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Grim v. Baltimore Police Department

United States District Court, D. Maryland

November 8, 2019

TARA GRIM Plaintiff,
v.
BALTIMORE POLICE DEPARTMENT et al., Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander, United States District Judge.

         This civil rights action arises from a traffic stop that occurred in the early evening of January 1, 2016. Plaintiff Tara Grim has sued the Baltimore City Police Department (“BPD”); BPD Officer Marcos Paul, who conducted the traffic stop; former BPD Commissioner Kevin Davis; “Unknown Supervisors” of the BPD; the Mayor and City Council of Baltimore (the “City”); and the State of Maryland (the “State”), alleging that, during the traffic stop, Officer Paul groped her breasts and exposed her vagina and buttocks, under the guise of a search. ECF 13 (the “Amended Complaint”).[1] According to plaintiff, defendants violated the Fourth and Fourteenth Amendments to the Constitution as well as the Maryland Declaration of Rights and common law. The individual defendants have been sued in their personal and official capacities. Id. ¶¶ 9, 10, 11.

         The Amended Complaint contains seven counts. Count I lodges a “Monell” claim against the BPD and Davis, pursuant to 42 U.S.C. § 1983. Id. ¶¶ 49-55; see Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978). In particular, Grim asserts two theories of liability. First, she contends that the BPD and Davis had “a policy, practice or custom of condoning unlawful strip searches.” ECF 13, ¶ 50. Second, she maintains that the BPD and Davis “failed to adequately supervise, train, or discipline their employees, ” regarding unconstitutional strip searches. Id. ¶ 54. Count II sets forth a “Supervisory Liability” claim under § 1983 against Davis and the Unknown Supervisors. Id. ¶¶ 56-62. In Count III, plaintiff asserts a § 1983 claim against Officer Paul, alleging an unlawful search and seizure, in violation of the Fourth Amendment. Id. ¶¶ 63-71. Count IV, lodged against the BPD and Davis, is styled as a “Pattern and Practice” claim under Maryland law. Id. ¶¶ 72-77. Count V asserts that Officer Paul violated unspecified provisions of the Maryland Declaration of Rights. Id. ¶¶ 78-87. Count VI contains a claim against Officer Paul under Maryland law for intentional infliction of emotional distress. Id. ¶¶ 88-91. And, in Count VII, plaintiff seeks “Indemnification” from the BPD and the City. Id. ¶¶ 92-95.

         Five motions are now pending. The City has moved to dismiss the Amended Complaint under Fed.R.Civ.P. 12(b)(6) (ECF 19), supported by a memorandum of law. ECF 19-1 (collectively, the “City Motion”). The BPD and Davis have also moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6) (ECF 20), supported by a memorandum of law. ECF 20-1 (collectively, the “BPD Motion”). In a consolidated submission, plaintiff opposes the City Motion and the BPD Motion. ECF 25 (“Opposition”). The City and the BPD have replied. ECF 28; ECF 29.

         In addition, plaintiff has filed three motions against Officer Paul. She has filed a motion for default judgment as to Officer Paul (ECF 31), and another titled “Motion to Treat as Conceded Plaintiff's Motion For Default Judgment Against Defendant Paul Marcos.” ECF 34 (collectively, the “Motion for Default Judgment”). Plaintiff has also filed a motion for attorney's fees and costs in regard to service of the suit on Officer Paul. ECF 32 (the “Motion for Fees”).

         No hearing is necessary to resolve the motions. See Local Rule 105(6). For the reasons that follow, I shall grant the City Motion (ECF 19); grant in part and deny in part the BPD Motion (ECF 20); deny the Motion for Default Judgment (ECF 31; ECF 34); and deny the Motion for Fees (ECF 32).

         I. Factual and Procedural Background[2]

         A. The Incident

         On January 1, 2016, at approximately 7:00 P.M, BPD Officer Marcos Paul effectuated a traffic stop of Grim while she was driving on Greenspring Avenue in Baltimore, Maryland. ECF 13, ¶ 15. After Officer Paul checked Grim's license and registration, he asked Grim questions unrelated to the stop, including why she had a child's car seat in her backseat and where she worked. Id. ¶¶ 16, 17. Officer Paul told Grim that she needed to follow his patrol car to a separate location, so that he could conduct a search of her vehicle. Id. ¶ 18. When Grim questioned this procedure, Officer Paul responded that she could either obey his command or be arrested. Id.

         “[T]errified, ” Grim followed Officer Paul's patrol car. Id. ¶ 19. While driving, she tried to call a friend on her cell phone. Id. However, Officer Paul stopped abruptly and screamed out of his window that Grim “better not be on [her] fucking phone.” Id. ¶ 20. Grim was unable to reach her friend. Id. ¶ 19.

         Grim followed Officer Paul to a “secluded area.” Id. ¶ 21. There, Officer Paul searched Grim's vehicle. Id. Next, he searched Grim's person. According to plaintiff, Officer Paul “unzipped her jacket and groped her breasts.” Id. ¶ 22. Officer Paul then “pulled the front area of Ms. Grim's leggings, exposing her genitalia, ” and “shined a flashlight down Ms. Grim's leggings and viewed her genitalia in the guise of a ‘search.'” Id. ¶ 23. Similarly, Officer Paul proceeded to “pull[] the rear area of Ms. Grim's leggings, ” exposing her buttocks. Id. ¶ 24. Again, he shined the flashlight down her leggings. Id.

         Plaintiff, who was pregnant at the time, was “convinced that the officer was going to rape her.” Id. She was both “frightened and humiliated.” Id.

         When another vehicle approached, Officer Paul ceased his action. Id. ¶ 25. Although Officer Paul told Grim that she could leave, he also said he would follow her home. Id. Officer Paul did not issue a citation or a ticket to Grim. Id. ¶ 26. Plaintiff drove to her residence on Greenspring Avenue, where she was living with her uncle. Id. ¶ 26. Officer Paul followed Grim, and said “words to the effect of, ‘so this is where you live'” and “words to the effect of, ‘I'll be contacting you for counseling.'” Id. ¶ 28.

         Grim entered her home and told her sister and uncle what had just happened. Id. ¶ 30. Her sister called 911. Id. ¶ 31. Officer Paul initially responded to the 911 call, but he soon left the scene. Id. ¶ 32. Shortly thereafter, a BPD detective arrived and interviewed Grim about the stop. Id. ¶ 33. Grim provided a recorded statement to the BPD on January 5, 2016. Id. ¶ 34.

         Scared for her safety, Grim changed homes and sold her car. Id. ¶ 35. In addition, plaintiff alleges that she “was unable to perform her day-to-day functions and lost her job.” Id. ¶ 36.

         B. Pattern and Practice Allegations

         Plaintiff alleges that the “unconstitutional strip search was not an isolated event.” Id. ¶ 43. Rather, she alleges that “it was undertaken pursuant to, and caused by, BPD's policy and practice of providing deficient oversight and accountability, failure to train, supervise and discipline its officers, failing to reliably record when officers conduct a frisk, failing to ensure that officers comply with its strip search policy, failing to separately categorize or track complaints alleging unlawful strip searches and internal affairs officials failing to adequately investigate complaints that officers violate its strip search policy.” Id.

         To bolster these allegations, plaintiff quotes various portions of an investigative report issued by the Department of Justice (“DOJ”) on August 10, 2016, regarding BPD policies and procedures (the “DOJ Report”). Id. ¶ 37. According to the Amended Complaint, the DOJ Report contains the following findings:

• “‘BPD stops, searches, and arrests individuals on Baltimore streets without the reasonable suspicion or probable cause required by the Fourth Amendment.'” Id. ¶ 37.
• “[T]he ‘BPD does not reliably record when officers conduct a frisk.'” Id. ¶ 38.
• “Betweeen [sic] 2011 and 2016, the BPD had more than 60 complaints of unlawful strip searches.” Id. ¶ 39.
• “‘[O]fficers in BPD's Eastern District publicly strip-searched a woman following a routine traffic stop for a missing headlight. Officers ordered the woman to exit her vehicle, remove her clothes, and stand on the sidewalk to be searched. The woman asked the male officer in charge, ‘I really gotta take all my clothes off?' The male officer replied ‘yeah' and ordered a female officer to strip search the woman. The female officer then put on purple latex gloves, pulled up the woman's shirt and searched around her bra. Finding no weapons or contraband around the woman's chest, the officer then pulled down the woman's underwear and searched her anal cavity. This search again found no evidence of wrongdoing and the officers released the woman without charges. Indeed, the woman received only a repair order for her headlight. The search occurred in full view of the street, . . . . After the woman filed a complaint, BPD investigators corroborated the woman's story with testimony from several witnesses and by recovering the female officer's latex gloves from the search location. . . . The male officer who ordered the search received only a ‘simple reprimand' and an instruction that he could not serve as an officer in charge until he was ‘properly trained.'” Id.
• “‘[I]n September 2014, a man filed a complaint stating that an officer in the Central District searched him several days in a row, including ‘undoing his pants' and searching his ‘hindquarters' on a public street. When the strip search did not find contraband, the officer told the man to leave the area and warned that the officer would search him again every time he returned. The man then filed a complaint with Internal Affairs and identified the officer who conducted the strip search by name. When Internal Affairs investigators pressed the man to provide a detailed description of the officer, the man recalled that the officer ‘had red patches with sergeant stripes' on his uniform. The investigator recognized this description as patches worn by the officer in charge of a shift and confirmed that the officer named by the man was working as an officer in charge in the Central District on the dates the man alleged he was strip-searched. Internal Affairs nonetheless deemed the complaint ‘not sustained' without further explanation.'” Id. ¶ 40.
• “‘[D]eficient oversight and accountability has helped perpetuate BPD's use of unlawful strip searches. Although the Department's policy limits strip searches to specific, narrow circumstances following an arrest, BPD supervisors have failed to ensure that officers comply with this policy and internal affairs officials have not adequately investigated frequent complaints that officers violate it. BPD does not separately categorize or track complaints alleging unlawful strip searches. But our manual review of BPD's Internal Affairs database revealed more than 60 such complaints in the last six years-only one of which was sustained. In response to dozens of other strip search complaints, IA has deemed them ‘administratively closed,' classified them solely for ‘administrative tracking,' or found them not sustained-after minimal, if any, investigation. For example, in 2015 an African American man filed a complaint that he was strip-searched by an officer whom the BPD eventually fired in 2016 after numerous allegations of misconduct. The man stated that the officer ordered him out of his vehicle during a traffic stop and searched the vehicle without the man's consent. When the stop of the vehicle did not uncover any contraband, the officer pulled down the man's pants and underwear, exposing his genitalia on the side of a public street, and then strip-searched him. The officer seized marijuana and cash during the strip search and allegedly told the man that the officer would return his money and drugs if the man provided information about more serious crimes. The complaint stated that when the man did not provide this information, the officer arrested him and turned over only part of the confiscated money, keeping more than $500. Despite the serious charges in this complaint and the officer's lengthy record of alleged misconduct, IA deemed it ‘administratively closed' without intervening the complaint. This type of inadequate oversight has allowed BPD's unlawful strip search practice to continue.''” Id. ¶ 41.

         C. Procedural History as to Officer Paul

         Plaintiff filed her Complaint on December 14, 2018. ECF 1. Summons were issued on December 17, 2018, and were returned executed as to the BPD, the State, the City, and Davis on February 14, 2019. ECF 6.

         On March 8, 2019, plaintiff filed her Amended Complaint. ECF 14. The same day, plaintiff filed a document titled “Notice Of Lawsuit And Waiver of Summons.” ECF 14 (“Waiver”). Plaintiff addressed the Waiver to Christopher C. Jeffries, an attorney at Kramon & Graham, P.A. Id. at 1. Grim stated that, based on “correspondence with counsel for the Baltimore Police Department, ” she understood Jeffries to be representing Officer Paul. Id. The Waiver cautioned that if Officer Paul did not consent to waive service, plaintiff would “ask the Court to require Mr. Paul to pay the expense of making service.” Id. at 2.

         The Court received a letter from Officer Paul On March 22, 2019. ECF 16.[3] He acknowledged having been apprised of plaintiff's lawsuit. Id. But, he stated: “I have not received any letter and/or information to this case. I have not received any summons nor have I been served.” Id. In his letter, Officer Paul provided the Court with his current address. Id. By Order of April 1, 2019, I directed plaintiff to serve Officer Paul by April 23, 2019, or show cause as to why the claims against him should not be dismissed under Fed.R.Civ.P. 4(m) and Local Rule 103.8. ECF 17.

         The State moved to dismiss on April 3, 2019. ECF 18. Shortly thereafter, on April 8, 2019, the BPD and the City each filed a motion to dismiss. ECF 19; ECF 20.

         On April 17, 2019, plaintiff filed a Motion to Reissue Summons and Extend Time for Service of Process. ECF 21. Plaintiff represented that “[o]n March 8, 2019, Plaintiff emailed and mailed via certified mail the Notice of Lawsuit and Request to Waive Service of Process to counsel for Defendant Paul.” Id. ¶ 12. According to plaintiff, Jeffries acknowledged receipt of the Waiver on March 18, 2019, id. ¶ 13, but informed her on April 4, 2019, that Officer Paul “has not agreed to waive formal service.” Id. ¶ 14. I granted the motion, extending the service deadline to June 17, 2019. ECF 22.

         Plaintiff filed the Opposition on April 22, 2019. ECF 25. The same day, she also filed a Notice of Voluntary Dismissal as to the State (ECF 26), which I promptly approved. ECF 27. And, I denied ECF 18 as moot. Id. The BPD and City each filed a reply on May 6, 2019. ECF 28; ECF 29.

         Summons were returned executed as to Officer Paul on May 22, 2019. ECF 30. According to the summons, Officer Paul was personally served at his residence in York, Pennsylvania on May 16, 2019. Id. Plaintiff filed the Motion for Default Judgment on June 10, 2019. ECF 31. The next day, she filed the Motion for Fees, pursuant to Fed.R.Civ.P. 4(d)(2). ECF 32.

         On June 12, 2019, the Court received a letter from Jeffries. ECF 33. It stated: “On February 14, 2019, I received a letter from the City of Baltimore's Department of Law assigning my firm to represent Mr. Paul. On that date, I also received a copy of a letter directed to Mr. Paul at a Maryland address indicating that Mr. Paul may elect to have his assigned counsel represent him, or select counsel of his choosing.” Id. at 1. However, despite “hav[ing] tried on multiple occasions-via phone, letter, and text message-to contact Mr. Paul, ” he “has never responded to these communications.” Id. Further, Jeffries stated that he informed plaintiff that because he did not represent Officer Paul, he could not waive service of process on his behalf. Id. at 2.

         On July 1, 2019, plaintiff moved the Court “to treat as conceded” the Motion for Default Judgment against Officer Paul. ECF 34.

         II. Motions to Dismiss[4]

         A. Standard of Review: Rule 12(b)(6).

         A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). 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.”

         Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 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.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. 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; 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 Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 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. 10, 10 (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 of 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. MTA, 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 Soc'y Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

         Courts ordinarily 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).

         “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). Ordinarily, the 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 (4th Cir. 2007). No. exhibits were attached to the Amended Complaint or to the motions to dismiss.

         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 BPD Motion and the City Motion, I have taken judicial notice of the fact that Kevin Davis served as BPD Commissioner between July 8, 2015, and January 19, 2018. See Kevin Rector, Baltimore Police Commissioner Kevin Davis Fired by Mayor Pugh, Citing Rising Crime, The Baltimore Sun (Jan. 19, 2018 1:35 P.M.), https://bit.ly/2VKPDCF; Who Is Baltimore's Interim Commissioner Kevin Davis?, CBS Baltimore (July 9, 2015 10:50 A.M.), https://cbsloc.al/2MGlLDo.

         B. Section 1983

         Plaintiff lodges multiple claims against the BPD and Davis under 42 U.S.C. § 1983. Specifically, Count I asserts a Monell claim against the BPD and Davis for condoning a custom or policy of unlawful strip searches and for failing to supervise, train, or discipline employees with respect to conducting such searches. ECF 13 at 10-11. And, in Count II, plaintiff asserts supervisory liability, alleging that Davis and the Unknown Supervisors failed “to take necessary remedial and preventive actions and measures to protect against such constitutional violations, resulting in the injuries suffered by Ms. Grim.” Id. at 12. The BPD and Davis have moved to dismiss both counts.

         1. Section 1983 generally

         Pursuant to 42 U.S.C. § 1983, 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. See, e.g., Filarsky v. Delia, 566 U.S. 377 (2012); see also 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, 135 S.Ct. 1893 (2015). However, § 1983 “‘is not itself a source of substantive rights,' but 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).

         In other words, § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). “The 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 allege (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a “person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); see Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019); Crosby v. City of Gastonia, 635 F.3d 634, 639 (4th Cir. 2011), cert. denied, 565 U.S. 823 (2011); Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009); 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' for Fourteenth Amendment claims, ‘and the analysis for each is identical.'” Davison, 912 F.3d at 679 (quoting Philips, 572 F.3d at 180); see also 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 Cty. v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see also Philips, 572 F.3d at 181 (“[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.”) (citations and internal quotation marks omitted).

         2. Monell generally

         A municipality is subject to suit under § 1983. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). The Supreme Court determined in Monell that local governmental bodies may be liable under § 1983 based on the unconstitutional actions of individual defendants, but only where those defendants were executing an official policy or custom of the local government resulting in a violation of the plaintiff's rights. Id. at 690-91. The Monell Court explained 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 the government as an entity is responsible under § 1983.” Id. at 694; see Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004). 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); accord Holloman v. Markowski, 661 Fed. App'x 797, 799 (4th Cir. 2016) (per curiam), cert. denied, ___ U.S. ___, 137 S.Ct. 1342 (2017).

         In Connick v. Thompson, 563 U.S. 51, 60 (2011), the Supreme Court explained (emphasis in Connick):

A municipality or other local government may be liable under [§ 1983] if the governmental body itself “subjects” a person to a deprivation of rights or “causes” a person “to be subjected” to such deprivation. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). But, under § 1983, local governments are responsible only for “their own illegal acts.” Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (citing Monell, 436 U.S. at 665-683, 98 S.Ct. 2018). They are not vicariously liable under § 1983 for their employees' actions. See id., at 691, 98 S.Ct. 2018; Canton, 489 U.S. at 392, 109 S.Ct. 1197; Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 [] (1997) (collecting cases).

         Thus, a viable § 1983 Monell claim consists of two components: (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).

         However, a municipality cannot be held liable in a § 1983 action under a theory of respondeat superior. Monell, 436 U.S. at 693-94. Rather, “[i]t is well established that in a § 1983 case a city or other local governmental entity cannot be subject to liability at all unless the harm was caused in the implementation of ‘official municipal policy.'” Lozman v. City of Riviera Beach, ___ U.S. ___, ___, 138 S.Ct. 1945, 1951 (2018) (citation omitted); see Milligan, 743 F.2d at 229. In other words, a municipality is liable when a “policy or custom” is “fairly attributable to the municipality as its ‘own,' and is . . . the ‘moving force' behind the particular constitutional violation.” Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987) (internal citations omitted); see Moore v. Howard Cty. Police Dep't, CCB-10-1430, 2010 WL 4722043, at *2 (D. Md. Nov. 15, 2010).

         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; citations omitted). In addition, “the governmental unit may create an official policy by making a single decision regarding a course of action in response to particular circumstances.” Id.

         Notably, “[o]utside of such formal decisionmaking channels, a municipal custom may arise if a practice is so ‘persistent and widespread' and ‘so permanent and well settled as to constitute a “custom or usage” with the force of law.'” Carter, 164 F.3d at 218 (quoting Monell, 436 U.S. at 691); see Simms ex rel. Simms v. Hardesty, 303 F.Supp.2d 656, 670 (D. Md. 2003). A policy or custom “may be attributed to a municipality when the duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary among its employees.” Spell, 824 F.2d at 1387; see Holloman, 661 Fed. App'x at 799. In addition, “a policy or custom may possibly be inferred from continued inaction in the face of a known history of widespread constitutional deprivations on the part of city employees, or, under quite narrow circumstances, from the manifest propensity of a general, known course of employee conduct to cause constitutional deprivations to an identifiable group of persons having a special relationship to the state.” Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984) (internal citations omitted).

         In Owens, 767 F.3d at 402, the Fourth Circuit reiterated that, to establish a Monell claim, the plaintiff “must point to a ‘persistent and widespread practice[] of municipal officials,' the ‘duration and frequency' of which indicate that policymakers (1) had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their ‘deliberate indifference.'” (Quoting Spell, 824 F.2d at 1386-91) (alteration in Owens). Therefore, “Section 1983 plaintiffs seeking to impose liability on a municipality must . . . adequately plead and prove the existence of an official policy or custom that is fairly attributable to the municipality and that proximately caused the deprivation of their rights.” Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994).

         A policy or custom that gives rise to § 1983 liability will not, however, “be inferred merely from municipal inaction in the face of isolated constitutional deprivations by municipal employees.” Milligan, 743 F.2d at 230. Only when a municipality's conduct demonstrates a “deliberate indifference” to the rights of its inhabitants can the conduct be properly thought of as a “policy or custom” actionable under § 1983. Jones v. Wellham, 104 F.3d 620, 626 (4th Cir. 1997) (citing Canton, 489 U.S. at 389).

         C. Sovereign Immunity

         The BPD and Davis invoke sovereign immunity, asserting that the Eleventh Amendment precludes plaintiff's Monell claim (Count I), and that State immunity forecloses plaintiff's pattern- and-practice claim (Count IV). ECF 20-1 at 18-21, 21-24.[5] Plaintiff concedes that the BPD should be dismissed from Count IV. ECF 25 at 16 n.3. And, she appears to agree that Count IV should be dismissed as to Davis in his official capacity. See Id. However, plaintiff maintains that the “BPD and the Commissioner are not arms of the State for Eleventh Amendment Immunity purposes given their close connection to Baltimore City” and therefore are not entitled to immunity with respect to Count I. Id. at 11.

         1. Eleventh Amendment immunity

         The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or subjects of any Foreign State.” U.S. Const. amend XI.

         Under the Eleventh Amendment, states generally enjoy immunity from suits brought in federal court by their own citizens. See Hans v. Louisiana, 134 U.S. 1, 3 (1890); see also Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (“The ultimate guarantee of the Eleventh Amendment is that nonconsenting states may not be sued by private individuals in federal court.”). Therefore, absent consent or a valid congressional abrogation of sovereign immunity, the Eleventh Amendment bars a private individual from bringing suit against a state in federal court to recover damages, unless there is an exception to sovereign immunity. See Coleman v. Court of Appeals of Md., 556 U.S. 30, 35 (2012) (“A foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense.”); Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247 (2011); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996) (“For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States was not contemplated by the Constitution when establishing the judicial power of the United States.”) (internal quotation marks and citation omitted); Edelman v. Jordan, 415 U.S. 651 (1974).[6]

         The Eleventh Amendment did not create sovereign immunity, however. Rather, it preserved the sovereign immunity that the states enjoyed prior to the formation of the Union. See Alden v. Maine, 527 U.S. 706, 724 (1999); see also Sossamon v. Texas, 563 U.S. 277, 284 (2011). State sovereign immunity “accord[s] states the dignity that is consistent with their status as sovereign entities[.]” Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002).

         The Fourth Circuit has recognized that the defense of sovereign immunity is a jurisdictional bar, stating that “‘sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.'” Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (quoting Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)). Moreover, a defendant “bears the burden of ...


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