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Sherrill v. Cunningham

United States District Court, D. Maryland

July 20, 2018

TALATHA SHERRILL, Plaintiff
v.
DEPUTY JOSEPH CUNNINGHAM, et al., Defendants.

          MEMORANDUM

          James K. Bredar Chief Judge.

         Plaintiff Talatha Sherrill brought this action on February 15, 2018 against Joseph Cunningham and Jonathan Pristash, officers of the Cecil County Sheriff's Office, and Cecil County Sheriff Scott Adams (collectively, “the Officer Defendants”), as well as the Cecil County Sheriff's Office itself and Cecil County. (Compl., ECF No. 1.) Plaintiff amended her complaint on April 9, 2018, removing the Cecil County Sheriff's Office and Cecil County as defendants and naming the State of Maryland (“the State”) as a defendant. (See Am. Compl., ECF No. 10.) Plaintiff's amended complaint asserts ten causes of action. Defendants Cunningham and Pristash answered one claim (ECF No. 14), and the Officer Defendants collectively moved to dismiss the remainder of the claims against them on April 23, 2018 (ECF No. 15). The State moved to dismiss the claims brought against it the same day. (State Mot. Dismiss, ECF No. 18.) Both motions are fully briefed (see ECF Nos. 21, 22, 25) and ripe for review. There is no need to hold a hearing to resolve either motion. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below the Court will, by accompanying order, grant the State's motion to dismiss and grant in part and deny in part the Officer Defendants' motion to dismiss.

         I. Background[1]

         Plaintiff is an “African-American woman with a dwarfism disability, standing at four feet and six-inches tall.” (Am. Compl. ¶ 6.) On or about the night of January 14, 2016, Plaintiff was driving in Cecil County, Maryland, when she passed, and made eye contact with, Defendant Joseph Cunningham, a deputy in the Cecil County Sheriff's Office who was seated in his marked police vehicle. (Id. ¶¶ 13-16.) Even though Plaintiff was a seat-belted driver, operating her vehicle “carefully and prudently” (id. ¶ 13), Defendant Cunningham activated his lights and pulled Plaintiff over on a “poorly lit” section of Susquehanna River Road in Cecil County. (Id. ¶¶16-18.) After seeing Defendant Cunningham's lights, Plaintiff pulled over and retrieved her license and registration. (Id. ¶¶ 18-19.) When Defendant Cunningham approached Plaintiff's vehicle, Plaintiff tried to hand him her license and registration through her partially-rolled-down window. (Id. ¶¶ 21-22.) Allegedly, this did not sit well with Defendant Cunningham.

         Defendant Cunningham “shoved Plaintiff's hand” and “aggressively” demanded that she completely roll down her window. (Am. Compl. ¶ 23.) The deputy used profanity, and continued to do so while demanding that Plaintiff roll down her window, even as Plaintiff “politely declined” and continued her attempts to hand over her license and registration. (Id. ¶¶23-24.) Instead of accepting her license and registration, Defendant Cunningham “took a step back from Plaintiff's vehicle and began putting on gloves.” (Id. ¶ 25.) He then “retrieved a tool that Plaintiff believed would be used to break her window.” (Id.)

         “[F]earful of Defendant Cunningham's aggressive nature, ” Plaintiff “pulled away from the scene.” (Am. Compl. ¶ 26.) She drove off at “or below” the speed limit, towards a nearby convenient store where she believed the area would be well-lit. (Id. ¶ 27.) Prior to reaching the convenient store, however, a second officer, Defendant Jonathan Pristash, cut in front of Plaintiff's vehicle. (Id. ¶ 28.) In response, Plaintiff came to a complete stop and put her vehicle in park. (Id. ¶ 29.) There are no allegations as to why Defendant Pristash stopped Plaintiff's vehicle, e.g., whether he had already been present and witnessed Plaintiff drive away from Defendant Cunningham, or was called to the scene, or for some other reason.

         There are, however, allegations about what happened next. After Plaintiff came to a complete stop, the two deputies immediately approached her vehicle, and “aggressively pulled open Plaintiff's driver's side door, forcibly removed Plaintiff from her vehicle and violently threw her face down on the concrete.” (Am. Compl. ¶ 30.) The officers “were emboldened to use physical force because Plaintiff was small in stature.” (Id.) They “viciously jerked Plaintiff's arms behind her back and handcuffed her.” (Id. ¶ 31.) Plaintiff, a 4'6” tall, 120 lbs. woman who was unarmed and compliant, suffered a fractured right elbow, neck strain, lower back strain, and facial swelling and bruising as a result of the manner in which Defendant's Cunningham and Pristash treated her. (Id. ¶ 40.)

         While Plaintiff was handcuffed, face down on the pavement outside of her car, Defendants Cunningham and Pristash, and several other unnamed officers, searched Plaintiff and her car and “threw Plaintiff's personal items about the car and the ground.” (Am. Compl. ¶ 36.) This search “yielded nothing illegal.” (Id.)

         Defendants Pristash and Cunningham arrested Plaintiff and charged her with “various criminal and traffic offenses in Cecil County District Court.” (Am. Compl. ¶ 38.) Plaintiff, it seems, was found guilty of some crimes in a state district court.[2] “After an appeal, ” however, “the State entered a nolle prosequi to all charges against Plaintiff in Cecil County Circuit Court.” (Id.)

         Plaintiff has now brought a lawsuit in this Court against the State, Cecil County Sheriff Scott Adams in his official and individual capacities, and Defendants Cunningham and Pristash, in both their official and individual capacities. Plaintiff brings ten causes of action: Counts I and II are brought under 42 U.S.C. § 1983 against Defendants Cunningham and Pristash for alleged violations of Plaintiff's constitutional rights, specifically unlawful search and seizure (Count I) and excessive force (Count II); Counts III and IV present disability discrimination claims against the State only, alleging violations of Title II of the Americans with Disabilities Act (“ADA”) (Count III) and the Rehabilitation Act (Count IV); Count V is a tort claim against the State and Sheriff Adams for negligent hiring, training, retention and supervision; and Counts VI-X are various state tort claims against all Defendants.

         The Officer Defendants moved to dismiss Counts I, and V-X; Defendants Cunningham and Pristash have answered Count II, the Section 1983 excessive force claim. (See Ans., ECF No. 14.) The State moved to dismiss all claims against it, i.e., Counts III-X. These motions are fully briefed and ripe, and the Court will turn to their disposition.

         II. Standards

         To survive dismissal under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

         Defendants seek to dismiss this suit in part on the ground that it is barred by the Eleventh Amendment. As this Court recently noted, “[t]he Fourth Circuit has not definitively ruled whether a dismissal on Eleventh Amendment immunity grounds is a dismissal for failure to state a claim under Rule 12(b)(6) or a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1).” Gross v. Morgan State Univ., ___ F.Supp.3d. ___, 2018 WL 1898175, at *2 (D. Md. Apr. 19, 2018). Nevertheless, this Court “has favored analysis under Rule 12(b)(1) because [the Eleventh Amendment] functions as a block on the exercise of [subject matter] jurisdiction.” Id. (internal quotation marks omitted). Thus, the Court will consider the Defendants' arguments regarding the possible applicability of the Eleventh Amendment as facial challenges to subject matter jurisdiction under Rule 12(b)(1). See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (discussing difference between facial and factual challenges to subject matter jurisdiction). Generally, the burden of proving subject matter jurisdiction is on the plaintiff. See Id. However, the burden of establishing Eleventh Amendment immunity is on the Defendant. See Hutto v. S. Carolina Retirement Sys., 773 F.3d 536, 543 (4th Cir. 2014).

         III. Analysis

         The Court's analysis of the Defendants' motions will proceed in the following manner: First the Court will discuss the claims brought against the State, then it will turn to the claims brought against the Officer Defendants in their official capacities, and finally address the claims brought against the Officer Defendants in their individual capacities.

         a. Claims against the State

         The majority of Plaintiff's claims against the State will be dismissed under Federal Rule of Civil Procedure 12(b)(1) because the State is entitled to Eleventh Amendment immunity. The State has not raised the Eleventh Amendment as a defense to Plaintiff's disability-related claims, but argue, correctly, that Plaintiff has failed to sufficiently state these claims. Therefore they will be dismissed under Federal Rule of Civil Procedure 12(b)(6).

         i. Eleventh Amendment Immunity

         The Eleventh Amendment of the United States Constitution generally serves to bar suits by citizens against states. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This bar is “not absolute.” Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). A state may consent to suit and waive the immunity, see Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 491 (4th Cir. 2005), “and, in certain cases, Congress may abrogate the States' sovereign immunity, ” Feeney, 495 U.S. at 304.

         The State has raised the defense of Eleventh Amendment immunity for Counts V-X, and it has not consented to suit on these claims, nor has it implicitly waived the immunity for these claims, nor has Congress abrogated the immunity for these claims. Thus, Counts V-X will be dismissed under Rule 12(b)(1) because they are barred by sovereign immunity. Plaintiff did not respond in opposition to this defense, and therefore appears to have conceded that these claims should be dismissed against the State. See Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 777 (D. Md. 2010). The State has not raised the defense of Eleventh Amendment immunity to Plaintiff's disability-related claims, nor does it seem that the State could do so successfully, [3] but rather argues that these claims are insufficiently pled and fail under Rule 12(b)(6).

         ii. Disability Claims

         To state a claim under either Title II of the ADA or the Rehabilitation Act, 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, 411 F.3d at 498; see Seremeth v. Bd. of Cty. Comm'rs of Frederick Cty., 673 F.3d 333, 336 n.1 (4th Cir. 2012) (“Claims under the ADA's Title II and the Rehabilitation Act can be combined for analytical purposes because the analysis is substantially the same.” (internal quotation marks omitted)). The first two elements are not disputed. The State concedes that Plaintiff has a disability and is qualified to receive the benefits of law enforcement services. (See State Mot. Mem. Supp. 7, ECF No. 18-1.) The State argues, however, that Plaintiff has not sufficiently alleged the third element, that she was discriminated against on the basis of her disability.

         Plaintiff argues that she was discriminated against in the course of a police investigation. (See Opp'n 10-11, ECF No. 21.) Discrimination due to a plaintiff's disability during the course of a police investigation is a cognizable claim under Title II of the ADA, see Seremeth, 673 F.3d at 336-37, but Plaintiff has failed to allege facts that constitute such a claim.

         The only allegation in Plaintiff's amended complaint that even suggests disability discrimination is that Defendants Pristash and Cunningham were “emboldened to use physical force because Plaintiff was small in stature.” (Am. Compl. ¶ 30.) Assuming this is true, it still does not plausibly constitute discrimination on the basis of a disability. Many people are “small in stature” but are not disabled in either a colloquial sense of the term or in the more specific usage defined under the ADA, and thus many people without Plaintiff's disability would have, according to Plaintiff's allegations, been treated in the same manner.

         More importantly, this single allegation of the arresting officers' mental states at the time they arrested Plaintiff is too slight a foundation upon which to rest a disability discrimination claim. Plaintiff has not alleged anything else about her condition or the Officers' actions that would plausibly suggest discriminatory intent or a discriminatory result. Put differently, Plaintiff has not alleged anything-such as the use of a particular slur, a negative comment about her size, or anything specific about how she would have been treated absent her alleged disability-that suggests the Officer Defendants acted out of discriminatory animus towards her because of her dwarfism, or that they would not have acted similarly towards an individual who shared Plaintiff's characteristics aside from her dwarfism. Accordingly, Plaintiff fails to state a claim under either Title II of the ADA or the Rehabilitation Act, and Counts III and IV will be dismissed under Rule 12(b)(6). Ultimately, then, all of Plaintiff's claims against the State will be dismissed by accompanying order.

         b. Claims against Officers in their official capacities

         Plaintiff's claims against the individual Defendants named in their official capacities are barred by the Eleventh Amendment. These are essentially claims against the Cecil County Sheriff's Office, see Andrews v. Daw, 201 F.3d 521, 525 (4th Cir. 2000) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)) (noting that official capacity suits are “in essence . . . ‘suit[s] against the entity.'”), and the Cecil County Sheriff's Office is a state agency for purposes of the Eleventh Amendment, see Kronk v. Carroll Cty., Md., Civ. No. L-11-0277, 2012 WL 245059, at *6-*8 (D. Md. Jan. 25, 2012) (holding that a County Sheriff in Maryland was a state official entitled to Eleventh Amendment immunity, and citing several other cases of this Court that so hold). The State has not consented to suit on any of Plaintiff's claims against the Officers in their official capacities, nor has it waived the immunity for any of these claims (the Rehabilitation Act claim was brought against the State only), nor has Congress abrogated the immunity for any of these state common law and Section 1983 claims. See McConnell v. Adams, 829 F.2d 1319, 1328 (4th Cir. 1987) (“§ 1983 does not abrogate eleventh amendment immunity.”).

         Under Ex Parte Young, 209 U.S. 123 (1908), a plaintiff may sue a State official in his official capacity for violations of federal law if she seeks only prospective injunctive relief. See Md. Cmty. Health Sys., LLP v. Glendening, 115 F.Supp.2d 599, 601 (D. Md. 2000). Technically, Plaintiff has requested this relief (see Am. Compl. ¶ 106), but the Court will nevertheless dismiss the official capacity claims against the Officer Defendants for several reasons. First, Plaintiff's official capacity claim against Sheriff Adams (Count V) is for a violation of state law, and the Young exception does not apply to violations of state law. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104-06 (1984). For the same reason, the Court will dismiss Plaintiff's official capacity state law claims against Defendants Cunningham and Pristash (Counts VI-X). That leaves Plaintiff's two official capacity claims against Defendants Cunningham and Pristash alleging federal constitutional violations (Counts I and II).

         Again, these are “not [claims] against the official personally, for the real party in interest is the entity.” Graham, 473 U.S. at 166 (emphasis in the original). Because these are essentially claims against the entity, i.e., the Cecil County Sheriff's Office, “[m]ore is required, ” to establish liability. Id. “[A] governmental entity is liable under § 1983 only when the entity itself is a moving force behind the deprivation; thus, in an official-capacity suit the entity's policy or custom must have played a part in the violation of federal law.” Id. (internal quotation marks omitted); see Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). Plaintiff does not allege that Defendants Cunningham and Pristash acted according to any “policy or custom” when they allegedly violated her constitutional rights. (See Am. Compl. ¶¶ 46-64.)[4] Further, Plaintiff appears to concede that she is not requesting prospective injunctive relief against Defendants Cunningham and Pristash in their official capacities because she does not argue that these claims should survive because of the Young exception.

         Plaintiff instead argues that all of her official capacity claims should survive because the Officer Defendants are not State officials for purposes of Eleventh Amendment immunity. Plaintiff, however, does not contend that the Cecil County Sheriff's Office is not a State agency. Rather, she contends that the State would “undoubtedly . . . argue that it is not responsible for paying a judgment” in this case because Plaintiff alleges that the Officers acted with malice and gross negligence and the State has not waived immunity for such actions under the Maryland Tort Claims Act (“MTCA”). (Opp'n at 8.) Even if the MTCA was relevant to this case (and the Court does not see how it is), this argument is unavailing.

         Plaintiff understandably confuses the question of whether the individual Defendants are immune under the Eleventh Amendment with the question of who would pay for a judgment if one was entered against them. This confusion is understandable because whether a plaintiff seeks an award of damages that would be paid by the State is “the most important” factor in determining whether an official or agency is a state official or agency for Eleventh Amendment immunity purposes. See Ram Ditta v. Md. Nat'l Park and Planning Comm'n, 822 F.2d 456, 457 (4th Cir. 1987). The Supreme Court has repeatedly found that the basic goal of the Eleventh Amendment is to prevent suits by private citizens seeking damages against state governments, and has sought to protect this goal by applying the Eleventh Amendment to suits that name individuals or agencies but are in effect attempts at recovery against a state. See Edelman, 415 U.S. at 662-63. So, when presented with a question of whether a particular defendant is, at bottom, an alter ego of a state, a court should consider whether the state treasury would be “responsible for paying any judgment that might be awarded.” Ram Ditta, 822 F.2d at 457.

         But who pays, after the dust is settled and the merits decided, does not retroactively affect the immunity calculus. A person cannot sue a state and defeat Eleventh Amendment immunity on the promise that someone besides the state would pay, see Regents of the Univ. of California v. Doe, 519 U.S. 425, 431 (1997), just as a state cannot cover persons with the blanket of immunity simply by offering to pay whatever judgment is awarded, see Sales v. Grant, 224 F.3d 293, 297-98 (4th Cir. 2000). Whether a person or entity is protected by the Eleventh Amendment is not “a formalistic question of ultimate financial liability.” Doe, 519 U.S. at 431. That the State would, according to Plaintiff, “undoubtedly . . . argue” that it should not pay whatever judgment may eventually be awarded in this case does not overcome the legal reality that the Cecil County Sheriff's Office is, ...


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