’s “malice” allegation does-Plaintiff’s failure to

allege facts that support her allegation of gross negligence. See

Elliot, 58 Md.App. at 528.

v. Brown, 339 Md. 70, 118 (1995). The mere assertion of malice,

however, is not sufficient to overcome public official immunity,

rather the Plaintiff must “allege with some clarity and precision

those facts which make the act malicious.” Elliot v. Kupferman¸58

Md.App. 510, 528 (1984).

“Actual malice is established by proof that the officials

intentionally performed an act without legal justification or

excuse, but with an evil or rancorous motive influenced by hate,

the purpose being to deliberately and willfully injure the

plaintiff. Owen-Williams v. City of Gaithersburg, No. 10-cv-185-

PJM, 2011 WL 53082, at *5 (D.Md. Jan. 7, 2011).

Plaintiff’s complaint does not adequately state that Ms.

Ferrufino or Mr. Ukkundo’Oohwaka acted with ill will, improper

motive, or without legal justification or excuse. Instead, the

complaint only broadly alleges that Ms. Ferrufino and Mr.

Ukkundo’Oohwaka “acted in a malicious or wanton manner in the

actions they took against [Plaintiff] and the . . . Property” and

that Ms. Ferrufino and Mr. Ukkundo’Oohwaka’s actions “lack any

justification or basis under the law.” (Compl. ¶ 92). Plaintiff

has not “allege[d] with some clarity and precision” any facts that

make the actions of Ms. Ferrufino and Mr. Ukkundo’Oohwaka

malicious. See Elliot, 58 Md.App. at 528.

Therefore, Ms. Ferrufino and Mr. Ukkundo’Oohwaka are entitled

to public official immunity and the motion to dismiss Count V, as

to Ms. Ferrufino and Mr. Ukkundo’Oohwaka, will be granted.

IV. Conclusion

For the foregoing reasons, City Defendants’ motion, treated

solely as a motion to dismiss, will be granted. While it is not

clear that Plaintiff can remedy any of the defects identified in

this Opinion, and she has not asked for leave to amend the

complaint, she will be provided an opportunity to do so. A

separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge