                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA

                                     )
RAY BERNARD WILLIAMS,                )
                                     )
             Plaintiff,              )
                                     )
     v.                              )         Civil Action No. 15-719 (GK)
                                     )
DISTRICT OF COLUMBIA, et al., )
                                     )
             Defendant.              )
~~~~~~~~~~~~~~~->

                           MEMORANDUM OPINION

     Plaintiff Ray Bernard Williams brings this action against the

Government     of   the   District        of    Columbia     ("the   District") ,

Metropolitan     Police   Officer        Daniel    Merritt    ("Merritt"),    and

Metropolitan Police Officer Cory Bines               ("Bines")   (collectively,

"Defendants"), alleging violations of the Fourth,                Fifth, Eighth,

and Fourteenth Amendments of the United States Constitution,                   as

well as numerous common law claims,               in relation to the February

22, 2014 arrest of Mr. Williams.

     This matter is before the Court on the Defendant's Partial

Motion to Dismiss Complaint         [Dkt. No.       6]. Upon consideration of

the Motion, Response [Dkt. No. 15], Reply [Dkt. No. 17], and the

entire record herein,     and for the reasons set forth below,                the

Motion shall be granted.




                                         1
I .       Background

          A.      Factual Overviewl

          On the evening of February 22,                 2014,      Plaintiff was stopped,

detained,         arrested,      and imprisoned by Defendant Officers Merritt

and Bines at the liquor store located at 1726 Columbia Rd NW,                                    in

Washington, D.C. See Compl.                ~   10. Plaintiff alleges that the stop,

detention,             arrest,   and      imprisonment         were      not     supported      by

reasonable         suspicion,        probable        cause,    or    legal      justification.

Id.   ~    11. Plaintiff also alleges that the officers used excessive

force in executing the detention and arrest, resulting in injuries

to Plaintiff that include but are not limited to: a broken nose,

two black eyes, and injuries to the sides of his head,                                  face,   and

body. Id.         ~~   12-13.

          After    his     arrest,     Plaintiff       was    charged with         Assault      and

Assaulting,            Resisting     or    Interfering        with       a     Police    Officer.

Id.   ~    14. The Office of the United States Attorney entered a nolle

prosequi in the case on March 14, 2014. Id.                          ~   16.




1 For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, the facts set forth herein are taken from
Plaintiff's Complaint [Dkt. No. 1-2].

                                                 2
         B.      Procedural Background

         Plaintiff initially filed the present case in Superior Court

    for the District of Columbia on February 19,                    2015. 2 See Compl.

    Defendants jointly removed the case to the United States District

Court for the District of Columbia on May 12, 2015, pursuant to 28

U.S.C. 1441(a). See Joint Notice of Removal [Dkt. No. 1]. Plaintiff

alleges violations of the Fourth,                   Fifth,     Eighth,   and Fourteenth

Amendments of the United States Constitution,                       as well as common

law      claims      of:     assault    and       battery;      false    arrest;       false

imprisonment;          intentional         infliction     of      emotional    distress;

negligent infliction of emotional distress; negligence; negligent

supervision,         retention,      and    training;     and     respondeat    superior

liability. See Compl.           ~~   19-68.

         Defendants filed the present Partial Motion to Dismiss on May

26,      2015.    Plaintiff    filed    his    Response      on   June   18,   2015,     and

Defendants filed their Reply on June 26, 2015. On October 6, 2015,

without seeking leave of the Court,                   Plaintiff filed an Amended

Response         [Dkt. No.   24].    Defendants filed a Motion to Strike the

Amended Response ("Mot. to Strike") on October 21, 2015 [Dkt. No.

2 8] .   Plaintiff filed an Opposition to the Motion to Strike on




2 The time stamp by the Superior Court is dated February 19, 2014,
which appears to be in error. The signature date is February 19,
2015, and appears to be the correct date.

                                              3
November 9,     2015    [Dkt. No.        29],       and Defendants filed a Reply in

Support of Motion to Strike on November 19, 2015 [Dkt. No. 31].

II.    Legal Standards

       A.   Standard of Review under Fed. R. Civ. P. 12(b) (6)

       To survive a motion to dismiss under Rule 12(b) (6) for failure

to state a claim upon which relief can be granted,                                 a plaintiff

need only plead "enough facts to state a claim to relief that is

plausible on its face" and to "nudge[ ] [his or her] claims across

the line from conceivable to plausible." Bell Atlantic Corp.                                     v.

Twombly, 550 U.S. 544, 570 (2007). "[O]nce a claim has been stated

adequately,     it    may    be   supported           by    showing       any   set    of     facts

consistent with the allegations in the complaint." Id. at 563.

       Under the Twombly standard,                   a   "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success .                   [,] must assume all the allegations in

the complaint are true            (even if doubtful in fact)                             [,    and]

must give the plaintiff the benefit of all reasonable inferences

derived from the facts alleged." Aktieselskabet AF 21.                                 November

2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)                               (internal

quotation     marks    and    citations             omitted).      The     court      does     not,

however, accept as true "legal conclusions or inferences that are

unsupported by the facts alleged."                    Ralls Corp. v. Comm. on Foreign

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

omitted).     Furthermore,          a     complaint            which       "tenders          'naked


                                                4
assertion[s]'      devoid of        'further factual enhancement'" will not

suffice.     Ashcroft v.         Iqbal,    556 U.S.       662,    678    (2009)     (quoting

Twombly, 550 U.S. at 557)            (alteration in Iqbal).

III. Analysis

       A.     Amended Response

       As an initial matter, the Court grants Defendants' Motion to

Strike       Plaintiff's     Amended        Response           ("Amended       Response") .

Defendants correctly point out that the Amended Response was filed

more than three months after the Partial Motion to Dismiss became

ripe for consideration,            and without leave of the Court. Mot.                    to

Strike at 1. In any event, the arguments in the Amended Response

do not affect the merits or change the outcome of Defendants'

Partial Motion to Di$miss.

       In response to Plaintiff's First Request for Production of

Documents, the District turned over a Use of Force Report based on

the underlying incident in this case. Amended Response at 2. The

Use of Force Report was completely blank.                        Id.    Plaintiff argues

that   the    failure    to complete        the     Use   of     Force Report       "raises

serious concerns as to the training and supervision" of Officers

Merritt      and   Bines.   Id.     This     does    not       change    the      fact   that

Plaintiff's Complaint fails to plead facts sufficient to support

his negligent supervision, retention, and training claim. See Mot.

at 10; Compl.      ~~   61-65.




                                             5
          In addition,     Plaintiff seeks to oppose dismissal of Count 7

in the Amended Response,              whereas   he had conceded dismissal       of

Count 7 in his initial Response. Amended Response at 5; Response

at   3.    The    reason for      this changed position is that "Plaintiff

originally mistakenly believed that he could not bring actions for

both assault and battery and negligence arising out of the same

set of facts." Amended Response at 5. Plaintiff cites to Harvey v.

Kasco, 109 F. Supp. 3d 173, 178 (D.D.C. 2015), an opinion that was

released one day before Plaintiff's Response was filed,                   for the

proposition that a              Plaintiff may plead alternative theories of

liability. This proposition of law is not new. Indeed, the Harvey

court cites to a 2008 case for this exact proposition. Id.                 (citing

Dingle v. Dist. of Columbia, 571 F. Supp. 2d 87, 99 (D.D.C. 2008)).

Plaintiff's           misunderstanding     of   the    law   is   not   sufficient

justification to permit amending the response.

      B.         Claims

      Plaintiff has affirmatively conceded several of Defendants'

arguments.        Given that they are uncontested,           the Court need only

discuss them briefly.

                 1.    Fourteenth Amendment

      First, Defendants argue that Plaintiff's Fourteenth Amendment

claims      against       all     Defendants    fail   because    the   Fourteenth

Amendment applies only to the States. Mot. at 5-6. Plaintiff agrees




                                           6
that the Fourteenth Amendment is inapplicable to the District of

Columbia. Response at 2.

      Plaintiff maintains                   though,         that       the    Fourteenth Amendment

claim alleging excessive force and violations of substantive due

process is still applicable to Officers Bines and Merritt.                                             Id.

Plaintiffs do not explain why they concede that the District is

not covered by the Fourteenth Amendment, but maintain that Officers

Merritt     and        Bines,    who    were        "acting            under       color    of   law   and

authority     of        the     District,"          are          covered       by     the    Fourteenth

Amendment. Response at 2; Compl.                        ~   18.

      The Fourteenth Amendment "applies only to the states," and

does not apply to the District of Columbia. Bolling v. Sharpe, 347

U.S. 497, 499           (1954). If the Fourteenth Amendment does not apply

to   the   District,          then     it    does       not       apply       to    employees     of   the

District.    Accordingly,             the portions                of Count 1 relying on the

Fourteenth Amendment are dismissed.

             2.         Fifth Amendment

      Defendants next argue that Plaintiff's Fifth Amendment claim

is based entirely on his alleged detention and therefore must be

analyzed under the Fourth Amendment. Mot.                                    at 6. A plaintiff may

make a substantive due process claim for police misconduct so long

as   his    claim        is     not    "covered             by     a    specific       constitutional

provision,    such as           the    Fourth or Eighth Amendment." County of

Sacramento        v.     Lewis,       523     U.S.          833,       843     (1998).      "[W]here     a

                                                    7
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            (internal quotation marks and citation

omitted).

     Plaintiff agrees with Defendants'                    argument.       Response at 2.

Therefore,        Plaintiff's     Fifth    Amendment            claim    in    Count   1   is

dismissed.

             3.      Eighth Amendment

     The Eighth Amendment's protections applies only to persons

"who are subject to punishment by the government, which the Supreme

Court has defined to mean persons against whom the government has

secured a     formal    adjudication of guilt               in accordance with due

process of law." Moreno v. Dist. of Columbia, 925 F. Supp. 2d 93,

100 (D.D.C. 2013)       (citing Bell v. Wolfish, 441 U.S. 520, 536 n. 16

(1979)   (internal quotation marks omitted)).

     Plaintiff was never prosecuted or convicted for any crimes

stemming from the facts of this case, and thus, Defendants argue,

the Eighth Amendment does not apply. Mot. at 7. Plaintiff agrees.

Response at 2.        Therefore,     Plaintiff's Eighth Amendment claim in

Count 1 is dismissed.




                                           8
           4.     Municipal Liability

     Defendants argue that Plaintiff has not alleged sufficient

facts to find municipal liability for constitutional violations.

Mot. at 7-8. A municipality may be held liable for a constitutional

violation only if the plaintiff alleges facts that indicate his or

her injury was caused by a municipal policy or custom. See Monell

v. Dep't of Social Servs. of City of New York, 436 U.S.                658, 694

(1978).

     Plaintiff agrees to dismiss the portion of Count 1 alleging

municipal liability against the District, Response at 3, and thus,

it is dismissed.

           5.     Negligence and Negligent Infliction of Emotional
                  Distress

     Defendants argue that Plaintiff's Negligence and Negligent

Infliction of Emotional         Distress claims are duplicative of his

intentional     tort   claims   and   should therefore       be   dismissed.      In

particular,     Defendants argue that Plaintiff "merely repeats his

intentional tort claims, without identifying any separate duty that

would form the basis for a negligence claim." Mot. at 10                   (citing

Cotton v. District of Columbia, 541 F. Supp. 2d 195, 209 (D.D.C.

2008)).   Plaintiff     agrees,   Response   at   3,   and    Counts   6    and    7

alleging Negligent Infliction of Emotional Distress and Negligence

are therefore dismissed.




                                       9
               6.     Negligent Supervision, Retention, and Training

       Defendants argue that Plaintiff has failed to allege any facts

in    the   Complaint     to   support       his   Count     8   claim       of   Negligent

Supervision,        Retention,     and Training.      Mot.       at   10.    Instead,        the

Complaint      merely    restates      the   legal   requirements           of    the     claim

itself.     Id.     Plaintiffs concede this argument in their Response.

Response at 3. Therefore, Count 8 is dismissed.

               7.     False Arrest and False Imprisonment

       Under        District     of     Columbia      law,        false          arrest       is

indistinguishable from the common law tort of false imprisonment.

Dormu v. District of Columbia, 795 F. Supp. 2d 7, 27 (D.D.C. 2011).

Defendants argue that these claims should be merged or the false

imprisonment claim dismissed. Mot. at 10-11. Plaintiff agrees that

the claims are duplicative and that the false imprisonment claim

should be dismissed. Response at 3. Accordingly, Count 4 alleging

false imprisonment is dismissed.

               8.     Respondeat Superior

      Count 9 of the Complaint alleges that the District is liable

for   the   actions     of Officers Merritt          and Bines        pursuant          to   the

common law doctrine of respondeat superior. Compl.                      ~~   66-68. While

the   District of       Columbia      recognizes     the doctrine of respondeat

superior liability, Defendants argue that it is not a stand-alone

tort. Mot. at 11. Rather, the District can be held liable only if

it is shown that its employees committed the torts pled in the


                                             10
Complaint while working        in the       scope of their employment.               See

Convit v. Wilson, 980 A.2d 1104, 1114 (D.C. 2009).

     Plaintiff   agrees   that    there       is   no    stand-alone         claim   for

respondeat superior and agrees to dismiss Count 9. Accordingly,

Count 9 is dismissed.

            9.   Punitive Damages

     Plaintiff seeks punitive damages in his Complaint, see Compl.

at 15, but "there can be no recovery of punitive damages against

a municipality absent a statute expressly authorizing it." Mot. at

12 (quoting Smith v. District of Columbia, 336 A.2d 831, 832 (D.C.

1975)). There is no such statute in the District of Columbia. See

Caldwell v. Hammonds, 53 F. Supp. 2d 1, 12                (D.D.C. 1999)         (citing

City of Newport v.      Fact Concerts,         Inc.,     453    U.S.   247     (1981)).

Plaintiff   concedes    this    with    regard      to    the     District,      while

reserving his punitive damages claim against the Officers, which

Defendants have not sought to dismiss. Response at 3. Therefore,

the request for punitive damages against the District,                         but not

Officers Bines and Merritt, is dismissed.




                                       11
IV.   Conclusion

      For   the   foregoing   reasons,    Defendants'   Partial   Motion    to

Dismiss the Complaint shall be granted. An Order shall accompany

this Memorandum.




March 30, 2016
                                                        es District Judge




Copies to: attorneys on record via ECF




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