UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) CAROLINE ROBINSON, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-2294 (EGS) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ______________________________)
MEMORANDUM OPINION
This matter is before the Court on (i) defendants’ motion to
dismiss the complaint or for partial summary judgment, and (ii)
defendants’ motion to strike certain materials plaintiff attached
to her opposition to the motion to dismiss or for partial summary
judgment. Upon consideration of the motions, the responses and
replies thereto, the applicable law, and for the reasons set
forth below, the motion to dismiss or for summary judgment will
be GRANTED IN PART and DENIED IN PART. The motion to strike will
be DENIED as moot.
I. BACKGROUND
This case arises from the death of Arnell Robinson, a 20
year old District of Columbia resident who was allegedly struck
and killed by Metropolitan Police Department (“MPD”) officer
Michael Pepperman (“Officer Pepperman”) on March 6, 2009.
According to plaintiff’s allegations, Mr. Robinson was riding his
yellow motorcycle in the 400 block of O Street, Northwest at approximately 3:00 p.m. Mr. Robinson was unarmed and riding
properly in his lane of traffic. Compl. ¶¶ 14, 22. Officer
Pepperman, accompanied by MPD officer Gina Leveque, was driving
an unmarked police car traveling in the opposite direction.
Compl. ¶ 15. Without warning, honking, or turning on his lights
or sirens, Officer Pepperman swerved his car to the left, crossed
the center of the road, and intentionally drove into Mr.
Robinson’s path. Compl. ¶ 16. The car and the motorcycle
collided head on; Mr. Robinson was thrown from the bike. He was
rushed to Howard University Hospital, where he was pronounced
dead shortly thereafter. Compl. ¶ 20.
Plaintiff Caroline Robinson, the decedent’s mother, has
filed a 24-count complaint against Officer Pepperman and the
District of Columbia (the “District”) both individually and as
personal representative and administrator of Arnell Robinson’s
estate. Eight counts of the complaint contain constitutional
claims. Counts I and II allege Fourth Amendment violations of
unreasonable seizure, false arrest, and excessive force against
Officer Pepperman. Count III alleges Fifth and Fourteenth
amendment violations of substantive due process against Officer
Pepperman. Count IV is a 42 U.S.C. § 1983 claim against the
District on the theory of municipal liability. Counts XIII, XIV,
XV, and XVI repeat the allegations set forth in Counts I - IV,
but as survivorship counts as opposed to wrongful death counts.
2 The remaining counts allege a variety of common law claims
against both defendants, including negligence, assault, battery,
infliction of emotional distress, and negligent failure to hire,
retain, train and supervise. Plaintiff seeks compensatory and
punitive damages plus costs and attorney’s fees.
Defendants move for dismissal, or in the alternative for
partial summary judgment on the constitutional claims against
both defendants.1 Plaintiff responds that she has alleged
sufficient facts in her complaint to sustain her claims at the
motion to dismiss stage of the proceedings, or, alternatively,
that she has set forth genuine issues of material fact to survive
defendants’ motion for summary judgment.
Defendants attached a declaration from Officer Pepperman to
their motion. Plaintiff attached numerous exhibits to her
opposition, including several declarations and a collision
assessment from a forensic consultant. In their reply,
defendants moved to strike some of the material plaintiff
provided pursuant to Federal Rules of Civil Procedure 12(f) and
56(e). The parties conducted limited additional briefing on the
motion to strike. Both motions are now ripe for determination by
the Court.
1 As discussed infra, defendants move for summary judgment on plaintiff’s Fourth Amendment claim and move to dismiss plaintiff’s Fifth and Fourteenth Amendment and municipal liability claims.
3 II. STANDARD OF REVIEW
A. Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). A complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and citations omitted). “‘[W]hen ruling on a defendant’s
motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint[,]’” Atherton v. D.C.
Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and grant the
plaintiff “the benefit of all inferences that can be derived from
the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271,
1276 (D.C. Cir. 1994). A court must not, however, “accept
inferences drawn by plaintiffs if such inferences are unsupported
by the facts set out in the complaint. Nor must the court accept
legal conclusions cast in the form of factual allegations.” Id.
In addition, “[t]hreadbare recitals of the elements of a cause of
4 action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. A complaint must therefore plead
“‘factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.’” Atherton, 567 F.3d at 681 (quoting Iqbal, 129 S. Ct.
at 1949). This, in turn, “asks for more than a sheer possibility
that a defendant has acted unlawfully”; a complaint alleging
facts that are “‘merely consistent with’ a defendant's liability
. . . ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at
1949 (quoting Twombly, 550 U.S. at 557).
B. Summary Judgment
Under Federal Rule of Civil Procedure 56, a motion for
summary judgment shall be granted if the pleadings, depositions,
answers to interrogatories, admissions on file and affidavits
show that there is no genuine issue of material fact, and that
the moving party is entitled to judgment as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986). To be
material, the factual assertion must be capable of affecting the
outcome of the litigation; to be genuine, the issue must be
supported by sufficient admissible evidence that a reasonable
fact finder could find for the non-moving party. Id. at 248; see
5 also Lanningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir.
1987).
In determining whether a genuine issue of material fact
exists, the Court must view all facts in the light most favorable
to the non-moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving
party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by
affidavits or other competent evidence setting forth specific
facts showing that there is a genuine, material issue for trial.
Fed. R. Civ. P. 56(e); see Celotex Corp. v. Cattrett, 477 U.S.
317, 322 (1986).
III. ANALYSIS
A. Fourth Amendment Claims
Defendants move for summary judgment on plaintiff’s Fourth
Amendment claims, arguing that Officer Pepperman did not “seize”
Mr. Robinson and therefore that no Fourth Amendment violation
occurred. Plaintiff responds that she has presented a genuine
issue of material fact sufficient to overcome summary judgment.
For the reasons that follow, the Court agrees that a genuine
issue of material fact exists as to whether Officer Pepperman
effected a seizure of Mr. Robinson. Accordingly, defendants’
motion for summary judgment is DENIED.
6 To establish a Fourth Amendment violation for excessive use
of force by a police officer, a plaintiff must demonstrate that
first, he was seized, and second, that the use of force applied
in the seizure was unreasonable. See Graham v. Connor, 490 U.S.
386, 397 (1989); Johnson v. Dist. of Columbia, 528 F.3d 969, 973
(D.C. Cir. 2008). In Brower v. County of Inyo, the Supreme Court
defined a seizure as follows:
[A] Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement [], nor even whenever there is a governmentally caused and governmentally desired termination of movement [], but only when there is a governmental termination of freedom of movement through means intentionally applied.
489 U.S. 593, 596-97 (1989) (emphasis in original). In other
words, a seizure “requires an intentional acquisition of physical
control . . . and the detention or taking itself must be
willful.” Id. at 596.
Plaintiff’s Fourth Amendment claims of excessive force are
premised on the theory that Officer Pepperman intentionally drove
into Mr. Robinson in order to force him to stop his motorcycle.
See, e.g., Compl. ¶¶ 14-17, 41, 59, 53, 54, 174-77, 182-89.
Specifically, she claims that Officer Pepperman purposely swerved
into the lane of Mr. Robinson’s oncoming motorcycle with the
intention of stopping him, “which was tantamount to effecting a
traffic stop.” Compl. ¶¶ 41, 174. Plaintiff alleges that
Officer Pepperman intentionally swerved left into Mr. Robinson’s
7 path while Mr. Robinson was navigating speed bumps, that Mr.
Robinson was unable to swerve to avoid Officer Pepperman because
there were cars parked to his right, and that Officer Pepperman
then collided with Mr. Robinson, head on. Compl. ¶¶ 16-19.
Plaintiff further alleges that this intentional use of force was
unreasonable, since Mr. Robinson was unarmed, not engaged in
imminently dangerous behavior, and since Officer Pepperman never
gave any indication that he wanted Mr. Robinson to stop the
motorcycle, such as flashing his lights or activating his siren.
Compl. ¶¶ 51-54, 183-88.
Defendants argue that summary judgment is appropriate
because Officer Pepperman had no intention of stopping Mr.
Robinson, never made any contact with Mr. Robinson himself, and
indeed tried to avoid the collision entirely. Defs.’ Mem. at 8-
10. Because there was no intent to stop Mr. Robinson, defendants
claim, he was not “seized” in violation of the Fourth Amendment.2
Defendants offer the declaration of Officer Pepperman in support
of their argument. According to Officer Pepperman, he was
driving down the street but stopped his vehicle when he saw the
motorcycles approaching. Declaration of Officer Pepperman
(“Pepperman Decl.” ¶ 6). Mr. Robinson continued toward the
2 Defendants make no argument regarding the second prong of the excessive force test: if indeed a seizure occurred, whether the use of force applied in effecting the seizure was unreasonable. See Graham, 490 U.S. at 397.
8 stopped police car, lost control of his motorcycle and was
“propelled into a parked car” - not Officer Pepperman’s car -
which resulted in his death. Pepperman Decl. ¶¶ 7-10.
In her opposition, plaintiff provides declarations from two
eyewitnesses to the collision that flatly contradict Officer
Pepperman’s version of events. Adam Wilson, a neighborhood
resident, observed “the Officer driving the unmarked police
vehicle swerve[] into the path of Mr. Robinson’s motorcycle. The
Officer’s vehicle was moving when he hit Mr. Robinson’s
motorcycle.” Declaration of Adam Wilson (“Wilson Decl.”) p. 2.
Mr. Wilson continues, “the Officer sped up as he swerved into Mr.
Robinson’s lane of traffic. He did not slow down. The police
car crashed into Mr. Robinson’s motorcycle head-on, and Mr.
Robinson’s body hit the right-front of the police car and went
flying over the hood[.]” Wilson Decl. p. 3. Another
neighborhood resident, Kenneth Lindsay, states that he was on his
balcony overlooking the 400 block of O Street when the collision
occurred and had a clear view of the incident. Declaration of
Kenneth Lindsay (“Lindsay Decl.”) p. 1. Mr. Lindsay also states
that Officer Pepperman swerved into Mr. Robinson’s lane of
traffic and collided with the motorcycle and with Mr. Robinson.
Lindsay Decl. p. 2. Defendants have not moved to strike either
of these declarations. See Defs.’ Reply/Mot. to Strike at 13-14;
see generally Defs.’ Sur-Surreply.
9 As the declarations of Officer Pepperman, Mr. Wilson and Mr.
Lindsay make clear, a genuine issue of material fact exists:
namely, whether Officer Pepperman intentionally swerved into Mr.
Robinson’s lane of traffic in order to stop Mr. Robinson, thus
arguably effecting a seizure under the Fourth Amendment. That
dispute can only be resolved by evaluating the conflicting
testimony of Officer Pepperman on the one hand, and Mr. Wilson
and Mr. Lindsay on the other. The Court concludes, therefore,
that summary judgment is inappropriate. See Johnson, 528 F.3d at
977 (quoting Saucier v. Katz, 533 U.S. 194, 216 (2001)(Ginsburg,
J., concurring in the judgment)) (“Of course, if an excessive
force claim turns on which of two conflicting stories best
captures what happens on the street, [a court may] not permit
summary judgment in favor of the defendant official.”)
Accordingly, defendants’ motion for summary judgment on
plaintiff’s Fourth Amendment claims is DENIED.
B. Fifth and Fourteenth Amendment Claims
In Counts III and XV of her complaint, plaintiff alleges the
defendants violated Mr. Robinson’s Fourteenth and Fifth Amendment
substantive due process rights. Defendants move to dismiss both
claims. The Court addresses each of them in turn.
Plaintiff’s Fourteenth Amendment claims are easily resolved.
Defendants correctly point out that the Fourteenth Amendment does
not apply to the District of Columbia or its officials/employees,
10 and plaintiff does not dispute this argument. See Bolling v.
Sharpe, 347 U.S. 497, 499 (1954). Accordingly, the Court GRANTS
defendants’ motion to dismiss plaintiff’s Fourteenth Amendment
claims.
Defendants’ motion to dismiss plaintiff’s Fifth Amendment
claims is less easily resolved. Defendants assert that plaintiff
asserts her Fifth Amendment claims under the same “seizure”
theory as her Fourth Amendment claims, and argue that all
excessive force claims must be brought under the Fourth Amendment
as a matter of law. Defs.’ Reply at 4-6. Plaintiff counters
that her complaint asserts a Fifth Amendment claim as an
alternative theory to her Fourth Amendment claim. She argues
that even if no seizure occurred for purposes of a Fourth
Amendment violation, defendants may still be held liable for
police misconduct via a substantive due process claim. Pl.’s
Opp’n at 21-24.
Determining where a Fourth Amendment excessive force claim
ends and a Fifth Amendment substantive due process claim begins
is not always straightforward, and this Court is not aware of
authority from this Circuit that would be dispositive in this
case. However, after careful consideration the Court agrees that
Plaintiff has pled her Fifth Amendment claim in the alternative,
and accordingly DENIES defendants’ motion to dismiss the Fifth
Amendment claims in the complaint.
11 The guarantee of substantive due process “[i]s intended to
prevent government officials from abusing their power, or
employing it as an instrument of oppression.” County of
Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quoting Collins v.
Harker Heights, 503 U.S. 115, 126 (1992) (internal citations
omitted)). To show a substantive due process violation,
plaintiff must show the governmental action at issue “can
properly be characterized as arbitrary, or conscience-shocking,
in a constitutional sense.” Collins, 503 U.S. at 128. A
litigant may make a substantive due process claim for police
misconduct so long as her claim is not “covered by a specific
constitutional provision, such as the Fourth or Eighth
Amendment.” Lewis, 523 U.S. at 843 (quoting U.S. v. Lanier, 520
U.S. 259, 272 n.7 (1997)). “Where a particular amendment provides
an explicit textual source of constitutional protection against a
particular source of government behavior, that Amendment, not the
more generalized notion of substantive due process, must be the
guide for analyzing these claims.” Id. at 842 (quoting Graham,
490 U.S. at 395). However, when a claim of government misconduct
is not “covered by” another amendment to the Constitution,
substantive due process analysis may be appropriate. Id. at 843.
The Lewis Court addressed when substantive due process
claims, as opposed to Fourth Amendment seizure claims, are
appropriate in the context of excessive force cases. The Court
12 held that “only a purpose to cause harm unrelated to the
legitimate object of arrest [or investigatory stop, or other
seizure] will satisfy the element of arbitrary conduct shocking
to the conscience, necessary for a due process violation.” Id.
at 836 (emphasis added). In other words, “conduct intended to
injure in some way unjustifiable by any government interest” is
unlikely to be covered by the Fourth Amendment; instead, it “is
the sort of official action most likely to rise to the
conscience-shocking level” at issue in substantive due process
cases. Id. at 844.
The parties have not cited cases in this Circuit which
directly address whether a ‘seizure’ occurs, and thus the Fourth
Amendment applies, when the complained-of conduct occurred
outside of a criminal investigation or other form of justifiable
governmental activity. However, a number of other Circuits have
addressed this issue and found that “governmental conduct which
is not actuated by an investigative or administrative purpose
will not be considered a 'search' or 'seizure' for purposes of
the Fourth Amendment.” U.S. v. Attson, 900 F.2d 1427, 1430 (9th
Cir. 1990); see also Poe v. Leonard, 282 F.3d 123, 136 (2d Cir.
2002) (substantive due process analysis appropriate where officer
surreptitiously videotaped plaintiff undressing at police
facility); Coon v. Heron, 181 F.3d 100, No. 97-1480, 1999 WL
357779, *2 (6th Cir. May 19, 1999) (plaintiff may proceed with
13 substantive due process claim where officer shot him with no
provocation and for no apparent reason); Davis v. Hillside, 190
F.3d 167, 172-73 (3d Cir. 1999) (McKee, J., concurring)
(substantive due process analysis applies where police
“gratuitously rammed [] car . . . to ‘teach [driver] a lesson’ or
to ‘get even’”); Jones v. Wellham, 104 F.3d 620, 628 (4th Cir.
1997) (rejecting Fourth Amendment claim and applying substantive
due process analysis where plaintiff alleged police officer raped
her because “the harm inflicted did not occur in the course of an
attempted arrest or apprehension of one suspected of criminal
conduct”); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559
(1st Cir. 1989)(upholding substantive due process claim where
police opened fire without warning on unarmed man not suspected
of criminal activity); Shillingford v. Holmes, 634 F.2d 263, 265-
66 (5th Cir. 1981), abrogated on other grounds by Valencia v.
Wiggins, 981 F.2d 1240 (5th Cir. 1993) (substantive due process
claim appropriate where police beat unarmed observer who had
photographed the police arresting another man).
The allegations plaintiff makes in her substantive due
process claims are consistent with Lewis and its progeny. She
claims that Officer Pepperman had no legitimate law-enforcement
purpose in his encounter with Mr. Robinson; accordingly, his
actions do not constitute a seizure cognizable under the Fourth
Amendment. In Counts III and XV of her complaint plaintiff
14 alleges that Officer Pepperman “intentionally obstructed
Decedent, without legal cause or reason, and without notice, in
an unmarked police car[.]” Compl. ¶¶ 64, 198. She further
alleges that Officer Pepperman “swerv[ed] into the Decedent’s
motorcycle without any provocation or lawful reason[.]” Compl.
¶¶ 65, 199. In her opposition to defendants’ motion to dismiss,
she argues:
[I]gnoring for a moment the strong evidence of Defendant Pepperman’s evidence to make a traffic stop . . . [he] misused his power as a police officer, and crashed into or swerved into and played chicken with Mr. Robinson because he was a police officer and thought he could get away with it . . . . [A] police officer cannot simply approach someone on the street and strike them with deadly force . . . whether for sport or for fun or simply to show ‘em who’s boss, and when a police officer does [this] he has violated the person’s Fifth Amendment due process rights.”
Pl.’s Opp’n at 23.
Defendants ignore this alternative theory in its entirety.
Rather, they insist that plaintiff has only alleged an
unconstitutional seizure under the Fourth Amendment, and
accordingly is foreclosed from asserting a Fifth Amendment claim.
Defs.’ Reply at 4-6. For the reasons set forth above, the Court
rejects this selective reading of the complaint. Federal Rule of
Civil Procedure 8(d)(3) permits a plaintiff to plead inconsistent
claims in support of alternative theories of recovery. See Fed.
R. Civ. P. 8(d)(3) (2009)(“a party may state as many separate
claims or defenses as it has, regardless of consistency.”)
15 Reading the complaint in the light most favorable to plaintiff,
the Court finds she has properly alleged a Fifth Amendment
violation as an alternative theory to her Fourth Amendment claim.
Accordingly, defendants’ motion to dismiss plaintiff’s Fifth
Amendment claims is DENIED.
C. Qualified Immunity
Qualified immunity shields government officials “from
liability for civil damages insofar as 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). Defendants argue that
Officer Pepperman did not violate Mr. Robinson’s constitutional
rights, thus ending the inquiry. Defs.’ Mem. at 11. They do not
address the second prong of the qualified immunity analysis:
whether the rights at issue were “clearly established” at the
time of the alleged violation. Harlow, 457 U.S. at 818; see also
Saucier, 533 U.S. at 201.
As set forth above, the Court has concluded that plaintiff
has articulated a violation of rights protected by the Fourth and
Fifth Amendments. Therefore, the Court cannot accept defendants’
argument that Officer Pepperman is immune from suit on those
grounds. The Court recognizes that it may grant immunity to an
official who has violated a constitutional right if that right
was not clearly established at the time. However, defendants
16 make no argument on this issue, despite the fact that “the burden
is on the official claiming immunity to demonstrate his
entitlement.” Dennis v. Sparks, 449 U.S. 24, 29 (1980).
Accordingly, the Court DENIES qualified immunity to Officer
Pepperman at this stage of the proceedings.
D. Municipal Liability Under § 1983
i. Standard of Review
Before turning to the merits of the parties’ arguments on
municipal liability, the Court first resolves the threshold
question of whether it will convert the defendants’ motion to
dismiss plaintiff’s municipal liability claims into one for
summary judgment.
Whether to consider matters outside the pleadings in
connection with a motion to dismiss is a matter wholly within the
discretion of the Court. If a court chooses not to consider such
matters, the motion to dismiss is resolved in accordance with
Federal Rule of Civil Procedure 12. See Dial a Car, Inc. v.
Transportation, Inc., No. 93-2170, 1994 WL 902774, *1 (D.D.C.
Sept. 8, 1994) (disregarding outside materials provided by
plaintiff in opposition to motion to dismiss); see also Ware v.
Associated Milk Producers Inc., 614 F.2d 413, 414-415 (5th Cir.
1980) (same). This discretion also exists where, as here, a
motion to dismiss is combined with a motion for summary judgment.
“When a motion to dismiss is combined with a motion for summary
17 judgment and outside matters are considered by the court with
respect only to the latter motion, the district judge may dispose
of the motion either under Rule 56 or may limit its disposition
to the motion to dismiss.” 5C Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 1366 (3d ed. 2004)
(citations omitted).
In this case, defendants have moved for summary judgment on
plaintiff’s Fourth Amendment claims, but moved to dismiss her
municipal liability claims. Defendants did not attach any
factual materials outside the complaint relating to the municipal
liability claims. Plaintiff, however, attached a host of factual
materials to her opposition, including some which could be used
to support her municipal liability claim against the District.
Despite these attachments, the Court notes that in her opposition
memorandum, plaintiff argues only that her claim of municipal
liability should survive a motion to dismiss. Pl.’s Opp’n at 21-
24. Defendants attached no factual materials to their reply
brief, and again argue that the municipal liability claim should
be dismissed pursuant to Rule 12(b)(6). Having reviewed the
arguments on municipal liability contained in the pleadings, the
Court is of the view that they can and should be resolved on the
basis of the complaint, without reference to the Declarations of
Anna Conroy and Thomas Butler or any other materials filed by
plaintiff in support of her opposition. Because the Court does
18 not consider these or any outside factual materials in resolving
the municipal liability claims, the Court will treat defendants’
motion on this issue as a motion to dismiss.
ii. The District’s Liability
In order to hold a municipality liable for civil rights
violations under § 1983, the municipality must have acted in
accordance with a “government policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy.” Monell v. Dep’t of Social Servs.,
436 U.S. 658, 694 (1978). The failure to train, supervise or
discipline city employees can constitute a policy or custom if it
amounts to “‘deliberate indifference’ towards the constitutional
rights of persons in its domain.” Daskalea v. Dist. of Columbia,
227 F.3d 433, 441 (D.C. Cir. 2000) (internal quotations omitted).
“Deliberate indifference is determined objectively, by analyzing
whether the municipality knew or should have known of the risk of
constitutional violations, and yet failed to respond as
necessary.” Byrd v. Dist. of Columbia, 297 F. Supp. 2d 136, 139
(D.D.C. 2003) (quoting Baker v. Dist. of Columbia, 326 F.3d 1302,
1307 (D.C. Cir. 2003)). The Supreme Court has outlined at least
two ways in which deliberate indifference may be established.
First, if city policymakers “know to a moral certainty” that
their police officers will encounter certain situations, the need
to train officers on how to respond to those situations “can be
19 said to be so obvious that failure to do could properly be
characterized as deliberate indifference to constitutional
rights.” City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10
(1989) (internal quotations omitted). Second, “it could also be
that the police, in exercising their discretion, so often violate
constitutional rights that the need for further training must
have been plainly obvious to the city policymakers, who,
nevertheless, are deliberately indifferent to the need.” Id.
Defendants argue that plaintiff’s complaint contains merely
“conclusory allegations” and that she has not pled sufficient
facts to state a claim under § 1983. Defs.’ Mem. at 14. The
Court disagrees, and finds that plaintiff has alleged enough
facts to state a plausible deliberate indifference claim against
the District.
In support of her municipal liability claim, Plaintiff
alleges that “it was the policy, practice and custom of [the
District], endemic to its MPD, to encourage and permit officers
on patrol in their vehicles to intimidate young motorcyclists,
intentionally, using means including but not limited to swerving
into motorcyclists’ lane of traffic causing the rider to swerve,
fall or lose control of the motorcycle.” Compl. ¶ 75. She
recounts the facts surrounding the incident between Mr. Robinson
and Officer Pepperman, and then claims that similar incidents
were “commonplace and were knowingly and tacitly condoned by
20 supervisors.” Compl. ¶¶ 78, 211. She alleges that the District
“fail[ed] to investigate and pursue reports of unlawful seizures
and use of excessive force, and failed to deter such behavior by
its agents through proper training, reprimand, suspension or
dismissal, particularly with respect to incidents involving young
motorcyclists.” Compl. ¶¶ 79, 212. She alleges that the
District’s failure to train its officers in effectuating proper
seizures of motorcyclists, without using excessive force, created
a situation where MPD Officers were “almost certain to violate
the constitutional rights of young motorists in the District of
Columbia through unreasonable seizure, use of excessive force,
and deprivation of due process of the law, without fear of
consequence.” Compl. ¶¶ 79, 212.
Taking these allegations together, the Court finds plaintiff
has alleged a specific form of misconduct: intimidating and
harassing motorcyclists by, inter alia, swerving into their lanes
of traffic and causing them to fall or lose control of their
vehicles. She alleges the District should have known about this
misconduct because it was “commonplace” and reported, but the
District refused to investigate or otherwise pursue the reports.
Finally, she presents a plausible causal connection between the
District’s alleged failure to train, supervise, or discipline
officers regarding the alleged misconduct and the constitutional
deprivation Mr. Robinson allegedly suffered. See City of Canton,
21 489 U.S. at 390, n.10; see also Anderson v. City of Blue Island,
No. 08-7097, 2010 WL 1710761, *2 (N.D. Ill. Apr. 28, 2010).
Plaintiff has alleged enough facts to suggest she may be entitled
to relief against the District; accordingly, it would be
inappropriate to dismiss her claim at this stage of the
proceedings. Defendants’ motion to dismiss plaintiff’s municipal
liability claim is therefore DENIED.
E. Punitive Damages
Plaintiff seeks punitive damages against the District,
alleging that its “outrageous, intentional, reckless and grossly
negligent unconstitutional acts exhibit the degree of malice to
warrant punitive damages.” Compl. ¶ 88. She claims that this
case could present the type of “extraordinary circumstance” under
which this Circuit has said such damages could be appropriate,
and argues that it would be premature to decide this issue prior
to discovery. Pl.’s Opp’n at 45 (citing Daskalea, 227 F.3d at
447).3 The District responds that punitive damages are never
available against the District absent an express statutory
mandate which does not exist here. Even if damages were available
3 In Daskalea, the Court of Appeals stated that “extraordinary circumstances” warranting punitive damages against a municipality might be present where “a jurisdiction's taxpayers are directly responsible for perpetrating the policies that caused the plaintiff's injuries. . . . [or] where a municipality or its policymakers have intentionally adopted the unconstitutional policy that caused the damages in question.” 227 F.3d at 447.
22 under Daskalea’s extraordinary circumstances test, the District
argues, such circumstances are not present in this case. Defs.’
Reply at 19-20.
The Court agrees with plaintiff that resolving whether she
may recover punitive damages is premature. Accordingly,
defendants’ motion to dismiss plaintiff’s punitive damages claim
is DENIED WITHOUT PREJUDICE.
F. Motion to Strike
Finally, the Court turns to defendants’ motion to strike
certain materials submitted by plaintiff in support of her
opposition to the motion to dismiss or for summary judgment. As
set forth above, the Court did not consider any of the disputed
material in resolving the defendants’ motion. Accordingly,
defendants’ motion to strike is DENIED as moot.
III. CONCLUSION
For the reasons set forth above, the Court GRANTS IN PART
AND DENIES IN PART the defendants’ motion to dismiss, or in the
alternative for summary judgment. The Court DENIES AS MOOT
defendants’ motion to strike. An appropriate Order accompanies
this Memorandum Opinion.
SIGNED: Emmet G. Sullivan United States District Judge September 14, 2010