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Whetstone v. Mayor & City Council Baltimore City

United States District Court, D. Maryland

March 13, 2019



          Ellen L. Hollander, United States District Judge.

         In this 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[1]; 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.

         The 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.

         The 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.

         Four 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 motions.

         No 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.

         I. Factual Background

         On 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 Complaint).[2]

         Accordingly, 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.

         Chanoine “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. ¶ 23.

         According 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 roadway.” Id.

         Thereafter, 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 prosequi.” Id.

         Plaintiff 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.

         II. Legal Standard

         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.”

         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 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 omitted).

         In 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 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. 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).

         Courts 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 Goodman ).

         “Generally, 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).

         But, 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).

         However, “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 true.” Id.

         A court 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).

         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). 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.”).

         In 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.”

         With 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.[3]

         The 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.

         III. Service of Process

         The 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.

         Whetstone maintains that she has shown good cause. However, she claims that the Court may extend the time for service even without good cause shown.

         Rule 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.

         In 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).

         Subsequent 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.

         Several 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).

         Some 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 Procedure”).

         In 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. 1485 (2015).

         Notably, 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.

         Additionally, “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 dismiss.

         As a 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).

         Pursuant 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 Docket.

         As the 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).

         In any 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.

         To show “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).

         Whetstone 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.”).

         In 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 action[.]”).

         Therefore, the Court, in its discretion, shall extend the Rule 4(m) deadline and permit the case to proceed.

         IV. Discussion of the Claims

         A. Section 1983 Generally

         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. 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).

         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). “The first step in any such claim is to pinpoint the specific right that has been infringed.” Safar, 859 F.3d at 245.

         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)).

         B. Official Capacity; The ...

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