Reid v. Munyan et al

Filing 19

MEMORANDUM. Signed by Judge William M Nickerson on 9/18/12. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

MARIE REID

v.

OFFICER DAVID MUNYAN et al.

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Civil Action No. WMN-12-1345

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MEMORANDUM
Before the Court is a motion to dismiss filed by
Defendants Baltimore Police Department (BPD), the Commissioner
of the BPD (the Commissioner), and the Commanding Officers of
the Administration and Operations Bureaus of the BPD (the
Commanding Officers) (collectively, the BPD Defendants).
No. 12.

The motion is fully briefed.

ECF

Upon a review of the

pleadings, the argument of counsel, and the applicable case law,
the Court determines that no hearing is necessary, Local Rule
105.6, and that the motion should be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
This suit revolves around claims of the use of excessive
force and false arrest.
Baltimore City.
the BPD.

Plaintiff Marie Reid is a resident of

Defendant David Munyon is a police officer in

Plaintiff alleges that on or about April 11, 2009, she

was leaving her apartment building when she was approached by

her husband, Murray Reid, and Officer Munyan.

Plaintiff avers

that Officer Munyan was at the scene at the request of Mr. Reid.1
Officer Munyan demanded that Plaintiff return to her apartment
and allow Munyan and her husband to enter the residence.
Plaintiff alleges in the Amended Complaint that she began
to comply with Munyan’s request but soon realized that the
residence was locked and that she did not have her key.

Munyan

then became angry, insisted that she did have a key, and
threatened to kick in the door.

He also threatened to arrest

her if she did not comply and unlock the door.

While Plaintiff

was trying to call her sister-in-law to retrieve a key, Munyan
suddenly ran up to her, grabbed her hands and arms, forced them
painfully behind her back, and swept her off her feet by using
his leg to trip and tackle her.

As a result, Plaintiff was

thrown face first to the sidewalk and suffered a laceration on
her face and facial bone fractures.

Plaintiff was placed under

arrest and eventually charged with assaulting Munyan and Mr.
Reid.
Alleging that she suffered permanent scarring on her face
and other physical and emotional injuries, Plaintiff filed suit
in the Circuit Court for Baltimore City on or about January 23,

1

In an Application for Statement of Charges that Plaintiff
submitted with her Opposition, Munyan explains that Mr. Reid had
requested a police escort into his apartment so that he could
collect his belongings. ECF No. 14-3 at 2.
2

2012, against Munyan and the BPD.

Plaintiff subsequently filed

an Amended Complaint which added the Commissioner and Commanding
Officers as defendants.

In addition to various common law and

state and federal constitutional tort claims against Munyan, the
Amended Complaint asserts the following claims:
Count IX – “Liability of Baltimore Police Department
Under the Doctrine of Respondeat Superior;”
Count X – “Liability of Baltimore Police Department
Due to the Pattern and Practices akin to Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 [] (1978) and
applied to the State of Maryland by Prince George’s
County v. Longtin [19 A.3d 859 (Md. 2011)];”
Count XII – Violation of 42 U.S.C § 1983 Against [the
BPD Defendants] for Inadequate Training;” and
Count XIII – Violation of 42 U.S.C. § 1983 against
[the BPD Defendants] – Monell Claim.”
Defendants removed the action to this Court on May 5, 2012.
Defendant Munyan subsequently filed an Answer to the Amended
Complaint.

The BPD Defendants, however, filed the instant

motion seeking dismissal of all of the claims asserted against
them.
II. LEGAL STANDARD
A claim must be dismissed if the allegations in the
complaint do not include enough facts to render that claim to
relief “plausible on its face.”
U.S. 544, 570 (2007).

Bell Atl. Corp. v. Twombly, 550

Under the plausibility standard, a

complaint must contain “more than labels and conclusions” or a
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“formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555.

To survive a Rule 12(b)(6) motion,

the legal framework of the complaint must be supported by
factual allegations that “raise a right to relief above the
speculative level.”

Twombly, 550 U.S. at 555.

The Supreme

Court has explained that “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements,
do not suffice” to plead a claim.

Ashcroft v. Iqbal, 556 U.S.

662, 678.
The plausibility standard requires that the pleader show
more than a sheer possibility of success, although it does not
impose a “probability requirement.”

Twombly, 550 U.S. at 556.

Instead, “[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 663.

Thus, a court

must “draw on its judicial experience and common sense” to
determine whether the pleader has stated a plausible claim for
relief.

Id. at 664; see also Brockington v. Boykins, 637 F.3d

503, 505–06 (4th Cir. 2011).
III. DISCUSSION
As an initial observation, the Court notes that Plaintiff
somewhat misrepresents or confuses the applicable legal
standard, the scope of the BPD Defendants’ motion, and the facts
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that she has offered into the record.

As to the legal standard,

Plaintiff relies exclusively on case law that predates the
Supreme Court’s decisions in Twombly and Iqbal and that Court’s
exposition of the plausibility standard in those opinions.
ECF No. 14-1 at 7-8.

See

As to the scope of the BPD Defendants’

motion, Plaintiff suggests that they have moved to dismiss Count
XI of the Amended Complaint, see id. at 7, which they have not.
Count XI is asserted against Munyan only.
As to facts surrounding Plaintiff’s claims, Plaintiff finds
great significance in what she views as an “obvious
contradiction” in the sworn “Application for Statement of
Charges” prepared by Munyan.

ECF No. 14-1 at 9.

She states

that Munyan describes Plaintiff’s “large laceration and heavy
bleeding” that required her to go to the hospital before being
booked but then states that Plaintiff “had no visible injuries.”
Id.

From this “obvious contradiction,” Plaintiff argues that

Munyan’s “apparent indifference to consistency is evidence of a
distinct methodology which reflects nonchalance and reckless
indifference.”

Id.

What Munyan stated in the Application for

Statement of Charges, however, was that “Mr. Reid had no visible
injuries.”

ECF No. 14-3 at 3 (emphasis added).

Thus, there was

no contradiction in Munyan’s report, obvious or otherwise.
Plaintiff also somewhat misrepresents or confuses the
nature of her own pleading.

Plaintiff entitles one of the
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Counts in the Amended Complaint, “Liability of Baltimore Police
Department Under the Doctrine of Respondeat Superior.”
7 at 14.

ECF No.

In discussing her respondeat superior claim against

the BPD, she suggests that “it can be debated whether the
Defendant BPD asserts correctly that there is no right to a
request for respondeat superior in a 42 U.S.C § 1983 action.”
Id.

So while it appears that she might be trying to assert

respondeat superior liability against the BPD under § 1983, in
the very next sentence, Plaintiff declares, “[t]he Defendant is
not being pursued under 42 U.S.C. § 1983 for its respondeat
superior obligations.”

Id.

That confusion aside, whether

Plaintiff is or is not attempting to impose § 1983 liability on
the BPD under a respondeat superior theory, it is well and long
established that there is no respondeat superior liability under
§ 1983.

Monell v. Dept. of Social Servs. 436 U.S. 658, 694

(1978).

To the extent that Plaintiff is seeking respondeat

superior liability on the BPD for the state torts allegedly
committed by Munyan, the BPD has long been recognized “as an
agency of the State and therefore enjoys the common law
sovereign immunity from tort liability of a State agency.”
Baltimore Police Dep’t v. Cherkes, 780 A.2d 410, 428 (Md. Ct.
Spec. App. 2001).

Count IX will be dismissed.

While there is no respondeat superior liability under §
1983, there could be liability on the part of the BPD Defendants
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under § 1983 where the constitutionally offensive acts of its
officer were taken “in furtherance of some municipal ‘policy or
custom,’”

Milligan v. City of Newport News, 743 F.2d 227, 229

(4th Cir. 1984), or resulted from inadequate police training.
City of Canton v. Harris, 489 U.S. 378, 388 (1989).

Plaintiff

attempts to assert claims under both “policy or custom” and
“inadequate training” theories.

The BPD Defendants point out,

however, that Plaintiff has alleged no facts in support of the
existence of any policy or custom or inadequate training.

The

Complaint details a single incident of misconduct and a single
incident alone establishes neither a policy or custom, City of
Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985), nor a claim for
inadequate training.

Doe v. Broderick, 225 F.3d 440, 456 (4th

Cir. 2000).
In addition to the “obvious contradiction” discussed above,
Plaintiff attempts to rescue her § 1983 claims with another
statement in Munyan’s Application for Statement of Charges,
i.e., his representation that he used what he described as a
“departmentally trained arrest and control technique” to
restrain Plaintiff.

Am. Compl. ¶ 16.

Plaintiff suggests that

his description of this technique reflects “that it is
departmental policy to injure individuals while detaining them
notwithstanding the alleged infraction.”

ECF No. 14-1 at 9.

That is not a reasonable inference from that statement.
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The Application authored by Munyan and submitted by
Plaintiff as an exhibit states that Munyan observed Plaintiff
punch her husband twice.

Munyan then told Plaintiff that she

was under arrest for assault.

According to Munyan, as he

attempted to effect that arrest, Plaintiff attempted to punch
him.

At that point, Munyan states that he employed the

technique that he was trained to use to restrain one resisting
arrest.
Because this is a motion to dismiss, the Court must accept
that the incident occurred as described in the Amended Complaint
and not as described by Munyan in the Application for Statement
of Charges.

Nevertheless, Plaintiff cannot convert a statement

made by Munyan that he was trained to use a particular technique
to restrain one resisting arrest into an admission that it is
departmental policy to injure individuals while detaining them
regardless of their alleged infraction.

That is not what he

said and that cannot be inferred from what he said.
Plaintiff also points to the BPD’s General Order K-15 (G.O.
K-15) on the “Use of Force” as evidence of an improper policy or
custom.

This General Order, which Plaintiff also attaches to

her opposition, states that the “‘use of deadly and less than
deadly force, including strikes with fists or hands, shall
conform with the methods, tactics and guidelines adopted by the
Department.’”

ECF No. 14-1 (quoting G.O. K-15 at 1).
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The

General Order states further that “‘any use of force must be
reasonable and no more than necessary to effect a lawful
purpose.’”

Id.

Furthermore, “‘if you are resisted, you may

repel force with force, using only such force as is necessary.’”
Id. (emphasis in G.O. K-15).
Plaintiff suggests that this “terminology is vague and
confusing and fails to provide proper education and guidance to
a member of agency as to when and how force is applicable or
acceptable.”

ECF No. 14-1 at 10.

or confusing in this language.

The Court finds nothing vague

The General Order states clearly

that the use of force must be reasonable and restrained.
Whether Munyan followed this General Order is a legitimate
subject of inquiry in litigating the claims against Munyan, but
there is nothing in the order that points to an improper custom
or policy of the BPD.
Finally, Plaintiff makes the sweeping accusation that the
“wrongful arrest and detention, denial of right to counsel, use
of unnecessary force, including the use of improper arrest
techniques including unreasonable force on an unarmed woman or
improper and excessive use of force in arrests and other rights
occurs so frequently that it has become an accepted manner by
the Baltimore Police Department.”

Am. Compl. ¶ 71.

There are

no facts, however, to support this sweeping accusation and, as
the Supreme Court has noted, "[t]hreadbare recitals of the
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elements of a cause of action, supported by mere conclusory
statements, do not suffice."
678 (2009).

Ashcroft v. Iqbal, 556 U.S. 662,

Accordingly, the Court will grant the BPD

Defendants’ motion to dismiss as to Plaintiff’s § 1983
inadequate training claim (Count XII) and custom or policy claim
(Count XIII).
Count X is a near identical claim under Article 24 of the
Maryland Declaration of Rights as Count XIII under § 1983.
could be dismissed for the same reason.

It

In addition, Count X

should be dismissed because, as noted above, the BPD enjoys the
common law sovereign immunity from tort liability of a State
agency.

Cherkes, 780 A.2d at 428.

While the Maryland Court of

Appeals held in Prince George’s County v. Longtin, 19 A.3d 859
(Md. 2011) that pattern and practice claims can be brought
against local governments under the Maryland Declaration of
Rights, “the Longtin court neither stated nor intimated that
plaintiffs could institute pattern or practice claims against
state government agencies.”

Rosa v. Bd. of Educ. of Charles

County, Md., Civ. No. AW-11-2873, 2012 WL 3715331 at 10 (D. Md.
Aug. 27, 2012).

As this Court recently observed, it is

“exceedingly unlikely that the Court of Appeals of Maryland
would have ushered in such a radical change in legal landscape
sub silentio.”

Id.

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For all these reasons, the Court will grant the BPD
Defendants’ motion in its entirety.2

A separate order will

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

DATED: September 18, 2012

2

Plaintiff requests, if the Court finds the Amended Complaint
insufficient, that she be permitted to file an amended pleading.
The Court notes that Plaintiff has already filed an amended
complaint in response to Defendants’ first motion to dismiss.
The Court is skeptical that further amendment will lead to a
different result but will not foreclose that possibility at this
time. Counsel for Plaintiff should be mindful, however, of
their obligations under Rule 11 of the Federal Rules of Civil
Procedure.
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