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Hispanic National Law Enforcement Association NCR v. Prince George's County

United States District Court, D. Maryland

July 8, 2019

PRINCE GEORGE'S COUNTY, HENRY P. STAWINSKI, III, Individually and in His Official Capacity as Chief of Police, MARK A. MAGAW, Individually and in His Official Capacity as Deputy Chief Administrative Officer for Public Safety, CHRISTOPHER MURTHA, Individually and in His Official Capacity as Deputy Chief of Police, and MAJOR KATHLEEN MILLS, Individually and in Her Official Capacity as Commander, Defendants.



         Plaintiffs Hispanic National Law Enforcement Association NCR ("HNLEA") and United Black Police Officers Association ("UBPOA"), along with 12 of their members who are or were employed by the Prince George's County Police Department ("PGCPD"), have brought this civil rights action against Prince George's County, Maryland and four PGCPD officials, alleging a custom and practice of discrimination and retaliation against officers of color by the PGCPD and certain high-ranking PGCPD officials. Plaintiffs assert causes of action pursuant to 42 U.S.C. § 1983 for discrimination on the basis of race and color, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and retaliation, in violation of the First Amendment. Plaintiff Lieutenant Sonya Zollicoffer has also asserted a cause of action for discrimination on the basis of disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796 (2012) ("the Rehabilitation Act"). Now pending before the Court is Defendants' First Motion to Dismiss, which seeks dismissal of HNLEA and UBPOA ("the Organizational Plaintiffs") as Plaintiffs; all claims against Defendant Deputy Chief Christopher Murtha and all individual defendants in their official capacities; and certain individual claims of discrimination or retaliation contained within the asserted causes of action. The Court held a hearing on the Motion on June 7, 2019. For the reasons set forth below, the Motion will be GRANTED IN PART and DENIED IN PART.


         The facts described below are presented in the light most favorable to Plaintiffs, the non-moving parties. The PGCPD, led in. part by Defendants Chief Henry P. Stawinski, III, Deputy Chief Administrative Officer for Public Safety Mark Magaw, Deputy Chief Christopher Murtha, and Internal Affairs Division Commander Major Kathleen Mills (collectively, the "Individual Defendants"), is charged with protecting and serving the population of Prince George's County, Maryland, a county in which the majority of residents are African American. According to the Complaint, the PGCPD has long had a problem with officers who engage in racist conduct, including abusive police practices, towards both officers and civilians of color. Specifically, Plaintiffs allege a broad and pervasive custom of retaliation against officers of color who file complaints or otherwise cooperate with efforts to investigate white officers who engage in misconduct, as well as a practice of discrimination against officers of color, including institution of investigative proceedings against complaining officers, imposition of transfers to unfavorable assignments, denial of promotions and favorable transfers, and harsher discipline for officers of color.

         According to the Complaint, Chief Stawinski, supported by his co-Defendants, has effectively condoned this behavior by failing to discipline the perpetrators appropriately and thus fostered a hostile work environment in which racist conduct is allowed to persist. Plaintiffs allege that white PGCPD officers used racial slurs to refer to their fellow officers as well as people of color within the community, referred to communities of color policed by white officers as "shitholes" or "ghettos," circulated pictures of a Hispanic commander dressed up as a voodoo doll with derogatory comments, gave a training dummy a black face and Afro wig, and circulated other racist images, pictures, emails, and text messages. Compl. ¶¶ 50-53, ECF No. 1. When Plaintiffs have complained about their work environment and specific instances of misconduct, rather than enforcing PGCPD General Order 12, which bars discrimination and retaliation in the workplace, the PGCPD has engaged in retaliation against them. In March 2016, HNLEA and UBPOA filed a letter of complaint with the United States Department of Justice ("DOJ") regarding this course of conduct and have submitted additional information in support of that complaint on several occasions from October 2016 to October 2017.

         The instant Complaint also details specific instances of discrimination and retaliation experienced by Plaintiffs Michael Anis, Michael Brown, Thomas Boone, Danita Ingram, Paul Mack, Joseph Perez, Tasha Oatis, Clarence Rucker, Chris Smith, Richard Torres, Thomas Wall, and Sonya Zollicoffer (collectively, the "Individual Plaintiffs"), all of whom are officers of color who currently serve or at one time served in the PGCPD. Brown, Boone, Ingram, Mack, Oatis, Rucker, Smith, Wall, and Zollicoffer identify as African American; Perez and Torres identify as Hispanic and Latino respectively; and Anis is of Middle Eastern descent.

         Although the Complaint contains a variety of distinct allegations of discrimination and retaliation, it asserts just three counts: (I) discrimination on the basis of race and color, in violation of the Equal Protection Clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983; (II) retaliation in violation of the First Amendment, also pursuant to § 1983; and (III) discrimination on the basis of disability, in violation of the Rehabilitation Act, brought by Zollicoffer only. In their Motion, Defendants seek dismissal of only parts of Counts I and II. Notably, Defendants do not challenge Plaintiffs' claim of a custom or policy of discrimination and retaliation against the County pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978); the claim of race discrimination based on a hostile work environment; or many of the individual claims of discrimination or retaliation asserted by Individual Plaintiffs. Accordingly, the Court will describe, as set forth within the analysis below, only those specific allegations relevant to resolving Defendants' Motion.

         Since the filing of the Motion, the Court has granted Plaintiffs leave to file an Amended Complaint, which adds three additional plaintiffs and several additional causes of action. Because the Amended Complaint does not alter any of the original allegations, by agreement of the parties, the Court will resolve the First Motion to Dismiss without addressing the new allegations in the Amended Complaint.


         In their Motion, Defendants assert that: (1) all claims by Plaintiffs HNLEA and UBPOA should be dismissed because these organizations lack associational standing to seek certain forms of relief on behalf of their members and do not have standing in their own right under the doctrine of organizational standing; and (2) all claims against Murtha should be dismissed for failure to state a claim because the Complaint fails to allege personal involvement or supervisory liability as required under 42 U.S.C. § 1983. Although Plaintiffs have not explicitly enumerated separate claims on these issues, Defendants also argue for dismissal for failure to state a claim of certain specific individual claims of discrimination or retaliation brought by Individual Plaintiffs based on the statute of limitations or the lack of sufficient allegations to state a plausible claim for relief. Finally, Defendants contend that Plaintiffs' official capacity claims against the Individual Defendants should be dismissed as duplicative of their claims against Prince George's County.

         I. Legal Standards

         Defendants move to dismiss Plaintiffs HNLEA and UBPOA for lack of standing pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because standing is required to establish subject matter jurisdiction. The plaintiff has the burden to show that subject matter jurisdiction exists. Evans v. B.F. Perkins Co., Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal when it believes that the plaintiff has failed to make that showing. When a defendant asserts that the plaintiff has failed to allege facts sufficient to establish subject matter jurisdiction, the allegations in the complaint are assumed to be true under the same standard as in a Rule 12(b)(6) motion, and "the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). When a defendant asserts that facts outside of the complaint deprive the court of jurisdiction, the Court "may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); Kerns, 585 F.3d at 192. The court should grant a Rule 12(b)(1) motion based on a factual challenge to subject matter jurisdiction "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)).

         Defendants' other arguments for dismissal are governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure. To defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Legal conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm 'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).

         II. Standing

         Article III of the Constitution limits the judicial power of the federal courts to actual "Cases" or "Controversies." U.S. Const, art. Ill. § 2, cl. 1. To invoke this power, a litigant must have standing. Hollingsworth v. Perry, 133 S.Ct. 2652, 2661 (2013). A plaintiff establishes standing by demonstrating (1) a "concrete and particularized" injury that is "actual or imminent"; (2) "fairly traceable to the challenged conduct"; and (3) "likely to be redressed by a favorable judicial decision." Id.; Covenant Media of S.C, LLC v. City of N. Charleston, 493 F.3d 421, 428 (4th Cir. 2007). Standing must be established for each claim. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). The presence of one plaintiff with standing renders a claim justiciable. Bostic v. Schaefer, 760 F.3d 352, 370-71 (4th Cir. 2014).

         As a threshold matter, Defendants concede that all of the Individual Plaintiffs have standing to seek the declaratory and injunctive relief requested in the Complaint. However, they argue that the Court should dismiss HNLEA and UBPOA "because they would be entitled to no greater declaratory or injunctive relief than the Individual Plaintiffs." Mot. Dismiss at 12-13, ECF No. 30-1. This argument misinterprets the purpose underlying the constitutional standing requirement: to ensure that at least one party has such a "personal stake in the outcome of the controversy as to . . . justify the exercise of the court's remedial powers on [their] behalf. Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S.Ct. 1645, 1650 (2017) (alteration in original). Accordingly, a finding that one party has standing to assert a claim allows the court to forgo further inquiry into the standing of the other plaintiffs that assert the same claim, but it does not mandate dismissal of those other plaintiffs from the case. See, e.g., Home v. Flores, 557 U.S. 433, 446-47 (2009) (holding that where the superintendent of a school district had standing to challenge court decisions, there was no need to consider whether legislators also had standing to do so); Bostic, 760 F.3d at 371 (finding that where one couple had standing to challenge a marriage license renewal, the court was not required to determine whether another couple had standing for the same claim).

         In line with this reasoning, Plaintiffs argue that because Defendants concede that the Individual Plaintiffs have standing to pursue all claims asserted in the Complaint, the Court need not reach the question of the standing of FTNLEA and UBPOA. However, the United States Supreme Court has held that "a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought," Town of Chester, 137 S.Ct. at 1650, and Plaintiffs' Prayer for Relief, at least in some respects, appears to seek broader declaratory and injunctive relief on behalf of HNLEA and UBPOA than that available to the Individual Plaintiffs. Indeed, Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss ("Opposition") clarifies this point, acknowledging that because both HNLEA and UBPOA have non-plaintiff members who have experienced adverse actions resulting from PGCPD's custom and policy of discrimination and retaliation, "HNLEA and UBPOA are entitled to broader declaratory and injunctive relief than the Individual Plaintiffs." Opp'n at 14, ECF No. 31. Thus, to the extent that HNLEA and UBPOA seek certain forms of relief distinct from or beyond that requested by the Individual Plaintiffs, their standing must be assessed.

         HNLEA and UBPOA assert organizational standing in their own right and associational on behalf of their members. The Court addresses associational standing first because if HNLEA and UBPOA can establish associational standing, the Court need not address whether they also have standing to sue for injuries inflicted directly to their organizational interests. See Md. Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1250 (4th Cir. 1991) (holding that, as a constitutional matter, there are two distinct theories by which an association can allege standing: "in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy" or "as the representative of its members who have been harmed"); cf. Spann v. Colonial Vill, Inc., 899 F.2d 24, 29 n.2 (D.C. Cir. 1990) ("Because we conclude that the organizations have standing on their own behalf, we do not need to decide whether individual plaintiff Spann or organizations as representatives of their members possess standing."). Moreover, if HNLEA and UBPOA can assert standing on behalf of their members, they do not need satisfy the third-party standing exception to the prudential rule against asserting the rights of others, which Defendants argue they cannot meet. See A Helping Hand v. Baltimore Cty., 515 F.3d 356, 363 n.3 (4th Cir. 2008) (distinguishing between the third-party standing doctrine and the associational standing doctrine and noting that both allow a plaintiff to "bring suit based not on injury to itself but on injury to another"); La Union del Pueblo Entero v. Ross, 353 F.Supp.3d 381, 392 (D. Md. 2018) (holding that the third-party standing inquiry was not required where the plaintiff had established standing to sue on behalf of its members); cf. Kowalski v. Tesmer, 543 U.S. 125, 129-30 (2004) (in the absence of associational standing, requiring plaintiffs to demonstrate both a close relationship with the parties whose rights they sought to assert and the inability of those individuals to protect their own interests).

         To establish associational standing, an organization must demonstrate that (1) its members would have standing to sue in their own right; (2) "the interests it seeks to protect are germane to the organization's purpose"; and (3) "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992) (stating that a single member with standing in his or her own right is sufficient to establish that an organization has standing). The first two requirements are mandated by Article III, while the third is prudential in nature and serves to promote "administrative convenience and efficiency," such as by "guard[ing] against the hazard of litigating a case to the damages stage only to find the plaintiff lacking detailed records or the evidence necessary to show the harm with sufficient specificity." United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 556-57 (1996).

         Here, Defendants concede that HNLEA and UBPOA have alleged sufficient facts to meet the first two associational standing requirements mandated by Article III, but they argue that the participation of individual members of both organizations is required for certain forms of individualized relief requested in the Complaint, specifically damages, reinstatement, and expungement of disciplinary records for HNLEA and UBPOA members who are not parties to the lawsuit. Although "a suit for money damages . . . would require examination of each member's unique injury," Retail Indus. Leaders Ass'n v. Fielder, 475 F.3d 180, 187 (4th Cir. 2007), Plaintiffs have clarified both in their Opposition and at the hearing that HNLEA and UBPOA are not seeking damages in their own right or on behalf of their members who are not parties to the case. For this reason, Defendants' reliance on Equal Rights Center v. Abercrombie & Fitch Co., 767 F.Supp.2d 510 (D. Md. 2010), for the principle that HNLEA and UBPOA lack standing to seek certain forms of injunctive relief is misplaced, as there the court distinguished between associational standing to assert a claim for damages, which it did not find, and associational standing to seek injunctive relief, which it did find as to claims of disability discrimination by stores that were visited but could not be properly accessed by one or more members of the association. See Id. at 525, 527-529. Thus, the question before the Court is whether HNLEA and UBPOA have standing to seek specific forms of injunctive relief, not whether they have standing to seek damages. See Town of Chester, 137 S.Ct. at 1650.

         In the context of suits seeking injunctive relief, courts have employed a flexible approach to the third Hunt element, finding associational standing when the organization can satisfy the functional concerns that might point to a need for individual participation. See 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3531.9.5 (3d ed. 1998). The United States Courts of Appeals for the Third, Fifth, and Seventh Circuits have interpreted Hunt's third prong as precluding associational standing only when the participation of every member of the organization is necessary to the proper resolution of the case, noting that the participation of some members of the organization is permissible and almost always necessary. See Ass'n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 552-53 (5th Cir. 2010) (holding that where proof of "misdeeds could establish a pattern" with "evidence from a small but significant sample of [association members]," a constitutional violation could be established and equitable relief granted); Retired Chi. Police Ass'n v. City of Chicago, 7 F.3d 584, 601-02 (7th Cir. 1993) (finding "no indication" from any of the Supreme Court cases to address associational standing that the Court "intended to limit representational standing to cases in which it would not be necessary to take any evidence from individual members of an association"); Hosp. Council of W. Pa. v. City of Pittsburgh, 949 F.2d 83, 89-90 (3d Cir. 1991) (holding that "an association may assert a claim that requires participation by some members"); see also Warth v. Seldin, 422 U.S. 490, 511 (1975) (holding that "so long as the nature of the claim and relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction") (emphasis added). Here, based on the pleadings, it appears that Plaintiffs' claims, including that there is a custom and policy of discrimination and retaliation at PGCPD, and their requested declaratory and injunctive relief, can be established without evidence from all members of the Plaintiff associations with valid claims.

         Moreover, courts have also determined that when there is no immediately apparent need to have individual members participate in the lawsuit at the pleading stage, an associational plaintiff can remain in the case unless and until, at a later stage, individualized participation reveals itself to be necessary. See, e.g., Va. Hosp. Ass'n v. Battles, 868 F.2d 653, 662-63 (4th Cir. 1989), aff'd 496 U.S. 498, 504 n.4 (1990); Perm. Psychiatric Soc. v. Green Spring Health Servs., Inc., 280 F.3d 278, 282-87 (3d Cir. 2002). For instance, in Virginia Hospital Association, the plaintiff Virginia Hospital Association ("VHA") claimed associational standing on behalf of its member hospitals to challenge the Commonwealth of Virginia's procedures for reimbursing hospitals for the cost of treating Medicaid patients. 868 F.2d at 656, 662. Virginia argued that the court would have to examine data and make findings for each VHA member hospital in order to resolve VHA's claims, and if appropriate, grant the requested relief, but VHA claimed to be challenging factors common to all of the hospitals which would be remedied by an amended state Medicaid reimbursement plan. Id. at 663. The United States Court of Appeals for the Fourth Circuit credited VHA's assertion, noted that the pleadings did not establish that an order in favor of VHA would necessarily require findings specific to its individual members, and concluded that any challenge to VHA's associational standing was at best, premature. Id.

         The injunctive relief requested here by HNLEA and UBPOA is analogous to that requested by VHA. Plaintiffs request a permanent injunction ordering Prince George's County to abolish discrimination on the basis of race within and among the PGCPD through the implementation of policy changes and a plan to review allegedly discriminatory terminations and disciplinary proceedings and reinstate wrongfully terminated officers or otherwise remedy those prior acts of discrimination and retaliation. Although if this relief were granted, at some point PGCPD would have to engage in individualized inquiries to determine which officers of color deserve reinstatement or expungement of their disciplinary records, granting the relief itself- that is, a court order that PGCPD must remedy any prior discriminatory termination and disciplinary decisions-can be accomplished upon consideration of evidence from only certain individual members of HNLEA and UBPOA in order to assess whether there is a custom and practice of discrimination and retaliation at PGCPD under Monell, and whether such custom and practice caused the harms cited in the Complaint. See Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir. 1987) (holding that to prove a Monell claim, a plaintiff must "(1) identify[] the specific 'policy' or 'custom'; (2) fairly attribute[e] the policy and fault for its creation to the municipality; and (3) find[] the necessary "affirmative link" between identified policy or custom and specific violation").

         Although Defendants argue that, as a general principle, Monell claims require individualized proof, they have not identified legal authority or a factual basis to support the assertion that every member of HNLEA and UBPOA would have to participate in this lawsuit in order to prove that the disciplinary processes, bureau and division assignments, and promotion decisions of the PGCPD are part of a custom and practice of race discrimination and retaliation that causes officers of color to experience the adverse actions cited in the Complaint. Indeed, the United States Court of Appeals for the Sixth Circuit explicitly rejected this notion in Neighborhood Action Coalition v. City of Canton, 882 F.2d 1012 (6th Cir. 1989), holding that the organizational plaintiff had associational standing for its Monell claim to the extent it sought injunctive relief, because "any injunctive relief granted would inure to the benefit of all members of the association actually injured." Id. at 1016-17. In Neighborhood Action Coalition, as here, the injunctive relief requested was not simply invalidating a law or executive order, but the entry of a court order prohibiting the municipality from providing services in a racially discriminatory manner and requiring the municipality to provide police protection to members of the association living in Canton's northeast region equivalent to the protection it provided to residents of other Canton neighborhoods. Id. at 1014. The court did not find it necessary, in assessing a motion to dismiss, to delve into the minute details of the relief requested and determine exactly what sort of future individualized inquiries might be required to determine the equivalence between police protection provided to certain association members and other residents, after the court ordered such relief. Neighborhood Action Coal, 882 F.2d at 1017.

         Nor is such a nuanced inquiry required here, where sample testimony from members of HNLEA and UBPOA may be sufficient to prove the right of the members of the Organizational Plaintiffs to the relief requested in the Complaint. See Perm. Psychiatric Soc'y, 280 F.3d at 286 (finding that, for purposes of associational standing at the pleading stage, a challenge to "systemic policy violations" could be supported by "sample testimony"). Where, at this stage of the case, the Court concludes that the injunctive relief requested by HNLEA and UBPOA does not necessarily require the participation of all their respective members who are not parties to the case, the Court finds that all three prongs of the Hunt test for associational standing have been satisfied and that HNLEA and UBPOA may assert the constitutional rights of their members. Accordingly, the Court need not assess HNLEA and UBPOA's organizational standing to seek relief in their own right. See Md. Highways, 933 F.2d at 1250; Spann, 899 F.2d at 29 n.2.

         III. Supervisor Liability

         Defendants next argue that all claims against Defendant Murtha must be dismissed because Plaintiffs have failed to allege that Murtha acted personally in the deprivation of Plaintiffs' rights. A state official may not be held liable under 42 U.S.C. § 1983 unless it is "affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs rights." Vinnedge v. Gibbs,550 F.2d 926, 928 (4th. Cir. 1977); see also Monell, 436 U.S. at 690-92. There is no vicarious liability pursuant to the doctrine of respondent superior in § 1983 cases against government officials for the acts of their subordinates. Wright v. Collins,766 F.2d 841, 850 (4th Cir. 1985); Vinnedge, 550 F.2d at 928. In order for a supervising official to be held liable under § 1983, a plaintiff must establish that: (1) the supervisor knew that the subordinate "was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury"; (2) the supervisor's "response showed deliberate indifference to or tacit authorization of the alleged offensive practices"; and (3) there was "an affirmative causal link" between the supervisor's "inaction and the constitutional injury." King v. Rubenstein,825 F.3d 206, 224 (4th Cir. 2016) (quoting Shaw v. Stroud,13 F.3d 791, 799 (4th Cir. 1994)). "Establishing a 'pervasive' and 'unreasonable' risk of harm requires evidence that ...

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