Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GARY WASHINGTON, et al. , *
*
Plaintiffs, *
*
v. * Civil Case No. SAG-19-2473
*
BALTIMORE POLICE DEPARTMENT, *
et al. , *
*
Defendants. *
*
* * * * * * * * * * * * * *
MEMORANDUM OPINION
On August 27, 2019, Plaintiff Gary Washington (“Plaintiff”) filed a Complaint against Thomas Pellegrini (“Pellegrini”), Oscar Requer (“Requer”), Richard Fahlteich (“Fahlteich”), John Tewey (“Tewey”), Fred Ceruti (“Ceruit”), John MacGillivary (“MacGillivary”), and other Unknown Employees of the Baltimore Police Department (collectively, “the Officer Defendants”), as well as the Baltimore Police Department (“BPD”), and the Mayor & City Council of Baltimore (“MCC”) (together, “Defendants”). ECF 1. [1] Plaintiff filed an Amended Complaint on September 5, 2019. ECF 5. Each of the Officer Defendants, except for MacGillivary and the unknown Defendants, filed an Answer on December 2, 2019. ECF 28. Plaintiff, now fifty-eight years old, seeks awards of compensatory damages, punitive damages, and attorneys’ fees, for the injuries he allegedly suffered stemming from his wrongful conviction over thirty-one years ago for the murder of Faheem Rafig Ali (“Ali”).
Three motions are presently before the Court. First, on December 2, 2019, the BPD and MCC filed a Motion to Dismiss the Amended Complaint, ECF 29, along with a Memorandum of Law in support thereof, ECF 29-1 (collectively, “the Motion to Dismiss”). Plaintiff filed an Opposition, ECF 37, and the BPD and MCC replied, ECF 50. Further, on December 30, 2019, Plaintiff filed two motions: a Second Motion for Extension of Time to Serve Defendant MacGillivary, ECF 35 (“the Motion for Extension of Time”); and a Motion to Appoint a Personal Representative for Deceased Defendant MacGillivary, ECF 36 (“the Motion to Appoint”). Defendants Ceruti, Fahlteich, Pellegrini, Requer, and Tewey opposed, ECF 38, and Plaintiff replied, ECF 45. No hearing is necessary on any of the pending Motions. See Loc. R. 105.6 (D. Md. 2018). For the reasons that follow, the BPD’s Motion to Dismiss will be granted in part and denied in part, the MCC’s Motion to Dismiss will be granted, and Plaintiff’s two motions will be denied.
I. THE BPD’S AND MCC’S MOTION TO DISMISS
The following facts from the Amended Complaint are accepted as true, and all reasonable
inferences are drawn in Plaintiffs’ favor.
See, e.g.
,
E.I. du Pont de Nemours & Co. v. Kolon
Indus., Inc.
,
A. Factual Background
1. Plaintiff’s Wrongful Conviction, and Subsequent Exoneration On December 27, 1986, at about 7:45 p.m., Ali was walking in the 2300 block of Barclay Street in Baltimore City, Maryland. Id. ¶ 12. He stopped and began speaking to two unidentified men. A twelve-year-old boy, Otis Robinson (“Robinson”), was walking on the same street, and noticed the men, but found “nothing notable” about them, and continued walking. Id. ¶ 18. The conversation between Ali and the two men, however, “quickly escalated into an argument,” and ended with one of the men fatally shooting Ali in the chest. ¶ 12. The two men fled before police arrived. Id. ¶ 12. Robinson also fled after hearing the gun shot, and eventually took shelter in his mother’s boyfriend’s home. Id. ¶ 19. R.D., a thirteen-year-old girl, was standing in the crowd when police arrived on the scene. Id. ¶¶ 28-29. Some Officer Defendant(s) questioned her about the murder, but she said that she did not know who shot Ali. Id. ¶ 29. No other witness on the scene that night could identify either suspect. Id. ¶ 15.
Sometime after the shooting, unspecified Officer Defendant(s) learned that Robinson may have also witnessed the shooting. Id. ¶ 16. Those Defendant(s) went to Robinson’s mother’s house “and threatened to take Otis away from her if she did not bring Otis to the police station within 24 hours.” Id. ¶ 19. On December 29, 1986, Robinson and his mother were transported to a BPD police station, where unspecified Officer Defendant(s) separated him from his mother. Id. ¶ 20. Robinson told Pellegrini and Fahlteich that, on the night of the shooting, he heard men talking on the street and then he heard a gunshot, but he did not know who any of the men were. Id. ¶ 21. Requer later brought showed Robinson a set of pictures, one of which was Plaintiff. Id. ¶ 22. Robinson confirmed that he recognized Plaintiff, but never indicated that Plaintiff was one of the two men he saw standing with Ali. Id.
Unspecified Officer Defendant(s) then began threatening Robinson, and demanding that he cooperate and identify the shooter, or else they would take him away from his mother, or worse, charge him with Ali’s murder. Id. ¶ 23. Robinson then began accepting details that the unspecified Officer Defendants provided him about the shooting, and eventually, “[b]ecause of the Officer Defendants’ coercion,” falsely identified Plaintiff as Ali’s shooter. After Robinson made this identification, he was reunited with his mother. Id. ¶ 23. Robinson later returned to the station, and signed a second typewritten statement identifying Plaintiff as the shooter, on January 2, 1987. ¶ 25. The Officer Defendants are alleged to have known that Robinson’s statements identifying Plaintiff as the shooter were false, but they did not disclose this fact, or Robinson's initial statement denying knowledge of the shooter’s identity, to the prosecutor or Plaintiff’s defense attorney. Id. ¶¶ 23, 26-27.
The Officer Defendants had R.D. come to the station on January 3, 1987, and implemented the same practices on her as they had on Robinson. Id. ¶¶ 30-31. After separating R.D. from her mother, unspecified Officer Defendants threatened R.D. that they would take her away from her mother, and even arrest her. Id. ¶ 30. They showed R.D. a picture of Plaintiff, and she indicated that she knew who he was. Id. ¶ 31. The Officer Defendant(s) pressured R.D. to sign her name next to the picture, and indicate that Plaintiff was the shooter. Id. R.D. agreed, and was then reunited with her mother. Id. The Officer Defendants did not disclose R.D.’s initial statement at the scene of the murder, or their acts of coercion, to the prosecutor or Plaintiff’s defense attorney. Id. ¶ 33.
On January 5, 1987, “under the supervision of Defendant John MacGillivary,” the Officer Defendants used Robinson’s and R.D.’s fabricated statements to obtain an arrest warrant for Plaintiff. Id. ¶ 34. At a later suppression hearing, Pellegrini falsely testified that Robinson’s and R.D.’s statements and identifications had been obtained freely and voluntarily. Id. ¶ 36. Robinson was the only one who testified at trial, and his testimony was the only evidence linking Plaintiff to Ali’s murder. Id. ¶ 37. A jury convicted Plaintiff of Ali’s murder on June 16, 1987, for which Plaintiff received a sentence of life imprisonment, plus twenty years. Id. ¶¶ 39-40.
Ten years later, Robinson recanted his testimony. Id. ¶ 41. He explained that the Officer Defendants had coerced him into making the false statements. On August 20, 2018, a state court judge in Baltimore City granted Plaintiff’s petition for a writ of actual innocence, deeming Robinson’s recantation credible. ¶ 42. The murder charges against Plaintiff were then dropped. Id. ¶ 43. Plaintiff has filed a number of claims against the Officer Defendants under 42 U.S.C. § 1983, and Maryland state law, for the violation of his constitutional rights stemming from his wrongful conviction. Id. ¶¶ 93-118, 124-38 (Counts I-IV, VI-VII). Plaintiff has also filed a claim against the BPD directly, seeking to compel it to indemnify the Officer Defendants upon a finding of the Officer Defendants’ liability. Id. ¶¶ 139-41 (Count IX).
2. The Monell Claim Against the BPD and MCC As relevant to this Motion to Dismiss, Count V of the Amended Complaint seeks compensatory and punitive damages from the BPD and MCC for the violation of Plaintiff’s constitutional rights, pursuant to § 1983 and the theory of liability espoused in Monell v. Department of Social Services , 436 U.S. 658, 690 (1978). ECF 5, ¶¶ 119-23 (Count V). Plaintiff alleges that his wrongful conviction was “the result of the BPD’s longstanding policies and practices of pursuing wrongful convictions through reliance on profoundly flawed investigations,” which led investigators to “cut corners and rush[] to judgment” in “a race to clear murder cases.” Id. ¶¶ 45-46. These policies, Plaintiff alleges, were “firmly entrenched” during the investigation of Ali’s homicide. Id. ¶ 46. In support, Plaintiff recounts the wrongful murder convictions of Walter Lomax, Wendell Griffin, James Owens, Jerome Johnson, Anthony Coleman, Sabein Burgess, Antoine Pettiford, Rodney Addison, Malcolm Bryant, Kenneth McPherson, Eric Simmons, Tyrone Jones, and Garreth Parks, many of whom have been exonerated. Id. ¶¶ 49-60. In each case, the BPD allegedly relied on fabricated evidence, coerced child witnesses to make false statements, and/or failed to disclose exculpatory evidence, in order to secure the individual’s conviction. Plaintiff alleges that policymakers within the BPD were deliberately different to these unconstitutional practices, and that the failure to remedy them led to his wrongful conviction, and the injuries he suffered therefrom. ¶¶ 65-66.
Plaintiff further alleges that his wrongful conviction stemmed from the BPD’s failure to
train, supervise, and discipline subordinate police officers.
Id.
¶ 67. He alleges that an internal
report created in January, 2000 (“the Tabeling Report”) “found numerous deficiencies in
training, including in many basic legal and investigative concepts.”
Id.
¶ 68. Plaintiff points
specifically to the BPD’s failure to train police officers on how to fully comply with their
obligation to disclose exculpatory evidence pursuant to
Brady v. Maryland
,
Finally, Plaintiff alleges that Baltimore City’s “failure to act in the face of repeated constitutional violations” by the BPD, and its failure to address the BPD’s unconstitutional policies and practices, also led to his wrongful conviction, and subjects the MCC to Monell liability under § 1983. ¶ 85. He alleges the following facts to demonstrate the extent of the MCC’s involvement in the BPD’s formulation of policy:
The Mayor’s power to appoint and remove the BPD Commissioner, id. , ¶ 75;
The Commissioner’s regular efforts to apprise the Mayor of BPD’s operations, id. ¶¶ 76, 82;
The establishment of the City’s Complaint Evaluation Board (“CEB”) in 1977, to review and evaluate citizen complaints regarding police actions, id. ¶ 80;
The Baltimore City Community Relations Committee’s (“CRC”) 1979 report to the Mayor that City residents “felt that BPD officers mistreated them and used excessive force against them,” id. ¶ 81; The finding of a “year-long ethnographic study” of the BPD’s Homicide Department by David Simon, who found that the Commissioner was required “to run the police department in a way that served the Mayor ‘in whatever manner He [the mayor] [saw] fit,’” id. ¶ 76; Then-Mayor O’Malley’s successful efforts “to make the BPD submit to being studied by consultants” to weed out corruption, “with the intent of having BPD implement the consultants’ recommendations,” id. ¶ 77; The City’s authority over the BPD’s budget, which, in 1993, allowed then- Mayor Kurt Schmoke to force the BPD to cut its Academy’s training program and hire 330 new officers, id. ¶ 78;
The City’s current, ongoing efforts to aid the BPD in remedying its unconstitutional practices in the litigation resulting from the Gun Trace Task Force (“GTTF”) scandal, including signing on to the Consent Decree, id. ¶ 79; and
The “City’s obligation to indemnify the BPD’s employees under the Local Government Torts Claim Act,” id. ¶ 83.
B. Legal Standards
The BPD and MCC have filed motions to dismiss the claims lodged against them in the
Amended Complaint, in their entirety, under Federal Rule of Civil Procedure 12(b)(6). ECF 29.
A defendant is permitted to test the legal sufficiency of a complaint by way of a motion to
dismiss.
See, e.g.
,
In re Birmingham
,
Whether a complaint states a claim for relief is assessed by reference to the pleading
requirements of Rule 8(a)(2), which 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
,
To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to
“state a claim to relief that is plausible on its face.” at 570;
see Ashcroft v. Iqbal
, 556 U.S.
662, 684 (2009) (“Our decision in
Twombly
expounded the pleading standard for ‘all civil
actions.’”);
see also Willner v. Dimon
,
Nevertheless, the rule demands more than bald accusations or mere speculation.
Twombly
,
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.
,
In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a
court ordinarily “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
, 510 F.3d 442, 450 (4th Cir. 2007). However, a court may properly
consider documents incorporated into the complaint or attached to the motion to dismiss, “so
long as they are integral to the complaint and authentic.”
U.S. ex rel. Oberg v. Pennsylvania
Higher Educ. Assistance Agency
,
Finally, at the motion to dismiss stage, courts generally do not “resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.”
Edwards v. City of
Goldsboro
,
C. Analysis
The BPD and MCC put forth four arguments in favor of dismissal. First, both assert that Plaintiff fails to state a Monell claim against them. ECF 29-1 at 5-19. Second, the BPD argues that it has sovereign immunity to the Monell claim lodged against it. at 19-22. Third, the BPD claims that Plaintiff’s state law claim for indemnification fails as a matter of law. at 22- 24. Finally, the BPD and MCC argue that Plaintiff cannot claim punitive damages against them under § 1983. at 24-25. Each argument is considered in turn.
1. Plaintiff Sufficiently Alleges the BPD’s
Monell
Liability under § 1983
Count V of the Amended Complaint alleges that the BPD (1) failed to adequately train its
officers on its
Brady
obligations, and (2) condoned policies and practices of failing to turn over
exculpatory evidence, and relying on fabricated evidence in investigating cases. ECF 5, ¶¶ 119-
23. If any person acting “under color of any statute, ordinance, regulation, custom, or usage, of
any State” deprives a United States citizen of any constitutional right, he may be liable in a suit
for money damages. 42 U.S.C. § 1983 (2018). In
Monell v. Department of Social Services
, 436
U.S. 658, 690 (1978), the Supreme Court held that municipalities may be liable for a plaintiff’s
constitutional harms pursuant to § 1983. There are three necessary elements for
Monell
liability.
First, the plaintiff must plausibly allege a constitutional harm that stems from the acts of a
municipal employee “taken in furtherance of some municipal ‘policy or custom.’”
Milligan v.
City of Newport News
,
(1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that “manifest[s] deliberate indifference to the rights of citizens”; or (4) through a practice that is so “persistent and widespread” as to constitute a “custom or usage with the force of law.”
Lytle v. Doyle
,
i. The BPD Is Not Entitled to Sovereign Immunity
First, the BPD argues that it enjoys sovereign immunity to Plaintiff’s § 1983 claim. ECF
29 at 19-22. In three recent decisions, all of which are currently before the Fourth Circuit,
United States District Judges in this District have rejected that contention.
See Burley v. Balt.
Police Dep’t
, __ F. Supp. 3d __, No. ELH-18-1743, 2019 WL 6253251, at *27-29 (D. Md.
amended Nov. 22, 2019),
appeal docketed and consolidated
, No. 19-2029 (4th Cir. Sept. 27,
2019);
Lucero v. Early
, No. GLR-13-1036,
ii. Plaintiff’s Failure to Train Theory
The BPD first argues that Plaintiff fails to allege
Monell
liability through a failure to
train. ECF 29-1 at 7-12. A plaintiff can establish the requisite “policy” for
Monell
liability
through a failure to train, if it “reflects a ‘deliberate’ or ‘conscious’ choice” to not do so.
City of
Canton v. Harris
, 489 U.S. 378, 389 (1989). Training policy deficiencies can include (1)
“express authorizations of unconstitutional conduct,” (2) “tacit authorizations” of such
unconstitutional conduct, and (3) failures to adequately “prohibit or discourage readily
foreseeable conduct in light of known exigencies of police duty.”
Spell
,
The BPD first argues that Plaintiff insufficiently alleges a failure to train claim because
the Amended Complaint lacks specific allegations regarding the nature of BPD’s training
programs, and regarding the specific deficiency in training. ECF 29-1 at 9-10. This argument
lacks merit. In this context, it is important to note that, oftentimes, “a plaintiff lacks specific
details regarding the municipal actor’s internal policies and training procedures before
discovery.”
Johnson v. Balt. Police Dep’t
, No. ELH-19-00698,
Next, the BPD argues that the Amended Complaint fails to plausibly establish the BPD’s
deliberate indifference to the rights of individuals such as Plaintiff. ECF 29-1 at 9-10. This
argument is unpersuasive. In the context of failure to train, deliberate indifference can be shown
through policymakers’ choice to retain a training program, despite “‘actual or constructive
notice’ that an omission in the program causes officers ‘to violate citizens’ constitutional
rights.’”
Jones
,
Here, Plaintiff has alleged that in 1981, and three times in 1988, individuals were convicted for murder in Baltimore City, and that in each of those cases, BPD officers withheld exculpatory evidence. ECF 5, ¶¶ 50-53. Two of these individuals have since been exonerated of their charges, and in the case of Anthony Coleman, originally convicted in 1988, the Maryland Court of Special Appeals determined that evidence had been wrongfully withheld from his trial counsel. One BPD homicide detective in Coleman’s post-conviction proceedings allegedly testified “how it was the department’s practice to decide which documents to share with State prosecutors.” ¶ 53. Plaintiff finally asserts that BPD policymakers had “actual knowledge” of this pattern of misconduct, id. ¶ 66, and “consciously approved” their deficient training programs, id. ¶ 72, which the Court must accept as true at the pleading stage.
Considering all of this, the Court finds that Plaintiff has drawn a sufficient connection
between the previous alleged incidents of
Brady
violations, and the violation that led to his
wrongful conviction.
Compare with Chapman
,
Finally, the BPD challenges the sufficiency of Plaintiff’s allegations regarding causation.
ECF 29-1 at 11. This argument similarly fails. As noted, Plaintiff must plausibly allege that the
condoned policy or custom has an affirmative causal link to their particular constitutional
violation.
E.g.
,
Spell
, 824 F.2d at 1391. This causal link is satisfied “if occurrence of the
specific violation [alleged] was made reasonably probable by permitted continuation of the
custom,” such that the specific violation was “almost bound to happen, sooner or later, rather
than merely likely to happen in the long run.” (internal quotations omitted);
see also, e.g.
,
Carter
,
Here, Plaintiff has alleged such an “affirmative link” between his wrongful conviction
caused by a
Brady
violation, and the BPD’s failure to address the deficiency in its
Brady
training.
See Spell
,
officer’s alleged unlawful seizure of, and use of force on, the plaintiff). Thus, the BPD’s motion to dismiss the failure to train Monell claim will be denied.
iii. Plaintiff’s Condonation Theory
The BPD next seeks to dismiss Plaintiff’s condonation theory of Monell liability. ECF 29-1 at 12-16. A municipality is liable under a condonation theory “if municipal policymakers fail ‘to put a stop to[,] or correct[,] a widespread pattern of unconstitutional conduct.’” Owens , 767 F.3d at 402 (quoting Spell , 824 F.2d at 1389). To plausibly allege Monell liability by condonation, a plaintiff must state facts showing “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.” at 402-03 (internal alterations and quotations omitted) (quoting Spell , 824 F.2d at 1386-91). In the Fourth Circuit’s words: “Although prevailing on the merits of a Monell claim is difficult, simply alleging such a claim is, by definition, easier.” at 403.
The BPD first asserts that Plaintiff has failed to plausibly establish a widespread practice of Brady violations at the time of his wrongful conviction, and thus has failed to establish the BPD’s deliberate indifference. ECF 29-1 at 14. This argument attempts to place far too great of a burden on Plaintiff at the pleading stage. In Owens , the plaintiff – similarly claiming to have been wrongfully convicted due to the BPD’s failure to turn over exculpatory evidence – plausibly alleged the BPD’s Monell liability by condonation through two factual allegations: (1) that “[r]eported and unreported cases from the period of time before and during the events complained of” showed a practice of knowingly suppressing exculpatory evidence; and (2) that “a number of motions were filed and granted during [the relevant] time period,” demonstrating the BPD’s knowledge of the practice. 767 F.3d at 403-04. The Fourth Circuit found that Owens’s “brief, but non-conclusory, allegations” buttressed his legal conclusion that the BPD adhered to an impermissible custom. Id. at 403.
Plaintiff’s factual allegations exceed those in
Owens
. He alleges that the BPD had a
policy of fabricating evidence and suppressing exculpatory evidence, and that “[b]y the time of
Mr. Ali’s death and the investigation that led to Plaintiff’s wrongful arrest and conviction, those
policies were firmly entrenched.” ECF 5, ¶¶ 45-46. He further buttresses these factual
allegations with a specific example from 1981, and three examples from 1988. ¶¶ 50-53.
The BPD is alleged to have “failed to act to remedy” these wrongful acts. ¶ 66. Plaintiff has
therefore easily satisfied his burden to establish that a widespread practice of evidence
fabrication and suppression existed in the BPD, and that BPD policymakers were deliberately
indifferent to that practice in failing to address it.
See Owens
, 757 F.3d at 403-04;
Estate of
Bryant
,
The BPD next argues that Plaintiff fails to allege the requisite causal connection between
his constitutional violations and the unlawful policies the BPD allegedly condoned. ECF 29-1 at
14-16. This argument is unconvincing. As the Fourth Circuit has recognized, at the pleading
stage, “[t]here is no requirement that” the plaintiff “plead the multiple incidents of constitutional
violations that may be necessary at later stages to establish . . . causation.”
Jordan by Jordan
, 15
F.3d at 339. Indeed, in holding that only the notice pleading requirements of Federal Rule of
Civil Procedure 8 applied to
Monell
claims, the Supreme Court stated, “federal courts and
litigants must rely on summary judgment and control of discovery to weed out unmeritorious
claims.”
Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit
,
iv. Plaintiff’s Failure to Supervise and Discipline Theory Finally, the BPD seeks to dismiss Plaintiff’s “failure to supervise and discipline” theory of Monell liability. ECF 29-1 at 11-12. This position also lacks merit. True, the Amended Complaint contains just three allegations regarding the BPD’s “failure to supervise and discipline”: (1) “[t]he BPD’s failure to train, supervise, and discipline its employees effectively condoned, ratified, and sanctioned the kind of misconduct that the Officer Defendants committed against Plaintiff in this case,” ECF 5, ¶ 68; (2) “[T]he BPD failed to properly supervise and discipline its police employees,” id. ¶ 71; and (3) “The failure to train, supervise, and discipline BPD employees was consciously approved at the highest policy-making level by policymakers who were deliberately indifferent to the violations of constitutional rights described herein, and that failure was a cause of the injuries suffered here by Plaintiff,” id. ¶ 72.
When read in conjunction with the other well-pleaded factual allegations, Plaintiff’s
failure to supervise and discipline claim properly states a claim for relief. A failure to supervise
gives rise to municipal liability “only in those situations in which there is a history of widespread
abuse.”
Wellington v. Daniels
,
2. Plaintiff’s Monell Claim Against the Mayor & City Council of Baltimore Fails as a Matter of Law
Next, the MCC seeks to dismiss the Monell claim lodged against it in Count V. ECF 29- 1 at 16-19; ECF 50 at 5-11. Plaintiff asserts that the MCC is a joint policymaker with the BPD, and therefore also can incur Monell liability for his constitutional harms. ECF 37 at 22-28. Plaintiff’s argument is ultimately unavailing, even at the motion to dismiss stage.
As noted, a municipality’s liability under § 1983 can flow “through the decisions of a
person with final policymaking authority.”
Carter
,
A “final policymaker” is a person who has “the responsibility and authority to implement
final municipal policy with respect to a particular course of action.”
Riddick
, 238 F.3d at 523
(emphasis omitted);
see also Lytle v. Doyle
, 326 F.3d 463, 472 (noting that the “type of
policymaking authority which can invoke § 1983 liability is ‘authority to set and implement
general goals and programs of municipal government, as opposed to discretionary authority in
purely operational aspects of government.’” (quoting
Spell
, 824 F.2d at 1386)). The
determination of who is a final policymaker is a question of state law “to be resolved by the trial
judge before the case is submitted to the jury.”
Jett v. Dallas Indep. Sch. Dist.
,
In
Praprotnik
, the Supreme Court recognized that “there will be cases in which
policymaking authority is shared among more than one official or body.”
The case law analyzing the issue of whether the Mayor of Baltimore City is liable under §
1983 for the conduct BPD officers is legion, and almost exclusively one-sided: “[Baltimore]
City simply does not exert legal control over the BPD within the ambit of Section 1983.”
Burgess
, 2016 WL 795975, at *5. In
Estate of Anderson v. Strohman
, United States District
Judge George L. Russell III explained that the rationales underlying previous decisions from this
District, holding that the MCC could be held liable under § 1983 for the conduct of BPD
officers, were unpersuasive, given the “mountain of law,” both at the federal and state level,
“insisting [that] the City does not sufficiently control the BPD or Baltimore police officers.” 6 F.
Supp. 3d 639, 646 (D. Md. 2014);
see id.
at 643-46. Judge Russell concluded that “Baltimore
police officers are state employees free from the City’s supervision and control,” and, therefore,
the City “cannot be liable” for BPD officers’ conduct under § 1983.
Id.
Since this decision,
courts in this District have followed suit, and held the same.
See, e.g.
,
Harrod v. Mayor & City
Council Balt. City
, No. GLR-18-2542, 2019 WL 5636392, at *2-3 (D. Md. July 24, 2019);
Whetstone v. Mayor & City Council of Balt.
, No. ELH-18-738,
The ruling in Estate of Anderson , and in the cases subsequent cited above, comport with the Maryland Court of Appeals’s view of the BPD’s classification as a state, not local, agency:
The decisions of this Court concerning the liability of the City of Baltimore for the acts, activity[,] and inaction of the Police Department, over which it has no power , have been consistent and unequivocal, premised on, and holding uniformly, that the Baltimore Police Department is an entity of the State, and not of the City of Baltimore.
Mayor & City Council of Balt. v. Clark , 404 Md. 13, 26 (2008) (citations omitted) (emphasis added). In fact, relevant to the instant suit, in 1988, the Court of Appeals rejected the argument that the Baltimore City Mayor’s newfound power to appoint the BPD Commissioner impacted this longstanding principle:
It is true that, by Ch. 920 of the Acts of 1976, the General Assembly transferred the power to appoint the Baltimore City Police Commissioner from the Governor to the Mayor of Baltimore City. At the same time, however, the General Assembly maintained the express designation of the Baltimore City Police Department as a state rather than a local government agency. Furthermore, the General Assembly, and not the Baltimore City Council, has continued to be the legislative body enacting significant legislation governing the Baltimore City Police Department.
Clea v. Mayor & City Council of Balt.
,
In fact, “[t]he City of Baltimore, as a matter of law, is not permitted to regulate or
supervise the Baltimore Police Department.”
Young v. City of Baltimore
, No. GLR-16-1321,
2017 WL 713860, at *2 (D. Md. Feb. 23, 2017). This is because Article II, section 27 of the
Baltimore City Charter explicitly provides that “no ordinance of the City or act of any municipal
officer shall conflict, impede, obstruct, hinder or interfere with the powers of the Police
Commissioner.”
See also Clark
, 404 Md. at 23 (reciting this provision). And if the Police
Commissioner refuses to implement the policy objectives of a Baltimore City Mayor, the Mayor
cannot fire the Commissioner for that reason alone. As the Court of Appeals explained in
Clark
,
the Mayor may only remove the Commissioner for cause: “for official misconduct, malfeasance,
inefficiency or incompetency, including prolonged illness, in the manner provided by law in the
case of civil officers."
Id.
at 28. The only body with the authority to enact significant change
with regard to the BPD’s structure and functions, outside of the Commissioner, is the Maryland
General Assembly.
Id.
at 25-26;
Balt. Police Dep’t v. Cherkes
, 140 Md. App. 282, 312-13
(2001);
Clea
,
Plaintiff does not appear to disagree with these well-established principles of state law, see ECF 37 at 26, but instead argues that the MCC has “co-policymaking authority” with the BPD, id. He argues that the “MCC, with the BPD’s permission, shares policymaking authority with the BPD and influences BPD’s policies, customs, and practices to a degree sufficient to be, in practice, a shared policymaking authority.” Id. This “shared authority,” according to Plaintiff, “has been created through the BPD’s custom and practice of deferring to and adopting the MCC’s decisions, and jointly making decisions with the MCC.” Even taking all of the Amended Complaint’s factual allegations in a light most favorable to Plaintiff, they are insufficient, as a matter of law, to plausibly establish that the MCC shares final policymaking authority with the BPD Commissioner, or some other final policymaker within the BPD.
Plaintiff attempts to liken his case to
Lucero v. Early
, No. GLR-13-1036, 2019 WL
4673448 (D. Md. Sept. 25, 2019), which was authored by Judge Russell, and
Estate of Alvarez v.
Johns Hopkins University
,
In
Estate of Alvarez
, the plaintiffs sued various Johns Hopkins entities, the Rockefeller
Foundation, and Bristol-Myers Squibb, under the law of Guatemala and the Alien Tort Statute,
for designing, and implementing, a nonconsensual human experimentation program in
Guatemala.
Neither
Lucero
nor
Estate of Alvarez
advances Plaintiff’s instant claims. At most, here,
Plaintiff has alleged that the Mayor, over the course of the past fifty years, has made scattershot
attempts to utilize his or her political clout to influence the Commissioner’s policy decisions.
See
ECF 5, ¶¶ 75-83. In
Lucero
and
Estate of Alvarez
, however, the plaintiffs pointedly alleged
facts tending to show that individuals with final decisionmaking authority were involved in the
creation and implementation of a specific policy, together with some third party.
See Lucero
,
This is not to say that, like in
Lucero
and
Estate of Alvarez
, the MCC can never be
deemed a joint, final policymaker with the Commissioner in promulgating a single,
ad hoc
policy
decision.
See Spell
, 824 F.2d at 1385 (noting that municipal policy actionable under § 1983
“may also be found in formal or informal
ad hoc
‘policy’ choices or decisions of municipal
officials authorized to make and implement municipal policy”);
see also Semple v. City of
Moundsville
, 195 F.3d 708, 712 (4th Cir. 1999) (recognizing that a “governmental unit may
create an official policy by making a single decision regarding a course of action in response to
particular circumstances” so long as it possessed “final authority to create official policy”). But,
as demonstrated above, Plaintiff’s allegations do not allow this Court to plausibly infer that the
MCC is
always
a joint policymaker for every policy decision that the Commissioner issues,
particularly the operational policies that are complained of here. As the Fourth Circuit recently
observed, courts “must never ‘assum[e] that municipal policymaking authority lies somewhere
other than where the applicable law purports to put it.’”
Hunter v. Town of Mocksville
, 897 F.3d
538, 555 (4th Cir. 2018) (quoting
Praprotnik
,
In sum, the Court finds that the established principle that the BPD is a state agency over which the MCC has no control, for the purposes of § 1983, is undisturbed by Plaintiff’s allegations. Plaintiff fails to plausibly establish that the MCC was a joint policymaker of the policies that allegedly caused his constitutional harm. Accordingly, the Monell claim against the MCC in Count V will be dismissed, without prejudice.
3. Plaintiff Properly Asserts a State Law Indemnification Claim Against the BPD
Next, the BPD argues that the indemnification claim asserted against it in Count IX, ECF 5, ¶¶ 139-41, must be dismissed. ECF 29-1 at 22-24. It argues first that it has state sovereign immunity to the indemnification claim, until Plaintiff obtains a judgment against at least one of the Officer Defendants. ECF 29-1 at 22-23. Second, the BPD asserts that Plaintiff lacks standing to assert an indemnification claim directly against the BPD, given that there is no judgment against any Officer Defendant. Id. at 23-24. Both contentions lack merit, at this stage.
The LGTCA provides that any “local government,” which includes the BPD, “shall be
liable for any judgment against its employee for damages resulting from tortious acts or
omissions committed by the employee within the scope of employment.” Md. Code Ann., Cts.
& Jud. Proc. § 5-303(b)(1);
see id.
§ 5-301(d)(21) (including the BPD in the LGTCA’s definition
of “local government”). Importantly, the LGTCA bars the relevant entity from asserting
sovereign immunity as a defense to its indemnification obligation.
See id.
§ 5-303(b)(2);
Cherkes
,
First, the BPD’s assertion of state sovereign immunity to the indemnification claim fails
at this stage. The Court recognizes, of course, that issues of sovereign immunity should be
decided “as soon as possible after the State asserts its immunity.”
Constantine v. Rectors &
Visitors of George Mason Univ.
, 411 F.3d 474, 482 & n.4 (4th Cir. 2005). Determinations of
sovereign immunity at the pleading stage are most common in cases in which the entity’s
sovereign immunity hinges upon whether the relevant statute providing the cause of action
properly waives sovereign immunity.
See, e.g.
,
Robinson v. Pa. Higher Educ. Assistance
Agency
,
However, the assertion of sovereign immunity in this instance is highly fact-dependent.
See also, e.g.
,
Pele v. Pa. Higher Educ. Assistance Agency
,
As to the BPD’s second argument, the decision of the court in Johnson v. Baltimore Police Department , No. ELH-19-00698, 2020 WL 1169739 (D. Md. Mar. 10, 2020), is on all fours. In that case, an exonerated Baltimore City prisoner, Jerome Johnson, sued the BPD and four BPD detectives for his wrongful murder conviction. Id. at *1. Mr. Johnson brought § 1983 claims against the detectives, and a Monell claim against the BPD. Id. Mr. Johnson also pled an indemnification claim against the BPD. Id. The BPD argued that the indemnification claim was premature, because there was no judgment against any detective, or a finding that any detective was acting within the scope of their employment with the BPD. at *37.
The court rejected these arguments. at *38. Collecting a number of cases from Maryland’s appellate courts, the court first concluded that there is no case law “preclud[ing] a plaintiff from pleading an indemnification claim before final judgment.” Id. (citations omitted). Next, the court found that, while some courts have dismissed indemnification claims against the BPD as premature, under the circumstances of Mr. Johnson’s case, “permitting [him] to plead an indemnification claim against the BPD at the outset avoids the possibility of redundant litigation, thereby facilitating the efficient resolution of this case.” Id. The court continued:
Indeed, for that reason, courts in this District have permitted the BPD to file a cross-claim for indemnification against an officer under [Federal Rule of Civil Procedure] 13(g), seeking a declaration that it has no duty to indemnify despite the officer’s liability not having been established. See Bumgardner v. Taylor , GLR-18-1438, 2019 WL 4115414, at *11 (D. Md. Aug. 29, 2019) (finding that “permitting BPD’s Cross-Claim to proceed directly behind [the plaintiff’s] claims serves the purposes of Rule 13(g)”); Harrod v. Mayor & City Council of Balt. , GLR-18-2542, 2019 WL 5636392, at *4 (D. Md. July 24, 2019) (same). That approach makes good sense where, as here, “[d]etermining whether [the] Officer Defendants were acting within the scope of their employment will, in turn, determine whether BPD is liable for [the] Officer Defendants’ actions.” Bumgardner ,2019 WL 4115414 , at *11.
Similarly, here, Plaintiffs have lodged a Monell claim directly against the BPD, as well as a number of federal and state law claims against individuals allegedly employed by the BPD at the time of Plaintiff’s arrest and conviction. Thus, to facilitate an efficient resolution of this case, and to avoid “the possibility of redundant litigation,” the Court concludes that dismissal of Plaintiffs’ indemnification claim would be improper at this time. The motion to dismiss Count IX will therefore be denied.
4. Plaintiff Concedes that He Is Not Seeking Punitive Damages from the BPD or the MCC
Finally, the BPD and MCC argue that Plaintiff impermissibly seeks punitive damages from them. ECF 29-1 at 24. Plaintiff remarks, however, that “[a] fair reading of Plaintiff’s [Amended] Complaint makes clear that Plaintiff is not seeking punitive damages from the BPD or the MCC.” ECF 37 at 37. To be sure, the phrasing of Plaintiff’s ad damnum clause did leave some ambiguity. See ECF 5 at 31 ( ad damnum clause) (seeking an award of, inter alia , “punitive damages against each Defendant,” after listing all Defendants, including the BPD and MCC). In any event, since Plaintiff is now representing that he is not seeking punitive damages from the BPD and MCC, the Court will grant the motion to dismiss on this ground, to avoid future confusion.
II. PLAINTIFF’S MOTION TO APPOINT A PERSONAL REPRESENTATIVE &
MOTION FOR EXTENSION OF TIME
As noted at the outset, Plaintiff has filed two additional procedural motions related to the service of Defendant MacGillivary – a Second Motion for Extension of Time, ECF 35, and a Motion to Appoint a Personal Representative, ECF 36. MacGillivary is alleged to have supervised the BPD’s Homicide Unit during the time period relevant to Plaintiff’s lawsuit. ECF 5, ¶ 34. MacGillivary, however, passed away in 1996, and his estate is now closed. See ECF 27, ¶ 4 (Plaintiff’s First Motion for Extension of Time to Serve MacGillivary). Plaintiff asks that the Court (1) appoint a personal representative for MacGillivary’s estate, so that MacGillivary may defend Plaintiff’s claims, and (2) extend the time for Plaintiff to serve the estate until thirty days after the personal representative is appointed. ECF 36 at 7-8; ECF 35, ¶ 7.
Some brief procedural background is helpful. Plaintiff first moved to extend the time period to serve MacGillivary on November 22, 2019. ECF 27. The Court granted Plaintiff the requested extension of time. ECF 34. It appeared to the Court, from Plaintiff’s assertions in the motion, that he was actively seeking to reopen MacGillivary’s estate in Maryland state court. See ECF 27, ¶ 13 (“Plaintiff is asking for 35 additional days in which to effect service against Defendant MacGillivary. In particular, Plaintiff needs the additional time to re-open Defendant MacGillivary’s estate and have a personal representative appointed.”). Accordingly, given the liberal construction of Federal Rule of Civil Procedure 4(m)’s “good cause” requirement, the Court granted Plaintiff additional time to effectuate this process, notwithstanding the possibility that Plaintiff’s claim against MacGillivary’s estate may ultimately be time-barred. ECF 34. Plaintiff now asks this Court, however, to appoint a personal representative, ECF 36, which requires a more substantive analysis. [4]
Plaintiff’s Motion to Appoint relies on the application of Federal Rule of Civil Procedure
25(a)(1). That rule provides that “[i]f a
party
dies and the claim is not extinguished, the court
may order substitution of the proper party.” (emphasis added). However, Rule 25(a)(1) only
applies to
parties
, i.e., “someone who had been made a party to the action,” through service of
the Complaint, “
before
his death.”
Moul v. Pace
, 261 F. Supp. 616, 617-18 (D. Md. 1966)
(emphasis added) (quoting
Chorney v. Callahan
, 135 F. Supp. 35, 36 (D. Mass. 1955)).
Accordingly, courts cannot substitute the personal representative of a decedent’s estate for a
decedent named in a complaint, if the decedent’s death occurred before the filing of the
complaint. ;
accord Mizukami v. Buras
, 419 F.2d 1319, 1320 (5th Cir. 1969) (per curiam);
Lacy v. Tyson
, No. 1:07-cv-00381-LJO-GSA-PC,
None of the cases Plaintiff cites convinces the Court otherwise. ECF 36 at 6 n.2.
Hicks
v. Young
comes closest to the facts of the instant case, but the defendant-decedent to be
substituted there died
after
the filing of the complaint. No. 10-C-3874,
Because MacGillivary’s estate has been closed for some time now, Plaintiff must vindicate himself of the procedures afforded to him under Maryland state law for reestablishing a personal representative of MacGillivary’s estate, and then seek leave from this Court to file a Second Amended Complaint to name that representative as a defendant. That motion must, per Federal Rule of Civil Procedure 15, not only demonstrate that the amendment is not futile, [5] but also that the amendment relates back to the date of the original pleading, should that issue also arise. But since, as discussed above, there is no procedural mechanism for granting Plaintiff the relief he requests, the Motion to Appoint will be denied. [6]
For similar reasons, Plaintiff’s Motion for Extension of Time fails. Rule 4(m) provides
that if a plaintiff fails to serve the complaint on a named defendant within ninety days after the
complaint is filed, the court “must dismiss the action without prejudice against that defendant or
order that service be made within a specified time.” The rule further provides that if the plaintiff
shows good cause for the failure to timely serve, “the court must extend the time for service for
an appropriate period.” It is unclear whether Rule 4(m) requires Plaintiff to demonstrate
good cause for his inability to timely serve MacGillivary, or whether the Court may grant a
discretionary extension even in the absence of good cause.
See generally Chen v. Mayor & City
Council of Balt.
, 292 F.R.D. 288, 291-93 (D. Md. 2013) (discussing the doctrinal uncertainty
regarding Rule 4(m)’s good cause requirement, stemming from the Fourth Circuit’s decision in
Mendez v. Elliot
, 45 F.3d 75 (4th Cir. 1995)). Regardless, Plaintiff here is not entitled to an
extension of the service deadline, because his action against MacGillivary, as described above, is
a legal “nullity.”
See Moul
,
III. CONCLUSION
For the reasons set forth above, the BPD’s Motion to Dismiss, ECF 29, is GRANTED IN PART and DENIED IN PART; the MCC’s Motion to Dismiss, ECF 29, is GRANTED; proper here, however, because “there is neither an estate nor personal representative” for MacGillivary. ECF 35, ¶ 5.
Plaintiffs’ Motion for Extension of Time, ECF 35, is DENIED; and Plaintiff’s Motion to Appoint, ECF 36, is DENIED. Plaintiff will be granted thirty days to seek leave to amend his complaint to rectify the deficiencies in the claims dismissed herein. The Court will also dismiss MacGillivary from this case, with prejudice, and the case will proceed forward without him, unless Plaintiff seeks leave to amend to add his estate to this case as described herein. A separate implementing Order follows.
Dated: May 6, 2020 /s/ Stephanie A. Gallagher
United States District Judge
Notes
[1] Plaintiff gave the BPD & MCC notice of his claims on or about May 8, 2019. ECF 5, ¶ 44.
[2] The BPD does not contest that Plaintiff suffered a constitutional injury. The BPD does argue, in a footnote, that Count III, entitled “42 U.S.C. § 1983, Detention without Probable Cause,” is time-barred. ECF 29-1 at 2 n.1. The BPD is not named as a Defendant in Count III, see ECF 5, ¶¶ 108-13, and the Officer Defendants (except for MacGillivary) have answered the claim, ECF 28, ¶¶ 108-13. Additionally, there are three other § 1983 claims against the Officer Defendants. ECF 5, ¶¶ 93-107, 114-18. Thus, the Court will not consider the BPD’s statute of limitations argument.
[3] The BPD takes issue with considering any instance of alleged evidence suppression occurring after Plaintiff’s conviction, as well as the one instance of evidence suppression that Plaintiff alleges occurred in 1968. ECF 29-1 at 11. At the motion to dismiss stage, however, it is reasonable to infer that the three investigations leading to the convictions in 1988 occurred at around the same time as the investigation leading to Plaintiff’s arrest. The Court need not decide
[4] Notably, the other Officer Defendants have not demonstrated, nor is the Court convinced, that they have standing to oppose Plaintiff’s requests for appointing a personal representative and for an extension of time to serve MacGillivary. In any event, the rulings the Court makes herein are based on solely on its independent analysis of the contentions made by Plaintiff in his motions, and not on any of the Officer Defendants’ arguments in opposition.
[5] The parties address an apparent statute of limitations issue arising with Plaintiff’s claim against MacGillivary’s estate. Maryland law generally provides that a claim against a decedent, “whether due or to become due, absolute or contingent, . . . is forever barred against the estate, the personal representative, and the heirs and legatees, unless presented within the earlier of” (1) six months after the decedent’s death, or (2) two months after the personal representative notifies the creditor of the decedent’s death. Md. Code Ann., Est. & Trusts § 8-103(a) (West 2019). Plainly, since MacGillivary passed in 1996, Plaintiff’s claim would be time barred under that provision. Plaintiff asserts, however, that his claim is timely under section 8-104(e)(1). That section provides that “[i]f the decedent was covered by a liability insurance policy which at the time the action is instituted provides insurance coverage for the occurrence,” then Maryland’s general statute of limitations provisions, not the limited one prescribed in section 8-103, control. MacGillivary’s “insurance policy,” Plaintiff argues, is the BPD’s statutorily required indemnification duty, see Md. Code Ann., Cts. & Jud. Proc. § 5-303(b)(1). Despite the patent differences between an insurance policy and a statutory duty of indemnification, the Court need not definitively reach the issue at this stage, especially considering that the Officer Defendants do not have standing to oppose Plaintiff’s instant request, as noted above.
[6] The
Moul
court,
sua sponte
, considered the plaintiff’s Rule 25(a)(1) motion as a motion to
amend his complaint, pursuant to Rule 15.
See