                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 DEON JACKSON,

    Plaintiff,
                                                         Civil Action No. 13-205 (CKK)
           v.

 THE DISTRICT OF COLUMBIA, et al.,

    Defendants.


                                 MEMORANDUM OPINION
                                     (June 13, 2013)

       Plaintiff Deon Jackson filed suit against the District of Columbia, and Metropolitan

Police Department Officers Joshua Boutaugh and Michael Weiss, asserting violations of the

Plaintiff’s civil rights, in addition to common law tort claims in connection with a traffic stop

during which the Plaintiff alleges Officer Boutaugh broke the Plaintiff’s arm. Presently before

the Court is the District of Columbia’s [8] Motion to Dismiss Count I of the Plaintiff’s

Complaint. Upon consideration of the pleadings1 and the relevant legal authorities, the Court

finds the Plaintiff failed to allege a violation of certain constitutional rights, and failed to

sufficiently plead a connection between any District policy and the purported violations of his

constitutional rights. Accordingly, the District of Columbia’s motion is GRANTED and Count I

of the Complaint is DISMISSED WITHOUT PREJUDICE as to the District of Columbia.

                                      I. BACKGROUND

       The following facts are drawn from the Plaintiff's Complaint, which the Court accepts as

true for purposes of deciding the District of Columbia’s motion to dismiss.        On or about



       1
           Def.’s Mot., ECF No. [8]; Pl.’s Opp’n, ECF No. [12]; Def.’s Reply, ECF No. [14].
February 18, 2012, the Plaintiff was driving in the area of the 900 block of Rhode Island Avenue,

Northeast, in Washington, D.C. Compl., ECF No. [1], ¶ 6. Officers Weiss and Boutaugh pulled

the Plaintiff’s vehicle over, and Officer Weiss allegedly informed the Plaintiff that the Plaintiff

had been observed driving erratically and violating “several traffic laws.” Id. Upon Officer

Weiss’s request to roll down the driver’s side window, the Plaintiff explained that the window

was broken, and opened the door to provide Officer Weiss with his license, registration, and

proof of insurance. Id. Officer Weiss then returned to the patrol car. Id.

       While Officer Weiss was at the patrol car, the Plaintiff alleges that Officer Boutaugh

approached the passenger’s side of the Plaintiff’s vehicle, pointed a penlight at the Plaintiff, and

asked “what’s up homey.” Compl. ¶ 7. Officer Boutaugh then purportedly asked the Plaintiff if

he would agree to undergo a breathalyzer test and consent to a search of his vehicles. Id. The

Plaintiff replied no, and closed the driver’s side door, informing Officer Boutaugh that he was

cold. Id. The Plaintiff alleges that Officer Boutaugh proceeded to run to the driver’s side of the

vehicle, yank open the door, and “violently yank[] Plaintiff from the vehicle while bending his

arm back.” Id. The Plaintiff asserts that he was not resisting, but felt excruciating pain as

Officer Boutaugh pulled the Plaintiff out of the vehicle and “slam[med] him up against the

vehicle very hard and handcuff him.” Id. After the Plaintiff complained that he was unable to

move his arm and believed it was broken, Officer Weiss called an ambulance, which transported

the Plaintiff to Washington Hospital. Id. at ¶ 8.

       The Plaintiff alleges that while he was in the emergency room at Washington Hospital, he

was approached by a “Sergeant Pope” and asked to submit to a breathalyzer or blood alcohol

test. Compl. ¶ 8. The Plaintiff refused, and asked to speak to a lawyer. Id. The Plaintiff was

diagnosed with multiple fractures in one of his arms, although the Complaint never identifies

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which arm was broken. Id. at ¶ 9. The Plaintiff alleges, without further elaboration, asserts that

he was “treated and later placed under arrest for assault on a police officer” and transported to

the Fifth District MPD station. Id.

        The Plaintiff claims that on or about July 20, 2012, the charge(s) against the Plaintiff

were dismissed for want of prosecution. Compl. ¶ 10. The Plaintiff filed suit on February 15,

2013, asserting eight causes of action: (1) deprivation of civil rights under color of law in

violation of 42 U.S.C. § 1983 as to all Defendants; (2) assault/battery against Officer Boutaugh;

(3) intentional infliction of emotional distress as to Officers Boutaugh and Weiss; (4) false

arrest/false imprisonment as to Officers Boutaugh and Weiss; (5) malicious prosecution as to

Officers Boutaugh and Weiss; (6) negligent failure to properly train and supervise against the

District of Columbia; (7) negligent hiring/retention as to the District of Columbia; and (8)

negligence as to all Defendants. The District of Columbia now moves to dismiss Count I for

failure to state a claim.

                                      II. LEGAL STANDARD

        Federal Rule of Civil Procedure 12(b)(6) provides that a party may challenge the

sufficiency of 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, 129 S.

Ct. 1937, 1949 (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, 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, 129 S .Ct. at 1949. The Court

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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 parties].” Ward v. D.C. Dep’t of Youth

Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (citations omitted).

                                        III. DISCUSSION

       Section 1983 provides a remedy against “any person” who, under color of state law,

deprives another of rights protected by the Constitution. 42 U.S.C. § 1983. In Monell v. New

York City Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that

municipalities and other local government entities were included amongst those persons to whom

§ 1983 applies. 436 U.S. at 690. However, the Court indicated that municipalities may not be

held liable under section 1983 “unless action pursuant to official municipal policy of some nature

caused a constitutional tort.” Id. at 691. “[A] municipality cannot be held liable solely because it

employs a tortfeasor---or, in other words, a municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Id. Rather, “it is when execution of a government’s policy or

custom . . . inflicts the injury that the government as an entity is responsible under § 1983.” Id.

Municipality liability under section 1983 involves two separate issues: “(1) whether plaintiff's

harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for

that violation.” Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). The District of

Columbia moves to dismiss Count I of the Complaint on the grounds the Plaintiff failed to

adequately plead both a constitutional violation, or facts sufficient to state a plausible claim that

the District of Columbia is responsible for any constitutional violation.

       A.      Constitutional Violation(s)

       Count I of the Complaint states in conclusory form that “[t]he Defendants [sic] actions

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arise under the United States Constitution, particularly under the provisions of the First, Fourth,

Fifth, Sixth and Fourteenth Amendments.” Compl. ¶ 16. As the District of Columbia notes, the

Fourteenth Amendment does not apply to the District. See Bolling v. Sharpe, 347 U.S. 497, 498-

99 (1954). Moreover, the Plaintiff’s Opposition offers no response to the District of Columbia’s

argument that the Complaint failed to provide sufficient factual allegations that, if true, would

establish a violation of the Plaintiff’s constitutional rights under the First, Fourth, and Sixth

Amendments. “It is well understood in this Circuit that when a plaintiff files an opposition to a

dispositive motion and addresses only certain arguments raised by the defendant, a court may

treat those arguments that the plaintiff failed to address as conceded.” Hopkins v. Women’s Div.,

Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003). Accordingly, to the extent

the Plaintiff purports to bring a claim under section 1983 against the District of Columbia for

violations of his First, Fourth, or Sixth Amendment rights, the claim is dismissed without

prejudice. To the extent the Plaintiff attempts to bring a claim under section 1983 against the

District of Columbia for violations of his Fourteenth Amendment rights, the claim is dismissed

with prejudice.

       B.         District of Columbia’s Responsibility for Constitutional Violations

       The District of Columbia further argues that the Plaintiff failed to adequately allege that a

policy or custom of the District of Columbia caused any violations of the Plaintiff’s

constitutional rights. Under this prong, “[t]he 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 v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)

(citations omitted). The Plaintiff’s Opposition points to three paragraphs in the Complaint that

purportedly allege the necessary link: paragraphs 2, 3, and 10. Pl.’s Opp’n at 2. All three

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citations appear to be in error, as paragraphs 2, 3, and 10 of the Complaint discuss the Court’s

jurisdiction, the Plaintiff’s residency, and the failure of Officers Weiss and Boutaugh to appear in

court, respectively. Moreover, Paragraphs 14 through 20 of the Complaint, which comprise

Count I, fail to include even a single reference to any District policy.

        The remainder of the Complaint fares no better in satisfying the pleading requirements

for municipal liability. Paragraph 4 states that “[t]he District of Columbia through its agents,

DCMPD and/or its officers operates under, and administers a set of law enforcement policies,

rules, practices and customs involving the arrest, apprehension and detention of citizens, as well

as the hiring, training and supervision of its police officers.” However, the Complaint offers no

factual allegations as to what policy, rule, practice or custom cause the violation of his

constitutional rights, or otherwise explain how a District policy “was the moving force behind

the constitutional violation.” Bake, 326 F.3d at 1306. Absent any factual allegations to show an

“affirmative link” between a policy or custom and the purported constitutional violation, the

Plaintiff fails to state a claim for municipal liability. Id.

        In his Opposition, the Plaintiff emphasizes that he “has alleged that the District failed to

properly train Defendant officers on ‘proper investigation procedures and the procedures for

searching and arresting of individuals that they come into contact with,’ and that the District was

aware of this deficiency.” Pl.’s Opp’n at 2 (quoting Compl. ¶ 43). The language quoted by the

Plaintiff is derived from Count VI of the Complaint, negligent failure to properly train and

supervise. The Supreme Court has “have previously rejected claims that the Due Process Clause

should be interpreted to impose federal duties that are analogous to those traditionally imposed

by state tort law.” Collins, 503 U.S. at 128. A claim based on “a city’s alleged failure to train its

employees” lies in negligence, and cannot support a constitutional claim. Id. The Plaintiff’s

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conclusory allegations as to the District’s purported negligence in training Officers Boutaugh and

Weiss are insufficient to state a claim for municipal liability under section 1983.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court finds the Plaintiff failed to state a claim for

municipal liability under 42 U.S.C. § 1983 against the District of Columbia. The Plaintiff

conceded that he failed to allege a violation of his First, Fourth, and Sixth Amendment rights,

and the Fourteenth Amendment does not apply to the District of Columbia as a matter of law.

Furthermore, the Plaintiff failed to plead any facts demonstrating an affirmative link between any

District policy or regulation and the purported violations of the Plaintiff’s constitutional rights.

Accordingly, Count I of the Complaint is DISMISSED WITHOUT PREJUDICE as to the

District of Columbia. An appropriate Order accompanies this Memorandum Opinion.



                                                          /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      UNITED STATES DISTRICT JUDGE




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