Jacobs v. Board of Education of Prince George's County et al

Filing 34

MEMORANDUM AND ORDER denying 24 and 25 Motions to Dismiss Counts I and II filed by Prince George's County and the Board of Education; denying without prejudice 24 and 25 Motions to Bifurcate Counts I and II filed by Prince George's County and the Board of Education; and directing Prince George's County, the Board of Education of Prince George's County, and the Prince George's County Police Department to File their Answers by 11/22/2017. Signed by Judge Paul W. Grimm on 11/8/2017. (tds, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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REGINALD DARNELL JACOBS,
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Plaintiff,
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v.

Case No.: PWG-17-678
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BOARD OF EDUCATION OF PRINCE
GEORGE COUNTY, et al.,
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Defendants.
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MEMORANDUM OPINION AND ORDER
In November 2013, Defendant Officer Charles Pickard yelled at and “violently attack[ed]
and assault[ed]” Plaintiff Reginald Jacobs, who at the time was a minor. Am. Compl., ¶¶ 12–16,
ECF No. 22. Pickard was charged criminally for his conduct and found guilty. Id. ¶¶ 22–23.
Jacobs, now an adult, brings this civil litigation against Officer Pickard, the Board of Education
of Prince George’s County (the “County”), the Prince George’s County Police Department (the
“Department”), and Prince George’s County (the “County”) alleging four counts: (I) violations
of 42 U.S.C. § 1983 (against all defendants); (II) violations of Articles 24 and 26 of the
Maryland Declaration of Rights (against all defendants); (III) battery (against Pickard); and (IV)1
false imprisonment (against Pickard). Am. Compl. ¶¶ 30–73. The County has filed a motion to
dismiss Counts I and II, or in the alternative a motion to bifurcate, ECF No. 24.2 The Board also

1

Jacobs erroneously lists his false imprisonment count as “Count V” in his amended complaint,
however, he alleges only a total of four counts. See Am. Compl. 13
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  The parties fully briefed the motion.
ECF Nos. 24, 28, 29. A hearing is not
necessary. See Loc. R. 105.6.  

moved to dismiss Counts I and II, ECF No. 25, and fully adopted the County’s memorandum of
law, ECF No. 25-1. Because, at this preliminary stage, Jacobs has alleged plausibly that the
County knew of, but failed to address adequately, a custom of its police officers to use excessive
force, I will deny the County and the Board’s motions to dismiss. I will also deny the motions to
bifurcate the case with respect to the Monell claim, given the criminal conviction of the officer
involved. The County, the Board, and the Department must file their Answers no later than
November 22, 2017 and I will issue a Scheduling Order and schedule a Fed. R. Civ. P. 16
conference thereafter.
Background
Plaintiff Reginald Jacobs, who was a minor at the time, was confronted by Defendant
Charles Pickard while walking down the hallway of Suitland High School on November 12,
2013.3 Am. Compl. ¶¶ 12–14. Officer Pickard, who was dressed in police uniform, removed his
bullet proof vest and gun belt and began yelling “‘let’s go to the body’” at Jacobs. Id. ¶ 15.
Pickard then subjected Jacobs to profanity-laced yelling and “violently attack[ed] and assault[ed]
Plaintiff, striking Plaintiff directly in the face with extreme force.” Id. ¶¶ 15–16. After knocking
Jacobs down multiple times and continuing to attack him with “extreme force,” Pickard
handcuffed Jacobs, placed him in a patrol car, and took him to Palmer Park police station. Id.
¶¶ 16–18. After a period of time, Jacobs was returned to Suitland High School where another
unnamed officer attempted to coerce him into writing a false statement of the day’s events. Id.
¶ 19. Pickard was charged criminally based on these events and found guilty of three separate

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

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counts, including reckless endangerment, second degree assault and misconduct in office. Id.
¶¶ 22–23.
Jacobs filed a 42 U.S.C. § 1983 action against Officer Pickard, the Board, the
Department, and the County, for which Officer Pickard works, alleging that Pickard used
excessive force, deprived him of his constitutional rights, and unreasonably searched and seized
him. Compl., ECF No. 1. With regard to the County, Jacobs claims it “has failed to adequately
train, supervise, and discipline its officers against the use of improper detention, unreasonable
force and unreasonable search and seizure” and
with actual notice and/or constructive knowledge and with deliberate indifference,
and manifested through [its] failure to train and a persistent and wide spread
practice, incorporate[s] a policy and/or custom of permitting its law enforcement
officers to improperly detain, use unreasonable and excessive force, and
unreasonably search persons without proper cause.
Am. Compl. ¶¶ 25, 37. In Count I, Jacobs claims that “Prince George’s County has allowed an
atmosphere of excessive abuse to exist as demonstrated by the numerous times meritorious
claims have been brought against it, which manifested itself in the brutal assault of Plaintiff by
Defendant Pickard.” Id. ¶ 32. Jacobs lists ten cases filed in this Court against the County
between 2010 and 2015. Id. ¶ 28. In Count II, Jacobs makes the same claims against the County
pursuant to Articles 24 and 26 of the Maryland Declaration of Rights.4

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  The County and the Board have moved to dismiss Count II for failing to state a claim under
Article 24 or Article 26. Article 24 is read in pari materia with the Fourteenth Amendment. See
Schloss v. Lewis, No. JFM-15-1938, 2016 WL 1451246, at *10 (D. Md. Apr. 12, 2016) (citing
Barnes v. Montgomery Cty., Md., 798 F. Supp. 2d 688, 700 (D. Md. 2011)), aff’d sub nom.
Schloss v. Abey, No. 16-2217, 2017 WL 2465020 (4th Cir. June 7, 2017). Likewise, “Article 26
protects the same rights as those protected under the Fourth Amendment to the United States
Constitution,” and “Maryland courts ‘have long recognized that Article 26 is in pari materia
with the Fourth Amendment.’” Ross v. Early, 899 F. Supp. 2d 415, 431 (D. Md. 2012) (quoting
Dent v. Montgomery Cty. Police Dep’t, 745 F. Supp. 2d 648, 661 (D. Md. 2010); citing Barnes,
798 F. Supp. 2d at 700); see also Richardson v. McGriff, 762 A.2d 48, 56–57 (Md. 2000).

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Jacobs filed an Amended Complaint, and the County filed its Motion to Dismiss Counts I
and II or in the alternative, a motion to bifurcate those counts, ECF No. 24, which the Board
adopted fully in its motion to dismiss or bifurcate.5
Discussion
Under Rule 12(b)(6), Jacobs’s claims against the County are subject to dismissal if they
“fail 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
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, to the extent allowed 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

Therefore, I will consider the sufficiency of Jacobs’s state constitutional tort claims in tandem
with his § 1983 claim. See Schloss, 2016 WL 1451246, at *10; Ross, 899 F. Supp. 2d at 431. 
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  Because the Board’s motion fully adopts the County’s memorandum of law, I will only refer to
the County’s memorandum. 
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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
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

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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 Plaintiff’s alleged injuries were caused by a custom or practice of the County” because the
allegations in Counts I and II are “speculative and conclusory.” Def.’s Mem. 6. As the County
sees it, “Counts I and II [], divested of all speculative and conclusory statements and
incomparable excessive force cases, fail to properly state a Monell claim that can survive the
County’s motion to dismiss” because the Amended Complaint “fails to assert ‘[any] factual
allegations of known, widespread conduct by [County] employees comparable to that alleged as
to [Plaintiff].’” Id. at 6–7 (quoting Ross v. Prince George’s Cty., Md., No. DKC-11-1984, 2012
WL 1204087, at *9 (D. Md. Apr. 10, 2012)) (alteration in original). The County also asserts that
“[t]he ten excessive force cases identified in the First Amended Complaint cannot be the basis
for Plaintiff’s Monell claim because either the suits are pending suits, dismissed with no findings
of excessive force, or the County was successful in defending the claim.” Id. at 7–8. In its
Reply, the County argues that “the unique circumstances surrounding the present case (i.e.,
police officer assigned to a public school and confronting a juvenile) which is part of Plaintiff’s
claims should control the scope and nature of the discovery that was not present in any of the
cases cited by Plaintiff.” Def.’s Reply 3–4.
Plaintiff insists that, in combination with the officer’s actions in this case, the listed cases
demonstrate “a clear showing of pervasive misconduct and a policy or custom on the part of
Prince George’s County and its employees to engage in improper detention, unreasonable and
excessive force and unreasonable search and seizures has been properly and specifically
pleaded.” Pl.’s Opp’n 8 (referencing Am. Compl. ¶ 28). But, an unsubstantiated complaint in
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itself is not sufficient; there also must be a finding of excessive force. See Amann v. Prince
George’s Cty., Md., No. DKC-99-3759, 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 Jacobs 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 Plaintiff cites also must be pared down to only those
involving the same type of force and involving a police officer assigned to a school confronting
juveniles. Def.’s Reply 3–5. 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 Mem. 7. 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
of guns,” such that “[l]imiting discovery to reports of shootings should not unduly hamper [the
plaintiff].” 1987 WL 38651, at *2.

Plaintiff’s Complaint, unlike in King, alleges “Prince

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George’s County has failed to adequately train, supervise, and discipline [County] officers
against the use improper detention, unreasonable force, and unreasonable search and seizure” in
general, not only in schools or when confronting minors specifically. Pl.’s Opp’n 4; see also
Am. Compl. ¶¶ 25, 37. Plaintiff asserts that the listed cases are not irrelevant because they all
allege the use of excessive force and the policy or customs of Prince George’s County
employees. See Pl.’s Opp’n 8. 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.6
Johnson v. Prince George’s County, Md., No. DKC-10-582; Ulloa v. Prince George’s
County, Md., No. DKC-15-257; Anderson v. Prince George’s County, Md., No. TDC-13-1509;
Canada-Malcom v. Prince George’s County, Md., PJM-14-2150; and Queen v. Prince George’s
County, Md., PWG-14-2941, 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,

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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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complaints, and lawsuits alleging false arrest and police brutality 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 Okezie v. Prince George’s County, Md., No. DKC-13-168, the jury returned a verdict
in the defendant officers’ favor. In Taylor v. Prince George’s County, Md., No. DKC-13-1678,
the parties filed a stipulation of dismissal.
Of the three most recent cases, one remains pending and the others settled, with one
settlement coming only days before trial.

The excessive force claims in Queen v. Prince

George’s County, No. PWG-14-2941, which settled in August 2017, were based on a police
officer striking the plaintiff in the face and survived summary judgment. 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 Brown v. Prince
George’s County, No. GJH-15-3687,7 the plaintiff alleged that the defendant officer shot him
after responding to a reporting of a shooting. This case was dismissed during discovery based on
a notice of voluntary dismissal with prejudice. Lastly, in King v. Prince 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 was denied and that
excessive force claim is proceeding to trial in January 2018.

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At the time of the parties were briefing this motion to dismiss, this case was still pending. The
parties refer to it in the Complaint and briefs as “15-cv-03867”; however, its proper case citation
is GJH-15-3687.
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Relevantly, in Johnson, Okezie, Taylor, 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 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)
(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
for excessive force claims, six 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, in
the one pending case, King, PJM-15-1405, the Monell claim survived the County’s motion to
dismiss and motion for summary judgment; in another, Queen, PWG-14-2941, the County did
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not move to dismiss it.

Considering these circumstances as a whole, I find that, at this

preliminary stage, Plaintiff has 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 having a joint trial on these issues would be prejudicial to Officer Pickard and
commencing discovery against the County should be stayed to preserve resources Def.’s Mem. 9,
Jacobs counters that bifurcating at this stage would prejudice him and it would be premature as
no discovery has occurred. Pl.’s Opp’n 9–10. This Court has bifurcated § 1983 cases so that the
plaintiffs may discover pattern and custom 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”). While bifurcation at trial may be proper to avoid undue prejudice to Officer Pickard,
currently I do not believe bifurcation is necessary as this case proceeds to discovery. Officer
Pickard has been found criminally liable in a related case (dealing with the same events as
alleged here) for reckless endangerment, Md. Code Ann., Crim. Law § 3-204, second degree
assault, Md. Code Ann., Crim. Law § 3-203, and misconduct in office.8 Under Maryland Code,
reckless endangerment requires a finding beyond a reasonable doubt that “a person [] recklessly
engage[d] in conduct that creates substantial risk of death or serious physical injury to another.”
Crim. Law § 3-204. Given this finding in the criminal proceeding, I believe bifurcation at this

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I take judicial notice of the state docket entries and filings in the related criminal case pursuant
to Fed. R. Evid. 201(b)(2).
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time will not result in expediting it, but would rather have the opposite impact. Therefore I will
not bifurcate the Monell claim and will not stay discovery on it, pursuant to Rule 42(b) at this
time. Defendants may renew their motion to bifurcate Counts I and II at a later time if they
believe it is necessary before a possible trial.
ORDER
For the reasons stated in this Memorandum Opinion and Order, it is, this 8th day of
November, 2017 hereby ORDERED that
1. Prince George’s County’s and the Board of Education’s Motions to Dismiss Counts I
and II, ECF Nos. 24 and 25, ARE DENIED; and
2. Prince George’s County’s and the Board of Education’s Motions to Bifurcate Counts
I and II, ECF Nos. 24 and 25, ARE DENIED without prejudice.
Prince George’s County, the Board of Education of Prince George’s County, and the
Prince George’s County Police Department’s must file their Answers by November 22, 2017.
After such time, I will schedule a Rule 16 conference and issue a Scheduling Order and
Discovery Order for this case.
/S/
Paul W. Grimm
United States District Judge
jml

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