A. et al v. Miranda et al

Filing 41

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 9/1/2017. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
J.A., A MINOR,
et al.,

*
*

Plaintiff,
*
v.

Civil Action No. PX 16-3953
*

ALEX MIRANDA,
et al.,

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*

Defendants.
******
MEMORANDUM OPINION
Pending in this action brought pursuant to 42 U.S.C. § 1983 is a motion to dismiss filed
by Defendants Alex Miranda, Travis Boggs, Charles Lieblich, and Rory Sugrue, and
Montgomery County. See ECF No. 26. The issues are fully briefed, and a hearing was held on
August 29, 2017. See ECF No. 40. For the reasons stated below, Defendants’ motion to dismiss
is granted in part and denied in part.
I.

BACKGROUND1
On June 17, 2015, at approximately 11:30 p.m., Plaintiff Johana Abrego called 911 to

report that her son, Jospeh Abrego (“Abrego”), was burglarizing her home in Silver Spring,
Maryland. Ms. Abrego’s other son, sixteen year old Plaintiff J.A., lived with his mother and was
home at the time. Unredacted Compl., ECF No. 9-1 at 4. Officers Alex Miranda, Travis Boggs,
Charles Lieblich, Rory Sugrue (“Defendant Officers”) arrived around 11:45 p.m. and arrested
Joseph Abrego. Joseph was injured during the arrest but is not a party to this suit. Id. at 4–5.

1

The facts outlined here are taken from the complaint and are accepted as true.

While the officers were arresting Joseph, J.A. was in the living room video recording the
incident on his cell phone. J.A. was unarmed and at no point did he threaten the Defendant
Officers. Id. at 5–6. While Officer Miranda was walking Joseph out of the home in handcuffs,
Miranda shoved J.A. who fell onto the couch and lost control of his cell phone. Id. at 6. Officer
Miranda then grabbed J.A.’s arm and pinned him in a seated position on the couch. Id. at 6.
Almost immediately thereafter, Officer Boggs wrestled J.A. to the ground and handcuffed him.
Within several seconds, one or more of the officers hit and kicked J.A. in the face and/or mouth.
Id. at 7. Because he was being beaten, J.A. could not specifically identify by name each
particular Officer who kicked or punched him. See ECF No. 30 at 17. Defendant Officers then
placed a bag over J.A.’s head and zip-tied the bag around his neck. The Defendant Officers then
transported J.A. to the Montgomery County police station. ECF No. 9-1 at 8. On the way to the
station, J.A. found it hard to breathe not only because of the bag over his head, but because blood
continued to pool in his mouth from the beating he had received. Id.
That evening, the Officers charged J.A. with the criminal offenses of obstructing and
hindering and two counts of second-degree assault. Id. at 9. The following morning, J.A. was
released to his mother. Ten days later, all charges against J.A. were dropped. Id.
By preventing him from recording his brother’s arrest, J.A. alleges that the Defendant
Officers failed to follow a written Montgomery County Police Department (“MCPD”) Policy on
Citizen Videotaping interactions, FC No. 1142, dated January 1, 2013. Id. at 11. The Policy
provides, in pertinent part:
Individuals have a right to record police officers in the public discharge of their
duties. The right to record is not limited to streets/sidewalks and includes areas
where individuals have a legal right to be present. Examples of places where
individuals have a legal right to be present include, but are not limited to: an
individual’s home, business, or any other property where the person has a right to
be present.
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Id. Ms. Abrego subsequently filed a complaint with the Montgomery County Police
Department’s Internal Affairs Division (“IAD”) which prompted a brief internal investigation.
J.A. characterizes the investigation has “perfunctory and inadequate.” Id. at 12. Despite claiming
to have closely examined all pertinent information, IAD did not attempt to interview key
witnesses or gather key pieces of information. Specifically, IAD did not make any contact with
two non-officer witnesses to the events: Joseph Abrego and another minor child who was also
present. Id. IAD also did not request the video recording made by J.A., despite being told of its
existence. Ultimately, IAD concluded that Defendants had committed no wrongdoing. Id. at 11.
J.A. also alleges that the Defendant Officers’ conduct stemmed from a Montgomery County
Police Department pattern or practice of indifference toward individual’s rights based upon
“numerous recorded and unrecorded complaints of police interference and/or obstruction of
citizen recording through intimidation or force.” Id. at 12.
As a result of the beating, J.A. sustained at least two broken teeth, four loose teeth, a
lacerated lip, a concussion, a cut to the back of his head, and bruising on his neck and wrists. Id.
at 9. J.A. required significant dental work, some of which he is still unable to afford. Id. at 9–10.
Due to his injuries, J.A. has not been able to play soccer and his grades have suffered, hurting his
college prospects. Id. at 10. J.A. also sustained emotional and psychological injuries as a
consequence of the beating. Id.
Johana Abrego thereafter filed the instant suit on behalf of her minor son, J.A.
(hereinafter “Plaintiffs”) against Alex Miranda, Travis Boggs, Charles Lieblich, Rory Sugrue,
and Montgomery County, pursuant to 42 U.S.C. § 1983 for violations of J.A.’s constitutional
rights.2 Specifically, Count I alleges unreasonable seizure against Miranda only; Count II alleges

2

At the August 29th hearing, counsel for J.A. clarified that while the Montgomery Police Department is mentioned
in the Complaint, it is not a defendant in this case. Nor could it be. See LaPier v. Prince George’s Cnty., Md., No.

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excessive force against all officers and Count III alleges unlawful arrest against all individual
officers; Count IV alleges violations of J.A.’s First Amendment freedom of speech against all
officers as well as Montgomery County. On January 30, 2017, Defendants moved to dismiss
Counts II through V of the Complaint on several grounds. The Court will address each argument
in turn.
II.

STANDARD OF REVIEW
When ruling on a motion under Rule 12(b)(6), 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). “Even though the requirements for pleading a proper complaint are substantially
aimed at assuring that the defendant be given adequate notice of the nature of a claim being
made against him, they also provide criteria for defining issues for trial and for early disposition
of inappropriate complaints.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). “The
mere recital of elements of a cause of action, supported only by conclusory statements, is not
sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 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).
“To satisfy this standard, a plaintiff need not ‘forecast’ evidence sufficient to prove the
elements of the claim. However, the complaint must allege sufficient facts to establish those

10-CV-2851 AW, 2011 WL 4501372, at *3 (D. Md. Sept. 27, 2011) (explaining that under Maryland law, police
departments are agents of the county and therefore cannot be sued as a separate entity).

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elements.” Walters, 684 F.3d at 439 (citation omitted). “Thus, while 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.’” Id. (quoting Twombly, 550 U.S.
at 570).
III.

ANALYSIS

A.

Counts II and III
Defendant Officers challenge Plaintiffs’ claims of excessive force and illegal arrest

(Counts II and III) as insufficiently pled under Rule 8(a) because Plaintiffs fail to specifically
identify which officers committed particularized acts that violated J.A.’s constitutional rights.
ECF 26-1 at 6, 12–13. Defendants alternatively argue that the Complaint fails to sufficient aver
bystander liability and must be dismissed on that ground. ECF No. 26-1 at 7. Neither argument is
persuasive.
Group pleading is not ideal. Where it is possible to connect a particular defendant, or at
least a subset of defendants, to specific acts of wrongdoing, a plaintiff must do so. See Hyung
Seok Koh v. Graf, No. 11-CV-02605, 2013 WL 5348326, at *5 (N.D. Ill. Sept. 24, 2013).
However, at the pleading stage, a plaintiff is not expected to possess complete knowledge of the
defendant’s alleged wrongful conduct, but need only submit facts sufficient to plead a plausible
claim for relief. Indeed, the purpose of discovery is to establish the presence or absence of facts
with which the plaintiff intends to prove his claim. See Burgess v. Baltimore Police Dep’t, No.
RDB-15-0834, 2016 WL 795975, at *10 (D. Md. Mar. 1, 2016) (identifying “officer defendants”
in complaint sufficient). “Rule 8(a) is not so rigid that it requires a plaintiff, without the benefit
of discovery, to connect every single alleged instance of misconduct in the complaint to every
single specific officer.” Hyung Seok Koh, 2013 WL 5348326, at *4. The key is to generally

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identify those “persons responsible for the problem.” Burks v. Raemisch, 555 F.3d 592, 594 (7th
Cir. 2009). And that is what the Plaintiffs did here.
This is especially so where the injured party was the alleged victim of a group beat down
which, no doubt, severely disadvantaged him and any onlookers in identifying precisely which
officers committed which bad acts. Indeed, where the identity of the purported bad actor is
known with precision, the individual defendant is named. See, e.g., ECF. No. 1 (Count I against
Officer Miranda only). That the complaint does not specify by name those officers who
specifically kicked J.A. in the face or put a bag over his head is hardly fatal. J.A., as the person
experiencing the beating, would not plausibly be able to identify the officers with particularity.
But at the same time, those officers at the scene are identified, thus placing them on sufficient
notice of the claims and the nature of the alleged jointly undertaken group misconduct. See Engel
v. Buchan, 710 F.3d 698, 710 (7th Cir. 2013) (“But reading the allegations sensibly and as a
whole, there is no genuine uncertainty regarding who is responsible for what. Wherever the
complaint mentions specific misconduct in Engel’s investigation and prosecution . . . there can
be no doubt that it refers to . . . the two law-enforcement officers involved in the case. And they
are accused of acting jointly.”). Because Plaintiffs have pleaded Counts II and III with sufficient
particularity, the motion to dismiss is denied.
Defendant Officers alternatively argue that Plaintiffs have failed to plead sufficient
allegations of bystander liability as to Counts II and III. Bystander liability requires a plaintiff to
prove a law enforcement officer “‘(1) [knew] that a fellow officer [was] violating an individual’s
constitutional rights; (2) ha[d] a reasonable opportunity to prevent the harm; and (3) cho[se] not
to act.’” Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 417 (4th Cir. 2014) (quoting

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Randall v. Prince George’s Cty., Md., 302 F.3d 188, 204 (4th Cir. 2002)). The Court finds that
the complaint plausibly states a claim for relief on this theory.
As to the first element, the complaint alleges the presence of all Defendant officers when
Miranda pinned J.A. into a seated position, Boggs cuffed him, and other officers slammed him to
the ground and kicked him in the face. The complaint further alleges that J.A. had done nothing
in provocation. Accordingly, the complaint sufficiently avers that Defendant Officers knew that
Miranda, Boggs, and other officers were subjecting J.A. to excessive force.
Next, the complaint sufficiently alleges the second element—that Officers had a
reasonable opportunity to prevent the harm—because it notes the passage of time throughout the
encounter when each could have taken steps to protect J.A. See ECF No. 9-1 at 7–8 (pleading
approximately five seconds passed between being subdued and tackled, and approximately ten
seconds between being handcuffed and kicked); see also Smith v. Aita, No. CCB-14-3487, 2016
WL 3693713, at *4 (D. Md. July 12, 2016) appeal filed, No. 17-6783 (4th Cir. June 20, 2017)
(finding bystander liability sufficiently pled with respect to Officers present during 10 to 20
second beating). By inference, therefore, Defendant officers indeed had time to prevent the
ongoing violations.
Finally, the third element is satisfied because, as pleaded, nothing prevented the
Defendant Officers from attempting to stop the harm to J.A. See Stevenson, 743 F.3d at 419.
Defendants’ motion to dismiss Counts II and III, is therefore, denied.
B.

Count IV – First Amendment Violations against Defendant Officers
As to Count IV, Defendant Officers argue that they are entitled to qualified immunity

because as of June 17, 2015, a citizen’s First Amendment right to record police activity had not
been clearly established. ECF No. 26-1 at 14. Government officials sued in their individual

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capacities are entitled to the defense of qualified immunity where “their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); accord Pritchett v. Alford, 973 F.2d
307, 312 (4th Cir. 1992). The doctrine of qualified immunity “balances two important interests—
the need to hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
The qualified immunity inquiry is two-fold. Courts must consider (1) whether the facts
established by the plaintiff make out a violation of a federal right; and if so (2) whether the right
at issue was “clearly established” at the time of defendant’s alleged misconduct. Pearson v.
Callahan, 555 U.S. 223, 232 (2009). The Court must undertake this inquiry viewing the facts
“in the light most favorable to the party asserting the injury.” Mansoor v. Trank, 319 F.3d 133,
137 (4th Cir. 2003) (citation and internal quotation marks omitted).
Although the Court may consider these twin prongs in the order which best suits the
“circumstances in the particular case at hand,” Pearson, 555 U.S. at 236, it is preferable to
consider first whether the conduct at issue violated a constitutional right because such a
determination advances the discourse as to whether the right is clearly established. Saucier, 533
U.S. at 201; Pearson, 555 U.S. at 236.
If the Court determines that Defendants Officers’ conduct violated a constitutional right,
the Court must next turn to whether the right is clearly established, or whether “its contours are
sufficiently clear that ‘a reasonable official would understand that what he is doing violates that
right.’” Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (quoting Anderson v. Creighton, 483 U.S.

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635, 640 (1987)). “In other words, ‘existing precedent must have placed the statutory or
constitutional question beyond debate.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731 (2011)).
Whether a right is clearly established does not turn on whether a previous court had
considered the identical factual predicate. That said, the previous case must be sufficiently
similar so that “the unlawfulness [must be] apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002).
“Officials can still be on notice that their conduct violates established law even in novel factual
circumstances,” as long as the law gave the defendant official “fair warning” that the conduct
was unconstitutional. Id. at 740–41.
Furthermore, because the defense of qualified immunity turns on whether officers should
have known that their conduct violated a constitutional right, the “clearly established” analysis
must focus on the law in place at the time of the alleged misconduct. Messerschmidt v.
Millender, 132 S. Ct. 1235, 1245 (2012) (internal quotations and citation omitted). The court
that is asked to determine qualified immunity need not look beyond published decisions of “the
Supreme Court, this court of appeals, and the highest court of the state in which the case arose.”
Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999). See also White v. Pauly, 137 S.
Ct. 548, 552 (2017) (per curiam).
Here, the complaint describes two ways in which Defendants violated J.A.’s First
Amendment rights: (1) by thwarting his attempts to video record his brother’s arrest and (2) by
arresting and physically beating him in retaliation for exercising his First Amendment right to
record his brother’s arrest. ECF No. 9-1 at 17–18. Defendants, relying on Garcia v. Montgomery
Cnty., Maryland, 145 F. Supp. 3d 492, 498 (D. Md. 2015), focus almost exclusively on the
question of whether the right to record police activity was clearly established as of June 17,
2015. In Garcia, a journalist filed suit against Montgomery County police officers, claiming

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violation of his First Amendment rights in connection with his arrest for videotaping the police.
Id. at 498–99. In an exhaustive analysis, the Garcia Court relied on “two lines of Supreme Court
precedent, read together,” to establish that “that journalists and citizens alike have such a [First
Amendment] right.” Garcia, 145 F. Supp. 3d at 506–07 (citing Houchins v. KQED, Inc., 438
U.S. 1, 11 (1978) and Mills v. Alabama, 384 U.S. 214, 218 (1966). “Significant to that right,” the
Garcia Court noted, “are the aims of ‘preventing corruption and sustaining the active alert
responsibility of the individual citizen in a democracy for the wise conduct of government.’” Id.
(quoting First Nat’I Bank of Boston v. Bellotti, 435 U.S. 765, 788–89 (1978)). Thus, the Garcia
court held that video recording police conduct is squarely protected by the First Amendment.
This Court agrees and finds that J.A. has adequately pleaded that the Defendant Officers violated
that right when they engaged in the acts against J.A. described above.
The Garcia Court also rightfully noted that the majority of circuits have found First
Amendment protection in a citizen’s right to videotape police conduct. See Garcia, 145 F. Supp.
3d at 507 (citing Gericke v. Begin, 753 F.3d 1, 7–8 (1st Cir. 2014) (holding that an arrest of a
citizen for illegal wiretapping when she recorded a traffic stop without interfering with the police
activity violated her First Amendment rights); American Civil Liberties Union of Ill. v. Alvarez,
679 F.3d 583 (7th Cir. 2012) (finding “[a]udio recording is entitled to First Amendment
protection,” and such protection includes “prohibit[ing] government from limiting the stock of
information from which members of the public may draw.”); Smith v. City of Cumming, 212 F.3d
1332, 1333 (11th Cir. 2000) (holding that plaintiffs “had a First Amendment right, subject to
reasonable time, manner and place restrictions, to photograph or videotape police conduct”); see
also Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing a “First

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Amendment right to film matters of public interest” in a case where police officers interfered
with a citizen seeking to film a public demonstration directed in part against the police)).
Since Garcia, the Fifth and Third Circuits have joined their sister Circuits in holding that
“there is a First Amendment right to record police activity in public,” albeit with appropriate
time, place and manner restrictions. Fields v. City of Philadelphia, 862 F.3d 353, 355–56 (3d Cir.
2017); Turner v. Lieutenant Driver, 848 F.3d 678, 689–90 (5th Cir. 2017). In so doing, both
Circuits emphasized that “[a]ccess to information regarding public police activity is particularly
important because it leads to citizen discourse on public issues, ‘the highest rung of the hierarchy
of First Amendment values, and is entitled to special protection.’” Fields, 862 F.3d at 358
(quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011). See also Turner, 848 F.3d at 689
(“Gathering information about government officials in a form that can readily be disseminated to
others serves a cardinal First Amendment interest in protecting and promoting the free discussion
of governmental affairs.”) (quoting Gilk v. Cuniffe, 655 F.3d 78, 82–83 (1st Cir. 2011)).
Even though this Court, following the collective wisdom of her colleague and sister
Circuits, finds that J.A.’s conduct protected under the First Amendment and the Defendant
Officers violated that right, it was not yet clearly established in this Circuit at the time of the
alleged violation. Unlike the majority of other Circuits, the Fourth Circuit has not yet authored a
published opinion announcing its view on the contours of the First Amendment right as applied
to filming police conduct. The closest the Fourth Circuit has come is Szymecki v. Houck, 353 F.
App’x 852 (4th Cir. 2009) where it affirmed, in an unpublished opinion, the district court’s
determination that the “asserted First Amendment right to record police activities on public
property was not clearly established in this circuit at the time of the alleged conduct.” Id. at 853.
If anything, Symecki underscores that this First Amendment right is not clearly established by

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expressly reaching that very conclusion in an unpublished opinion. And since Garcia, the
jurisprudence from the Supreme Court and the Maryland Court of Appeals on this issue has
remained unchanged. As a result, this Court is constrained to find that at the time of the alleged
misconduct, a citizen’s First Amendment right to video record the police was not clearly
established. Defendant Officers are entitled to qualified immunity as to Count IV which must
therefore be dismissed as these Defendants.
C.

Count IV – First Amendment Violations against Montgomery County (Monell

Claim)
The Court’s analysis of qualified immunity does not settle Plaintiffs’ First Amendment
claim against the County because qualified immunity does not extend to municipalities. See
Owen v. City of Independence, 445 U.S. 622, 657 (1980) (“municipalities have no immunity
from damages liability flowing from their constitutional violations.”). This is particularly the
case where qualified immunity is granted because the rights violated were not clearly
established. See Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 402 (4th Cir.
2014); Barber v. City of Salem, Ohio, 953 F.2d 232, 238 (6th Cir. 1992) (“Stated another way, it
is possible that city officials may be entitled to qualified immunity for certain actions while the
municipality may nevertheless be held liable for the same actions.”).
In Monell v. Department of Social Services of the City of New York, the Supreme Court
determined that local governmental bodies may be held liable under § 1983 based on the
unconstitutional actions of its individual agents or employees only where they acted pursuant to
an official policy or custom of the local government that resulted in a violation of the plaintiff’s
rights. 436 U.S. 658, 690–91 (1978); see also Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir.
2004). Accordingly, plaintiffs seeking to impose § 1983 liability on a municipality must

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“adequately plead and prove the existence of an official policy or custom that is fairly
attributable to the municipality and that proximately caused the deprivation of their rights.”
Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994). 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
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 v. Mayor & City Council of
Baltimore, No. RDB-13-3049, 2014 WL 949859, at *11 (D. Md. Mar. 11, 2014) (quoting
Randall v. Prince George’s Cnty., Md., 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)). Additionally, “‘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 v. Ray, 409 F. App’x. 641, 651 (4th Cir. 2011) (quoting Lytle v. Doyle, 326 F.3d 463, 473
(4th Cir. 2003)).
Here, Plaintiff alleges that the Defendants Officers’ illegal conduct toward him “resulted
from Montgomery County’s policy, custom or practice of indifference to misconduct by MCPD

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officers” and that the Officers’ treatment of him “illustrates a lack of training and supervision
requiring the police to follow the law and established departmental policies.” ECF No. 9-1 at 10.
Plaintiffs further allege that despite a written MCPD Citizen Videotaping Policy which states
that “[i]ndividuals have a right to record police officers in the public discharge of their duties,”
“the official policies that MCPD actually followed . . . allowed its officers to obstruct and
prevent individuals from recording police officers,” as evidenced by the inadequate internal
affairs investigation “that resulted in no punishment or consequences for Defendant Officers and
which effectively sanctioned and endorsed Defendant Officers’ mistreatment of J.A.” Id. at 11.
Defendants argue that Plaintiffs’ allegations do not state a Monell claim because the
Complaint focuses only on J.A.’s incident without sufficient factual basis to support more
widespread interference with video recording of police conduct. See ECF No. 26-1 at 25–29. On
this point Garcia is again instructive. Before the parties in Garcia filed cross-motions for
summary judgment, the defendants moved to dismiss Garcia’s Monell claim arguing that “Mr.
Garcia’s complaint mentions only his incident and . . . he has pled nothing more than an isolated
constitutional deprivation . . . .” Garcia v. Montgomery Cty., Md., No. JFM-12-3592, 2013 WL
4539394, at *5 (D. Md. Aug. 23, 2013). The Garcia court allowed the Monell claim to proceed
based on an almost identical factual scenario as in this case. Relying on the Fourth Circuit’s
decision in Jordan by Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994), the Court reasoned:
Mr. Garcia has stated a valid Monell claim. Contrary to the defendants’ assertion
that Mr. Garcia’s complaint mentions only his incident and that he has pled
nothing more than an isolated constitutional deprivation, the complaint alleges
that Montgomery County was aware of unconstitutional actions by [MCP]
officers directed towards members of the media but chose to ignore such
behavior. The Fourth Circuit has made clear that a Monell plaintiff need not
“plead the multiple incidents of constitutional violations that may be necessary at
later stages to establish the existence of an official policy or custom and
causation.” Jordan by Jordan v. Jackson, 15 F.3d 333, 339–40 (4th Cir.1994)
(citations omitted).
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Garcia, 2013 WL 4539394, at *5. The Court concluded that “[a]t this stage, it is enough that Mr.
Garcia has alleged that Montgomery County was aware of ongoing constitutional violations by
MCPD officers and that the county’s failure to supervise and discipline its officers allowed a
pattern and/or practice of unconstitutional actions to develop.” It added:
Under Twombly and Iqbal, the factual allegations in the complaint are sufficient
to survive a motion to dismiss as they are “enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555; see also Jordan, 15 F.3d at 338
(stating that “section 1983 claims are not subject to a ‘heightened pleading
standard’ paralleling the rigors of proof demanded on the merits”) (citing
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507
U.S. 163, 168 (1993)).
Id.
Similarly here, Plaintiffs allege that Montgomery County’s custom or practice violated
citizens’ constitutional rights to video record police conduct by failing to supervise or discipline
offending officers, and conducting inadequate investigations into the same. Plaintiffs
specifically point to IAD’s cursory investigation of his complaint where the County took no
action against officers who clearly violated their own written policy on filming police conduct.
This, coupled with Plaintiffs’ averment of other similar constitutional violations, is sufficient for
the claim against the County to survive at this stage. Therefore, the Court denies the Defendants’
motion as to Count IV with respect to Montgomery County. For this reason, the Court will not
dismiss Plaintiffs’ request for injunctive relief against the County.3
D.

Punitive Damages
Defendants next challenge the availability of punitive damages. At the August 29, 2017

hearing, counsel for J.A. clarified that Plaintiffs are not pursuing punitive damages against

3

Defendants seek dismissal of Plaintiffs’ request for injunctive relief only to the extent the County is dismissed
from the case. See ECF No. 26-1 at 29. Plaintiffs do not dispute that injunctive relief is unavailable against the
individual officers. See ECF No. 30 at 40 n.6.

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Montgomery County. As to the Defendant Officers, punitive damages may be awarded in § 1983
actions where the punishable conduct involves “‘reckless or callous indifference to the federally
protected rights of others,’ as well as for conduct motivated by evil intent.” Cooper v. Dyke, 814
F.2d 941, 948 (4th Cir.1987) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Plaintiffs have
averred facts from which a reasonable jury could conclude that Defendant Officers acted with
reckless disregard towards J.A.’s rights and elect to award punitive damages. The motion to
dismiss as to the individual Defendant Officers is, therefore, denied.
IV.

CONCLUSION
Defendants’ Motion to Dismiss is denied as to Counts II and III. It is also granted as to

Count IV with respect to the Defendant Officers but denied with respect to the County. The
motion is also denied as to punitive damages against the individual Defendants. The motion as to
injunctive relief is denied. A separate Order follows.

9/1/2017
Date

/S/
Paula Xinis
United States District Judge

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