                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
MARY BONACCORSY,               )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 08-2224 (RWR)
                               )
DISTRICT OF COLUMBIA,          )
                               )
          Defendant.           )
______________________________)


                       MEMORANDUM OPINION

     Plaintiff Mary Bonaccorsy brings this action against her

employer, the District of Columbia (“D.C.”), alleging federal

constitutional violations and several common law torts arising

out of an altercation begun by a co-worker and a fifteen-day

suspension Bonaccorsy sustained in its wake.   D.C. has moved to

dismiss the complaint or in the alternative for summary judgment.

Because D.C. has shown that Bonaccorsy failed to provide

sufficient notice of her common law tort claims, that her claim

alleging municipal liability fails to sufficiently allege that

she was harmed as a result of a custom or policy, and that she

failed to exhaust her administrative remedies before filing her

42 U.S.C. § 1981 claim for discrimination, the motion to dismiss

or in the alternative for summary judgment will be granted.

                           BACKGROUND

     Bonaccorsy, a detective employed by the District of Columbia

Metropolitan Police Department (“MPD”), alleges that on
                                  -2-

February 1, 2008, she traveled to the Fifth District police

station to investigate allegations of a threat against another

MPD officer.    (Compl. ¶ 3.)   While there, MPD Sergeant Cassandra

Gudger threatened Bonaccorsy regarding a “relationship

[Bonaccorsy and Gudger] shared with MPD Detective . . . Ray

Crawford” and said Crawford supported Gudger confronting

Bonaccorsy.    (Compl. ¶¶ 4-7.)   As Bonaccorsy left the station,

Gudger continued the confrontation and said that “it was not

over.”   (Id. ¶ 8.)   On the same day, Bonaccorsy sought and was

granted an emergency temporary protective order in the District

of Columbia Superior Court against Gudger and Crawford.     (Id.

¶¶ 8-9.)   Following a hearing three days later, the court

extended the temporary protective order for a period of 14 days.

(Id. ¶ 10.)

     The MPD conducted an internal affairs investigation of the

facts surrounding Bonaccorsy’s request for a temporary protective

order.   It found that contrary to the statements she made in her

request to the court when she sought the temporary protective

order, Bonaccorsy was not actually in fear of Crawford.     (Compl.

¶ 11; Def.’s Mem. in Supp. of Mot. to Dismiss or for Summ. J.

(“Def.’s Mem.”) at 1-2.)    Based upon that determination, the MPD

served Bonaccorsy with a notice of proposed adverse action.

It charged her with engaging in behavior that was prejudicial to

the reputation and good order of the police force in violation of
                                 -3-

MPD General Order 120.21, and proposed a 15-day suspension as

punishment.   (Compl. ¶ 19; Def.’s Mem. Ex. 1.)     Bonaccorsy

opposed the charge and the proposed punishment.      The Commander of

the Office of Human Resource Management issued a final decision

finding that Bonaccorsy violated MPD General Order 120.21 and

upholding the proposed 15-day suspension.    Among other things,

the Commander found that Bonaccorsy sought the protective order

against Crawford knowingly withholding from the judges facts

belying her claim to be in fear of Crawford, including that

Crawford had never displayed any behavior during their

relationship that ever put her in fear, that she never complained

to Crawford’s superiors that she feared him, and that indeed she

was dismayed that Crawford was ending the relationship.      (Def.’s

Mem. Ex. 2 at 2-3.)    Bonaccorsy appealed the suspension to the

Chief of the MPD, who denied her appeal on September 15, 2008.

(Def.’s Mem. Ex. 3.)

     On October 10, 2008, D.C.’s Office of Risk Management

received a letter from Bonaccorsy dated September 25, 2008 that

purported to be Bonaccorsy’s notice that claimants are required

to provide to the Mayor of the District of Columbia under D.C.

Code § 12-309 of the time, place, cause and circumstances within

six months of any claim arising against the District of Columbia

for unliquidated damages.    (Def.’s Mem. Ex. 5.)    It alleged that

on February 1, 2008, Gudger had assaulted and threatened her,
                                 -4-

that her suspension violated Title VII and the First Amendment

because it was retaliation against her for exercising her right

to petition the courts for a protective order, and that the

suspension caused her extreme emotional distress and harmed her

reputation.   (Id.)   D.C.’s Office of Risk Management replied that

her claims failed to provide the timely and complete notice

within the required six-month period.   (Def.’s Mem. Ex. 6.)

Meanwhile, on October 6, 2008, D.C. received a letter from the

union to which Bonaccorsy belonged, stating that “in accordance

with . . . the Collective Bargaining Agreement, the [Fraternal

Order of Police, Metropolitan Police Labor Committee] demands

arbitration on behalf of Detective Mary A. Bonaccorsy[.]”   The

letter stated that the Union sought dismissal of Bonaccorsy’s

suspension as a remedy.   (Def.’s Mem. Ex. 4.)

     On December 9, 2008, Bonaccorsy filed the complaint in this

matter against the District of Columbia containing nine counts:

retaliation in violation of Bonaccorsy’s rights under the First

Amendment of the U.S. Constitution as protected through 42 U.S.C.

§ 1983 (Count I); discrimination in violation of 42 U.S.C. § 1981

(Count II); defamation (Count III); assault in violation of D.C.

Code §§ 403-407 (Counts IV, V, and VI); malicious prosecution

(Count VII); intentional infliction of emotional distress (Count

VIII), and conspiracy to commit tortious acts (Count IX).
                                 -5-

(Compl. ¶¶ 22-51.)   Her arbitration was still pending.   (Def’s

Mem. Ex. 5.)

     The District of Columbia moves for summary judgment on

Counts III through IX based on Bonaccorsy’s purported failure to

provide the timely and ample notice to the Mayor required by D.C.

Code § 12-3091 (Def.’s Mem. at 5-8), and on Count II claiming

that Bonaccorsy failed to exhaust her administrative remedies.2

(Id. at 9-11.)   D.C. further moves to dismiss Count I arguing

that the complaint fails to state a viable claim of municipal

liability.   (Id. at 8-9.)   Bonaccorsy opposes D.C.’s motion, and

cross-moves for summary judgment on all counts, asserting that




     1
       Bonaccorsy moves to strike D.C.’s dispositive motion and
its opposition to her motion for summary judgment as non-
responsive, arguing that D.C. was required to file an answer to
her complaint and was not allowed to file a dispositive motion.
While a motion to dismiss is not considered a responsive pleading
under Federal Rule of Civil Procedure 15(a), see Hurson Assocs.
v. Glickman, 229 F.3d 277, 283 (D.C. Cir. 2000), a defendant is
allowed to respond to a complaint by filing either an answer or a
dispositive motion. See United States ex rel. Schweizer v. Oce,
N.V., 577 F. Supp. 2d 169, 172 (D.D.C. 2008) (stating that “[t]he
Rules provide [the defendant] the option of filing a pre-answer
motion to dismiss the complaint”); Fed. R. Civ. P. 12(a)(4).
Therefore, Bonaccorsy’s motion to strike will be denied.
     2
       Because the remedy for filing a claim prematurely before
pending administrative remedies have been exhausted is more
appropriately to dismiss the claim rather than to enter a
judgment precluding further litigation, see Rattigan v. Gonzales,
503 F. Supp. 2d 56, 68 (D.D.C. 2007) (stating that “[d]ismissal
results when a plaintiff fails to exhaust administrative
remedies”), D.C.’s motion as to Count II will be treated as one
to dismiss.
                                -6-

“the undisputed facts support entry of summary judgment” in favor

of Bonaccorsy.3   (Pl.’s Mem. in Supp. of Mot. for Summ. J. at 4.)

                            DISCUSSION

     Summary judgment may be appropriately granted when the

moving party demonstrates that there is no genuine issue as to

any material fact and that moving party is entitled to judgment

as a matter of law.   Fed. R. Civ. P. 56(c).   “In considering a

motion for summary judgment, [a court is to draw] all

‘justifiable inferences’ from the evidence . . . in favor of the

nonmovant.”   Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d

181, 189 (D.D.C. 2008) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986)); Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).   However, a non-moving

party cannot defeat summary judgment by “simply show[ing] that

there is some metaphysical doubt as to the material facts.”

Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting

Matsushita, 475 U.S. at 586).   “Briefs containing mere

allegations or merely denying the movant's pleading are not

enough to prevent summary judgment; instead, a non-movant must go

beyond the pleadings to proffer specific facts rebutting the

movant's assertions.”   Graham v. Holder, Civil Action No. 03-1951



     3
       D.C. moved for leave to file two days late its reply to
the plaintiff’s opposition. Because Bonaccorsy did not show how
she would be prejudiced by a two-day extension, D.C.’s motion for
leave to file its reply late will be granted.
                                -7-

(RWR), 2009 WL 3088816, at *3 (D.D.C. September 29, 2009) (citing

Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007), and Burke

v. Gould, 286 F.3d 513, 517-18 (D.C. Cir. 2002)).   “The relevant

inquiry ‘is the threshold inquiry of determining whether there is

a need for a trial - - whether, in other words, there are any

genuine factual issues that properly can be resolved only by a

finder of fact because they may reasonably be resolved in favor

of either party.’”   Single Stick, Inc. v. Johanns, 601 F. Supp.

2d 307, 312 (D.D.C. 2009) (quoting Anderson, 477 U.S. at 250).      A

genuine issue is present in a case where the “evidence is such

that a reasonable jury could return a verdict for the non-moving

party,” in contrast to a case where the evidence is “so one-sided

that one party must prevail as a matter of law.”    Anderson, 477

U.S. at 248, 252.

     A complaint can be dismissed under Federal Rule of Civil

Procedure 12(b)(6) when a plaintiff fails to state a claim upon

which relief can be granted.   See Fed. R. Civ. P. 12(b)(6).

     To survive a motion to dismiss, a complaint must
     contain sufficient factual matter, acceptable as true,
     to “state a claim to relief that is plausible on its
     face.” 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.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).   The

complaint must be construed in the light most favorable to the
                                 -8-

plaintiff and “the court must assume the truth of all

well-pleaded allegations.”    Warren v. District of Columbia, 353

F.3d 36, 39 (D.C. Cir. 2004).    If a plaintiff fails to allege

sufficient facts to support a claim, that claim must be

dismissed.   See Twombly, 550 U.S. at 555-556.

I.   NOTICE UNDER D.C. CODE § 12-309

     The District of Columbia asserts that the common law claims

pled in Counts III through IX should be dismissed because the

plaintiff failed to provide timely and proper notice of a claim

under D.C. Code § 12-309.    Under that provision,

     [a]n 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.

D.C. Code § 12-309.   The notification requirement is strictly

applied, and the provision is “construed narrowly” against

claimants.   See Snowder v. Dist. of Columbia, 949 A.2d 590, 600

(D.C. 2008) (quoting Gross v. Dist. of Columbia, 734 A.2d 1077,

1081 (D.C. 1999)); Dist. of Columbia v. Dunmore, 662 A.2d 1356

(D.C. 1995).   “Notice of one type of injury . . . is not notice

of another type of injury incurred in the same incident.”    Breen

v. District of Columbia, 400 A.2d 1058, 1062 (D.C. 1979); see

also Washington v. Dist. of Columbia, 429 A.2d 1362, 1366 (D.C.

1981) (stating that a “written notice . . . will not suffice if,
                                  -9-

under a reasonable construction, it suggests a basis for the

claim that differs from the one eventually alleged”).

     Bonaccorsy’s sole argument in her opposition regarding her

notice is a legal one –- that § 12-309 does not apply to the

common law tort claims found in Counts III through IX because

“[t]he monies sought by the plaintiff are not ‘unliquidated’ but

are in fact ‘liquidated’ damages, [and] can be computed.”     (Pl.’s

Opp’n at 14-15.)   Her argument, though, is unavailing.    Damages

are liquidated and outside of the purview of § 12-309 if they are

for “an easily ascertainable sum certain,” such as back pay

awards in discrimination cases.    See Beeton v. Dist. of Columbia,

779 A.2d 918, 925 (D.C. 2001) (quoting Hartford Accident &

Indemnity Co. v. Dist. of Columbia, 441 A.2d 969, 974 (D.C.

1982)).   Unliquidated damages are “damages that cannot be

determined by a fixed formula and must be established by a judge

or jury.”   Bowie v. Gonzales, 433 F. Supp. 2d 24, 28 (D.D.C.

2006); see also Snowder, 949 A.2d at 600 (“Tort claims . . . are

considered unliquidated.”).   Bonaccorsy provides absolutely no

support or authority for her contrary position, and does not

analyze or explain why the damages she seeks in Counts III

through IX are liquidated, easily ascertainable damages that

could be determined by a fixed formula.     Bonaccorsy’s argument

need not be addressed any further.      See, e.g., City of Waukesha

v. E.P.A., 320 F.3d 228, 254 (D.C. Cir. 2003) (stating that
                                 -10-

courts need not address “asserted but unanalyzed contention[s]”);

Arizona v. Shalala, 121 F. Supp. 2d 40, 46 n.4 (D.D.C. 2000)

(refusing to address or countenance arguments that were raised

“without citing any authority”).

     Bonaccorsy has not factually countered D.C.’s assertion that

she did not timely provide the notice required by § 12-309

regarding her assault claims, nor has she addressed D.C.’s

argument that her letter did not provide a reasonable basis for

the District to be put on notice of her causes of action for

defamation, malicious prosecution, intentional infliction of

emotional distress, and conspiracy to commit tortious acts

claims.   Nothing in the record disproves that Bonaccorsy’s

September 25 notice of her February 1 assault claims fell outside

the required six-month period.    Her notice does not set forth the

time, place, cause and circumstances of the claims of

defamation,4 malicious prosecution5 and conspiracy alleged in the

instant complaint, and as reasonably construed, the notice does



     4
       The notice does not even specify what if any statement was
false. Curiously, Count III seeks damages not against D.C. but
rather against Crawford (Compl. ¶ 32) who has been neither named
in the complaint as a defendant (id. ¶¶ 1-2) nor served with
process in this case.
     5
       Nothing in either the notice or Count VII reflects that
Bonaccorsy ultimately prevailed in the proceeding against her, an
essential element of a ripe common law cause of action for
malicious prosecution.   See Joeckel v. Disabled American
Veterans, 793 A.2d 1279, 1282 (D.C. 2002) (citing Morowitz v.
Marvel, 423 A.2d 196, 198 (D.C. 1980)).
                                -11-

not suggest a basis for them.   The notice may come closest to

satisfying § 12-309 regarding the emotional distress claim (see

Def.’s Mem. Ex. 5 at 3 ¶¶ 12-13 (alleging that the proposed and

final notices of suspension caused her extreme emotional

distress)), but as she has neither rebutted nor addressed D.C.’s

argument to the contrary, she has waived or conceded the issue.

See CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478,

482-83 (D.C. Cir. 1986); Felter v. Salazar, Civil Action No. 02-

2156 (RWR), 2010 WL 165700, at *2 n.2 (D.D.C. Jan. 15, 2010).

Thus, no material facts are in dispute, and D.C. is entitled to

judgment as a matter of law on Counts III through IX.

II.   EXHAUSTION OF ADMINISTRATIVE REMEDIES

      Section 1981 of Title 42 of the U.S. Code grants certain

rights, including to sue and enjoy all benefits of a contractual

relationship free from racial discrimination.   In Count II of her

complaint, Bonaccorsy alleges that MPD Chief Lanier, Assistant

Chief Peter Newsham, Commander Jennifer Green, Gudger, and

Crawford violated § 1981 “when they initiated an adverse action

against her for seeking a TPO.”   (Compl. ¶ 26.)   D.C. challenges

Count II of the complaint, arguing that Bonaccorsy failed to

exhaust her administrative remedies on Count II because

Bonaccorsy, through her union, initiated procedures to arbitrate
                                -12-

her suspension, only to file this complaint before the

arbitration had been completed.6

     “It is a ‘long-settled rule of judicial administration that

no one is entitled to judicial relief for a supposed or

threatened injury until the prescribed administrative remedy has

been exhausted.’”    Johnson v. Dist. of Columbia, 368 F. Supp. 2d

30, 38 (D.D.C. 2005) (quoting Myers v. Bethlehem Shipbuilding

Corp., 303 U.S. 41, 50-51 (1938)).     “In addition to preserving

the ‘autonomy of the administrative agency . . . to exercise its

expertise and discretion on appropriate matters,’ . . . a robust

exhaustion requirement ‘also promotes effective and efficient

judicial review by ensuring that such review is of a fully

developed factual record, and undertaken with the benefit of the

agency's exercise of discretion or application of expertise.’”

Johnson, 368 F. Supp. 2d at 38 (quoting Randolph-Sheppard Vendors

of America v. Weinberger, 795 F.2d 90, 104 (D.C. Cir. 1986)).

Further, “requiring exhaustion may further promote judicial

efficiency in cases where ‘decision by the agency may obviate the

need for a judicial decision on the issue.’”     Johnson, 368 F.

Supp. 2d at 38 (quoting Athlone Indus. v. Consumer Products

Safety Commission, 707 F.2d 1485, 1488 (D.C. Cir. 1983)).     “In

federal court, state administrative exhaustion requirements are

considered ‘non-jurisdictional.’”      Hoey v. Dist. of Columbia, 540


     6
         D.C. raised no other issues regarding Count II.
                                -13-

F. Supp. 2d 218, 226 (D.D.C. 2008) (quoting Washington v. Dist.

of Columbia, 538 F. Supp. 2d 269, 277 (D.D.C. 2008)).

“Nevertheless, a failure to exhaust state administrative remedies

implicates ‘federalism and comity considerations . . . tilting

the scales . . . in favor of requiring exhaustion.’”     Hoey, 540

F. Supp. 2d at 227 (quoting Washington, 538 F. Supp. 2d at 277).

“Where . . . a plaintiff neglects to exhaust fully his available

state administrative remedies, dismissal for failure to

sufficiently plead a necessary element of a federal cause of

action is appropriate.”    Hoey, 540 F. Supp. 2d at 227 (internal

quotations and citations omitted).     “Couching [a] claim in

constitutional terms will not immunize it from dismissal pursuant

to the exhaustion requirement.”   Id. at 228 (quoting Washington,

538 F. Supp. 2d at 278).   Litigants may not bypass administrative

appeals simply because they assert that one or all of their

claims are constitutional in nature.     Marine Mammal Conservancy

v. Department of Agriculture, 134 F.3d 409, 413 (D.C. Cir. 1998).

     Bonaccorsy, as an employee of the District of Columbia, was

subject to the provisions of the District of Columbia

Comprehensive Merit Personnel Act (“CMPA”), D.C. Code § 1-601.1

et seq.   The CMPA assures “that the District of Columbia

government shall have a modern flexible system of public

personnel administration, which shall . . . [e]stablish impartial

and comprehensive administrative or negotiated procedures for
                                -14-

resolving employee grievances.”    D.C. Code § 1-601.2(a)(5);

Robinson v. Dist. of Columbia, 748 A.2d 409, 411 (D.C. 2000)

(stating that “[w]ith few exceptions, the CMPA is the exclusive

remedy for a District of Columbia public employee who has a

work-related complaint of any kind”).    With the CMPA, the

District “sought to create a mechanism for addressing virtually

every conceivable personnel issue among the District, its

employees, and their unions -- with a reviewing role for the

courts as a last resort, not a supplementary role for the courts

as an alternative forum.”    Alexis v. Dist. of Columbia, 44 F.

Supp. 2d 331, 349 (D.D.C. 1999) (internal quotation omitted).

D.C. Code § 1-616.52 states that an appeal from a

     suspension of 10 days or more may be made to the Office
     of Employee Appeals. When, upon appeal, the action or
     decision by an agency is found to be unwarranted by the
     Office of Employee Appeals, the corrective or remedial
     action directed by the Office of Employee Appeals shall
     be taken in accordance with the provisions of
     subchapter VI of this chapter within 30 days of the
     [Office of Employee Appeal’s] decision.

D.C. Code § 1-616.52(b).    The CMPA authorizes the Office of

Employee Appeals to hear related complaints regarding employer

conduct involving personnel ratings, employee grievances, and

adverse actions.   Dist. of Columbia v. Thompson, 593 A.2d 621,

635 (D.C. 1991).   Thus, Bonaccorsy had a remedy for the 15-day

suspension of which she complains.

     Bonaccorsy disputes neither the existence of the

administrative remedies available nor the assertion that she had
                                -15-

not exhausted them before filing this action.    Her sole argument

in opposition to D.C.’s motion to dismiss Count II is that “the

action taken by the District of Columbia against Det. Bonaccorsy

was in violation of the law.    There existed the presumption of

reviewability.”    (Pl.’s Opp’n at 16.)   To support her position,

Bonaccorsy cites Dist. of Columbia v. Sierra Club, 670 A.2d 354

(D.C. 1996), which in no way pertains to the issue raised by D.C.

In Sierra Club, the District of Columbia Court of Appeals held

that the District of Columbia Recycling Law provided a private

cause of action which an advocacy group could assert seeking an

injunction that would force the District to collect recyclable

materials in the manner described by the Act.    Id. at 360.   The

plaintiff in that case did not have administrative remedies to

exhaust, and the case did not involve an employment related

dispute brought by a District employee.    Treating D.C.’s motion

regarding Count II as one to dismiss,7 then, Bonaccorsy has

failed to state a claim for which relief can be granted, and

Count II of the complaint will be dismissed.

III. MUNICIPAL LIABILITY

     The defendant moves to dismiss Count I of the complaint

arguing that the plaintiff failed to allege a sufficient basis

for municipal liability under 42 U.S.C. § 1983 for an alleged

deprivation of rights under color of law.


     7
         See n.2, supra.
                               -16-

     A plaintiff suing the District of Columbia under § 1983

“must allege not only a violation of his rights under the

Constitution or federal law, but also that the municipality's

custom or policy caused the violation.”   Warren, 353 F.3d at 38.

A municipality can be held liable under section 1983 when the

municipality's “policy or custom . . . inflicts the injury.”

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

However, a municipality cannot be held liable under 42 U.S.C.

§ 1983 based on a theory of respondeat superior liability.     Id.

at 691-94.   “It is the plaintiff's ‘burden to establish that a

municipality has a custom or practice abridging [his]

constitutional or statutory rights.’”   Hawkins v. Lanier, 605 F.

Supp. 2d 291, 294 (D.D.C. 2009) (quoting B.R. v. Dist. of

Columbia, 524 F. Supp. 2d 35, 40 (D.D.C. 2007)).   A plaintiff can

show that a municipality’s policy or custom caused her injury by

showing that “the municipality or one of its policymakers

explicitly adopted the policy that was ‘the moving force of the

constitutional violation.’”   Warren, 353 F.3d at 39 (citing

Monell, 436 U.S. at 634).   “Or a policymaker could knowingly

ignore a practice that was consistent enough to constitute

custom.”   Warren, 353 F.3d at 39 (citing City of St. Louis v.

Praprotnik, 485 U.S. 112, 123-30 (1988)).   “Or the municipality

may not have responded ‘to a need . . . in such a manner as to

show deliberate indifference to the risk that not addressing the
                                 -17-

need will result in constitutional violations.’”      Warren, 353

F.3d at 39 (quoting Baker v. Dist. of Columbia, 326 F.3d 1302,

1306 (D.C. Cir. 2003)).     However, “[p]roof of a single incident

of unconstitutional activity is not sufficient to impose

liability under Monell, unless proof of the incident includes

proof that it was caused by an existing, unconstitutional

municipal policy.”   Oklahoma City v. Tuttle, 471 U.S. 808, 823-24

(1985); see also Byrd v. Dist. of Columbia, 297 F. Supp. 2d 136,

139 (D.D.C. 2003) (citing Parker v. Dist. of Columbia, 850 F.2d

708, 711-12 (D.C. Cir. 1988)).

     In Count I of her complaint, Bonaccorsy alleges that MPD

agents “did violate her right to be free from retaliatory acts,

at the hands of agents of the government, in violation of her

First Amendment rights,” and they “knew or should have known that

their actions violated Det. Bonaccorsy’s Constitutional Rights,

yet knowingly and willfully violated those rights” causing her

harm.   (Compl. ¶ 22-23.)   Incorporating ¶ 19 of the complaint,

Count I alleges that the MPD Chief reviewed the disciplinary

action and denied the appeal.    (Id. ¶ 19.)

     Here, Bonaccorsy’s claim does not sufficiently allege that a

policy or custom caused her harm.       While she does allege that a

policy maker adopted a suspension in her case that violated her

First Amendment rights, she cites only this single incident of a

purported violation and does not connect it to an existing,
                                   -18-

unconstitutional D.C. policy, and she does not allege that other

MPD employees were similarly retaliated against for exercising

their First Amendment rights.      In a similar § 1983 case, Sanders

v. Dist. of Columbia, 522 F. Supp. 2d 83 (D.D.C. 2007), the

plaintiff, an MPD police officer, alleged that the MPD, one of

its captains and its Chief, violated his First Amendment right to

free speech by investigating his conduct in retaliation for his

decision to speak out on a matter of public concern, causing him

harm.    Id. at 86-87.   The plaintiff alleged that D.C.’s Chief of

Police at the time ratified retaliation against Sanders by

declining to reinstate Sanders after Sanders sought reinstatement

to his previous position.    Id.    D.C. moved to dismiss his

complaint under Rule 12(b)(6), arguing that Sanders failed to

state a claim for which relief could be granted because he failed

to allege that D.C. had a policy or practice of retaliating

against employees for exercising their First Amendment right to

free speech.    Id. at 87-88.   The court agreed with D.C., stating

that

       [Sanders] has not alleged that the District of Columbia
       had a policy or practice of retaliating against
       employees for exercising the right to free speech under
       the First Amendment or that he suffered injury because
       of any such custom or policy. Nor has plaintiff
       pointed to any other employee who suffered similar
       retaliation. The policy or custom must be pervasive to
       support municipal liability, Carter v. Dist. of
       Columbia, 795 F.2d 116 (D.C. Cir. 1986), and the Court
       finds that the one incident of alleged retaliation
       against Sanders does not qualify as pervasive.
                               -19-

     Plaintiff asserts that he has alleged sufficient facts
     on this point, but the Court concludes that he has not.

Id. at 88.   In another § 1983 case, DuBerry v. Dist. of Columbia,

582 F. Supp. 2d 27, 39 (D.D.C. 2008), the court entered judgment

in favor of D.C. on the plaintiff’s claim that D.C. violated his

Fifth Amendment equal protection rights when his employment was

terminated by a reduction in force that was approved by the

Director of D.C.’s Department of Corrections.      The court held

that the plaintiff failed to sufficiently connect his harm to a

policy or practice of D.C. because the plaintiff had “not

produced any evidence that the Department’s alleged

discriminatory employment practices impacted a single employee or

prospective employee other than himself.”    Id.    The court

rejected the plaintiff’s argument that a policy-maker employed by

D.C. ratified unconstitutional activity when the Department’s

director “ultimately approved” the decision of which the

plaintiff complained because the Director’s approval did “not

mean that the Department has an official custom, practice, or

policy of discriminating against the disabled in its employment

practices.   Were it otherwise, nearly every act could impute

Section 1983 liability to the government.”    Id.    A complaint that

does not sufficiently allege harm caused by a municipality’s

policy or custom “fails to allege a necessary element of

liability under § 1983, and that claim must be dismissed.”
                               -20-

Hawkins, 605 F. Supp. 2d at 295.   Accordingly, Count I of

Bonaccorsy’s complaint will be dismissed.

                            CONCLUSION

     The District of Columbia has shown that Bonaccorsy failed to

provide sufficient notice of her common law tort claims, that her

claim alleging municipal liability fails to allege that she was

injured as the result of a policy or practice of the District of

Columbia, and that she failed to exhaust her administrative

remedies before filing her claim for discrimination in violation

of 42 U.S.C. § 1981.   Therefore, the motion to dismiss or in the

alternative for summary judgment will be granted.    An appropriate

order accompanies this memorandum opinion.

     SIGNED this 12th day of February, 2010.



                                                /s/
                                      RICHARD W. ROBERTS
                                      United States District Judge
