United States District Court, D. Maryland
before the Court is Defendant Deputy David Crowell's
(“Deputy Crowell”) Motion to Quash Subpoena and
for Protective Order (ECF No. 23). Also pending are Plaintiff
Miguel Santos's Motion for Leave to Amend (ECF No. 26)
and Petition to Hold Sheriff Michael A. Lewis (“Sheriff
Lewis”) in Contempt of Court (ECF No. 27). The Motions
and Petition are fully briefed and ripe for disposition. No
hearing is necessary. See Local Rule 105.6 (D.Md.
2016). For the reasons that follow, the Court will deny the
Motions and defer ruling on Santos's Petition until the
Court determines whether Santos will withdraw it.
Court outlined the alleged facts underlying this case in its
March 17, 2016 Order and will not repeat them here.
(See ECF No. 14). In his original Complaint, Santos
sued only Deputy Crowell and raised three claims: (1) a 42
U.S.C. § 1983 (2012) claim for violations of the Fourth,
Eighth, and Fourteenth Amendments to the United States
Constitution based on unreasonable seizure,  excessive use of
force, and denial of due process (Count I); (2) a claim under
Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S.
658 (1978) (“Monell claim”) (Count
and (3) a common law assault claim (Count III). (Compl., ECF
No. 1). Santos prayed for compensatory and punitive damages.
(Id. ¶ 19). In its March 17, 2016 Order, the
Court dismissed Count I as to Deputy Crowell in his official
capacity and Count II in its entirety. (ECF No. 14). In
dismissing Count II, the Court explained that a local
governmental unit, not Deputy Crowell, is the appropriate
defendant for a Monell claim. (Id.).
20, 2016, Santos filed his Motion for Leave to Amend his
Complaint, to which he attached his proposed First Amended
Complaint in accordance with Local Rule 103.6(a) (D.Md.
2016). (ECF Nos. 26, 26-1). On June 15, 2016, Santos served
Deputy Crowell with a subpoena commanding Sheriff Lewis, who
is not a party to this action, to testify at a deposition
scheduled for July 19, 2016. (ECF Nos. 23-1, 23-3). On June
20, 2016, Deputy Crowell moved to quash the subpoena or for a
protective order. (ECF No. 23). After Sheriff Lewis did not
appear at the July 19, 2016 deposition, Santos petitioned to
hold Sheriff Lewis in contempt of Court. (ECF No. 27).
for Leave to Amend
15(a)(1) provides that a party may amend its pleading once as
a matter of course within twenty-one days after service of a
motion under Rule 12(b). Because Santos filed his proposed
Second Amended Complaint after this deadline, Rule 15(a)(2)
Rule 15(a)(2), “[t]he court should freely give leave
[to amend a complaint] when justice so requires.”
Justice does not require granting leave to amend when the
moving party has exhibited bad faith, or amendment would
prejudice the nonmoving party or be futile. See Edell
& Assocs., P.C. v. Law Offices of Peter G. Angelos,
264 F.3d 424, 446 (4th Cir. 2001) (citing Edwards v. City
of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)). Leave
to amend would be futile when an amended complaint could not
survive a motion to dismiss for failure to state a claim.
See U.S. ex rel. Wilson v. Kellogg Brown & Root,
Inc., 525 F.3d 370, 376 (4th Cir. 2008). The Court
should only deny leave to amend on the ground of futility,
however, when the proposed amendment is clearly insufficient
on its face. Johnson v. Oroweat Foods Co., 785 F.2d
503, 510 (4th Cir. 1986) (citing Davis v. Piper Aircraft
Corp., 615 F.2d 606, 613 (4th Cir. 1980)).
First Amended Complaint, Santos seeks to correct and bolster
his Monell claim. First, he attempts to assert his
Monell claim against Wicomico County, Maryland
(“Wicomico County”)-a new Defendant. (First Am.
Compl., ECF No. 26-1). Second, he seeks to include numerous
new allegations regarding Sheriff Lewis's and the
Wicomico County Sheriff's Office's
(“WCSO”) purported policies and customs of
encouraging racial profiling and excessive use of force.
Crowell argues amendment would be futile because sheriffs and
their deputies are state officials and Wicomico County cannot
be liable under Monell for the policies and customs
of state officials. To be sure, under Maryland law, sheriffs
and their deputies are state officials. See Rucker v.
Harford Cty., 558 A.2d 399, 402 (Md. 1989). But, Deputy
Crowell overlooks that whether Sheriff Lewis is a state
official does not end the inquiry of whether Wicomico County
can be liable under Monell. See Fether v.
Frederick Cty., No. CCB 12-1674, 2013 WL 1314190, at *7
(D.Md. Mar. 29, 2013) (explaining that although
“sheriffs are state rather than local government
employees . . . this does not end the inquiry for . . .
county may be liable under Monell for the allegedly
unconstitutional policies and customs of the sheriff of the
county if the sheriff had final policymaking authority for
the county when devising and implementing the policies and
customs. See City of St. Louis v. Praprotnik, 485
U.S. 112, 123 (1988) (“[O]nly those municipal officials
who have ‘final policymaking authority' may by
their actions subject the government to § 1983
liability.”); see also Dotson v. Chester, 937
F.2d 920, 924 (4th Cir. 1991) (“County liability for
the Sheriff's operation of the County Jail depends on
whether the Sheriff had final policymaking authority for the
County over the County Jail.”). A county may also be
liable under Monell if it “officially
sanctioned or ordered” the policies and customs.
Praprotnik, 485 U.S. at 123.
amended Monell claim that Santos proposes is clearly
insufficient on its face for at least two reasons. First,
Santos alleges “Wicomico County, through its
Sheriff's Department, has repeatedly adopted and used
policies, procedures, practices, and customs . . . that
[have] allowed racial and ethnic profiling, excessive force,
and grossly disproportionate force to ‘send a
message' or further some political agenda or motive of
the [WCSO].” (First Am. Compl. ¶ 21) (emphasis
added). By alleging Wicomico County has adopted
unconstitutional policies and customs “through”
the WCSO, it appears Santos seeks to hold Wicomico County
vicariously liable for the acts of the WCSO. A county,
however, “cannot be held liable under § 1983 on a
respondeat superior theory.” Monell, 436 U.S.
at 691. Second, Santos provides specific examples of
purportedly unconstitutional policies and customs, but he
attributes them only to Sheriff Lewis and the WCSO-not
Wicomico County. Santos neither alleges that Wicomico
County sanctioned or ordered the policies and customs, nor
alleges that Sheriff Lewis or the WCSO had final policymaking
authority for Wicomico County when devising and implementing
them. See Praprotnik, 485 U.S. at 123.
the amended Monell claim Santos proposes is clearly
insufficient on its face, the Court concludes amendment would
be futile. See Johnson, 785 F.2d at 510.
Accordingly, the Court will deny Santos's Motion for
Leave to Amend without prejudice.
to Quash Subpoena or for Protective Order
Crowell argues the Court should quash Santos's subpoena
because Sheriff Lewis does not possess any potentially
relevant information regarding the physical altercation
between Santos and Deputy Crowell (the
“Altercation”), and ordering Sheriff Lewis to be
deposed would subject him to an undue burden. Santos responds
that after the Altercation, Sheriff Lewis made several
comments to local media that demonstrate he is familiar with
the facts and circumstances surrounding the Altercation.
Santos maintains that Sheriff Lewis “applauded”
Deputy's Crowell's efforts in “restrain[ing]
himself” because lethal force “would have been
completely justified” and Santos “would have been
a lot more banged up” if Sheriff Lewis had arrested
him. (Pl.'s Opp'n Mot. Quash Subpoena at 1, 2, ECF
No. 24). Santos contends Sheriff Lewis must have ...