United States District Court, D. Maryland
L. Hollander, United States District Judge.
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”). 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.
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.
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.
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”).
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).
Factual and Procedural Background
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.
” 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.
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.
who was pregnant at the time, was “convinced that the
officer was going to rape her.” Id. She was
both “frightened and humiliated.” Id.
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.
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.
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.
Pattern and Practice Allegations
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
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.'”
• “‘[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.
Procedural History as to Officer Paul
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.
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.
Court received a letter from Officer Paul On March 22, 2019.
ECF 16. 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.
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.
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.
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.
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
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.
1, 2019, plaintiff moved the Court “to treat as
conceded” the Motion for Default Judgment against
Officer Paul. ECF 34.
Motions to Dismiss
Standard of Review: Rule 12(b)(6).
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.”
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).
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).
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
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).
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
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.
“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.
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.
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.
Section 1983 generally
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
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.
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.
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).
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).
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).
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
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).
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
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.”
“[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
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).
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).
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. 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.
Eleventh Amendment immunity
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.
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).
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).
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