                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-1878


MARCELLA HOLLOMAN,

                 Plaintiff - Appellant,

           v.

PAUL MARKOWSKI; GREGORY BRAGG,

                 Defendants - Appellees,

           and

STEPHANIE RAWLINGS-BLAKE; BERNARD “JACK” YOUNG; JAMES B.
KRAFT; BRANDON SCOTT; ROBERT CURRAN; BILL HENRY; ROCHELLE
RIKKI SPECTOR; SHARON GREEN MIDDLETON; NICK MOSBY; HELEN
HOLTON; WILLIAM “PETE” WELCH; EDWARD REISINGER; WILLIAM
COLE; CARL STOKES; WARREN BRANCH; MARY PAT CLARKE; GREGG
BERNSTEIN; ANTHONY BATTS,

                 Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Catherine C. Blake, Chief District
Judge. (1:14-cv-01516-CCB)


Argued:   September 20, 2016                 Decided:   October 7, 2016


Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Louis Braga, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant.   Frederic Nelson
Smalkin, Jr., William Rowe Phelan, Jr., BALTIMORE CITY LAW
DEPARTMENT, Baltimore, Maryland, for Appellees.       ON BRIEF:
Hardev Chhokar, Brian Remondino, Josh Robbins, Andrew Selman,
Third Year Law Students, Appellate Litigation Clinic, UNIVERSITY
OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for
Appellant.   George Nilson, City Solicitor, BALTIMORE CITY LAW
DEPARTMENT, Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Marcella      Holloman       brought         this    42   U.S.C.   § 1983     action

stemming    from    the       fatal    shooting      of    her    son   Maurice    Donald

Johnson by two officers of the Baltimore City Police Department.

Holloman asserts a municipal liability claim against the Mayor

and City Council of Baltimore, Maryland and individual liability

claims against the two officers.                   The district court granted the

City’s motion to dismiss and the officers’ motion for summary

judgment.        For    the     reasons    that         follow,   we    affirm    in     all

respects.



                                           I.

     On    the     afternoon      of    May       19,     2012,   Holloman      hosted    a

birthday    party       for     her    granddaughter.             During   the    party,

Johnson,    who        had    previously          been     diagnosed     with     bipolar

disorder, came to Holloman’s house, where he also lived.

     Holloman first noticed that Johnson had returned when she

heard the sound of breaking glass coming from Johnson’s upstairs

bedroom.    Johnson then broke the forty-two-inch television and

the mirror in his room.               Holloman went upstairs to ask her son

to stop, explaining that after the party ended she would take

him to the hospital to receive psychiatric treatment.                             Johnson

told her that she would have to get the police to take him to



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the hospital because he would not go willingly.                             Holloman and

her daughter decided to remove the children from the house.

        Johnson     continued      to     destroy         property.             He     smashed

Holloman’s        television    and     threw      his    mattress       onto    the       front

lawn, where he ripped it apart.                        While Johnson was outside,

Holloman     and    her   daughter       locked        him    out   of    the    house       and

Holloman called 911.           In the process of trying to re-enter the

house, Johnson kicked the front door and, announcing that he was

“coming in,” pulled the back screen door off its hinges.

       At   this    point,     Officer      Paul       Markowski       arrived,       followed

shortly by Officer Gregory Bragg.                       Holloman told the officers

that    Johnson     had   psychiatric        issues       and    would     not       stop   his

destructive behavior.            She asked them not to shoot him, but

suggested that they employ a Taser.

       The officers opened the back door and asked Johnson to calm

down.       The    officers    attempted         to    restrain     Johnson,         at   which

point he lunged at them, pinned Officer Markowski to the ground

with his knees, and fought with him.                         Officer Bragg tried, but

failed, to pull Johnson off Officer Markowski.                            Holloman heard

Officer Bragg fire at least two gun shots, wounding Johnson, who

later died from his injuries.                Holloman alleges that the entire

altercation lasted at most one minute.

       Holloman,      proceeding      pro    se        before    the     district         court,

brought     this     action     against          the     City,      numerous         municipal

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officials,      and    the    individual       officers.       The    district     court

entered judgment for all defendants.                    This appeal followed.



                                             II.

       We first address the municipal liability claim.                      “We review

de novo the grant of a motion to dismiss for failure to state a

claim.       In doing so, we accept as true the well-pled allegations

of     the    complaint       and    construe        the    facts    and    reasonable

inferences derived therefrom in the light most favorable to the

plaintiff.”       Harbourt v. PPE Casino Resorts Maryland, LLC, 820

F.3d    655,    658    (4th   Cir.     2016)       (internal   citations     omitted).

“[W]hile a plaintiff does not need to demonstrate in a complaint

that    the    right    to    relief    is    ‘probable,’      the    complaint    must

advance the plaintiff’s claim ‘across the line from conceivable

to plausible.’”         Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.

2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)).       Because Holloman was pro se before the district court,

we construe her complaint liberally.                    See Jehovah v. Clarke, 798

F.3d 169, 176 (4th Cir. 2015).

       In Monell v. Dept. of Social Servs. of City of New York,

436    U.S.    658,    690-91       (1978),       the    Supreme    Court   held   that

municipalities face liability under § 1983 if a municipal policy

or custom itself causes a deprivation of constitutional rights.

Holloman alleges that the City failed to supervise and train its

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police     officers   to    handle     interactions        with   mentally       ill

individuals and “had a general policy, pattern and/or practice

of not disciplining police officers for their conduct, thereby

sanctioning the police officers’ actions.”

     To prevail on a Monell claim, Holloman “must point to a

‘persistent and widespread practice[] of municipal officials,’

the ‘duration and frequency’ of which indicate that policymakers

(1) had actual or constructive knowledge of the conduct, and (2)

failed to correct it due to their ‘deliberate indifference.’”

Owens v. Baltimore City State’s Attorney’s Office, 767 F.3d 379,

402 (4th Cir. 2014) (quoting Spell v. McDaniel, 824 F.2d 1380,

1386-91 (4th Cir. 1987)) (alteration in Owens).                    While we can

infer    both   knowledge    and     deliberate   indifference          “from    the

extent     of   employees’     misconduct[,       s]poradic        or     isolated

violations of rights will not give rise to Monell liability;

only widespread or flagrant violations will.”                     Id. at 402-03

(internal citations and quotations omitted).

     The    only   facts    Holloman    has   pled    in    support      of     these

allegations were four specific instances of city police officers

killing in the course of their duties and an August 22, 2012

Baltimore Sun article reporting that, year-to-date, city police

officers had shot ten individuals (eight fatally), “[a] number

of [whom] had been diagnosed with some sort of mental illness.”



                                        6
       Importantly,    Holloman      does    not    allege    any     facts    showing

that any of these incidents involved constitutional violations,

let alone that the City improperly failed to discipline or train

any    officers.      Cf.   Owens,    767    F.3d    at   403       (holding   that   a

plaintiff alleging “the existence of ‘reported and unreported

cases’ and numerous ‘successful motions’” regarding the improper

withholding    of    exculpatory      evidence      stated      a    Monell    claim).

Holloman’s allegations are too speculative to state a plausible

claim for municipal liability.              We thus affirm without reaching

the City’s argument that the police department is a state, not

city, agency.



                                       III.

       We next consider the claims against the two officers, whom

Holloman alleges used excessive force in violation of the Fourth

Amendment.      We    review   the    district      court’s     grant    of    summary

judgment to them de novo.             PBM Prods., LLC v. Mead Johnson &

Co., 639 F.3d 111, 119 (4th Cir. 2011).                   We analyze excessive

force     claims      “under    the     Fourth        Amendment’s         ‘objective

reasonableness’ standard,” Graham v. Connor, 490 U.S. 386, 388

(1989), and evaluate an officer’s particular use of force “from

the perspective of a reasonable officer on the scene,” id. at

396.    Three guiding factors in the reasonableness calculus are

the severity of the relevant crime, the immediate threat the

                                        7
suspect poses, and the intensity of the suspect’s resistance to

arrest.      Estate    of    Armstrong        ex    rel.       Armstrong      v.    Vill.    of

Pinehurst, 810 F.3d 892, 899 (4th Cir. 2016).

      “A government official sued under § 1983 is entitled to

qualified immunity unless the official violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct.”              Carroll v. Carmon, 135 S. Ct. 348, 350

(2014).     A plaintiff seeking to avoid an officer’s qualified

immunity    defense    must      demonstrate         both       that    (1)    “the      facts,

viewed in the light most favorable to the plaintiff, show that

the officer’s conduct violated a federal right,” and (2) this

“right     was   clearly      established           at    the    time       the     violation

occurred such that a reasonable person would have known that his

conduct was unconstitutional.”                    Smith v. Ray, 781 F.3d 95, 100

(4th Cir. 2015).

      We    exercise    our       discretion         to    begin       with       the    second

question--whether      the       asserted     right       was    clearly      established.

See   Pearson    v.    Callahan,        555       U.S.    223,    236       (2009).        “The

dispositive      question        is    whether           the    violative         nature     of

particular conduct is clearly established . . . in light of the

specific context of the case . . . .”                      Mullenix v. Luna, 136 S.

Ct. 305, 308 (2015) (internal citations and quotations omitted).

“We   do   not   require     a    case    directly         on    point,       but       existing

precedent    must     have    placed      the       statutory          or   constitutional

                                              8
question beyond debate.”          Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011).

       Thus, here we must determine whether, as of May 19, 2012,

relevant precedent established that an officer’s use of lethal

force is objectively unreasonable and therefore constitutionally

excessive when used against an unarmed but physically resistant

suspect, who has destroyed property, attacked an officer, and

given   no    indication   that    he   will   yield.      There    is    no   such

precedent.

       Holloman conceded at oral argument that no case “anywhere”

addresses similar facts.           The relevant precedent most helpful

for her, Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002), contains

too many material distinctions to clearly establish that the

officers acted unconstitutionally in the case at hand.                   In Clem,

we denied summary judgment to an officer who allegedly “shot a

mentally disabled, confused older man, obviously unarmed, who

was stumbling toward the bathroom in his own house with pepper

spray in his eyes, unable to threaten anyone.”                     Id. at 552.

Officers      Markowski     and     Bragg      faced     markedly        different

circumstances.

       Unlike Clem, Johnson engaged in a physical altercation with

the two officers.          Moreover, Holloman, Johnson’s mother, had

told    the    officers    that    Johnson     had     destroyed    substantial

property that evening and that he likely would not stop; no one

                                        9
told    the   officers   similar      facts   about   Clem.      Furthermore,

despite having no weapon, Johnson had already dragged Officer

Markowski to the ground, held him down, fought with him, and

fended off Officer Bragg’s effort to pull him away.              Again, Clem

engaged in no similar activity.

       In   sum,   regrettable   as    Johnson’s   death   is,   under   these

circumstances neither Clem nor any other precedent established

that the officers employed constitutionally excessive force.



                                       IV.

       For the foregoing reasons, the judgment of the district

court is

                                                                    AFFIRMED.




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