Jones v. Jordan et al

Filing 34

MEMORANDUM OPINION Signed by Judge George Levi Russell, III on 9/18/2017. (cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ERIC JONES,
Plaintiff,

:
:

v.

:

JOSHUA JORDAN, et al.,

Civil Action No. GLR-16-2662

:
:

Defendants.
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant Baltimore Police Department
and Anthony W. Batts’s (collectively, “BPD”) Motion to Dismiss for Failure to State a
Claim (ECF No. 22) Plaintiff Eric Jones’s Amended Complaint (ECF No. 21). This 42
U.S.C. § 1983 (2012) action arises from the August 17, 2014 arrest of Jones by
Defendants Joshua Jordan and Russell J. Tonks (the “Officer Defendants”). The Motion
is ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2016).
For the reasons outlined below, the Court will deny the Motion.1

1

Also pending is BPD’s Motion to Dismiss for Failure to State a Claim (ECF No.
14) Jones’s original Complaint in this case (ECF No. 1). BPD and Batts filed this Motion
on September 2, 2016. (ECF No. 14). In response, Jones filed an Amended Complaint
on October 25, 2016. (ECF No. 21). When a plaintiff files an amended complaint, it
generally moots any pending motions to dismiss because the original complaint is
superseded. Venable v. Pritzker, No. GLR-13-1867, 2014 WL 2452705, at *5 (D.Md.
May 30, 2014), aff’d, 610 F.App’x 341 (4th Cir. 2015). Accordingly, the Court will deny
the Motion as moot.

I.

BACKGROUND2

On August 17, 2014, the Officer Defendants were investigating suspected drug
activity at 3500 Hayward Avenue, Baltimore, Maryland. (Am. Compl. ¶ 26, ECF No.
21). They were looking for a person suspected of selling drugs who was “wearing all
black.” (Id. ¶ 27). The Officer Defendants observed Jones and another person walking
out of a building on the 3200 block of the same avenue. (Id. ¶ 29). While Jones did not
meet the description of the suspect, the Officer Defendants observed him walking on the
sidewalk in a “hurried manner.” (Id. ¶¶ 30, 32, 34). They stopped3 Jones. (Id. ¶ 33).
He provided them his name and other “pertinent information,” but when they
asked if he had anything illegal on him, he “attempted to end the discussion” and leave.
(Id.). The Officer Defendants did not let Jones leave, and instead, they “employed a
‘departmentally trained take down’” of Jones, “tackling” him to the ground. (Id. ¶ 35).
He fell, face first, onto the curb. (Id. ¶ 36). As a result, Jones went to the hospital for
five days, where he was diagnosed with various brain and shoulder injuries. (Id. ¶ 37).
He underwent brain surgery and continues to receive treatment. (Id. ¶ 38). The take
down left Jones with permanent injuries, including brain damage, preventing him from
returning to his job. (Id. ¶¶ 36, 38).

2

Unless otherwise noted, the Court takes the following facts from Jones’s
Amended Complaint and accepts them as true. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citations omitted).
3
As the Court will observe infra, the parties dispute whether the Officer
Defendants conducted a “stop” of Jones lawfully under Terry v. Ohio, 392 U.S. 1, 30
(1968), when they initially questioned him. The Court uses “stop” here only for its
ordinary meaning rather than for its technical meaning under Terry and its progeny.
2

Jones was charged with seven counts related to possession and distribution of
marijuana, assault, and interfering with arrest. (Id. ¶ 39). On September 29, 2014, the
State’s Attorney dismissed the charges, and a nolle prosequi was entered for all of
Jones’s charges. (Id. ¶ 45).
Jones filed the present action on July 22, 2016 against the Officer Defendants,
Batts, the Baltimore Police Department, Unknown Individual Officers (the “John Doe
Officers”), and Unknown Supervisors of the Baltimore Police Department (the “John Doe
Supervisors”). (ECF No. 1). On October 25, 2016, Jones filed an Amended Complaint.
(ECF No. 21).
In his nine-count Amended Complaint, Jones alleges: direct liability for violations
of his constitutional rights under § 1983 against the Officer Defendants and John Doe
Officers (the “Individual Defendants”) (Count I); municipal liability for violations of his
constitutional rights under § 1983 against the Baltimore Police Department, Batts, and the
John Doe Supervisors (Count II); supervisor liability for violations of his constitutional
rights under § 1983 against the John Doe Supervisors (Count III); bystander liability for
violations of his constitutional rights under § 1983 against the John Doe Officers (Count
IV); violations of Articles 24 and 26 of the Maryland Declaration of Rights against the
Individual Defendants (Count V); Malicious Prosecution against the Individual
Defendants (Count VI); Assault and Battery against the Individual Defendants (Count
VII); False Imprisonment against the Individual Defendants (Count VIII); and False
Arrest against the Individual Defendants (Count IX). (See id. ¶¶ 95–149). Jones seeks

3

damages and attorney’s fees and costs. (Id. ¶¶ 101, 109, 117, 127, 130, 136, 141, 148,
149).
BPD now moves to dismiss all counts against it for failure to state a claim upon
which relief may be granted. (ECF No. 22). Jones filed an Opposition on December 2,
2016. (ECF No. 26). BPD filed a Reply on December 22, 2016. (ECF No. 29).
II.
A.

DISCUSSION

Standard of Review
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint,”

not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243–44 (4th Cir. 1999) (quoting
Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). A complaint fails to
state a claim if it does not contain “a short and plain statement of the claim showing that
the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief
that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though
the plaintiff is not required to forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each element. Goss v. Bank of Am.,
N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d
4

435, 439 (4th Cir. 2012)), aff’d sub nom., Goss v. Bank of Am., NA, 546 F.App’x 165
(4th Cir. 2013).
In considering a Rule 12(b)(6) motion, a court must examine the complaint as a
whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266,
268 (1994); Lambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir.
2005) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But, the court need not
accept unsupported or conclusory factual allegations devoid of any reference to actual
events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal
conclusions couched as factual allegations, Iqbal, 556 U.S. at 678.
B.

Analysis
Under Monell v. Department of Social Services, a municipality, such as the

Baltimore Police Department, is subject to suit under § 1983. 436 U.S. 658, 690 (1978).
A plaintiff may sue a municipality under § 1983 if he suffered a constitutional violation
at the hands of an employee acting under color of a municipal policy. Id. at 692. Under
Monell, however, “a municipality is liable only for its own illegal acts.” Owens v. Balt.
City State’s Attorneys Office, 767 F.3d 379, 402 (4th Cir. 2014). As a result, “[o]nly if a
municipality subscribes to a custom, policy, or practice can it be said to have committed
an independent act, the sine qua non of Monell liability.” Id. at 402. Liability under
respondeat superior is insufficient under Monell’s standard. Monell, 436 U.S. at 693–94.
All § 1983 Monell claims have three elements: “(1) identifying the specific
‘policy’ or ‘custom’[;] (2) fairly attributing the policy and fault for its creation to the
5

municipality; and (3) finding the necessary ‘affirmative link’ between identified policy or
custom and specific violation.” Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir. 1987),
cert. denied sub nom., City of Fayetteville v. Spell, 484 U.S. 1027 (1988); see also Jones
v. Chapman, No. ELH-14-2627, 2015 WL 4509871, at *12 (D.Md. July 24, 2015) (“[A]
municipality is liable when a policy or custom is fairly attributable to the municipality as
its own, and is . . . the moving force behind the particular constitutional violation.”
(citation and internal quotation marks omitted)).
There are four kinds of customs, policies, or practices that a plaintiff can allege:
(1) the “decisions of a government’s lawmakers;” (2) “the acts of its policymaking
officials;” (3) “a local government’s decision not to train certain employees about their
legal duty to avoid violating citizens’ rights,” known as a “failure to train” claim; and (4)
“practices so persistent and widespread as to practically have the force of law.” Connick
v. Thompson, 563 U.S. 51, 61 (2011).
“Although prevailing on the merits of a Monell claim is difficult, simply alleging
such a claim is, by definition, easier.” Owens, 767 F.3d at 403. To state a Monell claim
under Rule 12(b)(6) sufficiently, a plaintiff “need only allege facts which, if true, ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Iqbal, 556 U.S. at 678). The
complaint’s facts “need not be particularly detailed, and the chance of success need not
be particularly high.” Id. “A plaintiff fails to state a claim only when he offers ‘labels
and conclusions’ or formulaically recites the elements of his § 1983 cause of action.” Id.
(quoting Iqbal, 556 U.S. at 678).

6

Here, Jones alleges that BPD subscribes to the third and fourth kinds of Monell
customs, policies, or practices—failure to train officers about their legal duties to avoid
constitutional violations and failure to correct persistent and widespread unconstitutional
practices, known as a condonation claim.

BPD offers three principal reasons for

dismissing Jones’s § 1983 claims under Monell.4 First, BPD argues that Jones does not
sufficiently state that he suffered an underlying constitutional violation to support his
Monell claims. Second, BPD contends that Jones does not sufficiently state a failure to
train claim. Third, BPD asserts that Jones does not sufficiently state a condonation claim.
The Court begins by examining whether Jones sufficiently states an underlying
constitutional violation.
1.

Underlying Constitutional Violation

BPD maintains that Jones does not sufficiently state that he suffered an underlying
constitutional violation at the hands of any officers because the Officer Defendants did
not violate Jones’s constitutional rights when they arrested him on August 14, 2014. The
Court disagrees.
Jones alleges that the Officer Defendants violated his rights under the Fourth
Amendment to the United States Constitution. The Fourth Amendment provides that
“[t]he right of the people to be secure in their persons, houses, papers, and effects, against

4

BPD also submits that the Court should dismiss all of Jones’s claims against
BPD under the Maryland Declaration of Rights. Jones, however, only brings claims
under the Maryland Declaration of Rights against the Individual Defendants. (Am.
Compl. ¶ 128) (“This Count is brought by [Jones] against all of the individual
Defendants, Defendants Jordan, Tonks[,] and/or other Unknown Members (John Does) of
the police unit jointly and severally.”).
7

unreasonable searches and seizures shall not be violated.”

U.S. Const. amend. IV.

Reasonableness of a seizure “depends on a balance between the public interest and the
individual’s right to personal security free from arbitrary interference by law officers.”
Jones v. Ashford, No. TDC-14-3639, 2017 WL 221783, at *5 (D.Md. Jan. 18, 2017)
(quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). The Fourth Circuit
has identified three categories of police-citizen interactions: (1) an arrest, which requires
probable cause; (2) a brief investigatory stop, which requires reasonable suspicion; and
(3) brief encounters, which do not implicate the Fourth Amendment. Id. at *4 (citing
United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002)).
“Probable cause to justify an arrest means facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect has committed an
offense.” Humbert v. Mayor of Balt. City, 866 F.3d 546, 555 (4th Cir. 2017) (alterations
omitted) (quoting Cahaly v. Larosa, 796 F.3d 399, 407 (4th Cir. 2015)). “While probable
cause requires more than bare suspicion, it requires less than that evidence necessary to
convict.” Id. at 556 (quoting United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998)).
In contrast to probable cause, reasonable suspicion to justify a brief investigatory
stop means “the totality of circumstances” demonstrate that criminal activity “may be
afoot.” United States v. Foster, 824 F.3d 84, 88–89 (4th Cir. 2016) (quoting United
States v. Slocumb, 804 F.3d 677, 682 (4th Cir. 2015); United States v. Bumpers, 705
F.3d 168, 171 (4th Cir. 2013)). “While a mere hunch is insufficient, reasonable suspicion
is less demanding than probable cause and may well fall[] considerably short of
8

satisfying a preponderance of the evidence standard.” Foster, 824 F.3d at 89 (alteration
in original) (quoting United States v. Massenburg, 654 F.3d 480, 485 (4th Cir. 2011))
(internal quotation marks omitted).
Here, Jones alleges that the Officer Defendants stopped him and asked him for his
name and other information. (Am. Compl. ¶ 33). Jones pleads that after the Officer
Defendants asked him whether he had anything illegal, he “attempted to end the
discussion” and “leave the area.” (Id.). In response, the Officer Defendants “did not
allow [Jones] to freely exit the area” and “tackled” Jones to the ground, injuring him. (Id.
¶¶ 35–36). BPD argues that the Officer Defendants did not violate Jones’s constitutional
rights because they had reasonable suspicion to stop Jones and probable cause to arrest
him. BPD asserts that Jones ran away from the Officer Defendants after they asked him
whether he had anything illegal, giving the Officer Defendants reasonable suspicion to
stop Jones under Illinois v. Wardlow, 528 U.S. 119 (2000).
There is no allegation, however, that Jones fled from the Officer Defendants. BPD
relies only on an incident report of Jones’s arrest to support its contention that Jones fled.
(See Defs.’ Mot. Dismiss Am. Compl. [“Defs.’ Mot.”] Ex. A, ECF No. 22-2). But at this
stage, the Court may only consider the allegations in Jones’s Complaint and generally
may not consider extrinsic evidence when resolving a Rule 12(b)(6) motion. See, e.g.,
Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611

9

(D.Md. 2011).5 What is more, BPD provides no justification for Jones’s arrest after the
Officer Defendants stopped him.6
In the Complaint, Jones states that the Officer Defendants “had no lawful authority
to stop” him “nor any articulable suspicion that he was involved in criminal activity.”
(Am. Compl. ¶¶ 34, 35). Jones asserts that the Officer Defendants’ take down of him
“was without authority or basis.” (Id. ¶ 36). Jones alleges that “they had no evidence of
any crime or criminal activity” committed by Jones. (Id. ¶ 35). Jones further pleads that
he was “the wrong person to be stopped” for the drug selling that the Officer Defendants
were investigating and that Jones was “wearing different clothes and fitting a different
description” than the suspect. (Id. ¶ 34). Finally, Jones asserts that he “was not present
at the scene” of the area the Officer Defendants were investigating nor was there anything
else “to relate him” to their investigation. (Id.).
Based on Jones’s assertions, the Court concludes that he sufficiently states an
underlying constitutional violation because the Officer Defendants lacked reasonable
suspicion to stop Jones. See Foster, 824 F.3d at 88–89. The Court further concludes that

5

BPD does not contend that the Court should consider the incident report or any
other extrinsic evidence under any of the exceptions to this general rule, and the Court
concludes that none of the exceptions are applicable here.
6
In its Motion, BPD first argues that the Officer Defendants had probable cause to
arrest Jones under Wardlow. In its Reply, however, BPD asserts only that the Officer
Defendants had reasonable suspicion to stop Jones under Wardlow. If Jones fled
unprovoked from the Officer Defendants in a high-crime area, the Officer Defendants
may have had reasonable suspicion to stop Jones under Wardlow, but not probable cause
to arrest him. See Wardlow, 528 U.S. at 125 (“We conclude Officer Nolan was justified
in suspecting that Wardlow was involved in criminal activity, and, therefore, in
investigating further.” (emphasis added)).
10

he sufficiently states an additional constitutional violation because the Officer Defendants
lacked probable cause to arrest Jones. See Humbert, 866 F.3d at 546.7
The Court, therefore, will not dismiss Jones’s Complaint for failure to state an
underlying constitutional violation.
2.

U.S. Department of Justice, Civil Rights Division August 10, 2016
Report

Prior to addressing BPD’s remaining two arguments about Jones’s failure to train
claim and condonation claim, the Court must first address the parties’ arguments about a
report the U.S. Department of Justice, Civil Rights Division, published on August 10,
2016 entitled, “Investigation of the Baltimore City Police Department” (the “DOJ
Report”). The Civil Rights Division published the report as a result of its investigation
into BPD practices. (Am. Compl. ¶¶ 71–72). Jones quotes and references the DOJ
Report throughout the Complaint to allege that BPD fails to train officers and condones
unconstitutional conduct by officers in violation of his constitutional rights under § 1983.
BPD maintains that the Court should not consider Jones’s allegations that rely on the
DOJ Report because the report states that it is not evidence of liability and because the
report is inadmissible under the Federal Rules of Evidence. Jones responds that the DOJ
Report is admissible.

7

The parties disagree over whether the Officer Defendants’ initial stop of Jones
was constitutional under Terry. The Court need not address Jones’s initial stop, however,
because even if the initial stop was constitutional, for the foregoing reasons the Officer
Defendants’ subsequent stop and arrest of Jones after he left the Officer Defendants was
unconstitutional.
11

The parties both overlook that when courts consider a Rule 12(b)(6) motion, they
“must accept the well-pleaded allegations of the complaint as true.” Albright, 510 U.S. at
268. Hence, “the sufficiency of the complaint—and not any evidentiary matters—is at
issue.” Osei v. Univ. of Md. Univ. Coll., 202 F.Supp.3d 471, 479 n.5 (D.Md. 2016).
Thus, the Court will consider Jones’s allegations that rely on the DOJ report and accept
them as true, to the extent that they are factual assertions.8
3.

Failure to Train Claim

At bottom, the Court concludes that it will not dismiss Jones’s failure to train
claim against BPD.
When a plaintiff alleges “facts revealing: (1) the nature of the training, (2) that the
training was a ‘deliberate or conscious’ choice by the municipality, and (3) that the
officer’s conduct resulted from said training,” the plaintiff sufficiently states a failure to
train claim. Jones, 2015 WL 4509871, at *18 (quoting Lewis v. Simms, No. AW-11-CV2172, 2012 WL 254024, at *3 (D.Md. Jan. 26, 2012)).
BPD submits that Jones fails to state each of the three elements. The Court
considers them in turn.

8

BPD also argues that the Court should not consider Jones’s allegations that rely
on the DOJ Report because most of the allegations are legal conclusions, rather than
factual allegations. The Court will consider this argument infra in the context of Jones’s
specific claims.
This ruling is not to suggest that the DOJ Report, in whole or in part, is admissible
at trial or may be considered for the purposes of a motion for summary judgment. The
Court is merely accepting the well-pleaded allegations as true under Rule 12(b)(6).
12

i.

Nature of the Training

It is not sufficient to state “in broad, conclusory terms and in a variety of different
ways” that the police department “failed to train and supervise its officers.” Peters v.
City of Mount Rainier, No. GJH-14-0955, 2014 WL 4855032 at *5 (D.Md. Sept. 29,
2014). Nor is alleging a “general laxness or ineffectiveness” sufficient. Shields v. Prince
George’s Cty., No. GJH-15-1736, 2016 WL 4581327, at *9 n.11 (D. Md. Sept. 1, 2016)
(quoting Spell, 824 F.2d at 1390). Instead, a plaintiff must allege a “specific deficiency”
with the training. Id. Facts about “the sort of training” that BPD officers “actually
receive” helps state a failure to train claim. Jones, 2015 WL 4509871, at *20 (quoting
Hall v. Fabrizio, No. JKB-12-754, 2012 WL 2905293, at *2 (D.Md. July 13, 2012)).
Here, BPD argues that Jones does not identify the nature of any BPD training and
only relies on the DOJ Report’s legal conclusion that officers were incentivized to
increase their arrest numbers during the relevant time period. The Court disagrees.
Jones, quoting the DOJ Report, alleges that BPD “relies on deficient training on a broad
array of substantive policing functions” and “numerous important topics,” specifically
pointing to lack of “proper[] train[ing]” on “use of force,” “de-escalation,” “stops,
searches, and arrests,” and “how to supervise and investigate misconduct.” (Am. Compl.
¶ 88). Quoting the DOJ Report, Jones also pleads that BPD trained its officers to
“prioritize short-term suppression, including aggressive use of stops, frisks, and
misdemeanor arrests.” (Id. ¶ 80).
Thus, Jones does not simply state “in broad, conclusory terms” that BPD failed to
train and supervise its officers, see Peters, 2014 WL 4855032 at *5, nor does he allege a
13

“general laxness or ineffectiveness” with BPD’s training, see Shields, 2016 WL 4581327,
at *9 n.11. Rather, Jones states “the sort of training” that officers “actually receive:”
training that teaches officers to prioritize short-term suppression and aggressively stop,
frisk, and make misdemeanor arrests. See Jones, 2015 WL 4509871, at *20. Jones also
identifies “specific deficienc[ies]” with the training: lack of proper training on use of
force; de-escalation; stops, searches, and arrests; and how to supervise and investigate
misconduct. See Shields, 2016 WL 4581327, at *9 n.11.
The Court, therefore, concludes that Jones has sufficiently stated the nature of the
training for his failure to train claim.
ii.

Deliberate or Conscious Choice by the Municipality

A “municipality’s failure to train its employees” must constitute a “deliberate
indifference to the rights of persons with whom the untrained employees come into
contact” to satisfy § 1983. Connick, 563 U.S. at 61 (alterations omitted) (quoting City of
Canton v. Harris, 489 U.S. 378, 388 (1989)). Only when there is deliberate indifference
can a city’s failure to train “be properly thought of as a city ‘policy or custom’ that is
actionable under § 1983.” Id. (quoting Canton, 489 U.S. at 389). Generally, deliberate
indifference is a “stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.” Id. (quoting Board of Cty.
Comm’rs v. Brown, 520 U.S. 397, 410 (1997)). A municipality may be deliberately
indifferent “if the policymakers choose to retain” a training program despite “actual or
constructive notice” that an omission in the program causes officers “to violate citizens’
constitutional rights.” Id. (citing Bryan Cty., 520 U.S. at 407). Alleging deliberate
14

indifference, however, as with stating any other Monell claim under Rule 12(b)(6), only
requires a plaintiff to “allege facts which, if true, ‘state a claim to relief that is plausible
on its face.’” Owens, 767 F.3d at 403 (quoting Iqbal, 556 U.S. at 678).
Here, Jones asserts that BPD established of a Force Investigation Team (FIT) to
respond to, investigate, and report officer use of force, revealing that officers’
unconstitutional behavior was “well recognized.”

(See Am. Compl. ¶ 58).

BPD

contends that this allegation “shows” that BPD was not deliberately indifferent. (Defs.’
Mot. at 11, ECF No. 22). BPD contends that establishing FIT constitutes a “specific and
affirmative step” that defeats establishment of deliberate indifference, relying on Grayson
v. Peed, 195 F.3d 692 (4th Cir. 1999) and Lytle v. Doyle, 326 F.3d 463 (4th Cir. 2003).
(Defs.’ Mot. at 12). The Court disagrees with BPD for at least three reasons.
First, the Court is unable to assess, at this stage of the case, whether and to what
extent BPD actions or policies, such as establishing FIT, defeat Jones’s alleged deliberate
difference. What BPD’s establishment of FIT “shows” is a question on the merits of
Jones’s failure to train claim, which the Court cannot consider when reviewing the
Complaint under Rule 12(b)(6). See Edwards, 178 F.3d at 243–44 (quoting Martin, 980
F.2d at 952) (“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a
complaint,” not to “resolve contests surrounding the . . . merits of a claim.”).9
Second, when reviewing the Complaint under Rule 12(b)(6), the Court must “draw
all reasonable inferences in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v.
9

Indeed, BPD’s reliance on Grayson and Lytle underscores this point, because
both cases were decided at the summary judgment stage rather than the motion to dismiss
stage. Grayson, 195 F.3d at 692; Lytle, 326 F.3d at 463.
15

Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). As a result, the Court must infer
that BPD’s establishment of FIT reveals it was aware of constitutional violations, as
Jones pleads, rather than that BPD was not deliberately indifferent, as BPD argues.
Third, BPD’s reliance on Grayson and Lytle is misplaced. Both cases concluded
that the failure to train claim failed as a matter of law because the plaintiff had not proven
a deficiency in the training to begin with, not simply because “specific and affirmative
steps” were taken to correct known deficiencies. See Grayson, 195 F.3d at 697 (“Sheriff
Peed still could not be held liable [because] appellant has not pointed to any actionable
deficiency in Sheriff Peed’s policies, customs, or training.” (emphasis added)); Lytle, 326
F.3d at 473–74 (“The Lytles have not provided any evidence that additional training
would have resulted in Lieutenant Brewer or the other Norfolk police officers responding
any differently.” (emphasis added)).
The Court, therefore, will not dismiss Jones’s failure to train claim for a failure to
state deliberate indifference.10
iii.

Causation

For Monell claims, a plaintiff must show that the custom, policy or practice “is the
moving force behind the specific constitutional violation.” Robinson v. Prince George’s
Cty., No. PJM-09-181, 2011 WL 1743263, at *5 (D.Md. May 6, 2011) (citing Spell, 824

10

BPD also submits that Jones does not sufficiently allege supervisory liability as
to Batts because the Baltimore Police Department established FIT under Batts. To
establish supervisory liability, a plaintiff must demonstrate deliberate indifference.
Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001) (quoting Shaw v. Stroud, 13 F.3d
791, 799 (4th Cir. 1994)). For the foregoing reasons, the Court will not dismiss Jones’s
supervisory liability claim against Batts for failure to plead deliberate indifference.
16

F.2d at 1387), aff’d, 465 F.App’x 238 (4th Cir. 2012). When, as here, the alleged custom
is not facially unconstitutional, the custom is the moving force only if a plaintiff proves
that the custom caused his constitutional violation. Id. (citing Spell, 824 F.2d at 1387).
Proof that the custom was “likely” to cause a particular violation is not sufficient to prove
causation. Spell, 824 F.2d at 1387 (quoting City of Oklahoma City v. Tuttle, 471 U.S.
808, 823 (1985). Instead, an “affirmative link” between the custom and the violation
must be proven. Id. (quoting Tuttle, 471 U.S. at 823). Proving an affirmative link
requires showing a “close fit” between the custom and the constitutional violation. Carter
v. Morris, 164 F.3d 215, 218 (4th Cir. 1999).
For failure to train claims, an affirmative link means that the deficiencies in
training “make occurrence of the specific violation a reasonable probability rather than a
mere possibility.” Spell, 824 F.2d at 1390. In other words, the deficiencies in training
made the specific violation “likely to happen in the long run.” Id. “The focus must be on
the adequacy of the training program in relation to the tasks the particular officers must
perform.” Canton, 489 U.S. at 390.
Here, BPD argues that Jones does not sufficiently plead a link between the
deficient BPD training he alleges and the alleged constitutional violations he suffered.
The Court disagrees. As described above, Jones pleads that BPD training teaches officers
to prioritize short-term suppression and aggressively stop, frisk, and make misdemeanor
arrests. (Am. Compl. ¶ 80). Meanwhile, BPD allegedly fails to properly train officers on
use of force, de-escalation, stops, searches, and arrests. (Id. ¶ 88). Jones states that these
deficiencies in training “during the same time period” of his August 17, 2014 arrest, (id. ¶
17

89), caused the Officer Defendants to violate Jones’s constitutional rights. (Id. ¶ 93).
The Officer Defendants allegedly stopped Jones without articulable suspicion and
arrested him without probable cause.

(Id. ¶¶ 35–36).

They allegedly stopped and

arrested him by employing a take down that severely injured his head. (Id. ¶¶ 35–38).
Based on Jones’s assertions, the Court concludes that he plausibly states that
BPD’s training deficiencies caused his constitutional injury. See Robinson, 2011 WL
1743263, at *5 (citation omitted). Jones sufficiently states that the training deficiencies
were not just “likely,” but were the “affirmative link” to his alleged unconstitutional stop
and arrest. See Spell, 824 F.2d at 1387 (citation omitted). An affirmative link is present
because there is a “close fit” between the training deficiencies—BPD training officers to
aggressively stop, frisk, and make arrests, while not properly training officers on use of
force, de-escalation, stops, and arrests—and the Officer Defendants stopping Jones
without articulable suspicion, employing a take down that severely injured his head, and
arresting him without probable cause. See Carter, 164 F.3d at 218. Thus, the Court will
not dismiss Jones’s failure to train claim for failure to allege plausibly that BPD’s
training deficiencies caused his constitutional injury.
In sum, the Court will not dismiss Jones’s failure to train claim against BPD. The
Court next considers Jones’s other claim under Monell: his condonation claim.
4.

Condonation Claim

“Under th[e] [condonation] theory of liability, a city violates § 1983 if municipal
policymakers fail ‘to put a stop to or correct a widespread pattern of unconstitutional
conduct.’” Owens, 767 F.3d at 402 (quoting Spell, 824 F.2d at 1390) (alterations in
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original). Here, BPD argues that Jones does not sufficiently state a condonation claim
against BPD. At bottom, the Court disagrees and will not dismiss Jones’s condonation
claim.

Jones sufficiently states that BPD had actual or constructive knowledge of

unconstitutional conduct by officers, BPD condoned it due to its deliberate indifference,
and BPD’s condonation caused Jones’s constitutional injury.
i.

Knowledge and Deliberate Indifference

Generally, bringing a condonation claim requires a plaintiff to prove “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.’” Id. (quoting Spell, 824 F.2d
at 1391). Both elements “can be inferred from the ‘extent’ of employees’ misconduct.”
Id. (quoting Spell, 824 F.2d at 1391). Only “widespread or flagrant” misconduct are
sufficient.

Id. at 403 (quoting Spell, 824 F.2d at 1387).

“Sporadic or isolated”

misconduct is not. Id.
While proving a condonation claim “is no easy task,” alleging a condonation claim
is, “by definition, easier.” Id. at 403. To survive a motion to dismiss under Rule
12(b)(6), a plaintiff need only support his condonation claim with facts which, if true,
“state a claim to relief that is plausible on its face.” Id. (quoting Iqbal, 556 U.S. at 678).
The facts “need not be particularly detailed,” and a plaintiff fails to state a condonation
claim “only when he offers ‘labels and conclusions’ or formulaically recites the
elements” of his condonation claim. Id. (quoting Iqbal, 556 U.S. at 678).

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Here, BPD argues that Jones does not sufficiently allege widespread or flagrant
constitutional violations by BPD. BPD contends that Jones relies on the DOJ Report to
only highlight its legal conclusions, aside from two examples of improper Terry stops
that Jones identifies. The Court disagrees.
Jones, relying on the DOJ Report, pleads that “incident reports and interviews with
officers and community members” describe officers “regularly approach[ing] individuals
standing or walking on City sidewalks to detain and question them and check for
outstanding warrants, despite lacking reasonable suspicion to do so.” (Am. Compl. ¶ 74).
Jones further asserts that “in a sample of over 7,200 pedestrian stops reviewed by the
Justice Department, only 271—or 3.7 percent—resulted in officers issuing a criminal
citation or arrest,” and “many of those arrested based upon pedestrian stops had their
charges dismissed upon initial review” by supervising authorities. (Id. ¶¶ 74, 77). “Such
low ‘hit rates’ are a strong indication that officers make stops based on a threshold of
suspicion that falls below constitutional requirements,” Jones alleges. (Id. ¶ 77).
In addition to allegations about improper Terry stops, Jones makes allegations
about arrests without probable cause. He asserts that “from 2010–2015, supervisors at
Baltimore’s Central Booking and local prosecutors rejected over 11,000 charges made by
BPD officers because they lacked probable cause or otherwise did not merit prosecution.”
(Id. ¶ 74). He states that a “review of incident reports” describes “many examples of
offices making unjustified arrests.” (Id.).
The Court concludes that Jones alleges enough facts to state that BPD has a
custom, policy, or practice of making unconstitutional stops and arrests, the “extent” of
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which is “widespread or flagrant” enough for a condonation claim. See Owens, 767 F.3d
at 403 (quoting Spell, 824 F.2d at 1387). In Owens, the plaintiff pleaded that “reported
and unreported cases” established that BPD had a custom, policy, or practice of
“suppressing exculpatory evidence in criminal prosecutions” and that “numerous
successful motions” challenging such suppressions demonstrated that BPD knew of the
evidence suppression and condoned it. Id. at 402–03. The Fourth Circuit held that the
cases and motions were factual allegations supporting the plaintiff’s condonation claim.
Id. The court further held that the plaintiff’s assertion that BPD withheld such evidence
on “multiple occasions could establish a ‘persistent and widespread’ pattern of practice.”
Id. Similarly, in this case Jones’s assertions as to incident reports, interviews, and
dismissed charges are factual allegations that, if true, could plausibly support a
condonation claim. See id. at 403–04. That BPD officers stopped other individuals
without reasonable suspicion and arrested them without probable cause—on as many
occasions as Jones states—could establish a “persistent and widespread” pattern of
practice, the “hallmark of an impermissible custom.” Id. at 403 (quoting Spell, 824 F.2d
at 1386).
The Court, therefore, will not dismiss Jones’s condonation claim for failure to
allege plausibly BPD’s knowledge or deliberate indifference.
ii.

Causation

Having alleged a custom, policy, or practice of making unconstitutional stops and
arrests, Jones must still sufficiently plead a causal connection between the custom and the
constitutional injury Jones allegedly suffered. Spell, 824 F.2d at 1391. Generally, a
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“sufficiently close causal link is established if occurrence of the specific violation was
made reasonably probable by permitted continuation of the custom.”

Id.

When

reviewing the Complaint under Rule 12(b)(6), however, a plaintiff “need not ‘plead the
multiple incidents of constitutional violations’ that may be necessary at later stages” to
allege causation plausibly. J.A. v. Miranda, No. PX-16-3953, 2017 WL 3840026, at *7
(D.Md. Sept. 1, 2017) (quoting Jordan by Jordan v. Jackson, 15 F.3d 333, 339–40 (4th
Cir. 1994)).11 Rather, it is sufficient that a plaintiff allege that the municipality “was
aware of ongoing constitutional violations” by the municipality’s officers and that the
municipality’s failure to discipline its officers “allowed” a custom, policy, or practice “of
unconstitutional violations to develop.” Id. (quoting Garcia v. Montgomery Cty., No.
JFM-12-3592, 2013 WL 4539394, at *5 (D.Md. Aug. 23, 2013)).
Here, BPD argues that Jones does not sufficiently plead that BPD has a custom,
policy, or practice of condoning unconstitutional stops and arrests that caused Jones’s
constitutional injury. The Court disagrees. At this stage of the case, Jones must only
allege that BPD was aware of the unconstitutional stops and arrests by its officers and
11

Some courts have questioned whether Jordan remains good law because the
Fourth Circuit decided it before the Supreme Court established Rule 8(a)’s plausibility
standard in Twombly and Iqbal. See, e.g., Taylor v. Somerset Cty. Comm’rs., No. RDB16-0336, 2016 WL 3906641, at *10 (D.Md. July 19, 2016); Cook v. Howard, 484
F.App’x 805, 810 (4th Cir. 2012). The Court relies on Jordan to the extent that Jones’s
allegations still satisfy Twombly and Iqbal’s plausibility standard, as this Court has done
in other recent cases. For example, in Miranda, this Court concluded that the plaintiff
sufficiently stated a condonation claim because he plausibly alleged that the municipality
had a custom, policy, or practice of violating citizens’ constitutional right to record police
conduct and alleged that other, similar violations also occurred. 2017 WL 3840026, at
*7–8. The Court concluded that the plaintiff plausibly alleged a condonation claim,
relying in part on Jordan, without separately addressing whether the plaintiff pleaded the
causation element. See id.
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that its failure to discipline the offending officers condoned this custom. See Miranda,
2017 WL 3840026, at *7 (quoting Garcia, 2013 WL 4539394, at *5). For the reasons
stated above, the Court concludes that Jones does so. Thus, the Court will not dismiss
Jones’s condonation claim for failure to allege plausibly that BPD’s custom, policy, or
practice caused his injury.
In sum, the Court will not dismiss Jones’s condonation claim against BPD.
Accordingly, the Court will deny BPD’s Motion.
III.

CONCLUSION

For the foregoing reasons, the Court will deny Defendants Baltimore Police
Department and Anthony W. Batts’s Motion to Dismiss for Failure to State a Claim (ECF
No. 22). A separate order follows.
Entered this 18th day of September, 2017
/s/
George L. Russell, III
United States District Judge

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