Sanders et al v. Callender et al

Filing 77

MEMORANDUM OPINION (c/m to Plaintiffs and E. Gomez 6/29/18 sat). Signed by Judge Deborah K. Chasanow on 6/29/2018. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
KENNETH SANDERS, et al.
:
v.

:

Civil Action No. DKC 17-1721

:
DESIREE CALLENDER, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this civil
rights case is the motion to dismiss filed by Defendants Desiree
Callender

and

Desiree

Callender

&

Associates,

Realtors

LLC

(collectively the “Callenders”) (ECF No. 71) and the motion to
dismiss filed by Defendant Prince George’s County (the “County”)
(ECF No. 62).

The issues have been briefed, and the court now

rules, no hearing being deemed necessary.
For

the

following

reasons,

the

motions

Local Rule 105.6.
to

dismiss

will

be

granted.
I.

Background
A complete recitation of Plaintiffs’ case can be found in

the court’s prior memorandum opinion.

(ECF No. 58).

In short,

Plaintiffs’ home was foreclosed on in June 2010, and a lawful
writ of possession was issued.
2014.

(Id. at 2).

The writ was executed on May 6,

According to the complaint, the Callenders

called the police on that day to have Plaintiff Sanders evicted

and falsely reported that he was armed and dangerous in order
“to embarrass, burden, threaten, [and] intimidate” Plaintiffs
(ECF No. 2 ¶ 27-H), the County used excessive and unnecessary
force

in

executing

the

eviction

(Id.

¶¶

27-J,

27-K),

and

Defendant Gomez Towing damaged Plaintiffs’ cars towing them out
of the garage.

(Id. ¶ 27-S).

On April 24, 2017, Plaintiffs brought suit alleging seven
state tort claims and a violation of 42 U.S.C. § 1983 against a
variety of entities involved in the eviction.
Callenders filed motions to dismiss.

The County and

On January 9, 2018, the

court dismissed the state law claims against the County but not
the § 1983 claim.1

(ECF No. 58).

On February 16, the County

moved to dismiss the § 1983 claim arguing that Plaintiffs had
failed

to

identify

a

policy

or

practice

which

caused

a

constitutional deprivation, and, thus, the County could not be
held liable in its supervisory capacity.
Plaintiffs
them

of

were
the

provided

pendency

of

with

Roseboro

the

motion

(ECF No. 62-1, at 4).
notices
to

which

dismiss

and

advised
their

entitlement to respond within seventeen (17) days from the date
of the letter.

(ECF Nos. 64, 65); see Roseboro v. Garrison, 528

1

Although the prior opinion reasoned that all the state law
claims should be dismissed against the County (ECF No. 58, at
21), the Order did not dismiss the claim for intentional
infliction of emotion distress (Count VIII) (ECF No. 59, at 1).
The County moved to dismiss this count (ECF No. 62-1, at 2), and
the accompanying Order will remedy the oversight.
2

F.2d 309, 310 (4th Cir. 1975) (holding pro se plaintiffs should
be

advised

of

their

right

to

file

responsive

material

to

a

motion for summary judgment).
Plaintiffs did not respond within the required time period.
Instead,

on

May

7,

Plaintiffs

filed

a

“Notice

of

Errata”

alleging that they had not received a memorandum of law and
requested “an Order in confirmation of this Notice to quiet the
issue improperly brought to the bench[.]”

(ECF No. 75).

The

next day the County filed a response asserting that there had
been

no

motion

errors
and

the

but,

nonetheless,

memorandum

of

sent

a

second

authority.

copy

(ECF

of

No.

its
76).

Plaintiffs have still not responded.
In its prior opinion, the court also initially dismissed
the

claims

against

Defendants

Callenders

and

Towing for improper service. (ECF No. 58).
motion

to

reconsider

explaining

their

service and submitted proposed summons.

Defendant

Gomez

Plaintiffs filed a

efforts

in

attempting

The court granted the

motion to reconsider, vacated the dismissal, and issued summons
for Defendants Callenders and Gomez Towing.

(ECF No. 67).

On

March 7, Ilona D. Turner gave a copy of the summons to the
receptionist for Defendants Callenders’ counsel.2

2

(ECF No. 70).

It is not clear who Ilona Turner is. She purportedly took
no fee for her work and incorrectly spelled the name of the
person she served. (ECF No. 70).
3

On March 29, Defendants Callenders moved to dismiss for improper
service (ECF No. 71-1), and Plaintiffs responded (ECF No. 74).
II.

Service of Process
Defendants

12(b)(5).
bears

Callenders

move

to

dismiss

pursuant

to

Rule

When the defense challenges service, “the plaintiff

the

burden

of

pursuant to Rule 4.”

establishing

the

validity

of

service

O’Meara v. Waters, 464 F.Supp.2d 474, 476

(D.Md. 2006); see also Fed.R.Civ.P. 4.

“Generally, when service

of process gives the defendant actual notice of the pending
action, the courts may construe Rule 4 liberally to effectuate
service and uphold the jurisdiction of the court.”

Id. (citing

Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963); Armco,
Inc. v. Penrod–Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089
(4th

Cir. 1984)).

The “plain requirements for the means of

effecting service of process,” however, “may not be ignored.”
Armco, 733 F.2d at 1089.
Under Rule 4, service can be made by
doing any of the following:
(A) delivering
a copy of the summons and of the complaint
to the individual personally; (B) leaving a
copy of each at the individual’s dwelling or
usual place of abode with someone of
suitable age and discretion who resides
there; or (C) delivering a copy of each to
an agent authorized by appointment or by law
to receive service of process.
Rule 4(e)(2).

As explained in the prior opinion, service can

also be made in Maryland “by mailing to the person to be served
4

a copy of the summons, complaint, and all other papers filed
with it by certified mail requesting: ‘Restricted Delivery —
show to whom, date, address of delivery.’”

Md.Rules, Rule 2-

121(a); see Rule 2-124(b) (allowing service to be made on an
agent authorized to receive service of process).
Here, Plaintiffs did not attempt to serve via certified
mail or by serving Defendant Callender, personally.
they

had

someone

receptionist.

The

serve

Defendants

attorney’s

Callenders’

receptionist

is

Instead,
attorney’s

not

an

agent

authorized to receive service, and a law office is not a “place
of abode.”

Accordingly, service of process has not been made.

Plaintiffs filed this case over a year ago.

Service has

still not been completed even though multiple summonses have
been

issued.

makes

this

Plaintiffs’
case

continued

distinguishable

disregard

from

for

those

the

where

rules
it

appropriate to quash service rather than dismiss the case.
e.g.,

Ngabo

v.

Le

Pain

Quotidien,

No.

DKC

11–0096,

is
See,

2011

WL

978654, at *2 (D.Md. Mar. 17, 2011) (“Where ‘the first service
of process is ineffective, a motion to dismiss should not be
granted, but rather the Court should treat the motion in the
alternative, as one to quash the service of process.’”) (quoting
Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4th Cir. 1983)).
Not only have Plaintiffs disregarded the rules, but the prior
opinion

explicitly

laid

out

how
5

to

effectuate

service

and

Plaintiffs chose not to heed the opinion.
year,

dismissal

is

the

appropriate

After more than a

disposition,

and

the

Callenders’ motion to dismiss will be granted.
It does not appear that Plaintiffs have attempted to serve
Defendant

Gomez

Towing.

Accordingly,

Defendant

Gomez

Towing

also will be dismissed for ineffective service of process.3
III. § 1983
A.

Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A complaint

need only satisfy the standard of Rule 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
is

entitled

to

relief.”

“Rule

8(a)(2)

still

requires

a

‘showing,’ rather than a blanket assertion, of entitlement to
relief.”
(2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
That showing must consist of more than “a formulaic

recitation

of

the

elements

of

a

cause

of

action”

or

assertion[s] devoid of further factual enhancement.”
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
stage,

all

considered

well-pleaded
as

true,

allegations

Albright

v.

3

in

a

Oliver,

complaint
510

U.S.

“naked

Ashcroft
At this
must
266,

be
268

Plaintiffs repeatedly state that Defendants have evaded
service.
(ECF No. 74, at 3).
Plaintiffs provide no facts to
support this statement.
6

(1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff.

See

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604

F.2d

844,

(4th

847

Cir.

1979);

see

also

Francis

v.

Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
Pro se pleadings are liberally construed and held to a less
stringent standard than pleadings drafted by lawyers.

Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520
(1972).
pleadings

Liberal construction means that the court will read the
to

state

a

valid

claim

to

the

extent

that

it

is

possible to do so from the facts available; it does not mean
that the court should rewrite the complaint to include claims
never presented.
Cir. 1999).

Barnett v. Hargett, 174 F.3d 1128, 1132 (10th

That is, even when pro se litigants are involved,

the court cannot ignore a clear failure to allege facts that
support a viable claim.

Weller v. Dep’t of Soc. Servs., 901
7

F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No. RDB–12–969,
2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012) (“[E]ven a pro se
complaint must be dismissed if it does not allege a plausible
claim

for

relief.”

(citation

and

internal

quotation

marks

omitted)).
Plaintiffs have not responded to the County’s motion to
dismiss.

Although the court “has an obligation to review the

motions to ensure that dismissal is proper,” Stevenson v. City
of Seat Pleasant, 743 F.3d 411, 416 n.3 (4th Cir. 2014), “when a
plaintiff fails to oppose a motion to dismiss, a district court
is entitled, as authorized, to rule on the motion and dismiss
the suit on the uncontroverted bases asserted in the motion.”
White

v.

Wal

Mart

Stores,

Inc.,

No.

ELH-13-00031,

2014

WL

1369609, at *2 (D.Md. Apr. 4, 2014) (internal quotation marks
and alterations omitted); see Brown-Henderson v. Capital One,
N.A., No. DKC-13-3324, 2014 WL 3778689, at *1 (D.Md. July 29,
2014)

(dismissing

a

case

based

on

the

merits

when

pro

se

defendant failed to respond).
B.

Analysis

The County moved to dismiss arguing that “Plaintiffs have
failed to properly allege . . . that their injuries, if any,
were caused pursuant to an official policy, custom or procedure
of Defendant’s[.]”

(ECF No. 62-1, at 5).

8

Plaintiffs allege:

The deprivation of Plaintiffs rights . . .
resulted from the Prince George’s County’s
inadequacy of [p]olice training with respect
to [the] basis for and manner of seizing
persons on the basis of false and malicious
rhetoric by Defendant Desiree Callender,
Desiree Callender and Associates, Realtors
LLC, mounting to deliberate indifference to
the rights of persons who police come into
contact with.
(ECF No. 2 ¶ 60).
“In limited circumstances, a local government’s decision
not to train certain employees about their legal duty to avoid
violating citizens’ rights may rise to the level of an official
government policy for purposes of § 1983.”
563 U.S. 51, 61 (2011).
its

employees

indifference’
failure

to

in
to

train

When “a municipality’s failure to train

relevant
the

Connick v. Thompson,

respect

rights

amounts

evidences

its

an

official

to

of

‘deliberate

inhabitants,”

municipality liable pursuant to Section 1983.
Harris, 489 U.S. 378, 389 (1989).

a

policy

then

the

making

the

City of Canton v.

To proceed with a failure to

train claim, a plaintiff must plead that: “(1) an employee of
the

municipality

statutory

rights;

violated
(2)

the

the

plaintiff’s

municipality

constitutional

failed

to

train

or
its

employees, manifesting a ‘deliberate indifference’ to the rights
of citizens; and (3) the failure to train actually caused the
employees to violate the plaintiff’s rights.”
Farrelly, 270 F.Supp.3d 851, 864 (D.Md. 2017).

9

Artiga Carrero v.

Although not often broken down, the second element has at
least two parts.
facts

revealing

One requirement is that the plaintiff plead
the

“adequacy

of

the

training

program

in

relation to the tasks the particular officers must perform,”
Flanagan v. City of Dallas, 48 F.Supp.3d 941, 957 (N.D. Tex.
2014), which requires more than a mere conclusory statement that
training was inadequate.

Peters v. City of Mount Rainier, No.

GJH–14–0955, 2014 WL 4855032 at *5 (D.Md. Sept. 29, 2014); see
Lewis v. Simms, No. AW-11–2172, 2012 WL 254024, at *3 (D.Md.
Jan. 26, 2012) (requiring a plaintiff to plead facts revealing
“the nature of the training”).
the

plaintiff

establish

The other requirement is that

deliberate

indifference

either

by

pleading a failure to act “despite a known pattern of widespread
constitutional deprivations,” Milligan v. City of Newport News,
743 F.2d 227, 229-30 (4th Cir. 1984), or that “the constitutional
violation

at

predictable’
provide

issue

was

consequence

additional

the
of

specified

‘patently
the

obvious’

municipality’s

training.”

Artiga

or

‘highly

failure

to

Carrero,

270

F.Supp.3d at 865 (quoting Connick, 563 U.S. at 64).
The third element requires “an ‘affirmative causal link’
between

the

supervisor’s

inaction

and

the

particular

constitutional injury suffered by the plaintiff.”

Carter v.

Morris, 164 F.3d 215, 221 (4th Cir. 1999) (internal quotation
marks

omitted).

Thus,

“for

liability
10

to

attach

.

.

.

the

identified
must

be

deficiency

closely

in

a

related

[municipality’s]

to

the

ultimate

training

injury.”

program
City

of

Canton, 489 U.S. at 391.
Plaintiffs fail to allege facts supporting the second and
third elements.
to

Plaintiffs allege that the training in regard

effectuating

seizures

after

false

reports

was

inadequate.

Plaintiffs do not allege any facts about the frequency of false
reports or the frequency of seizures based on false reports.
Plaintiffs

do

not

allege

any

facts

about

the

nature

of

the

training officers receive in regard to seizures based on citizen
reports.

Without

such

information,

Plaintiffs

have

not

established that the training program was inadequate for the
task.
Plaintiffs
indifference.

have

also

failed

to

allege

deliberate

Plaintiffs have identified no pattern of unlawful

seizures that would have put the County on notice.
have

not

alleged

that

it

is

patently

obvious

Plaintiffs
that

police

officers will effectuate seizures based on false reports from
witnesses.

Indeed, an eyewitness account can provide reasonable

suspicion, and an officer acting pursuant to that information
would

not

be

effectuating

an

illegal

seizure.

See,

e.g.,

Navarette v. California, 134 S.Ct. 1683 (2014) (finding that an
anonymous

complaint

about

a

driver

11

could

furnish

reasonable

suspicion

for

a

stop

of

the

vehicle).

Plaintiffs

have

not

alleged that the County was deliberately indifferent.
Plaintiffs

have

likewise

not

alleged

the

third

element.

Plaintiffs claim injuries resulting from conditions that were
borderline torture.
weapons

at

The allegations include “pointing assault

plaintiff

[Sander’s]

head”

(ECF

No.

2

¶

27-E),

Plaintiffs being handcuffed in vehicles “for more than 8 hours,
without food, water, medication and bathroom breaks” (Id. ¶ 27K),

and

sexually

Plaintiff
assaulted

Sanders
.

.

.

being

multiple

“physically

violated

times”

¶

(Id.

and

27-J).

A

failure to train about effectuating seizures after potentially
false

reports

is

not

“the

moving

force”

for

the

injuries

Plaintiffs identify, and, thus, Plaintiffs have not established
causation.

Monell v. Dep’t of Soc. Servs. of City of New York,

436 U.S. 658, 694 (1978).
IV.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

Defendants Callenders and the motion to dismiss filed by the
County will be granted.

A scheduling order will be entered for

the remaining claims – trespass to chattel and conversion –
against Defendant Marlboro Towing/Champion Towing & Services,
Inc.

A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
12