Peterson et al v. Prince George's County et al

Filing 23

MEMORANDUM OPINION AND ORDER denying 16 Motion to Dismiss for Failure to State a Claim; bifurcating Count II against Prince George's County from other claims; staying Discovery with regard to Count II. Signed by Judge Paul W. Grimm on 6/21/2017. (tds, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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CLYDE PETERSON, et al.,
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Plaintiffs,
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v.

Case No.: PWG-16-1947
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PRINCE GEORGE’S COUNTY, et al.,
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Defendants.
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MEMORANDUM OPINION AND ORDER
Officer David Gross shot Plaintiff Clyde Peterson once and Plaintiff Derrick Simmons
seven times while Plaintiffs were sitting in a parked car in a parking lot on June 9, 2015.1 Am.
Compl. ¶¶ 13–16, 25, 28–29, ECF No. 14. At the time, Plaintiffs had not “raised, pointed or
even held any firearm.” Id. ¶¶ 17–18. Officer Gross “exclaimed, ‘Gun’” but did not “issue[] any
verbal command for either Peterson or Simmons to raise their hands or take any other action
engendered to assure the safety of the officers” or “alert Plaintiffs to the presence of law
enforcement.” Id. ¶¶ 17–20. During the incident, “Corporal Cheung stood at the back of the
vehicle and took no action.” Id. ¶ 23.
Plaintiffs filed a 42 U.S.C. § 1983 action against Officer Gross, Corporal Cheung, and
Prince George’s County (the “County”), for which the officers worked, alleging that the officers
used excessive force. Compl., ECF No. 1. With regard to the County, Plaintiffs claim in Count

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At this stage of the proceedings, I accept the facts as alleged in Plaintiffs’ Amended Complaint
as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).

II that it “has failed to adequately train, supervise, and discipline its officers against the use of
excessive force” and “has instituted and maintained formal and informal customs, policies and
practices that foster, promote and encourage officers to use excessive force.” Am. Compl. ¶¶ 38,
39. They claim that the “pervasive” use of excessive force is “evidenced by the frequency with
which claims have been filed in the United States District Court against the County for the
same.” Id. ¶ 41. They list sixteen cases filed in this Court against the County between 2007 and
2015. Id. ¶ 42.
The County notified the Court of its intent to file a motion to dismiss Count II, ECF No.
7, and the Court permitted Plaintiffs to amend the complaint to address the alleged deficiencies
that the County identified in its pre-motion letter, cautioning that any subsequent dismissal
would be with prejudice, ECF No. 13. Plaintiffs filed an Amended Complaint, and the County
filed its Motion to Dismiss Count II, ECF No. 16, which the parties have fully briefed, ECF Nos.
17, 18. A hearing is not necessary. See Loc. R. 105.6. Because, at this preliminary stage,
Plaintiffs have alleged plausibly that the County knew of, but failed to address adequately, a
custom of its police officers to use excessive force, and Plaintiffs must establish the individual
defendants’ liability for excessive force in order to prevail on their excessive force claim, I will
deny the County’s motion, bifurcate the case with respect to the Monell claim, and stay
discovery on it pending resolution of the excessive force claims against the individual
defendants.
Discussion
Under Rule 12(b)(6), Plaintiffs’ claim against the County is subject to dismissal if it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A pleading
must contain “a short and plain statement of the claim showing that the pleader is entitled to
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relief,” Fed. R. Civ. P. 8(a)(2), and must state “a plausible claim for relief,” Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009). “A claim has facial plausibility when the [claimant] pleads factual
content that allows the court to draw the reasonable inference that the [opposing party] is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. Rule 12(b)(6)’s purpose “is to test the
sufficiency of a [claim] and not to resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4
(D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006)).
The County, as a unit of local government, is a “‘person[]’” subject to suit under 42
U.S.C. § 1983, as stated in Monell v. Department of Social Services, 436 U.S. 658, 690–91
(1978). DiPino v. Davis, 729 A.2d 354, 368 (Md. 1999). But, “[u]nder Monell, a municipality’s
liability “arises only where the constitutionally offensive actions of employees are taken in
furtherance of some municipal ‘policy or custom.’” Walker v. Prince George’s Cty., Md., 575
F.3d 426, 431 (4th Cir. 2009) (quoting Milligan v. City of Newport News, 743 F.2d 227, 229 (4th
Cir. 1984)); see Rockwell v. Mayor of Balt., No. RDB-13-3049, 2014 WL 949859, at *11 (D.
Md. Mar. 11, 2014) (citing Walker). Thus, a Monell claim is a form of § 1983 action under
which a municipality, such as the County, is liable “where a policymaker officially promulgates
or sanctions an unconstitutional law, or where the municipality is deliberately indifferent to the
development of an unconstitutional custom.” Smith v. Ray, 409 F. App’x 641, 651 (4th Cir.
2011).

The government’s policy or custom must have “played a part in the deprivation”

underpinning the plaintiff’s claim. DiPino, 729 A.2d at 369. The policy or custom may be “an
express policy, such as a written ordinance or regulation”; a decision by “a person with final
policymaking authority;” “an omission, such as a failure to properly train officers, that

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manifest[s] deliberate indifference to the rights of citizens;” or “a practice that is so persistent
and widespread as to constitute a custom or usage with the force of law.” Lytle v. Doyle, 326
F.3d 463, 471 (4th Cir. 2003) (internal quotation marks omitted)).
To state a Monell claim, a plaintiff must allege that “‘(1) the municipality [had] actual or
constructive knowledge of the custom and usage by its responsible policymakers, and (2) there
[was] a failure by those policymakers, as a matter of specific intent or deliberate indifference, to
correct or terminate the improper custom and usage.’” Rockwell, 2014 WL 949859, at *11
(quoting Randall v. Prince George’s Cty., 302 F.3d 188, 210 (4th Cir. 2002) (internal quotation
marks omitted)). The plaintiff also must allege that there was “a ‘direct causal link’ between the
policy or custom and the deprivation of rights.” Id. (quoting City of Canton, Ohio v. Harris, 489
U.S. 378, 386–86 (1989)).

Notably, “‘there must be numerous particular instances of

unconstitutional conduct in order to establish a custom or practice,’” because “[a] municipality is
not liable for mere ‘isolated incidents of unconstitutional conduct by subordinate employees.’”
Smith, 409 F. App’x at 651 (quoting Lytle v, 326 F.3d at 473).
According to the County, “the Amended Complaint falls woefully short of demonstrating
that Plaintiffs’ alleged injuries were caused by a custom or practice of the County” because the
allegations in Count II are “conclusory and speculative.” Def.’s Mem. 5–6. As the County sees
it, “[t]here are no facts supporting Plaintiffs’ claim that the County had or acted with ‘actual
and/or constructive knowledge, and with deliberate indifference’ to its police officers using
excessive force against citizens.” Id. The County acknowledges that Plaintiffs list cases dating
back to 2007 in which individuals brought excessive force claims against Prince George’s
County police officers, but in the County’s view, these cases “are either irrelevant because the
same form of force was not used or a finding of excessive force was not made.” Id.
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Plaintiffs insist that, “[t]hough the identified cases did not result in a finding against the
County, the share [sic] number of complaints made against the Prince George’s County
employees speaks to an underlying problem within the County.” Pls.’ Opp’n 5. But an
unsubstantiated complaint in itself is not sufficient; there also must be a finding of excessive
force. See Amann v. Prince George’s Cty., Md., No. DKC99-3759, 2001 WL 706031, at *2 (D.
Md. June 15, 2001) (noting that “complaints filed in the other lawsuits” that have not been
resolved are “mere allegations rather than notice of actual unconstitutional behavior”); see also
Ostroski v. Town of Southold, 443 F. Supp. 2d 325, 346 (E.D.N.Y. 2006) (“The mere fact that a
number of lawsuits have been filed, without any information as to whether the suits are
meritorious or spurious, or alternatively, any evidence that the municipality ignored such
complaints such that it constituted deliberate indifference to any potential problem of excessive
force, does not assist a fact-finder in determining whether the [municipality] actually has a
historical problem of its . . . officers using constitutionally excessive force in the performance of
their duties.”). Thus, the question is whether Plaintiffs identified a sufficient number of cases in
which County officers were liable for excessive force, such that the County had knowledge of its
officers’ unconstitutional use of force but failed to address it.
In the County’s view, the cases Plaintiffs cite also must be pared down to only those
involving firearm use. Def.’s Mem. 5–6. Relying on King v. McCown, 831 F.2d 290, 1987 WL
38651 (4th Cir. 1987), the County insists that “the excessive [force] cases identified by Plaintiffs
to support a Monell claim must be of the same nature to be discoverable and used as evidence at
trial.” Def.’s Reply 2. Certainly, in King, the Fourth Circuit concluded that the plaintiff was “not
entitled to reports of excessive force that do not involve the use of a gun” because “[t]he gist of
his complaint is deficient firearm training and failure of superior officers to correct improper use

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of guns,” such that “[l]imiting discovery to reports of shootings should not unduly hamper [the
plaintiff].” 1987 WL 38651, at *2. As Plaintiffs note, however, the Amended Complaint in this
case, unlike in King, alleges “a failure to ‘adequately train, supervise, and discipline [County]
officers against the use of excessive force’” in general, not firearms specifically, Plaintiffs assert
that the listed cases are not irrelevant because they all “pertain to excessive force.” Pls.’ Opp’n 6
(quoting Am. Compl. ¶ 38) (emphasis added). Therefore, any findings of excessive force are
relevant to whether the County knew about its officers’ alleged pervasive use of excessive force.
I will review the cases, all of which involved allegations of some form of excessive force.2
Littlejohn v. Prince George’s County, Md., No. PJM-07-1409; Johnson v. Prince
George’s County, Md., No. DKC-10-582; Ulloa v. Prince George’s County, Md., No. DKC-15257; and Anderson v. Prince George’s County, Md., No. TDC-13-1509, all settled. Prior to
settlement in Anderson, the County filed motions to dismiss and for summary judgment, without
success. Notably, in Johnson, the plaintiff offered five “notice of claim” letters that others had
submitted to the County as evidence of the County’s purported custom or practice, and the Court
stated that “the mere existence of claims against Prince George’s County does not establish the
requisite widespread practice of approving excessive force.” Mar. 1, 2011 Mem. Op. 24, ECF
No. 29 in DKC-10-582. He also offered articles from the internet “about alleged police abuses in
Prince George’s County,” which the Court said were unauthenticated hearsay.

Id. at 25.

Consequently the Court concluded that his claims could not survive summary judgment. Id. at
26. But, the plaintiff argued that he had not had the opportunity to discover “additional evidence
on the customs, policies, and practices of the Prince George’s County Police Department” such
as “records of sustained claims, complaints, and lawsuits alleging false arrest and police brutality

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I take judicial notice of the docket entries and filings in these cases pursuant to Fed. R. Evid.
201(b)(2).
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against the Prince George’s County Police Department [as well as] training records and
procedures and police department general orders,” and on that basis, the Court denied the
summary judgment motion as premature. Id. at 28.
In Hirpassa v. Prince George’s County, Md., No. RWT-09-2631; Cole v. Prince
George’s County, Md., No. AW-10-70; and Dodson v. Prince George’s County, No. GJH-132916, three other § 1983 actions for excessive force based on fatal shootings of civilians by
County police officers, the Court granted summary judgment for the defendant officers,
concluding that their use of deadly force against the decedent was objectively reasonable.
Likewise, in McGainey v. Prince George’s County, Md., No. JKS-12-2080, and Whitley v.
Prince George’s County, Md., No. GJH-12-3428, the Court granted summary judgment in the
defendant officers’ favor on the excessive force claims. In Okezie v. Prince George’s County,
Md., No. DKC-13-168, the jury returned a verdict in the defendant officers’ favor. Chestnut v.
Prince George’s County, No. AW-10-583, was dismissed for discovery violations before
reaching the merits of the excessive force claims. In Taylor v. Prince George’s County, Md., No.
DKC-13-1678, the parties filed a stipulation of dismissal. Shuler v. Prince George’s County,
No. PWG-13-3373, was dismissed for failure to prosecute.
The three most recent cases remain pending. The excessive force claims in Queen v.
Prince George’s County, No. PWG-14-2941, based on a police officer striking the plaintiff in the
face, survived summary judgment, and trial is set for August 29, 2017. In that case, the County
did not move to dismiss a similar Monell claim, in which the plaintiff alleged that “[a]t least ten
other individuals have filed claims against Prince George’s County between 2002 and 2014,
alleging that Prince George’s County police officers have used excessive force and have arrested
and incarcerated Prince George’s County residents without probable cause.” In King v. Prince
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George’s County, No. PJM-15-1405, the Court denied the motion to dismiss the Monell claim
against the County and bifurcated the claim; the defendant officers’ summary judgment motion
is pending. In Goines v. Prince George’s County, No. RWT-16-463, although the Court granted
the motion to dismiss the Monell claim against the County,3 the excessive force claims remain
and discovery has not yet concluded.
Relevantly, in Cole, Johnson, Okezie, Taylor, Dodson, Queen, and King, the Court
bifurcated and stayed the Monell claims against the County pursuant to Rule 42(b), because
those claims could continue only if the officers’ use of force was unconstitutional.

“For

convenience, to avoid prejudice, or to expedite and economize, the court may order a separate
trial of one or more separate issues [or] claims . . . .” Fed. R. Civ. P. 42(b). The Court may
bifurcate claims sua sponte. Costa Cruises, Inc. v. Caribbean Tours & Cruises, Inc., 796 F.2d
472, 1986 WL 217563, at *2 (4th Cir. 1986) (Table); In re All Asbestos Cases Pending in the
U.S. Dist. Court for the Dist. of Md., No. BML-1, 1983 WL 808161, at *4 (D. Md. Dec. 16,
1983).
The determination of whether bifurcation is appropriate is fact specific. Dawson
v. Prince George’s County, et al., 896 F. Supp. 537, 540 (D. Md. 1995).
Bifurcation is fairly common in § 1983 cases where a plaintiff has asserted claims
against individual government employees as well as the municipal entity that
employs and supervises these individuals. See id. at 539–40; see also Ransom v.
Baltimore County, et al., 111 F. Supp. 2d 704, 708 (D. Md. 2000); Marryshow v.
Bladensburg, et al., 139 F.R.D. 318, 318–19 (D. Md. 1991). Under § 1983,
municipalities are directly liable for constitutional deprivations only “when
execution of a government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent official policy,
inflicts the injury....” Monell, et al. v. Dep't of Social Servs., et al., 436 U.S. 658,
694 (1978); Spell v. McDaniel, et al., 824 F.2d 1380, 1385 (4th Cir. 1987).
Municipal liability in this context is thus dependent on an initial finding that a
government employee violated a plaintiff’s constitutional rights. Beasley v. Kelly,
et al., CIV. A. DKC 10–0049, 2010 WL 3221848, at *3 (D. Md. Aug. 13, 2010)

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The same firm represents the plaintiffs in King and Goines and the Monell claims were virtually
identical.
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(citing Dawson, 896 F. Supp. at 540). Section 1983 cases are good candidates for
bifurcation because a subsequent trial of the municipality is necessary only if the
government employees are found liable. Id.
Okezie v. Prince George’s Cty., Md., No. CBD-13-0168, 2014 WL 1334188, at *1 (D. Md. Apr.
1, 2014).
Although Plaintiffs did not identify any cases in which County officers were found liable
on excessive force claims, four of the cases Plaintiffs identified settled, such that the truth of the
excessive force claims is unknown. And, in two of those cases, Johnson, DKC-10-582, and
Anderson, TDC-13-1509, the claims against the County (which had fewer allegations of the
County’s customs and practices) survived the County’s motions for summary judgment. Also,
three of the cases Plaintiffs cited remain pending, and for one of those, King, No. PJM-15-1405,
the Monell claim survived the County’s motion to dismiss; in another, Queen, PWG-14-2941, the
County did not move to dismiss it. Considering these circumstances as a whole, I find that, at
this preliminary stage, Plaintiffs have alleged plausibly that the County knew of, but failed to
address adequately, a custom of its police officers to use excessive force over the course of
several years.
Consequently, it is premature to dismiss the Monell claim at this time. Indeed, while the
County argues that Plaintiffs fail to include any allegations about the training that the County
provided and how it was inadequate, relying only on the facts “surrounding [their] own injury
and arrest,” Def.’s Mem. 5–6 (quoting Ross v. Prince George’s Cty., Md., No. DKC 11-1984,
2012 WL 1204087, at *9 (D. Md. Apr. 10, 2012)), Plaintiffs counter that the evidence they need
to “conclusively establish [a] pattern of behavior by officers of the Prince George’s County
Police Department is exclusively in the custody and control of the Defendants.” Pls.’ Opp’n 6.
This Court has bifurcated § 1983 cases under these circumstances so that the plaintiffs may
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discover this evidence if they establish the defendant officers’ liability for excessive force. E.g.,
Okezie, 2014 WL 1334188, at *1–2 (bifurcating and citing cases); Cole v. Prince George’s Cty.,
Md., No. AW-10-70, 2010 WL 3169843, at *4 (D. Md. Aug. 10, 2010) (noting that “Plaintiff’s
bald allegations do not appear to be sufficient to plead a Monell claim,” but denying Defendant’s
motion to “dismiss this claim without first giving Plaintiff an opportunity to conduct discovery
on the reasonableness of Defendant officers’ actions”). I will bifurcate the Monell claim and stay
discovery on it, pursuant to Rule 42(b). See Fed. R. Civ. P. 42(b); Okezie, 2014 WL 1334188, at
*1–2; Cole v., 2010 WL 3169843, at *4. If Plaintiffs prevail on their excessive force claims,
litigation will resume with regard to the County.
ORDER
For the reasons stated in this Memorandum Opinion and Order, it is, this 21st day of
June, 2017 hereby ORDERED that
1. Prince George’s County’s Motion to Dismiss, ECF No. 16, IS DENIED;
2. Count II against Prince George’s County IS BIFURCATED from the other claims
and discovery with regard to Count II IS STAYED pending resolution of the
remaining claims.
I will schedule a status conference with regard what discovery remains in this case, as I
issued a Scheduling Order on October 28, 2016, ECF No. 12, and directed the parties to proceed
with discovery in part on November 3, 2016, ECF No. 13.
/S/
Paul W. Grimm
United States District Judge
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