Shaw v. State

          MEMORANDUM OPINION

          Ellen Lipton Hollander, United States District Judge.

         This case is rooted in the prosecution of plaintiff Dameon Shaw for two armed robberies that occurred in Baltimore City in 2011. In particular, one occurred on October 2, 2011, at a Price Value Supermarket, and the other occurred on October 11, 2011, at ¶ 7 Eleven store. Shaw was convicted of both offenses following trials in the Circuit Court for Baltimore City. However, in an unreported opinion issued by the Maryland Court of Special Appeals on March 19, 2015, the convictions were reversed. See Shaw v. State, No. 2038, Sept. Term 2013 (2015), cert. denied, 443 Md. 736 (2015). That court concluded that there was no probable cause for Shaw's arrest.^[1]

         The appellate ruling spawned this civil rights action, filed by Shaw on March 16, 2018, against the State of Maryland (the “State”); the Baltimore City Police Department (“BPD”); “Baltimore City” (the “City”)^[2]; BPD Detective Brandon Echevarria; BPD Detective Dexter Nazareno; BPD Detective Theodore Anderson; Price Value Supermarket Corp. (the “Supermarket”); Dennis Rosario, a store manager for the Supermarket; as well as Jose Ramon; GC Hollins Ferry Corp. (“GC Hollins”); and Carlos Cruz, who are owners and/or operators of the Supermarket. ECF 1 (the “Complaint”).^[3] Eschevarria, Nazareno, and Anderson (collectively, the “Officer Defendants”) were sued in their personal and official capacities. Id. ¶ 4.

         The Complaint contains seven counts, each lodged against all defendants. Plaintiff seeks damages, injunctive relief, attorneys' fees, and costs. Id. at 16.

         Count One, titled “Federal Civil Rights Violation, ” is founded on “Title 42 U.S.C. [§§] 1983 and 1988; and by Title U.S.C. 245” [sic], and asserts violations of the Fourth, Fifth, and Fourteenth Amendments. Id. ¶¶ 64-75.^[4] In particular, plaintiff alleges that defendants' “wrongful conduct consists” of the following: “police misconduct, police brutality, false arrest, false imprisonment, improper supervision, use of unreasonable force, failure to take appropriate and reasonable steps which would reasonably have prevented the need to use force in the first place, failure to adequately assess the need to use force, failure to adequately assess the need for self-defense, and failure to carry out proper police procedure and protocol[.]” Id. ¶ 67.

         Count Two, titled “Maryland Civil Rights, ” asserts violations of Articles 2, 19, 24, and 26 of the Maryland Declaration of Rights. Id. ¶¶ 76-89. Count Three, titled “Negligence, ” alleges “wrongful harm” to plaintiff from October 12, 2011, to January 2016, when he was released from incarceration. Id. ¶¶ 90-95. Count Four asserts a claim for “Negligent Hiring and Training.” Id. ¶¶ 96-102. Count Five alleges “Intentional Infliction of Emotional Distress.” Id. ¶¶ 103-107. In Count Six, plaintiff seeks recovery for “False Imprisonment and Arrest.” Id. ¶¶ 108-110. And, Count Seven asserts a “Malicious Prosecution” claim. Id. ¶¶ 111-115.

         Four motions to dismiss are now pending. The Officer Defendants have moved to dismiss the Complaint for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6) (ECF 40), supported by a memorandum of law. ECF 40-2 (collectively, “Officer Motion”). The BPD also moved to dismiss under Fed.R.Civ.P. 12(b)(6) (ECF 41), supported by a memorandum. ECF 41-1 (collectively, “BPD Motion”). The City has moved to dismiss under Fed.R.Civ.P. 12(b)(6) (ECF 42), supported by a memorandum of law. ECF 42-1 (collectively, “City Motion”). And, the State has moved to dismiss (ECF 43) under Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, and under Fed.R.Civ.P. 12(b)(6). It is supported by a memorandum of law. ECF 43-1 (collectively, “State Motion”).

         Plaintiff opposes the motions (ECF 50; ECF 51; ECF 52; ECF 53), and defendants have replied. ECF 54 (State); ECF 55 (City); ECF 56 (Officers); ECF 57 (BPD).

         No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant the Officer Motion (ECF 40), the BPD Motion (ECF 41), the City Motion (ECF 42), and the State Motion (ECF 43).

         I. Factual Background^[5]

         At the relevant time, plaintiff was a “26-year-old man with a dark complexion approximately 5'7 and 140 pounds.” ECF 1, ¶ 3. Echevarria, Nazareno, and Anderson “were employed as police officers/detectives” for BPD. Id. ¶ 4.

         On October 2, 2011, the Supermarket, located on East Monument Street in Baltimore City, “was robbed at gunpoint by a man wearing a gray and black hooded sweatshirt[.]” Id. ¶ 18. Echevarria, who was assigned to the BPD's Robbery Unit, “responded to the store on October 4, 2011 and viewed a surveillance tape of the robbery [.]” Id. ¶ 19.

         According to the Complaint, the surveillance footage from the day of the armed robbery showed a male suspect wearing a black mask and a light-colored glove, with red on the inside, on his right hand. Id. ¶¶ 25-27. The suspect brandished a gun in his right hand, approached the cashier in the store and fled the scene after he obtained money. Id. ¶¶ 25, 28.

         Then, on October 11, 2011, a man wearing a black jacket, a mask, and a glove on his right hand entered the 7 Eleven store, located at 6001 Harford Road in Baltimore, and robbed the store at gunpoint. Id. ¶¶ 43, 45. The cashier of the 7 Eleven emptied the money into a black plastic bag, which the man carried in his left hand. Id. ¶¶ 45-46.

         Plaintiff alleges that Echevarria and Anderson “conferred and determined the Price Value Supermarket and 7 Eleven Robbery had similar characteristics.” Id. ¶ 47. Echevarria “prepared a[nd] distributed a wanted flyer based on a still image obtained from the 7 Eleven store's surveillance camera” and used “this description as the man who committed the Price Value Supermarket robbery as well”[.] Id. ¶ 48.

         Nazareno was advised by a City Watch camera operator on October 11, 2011, ^[6] that a person who matched the description of the individual who robbed the Supermarket “was walking near the 2400 Block of Monument Street, Baltimore City, Maryland.” Id. ¶ 21. In particular, Nazareno was advised that the individual was a “black male” who was “5'8, 180 pounds [and] light skinned, ” and “wearing a black and gray sweatshirt.'” Id. ¶¶ 21, 22.

         With his gun drawn, Nazareno approached Shaw in the 2400 Block of East Monument Street and questioned him for approximately five minutes. Id. ¶ 23. According to the Complaint, Nazareno detained Shaw “solely for walking while black in a neighborhood under heavy police surveillance.” Id. ¶ 20. Shortly after Shaw was detained, Nazareno transported him to the BPD's Robbery Unit, where he “turned the Plaintiff over” to Echevarria. Id. ¶ 24.

         Following Shaw's arrest, Rosario, a Supermarket employee, watched the surveillance video of the robbery. Id. ¶¶ 29, 39. Rosario confirmed that the camera in the store “does not take pictures of the faces of individuals detected by the surveillance cameras[.]” Id. ¶ 40. Plaintiff also alleges that Rosario “never gave a description of the robber to the police” on October 2, 2011, “was never interviewed at Police Headquarters”, and “did not have the name of a suspect in mind” before plaintiff was arrested. Id. ¶¶ 31-33.

         Rosario identified plaintiff in a photo array prepared by Echevarria, stating that plaintiff “‘looked familiar.'” Id. ¶¶ 29-30, 34, 38. But, plaintiff maintains that the photo array prepared by Echevarria was “suggestive and designed to encourage” Rosario to identify plaintiff as the robber. Id. ¶ 35. According to plaintiff, Rosario knew that “Shaw did not fit the description of the robber.” Id. ¶ 37.

         The Circuit Court for Baltimore City heard motions to suppress. At the hearing, Echevarria testified that Rosario described the suspect as “a light completed [sic] man weighing approximately 180 pounds.” Id. The defense motions were denied, and the case concerning the Supermarket robbery proceeded to a jury trial. Shaw “was convicted of the armed robbery” and related charges. Id. ¶ 41. He “was sentenced to 30 years in prison, the first 5 years without the possibility of parole[.]” Id.

         Thereafter, Shaw elected a bench trial in the Circuit Court for Baltimore City with respect to the 7 Eleven robbery. Echevarria and Anderson testified that the surveillance video on the date of the armed robbery “depicted an African American male enter the store with a glove on his right hand, holding a semiautomatic handgun[.]” Id. ¶ 44. Shaw was convicted of the 7 Eleven robbery and sentenced to a concurrent term of 30 years in prison, the first five years without parole. Id. ¶ 51.

         Following plaintiff's convictions, he timely appealed to the Maryland Court of Special Appeals. Id. ¶ 52. On March 19, 2015, in an unpublished opinion, the Maryland Court of Special Appeals reversed plaintiff's convictions. Shaw v. State, No. 2038, Sept. Term 2013 (Mar. 19, 2015), cert. denied, 443 Md. 736 (2015); ECF 1 at 17-42.^[7]

         The opinion, on which Shaw relies, includes several noteworthy facts that plaintiff omitted from the Complaint.

         For example, a video from the Supermarket, recorded two hours prior to the robbery, captured a person with the same “distinctive hooded sweatshirt” as the robber, with his face uncovered, wearing “a doo-Rag . . . .” ECF 1 at 21. On October 12, 2011, when appellant was apprehended, he was wearing the same black and gray hooded sweatshirt as seen in the video. Id. And, a black doo-rag was found in his possession. Id. In addition, during the robbery of the Supermarket, the assailant wore a “‘ninja' type mask with just his eyes exposed, and one glove on his right hand, in which he held the handgun.” Id. at 20.

         The second robbery occurred on the evening of October 11, 2011, with the assailant wearing a mask and a black jacket. Id. at 22. The robber wore one glove on his right hand, which he used to brandish the gun. Id.

         Detective Anderson testified that when Shaw was arrested, he was wearing the same clothing worn by the robber. Id. at 23. In particular, at the time of the seizure of Shaw, “he was wearing a distinctive black hooded sweatshirt, a black doo-rag, bandanna and one right-handed beige-colored glove . . . .” Id. at 24 (emphasis added). Moreover, when Shaw was apprehended, he was in possession of a ski mask with the eyes cut out and one right-handed glove. Id. at 21.

         On appeal to the Maryland Court of Special Appeals, Shaw presented two questions, ECF 1 at 18:

1. Did the lower court err in concluding that Mr. Shaw was lawfully seized, upon suspicion that he had committed a robbery in a nearby location ten days earlier, when the only description provided to the seizing officer was that the suspect was a black male, wearing a black and grey sweater?

2. Did the lower court err, at Mr. Shaw's second trial, in permitting the State to introduce evidence of other criminal acts allegedly committed by Mr. Shaw to show the perpetrator's identity where there was an insufficient degree of similarity between the offenses?

         As to the first question, Shaw contended that “there was no reasonable articulable suspicion or probable cause to support the stop and the subsequent transport of [Shaw] to the police station, and that the court's findings in denying the motion were clearly erroneous.” Id. at 31. The Maryland Court of Special Appeals disagreed. It concluded that Shaw's initial detention was supported by reasonable articulable suspicion. Id. at 35.

         The court reasoned, id. at 35-36:

Detective Eschevarria's investigation included viewing the surveillance video of incidents occurring before and during the robbery of the Price Value Supermarket. The video showed an individual wearing a distinctive jacket entering the store and standing in the lottery line an hour before the robbery, and a person matching that description committing the robbery about an hour later. The wanted flyer, at minimum, was based on reasonable articulable suspicion that this individual was involved in the completed felony, and it was reasonable for police, in reliance on the information in the wanted flyer, to briefly stop a person matching this description for purposes of further investigation.

* * *

In this case, Detective Eschevarria prepared the wanted flyer based on images from the surveillance video, including the distinctive hooded gray and black sweater the suspect was seen wearing. That information was, in turn, transmitted to the CitiWatch camera operators. A camera operator, relying on that flyer, then observed a man matching the description in the flyer and contacted a patrol officer, Officer Nazareno. The camera operator informed the patrol officer to detain the person matching the description in the flyer. After that person was detained, the patrol officer confirmed with the camera operator that he had detained the intended person. We are persuaded that the court's findings were not clearly erroneous under these circumstances.

         The court also determined that Shaw “was under arrest when he was handcuffed and transported from to [sic] the Robbery Unit for further investigative purposes by Detective Echevarria.” Id. at 39. It explained, id.:

Although it may have been reasonable to conclude that, in connection with this armed robbery investigation, that [Shaw] may have been armed and dangerous, and that the use of handcuffs were reasonable in connection with what clearly began as a Terry [v. Ohio, 367 U.S. 643, 655 (1961)] stop, see Cross v. State, 165 Md.App. 164, 178-89 (2005) (“[T]he mere fact that a suspect has been handcuffed does not necessarily mean that he or she has been arrested”), we conclude that restraining appellant's movement and transporting him away from the scene of the initial detention to the police station constituted an arrest. See United States v. Hensley, 469 U.S. [221, 235 (1985)] (observing that the initial purpose of an investigative stop may exceed the legitimate purposes of a Terry stop).

         Of relevance here, the Maryland Court of Special Appeals determined that Shaw's arrest was not supported by probable cause. Id. at 41. It stated, id.:

In the case before us, the State's most persuasive argument is that, when [Shaw] was arrested, ten days after the robbery of the supermarket in a densely populated area of Baltimore City, he was wearing a distinctive gray and black hooded sweater. However, there were discrepancies between the description of the complexion and weight of the person seen in the surveillance video and appellant. Although we are persuaded that the State established a sufficient basis to support a Terry stop based on reasonable articulable suspicion, under the circumstances of this case, probable cause to arrest [Shaw] for the robbery that took place ten days earlier was not extant. Viewed in a light most favorable to the State, we are unable to hold that probable cause was established based on the fact that [Shaw] was an African-American male wearing a similar sweatshirt to that worn by the suspect seen in the store surveillance video. See Bailey v. State, 412 Md. 349, 374-75 (2010) (“A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion”). . . . Under the facts of this case, we are not persuaded that there was probable cause to arrest [Shaw] and then transport him, in handcuffs, for further investigation.

         The court concluded that “[b]ecause [Shaw] was arrested without probable cause, the fruits of his unlawful arrest should have been suppressed by the motions court.” Id. at 42. Accordingly, it reversed the judgments in both criminal cases. Id.

         The Complaint asserts that defendants “acted in concert to manufacture an eyewitness identification, despite the fact that Defendants knew and should have known that the [plaintiff] did not fit the description, ” and that defendants “knew and should have known [that] plaintiff did not commit either the armed robbery at 7 Eleven or Price Value Supermarket[.]” Id. ¶¶ 59, 60. Further, Shaw maintains that Echevarria, Anderson, and Rosario “conspired” to “frame” plaintiff for the Supermarket and 7 Eleven robberies “on account of his race.” Id. ¶¶ 49, 50. In addition, Shaw alleges that defendants “continued to prosecute and pursue [plaintiff] for these crimes, ” despite “acknowledging that the armed robber was light skinned” and knowing that plaintiff was “innocent.” Id. ¶ 61. According to Shaw, he “was targeted because of his race by the Defendants, seeking to convict him for a crime the Defendants knew and should have known he did not commit[.]” Id. ¶ 63.

         Additional facts are included, infra.

         II. Legal Standards

         All defendants move to dismiss the Complaint, pursuant to Rule 12(b)(6), for failure to state a claim. ECF 40; ECF 41; ECF 42; ECF 43. In addition, the State moves to dismiss under Rule 12(b)(1), for lack of subject matter jurisdiction. ECF 43.

         A. Rule 12(b)(1)

         A challenge to a federal court's subject matter jurisdiction is reviewed pursuant to Fed.R.Civ.P. 12(b)(1). Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

         A test of subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quotation marks and citation omitted); accord Durden, 736 F.3d at 300.

         In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d at 192; see also Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). In a factual challenge, on the other hand, “the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. In that circumstance, the court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

         With respect to the State's contention that plaintiff's claims are barred by Eleventh Amendment immunity, the State seems to raise a facial challenge. Therefore, I shall assume the truth of plaintiff's allegations.

         B. Rule 12(b)(6)

         A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.”

         Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). That rule provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions' . . . .”); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 135 S.Ct. 346, 346 (2014) (per curiam).

         Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action, ” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).

         In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the complaint” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. MTA, 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986).

         “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

         Courts ordinarily do not “‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses'” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint, ” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.'” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added in Goodman).

         In addition, “a court may properly take judicial notice of ‘matters of public record' and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.'” Goldfarb v. Mayor and City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v. Penn Nat'l Gaming, Inc.,637 F.3d 462, 466 (4th Cir. 2011), cert. denied, 565 U.S. 825 (2011); Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). However, under Fed.R.Evid. 201, a court may take judicial notice of adjudicative facts only if they are “not subject to reasonable dispute, ” in that they are “(1) ...