United States District Court, D. Maryland
Lipton Hollander, United States District Judge.
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.
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”); 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”). Eschevarria, Nazareno, and Anderson
(collectively, the “Officer Defendants”) were
sued in their personal and official capacities. Id.
Complaint contains seven counts, each lodged against all
defendants. Plaintiff seeks damages, injunctive relief,
attorneys' fees, and costs. Id. at 16.
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. 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.
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.
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”).
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).
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).
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.
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.
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.
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.
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.
was advised by a City Watch camera operator on October 11,
2011,  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.
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.
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.
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.
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[.]”
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.
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
opinion, on which Shaw relies, includes several noteworthy
facts that plaintiff omitted from the Complaint.
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.
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.
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.
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?
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.
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.
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,
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).
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.
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.
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.
facts are included, infra.
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
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).
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.
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).
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.
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.”
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).
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).
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).
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).
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).
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
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) ...