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McDougald v. Spinnato

United States District Court, D. Maryland

March 15, 2019

VERDESSA MCDOUGALD, et al., Plaintiffs,


          Ellen L. Hollander, United States District Judge

         This case arises from the tragic death of 38-year-old Tyree Woodson (“Mr. Woodson” or the “Decedent”), while at the Southwestern District Police Station of the Baltimore City Police Department (“BPD”). The Decedent's mother, plaintiff Verdessa McDougald, has filed an Amended Complaint, individually and as Personal Representative of the Estate of Mr. Woodson, asserting a variety of claims against Detective Michael Spinnato, Sergeant Sterling Price, Detective Earl Thompson, Detective “Mathew” Pow, Detective “Mathew” Dzambo, [1] Detective Kevin Carvell, Detective Jeffrey Converse (the “Officer Defendants”), and former BPD Commissioner Anthony W. Batts, individually and in their official capacities. ECF 22.[2]

         Plaintiff has structured her Amended Complaint into two “Cases, ” each with multiple counts Id. Case 1 presents wrongful death claims on behalf of plaintiff, in her individual capacity, and Case 2 presents survival claims on behalf of plaintiff as Personal Representative of Mr. Woodson's Estate.[3] In Case 1, plaintiff asserts two counts. Count I contains a claim for Wrongful Death for Gross Negligence lodged against the Officer Defendants. Case I, Count II asserts a “Monell Claim, ”[4] under 42 U.S.C. § 1983, for “wrongful death for negligent supervision, training, retention and custom or policy of deliberate indifference, ” lodged against Batts as well as the Officer Defendants. In Case 2, plaintiff, as Personal Representative of the Decedent's Estate, asserts three counts. Count I is a Survival Action for Gross Negligence, lodged against the Officer Defendants under Md. Code, § 7-401 of the Estates and Trusts Article (“E.T.”), and Maryland Code, § 6-401 of the Courts and Judicial Proceedings Article (“C.J.”). Count II asserts a Monell claim, under 42 U.S.C. § 1983, against Batts and the Officer Defendants. Count III contains a Survival Action for funeral expenses, pursuant to E.T. § 7-401, apparently lodged against all defendants.[5]

         The Officer Defendants have moved to dismiss the Amended Complaint under Rule 12(b)(6), for failure to state a claim (ECF 25), supported by a memorandum of law. ECF 25-1 (collectively, “Officer Defendants' Motion). Curiously, plaintiff failed to file an opposition to the Officer Defendants' Motion. However, I will consider plaintiff's opposition (ECF 18) to the Officer Defendants' earlier motion to dismiss (ECF 16) as the opposition to the second motion to dismiss. And, I shall also consider the Officer Defendants' earlier reply. ECF 19. Defendant Batts filed a separate motion to dismiss the Amended Complaint (ECF 31), also for failure to state a claim, along with a memorandum of law. ECF 31-1 (collectively, the “Batts Motion”). Plaintiff opposes the Batts Motion (ECF 35) supported by a memorandum (ECF 35-1) (collectively, “Batts Opposition”) and an exhibit. Batts has replied. ECF 36 (“Batts Reply”).

         No hearing is necessary to resolve the pending motions. See Loc. R. 105.6 (D. Md. 2018). For the reasons that follow, I will grant the Batts Motion, and I will grant in part and deny in part the Officer Defendants' Motion.

         I. Factual and Procedural Background[6]

         Mr. Woodson was shot in his left foot on July 25, 2014. ECF 22, ¶¶ 3, 10. On August 5, 2014, at about 10:45 a.m., Sergeant Sterling Price and Detective Earl Thompson, members of the BPD Warrant Apprehension Task Force, encountered Mr. Woodson and his mother as they exited their home in Baltimore. ECF 22, ¶¶ 3, 7, 8. They told Mr. Woodson that he was needed for questioning, and to provide a victim/witness statement regarding the recent incident in which Mr. Woodson was the victim of a shooting. Id. ¶¶ 8-10.

         Plaintiff asserts that the officers' claim that they needed to obtain a statement from Mr. Woodson was a ruse, because an arrest warrant had been issued for Mr. Woodson in connection with the shooting of Jerome McDougald. ECF 22, ¶ 3.[7] In any event, Mr. Woodson and Ms. McDougald asked about the length of time of the interview, id. ¶ 11, and the officers “promised” that Mr. Woodson would be returned home “safely” in just “a few hours . . . .” Id. ¶ 12. At that point, the officers handcuffed Mr. Woodson, without searching him for weapons, and placed him in the back of the police cruiser. Id. ¶¶ 13-15. The failure to search under such circumstances violated BPD General Order J-13, which mandated “a thorough search of all arrestees . . . .” Id. ¶ 15.

         The “unmarked” police vehicle arrived at the Southwestern District Police Station at about 11:05 a.m. Id. ¶ 17. Mr. Woodson was removed from the vehicle, still handcuffed, and entered the police station. Id. ¶¶ 18, 19. Again, he was not searched, as required by General Order J-13. Id. ¶ 19.

         Mr. Woodson was placed into a prisoner holding cell in a secure area of the station. Id. ¶ 21. Detective Kevin Carvell handcuffed Mr. Woodson's right hand to a cement wall. Id. ¶¶ 20, 21. While in the holding cell, Mr. Woodson was in the presence of other inmates and police employees. Id. ¶ 23.

         At about 12:15 p.m., Detective Matthew Dzambo advised Mr. Woodson that he should use the private bathroom outside the holding cell. Id. ¶¶ 25-26. Detective Dzambo then escorted Mr. Woodson into the private bathroom, without a search. Id. ¶¶ 26-28. At approximately 2:40 p.m., Mr. Woodson again asked to use the bathroom. Id. ¶ 29. Detectives Pow and Converse removed Mr. Woodson's handcuffs and allowed him first to smoke a cigarette “out back, ” using a cigarette and lighter that Mr. Woodson removed from his front pants pocket. Id. ¶¶ 30-31. Despite the officers' awareness that Mr. Woodson had the cigarette and the lighter, which are contraband for a detainee, they still did not search Mr. Woodson. Id.

         After the bathroom and cigarette break, Detectives Pow and Converse escorted Mr. Woodson to a secure area for questioning, without searching him. Id. ¶ 32. They questioned Mr. Woodson about items recovered during the execution of a search warrant at Mr. Woodson's home approximately one hour earlier. Id. ¶ 33. They also interrogated Mr. Woodson about activities of the Black Guerrilla Family (“BGF”) gang, and acknowledged that Mr. Woodson's “possible testimony against a purported BGF member will put his life in jeopardy . . . .” Id. According to plaintiff, the officers “threatened Mr. Woodson's life and safety with the reality that BGF gang members will retaliate against him for purportedly snitching.” Id. ¶ 3.

         The interrogation “visibly change[d]” Mr. Woodson's “demeanor and temperament from ‘very respectful' to extreme fear for his safety, extreme fear of the BGF, extreme fear for the immediate safety of his family, crying and fear of going away for a long time.” Id. ¶ 34. Mr. Woodson acknowledged that he was a BGF member, and he asked the officers about relocating his family to protect them from BGF. Id. ¶ 35. The officers allowed Mr. Woodson to make a phone call to his girlfriend, during which Detectives Pow and Converse heard Mr. Woodson crying and telling her, “‘the police found the gun and he was going to jail, that he would be gone for a long time.'” Id. ¶ 36.

         After Mr. Woodson called his girlfriend, he again asked to use the private bathroom. Id. ¶ 37. Detective Pow escorted Mr. Woodson to the private bathroom, uncuffed and without searching him, and allowed him to enter the private stall. Id. ¶¶ 38-39. While in the bathroom (id. ¶ 39), Detective Pow heard a “‘pop.'” Id. ¶ 40. When Pow opened the bathroom stall, he saw Mr. Woodson, “slumped back on the left side of the stall.” Id.

         Officer D. Mattingly entered the bathroom and saw Detective “Hollinsworth, ”[8] who was “standing at the stall.” Id. ¶ 42. He observed that Mr. Woodson had a single gunshot wound to his head. Mattingly also saw a single shell casing at the right side of Mr. Woodson's feet. Id. ¶ 43. Mr. Woodson was “alleged to have been seated on the toilet with his arms at his sides.” Id.

         In addition, Mattingly saw a single gunshot hole in the ceiling bathroom, above the Decedent. Id. ¶ 44. And, Mattingly observed a Glock 23 behind a trash can, “where Detective Hollinsworth stated he had placed hit [sic].” Id. ¶ 46; see also Id. ¶ 45. The medics who responded determined that Mr. Woodson had a pulse. Id. ¶ 47. But, “moments later, ” upon removing Mr. Woodson from his seated position on the toilet to begin treatment, they pronounced him dead. Id. ¶ 48; see also Id. ¶ 47. An autopsy and police investigation classified the manner of death as suicide. Id. ¶ 51. Postmortem toxicologic testing was negative for alcohol and positive for tramadol and morphine. Id.

         II. Legal Standards

         Under Federal Rule of Civil Procedure 12(b)(6), a defendant may test the legal sufficiency of a complaint by way of a motion to dismiss. 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.” See In re Birmingham, 846 F.3d at 92.

         Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Federal Rule of Civil Procedure 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.” Fed.R.Civ.P. 8(a)(2). The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atlantic 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, 127 S.Ct. at 1974; 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 Fund Plan v. Weil, F.3d, 2019 WL 1105179, at *3 (4th Cir. March 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 (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 for 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. Maryland Transit Admin., 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 generally 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).

         Ordinarily, in evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a court “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 v. U.S. Airways, Inc., 510 F.3d 442, 450 (2007). “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). Under limited circumstances, however, 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 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; see also Fed. R. Civ. P. 10(c); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Paradise Wire & Cable, supra, 2019 WL 1105179, at *4. 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)).

         A court may also “consider a document submitted by the movant that was 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 Six v. Generations Federal Credit Union, 891 F.3d 508, 512 (4th Cir. 2018); Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied, U.S., 138 S.Ct. 558 (2017); 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) (citation omitted); Kensington Volunteer Fire Dep't. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012); 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). 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.”).

         Plaintiffs appended several exhibits to their Opposition to the Police Officer's prior motion to dismiss. See ECF 18. They do not appear integral to the Amended Complaint, however, nor are they incorporated in the suit. Therefore, I may not consider them in regard to the merits of the motions.

         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 Fed. R. Evid. 201(b) (stating that a “court may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v. Penn Nat'l Gaming, Inc., 6367 F.3d 462, 466 (4th Cir.), cert. denied, 565 U.S. 825, (2011); Philips v. Pitt County Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Accordingly, “[i]t is not uncommon for courts to take judicial notice of factual information found on the world wide web.” O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007); cf. Jeandron v. Bd. of Regents of Univ. Sys. of Maryland, 510 Fed.Appx. 223, 227 (4th Cir. 2013) (noting that the court may take judicial notice of information on a website, “so long as the web site's authenticity is not in dispute”). However, “these facts [must be] construed in the light most favorable” to the nonmovant. Clatterbuck, 708 F.3d at 557.

         In resolving the motions, I have taken judicial notice of the fact that Batts was sworn into office on November 8, 2012. See Justin Fenton, “Batts formally sworn in as Baltimore police commissioner, ” The Baltimore Sun (Nov. 8, 2012), 2012-11- 08/news/bs-md-ci-batts-sworn-in-201211081anthony-w-batts-violentcrime-mayor- stephanie-rawlings-blake.

         Before discussing the defense motions, it is also helpful to review the parameters of 42 U.S.C. § 1983.

         Section 1983 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); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999); 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 merely 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). Therefore, “[t]he 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 aver that a person acting under color of state law deprived him of a constitutional right or a right conferred by a law of the United States.” Wahi v. Charleston Area Medical Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009); see Filarsky, 566 U.S. 382-83; West v. Atkins, 487 U.S. 42, 48 (1988); Crosby v. City of Gastonia, 635 F.3d 634, 639 (4th Cir. 2011), cert. denied, 565 U.S. 823 (2011); 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, supra, 572 F.3d at 180 (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)). The Fourth Circuit has said: “[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.” Philips, 572 F.3d at 181 (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. Iqbal, 556 U.S. at 676 (“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 a supervisory official under § 1983 “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.

         In the “Jurisdiction” Section of the Amended Complaint (¶¶ 1-3 at 3-6), plaintiff asserts that the Police Officers “made an unreasonable seizure” of Mr. Woodson, “thereby violating his rights under the Fourth and Fourteenth Amendments to the United States Constitution . . . .” Id. ¶ 3 at 5. Other than a few cursory references to the Fourth and Fourteenth Amendments (ECF 22, ¶¶ 1, 3), there are no other references to any constitutional provisions. Plaintiff has not articulated, in the Monell counts, the alleged constitutional violations.

         III. The Batts Motion

         Plaintiff has lodged the following claims against Batts. Case I, Count II: a wrongful death action, brought by plaintiff in her individual capacity, pursuant to 42 U.S.C. § 1983 and Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978), alleging negligent supervision, training, retention, as well as a custom or policy of deliberate indifference. See ECF 22, ¶¶ 72-80; Case 2, Count II: a survival action, brought by plaintiff as Personal Representative of the Decedent's estate, pursuant to Monell and § 1983, and asserting the same alleged conduct. Id. ¶¶ 89-100.

         Although not entirely clear from the Amended Complaint, plaintiff also appears to assert claims against Batts in his personal capacity for supervisory liability under § 1983, as well as in his official capacity, for the policies and customs of the BPD. ECF 22, ¶¶ 66-67, 70, 72-80. According to plaintiff, the violation of the Decedent's rights occurred because, inter alia, Batts breached a duty “to implement General Orders regarding the mandatory search of all arrestees coming into and moving throughout the various police precincts in Baltimore City.” Id. ¶ 74; see also Id. ¶ 76. Moreover, plaintiff claims that Batts failed to train, supervise, and discharge the defendant Police Officers “for their failure to [conduct] proper searches . . . .” Id. at ¶ 75.

         Plaintiff asserts § 1983 claims against Batts based on three theories of liability. First, plaintiff theorizes that the BPD-through Batts, in his official capacity as Commissioner- implemented a policy or custom of condonation or deliberate indifference. ECF 22, ¶¶ 75, 77. Second, plaintiff asserts that the BPD-through Batts, in his official capacity as Commissioner- had a custom or policy of failing to train its officers adequately. Id. And, the third theory is that Batts is liable in his personal capacity for failing adequately to supervise the BPD officers, including as to those involved in the incident with Mr. Woodson. Id. ¶ 77.

         According to plaintiff, the Officer Defendants “made an unreasonable seizure” of Mr. Woodson, in violation his rights under the Fourth and Fourteenth Amendment, by use of a ruse, claiming they needed Mr. Woodson to provide a victim/witness statement. ECF 22, ¶ 3. And, plaintiff alleges that on August 5, 2014, the Police Officers were “intentionally and/or grossly negligent in their decision to forego searching Mr. Woodson for any weapons” when he was taken into custody and throughout the time that he was held at the police station. Id. In this regard, plaintiff contends that Batts failed to implement or enforce a policy requiring the search of arrestees (id. ¶¶ 74, 75), and he failed to properly train the officers concerning the “treatment of custodial persons outside and inside a district police station where other police officers and civilians are in close proximity and able to cause harm to the person in custody or be harmed by the person in custody . . . .” Id. ¶ 3.

         In his Motion (ECF 31), Batts contends that the Amended Complaint has not stated a predicate constitutional violation by any defendant; has not sufficiently alleged “the necessary elements for a plausible Monell claim under any theory”; and fails to allege a § 1983 supervisory liability claim against Batts in his individual capacity. ECF 31-1 at 2-3.

         1. Monell Generally

         As noted, Batts was sued in his official capacity. A suit against Batts in his official capacity is, in effect, a suit against the BPD. In Kentucky v. Graham, 473 U.S. 159, 166 (1985), the Court said: “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. It is not a suit against the official personally, for the real party in interest is the entity.” (internal citation omitted).

         Pursuant to Monell, 436 U.S. 658, a municipality is subject to suit under § 1983. See Id. at 690 (permitting a § 1983 claim against a municipality for money damages, based on an unconstitutional policy or custom of a municipality, resulting in a violation of a plaintiff's constitutional rights). But, liability attaches “only where the municipality itself causes the constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (emphasis in original).

         A viable § 1983 Monell claim contains two elements: (1) the municipality had an unconstitutional policy or custom; and (2) the unconstitutional “policy or custom” caused a violation of the plaintiff's constitutional rights. See, e.g., Bd. of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Kirby v. City of Elizabeth City, 388 F.3d 440, 451 (4th Cir. 2004), cert. denied, 547 U.S. 1187 (2006); Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003).

         In Monell, 436 U.S. 658, the Supreme Court determined that local governmental bodies may be liable under § 1983 based on the unconstitutional actions of individual defendants, but only if those defendants were executing an official policy or custom of the local government that resulted in a violation of the plaintiff's rights. Id. at 690-91. The Court said that, “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694; see also Love-Lane, 355 F.3d at 782.

         A plaintiff may demonstrate the existence of an official policy in three ways: (1) a written ordinance or regulation; (2) certain affirmative decisions of policymaking officials; or (3) in certain omissions made by policymaking officials that “manifest deliberate indifference to the rights of citizens.” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999). “Locating a ‘policy' ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality.” Bd. of Comm'rs of Bryan Cty., 520 U.S. at 403-04.

         “An official policy often refers to ‘formal rules or understandings ... that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time,' and must be contrasted with ‘episodic exercises of discretion in the operational details of government.'” Semple v. City of Moundsville, 195 F.3d 708, 712 (4th Cir.1999) (alteration in Semple and citations omitted). “In addition, the governmental unit may ...

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