ROSEMARY MUNYIRI,

Plaintiff,

v.

PETER M. HADUCH, JR., in his individual capacity and in his official capacity as a Baltimore City Police Officer, 3131 Acton Road, Parkville, Maryland 21234-4712; and

FREDERICK H. BEALEFELD, in his individual capacity and in his official capacity as Baltimore City Police Commissioner, 601 East Fayette Street, Baltimore, Maryland 21202; and

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND

BALTIMORE CITY POLICE DEPARTMENT
601 East Fayette Street Baltimore, Maryland 21202; and

MAYOR & CITY COUNCIL OF BALTIMORE
100 North Holliday Street Baltimore, Maryland 21202; and

Case No. _________________________

UNKNOWN MARYLAND CORRECTIONAL OFFICERS in their individual capacities and their official capacities as Officers employed by the Maryland Department of Public Safety and Correctional Services, 300 East Madison Street, Baltimore, Maryland 21202; and

GARY D. MAYNARD in his individual capacity and in his official capacity as Secretary of the Maryland Department of Public Safety and Correctional Services, 300 East Joppa Road, Suite 1000, Towson, Maryland 21286; and

NAOMI WILLIAMS, in her individual capacity and in her official capacity as the Acting Warden of the Baltimore Central Booking & Intake Center, 300 East Madison Street, Baltimore, Maryland 21202,

Defendants.

COMPLAINT AND JURY TRIAL DEMAND 1. Plaintiff, Rosemary Munyiri, by and through her attorneys, Robert D. Schulte, Alan J. Booth, and Schulte Booth, P.C., hereby sues the defendants herein to redress violations of her civil and legal rights under the United States Constitution and 42 USC § 1983. In support thereof, Plaintiff states as follows:
Nature of the case 2. Plaintiff, a Registered Nurse working at Johns Hopkins Hospital, was arrested following a routine traffic stop while traveling home on her daily commute by Baltimore City Police Officer Peter M. Haduch, Jr. 3. During the arrest, Plaintiff was forced at gunpoint to alight from her vehicle, ordered to lay face down on the wet pavement of northbound I-83, handcuffed, and placed in officer Haduch’s patrol car for approximately 2 ½ hours. 4. Thereafter, Plaintiff was transported to Baltimore City’s Central Booking & Intake Facility (“CBIF”), taunted by Officer Haduch, and subject to a humiliating strip and cavity search by CBIF personnel. 5. Plaintiff now suffers from diagnosed depression, fear, and sleeplessness and has lost days from work as a result. 6. This lawsuit is principally a civil rights action for money damages against the Baltimore City Police Department, the Baltimore City Police Commissioner, Frederick H. Bealefeld, Baltimore City Police Officer Peter M. Haduch, Jr., the Maryland Department of Safety and Correctional Services, its Secretary, Gary D. Maynard, the acting Warden of the CBIF, Naomi Williams, and as yet unknown Correctional Officers
1

employed by the Maryland Department of Public Safety and Corrections designated, for the purposes of this Complaint, as John and Jane Doe.
7. The arrest of Rosemary Munyiri on April 12, 2008 was without probable cause, and with excessive force and her subsequent strip search and visual body cavity search was done pursuant to customs, policies and practices adopted by the Mayor and City Counsel of Baltimore, the Baltimore City Police Department, the Maryland Department of Public Safety and Correctional Services and/or the CBIF but was otherwise initiated by Baltimore City Police Officer Peter M. Haduch, Jr. and conducted without any reasonable belief by State officers, agents and/or officials that the arrest of Rosemary Munyiri and subsequent strip and cavity search was without probable cause and/or constitutionally permissible.
Jurisdiction & Venue 8. This action is brought pursuant to 42 USC §§ 1983, 1988 and the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. 9. Jurisdiction is founded upon 28 U.S.C. §§ 1331 & 1343.
Parties 10. At all times relevant, Plaintiff, an African female of Kenyan descent, was a resident of Baltimore County, State of Maryland, although all acts and omissions prompting this Complaint and Jury Trial Demand occurred in the City of Baltimore. 11. At all times relevant, Defendant, Peter M. Haduch, Jr., a Caucasian male, was a resident of the State of Maryland, an employee of the Baltimore City Police Department and, therefore, an employee of the State of Maryland. He is sued in his individual and official capacity.
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12. At all times relevant, Defendants, John Doe and Jane Doe, were residents of the State of Maryland, employees of the Maryland Department of Public Safety and Correctional Services and, therefore, employees of the State of Maryland. They are sued in their individual and official capacities.
13. At all times relevant, Defendant, Baltimore City Police Commissioner Frederick H. Bealefeld was a resident of the State of Maryland and an employee of the Baltimore City Police Department. He is sued in his individual and official capacity.
14. At all times relevant, Defendant, Naomi Williams, the acting Warden of CBIF, was a resident of the State of Maryland and an employee of the State of Maryland. She is sued in her individual and official capacity.
15. At all times relevant, Defendant, the Baltimore City Police Department, was and is an agency of the State of Maryland, but otherwise a local government under Md. Code Ann. (2007) § 5-301(d)(21) of the Courts and Judicial Proceedings Article and subject to suit under 42 USC § 1983.
16. At all times relevant, Defendant, the Baltimore City Police Department, promulgated policies, practices, and procedures, employed by and/or relied upon by its police officers resulting in the conduct that led to the injuries complained of by Plaintiff in this Complaint.
17. At all times relevant, the Department of Public Safety and Correctional Services was and is an agency of the State of Maryland.
18. At all times relevant, the State of Maryland, through its agency, the Maryland Department of Public Safety and Correctional Services, promulgated policies,
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practices, and procedures, employed by and/or relied upon by its correctional officers resulting in the conduct complained of by Plaintiff in this Complaint.
19. At all times relevant, Defendant Peter M. Haduch, Jr. was acting in his official capacity as a Baltimore City Police Officer and under color of State law.
20. At all times relevant, Defendant Frederick H. Bealefeld was acting in his official capacity as the Baltimore City Police Commissioner and under color of State law.
21. At all times relevant, Defendant Naomi Williams was acting in her official capacity as the acting warden of the CBIF and under color of State law.
22. At all times relevant, Defendants, John Doe and Jane Doe were acting in their official capacities as correctional officers employed by the Maryland Department of Public Safety and Correctional Services and under color of State law.
23. Defendant Mayor and City Council of Baltimore ("City of Baltimore" or "City") is a municipal corporation with power to sue or be sued in any court.
24. Defendant Baltimore City Police Department is, for the purposes of 42 USC § 1983, a local government entity.
25. Defendant Baltimore City Police Commissioner Frederick H. Bealefeld is appointed by the Mayor of the City of Baltimore; the organizational chart of the City of Baltimore lists the Baltimore City Police Department as a department of Baltimore City; the Baltimore City Police Department is under the control of Baltimore City; and officers of the Baltimore City Police Department perform police functions typical of a municipal, not state, government police department.
26. Defendant Baltimore City Police Department is, for all relevant legal and practical purposes herein, part of the government of the City of Baltimore. For the
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purposes of this Complaint, Baltimore City Police Department is intended to include the Mayor and City Council of Baltimore and Baltimore City, both of whom have plenary control over the Baltimore City Police Department.
27. At all times relevant, all Defendants were acting under the color of the laws, statutes, ordinances, rules, regulations, customs and usages of the State of Maryland.1
28. At all times relevant, all Defendants had an affirmative duty, but otherwise failed, to protect Ms. Munyiri from harm, including and especially, the risk of violation of her constitutional rights.
Facts 29. Plaintiff, Rosemary Munyiri, serves as a Registered Nurse with the Johns Hopkins Hospital System and works at the main campus facility located in the Broadway corridor of Baltimore City. 30. Ms. Munyiri regularly works a Twelve (12) hour shift, ordinarily beginning at 7 AM and ending at 7 PM. 31. On April 12, 2008, Ms. Munyiri worked her normal shift and left the hospital at approximately 7:35 PM anticipating her daily commute home to her residence in the Pikesville area of Baltimore County. 32. She was attired in her pink hospital scrubs at the time.
1 Although at present Plaintiff does not assert any State law claims, all notices required by Md. Code Ann. (2008) § 5-304 Courts and Judicial Proceedings Article and Md. Code Ann. (2008) § 12-106 of the State Government Article were given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the undersigned counsel to, respectively, the Baltimore City Solicitor and to the State Treasurer. Those notices and the attendant State procedural requirements are inapplicable to actions brought solely under 42 USC § 1983. See, e.g., Felder v. Casey, 487 U.S. 131 (1988).
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33. Ms. Munyiri stands roughly five (5) feet two (2) inches tall and is very petite.
34. Leaving the hospital, she proceeded west on Madison Street. 35. Unbeknownst to Ms. Munyiri, an accident had occurred some time prior in the area of I-83 North and North Avenue. 36. As a result, a number of Baltimore city police officers were dispatched to block a number of entrance ramps to Northbound I-83. 37. One such officer was Defendant Baltimore City Police Officer Peter M. Haduch, Jr. 38. Officer Haduch had initially positioned his marked patrol car across the Madison Street entrance ramp to I-83 North (“the Madison Street Ramp”). 39. Shortly thereafter, a civilian vehicle attempted to bypass Officer Haduch’s Patrol Car by driving over a wide, low curb adjacent to and slightly behind where the Officer’s car was positioned. 41. Officer Haduch uneventfully turned the civilian vehicle away and did not arrest or otherwise cite the driver of that vehicle. 42. Thereafter, Officer Haduch repositioned his patrol car from the entrance ramp onto the wide, low curb immediately adjacent to it with his emergency lights activated and with his vehicle facing North and away from traffic which would otherwise be approaching the area. 43. According to Officer Haduch, he placed five (5) road flares across the Madison Street Ramp, which would have placed the flares to the left side of his patrol
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car and his patrol vehicle between the flares and any vehicles approaching from the East on Madison Street.
44. On April 12, 2008, at about the time Officer Haduch was performing these functions, the weather was cloudy and there was considerable precipitation falling, with ambient temperatures around 50 degrees.
44. Approximately 25 minutes after Officer Haduch allegedly placed road flares across the Madison Street Ramp, Ms. Munyiri approached from the East the intersection of the Madison Street Ramp and East Madison Street.
45. She proceeded up the Ramp in the normal course as it was not blocked by Officer Haduch’s Patrol Vehicle or by any other physical barrier.
46. Ms. Munyiri observed no road flares across the Madison Street Ramp. 47. Immediately thereafter, and with his emergency light still activated, Officer Haduch proceeded up the ramp with the intention to stop Ms. Munyri’s vehicle – a late model Toyota RAV4. 48. According to Officer Haduch, he intended to force Ms. Munyiri onto the shoulder of I-83 North and into the concrete barrier wall which runs along side the roadway. 49. Once Ms. Munyiri understood that Officer Haduch wished her to stop, she did. 50. The entire distance traversed by Ms. Munyiri’s vehicle from the beginning of the Madison Street Ramp to the point where she stopped was 4/10th of one (1) mile. 51. The entire distance that Officer Haduch pursued Ms. Munyiri was less than 4/10th of one (1) mile.
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52. The approximate distance from the beginning of the Madison Street Ramp to the point on I-83 North where the shoulder is sufficiently wide enough to pull a vehicle over outside the right hand lane of traffic is approximately 4/10th of one (1) mile.
53. According to Officer Haduch, once Ms. Munyri’s vehicle was stopped, the Officer “stepped from [his] car . . . [with its] lights and siren [] still on.”
54. He then proceeded to draw his service weapon for his “own safety” and proceeded to the rear of his vehicle to use “the trunk of [his] car for cover,” all the while pointing his service weapon at Ms. Munyiri.
55. With his siren still wailing and from a position of “cover” behind his patrol car, Officer Haduch then “shouted orders [for Ms. Munyiri] to turn off the vehicle.”
56. The Officer apparently had to shout his orders at least “10 times” before Ms. Munyiri complied.
57. While continuing to hold Ms. Munyiri at gunpoint, the Officer thrice ordered Ms. Munyuri to throw her keys from the vehicle, which she did.
58. Officer Haduch then ordered Ms. Munyiri to exit her vehicle and lay prone and face down on the ground, which she also did.
59. Thereafter, the Officer holstered his weapon, handcuffed Ms. Munyiri and placed her in his patrol car where she apparently sat for several hours in 50 degree weather with the windows down in her light and now wet work attire.
60. During their time together in the patrol car, Officer Haduch was rude, offensive, and repeatedly ridiculed Ms. Munyiri, including telling her that “after tonight you will not have a drivers’ license” and that she would otherwise never drive again.
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61. Subsequent to her arrest, Ms. Munyiri’s person, purse and her vehicle were searched at the scene.
62. No weapons were found. 63. No contraband was found. 64. Ms. Munyri was found to have no criminal record. 65. Ms. Munyiri was found to have no outstanding warrants. 66. Ms. Munyiri was found to have no points on her driver’s license. 67. Ms. Munyiri was found to be possessed of a valid Maryland driver’s license. 68. Ms. Munyiri was found to be possessed of a valid Maryland registration for her vehicle. 69. Officer Haduch confirmed Ms. Munyiri’s identity at the time of her arrest. 70. Prior to April 12, 2008, Ms. Munyiri had never been arrested for any reason. 71. Officer Haduch charged Ms. Munyiri with three (3) misdemeanor traffic offenses – “negligent driving,” “failure of driver to curb upon signal by police vehicle,” and “attempt by driver to elude uniformed police by failing to stop.”2 72. After Officer Haduch completed his Statement of Probable Cause, he transported Ms. Munyiri to the Baltimore City Central Booking and Intake Center where she continued to suffer his and others’ ridicule, including comments about what color
2 The bulk of the factual information contained in paragraph 29 through 71 of Plaintiff’s Complaint is based upon Officer Haduch’s own Statement of Probable Cause which he used to “justify” the stop, arrest, and detention of Rosemary Munyiri.
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prison garb would look best on her and whether or not Ms. Munyiri’s hair was her own or the product of “hair extensions.”
73. As a former “liaison officer” between the Baltimore City Police Department and the CBIF operated by the Maryland Department of Public Safety and Correctional Services, Officer Haduch specifically knew what would happen to Ms. Munyiri at the CBIF and intended that she be subjected to the events that she was following her arrest, including an unconstitutional strip and body cavity search of her person.
74. Officer Haduch acted with malice towards Ms. Munyiri. 75. Upon entering the CBIF in the custody of Officer Haduch, Ms. Munyiri was greeted by a CBIF nurse who took her vital signs and who informed Ms. Munyiri that she would be “stripped.” 75. Thereafter, Ms. Munyiri, in the presence of Officer Haduch, was informed of the charges against her. 76. A few minutes later, Ms. Munyri was escorted by CBIF correctional officers Jane Doe and/or John Doe to a CBIF room, along with other prisoners and, in the presence of those other prisoners, was ordered to disrobe to the point where she was completely naked. 77. Ms. Munyuri then had her hair physically searched by Jane Doe and/or John Doe. 78. Ms. Munyuri was then ordered by Jane Doe and/or John Doe, in the presence of other CBIF personnel and other prisoners, to squat. 79. Ms. Munyuri was then ordered, in the presence of other CBIF personnel and other prisoners, to cough.
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80. Ms. Munyuri was then ordered, in the presence of other CBIF personnel and other prisoners, to spread her buttocks exposing her anus and vaginal areas.
81. Thereafter, Ms. Munyiri was put in holding cell. 82. Approximately twenty-four (24) hours later, Ms. Munyiri was released on bond. 83. A friend of Ms. Munyiri posted bond on her behalf. 84. On July 2, 2008, the State entered a plea of Nolle Prosequi with respect to all charges against Ms. Munyiri after Officer Haduch, the State’s only witness to Ms. Munyiri’s alleged violations, failed to appear for trial.
Count I – 42 USC 1983 Munyiri v. Maryland Department of Public Safety and Correction Services
85. The Plaintiff repeats and realleges Paragraphs 1 through 84 of the Complaint as if more fully set forth herein.
86. The errant policy and/or custom and practice of the Maryland Department of Public Safety and Correctional Services of strip searching and conducting visual body cavity searches of all men and women taken into custody, including Plaintiff Rosemary Munyiri, violates the United States Constitution, the Constitution of the State of Maryland, and Federal and State Law.
87. By the actions described above, the Defendant has deprived the Plaintiff of her clearly established rights guaranteed by, among other things, the Constitution of the United States to be free from an unreasonable search and seizure.
88. The Defendant, Maryland Department of Public Safety and Correctional Services, by and through its agents, servants, and/or employees, knowingly and with deliberate indifference to the constitutional rights of Ms. Munyiri, maintained and
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permitted official policies and customs permitting the occurrence of the types of wrongs set forth herein above. These policies and customs include, but are not limited to, the deliberately indifferent training of its employees in matters pertaining to strip searches and visual body cavity searches.
89. Plaintiff, on information and belief, alleges that such errant policies and/or customs and practices of the Maryland Department of Public Safety and Correctional Services were the moving force behind the violation of Plaintiff’s rights and the Defendants, each of them, are liable for all of the injuries sustained by Ms. Munyiri as set forth herein above.
90. As a direct and proximate result of this conduct, Plaintiff has suffered injuries including, but not limited to: assault, battery, false arrest, negligent infliction of emotional distress, mental anguish, embarrassment, invasion of privacy, violation of constitutional rights, and deprivation of constitutional rights.
Count II – 42 USC 1983 Munyiri v. Gary D. Maynard 91. Plaintiff repeats and realleges Paragraphs 1 through 90 of this Complaint as if more fully set forth herein. 92. Defendant, Gary D. Maynard, is the Secretary of the Maryland Department of Public Safety and Correctional Services and is the policy maker for the agency and its constituent facilities, including the CBIF. 93. Defendant Maynard implemented and maintained a policy and practice of conducting strip searches and visual body cavity searches of all persons who were admitted to the CBIF, regardless of the nature of charges or the circumstances of the individual.
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94. Defendant Maynard knew or should have known that the strip search policy and practice at the CBIF, as implemented by its personnel, would directly result in correctional officers conducting unconstitutional searches of every man and woman who was held in the jail, including Plaintiff.
95. Because of his supervisory role, Defendant Maynard knew or should have known that it was clearly established law that as of 1986, strip and cavity searches of those arrested for offenses not likely to involve weapons or contraband, without any individualized finding of reasonable suspicion, were constitutionally impermissible. Smith v. Montgomery County, 643 F. Supp. 435 (1986); Jones v. Murphy, 470 F. Supp. 2d 537 (2007).
96. The right to be free of such searches is clearly established in the law. 97. Defendant Maynard established and enforced the policy and practice of conducting routine strip searches and body cavity searches, without legal authority or any reason to believe the men and women so searched had anything concealed on their persons. 98. Defendant Maynard implemented and maintained this strip search policy and practice. 99. As a result of Defendant Maynard's conduct, Plaintiff was subjected to the strip search described above. 100. Even after Defendant Maynard had actual notice that the policy and practice of strip-searching women and men was unconstitutional, he continued to enforce that unconstitutional policy and practice or otherwise failed to properly train
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those under his supervision to ensure citizens do not suffer the constitutional violations such as those prompting this Complaint.
101. Defendant Maynard acted with reckless indifference to the Constitutional Rights of the men and women detained by the CBIF, including Plaintiff, and as such, with malice.
102. As a direct and proximate result of this conduct, Plaintiff has suffered injuries including, but not limited to: assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, mental anguish, embarrassment, invasion of privacy, violation of constitutional rights, and deprivation of constitutional rights.
Count III – 42 USC 1983 Munyiri v. Naomi Williams 103. Plaintiff repeats and realleges Paragraphs 1 through 102 of this Complaint as if more fully set forth herein. 104. Defendant, Naomi Williams, is the acting Warden for the Baltimore Central Intake and Booking Facility and is, along with Defendant Gary Maynard, the policy maker for the CBIF. 105. Defendant Williams implemented and maintained a policy and practice of conducting strip searches and visual body cavity searches of all persons who were admitted to the CBIF, regardless of the nature of charges or the circumstances of the individual. 106. Because of her supervisory role, Defendant Williams knew or should have known that the strip search policy and practice at the CBIF, as implemented by its
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personnel, would directly result in correctional officers conducting unconstitutional searches of every man and woman who was held in the jail, including Plaintiff.
107. Because or her supervisory role, Defendant Williams knew or should have known that as of 1986, strip and cavity searches of those arrested for offenses not likely to involve weapons or contraband, without any individualized finding of reasonable suspicion, were constitutionally impermissible. Smith v. Montgomery County, 643 F. Supp. 435 (1986); Jones v. Murphy, 470 F. Supp. 2d 537 (2007).
108. The right to be free of such searches is clearly established in the law. 109. Defendant Williams established and enforced the policy and practice of conducting routine strip searches and body cavity searches, without legal authority or any reason to believe the men and women so searched had anything concealed on his or her person. 110. Defendant Williams implemented and maintained this strip search policy and practice. 111. As a result of Defendant Williams's conduct, Plaintiff was subjected to the strip and cavity search described above. 112. Even after Defendant Williams had actual notice that the policy and practice of strip searching women and men was unconstitutional, she continued to enforce that unconstitutional policy and practice or otherwise failed to properly train correctional officers under her supervision to ensure citizens do not suffer constitutional violations such as those prompting this Complaint.
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113. Defendant Williams acted with reckless indifference to the constitutional rights of the men and women detained by the CBIF, including Plaintiff, and as such, with malice.
114. As a direct and proximate result of this conduct, Plaintiff has suffered injuries including, but not limited to: assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, mental anguish, embarrassment, invasion of privacy, violation of constitutional rights, and deprivation of constitutional rights.
Count IV – 42 USC 1983 Munyiri v. John and Jane Doe 115. Plaintiff repeats and realleges Paragraphs 1 through 114 of this Complaint as if more fully set forth herein. 116. Defendants, John and Jane Doe, are correctional officers employed by the Maryland Department of Public Safety and Correctional Services. 117. Defendants John and Jane Doe engaged in the practice of conducting strip searches and visual body cavity searches of all persons who were admitted to the CBIF, regardless of the nature of charges or the circumstances of the individual. 118. Defendants John and Jane Doe knew or should have known that the strip search policy and practice at the CBIF, and as performed by them upon Plaintiff, were unconstitutional. 119. Defendants John and Jane Doe knew or should have known that it was clearly established law that as of 1986, strip and cavity searches of those arrested for offenses not likely to involve weapons or contraband without any individualized finding
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of reasonable suspicion were constitutionally impermissible. Smith v. Montgomery County, 643 F. Supp. 435 (1986); Jones v. Murphy, 470 F. Supp. 2d 537 (2007).
120. The right to be free of such searches is clearly established in the law. 121. Defendants John and Jane Doe engaged in the practice of conducting routine strip searches and body cavity searches, without legal authority or any reason to believe the men and women so searched had anything concealed on their persons. 122. As a result of Defendants John and Jane Doe subjected Plaintiff to the strip search described above. 123. Defendants John and Jane Doe acted with reckless indifference to the constitutional rights of the men and women detained by the CBIF, including Plaintiff, and as such, with malice. 124. As a direct and proximate result of this conduct, Plaintiff has suffered injuries including, but not limited to: assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, mental anguish, embarrassment, invasion of privacy, violation of constitutional rights, and deprivation of constitutional rights.
Count V – 42 USC 1983 Munyiri v. Peter M. Haduch, Jr. 125. Plaintiff repeats and realleges Paragraphs 1 through 124 of this Complaint as if fully set forth herein. 126. Officer Haduch failed to properly communicate his intentions to block the Madison Street Ramp and failed to follow established police procedures in his attempt to do so.
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127. Officer Haduch knew or should have known that his failure to do so created an unreasonable risk of harm to himself, Plaintiff, and others, including the potential for false arrest, false imprisonment, and a concomitant deprivation of Plaintiff’s civil liberties and constitutional rights.
128. Plaintiff was unlawfully seized by Defendant Haduch without a warrant, probable cause or reasonable suspicion of any wrongdoing whatsoever and assaulted her with two (2) deadly weapons, his patrol vehicle and his service weapon.
129. Officer Haduch used unreasonable and excessive force during his unlawful arrest of Ms. Munyiri by attempting or preparing to attempt to ram Plaintiff’s vehicle with the Officer’s patrol car, by pointing his service weapon at Plaintiff without any reasonable justification, and by forcing her to lay prone in the roadway of Northbound I-83.
130. In addition, and as a former “liaison officer” between the Baltimore City Police Department and the CBIF, Officer Haduch, being intimately familiar with the internal operations of that Facility, specifically knew the fate that awaited Ms. Munyiri when she arrived at the CBIF, to which Officer Haduch had entrusted her – that is to say, a humiliating and unconstitutional strip and cavity search of her person.
131. The unconstitutional strip and cavity searching of arrestees charged with minor offenses is a pervasive, well documented and publicized problem within the Maryland Department of Public Safety and Correctional Services in general and in the CBIF in particular and has been so for some time.
132. Yet, even though Plaintiff was charged with minor traffic offenses by Officer Haduch who had the legal discretion not to arrest Ms. Munyiri, Officer
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nonetheless Haduch transported Ms. Munyiri to the CBIF, thereby exercising his discretion in a manner which virtually guaranteed the constitutional deprivations of which Ms. Munyiri now complains.
133. Officer Haduch acted maliciously and/or was guilty of a wanton and reckless disregard for the rights, feelings and safety of Plaintiff.
134. As a direct and proximate result of this conduct, Plaintiff has suffered injuries including, but not limited to: assault, battery, false arrest, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, mental anguish, embarrassment, invasion of privacy, violation of constitutional rights, and deprivation of constitutional rights.
Count VI – 42 USC 1983 Munyiri v. Frederick H. Bealefeld, Baltimore City Police Department
and The Mayor and City Counsel of Baltimore 135. Plaintiff repeats and realleges Paragraphs 1 through 134 of this Complaint as if fully set forth herein. 136. At all times relevant, Defendant Bealefeld was the acting Commissioner of the Baltimore City Police Department, and was appointed to that post by the Mayor and City Counsel of Baltimore. 137. As such, he was ultimately responsible for directing the activities of the Baltimore City Police Department and its police officers, including developing, implementing, and maintaining training and other policies, including, but by no means limited to, policies with regard to when and under what circumstances arrestees are to be transported to the CBIF.
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138. At all times relevant defendants Bealefeld, the Baltimore City Police Department, and the Mayor and City Counsel of Baltimore knew or should have known that Baltimore City Police Officers are ill-trained in the appropriate methods for effecting routine traffic stops, for blocking entrance ramps to freeways and similar activities which can and do lead to unnecessary conflict between officers of the Baltimore City Police Department and the citizens of the State of Maryland as well as unnecessary, if not false imprisonment of, and the visitation of violence upon, otherwise innocent individuals by the Baltimore City Police Department.
139. At all times relevant, defendants Bealefeld, the Baltimore City Police Department, and the Mayor and City Counsel of Baltimore knew or should have known that the unnecessary transportation of arrestees charged with minor traffic offenses not involving weapons, contraband, or a suspicion of either to the CBIF would result in an unconstitutional strip and cavity search of such arrestees, including Plaintiff.
140. Despite this, the Baltimore City Police Department continues to transport and encourages, if not instructs, its officers to transport and entrust those charged with minor traffic offenses not involving weapons or contraband to the CBIF, even though the Department has been sued on multiple occasions for such conduct, is well aware of the practices of the CBIF through the appointment of “liaison officers” between it and the CBIF, and has been a codefendant with CBIF and its supervisory personnel for the various offenses set forth in this Complaint.
141. As such, the Baltimore City Police Department has both a policy of transporting those charged with minor traffic violations to the CBIF when it otherwise
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has a choice to merely instruct its officers to merely issue tickets and send drivers on their way with a promise to appear at any subsequent proceedings.
142. The unconstitutional strip and cavity searching of arrestees charged with minor offenses is a pervasive, well documented and publicized problem within the Maryland Department of Public Safety and Correctional Services in general and in the CBIF in particular and has been so for some time.
143. Accordingly, defendants Bealefeld, the Baltimore City Police Department, and the Mayor and City Counsel of Baltimore possessed actual or constructive knowledge that their subordinates were engaged in conduct that poses a pervasive and unreasonable risk of constitutional injury to the citizens of Maryland, and to Plaintiff in particular.
144. Defendants Bealefeld, the Baltimore City Police Department, and the Mayor and City Counsel of Baltimore’s response to this knowledge was so inadequate as to constitute their respsective deliberate indifference to or their tacit authorization of the aforementioned offensive and unconstitutional practices.
145. As a direct and proximate result of this conduct, Plaintiff has suffered injuries including, but not limited to: assault, battery, false arrest, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, mental anguish, embarrassment, invasion of privacy, violation of constitutional rights, and deprivation of constitutional rights.
146. There exists a causal and affirmative link between defendant’s failure to act and the constitutional injury of which Ms. Munyiri complains.
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WHEREFORE, Plaintiff, Rosemary Munyiri, respectfully asks that this Court enter judgment in her favor and against the Defendants, both jointly and severally, on any or upon all of the Counts of this Complaint and as follows:
A. Five Million Dollars ($5,000,000.00) in compensatory damages; B. Five Million Dollars ($5,000,000.00) in punitive damages; C. Reasonable attorneys fees; and D. For such other and further relief as the nature of this case may require.
Jury Trial Demand Pursuant to Fed. R. Civ. P. 5(d) and 38, Plaintiff demands all issues in this matter be tried before a jury.

Respectfully submitted: SCHULTE BOOTH, P.C.

By:

/s/

Robert D. Schulte (FBN 24868)

3001 Elliott Street

Baltimore, Maryland 21224

(410) 732-1315

rschulte@schultebooth.com

Attorneys for Plaintiff, Rosemary Munyiri

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Northern Division

ROSEMARY MUNYIRI, Plaintiff,
v.
PETER M. HADUCH, JR., et al., Defendants.

) ) ) ) ) Civil No. AMD- 08-1953 ) ) ) ) ) )

THE MAYOR AND CITY COUNCIL OF BALTIMORE’S MOTION TO DISMISS
The Mayor and City Council of Baltimore (the “City), by its undersigned counsel, respectfully moves pursuant to Fed.R.Civ.P 12(b), for this Honorable Court to dismiss the Complaint with prejudice and without leave to amend for the following reasons:
1. The Complaint fails to state a claim and cannot state a claim upon which relief can be granted against this Defendant.
2. As a matter of law, the Baltimore Police Department is not an agency of the City and officers of that Department are not agents, servants or employees of the City.
3. Plaintiff had failed to state a constitutional claim against the City. 4. And for the reasons set forth in the accompanying memorandum of law incorporated herein by reference. WHEREFORE, the Mayor and City Council of Baltimore requests that the Court dismiss the Complaint as to it, with prejudice and without leave to amend.

Respectfully submitted,
/s/______________________ DAVID E. RALPH (23500) Chief City Solicitor BALTIMORE CITY DEPARTMENT OF LAW 100 Holliday Street Baltimore, Maryland 21202 Telephone: 410-396-3659 Facsimile: 410-547-1025 Attorney for the Mayor and City Council of Baltimore, Defendant CERTIFICATE OF SERVICE The foregoing motion was filed by electronic means pursuant to Fed.R.Civ.P. 5(b)(2)(D) and LR 102. Pursuant to LR 102(c) and ECF Rule III.G.1, notice of electronic filing constitutes a certificate of service as to all parties to whom electronic notice is sent.
/s/______________________ DAVID E. RALPH
2

. IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND Northern Division

ROSEMARY MUNYIRI, Plaintiff,
v.
PETER M. HADUCH, JR., et al., Defendants.

) ) ) ) ) Civil No. AMD- 08-1953 ) ) ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF THE MAYOR AND CITY COUNCIL OF BALTIMORE’S
MOTION TO DISMISS The Mayor and City Council of Baltimore (the “City”), by their undersigned counsel, submits this memorandum of law in support of its motion to dismiss:
INTRODUCTION The Plaintiff, Rosemary Munyiri, filed this action against the City, as well as the Commissioner of the Baltimore Police Department and a number of other parties allegedly arresting her without probable cause and with excessive force in violation of her constitutional rights. Compl., ¶¶ 1 – 7. Plaintiff alleges inter alia, that “Defendant Baltimore City [sic] Police Department is, for all relevant legal and practical purposes herein, part of the government of the City of Baltimore.” Compl., ¶¶ 25, 26. It is from this erroneous contention that Plaintiff’s claims against the City are premised. See Compl., ¶¶ 136 - 46.

For the most part, the City is not mentioned in any substantive allegation of the Complaint. Rather, the Complaint mainly attempts to assert vicarious liability against the City for the actions of members of the police department. Compl., ¶¶ 25, 26. Because, however, it is well established as a matter of law that the Baltimore Police Department is a State institution run by employees of the State and not a City institution run by agents or employees of the City, the Complaint cannot state a claim against the City for vicarious liability. Similarly, because the alleged actions of the police, even if they were agents of the City, cannot be the basis of a Section 1983 action against the City, Plaintiff’s Complaint should be dismissed as to the City with prejudice.
ARGUMENT A. THE BALTIMORE POLICE DEPARTMENT IS AN AGENCY OF THE STATE OF
MARYLAND AND NOT OF THE CITY OF BALTIMORE. To the extent that the Plaintiff seeks to hold the City liable under the doctrine of respondeat superior for the actions or inaction of officers of the Baltimore Police Department, Plaintiff’s claim must be dismissed as a matter of law. As a matter of well established law, respondeat superior liability requires an agency relationship between the wrongdoer and the defendant at the time of the alleged wrongful conduct. See General Building Contractors Assoc., Inc. v. Pennsylvania, 458 U.S. 375, 392 (1982) (“respondeat superior . . . would not support the imposition of liability on a defendant based on the acts of a party with whom it had no agency or employment relationship”). See also Chevron. v. Lesch, 319 Md. 25, 32-33 (1990) (affirming summary judgment determination that no employer-employee relationship existed at time of alleged wrong); Gallagher’s Estate v. Battle, 209 Md. 592, 602 (1956) (acknowledging the existence of a principal-agent relationship in connection with alleged
2

injury as a necessary prerequisite to vicarious liability); Black’s Law Dictionary 1311-12 (6th ed. 1990) (“Doctrine applies only when relation of master and servant existed between defendant and wrongdoer at time of injury sued for, in respect to very transaction from which it arose.”). The party asserting a claim dependent upon an agency relationship “bears the burden of proving its existence, including its nature and extent.” Fare Deals, Ltd. v. World Choice Travel.Com, Inc., 180 F.Supp.2d 678, 685 (D.Md. 2001) (citation omitted).
As a matter of long standing Maryland law, the Baltimore Police Department (“BPD”) is an agency of the State of Maryland, not the City of Baltimore. PUBLIC LOCAL LAWS OF MARYLAND, Art. 4, §16-2 (a) (“The Police Department of Baltimore City is hereby constituted and established as an agency and instrumentality of the State of Maryland.”); Clea v. Mayor and City Council of Baltimore, 312 Md. 662 (1988); Ashton v. Brown, 339 Md. 70, 104 n.18 (1995); Baltimore Police Department v. Cherkes, 140 Md. App. 282, 303-05, 323 (2001); Williams v. Baltimore, 128 Md. App. 1 (1999) rev’d on other grounds, 359 Md. 101 (2000). The Baltimore Police Department was removed from the control of the City and transferred to the State in 1860, Baltimore v. State, 15 Md. 376 (1860); H. H. Walker Lewis, The Baltimore Police Case of 1860, 26 MD. L. REV. 215 (1966), and it remains a State agency today.
In the instant matter, Plaintiff ignores well established law by contending that because the Police Commissioner “is appointed by the Mayor of the City of Baltimore [and] the organizational chart of the City of Baltimore lists the Baltimore City [sic] Police Department as a department of Baltimore City,” that the “Police Department is under the control of Baltimore City. . . .” Compl., ¶ 25. See Mayor & City Council v. Clark, 404
3

Md. 13, 26, 27 (2008) (holding that despite the appointment of Commissioner, City does not control police and police are State agents). The City and its officials by law have no control the operation of the Baltimore Police Department. Clark, 404 Md. at 26, 27; BALT. CITY CHARTER, Art. II, §27; Adams v. Baltimore Transit Co., 203 Md. 295, 311 (1953); Upshur v. Baltimore, 94 Md. 743, 756 (1902); Baltimore v. State, 15 Md. 376 (1860). As this Court recently held in Chin v. City of Baltimore, 241 F.Supp.2d 546, 549 (D. Md. 2003), “as a matter of Maryland law, the Baltimore City government does not wield enough control over the Baltimore Police Department to be subject to liability for the Baltimore Police Department's actions.”(emphasis added). As a result, the City cannot be liable for the acts or omissions of the officers of the Baltimore Police Department. See also, Clea, 312 Md. at 669-70 (“As a matter of Maryland law, Baltimore City is simply not [the officers’] employer for tort liability purposes.”)(emphasis added). Accordingly, Plaintiffs’ claims against the City should be dismissed.
B. PLAINTIFF HAS FAILED TO STATE A CONSTITUTIONAL CLAIM AGAINST THE CITY.
The Complaint attempts to assert a single claim under 42 U.S.C. § 1983 against the City. Plaintiff, however, has not pled sufficient facts to state a constitutional claim against the City.
Municipalities can be subject to liability for violations of civil rights under certain circumstances. A municipality, however, “is only liable when it can be fairly said that the city itself, not its servants, is the wrongdoer.” Canton v. Harris, 489 U.S. 378, 385 (1989). It cannot, under the theory of respondeat superior, be held vicariously liable for
4

the actions of its agents or servants. Monell v. New York Department of Social Services, 436 U.S. 658, 694 (1978).
“Local governing bodies...can be sued directly under Section 1983...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.” Monell, 436 U.S. at 690. A complaint which “appears to have merely attached a conclusory allegation of ‘policy’ to what in essence is a claim based on a single unconstitutional act” must be dismissed. Giarrusso v. Chicago, 539 F. Supp. 690, 693 (N.D. Ill. 1982). See also Daughtry v. Arlington County, Virginia, 490 F. Supp. 307, 311 (D.C. 1980) (plaintiffs “cannot rely on conclusory allegations but instead must plead facts which show that a county policy or custom directly caused injury to plaintiffs’ constitutional rights”); Ivey v. Board of Regents of University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (“a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled”). Not only must the policy or custom under attack be “fairly attributable to the municipality as its ‘own’,” it must also be the “moving force” behind the particular constitutional violation. Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987), cert. denied, 484 U.S. 1027 (1988).
In the present case, Plaintiff alleges only that members of the Baltimore Police used excessive force which allegedly violated her rights. Plaintiff has failed to allege any facts to show a policy, custom or practice of anyone, much less of the City, that was the moving force behind the alleged deprivation of her rights. While she has sprinkled in a few conclusory allegations about policies, Plaintiff has not alleged sufficient facts to show a direct link between any City policy and any alleged deprivation of Plaintiff’s
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rights. Plaintiff cannot demonstrate that the excessive force or warrantless arrest was caused by a policy of the City (as opposed to some other policy). Indeed, as set forth more fully herein, the City does not as a matter of law control or establish Police policy. Therefore, the Complaint does not and cannot contain sufficient factual allegations to support a claim of municipal liability and the Court should dismiss the Plaintiff’s constitutional claims with prejudice.
C. AS A MATTER OF LAW, PLAINTIFF CANNOT STATE A CONSTITUTIONAL CLAIM AGAINST THE CITY.
The Court should dismiss Plaintiff’s Section 1983 claim against the City with prejudice, because as a matter of law, Plaintiff cannot state a constitutional claim against the City. In order to be liable for police misconduct, the City must have been a “final policy maker.” Pembaur v. Cincinnati, 475 U.S. 469 (1986). It is State law that defines the relationship between the municipality and its officials and the police department and that determines whether the municipality or its official is to be deemed a policy maker for federal law purposes. St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (“the identification of policy making official is a question of state law”).
In McMillian v. Monroe County, Ala., 520 U.S. 781 (1997), the Supreme Court considered whether an Alabama county sheriff was a policy maker in the area of law enforcement for county or for the State. The Court emphasized that its inquiry was dependent on an analysis of state law, id. at 786, and that, although the simple labeling of an official as a state or county official would not answer the inquiry, “our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official’s functions under relevant state law.” Id.
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Even though the sheriffs were paid and equipped by the county, each sheriff’s jurisdiction was limited to the borders of his county and sheriffs were elected locally, the Court concluded that sheriffs were acting for the State when engaged in law enforcement. Id. at 791-793. Sheriffs were State policy makers because (1) sheriffs were required to perform duties for the state courts; (2) sheriffs were charged by law with the duty and authority to enforce the state criminal laws; (3) counties had no law enforcement powers; and (4) county commissioners could not instruct or direct sheriffs in their law enforcement activities. Id. at 789-91.
When the nature of the BPD is considered under a McMillian analysis, it becomes apparent that police officers of the BPD, when engaged in law enforcement activities, are State actors or policy makers. As noted above, the General Assembly constituted the BPD as an agency of the State, intending to remove the police force from the City’s control. Like the Alabama sheriffs, police officers of the BPD have been given the duty and authority to enforce the State’s criminal laws. PUBLIC LOCAL LAWS OF MARYLAND, Art. 4, §§16-2 and 16-3. Moreover, like the counties in McMillian, the City government has no law enforcement powers. See, e.g., Green v. Baltimore, 181 Md. 372, 374 (1943); Adams v. Baltimore Transit Co., 203 Md. 295, 311 (1953) (City is deprived of the power of enforcing its ordinances); and Baltimore v. Silver, 263 Md. 439, 441 (1971) (“…the City has no power with regard to the enforcement of the law….”). In addition, again like the counties in McMillian, the City and its officials are prohibited from exercising any control over the BPD. See Chin, 241 F.Supp.2d at 549; BALT. CITY CHARTER, Art. II, §27, supra.
Accordingly, the Complaint should be dismissed with prejudice.
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D. ASSUMING ARGUENDO, THAT THE CITY COULD BE HELD LIABLE UNDER ANY CLAIM, PLAINTIFF NONETHELESS CANNOT RECOVER PUNITIVE DAMAGES.
Plaintiff seeks punitive damages as part of her judgment against the City. It is well established, however, that punitive damages cannot be recovered against a municipality such as the City for actions as alleged in the Complaint. Rather, punitive damages may only be awarded in an action brought under § 1983 “when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). In Kolstad v. Ada, 527 U.S. 526 (1999), the Court discussed the intent needed for punitive damages:
Most often, however, eligibility for punitive awards is characterized in terms of a defendant's motive or intent. See, e.g., 1 Sedgwick, supra, at 526, 528; C. McCormick, Law of Damages 280 (1935). Indeed, “the justification of exemplary damages lies in the evil intent of the defendant.” 1 Sedgwick, supra, at 526; see also 2 J. Sutherland, Law of Damages § 390, p. 1079 (3d ed. 1903) (discussing punitive damages under rubric of “compensation for wrongs done with bad motive”). Accordingly, “a positive element of conscious wrongdoing is always required.” McCormick, supra, at 280. Id. at 538. Thus, case law emphasizes the need for bad motive or intent on the part of a defendant. At the least, there must be conscious wrongdoing. The instant Complaint presents on of this.
Here, Plaintiff has not alleged, and cannot allege, any facts to show an evil motive on the part of the City or the intent on the part of the City to injure Ms. Munyiri or anything to support a claim for punitive damages against the City. Accordingly, the Plaintiffs’ claims for punitive damages should be dismissed.
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CONCLUSION For all the foregoing reasons, the Court should dismiss the Complaint as to the City with prejudice.
Respectfully submitted, /s/______________________ DAVID E. RALPH (23500) Chief City Solicitor BALTIMORE CITY DEPARTMENT OF LAW 100 Holliday Street Baltimore, Maryland 21202 Telephone: 410-396-3659 Facsimile: 410-547-1025 Attorney for Mayor and City Council of Baltimore, Defendant
9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Northern Division

ROSEMARY MUNYIRI, Plaintiff,
v.
PETER M. HADUCH, JR., et al., Defendants.

) ) ) ) ) Civil No. AMD- 08-1953 ) ) ) ) ) )

O R D E R Upon consideration of the Mayor and City Council of Baltimore’s Motion to Dismiss and any opposition thereto, it is this ___day of _____________2008, by the United States District Court for the District of Maryland, ORDERED and ADJUDGED: 1. That the Motion is hereby GRANTED; and 2. That the Complaint is hereby DISMISSED as to the Defendant Mayor and City Council of Baltimore, with prejudice and without leave to amend; and 3. That judgment is hereby ENTERED in favor of the Defendant Mayor and City Council of Baltimore, and against the Plaintiff Rosemary Munyiri.

______________________ The Honorable Andre M. Davis United States District Court for the District of Maryland

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Northern Division)

ROSEMARY MUNYIRI

*

Plaintiff

*

v.

* Case No: 1:08-CV-1953 AMD

PETER M. HADUCH, JR., et al.

*

Defendants

*

* * * * * * * * * * * * BALTIMORE POLICE DEPARTMENT’S, COMMISSIONER FREDERICK H. BEALEFELD’S AND OFFICER PETER M. HADUCH, JR.’S CONSOLIDATED MOTION TO DISMISS

NOW COME defendants, the Baltimore Police Department (hereinafter “BPD”),

Commissioner Frederick H. Bealefeld, (hereinafter “Bealefeld”), and Officer Peter M.

Haduch, Jr. (hereinafter “Haduch”), by and through their undersigned counsel and

pursuant to F. R. Civ. P 12(b)(6), hereby file this consolidated motion to dismiss and

move this Honorable Court to dismiss the Plaintiff’s Complaint against them and for

reasons state the following:

1. The Plaintiff’s Complaint fails to allege a cause of action for which relief

can be granted;

2. The BPD is a state agency and is entitled to immunity from civil suit under

the Eleventh Amendment to the United States Constitution;

3. Bealefeld did not personally participate in the acts complained of by the

Plaintiff and is therefore not liable. Bealefeld is entitled to qualified immunity;

4. Haduch had probable cause and legal authority to arrest the Plaintiff and is

therefore not liable to the Plaintiff;

5. A Memorandum of Law in support of this motion is being filed
contemporaneously for the court’s consideration.
WHEREFORE, based on the above averments and the supporting Memorandum
of Law, defendants BPD, Bealefeld, and Haduch respectfully move this Honorable Court
to dismiss the Plaintiffs’ Complaint against them with prejudice.
Respectfully submitted,
_________/S/______________ Neal M. Janey, Jr. Federal Bar No.: 26800 Assistant City Solicitor Office of Legal Affairs Baltimore Police Department 242 W. 29th Street Baltimore, Maryland 21211 Telephone: (410) 396-2496 Facsimile: (410) 396-2126 Email: neal.janey@baltimorepolice.org
Attorney for Defendants BPD, Bealefeld, & Haduch

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Northern Division)

ROSEMARY MUNYIRI

*

Plaintiff

*

v.

* Case No: 1:08-CV-1953 AMD

PETER M. HADUCH, JR., et al.

*

Defendants

*

* * * * * * * * * * * * CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 25th day of August 2008, a copy of the

foregoing Baltimore Police Department’s, Commissioner Frederick H. Bealefeld’s, and

Officer Peter M. Haduch, Jr.’s Consolidated Motion to Dismiss was forwarded via the

court’s electronic filing system to the following:

1. Robert D. Schulte, Esquire Schulte Booth, P.C. 3001 Elliott Street Baltimore, Maryland 21224

___________/S/____________________ Neal M. Janey, Jr.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Northern Division)

ROSEMARY MUNYIRI

*

Plaintiff

*

v.

* Case No: 1:08-CV-1953 AMD

PETER M. HADUCH, JR., et al.

*

Defendants

*

* * * * * * * * * * * * MEMORANDUM OF LAW IN SUPPORT OF BALTIMORE POLICE DEPARTMENT’S, COMMISSIONER FREDERICK H. BEALEFELD’S AND OFFICER PETER M. HADUCH, JR.’S CONSOLIDATED MOTION TO DISMISS

NOW COME defendants, Baltimore Police Department (hereinafter “BPD”),

Commissioner Frederick H. Bealefeld (hereinafter “Bealefeld”), and Officer Peter M.

Haduch, Jr.(hereinafter “Haduch”), by and through their undersigned counsel and

pursuant to L. R. 105 and F. R. Civ. P 12(b)(6), hereby files this Memorandum of Law in

support of their consolidated motion to dismiss. In support of their consolidated motion,

BPD, Bealefeld, and Haduch further state and aver the following:

Standard of Review

“A motion to dismiss pursuant to F. R. Civ. P.12 (b)(6) tests the sufficiency of [a]

complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The

district court is not bound to accept as true a legal conclusion couched as a factual

allegation. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (citing Briscoe v. LaHue,

663 F.2d 713, 723 (7th Cir. 1981)); Young v. City of Mount Ranier, 238 F.3d 567, 577

(4th Cir. 2001); White v. Mortgage Dynamics, Inc., 528 F. Supp. 2d. 576, 578 (D. Md.

2007). The court is not obligated to accept Plaintiff's conclusory allegations regarding the legal effect of the facts alleged. See United Mine Workers of Am. v. Wellmore Coal Corp., 609 F.2d 1083, 1085-86 (4th Cir. 1994). A Plaintiff has an obligation to provide grounds for his entitlement to relief and that obligation requires more than labels, conclusions, and formalistic recitation of the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007). “Factual allegations must be enough to raise a right to relief above a speculative level.” Qwest Communs. Corp. v. MarylandNational Capital Park & Planning Commission, 553 F. Supp. 2d 572, 574 (D. Md. 2008) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007).) “Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Twombly, 127 S. Ct. at 1969 (2007). Should a complaint set forth an adequate statement of facts, “the [c]ourt must consider all wellpled allegations … in the light most favorable to the [P]laintiff.” See Lambeth. v. Bd. of Comm 'rs of Davidson County, 407 F.3d 266, 268 (4th Cir. 2005). The BPD, Bealefeld, and Haduch contend that the Plaintiffs’ Complaint is insufficient to state a cause of action for which relief may be granted. The Plaintiffs’ Complaint must be dismissed.
Facts On April 12, 2008 at approximately 7:35 p.m., the plaintiff, Rosemary Munyiri (hereinafter “Plaintiff”) was driving home from work. Pl’s Compl. at ¶¶ 30-31. “Unbeknownst to [Plaintiff], an accident had occurred some time prior [to her commute] in the area of I-83 and North Avenue.” Id. at ¶ 35. “As a result, a number of Baltimore [C]ity police officers were dispatched to block a number of entrance ramps to … I-83.” Id. at ¶ 36. Haduch was one of several Baltimore Police officers dispatched to block an
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entrance ramp to I-83. Id. at ¶ 37-38. Initially, Haduch positioned his marked patrol vehicle across the Madison Street entrance ramp to I-83. Id. “Shortly thereafter, a civilian vehicle attempted to bypass Haduch….” Id. at ¶ 39. Haduch was able to turn the civilian vehicle away without incident. Id. at ¶ 41. “Thereafter, Officer Haduch repositioned his patrol car from the entrance ramp onto the wide low curb immediately adjacent to [the Madison Street ramp to I-83 North] with his emergency lights activated ….” Id. at ¶ 42. Haduch placed five road flares across the Madison Street ramp Id. at ¶ 43. “Approximately [twenty-five] minutes after Officer Haduch … placed road flares across the Madison Street [r]amp, [Plaintiff] approached from the East … [and] proceeded up the [r]amp in the normal course as it was not blocked by Officer Haduch’s [p]atrol [v]ehicle or by any other physical barrier.” Id. at ¶¶ 44-45. “Plaintiff observed no road flares across the Madison Street [r]amp.” Id. at ¶ 46. Thereafter, Haduch proceeded after Plaintiff with lights and sirens activated. Id. at ¶ 47. Upon realizing that Haduch was attempting to stop her, Plaintiff stopped her vehicle after traveling four tenths of a mile up the I-83 ramp. Id. at ¶¶ 49-50. Once the Plaintiff’s vehicle was stopped, Haduch drew his service weapon for officer safety and ordered the Plaintiff to exit her vehicle. Id. at ¶¶ 53-58. At gun point, Haduch ordered the Plaintiff to lie prone on the wet ground. Id. Upon complying with Haduch’s order, Haduch arrested the Plaintiff for negligent driving, failure of driver to curb upon signal by police, and attempt by driver to elude uniformed police. Id. at ¶ 71. Haduch transported Plaintiff to the Central Booking and Intake Facility (hereinafter “CBIF”) where prison officials subjected Plaintiff to a strip search. Id. at ¶ 76. On July 2, 2008, the state of Maryland entered a nolle prosequi to all charges against the Plaintiff because Haduch failed to appear for
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court. Id. at ¶ 84. The Plaintiff now brings the instant lawsuit against the BPD, Bealefeld, and Haduch.
Argument The 42 U.S.C. § 1983 cause of action asserted against the BPD, Bealefeld, and Haduch fail as a matter of law.1 Accordingly, the Plaintiffs Complaint must be dismissed against the aforementioned defendants. A. Complaint against the BPD must be dismissed The BPD is an agency of the State of Maryland. PUBLIC LOCAL LAWS OF MARYLAND, Art. 4, § 16-2(a) (“The Police Department of Baltimore City is hereby constituted and established as an agency and instrumentality of the State of Maryland.”); Clea v. Baltimore, 312 Md. 662, 668 (1988) (“Unlike other municipal or county police departments which are agencies of the municipality or county, the Baltimore City Police Department is a state agency.”) (citations omitted); Ashton v. Brown, 339 Md. 70, 104 n.18 (1995) (“The Baltimore City Police Department, for purposes of Maryland law, is a state agency.”); Baltimore Police Department v. Cherkes, 140 Md. App. 282, 303-05, 323 (2001); Williams v. Baltimore, 128 Md. App. 1 (1999), rev’d on other grounds, 359 Md. 101 (2000). The status of the BPD as a state agency dates back nearly 150 years. Baltimore v. State, 15 Md. 376 (1860); H. H. Walker Lewis, The Baltimore Police Case of 1860, 26 MD. L. REV. 215 (1966). The General Assembly continues to classify and treat the BPD as a State agency to this day. Clea, 312 Md. at 669; Adams v. Baltimore
1 Count V and Count VI are the only counts asserted against the BPD, Bealefeld, and Haduch. When reading the specific counts, it is unclear whether the Plaintiff attempts to assert federal and state causes of actions. On the other hand, footnote number one on page five of the Plaintiff’s Complaint seems to indicate that she is only asserting an action against the BPD, Bealefeld, and Haduch under 42 U.S.C. § 1983. Hence, the BPD, Bealefeld, and Haduch will take the Plaintiff at her word and only address her cause of action as if she only presented a case under 42 U.S.C. § 1983. No state causes of action referenced in the specific counts will be addressed.
4

Transit Co., 203 Md. 295, 311 (1953); Upshur v. Baltimore, 94 Md. 743, 756 (1902). Hence, as a matter of law, the BPD is entitled to immunity from civil suit guaranteed under the Eleventh Amendment to the United States Constitution. See Dixon v. Balt. City Police Dep't, 345 F. Supp. 2d 512, 513 (D. Md. 2003). Moreover, as an instrumentality and arm of the State of Maryland, the BPD is not considered a person for the purposes of § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (A State nor its officials acting in their official capacities are "persons" under § 1983.) The Plaintiff’s Complaint against the BPD must be dismissed.
Notwithstanding the BPD’s position, the BPD is aware that in Hector v. Weglin, Chief Judge Kaufman, writing for this federal district, did not agree with the BPD’s Eleventh Amendment argument pertaining to § 1983 lawsuits. See Hector v. Weglin, 558 F. Supp. 194 (D. Md. 1982).2 Judge Kaufman opined that the record before him demonstrated that the Mayor & City Council of Baltimore (hereinafter “MCC”) had enough influence over the BPD as to make the BPD an arm of the MCC for the purposes of § 1983. Id. at 198. Later, Chief Judge Legg, writing for this federal district agreed with the analysis of Hector. See Alderman v. Baltimore City Police Dep't, 952 F. Supp. 256, 258 (D. Md. 1997). Unfortunately, Chief Judges Kaufman and Legg did not have the benefit of recent case law which has affirmed the BPD’s status as a state agency and has emphasized the MCC’s lack of control over the affairs of the BPD. See Clark v. O'Malley, 169 Md. App. 408, 431 (2006) (The Baltimore City Police Department is a State agency governed by the enactments of the General Assembly. The Mayor enjoys
2 Chief Judge Kaufman opined “[w]hile the Department and the Commissioner are hybrid creatures, the City exercises such substantial control over the day-to-day activities and policies of the Department that if there was something major amiss in the Department … the City and/or the Commissioner either would or should have known about it, and would or should have taken steps toward cure of the same.”
5

no inherent authority over the department or the office of Police Commissioner.) aff’d by Mayor & City Council v. Clark, 404 Md. 13, 24 (2008) ([T]he General Assembly of Maryland was intent upon taking the City of Baltimore out of the business of controlling civil disorders … [p]ursuant to Acts of 1860, ch. 7, the Baltimore Police Department was removed completely from the control of the city government….); See also Dixon v. Balt. City Police Dep't, 345 F. Supp. 2d 512, 513 (D. Md. 2003). Hence, as a matter of law, the BPD is a state agency which is not subject to control by the MCC. Clark makes clear that while the MCC can appoint and confirm a police commissioner, the MCC cannot summarily fire a police commissioner if there are disagreements between the MCC and BPD. Clark v. O'Malley, 169 Md. App. 408, 431 (2006) aff’d by Mayor & City Council v. Clark, 404 Md. 13, 24 (2008). Accordingly, there is no control over the policies and procedures of the BPD by the MCC. The BPD is entitled to Eleventh Amendment immunity from all civil suits. The BPD, as an arm and instrumentality of the state of Maryland, is not a person for the purposes of § 1983.
However, should this Honorable Court follow the holdings in Hector and Alderman, the BPD is still entitled to a dismissal of the Plaintiff’s Complaint. In the instant matter, the Plaintiff seems to assert that the BPD has committed a constitutional violation because it has an improper policy of having its officers’ transport people arrested for misdemeanors to CBIF. Pl’s Compl. at ¶ 140. The Plaintiff alleges in a conclusory fashion that the BPD is aware that all people charged with misdemeanors will be subjected to strip searches by CBIF personnel. Id. at ¶¶ 139-146. The BPD contends that the Plaintiff’s Complaint assumes too much.
6

As an initial matter, “[a] municipality is only liable under [§ 1983] if it causes such a deprivation through an official policy or custom.” Carter v. Morris, 164 F. 3d 215, 218 (4th Cir. 1999). Here, the Plaintiff points to no facts in her Complaint which suggests that the BPD or any of its agents and employees perform strip searches at CBIF. Additionally, the Plaintiff has not pointed to a policy, procedure, and/or custom of the BPD whereby it encourages strip searches of its misdemeanor arrestees upon entering CBIF. This federal district has had the occasion to deal with claims such as the Plaintiff’s recently. In Jones v. Murphy, the court found that cases such as the Plaintiff’s attempt to assert an “entrustment liability” cause of action. Jones v. Murphy, 470 F. Supp. 2d 537, 552 (D. Md. 2007). The court found that “[a]n "entrustment liability" approach, [which obviously the Plaintiff here attempts to assert], has been neither adopted nor rejected in the Fourth Circuit.” Id. at 552. “Liability …requires that the accused municipality have both a policy of entrustment and knowledge of constitutional violations at the detaining entity.” Id. at 553. However, “[i]mplicit in the policy component required to impose liability is that the entrusting entity has formulated the policy; that is, that it had a choice over whether to follow the challenged course of action.” Id. Here, the Plaintiff has not pled one fact which suggests that the BPD was aware that CBIF allegedly has a policy of strip searching all misdemeanor arrestees, as opposed to classifying arrestees based on offenses. In a conclusory fashion, the Plaintiff states, without any facts, that the BPD has actual or constructive knowledge of CBIF’s alleged behavior because strip searches at CBIF is “well documented”. Pl’s Compl at ¶ 142. Moreover, as the City defendants asserted in Jones, the BPD cannot be held liable for strip searches at CBIF because its employees have no choice but to present all if its
7

arrestees to CBIF for processing. See Jones v. Murphy, 470 F. Supp. 2d 537, 553 (D. Md. 2007). Hence, the BPD and its employees, as a matter of Maryland law, must present its arrestees to CBIF for charging and processing. The BPD has no choice in the matter. Accordingly, the Plaintiff’s Complaint against the BPD must be dismissed. B. Complaint against Bealefeld must be dismissed
Likewise, and for the same reasons asserted above, the Plaintiff’s Complaint must be dismissed against the Bealefeld. “In order for supervisory inaction to form the basis of § 1983 liability, it is necessary that the supervisor have actual or fairly imputable knowledge of the misconduct.” Hector v. Weglin, 558 F. Supp. 194, 201 (D. Md. 1982). “[A] supervisor [must] have knowledge (actual or constructive) of his subordinate behaving in a way that posed a pervasive and unreasonable risk of constitutional injury.” Jones v. Murphy, 470 F. Supp. 2d 537, 546 (D. Md. 2007) Here, the Plaintiff has pled no facts which suggests that Bealefeld knew or should have known that CBIF allegedly strip searches all misdemeanor arrestees brought to its facility. Thus, the Plaintiffs have failed to plead a cause of action against Bealefeld.
Moreover, even if a cause of action could be pled against Bealefeld in the instant matter, he would nevertheless have qualified immunity. “Qualified immunity is a doctrine that shields government officials performing discretionary functions from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Rossignol v. Voorhaar, 321 F. Supp. 2d 642, 646 (D. Md. 2004) quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Generally, when the doctrine of qualified immunity is raised as a defense, the Court must first identify the right infringed by the
8

challenged conduct.” Id. “The Court then considers whether, at the time of the violation, the right was clearly established, and whether a reasonable person in the official's position would have known that his conduct would violate that right.” Id. In the instant matter, Bealefeld could not have known that entrusting misdemeanor arrestees to CBIF would subject him to liability. As the court in Jones v. Murphy discussed, the Fourth Circuit has not opined on “entrustment liability” as pled by the Plaintiff. See Jones v. Murphy, 470 F. Supp. 2d 537, 553 (D. Md. 2007). Only one case in this federal district appears to have dealt with the Plaintiff’s cause of action and that case, Jones, dismissed the City and its agencies and employees from the lawsuit. Id. Hence, a reasonable person in Bealefeld’s position would not have known that entrustment of misdemeanor arrestees would violate clearly established constitutional rights. The Complaint against Bealefeld must be dismissed. C. Complaint against Haduch must be dismissed
In Count V of the Plaintiff’s Complaint, the Plaintiff asserts that Haduch arrested her without probable cause and assaulted and used excessive force when he pointed his service weapon at her and used his patrol vehicle to maneuver the Plaintiff’s vehicle to the side of the road. Pl’s Compl at ¶¶ 126-129. “[A]n arrest without probable cause creates a cause of action under § 1983; however, … the existence of probable cause constitutes a bar to such a claim. See Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974). In the instant matter, Haduch contends that the facts, as pled by the Plaintiff, demonstrates that he had probable cause to arrest the Plaintiff. The Plaintiff admits in her pleadings that Haduch attempted to block the Madison Street ramp to I-83. Further, the Plaintiff admits that she entered the Madison Street ramp, albeit she claims that she did
9

not observe the road flares that Haduch placed on the road. Hence, the Plaintiff
affirmatively admits in her pleadings to committing the traffic violations to which she
was charged. The Plaintiff’s § 1983 cause of action fails because the Haduch had
probable cause to arrest the Plaintiff for a misdemeanor committed in his presence.
Next, the Plaintiff asserts that Haduch used excessive force by pointing his
service weapon at her and using his patrol vehicle to force her to the side of the road.
Notably however, the Plaintiff’s Complaint never asserts that Haduch ever stuck the
Plaintiff with his service weapon or vehicle.
Claims of excessive force during an arrest or investigatory stop are examined under the Fourth Amendment's objective reasonableness standard. See Graham v. Connor, 490 U. S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). This "requires balancing the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Tennessee v. Garner, 471 U. S. 1, 8, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (citation omitted). Factors to be included in making this determination include the severity of the crime, whether there is an immediate threat to the safety of the officer or others, and whether the subject is resisting arrest or attempting to flee. Graham, 490 U. S. at 396. The determination is to be made "from the perspective of a reasonable officer on the scene." Id. "The Constitution simply does not require police to gamble with their lives in the face of a serious threat of harm." Elliott v. Leavitt, 99 F.3d 640, 641 (4th Cir. 1996), reh'g en banc denied, 105 F.3d 174 (4th Cir. 1997). "The right to make an arrest carries with it the right to use the amount of force that a reasonable officer would think necessary to take the person being arrested into custody." Martin v. Gentile, 849 F.2d 863, 869 (4th Cir. 1988).
Lawrence v. Montgomery County, 2006 U.S. Dist. LEXIS 95964 aff’d by Lawrence v.
Montgomery County, 222 Fed. Appx. 272, 2007 (4th Cir. 2007). In the instant matter,
10

Haduch used reasonable force to arrest the Plaintiff. The Plaintiff’s Complaint must be dismissed against Haduch.
Conclusion For the reasons advanced above, defendants BPD, Bealefeld, and Haduch respectfully move this Honorable Court to dismiss the Plaintiff’s Complaint against them with prejudice.
Respectfully submitted, _________/S/______________ Neal M. Janey, Jr. Federal Bar No.: 26800 Assistant City Solicitor Office of Legal Affairs Baltimore Police Department 242 W. 29th Street Baltimore, Maryland 21211 Telephone: (410) 396-2496 Facsimile: (410) 396-2126 Email: neal.janey@baltimorepolice.org
11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Northern Division)

ROSEMARY MUNYIRI

*

Plaintiff

*

v.

* Case No: 1:08-CV-1953 AMD

PETER M. HADUCH, JR., et al.

*

Defendants

*

* * * * * * * * * * * * CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 25th day of August 2008, a copy of the

foregoing Memorandum of Law in Support of Baltimore Police Department’s,

Commissioner Frederick H. Bealefeld’s, and Officer Peter M. Haduch, Jr.’s Consolidated

Motion to Dismiss was forwarded via the court’s electronic filing system to the

following:

1. Robert D. Schulte, Esquire Schulte Booth, P.C. 3001 Elliott Street Baltimore, Maryland 21224

Attorney for Plaintiff

____________/S/__________________ Neal M. Janey, Jr.

12

 
 Case 1:08-cv-01953-CCB Document 18 Filed 11/02/08 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ROSEMARY MUNYIRI, Plaintiff
v.
PETER M. HADUCH, JR., et al., Defendants

: : : : : : : ...o0o...

Civil No. AMD 08-1953

MEMORANDUM OPINION and ORDER

This case stems from an arrest by a Baltimore City police officer following a traffic

stop on I-83 in Baltimore City. Plaintiff Rosemary Munyiri asserts that she was pulled over

for minor traffic offenses, arrested at gunpoint, and taken to the Baltimore Central Booking

and Intake Facility (“CBIF”), where she was subjected to strip and visual body cavity

searches. Munyiri has filed a multitude of damages claims pursuant to 42 U.S.C. § 1983 for

violation of the Fourth Amendment against the following defendants: (1) Maryland

Department of Public Safety and Correctional Services (“DPSCS”); (2) the Secretary of

DPSCS (“Secretary Maynard”); (3) the Warden of the Central Booking and Intake Facility

(“Warden Williams”);(4) Unnamed correctional officers at CBIF; (5) the Baltimore City

Police Department (“the BCPD”); (6) the Commissioner of the BCPD (“Commissioner

Bealefeld”); (7) the arresting officer, Peter M. Haduch, Jr. (“Officer Haduch”); and (8) the

Mayor and City Council of Baltimore City. Secretary Maynard, Warden Williams,

Commissioner Bealefeld, and Officer Haduch were sued in both their official and individual

capacities.

Case 1:08-cv-01953-CCB Document 18 Filed 11/02/08 Page 2 of 12
All defendants filed motions to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The court held a hearing on October 27, 2008. At the hearing, plaintiff voluntarily dismissed her claims against the DPSCS, the official capacity claims against Secretary Maynard and Warden Williams, and the claims against the Mayor and City Council of Baltimore City. For the reasons set forth within, I shall deny the motions filed by Secretary Maynard and Warden Williams and grant in their entirety the remaining motions.
I. As this is a motion to dismiss under Rule 12(b)(6), the facts alleged in the complaint are assumed to be true. The following facts are alleged by plaintiff.1 Munyiri is a Registered Nurse who works at The Johns Hopkins Hospital. On April 12, 2008, she left the hospital at approximately 7:35 p. m. and began her commute home on a rainy and cloudy evening. Unbeknownst to Munyiri, an accident had occurred on I-83 North and Baltimore City police officers had blocked some of the northbound entrance ramps. Officer Haduch was positioned at the Madison Street ramp, which he had barricaded using his patrol vehicle and several road flares. Despite Haduch’s apparent efforts to block
1The summary of plaintiff’s allegations set forth above is supplemented with additional facts taken from the sworn statement of charges filed in state court by the arresting officer, defendant Haduch. Plaintiff quoted liberally from the statement of charges in her complaint but she did not attach a copy of the statement of charges to her complaint. At my request, plaintiff provided a copy of the statement of charges after the hearing. See, e.g., Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir.1999)(noting that “a court may consider [a document not attached to the complaint] in determining whether to dismiss the complaint [where the document] was integral to and explicitly relied on in the complaint and [where] the plaintiffs do not challenge [the document’s] authenticity”)(alterations added).
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the entrance ramp, Munyiri entered the ramp by driving past or over the road flares that had been deployed by Officer Haduch.
Officer Haduch proceeded after plaintiff and “chased” her for approximately fourtenths of a mile before plaintiff pulled over her vehicle. It is evident from Officer Haduch’s statement of charges that he believed he was dealing with a potentially dangerous individual and that he believed that plaintiff was purposely evading his attempts to effect a traffic stop. In any event, upon stopping her, Haduch exited his police car, drew his service weapon, and approached Munyiri’s car. He shouted repeatedly for Munyiri to turn off her vehicle before she complied. Similarly, he ordered her to throw her keys from the vehicle three times before she complied. Haduch then ordered plaintiff to exit her vehicle and go to the ground, whereupon he handcuffed her. Munyiri’s car, person and purse were searched.
Haduch charged Munyiri with three misdemeanor traffic offenses: (1) negligent driving; (2) failure of driver to “curb” upon signal by police vehicle; and (3) attempt by driver to elude uniformed police by failing to stop.
Haduch transported Munyiri to CBIF, as are all persons arrested in Baltimore City. Upon plaintiff’s arrival, a nurse took her vital signs and informed her that she would be strip searched. Officers at CBIF ordered plaintiff to disrobe and conducted a physical search of her hair and a visual search of her body cavities. She was also ordered to squat and cough while disrobed. After the search, Munyiri was put in a holding cell, where she waited for twenty-four hours before being released on bail.
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At trial on July 2, 2008, Haduch failed to appear and the state entered a nolle prosequi as to all the charges against Munyiri. Munyiri filed this action about three weeks later.
II. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the Supreme Court jettisoned its longstanding approach to motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), i.e., the “no set of facts” standard first articulated by the Court in Conley v. Gibson, 355 U.S. 41 (1957). The Court adopted a less generous approach by which to judge a complaint's sufficiency: whether the plaintiff stated “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. The Court noted that “a plaintiff's obligation to provide the grounds of his entitlement 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 (internal quotations omitted).
III. A Plaintiff alleges that Secretary Maynard and Warden Williams violated her Fourth and Fourteenth Amendment right to be free of an unreasonable search by implementing and maintaining a policy and practice of conducting strip searches and visual body cavity searches of all persons admitted to the CBIF, regardless of the charges filed against, or the circumstances surrounding the arrest of, the individual. Specifically, plaintiff asserts a claim of supervisory liability against Maynard and Williams in their individual capacity. Supervisory liability may attach under § 1983 if a plaintiff can establish:
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Case 1:08-cv-01953-CCB Document 18 Filed 11/02/08 Page 5 of 12
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tactic authorization of the alleged offense practices”; and (3) that there was an “affirmative causal link” between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff. Jones v. Murphy, 470 F. Supp. 2d 537, 545 (D. Md. 2007) (citing Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). In Jones, Judge Blake fully considered claims by a putative class of persons arrested in Baltimore City who were treated, or were threatened with treatment, essentially identical to that allegedly suffered by plaintiff here. Indeed, the parties acknowledged at the hearing in this case that plaintiff would be a member of the putative class in the litigation pending before Judge Blake in Jones. Plaintiff has basically incorporated by reference the allegations in Jones and thus, together with the specifics of her arrest and detention, has adequately plead the minimum facts necessary to state a claim of supervisory liability for a Fourth Amendment violation. Secretary Maynard and Warden Williams assert their right to qualified immunity. In assessing a claim of qualified immunity, the court employs a two-pronged analysis. Saucier v. Katz, 533 U.S. 194, 201-02 (2001). “[T]he court must first determine if the pleaded facts demonstrate that the defendant's conduct violated a constitutional right.” Blankenship v. Manchin, 471 F.3d 523, 528 (4th Cir. 2006). If a constitutional violation has occurred, the second step requires the court to consider whether the right was clearly established, measured by whether a reasonable officer would have believed the conduct to be lawful under the same or similar circumstances. Saucier, 533 U.S. at 201-02. Thus, where
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Case 1:08-cv-01953-CCB Document 18 Filed 11/02/08 Page 6 of 12
an officer has invoked qualified immunity and relies on it in a dispositive motion, the court must be persuaded: (1) that the officer actually committed a constitutional violation, and (2) that the defendant’s conduct was objectively unreasonable under well-settled law. Henry v. Purnell, 501 F.3d 374, 379-82 (4th Cir. 2007). For the reasons stated by Judge Blake in Jones, qualified immunity does not, as a matter of law at this early stage of the case, foreclose plaintiff’s claim here. Jones, 470 F. Supp. 2d at 547 (citing Amaechi v. West, 237 F.3d 356, 362-65 (4th Cir. 2001) (finding a strip search unconstitutional for an individual arrested for a misdemeanor noise violation); Logan v. Shealy, 660 F.2d 1007, 1013-14 (4th Cir. 1981) (finding a strip search unreasonable when done to an arrestee whose offense was not likely to involve weapons or contraband)).
B Plaintiff seemingly asserts a veritable smorgasbord of § 1983 claims against defendants Officer Haduch, Commissioner Bealefeld and BCPD (referred to herein as “police defendants”), but distilled to their essence, the claims are Fourth Amendment unreasonable seizure claims.2 In their consolidated motion to dismiss, the police defendants assert that the BCPD is a state agency, and that therefore, the agency and, as to the official capacity claims, Commissioner Bealefeld and Officer Haduch, are entitled to immunity under the Eleventh Amendment.
2In the circumstances here, to the extent that plaintiff alleges that any defendant was negligent, e.g., that Officer Haduch negligently established the barricade at the entrance ramp to the highway, such claims are not cognizable under § 1983. Cf. Daniels v. Williams, 474 U.S. 327, 330 (1986)(“[I]n any given § 1983 suit, the plaintiff must . . . prove a violation of the underlying constitutional right; and depending on the right, merely negligent conduct may not be enough to state a claim.”).
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Case 1:08-cv-01953-CCB Document 18 Filed 11/02/08 Page 7 of 12
Of course, it is well-settled that a state agency (or agency official sued in her official capacity) does not qualify as a “person” amenable to suit under 42 U.S.C. § 1983. Will v. Michigan Dept. Of State Police, 491 U.S. 58 (1989). The issue here is whether the BCPD is a state agency for Eleventh Amendment purposes.3 Members of this court have found that it is not. Chin v. City of Baltimore, 241 F. Supp. 2d 546, 548 (D. Md. 2003) (“[t]he court determines that the Baltimore Police Department is not entitled to Eleventh Amendment immunity. As a result, the Baltimore Police Department is a “person” subject to suit under § 1983.”); Hector v. Weglin, 558 F. Supp. 194 (D. Md. 1982) (Kaufman, J.) (finding that the BCPD liable for suit under § 1983), and I agree with those determinations. Thus, the police defendants are fully subject to suit under § 1983. Nevertheless, for the reasons stated below, plaintiff has failed to state a claim against those defendants.
Plaintiff alleges against Office Haduch a Fourth Amendment unreasonable seizure claim based on the traffic stop and her arrest, and a Fourth Amendment excessive force claim based on the manner of the stop and arrest. Haduch asserts that, as a matter of law, he had reasonable articulable suspicion to make the traffic stop, probable cause to effect the custodial arrest of plaintiff, and that he did not employ excessive force in effecting the stop and the arrest. I agree.
3Defendants argue vigorously that the BCPD is a state agency and cites several state court opinions to that effect. E.g., Clark v. O’Malley, 169 Md. App. 408, 431 (2006), aff’d by Mayor & City Council v. Clark, 404 Md. 12, 24 (2008). But this assertion misses the point. The issue not whether the BCPD is an agency of the state, but instead, whether it is the type of agency that is entitled to the benefit of Eleventh Amendment immunity.
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Case 1:08-cv-01953-CCB Document 18 Filed 11/02/08 Page 8 of 12
First, there plainly was reasonable articulable suspicion justifying Haduch’s decision to stop plaintiff. Reasonable suspicion is “a particularized and objective basis for suspecting the person stopped of criminal activity.” Ornelas v. United States, 517 U.S. 690, 696 (1996). Here, Haduch was blocking the Madison street ramp to I-83 North to protect the scene of an accident on the highway. Plaintiff acknowledges that she drove past five road flares and a police car with its emergency lights flashing and drove onto the highway. Since plaintiff did not stop on the ramp despite the police car and flares (as any reasonable motorist would behave), as a matter of law, Officer Haduch had sufficient facts to constitute reasonable suspicion to pull her over to investigate why she would do such a thing.4
Furthermore, once plaintiff acceded to Haduch’s repeated efforts to stop her vehicle and pulled to the side of the highway, a reasonable officer could reasonably have concluded that he had probable cause to arrest plaintiff. Probable cause to arrest “is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men . . .act.” Maryland v. Pringle, 540 U.S. 366, 370 (2003). Here, Haduch witnessed her commit three alleged misdemeanor driving offenses: negligent driving, failure of driver to curb upon signal by police vehicle, and attempt by driver to elude uninformed police by failing to stop. Indeed, plaintiff concedes that she did not immediately pull over when requested, although she alleges she pulled over as soon as
4As I speculated during the hearing, whether plaintiff was simply tired from a long shift at the hospital, inattentive to the perhaps less-than-perfect blockade of the ramp, or distracted by the misty climatic conditions, Haduch clearly acted reasonably in pursuing her to determine why she had simply driven past his barricade. It would have been irresponsible for an officer to have done anything but pursue her.
-8-

Case 1:08-cv-01953-CCB Document 18 Filed 11/02/08 Page 9 of 12
it was, in her judgment, safe to do so. Since Haduch witnessed Munyiri commit these alleged misdemeanor offenses, he had probable cause to arrest her without a warrant.5
Nor did Haduch use excessive force in arresting Munyiri. In the Fourth Circuit, the right to make an arrest “carries with it the right to use the amount of force that a reasonable officer would think necessary.” Martin v. Gentile, 849 F.2d 863, 869 (4th Cir.1988). Claims of a de minimis injury, such as too-tight handcuffs, are insufficient. Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994) (en banc); Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir. 1999). Here, plaintiff alleges that Officer Haduch attempted to ram her car with his squad car, that he pointed his service weapon at her, and that he forced her to lie prone in the highway. However, plaintiff does not allege that Haduch contacted her car; nor does she allege that he shot her or even touched her with his gun. The sum of her complaint is that she had to lie down on the wet ground to be handcuffed. Although no doubt this felony-type arrest was extraordinarily unpleasant and inconvenient, as a matter of law, those actions by Haduch do not rise to the level of a constitutional violation.
Plaintiff’s claim against Commissioner Bealefeld alleges that he was responsible for developing and implementing the policies of the BCPD, including the policy regarding when and under what circumstances persons are arrested “for minor traffic offenses”and when such persons are to be transported to CBIF. As Haduch committed no violation of
5Cf. Wadkins v. Arnold, 214 F.3d 535, 541 & n.7 (4th Cir.) (“Reasonable law enforcement officers are not required to exhaust every potentially exculpatory lead or resolve every doubt about a suspect's guilt before probable cause is established.”), cert. denied, 531 U.S. 993 (2000).
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Case 1:08-cv-01953-CCB Document 18 Filed 11/02/08 Page 10 of 12
plaintiff’s Fourth Amendment rights in this regard, no claim lies against the Commissioner
on the basis of Haduch’s actions.
Finally, plaintiff suggested at the hearing that the police defendants were sued on an
“entrustment liability” theory, under which they are said to be liable for the acts and
omissions of Secretary Maynard and Warden Williams for the searches occurring at CBIF.
As Judge Blake noted in Jones, the Fourth Circuit has neither adopted nor rejected an
“entrustment liability” theory to § 1983 claims, 470 F. Supp. 2d at 552-53. Under an
entrustment theory, the plaintiff must show that the defendant has (1) a policy of
entrustment; (2) knowledge of the constitutional violations at the detaining entity; and that
(3) the entrusting entity must have had a choice over whether to follow the challenged
course of action. Id. at 553. The gist of the theory is that a municipal body can be liable
under § 1983 if it maintains a policy of entrusting its arrestees to a jail or holding facility
with knowledge that arrestees will face unconstitutional treatment upon their confinement.
Id.
In her carefully-reasoned analysis, Judge Blake concluded that the theory had no
applicability to the circumstances in Baltimore City, as follows:
Implicit in the policy component required to impose liability is that the entrusting entity has formulated the policy; that is, that it had a choice over whether to follow the challenged course of action. See Powell v. Barrett, 2005 U.S. Dist. LEXIS 685, *37-38 (N.D.Ga.2005) (explaining that the entrusting entity cannot be liable “for constitutional injuries suffered by a detainee unless it had the authority to choose whether to entrust such a person to the facility.”) (unpublished) (internal citations omitted). The City defendants persuasively argue that they have no choice because they are not legally permitted to maintain their own facility; therefore it would be unfair to hold them liable for using the facility they are required to use by state law. (Mem.
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Case 1:08-cv-01953-CCB Document 18 Filed 11/02/08 Page 11 of 12
Supp. City Defs.’ Mot. Dismiss at 9; City Defs.’ Reply Mem. Supp. Mot. Dismiss at 4-5.) See also Md.Code Ann., Corr. Servs. §§ 5-102, 201, 401, 404 (2006). The steps which the plaintiffs contend the City defendants could have taken to prevent violations of arrestees’ constitutional rights do not suggest the existence of choice sufficient to give rise to liability. For instance, the plaintiffs argue that the City defendants could have filed a lawsuit against CBIC. (Pls.’ Opp’n Mot. Dismiss at 35.) In fact, the City attempted to intervene as a plaintiff in the state court suit regarding over detentions, but was denied leave to do so. (Mem. Supp. City Defs.’ Mot. Dismiss at 12.) This illustrates the flaw with the argument that the ability to file a lawsuit shows the existence of meaningful control: the court ultimately decides the outcome of the issues in a suit, thus filing a suit is, on some level, an admission that external help is needed to effectuate the desired results.
The plaintiffs also argue that there is a category of arrestees whose violations could have been processed with citations and thus, in arresting them, the City defendants essentially chose to take them to CBIC. (Pls.’ Opp’n Mot. Dismiss at 42-43.) The complaint, however, does not identify such a group. Instead it categorizes the plaintiffs based on the types of constitutional violations they allegedly suffered ( e.g., equal protection strip search class), and would make the City defendants liable for all persons in a given category of violations, even if the underlying arrest was clearly justified. (See City Defs.’ Reply Mem. Supp. Mot. Dismiss at 6.) There may be a group for which citations could or should have been used; however, even if the plaintiffs had pled this, there would be significant concerns for the court in attempting to define the membership in this group, as doing so would likely necessitate more judicial assessment of discretionary law enforcement priorities and procedures than would be warranted. Therefore, the potential existence of such a group fails to supply the element of choice necessary to give rise to liability under the “entrustment liability” theory.
Because the court finds that the unique facts of this case render the “entrustment liability” theory inapplicable, there is no need to consider arguments about its validity generally under Fourth Circuit law.
Id. at 553-54. I find this reasoning compelling. In particular, in light of recent Supreme
Court authority, see Virginia v. Moore, 128 S.Ct. 1598 (2008) (arresting officer commits no
violation of the Fourth Amendment simply because arrest, though supported by probable
cause, violated state law), there is scant justification for calling into question the
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Case 1:08-cv-01953-CCB Document 18 Filed 11/02/08 Page 12 of 12
discretionary decision of Officer Haduch to arrest plaintiff rather than to issue a citation to plaintiff under the circumstances here.
IV. For the reasons stated herein, the motion to dismiss filed by defendants Maynard and Williams is DENIED and those defendants shall file their answer to the complaint on or before November 24, 2008. In all other respects, the motions to dismiss are GRANTED and ALL CLAIMS against the remaining defendants are DISMISSED WITH PREJUDICE.

Filed: November 2, 2008

/s/ Andre M. Davis United States District Judge

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ROSEMARY MUNYIRI, et al., Plaintiff v.
GARY D. MAYNARD, et al., Defendants

: : : : : : : ...o0o...

Civil Action No. CCB-08-1953

MEMORANDUM

Now pending before the court is a motion to dismiss plaintiffs’ First Amended Complaint

for failure to state a claim upon which relief can be granted filed by defendants Gary D. Maynard

(“Secretary Maynard”), Secretary of the Maryland Department of Public Safety and Correctional

Services (“DPSCS”), Mitchell Franks (“former Warden Franks”), former Warden of the

Baltimore Central Booking and Intake Facility (“CBIF”), and Naomi Williams (“Warden

Williams”), the CBIF’s current Warden (collectively “defendants”). Plaintiffs Rosemary

Munyiri, Kimberly Felder, Christina Schaeffer, and Nelear Walls are suing defendants in their

individual capacities under 42 U.S.C. § 1983 for violations of their Fourth and Fourteenth

Amendment right to be free from unreasonable searches. The issues in this case have been fully

briefed and no hearing is necessary. For the reasons stated below, the defendants’ motion to

dismiss will be denied.

BACKGROUND As this is a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the following facts are presented in the light most favorable to the plaintiffs. On July 28, 2008, Munyiri filed suit under § 1983 against a number of defendants, including Secretary Maynard and Warden Williams, for the strip and cavity search she was subjected to upon arrival at the CBIF after an arrest for traffic

violations.1 On November 2, 2008, Judge Davis denied Secretary Maynard and Warden Williams’s motion to dismiss while granting the motion to dismiss of the Baltimore City Police Department (BCPD), BCPD Commissioner Bealefeld, and arresting officer Peter M. Haduch, Jr.2 Thereafter, Munyiri sought and obtained defendants’ consent to amend the complaint to add additional plaintiffs. Plaintiffs’ amended complaint now includes claims by Christina Schaeffer, Kimberly Felder, and Nelear Walls against Secretary Maynard and Warden Williams and adds former Warden Franks as an additional defendant. In addition, plaintiffs have increased the amount of relief requested from five million dollars to twenty million dollars for both compensatory damages and punitive damages.
The facts alleged by the new plaintiffs are as follows. Police officers brought Schaeffer to the CBIF at approximately 4:30 a.m. on January 19, 2009, after arresting and charging her with second degree assault. Officers arrested Schaeffer in response to a domestic assault complaint and described the alleged victim as having minor scratches on his face and neck. Upon her arrival at the CBIF, correctional officers ordered Schaeffer to disrobe and conducted a physical search of her hair and a visual search of her body cavities. She was also ordered to squat and cough while disrobed. After the search, officers placed Schaeffer in a holding cell and advised her that she would be placed in the general population until her bail was posted. Officers later moved Schaeffer to a different part of the CBIF where a new set of correctional officers performed a second strip and cavity search in the same manner as the first search. Schaeffer was released on bail approximately twenty-four hours later and the charges against her were subsequently dismissed. 1 A more detailed account of Munyiri’s claims is provided in Judge Davis’ earlier memorandum opinion in this case, Munyiri v. Haduch, 585 F. Supp. 2d 670, 674 (D. Md. 2008). 2 See id. at 679.
2

Police officers arrested Felder on or about April 12, 2008 following a physical altercation with another woman in which no weapons or drugs were involved. After officers transported Felder to the CBIF, she informed the staff that she suffered from diabetes; staff members gave her medication, but denied her request for food. A correctional officer then brought Felder to a small room where she was instructed to disrobe. The officer conducted a visual search of Felder’s body cavities and patted Felder down while she was nude. Felder was also ordered to squat and cough while disrobed. After being transported to two different holding cells, Felder was eventually released on her own recognizance.
On November 7, 2008 at approximately 4:00 p.m., a Baltimore City police officer arrested Walls for failing to obey a stop sign as she exited her vehicle in front of her home. The officer did not pat down Walls before transporting her to the CBIF. Once at the CBIF, police officers and CBIF staff discussed whether they had the authority to detain Walls for minor traffic citations. The arresting officer then added the charge of Fleeing or Attempting to Elude on Foot. CBIF correctional officers escorted Walls to a room, ordered her to disrobe, and conducted a physical search of her hair and a visual search of her body cavities. Walls was also ordered to squat and cough while disrobed. Walls was released on her own recognizance the following day at 4 a.m. and the State has placed all charges against her on the stet docket.
Defendants assert that this suit should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because (1) former Warden Franks cannot be liable for acts that occurred after his retirement from the CBIF; (2) plaintiffs have failed to state a claim against defendants for supervisory
3

liability; and (3) plaintiffs have improperly increased the amount of damages requested in their amended complaint.3 I will address these issues in turn.
ANALYSIS
“[T]he 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) (quoting 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). To survive
a motion to dismiss, the factual allegations of a complaint “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).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). Thus the plaintiff’s obligation is to set forth sufficiently the
“grounds of his entitlement to relief,” offering more than “labels and conclusions.” Id. (internal
3 Defendants also argue that plaintiffs have failed to state claims against the State of Maryland, the DPSCS, and former Warden Franks and Warden Williams in their official capacity. Plaintiffs have already conceded, however, that they possess no valid claims against the State, and Ms. Munyiri voluntarily dismissed her claims against the DPSCS and her official capacity claim against Warden Williams at an October 27, 2008 hearing. See Munyiri, 585 F. Supp. 2d at 673; Mem. Supp. Pls.’ Resp. Opp’n Defs.’ Mot. Dismiss 1st Am. Compl. at 3. The mere fact that former Warden Franks has now been added to the complaint and the term “official capacity” appears in an introductory paragraph in plaintiffs’ amended complaint is insufficient to either revive the official capacity claim against Warden Williams or introduce such a claim against former Warden Franks. See 1st Am. Compl. at ¶ 18. Indeed Count II of the amended complaint, which contains the charges against former Warden Franks and Warden Williams, refers only to both defendants’ “supervisory role,” rather than their “official capacity.” See id. at ¶¶ 145-56.
4

quotation and alterations omitted); see Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001) (“the presence [in a complaint] . . . of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support” the necessary legal finding).
1. Former Warden Franks’s Liability for Acts that Occurred After his Retirement Plaintiffs argue that former Warden Franks may be sued in his individual capacity for
supervisory liability under § 1983 despite the fact that he was no longer employed with the CBIF during the dates of the alleged strip and cavity searches. Supervisory liability may attach under § 1983 if a plaintiff can establish:
(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Jones v. Murphy, 470 F.Supp. 2d 537, 545 (D. Md. 2007) (citing Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). The time gap between the date former Warden Franks left his position with the CBIF and the dates of the plaintiffs’ alleged strip searches only presents an issue with regard to the third element dealing with causation. See Shaw, 13 F.3d at 800.
Defendants correctly note that the amended complaint fails to name former Warden Franks in the paragraph alleging a causal link between Warden Williams’s conduct and the subsequent strip and cavity searches. See 1st Am. Compl. ¶ 153. Given the plaintiffs’ inclusion of former Warden Franks alongside Warden Williams in all other allegations in Count II of the complaint, however, this omission appears to be a good faith mistake on the part of plaintiffs’
5

counsel rather than a true failure to allege.4 See id. at ¶¶ 146-49, 151-52, 154-55. Accordingly, I grant plaintiffs leave to file a second amended complaint within 21 days to remedy this mistake.
Assuming plaintiffs had included a causal allegation against former Warden Franks, they would have stated a valid claim against him. In Shaw, the defendant had left his supervisory role fifteen months before the date of the alleged constitutional violation. Id. Nevertheless, noting that “the causal link in § 1983 cases is analogous to proximate cause,” the court found that the constitutional injury was “a natural and foreseeable consequence of” the defendant’s conduct and thus the supervisory liability claim against the defendant could survive the motion for summary judgment. Id. at 800-01. Similarly, plaintiffs in this case claim that former Warden Franks established and implemented a policy of routine strip and cavity searches and continued to enforce this policy even after receiving actual notice that the practice was unconstitutional. If true, these allegations could support a finding that the resulting unconstitutional strip and cavity searches were a “natural and foreseeable consequence” of former Warden Franks’s conduct. Thus the fact that former Warden Franks was no longer employed with the CBIF at the time the strip searches occurred does not automatically defeat plaintiffs’ claims against him.
2. Charges Based on Defendants’ Supervisory Liability Defendants repeat their arguments from their previous motion to dismiss that plaintiffs
have failed to state a claim against Secretary Maynard, former Warden Franks, and Warden Williams for supervisory liability under § 1983. These arguments have already been addressed
4 Indeed plaintiffs have likely implied causation. After including former Warden Franks’s name in all of the allegations describing conduct in Count II, plaintiffs conclude this section of the complaint by alleging that “[a]s a direct and proximate result of this conduct, Plaintiffs have suffered injuries including…violation of constitutional rights, and deprivation of constitutional rights.” 1st Am. Compl. ¶ 156 (emphasis added).
6

and found unpersuasive in Judge Davis’s earlier opinion in this case. See Munyiri, 585 F. Supp. 2d at 675. Although there are now additional plaintiffs, these plaintiffs’ claims are identical in substance to Ms. Munyiri’s original claims and thus state a claim upon which relief can be granted.
3. Increase in Amount of Requested Damages Defendants argue that this court must limit the damages proposed by plaintiffs in their
amended complaint because they did not explicitly seek permission from defendants to amend their complaint for the purpose of increasing the amount of relief requested. Plaintiffs properly sought and obtained defendants’ permission to amend their complaint pursuant to Fed. R. Civ. P. 15(a)(2) and Local Rule 103.6(d). Apparently the issue of damages was not discussed. The defendants were informed of plaintiffs’ intention to add more plaintiffs to the case, however, and thus could have anticipated an accompanying increase in the demand for relief. In any event, even if damages should be limited, there is no basis to dismiss the complaint.
CONCLUSION For the foregoing reasons, the defendants’ motions to dismiss will be denied. A separate Order follows.

September 1, 2009 Date

/s/ Catherine C. Blake United States District Judge
7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ROSEMARY MUNYIRI, ET AL. v.
GARY MAYNARD, ET AL.

: : : : : : ...o0o...

Civil No. CCB-08-1953

MEMORANDUM
I have reviewed the pending motion for summary judgment on behalf of defendants Gary
D. Maynard, Secretary of the Maryland Department of Public Safety and Correctional Services,
and Mitchell Franks and Naomi Williams, former Wardens of the Baltimore Central Booking
and Intake Center (“Central Booking”). They have been sued by four female plaintiffs who
allege they were subjected to unconstitutional strip searches in violation of the Fourth
Amendment following their arrests for minor offenses. Two of the plaintiffs were searched in
April 2008, during Warden Franks’s tenure. The other two plaintiffs were searched in November
2009 and January 2009, respectively, during Warden Williams’s tenure. The plaintiffs bring
their claims under 42 U.S.C. § 1983, relying on a theory of supervisory liability against the Secretary and the Wardens.1
Under § 1983, supervisory liability may attach if a plaintiff can establish:
(1) that the supervisor had actual or cons tructive knowledge that his subordi nate was engaged in conduct that posed “a per vasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s respo nse to that knowledge was so inadequate as to show “deliberate i ndifference to or tacit authorization of the alleged offensive practices,”; and (3) that there w as an “affirmative causal link” between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal citations omitted).
1 There also is a claim against an individual correctional officer, who allegedly conducted one of the searches, but summary judgment has not been requested on her behalf.

As to Wardens Franks and Williams, as the parties’ papers demonstrate, the facts relevant to their knowledge and to the ad equacy of their response are inex tricably intertwined with the related litigation still pending in this court: Jones v. Murphy, Civil No. CCB-05-1287. In that case, extensive summary judgment briefing is underway but not ye t complete. In the interests of both judicial econom y and fully infor med decision making, and because of the e xtent of the factual disputes between the parties about the Wardens’ know ledge, it appears most sensible to deny the motions filed on behalf of the wardens at this time, without prejudice to renewal after resolution of the pending m otions in Jones v. Murphy. As to Secretary Maynard, however, the plaintiffs have not demonstrated more than, at most, negligent supervision, rather than tacit authorization or deliberate indifference in the f ace of a known unconstitutional practice. He is not a defendant in the Jones case, nor, apparently, was he informed of it until 2009; he oversees multiple correctional facilities and a Departm ent that em ploys approximately 11,000 people, and he was appointed from out-of-state in January 2007. At least in this cas e, the plaintiffs do not challenge the validity of the 2008 post orders, but rather th e correctional officers’ alleged failure to follow them. Even if Secretary Maynard should have known of the alleged violations, and “might have done more,” th is does not satisfy the standard for supervisory liability. See Shaw, 13 F.3d at 801; see also Randall v. Prince George’s County , 302 F.3d 188, 206 (4 th Cir. 2002); cf. Slakan v. Porter, 737 F.2d 368, 374-75 (4 th Cir. 1984). Accordingly, the defendants’ motion will be granted as to Secretary Maynard.
Finally, summary judgment will be gran ted as to any claim plaintiff Schaeffer may be asserting about a second alleged search at the Women’s Detention Center, as the Center was not supervised by Warden Franks or Warden Williams.
2

A separate Order follows.
March 31, 2011 Date
United

/s/ Catherine C. Blake
States District Judge

3

 
 Case 1:08-cv-01953-CCB Document 99 Filed 03/29/13 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ROSEMARY MUNYIRI, et al. v.
GARY MAYNARD, et al.

:

:

:

:

Civil No. CCB-08-1953

:

:

:

ORDER

For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:

1. The defendants’ Motion to Amend/Correct (ECF No. 88) is Granted;

2. The defendants’ Motion for Summary Judgment (ECF No. 87) is Granted;

3. The Clerk shall CLOSE this case; and

4. The Clerk shall send copies of this Order and the accompanying Memorandum to

counsel of record.

March 29, 2013 Date

/s/ Catherine C. Blake United States District Judge

 
 Case: 1:08-cv-01953-CCB As of: 05/10/2013 11:12 AM EDT 1 of 9
APPEAL,CLOSED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:08−cv−01953−CCB

Munyiri v. Maynard et al

Date Filed: 07/28/2008

Assigned to: Judge Catherine C. Blake

Date Terminated: 03/29/2013

Case in other court: Fourth Circuit Court of Appeals, 13−01471 Jury Demand: Plaintiff

Cause: 42:1983 Civil Rights Act

Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff

Rosemary Munyiri

represented by Robert David Schulte Schulte Booth PC 3001 Elliott St Baltimore, MD 21224 14107321315 Fax: 14107321316 Email: rschulte@schultebooth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan J Booth Schulte Booth PC 3001 Elliott St Baltimore, MD 21224 14107321315 Fax: 14107321316 Email: albooth@schultebooth.com ATTORNEY TO BE NOTICED

Plaintiff Kimberly Felder

represented by Alan J Booth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Christina Schaeffer

represented by Alan J Booth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Nelear Walls

represented by Alan J Booth (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Peter M. Haduch, Jr. in his individual capacity and in his official capacity as a Baltimore City Police Officer TERMINATED: 11/02/2008
Defendant

represented by Neal Marcellas Janey , Jr Baltimore City Law Department 100 N Holliday St Room 101 Baltimore, MD 21202 14103962496 Fax: 14103962126 Email: njane001@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-01953-CCB As of: 05/10/2013 11:12 AM EDT 2 of 9

Frederick H. Bealefeld in his individual capacity and in his official capacity as Baltimore City Police Commissioner TERMINATED: 11/02/2008

represented by Neal Marcellas Janey , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Baltimore City Police Department TERMINATED: 11/02/2008

represented by Neal Marcellas Janey , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mayor &City Council of Baltimore TERMINATED: 11/02/2008

represented by David E Ralph Baltimore City Department of Law 100 N Holliday St Baltimore, MD 21202 14103963659 Email: david.ralph@baltimorecity.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Unknown Maryland Correctional Officers in their individual capacities and their official capacities as Officers employed by the Maryland Department of Public Safety and Correctional Services TERMINATED: 05/12/2009

Defendant
Gary D. Maynard in his individual capacity and in his official capacity as Secretary of the Maryland Department of Public Safety and Correctional Services TERMINATED: 05/12/2009

represented by Alan D Eason State of Maryland Office of the Attorney General Public Safety and Correctional Services 6776 Reisterstown Rd Ste 312 Baltimore, MD 21215 14105853070 Fax: 14107645366 Email: aeason@dpscs.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Mullally Maryland Office of the Attorney General 6776 Reisterstown Rd Ste 313 Baltimore, MD 21215 14105853073 Fax: 14107645366 Email: lmullally@dpscs.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Naomi Williams in her individual capacity and in her official capacity as the Acting Warden of the Baltimore Central Booking &Intake Center TERMINATED: 05/12/2009

represented by Alan D Eason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-01953-CCB As of: 05/10/2013 11:12 AM EDT 3 of 9

Defendant Gary D. Maynard
Defendant Mitchell E. Franks
Defendant Naiomi Williams Defendant Latrice Lee
Defendant John &Jane Doe

represented by Laura Mullally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Laura Mullally Maryland Office of the Attorney General 115 Sudbrook Lane, Suite A Pikesville, MD 21208 14105853449 Fax: 14107645366 Email: lmullally@dpscs.state.md.us ATTORNEY TO BE NOTICED
represented by Laura Mullally (See above for address) LEAD ATTORNEY

Date Filed 07/28/2008
07/28/2008 07/28/2008 08/25/2008 08/26/2008 08/28/2008
08/28/2008 09/11/2008

# Docket Text
1 COMPLAINT against Peter M. Haduch, Jr, Frederick H. Bealefeld, Baltimore City Police Department, Mayor &City Council of Baltimore, Unknown Maryland Correctional Officers, Gary D. Maynard, Naomi Williams (Filing fee $ 350. Receipt # 14637027464), filed by Rosemary Munyiri. (Attachments: # 1 Civil Cover Sheet)(ljs, Deputy Clerk) (Entered: 07/28/2008)
Jury Trial Demand by Rosemary Munyiri. (ljs, Deputy Clerk) (Entered: 07/28/2008)
2 Summons Issued 20 days as to Peter M. Haduch, Jr, Frederick H. Bealefeld, Baltimore City Police Department, Mayor &City Council of Baltimore, Gary D. Maynard, Naomi Williams. (ljs, Deputy Clerk) (Entered: 07/28/2008)
3 MOTION to Dismiss Complaint by Mayor &City Council of Baltimore Responses due by 9/11/2008 (Attachments: # 1 Memorandum of Law, # 2 Text of Proposed Order)(Ralph, David) (Entered: 08/25/2008)
4 MOTION to Dismiss by Peter M. Haduch, Jr, Frederick H. Bealefeld, Baltimore City Police Department Responses due by 9/12/2008 (Attachments: # 1 Memorandum of Law)(Janey, Neal) (Entered: 08/26/2008)
5 MOTION for Extension of Time to File Response/Reply as to 1 Complaint, by Gary D. Maynard, Naomi Williams. Responses due by 9/15/2008 (Attachments: # 1 Text of Proposed Order Granting Consent Motion for Enlargment of Time to Respond to Complaint)(Eason, Alan) (Entered: 08/28/2008)
6 PAPERLESS ORDER granting 5 Motion for Extension of Time to File Response. (Judge Davis) (Entered: 08/28/2008)
7 RESPONSE in Opposition re 4 MOTION to Dismiss filed by Rosemary Munyiri. Replies due by 9/25/2008. (Schulte, Robert) (Entered: 09/11/2008)

Case: 1:08-cv-01953-CCB As of: 05/10/2013 11:12 AM EDT 4 of 9

09/11/2008

8 PAPERLESS ORDER Setting Hearing on ALL OPEN MOTIONS 3 MOTION to Dismiss Complaint, 4 MOTION to Dismiss : Motion Hearing set for 10/22/2008 03:00 PM in Courtroom 5B before Judge Andre M Davis. (Judge Davis) (Entered: 09/11/2008)

09/17/2008

9 Second MOTION for Extension of Time to File Response/Reply as to 1 Complaint, by Gary D. Maynard, Naomi Williams. Responses due by 10/6/2008 (Attachments: # 1 Text of Proposed Order Granting Consent Motion for Enlargment of Time to Respond to Complaint)(Eason, Alan) (Entered: 09/17/2008)

09/17/2008

10 Second REQUEST for Extension of Time to File Response to Complaint (Eason, Alan) (Entered: 09/17/2008)

09/18/2008

11 PAPERLESS ORDER denying 9 Motion for Extension of Time to File Response/Reply MOTION HEARING IS CALENDARED ON OCTOBER 22, 2008 (Judge Davis) (Entered: 09/18/2008)

10/07/2008

12 NOTICE of Appearance by Laura Mullally on behalf of Gary D. Maynard (Mullally, Laura) (Entered: 10/07/2008)

10/07/2008

13 MOTION to Dismiss by Gary D. Maynard Responses due by 10/24/2008 (Mullally, Laura) (Entered: 10/07/2008)

10/07/2008

14 PAPERLESS ORDER RESetting Hearing on Motion 13 MOTION to Dismiss, 3 MOTION to Dismiss Complaint, 4 MOTION to Dismiss : Motion Hearing set for 10/27/2008 04:00 PM in Courtroom 1A before Judge Andre M Davis. THIS ORDER SUPERCEDES THE ORDER SETTING A HEARING ON OCTOBER 22, 2008. (Judge Davis) (Entered: 10/07/2008)

10/24/2008

15 RESPONSE in Opposition re 13 MOTION to Dismiss by Gary Maynard and Naomi Williams filed by Rosemary Munyiri. Replies due by 11/7/2008. (Schulte, Robert) (Entered: 10/24/2008)

10/27/2008

16 Motion Hearing held on 10/27/2008 re 3 MOTION to Dismiss Complaint filed by Mayor &City Council of Baltimore held before Judge Andre M Davis (Court Reporter M. Zajac) (bma, CRD) (Entered: 10/27/2008)

10/28/2008

17 Correspondence re: Request of Court to provide Statement of Probable Cause (Attachments: # 1 Exhibit Statement of Probable Cause)(Schulte, Robert) (Entered: 10/28/2008)

11/02/2008

18 MEMORANDUM OPINION and ORDER granting 3 Motion to Dismiss; granting 4 Motion to Dismiss; denying 13 Motion to Dismiss (Judge Davis) (Entered: 11/02/2008)

11/14/2008

19 ANSWER to Complaint by Gary D. Maynard.(Mullally, Laura) (Entered: 11/14/2008)

11/14/2008

20 SCHEDULING ORDER (Judge Davis) (Entered: 11/14/2008)

02/23/2009

21 MOTION for Extension of Time to Complete Discovery by Gary D. Maynard Responses due by 3/12/2009 (Mullally, Laura) (Entered: 02/23/2009)

02/23/2009

22 ORDER granting 21 Motion for Extension of Time to Complete Discovery (Judge Davis) (Entered: 02/23/2009)

03/05/2009

23 MOTION to Compel Discovery from Defendants Maynard &Williams by Rosemary Munyiri Responses due by 3/23/2009 (Schulte, Robert) (Entered: 03/05/2009)

03/16/2009

24 NOTICE by Rosemary Munyiri re 23 MOTION to Compel Discovery from Defendants Maynard &Williams Withdraw of Motion to Compel (Schulte, Robert) (Entered: 03/16/2009)

05/11/2009

25 (FILED IN ERROR − ATTY TO REFILE) AMENDED COMPLAINT against all plaintiffs, filed by Rosemary Munyiri. (Attachments: # 1 Appendix Comparison Copy of First Amended Complaint)(Schulte, Robert) Modified on 5/11/2009 (hmls, Deputy Clerk). (Entered: 05/11/2009)

Case: 1:08-cv-01953-CCB As of: 05/10/2013 11:12 AM EDT 5 of 9

05/12/2009

26 AMENDED COMPLAINT against all defendants, filed by Rosemary Munyiri. (Attachments: # 1 Appendix Comparison Copy (Caption Page), # 2 Appendix Comparison Copy (Body of Complaint))(Schulte, Robert) (Entered: 05/12/2009)

05/12/2009

Jury Trial Demand by Rosemary Munyiri, Kimberly Felder, Christina Schaeffer, Nelear Walls. (hmls, Deputy Clerk) (Entered: 05/14/2009)

05/20/2009

Case reassigned to Judge Catherine C. Blake. Judge Andre M Davis no longer assigned to the case. (cag, Deputy Clerk) (Entered: 05/20/2009)

05/29/2009

29 MOTION to Dismiss first amended complaint by Gary D. Maynard Responses due by 6/15/2009 (Attachments: # 1 Text of Proposed Order, # 2 memorandum in support of motion to dismiss first amended complaint, # 3 Exhibit defendants' exhibit 1, # 4 Exhibit defendants' exhibit 2)(Mullally, Laura) (Entered: 05/29/2009)

06/15/2009

30 RESPONSE in Opposition re 29 MOTION to Dismiss first amended complaint filed by Rosemary Munyiri. Replies due by 6/29/2009. (Attachments: # 1 Memorandum of Law, # 2 Text of Proposed Order)(Schulte, Robert) (Entered: 06/15/2009)

06/17/2009

31 Correspondence re: Extension of Discovery Deadline (Schulte, Robert) (Entered: 06/17/2009)

06/17/2009

32 PAPERLESS ORDER APPROVING 31 Miscellaneous Correspondence and request to extend discovery deadline. Signed by Judge Catherine C. Blake on June 17, 2009. (Blake, Catherine) (Entered: 06/17/2009)

06/29/2009

33 REPLY to Response to Motion re 29 MOTION to Dismiss first amended complaint filed by Gary D. Maynard. (Mullally, Laura) (Entered: 06/29/2009)

08/07/2009

34 MOTION for Extension of Time to Complete Discovery by Gary D. Maynard. Responses due by 8/24/2009 (Mullally, Laura) (Entered: 08/07/2009)

08/07/2009

35 Paperless ORDER granting 34 Consent Motion for Extension of Time until October 31, 2009 to Complete Discovery. Signed by Judge Catherine C. Blake on 8/7/09. (Blake, Catherine) (Entered: 08/07/2009)

09/01/2009

36 MEMORANDUM. Signed by Judge Catherine C. Blake on 9/1/09. (hmls, Deputy Clerk) (Entered: 09/01/2009)

09/01/2009

37 ORDER denying 29 Motion of defendants to Dismiss. Signed by Judge Catherine C. Blake on 9/1/09. (hmls, Deputy Clerk) (Entered: 09/01/2009)

09/16/2009

38 AMENDED COMPLAINT against all defendants, filed by Rosemary Munyiri. (Attachments: # 1 Appendix Comparison Copy (Caption), # 2 Appendix Comparison Copy (Body))(Schulte, Robert) (Entered: 09/16/2009)

09/17/2009

39 NOTICE of Appearance by Alan J Booth on behalf of all plaintiffs (Booth, Alan) (Entered: 09/17/2009)

09/17/2009

40 NOTICE by Nelear Walls of Summons to be Issued as to Defendant Latrice Lee (Schulte, Robert) (Entered: 09/17/2009)

09/17/2009

41 Summons Issued 20 days as to Latrice Lee. (hmls, Deputy Clerk) (Entered: 09/17/2009)

09/30/2009

42 MOTION for Extension of Time to File Response/Reply as to 38 Amended Complaint by Gary D. Maynard(in his individual capacity and in his official capacity as Secretary of the Maryland Department of Public Safety and Correctional Services). Responses due by 10/19/2009 (Attachments: # 1 Text of Proposed Order)(Mullally, Laura) (Entered: 09/30/2009)

10/01/2009

43 PAPERLESS ORDER Granting 42 Motion for Extension of Time until October 2, 2009 to File Response to second amended complaint. Signed by Judge Catherine C. Blake on October 1, 2009. (Blake, Catherine) (Entered: 10/01/2009)

10/02/2009

44 ANSWER to 38 Amended Complaint by Gary D. Maynard.(Mullally, Laura) (Entered: 10/02/2009)

Case: 1:08-cv-01953-CCB As of: 05/10/2013 11:12 AM EDT 6 of 9

10/12/2009

45 Second REQUEST for Extension of Time to File /Complete Discovery (Booth, Alan) (Entered: 10/12/2009)

10/13/2009

46 PAPERLESS ORDER APPROVING 45 Request for Extension of Time. Discovery deadline extended until December 31, 2009. Signed by Judge Catherine C. Blake on October 13, 2009. (Blake, Catherine) (Entered: 10/13/2009)

11/16/2009

47 ANSWER to Complaint by Latrice Lee.(Mullally, Laura) (Entered: 11/16/2009)

12/21/2009

48 MOTION for Extension of Time to Complete Discovery by Gary D. Maynard. Responses due by 1/7/2010 (Mullally, Laura) (Entered: 12/21/2009)

12/22/2009

49 PAPERLESS ORDER Granting 48 Motion for Extension of Time to Complete Discovery. Status report due JANUARY 31, 2010. Signed by Judge Catherine C. Blake on December 22, 2009. (Blake, Catherine) (Entered: 12/22/2009)

01/29/2010

50 MOTION for Protective Order by Gary D. Maynard Responses due by 2/16/2010 (Attachments: # 1 Appendix memorandum in support of motion for protective order, # 2 Appendix certification of discovery dispute, # 3 Affidavit affidavit of glenn t. marrow, # 4 Affidavit affidavit of karl a. pothier)(Mullally, Laura) (Entered: 01/29/2010)

02/02/2010

51 STATUS REPORT by Rosemary Munyiri. (Schulte, Robert) (Entered: 02/02/2010)

02/02/2010

52 PAPERLESS Correspondence to counsel: The Court has reviewed your February 2, 2010 Status Report. A conference call has been set for February 22, 2010 at 5:15 p.m. to discuss further scheduling needs. Chambers will initiate the call. (Blake, Catherine) (Entered: 02/02/2010)

02/14/2010

53 RESPONSE in Opposition re 50 MOTION for Protective Order filed by Rosemary Munyiri. Replies due by 3/3/2010. (Attachments: # 1 Memorandum of Law, # 2 Exhibit 1 to Memorandum of Law, # 3 Exhibit 2 to Memorandum of Law, # 4 Exhibit 3 to Memorandum of Law)(Schulte, Robert) (Entered: 02/14/2010)

02/16/2010

54 Correspondence re: conference call for 2−22−10 at 5:15 p.m. (Mullally, Laura) (Entered: 02/16/2010)

02/22/2010

Telephone Conference held on 2/22/2010 held before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 02/24/2010)

02/23/2010

55 PAPERLESS Correspondence to counsel: A conference call to discuss the motion for protective order has been set for March 10, 2010 at 2:15 p.m. Chambers will initiate the call. The defendant's motion for summary judgment is due April 23, 2010. (Blake, Catherine) (Entered: 02/23/2010)

03/03/2010

56 REPLY to Response to Motion re 50 MOTION for Protective Order filed by Gary D. Maynard. (Mullally, Laura) (Entered: 03/03/2010)

03/03/2010

57 (FILED IN ERROR − ATTY TO REFILE) −SEALED − NOTICE of Filing Under Seal by Gary D. Maynard re 56 Reply to Response to Motion (Mullally, Laura) Modified on 3/3/2010 (hmls, Deputy Clerk). (Entered: 03/03/2010)

03/03/2010

58 −SEALED − NOTICE of Filing Under Seal 3 memoranda and 1 email concerning Defendants' Motion for Protective order by Gary D. Maynard re 56 Reply to Response to Motion, 50 MOTION for Protective Order, 53 Response in Opposition to Motion, (Mullally, Laura) (Entered: 03/03/2010)

03/10/2010

59 ORDER denying 50 Motion of defendants for Protective Order. Signed by Judge Catherine C. Blake on 3/10/10. (hmls, Deputy Clerk) (Entered: 03/10/2010)

03/10/2010

Telephonic/Motion Hearing held on 3/10/2010 re 50 MOTION for Protective Order filed by Gary D. Maynard held before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 03/11/2010)

04/21/2010

60 MOTION for Extension of Time to file dispositive motions by Gary D. Maynard Responses due by 5/10/2010 (Attachments: # 1 Text of Proposed Order)(Mullally, Laura) (Entered: 04/21/2010)

04/22/2010

61 PAPERLESS ORDER Granting 60 Consent Motion for Extension of Time until May 7, 2010 to file dispositive motions. Signed by Judge Catherine C. Blake on

Case: 1:08-cv-01953-CCB As of: 05/10/2013 11:12 AM EDT 7 of 9

05/04/2010 05/06/2010 05/14/2010
05/25/2010 05/26/2010 06/22/2010
06/29/2010 07/07/2010 07/08/2010 07/16/2010 07/19/2010 08/03/2010
03/31/2011

April 21, 2010. (Blake, Catherine) (Entered: 04/22/2010)
62 Second REQUEST for Extension of Time to File motion for summary judgment (Mullally, Laura) (Entered: 05/04/2010)
63 PAPERLESS ORDER APPROVING 62 Request for Extension of Time until May 14, 2010 to file dispositive motions. Signed by Judge Catherine C. Blake on May 6, 2010. (Blake, Catherine) (Entered: 05/06/2010)
64 MOTION for Summary Judgment by Gary D. Maynard. Responses due by 6/1/2010 (Attachments: # 1 supporting memorandum, # 2 notice of filing of lengthy exhibit, # 3 notice of filing of lengthy exhibit, # 4 notice of filing of lengthy exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 notice of filing of lengthy exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit)(Mullally, Laura) (Entered: 05/14/2010)
65 Consent MOTION for Extension of Time to File Response/Reply as to 64 MOTION for Summary Judgment by Rosemary Munyiri. Responses due by 6/11/2010 (Schulte, Robert) (Entered: 05/25/2010)
66 PAPERLESS ORDER granting 65 Motion for Extension of Time to File Response/Reply re 64 Motion for Summary Judgment. Responses due by 6/25/2010; Replies due by 7/15/2010. Signed by Judge Catherine C. Blake on May 26, 2010. (Blake, Catherine) (Entered: 05/26/2010)
67 RESPONSE in Opposition re 64 MOTION for Summary Judgment filed by Rosemary Munyiri. Replies due by 7/9/2010. (Attachments: # 1 Memorandum of Law in Support of Response in Opposition to Motion to for Summary Judgment, # 2 Exhibit 1 to Memorandum of Law, # 3 Exhibit 2 to Memorandum of Law, # 4 Exhibit 3 to Memorandum of Law, # 5 Exhibit 4 to Memorandum of Law, # 6 Exhibit 5 to Memorandum of Law, # 7 Exhibit 6 to Memorandum of Law, # 8 Exhibit 7 to Memorandum of Law, # 9 Exhibit 8 to Memorandum of Law, # 10 Exhibit 9 to Memorandum of Law, # 11 Exhibit 10 to Memorandum of Law, # 12 Exhibit 11 to Memorandum of Law, # 13 Exhibit 12 to Memorandum of Law, # 14 Exhibit 13 to Memorandum of Law, # 15 Exhibit 14 to Memorandum of Law, # 16 Exhibit 15 to Memorandum of Law, # 17 Exhibit 16 to Memorandum of Law, # 18 Exhibit 17 to Memorandum of Law, # 19 Exhibit 18 to Memorandum of Law)(Schulte, Robert) (Entered: 06/22/2010)
68 NOTICE by Rosemary Munyiri re 67 Response in Opposition to Motion,,, Notice of Lengthy Filing (Schulte, Robert) (Entered: 06/29/2010)
69 MOTION for Extension of Time to File Response/Reply by Gary D. Maynard. Responses due by 7/26/2010 (Mullally, Laura) (Entered: 07/07/2010)
70 PAPERLESS ORDER Granting 69 Motion for Extension of Time to File Reply re 64 Motion for Summary Judgment. Replies due by 7/23/2010. Signed by Judge Catherine C. Blake on July 8, 2010. (Blake, Catherine) (Entered: 07/08/2010)
71 MOTION for Extension of Time to File Response/Reply as to 67 Response in Opposition to Motion,,, by Gary D. Maynard. Responses due by 8/2/2010 (Mullally, Laura) (Entered: 07/16/2010)
72 PAPERLESS ORDER Granting 71 Motion for Extension of Time to File Reply re 64 Motion for Summary Judgment. Replies due by 8/6/2010. Signed by Judge Catherine C. Blake on July 19, 2010. (Blake, Catherine) (Entered: 07/19/2010)
73 REPLY to Response to Motion re 64 MOTION for Summary Judgment filed by Gary D. Maynard. (Attachments: # 1 Exhibit deposition of secretary, # 2 Exhibit deposition of warden, # 3 Exhibit deposition of former warden, # 4 Exhibit deposition of plaintiff schaeffer, # 5 Exhibit affidavit of secretary, # 6 Exhibit deposition of barbara ann martin, # 7 Exhibit affidavit of warden, # 8 Exhibit affidavit of assistant warden)(Mullally, Laura) (Entered: 08/03/2010)
74 MEMORANDUM. Signed by Judge Catherine C. Blake on 3/31/11. (bmh, Deputy Clerk) (Entered: 03/31/2011)

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03/31/2011

75 ORDER denying in part and granting in part 64 Defendants' Motion for Summary Judgment. Signed by Judge Catherine C. Blake on 3/31/11. (bmh, Deputy Clerk) (Entered: 03/31/2011)

04/06/2011

76 MOTION for Reconsideration re 74 Memorandum Opinion, 75 Order on Motion for Summary Judgment by Rosemary Munyiri Responses due by 4/25/2011 (Schulte, Robert) (Entered: 04/06/2011)

04/06/2011

77 Amended MOTION for Reconsideration re 74 Memorandum Opinion, 75 Order on Motion for Summary Judgment, 76 MOTION for Reconsideration re 74 Memorandum Opinion, 75 Order on Motion for Summary Judgment by Rosemary Munyiri Responses due by 4/25/2011 (Schulte, Robert) (Entered: 04/06/2011)

12/06/2011

78 Second MOTION for Reconsideration re 75 Order on Motion for Summary Judgment, 77 Amended MOTION for Reconsideration re 74 Memorandum Opinion, 75 Order on Motion for Summary Judgment, 76 MOTION for Reconsideration re 74 Memorandum Opinion, 75 Order on Motion for Summary Judgment by Rosemary Munyiri Responses due by 12/23/2011 (Schulte, Robert) (Entered: 12/06/2011)

12/15/2011

79 PAPERLESS Correspondence to counsel: A conference call is set for December 19, 2011 at 12:30 p.m. to discuss scheduling needs in this case. Plaintiffs' counsel is asked to initiate that call. (Blake, Catherine) (Entered: 12/15/2011)

12/19/2011

Telephone Conference re: Scheduling held on 12/19/2011 before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 12/22/2011)

12/20/2011

80 ORDER denying 76 Motion of plaintiff for Reconsideration ; denying 77 Motion of plaintiff for Reconsideration ; denying 78 Motion of plaintiff for Reconsideration; scheduling conference call. Signed by Judge Catherine C. Blake on 12/20/11. (jnls, Deputy Clerk) (Entered: 12/20/2011)

03/06/2012

81 PAPERLESS Correspondence: A conference call is set in this matter for June 8, 2012 at 9:00 a.m. Plaintiffs' counsel is asked to initiate that call. (Blake, Catherine) (Entered: 03/06/2012)

03/06/2012

Telephone Conference re: Scheduling held on 3/6/2012 before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 03/12/2012)

04/03/2012

82 Miscellaneous Correspondence to counsel. A status report is requested by April 20, 2012. (Blake, Catherine) (Entered: 04/03/2012)

04/20/2012

83 STATUS REPORT by all Parties by Rosemary Munyiri. (Schulte, Robert) (Entered: 04/20/2012)

05/01/2012

84 A conference call will be held at 9:15 am on Monday, May 14, 2012. I ask counsel for plaintiff to make the arrangements for the conference call. Thank you. (Blake, Catherine) (Entered: 05/01/2012)

05/14/2012

85 PAPERLESS Correspondence to counsel: The June 8, 2012 conference call in this case is cancelled as no longer necessary. (Blake, Catherine) (Entered: 05/14/2012)

05/14/2012

86 ORDER confirming results of conference call; setting briefing deadlines for defendants' motion for summary judgment; setting dates for jury trial. Signed by Judge Catherine C. Blake on 5/14/12. (dass, Deputy Clerk) (Entered: 05/14/2012)

06/29/2012

87 Supplemental MOTION for Summary Judgment by Mitchell E. Franks. Responses due by 7/16/2012 (Attachments: # 1 memorandum in support of motion, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit 1 to Stacey M. Felder Declaration, # 14 Exhibit 2 to Stacey M. Felder Declaration, # 15 Exhibit 3 to Stacey M. Felder Declaration, # 16 Exhibit 4 to Stacey M. Felder Declaration, # 17 Exhibit L, # 18 Exhibit M, # 19 Exhibit N)(Mullally, Laura) (Entered: 06/29/2012)

06/29/2012

88 MOTION to Amend/Correct defendants' answers to second amended complaint by Mitchell E. Franks Responses due by 7/16/2012 (Attachments: # 1 memorandum in support of motion)(Mullally, Laura) (Entered: 06/29/2012)

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07/14/2012

89 Consent MOTION for Extension of Time to File Response/Reply as to 87 Supplemental MOTION for Summary Judgment , 88 MOTION to Amend/Correct defendants' answers to second amended complaint by Rosemary Munyiri. Responses due by 8/2/2012 (Schulte, Robert) (Entered: 07/14/2012)

07/16/2012

90 PAPERLESS ORDER Granting 89 Motion for Extension of Time to File Response re 87 Supplemental Motion for Summary Judgment. Responses due by 7/31/2012. Signed by Judge Catherine C. Blake on July 16, 2012. (Blake, Catherine) (Entered: 07/16/2012)

07/30/2012

91 RESPONSE in Opposition re 87 Supplemental MOTION for Summary Judgment , 88 MOTION to Amend/Correct defendants' answers to second amended complaint filed by Rosemary Munyiri. Replies due by 8/16/2012. (Attachments: # 1 Memorandum of Law)(Schulte, Robert) (Entered: 07/30/2012)

08/14/2012

92 MOTION for Extension of Time to File Response/Reply by Gary D. Maynard. Responses due by 8/31/2012 (Mullally, Laura) (Entered: 08/14/2012)

08/17/2012

93 Correspondence re: cancelling trial date of september 10, 2012 (Mullally, Laura) (Entered: 08/17/2012)

08/20/2012

94 Correspondence re: Defendant Correspondence of August 17, 2012 (Schulte, Robert) (Entered: 08/20/2012)

08/27/2012

95 PAPERLESS ORDER Granting 92 Motion for Extension of Time, as proposed. Signed by Judge Catherine C. Blake on August 27, 2012. (Blake, Catherine) (Entered: 08/27/2012)

08/27/2012

96 ORDER postponing trial. Signed by Judge Catherine C. Blake on 8/27/2012. (aos, Deputy Clerk) (Entered: 08/27/2012)

09/07/2012

97 REPLY to Response to Motion re 87 Supplemental MOTION for Summary Judgment , 88 MOTION to Amend/Correct defendants' answers to second amended complaint filed by Mitchell E. Franks. (Mullally, Laura) (Entered: 09/07/2012)

03/29/2013

98 MEMORANDUM. Signed by Judge Catherine C. Blake on 3/29/13. (dass, Deputy Clerk) (Entered: 03/29/2013)

03/29/2013

99 ORDER granting defendants' 87 Motion for Summary Judgment; granting defendants' 88 Motion to Amend/Correct; closing case. Signed by Judge Catherine C. Blake on 3/29/13. (dass, Deputy Clerk) (Entered: 03/29/2013)

04/10/2013

100 NOTICE OF APPEAL as to 99 Order on Motion for Summary Judgment, Order on Motion to Amend/Correct by Kimberly Felder, Rosemary Munyiri, Christina Schaeffer, Nelear Walls. Filing fee $ 455, receipt number 0416−4044298. (Schulte, Robert) (Entered: 04/10/2013)

04/10/2013

101 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 100 Notice of Appeal,. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms &Notices. (sls, Deputy Clerk) (Entered: 04/10/2013)

04/11/2013

102 USCA Case Number 13−1471 for 100 Notice of Appeal filed by Christina Schaeffer, Kimberly Felder, Nelear Walls, Rosemary Munyiri − Case Manager − Sharon Wiley (sls, Deputy Clerk) (Entered: 04/11/2013)