ERNON J. LEFTRIDGE, Plaintiff,
MICHAEL KELLY MATTHEWS, et al., Defendants.
ELLEN LIPTON HOLLANDER, District Judge.
Vernon J. Leftridge, Jr., the self-represented plaintiff,  has sued Sergeant Michael Kelly Matthews, Deputy First Class ("DFC") Benjamin Charles Parsons, and Corporal Howard Lee Bowden, all of whom are deputy sheriffs for Wicomico County, Maryland, asserting claims arising from a traffic stop that occurred at around 4:00 a.m. on December 1, 2008, in Wicomico County, Maryland. Plaintiff was the driver of the vehicle and his brother, Sylvontae Bishop, was the passenger. During the stop, both men were frisked and the car was scanned by a drug detection police dog. Mr. Leftridge and Mr. Bishop are African American. The defendant deputies are white.
In his original Complaint (ECF 1), plaintiff asserted four counts: violation of 42 U.S.C. § 1981 (Count I); violation of the Fourth Amendment (Count II); violation of the Equal Protection Clause of the Fourteenth Amendment (Count III); and a claim, which seems to be duplicative of the others, alleging "racial profiling and racial harassment because of his race and color, in violation of the 1866 Civil Rights Act and all applicable federal statutes that prohibits [sic] violation of rights while acting under color of law to the U.S. Constitution" (Count IV). Complaint ¶ 18. Counts II, III, and IV all invoked the private right of action provided by 42 U.S.C. § 1983.
Plaintiff's Amended Complaint (ECF 64), which is the operative pleading, is not divided into counts, but purports to incorporate the original Complaint by reference. Accordingly, this Memorandum addresses the counts asserted in the original Complaint, as augmented by the allegations of the Amended Complaint. The Amended Complaint also purports to assert claims on behalf of Leftridge's brother, Bishop, as a "John Doe" plaintiff,  and against twelve John or Jane Doe law enforcement officer defendants.
The three named defendants have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF 71), which has been fully briefed. No hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will construe the Motion as one for summary judgment and will grant it. Therefore, judgment will be entered in favor of the named defendants, and plaintiff's claims against the Doe defendants will be dismissed.
A. Leftridge I
This is the second lawsuit spawned by the traffic stop that occurred on December 1, 2008. In the first suit, Bishop v. Lewis, Civ. No. WMN-10-3640 (D. Md.) (" Leftridge I "), Mr. Leftridge and his brother, Mr. Bishop, both represented by counsel, sued the Maryland State Police ("MSP"), the "Wicomico County Sheriff's Office, " and Mike Lewis, who is the Sheriff of Wicomico County. Sheriff Lewis was sued in both his individual and official capacities. The amended complaint in Leftridge I asserted substantially the same factual allegations as are asserted in this suit, and contained three counts: discrimination on the basis of race, in violation of the Civil Rights Act of 1866, codified as amended at 42 U.S.C. § 1981 (Count I); a claim under 42 U.S.C. § 1983, based on violations of the Fourth, Thirteenth, and Fourteenth Amendments (Count II); and a claim of racial discrimination by a recipient of federal financial assistance, in violation of Title VI of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e et seq. See ECF 7 in Leftridge I.
On May 4, 2011, Judge William Nickerson granted motions to dismiss filed by the defendants in Leftridge I and dismissed the suit. See Bishop v. Lewis, Civ. No. WMN-10-3640, 2011 WL 1704755 (D. Md. May 4, 2011). He held that the "Wicomico County Sheriff's Office" was not a legal entity capable of being sued; that the § 1981 and § 1983 claims against the MSP and Sheriff Lewis in his official capacity were barred by Eleventh Amendment immunity; that Sheriff Lewis was not liable for violation of Title VI; and that the Title VI claims against the MSP and the § 1981 and § 1983 claims against Sheriff Lewis in his official capacity were insufficiently pleaded. See id. Judge Nickerson's Order dismissing Leftridge I directed: "Plaintiffs shall file an amended complaint within ten days of the date of this Order, or the dismissal of the current Amended Complaint will be with prejudice." ECF 21 in Leftridge I (emphasis added). Notably, the plaintiffs in Leftridge I did not file an amended complaint within ten days. No further orders were issued in the case.
The docket in Leftridge I reflects that Mr. Leftridge, apparently without legal representation, attempted to file a second amended complaint in that case on October 14, 2011. See ECF 22-1 in Leftridge I. By letter of the same date, Judge Nickerson returned the second amended complaint to Mr. Leftridge, stating: "Case was ordered dismissed May 4, 2011, if plaintiffs did not file an amended complaint within 10 days of the date of the order." ECF 22 in Leftridge I.
On December 2, 2011, plaintiff filed suit in this case.
B. Prior History of This Case
In his original Complaint in this case, plaintiff named Sergeant Matthews, Sheriff Lewis, and thirteen Doe defendants, one of which was a police dog and the others of whom were alleged to be law enforcement officers with the Wicomico County Sheriff's Department and the MSP. All of the defendants were sued in their individual and official capacities.
Sheriff Lewis and Sergeant Matthews filed a Motion to Dismiss (ECF 18), arguing that suit was barred by the doctrine of res judicata, due to the previous dismissal of Leftridge I. I granted the Motion to Dismiss in part and denied it in part. See ECF 33 & 34. In particular, I held that all claims against Sheriff Lewis and all of the official capacity claims against Sergeant Matthews and the Doe defendants were barred by res judicata. I also dismissed all claims against the Doe police dog, because dogs are not entities that can be sued under federal civil rights statutes. See, e.g., Dye v. Wargo, 253 F.3d 296, 299-300 (7th Cir. 2001). However, pursuant to Andrews v. Daw, 201 F.3d 521 (4th Cir. 2000), and Brooks v. Arthur, 626 F.3d 194 (4th Cir. 2010), I concluded that the prior dismissal in Leftridge I was not res judicata as to the individual claims against Sergeant Matthews and the Doe defendants.
Subsequently, I issued a Preliminary Scheduling Order (ECF 37) establishing a procedure for "limited preliminary disclosures" aimed at ascertaining the identities of the unidentified Doe defendants so as to enable plaintiff to file an amended complaint against all purported defendants. In letters of June 11, 2012 (ECF 48) and July 2, 2012 (ECF 53), defense counsel identified Sergeant Matthews and two other Wicomico County sheriff's deputies, Corporal Bowden and DFC Parsons, as the only law enforcement officers who had participated in the traffic stop. Corporal Bowden was the handler of the drug detection dog. In response, plaintiff insisted that more than three officers had participated in the traffic stop, but provided no factual basis for this assertion, such as descriptions of the Doe officers or allegations as to what particular actions each Doe officer took giving rise to liability. In an Order issued on July 20, 2012 (ECF 59), I cautioned Mr. Leftridge:
If plaintiff maintains that more officers than the three identified by the defense participated in the traffic stop, he may identify those officers by "Doe" identities in his amended complaint, but must allege a factual basis for his allegation that each individual Doe officer was a participant in the traffic stop. Unparticularized claims against a "laundry list" of Doe officers may lead to dismissal for failure to state claims upon which relief can be granted.
Thereafter, plaintiff filed his Amended Complaint, and the named defendants filed the pending Motion.
In the early morning hours of December 1, 2008, Mr. Leftridge and Mr. Bishop were driving northbound on Maryland Route 13, en route to Connecticut, where Mr. Leftridge resides. The brothers were traveling from their father's home in Virginia Beach, Virginia, where they had just spent the Thanksgiving holiday. Mr. Bishop, who resides in Virginia Beach, was accompanying his brother with the intention of enrolling in a community college in Connecticut. See Sylvontae Bishop Aff. ¶ 3. Mr. Leftridge was driving the vehicle, a four-door Acura owned by his father, Sylvester Bishop.
According to Sgt. Matthews' affidavit, he effectuated the stop of Mr. Leftridge's vehicle at 3:57 a.m. on December 1, 2008. Matthews Aff. ¶ 2. The Video of the traffic stop begins with Sgt. Matthews' vehicle driving northbound along Route 13, which is a three-lane divided highway with traffic lights. At first, the Video has no sound. Approximately 45 seconds in to the Video, Sgt. Matthews' vehicle approaches a red light in the left lane. In the middle lane (one lane to the right of Sgt. Matthews' vehicle) and ahead of Sgt. Matthews' car is the four-door automobile that Mr. Leftridge is driving, braking as it approaches the red light. Mr. Leftridge's vehicle comes to a complete stop at the light. The Video clearly shows that Mr. Leftridge's left brake light is not functioning. The brake lights on the right and in the center of the rear windshield are much brighter than the left light, in which only the bulb for the running light is active. When Sgt. Matthews' car is approximately three car lengths back from the light, the light turns green. Mr. Leftridge's vehicle starts moving forward, while Sgt. Matthews' vehicle continues to brake, such that Sgt. Matthews' vehicle momentarily pulls even with Leftridge's and then Leftridge's vehicle again pulls ahead. As Leftridge's vehicle moves forward, Sgt. Matthews activates his emergency lights, which also activates the audio recorder for the Video,  and pulls into the center lane behind Leftridge.
Leftridge promptly brakes (at which time it is again evident that his left brake light is not functioning properly), activates his right turn signal, and merges into the right lane and then onto the shoulder. Sgt. Matthews follows him and, at approximately one minute and thirty seconds into the Video, both cars come to a stop on the right shoulder. Sgt. Matthews can be heard on the Video informing dispatch of the license plate number, make, and color of Mr. Leftridge's vehicle and their location.
In his affidavit, Sgt. Matthews avers that he "initiated the traffic stop because [he] observed that the subject vehicle's left rear brake light was not functioning properly." Matthews Aff. ¶ 3. He states: "At the time I determined the violation warranted a traffic stop, I had no knowledge of the race of the occupants of the subject vehicle, and in fact, thought there was only one occupant of the vehicle." Id. ¶ 4. Both Sgt. Matthews and DFC Parsons state in their affidavits that DFC Parsons was driving his patrol vehicle behind Sgt. Matthews' vehicle at the time Sgt. Matthews initiated the stop, and that DFC Parsons pulled his vehicle in behind Sgt. Matthews' vehicle at the time of the stop. Id. ¶ 5; Parsons Aff. ¶¶ 3-4. In contrast, Mr. Leftridge claims that there was no other vehicle behind Matthews' vehicle at the time of the stop. Leftridge Aff. ¶ 12. This discrepancy is not material.
In any event, the Video shows Sgt. Matthews exiting his vehicle and approaching Mr. Leftridge's vehicle on the passenger side. Matthews speaks with the occupants of the car for about two and a half minutes, but the conversation is not audible on the Video. Matthews then walks back to his vehicle. In his affidavit, Sgt. Matthews states that he "observed that both occupants of the subject vehicle appeared unusually nervous." Matthews Aff. ¶ 6. He also states that the occupants "provided an inconsistent description of the purpose of their trip, " id., although he does not explain the nature of the inconsistency, and states that the "driver appeared to be attempting to direct the passenger's responses to my questions." Id. In his affidavit, Mr. Leftridge vehemently denies that he or Mr. Bishop appeared nervous or provided inconsistent information. See Leftridge Aff. ¶¶ 12-13.
Somewhat later in the Video, Matthews can be heard telling another officer that Mr. Leftridge and Mr. Bishop
seem pretty nervous. They don't have registration for the vehicle, guy says it's his dad's. They say that they're brothers, but there's two different last names. One's from Connecticut, one's from Virginia. They said they were going up, dropping him off at school. I said, which school? He says, oh, I'm not in school yet, I'm going to start school. Video at 11:20. In his affidavit, DFC Parsons states that, as Matthews walked back to his vehicle,
Matthews advised Parsons that he was requesting a canine scan of the vehicle. Parsons Aff. ¶ 5. Matthews requested a canine unit at 4:00 a.m. See Dispatch Recording at 4:00 a.m. Matthews then provided the radio dispatcher with the names, birthdates, and drivers' license numbers of Mr. Leftridge and Mr. Bishop so that a license and registration check could be performed. See id. at 4:02 a.m.
Cpl. Bowden, the K-9 officer, arrived on the scene at approximately 4:05 a.m. See Bowden Aff. ¶ The Video shows his police cruiser arriving approximately nine minutes and 45 seconds into the Video ( i.e., eight minutes after the traffic stop began). At about the same time, the dispatcher reported back that a license and registration check turned up no unusual information regarding the vehicle or either occupant, except that Mr. Bishop's Virginia driver's license was suspended. Dispatch Recording at 4:05 a.m. As noted, Mr. Leftridge was the driver of the vehicle.
According to Cpl. Bowden, Sgt. Matthews was working on the paperwork related to the traffic stop when Bowden arrived. Bowden Aff. ¶ 4; see also Matthews Aff. ¶ 10 ("When... Bowden arrived, I had not yet completed the paperwork associated with the traffic investigation."). In the Video, Bowden advises Matthews that he is going to remove Leftridge and Bishop from the vehicle so that he can perform the canine scan. Matthews asks Bowden to "do the pat down." Video at 11:50.
Cpl. Bowden and DFC Parsons approach plaintiff's vehicle on both sides and direct Mr. Leftridge and Mr. Bishop to exit the vehicle and place their hands on the hood of Matthews' car so that they can be patted down. The simultaneous pat down of Leftridge and Bishop is clearly visible, taking place directly in front of the video camera.
In their affidavits, Mr. Leftridge and Mr. Bishop describe the pat down as a "strip search, " Leftridge Aff. ¶ 26; Sylvontae Bishhop Aff. ¶ 3, an "entire body search, " Leftridge Aff. ¶ 27, or "full body search, " Sylvontae Bishop Aff. ¶ 4, and even as a "sexual assault." Sylvontae Bishop Aff. ¶ 8; see also id. ("the law enforcement officers... kept grabbing our private body parts"); Leftridge Aff. ¶ 25 ("Defendants had grabbed' [sic] plaintiff and his brothers [sic] penis during the caution [sic] shocking searches...."). The Video clearly contradicts these characterizations. Although Mr. Leftridge and Mr. Bishop understandably appear uncomfortable with being patted down, the Video shows nothing outside the bounds of a thorough, professional pat down of the exterior of both men's clothing, lasting approximately one minute.
After the pat down, the officers direct Leftridge and Bishop to stand off to the right of Matthews' vehicle. Cpl. Bowden then returns to his car to retrieve his drug detection dog, Rocket, a German Shepherd. According to Bowden, Rocket is "trained to alert at the odor of marihuana, concaine, heroin, and methamphetamine." Bowden Aff. ¶ 3. The Video shows that, as Bowden walks Rocket to the trunk of plaintiff's vehicle, the dog barks in the direction of Leftridge and Bishop. Although Mr. Bishop suggests that the officers induced the dog to bark at him and Mr. Leftridge, see Sylvontae Bishop Aff. ¶ 5, the Video clearly shows that Bowden immediately redirects the dog's attention, and one of the other officers can be heard explaining to Leftridge and Bishop that the dog is trained to bark. Video at 16:00. In his affidavit, Cpl. Bowden also states that it is not "unusual" for Rocket to bark, noting that "Rocket is dual-trained to perform patrol duties as well as scans for narcotics" and that he "barks in similar circumstances upon coming into view of other individuals whether they are citizens or other law enforcement officers." Bowden Aff. ¶ 9.
At sixteen minutes into the Video ( i.e., about fourteen minutes into the traffic stop), Bowden begins walking Rocket around the perimeter of plaintiff's car. Rocket completes two passes around the vehicle. According to Cpl. Bowden, Rocket "alerted" to the odor of a controlled dangerous substance two times, at the driver's door on both passes, by "showing a behavioral change and sitting." Bowden Aff. ¶ 11. The alerts cannot be seen on the Video because the camera's view of Rocket is obstructed when the dog is at the driver's door of plaintiff's vehicle. Nevertheless, neither Leftridge nor Bishop disputes that the dog alerted. As shown on the Video, the dog scan lasts approximately one minute and ten seconds, after which Bowden returns Rocket to his vehicle.
One of the officers then informs Leftridge and Bishop that the dog alerted and asks a few questions regarding whether either brother uses any illegal drugs. Leftridge and Bishop both deny any use of drugs. The officers then inform Leftridge and Bishop that, due to the dog alert, they will perform a search of the vehicle and another pat down. The search of the vehicle lasts approximately eighteen minutes. During the start of the search, Leftridge and Bishop are patted down again. The second pat down of Bishop can be seen on the Video; it is more thorough than the first search, but it still lasts just over a minute. The officer who pats Bishop down reaches into Bishop's pockets and inside his jacket. However, nothing in that pat down could objectively be described as a strip search or a sexual assault. Moreover, Bishop readily moved his hands as the search was conducted. Leftridge's pat down is not in the field of vision of the camera, but there is no indication that it differed in any significant way from the pat down Bishop received.
Following the conclusion of the vehicle search, Sgt. Matthews states to Leftridge and Bishop that he found what he suspects is marijuana "shake" on the floor of the car, which Matthews describes to Leftridge and Bishop as excess marijuana leaf that might fall to the ground while a user is attempting to pack a marijuana "blunt" or cigar. Video at 35:50-37:00. Both Leftridge and Bishop deny that they use marijuana, although they acknowledge that another family member, who smokes cigarillos, has used the vehicle recently.
At this point in the Video, Sgt. Matthews thanks Leftridge and Bishop for their time and advises Leftridge that he is giving him a written warning regarding the "left stop lamp." Leftridge asks Matthews to clarify whether the problem is with the "brake light" or the "tail light." Matthews confirms that it is the brake light and asks one of the other officers to demonstrate the problem by depressing the brake pedal of the vehicle while Leftridge observes from the rear of the car; the failure of the left brake lamp to illuminate is again clearly visible. Matthews then wishes Leftridge and Bishop a "safe trip" and ...