United States District Court, D. Maryland
L. Hollander, United States District Judge.
civil rights suit, plaintiff D'Wan Whetstone has sued the
Mayor and City Council of Baltimore (the “City”);
Stephanie Rawlings-Blake, a former Mayor of the City;
Catherine Pugh, the current Mayor of the City; the Baltimore
City Police Department (“BPD”); Anthony Batts,
former BPD Commissioner; Darryl De Sousa, former BPD
Commissioner; and BPD Police Officers Thadius McMillian
and Alan Chanoine, Detective Steven Fraser, and Lieutenant
Thomas Mistysyn (collectively, the “Police
Officers”). ECF 1. The individual defendants have been
sued in both their individual and official capacities.
suit is rooted in events that occurred on March 12, 2015,
when Whetstone was in the driver's seat of a motor
vehicle that was double parked on a City street. ECF 1,
¶ 19. Whetstone alleges that Chanoine unlawfully stopped
her vehicle. Id. ¶¶ 20-21. Further, she
alleges that after McMillian, Fraser, and Mistysyn arrived at
the scene, the Police Officers used excessive force to remove
her from her vehicle. Id. ¶ 23.
Complaint contains five counts. Count One contains two
“Monell” claims against the City and the
BPD, pursuant to 42 U.S.C. § 1983. See Monell v. New
York City Dep't of Soc. Servs., 436 U.S. 658 (1978).
In particular, in Claim I Whetstone alleges unconstitutional
policies, customs, and/or patterns and practices of the City
and the BPD. In Claim II, plaintiff alleges that the City and
the BPD engaged in unconstitutional discipline, training, and
supervision of members of the BPD. See ECF 1,
¶¶ 25-43. Count Two presents a claim under 42
U.S.C. § 1983 for supervisory liability against
Rawlings-Blake, Pugh, Batts, and De Sousa. Id.
¶¶ 44-50. Count Three asserts a § 1983 claim
against the Police Officers, claiming the use of excessive
force, in violation of the Fourth and Fourteenth Amendments.
Id. ¶¶ 51-56. In Count Four, Whetstone
asserts § 1983 claims against the Police Officers for
malicious prosecution and conspiracy to maliciously
prosecute, in violation of the Fourth and Fourteenth
Amendments to the Constitution. Id. ¶¶
57-64. Count Five contains a § 1983 claim against the
Police Officers for “false arrest/imprisonment.”
Id. ¶¶ 65-72. Plaintiff seeks compensatory
and punitive damages. Id. at 19.
motions to dismiss are now pending. First, the City, Pugh,
and Rawlings-Blake have moved to dismiss for failure to state
a claim, pursuant to Fed.R.Civ.P. 12(b)(6) (ECF 5), supported
by a memorandum of law. ECF 5-1 (collectively, the
“City's Motion”). The BPD, De Sousa, and
Batts have also moved to dismiss under Rule 12(b)(6) (ECF 8),
supported by a memorandum. ECF 8-1 (collectively, the
“BPD's Motion”). And, the Police Officers
submitted two nearly identical motions to dismiss, under Rule
12(b)(5) and Rule 12(b)(6). They argue insufficient service
of process and failure to state a claim. The first motion was
submitted by Mistysyn alone. ECF 15. The second motion was
submitted jointly by all four Police Officers. ECF 22. Each
motion is supported by a memorandum of law (ECF 15-1; ECF
22-1) (collectively, the “Police Officers'
Motions”) and an exhibit containing Chanoine's
Statement of Probable Cause. ECF 15-2; ECF 22-2. Plaintiff
opposes the motions (ECF 6; ECF 9; ECF 23), and the
defendants have replied. ECF 7; ECF 10; ECF 24. Because the
Police Officers' Motions are nearly identical, the
opposition (ECF 23) and the reply (ECF 24) address both
hearing is necessary to resolve the motions. See
Local Rule 105(6). For the reasons that follow, I shall grant
the City's Motion and the BPD's Motion. And, I shall
grant in part and deny in part the Police Officers'
Motions. Specifically, I shall dismiss Counts Four and Five
as well as all official capacity claims against the Police
Officers. But, I shall deny the Police Officers' Motions
as to Count Three.
March 12, 2015, Police Officer Chanoine was on patrol in the
area of the 1100 block of Darley Avenue in Baltimore City
when he saw a double-parked automobile. ECF 1, ¶ 19.
Plaintiff recounts that, according to Chanoine, she was
sitting in the driver's seat of the vehicle, talking to
an unidentified pedestrian. Id. ¶ 20. While
Whetstone was talking, “‘other vehicles waited
behind” her vehicle and “‘had to drive
around [Ms. Whetstone] nearly hitting the
sidewalk.'” Id. (alteration in
Chanoine conducted a traffic stop. Id. ¶ 20.
The Officer told plaintiff “‘that she had been
pulled over for obstruct[ing] the flow of
traffic.'” Id. ¶ 21. Whetstone gave
Chanoine her motor vehicle registration, which displayed her
name. Id. ¶ 22. Chanoine ran the
automobile's tags and “‘the owner of the
motor vehicle came back suspended.'” Id.
¶ 21. Plaintiff alleges that even though Chanoine
received the vehicle registration with her name, he claims
that she provided a fictitious name. Id. ¶ 22.
“placed his hand” on plaintiff and told her that
she was under arrest. Id. ¶ 23. The Complaint
does not state whether Chanoine informed plaintiff of the
crime for which she was arrested. ECF 1. Plaintiff
“demanded that a supervisor be called to the
scene.” Id. Mistysyn, McMillian, and Fraser
arrived at the scene shortly thereafter. Id. ¶
to the Statement of Probable Cause (ECF 22-2), signed by
Chanoine, Mistysyn and Chanoine repeatedly asked plaintiff to
exit the vehicle, but she refused. ECF 1 at 4-5.
But, plaintiff alleges that she did not
“physically resist” this removal.
Id. ¶ 23 (emphasis added). Plaintiff claims
that the police officers forcibly removed her from her
vehicle, “with such extreme force that her limbs were
severely bruised and her face was caused to slam into the
Whestone was “taken to Johns Hopkins for treatment of
her severe injuries.” Id. ¶ 24. She was
issued the following traffic citations: “(1) Failure to
Display License on Demand; (2) Driving Vehicle while License
Suspended; (3) Vehicle Driver giving False and Fictious Name
to Uniformed Police; (4) Causing Standing Vehicle to Obstruct
Free Vehicle Passage of Roadway; and (5) Driving on Suspended
License.” Id. Whetstone was also charged with
“(1) Disorderly Conduct; (2) Resisting and/or
Interfering with Arrest; and (3) Failure to [Obey] a
Reasonable Lawful Order.” Id. Subsequently,
“[a]ll charges received a nolle
filed suit on March 12, 2018. ECF 1. McMillian was served on
August 12, 2018. ECF 17. According to the returns of service
(ECF 18), Mistysyn was served on September 9, 2018, but he
asserts that he was served on September 19, 2019. ECF 22-1 at
7 n.3. Chanoine was served on September 28, 2018. ECF 16. On
October 18, 2018, counsel for Fraser accepted service on
Fraser's behalf by agreement and without prejudice to the
defendant's right to challenge the sufficiency of the
service. ECF 22-1 at 2, n.1.
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.”
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 Paradise Wire & Cable Defined
Benefit Pension Plan v. Weil, 2019 WL 1105179, at *3
(4th Cir. Mar. 11, 2019); Willner v. Dimon, 849 F.3d
93, 112 (4th Cir. 2017). To be sure, 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., 574 U.S., 135 S.Ct. 346, 346
(2014) (per curiam). But, mere “‘naked
assertions' of wrongdoing” are generally
insufficient to state a claim for relief. Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation
other words, 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.
“[A]n unadorned, the-defendant-unlawfully-harmed-me
accusation” does not state a plausible claim of relief.
Iqbal, 556 U.S. at 678. 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
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. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(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);
Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th
Cir. 2010). “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).
ordinarily do not “‘resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses'” through a Rule 12(b)(6) motion.
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
when a defendant moves to dismiss a complaint under Rule
12(b)(6), courts are limited to considering the sufficiency
of allegations set forth in the complaint and the
‘documents attached or incorporated into the
complaint.'” Zak v. Chelsea Therapeutics
Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015)
(quoting E.I. du Pont de Nemours & Co., 637 F.3d
at 448). The court “may not consider any documents that
are outside of the complaint, or not expressly incorporated
therein . . . .” Clatterbuck v. City of
Charlottesville, 08 F.3d 549, 557 (4th Cir. 2013);
see Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450
(4th Cir. 2007).
under limited circumstances, when resolving a Rule 12(b)(6)
motion, a court may consider documents beyond the complaint
without converting the motion to dismiss to one for summary
judgment. Goldfarb v. Mayor & City Council of
Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). In
particular, a court may properly consider documents that are
“explicitly incorporated into the complaint by
reference and those attached to the complaint as
exhibits.” Goines, 822 F.3d at 166 (citation
omitted); see also Six v. Generations Fed. Credit
Union, 891 F.3d 508, 512 (4th Cir. 2018); Anand v.
Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir.
2014); U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance
Agency, 745 F.3d 131, 136 (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); Phillips v. LCI Int'l Inc., 190
F.3d 609, 618 (4th Cir. 1999).
“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)). Of import
here, “[w]hen 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
may also “consider a document submitted by the movant
that [is] not attached to or expressly incorporated in a
complaint, so long as the document was integral to the
complaint and there is no dispute about the document's
authenticity.” Goines, 822 F.3d at 166
(citations omitted); see also Woods v. City of
Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert.
denied, U.S., 138 S.Ct. 558 (2017); Oberg, 745
F.3d at 136; Kensington Volunteer Fire Dep't. v.
Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012).
“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).
See also Fed. R. Civ. P. 10(c) (“A copy of a
written instrument that is an exhibit to a pleading is a part
of the pleading for all purposes.”).
addition, “a court may properly take judicial notice of
‘matters of public record' and other information
that, under Federal Rule of Evidence 201, constitute
‘adjudicative facts.'” Goldfarb, 791
F.3d at 508; see also Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v.
Penn Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir.
2011), cert. denied, 565 U.S. 825 (2011);
Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180
(4th Cir. 2009). However, under Fed.R.Evid. 201, a court may
take judicial notice of adjudicative facts only if they are
“not subject to reasonable dispute, ” in that
they are “(1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.”
her Complaint, Whetstone submitted the United States
Department of Justice's report, titled
“Investigation of the Baltimore City Police
Department.” See ECF 1-2. Because this exhibit
was submitted with the suit, and is integral to the
Monell claim, I may consider it here.
Police Officers submitted the Statement of Probable Cause
(ECF 22-2) as an exhibit. To be sure, the Complaint
repeatedly quotes or refers to allegations contained in the
Statement of Probable Cause. See, e.g., ECF 1,
¶¶ 19, 20, 21, 23. But, plaintiff does not appear
to adopt the veracity of the content of the document, in its
entirety; she does not credit the document “over
conflicting allegations in the complaint[.]”
Goines, 822 F.3d at 167. Therefore, at this
juncture, I may not consider the Statement of Probable Cause.
Service of Process
Police Officers claim that Whetstone failed to serve them
within 90 days after the complaint was filed, as required by
Fed.R.Civ.P. 4(m). Further, they assert that Whetstone cannot
show good cause for her failure to make timely service.
Therefore, they contend that the Court must dismiss the suit
as to the Police Officers.
maintains that she has shown good cause. However, she claims
that the Court may extend the time for service even without
good cause shown.
4(m) requires a plaintiff to serve a defendant “within
90 days after the complaint is filed.” If a defendant
is not served within that time, “the court . . . must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time.”
Id. Under Rule 4(m), “if the plaintiff shows
good cause for the failure, the court must extend the time
for service for an appropriate period.” Rule 4(m) was
enacted in 1993 as a successor to former Rule 4(j), which
required that a case “‘shall be
dismissed'” if the defendant was not served within
120 days and the plaintiff “‘cannot show good
cause why such service was not made within that
period.'” Chen v. Mayor & City Council of
Baltimore, 292 F.R.D. 288, 292 n.6 (D. Md. 2013)
(quoting Fed.R.Civ.P. 4(j) (1988)), aff'd, 546
Fed.Appx. 187, 188 (4th Cir. Nov. 12, 2013) (per curiam),
cert. granted, 35 S.Ct. 475 (2014), cert.
dismissed, 135 S.Ct. 939 (2015), reh'g
denied, 135 S.Ct. 1485 (2015). Effective December 1,
2015, the time for service was reduced to 90 days.
Mendez v. Elliott, 45 F.3d 75, 78 (4th Cir. 1995),
the Fourth Circuit opined that the new Rule 4(m) represented
a “renumber[ing]” of former Rule 4(j),
“without a change in substance, ” and requires
that if the complaint is not served within the time provided,
“the complaint must be dismissed absent a showing of
good cause.” Id. at 78. The Mendez
Court did not discuss the Advisory Committee Notes to Rule
4(m), which state that the rule “authorizes the court
to relieve a plaintiff of the consequences of an application
of this subdivision even if there is no good cause
shown.'” Hammad v. Tate Access Floors,
Inc., 31 F.Supp.2d 524, 527 (D. Md. 1999), abrogated
by Chen, 292 F.R.D. 288 (quoting Advisory Committee
Notes) (emphasis altered).
to Mendez, the Supreme Court decided Henderson
v. United States, 517 U.S. 654 (1996). In dicta, the
Supreme Court stated that, under Rule 4(m), “courts
have been accorded discretion to enlarge the [service] period
even if there is no good cause shown.'”
Id. at 662 (quoting Advisory Committee Notes to Rule
4(m)); see also Henderson, 517 U.S. at 658 n. 5.
decisions in this district have observed that it is unclear
whether Rule 4(m) vests a court with discretion to grant an
extension of the service deadline, in the absence of good
cause. See, e.g., Lehner v. CVS Pharmacy,
RWT-08-1170, 2010 WL 610755, at *2 (D. Md. Feb. 17, 2010);
Knott v. Atlantic Bingo Supply, Inc., JFM-05-1747,
2005 WL 3593743 (D. Md. Dec. 22, 2005); Hoffman v.
Baltimore Police Dep't, 379 F.Supp.2d 778, 786 (D.
Md. 2005); Melton v. Tyco Valves & Controls,
Inc., 211 F.R.D. 288 (D. Md. 2002); Hammad, 31
F.Supp.2d at 526; United States v. Britt, 170 F.R.D.
8 (D. Md. 1996).
regard Mendez as binding circuit precedent, see,
e.g., Britt, 170 F.R.D. at 9, while others have
concluded that “Mendez is no longer good
law.” Hammad, 31 F.Supp.2d at 527; see
also Melton, 211 F.R.D. at 289-90. Others have found it
unnecessary to resolve definitively whether a finding of good
cause is mandatory before an extension can be granted.
See, e.g., Lehner, 2010 WL 610755, at *2;
Knott, 2005 WL 3593743, at *1 n.1. Nevertheless,
even if good cause is no longer an absolute requirement under
Rule 4(m), “the Court would still need to have some
reasoned basis to exercise its discretion and excuse the
untimely service: the Court must give some import to the
rule.” Hoffman, 379 F.Supp.2d at 786; see
also Lehner, 2010 WL 610755, at *3 (observing that where
plaintiff “made no effort to serve Defendant within the
time allotted under Fed.R.Civ.P. 4(m), ” even assuming
that the court had discretion to excuse untimely filing, the
court would “not make a mockery of the time
requirements set forth in the Federal Rules of Civil
Chen, 546 Fed.Appx. 187, the Fourth Circuit upheld
the lower court decision that relied on Mendez, but
it did so without analysis. Moreover, the Supreme Court
granted certiorari in Chen to decide
“[w]hether, under Federal Rule of Civil Procedure 4(m),
a district court has discretion to extend the time for
service of process absent a showing of good cause, as the
Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh
Circuits have held, or whether the district court lacks such
discretion, as the Fourth Circuit has held[.]” Chen
v. Mayor & City Council of Balt., 135 S.Ct. 475
(2014); accord Escalante v. Tobar Construction,
PX-18- 980, 2019 WL 109369, at *1n.1 (D. Md. Jan. 3, 2019).
The Supreme Court later dismissed the petition because the
self-represented petitioner missed a briefing deadline.
Chen v. Mayor & City Council of Balt., 135 S.Ct.
939 (2015), petition for reh'g denied, 135 S.Ct.
most of the circuits that have considered the issue have
decided that good cause need not be shown. See Zapata v.
City of N.Y., 502 F.3d 192, 196 (2d Cir. 2007);
Horenkamp v. Van Winkle & Co., 402 F.3d 1129,
1133 (11th Cir. 2005)); Mann v. Am. Airlines, 324
F.3d 1088, 1090 (9th Cir. 2003); Panaras v. Liquid
Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996);
Adams v. Allied Signal Gen. Aviation Avionics, 74
F.3d 882, 887 (8th Cir. 1996); Thompson v. Brown, 91
F.3d 20, 21 (5th Cir. 1996); Espinoza v. United
States, 52 F.3d 838, 841 (10th Cir. 1995);
Petrucelli v. Bohringer & Ratzinger, 46 F.3d
1298, 1305 (3d Cir. 1995)). The other circuits have not
“squarely decided” to the contrary.
Escalante, 2019 WL 109369, at *3 n.2.
“the 2015 amendment appears to clarify Rule [4(m)] in
a manner supporting court discretion to extend the time for
service even absent good cause.” Escalante,
2019 WL 109369, at *3. Judge Xinis explained in
Escalante, id. at *3:
The 2015 version states that if a plaintiff fails to serve
the complaint within 90 days, the court must dismiss or
“order that service be made within a specified
time.” Fed.R.Civ.P. 4(m) (2015). However, where good
cause is shown, the rule expressly provides only one option
to the Court: extend time for service. Id.
(“But if the plaintiff shows good cause for
the failure, the court must extend the time for service for
an appropriate period.”) (emphasis added). The
amendment, therefore, states even more clearly than in 1993
that a district court has two options where no good cause is
shown-dismiss or extend time for service- whereas upon a good
cause showing, the court may only extend time, and not
consequence of the 2015 amendments, several judges in the
Fourth Circuit have concluded that Mendez no longer
controls. Id. at *4; see Robertson v. Beacon
Sales Acquisition, GJH-16-3241, 2018 WL 2464455, at *3
n.7 (D. Md. May 31, 2018) (“Mendez is no
longer the controlling authority in the Fourth Circuit
because, contrary to former Rule 4(j), Rule 4(m) no longer
requires a court to dismiss a complaint absent a showing of
good cause.”); Robinson v. G D C, Inc., 193
F.Supp.3d 577, 582-84 (E.D. Va. 2016); LHF Prods., Inc.
v. Does, No. 3:16-cv-284, 2016 WL 7423094, at *6 n.11
(E.D. Va. Dec. 22, 2016).
to Fed. R. Civ. P 4(m), plaintiff was required to serve the
Police Officers by June 10, 2018. See ECF 1. But,
plaintiff did not serve the Police Officers until between 63
and 130 days after the Rule 4(m) deadline expired.
See ECF 16; ECF 17; ECF 18; ECF 22-1 at 2, n.1, 7
n.3. Moreover, plaintiff failed to seek an extension of the
deadline before the end of the 90-day period. See
Police Officers note, I have previously concluded in other
cases that a plaintiff must show good cause to warrant an
extension of the Rule 4(m) deadline. ECF 24 (citing
Bailey v. Bank of Am., ELH-16-2243, 2017 WL 1301486,
at *6-*8 (D. Md. Apr. 7, 2017)). Nevertheless, I now
reconsider this conclusion in light of Judge Xinis'
recent opinion in Escalante, 2019 WL 109369, and
conclude that it is within the Court's discretion to
extend plaintiff's time to serve under Rule 4(m).
event, Whetstone contends that she has shown good cause for
failing to make timely service. See ECF 23 at 3-4.
According to the Opposition, plaintiff's counsel
“immediately served the Defendants' employer as
instructed by the Baltimore City Police Department for
service upon the Defendants[;] however[, ] they did not file
responsive pleadings.” ECF 23 at 4. Moreover, plaintiff
maintains that BPD “was acutely aware of the lawsuit
and very early in the lawsuit filed its own responsive
documents.” Id. Therefore, plaintiff
“continued her efforts and attempted to serve the
Defendants at applicable precincts and hired a private
process server to assist in the efforts.” Id.
at 4. And, Whetstone maintains that defendants “were
not cooperating with service.” Id.
“good cause” for extension of the Rule 4(m)
deadline, the plaintiff must show that she “made
reasonable and diligent efforts to effect service prior to
the [applicable time] limit . . . .” Chen, 292
F.R.D. at 292 (quotation marks and citation omitted);
accord Knott, 2005 WL 3593743, at *1. Where a
plaintiff has failed to timely serve a defendant, however,
courts have found the absence of good cause in a variety of
compelling circumstances. See, e.g., Braithwaite
v. Johns Hopkins Hosp., 160 F.R.D. 75 (D. Md. 2005)
(holding that murder of a self-represented plaintiff's
daughter did not constitute good cause to excuse failure to
serve defendant within 120 days); Knott, 2005 WL
3593743, at *1-2 (holding that serious illness suffered by
plaintiff's counsel, which confined him to “bed
rest, ” did not constitute good cause for failure to
serve defendant within 120 days).
attempted to effect service by the deadline. ECF 23 at 4;
compare with United States ex rel. Moore v.
Cardinal Fin. Co., L.P., CCB-12-1824, 2017 WL 1165952,
at *8 (D. Md. Mar. 28, 2017) (“[N]o ‘reasoned
basis' exists where plaintiff ‘made no effort'
to effect service by [the] deadline.”) (quoting
Lehner, 2010 WL 610755, at *3); Hoffman,
379 F.Supp.2d at 778 (finding no “reasoned basis”
where plaintiff's counsel “did absolutely nothing
to attempt to serve the defendants for 118 days, and offers
the unavailability of one of his office staff on the final
two days as the reason for untimely service”). Further,
the Police Officers do not assert that they are prejudiced by
the delay in service. ECF 22-2; ECF 24; see LHF
Prods., 2016 WL 7423094, at *6 n.11 (“Because this
case remains in an early stage of litigation, in which no
defendant has filed an answer or other responsive pleading,
the Court sees no prejudice that could result from a brief
extension of time in order to serve one defendant.”).
addition, dismissal would likely bar Whetstone from refiling
her suit against the Police Officers. See Sandhir v.
Little, No. 1:17-cv-102, 2018 WL 4144454, at *4 (N.D.
W.Va. Aug. 30, 2018) (finding that when a statute of
limitations could bar the refiling of claims, it weighs in
favor of extending the time for service); see also
Fed. R. Civ. P. 4 advisory committee's note to 1993
amendment (“Relief may be justified, for example, if
the applicable statute of limitations would bar the refiled
the Court, in its discretion, shall extend the Rule 4(m)
deadline and permit the case to proceed.
Discussion of the Claims
Section 1983 Generally
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. 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. 1893 (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)); see Safar v. Tingle, 859 F.3d
241, 245 (4th Cir. 2017).
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). “The
first step in any such claim is to pinpoint the specific
right that has been infringed.” Safar, 859
F.3d at 245.
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)).
Official Capacity; The ...