                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

SHAHID SHEIKH,
       Plaintiff
       v.                                                  Civil Action No. 14-316 (CKK)
DISTRICT OF COLUMBIA, et al.,
       Defendants

                                  MEMORANDUM OPINION
                                     (January 5, 2015)

       This action arises from injuries that Plaintiff Shahid Sheikh suffered at the hands of

individuals who are not parties to this action in a public space near several Alcohol Beverage

Control (“ABC”) licensees in the District of Columbia. Plaintiff brought this action against

several defendants in this Court: the District of Columbia; Metropolitan Police Department

officers Nicole Spady and Gregory Curry (“Officer Defendants”); and three Alcohol Beverage

Control licensed establishments (“ABC Establishment Defendants”), YFE, Inc. (operating 18th

Street Lounge), HAK LLC (operating Midtown Lounge), and Inner Circle 1223, LLC (operating

Dirty Martini Inn Bar). 1 Essentially, Plaintiff alleges that Officer Spady and Officer Curry failed

to prevent Plaintiff from being injured by third parties and asserts that the District of Columbia

and the ABC Establishment Defendants are liable as well for the injuries that resulted. Plaintiff

asserts causes of action for negligence and for violations of the Fourth, Fifth, Ninth, and

1
  With respect to the ABC Establishment Defendants, Plaintiff’s original complaint listed three
unnamed defendants: “ABC Licensed Bar No. 1,” “ABC Licensed Bar No. 2,” and “ABC
Licensed Bar No. 3.” Each was identified with the address “1200 block of Connecticut Avenue
NW, Washington, D.C.” Plaintiff also alleged that these three establishments had arranged for a
reimbursable detail of the Metropolitan Police Department the evening of the incident in
question. No further identification of the bars was provided. Plaintiff later amended his
complaint, with the Court’s permission, to name the actual entities referenced above. Because the
Amended Complaint did not deviate from the original complaint in any other respects, the Court
did not require the refiling of the motions to dismiss that were pending at that time. See Minute
Order dated June 26, 2014.

                                                 1
Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983. 2

Specifically, Plaintiff asserts two section 1983 claims against the Officer Defendants (Count I,

which alleges a failure to protect Plaintiff, and Count II, which alleges a conspiracy to cover up

the failure to protect Plaintiff); a section 1983 claim against the District of Columbia (Count III);

and a negligence claim against each defendant (Count IV).

          The District of Columbia, the Officer Defendants, and YFE each move to dismiss the

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon

which relief may be granted. Presently before the Court are the District of Columbia’s [4] Motion

to Dismiss, the Officer Defendants’ [13] Motion to Dismiss, and YFE’s [28] Motion to Dismiss

the Amended Complaint. 3 Upon consideration of the pleadings, 4 the relevant legal authorities,


2
 Plaintiff references 42 U.S.C. § 1988 once in the Amended Complaint. Am. Compl. at 2. But
section 1988 does not provide for an independent cause of action. McManus v. District of
Columbia, 530 F.Supp.2d 46, 76 (D.D.C. 2007) (“[T]hat statute governs the jurisdiction and
procedure of federal courts with respect to civil rights claims and does not create a cause of
action.”).
3
  Also before the Court is Plaintiff’s [8] Motion for Leave to File Sur-Reply Memorandum,
which the Court grants because it finds the Sur-Reply of assistance in resolving the issues before
the Court.
4
    The Court’s consideration has focused on the following documents:
     • Amended Complaint, ECF No. 20 (“Am. Compl.”);
     • Def. District of Columbia’s Mot. to Dismiss, ECF No. 4 (“District of Columbia’s Mot.”);
     • Pl. Sheikh’s Opposition to the District of Columbia’s Mot. to Dismiss, ECF No. 6 (“Pl.’s
        Opp’n to D.C.’s Mot.”);
     • Def. District of Columbia’s Reply to Pl.’s Opp’n to Def.’s Mot. to Dismiss, ECF No. 7
        (“District of Columbia’s Reply”);
     • Pl. Shahid Sheikh’s Surreply to the District of Columbia’s Reply to Plaintiff’s Opp’n to the
        District’s 12(b)(6) Mot. to Dismiss, ECF No. 8 at 6 (“Pl.’s Surreply re: D.C.’s Mot.”);
     • Def. District of Columbia’s Supplemental Memorandum of Points and Authorities in
        Support of its Mot. to Dismiss, ECF No. 12 (“District of Columbia’s Supp. Mem.”);
     • Mot. to Dismiss of Defs.’ Nicole Spady and Gregory Curry, ECF No. 13 (“Officer Defs.’
        Mot.”);
     • Pl. Shahid Sheikh’s Opp’n to Defs.’ Nicole Spady’s and Gregory Curry’s 12(b)(6) Mot. to
        Dismiss, ECF No. 14 (“Pl.’s Opp’n to Officer Defs.’ Mot.”);

                                                  2
and the record as a whole, the Court GRANTS each motion to dismiss. The Court concludes that,

with respect to each defendant, the Amended Complaint fails to state a claim upon which relief

may be granted. Accordingly, the Court dismisses every claim against the District of Columbia,

the Officer Defendants, and YFE. In addition, for the same reasons that the Court dismisses the

negligence claim against YFE, the Court sua sponte dismisses the claims against the two bar

defendants, HAK LLC and Inner Circle 1223, LLC, that have not entered an appearance.

Because there are no claims remaining, the Court DISMISSES this action in its entirety.


                                       I. BACKGROUND

       For the purposes of these motions, the Court accepts as true the well-pleaded allegations

in Plaintiff’s Amended Complaint. The Court does “not accept as true, however, the plaintiff's

legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm.

on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).

       In the early morning hours of February 27, 2011, Plaintiff and his companions exited the

Current Lounge in the 1200 block of Connecticut Avenue, N.W., in Washington, D.C.

Am. Compl., Prelim. Statement of Facts at 4; see id. ¶ 1. Upon exiting the Current Lounge,

Plaintiff and a companion were confronted by and threatened by several people who had exited a

nearby ABC licensed establishment. Id. ¶ 7. Meanwhile, three ABC licensed establishments –

YFE, Inc. (operating 18th Street Lounge), HAK LLC (operating Midtown Lounge), and Inner


  •   Def.’s Nicole Spady’s and Gregory Curry’s Reply to Pl.’s Opp’n to Mot. to Dismiss, ECF
      No. 31 (“Officer Defs.’ Reply”)
  • Def. YFE Inc.’s Mot. to Dismiss the Am. Compl., ECF No. 28 (“YFE’s Mot.”);
  • Pl.’s Opp’n to Def. YFE’s Mot. to Dismiss, ECF No. 29 (“Pl.’s Opp’n to YFE’s Mot.”);
      and
  • Def. YFE, Inc’s Reply in Supp. of its Mot. to Dismiss, ECF No. 30 (“YFE’s Reply).
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).

                                                3
Circle 1223, LLC (operating Dirty Martini Inn Bar) – had arranged with the Metropolitan Police

Department for a reimbursable detail, pursuant to D.C. Code § 25-798, that was ongoing at the

time of these events. Id. ¶ 3. A reimbursable detail is “an assignment of MPD officers to patrol

the surrounding area of an [ABC] establishment for the purpose of maintaining public safety,

including the remediation of traffic congestion and the safety of public patrons, during their

approach and departure from the establishment.” D.C. Code § 25-798. Officers Spady and Curry

were assigned to the reimbursable detail, serving as uniformed police officers in Plaintiff’s

vicinity at the time when Plaintiff exited the Current Lounge. Am. Compl. ¶ 1; id., Prelim.

Statement of Facts at 4. Plaintiff and his companion approached Officers Spady and Curry at

their “duty station” and pointed out people lurking menacingly and asked the officers to protect

Plaintiff and his companion from these assailants. Id. ¶ 8. Officers Spady and Curry allegedly

refused Plaintiff’s pleas for protection. Id. ¶ 10. Plaintiff was then assaulted by these would-be

assailants and suffered severe permanent and painful injuries. Id. ¶ 11.

       After the incident, on February 27, 2011, Officers Spady and Curry filed a police report

without referencing any failure to intervene by the Officer Defendants. Id. ¶ 15; see District of

Columbia’s Supp. Mem., Ex. 1 at 1. Plaintiff made a written complaint to the Metropolitan

Police Department, “pointing out the substandard conduct of Defendants Spady and Curry and

their violations of his constitutional rights.” Am. Compl. ¶ 16. Plaintiff does not indicate when

this complaint was submitted or to whom it was submitted; nor does Plaintiff provide a copy of

the complaint. See id. It does not appear that this complaint corresponds to any of the police

reports provided by the District of Columbia or that the complaint is referenced in those reports.

See generally District of Columbia’s Supp. Mem., Ex. 1. Subsequently, Officers Spady and Curry

executed a supplemental report, which did not reference any failure to intervene by the officers.



                                                 4
Am. Compl. ¶ 17. The District of Columbia has provided two reports that could match the

description of the supplemental report in the Amended Complaint. The first is a “Supplement

Report,” dated March 1, 2011, which states that Plaintiff visited the police station to report

additional facts regarding the incident. See District of Columbia’s Supp. Mem., Ex. 1 at 10. The

second is a “Supplement Report,” dated March 10, 2011, which recounts the events surrounding

the incident. See id., Ex. 1 at 13-17. Neither of these supplement reports references any actions

by police officers before or during the incident. See id., Ex. 1 at 9-10, 13-17. Later, on April 3,

2013, Officer Spady testified in a criminal proceeding that she and Officer Curry had not refused

Plaintiff’s request to intervene and further testified that the officers had “thoroughly canvassed

the zone” and “properly ruled out the presence of any person posing a risk of an imminent attack

upon the Plaintiff.” Am. Compl., Prelim. Statement of Facts at 7, ¶ 18. Finally, the District of

Columbia did not investigate any alleged wrongdoing by Officers Spady and Curry. Id.

¶¶ 23, 25. Plaintiff then filed this action in this Court. 5


                                       II. LEGAL STANDARD

        The District of Columbia, the Officer Defendants, and YFE move to dismiss for failure to

state a claim. Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss

a complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.” Fed. R.

Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,


5
 The Court reserves further presentation of the facts and the procedural history for the discussion
of the individual issues raised by the motions currently before the Court.

                                                     5
550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may consider “the

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

complaint,” or “documents upon which the plaintiff’s complaint necessarily relies even if the

document is produced not by the plaintiff in the complaint but by the defendant in a motion to

dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F.Supp.2d 117, 119

(D.D.C. 2011) (citations omitted).


                                         III. DISCUSSION

        Plaintiff brings section 1983 claims against the Officer Defendants and against the

District of Columbia, as well as negligence claims against all of the defendants, including the

three ABC Establishment Defendants. The Officer Defendants, the District of Columbia, and

YFE each move to dismiss all claims against them for failure to state a claim pursuant to

12(b)(6). Based on the analysis below, the Court concludes that the Amended Complaint fails to

state a claim upon which relief may be granted with respect to any of the defendants in this

action, including those that have not appeared.


A. Section 1983 Claims Against the Officer Defendants
        Plaintiff brings two claims against the Officer Defendants pursuant to section 1983. First,

Plaintiff claims that the Officer Defendants failed to protect Plaintiff in violation of Plaintiff’s

constitutional rights. See Am. Compl. ¶¶ 1-11. Second, Plaintiff alleges that the Officer

Defendants conspired to cover up their failure to protect him in violation of his constitutional

rights. See id. ¶¶ 12-19. The Officer Defendants move to dismiss both of these claims pursuant to

Rule 12(b)(6), arguing that the complaint fails to state a claim under section 1983. In doing so,

                                                   6
the Officer Defendants also incorporate by reference the relevant arguments of the District of

Columbia in its motion to dismiss, specifically the argument that Plaintiff failed to set forth a

facially plausible constitutional claim. See Officer Defs.’ Mot. at 3. The Court addresses the

Officer Defendants’ arguments with respect to each section 1983 claim against them in turn.


   1. Failure to Protect Claim (Count I)
       Plaintiff claims that the conduct of the Officer Defendants violated his constitutional

rights. See Am. Compl. ¶¶ 10-11. He claims that the defendants, as a whole, violated his rights

pursuant to the Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States

Constitution. See id. ¶ a. But he does not link the alleged conduct of the Officer Defendants to

the violation of his rights pursuant to these four amendments. See id. ¶¶ 1-11. The Officer

Defendants argue, as does the District of Columbia, that Plaintiff’s rights have not been violated

under any of these amendments.

       With respect to the Fourth, Ninth, and Fourteenth Amendments, Plaintiff does not

respond to the arguments of either the Officer Defendants or the District of Columbia. Therefore,

the Court concludes that Plaintiff has conceded that neither the Officer Defendants nor the

District of Columbia have violated Plaintiff’s rights with respect to these three amendments.

Nonetheless, in the interest of completeness, a succinct analysis demonstrates that Plaintiff has

failed to state a claim with respect to these amendments. Because Plaintiff does not allege that

the Officer Defendants conducted any search or seizure of him or of his property or issued a

warrant for Plaintiff’s arrest, the Amended Complaint does not adequately allege a violation of

the Fourth Amendment. See Fernandez v. California, 134 S. Ct. 1126, 1131-32 (2014) (“The

Fourth Amendment prohibits unreasonable searches and seizures and provides that a warrant

may not be issued without probable cause … .”). Because “the Ninth Amendment is not a source


                                                  7
of substantive rights, unless it is coupled with the denial of other fundamental rights,” Slaby v.

Fairbridge, 3 F.Supp.2d 22, 30 (D.D.C. 1998), Plaintiff’s reference to the Ninth Amendment is

superfluous. Given that the Court concludes in this section that Plaintiff has not adequately

alleged the violation of his rights with respect to any other amendment, he has similarly not

adequately alleged violation of his rights pursuant to the Ninth Amendment. Plaintiff’s

Fourteenth Amendment claim fails because it has long been settled that the Fourteenth

Amendment does not apply to the District of Columbia. 6 See Bolling v. Sharpe, 347 U.S. 497,

499 (1954) supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955).

       However, Plaintiff does respond to the defendants’ arguments concerning Plaintiff’s Fifth

Amendment claims. The Officer Defendants argue that the Amended Complaint does not

adequately allege a violation of the Fifth Amendment. Plaintiff responds that “the Complaint

adequately states a plausible Fifth Amendment, substantive due process claim under the state

endangerment exception to DeShaney [v. Winnebago County Department of Social Services].”

Pl.’s Opp’n to D.C.’s Mot. at 8. The Court agrees with the Officer Defendants.

       “As a general matter, a State’s failure to protect an individual from private violence, even

in the face of a known danger, ‘does not constitute a violation of the Due Process Clause.’ ”

Butera v. District of Columbia, 235 F.3d 637, 647 (D.C. Cir. 2001) (quoting DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989)). But “in ‘certain limited

circumstances[,] the Constitution imposes upon the State affirmative duties of care and

protection with respect to particular individuals.’ ” Id. quoting (DeShaney, 489 U.S. at 198). One


6
 While it is true that the “Equal Protection Clause of the Fourteenth Amendment applies to the
District of Columbia through the Due Process Clause of the Fifth Amendment,” Dixon v. District
of Columbia, 666 F.3d 1337, 1339 (D.C. Cir. 2011), Plaintiff has not alleged any facts suggesting
discrimination against him, nor does he mention equal protection even once. He has, therefore,
not alleged an equal protection violation.

                                                  8
such set of circumstances is state endangerment. 7 See id. at 648. “[U]nder the State

endangerment concept, an individual can assert a substantive due process right to protection by

the District of Columbia from third-party violence when District of Columbia officials

affirmatively act to increase or create the danger that ultimately results in the individual’s harm.”

Butera, 235 F.3d at 651. Moreover, “Plaintiff must also show that the District of Columbia’s

conduct was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary

conscience.’ ” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). If a

plaintiff has shown that District of Columbia officials have acted to “increase or create the

danger,” that plaintiff can show that the official’s conduct “ ‘shocked the conscience’ by meeting

the lower threshold of ‘deliberate indifference.’ ” Id. at 652.

       In support of his argument that the Officer Defendants’ conduct qualifies for the state

endangerment exception, Plaintiff relies on the fact that, while on duty pursuant to the

reimbursable detail program, Officers Spady and Curry “ignored Plaintiff’s pleas for protection

and directed him to move away from their duty station.” Am. Compl., Prelim. Statement of Facts

at 6; see Pl.’s Opp’n to D.C.’s Mot. at 7. 8 Plaintiff argues that, “[b]y affirmatively ordering

Sheikh to move away from the safety of the officers’ duty station and towards the Aslamis [the

assailants] and others who had gathered around the duty station while Sheikh was asking for help

and were lying in wait to carry out their threatened assault, the officers affirmatively created, or
7
  The other primary exception “arises when the State ‘takes a person into its custody and holds
him there against his will,’ hence depriving him of liberty.” Butera, 235 F.3d at 648. But the
exception is narrowly construed in this Circuit. Id. “Mere police interaction with or assistance to
an individual, for example, does not necessarily amount to custody.” Id. Plaintiff does not allege
that this exception applies, and the facts presented in the Amended Complaint would not support
the conclusion that Plaintiff was ever in state custody.
8
  In responding to the Officer Defendants’ Motion to Dismiss, Plaintiff incorporates the
arguments from his Opposition to the District of Columbia’s Motion to Dismiss, see Pl.’s Opp’n
to Officer Defs.’ Mot. at 6. He does not include a separate response with respect to the failure to
protect claim, pursuant to section 1983, against the Officer Defendants.

                                                  9
the very least increased danger to Sheikh.” Id. at 7-8. As an initial matter, the facts necessary to

support this argument are not in the Amended Complaint. Specifically, Plaintiff never alleges that

Officers Spady and Curry directed him “towards the Aslamis” or that the assailants had

“gathered around the duty station.” 9 Plaintiff only alleges that the putative assailants “were

lurking menacingly nearby,” Am. Compl. ¶ 8, and that Officers Spady and Curry “ignored

Plaintiff’s pleas for protection and directed him to move away from their duty station,” id.,

Prelim. Statement of Facts at 6. Because Plaintiff may not amend his complaint through his

Opposition, the Court addresses only those facts pleaded in the Amended Complaint. See

Middlebrooks v. Godwin Corp., 722 F.Supp.2d 82, 87 n.4 (D.D.C. 2010), aff’d, 424 Fed. App’x

10 (D.C. Cir. 2011). Based on these facts, Plaintiff cannot satisfy the requirements stated in

Butera. Given that the would-be assailants already were “lurking menacingly” before Officers

Spady and Curry took any action or failed to act, Plaintiff’s argument that the officers “created”

the danger fails on its face. The facts alleged also do not support an inference that the officers

increased the danger; as alleged, the officers merely refused to protect Plaintiff, exposing him to

the risk of injury that already existed. 10

        Plaintiff’s own allegations confirm this analysis. Plaintiff alleges that the Officer

Defendants “ignored and refused Plaintiff’s pleas for protection and otherwise exposed him to
9
  It is unclear what Plaintiff means by duty station. However, the Court notes that, if Plaintiff is
attempting to suggest that the Officers operated anything like a fixed post, this appears to
contradict the description of the reimbursable detail program that Plaintiff presented to the Court.
See Pl.’s Opp’n to D.C.’s Mot. at 33, ABC Reimbursable Detail Post Order (“Members shall
proactively patrol on foot their designated areas and take police action as needed.”; “No member
shall stand immediately outside the doors of an establishment or patrol the interior of the
establishment.”).
10
  Even if the Court considered the unalleged facts that Plaintiff references in his Opposition, the
Court would arrive at the same conclusion – that Plaintiff has not stated a state endangerment
claim. For the reasons stated below, if the would-be assailants were surrounding the duty station,
and the officers directed Plaintiff towards them, the Court would not conclude that the facts
plausibly show that the officers had created or increased the danger to Plaintiff.

                                                  10
risk of injury from the imminent harm near their duty station.” Am. Compl. ¶ 10. While Plaintiff

cloaks this section 1983 claim in the language of “state endangerment,” the claim, as alleged,

amounts to no more than the claim that, by refusing to act, the Officers “exposed him” to the risk

of injury – in other words, that they exposed him to a risk that already existed through no action

of the officers. If these circumstances were enough to constitute state endangerment, the set of

“certain limited circumstances” in which “the Constitution imposes upon the State affirmative

duties of care and protection with respect to particular individuals” would swallow the general

rule that “a State’s failure to protect an individual from private violence, even in the face of a

known danger, ‘does not constitute a violation of the Due Process clause.’ ” Butera, 235 F.3d at

647, 648 (citation omitted). The circumstances here do not qualify for the state endangerment

exception.

       Because it is necessary to satisfy both prongs of the test laid out in Butera in order to

state a state endangerment claim, see 235 F.3d at 651, the conclusion that the officers neither

created nor increased the danger to Plaintiff is enough to find that Plaintiff has failed to state a

plausible state endangerment claim. In any event, the Amended Complaint also does not satisfy

the second prong of the test: the facts Plaintiff alleges do not plausibly satisfy “the lower

threshold of deliberate indifference.” Id. at 652 (quotation marks omitted). Refusing to protect

Plaintiff and directing him to move away from the “duty station” is not enough to show that

Officers Spady and Curry were deliberately indifferent to his plight. Indeed, this is not a case like

Butera, where the “State [was] in a position where ‘actual deliberation [was] practical’ ” because

of the advance planning necessarily involved in the State’s actions in that case. Id. (quoting

Sacramento, 523 U.S. at 851). Here, the Officers made an on-the-spot decision in the midst of

their patrolling the area outside of several lounges and bars, telling Plaintiff to move away from



                                                  11
the location where they were standing. This decision does not suggest any advance planning by

the officers. This is not a circumstance where police conduct shows deliberate indifference to

state-created dangers.

        Accordingly, the Court concludes that the Amended Complaint does not state a section

1983 claim with respect to the failure of the officers to protect Plaintiff, and the Court dismisses

Count I.


     2. Conspiracy Claim (Count II)
        Plaintiff claims that the Officer Defendants wrongfully conspired to cover up their failure

to protect Plaintiff. See Am. Compl. ¶ 15. Plaintiff claims that this conspiracy unfolded in three

stages: (1) Officers Spady and Curry filed an initial police report regarding the evening incident

that omitted any reference to the officers’ wrongdoing, id. ¶ 15; (2) the officers filed a

supplemental police report “in which they persisted in concealing and covering-up their

wrongdoing, id. ¶ 17; and (3) Officer Spady gave false testimony in a criminal proceeding in

denying that the officers committed the alleged wrongful acts the evening of the incident, id.

¶ 18. 11 The Officer Defendants argue that, first, Plaintiff has not alleged the elements of a

conspiracy violating his constitutional rights and, second, the conspiracy claim is barred by the

intracorporate conspiracy doctrine. The Court agrees with the Officer Defendants that Plaintiff

has not alleged facts stating the elements of a conspiracy, and the Court concludes that it need

not reach the question of the intracorporate conspiracy doctrine’s applicability.

        The Officer Defendants argue that Plaintiff has failed to state a claim for conspiracy.

“[T]he two essential elements of civil conspiracy are (1) ‘an agreement to take part in an



11
  Plaintiff does not claim that the Officer Defendants conspired to fail to protect him. See Am.
Compl. ¶¶ 12-19.

                                                 12
unlawful action or a lawful action in an unlawful manner’; and (2) ‘an overt tortious act in

furtherance of the agreement that causes injury.’ ” Hall v. Clinton, 285 F.3d 74, 82-83 (D.C. Cir.

2002) (quoting Halberstam v. Welch, 705 F.2d 472, 479 (D.C. Cir. 1983)). Plaintiff alleges no

facts that support an inference that Officers Spady and Curry agreed to the alleged cover-up.

Plaintiff does not allege anything with respect to the supposed agreement beyond the conclusory

statement that the Officer Defendants “conspired” to cover up their wrongdoing. Moreover,

while Plaintiff is correct that “[p]roof of a tacit, as opposed to explicit, understanding is sufficient

to show agreement,” Halberstam, 705 F.2d at 477, the filing of the two police reports and the

testimony of Officer Spady, without more, are insufficient to show even a tacit agreement.

Contrast id. at 487 (“The long-running nature of the scheme is also crucial to the inference of

agreement—[the party’s] knowledge and aid over five years makes some kind of accord

extremely likely”).Without such an agreement—explicit or tacit—there can be no conspiracy.

        Because the Court concludes that the Amended Complaint fails to state a claim for

conspiracy in the first instance, the Court need not decide whether the intracorporate conspiracy

doctrine bars this section 1983 claim as well. Cf. Kelley v. District of Columbia, 893 F.Supp.2d

115, 119-20 (D.D.C. 2012) (noting that the D.C. Circuit has not has not ruled on the applicability

of this doctrine to the civil rights context, but concluding that the doctrine applies with respect to

a section 1985 claim on the basis of case law from other Circuits and the decisions of District

courts within this Circuit).

        Lastly, the Court addresses a more basic reason why the conspiracy claim fails. A

conspiracy to cover up wrongdoing is necessarily dependent on wrongdoing having occurred.

Otherwise, there is nothing to cover up. To state a claim for conspiracy to cover up wrongdoing,

Plaintiff must allege sufficient facts to allow a reasonable inference that such wrongdoing



                                                  13
occurred. The Court concludes in the immediately previous section of this opinion that Plaintiff

has not alleged facts sufficient to state a claim pursuant to section 1983. Moreover, the Court

determines, below, that the Amended Complaint fails to state a claim for negligence. Therefore,

Plaintiff cannot, as a matter of logic, state a claim that the officers have conspired to cover up

any underlying wrongdoing.

       Accordingly, the Court concludes that the Amended Complaint does not state a section

1983 conspiracy claim against the Officer Defendants, and the Court dismisses Count II.


B. Section 1983 Claim Against the District of Columbia (Count III)
       Plaintiff claims that the District of Columbia violated his constitutional rights through the

actions of its officers and agents, principally Officers Spady and Curry. Plaintiff claims that the

District of Columbia is liable for the Officer Defendants’ failure to protect Plaintiff while they

were serving on the reimbursable detail, Am. Compl. ¶ 22, and for the Officer Defendants’

conspiracy to cover up their failure to protect Plaintiff, id. ¶ 23. 12 “[I]n considering whether a

plaintiff has stated a claim for municipal liability, the district court must conduct a two-step

inquiry. First, the court must determine whether the complaint states a claim for a predicate

constitutional violation. Second, if so, then the court must determine whether the complaint

states a claim 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). The District of Columbia argues that

Plaintiff’s complaint fails at both steps, and the Court agrees.



12
   Plaintiff does not claim a section 1983 violation by virtue of the failure of officials other than
the Officer Defendants to investigate the alleged police misconduct at question here. See Pl.’s
Opp’n to D.C.’s Mot. at 8-9 (quoting Am. Compl. ¶ 23). Instead, Plaintiff references the failure
to investigate the conduct of the Officer Defendants in order to establish the “policy” or
“custom” of the District of Columbia necessary to state a 1983 claim against the District of
Columbia. See id.

                                                  14
       First, with respect to “whether the complaint states a claim for a predicate constitutional

violation,” the Court’s conclusions regarding the section 1983 claims against the Officer

Defendants resolve this question in the negative. As discussed above, the Court concludes that

the Amended Complaint fails to state a 1983 claim against the Officer Defendants for their

alleged failure to protect Plaintiff and that the Amended Complaint fails to state a claim with

respect to an alleged conspiracy between the Officer Defendants to cover up the underlying

wrongdoing. Because the complaint does not state a claim for a “predicate constitutional

violation,” the District of Columbia cannot be liable for these claims.

       Second, the Court concludes that Plaintiff has not adequately alleged a policy or custom

that is necessary under Monell v. Department of Social Services., 436 U.S. 658, 694 (1978), to

state a section 1983 claim against the District of Columbia – even if there were a predicate

constitutional violation. “The court must determine whether the plaintiff has alleged an

‘affirmative link,’ such that a municipal policy was the ‘moving force’ behind the constitutional

violation.’ ” Baker, 326 F.3d at 1306 (citations omitted). “There are a number of ways in which a

‘policy’ can be set by a municipality to cause it to be liable under § 1983: the explicit setting of a

policy by the government that violates the Constitution; the action of a policy maker within the

government; the adoption through a knowing failure to act by a policy maker of actions by his

subordinates that are so consistent that they have become ‘custom’; or the failure of the

government to respond to a need (for example, training of employees) in such a manner as to

show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional

violations.” Id. at 1306-07 (citations omitted).

       Plaintiff has alleged no facts reflecting such a policy. The essence of Plaintiff’s allegation

is that the Metropolitan Police Department “engaged in a ‘custom, policy or practice of



                                                   15
condoning the violation of citizens [sic] constitutional rights by police officers,’ including

condonation of (a) the failure of police officers ‘to intervene and protect citizens with[in] the

zone of a reimbursable detail,’ (b) material[] omissions in police reports and public records

which falsely portrayed the facts of a criminal incident’ and (c) the giving of ‘false testimony by

police officers.’ ” Pl.’s Surreply at 2 (quoting Am. Compl.). This reference to a “custom, policy

or practice of condoning” the violation of constitutional rights is no more than a conclusory

recital of the elements of a claim pursuant to Monell, together with the alleged predicate

constitutional violations. Similarly, the allegation that the District of Columbia failed to

investigate the alleged misconduct of Officers Spady and Curry is insufficient. The District of

Columbia’s failure to investigate the conduct of the Officer Defendants – the single instance of a

failure to investigate presented – does not allow a reasonable inference of a pattern of actions “so

consistent that they have become ‘custom.’ ” Baker, 326 F.3d at 1306. Moreover, the failure to

investigate the specific incidents that are central to this action only occurred after the incidents

themselves. Therefore, by definition, the failure to investigate cannot itself constitute a policy

that “was the ‘moving force’ behind the constitutional violation,” id., as it must in order to satisfy

the requirements for municipal liability. See id.

       Because the Amended Complaint fails to allege sufficient facts both regarding a predicate

constitutional violation and tracing such a violation to a policy or custom of the District of

Columbia, the Amended Complaint fails to state a section 1983 claim against the District of

Columbia. Accordingly, the Court dismisses Count III of the Amended Complaint.


C. Negligence Claims (Count IV)
       Plaintiff alleges negligence by all of the defendants: Officers Spady and Curry, the three

ABC licensed establishments that arranged for the reimbursable detail that is the subject of this


                                                    16
action, and the District of Columbia. The Court concludes that the Amended Complaint does not

state a claim upon which relief may be granted with respect to the negligence claims against any

of the defendants, and the Court dismisses Count IV.


     1. Negligence Claims Against the Officer Defendants
        Plaintiff claims that the Officer Defendants acted negligently when they refused to

intervene to protect him – after he both reported to them the threats he had received and

requested their assistance. Specifically, Plaintiff claims that, in failing to protect him, the Officer

Defendants breached the duty they owed to him as a result of the statute and the orders

establishing the reimbursable detail program. 13 Am. Compl. ¶¶ 32-33. The Officer Defendants

“incorporate … by reference all arguments set forth in the District’s motion that apply to

Defendants Spady and Curry.” 14 Officer Defs.’ Mot. at 3. These arguments include the Officer

Defendants’ arguments that the negligence claim against them fails (1) because Plaintiff failed to

give notice of his negligence claim to the District as required by D.C. Code § 12-309,

(2) because the public duty doctrine bars liability in these circumstances, and (3) because

Plaintiff only alleges intentional conduct as the basis for the negligence claim. The Court


13
  Plaintiff also alleged injury and proximate causation. The Court need not discuss those
elements of a negligence claim because the Court concludes that the Officer Defendants did not
breach any duty in the first instance.
14
   Although the Officer Defendants only referenced certain of the District of Columbia’s
individual arguments explicitly, the Court concludes that the Officer Defendants’ general
statement that they are incorporating by reference “all arguments … that apply to Defendants
Spady and Curry” is sufficient to avoid forfeiting those arguments that are, indeed, relevant. In
particular, because Plaintiff responded to the District of Columbia’s arguments in the briefing
with respect to that defendant, Plaintiff was on notice that all of those arguments are before the
Court. See Pl.’s Opp’n to Officer Defs.’ Mot. at 6 (“To the extent that Defendants Spady and
Curry join in the District of Columbia’s Motion to Dismiss and incorporate by reference the
arguments in the District’s Motion … Plaintiff Shahid Sheikh likewise incorporates by reference
all arguments set forth in his Opposition to the District’s Motion to Dismiss that apply to Officers
Spady and Curry.”)

                                                  17
concludes that the public duty doctrine bars the negligence claim against the Officer Defendants.

The Court also concludes that the statutory notice requirement of section 12-309 applies only to

the District of Columbia and not to the individual police officers. The Court finds it unnecessary

to reach the argument as to the intentional nature of the acts alleged.

       As a preliminary matter, because the Court dismisses the federal question claims in this

action, it must assure itself that it has subject matter jurisdiction over the negligence claim

against the Officer Defendants before proceeding to the parties’ arguments with respect to the

claim itself. See Wagner v. Fed. Election Comm’n, 717 F.3d 1007, 1010 (D.C. Cir. 2013); accord

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1138 (D.C. Cir.

2014). Plaintiff has alleged sufficient facts to support the Court’s exercise of diversity

jurisdiction, pursuant to 28 U.S.C. § 1332, over this state law claim against the Officer

Defendants. See Am. Compl. ¶¶ a-c (Plaintiff is a resident of Virginia, and Officer Defendants

are residents of the District of Columbia). The Officer Defendants do not contest the allegations

that support diversity jurisdiction or argue that there is no diversity jurisdiction over the

negligence claims against them. See generally Officer Defs.’ Mot.; Officer Defs.’ Reply.

       Now that the Court has assured itself that it has jurisdiction over this state law claim, the

Court begins with the argument that notice is required pursuant to section 12-309 with respect to

the negligence claim against the Officer Defendants because this requirement may be

jurisdictional. See Egudu v. District of Columbia, No. 12-cv-1841 (ABJ), — F.Supp.3d —, 2014

WL 5472176, at *1 (D.D.C. Oct. 29, 2014) (assuming that the notice requirement of section 12-

309 is jurisdictional); Sperling ex rel. Estate of Oxlaj–Gonzales v. Wash. Metro. Area Transit

Auth., 542 F.Supp.2d 76, 81 (D.D.C. 2008) (accepting parties’ agreement that section 12-309 is

jurisdictional); cf. Jaiyeola v. District of Columbia, 40 A.3d 356, 362 n.14 (D.C. 2012) (declining



                                                  18
to decide whether section 12-309 is jurisdictional). However, insofar as the Officer Defendants’

make this argument, this argument fails at the outset because “§ 12-309 only applies to an ‘action

… against the District of Columbia.’ ” Mpoy v. Fenty, 870 F.Supp.2d 173, 181 (D.D.C. 2012).

This statutory provision does not bar claims asserted against District officials in their individual

capacities. See id. Accordingly, section 12-309 does not bar Plaintiff’s negligence claim against

the Officer Defendants. 15

       Next the Court addresses the argument that the public duty doctrine bars liability against

the Officer Defendants. “The public duty doctrine ‘operates to shield the District and its

employees from liability arising out of their actions in the course of providing public services.’ ”

Allen v. District of Columbia, 100 A.3d 63, 67 (D.C. 2014) (quoting Hines v. District of

Columbia, 580 A.2d 133, 136 (D.C. 1990)). If “facts alleged … do not suffice to establish that

District employees created a special relationship with [Plaintiff] permitting imposition of

negligence liability,” the Court must dismiss the suit. Woods v. District of Columbia, 63 A.3d

551, 558 (D.C. 2013).

       First, Plaintiff argues that the public duty doctrine does not apply because the Officer

Defendants “made [his] condition worse than it would have been had the [officers] failed to show

up at all or done nothing after their arrival.” Johnson, 580 A.2d at 142. The Court already

concluded, in discussing Plaintiff’s section 1983 state endangerment claim above, that the


15
  Although Plaintiff does not explicitly state that he is suing Officers Spady and Curry in their
individual capacities, the Court infers from the Amended Complaint that he is doing so given that
he also seeks relief from the District of Columbia. In any event, insofar as Plaintiff is suing the
Officer Defendants in their official capacities, the suit would be “treated as [a] suit[] against the
government itself.” Herrion v. Children’s Hosp. Nat. Med. Ctr., 786 F.Supp.2d 359, 367 (D.D.C.)
aff’d, 448 F. App’x 71 (D.C. Cir. 2011). Were that the case, the claims against the officers would
be resolved just as the claims against the District of Columbia are resolved. Given that the Court
dismisses all claims against the District of Columbia, any claims against the officers in their
official capacities would be dismissed for the same reasons.

                                                 19
Amended Complaint does not allow an inference that the officers created or increased the danger

to Plaintiff. For the same reasons, the Court concludes that Plaintiff has not alleged facts that

suggest that the presence of the Officer Defendants made Plaintiff’s condition worse. Plaintiff’s

sole argument with regard to that claim is that the officers directed him away from their duty

station towards the would-be assailants. As discussed with respect to the state endangerment

claim above, the Amended Complaint does not allege that the officers directed Plaintiff towards

the would-be assailants or that the would-be assailants were surrounding the duty station; it only

alleges that the Officer Defendants directed him away from the duty station. See supra note 10

and surrounding text. But even if the Officer Defendants had directed Plaintiff towards the

would-be assailants, that would not be enough to satisfy this exception to the public duty

doctrine. Plaintiff alleges that he emerged from an ABC establishment fearing an attack from the

nearby would-be assailants and then sought assistance from Officers Spady and Curry. Am

Compl. ¶¶ 6-8. There is no indication that, if the officers had not been on the scene, Plaintiff

would have faced a lesser risk than he did in these circumstances.

       Second, Plaintiff argues that the public duty doctrine does not apply here because

Plaintiff was in a class of people to whom the Officer Defendants owed a special duty. This

argument fails as well. The statutory provision establishing the reimbursable detail program

defines a reimbursable detail as “an assignment of MPD officers to patrol the surrounding area of

an establishment for the purpose of maintaining public safety, including the remediation of

traffic congestion and the safety of public patrons, during their approach and departure from the

establishment.” D.C. Code § 25-798. The main purpose of a reimbursable detail is “maintaining

public safety,” and the “safety of public patrons” is simply a single element “includ[ed]” in the

multiple components of public safety. Id. Contrary to Plaintiff’s contention that this statute



                                                 20
establishes a special duty to patrons, the statute merely includes patrons in the class of people

that the officers are bound to protect: the general public. Moreover, the Metropolitan Police

Department ABC Establishment Reimbursable Program Agreement, which Plaintiff presented to

the Court, explicitly acknowledges that a police officer may “make[] an arrest unrelated to the

ABC establishment.” Pl.’s Opp’n to D.C.’s Mot., Ex. 1 at 21 (emphasis in original). The fact that

officers on a reimbursable detail may make unrelated arrests confirms that such officers owe

duties to the general public, not merely to patrons of ABC establishments. Similarly, the ABC

Reimbursable Detail Post Order, also provided by Plaintiff, confirms the public purpose of the

program: “The purpose of a reimbursable detail is to ensure PUBLIC SAFETY for the

immediate area of where the ABC establishment is located and to preserve the peace and quiet of

the neighborhood.” Id., Ex. 1, at 23. Insofar as the statute includes the protection of patrons in

the definition of a reimbursable detail, that reference only serves to reiterate that patrons are

included among the members of the general public, whom the patrolling officers are charged

with protecting. 16 The statute does not establish duties to a specific category of patrons that

exceed the duties to the members of the general public. 17




16
   Moreover, even if it were true that the officers on a reimbursable duty had a special duty to the
patrons of “the establishment,” D.C. Code § 25-798(a)(3), the only possible reading of the statute
in that vein would be that the officers owed a special duty to the patrons of the specific
establishments that had arranged for the reimbursable detail. But here Plaintiff was a patron of an
establishment that had not arranged for the reimbursable detail in question: he exited from the
Current Lounge before the attack, see Am. Compl., Prelim. Statement of Facts at 4, and the
Current Lounge is not one of the ABC Establishment Defendants in this case. Reading the statute
to mean that the officers owed a special duty to patrons of any ABC licensed establishment,
regardless of whether that establishment arranged for the detail, is simply implausible.
17
  None of the cases to which Plaintiff cites are to the contrary. Indeed, some of these cases stand
for propositions that negate Plaintiff’s arguments. See, e.g., Johnson, 580 A.2d at 141 (public
duty doctrine applies notwithstanding District of Columbia charging a user fee for ambulance
service).

                                                  21
        Because the Court concludes that Plaintiff has not alleged sufficient facts to survive the

bar to liability established by the public duty doctrine, the Court need not reach the argument

that, absent that doctrine, the Amended Complaint would fail to state a negligence claim because

it relies on intentional acts by Officers Spady and Curry. Accordingly, the Court dismisses the

negligence claim against the Officer Defendants.


     2. Negligence Claims Against the ABC Establishment Defendants
        Plaintiff claims that, because the ABC Establishment Defendants controlled the officers

jointly with the District of Columbia, the ABC Establishment Defendants are vicariously liable

for the Officer Defendants’ negligence in failing to prevent his injuries. Am. Compl. ¶¶ 28-29.

The sole ABC Establishment Defendant to enter an appearance, YFE, Inc., argues that Plaintiff

has failed to state a negligence claim against YFE because, first, the action is barred by the three-

year statute of limitations and, second, there is no plausible basis to find that YFE controlled the

actions of the Officer Defendants. Because there is no plausible basis to conclude that YFE

controlled the actions of Officers Spady and Curry, the Court does not address the statute of

limitations argument. 18 After assuring itself that it has jurisdiction over these negligence claims,

the Court addresses YFE’s arguments as they pertain to YFE and then addresses them as they

apply to the two ABC Establishment Defendants that have not appeared in this action, Inner

Circle 1223, LLC, and HAK LLC.



18
   With respect to the statute of limitations, YFE specifically argues that the Amended
Complaint, which identifies the ABC Establishment Defendants by name, does not relate back to
the filing of the original complaint, which only identifies the ABC Establishment Defendants
generically. See Fed. R. Civ. P. 15(c). The Court merely notes that “the question of relation back
in the context of previously unknown defendants is a complex one that our Circuit has not
addressed, but which other courts are sharply divided on.” Hartley v. Wilfert, 931 F.Supp.2d 230,
234 (D.D.C. 2013). Because the Court dismisses this claim on other grounds, it need not address
the divided case law here.

                                                 22
       The Court must assure itself – as it did with respect to the negligence claim against the

Officer Defendants – that it has subject matter jurisdiction over the negligence claims against the

ABC Establishment Defendants before proceeding to the parties’ arguments. See Wagner, 717

F.3d at 1010. Plaintiff has alleged sufficient facts to support the Court’s exercise of diversity

jurisdiction, pursuant to 28 U.S.C § 1332, over these state law claims against the ABC

Establishment Defendants. See Am. Compl. ¶¶ a, e, g (Plaintiff is a resident of Virginia, and the

ABC Establishment Defendants are organized under the laws of the District of Columbia with

their principal places of business in the District of Columbia). YFE does not contest the

allegations that support diversity jurisdiction or argue that there is no diversity jurisdiction over

the negligence claim against it. See generally YFE’s Mot.; YFE’s Reply. Accordingly, the Court

proceeds to determine whether the Amended Complaint states a negligence claim upon which

relief may be granted.

       In determining whether a master-servant relationship exists, “[t]he decisive test … is

whether the employer has the right to control and direct the servant in the performance of his

work and the manner in which the work is to be done.” Safeway Stores, Inc. v. Kelly, 448 A.2d

856, 860 (D.C. 1982) (emphasis in original). Plaintiff has alleged no facts suggesting that YFE

controlled Officers Spady and Curry. Indeed, documentation governing the reimbursable detail

program, presented by Plaintiff, definitively answers that question: officers on a reimbursable

detail are not controlled by the ABC establishment that arranged for the detail. See Pl.’s Opp’n to

D.C.’s Mot., Ex. 1 at 19 (“[I]f an ABC establishment requests a reimbursable detail, the officers

work for MPD on public space, and not for or in an ABC establishment.”). Moreover, Plaintiff’s

attempt to depict the officers on a reimbursable detail as security guards, see Pl.’s Opp’n to

YFE’s Mot. at 10, is flatly contradicted by the rules governing the program, as well. See id., Ex.



                                                  23
1 at 21 (“Officers shall not: [1.] Work inside an establishment, unless police action is required

inside the establishment. [2.] Remain stationary at the door of an establishment.”) Neither the

Amended Complaint nor any plausible amendment of that complaint states a negligence claim

against YFE. Therefore, the Court dismisses the negligence claims against YFE.

       Next, the Court turns to the two ABC Establishment Defendants that have not entered an

appearance, Inner Circle 1223, LLC, and HAK LLC. There is no reason to distinguish between

these defendants and YFE. As the discussion above indicates with respect to YFE, there is no

basis to establish liability of an ABC establishment over the police officers serving in a

reimbursable detail that the establishment arranged. “The district court may sua sponte dismiss a

claim pursuant to Rule 12(b)(6) without notice where it is ‘patently obvious’ that the plaintiff

cannot possibly prevail based on the facts alleged in the complaint.” Rollins v. Wackenhut Servs.,

Inc., 703 F.3d 122, 127 (D.C. Cir. 2012) (citing Baker v. Dir., U.S. Parole Comm’n, 916 F.2d

725, 727 (D.C. Cir. 1990)). Because Plaintiff responded to YFE’s arguments with respect to

dismissal, Plaintiff was on notice of the potential bases for dismissal of these defendants.

Therefore, it is not necessary to satisfy the “patently obvious” standard stated in Wackenhut in

order to dismiss the negligence claims against the absent defendants on the basis of the

arguments presented by YFE. But in any event, for the reasons stated above, it is “patently

obvious” that Plaintiff cannot prevail against HAK LLC or against Inner Circle 1223, LLC. 19

Accordingly, the Court sua sponte dismisses the negligence claims against HAK LLC and Inner

Circle 1223, LLC.


19
  In addition, even though the Court suggested in a previous order that Inner Circle 1223, LLC,
had been effectively served, see Minute Order dated July 22, 2014, it appears that this defendant
may not have been effectively served. See Letter from National Registered Agents, Inc., dated
July 7, 2014, ECF No. 23, at 1 (stating that entity was unable to receive documents on behalf of
Inner Circle 1223, LLC, because of a “dead end.”).

                                                 24
    3. Negligence Claim Against the District of Columbia
        Plaintiff claims that the District of Columbia is vicariously liable for the Officer

Defendants’ negligence in failing to prevent his injuries because the District of Columbia and the

ABC Establishment Defendants jointly controlled the officers. Am. Compl. ¶¶ 28-29. The

District of Columbia argues that it is not liable because, first, Plaintiff failed to provide the

required notice of his negligence claim pursuant to D.C. Code § 12-309; second, Plaintiff alleges

only intentional conduct in his complaint; and third, the public duty doctrine shields the District

of Columbia from liability. The Court concludes that both the failure to give notice pursuant to

section 12-309 and the public duty doctrine bar liability here. Therefore, the Court does not

address the question whether the Amended Complaint only alleges intentional acts such that it

does not state a claim for negligence.

        Before proceeding to the District of Columbia’s arguments for dismissal, the Court must

assure itself that it has subject matter jurisdiction over the negligence claim against the District

of Columbia. See Wagner, 717 F.3d at 1010. Unlike the other defendants in this action, there is no

diversity jurisdiction over the District of Columbia. See Long v. District of Columbia, 820 F.2d

409, 414 (D.C. Cir. 1987) (“Irrespective of any labels, the District is not subject to the diversity

jurisdiction of the federal courts.”). Nor does Plaintiff contend that there is federal question

jurisdiction over this state law negligence claim. Cf. Am. Compl. at 1 (“The jurisdiction of the

Court is invoked pursuant to Title 28, U.S.C. § 1332 and the diversity of citizenship of the parties

herein, and pursuant to Title 42, U.S.C. §§ 1983 and 1988, and the Fourth, Fifth, Ninth, and

Fourteenth Amendments to the Constitution of the United States of America.”). When this action

was filed, the Court had jurisdiction over the negligence claim against the District of Columbia

through supplemental jurisdiction. See 28 U.S.C. § 1367 (“[T]he district courts shall have

supplemental jurisdiction over all other claims that are so related to claims in the action within

                                                  25
such original jurisdiction that they form part of the same case or controversy under Article III of

the United States Constitution.”). However, the Court has dismissed all of those claims over

which it has original jurisdiction: the section 1983 claims, over which the Court has federal

question jurisdiction, see 28 U.S.C. § 1331, and those negligence claims over which the Court

has diversity jurisdiction, see 28 U.S.C. § 1332.

       “The district courts may decline to exercise supplemental jurisdiction over a claim … if

… the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

§ 1367(c). The Court first notes that Plaintiff filed this action in this forum, and the District of

the Columbia does not argue that this claim should be dismissed for jurisdictional reasons. Cf.

Araya v. JPMorgan Chase Bank, N.A., No. 13-7036, 2014 WL 7373492, at *3 (D.C. Cir. Dec. 30,

2014) (“Ordinarily, the plaintiff is entitled to select the forum in which he wishes to proceed.”).

In addition, because the resolution of the negligence claim is intertwined with the other claims in

this action that the Court must resolve, particularly the negligence claim against the Officer

Defendants, and because the Court’s conclusions do not require resolving unsettled issues of

District of Columbia law, the Court resolves the negligence claim with respect to the District of

Columbia, as well, in the interest of judicial efficiency. Insofar as the parties’ arguments raise

unsettled issues of District of Columbia law, the Court does not reach those issues. Cf. id. at *6

(“[W]e have repeatedly held that a district court abuses its discretion when it maintains

jurisdiction over a removed case presenting unsettled issues of state law after the federal claims

have been dismissed.”)

       Having assured itself that it is appropriate to retain supplemental jurisdiction over the

negligence claim against the District of Columbia, the Court addresses first the notice claim




                                                  26
pursuant to section 12-309 because it may be jurisdictional, as discussed above. 20 See Egudu, —

F.Supp.3d —, 2014 WL 5472176, at *1; cf. Jaiyeola, 40 A.3d at 362 n.14. In contrast to the

application of this provision to the Officer Defendants, there is no dispute – among the parties or

in the case law – that this provision applies to a negligence claim against the District of

Columbia itself. See Mpoy, 870 F.Supp.2d at 181. However, the parties dispute who bears the

burden of proof with respect to this provision. Plaintiff argues that compliance with section 12-

309 is an affirmative defense and, therefore, the District of Columbia bears the burden of proof.

See Pl.’s Surreply at 3. The District of Columbia argues that Plaintiff bears the burden of proving

compliance with section 12-309. See District of Columbia’s Reply at 7. With respect to this

question, the District of Columbia is correct. “Unless it demonstrates compliance with the

requirements of § 12-309, a plaintiff’s suit against the District is properly dismissed.” 21 Snowder


20
  Because the notice requirement in section 12-309 may not be jurisdictional, see Jaiyeola, 40
A.3d at 362 n.14, the Court analyzes Plaintiff’s compliance with this provision through the lens
of Rule 12(b)(6) (failure to state a claim) rather than through the lens of Rule 12(b)(1) (lack of
subject matter jurisdiction).
21
  The D.C. Court of Appeals’ statement in Jaiyeola, relied on by Plaintiff, that “[b]ecause § 12-
309 and statutes of limitations provide affirmative defenses, Civil Rule 8(c) requires them to be
‘set forth affirmatively’ in the answer to the complaint, and they ‘may be waived if not promptly
pleaded’ ” is not to the contrary. Jaiyeola, 40 A.3d at 361. In a footnote appended to the end of
the paragraph in which this statement appears, the D.C. Court of Appeals explicitly states that
“we need not decide whether § 12-309’s notice requirement is jurisdictional and therefore
unwaivable.” Id. at 362 n.14. Understood as a whole, Jaiyeola stands for the proposition that the
D.C. Court of Appeals had not – and, two years later, it still has not – decided whether or not
compliance with 12-309 is waivable. Because the D.C. Court of Appeals is the final arbiter of
District of Columbia law, contrary authority from District Courts in this Circuit is immaterial. Cf.
Maldonado v. District of Columbia, 924 F.Supp.2d 323, 332 (D.D.C. 2013) (citing Jaiyeola and
other cases from this Circuit and concluding that section 12-309 is non-jurisdictional).
The Court acknowledges that Jaiyeola, properly understood, appears to be in tension with
Snowder, in which the D.C. Court of Appeals stated that a Plaintiff must “demonstrate
compliance with the requirements of § 12-309” to avoid dismissal. Snowder, 949 A.2d at 600
(emphasis added). One way to understand the cases together is as follows. Assuming that section
12-309 is not jurisdictional and is thus waivable, a defendant is at least required to raise this
provision as a defense and is at most required to make a prima facie showing that Plaintiff did
not comply with the provision. Regardless, once a defendant does so, Plaintiff bears the burden
                                                 27
v. District of Columbia, 949 A.2d 590, 600 (D.C. 2008) (quoting District of Columbia v. Arnold

& Porter, 756 A.2d 427, 436 (D.C. 2000)). But even if Plaintiff were correct that the District of

Columbia bears the burden of proof, the Court concludes that the District of Columbia has done

so here.

       Section 12-309 requires notice to the District of Columbia of any negligence claim

against the District of Columbia as follows:

       An action may not be maintained against the District of Columbia for
       unliquidated damages to person or property unless, within six months after the
       injury or damage was sustained, the claimant, his agent, or attorney has given
       notice in writing to the Mayor of the District of Columbia of the approximate
       time, place, cause, and circumstances of the injury or damage. A report in writing
       by the Metropolitan Police Department, in regular course of duty, is a sufficient
       notice under this section.

D.C. Code § 12-309. “In order for a police report made in the regular course of duty to satisfy the

Section 309 requirement of notice, it must contain information as to the approximate time, place,

cause and circumstances of the injury or damage ‘ … with at least the same degree of specificity

required of a written notice.’ ” Pitts v. District of Columbia, 391 A.2d 803, 808 (D.C. 1978)

(quoting Jenkins v. District of Columbia, 379 A.2d 1178, 1178 (D.C. 1977)). The parties agree

that Plaintiff sent no direct notice to the District of Columbia but dispute whether the police

reports were sufficient to satisfy the statutory requirement.

       The Amended Complaint describes an initial police report and a supplemental police

report that was made after a subsequent inquiry by Plaintiff. Am. Compl. ¶¶ 15, 17. While

neither Plaintiff nor the District of Columbia initially provided the police report in a submission



of demonstrating compliance with the provision. If, to the contrary, section 12-309 is
jurisdictional, the burden of showing compliance with the provision falls squarely on a plaintiff’s
shoulders. In any event, the D.C. Court of Appeals’ statement in Snowder that a plaintiff must
demonstrate compliance with section 12-309 to avoid dismissal leaves no room for further
interpretation of that requirement by this Court. See id.

                                                 28
to the Court, the District of Columbia ultimately provided all of the various police reports

relating to the underlying incident. See District of Columbia’s Supp. Mem., Ex. 1. Among these

reports are three reports that appear to correspond to the reports referenced in the allegations in

the Amended Complaint. 22 See Am. Compl ¶¶ 15, 17. Those reports describe the events in

question as follows:

     •   The initial “Incident-Based Report,” dated February 27, 2011, describes the altercation
         between Plaintiff and the third-party assailants and does not include any facts suggesting
         negligent activities of the Officer Defendants, such as Plaintiff’s reporting threats to the
         officers or the officers’ failure to intervene. See District of Columbia’s Supp. Mem., Ex. 1
         at 1, 4.

     •   The “Supplement Report,” dated March 1, 2011, resulted from Plaintiff visiting the police
         station to “make a statement of additional facts that were not stated to the reporting
         officer at the time the initial report was taken.” Id., Ex. 1 at 10. This document reports
         Plaintiff’s statement that the third-party assailants had threatened him prior to the actual
         assault but does not state that he had conveyed this threat to the Officer Defendants or
         that they had failed to protect him. See id.

     •   The “Supplement Report,” dated March 10, 2011, recounts the events of February 27,
         2011, including the statements of Plaintiff and other complainants to the officers. This
         report does not state that Plaintiff reported any threats to the Officer Defendants or that
         they failed to intervene. 23 See id., Ex. 1. at 13-17.
None of these three reports state that Plaintiff or his companions had reported threats they had

received to the Officer Defendants or that the Officer Defendants had failed to intervene with




22
   Plaintiff references an initial report, see Am. Compl. ¶ 15, and a supplemental report, see id.
¶ 17. The District of Columbia has provided the initial report and two supplemental reports. It
appears that the supplemental reports, together, correspond to the single supplement referenced
in the Amended Complaint.
23
  The report states, “Complainant-1 [a companion of Plaintiff] said that one of the security
guard[s] out front separated them and told them to leave.” District of Columbia’s Supp. Mem.,
Ex. 1 at 17. It is unclear whether this is an inaccurate reference to the police officers serving on
the reimbursable detail or a reference to other ABC establishment security guards in the vicinity.
In any event, this reference would not have led the District of Columbia to expect a negligence
claim based on the failure of police officers to intervene in the altercation described in this
report.

                                                  29
respect to the altercation. See id., Ex. 1 at 1, 4, 10, 13-17. Nor do these reports otherwise suggest

any negligent behavior by the Officer Defendants. See id.

       Indeed, with respect to the section 1983 basis for liability, Plaintiff claims that the Officer

Defendants conspired to wrongfully cover up their failure to protect him “by omitting and

concealing any reference to their failure to intervene and properly exert their police duties” from

the initial police report, Am. Compl. ¶ 15, and then in a supplemental report “persisted in

concealing and covering-up their wrongdoing and persisted in their violations of Plaintiff’s

constitutional rights,” id. ¶ 17. In other words, Plaintiff himself alleges that the police reports say

nothing about the role of the Officer Defendants in causing his injury.

       Beyond the reports that appear to correspond to those that Plaintiff referenced, there are

no other police reports that would have given the District of Columbia notice of the possibility of

this civil action. The District of Columbia has provided several subsequent reports, filed between

March 10, 2011, and May 27, 2012, that track the progress of the investigation. See id., Ex. 1 at

18-31. None of the subsequent reports mention the failure of the police officers to act. See id.

Moreover, the District of Columbia states, albeit in a footnote, that “[t]he Office of the General

Counsel for the Metropolitan Police Department informed undersigned counsel that no arrest

report concerning the events alleged in the Complaint could be located.” District of Columbia’s

Reply at 7, n.1.

       Without specific references to the alleged misconduct of the officers – or even any

references to the presence and involvement of the officers in the first instance – none of these

police reports put the District of Columbia on notice of a negligence claim against it. See Doe by

Fein v. District of Columbia, 697 A.2d 23, 27 (D.C. 1997) (“A notice is sufficient if it recites

facts from which it could be reasonably anticipated that a claim against the District might arise.



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Such notice would suffice, therefore, if it ... described the injuring event with sufficient detail to

reveal, in itself, a basis for the District’s potential liability.”) (citations and quotations marks

omitted)). While the reports conveyed “time” and “place” of injury, as well as the role of the

third-party assailants in the altercation, the reports did not convey the “cause and circumstances

of the injury or damage which is the basis for the claim.” Allen, 100 A.3d at 67. Assessing the

police reports would not have allowed the District of Columbia to forecast that it would be the

target of a negligence suit.

        Similarly, Plaintiff’s allegation that he made a written complaint regarding the Officer

Defendants is not sufficient to show that the District of Columbia was on notice of the possibility

of this action. Plaintiff alleges that he made a written complaint to the Metropolitan Police

Department, “pointing out the substandard conduct of Defendants Spady and Curry and their

violations of his constitutional rights.” Am. Compl. ¶ 16. However, he does not provide any

further details regarding this complaint; he does not indicate the date he submitted it or to whom

he submitted it, whether in person, by mail, or otherwise. Therefore, this conclusory allegation

does not show that Plaintiff provided sufficient notice to the District of Columbia of the basis for

this claim as required by section 12-309. In sum, because Plaintiff failed to comply with section

12-309, the Amended Complaint does not state a claim for negligence against the District of

Columbia.

        Next, because it is not clear that requirements of 12-309 are jurisdictional rather than a

non-jurisdictional affirmative defense, see supra note 21, the Court addresses, briefly, the

District of Columbia’s argument that Plaintiff’s claim fails because it is barred by the public duty

doctrine. Above, the Court applied this doctrine in concluding that the negligence claim against

the Officer Defendants must be dismissed. There is no basis for differentiating between the



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District of Columbia and the Officer Defendants in the application of this doctrine. Cf. Allen v.

District of Columbia, 100 A.3d at 67 (“The public duty doctrine ‘operates to shield the District

and its employees from liability arising out of their actions in the course of providing public

services.’ ”) (citation omitted). Therefore, for precisely the same reasons that the Court

concludes that the public duty doctrine prevents the Amended Complaint from stating a claim in

negligence against the Officer Defendants, the public duty doctrine also prevents the Amended

Complaint from stating a claim in negligence against the District of Columbia.

       In sum, both because Plaintiff did not provide adequate notice of the negligence claim to

the District of Columbia pursuant to section 12-309 and because the public duty doctrine bars

negligence liability based on the facts alleged in the Amended Complaint, the Amended

Complaint fails to state a claim upon which relief may be granted. The Court need not address

the District of Columbia’s argument that the Amended Complaint relies on intentional acts and,

therefore, cannot state a negligence claim. Accordingly, the Court dismisses the negligence claim

against the District of Columbia.


                                        V. CONCLUSION

       For the foregoing reasons, the District of Columbia’s [4] Motion to Dismiss is

GRANTED, the Officer Defendants’ [13] Motion to Dismiss is GRANTED, and [28] YFE’s

Motion to Dismiss is GRANTED. All claims against these defendants are DISMISSED because

the Court concludes that the Amended Complaint fails to state a claim upon which relief may be

granted with respect to these defendants. In addition, the Court concludes that the Amended

Complaint fails to state a claim upon which relief may be granted with respect to HAK LLC and

Inner Circle 1223, LLC, the two ABC Establishment Defendants that have not entered an

appearance in this action, for the same reasons that the Court grants YFE’s Motion to Dismiss.


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Therefore, the Court sua sponte dismisses the claims against HAK LLC and Inner Circle 1223,

LLC, as well. Accordingly, this case is DISMISSED in its entirety. An appropriate Order

accompanies this Memorandum Opinion.


Dated: January 5, 2015

                                                              /s/
                                                          COLLEEN KOLLAR-KOTELLY
                                                          United States District Judge




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