                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                           )
ELMER HERNANDEZ,                           )
                                           )
                       Plaintiff,          )
                                           )
       v.                                  )       Civil Action No. 11-956 (ABJ)
                                           )
DISTRICT OF COLUMBIA,                      )
WASHINGTON CONVENTION AND                  )
SPORTS AUTHORITY, AND                      )
OFFICER PARMINELER SINGH, both             )
individually and in his official capacity, )
                                           )
                       Defendants.         )
____________________________________)


                                MEMORANDUM OPINION

       Plaintiff Elmer Hernandez brings this action against defendants District of Columbia,

Washington Convention and Sports Authority (“WCSA”), and Officer Parmineler Singh

(“Officer Singh”), both individually and in his official capacity, alleging various torts and

violations of his civil rights. Defendants District of Columbia and Singh answered the complaint

as to each count on August 18, 2011 [Dkt. # 17]. Defendant WCSA answered the complaint

[Dkt. # 18] with respect to Count I (Assault and Battery), Count II (Negligence), and Count VI

(Intentional Infliction of Emotional Distress), but moves this Court to dismiss Count III (Gross

Negligence), Count IV (Violations of Plaintiff’s Civil Rights), Count V (Abuse of Process), and

Count VII (False Arrest and Imprisonment) pursuant to Fed. R. Civ. P. 12(b)(6) [Dkt. # 19]. For

the reasons below, the Court will grant WSCA’s motion to dismiss as to Count III and Count IV

but will deny it with regard to Count V and Count VII.
   I.      BACKGROUND

        Plaintiff, a resident of Virginia, attended a soccer match on June 19, 2010, at the Robert

F. Kennedy Memorial Stadium (“RFK Stadium”) in Washington, D.C.                 Am. Compl. at 2.

Officer Singh is a police officer with the District of Columbia Metropolitan Police Department

(“MPD”) who, on the date in question, was off-duty and employed by WCSA to provide security

at RFK Stadium. Am. Compl. ¶¶ 5–6. WCSA operates RKF Stadium and routinely employs

off-duty MPD officers to provide security at various events. Id. ¶ 6. This action arises out of

plaintiff’s encounter with Officer Singh at RFK Stadium.

        At some point during the match, a fight broke out between two members of plaintiff’s

family and other individuals in attendance. Id. at 2. Plaintiff attempted to break up the fight and

sustained injuries when Officer Singh intervened and allegedly “used more force than was

reasonably necessary to gain control of the situation.” Id. According to plaintiff, Officer Singh

“violently struck [him] from behind” without provocation. Id. ¶ 9. Plaintiff alleges that he

“raised his hands and/or elbow to defend himself” but that Officer Singh “went on to

continuously strike and hit [him], even after he fell to the ground.” Id. ¶¶ 9–10.

        After the altercation, plaintiff was placed under arrest for assaulting a police officer and

subsequently transported to the George Washington University Hospital where he was treated for

injuries to his forehead, cheek and jaw area; a nasal bone fracture; a nasal laceration; and other

lacerations. Id. ¶¶ 10–11. Plaintiff was arraigned on the assault charge on June 21, 2010. Id. ¶

13. However, the case was dismissed for want of prosecution on January 10, 2011. Id.

        Plaintiff filed this lawsuit against the District of Columbia and Officer Singh in the

Superior Court of the District of Columbia on May 20, 2011. Defendants subsequently removed

the case to this Court on grounds of federal question jurisdiction [Dkt. # 1], and on July 18, 2011



                                                 2
plaintiff filed an amended complaint [Dkt. # 8] naming for the first time WCSA as a defendant.

The amended complaint sets forth seven causes of action as to all defendants: Count I alleges

assault and battery; Count II alleges negligence; Count III alleges gross negligence; Count IV

alleges violations of plaintiff’s civil rights under 42 U.S.C. § 1983 (2006), 18 U.S.C. §§ 241,

242, and 245 (2006), and D.C. Code § 4–176 (1981); Count V alleges abuse of process; Count

VI alleges intentional infliction of emotional distress; and Count VII alleges false arrest and

imprisonment. Before the Court is WCSA’s motion to dismiss Count III, Count IV, Count V,

and Count VII of the amended complaint. 1

   II.      STANDARD OF REVIEW

            A. Whether Rule 12(b)(6) or Rule 12(c) Applies

         As a preliminary matter, the parties dispute whether WCSA’s motion may be decided

under Fed. R. Civ. P. 12(b)(6). Plaintiff asserts that a 12(b)(6) motion to dismiss must be filed

before any responsive pleadings and points out that WCSA’s answer “appears on the docket

before th[e] 12(b)(6) motion.” Pl. Opp. at 3.       Despite the docket order, the Court notes that

WCSA filed its answer and 12(b)(6) motion on the same day, and because the answer responds

only to Counts I, II, and VI, the Court will consider dismissal of Counts III, IV, V, and VII under

Rule 12(b)(6). 2




1     Defendants District of Columbia and Officer Singh have answered the amended
complaint, and discovery is underway.

2       Regardless of whether the Court considers dismissal for failure to state a claim under
Rule 12(b)(6) or treats WCSA’s motion as one for judgment on the pleadings pursuant to Rule
12(c), the applicable standard of review remains the same. See Longwood Vill. Rest., Ltd. v.
Ashcroft, 157 F. Supp. 2d 61, 66–67 (D.D.C. 2001) (“The standard of review for . . . a [Rule
12(c)] motion is essentially the same as the standard for a motion to dismiss brought pursuant to
Federal Rule of Civil Procedure 12(b)(6).”).

                                                3
            B. Rule 12(b)(6)

        “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); accord

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the

two principles underlying its decision in Twombly: “First, the tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal conclusions.”

Ashcroft, 129 S. Ct. at 1949. And “[s]econd, only a complaint that states a plausible claim for

relief survives a motion to dismiss.” Id. at 1950.

        A claim is facially plausible when the pleaded factual content “allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id., quoting Twombly, 550 U.S. at 556.

A pleading must offer more than “labels and conclusions” or a “formulaic recitation of the

elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice,”

id.

        When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in plaintiff’s favor, and the Court should grant 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). Nevertheless, the Court need not accept inferences drawn by the plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the Court accept



                                                   4
plaintiff’s legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider

only “the facts alleged in the complaint, documents attached as exhibits or incorporated by

reference in the complaint, and matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted).

   III.      ANALYSIS

             A. Plaintiff’s Gross Negligence Claim

          In plaintiff’s amended complaint, he alleges claims for both negligence (Count II) and

gross negligence (Count III). Am. Compl. at 7–8. As a general rule, however, “[t]he law of the

District of Columbia does not recognize degrees of negligence.” Warner v. Capital Transit Co.,

162 F. Supp. 253, 256 (D.D.C. 1958), citing Atchison v. Wills, 21 App. D.C. 548, 561 (D.C. Cir.

1903). Plaintiff asserts that because courts in the District of Columbia have distinguished

between gross negligence and ordinary negligence in particular instances, “gross negligence,”

necessarily, “is and should be a separate claim . . . because gross negligence calls for a higher

degree of deviation from the standard of care and a wanton disregard for the rights and safety of

others.” Pl. Opp. at 5. In support of this argument, plaintiff relies on District of Columbia v.

Walker, 689 A.2d 40 (D.C. 1997), a decision by the D.C. Court of Appeals that sets forth

separate definitions for gross negligence and ordinary negligence. District of Columbia v.

Walker, 689 A.2d 40, 44–45 (D.C. 1997). Walker, however, is inapplicable because the decision

was based on a statute that is not at issue in this case. In Walker, the D.C. Court of Appeals was

tasked with defining gross negligence as that term is used in section 1-1212 of the District of

Columbia Employee Non-Liability Act, D.C. Code § 1-1212 (1981), recodified as D.C. Code §

2-412. Id. at 44. Section 1-1212 permits recovery in claims against the District of Columbia



                                                5
arising out of the operation of a police car or an emergency vehicle, but only where the plaintiff

establishes that the defendant acted with “gross negligence.” Id. at 44–45. As such, the Court

distinguished gross negligence from ordinary negligence because the statute required such a

distinction, not because the tort of gross negligence is itself a separate basis of liability under

District of Columbia law.

       Thus, under District of Columbia law, courts have traditionally analyzed whether a

defendant acted with gross negligence only in limited circumstances where gross negligence is a

specific element of a claim or defense, see, e.g., Walker, 689 A.2d at 44–45, or for equitable

reasons, see, e.g., Carleton v. Winter, 901 A.2d 174, 181–82 (D.C. 2006) (holding that where an

exculpatory clause in a contract limited a party’s liability for negligence, a plaintiff could

nevertheless proceed on a theory of gross negligence as a matter of “public policy to discourage

aggravated wrongs”) (internal quotation marks and citations omitted).

       Here, plaintiff has already alleged a negligence claim, and considering that gross

negligence is neither a specific element to any claim or defense at issue in this litigation, the

Court defers to the general rule in the District of Columbia against recognizing degrees of

negligence and will dismiss as duplicative plaintiff’s claim for gross negligence (Count III) as a

separate basis of liability.   Plaintiff’s claim against WCSA for negligence (Count II) will

proceed.

           B. Plaintiff’s Claim for Civil Rights Violations

       Plaintiff alleges that defendants caused him to be subjected to a deprivation of rights,

privileges, and immunities secured by: (1) 42 U.S.C. § 1983; (2) 18 U.S.C. §§ 241, 242, and 245;

and (3) D.C. Code § 4–176. Plaintiff’s claims under 18 U.S.C. §§ 241, 242, and 245 and

pursuant to D.C. Code § 4–176 will be summarily dismissed, however, as there is no private



                                                6
right of action under these criminal statutes. 3 As such, this opinion addresses only plaintiff’s

claim under 42 U.S.C. § 1983.

               1. Plaintiff’s Section 1983 Claim

       Plaintiff alleges that WCSA is directly and vicariously liable under 42 U.S.C. § 1983 for

violations of his constitutional rights under the Fourth and Eighth Amendments of the U.S.

Constitution. Plaintiff appears to proceed on a theory of municipality liability on the basis that

WCSA is “established as an independent authority of the District government.” 4 Am. Compl.

¶ 6. According to plaintiff, WCSA is directly liable for Officer Singh’s alleged misconduct

because he was acting “pursuant to [WCSA’s] employment policies and procedures,” and

WCSA is vicariously liable for “the actions of Defendant Officer Singh under the doctrine of

respondeat superior.” Am. Compl. ¶¶ 34, 37. Under section 1983, however, a plaintiff may not

recover under a theory of vicarious liability. Monell v. Dep’t of Social Svcs., 436 U.S. 658, 690–

91 (1978) (“[A] municipality cannot be held liable under § 1983 on a respondeat superior

theory”). As such, the Court addresses only whether plaintiff has pled sufficient facts to state a

claim against WCSA for direct liability.


3       See Johnson v. Williams, 699 F. Supp. 2d 159, 164 n.5 (D.D.C. 2010), citing Keyter v.
Bush, 2005 WL 375623, at *1 (D.C. Cir. Feb. 16, 2005) (affirming dismissal of claims filed
“pursuant to 18 U.S.C. §§ 4, 241, and 242, because, as criminal statutes, these statutes do not
convey a private right of action”), cert. denied, 546 U.S. 875 (2005); District of Columbia v.
White, 442 A.2d 159, 163 (D.C. 1982) (noting that evidence of a violation of D.C. Code 4-176
“constituted further evidence of negligence”); see also Hunter v. District of Columbia, 384 F.
Supp. 2d 257, 260 n.1 (D.D.C. 2005) (rejecting pro se plaintiff’s assertion of subject matter
jurisdiction based on criminal statutes).

4       For the purposes of this motion, the Court accepts as true plaintiff’s allegation that
WCSA is a state actor that may be subject to liability under 42 U.S.C. § 1983. Whether WCSA
is a municipality or a private entity does not affect the analysis here, though, because courts have
applied the Monell principles limiting section 1983 liability to private institutions that employ
quasi-state actors. See, e.g., Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50, 62 (D.D.C.
2007).
                                                 7
       Section 1983 provides that “[any] person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured . . . .” 42 U.S.C. § 1983. To state a claim for

municipality liability under section 1983, a plaintiff must allege both (1) “a predicate

constitutional violation” and (2) “that a custom or policy of the municipality caused the

violation.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003), citing Collins

v. Harker Heights, 503 U.S. 115, 124 (1992). WCSA, then, is subject to liability under section

1983 only “when an official policy or custom causes the [plaintiff] to suffer a deprivation of a

constitutional right,” Carter v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986), and that

policy or custom must itself be the moving force behind the alleged constitutional violation, id.,

citing Monell, 436 U.S. at 694; see also Pembauer v. City of Cincinnati, 475 U.S. 469, 483

(1986) (“[M]unicipal liability under § 1983 attaches where – and only where – a deliberate

choice to follow a course of action is made from among various alternatives by the official or

officials responsible for establishing final policy with respect to the subject matter in question.”);

Okla. City v. Tuttle, 471 U.S. 808, 817 (1985) (requiring a plaintiff to show a course deliberately

pursued by the city establishing an affirmative link between the city’s policy and the alleged

constitutional violation).

       WCSA does not dispute that plaintiff has alleged a “predicate constitutional violation.”

The sole question for the Court is, does the complaint state a “claim that a custom or policy of

the municipality caused the violation”? Baker, 326 F.3d at 1306. Although a complaint “need

not plead law or match facts to every element of a legal theory,” Sparrow v. United Air Lines,



                                                  8
Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000) (citations omitted), it must “include some factual

basis for the allegation of a municipal policy or custom,” Atchinson v. District of Columbia, 73

F.3d 418, 422 (D.C. Cir. 1996). And, as other courts in this district have concluded, the fact that

the case arises under section 1983 does not relieve a plaintiff of his obligation to satisfy the

criteria established in Iqbal and Twombly. Smith v. District of Columbia, 674 F. Supp. 2d 209,

214 n.2 (D.D.C. 2009) (sufficiency of a plaintiff’s allegations of Monell liability must be tested

under the standards set out in Iqbal and Twombly). 5 The law is clear that plaintiff must allege an

“affirmative link” between the policy and the injury; the municipal policy must be alleged to be

the “moving force” behind the violation. Baker, 326 F.3d at 1306.

       Turning to the complaint, the Court finds plaintiff’s mere allegation that Officer Singh

acted pursuant to WCSA “employment policies or procedures” insufficient to provide an

“affirmative link” between the policy and the injury. Plaintiff has therefore failed to allege that

WCSA was the “moving force” behind the violation. Accordingly, the Court will dismiss Count

IV with respect to Defendant WCSA.




5       See also Canas v. City of Sunnyvale, No. 08–5771, 2011 WL 1743910, at *5–6 (N.D.
Cal. Jan. 19, 2011) (“Other than alleging that the officers’ EMT training was inadequate [to]
enable them to assist the Decedent after he was shot, Plaintiffs do not explain in detail how the
City’s alleged policies or customs are deficient, nor do they explain how the alleged policies or
customs caused harm to Plaintiffs and the Decedent. At most, the allegations permit the Court to
infer a mere possibility of misconduct on behalf of the City.”) (internal quotation marks and
citations omitted); In re Dayton, 786 F. Supp. 2d 809, 822–23 (S.D.N.Y. 2011) (“[T]he
Amended Complaint states that the City of Middletown has, on information and belief,
‘negligently failed to properly administer its agencies[,] departments[,] personnel [,] and the like
in regard to the maintenance, design, supervision and control over those accused and detained . .
. .’ This boilerplate recitation of the elements of a Monell claim is insufficient to survive a
motion to dismiss.”) (internal citations omitted).


                                                 9
            C. Plaintiff’s Abuse of Process Claim

        Plaintiff alleges that Officer Singh “used criminal process against [him] in order to

intimidate [him] from asserting his rights against the Defendants and in order to cover up the

wrongdoing of Defendant and to avoid civil and criminal liability for Defendant’s acts.” Am.

Compl. ¶ 40. According to plaintiff, Officer Singh conduct was “malicious[], willful[], and

wanton[]” and lacked probable cause. Id. ¶ 41. Plaintiff alleges that WCSA is “responsible

under the doctrine of respondeat superior as Defendant Officer Singh was working within his

scope of employment . . . .” Id. ¶ 43. WCSA asserts that it cannot be directly liable for abuse of

process because it never initiated criminal proceedings against plaintiff. Plaintiff, however, does

not allege that WCSA is directly liable for abuse of process, and the fact that WCSA did not

institute criminal proceedings against plaintiff is irrelevant to the question of vicarious liability. 6

        “The essence of the tort of abuse of process is the use of the legal system ‘to accomplish

some end which is without the regular purview of the process, or which compels the party

against whom it is used to do some collateral thing which he could not legally and regularly be

required to do.’” Scott v. District of Columbia, 101 F.3d 748, 755 (D.C. Cir. 1996), quoting

Bown v. Hamilton, 601 A.2d 1074, 1079 (D.C. 1992). “The critical concern in abuse of process

cases is whether process was used to accomplish an end unintended by law, and whether the suit

was instituted to achieve a result not regularly or legally obtainable.” Morowitz v. Marvel, 423

A.2d 196, 198 (D.C. 1980). However, “the fact that a person acts spitefully, maliciously, or with

an ulterior motive in instituting a legal proceeding is insufficient to establish abuse of process.”

Scott, 101 F.3d at 755–56 (finding that the plaintiff failed to state a claim for abuse of process




6       WCSA fails to address the issue of vicarious liability at all.
                                                   10
when he did not contend that “the filing of criminal charges was intended to pressure him into

taking any action or prevent him from taking action, or to achieve any other collateral purpose”).

        The Court finds that the facts alleged in the amended complaint are sufficient to state an

abuse of process claim. Plaintiff has alleged that criminal proceedings were filed against him “in

order to intimidate [him] from asserting his rights against the Defendants.” Am. Compl. ¶ 40.

Intimidation is the collateral purpose that distinguishes these facts from those in Scott v. District

of Columbia, 101 F.3d 748 (D.C. Cir. 1996). Accordingly, plaintiff may proceed on a theory that

WCSA is vicariously liable for Officer Singh’s actions because he has pled “sufficient factual

matter” to state a claim for abuse of process “‘that is plausible on its face.’” Iqbal, 556 U.S. 662,

129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 570. The Court will deny WCSA’s motion to

dismiss Count V of the amended complaint.

            D. Plaintiff’s False Arrest and Imprisonment Claim

        Plaintiff alleges that “Defendants caused [him] to be arrested and imprisoned” “without

just cause or reasonable belief that he committed a crime.” Am. Compl. ¶ 52. He further alleges

that such acts constitute the torts of false arrest and false imprisonment and that WCSA is

“responsible under the doctrine of respondeat superior as Defendant Officer Singh was working

within his scope of employment . . . .” Id. ¶ 53. WCSA asserts that, as a matter of law, it cannot

be held vicariously liable for an act which its employee is required by statute and regulation to

perform as a Metropolitan Police officer. WCSA’s Mem. in Supp. of Mot. to Dismiss at 6. The

problem with WCSA’s reasoning, however, is that it assumes that Officer Singh had probable

cause to arrest plaintiff.




                                                 11
       To establish a claim for false arrest under District of Columbia law, a plaintiff must

demonstrate that he was detained unlawfully. 7 See Enders v. District of Columbia, 4 A.3d 457,

461 (D.C. 2010) (“The gravamen of a complaint for false arrest or false imprisonment is an

unlawful detention.”). The detention of a plaintiff by a defendant police officer is lawful if the

officer effected the detention constitutionally. See Barnhardt v. District of Columbia, 723 F.

Supp. 2d at 214–15 (noting that an officer needs probable cause to make an arrest).

Alternatively, regardless of whether the detention passes constitutional muster, “a police officer

may justify an arrest by demonstrating that (1) he or she believed, in good faith, that his or her

conduct was lawful, and (2) this belief was reasonable.” Weishapl v. Sowers, 771 A.2d 1014,

1020–21 (D.C. 2001) (internal quotation marks and citation omitted).

       Here, plaintiff alleges that Officer Singh attacked and viciously beat him without

provocation and then falsely arrested him in order “to cover up the wrongdoing of Defendant and

to avoid civil and criminal liability for Defendant’s acts.” Am. Compl. ¶ 40. WCSA points to

no facts in the complaint that would demonstrate that Officer Singh had probable cause to arrest

plaintiff or, if he lacked probable cause, that would demonstrate that Officer Singh had an

objectively reasonable, good faith belief that his conduct was lawful. Although the factual

record may ultimately clarify the circumstances surrounding plaintiff’s encounter with Officer

Singh, to survive a motion to dismiss a complaint need only “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 662, 129



7       Although plaintiff alleges in his complaint that WCSA is liable for “false arrest and
imprisonment,” Am. Compl. ¶ 53, the Court treats that claim as one simply for false arrest, since
“[t]here is ‘no real difference as a practical matter between false arrest and false imprisonment.’”
Barnhardt v. District of Columbia, 723 F. Supp. 2d 197, 214 (D.D.C. 2010), quoting Shaw v.
May Dep't Stores Co., 268 A.2d 607, 609 n.2 (D.C. 1970).


                                                  12
S.Ct. at 1949, quoting Twombly, 550 U.S. at 570. Applying that minimal standard of review

here, the Court concludes that the plaintiff has adequately alleged that he was falsely arrested by

Officer Singh on June 19, 2010. Accordingly, WCSA’s motion to dismiss Count VII for failure

to state a claim will be denied.

   IV.      CONCLUSION

         For the foregoing reasons, the Court will grant in part and deny in part WCSA’s motion

to dismiss for failure to state a claim upon which relief may be granted [Dkt. #19]. Accordingly,

the Court will dismiss Count III (Gross Negligence) and Count IV (Violations of Plaintiff’s Civil

Rights) with regard to WCSA with prejudice. However, the Court will deny the motion as to

Count V (Abuse of Process) and Count VII (False Arrest and Imprisonment) and these claims

will proceed.

         A separate order will issue.




                                             AMY BERMAN JACKSON
                                             United States District Judge

DATE: February 27, 2012




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