Lucero v. Early

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge

         THIS MATTER is before the Court on Defendant Mayor & City Council's ("Baltimore City" or the "City") Motion to Dismiss Count Two of the Second Amended Complaint (ECF No. 79) and Defendant Baltimore Police Department's ("BPD") Motion to Dismiss Plaintiffs Second Amended Complaint (ECF No. 80). In this 42 U.S.C. § 1983 (2018) action, Lucero challenges the City's and BPD's restrictions on leafletting near the First Mariner Arena (the "Arena") in Baltimore, Maryland, and his arrest for violating those restrictions. The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will deny the Motions.

         I. BACKGROUND^[1]

         A. Factual Background

         Baltimore City owns the First Mariner Arena (the "Arena"), located at 201 West Baltimore Street in Baltimore, Maryland. (2d Am. Compl. ¶ 10, ECF No. II).^[2] Every year, the City leases the Arena to the owners of Ringling Brothers Circus ("Ringling" or the "Circus") for almost two weeks, during which time Ringling holds daily performances. (Id. ¶ 12).

         In 2004, apparently prompted by a 2003 incident in which a media van impeded the flow of traffic, the City and BPD "jointly formulated" a policy (the "Policy")^[3] that restricted protestors', including leaflerters', use of the sidewalk and plaza area surrounding the Arena during the Circus. (Id ¶¶ 14-15). In effect, the Policy imposed a "buffer zone" around "all public entrances to the Arena" and "areas where Circus attendees are likely to walk." (Id ¶ 44). These restrictions prevent leaflerters from being at a "conversational distance" from Circus patrons. (Id.). They are in place only when the Circus is at the Arena, (Id. ¶¶ 38-40). In addition, Defendant BPD officer Wayne A. Early ("Officer Early") and other BPD officers "in a widespread custom" enforce the Policy "only against those who oppose the Circus." (Id. ¶¶ 51, 80).

         In April 2010, Ringling was in Baltimore for its annual daily performances. (See id ¶¶ 55-56). On April 8, 9, and 10, 2010, Lucero "wanted to leaflet in restricted areas" but did not because Officer Early and other BPD officers threatened him with arrest based on the Policy. (Id. ¶ 55). On April 17, 2010, Lucero leafletted in a restricted area, and Officer Early arrested him for violating the Policy. (Id ¶ 56). BPD detained Lucero for "several hours" at a booking facility. (Id. ¶ 60). BPD ultimately released Lucero without bringing any criminal charges against him. (Id.).

         B. Relevant Procedural Background

         On April 8, 2013, Lucero sued Officer Early, the City, and BPD. (ECF No. 1). On October 17, 2014, Lucero filed an Amended Complaint. (ECF No. 24). On September 11, 2018, the Court granted the City's Motion to Dismiss Count Two of the Amended Complaint and BPD's Motion to Dismiss the Amended Complaint, dismissed Counts 2 and 3 without prejudice, and granted Lucero leave to file a second amended complaint. (Sept. 11, 2018 Mem. Op. at 22, ECF No. 68). Specifically, the Court concluded that Lucero failed to sufficiently allege that a final decisionmaker had implemented or approved the Policy. (Id. at 16-17).

         Lucero filed a Second Amended Complaint on October 11, 2018. (ECF No. 77).^[4] In his five-count Second Amended Complaint, Lucero alleges: direct liability for violations of his constitutional rights under § 1983 against Officer Early (Count 1); municipal liability for violations of his constitutional rights under § 1983 against the City and BPD, challenging the Policy as applied to the leafletters (Count 2); municipal liability for violations of his constitutional rights under § 1983 against BPD for discriminatory enforcement of the Policy (Count 3); False Arrest against Officer Early (Count 4); and violation of Article 26 of the Maryland Declaration of Rights against Officer Early (Count 5). (Id. ¶¶ 66-92). Lucero seeks damages, attorney's fees, and costs. (Id at 24).

         On November 13, 2018, the City filed its Motion to Dismiss Count Two of the Second Amended Complaint. (ECF No. 79). Lucero filed his Opposition on November 27, 2018. (ECF No. 81). On December 10, 2018, the City filed a Reply. (ECF No. 83).

         Also on November 13, 2018, BPD filed its Motion to Dismiss Plaintiff's Second Amended Complaint. (ECF No. 80). Lucero filed his Opposition on November 27, 2018. (ECF No. 82). On December 11, 2018, BPD filed a Reply. (ECF No. 84).

         C. Ross v. Early Litigation

         In a related case, Aaron Ross v. Wayne A. Early, No. JFM-9-3255 (D.Md. closed Nov. 30, 2012), Aaron Ross sued BPD, the City, then-Commissioner Frederick H. Bealefeld, III, and three solicitors for the Baltimore City Law Department, alleging that the Policy at issue in this case violated the First Amendment to the United States Constitution, both facially and as applied. Ross v. Early (Ross III), 899 F.Supp.2d 415, 418 (D.Md. 2012), affd, 746 F.3d 546 (4th Cir. 2014).^[5] The Ross III Court denied BPD's and the City's motions for summary judgment regarding the constitutionality of the Policy. Id. at 425. In an earlier opinion, the Court concluded that the Policy was content-neutral, served a significant government interest, and provided sufficient alternative avenues for communication. Id. at 421 (citing Ross v. Early (Ross II), 758 F.Supp.2d 313, 320 (D.Md. 2010)). The Court further concluded that there was a genuine dispute of material fact regarding whether the Policy was narrowly tailored, which depended on the Policy's scope and the corresponding level of scrutiny. Id. at 425. As a result, the parties entered into a stipulation for the purposes of appealing the Court's ruling. Ross, 746 F.3d at 551. The Ross parties stipulated that the Policy applied generally to "all expressive activity" and not to "the activities of circus and animal welfare street protesters specifically." Id. at 551-52. Consequently, the United States Court of Appeals for the Fourth Circuit reviewed the Policy under intermediate scrutiny and ultimately held that it did not violate the First Amendment. Id. at 555.

         II. DISCUSSION

         A. Standard of Review

         The purpose of a motion under Federal Rule of Civil Procedure 12(b)(6) "is to test the sufficiency of a complaint, " not to "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). A complaint fails to state a claim if it does not contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), or does not "state a claim to relief that is plausible on its face, " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly. 550 U.S. 544, 570 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is not required to forecast evidence to prove the elements of the claim, the complaint must allege sufficient facts to establish each element. Goss v. Bank of America, N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)), aff d sub nom. Goss v. Bank of America, NA, 546 Fed.Appx. 165 (4th Cir. 2013).

         In considering a Rule 12(b)(6) motion, a 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 Cry., 407 F.3d 266, 268 (4th Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But the court need not accept unsupported or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions couched as factual allegations, Iqbal, 556 U.S. at 678.

         B. Analysis

         The City and BPD advance several arguments for dismissing the Second Amended Complaint. First, BPD contends that it is not a "person" under § 1983 and that it is entitled to Eleventh Amendment immunity. Second, the City maintains that it cannot be held liable for BPD's or BPD officers' conduct. Third, they assert that Lucero either fails to state a claim or fails to sufficiently allege Monell claims under § 1983.

         1. BPD's Liability under § 1983

          BPD asserts that it cannot be held liable under § 1983 for two reasons: (1) it is not a "person" for the purposes of § 1983; and (2) it is entitled to Eleventh Amendment immunity. ...