United States District Court, D. Maryland
B.N.S. minor child by her parents and next friends Christine and Brian Stuart Plaintiff
VICTOR BRITO, et al. Defendants
L. Hollander United States District Judge
B.N.S., a minor child, by her parents and next friends,
Christine and Brian Stuart, has filed a civil rights suit
against multiple defendants. In an Amended Complaint (ECF
32), filed with exhibits (ECF 34), B.N.S. sued Victor Britto,
in his official capacity as Police Chief of the Hagerstown
Police Department; the Hagerstown City Police Department
(“Department”), a municipal corporation; Police
Officer Andrew Eichelberger, Sergeant Casey Constable, and
Police Officer Zachary Rowe, and unknown officers, in their
personal and official capacities; Bob Bruchey, in his
official capacity as Mayor of the City of Hagerstown; the
City of Hagerstown, a Maryland municipal corporation (the
“City”); and five members of the City Council of
Hagerstown, in their official capacities: Kristin Aleshire,
Paul Corderman, Emily Keller, Lewis Metzner, and Donald
suit is rooted in events that occurred on September 18, 2016,
when B.N.S., then a 15-year-old riding a bicycle, was
involved in a motor vehicle accident in Hagerstown. ECF 32,
¶ 23; ECF 42 at 3. Plaintiff alleges that police
officers employed by the Hagerstown Police Department arrived
at the scene and used excessive and violent force against
B.N.S., handcuffed her, arrested her, and unlawfully detained
her. ECF 32, ¶¶ 1-6, ¶¶ 23-35.
Portions of the incident were captured on video. See
ECF 34-1; ECF 40.
Amended Complaint contains seven counts. Count I asserts a
claim against all defendants, alleging the use of excessive
force, in violation of the Fourth Amendment, pursuant to 42
U.S.C. § 1983. Count II lodges a claim against all
defendants for unlawful seizure, in violation of the
Fourteenth Amendment. Count III alleges a claim against all
defendants for false arrest, pursuant to 42 U.S.C. §
1983. In Count IV, plaintiff asserts a claim against all
defendants for intentional infliction of emotional distress,
under 42 U.S.C. § 1983. Count V is lodged against all
defendants, citing “28 USC 1983 (Monell custom or
practice).” In Count VI, plaintiff asserts a claim,
apparently against “Defendant Police Department”
(see ¶ 63), for the use of excessive force, in
violation of the 8th Amendment. Count VII contains a claim,
apparently against the Police Department (¶ 78), for
“Violation of Maryland Declaration of Rights, Article
24.” Plaintiff seeks compensatory and punitive damages.
have filed a pre-discovery motion to dismiss under
Fed.R.Civ.P. 12(b)(1) and 12(b)(6) or, in the alternative,
for summary judgment under Rule 56. ECF 37. It is supported
by a memorandum (ECF 37-2) (collectively, the
“Motion”) and multiple exhibits. See ECF
38; ECF 40; ECF 46. B.N.S. opposes the Motion (ECF 42) with a
Memorandum (ECF 42-1) (collectively,
“Opposition”), and has submitted plaintiffs
affidavit. ECF 45. Defendants replied (ECF 44,
“Reply”) and submitted additional exhibits.
See ECF 46; ECF 49. Plaintiff filed a surreply,
without leave of court. See ECF 47. See
Local Rule 105.2(a).
hearing is necessary to resolve the Motion. See
Local Rule 105(6). I shall construe the Motion as one to
dismiss. And, for the reasons that follow, I shall grant the
Motion in part and deny it in part.
Factual Background 
September 18, 2016, officers from the Hagerstown City Police
Department arrived at the scene of an accident involving
B.N.S., a minor child who had been riding her bicycle, and a
motor vehicle. ECF 32, ¶ 1. B.N.S. alleges that she was
“struck by a motorist and knocked unconscious for a few
minutes” as a result of the incident. Id.
¶ 23. Emergency medical personnel arrived at
the scene, but B.N.S. refused transport to the hospital.
Id. ¶¶ 1, 25.
officers, including P.O. Andrew Eichelberger, Sergeant Casey
Constable, and P.O. Zachary Rowe, arrived at the scene, and
two of the officers were operating body cameras. ECF 34-1;
ECF 38-3, ¶ 10, ECF 38-5, ¶ 8; ECF 42-1 at 3.
B.N.S. alleges that “[t]he video shows police refused
to permit [B.N.S.] to contact her parents or family police
friend.” ECF 32, ¶ 27. According to B.N.S., when
she tried to get back onto her bicycle, the officers forcibly
“yanked” her from it (ECF 32, ¶ 27) and
detained her. Id. at 28. Eventually, B.N.S. was
placed under arrest, handcuffed, and placed into the police
cruiser. ECF 32, ¶¶ 28-30; ECF 34-1, ECF 38-3, ECF
38-5. While B.N.S. was in the police cruiser, the officers
used pepper spray at least one time. Id.; ECF 32,
¶ 30. Eventually, B.N.S. was transported to the
Hagerstown jail and subsequently released to the custody of a
parent. ECF 32, ¶¶ 31, 33-34.
claims that she suffered bilateral eye injuries from the use
of pepper spray, multiple contusions, whiplash, abdominal
pain, and other injuries. Id. ¶ 34. She seeks
compensatory and punitive damages. ECF 32 at 19.
noted, defendant has moved to dismiss or, in the alternative,
for summary judgment. ECF 37. A motion styled in the
alternative, to dismiss or for summary judgment, implicates
the court's discretion under Rule 12(d) of the Federal
Rules of Civil Procedure. See Kensington Vol. Fire Dept.,
Inc. v. Montgomery Cnty., 788 F.Supp.2d 431, 436-37 (D.
a court “is not to consider matters outside the
pleadings or resolve factual disputes when ruling on a motion
to dismiss.” Bosiger v. U.S. Airways, 510 F.3d
442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a
court has discretion to consider matters outside of the
pleadings, pursuant to Rule 12(d). If the court does so,
“the motion must be treated as one for summary judgment
under Rule 56, ” and “[a]ll parties must be given
a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed.R.Civ.P. 12(d). But when,
as here, the movant expressly captions its motion “in
the alternative, ” as one for summary judgment, and
submits matters outside the pleadings for the court's
consideration, the parties are deemed to be on notice that
conversion under Rule 12(d) may occur; the court “does
not have an obligation to notify parties of the
obvious.” Laughlin v. Metro. Wash. Airports
Auth., 149 F.3d 253, 261 (4th Cir. 1998).
district judge has “complete discretion to determine
whether or not to accept the submission of any material
beyond the pleadings that is offered in conjunction with a
Rule 12(b)(6) motion and rely on it, thereby converting the
motion, or to reject it or simply not consider it.” 5C
Alan Wright & Arthur Miller et al., Federal Practice
& Procedure § 1366 (3d ed.). This discretion
“should be exercised with great caution and attention
to the parties' procedural rights.” Id. In
general, courts are guided by whether consideration of
extraneous material “is likely to facilitate the
disposition of the action, ” and “whether
discovery prior to the utilization of the summary judgment
procedure” is necessary. Id.
judgment is usually inappropriate “where the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448-49 (4th Cir. 2011); see
Putney v. Likin, 656 Fed.Appx. 632, 638-640 (4th Cir.
2016) (per curiam); McCray v. Maryland Dep't of
Transp., 741 F.3d 480, 483 (4th Cir. 2014). However,
“the party opposing summary judgment ‘cannot
complain that summary judgment was granted without discovery
unless that party had made an attempt to oppose the motion on
the grounds that more time was needed for
discovery.'” Harrods Ltd. v. Sixty Internet
Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting
Evans v. Technologies Applications & Serv. Co.,
80 F.3d 954, 961 (4th Cir. 1996)); see also Dave &
Buster's, Inc. v. White Flint Mall, LLP, 616
Fed.Appx. 552, 561 (4th Cir. 2015). To raise adequately the
issue that discovery is needed, the nonmovant typically must
file an affidavit or declaration pursuant to Rule 56(d)
(formerly Rule 56(f)), explaining why, “for specified
reasons, it cannot present facts essential to justify its
opposition, ” without needed discovery. Fed.R.Civ.P.
56(d); see Harrods, 302 F.3d at 244-45 (discussing
the affidavit requirement of former Rule 56(f)). If a
nonmoving party believes that further discovery is necessary
before consideration of summary judgment, the party who fails
to file a Rule 56(d) affidavit does so at her peril, because
“‘the failure to file an affidavit ... is itself
sufficient grounds to reject a claim that the opportunity for
discovery was inadequate.'” Harrods, 302
F.3d at 244 (quoting Evans, 80 F.3d at 961); see
also Dave & Buster's, Inc., 616 Fed.Appx. at
561. But, the nonmoving party's failure to file a Rule
56(d) affidavit does not obligate a court to issue a summary
judgment ruling that is obviously premature.
the Fourth Circuit has placed “‘great
weight'” on the Rule 56(d) affidavit, and has said
that a mere “‘reference to Rule 56(f) [now Rule
56(d)] and the need for additional discovery in a memorandum
of law in opposition to a motion for summary judgment is not
an adequate substitute for [an] affidavit, '” the
appellate court has “not always insisted” on a
Rule 56(d) affidavit. Harrods, 302 F.3d at 244
(quoting Evans, 80 F.3d at 961). According to the
Fourth Circuit, the failure to file an affidavit may be
excused “if the nonmoving party has adequately informed
the district court that the motion is pre-mature [sic] and
that more discovery is necessary, ” and the
“nonmoving party's objections before the district
court ‘served as the functional equivalent of an
affidavit.'” Id. at 244-45 (quoting
First Chicago Int'l v. United Exchange Co.,
Ltd., 836 F.2d 1375, 1380-81 (D.C. Cir. 1988)).
does not make clear her position as to the Motion, and she
addresses both legal standards. ECF 42-1 at 3-8. Moreover,
she identifies facts in dispute, pertinent to a summary
judgment motion. Id. at 3-8. Moreover, no Rule 56(d)
affidavit was ever submitted by plaintiff.
summary judgment, the district court's
“function” is not “to weigh the evidence
and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249; accord Guessous v.
Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir.
2016). Thus, in considering a summary judgment motion, the
court may not make credibility determinations. Jacobs v.
N.C. Administrative Office of the Courts, 780 F.3d 562,
569 (4th Cir. 2015); Mercantile Peninsula Bank v.
French, 499 F.3d 345, 352 (4th Cir. 2007). Where there
is conflicting evidence, such as competing affidavits,
summary judgment ordinarily is not appropriate, because it is
the function of the fact-finder to resolve factual disputes,
including matters of witness credibility. See Black &
Decker Corp. v. United States, 436 F.3d 431, 442 (4th
Cir. 2006); Dennis v. Columbia Colleton Med. Ctr.,
Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).
effect, were I to construe the Motion as one for summary
judgment, I would be asked to resolve disputes of fact - a
function that is the province of the fact-finder. Moreover,
in McCray v. Md. Dept. of Transp., 741 F.3d 480, 483
(4th Cir. 2014), the Fourth Circuit said: “Summary
judgment before discovery forces the non-moving party into a
fencing match without a sword or mask.” A party
“needs an ‘adequate opportunity' to present
its case and ‘demonstrate a genuine issue of material
fact.'” Adams Housing, LLC v. City of
Salisbury, Md., 672 Fed.Appx. 220, 222 (4th Cir. 2016)
(per curiam) (quoting U.S. Dev. Corp. v. Peoples Fed.
Sav. & Loan Ass'n, 873 F.2d 731, 735 (4th Cir.
in light of the posture of the case, I decline to convert the
Motion to one for summary judgment. Instead, I shall construe
it as one to dismiss, under Rule 12(b)(6).
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom.,
McBurney v. Young, 569 U.S. 221 (2013); Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are
true, the complaint fails as a matter of law “to state
a claim upon which relief can be granted.” Fed.R.Civ.P.
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (citation omitted)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); see also Willner v. Dimon, 849 F.3d 93,
112 (4th Cir. 2017). But, a plaintiff need not include
“detailed factual allegations” in order to
satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., __ U.S. __, 135 S.Ct. 346, 346
(2014) (per curiam).
the rule demands more than bald accusations or mere
speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555. Rather,
to satisfy the minimal requirements of Rule 8(a)(2), the
complaint must set forth “enough factual matter (taken
as true) to suggest” a cognizable cause of action,
“even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (internal
quotation marks omitted).
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co.,
637 F.3d at 440 (citations omitted); see Semenova v.
MTA, 845 F.3d 564, 567 (4th Cir. 2017); Houck v.
Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir.
2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th
Cir. 2011), cert. denied, 565 U.S. 943 (2011). But,
a court is not required to accept legal conclusions drawn
from the facts. See Papasan v. Allain, 478 U.S. 265,
286 (1986). “A court decides whether [the pleading]
standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, 566 U.S. 937 (2012).
respect to a motion to dismiss under Rule 12(b)(6), courts
generally do not “‘resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses.'” Edwards, 178 F.3d at 243
(quoting Republican Party v. Martin, 980 F.2d 943,
952 (4th Cir. 1992)). However, “in the relatively rare
circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint, the defense
may be reached by a motion to dismiss filed under Rule
12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d
458, 464 (4th Cir. 2007) (en banc); accord Pressley v.
Tupperware Long Term Disability Plan, 553 F.3d 334, 336
(4th Cir. 2009). Because Rule 12(b)(6) “is intended
[only] to test the legal adequacy of the complaint, ”
Richmond, Fredericksburg & Potomac R.R. Co. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his
principle only applies . . . if all facts necessary to the
affirmative defense ‘clearly appear[ ] on the face
of the complaint.'” Goodman, 494 F.3d at 464
(quoting Forst, 4 F.3d at 250) (emphasis added in
evaluating the sufficiency of a complaint in connection with
a Rule 12(b)(6) motion, a court ordinarily “may not
consider any documents that are outside of the complaint, or
not expressly incorporated therein . . . .”
Clatterbuck v. City of Charlottesville, 708 F.3d
549, 557 (4th Cir. 2013); see Bosiger, 510 F.3d 442,
450 (4th Cir. 2007). However, a court may properly consider
documents incorporated into the complaint or attached to the
motion to dismiss, “‘so long as they are integral
to the complaint and authentic.'” U.S. ex rel.
Oberg v. Pennsylvania Higher Educ. Assistance Agency,
745 F.3d 131, 136 (4th Cir. 2014) (quoting Philips v.
Pitt Cty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir.
2009)); see Six v. Generations Federal Credit Union,
891 F.3d 508, 512 (4th Cir. 2018); Goldfarb v. Mayor
& City Council of Balt., 791 F.3d 500, 508 (4th Cir.
2015); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d
195, 198 (4th Cir. 2014); Am. Chiropractic Ass'n v.
Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.
2004), cert. denied, 543 U.S. 979 (2004). To be
“integral, ” a document must be one “that
by its ‘very existence, and not the mere
information it contains, gives rise to the legal rights
asserted.'” Chesapeake Bay Found., Inc. v.
Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611
(D. Md. 2011) (citation omitted) (emphasis in original).
“before treating the contents of an attached or
incorporated document as true, the district court should
consider the nature of the document and why the plaintiff
attached it.” Goines, 822 F.3d at 167 (citing
N. Ind. Gun & Outdoor Shows, Inc. v. City of S.
Bend, 163 F.3d 449, 455 (7th Cir. 1998)). “When
the plaintiff attaches or incorporates a document upon which
his claim is based, or when the complaint otherwise shows
that the plaintiff has adopted the contents of the document,
crediting the document over conflicting allegations in the
complaint is proper.” Goines, 822 F.3d at 167.
Conversely, “where the plaintiff attaches or
incorporates a document for purposes other than the
truthfulness of the document, it is inappropriate to treat
the contents of that document as true.” Id.
1983 of Title 42 of the United States Code provides that a
plaintiff may file suit against any person who, acting under
color of state law, “subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws” of the United States. 42 U.S.C. § 1983;
see, e.g., Filarsky v. Delia, 566 U.S. 377
(2012); see also Owens v. Balt. City State's
Attorney's Office, 767 F.3d 379 (4th Cir. 2014),
cert. denied sub nom. Balt. City Police
Dep't v. Owens, __ U.S. __, 135 S.Ct. 1983 (2015).
However, § 1983 “‘is not itself a source of
substantive rights,' but provides ‘a method for
vindicating federal rights elsewhere conferred.'”
Albright v. Oliver, 510 U.S. 266, 271 (1994)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979)). In other words, § 1983 allows “a party
who has been deprived of a federal right under the color of
state law to seek relief.” City of Monterey v. Del
Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
state a claim under § 1983, a plaintiff must allege (1)
that a right secured by the Constitution or laws of the
United States was violated, and (2) that the alleged
violation was committed by a “person acting under the
color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988); see Crosby v. City of Gastonia, 635
F.3d 634, 639 (4th Cir. 2011), cert.
denied, 565 U.S. 823 (2011); Wahi v. Charleston
Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009);
Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir.
phrase “under color of state law” is an element
that “is synonymous with the more familiar state-action
requirement-and the analysis for each is identical.”
Philips v. Pitt Cty. Memorial Hosp., 572 F.3d 176,
180 (4th Cir. 2009) (citing Lugar v. Edmondson Oil
Co., 457 U.S. 922, 929 (1982)). A person acts under
color of state law “only when exercising power
‘possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of
state law.'” Polk County v. Dodson, 454
U.S. 312, 317-18 (1981) (quoting United States v.
Classic, 313 U.S. 299, 326 (1941)); see also
Philips, 572 F.3d at 181 (“[P]rivate activity will
generally not be deemed state action unless the state has so
dominated such activity as to convert it to state action:
Mere approval of or acquiescence in the initiatives of a
private party is insufficient.” (Citations and internal
quotation marks omitted)).
1983 also requires a showing of personal fault based upon a
defendant's own conduct. See Vinnedge v. Gibbs,
550 F.2d 926, 928 (4th Cir. 1977) (stating that for an
individual defendant to be held liable pursuant to 42 U.S.C.
§ 1983, the plaintiff must affirmatively show that the
official acted personally to deprive the plaintiff of his
rights). Thus, there is no respondeat superior liability
under § 1983. Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009) (“Because vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff
must plead that each Government-official defendant, through
the official's own individual actions, has violated the
Constitution.”); see also Wilcox v. Brown, 877
F.3d 161, 170 (4th Cir. 2017); Love-Lane v. Martin,
355 F.3d 766, 782 (4th Cir. 2004); Trulock v. Freeh,
275 F.3d 391, 402 (4th Cir. 2001).
of supervisory officials in § 1983 claims “is
premised on ‘a recognition that supervisory
indifference or tacit authorization of subordinates'
misconduct may be a causative factor in the constitutional
injuries they inflict on those committed to their
care.'” Baynard v. Malone, 268 F.3d 228,
235 (4th Cir. 2001) (citing Slakan v. Porter, 737
F.2d 368, 372 (4th Cir. 1984)). With respect to a supervisory
liability claim in a § 1983 action, a plaintiff must
(1) That the supervisor had actual or constructive knowledge
that his subordinate was engaged in conduct that posed a
pervasive and unreasonable risk of constitutional injury to .
. . the plaintiff; (2) that the supervisor's response to
that knowledge was so inadequate as to show deliberate
indifference to or tacit authorization of the alleged
offensive practices; and (3) that there was an affirmative
causal link between the supervisor's inaction and the
particular constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)
(citations omitted), cert. denied, 513 U.S. 813
(1994); see also Wilcox, 877 F.3d at 170.
these principles in mind, I turn to address the multiple
claims lodged against the various defendants. The discussion
of the claims does not correspond to the order of the counts
in the Amended Complaint.
Claims Against Individual Defendants in their Official
has sued Victor Brito, the Hagerstown police chief; Bob
Bruchey, the Mayor of Hagerstown; and five individual City
Council Members: Kristin B. Aleshire, Paul Corderman, Emily
Keller, Lewis Metzner, and Donald F. Munson, all in their
official capacities. ECF 32. She has also sued the individual
officer defendants, P.O Eichelberger, Sgt. Constable, Officer
Rowe, and unknown officer defendants, “in both their
personal capacities and their official capacities.”
Id. Because “the government entity has
received an opportunity to respond to a suit filed against
one of its agents in his or her official capacity, the suit
is in all respects, other than name, a suit against the
entity.” Vincent v. Prince George's Cnty.,
Md.; 157 F.Supp.2d 588, 595 (D. Md. 2001); see also
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As
long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the
a review of the Amended Complaint makes clear that plaintiff
has not asserted any facts to support a suit against the five
City Council members. Indeed, no plausible claim has been
lodged against any of them. Thus, the suit as to them fails
for noncompliance with the notice-pleading requirements of
Rule 8(a) and with the Supreme Court's admonition that a
complaint must contain more than an “unadorned,
the-defendant-unlawfully-harmed-me accusation, ” but
must instead contain sufficient factual content that