Harden v. Smythe

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND.

MARILYN HARDEN, et al.,

*

Plaintiffs,

*&

Vv.

* Civil No. 24-02018-BAH

JAMAR SMYTHE, et al.,

*

Defendants. □

* .

* * * * # * #

MEMORANDUM AND ORDER

Plaintiffs Marilyn Harden (“Harden”), Corena McQueen, and Correll McQueen, Jr.

(“Plaintiffs”) filed the above-captioned complaint against Defendants Jamar Smythe, Smythe

Properties, LLC, and Baltimore Regional Housing Partnership (“BRHP”),' ECF 1, pro se together

‘with a motion for leave to proceed in forma pauperis, ECF 2. Plaintiffs purport to bring an action

arising under 42 U.S.C § 1983, alleging violations of the Rehabilitation Act, 29 U.S.C § 794 et

seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 ef seqg., as well as the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. See generally ECF 1. Plaintiffs have also

filed a motion to appoint counsel, see ECF 3, which is denied without prejudice.

28 U.S.C. § 1915(e)(2)(B) requires this Court to conduct an initial screening of this

complaint and dismissal of any complaint that (i) is frivolous or malicious; (ii) fails to state a claim

upon which relief may be granted; or (iit) secks monetary relief against a defendant whoisimmune □□

*Plaintiffs filed their initial complaint, ECF 1, on July 12, 2024. On October 28, Plaintiffs filed:

additional correspondence clarifying that they were amending their complaint to exclude three

individual employees of BRHP who were originally named in the initial complaint and substituting

BRHP. See ECF 7.

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from such relief. U.S.C. § 1915(6)(2)(B): see also Lomax v. Ortiz-Marquez, 1408. Ct. 1721,

1723 (2020). The. Court is mindful of its obligation to construe liberally a complaint filed by a

self-represented segan See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, liberal

construction does bo mean that this Court can ignore a clear failure in the pleading to allege facts

which set forth a spanizabl claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir.

1990); see also Beaudet v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (stating a district

court may not secbjure up questions never squarely presented”). Here, Plaintiffs’ complaint fails

allege asi facts to form the basis of claims upon which relief can be granted. See Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiffs are directed to show cause why

the complaint shai not be dismissed..

I. Alleged rat . □

Plaintiff Harden is the mother of two adult children, her co-Plaintiffs, who both “suffer

from Autism Sprit Disorder (“ASD”)].” ECF 1-1, at 2. Plaintiffs allege that one of the

children requires tound-the-clock care and the other, though “at the high end of the spectrum and.

able to care for himsett in a limited capacity,” still lives with Harden. /d@. After living with another

person, Harden and her children “wanted to move into a place of her own,” in part because Harden

required a “clean tand] comfortable home to recuperate from [a] major surgery.” fd “With the

assistance of: REP," Harden and her children found a home to rent on Lyndhurst Avenue in

Baltimore. Jd. th home was owned by Defendant Smythe. Jd. “Upon moving into the rental

home,” Plaintiff Harden found it to be “not fit for human occupancy.” Id. Plaintiffs allege it was

“filthy,” had iy vindow with no screens, had faulty electrical outlets, lacked a gas meter,

“no heat, and had severe plumbing issues that resulted in the basement being “flooded .. . with raw

sewage” and the {sone being filled with a “repulsive smell.” Jd at 2-3, 4-5. Plaintiffs also

allege that the yard was “filled with trash and old toys” left by previous occupants and alleges that

. “there was a rodent infestation from mice and rats entering through a space under the doors and

spaces between the walls. Jd. at 5. “It was clear to [Plaintiffs] that the residence was not up to

[the] city code and should not have passed inspection by [BRUP].” Jd. at 3. Due to the residence’s

state of disrepair, Plaintiffs allege that Harden “was unable to follow her doctor[”]s orders and

. complete... 60 days of bedrest to properly heal from her surgery.” Jd. at 4.

Plaintiffs allege that Harden notified Defendant Smythe “of all the problems” with the

residence “by way of numerous text messages and emails” and though Smythe “did not deny any

of [her] complaints” and promised to make necessary fixes, he failed: to adequately address the

problems. ECF 1-1, at 5-6. Plaintiffs also allege that Defendant Smythe failed to promptly send

a “crew to clean up the backed-up sewage in the basement” and forced Harden and her co-Plaintiff

children “to shower, wash clothes, and prepare meals elsewhere.” Jd. at 7. Plaintiffs allege that

the deficiencies with the property have raised her “anxiety and stress levels.” Jd.

‘Plaintiffs attach to their complaint a number of documents including what appears to be

- the report of an inspection of the Lyndhurst Avenue residence and an accompanying violation of

the “Building, Fire and Related Codes of Baltimore City.” ECF 1-4, at 1; ECF 1-5, at 1-4.

Specifically, Plaintiffs attach a violation notice for “a defective drainpipe in a second floor

bathroom.” ECF 1-4, at 1 (Violation Notice Number 2213535A-1).2 Additional attachments

reflect that an inspection yielded additional violations for lights and outlets that failed to operate,

a “toilet that doesn’t work,” as well as doors in need of flashing and weatherproofing. ECF 1-7,

at 1-3,

* Plaintiffs appear to provide a duplicate of this violation notice in another attachment to the

complaint. Compare ECF 1-4, at 1-4, with ECF 1-5, at 1+.

3

I .

I. Discussion °

In completing their pro se complaint form, Plaintiffs indicated that they were bringing suit

against Dens pursuant to 42 U.S.C. § 1983, ECF 1, at 3; ECE 1-1, at 3. Plaintiffs reference

section 1983 ina section. of the complaint entitled “jurisdiction,” and also note several other alleged

sources of federal jurisdiction including the FTCA, the ADA, and the Rehabilitation Act. ECF 1-

1, at 3. Plaintiffs later list three “claims,” including an allegation that Defendant Smythe was

“criminally negligent” in refusing “to take care of his responsibilities to provide a humane

environment to Plaintiffs” (count 1). ECF 1-1, at 7. Plaintiffs further allege that certain individuals

failed to. protect all three Plaintiffs from fire hazards and similarly failed to address the issued

noted above cout 2). BCF 1-1, at 7-8. Plaintiff also alleges that a housing inspector was

negligent in passing the rental property for inspection (count 3). /d. at 8. Plaintiffs later asked that

the individuals noted in counts 2 and 3 be removed from the complaint and that BRHP be added

to the complaint. ee 7,at 1. The Court considers each of Plaintiffs’ claims in turn.

A. 42 USC. § 1983

Pursuant th the well-pleaded complaint rule, facts supporting a basis for subject matter

jurisdiction “must be affirmatively alleged in the complaint.” Pinkley, Inc. v. City of Frederick,

191 F.3d 394, 399 (4th Cir. 1999) (citing McNutt v. General Motors Acceptance Corp., 298 U.S.

. 178 (1936)). Indeed, courts are to assume that “a case lies outside [their] limited jurisdiction unless

and until jurisdiction has been shown to be proper.” United States v. Poole, 531 F.3d 263, 274

(4th Cir. 2008) cing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 277 (1994)) (emphasis □

in Poole). Moreover, the “burden of establishing subject matter jurisdiction” rests with the party

who asserts such jurisdiction. Robb Evans & Assocs., LLC yv. Holibaugh, 609 F.3d 359, 362 (4th

Cir. 2010).

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Section 1983 authorizes suits against any “person” who acts under color of law and subjects

a claimant to “the deprivation of any rights, privileges, or immunities secured by the Constitution

and laws” of the United States. 42 U.S.C. § 1983. Importantly, section 1983 “is not itself a source

of substantive rights” but provides only “a method for vindicating federal rights elsewhere

conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker ve MceCollan, 443 US.

137, 144 n.3 (1979).

To the extent Plaintiffs seek to hold any of the private defendants (Defendants Smythe and

Smythe Properties, LLC) liable for denial of their civil rights purportedly committed “under color

of law,” Plaintiffs have not alleged facts sufficient to establish that any private defendant’s action

can constitute state action. “It has been observed that ‘merely private conduct, no matter how

discriminatory or wrongful[,]’ fails to qualify as state action.” Philips v. Pitt Cnty. Mem’! Hosp.,

F.3d 176, 181 (th Cir. 2009) (quoting Mentavlos y Anderson, 249 F.3d 301, 301 (4th Cir.

2001)) (additional internal quotation marks and citation omitted). When assessing section 1983

claims brought against ostensibly private actors, courts must “consider the totality of the

circumstances of the relationship between the private actor and the state to determine whether the

action in question is fairly attributable to the state.” Peltier vy. Charter Day Sch., Ine., 37 F.4th

104, 116 (4th Cir. 2022) (citing Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337,

343 (4th Cir, 2000)). “[P]rivate activity will generally not be deemed ‘state action’ unless the state

has so dominated such activity as to convert it to state action: ‘Mere approval of or acquiescence

in the initiatives of a private party’ is insufficient.” Wahi v. Charleston Area Med. Ctr., Inc., 562

F.3d 599, 616 (4th Cir. 2009) (quoting DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir. 1999)).

The Fourth Circuit has summarized the necessary inquiry as testing whether there is “a sufficiently

‘close nexus’” between a private actor and the state such that the actions of the former “may be

mo, ;

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fairly treated” as those of the latter. Mentavios, 249 F.3d at 314 (quoting Brentwood Acad. v. Tenn.

Secondary Sch, Athletic Ass’n, 531 U.S. 288, 295 (2001) (internal citations omitted)).

As to the claims against Defendant Smythe and Smythe Properties, LLC, Plaintiffs have

failed to allege facts from which the Court could conclude that any allegedly wrongful action on -

the part of these private defendants can be characterized as state-action. As to the allegation that

BRHP was scting under color of state law, the Court notes that ordinarily, a plaintiff must

demonstrate a deprivation of rights guaranteed by the Constitution or laws of the United States and

that the.alleged deprivation was committed by a “person” acting under color of state law. See 42

U.S.C. § 1983. However, municipalities and local governments can be considered “persons” under

section 1983 and may be sued directly for monetary relief, buf only when the deprivation of a

constitutional right is caused by “an official policy or custom.” Carter y. Morris, 164 F.3d 215,

218 (4th Cir. 1999) (citing Monell vy. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)).

“Municipal policy may be found in written ordinances and regulations, . . ., in certain affirmative

decisions of individual policymaking officials, .. Or in certain omissions on the part of

policymaking officials that manifest deliberate mndifference to the rights of citizens.” Jd. (citations

omitted). “Outside of such formal decisionmaking channels, a municipal custom may arise if a

practice is 50 ‘persistent and widespread’ and ‘so permanent and well settled as to constitute a

‘custom or asage with the force of law.’” Jd. (citing Monell, 436 U.S. at 691 (internal quotation

marks omitted)). i is well-established that “that no municipality can ‘be held liable under § 1983

on a respondeat superior theory.’” Id. (citing Monell, 436 U.S. at 691).

Even sssulting BRHP qualifies as a “municipality” under prevailing law, Plaintiffs have

failed to allege te any denial of a constitutional right by BRHP was the result of a pattern or

practice, a vokcy an ordinance, or was persistent and widespread. Even construing Plaintiffs’

. . .

complaint liberally, the Court fails to find an allegation that BRHP was responsible for any of the

difficulties Plaintiffs faced beyond the claim that Plaintiffs received assistance from BRHP for

‘twelve years, ECF 1-1, at 2, and BRHP allegedly erred in declaring that Plaintiffs’ residence

“passed inspection,” id. at 3. Indeed, Plaintiffs clearly allege a failure on the part of Defendant

Smythe, not BRHBP, to adequately maintain Plaintiffs’ residence. As such, Plaintiffs have failed to

plead a violation of section 1983.

Even if Defendants may properly be considered state actors- fot the purposes of section

1983, the complaint does not establish a sufficient claim for liability under either the Constitution

or a federal statute. Plaintiffs demand relief under three federal statutes—the FTCA, the ADA,

and the Rehabilitation Act—yet none of these create rights that may be vindicated under section

1983. Courts in this district have held that plaintiffs may not assert section 1983 claims based on

violations of the ADA or the Rehabilitation Act, on the grounds that both statutes create “a

- comprehensive remedial scheme.” Lewis v. Bd. of Educ. of Kent Cnty., Civ. No. JFM-07-955,

2007 WL 234365 9, at *1 (D. Md. Aug. 14, 2007) (citing Henderson v. Gilbert, Civ. No. JFM-06-

2006 WL 1966797, at *1 (D. Md. July 10, 2006)). The FTCA, meanwhile, does not create

any new right but merely permits plaintiffs to sue the United States for money damages in federal

district court for torts committed by governmental employees acting within the scope of their

office. See 28 USC. § 1346(b)(1). Plaintiffs may therefore not utilize section 1983 as a means

to pursue their claims under the ADA, Rehabilitation Act, or FTCA.

3 Such an approach is in keeping with that of other federal appellate courts that have also

considered the issue. See, e.g., Tri-Corp Housing Inc. v. Bauman, 826 F.3d 446, 449 (7th Cir.

2016); MAMR.-Z. ex rel. Ramirez-Senda vy. Puerto Rico, 528 F.3d 9, 13 n.3 (1st Cir. 2008); A.W.

v, Jersey City Public Schools, 486 F.3d 791, 804 (3d Cir. 2007). □□

,

B. FTCA Claims

Plaintiffs claim to bring suit under the FTCA to redress “the wrongful acts and omissions

and gross negligence of government employees.” ECF 1-1, at3. The FTCA provides a limited

waiver of the sovdeign immunity of the United States, allowing a plaintiff to sue the United States

for “monetary damages in compensation for injuries resulting from certain torts by ‘any employee

of the Government’ acting within the scope of employment.” Harris-Reese v. United States, 615

F. Supp. 3d 336, 361 (D. Md. 2022) (quoting 28 U.S.C. § 1346(b)). As liability under the FTCA

is predicated on the “law of the state where the negligent act occurred,” the “underlying cause of

action in an PrCh claim is derived from the applicable state law.” Kerns v. United States, 585

F.3d 187, 194 ad Cir. 2009).

Though te complaint does specifically allege that. Defendants committed the tort □□

negligence, see BCE 1-1, at 7-8, Plaintiffs’ FTCA claim has a number of other defects. Plaintiffs

have failed to nathe the United States as a defendant in this suit. The United States, and not its

agencies or employees, is “the only proper defendant” in a FTCA action. Baird v. Haith, 724 F.

Supp. 367, 377 Md. 1988) (citing 28 US.C. §§ 1346(b) and 2679(a)). An FTCA claim brought

against any other defendant apart from the United States “must be dismissed for want of

jurisdiction.” tals v. United States, 2024 WL 895112, at *2 (D. Md. Feb. 29, 2024) (quoting

Galvin v. OSHA, 360 F.2d 181, 183 (Sth Cir. 1988)).4 .

“Tf Plaintiffs’ allegations are read to raise a traditional negligence claim under Maryland state law, _

the Court notes that Plaintiff-has not alleged diversity of citizenship of the parties sufficient for the

Court to conclude| it has jurisdiction over any state law claims. See 28 U.S.C § 1332. Although

the Court could exercise supplemental jurisdiction over state law claims that are related to viable

federal claims, see, 28 U.S.C. § 1367(c)(3), such jurisdiction does not appear to be appropriate here

given that Plaintiffs’ federal claims suffer from multiple deficiencies.

,

Moreover, Plaintiffs have not alleged any facts to support the conclusion that BRHP,

Smythe, or Smythe Properties, LLC, may be considered federal employees or agencies under the

FTCA. The statute’s definition of a “government employee” encompasses “officers or employees

of any federal agency, members of the military or naval forces of the United States, .. . and persons

acting on behalf of a federal agency in an official capacity, temporarily or permanently in the

service of the United States, whether with or without compensation.” 28 U.S.C. § 2671. Plaintiffs

fail to provide any facts to support the inference that any Defendant should be considered a federal |

employee or agency or, in the alternative, that federal government so dominated the actions of the

any defendant so as to warrant conceiving of them as federal employees under the FTCA, see

United States v. Orleans, 425 U.S. 807, 814 (1976).

Even if Plaintiffs were able to cure both of the above-noted defects, they would still first

be required to exhaust their administrative remedies before pursuing an FTCA lawsuit. The FTCA

prohibits “claimants from bringing suit in federal court until they have exhausted their

administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). “Regulations

promulgated pursuant to the FTCA provide that a claim is presented ‘when a Federal agency

receives from a claimant... an executed Standard Form 95 or other written notification of an

incident, accompanied by a claim for money damages in a sum certain for injury to or loss of .

property, personal injury, or death.” Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994)

(citing 28 CF R. § 14.2(a)). Though Plaintiffs show. that they lodged several complaints about

poor living conditions with some Defendants, see ECF IL, at 5—6, and eventually reached out to

the Housing Authority of Baltimore City and the Baltimore City Department of Housing and

Community Development, see ECF 1-1, at 7, ECF 1-4, and ECF 1-5, they do not claim that they

pursued their complaint with any relevant federal agency. Their FTCA claims would thus be

:

barred until such time as Plaintiffs exhaust. available administrative remedies. See Martin v,

Comer, No. §:21-CT-3049-EL, 2022 WL 3443702, at *3 (E.D.N.C. Aug. 3, 2022) (“Because

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plaintiff did not plead that he complied with the FTCA’s administrative exhaustion requirement,

the court lacks jurisdiction to consider the FTCA claim against defendant.”); Cork v. United States

Postal Serv., No. CV 22-3306 PJM, 2023 WL 3074901, at *2 (D. Md. Apr. 25, 2023)

(“Accordingly, uri Cork can show she timely exhausted her administrative remedies, her claims

under Title VII and the FTCA must be dismissed for lack of subject matter jurisdiction.”), _

ala and Rehabilitation Act Claims — .

In sdaitiod to the claims above, Plaintiffs also allege that Defendants violated the ADA

and the nehabiition Act with respect to Plaintiffs Corena McQueen and Corell McQueen, Jr.

(hereinafter th to as Ms. McQueen and Mr. McQueen). See ECF 1-1, at 8. While Plaintiffs

do not cite to a particular title of the ADA, they appear to bring their claim pursuant to Title IJ,

which governs public services offered by state and local governments. Under Title II of the ADA,

“no qualified individual with a disability shall, by reason of such disability, be excluded from

_ participation in aribe denied the benefits of the services, programs, or activities of a public entity,

or be subjected to ‘discrimination by any such entity.” 42 U.S.C. § 12132. Section 504 of the

Rehabilitation ae provides that “[njo otherwise qualified individual with a disability inthe United

States .. . shall, sdlely by reason of her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under any program or activity receiving

Federal financial assistancel.]” 29 U.S.C. § 7914(a)."As the analysis for claims arising under either

statute “is staal the same,” courts may consider them in tandem. White v. City of

Annapolis, 439 F. 3d 522, 542 (D. Md. 2020).

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Under both the ADA and the Rehabilitation Act, a plaintiff must allege “that (1) she has a

disability, (2) she is otherwise qualified to receive the benefits of a public service, program, or

activity, and (3) she was excluded from participation in or denied the benefits of such service,

program, or activity, or otherwise discriminated against, on the basis of her disability.”

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005).

Claims under either statute “may be pursued under three distinct grounds: ‘(1) intentional □

discrimination or disparate treatment; (2) disparate impact; and (3) failure to make reasonable

accommodations.’” Brown v. Dep’t of Pub. Safety & Corr. Servs., 383 F. Supp. 3d 519, 552 (D.

Md. 2019) (quoting A Helping Hand, LLC v. Balt. City, 515 F.3d 356, 362 (4th Cir. 2008)).

Though Plaintiffs allege that Mr. McQueen and Ms. McQueen are both disabled due to

ASD, see ECE 1-1, at 2, the complaint does not offer facts sufficient to sustain their claim under

either the second or third prongs of the ADA and Rehabilitation Act analysis. Specifically,

Plaintiffs have not alleged that Mr. McQueen and Ms. McQueen were otherwise entitled toreceive

the benefits of BRHP’s housing program, nor that they were denied those benefits or otherwise

discriminated against on the basis of their disability. See Constantine, 41 1 F.3d at 498. Moreover,

Plaintiffs have not sufficiently articulated grounds for relief based on any available theory under

either statute, whether intentional discrimination, disparate impact, or failure to make reasonable

accommodations. See Brown, 383 F. Supp. 3d at 552. Finally, Plaintiffs’ complaint does not

allege a basis on which to find that Defendants may be considered either public entities for ADA

° The two statutes have similar but distinct causation requirements. In order to succeed ona

Rehabilitation Act claim, a plaintiff “must establish he was excluded ‘solely.by reason of his

disability; the ADA requires only that the disability was ‘a motivating cause’ of the exclusion.”

Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 462 (4th Cir. 2012) (quoting Baird ex

rel. Baird v. Rose, 192 F.3d 462, 489-69 (4th Cir. 1999)). As Plaintiffs have not alleged facts

sufficient -to establish causation under either standard, the Court need not further differentiate

between Plaintiffs’ ADA and Rehabilitation Act claims at this time.

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purposes or recipibats of federal financial assistance under the Rehabilitation Act. Ultimately, the

complaint’s conclusory statement that Mr. McQueen and Ms. McQueen are disabled does not,

absent other facts| give rise to Defendants’ liability under the ADA or the Rehabilitation Act. As

such, Plaintiffs obs show cause why their ADA and Rehabilitation Act claims should not be

dismissed. ! ,

D. Motion to Appoint Counsel

Under 28 USC § 1915(e)(1), the Court has discretion to appoint counsel for indigent civil

litigants in oxcertional circumstances. See Bailey-El v. Hous. Auth. of Balt. City, 185 F. Supp. 3d

661, 670 (D. Md.i2016) (citing Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975), aff'd in part,

vacated on other brounds, 686 F. App’x 228 (4th Cir. 2017). Whether exceptional circumstances |

exist is a fact-specific determination. See Whisenant v. Yaum, 739 F.2d 160, 163 (4th Cir. 1984),

abrogated on ottlex grounds by Mallard vy. U.S. District Court, 490 U.S. 296, 298 (1989).

Exceptional srcufstanen exist when “a pro se litigant has a colorable claim but lacks the capacity

to present it” and depend on “the type and complexity of the case, and the abilities of the

individuals b:inghng it.” Jd. (first quoting Gordon v. Leeke, 574 F.2d 1147, 1173 (4th Cir. 1978), □

then quoting Branch v. Cole, 686 F.2d 264, 266 (Sth Cir. 1982)).

The cout understands that Plaintiffs are of limited means and some suffer from

disabilities, thus making it particularly difficult to pursue their claims on their own. However, the

Court finds that there are no exceptional circumstances here to warrant appointing counsel at this

early stage of tigation where it is unclear if Plaintiffs have colorable federal claims. Plaintiffs

are reminded tha this Court is obliged to liberally construe self-represented pleadings. See Haines

Kerner, 404 U.S. 519, 520-21 (1972). Additionally, it cannot yet be determined if discovery,

motions, settlement negotiations, or a trial will be necessary in this case, and no complaint has

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been served on the defendants. Thus, the motion for appointment counsel is denied without

prejudice to raise the issue in the future.

IV. Conclusion

In addition to its “inherent authority” to dismiss “frivolous complaints,” .Chong Su Yi v.

Soc. Sec. Admin., 554 F. App’x 247, 248 (4th Cir. 2014), a court can also dismiss a complaint sua

sponte for failure to state a claim, Webb v. EPA, 914 F.2d 1493 (Table) (4th Cir. 1990). However,

“district courts may only exercise their authority to sua sponte dismiss inadequate complaints if -

the procedure employed is fair to the parties. Namely, the party whose complaint stands to

dismissed must be afforded notice and an opportunity to amend the complaint ox otherwise

respond.” Roberison v. Anderson Mill Elementary Sch., 989 F.3d 282, 291 (4th Cir: 2021). The

Court will therefore direct Plaintiffs to show cause why their section 1983 complaint should not

be dismissed. Plaintiff is forewarned that failure to show cause will result in dismissal of the

complaint without further warming.

For the reasons noted above, the Court directs Plaintiffs to show cause as to why their

complaint should not be dismissed. Plaintiffs are forewarned that failure to amend will result in

dismissal of the complaint without further warning.

Accordingly, it this 8th day of November, 2024, by the United States District Court for □

the District of Maryland, hereby ORDERED that:

1. Plaintiffs’ motion to proceed in forma pauperis, ECF 2, is GRANTED:

2. Plaintiffs’ motion to appoint counsel, ECF 3, is DENIED WITHOUT

PREJUDICE;

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Plaintiffs are ORDERED to SHOW CAUSE by December 3, 2024 as to

| why their claims under 42 U.S.C. § 1983, ADA, FTCA, and the

. | Rehabilitation Act should not be dismissed;

□ Plaintiffs ARE FOREWARNED ‘that failure to comply with this Order in

| the time specified will result in dismissal of this case without further notice

| and;

| The Clerk SHALL PROVIDE a copy of this Memorandum and Order to

| Plaintiffs

| isi

. Brendan A. Hurson

. | United States District Judge

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