Santos v. Frederick County Board of Commissioners et al

Filing 162

MEMORANDUM AND ORDER granting in part and denying in part 157 Motion to Dismiss Third Amended Complaint or, in the Alternative, for Summary Judgment. Signed by Judge William M Nickerson on 6/16/2016. (nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ROXANA ORELLANA SANTOS

*
*
*
*
*
*
*

v.
FREDERICK COUNTY BOARD OF
COMMISSIONERS et al.

*

*

*

*

*

*

*

*

Civil Action No. WMN-09-2978

*

*

*

*

*

*

*

*

MEMORANDUM AND ORDER
Before the Court is Defendants’ Motion to Dismiss Third
Amended Complaint or, in the Alternative, for Summary Judgment
and Motion to Strike.
briefed.

ECF No. 157.

The motion is fully

Upon review of the parties’ submissions and the

applicable law, the Court determines that no hearing is
necessary, Local Rule 105.6, and that the motion will be granted
in part and denied in part.
This action relates to an incident that occurred more than
seven years ago, on October 7, 2008, in Frederick, Maryland.
Aspects of Plaintiff’s claims have been addressed by several
decisions of this Court, the case was appealed to the Fourth
Circuit Court of Appeals, and now has been remanded on a single
narrow issue.

Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d

451 (4th Cir. 2013).1

1

Because the factual and procedural

The case has also been assigned, in turn, to three different
judges of this Court: first to Judge Benson Legg and then, upon

background of this action has been detailed in those previous
opinions of this Court and by the Fourth Circuit, and because
this Court finds that additional discovery is needed before the
merits of the pending motion can be fully resolved, that
background will not be repeated here in any significant detail.
The factual and procedural background relevant to the Court’s
finding is as follows.
Plaintiff is a native of El Salvador and, on the day in
question, was sitting on a curb eating her lunch behind her
place of employment.

She was approached by two deputies of the

Frederick County Sheriff’s Office (FCSO), Deputies Jeffrey
Openshaw and Kevin Lynch (the Deputies), who detained her and
then arrested her after learning that she had an outstanding
civil warrant for removal issued by Immigration and Customs
Enforcement (ICE).

She was transferred to a Maryland detention

center where she was later turned over to ICE.

After being

detained by ICE for a little over a month, she was released on
supervised release on November 13, 2008.
On November 10, 2009, Plaintiff filed this action under 42
U.S.C. § 1983 against the Deputies, Frederick County Sheriff
Charles Jenkins, the Frederick County Board of Commissioners
(Board), and several individuals from ICE and the Department of
his retirement, to Judge William Quarles and then, upon his
retirement, to the undersigned.
2

Homeland Security.

Plaintiff asserted that the Deputies

violated her Fourth Amendment right to be free from unreasonable
seizures and violated the Fourteenth Amendment by targeting her
because of her perceived race, ethnicity, or national origin.
The Complaint also included allegations concerning Sheriff
Jenkins’s anti-immigrant rhetoric and asserting that, during
Jenkins’s tenure as sheriff, Frederick County devoted an
increasingly greater share of its resources to the enforcement
of federal immigration laws.

Specifically, Plaintiff noted that

the FCSO entered into a Section 287(g)2 Memorandum of Agreement
(287(g) MOA) with ICE under which certain deputy sheriffs were
permitted to carry out certain limited functions of federal
immigration officers.
All of the Defendants moved to dismiss the original
complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.

On August 25, 2010, Judge Legg granted the motion,

concluding that the Complaint was alleging that the Deputies
were acting under color of federal and not state law and,
therefore, that Plaintiff’s suit should have been brought as a
Bivens action,3 and not as an action under § 1983.

ECF No. 50.

2

The 287(g) program was authorized by Section 287(g) of the
Immigration and Nationality Act, 8 U.S.C. § 1357(g).
3

Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
3

Plaintiff was given leave to conduct discovery to determine
whether Defendants were acting under color of federal law or
state law, after which Plaintiff would be permitted to file an
amended complaint.
In its initial Motion to Dismiss, the Board also requested,
in the alternative, that the discovery and resolution of the
merits of the claims against the Board be bifurcated from the
claims against the individual defendants.

In a telephone

conference held on February 4, 2011, which was memorialized in a
Letter Order issued that same date, ECF No. 66, Judge Legg
granted the request for bifurcation, concluding that discovery
and anticipated dispositive motions would be initially limited
to claims against the individual defendants.

Thus, only after

liability of the individual defendants was determined would
discovery on the claims against the Board be permitted.

Judge

Legg also held that all discovery on the issue of damages would
be deferred.
Plaintiff filed her Second Amended Complaint4 on February
18, 2011, ECF No. 75, which removed the claims against the
federal defendants, deleted some of the allegations related to
the 287(g) MOA, but was again brought under § 1983.

4

After a

Plaintiff had previously amended the Complaint to identify
Deputy Lynch as the second deputy involved in her arrest. First
Am. Compl., ECF No. 12. He had previously been identified as
John Doe.
4

period of limited discovery, Defendants moved for summary
judgment on the claims against the individual defendants.
No. 84.

ECF

This Court granted the motion, concluding that the

Deputies violated neither Plaintiff’s Fourth Amendment rights
nor the Equal Protection Clause of the Fourteenth Amendment.
Santos v. Frederick Cty. Bd. of Comm’rs, 884 F. Supp. 2d 420,
428-30 (D. Md. 2012).

Finding no violation on the part of the

Deputies, the Court also dismissed the claims against Sheriff
Jenkins and the Board.

Id. at 432.

Plaintiff moved for reconsideration, citing a number of
recent federal court decisions holding that state and local
governments lack inherent authority to enforce civil federal
immigration law.

ECF No. 101.

Judge Legg denied Plaintiff’s

motion, observing that even if those decisions represented a
growing consensus, the Deputies would still be entitled to
qualified immunity.

Plaintiff filed a timely appeal.5

On appeal, the Fourth Circuit concluded that the Deputies
did violate Plaintiff’s Fourth Amendment rights when they
detained and arrested her based solely on an outstanding federal
civil immigration warrant.

Santos, 725 F.3d at 465.

Nevertheless, the Fourth Circuit affirmed the dismissal of the
individual capacity claims against the Deputies based on
5

Plaintiff did not appeal this Court’s decision as to her
Fourteenth Amendment Equal Protection claims. See Santos, 725
F.3d at 459 n.2.
5

qualified immunity “because the right at issue was not clearly
established at the time of the encounter.”

Id. at 469.

The

court, however, concluded that this Court erred in dismissing
the claims against the Board because qualified immunity does not
extend to municipal defendants.

Id. at 470.

In addition,

because “qualified immunity from suit under Section 1983 does
not extend to municipal defendants or government employees sued
in their official capacity,” id., the court held it was also
error to have dismissed the official capacity claims against the
Deputies and Sheriff Jenkins.
Having (erroneously) determined that the deputies did
not violate Santos's constitutional rights, the
district court did not have occasion to address
whether the municipal defendants were “responsible”
for the deputies' conduct. Therefore, on remand, the
district court should determine whether the deputies'
unconstitutional actions are attributable to an
official policy or custom of the county or the actions
of a final county policymaker.
Id.
When the case returned to this Court on remand, Plaintiff
argued in her status report that discovery was necessary to
develop the factual record in support of her municipal liability
claim because, under this Court’s bifurcation order, discovery
had, thus far, been limited to the claims against the individual
defendants.

ECF No. 130.

She also stated that she might seek

leave to amend her complaint.

Defendants suggested in their

status report that Plaintiff’s municipal liability claims “are
6

subject to decision as a matter of law or on the basis of the
significant discovery that already has taken place.”
129.

ECF No.

Defendants expressed an intent to file a “preliminary

motion to dismiss or, in the alternative, for summary judgment,”
and the Court approved that request.

ECF No. 131.

Defendants filed their preliminary motion on December 16,
2014.

ECF No. 132.

Plaintiff opposed that motion, ECF No. 137,

but also sought leave to file a Third Amended Complaint.
No. 136.

ECF

In opposing Plaintiff’s motion for leave to amend,

Defendants argued that her request was untimely, that they would
be prejudiced by this late amendment, and that amendment would
be futile.

ECF No. 140.

After those motions were fully

briefed, Judge Quarles issued a Memorandum and Order on August
26, 2015, granting in part and denying in part Plaintiff’s
motion to amend and denying the motion to dismiss or for summary
judgment as moot.

ECF Nos. 148, 149.

In granting, in part, Plaintiff’s motion to amend, Judge
Quarles found that Plaintiff had demonstrated good cause for her
delay in amending the complaint in that Judge Legg’s bifurcation
order had foreclosed the possibility of amending her municipal
liability claims any sooner.

ECF No. 148 at 14.

He also

rejected Defendants’ assertion that they would be prejudiced by
the “very burdensome” additional discovery that they argued
would be needed concerning Plaintiff’s “new allegations” that go
7

beyond the events of October 7, 2008.
140 at 15-16).

Id. at 16 (citing ECF No.

Judge Quarles observed that the new allegations

about which Defendants complained relate to events that were
necessarily “‘separate in time’” from the date of Plaintiff’s
arrest because these allegations deal more broadly with the
implementation of the 287(g) program.
No. 140 at 15).

Id. at 17-18 (quoting ECF

Judge Quarles opined that the Municipal

Defendants had notice that the municipal liability claims would
be litigated if Plaintiff proved that the Deputies had violated
her constitutional rights and, while bifurcation delayed
discovery on those claims, it did not foreclose that discovery.
Id. at 18-19.

Finally, Judge Quarles held that, at least as to

Plaintiff’s Fourth Amendment claim against the Municipal
Defendants, amendment would not be futile.

Id. at 24.6

Judge

Quarles then ordered Plaintiff to file a perfected Third Amended
Complaint which she did on September 25, 2015.

ECF No. 150.

The Third Amended Complaint asserts four claims.

Count One

asserts a claim under § 1983 for “Unlawful Seizure” in violation
of the Fourth and Fourteenth Amendments and is brought against
the Deputies in their individual and official capacities.

Count

Two asserts a claim under § 1983 for “Unlawful Arrest” in

6

Judge Quarles did hold it would be futile for Plaintiff to
attempt to relitigate her Fourteenth Amendment Equal Protection
claims as they were abandoned by Plaintiff’s failure to appeal
Judge Legg’s ruling dismissing those claims.
8

violation of the Fourth Amendment and is also brought against
the Deputies in their individual and official capacities.

Count

Three is a claim under § 1983 for “Personal Supervisory
Liability” against Sheriff Jenkins in his individual and
official capacities.

Count Four asserts a Monell7 “Entity

Liability” claim against the Board.
In its motion to dismiss, or for summary judgment, and
motion to strike, Defendants raise a number of challenges to the
Third Amended Complaint, several of which can be dealt with in
short order.

First, Defendants suggest that by reinserting the

allegation that the Deputies were acting “under the guise of the
287(g) program” - an allegation that was present in the original
Complaint but eliminated from the Second Amended Complaint Plaintiff is again alleging that the Deputies were acting under
color of federal law.

Pointing to Judge Legg’s ruling on the

first motion to dismiss, Defendants argue that Plaintiff cannot
bring a § 1983 action, but only a Bivens action.

Plaintiff

responds by emphasizing that she is not alleging that the
Deputies were actually participating in the 287(g) program, but
only acting “under the guise” of such a program.

The Court

concludes that Plaintiff’s claims are properly brought under §
1983.

See Santos, 725 F.3d at 463 (rejecting similar arguments

7

Monell v. New York City Dept. of Social Serv., 436 U.S. 658
(1978).
9

by Defendants and concluding that Plaintiff properly brought a §
1983 claim based upon her averment that the Deputies were not
participating in the 287(g) program).
Defendants next argue that the individual capacity claims
against the Deputies must be dismissed based upon the Fourth
Circuit’s ruling that they are entitled to qualified immunity.
Plaintiff concedes as much.

ECF No. 158 at 15.

Defendants also

argue that, while the individual capacity claims against Sheriff
Jenkins were not before the Fourth Circuit, the individual
capacity claims against him should be dismissed as well.
Plaintiff also concedes that issue.

Id. at 18 n.5.

Counts One,

Two, and Three will be dismissed to the extent they purport to
assert individual capacity claims against the Deputies or
Sheriff Jenkins.
Defendants next take issue with Plaintiff’s inclusion in
the Third Amended Complaint of allegations that Defendants
engaged in unconstitutional discrimination on the basis of race
or ethnicity and ask that the Court strike those allegations.
In response to Judge Quarles’ ruling that Plaintiff’s equal
protection claims were not viable, Plaintiff removed those
claims from the perfected Third Amended Complaint8 but many of
the allegations supporting those claims remain.
8

Rule 12(f) of

The caption of Count One and one of the allegations in that
count reference the Fourteenth Amendment. ECF No. 150 at 15;
id. at 16 ¶ 83. Those references will be stricken.
10

the Federal Rules of Civil Procedure permits a court to “strike
from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”

Defendants

acknowledge, however, that “‘before a motion to strike will be
granted the allegations must be both immaterial and
prejudicial.’”

ECF No. 157-1 at 30 (quoting Hare v. Family

Publications Service, Inc., 342 F. Supp. 678, 685 (D. Md.
1972)).

Furthermore, Rule 12(f) motions are generally viewed

with disfavor “because striking a portion of a pleading is a
drastic remedy and because it is often sought by the movant
simply as a dilatory tactic.”

5A A. Charles Alan Wright &

Arthur R. Miller, Federal Practice & Procedure § 1380, 647 (2d
ed. 1990).
The Court will not strike those allegations at this time.
While the Plaintiff’s Equal Protection claims are no longer
viable, the challenged allegations help provide the factual
context for Plaintiff’s unlawful seizure claims.

Plaintiff

alleges that Sheriff Jenkins’ pattern of unlawful arrests and
seizure was the result of his unlawful immigration enforcement
program.

The Fourth Circuit specifically found that the

Deputies “lacked authority to enforce civil immigration law and
violated Santos’s rights under the Fourth Amendment when they
seized her solely on the basis of the outstanding civil ICE

11

warrant.”

Santos, 725 F.3d at 465.9

Thus, Sheriff Jenkins’

alleged anti-immigration policies could provide some critical
background information to place the Deputies’ conduct in
context.
The central issue raised in the pending motion, however, is
whether Sheriff Jenkins is an official of Frederick County or an
official of the State of Maryland.

If a state official is

acting in his official capacity as a state official, he would be
entitled to Eleventh Amendment Immunity.

Will v. Michigan Dep’t

of State Police, 491 U.S. 58, 71 (1989).

In a closely related

argument, Defendants contend that, because Sheriff Jenkins is a
state official, the County cannot be held liable under Monell
for his conduct or that of his deputies.

See Rossignol v.

Voorhaar, 321 F. Supp. 2d 642, 651 (D. Md. 2004) (dismissing
claim against the county premised on actions of the county
sheriff).

In attempting to answer the question on remand, i.e.,

“whether the deputies’ unconstitutional actions are attributable

9

Despite the Fourth Circuit’s clearly stated finding, Defendants
suggest that “[t]here has been no finding of fact, only a
judgment that the Deputies were not entitled to summary
judgment.” ECF No. 157-1 at 45. This Court finds no support
for that position in the Fourth Circuit’s opinion. The Fourth
Circuit noted that the Deputies’ “only basis for detaining
Santos was the civil ICE warrant” and that they violated her
constitutional rights when they seized her on that basis.
Santos, 725 F.3d at 465. The Deputies cannot now, on remand and
years after the event, manufacture some other justification for
their detention of Plaintiff.
12

to an official policy or custom of the county or the actions of
a final county policymaker,” Santos, 725 F.3d at 470, Plaintiff
has focused on Sheriff Jenkins as that potential final county
policymaker.

If, however, Sheriff Jenkins is a state official

and not a county official, he would not be making county policy
and there would be no basis to extend liability to the County
for his conduct.
The Maryland Court of Appeals as well as this Court have
held that, as a general rule, county sheriffs in Maryland are
state officials and not county officials under Maryland law.
See, e.g., Rucker v. Harford Cnty, 558 A.2d 399, 402 (Md. 1989);
Rossignol, 321 F. Supp. 2d at 651.

That rule has not been

universally applied, however, to automatically bar county
liability for the actions of the county sheriff.

In Fether v.

Frederick Cty, No. 12-1674, 2013 WL 1314190, at *7 (D. Md. Mar.
29, 2013), the personal representative of a detainee who
committed suicide while held in the Frederick County Detention
Center alleged that Sheriff Jenkins and Frederick County engaged
in policies, customs and practices that were deliberately
indifferent or in reckless disregard to the health and safety of
detainees.

As here, the defendants argued that dismissal of the

municipal liability claims against Frederick County was
appropriate because Sheriff Jenkins and not Frederick County was

13

responsible for policymaking at the Detention Center and that
Sheriff Jenkins is a state not county official.
In considering whether dismissal was appropriate, Chief
Judge Catherine Blake opined that:
Although the Court of Appeals of Maryland has
concluded that, under Maryland law, sheriffs are state
rather than local government employees, see Rucker v.
Harford Cnty., 558 A.2d 399, 402 (Md. 1989), this does
not end the inquiry for either Frederick County or
Sheriff Jenkins. In Dotson v. Chester, 937 F.2d 920,
924 (4th Cir. 1991), the Fourth Circuit concluded that
“County liability for the Sheriff's operation of the
County Jail depends on whether the Sheriff had final
policymaking authority for the County over the
County.” The court explained that “liability relies
more on final policymaking authority than on the
technical characterization of an official as a state
or county employee.” Id. (citing City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988)). It is the
individual's function — not his or her title — that
matters.
Fether, 2013 WL 1314190, at *7.

Chief Judge Blake concluded

that, “[a]lthough it is a close question, it may be that
notwithstanding Sheriff Jenkins’s status as a state employee,
his actions or inactions could represent Frederick County’s
policies or customs for which Frederick County will be legally
responsible.”

Id.

Similarly, in Durham v. Somerset County, No. 122757, 2013 WL 1755372 (D. Md. Apr. 23, 2013), the undersigned
denied a motion to dismiss Somerset County from a § 1983 action
premised on the conduct of the Somerset County Sheriff.

As

here, defendants argued that, because the sheriff was a state
14

official, he was immune from suit under the Eleventh Amendment
and that, because he was not an employee of the county, the
county could not be held liable for his actions.

Id. at *2.

This Court found that some discovery was necessary before those
arguments could be adequately evaluated and also opined that
those “decisions of this Court categorically holding that county
sheriffs acting in their official capacities are always state
actors may have been wrongly decided.”

Id. at *3 n.3.

Beyond the question of Sheriff Jenkins’s status as a county
or state official, the Court notes that the Third Amended
Complaint also includes allegations about the Board’s role in
the formulation of immigration enforcement policy in the County.
In the memorandum in which Judge Quarles concluded that
Plaintiff’s Fourth Amendment claims would not be futile, he
noted that Plaintiff alleged that “Jenkins updates the Board
‘about federal immigration enforcement by the FCSO’” and
“Jenkins and the Board allegedly created or promulgated a
policy, practice, or custom under which local law enforcement
officials engage in unlawful conduct.”

ECF No. 148 at 5

(quoting and citing ECF No. 136-1 ¶¶ 106, 130-31) (emphasis
added).

Judge Quarles also noted allegations in the proposed

Third Amended Complaint concerning events that occurred after
the filing of this action, including the allegation that the
Board “approved of the actions” of the Deputies and “expressed
15

such approval in public comments and in a [Board] letter in
support and approval of Defendants Jenkins and [the Deputies] a
mere day after the Fourth Circuit Court of Appeals issued its
opinion and judgment.”

Id. (citing ECF No. 136-1 ¶ 74).

Because of Judge Legg’s bifurcation order, the role of the Board
in these policies has not been subject to any meaningful
discovery.10
For all these reasons, the Court finds that Defendants’
motion must be denied as to the municipal liability claims
against the Board and the official capacity claims against
Sheriff Jenkins and the Deputies.

Discovery is permitted to go

forward as to Plaintiff’s municipal liability claim and her
damages.

The parties are requested to meet and confer and

determine if they can agree to an appropriate schedule for
discovery and dispositive motions on these issues and to then
submit a status report to the Court on or before June 24, 2016.
Accordingly, IT IS this 16th day of June, 2016, by the
United States District Court for the District of Maryland,
ORDERED:
1) That Defendants’ Motion to Dismiss Third Amended
Complaint or, in the Alternative, for Summary Judgment and
10

Defendants also argue that, even if there was an actionable
constitutional claim, recoverable damages would be limited to $1
nominal damages. ECF No. 157-1 at 47-50. Judge Legg’s
bifurcation order, however, also delayed any discovery related
to Plaintiff’s damages.
16

Motion to Strike, ECF No. 157, is GRANTED in part and DENIED in
part, in that:
a) The individual capacity claims against Sheriff Jenkins,
Deputy Jeffrey Openshaw and Deputy Kevin Lynch are DISMISSED;
b) Count One is DISMISSED to the extent it purports to
bring a claim under the Fourteenth Amendment of the U.S.
Constitution; and
c) The motion is otherwise DENIED; and
2) The parties shall meet and confer and submit, on or
before June 20, 2016, a proposed scheduling order for the
completion of discovery and filing of dispositive motions
regarding municipal liability and damages; and
3) The Clerk of the Court shall transmit a copy of this
Memorandum and Order to all Counsel of Record.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

17