Drury v. Dziwanowski et al

Filing 13

MEMORANDUM AND ORDER granting Defendant Anne Arundel County, Maryland's 3 Motion to Dismiss; denying Defendants' 12 Motion to Bifurcate; setting telephone conference. Signed by Judge Marvin J. Garbis on 3/15/2016. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EDWIN DRURY

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Plaintiff

vs.

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OFFICER P. DZIWANOWSKI, et al.
Defendants
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CIVIL ACTION NO. MJG-15-3845

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MEMORANDUM AND ORDER RE: PENDING MOTIONS

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The Court has before it Defendant Anne Arundel County,
Maryland’s Motion to Dismiss [ECF No. 3], Defendants’ Motion to
Bifurcate Claims and for Partial Stay of Discovery [ECF No. 12],
and the materials submitted by the parties relating thereto.
The Court finds that a hearing is unnecessary.

I.

BACKGROUND
In this case, Plaintiff Edwin Drury asserts state and

federal law claims against Anne Arundel County, Maryland (“the
County”) and Defendants Officer P. Dziwanowski and Corporal W.
Hicks (the “Active Defendants”) in connection with certain
events occurring on or about April 13, 2014.

The Active

Defendants have filed their Answer [ECF No. 10].
Plaintiff asserts the following claims against the County:
Count II – False Arrest

Count III – False Imprisonment
Count VII – Violation of Md. Declaration of Rights
Count IX –

Inadequate Supervision

Count X -

Monell Claim

By the instant motion, the County seeks dismissal of all
charges against it.

II.

DISMISSAL STANDARD
A motion to dismiss filed under Federal Rule of Civil

Procedure 12(b)(6)1 tests the legal sufficiency of a complaint.
A complaint need only contain “a short and plain statement of
the claim showing that the pleader is entitled to relief, in
order to give the defendant fair notice of what the ... claim is
and the grounds upon which it rests.”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted).
When evaluating a 12(b)(6) motion to dismiss, a plaintiff’s
well-pleaded allegations are accepted as true and the complaint
is viewed in the light most favorable to the plaintiff.
However, conclusory statements or a “formulaic recitation of the
elements of a cause of action” will not suffice.

Id.

A

complaint must allege sufficient facts to “cross ‘the line
between possibility and plausibility of entitlement to relief.’”
1

All “Rule” references herein are to the Federal Rules of
Civil Procedure.

2

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
(quoting Twombly, 550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim
is “a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Francis, 588
F.3d at 193. Thus, if the well-pleaded facts contained within a
complaint “do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it
has not shown – that the pleader is entitled to relief.”

Id.

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009))(internal
quotation marks omitted).

III. DISCUSSION
A.

Immunity – Counts II and III

The County asserts governmental immunity on the ground that
the acts of the police department on which the claims are based
were committed in the course of performing a governmental
function and that the County is immune.

See e.g.,

Leese v.

Baltimore County, 497 A.2d 159, 177 (Md. Ct. Spec. App. 1985).
Since Plaintiff has not even responded to the immunity
claim, all claims in Counts II and III shall be dismissed.

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B.

Constitutional Claims – Counts VII and X

Plaintiff presents constitutional claims against the County
in Counts VII (Maryland Declaration of Rights) and X (42 U.S.C.
§ 1983 and U.S. Constitution) based upon the contention that the
alleged wrongful acts committed by the Active Defendants were
caused by, or pursuant to, a policy and/or custom of the County.

1.
Articles 24 and 26 of the Maryland Declaration of
Rights are construed in pari materia with the United
States Constitution
Articles 24 and 26 of the Maryland Declaration of Rights
are the Maryland counterparts to the Fourth and Fourteenth
Amendments of the United States Constitution. Specifically,
Article 24 requires due process for deprivation of life,
liberty, or property, and Article 26 requires warrants for
searches and seizures. In conjunction, the Articles “prohibit
unlawful warrantless entries and employment of excessive force.”
Housley v. Holquist, 879 F. Supp. 2d 472, 482 (D. Md. 2011); see
Henry v. Purnell, 652 F.3d 524, 536 (4th Cir. 2011) (finding
that Articles 24 and 26 prohibit use of excessive force during a
seizure, and “[t]he standards for analyzing claims under these
articles are the same as for analyzing Fourth Amendment
claims.”).

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Claims brought under these articles for violations of due
process or employment of excessive force are therefore
“construed in pare materia with the Fourth [and Fourteenth]
Amendment[s].” Housley, 879 F. Supp. 2d at 482; see Quailes v.
State, 452 A.2d 190, 191 (Md. Ct. Spec. App. 1982); see also
Pickett v. Sears, Roebuck & Co., 775 A.2d 1218, 1224 (Md. 2001);
Williams v. Prince George’s Cnty., 685 A.2d 884, 895 (Md. Ct.
Spec. App. 1996) (finding that the correct standard for claims
brought under Article 24 and 26 is the reasonableness standard
set by the Supreme Court in Graham v. Connor, 490 U.S. 386, 39697 (1989), for claims brought under the Fourth Amendment). Hence
the issues presented by Plaintiff shall be addressed solely as §
1983 claims.

2.
Plaintiff fails to allege a sufficient cause of
action under 42 U.S.C. § 1983
A local government “cannot be held liable [under § 1983]
solely because it employs a tortfeasor.”

Monell v. Dept. of

Soc. Servs. Of City of New York, 436 U.S. 658, 691
(1978)(emphasis in original).

The liability of a local

government arises under § 1983 only where "the action that is
alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted
and promulgated by that body’s officers."

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Id. at 690.

Specifically, Monell liability under § 1983 attaches when the
policy or custom is “(1) fairly attributable to the municipality
as its ‘own,’ and is (2) the ‘moving force’ behind the
particular constitutional violation.”

Spell v. McDaniel, 824

F.2d 1380, 1386-87 (4th Cir. 1987) (internal citations omitted).
The existence of a policy or custom may be demonstrated in
four ways:
(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, 326 F.3d 463, 471 (4th Cir. 2003) (quoting
Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)).
In order to adequately plead a Monell claim, a complaint
must contain sufficient allegations that an official policy or
custom fairly attributable to the County existed and that this
policy proximately caused the alleged tortious actions of the
Active Defendants. See Walker v. Prince George’s Cnty., 575 F.3d
426, 431 (4th Cir. 2009) (affirming district court dismissal of
Monell claim where complaint failed to make any allegations
about the existence of a policy, custom, or practice); McMahon
v. Cnty. Comm’rs of Kent Cnty., CIV. JFM-13-490, 2013 WL

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2285378, at *3 (D. Md. May 21, 2013) (explaining that although
Monell does not impose a heightened pleading requirement, a
complaint must contain adequate allegations of an official
policy that is fairly attributable to the deprivation of
constitutional rights).
Plaintiff presents no more than conclusory allegations that
there was an actionable policy or custom and reference to the
alleged actions by the Active Defendants. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements” are not sufficient to state a cause of
action.

Iqbal, 556 U.S. at 678 (2009).

The instant case presents a complaint that is no more
adequate than the complaint in Fernandes v. Montgomery Cnty.,
MD., Civil Action No. 10–cv–00752–AW, 2010 WL 4746155 (D. Md.
Nov. 15, 2010).

As stated by Judge Williams of this Court:

In order to satisfy the policy-or-custom
element of a section 1983 Monell claim,
Plaintiff alleges that “the acts [of the
police officers] were the result of policies
or customs of the County, including, but not
limited to, the County’s policy or custom of
discriminating against minorities and/or the
County’s deliberate indifference to the
proper training of its police officers.”
Compl. ¶¶ 26, 33. The Court agrees with
Defendants that these allegations are
insufficient.
Id. at 3.

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C.

Inadequate Supervision and Discipline

Plaintiff presents a claim, labelled as being brought
pursuant to § 1983, on alleged inadequate supervision and
discipline.
If the claim is a constitutional claim, it would be a
Monell claim based upon an alleged policy or custom.

As

discussed above, the complaint does not adequately present
factual allegations sufficient to state a plausible Monell
claim.
If the claim is a state law tort claim, the complaint does
not allege specific facts presenting a plausible assertion that
there was inadequate supervision and discipline.

Moreover, as

discussed above, the County is entitled to immunity from such a
state law tort claim.

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IV.

CONCLUSION
For the foregoing reasons:
1.

Defendant Anne Arundel County, Maryland’s Motion
to Dismiss [ECF No. 3] is GRANTED.

2.

Defendants’ Motion to Bifurcate Claims and for
Partial Stay of Discovery [ECF No. 12] is DENIED
AS MOOT.

3.

Plaintiff shall arrange a telephone conference to
be held by March 31, 2016 to discuss the
scheduling of further proceedings herein.

SO ORDERED, on Tuesday, March 15, 2016.

/s/__________
Marvin J. Garbis
United States District Judge

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