UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRITZ G. AUBIN,

Plaintiff,
Civil Case No. 14-02133 (RJL)

FIiED
JUN052015

Clerk, U.S. District & Bankruptcy
41/ Courts forthe District of Columbia

MEMO NDUM OPINION
June , 2015 [Dkt. # 5]

Plaintiff Fritz G. Aubin (“plaintiff”) brought this suit against defendants the

V.

THE DISTRICT OF COLUMBIA, et al.,

Defendants.

VVVVVVVVV

District of Columbia and Ofﬁcer David Hong (“defendants”) in DC. Superior Court,
which was removed to this Court on December, 17, 2014, asserting both common law
and constitutional claims for injuries allegedly stemming from plaintiff‘s October 7, 2013
arrest. See generally Second Am. Compl. (“SAC”) [Dkt. # 1—1]. Before the Court is
defendant District of Columbia’s Motion to Dismiss or Alternatively Motion for

Summary Judgment. [Dkt. # 5].l

Upon consideration of the pleadings, record, and
relevant law, I ﬁnd that the complaint fails to state a claim, and therefore defendant’s

motion is GRANTED, and all claims against defendant District of Columbia are

dismissed with prejudice.

 

I Defendant David Hong separately moved to dismiss the case on March 27, 2015. See Def.
Hong’s Mot. to Dismiss or Alternatively Mot. for Summary Judgment [Dkt. # 14].

BACKGROUND

Plaintiff alleges that on October 7, 2013, at approximately 9:00 am, he was
approached by DC. Metropolitan Police Officers at the intersection of 8th Street and
Pennsylvania Avenue in the District of Columbia. SAC ‘11 8. Plaintiff was “detained,
handcuffed, arrested and jailed” by defendant David Hong and charged with one count of
driving under the inﬂuence and one count of operating while impaired. [d. On October
24, 2013, plaintiff was arraigned and ordered to undergo substance abuse evaluation as
well as pre-trial monitoring. Id. All charges were later dismissed by the DC. Superior
Court on June 10, 2014. Id.

On August 13, 2014, plaintiff ﬁled a complaint in DC. Superior Court, and on
December 3, 2014, plaintiff s counsel amended the complaint to include allegations of
constitutional violations. See Second Am. Compl. [Dkt. # l—l]. On December 17, 2014,
defendant District of Columbia removed this case to federal court. See Notice of
Removal [Dkt. # 1]. In his Second Amended Complaint, plaintiff alleges seven counts
including false imprisonment, false arrest, false light and invasion of privacy,
defamation, negligent training and supervision, and negligent inﬂiction of emotional
distress (collectively, the “common law claims” or “DC. Code claims”), SAC 1111 9—31, as
well as one count of“Violation ofConstitutional Rights” under 42 U.S.C. § 1983 for
violations of plaintiff’s Fourth, Fifth, Sixth, Fourteenth, and Eighth Amendment rights

(collectively, the “constitutional claims”), SAC W 32-35.

ANALYSIS

Federal Rule of Civil Procedure 12(b)(6) provides that a district court shall dismiss
a complaint for “failure to state a claim upon which relief can be granted." Fed. R. Civ.
P. 12(b)(6). Although all factual allegations in a complaint are assumed to be true when
deciding a Rule 12(b)(6) motion, and all reasonable inferences are drawn in a plaintiffs
favor, the Court need not accept either inferences “unsupported by the facts set out in the
complaint” or “legal conclusions cast in the form of factual allegations.” Kowal v. MCI
Commc’ns Corp, 16 F.3d 1271, 1276 (DC. Cir. 1994). “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff‘s
obligation to provide the grounds of his entitle[ment] to relief requires more than labels
and conclusions, and a formulaic recitation of the elements ofa cause of action will not
do." BeIIAIZ. Corp. v. Twombly, 550 US. 544, 555 (2007) (alteration in original)
(citations and internal quotation marks omitted). To survive a motion to dismiss, a
complaint must contain sufﬁcient factual matter that, if accepted as true, “state[s] a claim
to reliefthat is plausible on its face.” Id. 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." Ashcroft v. Iqbal, 556 US. 662
(2009). This plausibility standard “asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. In addition, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief, ‘this basic deficiency should . . . be

exposed at the point of minimum expenditure of time and money by the parties and the

court.” Twombly, 550 U.S. at 558 (quoting 5 WRIGHT & MILLER § 1216 at 233—234)

(alteration in original).

Plaintiffs constitutional claims fail because he has not alleged that any of the
misconduct took place pursuant to an ofﬁcial policy or custom. The District of
Columbia, as a municipality, can only be liable under 42 U.S.C. § 1983 for constitutional
deprivations suffered by plaintiff if “there is a direct causal link between a municipal
policy or custom and the alleged constitutional deprivation." City of Canton v. Harris,
489 U.S. 378, 385 (1989); see Monell v. Dep’t ofSoc. Servs., 436 U.S. 658, 692 (1978)
(section 1983 “imposes liability on a government that, under color ofsome ofﬁcial
policy, ‘causes' an employee to violate another's constitutional rights”). A direct causal
link can be shown in two ways. Either a municipal body may cause a constitutional tort
through the adoption and promulgation of a formal policy, Monell, 436 U.S. at 690, or, in
the absence of a formal policy, through a “custom” that is so pervasive “as to have the
force of law,” Board of the County Commissioners of Bryan County, Oklahoma v. Brown,
520 U.S. 397, 404 (1997). In all events, the municipality’s liability can be predicated

"only [upon] acts for which the municipality itselfis actually responsible.” City ofSt.
Louis v. Praprotnik, 485 U.S. 112, 123 (1988).

A municipality's failure to train its employees can suffice as a “custom” or

“policy” under 42 U.S.C. § 1983 ifthat failure evidences “‘deliberate indifference’

towards the constitutional rights of persons in its domain.” Daskalea v. District of

Columbia, 227 F.3d 433, 441 (DC. Cir. 2000) (quoting City ofCanton, 489 U.S. at 388~

89 & n. 7). Such indifference attaches only when “the need for more or different training
is so obvious, and the inadequacy so likely to result in the violation of constitutional
rights, that the policymakers of the city can reasonably be said to have been deliberately
indifferent to the need." City ofCanton, 489 US at 390.

Here, plaintiff has utterly failed to allege any facts that would demonstrate a
custom, practice, or policy that led to the violation of his constitutional rights. Similarly,
plaintiff‘s complaint fails to identify any policymaker who consciously chose to violate
plaintiff” s constitutional rights or was deliberately indifferent to the risk that
constitutional rights would be violated. Plaintiff has not alleged that any municipal
employee was so inadequately trained that the city was “deliberately indifferent” to the
need for better training. Instead, plaintiff merely relies upon the one incident ofhis own
arrest in his allegations, which is legally insufficient to allege a municipal custom or
policy. See Brookens v. United States, 981 F. Supp. 2d 55, 64 (D.D.C. 2013) (dismissing
Section 1983 claims where plaintiff relied on own personal circumstances to show policy
or custom). Accordingly, the claims alleging constitution violations under Section 1983
will be dismissed.

Plaintiff“ 5 common law claims—Le, false imprisonment, false arrest, false light,
invasion of privacy, defamation, negligent training and supervision, and negligent
inﬂiction of emotional distress—also fail because plaintiff failed to give defendant timely
notice, which is a strict requirement to preserve those claims against the District of

Columbia. Plaintiff does not contest that his April 23, 2014, letter was untimely, but

instead argues that the police report adequately apprised defendant of the injury claimed,
thus satisfying the notice requirement. See P1.’s Opp. [Dkt. # 7] at 6. I disagree.

In order to maintain an action against the District of Columbia for the type of
common law claims alleged here, a plaintiff must satisfy the mandatory notice
requirement of DC. Ofﬁcial Code § 12-309. Section 12—309 provides, in pertinent part:

[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 ofthe approximate time,

place, cause, and circumstances ofthe injury or damage.

DC. Code § 12-309. The notice requirement of Section 12-309 is a prerequisite to a suit
against the District of Columbia “because it represents a waiver of sovereign immunity.”
Faison v. District ofColumbia, 664 F. Supp. 2d 59, 68 (D.D.C. 2009) (citing Johnson v.
District ofColumbia, 572 F. Supp. 2d 94, 1 11 (D.D.C. 2008). Compliance with the notice
requirement is mandatory. Id. “Courts should strictly construe Section 12-309’5 notice
requirements.” Day v. District of Columbia Dep ’t of Consumer & Regulatory A ﬂairs,

191 F. Supp. 2d 154, 158 (D.D.C. 2002).

There are two ways to satisfy the 12-309 requirement: (1) a written notice to the
Mayor ofthe District of Columbia, or (2) a police report prepared in the regular course of
duty. Blocker-Burnette v. District ofColumbia, 730 F. Supp. 2d 200, 204 (D.D.C. 2010).
“In order for police reports made in the regular course of duty to satisfy the Section 309
requirement of notice, it must contain information as to the approximate time, place,

cause, and circumstances ofinjury or damage ‘ . . .with at least same degree of specificity

required by written notice.’” Pitts v. District ofColumbia, 391 A.2d 803. 808 (DC.
1978) (quoting Jenkins v. District ofColumbia, 379 A.2d 1177, 1178 (DC. 1977))
(emphasis added). “[T]he inquiry with respect to a police report’s capacity to satisfy §
12-309'5 notice obligation is whether ‘the District should have anticipated, as a
consequence of receiving the police reports, that a complaint by [plaintiffI would be
forthcoming.m Mazloum v. District ofColumbia Metro. Police Dep ’t, 522 F. Supp. 2d
24, 49 (DEC. 2007) (quoting Allen v. District ofColumbia, 533 A.2d 1259, 1262 (DC.
1987): see also Jones v. Ritter, 587 F. Supp. 2d 152, 159 (BBC. 2008).

The police report at issue here fails to satisfy the requirements ofthe statute. See
Def.’s Mot, Ex. 4 (MPD Police Report) [Dkt. # 5-4] at 3. While the police report does
describe the circumstances of the arrest generally, it does not describe any potential
causes of action plaintiffmight have against the District of Columbia. la’. Tellingly, the
report does not describe that plaintiff suffered any actual injury. let alone that plaintiff
suffered an injury that was attributable to defendant. Id; see also Allen v. District of
Columbia, 533 A.2d 1259, 1263 (DC. 1987) ("a police report of an arrest is
presumptively devoid of any notice ofa potential claim of injury or damage from false
arrest. assault and battery, or negligence”). Put simply, there was no reason whatsoever,
on the basis ofthis police report, for defendant to have anticipated that a complaint by

plaintiff was forthcoming. Accordingly, the DC. Code offenses must also be dismissed.
CONCLUSION

Thus, for all of the foregoing reasons, defendant’s motion to dismiss is

GRANTED, and this case is DISMISSED as to defendant District of Columbia with

prejudice for failure to state a claim. A separate Order consistent with this decision

accompanies this Memorandum Opinion.

 

 

