Opinion
CIVIL NO. CCB-08-3200.
April 22, 2009
MEMORANDUM
Now pending before the court is a motion to dismiss filed by the Mayor and City Council of Salisbury, Maryland ("City defendants"), the Salisbury Police Department, and nine Salisbury police officers ("officer defendants") (collectively "defendants") against the plaintiff, Ceasar Savage ("Mr. Savage"). Mr. Savage seeks to hold the defendants liable for constitutional and tortious injuries allegedly committed on two separate occasions by the officer defendants. The issues have been fully briefed and, pursuant to Local Rule 105.6, no hearing is necessary. For the following reasons, the defendants' motion will be granted in part and denied in part.
BACKGROUND
According to Mr. Savage, on or around January 24, 2007, two Salisbury police officers approached him while he was installing some electronic equipment in an automobile on his mother's property. The officers, David Underwood ("officer Underwood") and Kenneth Wilson ("officer Wilson"), informed Mr. Savage that they were investigating a breaking and entering, asked him to present identification and a vehicle registration, and ordered him to exit the vehicle. Upon exiting the vehicle, Mr. Savage was immediately handcuffed by officer Wilson and informed that he was under arrest. When Mr. Savage inquired as to why he was being arrested, officer Wilson told him to shut his mouth. At this time, officer Underwood began searching the vehicle without Mr. Savage's consent claiming he was looking for drugs.
During this time, Mr. Savage heard a radio call from the police dispatcher that there were no outstanding warrants to justify his continued detention. After officer Underwood reported he did not find any drugs in the car, Mr. Savage asked to be released to no avail. Officer Underwood then approached the house and asked the plaintiff's mother to identify him, which she did. Mr. Savage again asked to be released from custody, at which point officer Wilson "slammed the plaintiff in the back of the neck with his forearm, telling him to shut up, forcing plaintiff's head into the top of the car and busting the plaintiff's jaw and several teeth." (Compl. ¶ 14.) When Mr. Savage asked why he had been struck, officer Wilson hit him in the face with his closed fist.
Soon thereafter, three officers from Salisbury's "special task force" arrived on the scene: Tanya Ehrisman ("officer Ehrisman"), Brian Whitman ("officer Whitman"), and officer Russell. These officers wore black clothing and officers Whitman and Russell wore full face masks. Officer Wilson forced Mr. Savage, still in handcuffs, to the ground where he was beaten and kicked by the officers. When Mr. Savage requested the officers stop beating him for fear "they were going to kill him," officer Ehrisman responded that "she would kill him if he didn't tell her where the drugs were." (Compl. ¶ 15.) The officers beat Mr. Savage until he lost consciousness.
The complaint does not identify officer Russell's first name.
Mr. Savage next recalls waking up in the emergency room of the local hospital. At some point, while alone with Mr. Savage in the hospital, officer Underwood "shoved his fist up the plaintiff's rectum searching for drugs." (Compl. ¶ 16.) Despite finding no drugs, the officers informed hospital personnel that Mr. Savage had ingested a large amount of cocaine. No drugs were detected on the plaintiff's toxicology screen.
Upon leaving the hospital, the officers brought Mr. Savage to the Salisbury city jail, where he was held until March 23, 2007, when the Circuit Court for Wicomico County ordered him released. Mr. Savage was charged with possessing crack cocaine, assaulting a police officer, resisting arrest, and failing to obey a police order. In a motions hearing, the circuit court concluded that the arrest and detention of the plaintiff were without cause. On May 8, 2007, a jury acquitted him of all charges.
On December 6, 2007, Mr. Savage was again in the yard behind his mother's house, where he was approached by officer Russell, immediately handcuffed, and told he was under arrest. According to officer Russell's report, he was looking for an unidentified white male when he came upon the plaintiff. Officer Russell was soon joined by officer Wilson, who told the plaintiff that "we are going to get you this time." (Compl. ¶ 19.) At around the same time, officers Rodriguez, Purnell, Underwood, Crockett, and Devoe arrived on the scene. The officers began to beat the plaintiff, again while he was handcuffed. They then stripped Mr. Savage naked, on a public street and in view of witnesses, and officer Underwood conducted another invasive body cavity search for drugs. Mr. Savage again required hospitalization for the injuries he sustained during the beating. Mr. Savage was charged with various counts including drug possession, assault, and resisting arrest. The circuit court concluded that the officers had no probable cause to arrest the plaintiff.
The complaint does not identify the first names of officers Rodriguez, Purnell, Crokett, or Devoe.
On December 2, 2008, the plaintiff filed a complaint in this court alleging violations of his federal constitutional rights under 42 U.S.C. § 1983, the Maryland Declaration of Rights, and various common law torts. He seeks compensatory and punitive damages. The defendants have moved to dismiss some of the plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
The complaint enumerates seven individual claims but inadvertently includes two Count II headings; these counts will be referred to as Count II(a) and Count II(b). Count I alleges federal violations under § 1983, Count II(a) alleges false arrest, Count II(b) alleges false imprisonment, Count III alleges abuse of process, Count IV alleges assault, Count V alleges battery, and Count VI alleges a violation of Article 24 of the Maryland Declaration of Rights.
ANALYSIS
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; importantly, a Rule 12(b)(6) motion does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation marks and alterations omitted). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true," and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). Following the Supreme Court's ruling in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007), "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 1969 (quoted in Goodman v. Praxair, 494 F.3d 458, 466 (4th Cir. 2007)). Moreover, the "plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65.
A. Salisbury Police Department
The defendants contend, and the court agrees, that the Salisbury Police Department is not an entity amenable to suit, and the police department's parent municipal corporation — the city of Salisbury — is the proper party. See Revene v. Charles County Comm's, 882 F.2d 870, 874 (4th Cir. 1989); Hines v. French, 852 A.2d 1047, 1068 (Md.App. 2004) (explaining that local police departments are agents of the governing locality and should not be viewed as separate legal entities); cf. Chin v. City of Baltimore, 241 F.Supp.2d 546, 547 n. 1 (D. Md. 2003) (following Baltimore Police Dep't v. Cherkes, 780 A.2d 410, 422 (Md.App. 2001) in assuming without deciding that the Baltimore City Police Department, a state agency, was a suable entity). Accordingly, the Salisbury Police Department will be dismissed from this suit.
B. Section 1983 Claim i. Municipal Liability
Section 1983 establishes liability for "every person" who, under the color of law, deprives an individual of any rights, privileges, or immunities secured by the Constitution. The defendants concede that the plaintiff's allegations state a § 1983 claim against the named police officers in their individual capacities. They contend, however, that the allegations fail to state a claim against the City defendants for supervisory liability or against the officers in their official capacities.
While a municipality is subject to suit under § 1983, see Monell v. Dep't Soc. Serv., 436 U.S. 658, 690 (1978), liability attaches "only where the municipality itself causes the constitutional violation at issue." City of Canton v. Harris, 489 U.S. 378, 385 (1989) (emphasis in original). A municipality cannot be held liable in a § 1983 action under a theory of respondeat superior. Monell, 436 U.S. at 694. Under Monell, "[l]iability arises only where the constitutionally offensive acts of city employees are taken in furtherance of some municipal `policy or custom.'" Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984) (citing Monell, 436 U.S. at 694). In addition to formal decisionmaking, a policy or custom may "be inferred from continued inaction in the face of a known history of widespread constitutional deprivations on the part of city employees." Id. at 229-30; see also Spell v. McDaniel, 824 F.2d 1380, 1390-91 (4th Cir. 1987) (stating that a municipality can be liable where its employees' unconstitutional practices become sufficiently widespread that they assume the quality of "custom or usage," and responsible policymakers, who have actual or constructive knowledge of these practices, fail "as a matter of specific intent or deliberate indifference" to correct the practices). However, "a municipal policy or custom giving rise to § 1983 liability will not be inferred merely from municipal inaction in the face of isolated constitutional deprivations by municipal employees." Milligan, 743 F.2d at 230.
The Supreme Court stated in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993), that there is no heightened pleading requirement under Monell, but rather a plaintiff need comply only with Rule 8(a)(2), requiring that a "complaint include only `a short and plain statement of the claim showing that the pleader is entitled to relief.'" Looking to the complaint, Mr. Savage alleges that in January 2007 several city police officers, including officers from a "special task force," unlawfully detained and searched him while he was on his mother's property, beat him such that he required hospitalization, conducted a body cavity search while the plaintiff was in the hospital, and arrested him, all without probable cause or provocation. Following this incident, a state court concluded that his arrest and detention were illegal, and a jury acquitted him of all charges. The plaintiff further alleges that in December 2007, another group of officers, including some officers from the first incident, again approached him on his mother's property, searched him, beat him such that he again required hospitalization, stripped him naked and performed a body cavity search (this time in public and in view of witnesses), and arrested him. Again a state court judge concluded that the officers had no probable cause for any of their actions. In short, Mr. Savage alleges that groups of officers, engaging in a similar course of conduct, detained, searched, and beat him without cause or provocation on two separate occasions within the same year.
While it is a close question, the court is satisfied that Mr. Savage has sufficiently stated a claim for municipal liability in light of these allegations. The number of officers involved, including repeat offenders, the allegation of a "special task force," and the blatant illegality of their actions raise an inference of widespread police misconduct. Cf. Lanford v. Prince George's County, 199 F.Supp.2d 297, 305 (D. Md. 2002) (dismissing municipal liability claim with leave to amend where the complaint alleged only one incident of police misconduct by a single officer). According Mr. Savage all reasonable inferences, the complaint alleges a sufficient causal link between the city's failure to correct police misconduct and, at the least, the plaintiff's constitutional injuries allegedly inflicted in December 2007.
Mr. Savage's complaint alleges that the officer defendants' actions "were known to and approved by the [City defendants]" (Compl. ¶ 6b, 7a), and that the officers "engaged in acts and omissions under the color and pretense of the statutes, ordinances, regulations, customs, and usages of the State of Maryland, the City of Salisbury, and the County of Wicomico, and under the authority of their office as police officers for such city and county" ( id. ¶ 10).
ii. Bifurcation
C. State Law Claims i. Governmental Immunity
Marryshow v. Town of Bladensburg, 139 F.R.D. 318 Marryshow, See id. Marryshow, See id. See DiPino v. Davis,729 A.2d 354369-70respondeat superior Id. Id. see also Lanford, 199 F.Supp.2d at 302 See Dawson v. Prince George's County,896 F.Supp. 537539
As noted in Marryshow, the parties may seek leave to proceed with all or part of the postponed discovery for good cause. 139 F.R.D. at 319 n. 3.
This immunity does not apply to constitutional torts.
ii. Compliance with LGTCA
The LGTCA requires a plaintiff seeking unliquidated damages from a local government or its employees to submit administrative notice of this claim within 180 days after the injury. Md. Code, Cts. Jud. Proc. § 5-304(b). "[N]otice shall be given in person or by certified mail . . . to the . . . corporate authorities of a defendant local government." Id. § 5-304(c)(1). "The notice shall be in writing and shall state the time, place, and cause of the injury." Id. § 5-304(c)(3). The filing of this notice is a condition precedent to the plaintiff's underlying action for damages, and should be alleged as a substantive element in the complaint in order to state a claim under Maryland law. Curtis v. Pracht, 202 F.Supp.2d 406, 414 (D. Md. 2002) (citing Madore v. Baltimore County, 367 A.2d 54, 56 (Md.App. 1976)). The notice requirements of the LGTCA apply to intentional and constitutional torts. Curtis, 202 F.Supp.2d at 414 (citing Thomas v. City of Annapolis, 688 A.2d 448, 456 (Md.App. 1997)).
Mr. Savage's complaint does not allege that he complied with the LGTCA, and, in support of their motion to dismiss, the defendants attached an affidavit from the city solicitor averring that he had not received notice of Mr. Savage's claims. In response, Mr. Savage alleges that he provided written notice of his intent to sue to the mayor of Salisbury, Barrie P. Tilghman, within 180 days of the December 2007 incident, and he attached a copy of the letter along with a United States Postal Service certified mailing record. The defendants, in their reply, chiefly contend that Mr. Savage's alleged notice is deficient because he did not give notice to the city solicitor, the official responsible for investigating tort claims against the city.
The defendants also attached a copy of a letter sent on behalf of Mr. Savage to the Salisbury chief of police notifying him of the plaintiff's intent to sue the department; they contend that this notice was insufficient to comply with the LGTCA. Mr. Savage does not allege that this letter satisfies the LGTCA's notice provision.
The letter to Mayor Tilghman is dated May 30, 2008, within 180 days of the December 6, 2007 incident. Mr. Savage acknowledges that this letter does not provide adequate notice of the January 2007 incident and that he is barred from pursuing state law remedies for injuries sustained in that incident.
In a footnote, the defendants appear to question whether the plaintiff established that he sent the letter to Mayor Tilghman by certified mail; however they do not allege that the letter was not, in fact, sent to or received by the mayor's office. It is well established that a claimant can fulfill the notice requirement of the LGTCA through substantial compliance as long as the notice is, in fact, provided. See Bibum v. Prince George's County, 85 F.Supp.2d 557, 564 (D. Md. 2000) (discussing Jackson v. Board of County Commissioners, 195 A.2d 693, 695 (Md. 1963), in which the Maryland Court of Appeals held that a notice delivered by ordinary mail that was actually received by the county within the statutory period satisfied the notice provision). All that is presently in dispute before the court, then, is the legal question of whether providing notice to Mayor Tilghman could satisfy the notice requirement of the LGTCA, and the court need not consider the parties' attached materials under Rule 56. See Lanford, 199 F.Supp.2d at 303. Given that the defendants do not contest that the notice letter was received by Mayor Tilghman, Mr. Savage need not amend his complaint to allege compliance with the LGTCA. See id. at 303-04 (analyzing whether plaintiff's alleged notice was sufficient to comply with LGTCA where plaintiff failed to allege compliance in the complaint but defendants did not dispute notice letter was, in fact, delivered).
Unlike, for example, Baltimore City where claimants are expressly required to provide notice to the city solicitor, see Md. Code, Cts. Jud. Proc. § 5-304(b)(i), claimants in most municipalities, including Salisbury, are directed to provide notice to the "corporate authorities" of their local government. Id. § 5-304(b). The LGTCA does not define the term "corporate authorities," and the Maryland Court of Appeals has interpreted the term to have a broad meaning, see Williams v. Maynard, 754 A.2d 379, 384 n. 6 (Md. 2000). Moreover, the defendants have not identified any caselaw suggesting that a city's mayor is not a corporate authority for purposes of the LGTCA. As such, the court is not persuaded that Mr. Savage's purported notice to Mayor Tilghman is, as a matter of law, insufficient to comply with the notice requirement. Accordingly, his remaining constitutional claim against the City defendants and all of his state law claims against the officer defendants, arising from the December 2007 incident, may proceed.
In fact, in their memorandum in support of the motion to dismiss, the defendants suggested that "it is conceivable that notice of claim could be given to a municipality in Wicomico County to the City Executive (the Mayor) or the City Solicitor." (Mot. Dismiss Mem. at 15 n. 5.)
D. Punitive Damages
The City defendants contend, and the court agrees, that the plaintiff is not entitled to punitive damages from the City defendants for alleged violations of federal or state law. While municipal employees may be liable for punitive damages, absent statutory authority, punitive damages may not be recovered against a municipality for torts committed by its employees. See Williams v. Anderson, 753 F.Supp. 1306, 1311 (D. Md. 1990) (citing Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)); Herilla v. Mayor and City Council of Baltimore, 378 A.2d 162, 169 (Md.App. 1977).
CONCLUSION
For the foregoing reasons, the court will dismiss the Salisbury Police Department as a party from the litigation. The court will also dismiss the state common law tort claims and punitive damages claims against the City defendants.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:1. the defendants' motion to dismiss (docket entry no. 5) is GRANTED in part and DENIED in part,
2. Counts II(a), II(b), III, IV, and V, and all claims for punitive damages against the Mayor and City Council of Salisbury are DISMISSED;
3. all Counts against the Salisbury Police Department are DISMISSED;
4. the defendants' motion to bifurcate (docket entry no. 5) is GRANTED, and the 42 U.S.C. § 1983 official capacity and municipal liability claims will be bifurcated and stayed pending resolution of the individual capacity claims; and
5. a scheduling order will be issued separately.