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Lucero v. Early

United States District Court, D. Maryland

September 11, 2018

KENNETH LUCERO, Plaintiff,
v.
WAYNE A. EARLY, et al., Defendants.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge.

         THIS MATTER is before the Court on Defendant Mayor & City Council's (“Baltimore City” or the “City”) Motion to Dismiss Count Two of the Amended Complaint (ECF No. 54) and Defendant Baltimore Police Department's (“BPD”) Motion to Dismiss Amended Complaint (ECF No. 59). Also pending before the Court are Plaintiff Kenneth Lucero's Motion for Leave to File Surreply Regarding City's Motion to Dismiss (ECF No. 62) and Motion for Leave to File Surreply Regarding BPD's Motion to Dismiss (ECF No. 66). In this 42 U.S.C. § 1983 (2018) action, Lucero challenges the City's restrictions on leafletting near the First Mariner Arena in Baltimore, Maryland and his arrest for violating those restrictions. The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2016). For the reasons outlined below, the Court will grant the Motions to Dismiss and grant Lucero leave to amend the Amended Complaint. The Court will also deny Lucero's Motions for Leave to File Surreply.

         I. BACKGROUND[1]

         A. Factual Background

         Baltimore City owns the First Mariner Arena (the “Arena”), located at 201 West Baltimore Street in Baltimore, Maryland. (Am. Compl. ¶ 10, ECF No. 24). Every year, the City leases the Arena to the owners of Ringling Brothers Circus (“Ringling” or the “Circus”) for almost two weeks, during which time Ringling holds daily performances. (Id. ¶ 12).

         In 2004, apparently prompted by a 2003 incident in which a media van impeded the flow of traffic, the City and BPD “jointly formulated” a policy (the “Policy”)[2] that restricted protestors', including leafletters', use of the sidewalk and plaza area surrounding the Arena during the Circus. (Id. ¶¶ 14-15). The Policy “prohibits Circus protesters from using the approximately [fifteen] feet of [s]idewalk abutting the north side (Baltimore Street) of the Arena; all of the north half (the half containing the entrance) of the Howard Street [s]idewalk on the west; and all of the Hopkins Place Plaza on the east.” (Id. ¶ 18). In effect, the Policy imposes a “buffer zone” around “all public entrances to the Arena” and “areas where Circus attendees are likely to walk.” (Id. ¶ 26). These restrictions prevent leafletters from being at a “conversational distance” from Circus patrons. (Id.). They are in place only when the Circus is at the Arena. (Id. ¶ 19). In addition, Defendant BPD officer Wayne A. Early (“Officer Early”) and other BPD officers “in a widespread custom” enforce the Policy “only against those who oppose the Circus.” (Id. ¶ 21).

         In April 2010, Ringling was in Baltimore for its annual daily performances. (See id. ¶¶ 27-28). On April 8, 9, and 10, 2010, Lucero “wanted to leaflet in restricted areas” but did not because Officer Early and other BPD officers threatened him with arrest based on the Policy. (Id. ¶ 27). On April 17, 2010, Lucero leafletted in a restricted area, and Officer Early arrested him for violating the Policy. (Id. ¶ 28). BPD detained Lucero for “several hours” at a booking facility. (Id. ¶ 31). BPD ultimately released Lucero without bringing any criminal charges against him. (Id.).

         B. Relevant Procedural History

         On April 8, 2013, Lucero sued Officer Early, the City, and BPD. (ECF No. 1). On October 17, 2014, Lucero filed an Amended Complaint.[3] (ECF No. 24). In his five-count Amended Complaint, Lucero alleges: (1) direct liability for violations of his constitutional rights under § 1983 against Officer Early (Count 1); (2) municipal liability for violations of his constitutional rights under § 1983 against the City and BPD, challenging the Policy as applied to the leafletters (Count 2); (3) municipal liability for violations of his constitutional rights under § 1983 against the City and BPD for discriminatory enforcement of the Policy (Count 3); (4) False Arrest against Officer Early (Count 4); and (5) violation of Article 26 of the Maryland Declaration of Rights against Officer Early (Count 5). (Id. ¶¶ 39-62). Lucero seeks damages, attorney's fees, and costs. (Id. at 13).

         On November 29, 2017, the City filed a Motion to Dismiss Count Two of the Amended Complaint. (ECF No. 54). Lucero filed an Opposition on December 8, 2017. (ECF No. 58). On December 21, 2017, the City filed a Reply. (ECF No. 60). Lucero filed a Motion for Leave to File Surreply Regarding City's Motion to Dismiss on December 27, 2017. (ECF No. 62). On January 3, 2018, the City filed an Opposition. (ECF No. 64). To date, the Court has no record that Lucero filed a Reply.

         On December 13, 2017, BPD filed a Motion to Dismiss Amended Complaint. (ECF No. 59). Lucero filed an Opposition on December 27, 2017. (ECF No. 61). On January 10, 2018, BPD filed a Reply. (ECF No. 65). Lucero filed a Motion for Leave to File Surreply Regarding BPD's Motion to Dismiss on January 16, 2018. (ECF No. 66). To date, the Court has no record that BPD filed an Opposition.

         C. Ross v. Early Litigation

         In a related case, Aaron Ross v. Wayne A. Early, No. JFM-9-3255 (D.Md. closed Nov. 30, 2012), Aaron Ross sued BPD, the City, then-Commissioner Frederick H. Bealefeld, III, and three solicitors for the Baltimore City Law Department, alleging that the Policy at issue in this case violated the First Amendment to the United States Constitution, both facially and as applied. Ross v. Early (Ross III), 899 F.Supp.2d 415, 418 (D.Md. 2012), aff'd, 746 F.3d 546 (4th Cir. 2014).[4] The Ross III Court denied BPD's and the City's motions for summary judgment regarding the constitutionality of the Policy. Id. at 425. In an earlier opinion, the Court concluded that the Policy was content-neutral, served a significant government interest, and provided sufficient alternative avenues for communication. Id. at 421 (citing Ross v. Early (Ross II), 758 F.Supp.2d 313, 320 (D.Md. 2010)). The Court further concluded that there was a genuine dispute of material fact regarding whether the Policy was narrowly tailored, which depended on the Policy's scope and the corresponding level of scrutiny. Id. at 425. As a result, the parties entered into a stipulation for the purposes of appealing the Court's ruling. Ross, 746 F.3d at 551. The Ross parties stipulated that the Policy applied generally to “all expressive activity” and not to “the activities of circus and animal welfare street protesters specifically.” Id. Consequently, the United States Court of Appeals for the Fourth Circuit reviewed the Policy under intermediate scrutiny and ultimately held that it did not violate the First Amendment. Id. at 555.

         II. DISCUSSION

         A. Motions for Leave to File Surreply

         “Unless otherwise ordered by the court, surreply memoranda are not permitted to be filed.” Local Rule 105.2(a) (D.Md. 2016). Typically, “[s]urreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply.” Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003) (citing Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 2001)).

         Lucero moves for leave to file surreplies to the City's Motion and BPD's Motion. The Court addresses Lucero's Motions in turn.

         1. Motion for Leave to File Surreply Regarding City's Motion to Dismiss

         Lucero requests leave of the Court to file a Surreply to address collateral estoppel argument presented in the City's Reply. Lucero also seeks to clarify that he is not relying on the stipulation between the parties in Ross. Lucero's requests are misplaced.

         Collateral estoppel, also called issue preclusion, “bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.” E. Associated Coal Co. v. Dir., Office of Workers' Comp. Programs, 578 Fed.Appx. 165, 173 (4th Cir. 2014) (quoting Taylor v. Sturgell, 553 U.S. 880, 891 (2008)). A party invoking collateral estoppel must establish that: (1) “the issue sought to be precluded is identical to one previously litigated”; (2) “the issue was actually determined in the prior proceeding”; (3) “the issue's determination was ‘a critical and necessary part of the decision in the prior proceeding'”; (4) “the prior judgment is final and valid”; and (5) “the party against whom collateral estoppel is asserted ‘had a full and fair opportunity to litigate the issue in the previous forum.'” Id. (quoting Collins v. Pond Creek Mining Co., 468 F.3d 213, 217 (4th Cir. 2006)). Offensive collateral estoppel is “[w]hen a plaintiff employs the doctrine of collateral estoppel or issue preclusion ‘to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party.'” In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004) (emphasis in original) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4 (1979)).

         Here, although Lucero does not expressly state that he is asserting offensive collateral estoppel, he cites Ross III in support of the proposition that this Court has already held that the Policy is a Monell policy, and, therefore, the Court should deny the City's Motion. In his Opposition, Lucero cites Ross III, 899 F.Supp.2d at 419, and asserts that “[t]his Court has already held that [the Policy] ‘was a clear, municipal policy.'” (Pl.'s Opp'n City's Mot. at 3, ECF No. 58). In other words, Lucero seeks to preclude an issue that he contends was previously litigated. See In re Microsoft Corp. Antitrust Litig., 355 F.3d at 326. With regard to the stipulation in Ross, the City cites it in support of its argument that Lucero has not satisfied the elements of collateral estoppel. The City does not assert that Lucero is relying on the stipulation in this ...


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