Bailey et al v. Mayor and City Council of Baltimore et al
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 7/3/13. (c/m 7/3/13 mps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VANESSA BAILEY, et al.,
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Plaintiffs,
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v.
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MAYOR AND CITY COUNCIL
OF BALTIMORE, et al.,
Civil Action No. RDB-12-2546
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Defendants.
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MEMORANDUM OPINION
Plaintiffs Hasson Tucker, Vanessa Bailey, Phyllis Quickley and Annette Walker
(collectively “Plaintiffs”), proceeding pro se, initially brought this action against the Mayor and
City Council of Baltimore, Police Commissioner Frederick H. Bealfeld, III and Officer Milton
G. Smith, III (collectively “Defendants”) in the Circuit Court for Baltimore City. Subsequently,
Defendants removed this action before this Court based on federal question jurisdiction pursuant
to 28 U.S.C. §§ 1441, 1331, and 1446. Mr. Tucker filed the Complaint (ECF No. 2) and Ms.
Bailey, Ms. Quickley and Ms. Walker filed three virtually identical letters (Attach. 1, ECF No. 2)
which have been incorporated into the Complaint. Plaintiffs allege that Defendants violated their
constitutional right to be free of unreasonable searches and seizures as protected by the Fourth
Amendment, and incorporated to the states by the Fourteenth Amendment.
Although not
explicitly stated in the Complaint, this Court assumes that Plaintiffs seek relief pursuant to 42
U.S.C. § 1983.
Plaintiffs also appear to claim that Defendants violated Article 24 of the
Maryland Declaration of Rights which protects substantive due process rights. Md. Const. Decl.
of Rts. art. 24. Pending before this Court are Defendants Mayor and City Council of Baltimore
and Police Commissioner Frederick H. Bealefeld, III’s Motions to Dismiss (ECF Nos. 9 & 11).
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Also pending are Plaintiffs’ Motions to Amend (ECF No. 15), Appoint Counsel (ECF No. 17)
and Reissue Summons (ECF No. 14). The parties’ submissions have been reviewed and no
hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow,
Plaintiffs’ Motion to Amend (ECF No. 15) is GRANTED in part and DENIED in part.
Specifically, it is GRANTED as to the dismissal of Plaintiffs’ claims against the Mayor and City
Council of Baltimore and DENIED regarding the addition of the State of Maryland as a party to
this action.
As a result, Defendants Mayor and City Council of Baltimore and Police
Commissioner Frederick H. Bealefeld, III’s Motions to Dismiss (ECF Nos. 9 & 11) are MOOT.
Plaintiffs’ Motions for Reissuance of Summons (ECF No. 14) is DENIED and Plaintiff’s Motion
to Appoint Counsel (ECF No. 17) is DENIED as MOOT.
BACKGROUND
This Court accepts as true the facts alleged in the Plaintiffs’ Complaint.1 See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Moreover, a pro se litigant’s complaint should
not be dismissed unless it appears beyond doubt that the litigant can prove no set of facts in
support of his claim that would entitle him to relief. Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978). Plaintiffs allege that on or about December 20, 2008, law enforcement
officials conducted searches and seizures on Plaintiffs’ residences pursuant to a warrant
signed by Baltimore County Circuit Court Judge Wanda Heard. Id. at ¶¶ 2, 5. Plaintiffs also
allege that the warrant was supported by an affidavit signed by Officer Milton G. Smith, III. Id.
Additionally, Plaintiffs claim that upon executing the warrant, Officer Smith and the other
officers located Mr. Hasson Tucker and his vehicle at Ms. Walker’s residence. Id. at ¶ 3. The
officers allegedly took Mr. Tucker into custody and seized his vehicle. Id. Ms. Walker claims
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Mr. Tucker’s Complaint and the letters filed by the other Plaintiffs do not include numbered paragraphs.
Nevertheless, these documents are treated as if each included consecutively numbered paragraphs.
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that she was Mr. Tucker’s fiancé and Vanessa Bailey and Phyllis Quickley allege that they are
members of Mr. Tucker’s family. Id. at ¶¶ 2, 6. Ms. Bailey, Ms. Quickley and Ms. Walker
allege that Defendants violated their rights under the Fourth Amendment and Article 24 of the
Maryland Declaration of Rights and, although not explicitly stated in the Complaint, this Court
assumes that they seek relief pursuant to 42 U.S.C. §1983. Id. at ¶ 10. Specifically, they argue
that the execution of the searches and seizures “caused [them] irrevocable harm, [and] did injure
[and] interfere with [their] legally protected interest[s].” Id. at ¶ 8. They argue that these
searches and seizures“did invade [their] privacy, peace, effects and papers in [their homes].” Id.
at ¶ 9.
Plaintiffs Hasson Tucker, Vanessa Bailey, Phyllis Quickley and Annette Walker
(collectively “Plaintiffs”), proceeding pro se, initially brought this action against the Mayor and
City Council of Baltimore, Police Commissioner Frederick H. Bealfeld, III and Officer Milton
G. Smith, III (collectively “Defendants”) in the Circuit Court for Baltimore City. Subsequently,
Defendants removed this action before this Court based on federal question jurisdiction pursuant
to 28 U.S.C. §§ 1441, 1331, and 1446.
STANDARD OF REVIEW
A. MOTION TO AMEND
Rule 15(a) of the Federal Rules of Civil Procedure instructs that a court “should freely
give leave [to amend] when justice so requires.” FED. R. CIV. P. 15(a)(2). Accordingly, the
Fourth Circuit has held that “leave to amend a pleading should be denied only when the
amendment would be prejudicial to the opposing party, there has been bad faith on the part of the
moving party, or the amendment would have been futile.” Laber v. Harvey, 438 F.3d 404, 427
(4th Cir. 2006); see also Sciolino v. City of Newport News, 480 F.3d 642, 651 (4th Cir. 2007).
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B. MOTION TO DISMISS
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P.
8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a
complaint if it fails to state a claim upon which relief can be granted; therefore, “the purpose of
Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the
facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006). In ruling on such a motion, this Court is guided by the
Supreme Court’s instructions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009) which “require complaints in civil actions [to] be alleged with greater
specificity than previously was required.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012) (citation omitted). The Twombly Court articulated “[t]wo working principles” courts must
employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at 678.
First, while a court must accept as true all the factual allegations contained in the
complaint, legal conclusions drawn from those facts are not afforded such deference.
Id.
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to plead a claim.). In the context of pro se litigants, however,
pleadings are “to be liberally construed,” and are “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted);
accord Brown v. N.C. Dept. of Corr., 612 F.3d 720, 724 (4th Cir. 2010). Second, even a pro se
complaint must be dismissed if it does not allege “a plausible claim for relief.” Id. at 679; see
also O’Neil v. Ponzi, 394 Fed. App’x 795, 796 (2d Cir. 2010). Under the plausibility standard, a
complaint must contain “more than labels and conclusions” or a “formulaic recitation of the
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elements of a cause of action.”
Twombly, 550 U.S. at 555.
Although the plausibility
requirement does not impose a “probability requirement,” id. at 556, “[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; see
also Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir. 2012) (“A complaint
need not make a case against a defendant or forecast evidence sufficient to prove an element of
the claim. It need only allege facts sufficient to state elements of the claim.”) (emphasis in
original) (internal quotation marks and citation omitted). In short, a court must “draw on its
judicial experience and common sense” to determine whether the pleader has stated a plausible
claim for relief.” Iqbal, 556 U.S. at 664.
ANALYSIS
A. MOTION TO AMEND
Plaintiffs seek to amend their Complaint by (1) dismissing their claims against the Mayor
and City Council of Baltimore and Police Commissioner Frederick H. Bealfeld with prejudice
and (2) adding the State of Maryland as a party to the action.2 Rule 15(a) of the Federal Rules of
Civil Procedure instructs courts to “freely give leave” to a party seeking to amend its pleadings
“when justice so requires.” FED. R. CIV. P. 15(a)(2). The Fourth Circuit has held that justice
requires granting a party leave to amend unless the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the moving party, or the amendment
would have been futile.” Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006); see also Sciolino
v. City of Newport News, 480 F.3d 642, 651 (4th Cir. 2007).
A proposed amendment to a
complaint is futile when it “is clearly insufficient or frivolous on its face.” Johnson v. Oroweat
Foods Co., 785 F.2d 503, 510 (4th Cir. 1986).
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The Amendment is by interlineation.
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In light of Defendants Mayor and City Council of Baltimore and Commissioner
Bealefeld’s Motions to Dismiss, Plaintiffs seeks to dismiss their claims against these Defendants
with prejudice. Accordingly, Plaintiffs’ claims against the Mayor and City Council of Baltimore
and Commissioner Bealfeld are DISMISSED WITH PREJUDICE. Thus, Defendants Mayor and
City Council of Baltimore and Police Commissioner Frederick H. Bealefeld, III’s Motions to
Dismiss are MOOT.
Plaintiffs also seek to add the State of Maryland as a party to this action. Under the
Eleventh Amendment to the United States Constitution, without consent, a state, its agencies and
departments are immune from suits in federal court brought by its citizens or the citizens of
another state. See Penhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984).
While the State of Maryland has waived its sovereign immunity for certain types of cases
brought in State courts, see MD. STATE GOV’T CODE ANN., § 12-202(a), it has not waived its
immunity under the Eleventh Amendment to suits in federal court.
Because the State of
Maryland is immune to suits in federal court, adding it as a party to this action would be futile.
Thus, Plaintiffs’ Motion to Amend is DENIED as to the addition of the State of Maryland as a
party to this action.
B. MOTION FOR REISSUANCE OF SUMMONS
Plaintiffs have filed a Motion for Reissuance of Summons as to Officer Milton G. Smith,
III, the only remaining Defendant in this action. It is well established that a court has broad
inherent power sua sponte to dismiss an action, or part of an action, which is frivolous or
vexatious. See Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362-364 (2d Cir.
2000); Baker v. Director, United States Parole Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990) (per
curiam); Crowley Cutlery Co. v. United States, 849 F.2d 273, 277 (7th Cir. 1988); Brown v.
District Unemployment Compensation Board, 411 F. Supp. 1001 (D.C. 1975).
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Plaintiffs allege that Officer Smith violated their Fourth Amendment rights to be free
from unreasonable searches and seizures. Although not stated in the Complaint, this Court
assumes that Plaintiffs seek relief pursuant to 42 U.S.C. § 1983. Plaintiffs also allege violations
of their rights under Article 24 of the Maryland Declaration of Rights. Article 24 of the
Maryland Declaration of Rights protects persons against unreasonable searches and seizures
effected by law enforcement. See Md. Const. Decl. of Rts. art. 24. Article 24 claims are
construed in pari materia to Fourth Amendment claims. See Pickett v. Sears, Roebuck & Co.,
775 A.2d 1218, 1224 (Md. 2001). Thus, "[t]he standard[ ] for analyzing [a] claim[ ] under [this
article is] the same as for analyzing Fourth Amendment claims." Henry v. Purnell, 652 F.3d
524, 536 (4th Cir. 2011) (citing Randall v. Peaco, 927 A.2d 83, 89 (Md. App. 2007)).
A civil rights action under Section 1983 allows “a party who has been deprived of a
federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 707 (1999). “Section 1983 ‘is not itself a source of substantive
rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’ ”
Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3,
(1979)). To state a claim under Section 1983, a plaintiff must allege that: (1) “the conduct
complained of was committed by a person acting under color of state law; and (2) . . . this
conduct deprived a person of rights, privileges, or immunities secured by the Constitution or
laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535 (1981). Liability is appropriate
under Section 1983 only to remedy violations of federally protected rights.
See Baker v.
McCollan, 443 U.S. at 145-46; Clark v. Link, 855 F.2d 156, 161, 163 (4th Cir. 1988). Because
Plaintiffs are pro se, this Court will construe their Complaint as alleging claims against Officer
Smith in both an individual and an official capacity.
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Alleging individual liability under Section 1983 requires statements showing that the
defendant personally acted to deprive the plaintiff of her rights. See Wright v. Collins, 766 F.2d
841, 850 (4th Cir. 1985). The defendant “must have had personal knowledge of and involvement
in the alleged deprivation of appellant's rights in order to be liable.” Id. “[T]o establish personal
liability in a §1983 action, it is enough to show that the official, acting under color of state law,
caused the deprivation of a federal right”). See Hafer v. Melo, 502 U.S. 21, 25 (1991) (citation
and internal quotation marks omitted). In this case, Plaintiffs have alleged that Officer Smith
was acting under color of law. Attach. 1, ¶10, ECF No. 2. What remains to be determined is
whether they have stated a plausible claim that their rights, privileges or immunities secured by
the Constitution or laws of the United States were violated.
Plaintiffs allege that Officer Smith executed a search and seizure pursuant to an unlawful
warrant. Plaintiffs also allege that Officer Smith lacked probable cause to execute the searches
and seizures. However, Plaintiffs fail to provide any evidence or reasoning regarding either of
these assertions. Legal conclusions are not entitled to judicial deference. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (stating that “courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation’ ”) (citations omitted). Ms. Bailey, Ms. Quickley and
Ms. Walker each merely state that they “personally feel as though [the] ‘search’ violated the
Constitution of the United States Amendment IV . . . and Article 24 of the Maryland Declaration
of Rights.” Attach. 1, ¶ 6, ECF No. 2. Ms. Bailey, Ms. Quickley and Ms. Walker offered
nothing more than bare assertions of legal conclusions when each stated that the search and
seizure “did invade [their] privacy, peace, effects and papers.” Attach. 1, ¶ 9, ECF No. 2. In a
similar fashion, Mr. Tucker alleges, “I feel that Detective Smith’s premature decisions and
conclusion . . . violated my rights under the Fourth Amendment of the Constitution of the United
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States of America and possibly other Constitutional Rights.”
Complaint ¶ 2, ECF No. 2.
Plaintiffs fail to provide more than “labels and conclusions” or “formulaic recitation[s] of the
elements of a cause of action.” Twombly, 550 U.S. at 555. Thus, Plaintiffs fail to state a claim
against Officer Smith in his individual capacity.
To satisfy the pleading standard for official capacity suits, a plaintiff need only “set forth
a plain statement of his claims giving the [official] fair notice of what his claims [were] and the
grounds upon which they [rested].” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.
1999). In an official-capacity suit under § 1983, a plaintiff must establish that the government
entity was the “moving force” behind the deprivation, in that the “policy or custom” of the entity
or official, “played a part in the violation of federal law.” Graham, 473 U.S. at 166. Courts have
found that such a policy or custom may be found in “formal or informal ad hoc ‘policy’ choices
or decisions” made by officials who are authorized to conceive of such policies. Spell v.
McDaniel, 824 F.2d 1380, 1385 (4th Cir. 1987). Plaintiffs do not identify any such policy or
custom. Indeed, Plaintiffs’ Compliant lacks any facts whatsoever concerning how federal law
was violated. As a result, Plaintiffs’ Complaint does not provide Officer Smith with the required
fair notice. Thus, Plaintiffs fail to state a claim against Officer Smith in his official capacity
In sum, Plaintiffs’ Complaint fails to sufficiently allege violations of their rights under
either the Fourth Amendment or Article 24 of the Maryland Declaration of Rights against Officer
Smith. As a result, Plaintiffs’ claims against Officer Smith are DISMISSED WITHOUT
PREJUDICE. Accordingly, Plaintiffs’ Motion for Reissuance of Summons is DENIED.
C. MOTION TO APPOINT COUNSEL
Since all of Plaintiffs’ claims have been dismissed, Plaintiffs’ Motion to Appoint Counsel
is moot. Nevertheless, even if Plaintiffs’ Complaint had sufficiently stated a claim, this Court
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would not grant Plaintiffs’ Motion to Appoint Counsel. The power to appoint counsel under
28 U.S.C. § 1915(e)(1) is a discretionary one, and this Court must determine whether Plaintiffs
present such exceptional circumstances as to warrant the appointment of counsel. See Cook v.
Bounds, 518 F.2d 779, 780 (4th cir. 1975); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir.
1982). Whether such circumstances exist in a particular case depends on the characteristics of
the claim and the litigant. See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated
on other grounds by Mallard v. U.S. District Court, 490 U.S. 296, 298 (1989). Counsel should
be appointed if a colorable claim exists but the litigant has no capacity to present it. Id.
Upon careful consideration of the motions and previous filings by Plaintiffs, this Court
finds that Plaintiffs have demonstrated the wherewithal to either articulate the legal and factual
basis of their claims themselves or secure meaningful assistance in doing so. The issues pending
before this Court are not unduly complicated, and no hearing is necessary to the disposition of
this case.
In conclusion, there are no exceptional circumstances that would warrant the
appointment of an attorney to represent Plaintiffs under Section 1915(e)(1).
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CONCLUSION
For the reasons stated above, Plaintiffs’ Motion to Amend (ECF No. 15) is GRANTED in
part and DENIED in part. Specifically, it is GRANTED as to the dismissal of Plaintiffs’ claims
against the Mayor and City Council of Baltimore and Police Commissioner Frederick H.
Bealfeld, III and DENIED regarding the addition of the State of Maryland as a party to this
action. Defendants Mayor and City Council of Baltimore and Police Commissioner Frederick H.
Bealfeld, III’s Motions to Dismiss (ECF Nos. 9 & 11) are MOOT. Plaintiffs’ Motion for
Reissuance of Summons (ECF No. 14) is DENIED and Plaintiffs’ Motion to Appoint Counsel
(ECF No. 17) is DENIED as MOOT.
A separate Order follows.
Dated: July 3, 2013
________/s/_________________________
Richard D. Bennett
United States District Judge
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