                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
CAROLINE ROBINSON,             )
                               )
          Plaintiff,           )
                               )
          v.                   ) Civil Action No. 09-2294 (EGS)
                               )
DISTRICT OF COLUMBIA, et al., )
                               )
          Defendants.          )
______________________________)

                        MEMORANDUM OPINION

     This matter is before the Court on (i) defendants’ motion to

dismiss the complaint or for partial summary judgment, and (ii)

defendants’ motion to strike certain materials plaintiff attached

to her opposition to the motion to dismiss or for partial summary

judgment.   Upon consideration of the motions, the responses and

replies thereto, the applicable law, and for the reasons set

forth below, the motion to dismiss or for summary judgment will

be GRANTED IN PART and DENIED IN PART.   The motion to strike will

be DENIED as moot.

I.   BACKGROUND

     This case arises from the death of Arnell Robinson, a 20

year old District of Columbia resident who was allegedly struck

and killed by Metropolitan Police Department (“MPD”) officer

Michael Pepperman (“Officer Pepperman”) on March 6, 2009.

According to plaintiff’s allegations, Mr. Robinson was riding his

yellow motorcycle in the 400 block of O Street, Northwest at
approximately 3:00 p.m.    Mr. Robinson was unarmed and riding

properly in his lane of traffic.       Compl. ¶¶   14, 22.   Officer

Pepperman, accompanied by MPD officer Gina Leveque, was driving

an unmarked police car traveling in the opposite direction.

Compl. ¶ 15.   Without warning, honking, or turning on his lights

or sirens, Officer Pepperman swerved his car to the left, crossed

the center of the road, and intentionally drove into Mr.

Robinson’s path.   Compl. ¶ 16.   The car and the motorcycle

collided head on; Mr. Robinson was thrown from the bike.        He was

rushed to Howard University Hospital, where he was pronounced

dead shortly thereafter.   Compl. ¶ 20.

     Plaintiff Caroline Robinson, the decedent’s mother, has

filed a 24-count complaint against Officer Pepperman and the

District of Columbia (the “District”) both individually and as

personal representative and administrator of Arnell Robinson’s

estate. Eight counts of the complaint contain constitutional

claims.   Counts I and II allege Fourth Amendment violations of

unreasonable seizure, false arrest, and excessive force against

Officer Pepperman.   Count III alleges Fifth and Fourteenth

amendment violations of substantive due process against Officer

Pepperman.   Count IV is a 42 U.S.C. § 1983 claim against the

District on the theory of municipal liability.       Counts XIII, XIV,

XV, and XVI repeat the allegations set forth in Counts I - IV,

but as survivorship counts as opposed to wrongful death counts.


                                   2
The remaining counts allege a variety of common law claims

against both defendants, including negligence, assault, battery,

infliction of emotional distress, and negligent failure to hire,

retain, train and supervise.   Plaintiff seeks compensatory and

punitive damages plus costs and attorney’s fees.

     Defendants move for dismissal, or in the alternative for

partial summary judgment on the constitutional claims against

both defendants.1   Plaintiff responds that she has alleged

sufficient facts in her complaint to sustain her claims at the

motion to dismiss stage of the proceedings, or, alternatively,

that she has set forth genuine issues of material fact to survive

defendants’ motion for summary judgment.

     Defendants attached a declaration from Officer Pepperman to

their motion.   Plaintiff attached numerous exhibits to her

opposition, including several declarations and a collision

assessment from a forensic consultant.   In their reply,

defendants moved to strike some of the material plaintiff

provided pursuant to Federal Rules of Civil Procedure 12(f) and

56(e).   The parties conducted limited additional briefing on the

motion to strike.   Both motions are now ripe for determination by

the Court.



     1
       As discussed infra, defendants move for summary judgment
on plaintiff’s Fourth Amendment claim and move to dismiss
plaintiff’s Fifth and Fourteenth Amendment and municipal
liability claims.

                                 3
II.   STANDARD OF REVIEW

      A.   Motion to Dismiss

      A motion to dismiss under Rule 12(b)(6) tests the legal

sufficiency of a complaint.     Browning v. Clinton, 292 F.3d 235,

242 (D.C. Cir. 2002).    A complaint must contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief, in order to give the defendant fair notice of what the

. . . claim is and the grounds upon which it rests.”     Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation

marks and citations omitted).    “‘[W]hen ruling on a defendant’s

motion to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint[,]’”     Atherton v. D.C.

Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting

Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and grant the

plaintiff “the benefit of all inferences that can be derived from

the facts alleged.”     Kowal v. MCI Commc’ns Corp., 16 F.3d 1271,

1276 (D.C. Cir. 1994).     A court must not, however, “accept

inferences drawn by plaintiffs if such inferences are unsupported

by the facts set out in the complaint.    Nor must the court accept

legal conclusions cast in the form of factual allegations.”        Id.

In addition, “[t]hreadbare recitals of the elements of a cause of




                                   4
action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).       “[O]nly a

complaint that states a plausible claim for relief survives a

motion to dismiss.”     Id.     A complaint must therefore plead

“‘factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.’”     Atherton, 567 F.3d at 681 (quoting Iqbal, 129 S. Ct.

at 1949).    This, in turn, “asks for more than a sheer possibility

that a defendant has acted unlawfully”; a complaint alleging

facts that are “‘merely consistent with’ a defendant's liability

. . . ‘stops short of the line between possibility and

plausibility of entitlement to relief.’” Iqbal, 129 S. Ct. at

1949 (quoting Twombly, 550 U.S. at 557).

     B.      Summary Judgment

     Under Federal Rule of Civil Procedure 56, a motion for

summary judgment shall be granted if the pleadings, depositions,

answers to interrogatories, admissions on file and affidavits

show that there is no genuine issue of material fact, and that

the moving party is entitled to judgment as a matter of law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986).         To be

material, the factual assertion must be capable of affecting the

outcome of the litigation; to be genuine, the issue must be

supported by sufficient admissible evidence that a reasonable

fact finder could find for the non-moving party.        Id. at 248; see


                                      5
also Lanningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir.

1987).

     In determining whether a genuine issue of material fact

exists, the Court must view all facts in the light most favorable

to the non-moving party.    See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).   The non-moving

party’s opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by

affidavits or other competent evidence setting forth specific

facts showing that there is a genuine, material issue for trial.

Fed. R. Civ. P. 56(e); see Celotex Corp. v. Cattrett, 477 U.S.

317, 322 (1986).

III. ANALYSIS

     A.     Fourth Amendment Claims

     Defendants move for summary judgment on plaintiff’s Fourth

Amendment claims, arguing that Officer Pepperman did not “seize”

Mr. Robinson and therefore that no Fourth Amendment violation

occurred.   Plaintiff responds that she has presented a genuine

issue of material fact sufficient to overcome summary judgment.

For the reasons that follow, the Court agrees that a genuine

issue of material fact exists as to whether Officer Pepperman

effected a seizure of Mr. Robinson.   Accordingly, defendants’

motion for summary judgment is DENIED.




                                  6
     To establish a Fourth Amendment violation for excessive use

of force by a police officer, a plaintiff must demonstrate that

first, he was seized, and second, that the use of force applied

in the seizure was unreasonable.       See Graham v. Connor, 490 U.S.

386, 397 (1989); Johnson v. Dist. of Columbia, 528 F.3d 969, 973

(D.C. Cir. 2008).   In Brower v. County of Inyo, the Supreme Court

defined a seizure as follows:

     [A] Fourth Amendment seizure does not occur whenever
     there is a governmentally caused termination of an
     individual’s freedom of movement [], nor even whenever
     there is a governmentally caused and governmentally
     desired termination of movement [], but only when there
     is a governmental termination of freedom of movement
     through means intentionally applied.

489 U.S. 593, 596-97 (1989) (emphasis in original).      In other

words, a seizure “requires an intentional acquisition of physical

control . . . and the detention or taking itself must be

willful.”   Id. at 596.

     Plaintiff’s Fourth Amendment claims of excessive force are

premised on the theory that Officer Pepperman intentionally drove

into Mr. Robinson in order to force him to stop his motorcycle.

See, e.g., Compl. ¶¶ 14-17, 41, 59, 53, 54, 174-77, 182-89.

Specifically, she claims that Officer Pepperman purposely swerved

into the lane of Mr. Robinson’s oncoming motorcycle with the

intention of stopping him, “which was tantamount to effecting a

traffic stop.”   Compl. ¶¶ 41, 174.     Plaintiff alleges that

Officer Pepperman intentionally swerved left into Mr. Robinson’s


                                   7
path while Mr. Robinson was navigating speed bumps, that Mr.

Robinson was unable to swerve to avoid Officer Pepperman because

there were cars parked to his right, and that Officer Pepperman

then collided with Mr. Robinson, head on.   Compl. ¶¶ 16-19.

Plaintiff further alleges that this intentional use of force was

unreasonable, since Mr. Robinson was unarmed, not engaged in

imminently dangerous behavior, and since Officer Pepperman never

gave any indication that he wanted Mr. Robinson to stop the

motorcycle, such as flashing his lights or activating his siren.

Compl. ¶¶ 51-54, 183-88.

      Defendants argue that summary judgment is appropriate

because Officer Pepperman had no intention of stopping Mr.

Robinson, never made any contact with Mr. Robinson himself, and

indeed tried to avoid the collision entirely.   Defs.’ Mem. at 8-

10.   Because there was no intent to stop Mr. Robinson, defendants

claim, he was not “seized” in violation of the Fourth Amendment.2

Defendants offer the declaration of Officer Pepperman in support

of their argument.   According to Officer Pepperman, he was

driving down the street but stopped his vehicle when he saw the

motorcycles approaching.   Declaration of Officer Pepperman

(“Pepperman Decl.” ¶ 6).   Mr. Robinson continued toward the



      2
       Defendants make no argument regarding the second prong of
the excessive force test: if indeed a seizure occurred, whether
the use of force applied in effecting the seizure was
unreasonable. See Graham, 490 U.S. at 397.

                                 8
stopped police car, lost control of his motorcycle and was

“propelled into a parked car” - not Officer Pepperman’s car -

which resulted in his death.    Pepperman Decl. ¶¶ 7-10.

     In her opposition, plaintiff provides declarations from two

eyewitnesses to the collision that flatly contradict Officer

Pepperman’s version of events.    Adam Wilson, a neighborhood

resident, observed “the Officer driving the unmarked police

vehicle swerve[] into the path of Mr. Robinson’s motorcycle.    The

Officer’s vehicle was moving when he hit Mr. Robinson’s

motorcycle.”   Declaration of Adam Wilson (“Wilson Decl.”) p. 2.

Mr. Wilson continues, “the Officer sped up as he swerved into Mr.

Robinson’s lane of traffic.    He did not slow down.   The police

car crashed into Mr. Robinson’s motorcycle head-on, and Mr.

Robinson’s body hit the right-front of the police car and went

flying over the hood[.]”    Wilson Decl. p. 3.   Another

neighborhood resident, Kenneth Lindsay, states that he was on his

balcony overlooking the 400 block of O Street when the collision

occurred and had a clear view of the incident.    Declaration of

Kenneth Lindsay (“Lindsay Decl.”) p. 1.    Mr. Lindsay also states

that Officer Pepperman swerved into Mr. Robinson’s lane of

traffic and collided with the motorcycle and with Mr. Robinson.

Lindsay Decl. p. 2.   Defendants have not moved to strike either

of these declarations.     See Defs.’ Reply/Mot. to Strike at 13-14;

see generally Defs.’ Sur-Surreply.


                                   9
     As the declarations of Officer Pepperman, Mr. Wilson and Mr.

Lindsay make clear, a genuine issue of material fact exists:

namely, whether Officer Pepperman intentionally swerved into Mr.

Robinson’s lane of traffic in order to stop Mr. Robinson, thus

arguably effecting a seizure under the Fourth Amendment.   That

dispute can only be resolved by evaluating the conflicting

testimony of Officer Pepperman on the one hand, and Mr. Wilson

and Mr. Lindsay on the other.   The Court concludes, therefore,

that summary judgment is inappropriate.    See Johnson, 528 F.3d at

977 (quoting Saucier v. Katz, 533 U.S. 194, 216 (2001)(Ginsburg,

J., concurring in the judgment)) (“Of course, if an excessive

force claim turns on which of two conflicting stories best

captures what happens on the street, [a court may] not permit

summary judgment in favor of the defendant official.”)

Accordingly, defendants’ motion for summary judgment on

plaintiff’s Fourth Amendment claims is DENIED.

     B.    Fifth and Fourteenth Amendment Claims

     In Counts III and XV of her complaint, plaintiff alleges the

defendants violated Mr. Robinson’s Fourteenth and Fifth Amendment

substantive due process rights.    Defendants move to dismiss both

claims.   The Court addresses each of them in turn.

     Plaintiff’s Fourteenth Amendment claims are easily resolved.

Defendants correctly point out that the Fourteenth Amendment does

not apply to the District of Columbia or its officials/employees,


                                  10
and plaintiff does not dispute this argument.      See Bolling v.

Sharpe, 347 U.S. 497, 499 (1954).      Accordingly, the Court GRANTS

defendants’ motion to dismiss plaintiff’s Fourteenth Amendment

claims.

        Defendants’ motion to dismiss plaintiff’s Fifth Amendment

claims is less easily resolved.    Defendants assert that plaintiff

asserts her Fifth Amendment claims under the same “seizure”

theory as her Fourth Amendment claims, and argue that all

excessive force claims must be brought under the Fourth Amendment

as a matter of law.    Defs.’ Reply at 4-6.   Plaintiff counters

that her complaint asserts a Fifth Amendment claim as an

alternative theory to her Fourth Amendment claim.     She argues

that even if no seizure occurred for purposes of a Fourth

Amendment violation, defendants may still be held liable for

police misconduct via a substantive due process claim.      Pl.’s

Opp’n at 21-24.

        Determining where a Fourth Amendment excessive force claim

ends and a Fifth Amendment substantive due process claim begins

is not always straightforward, and this Court is not aware of

authority from this Circuit that would be dispositive in this

case.    However, after careful consideration the Court agrees that

Plaintiff has pled her Fifth Amendment claim in the alternative,

and accordingly DENIES defendants’ motion to dismiss the Fifth

Amendment claims in the complaint.


                                  11
     The guarantee of substantive due process “[i]s intended to

prevent government officials from abusing their power, or

employing it as an instrument of oppression.”    County of

Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quoting Collins v.

Harker Heights, 503 U.S. 115, 126 (1992) (internal citations

omitted)).    To show a substantive due process violation,

plaintiff must show the governmental action at issue “can

properly be characterized as arbitrary, or conscience-shocking,

in a constitutional sense.”    Collins, 503 U.S. at 128.     A

litigant may make a substantive due process claim for police

misconduct so long as her claim is not “covered by a specific

constitutional provision, such as the Fourth or Eighth

Amendment.”    Lewis, 523 U.S. at 843 (quoting U.S. v. Lanier, 520

U.S. 259, 272 n.7 (1997)). “Where a particular amendment provides

an explicit textual source of constitutional protection against a

particular source of government behavior, that Amendment, not the

more generalized notion of substantive due process, must be the

guide for analyzing these claims.”    Id. at 842 (quoting Graham,

490 U.S. at 395).   However, when a claim of government misconduct

is not “covered by” another amendment to the Constitution,

substantive due process analysis may be appropriate.       Id. at 843.

     The Lewis Court addressed when substantive due process

claims, as opposed to Fourth Amendment seizure claims, are

appropriate in the context of excessive force cases.   The Court


                                 12
held that “only a purpose to cause harm unrelated to the

legitimate object of arrest [or investigatory stop, or other

seizure] will satisfy the element of arbitrary conduct shocking

to the conscience, necessary for a due process violation.”     Id.

at 836 (emphasis added).    In other words, “conduct intended to

injure in some way unjustifiable by any government interest” is

unlikely to be covered by the Fourth Amendment; instead, it “is

the sort of official action most likely to rise to the

conscience-shocking level” at issue in substantive due process

cases.   Id. at 844.

     The parties have not cited cases in this Circuit which

directly address whether a ‘seizure’ occurs, and thus the Fourth

Amendment applies, when the complained-of conduct occurred

outside of a criminal investigation or other form of justifiable

governmental activity.   However, a number of other Circuits have

addressed this issue and found that “governmental conduct which

is not actuated by an investigative or administrative purpose

will not be considered a 'search' or 'seizure' for purposes of

the Fourth Amendment.”     U.S. v. Attson, 900 F.2d 1427, 1430 (9th

Cir. 1990); see also Poe v. Leonard, 282 F.3d 123, 136 (2d Cir.

2002) (substantive due process analysis appropriate where officer

surreptitiously videotaped plaintiff undressing at police

facility); Coon v. Heron, 181 F.3d 100, No. 97-1480, 1999 WL

357779, *2 (6th Cir. May 19, 1999) (plaintiff may proceed with


                                  13
substantive due process claim where officer shot him with no

provocation and for no apparent reason); Davis v. Hillside, 190

F.3d 167, 172-73 (3d Cir. 1999) (McKee, J., concurring)

(substantive due process analysis applies where police

“gratuitously rammed [] car . . . to ‘teach [driver] a lesson’ or

to ‘get even’”); Jones v. Wellham, 104 F.3d 620, 628 (4th Cir.

1997) (rejecting Fourth Amendment claim and applying substantive

due process analysis where plaintiff alleged police officer raped

her because “the harm inflicted did not occur in the course of an

attempted arrest or apprehension of one suspected of criminal

conduct”); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559

(1st Cir. 1989)(upholding substantive due process claim where

police opened fire without warning on unarmed man not suspected

of criminal activity); Shillingford v. Holmes, 634 F.2d 263, 265-

66 (5th Cir. 1981), abrogated on other grounds by Valencia v.

Wiggins, 981 F.2d 1240 (5th Cir. 1993) (substantive due process

claim appropriate where police beat unarmed observer who had

photographed the police arresting another man).

     The allegations plaintiff makes in her substantive due

process claims are consistent with Lewis and its progeny.      She

claims that Officer Pepperman had no legitimate law-enforcement

purpose in his encounter with Mr. Robinson; accordingly, his

actions do not constitute a seizure cognizable under the Fourth

Amendment.   In Counts III and XV of her complaint plaintiff


                                14
alleges that Officer Pepperman “intentionally obstructed

Decedent, without legal cause or reason, and without notice, in

an unmarked police car[.]”   Compl. ¶¶ 64, 198.   She further

alleges that Officer Pepperman “swerv[ed] into the Decedent’s

motorcycle without any provocation or lawful reason[.]”    Compl.

¶¶ 65, 199. In her opposition to defendants’ motion to dismiss,

she argues:

     [I]gnoring for a moment the strong evidence of
     Defendant Pepperman’s evidence to make a traffic stop .
     . . [he] misused his power as a police officer, and
     crashed into or swerved into and played chicken with
     Mr. Robinson because he was a police officer and
     thought he could get away with it . . . . [A] police
     officer cannot simply approach someone on the street
     and strike them with deadly force . . . whether for
     sport or for fun or simply to show ‘em who’s boss, and
     when a police officer does [this] he has violated the
     person’s Fifth Amendment due process rights.”

Pl.’s Opp’n at 23.

     Defendants ignore this alternative theory in its entirety.

Rather, they insist that plaintiff has only alleged an

unconstitutional seizure under the Fourth Amendment, and

accordingly is foreclosed from asserting a Fifth Amendment claim.

Defs.’ Reply at 4-6.   For the reasons set forth above, the Court

rejects this selective reading of the complaint.   Federal Rule of

Civil Procedure 8(d)(3) permits a plaintiff to plead inconsistent

claims in support of alternative theories of recovery.     See Fed.

R. Civ. P. 8(d)(3) (2009)(“a party may state as many separate

claims or defenses as it has, regardless of consistency.”)


                                15
Reading the complaint in the light most favorable to plaintiff,

the Court finds she has properly alleged a Fifth Amendment

violation as an alternative theory to her Fourth Amendment claim.

Accordingly, defendants’ motion to dismiss plaintiff’s Fifth

Amendment claims is DENIED.

     C.    Qualified Immunity

     Qualified immunity shields government officials “from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.”      Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982).      Defendants argue that

Officer Pepperman did not violate Mr. Robinson’s constitutional

rights, thus ending the inquiry.      Defs.’ Mem. at 11.   They do not

address the second prong of the qualified immunity analysis:

whether the rights at issue were “clearly established” at the

time of the alleged violation.     Harlow, 457 U.S. at 818; see also

Saucier, 533 U.S. at 201.

     As set forth above, the Court has concluded that plaintiff

has articulated a violation of rights protected by the Fourth and

Fifth Amendments.   Therefore, the Court cannot accept defendants’

argument that Officer Pepperman is immune from suit on those

grounds.   The Court recognizes that it may grant immunity to an

official who has violated a constitutional right if that right

was not clearly established at the time.     However, defendants


                                 16
make no argument on this issue, despite the fact that “the burden

is on the official claiming immunity to demonstrate his

entitlement.” Dennis v. Sparks, 449 U.S. 24, 29 (1980).

Accordingly, the Court DENIES qualified immunity to Officer

Pepperman at this stage of the proceedings.

     D.   Municipal Liability Under § 1983

     i.   Standard of Review

     Before turning to the merits of the parties’ arguments on

municipal liability, the Court first resolves the threshold

question of whether it will convert the defendants’ motion to

dismiss plaintiff’s municipal liability claims into one for

summary judgment.

     Whether to consider matters outside the pleadings in

connection with a motion to dismiss is a matter wholly within the

discretion of the Court.   If a court chooses not to consider such

matters, the motion to dismiss is resolved in accordance with

Federal Rule of Civil Procedure 12.   See Dial a Car, Inc. v.

Transportation, Inc., No. 93-2170, 1994 WL 902774, *1 (D.D.C.

Sept. 8, 1994) (disregarding outside materials provided by

plaintiff in opposition to motion to dismiss); see also Ware v.

Associated Milk Producers Inc., 614 F.2d 413, 414-415 (5th Cir.

1980) (same).   This discretion also exists where, as here, a

motion to dismiss is combined with a motion for summary judgment.

“When a motion to dismiss is combined with a motion for summary


                                17
judgment and outside matters are considered by the court with

respect only to the latter motion, the district judge may dispose

of the motion either under Rule 56 or may limit its disposition

to the motion to dismiss.”    5C Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure § 1366 (3d ed. 2004)

(citations omitted).

      In this case, defendants have moved for summary judgment on

plaintiff’s Fourth Amendment claims, but moved to dismiss her

municipal liability claims.   Defendants did not attach any

factual materials outside the complaint relating to the municipal

liability claims.   Plaintiff, however, attached a host of factual

materials to her opposition, including some which could be used

to support her municipal liability claim against the District.

Despite these attachments, the Court notes that in her opposition

memorandum, plaintiff argues only that her claim of municipal

liability should survive a motion to dismiss.   Pl.’s Opp’n at 21-

24.   Defendants attached no factual materials to their reply

brief, and again argue that the municipal liability claim should

be dismissed pursuant to Rule 12(b)(6).   Having reviewed the

arguments on municipal liability contained in the pleadings, the

Court is of the view that they can and should be resolved on the

basis of the complaint, without reference to the Declarations of

Anna Conroy and Thomas Butler or any other materials filed by

plaintiff in support of her opposition.   Because the Court does


                                 18
not consider these or any outside factual materials in resolving

the municipal liability claims, the Court will treat defendants’

motion on this issue as a motion to dismiss.

     ii.   The District’s Liability

     In order to hold a municipality liable for civil rights

violations under § 1983, the municipality must have acted in

accordance with a “government policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be said

to represent official policy.”   Monell v. Dep’t of Social Servs.,

436 U.S. 658, 694 (1978).   The failure to train, supervise or

discipline city employees can constitute a policy or custom if it

amounts to “‘deliberate indifference’ towards the constitutional

rights of persons in its domain.”     Daskalea v. Dist. of Columbia,

227 F.3d 433, 441 (D.C. Cir. 2000) (internal quotations omitted).

“Deliberate indifference is determined objectively, by analyzing

whether the municipality knew or should have known of the risk of

constitutional violations, and yet failed to respond as

necessary.”   Byrd v. Dist. of Columbia, 297 F. Supp. 2d 136, 139

(D.D.C. 2003) (quoting Baker v. Dist. of Columbia, 326 F.3d 1302,

1307 (D.C. Cir. 2003)).   The Supreme Court has outlined at least

two ways in which deliberate indifference may be established.

First, if city policymakers “know to a moral certainty” that

their police officers will encounter certain situations, the need

to train officers on how to respond to those situations “can be


                                 19
said to be so obvious that failure to do could properly be

characterized as deliberate indifference to constitutional

rights.”   City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10

(1989) (internal quotations omitted).   Second, “it could also be

that the police, in exercising their discretion, so often violate

constitutional rights that the need for further training must

have been plainly obvious to the city policymakers, who,

nevertheless, are deliberately indifferent to the need.”     Id.

     Defendants argue that plaintiff’s complaint contains merely

“conclusory allegations” and that she has not pled sufficient

facts to state a claim under § 1983.    Defs.’ Mem. at 14.   The

Court disagrees, and finds that plaintiff has alleged enough

facts to state a plausible deliberate indifference claim against

the District.

     In support of her municipal liability claim, Plaintiff

alleges that “it was the policy, practice and custom of [the

District], endemic to its MPD, to encourage and permit officers

on patrol in their vehicles to intimidate young motorcyclists,

intentionally, using means including but not limited to swerving

into motorcyclists’ lane of traffic causing the rider to swerve,

fall or lose control of the motorcycle.”   Compl. ¶ 75.   She

recounts the facts surrounding the incident between Mr. Robinson

and Officer Pepperman, and then claims that similar incidents

were “commonplace and were knowingly and tacitly condoned by


                                20
supervisors.”   Compl. ¶¶ 78, 211.   She alleges that the District

“fail[ed] to investigate and pursue reports of unlawful seizures

and use of excessive force, and failed to deter such behavior by

its agents through proper training, reprimand, suspension or

dismissal, particularly with respect to incidents involving young

motorcyclists.”   Compl. ¶¶ 79, 212.   She alleges that the

District’s failure to train its officers in effectuating proper

seizures of motorcyclists, without using excessive force, created

a situation where MPD Officers were “almost certain to violate

the constitutional rights of young motorists in the District of

Columbia through unreasonable seizure, use of excessive force,

and deprivation of due process of the law, without fear of

consequence.”   Compl. ¶¶ 79, 212.

     Taking these allegations together, the Court finds plaintiff

has alleged a specific form of misconduct: intimidating and

harassing motorcyclists by, inter alia, swerving into their lanes

of traffic and causing them to fall or lose control of their

vehicles.   She alleges the District should have known about this

misconduct because it was “commonplace” and reported, but the

District refused to investigate or otherwise pursue the reports.

Finally, she presents a plausible causal connection between the

District’s alleged failure to train, supervise, or discipline

officers regarding the alleged misconduct and the constitutional

deprivation Mr. Robinson allegedly suffered.    See City of Canton,


                                21
489 U.S. at 390, n.10; see also Anderson v. City of Blue Island,

No. 08-7097, 2010 WL 1710761, *2 (N.D. Ill. Apr. 28, 2010).

Plaintiff has alleged enough facts to suggest she may be entitled

to relief against the District; accordingly, it would be

inappropriate to dismiss her claim at this stage of the

proceedings.    Defendants’ motion to dismiss plaintiff’s municipal

liability claim is therefore DENIED.

     E.     Punitive Damages

     Plaintiff seeks punitive damages against the District,

alleging that its “outrageous, intentional, reckless and grossly

negligent unconstitutional acts exhibit the degree of malice to

warrant punitive damages.”     Compl. ¶ 88.   She claims that this

case could present the type of “extraordinary circumstance” under

which this Circuit has said such damages could be appropriate,

and argues that it would be premature to decide this issue prior

to discovery.    Pl.’s Opp’n at 45 (citing Daskalea, 227 F.3d at

447).3    The District responds that punitive damages are never

available against the District absent an express statutory

mandate which does not exist here. Even if damages were available


     3
       In Daskalea, the Court of Appeals stated that
“extraordinary circumstances” warranting punitive damages against
a municipality might be present where “a jurisdiction's taxpayers
are directly responsible for perpetrating the policies that
caused the plaintiff's injuries. . . . [or] where a municipality
or its policymakers have intentionally adopted the
unconstitutional policy that caused the damages in question.” 227
F.3d at 447.

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under Daskalea’s extraordinary circumstances test, the District

argues, such circumstances are not present in this case.    Defs.’

Reply at 19-20.

     The Court agrees with plaintiff that resolving whether she

may recover punitive damages is premature.   Accordingly,

defendants’ motion to dismiss plaintiff’s punitive damages claim

is DENIED WITHOUT PREJUDICE.

     F.   Motion to Strike

     Finally, the Court turns to defendants’ motion to strike

certain materials submitted by plaintiff in support of her

opposition to the motion to dismiss or for summary judgment.    As

set forth above, the Court did not consider any of the disputed

material in resolving the defendants’ motion.   Accordingly,

defendants’ motion to strike is DENIED as moot.

III. CONCLUSION

     For the reasons set forth above, the Court GRANTS IN PART

AND DENIES IN PART the defendants’ motion to dismiss, or in the

alternative for summary judgment.    The Court DENIES AS MOOT

defendants’ motion to strike.   An appropriate Order accompanies

this Memorandum Opinion.


SIGNED:   Emmet G. Sullivan
          United States District Judge
          September 14, 2010




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