United States District Court, D. Maryland
Shirley Johnson, Personal Representative of the Estate of Elbert Davis, Sr., et al.
Baltimore City Police Department, et al.
MEMORANDUM TO COUNSEL
know, this civil rights case was filed on August 2, 2018, by
a host of plaintiffs: Shirley Johnson, as personal
representative of the Estate of Elbert Davis, Sr. (the
“Decedent” or “Mr. Davis”), and as a
daughter of the Decedent; Delores A. Davis, Mary A. Cox,
Gloria A. Davis, Albert Cain, and Elbert Davis, Jr., children
of the Decedent; “Use Plaintiffs” Gail Davis,
Leroy Davis, and Elbert Lee Davis, who are also children of
the Decedent; and Anita Cain, administrator of the Estate of
Arthur Cain, the deceased son of Mr. Davis. They sued
multiple defendants, seeking damages stemming from the death
of Mr. Davis on April 28, 2010, following a vehicular
collision. ECF 1 (the “Complaint”). In
particular, the suit was filed against the Baltimore City
Police Department (“BPD”); the Mayor and City
Council of Baltimore (the “City”); the State of
Maryland; and several former members of BPD's Gun Trace
Task Force: Sergeant Wayne Earl Jenkins, in his individual
and official capacities; Sergeant Ryan Guinn, in his
individual and official capacities; and the Estate of
Detective Sean Matthew Suiter (collectively, “BPD
Officer Defendants”). Id.
allege, inter alia, that Mr. Davis was killed
“as a direct result” of BPD Officer
Defendants' “illegal stop, pursuit, framing and
arrest” of Umar Burley and Brent Matthews. Id.
¶ 1. The Complaint further asserts that Burley and Brent
fled the scene of an illegal traffic stop and Burley, who was
driving, then collided with the vehicle driven by Mr. Davis.
Id. ¶ 36. According to plaintiffs, the BPD
Officer Defendants “did not render aid to Decedent or
call for aid, ” id. ¶ 38, but
“instead they worked to cover their tracks” by
planting approximately thirty-two grams of heroin in
Burley's vehicle. Id. ¶¶ 38, 41.
Complaint was filed pursuant to 42 U.S.C. § 1983,
asserting a violation of Mr. Davis's due process rights
under the Fourteenth Amendment. Id. ¶¶
103-18. In addition, plaintiffs allege violations of Article
24 of the Maryland Declaration of Rights, id.
¶¶ 150-53, and also assert various torts claims
under Maryland law, including wrongful death; a survival
action; negligence; respondeat superior liability; and
negligent hiring, retention and/or supervision. See
id. ¶¶ 119-49.
August 16, 2018, the three children of Mr. Davis who were
initially named as “Use Plaintiffs”-Elbert Lee
Davis, Gail S. Davis, and Leroy Davis-filed a “Motion
to Intervene as Plaintiffs.” ECF 3. By Order of
September 5, 2018, I granted the motion. ECF 4.
later, on September 12, 2018, the State moved to dismiss the
Complaint (ECF 5), pursuant to Fed. R. Civ. P 12(b)(6),
supported by a memorandum of law. ECF 5-1 (collectively, the
“State Motion”). On September 14, 2018, the City
moved to dismiss the Complaint (ECF 6), pursuant to Fed. R.
Civ. P 12(b)(6), supported by a memorandum of law. ECF 6-1
(collectively, the “City Motion”). Thereafter, on
October 3, 2018, plaintiffs amended their
complaint. ECF 9 (the “Amended
Amended Complaint added Shirley Johnson as a plaintiff, in
her capacity as Personal Representative of the Estate of
Phosa Cain, a passenger in Mr. Davis's vehicle who was
injured in the collision. In addition, the Amended Complaint
named Deputy Police Commissioner Dean Palmere as a defendant;
removed Baltimore City as a defendant; and removed the State
as a defendant. Id. at 4. The Amended Complaint also
asserted new allegations not contained in the initial
Complaint. Id. For example, the Amended Complaint
added a request for damages as a result of injuries sustained
by Phosa Cain. Id. ¶¶ 1, 158. And, a
§ 1983 claim of supervisory liability was added against
Palmere. Id. ¶¶ 167-73.
15(a)(1)(B) of the Federal Rules of Civil Procedure permits a
party to amend a pleading once “as a matter of course,
” without leave of court or the consent of opposing
parties, if done within 21 days of receipt of a motion filed
under Fed.R.Civ.P. 12(b). Because plaintiffs filed the
Amended Complaint within 21 days of the filing of the
motions, they have satisfied Rule 15(a)(1)(B).
result, the motions are moot because they are directed to the
original Complaint, which has been superseded by the Amended
Complaint. Furthermore, the State and the City are no longer
named as defendants in this action. ECF 9. Accordingly, I
shall DENY the State Motion (ECF 5) and the City Motion (ECF
6), as moot.
the informal nature of this Memorandum, it is an Order of the
Court and the Clerk is directed to docket it as such.
Lipton Hollander United States District Judge.