UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

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MARVIN JORDAN, )
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Plaintiff, )

V ) Civil Action No. 14—0242 (RCL)

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DISTRICT OF COLUMBIA, et al., )
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Defendants. )

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MEMORANDUM OPINION

This matter is before the Court on Defendant Mayor Vincent Gray’s Motion to

Dismiss [ECF No. 20]. For the reasons discussed below, the motion will be granted.
1. BACKGROUND

According to plaintiff, two Metropolitan Police Department ofﬁcers were dispatched
on July 21, 2011, to the 1200 block of Missouri Avenue, NW. in response to a call from an
unknown individual “stating that there was a [black male] with a baseball cap standing at the
corner of 1200 Block of Missouri, Ave., NW.” First Am. Compl. [ECF No. 15] at 2 (page
numbers designated by plaintiff). The officers allegedly “showed up in an unmarked scout car”
and encountered plaintiff at that location.” Id. Plaintiff alleged that “the ofﬁcers did not identify
themselves and automatically drew their service weapon[s].” Id. Plaintiff ran away in a
“panic.” Id. Without ﬁrst making an “attempt to yell to stop [plaintiff], or ﬁre a warning shot,
[or] use a taser, or any other means to communicate and/or attempt to stop him,” 1d, the ofﬁcers
“ﬁred their weapons . . . , one bullet striking [plaintiff] in the back, and the second bullet hitting

him in his right arm.” Id. Although plaintiff was taken to the Washington Hospital Center, he

1

allegedly did not receive proper treatment for his gunshot wounds, as bullet fragments remain in
his body “causing him physical pain, [limiting] use of his right arm, and caus[ing] mental stress

and anguish.” Id.
Ground Five of plaintiff s First Amended Complaint reads:

MAYOR VINCENT GRAY, WHO IS RESPONSIBLE FOR THE
OPERATION AND IMPLEMENTATION OF LAWS,
STATUTES, AND POLICIES GOVERNING THE OPERATION
OF PROCEDURES OF THE DEFENDANTS NAMED IN
GROUND ONE THROUGH GROUND FOUR, WHO ACTED IN
CONCERT AND CONSPIRED BY NOT INVESTIGATING
MISCONDUCT AND MULTIPLE SHOOTINGS BY OFFICERS,
AND/OR LACK OF MEDICAL CARE & TREATMENT.
MAYOR GRAY ACTED UNDER COLOR OF STATE &
FEDERAL LAWS, STATUTES, AND POLICIES UNDER HIS
INDIVIDUAL & OFFICIAL CAPACITY, IN VIOLATION OF
TITLE 28 U.S.C. §l983, §1985(3), §1986 (by way of
discrimination); BIVENS TITLE 28 U.S.C. §1441, §1443,
§2412(d)(2)(c), §2672 ch. 171 (FTCA-TORT).

First Am. Compl. at 4-5 (emphasis in original).1 For alleged violations of rights protected under
the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution, id. at 1,
plaintiff demands nominal, compensatory, and punitive damages, id. at 7—8.
1']. DISCUSSION
A. Dismissal Under Rule 12(b)(6)
A plaintiff need only provide a “short and plain statement of [his] claim showing that
[he is] entitled to relief,” Fed. R. Civ. P. 8(a)(2), that “give[s] the defendant fair notice of what

the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 US. 89, 93

1 “John/Jane Does, Captain; Ofﬁcer Matos & Ofﬁcer Nowoschik, all from Metro D.C. Police Dept; John/Jane
Doe’s Doctors & nurses & medical staffs, all from the Washington Hospital Center” have been dismissed as parties
to this action, and the claims against them (Grounds One through Four) will be dismissed. Vincent Gray, former
Mayor of the District of Columbia, is the sole defendant. For administrative convenience, the case caption remains

unchanged, and the Court proceeds as if the current Mayor of the District of Columbia had been substituted. See
Fed. R. Civ. P. 25(d).

(2007) (per curiam) (quoting Bell All. Corp. v. Twombly, 550 US. 544, 555 (2007)) (internal
quotation marks omitted). “A motion to dismiss under Rule l2(b)(6) tests not whether the
plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim.”
Woodruﬂv. DiMarz'o, 197 F.R.D. 191, 193 (D.D.C. 2000). In considering such a motion, the
“complaint is construed liberally in the plaintiff[’s] favor, and [the Court] grant[s] plaintiffI] the
beneﬁt of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc ’ns
Corp, 16 F.3d 1271, 1276 (DC. Cir. 1994). However, “the [C]ourt need not accept inferences
drawn by plaintifﬂ] if such inferences are unsupported by the facts set out in the complaint.” Id.
Nor must the Court accept “a legal conclusion couched as a factual allegation,” nor “naked
assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 US. 662, 678
(2009) (internal quotation marks and citation omitted).

A complaint survives a motion under Rule 12(b)(6) only if it “contain[s] sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. A
claim is facially plausible “when the plaintiff pleads factual content that allows the [C]ourt to
draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting T wombly, 550 US. at 556). “[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.” Id (internal quotation marks omitted) (citing Twombly, 550 US. at 557).
Although a pro se complaint is “held to less stringent standards than formal pleadings drafted by
lawyers,” Erickson, 551 US. at 94 (internal quotation marks and citation omitted), it too “must
plead ‘factual matter” that permits the court to infer ‘more than the mere possibility of
misconduct,”’ Atherton v. District of Columbia Ofﬁce offhe Mayor, 567 F.3d 672, 681-82 (DC.

Cir. 2009) (quoting Iqbal, 556 US. at 678-79), by defendant.

B. Plaintﬂ’s Bivens and F T CA Claims Are Dismissed

Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US.
388, 395-97 (1971), an plaintiff may pursue a lawsuit for damages against federal ofﬁcials in
their personal capacities for constitutional violations, and a claim under the Federal Tort Claims
Act (“FTCA”) waives the federal government’s sovereign immunity such that the United States
can be held liable for certain torts, see 28 U.S.C. §§ 2674, 2680. The Mayor of the District of
Columbia, is the sole remaining defendant. Without a federal ofﬁcial or employee as a
defendant in this case, neither Bivens nor the FTCA applies. See, e. g., Hinton v. Rudasill, 384 F.
App’x 2 (DC. Cir. 2010) (per curiam) (ﬁnding that, where “appellee did not act as a federal
ofﬁcial . . . appellant cannot bring a damages claim for a constitutional violation against appellee
under . . . Bivens”); Cannon v. United States, 645 F.2d 1128, 1137 (DC. Cir. 1981) (“This court
has uniformly held that the FTCA does not, as a general rule, render the United States liable for
the torts of employees or agencies of the District of Columbia because the District of Columbia
is an independent political entity”) (citing cases).

C. Plaintiff ’s Eighth and Fourteenth Amendment Claims Are Dismissed

The events described in plaintiffs First Amended Complaint pertain to his arrest and
medical treatment immediately after his arrest. Because his claims do not arise from the alleged
denial of adequate medical care while in custody after a criminal conviction, the Eighth
Amendment is not implicated. See Brogsdale v. Barry, 926 F.2d 1184, 1187 (DC. Cir. 1991)
(noting that, where two classes of detainees raise a constitutional claim pertaining to prison
overcrowding, “the pretrial detainees must rely upon the Fifth Amendment’s guarantee of due
process, whereas the convicted plaintiffs must ground their claims upon the Eighth Amendment’s

ban on cruel and unusual punishment”) (emphasis in original). Nor is the Fourteenth

Amendment implicated, as it does not apply to the District of Columbia. See Bolling v. Sharpe,
347 US. 497, 499 (1954); Roum v. Fenry, 697 F. Supp. 2d 39, 45 (D.D.C. 2010).
D. Plaintiﬂ’s Fourth and Fifth Amendment Claims Are Dismissed

The Court construes the remaining constitutional claims as arising under the Fourth
Amendment through the alleged use of excessive force in effecting plaintiffs arrest and under
the Fifth Amendment for defendant’s alleged deliberate indifference to plaintiffs serious
medical needs. For purposes of this Memorandum Opinion, the Court presumes without
deciding that plaintiff adequately alleges Fourth and Fifth Amendment claims which may be

brought under 42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983 (emphasis added). The District of Columbia is considered a “person” for
purposes of§ 1983. See, e.g., Best v. District ofColumbia, 743 F. Supp. 44, 46 (D.D.C. 1990);
see also Monell v. New York City Dep ’t ofSoc. Servs., 436 US 658, 690 (1978) (deﬁning
“person” to include municipalities and local government entities). “[I]n considering whether a
plaintiff has stated a claim for municipal liability, the district court must conduct a two-step
inquiry.” Baker v. District ofColumbia, 326 F.3d 1302, 1306 (DC. Cir. 2003); see Warren v.
District ofColumbia, 353 F.3d 36, 38 (DC. Cir. 2004). The court “[f]irst . . . must determine
whether the complaint states a claim for a predicate constitutional violation.” Baker, 326 F.3d at

1306. If so, then “the court must determine whether the complaint states a claim that a custom or

policy of the municipality caused the violation.” Id. Plaintiffs claims fail because the First
Amended Complaint does not allege adequately the District of Columbia’s liability.2

“[M]unicipalities are liable for their agents’ constitutional torts only if the agents acted
pursuant to municipal policy or custom . . . . Respondeat superior liability does not
apply.” Warren v. District ofColumbia, 353 F.3d 36, 38 (DC. Cir. 2004) (citing Monell, 436
US. at 694). To state a § 1983 claim against the District, then, a plaintiff “must allege not only a
violation of his rights under the Constitution or federal law, but also that the [District’s] custom
or policy caused the violation.” Id. (citing Collins v. City of Harker Heights, 503 US. 115, 123—
24 (1992)). “The plaintiff bears the burden of pleading the existence of a municipal custom or
practice that abridge[d] [his] federal constitutional or statutory rights.” T rimble v. District of
Columbia, 779 F. Supp. 2d 54, 57 (D.D.C. 2011). He may satisfy this burden if he alleges that
the District or a policymaker “explicitly adopted the policy that was ‘the moving force of the
constitutional violation,”’ Warren, 353 F.3d at 39 (quoting Monell, 436 US at 694), or that “a

policymaker ‘knowingly ignore[d] a practice that was consistent enough to constitute custom,”
Jones v. Horne, 634 F.3d 588, 601 (DC. Cir. 2011) (quoting Warren, 353 F.3d at 39), or that the

District “failed to respond to a need . . . in such a manner as to show ‘deliberate indifference’ to

2 Plaintiffs claim against Mayor Gray in his ofﬁcial capacity is “equivalent to a suit against the municipality
itself.” Atchinson v. District ofColumbia, 73 F.3d 418, 424 (DC. Cir. 1996). “Ofﬁcial-capacity suits . . .
[g]enerally represent only another way of pleading an action against an entity of which an ofﬁcer is an

agent.” Kentucky v. Graham, 473 US. 159, 166 (1985). Consequently, as courts in this district ordinarily do,
plaintiff 5 claims against Mayor Gray in his ofﬁcial capacity will be dismissed as “redundant and an inefﬁcient use
of judicial resources.” Robinson v. District of Columbia, 403 F. Supp. 2d 39, 49 (D.D.C. 2005). Moreover, because
the complaint lacks any factual allegations as to Mayor Gray’s personal involvement in the shooting or subsequent
medical treatment, the claims against the Mayor in his individual capacity will be dismissed. See Jones v. Home,
634 F.3d 588, 602 (DC. Cir. 201 1) (dismissing prisoner’s § 1983 claims against acting warden in his individual
capacity where complaint did not allege conduct causing constitutional violations); Jeﬁ’ries v. District of Columbia,
917 F. Supp. 2d 10, 25-26 (D.D.C. 2013) (dismissing § 1983 claim against Chiefofthe Metropolitan Police
Department where pleading did not allege her personal involvement in wrongdoing). The Mayor simply cannot be
held liable for alleged constitutional violations committed by the police ofﬁcers who allegedly shot plaintiff. See,
e.g., Reed v. District ofColumbia, 474 F. Supp. 2d 163, 168 (D.D.C. 2007) (ﬁnding that District and its police chief
were not liable for police ofﬁcer’s alleged use ofexcessive force).

the risk that not addressing the need will result in constitutional Violations,” id. (quoting Baker,
326 F.3d at 1306).

Nowhere in his First Amended Complaint does plaintiff identify a municipal policy,
custom or practice, the application of which directly caused the alleged constitutional violations.
Nor does plaintiff allege facts to support a claim that the police officers violated his
constitutional rights by taking actions pursuant to a municipal policy, custom or practice. On the
facts alleged, the Court concludes that the complaint fails to state a claim for municipal liability
under § 1983. See, e.g., Jones, 634 F.3d at 601; Brown v. Wilhelm, 819 F. Supp. 2d 41, 44
(D.D.C. 2011).

Ill. CONCLUSION

Because plaintiff’ s First Amended Complaint fails to state a claim upon which relief

can be granted, the Court will grant defendant’s motion to dismiss. An Order is issued

separately.

DATE: 7/Y/A/ C‘. 

ROY C. LAMBERTH
United States District Judge

 

