Bishop et al v Lewis et al

Filing 20

MEMORANDUM. Signed by Judge William M Nickerson on 5/4/11. (bmh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

SYLVONTAE BISHOP et al.

v.

MIKE LEWIS et al.
*

*

*

*

*

*

*

*
*
*
*
*
*
*
*
*

Civil Action No. WMN-10-3640

*

*

*

*

*

*

*

MEMORANDUM
Before the Court are motions to dismiss the Amended
Complaint filed by Defendant Department of Maryland State Police
(MSP), ECF No. 10, and Defendants Mike Lewis and Wicomico County
Sheriff’s Department (WCSD), ECF No. 9.
briefed.

The motions are fully

Upon review of the submissions of the parties and the

applicable case law, the Court determines that no hearing is
necessary (Local Rule 105.6) and that both motions will be
granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Sylvontae Bishop and Vernon Lefridge, Jr. are
African-American.

They alleged that on December 1, 2008, while

traveling on Route 13 through Wicomico County, Maryland,1 on the

1

Plaintiffs’ representations are somewhat confusing as to
exactly where this incident occurred. The Amended Complaint
states that it occurred on “Route 13 near Route US 95.” Am.
Compl., Facts Common to All Counts ¶ 1. Throughout the
oppositions to Defendants’ motions, Plaintiffs allege a pattern

way to their home state of Connecticut, they were stopped by law
enforcement personnel from WCSD and MSP.

Plaintiffs were told

that they were stopped for a defective brake light but were
ordered out of their car and subjected to several searches.

The

law enforcement officers proceeded to search the vehicle as
well, despite Plaintiffs’ refusal to consent to such a search.
Plaintiffs were repeatedly questioned about illegal drugs and
weapons and were forced to wait in the cold while a K-9 unit was
brought out to search their vehicle.

Plaintiffs further allege

that Defendants “have a history of engaging in a pattern and
practice of profiling, targeting, harassing and stopping African
American drivers in disproportionate numbers because of their
race.”

Am. Compl., Facts Common to All Counts ¶ 27.2

Based upon these allegations, Plaintiffs asserted two
claims in their original complaint: the violation the 1866 Civil
Rights Act, 42 U.S.C. § 1981 (Count One); and the violation of
and practice of stopping African American drivers on “US I-95 in
Wicomico County.” ECF No. 13 at 5; see also ECF No. 14 at 2.
No portion of Interstate 95, however, goes through Wicomico
County. In fact, the portion of Wicomico County that is closest
to any portion of Interstate 95 is almost 100 miles distant.
2

Unfortunately, the system employed by Plaintiffs’ counsel for
numbering the paragraphs in the Amended Complaint is not
particularly helpful. The paragraphs in the introductory
sections are not numbered at all but then, for each of the later
sections, the numbering begins again with “1.” The Court will
attempt to direct the reader to the proper portion of the
Amended Complaint by the use of a combination of headings and
paragraph numbers.
2

their constitutional rights under the Fourth, Thirteenth, and
Fourteenth Amendments of the United States, brought under 42
U.S.C. § 1983 (Count Two).

The original complaint named as

Defendants Sheriff Mike Lewis, in his individual and official
capacities, and MSP.

In their Amended Complaint, Plaintiffs

added a third cause of action under Title VI3 of the 1964 Civil
Rights Act, § 601, 42 U.S.C. § 2000d et seq., and the additional
allegation that “Defendants Maryland State Police Department,
and, the Sheriffs [sic] Department of Wicomico County receives
[sic] funds from the Federal government pursuant to Title VI of
the 1964 Civil Rights Act to maintain Federal and state highways in
the State of Maryland including its law enforcement employees.”
Am. Compl., Facts Common to All Counts ¶ 29.

The Amended Complaint

also added “Wicomico County Sheriff’s Department” as a Defendant.
II. LEGAL STANDARD

The standard for a Rule 12(b)(6) motion to dismiss should
be well known.

To survive such a motion, a complaint must

“contain sufficient factual matter . . . to ‘state a claim to
relief that is plausible on its face.’”

Ashcroft v. Iqbal, ---

U.S. ----, ----, 129 S. Ct. 1937, 1949 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“A claim

has facial plausibility when the plaintiff pleads factual
3

Plaintiff mistakenly identified this claim as one brought under
Title IX.
3

content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
at 556.

Id.

In considering such a motion, the court is required to

accept as true all well-pled allegations in the complaint, and
to construe the facts and reasonable inferences from those facts
in the light most favorable to the plaintiff.

Ibarra v. United

States, 120 F.3d 472, 474 (4th Cir. 1997).
III. DISCUSSION
A. Claims Against Wicomico County Sheriff’s Department
WCSD moved to dismiss the claims against it on the ground that
it is not a legal entity capable of being sued.
this point.

ECF No. 13 at 7.

Plaintiffs concede

Accordingly, this Defendant will be

dismissed.
B. Claims Against Maryland State Police
MSP has moved to dismiss the claims against it solely on the
ground of Eleventh Amendment immunity.4
is not subject to suit under § 1983.

Plaintiffs concede that MSP

ECF No. 14 at 3.

Plaintiffs,

however, challenge the applicability of Eleventh Amendment immunity
to their § 1981 and Title VI claims.

The Eleventh Amendment has long been held to bar lawsuits
brought by private parties against states and their agencies and

4

In its motion, MSP only specifically identified the § 1981 and
§ 1983 claims as claims that the Eleventh Amendment would bar.
In its reply brief, MSP extends the argument to the Title VI
claim as well.
4

departments in federal courts unless the state expressly waived
its sovereign immunity and consented to suit.

Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).

Defendant

MSP is correct that Maryland has not waived its immunity as to §
1983, § 1981, or Title VI claims.

State sovereign immunity,

however, can also be abrogated by the United State Congress but,
to do so, Congress must make that intention “unmistakably clear
in the language of the statute.”

Hoffman v. Connecticut Dep’t

of Income Maintenance, 492 U.S. 96, 101 (1989).

Congress has

not overridden the States’ immunity with respect to Plaintiffs’
claims under § 1981 or § 1983.

Freeman v. Michigan Dept. of

State, 808 F.2d 1174 (6th Cir. 1987) (finding that Eleventh
Amendment bars § 1981 action against a state because Congress
did not intend to establish state liability when it enacted §
1981); Quern v. Jordan, 440 U.S. 332, 343 (1979) (observing that
Congress has not overridden States’ immunity in § 1983 cases).
Therefore, those claims will be dismissed on the ground of
Eleventh Amendment immunity.
As to the Title VI claims, however, Congress has abrogated
the States’ immunity.

In passing the Civil Rights Remedies

Equalization Act in 1986, Congress expressly conditioned the
receipt of federal funds on a waiver of Eleventh Amendment

5

immunity under certain enumerated federal anti-discrimination
statutes, including Title VI.

That statute provides:

A State shall not be immune under the Eleventh
Amendment of the Constitution of the United States
from suit in Federal court for a violation of section
504 of the Rehabilitation Act of 1973, title IX of the
Education Amendments of 1972, the Age Discrimination
Act of 1975, title VI of the Civil Rights Act of 1964,
or the provisions of any other Federal statute
prohibiting discrimination by recipients of Federal
financial assistance.
(2) In a suit against a State for a violation of a
statute referred to in paragraph (1), remedies
(including remedies both at law and in equity) are
available for such a violation to the same extent as
such remedies are available for such a violation in
the suit against any public or private entity other
than a State.
42 U.S.C. § 2000d-7 (emphasis added).

Thus, MSP has no Eleventh

Amendment immunity as to Plaintiffs’ Title VI claims.
While MSP has no Eleventh Amendment immunity as to the
Title VI claim, it is not clear that the Amended Complaint
actually states a plausible claim under Title VI.

Title VI of

the Civil Rights Act provides that “[n]o person in the United
States shall, on the ground of race, color, or national origin,
be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity
receiving Federal financial assistance.”

42 U.S.C. § 2000d.

Here, the only mention of the receipt of federal funds is
Plaintiffs’ allegation that “[t]he defendants named herein, the
6

Maryland State Police Department, Wicomico County Sherriff’s
Department and [sic] receive funding from the United States
Department of Transportation for the repair and maintenance of
their highways and federally funded activities to maintain state
and Federal highways.”

Am. Compl., “Jurisdiction.”5

There is no

explanation as to why these law enforcement agencies would be
receiving federal highway maintenance funds.

While the Court at

this stage in the litigation must accept as true Plaintiffs’
allegations, these allegations skirt the line of plausibility.
Given a number of other confusing aspects of the Amended
Complaint, discussed below, the Court deems it prudent to
dismiss the Amended Complaint and permit Plaintiffs to file a
more carefully prepared complaint, should they elect to do so.
III. Claims Against Defendant Mike Lewis
5

This same allegation was repeated two more times in the Amended
Complaint. Am. Compl., “Facts Common to All Counts” ¶ 29
(“Defendants Maryland State Police Department, and, the Sheriffs
[sic] Department of Wicomico County receives [sic] funds from
the Federal government pursuant to Title VI of the 1964 Civil
Rights Act to maintain Federal and state highways in the State
of Maryland including its law enforement [sic] employees making
them liable for ontentional [sic] racial discrimination and for
engaging in policies and practices that cause a disparate impact
on African American citizens who drive upon Federally funded
highways by arresting them because of their race.”); id., Count
Three ¶ 3 (“At the time of the stop without probable cause,
arrest, search, seizure, and harassments of the plaintiffs’
[sic] defendants were engaging in intentional racial
discrimination and enforcing their policies and practices which
have a disparate impact on African American’s [sic] driving on
highways maintained by them while being funded by The Federal
Government, Department Of Transportation.”).
7

Plaintiffs bring claims against Defendant Lewis in his
official capacity as Sheriff of Wicomico County, and in his
personal capacity.

It is well established that a county sheriff

in Maryland is a state official, at least when engaged in law
enforcement duties.

Rossignol v. Voorhaar, 321 F. Supp. 2d 642,

650-51 (D. Md. 2004).

For that reason, official capacity suits

against sheriffs are treated, for Eleventh Amendment purposes,
as suits against the state.

Id.

Thus, Plaintiffs’ § 1981 and §

1983 claims against Lewis in his official capacity are barred by
the Eleventh Amendment and will be dismissed.
As to Plaintiffs’ Title VI claim against Defendant Lewis,
the Court finds that he is not a proper defendant in either his
official or personal capacities.

Title VI liability is premised

on the receipt of federal funds.

Because those funds would be

received by a governmental agency and not by an individual,
courts have uniformly held that “the proper defendant in a Title
VI case is an entity rather than an individual.”

See Mayorga

Santamaria ex rel. Doe Children 1-3 v. Dallas Indep. Sch. Dist.,
Civ. No. 06-692, 2006 WL 3350194 at *48 (N.D. Tex. Nov. 16,
2006) (collecting cases); see also Buchanan v. City of Bolivar,
Tennessee, 99 F.3d 1352, 1356 (6th Cir. 1996) (“Plaintiff's
claim . . . fails because she asserts her claim against Lawson
and Weaver and not against the school, the entity allegedly

8

receiving financial assistance.”).

Accordingly, the Title VI

claim against Defendant Lewis in both his official and
individual capacity will be dismissed.
Turning to Plaintiff’s § 1983 claim against Defendant Lewis
in his personal capacity, Defendant Lewis notes, and Plaintiffs
concede, ECF No. 13 at 6, that there is no allegation that
Defendant Lewis was present at the scene of the alleged traffic
stop.

There is no allegation that Defendant Lewis ordered or

directed this particular traffic stop, nor that he was even
aware that it occurred.

Furthermore, there is no respondeat

superior liability under § 1983 such that Defendant Lewis could
be held liable under that theory for the acts of the police
officers at the scene.

Monell v. New York City Dep’t of Soc.

Servs., 436 U.S. 658, 691 (1978).

Plaintiffs make no argument

to the contrary.
Instead, it appears that Plaintiffs are attempting to
assert a Monell-type claim against Defendant Lewis.
13 at 6-7.

See ECF No.

Under Monell, a municipality can be held liable

under § 1983 if it causes a deprivation of a constitutional
right through an official policy or custom.
690-91.

Monell, 436 U.S. at

“Municipal policy may be found in written ordinances

and regulations, in certain affirmative decisions of individual
policymaking officials, or in certain omissions on the part of

9

policymaking officials that manifest deliberate indifference to
the rights of citizens.”

Carter v. Morris, 164 F.3d 215, 218

(4th Cir. 1999) (citations omitted).

A municipal custom may

also 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.”

Monell, 435 U.S. at 691.

In their opposition, Plaintiffs contend that “Sheriff Lewis
is an authorize policymakers [sic] in this case,” ECF No. 13 at
7, and that his ratification of the decisions of his
subordinates should be “chargable to the municipality, Sheriff’s
Department of Wicomico County.”

Id.

To the extent the Amended

Complaint supports a Monell claim, however, such a claim would
be an official capacity claim.

As such, it would be barred by

the Eleventh Amendment.
Although it is not clear that Plaintiffs are attempting to
raise it, there is a theory of supervisor liability under § 1983
that potentially could reach individuals in their personal
capacities.

In the Fourth Circuit, a claim for supervisory

liability under § 1983 requires the following: (1) “actual or
constructive knowledge of a risk of constitutional injury”; (2)
“deliberate indifference to that risk”; and (3) “an affirmative
causal link between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.”

10

Carter, 164

F.3d at 221.

It is important to note, however, that a

supervisory liability claim cannot rest on the theory of
respondeat superior, rather, liability is premised “on a
recognition that supervisory indifference or tacit authorization
of subordinates' misconduct may be a causative factor in the
constitutional injuries they inflict on those committed to their
Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984).

care.”

To the extent that Plaintiffs are seeking to assert a
claim of supervisory liability under § 1983, the Court finds the
allegations contained in the Amended Complaint insufficient.
Plaintiffs allege broadly, “Defendants [sic] agents, servants
and employees were acting under a policy and custom of
tolerating the conduct of their agents, servants and employees
of harassing, stalking, illegally arresting, and searching the
vehicles of African-Americans for drugs without any probable
cause.”

Am. Compl., Count Two ¶ 4.6

The Court notes this

generalized allegation in the Amended Complaint does not

6

Plaintiffs repeat the general allegation at several other
places in the Amended Complaint. See, e.g., Am. Compl., Facts
Common to All Counts ¶ 27 (“Defendants have a history of
engaging in a pattern and practice of profiling, targeting,
harassing and stopping African American drivers in
disproportionate numbers because of their race while they are
driving on federally funded highways.”); Am. Compl., Count One ¶
6 (“Defendants stopped the plaintiffs as a part of their pattern
and practices of stopping African-American males who drive through
the state of Maryland for purposes of searching for drugs and
criminal activity . . .”).
11

identify what role Defendant Lewis had in forming or supporting
the “pattern and custom.”

After identifying Lewis as the

Sheriff of Wicomico County in their listing of the Parties, Am.
Compl., Parties ¶ 2, Plaintiffs make no further mention of
Defendant Lewis, whatsoever.

Furthermore, the Court would not

necessarily equate a “pattern and custom of tolerating” certain
behavior with “deliberate indifference.”
Plaintiffs attempt to remedy the vagueness of the Amended
Complaint by adding new allegations in their opposition to the
motion to dismiss which are not found in the Amended Complaint.
In the opposition, Plaintiffs allege that Defendant Lewis “has
carried out” and “has officially sanctioned or ordered the use
of the pattern and practice of stopping African-American drivers
because of their race.
ECF No. 13 at 4.

That he, sanctioned such practices.”

Plaintiffs temper those allegations later in

their opposition, however, offering simply that Lewis “was aware
of a pattern and practice of stopping African-American male
drivers” and Plaintiffs then proceed to argue that this
awareness alone makes Lewis liable for a violation of
constitutional rights.

Id. at 5 (emphasis added).

The

opposition further complicates matters in that the alleged
pattern and practice referenced in the opposition relates to
stopping African-American drivers “on US I-95,” which, as

12

mentioned above, goes nowhere near Wicomico County.

See, supra,

n.1.7
As is evident from the above discussion, Plaintiffs’
counsel has exhibited a remarkable lack of care in his filings.
In addition to the confusion as to where this alleged incident
took place, the Court notes that Plaintiffs’ counsel, in his
oppositions to both motions, has captioned this as an action
against “Wisconsin County Sheriff, et al.”

The briefings also

included some sentences, or sentence fragments, that the Court
has yet to definitively decipher.

For example, the first page

of Plaintiff’s Opposition to MSP’s motion contains the
following: “Since the filing of that motion, and English fonts
to be motions to dismiss the original complaint, plaintiffs have
filed an amended complaint pursuant to Federal Rule of Civil
Procedural 15(a.).”8
In light of these questionable causes of action -- poorly
pled and supported by confusing facts and argument -- the Court
determines that the best course of action is to dismiss the
Amended Complaint and permit Plaintiffs’ counsel to file, with
7

In their opposition to Defendant Lewis’ motion, Plaintiffs make
no response, whatsoever, as to the § 1981 claim. To the extent
Plaintiff have not abandoned that claim, it suffers similar
infirmities as Plaintiffs’ § 1983 claim.
8

The Court suspects that counsel employed some form of voice
recognition software or transcription service and never bothered
to actually read what was transcribed.
13

considerably greater care, another amended complaint.

To allow

the case to go forward as framed by the Amended Complaint as it
now stands would only waste the resources of the parties and the
Court.

A separate order will issue.

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

DATED: May 4, 2011.

14