                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
ELENA M. GARABIS,                   )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                 Civil Action No. 10-2150 (ABJ)
                                    )
UNKNOWN OFFICERS OF THE             )
METROPOLITAN POLICE,                )
                                    )
DISTRICT OF COLUMBIA,               )
                                    )
                  Defendants.       )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiff Elena M. Garabis brings this action against defendants Unknown Officer(s) of

the Metropolitan Police and the District of Columbia (“D.C.” or “the District”), alleging one

claim of assault and battery and two claims of excessive force and unreasonable seizure arising

under the Fourth Amendment.         The District filed a partial motion to dismiss the Fourth

Amendment claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. For the reasons

stated below, the Court will grant defendant’s motion to dismiss with respect to Counts II and III

against the District of Columbia without prejudice.

                                        BACKGROUND

       On December 18, 2009, plaintiff attended a holiday reception at a restaurant with several

of her co-workers, where she consumed “a few drinks.” Compl. ¶ 16–17. According to plaintiff,

she recalls leaving the restaurant at approximately 5:00 p.m. in a sober state. Id. ¶¶ 17–18.

Plaintiff alleges that at the restaurant she was a victim of a “date rape” drug, which caused her to

lose motor skills and experience memory loss within minutes of leaving the reception. Id. ¶¶ 18–
19. Because of her unusual and incoherent behavior on the street, plaintiff was arrested for

public intoxication and disorderly conduct and booked in the Second District at approximately

6:00 p.m. Id. ¶¶ 19, 21. The arresting officer described plaintiff as “nonviolent and without any

distinguishing marks or scars” and noted that she could not keep her balance. Id. ¶ 20. At

approximately 7:00 p.m., plaintiff was transferred to a hospital to “treat a laceration on her nose”

and was “discharged to police custody roughly an hour later.” Id. ¶ 21. The cause of the

laceration was not reported. Id.

       Plaintiff claims to have regained consciousness in a jail cell at approximately midnight

and felt excruciating and severe pain. Id. ¶¶ 11, 22. Plaintiff alleges that the “sudden onset of

pain after memory loss is consistent with types of ‘date rape’ drugs, which can numb and inhibit

the body’s pain receptors while . . . unconscious.” Id. ¶ 22. According to plaintiff, an officer

noticed “the loss of motor skills in her hands, which had swelled and turned a deep red color”

and determined that she required medical treatment. Id. ¶ 23. At the hospital, medical staff

recognized plaintiff and noted that the injuries to her hands did not exist on her previous visit.

Id. ¶¶ 24–25.

       After her second hospital visit, plaintiff maintains that she “experienced vivid but

incomplete flash-backs” from the prior evening, including “her hand being slammed by a police

vehicle’s door, laying on the ground while topless and surrounded by police officers, and being

aggressively manhandled.” Id. ¶ 26. As a result of experiencing chest pain, plaintiff discovered

multiple marks on her chest that she believes were caused by recent Taser shots consistent with

the Taser guns she believes are used by the police department. Id. ¶ 31. Plaintiff asserts that her

extremities were “lacerated, swollen and bludgeoned,” her “arms showed deep bruises consistent

with . . . manhandling,” her nose and eye were “engorged and bruised,” and her toenails were



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torn. Id. ¶¶ 28–30. Plaintiff alleges that her doctor noted the injuries “appeared to have been

sustained by a beating, rather than from a less nefarious cause, like a bad fall,” id. ¶ 33, but there

are no reports of officers using force on plaintiff, id. ¶ 32.

        Because of these alleged injuries, plaintiff states that she continues to experience intense

pain and difficulty accomplishing daily tasks. Id. ¶¶ 34–35. Plaintiff notes that she could not

use her upper extremities without sharp shooting pain for the first three months after the

incident.” Id. ¶ 34. She alleges that she is still undergoing rehabilitative surgeries, procedures,

and intensive drug therapy. Id.

        Plaintiff filed this lawsuit on December 17, 2010, alleging three claims: Count I for

assault and battery; Count II for excessive force; and Count III for unreasonable seizure. 1 The

District moves to dismiss Counts II and III, contending that plaintiff has failed to state a claim

sufficient to hold the District liable under 42 U.S.C. § 1983 on the theory of municipal liability.

                                    STANDARD OF REVIEW

        “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, --- U.S. ---, 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.




1       The claims against the Unknown Offices are brought against them in their individual and
official capacities. Compl. ¶ 5.
                                                   3
        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. 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

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). And the

fact that the case before the Court arises under section 1983 does not relieve the plaintiff of the

obligation to satisfy the criteria established in Iqbal and Twombly. Smith v. District of Columbia,

674 F. Supp. 2d 209, 213–14 & n.2 (D.D.C. 2009).

                                             ANALYSIS

        Counts II and III of plaintiff’s complaint seek to hold the District liable under 42 U.S.C. §

1983.   To state a claim against a municipality under section 1983, a plaintiff must plead



                                                   4
sufficient facts to indicate the municipality was acting in accordance with an official government

policy or custom, and that it was the policy that caused the claimed constitutional deprivation.

See Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691, 694 (1978); Oklahoma City

v. Tuttle, 471 U.S. 808, 823 (1985); Smith, 674 F. Supp. 2d at 212. Indeed, the policy or custom

must be “the moving force behind the constitutional violation.” Carter v. District of Columbia,

795 F.2d 116, 122 (D.C. Cir. 1986), quoting Monell, 436 U.S. at 694; see also Tuttle, 471 U.S. at

823 (requiring an affirmative link between the city’s policy and alleged constitutional violation).

        A municipality cannot be liable for the unconstitutional conduct of its employees based

simply on a respondeat superior or vicarious liability theory. Monell, 436 U.S. at 693; see also

City of Canton v. Harris, 489 U.S. 378, 385 (1989). “[W]hile Congress never questioned its

power to impose civil liability on municipalities for their own illegal acts, Congress did doubt its

constitutional power to impose such liability in order to oblige municipalities to control the

conduct of others.” Pembaur v. City of Cincinnati, 475 U.S 469, 479 (1986) (emphasis in

original). “The ‘official policy’ requirement was intended to distinguish acts of the municipality

from acts of employees of the municipality, and thereby make clear that municipal liability is

limited to action for which the municipality is actually responsible.” Id. This requirement flows

directly from the statute itself.

        Although the complaint contains detailed allegations about the injuries plaintiff sustained

and what she recalls from the night she spent in police custody, it fails to allege the necessary

“affirmative link” between those injuries and a governmental policy. See Tuttle, 471 U.S. at 823;

Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003). Based on the description

of plaintiff’s injuries in the complaint, which the Court accepts as true on a motion to dismiss, it

is apparent that something terrible happened to plaintiff on the date in question, and plaintiff



                                                 5
alleges that she suffered an attack at the hands of the officers overseeing her custody. But the

complaint is devoid of any further allegations that the alleged misconduct by individual officers

grew out of any custom or policy of the MPD or the District. The only allegation plaintiff makes

that connects the District to her injuries at all is the statement that the District employs the

Unknown Officers and is responsible for the operation of the police department. See Compl. ¶¶

8–9. But this allegation is insufficient to state a claim for municipal liability under Monell.

       In the opposition to the motion to dismiss [Dkt. # 17], plaintiff provides additional facts

that could be construed to support a policy or custom under Monell. She argues that the District

was “deliberately indifferent to the widespread use of TASERs by the [police]” and did “not

have a specific policy regarding appropriate TASER use.” Pl.’s Opp. at 3. But the Court may

only consider the facts set forth in the complaint when deciding a motion to dismiss. Tabb v.

District of Columbia, 477 F. Supp. 2d 185, 187 (D.D.C. 2007) (holding that “[t]he Court is

limited to the four corners of the complaint”). Because these facts are not alleged in the

complaint, the Court may not properly consider them here. Counts II and III therefore fail to

state claim.




                                                  6
                                        CONCLUSION

       For the foregoing reasons, the Court will grant the partial motion to dismiss without

prejudice with respect to Counts II and III against the District of Columbia. The remaining

claims are: Count I against all defendants; Counts II against the Unknown Officers; and Count

III against the Unknown Officers. A separate order will issue.




                                            AMY BERMAN JACKSON
                                            United States District Judge

DATE: October 25, 2011




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