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Burrus v. Baltimore City Police Department

United States District Court, D. Maryland

September 26, 2019




         Plaintiff Kimberly Burrus (“Burrus” or “Plaintiff”) brought this action in the Circuit Court for Baltimore City, Maryland against the Baltimore City Police Department (“BPD” or “Defendant”) seeking to enforce procedural due process rights that she alleges were not afforded to her as part of a disciplinary personnel action in October and November 2018. (Compl., ECF No. 1-3.) The case was removed to this Court on January 15, 2019. (See ECF No. 1.)[1] Burrus alleges that the Defendant violated the Fourteenth Amendment to the Constitution of the United States, Article 24 of the Maryland Declaration of Rights, and violations of the Law Enforcement Officers’ Bill of Rights (“LEOBR”), Md. Public Safety Code Ann. § 3-101 et seq. (Compl., ECF No. 1-3.)

         Currently pending before this Court is Defendant’s Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 9). The parties’ submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, Defendants’ Motion, construed as a Motion to Dismiss, shall be GRANTED, and Plaintiff’s Complaint (ECF No. 1-3) shall be DISMISSED WITH PREJUDICE.


         In ruling on a motion to dismiss, this Court “accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff.” Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). The Court may consider only such sources outside the complaint that are, in effect, deemed to be part of the complaint, for example, documents incorporated into the complaint by reference and matters of which a court may take judicial notice. Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).

         Burrus is a police officer, having served with the BPD as a Major for about 6 years and as a Lieutenant for about two years. (Compl. ¶¶ 1, 2, pp. 8-9, ECF No. 1-3.) At some point prior to 2015, Burrus established a 501(c)(3) non-profit organization, Blue Love Across America (Id. at ¶ 3; Burrus Decl. ¶¶ 7, ECF No. 18-2.) Burrus was accused of misappropriating money from the non-profit between June 2015 and September 2017-specifically she was accused of directing the use of non-profit funds for personal expenditures. (Compl. ¶ 3, p. 10, ECF No. 1-3.) On July 11, 2018, the Baltimore State’s Attorney’s Office, having reviewed evidence of the allegations, announced that they were not filing charges against her. (Id. at ¶ 4.) However, on October 17, 2018, Burrus was served with documents alleging violations of the rules and regulations governing the BPD. (Id. at ¶ 3, pp. 10-17.)[2] The charges included details of personal purchases she made with non-profit funds and included a recommended punishment of a 60-day suspension, a severe letter, an involuntary transfer to the BPD Patrol division, and a demotion to Lieutenant from Major. (Id.) Burrus was not interviewed prior to the charges issued on October 17, 2018. (Id. at ¶ 7.) Burrus refused to sign the acknowledgment or response. (Id. at pp. 16-17.)

         Burrus, with her attorney, met with Gary Tuggle (“Tuggle”), Interim Police Commissioner, on November 2, 2018. (Id. at ¶ 6, p. 18.) After Burrus expressed her concerns about not having been interviewed, Tuggle arranged for her to meet with the case investigator on November 6, 2018. (Id. at ¶ 16, p. 18.) However, she declined to attend the meeting alleging that she would not be allowed the assistance of her attorney and would be “Mirandized”[3] during the interrogation. (Id.) Tuggle undertook an independent review of the investigation, reviewing Burrus’ explanation and documentation that she provided during the November 2, 2018 meeting regarding two expenditures. (Id. at p. 16.) Tuggle provided a letter to Burrus on November 14, 2018, [4] modifying the punishment, and stating: “Regardless of whether you initially funded the charity or intended to reimburse [the non-profit] for the purchase, the use of [non-profit] funds to finance personal expenditures is completely inappropriate and conduct unbecoming of a Major of this Department.” (Id.) Tuggle modified the recommended discipline in two respects: (1) her transfer was to an alternate assignment rather than to patrol; and (2) her 60-day suspension without pay could be served non-consecutively so that she could maintain benefits. (Id.) The personnel action, under which she was demoted to Lieutenant and transferred, was effective November 25, 2018. (Id. at ¶ 9, p. 19.)

         The charges against her were disclosed to the public by her husband, a fellow officer, during their divorce proceeding on December 1, 2017. (Id. at ¶ 20; see also Tr., Mot. Ex. A, ECF No. 9-2.) The Baltimore Sun asked the BPD for comment, “and the department said that they were ‘looking into this matter internally.’” (Id.) She alleges that as a result of these “false” charges now being part of the public sphere, her reputation has been damaged, and her future employment prospects will be affected. (Id. at ¶¶ 21-22.)

         Burrus filed suit in the Circuit Court for Baltimore City, Maryland on December 14, 2018, alleging that the BPD’s actions were taken without the process that she was due as a Lieutenant under the Law Enforcement Officers’ Bill of Rights (“LEOBR”). (Compl., ECF No. 1-3.) Burrus seeks a “name-clearing hearing, ” and her prayer for relief includes: (1) BPD be required to show cause why she should not be afforded her rights under the Fourteenth Amendment to the United States Constitution, Article 24 of the Maryland Declaration of Rights and the LEOBR; (2) all currently imposed sanctions, other than loss in rank from Major to Lieutenant, be stayed pending resolution of this case; and (3) a preliminary injunction to enjoin BPD from all punishment without due process under LEOBR. (Id.) This case was removed to this Court on January 15, 2019. (ECF No. 1.) BPD filed the pending dismissal motion on February 22, 2019, and it is now ripe for decision. For the reasons that follow, this Court concludes that Burrus is not entitled to the procedural protections provided by LEOBR, she has no property interest protectible by the Due Process Clause, and she was afforded a fair opportunity to be heard regarding any liberty interest that she alleges. Further, any attempt at amendment would be futile. Therefore, this Court shall GRANT Defendant’s Motion to Dismiss (ECF No. 9), and Plaintiff’s Complaint shall be DISMISSED WITH PREJUDICE.


         Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The United States Supreme Court’s opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). In Twombly, the Supreme Court articulated “[t]wo working principles” that courts must employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all factual allegations contained in the complaint, legal conclusions drawn from those facts are not afforded such deference. Id. (stating that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); see also Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (“Although we are constrained to take the facts in the light most favorable to the plaintiff, we need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments.” (internal quotation marks omitted)). Second, a complaint must be dismissed if it does not allege “a plausible claim for relief.” Iqbal, 556 U.S. at 679.


         I. Due Process Right to be Heard

          Burrus claims that because the charges against her were made public, she has a due process right to have a name-clearing hearing. (Compl. ¶ 20, ECF No. 1-3 (citing Sciolino v. City of Newport News, 480 F.3d 642 (4th Cir. 2007).) As noted in Sciolino, a claim under 42 U.S.C. § 1983 involves a combination of two constitutional rights: “(1) the liberty to engage in any of the common occupations of life; and (2) the right to due process where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.” 480 F.3d at 646 (citations and alterations omitted). Burrus contends that the charges of theft will remain in her personnel jacket for the rest of her career, and her demotion under the circumstances was without appropriate opportunity to be heard. (Pl.’s Resp. 9, ECF No. 18.) She ...

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