Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

B.N.S. v. Brito

United States District Court, D. Maryland

November 6, 2018

B.N.S. minor child by her parents and next friends Christine and Brian Stuart Plaintiff
v.
VICTOR BRITO, et al. Defendants

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         Plaintiff 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 Munson.

         The 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.

         The 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.

         Defendants 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).

         No 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.

         I. Factual Background [1]

         On 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.

         Police 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.[2]

         Plaintiff 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.

         II. Legal Standards

         A.

         As 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. Md. 2011).

         Ordinarily, 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).

         A 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.

         Summary 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.

         Although 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)).

         Plaintiff 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.

         On 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).

         In 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. 1989)).

         Accordingly, 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).

         B.

         A 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. 12(b)(6).

         Whether 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).

         To 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).

         Nevertheless, 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).

         In 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).

         With 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 Goodman).

         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).

         But, “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.

         C.

         Section 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).

         To 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. 1997).

         The 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)).

         Section 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).

         Liability 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 allege:

(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.

         With 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.

         III. Discussion

         A. Claims Against Individual Defendants in their Official Capacities

         Plaintiff 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 entity.”).

         Moreover, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.