United States District Court, D. Maryland
DAVID COPPERTHITE UNITED STATES MAGISTRATE JUDGE.
Baltimore City Community College ("B.C.C.C") and
Darryl C. Moore, Freddie McGraffinried, Stuart Park, James
Wright, Michael Stephens, and Debra L. McCurdy (collectively
"individual Defendants"), move this Court to
dismiss the Complaint of pro se Plaintiff, Benjamin
Davis, III, for violations of due process, equal protection,
excessive force pursuant to 42 U.S.C. § 1983, and
retaliation (the "Motion to Dismiss") (ECF No. 16).
After considering the Motion to Dismiss and the responses
thereto (ECF Nos. 19, 20), the Court finds that no hearing is
necessary. See Loc.R. 105.6 (D.Md. 2018). For the
reasons stated herein, the Court GRANTS Defendant's
Motion to Dismiss. The Court also GRANTS Plaintiff leave to
amend the Complaint.
reviewing a motion to dismiss, this Court accepts as true the
facts alleged in the challenged complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011).
Plaintiffs Complaint is brief and contains few specific
factual allegations. On May 14, 2019, Plaintiff was on
B.C.C.C.'s campus to register for classes. ECF No. 1 at
2. While on campus, Plaintiff was assaulted by a campus
security officer. Id. At some point during the
incident, Plaintiff kicked Defendant DeGraffinried.
Id. at 3. Defendants called the Baltimore City
Police Department and "by use of excessive force
illegally arrested" Plaintiff. Id. Plaintiff
was then placed in involuntary psychiatric hold, where he
received a "clean evaluation and was released
expeditiously." Id. at 2.
following day, Plaintiff received a letter from
B.C.C.C.'s Vice President for Student Affairs informing
him that he was scheduled for a hearing in front of the
Incident Management Advisory Committee regarding the May 14
incident. ECF No. 16-3 at 2. The hearing was scheduled for May
28, 2019. Id. At the hearing, Plaintiff was
confronted with allegations he assaulted Defendant Freddie
DeGaffmried, an officer who responded to the May 14 incident.
ECF No. 1 at 3. Defendant DeGaffinried was the only Defendant
present at the hearing, and he was the only person who filed
an administrative complaint against Plaintiff. Id.
29, 2019, Plaintiff received notice that the Advisory
Committee recommended he be expelled from B.C.C.C, and the
Vice President of Student Affairs was adopting this
recommendation. ECF No. 16-4 at 2. Plaintiff appealed this
decision to B.C.C.C. President Defendant Debra L. McCurdy,
who upheld the decision to expel Plaintiff in a letter on
August 8, 2019. ECF No. 16-5 at 2.
26, 2019, Plaintiff filed suit in this Court against
Defendants, alleging constitutional violations of due process
and equal protection, excessive force under 42 U.S.C. §
1983, and retaliation, seeking $10, 000, 000 in
"punitive, monetary, and nominal damages" as well
as a change to the B.C.C.C. administrative hearing procedure.
ECF No. 1 at 2-AOn October 1, 2019, Defendant filed the
Motion to Dismiss. ECF No. 16. Plaintiff filed an opposition
on October 2, 2019, ECF No. 19, to which Defendant replied on
October 9, 2019, ECF No. 20.
matter is now fully briefed, and the Court has reviewed
Defendant's Motion to Dismiss, as well as the responses
thereto. For the following reasons, Defendant's Motion to
Dismiss (ECF No. 16) will be GRANTED. Additionally, Plaintiff
will be GRANTED leave to amend the Complaint.
Standard of Review
move to dismiss Plaintiffs claims of violation of due
process, violation of equal protection, § 1983 excessive
force, and retaliation pursuant to Federal Rules of Civil
Procedure 12(b)(5) and 12(b)(6). ECF No. 16-1 at 1.
Motion to Dismiss for Insufficient Service of Process
Rule of Civil Procedure 4(c) governs the proper procedure for
serving a summons and complaint; the purpose of a Rule
12(b)(5) motion is to challenge a Plaintiffs failure to
comply with Rule 4. When a defendant files a Rule 12(b)(5)
motion to dismiss, "the plaintiff bears the burden of
establishing the validity of service pursuant to Rule
4." O'Meara v. Waters, 464 F.Supp.2d 474,
476 (D.Md. 2006). "Generally, when service of process
gives the defendant actual notice of the pending action, the
courts may construe Rule 4 liberally to effectuate service
and uphold the jurisdiction of the court." Id.
(first citing Karisson v. Rabinowitz, 318 F.2d 666,
668 (4th Cir. 1963), then citing Armco, Inc. v.
Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089
(4th Cir. 1984)). Although courts may give Rule 4 liberal
construction, the "plain requirements for the means of
effecting service of process may not be ignored."
Armco, 733 F.2d at 1089. While pro se
litigants are typically afforded greater leniency than
represented litigants, "[p]ro se status ... is
insufficient to establish good cause" for failure to
comply with Rule 4, "even where the pro se
plaintiff mistakenly believes that service was made
properly." Team v. Fisher, 276 F.R.D. 190, 193
(D.Md. 2011) (quoting Hanson v. Fairfax Cnty. Sch.
Bd, 405 Fed.Appx. 793, 794 (4th Cir. 2010)).
Motion to Dismiss for ...