                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

                              )
ASHLEY REGINALD MAGLIORE,     )
                              )
          Plaintiff,          )
                              )
          v.                  )     Civil Action No. 07-1921 (RWR)
                              )
OFFICER LARRY BROOKS, et al., )
                              )
          Defendants.         )
                              )

                     MEMORANDUM OPINION AND ORDER

     Plaintiff Ashley Magliore brings this action for damages

against the District of Columbia (the “District”) and

Metropolitan Police Department (“MPD”) Officers Larry Brooks and

Luis Cartagena, asserting constitutional claims of excessive

force and false arrest under 42 U.S.C. § 1983, and common law

claims of false arrest, assault and battery, negligence, and

malicious prosecution.    The defendants have moved for summary

judgment.   Because Magliore has not shown that the alleged

unconstitutional conduct was caused by any District of Columbia

policy or practice, judgment will be entered for the District on

the § 1983 claims.    Because Magliore has not shown that his

criminal charges were terminated on the merits in his favor, and

his claim of negligence is not distinct from his claims of

assault and battery and excessive force, judgment will be entered

for the defendants on the malicious prosecution and negligence

claims.   However, because there are genuine issues of material
                                 -2-

fact as to the remaining excessive force, assault and battery,

and false arrest claims, the remainder of the defendants’ motion

will be denied.

                              BACKGROUND

     One evening, Magliore patronized a tavern named Eye Bar

located on I Street N.W. in Washington, D.C.      (Pl.’s Stmt. of

Mat. Facts Not in Genuine Dispute (“Pl.’s Stmt.”) ¶ 3; Defs.’

Stmt. of Mat. Facts as to Which There are No Genuine Disputes

(“Defs.’ Stmt.”) ¶ 2.)   Cartagena and Brooks were on patrol that

night, and they stopped in front of Eye Bar to “watch the crowd.”

(Pl.’s Stmt. ¶ 27.)   Magliore had at least three drinks while

inside Eye Bar.   (Defs.’ Stmt. ¶ 3.)      At approximately 11:00 p.m.

that evening, Magliore left Eye Bar and saw his friend, Sigidi

Mbonisi, engaged in a dispute with Brooks and Cartagena.      Mbonisi

had been expelled from Eye Bar for, among other things, striking

a bouncer.   (Defs.’ Stmt. ¶¶ 4-5; Pl.’s Stmt. ¶¶ 4-5.)     Magliore

heard Mbonisi state to the officers that he had not done anything

wrong.   (Pl.’s Stmt. ¶ 6.)   The officers directed Magliore to

leave, but Magliore told the officers that he wanted information

about the incident to provide to Mbonisi’s fiancé.      (Pl.’s Stmt.

¶¶ 7-8; Defs.’ Stmt. ¶ 8.)    Brooks grabbed Magliore’s arm,

causing Magliore to put his hands out and say, “wait, wait,

wait.”   (Pl.’s Stmt. ¶¶ 9-11; Defs.’ Stmt. ¶ 9.)     Brooks then

struck Magliore in the rear left side of his head, leaving a
                                 -3-

three-inch laceration.   (Pl.’s Stmt. ¶¶ 12, 15; Compl. ¶ 4.)

Magliore alleges that Brooks and Cartagena also struck him in the

ribs, chest, right hand, and left knee with asp batons.      However,

Magliore did not specifically remember the blows to his ribs,

left knee, and chest.    (Pl.’s Stmt. ¶ 14; Defs.’ Stmt. ¶ 12.)   An

eyewitness, Ilyas Mumin, saw the officers beat Magliore with

their batons, and later kick him while he was on the ground in

handcuffs.   (Pl.’s Stmt. ¶¶ 21, 22.)   Magliore was taken to a

local hospital, where, in addition to the laceration on his head,

he was diagnosed with five fractured ribs.   (Pl.’s Stmt. ¶ 16.)

Magliore was arrested and charged with assaulting Brooks and

resisting arrest.   (Defs.’ Stmt. ¶ 15.)   Magliore denied

assaulting Brooks or resisting arrest, and Mumin said Magliore

had not been physically aggressive toward the officers.      (Pl.’s

Stmt. ¶¶ 12, 26.)   The charges were eventually dropped.     (Defs.’

Stmt. ¶ 15.)

     Magliore filed this six-count complaint against the

District, Brooks and Cartagena alleging claims under 42 U.S.C.

§ 1983 for violating Magliore’s Fourth Amendment rights to be

free from police use of excessive force (Count 1) and from false

arrest (Count 4); a claim for common law assault and battery

(Count 2); a claim for negligence for Brooks’ and Cartagena’s

failure to use reasonable care in the performance of their

official duties, and for the defendants’ failure to have a
                                -4-

sufficient number of police officers present at Eye Bar (Count

3); a claim for common law false arrest (Count 5); and a claim

for malicious prosecution (Count 6).   The defendants have moved

for summary judgment.   They argue that judgment should be entered

against Magliore on his § 1983 claims because he failed to

establish municipal liability against the District, and his

claims do not rise to the level of violations under § 1983.    The

defendants further seek judgment against Magliore on his

negligence, false arrest and malicious prosecution claims.    They

argue that a negligence claim joined with an intentional force

claim against police cannot survive without distinct facts,

missing here, reflecting negligence.   They add that the evidence

in the record establishes that Magliore was lawfully arrested for

assaulting a police officer and resisting arrest, and he has not

shown that the dismissal of his charges was with prejudice.

Finally, the defendants assert that no evidence supports the

excessive force and assault and battery claims against

Cartagena.1   Magliore opposes the defendants’ motion.


     1
      While the defendants’ motion makes the conclusory assertion
that the facts “do not rise to the level of constitutional
violations” or common law violations (Defs.’ Mot. for Summ. J.
at 1), the only two grounds advanced for judgment favoring Brooks
on the excessive force and assault and battery claims were
qualified immunity and privileged use of force (Defs.’ Mem. of P.
and A. at 11-13, 14-17). The defendants withdrew these two
arguments in their reply brief (Defs.’ Reply Mem. at 1),
acknowledging that material factual disputes exist. Thus, Brooks
is not entitled to summary judgment on Counts 1 and 2. In
addition, the parties do not discuss or attempt to resolve what
                                  -5-

                            DISCUSSION

     “‘Summary judgment may be appropriately granted when the

moving party demonstrates that there is no genuine issue as to

any material fact and that moving party is entitled to judgment

as a matter of law.’”   Pueschel v. Nat’l Air Traffic Controllers

Ass’n, 772 F. Supp. 2d 181, 183 (D.D.C. 2011) (quoting Bonaccorsy

v. Dist. of Columbia, 685 F. Supp. 2d 18, 22 (D.D.C. 2010)

(citing Fed. R. Civ. P. 56(c)).    “‘In considering a motion for

summary judgment, [a court is to draw] all ‘justifiable

inferences’ from the evidence . . . in favor of the nonmovant.’”

Pueschel, 772 F. Supp. 2d at 183 (quoting Cruz-Packer v. Dist. of

Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986));

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)).   “The relevant inquiry ‘is the threshold inquiry of

determining whether there is a need for a trial - - whether, in

other words, there are any genuine factual issues that properly

can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party.’”   Single Stick,

Inc. v. Johanns, 601 F. Supp. 2d 307, 312 (D.D.C. 2009) (quoting

Anderson, 477 U.S. at 250) (overruled on other grounds by Prime

Time Int’l Co. v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010)).


if any liability the complaint seeks or is warranted against the
District on the assault and battery and common law false arrest
claims. Thus, this opinion will not address those questions.
                                 -6-

A court should determine that a genuine issue is present in a

case where the “evidence is such that a reasonable jury could

return a verdict for the non-moving party,” a situation separate

and distinct from a case where the evidence is “so one-sided that

one party must prevail as a matter of law.”   Anderson, 477 U.S.

at 248, 252.

I.   MUNICIPAL LIABILITY

     Count 1 alleges that Brooks and Cartagena, acting under

color of their authority as police officers and acting within the

scope of their employment by the District, violated Magliore’s

Fourth Amendment right to be free from the use of excessive

force.   (Compl. ¶¶ 3, 8.)   The District argues that judgment

should be entered against Magliore on Count 1 of his complaint to

the extent it seeks to impose liability against the District

because Magliore has failed to establish any municipal liability.

     Section 1983 makes it unlawful for a person acting under

color of District of Columbia law or custom to deprive one of his

federal constitutional or statutory rights.   42 U.S.C. § 1983.

To state a claim under § 1983 against the District of Columbia, a

plaintiff “must allege not only a violation of his rights under

the Constitution or federal law, but also that the municipality’s

custom or policy caused the violation.”   Warren v. Dist. of

Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004).    The District can be

held liable under § 1983 only if its policy or custom causes the
                                  -7-

plaintiff's injury; it will not be held liable on a theory of

respondeat superior.    Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 691-94 (1978).

        The plaintiff bears the burden of pleading the existence of

a custom or practice that abridged his federal constitutional or

statutory rights.    Bonaccorsy, 685 F. Supp. 2d 18 at 26.    A

plaintiff can establish the existence of a policy or custom by

showing that “the municipality or one of its policymakers

explicitly adopted the policy that was ‘the moving force of the

constitutional violation,’” or that a policymaker “knowingly

ignore[d] a practice that was consistent enough to constitute

custom.”    Warren, 353 F.3d at 39 (quoting Monell, 436 U.S. at

694).    A plaintiff can also allege that the District showed

deliberate indifference to a risk and that not addressing that

risk resulted in constitutional violations.     See Barnhardt v.

Dist. of Columbia, 425 Fed. Appx. 2, 2-3 (D.C. Cir. 2011);

Warren, 353 F.3d at 39 (citing Baker v. Dist. of Columbia, 326

F.3d 1302, 1306 (D.C. Cir. 2003)).      However, “[p]roof of a single

incident of unconstitutional activity is not sufficient to impose

liability under Monell, unless proof of the incident includes

proof that it was caused by an existing, unconstitutional

municipal policy,” City of Okla. City v. Tuttle, 471 U.S. 808,

823-24 (1985); see also Konah v. Dist. of Columbia, Civil Action

No. 10-904 (RMU), 2011 WL 4056673, at *8 (D.D.C. September 14,
                                 -8-

2011); Byrd v. Dist. of Columbia, 297 F. Supp. 2d 136, 139

(D.D.C. 2003), or unless a single action actually establishes the

District’s policy.   See Pembaur v. City of Cincinnati, 475 U.S.

469, 481 (1986).    Accordingly, demonstrating a single instance of

a constitutional violation -- that does not itself establish

municipal policy -- without connecting it to an existing,

unconstitutional policy is not sufficient to establish municipal

liability under § 1983.   Bonaccorsy, 685 F. Supp. 2d at 27.

     Here, Magliore has conceded this issue by completely failing

to address or rebut the District’s arguments.   See Fed. R. Civ.

P. 56(e)(2) (“If a party fails to . . . properly address another

party’s assertion of fact . . ., the court may . . . consider the

fact undisputed[.]”); CSX Transp., Inc. v. Commercial Union Ins.,

Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986); Maib v. F.D.I.C., 771

F. Supp. 2d 14, 20 (D.D.C. 2011); Felter v. Salazar, 679 F. Supp.

2d 1, at 4 n.2 (D.D.C. 2010).   Therefore judgment will be entered

for the District on Count 1 to the extent Magliore seeks to

impose municipal liability.   Since Magliore has neither pled nor

proven the requisite municipal policy as a cause of the alleged

unconstitutional false arrest, the District likewise is entitled

to judgment on Count 4 to the extent Magliore seeks to hold the

District liable.2



     2
       The complaint does not clearly specify which defendants
are alleged to be liable in each count.
                                 -9-

II.    EXCESSIVE FORCE, FALSE ARREST, AND ASSAULT AND BATTERY

       Brooks and Cartagena face allegations of excessive force,

false arrest, and assault and battery.   Count 1 alleges that

Brooks and Cartagena, acting under the color of their authority

as police officers and acting within the scope of their

employment by the District, violated Magliore’s Fourth Amendment

right to be free from the use of excessive force.    (Compl. ¶¶ 3,

8.)    Count 2 alleges that Brooks and Cartagena committed common

law assault and battery against Magliore.   (Compl. ¶ 10.)

Counts 4 and 5 allege that the officers falsely arrested Magliore

in violation of the constitution and common law.    (Compl. ¶¶ 14-

16.)

       The Fourth Amendment to the United States Constitution

provides the predicate for claims of excessive force by police

officers.   It also guarantees individuals the right to be free

from unreasonable searches and seizures.    Davis v. Dist. of

Columbia, 800 F. Supp. 2d 28, 32-33 (D.D.C. 2011).    “A police

officer’s use of force is excessive and therefore violates the

Fourth Amendment if it is not ‘reasonable[.]’”   Rudder v.

Williams, No. 10-7101, 2012 WL 119589, at *3 (D.C. Cir.

January 17, 2012) (quoting Graham v. Connor, 490 U.S. 386, 396

(1989)).    “Thus, whether the force applied by an officer violates

an individual's Fourth Amendment rights turns on reasonableness.”

Davis, 800 F. Supp. 2d at 33 (citing Tennessee v. Garner, 471
                                -10-

U.S. 1, 7 (1985)).   “Determining whether the force used to effect

a particular seizure is ‘reasonable’ under the Fourth Amendment

requires a careful balancing of 'the nature and quality of the

intrusion on the individual's Fourth Amendment interests' against

the countervailing governmental interests at stake.”   Graham, 490

U.S. at 396 (citation omitted).   “This balancing test is both

objective and fact-sensitive; it looks to the totality of the

circumstances known to the officer at the time of the challenged

conduct, and it accords a measure of respect to the officer's

judgment about the quantum of force called for in a quickly

developing situation.”   Martin v. Malhoyt, 830 F.2d 237, 261

(D.C. Cir. 1987) (internal quotation omitted).

     An assault is “‘an intentional and unlawful attempt or

threat, either by words or by acts, to do physical harm to the

victim.’”    Halcomb v. Woods, 767 F. Supp. 2d 123, 136 (D.D.C.

2011) (quoting Evans-Reid v. Dist. of Columbia, 930 A.2d 930, 937

(D.C. 2007) (internal quotation omitted)).   A battery is “‘an

intentional act that causes a harmful or offensive bodily

contact.’”   Halcomb, 767 F. Supp. 2d at 136 (quoting Evans-Reid,

930 A.2d at 937)).   “Strictly speaking, a police officer

effecting an arrest commits a battery.   If the officer does not

use force beyond that which the officer reasonably believes is

necessary, given the conditions apparent to the officer at the

time of the arrest, he is clothed with privilege.   Otherwise, he
                               -11-

has no defense to the battery, at least insofar as it involves

the use of excessive force.”   Dist. of Columbia v. Chinn, 839

A.2d 701, 706 (D.C. 2003).

     “The elements of a constitutional claim for false arrest are

substantially identical to the elements of a common-law false

arrest claim.”   Scott v. Dist. of Columbia, 101 F.3d 748, 753

(D.C. Cir. 1996).   For either claim, “[t]he focal point of the

action is the question whether the arresting officer was

justified in ordering the arrest of the plaintiff; if so, the

conduct of the arresting officer is privileged and the action

fails.”   Id. (quoting Dellums v. Powell, 566 F.2d 167, 175 (D.C.

Cir. 1977)).   “[I]t is a familiar principle that probable cause

for an arrest and detention constitutes a valid defense to a

claim of false arrest or imprisonment.”   Magwood v. Giddings, 672

A.2d 1083, 1086 (D.C. 1996).   Courts determine whether probable

cause existed by analyzing the totality of the circumstances,

which requires that “the police had enough information to warrant

a man of reasonable caution in the belief that a crime has been

committed and that the person arrested has committed it.”   Barham

v. Ramsey, 434 F.3d 565, 572 (D.C. Cir. 2006) (citations

omitted).

     Here, the defendants argue that Brooks responded defensively

with only that degree of force reasonably necessary to counter

Magliore’s aggression when Magliore put his hands out and refused
                               -12-

to cooperate.   They assert there is no evidence that Cartagena

hit Magliore and that Magliore’s aggressive conduct provided

probable cause for a lawful arrest.    However, Magliore has shown

that the material facts on those claims are in genuine dispute.

Magliore denies any resistance or aggression toward the officers,

and Mumin corroborates that claim.    Moreover, Mumin said both

officers beat Magliore with their batons and kicked Magliore when

he was on the ground handcuffed.    A jury could infer support for

that percipient account from the magnitude of Magliore’s

injuries, but that is ultimately a decision to be made by a jury,

not in a summary judgment ruling.     Therefore, the defendants’

motion for summary judgment in favor of Brooks and Cartagena as

to Counts 1, 2, 4, and 5 of the complaint will be denied.

III. NEGLIGENCE

     In Count 3, Magliore alleges that the defendants were

negligent because they breached their duty of care to Magliore by

using excessive, potentially lethal force against him, and by

failing to have a sufficient number of police officers present.

(Compl. ¶¶ 11-13.)   The defendants argue that judgment should be

entered for them on Count 3 in part because the complaint does

not plead a cause of action for negligence that is distinct from

the cause of action for assault and battery.    (Defs.’ Reply

at 2.)
                                 -13-

     Typically, the elements of a claim of negligence that a

plaintiff must establish are that the defendants owed him a duty

of care, that the applicable standard of care was breached, and

that this breach of the standard of care caused his injuries.

See Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 806 (D.C.

2011).   However, in the District of Columbia, “[t]here is no such

thing as a negligent assault.”    Sabir v. Dist. of Columbia, 755

A.2d 449, 452 (D.C. 2000).

     Under District of Columbia law, a plaintiff who
     simultaneously asserts claims for negligence and
     assault and battery based on excessive force must
     ensure that the negligence claim is: (1) “distinctly
     pled;” (2) “based upon at least one factual scenario
     that presents an aspect of negligence apart from the
     use of excessive force itself;” and (3) “violative of a
     distinct standard of care.”

Dormu v. Dist. of Columbia, 795 F. Supp. 2d 7, 30 (D.D.C. 2011)

(quoting Chinn, 829 A.2d at 711).       Here, Magliore’s negligence

claim is based principally on the officers’ intentional use of

force, factual allegations indistinct from those advanced in

support of his excessive force and assault and battery claims.

Magliore offers no testimony from Klotz involving a relevant

standard of care distinct from that applicable to the excessive

force and assault and battery claims.      While Count 3 also accuses

the defendants of failing to have a sufficient number of officers

at the scene, Magliore presents no evidence of any distinct

standard of care applicable to that accusation or any testimony
                                  -14-

by Klotz supporting that portion of the claim.     Therefore,

judgment will be entered for the defendants on Count 3.

IV.    MALICIOUS PROSECUTION

       Count 6 alleges that Brooks and Cartagena maliciously

prosecuted Magliore by causing the criminal charges of assault on

a police officer to be instituted against him.     (Compl. ¶¶ 17-

19.)   The defendants argue that judgment should be entered

against Magliore on Count 6 because there was probable cause to

arrest Magliore, and because Magliore has not presented any

evidence of malice on behalf of either officer.     (Defs.’ Mem. at

18-19.)   Magliore disagrees, and argues that a genuine issue of

material fact exists as to whether the officers had probable

cause to arrest Magliore.      (Pl.’s Opp’n at 16-17.)

       “To sustain a claim for malicious prosecution of criminal

charges under District of Columbia law, a plaintiff must prove:

(1) the initiation of a criminal proceeding by the defendant;

(2) with malice; (3) without probable cause, and (4) termination

of the proceeding in favor of the plaintiff.”     Dormu, 795 F.

Supp. 2d at 32.   “[T]he termination must reflect on the merits of

the underlying action.”   Brown v. Carr, 503 A.2d 1241, 1245 (D.C.

1986) (internal quotation omitted).      Here, the docket information

Magliore attached to his opposition reflects merely that the

charges against him were dismissed.      (Pl.’s Opp’n, Ex. 8.)   “[A]

dismissal without prejudice ‘renders the proceedings a nullity
                                -15-

and leave[s] the parties as if the action had never been

brought.’”   Thoubboron v. Ford Motor Company, 809 A.2d 1204, 1210

(D.C. 2002) (quoting Bonneville Assocs. Ltd. v. Barram, 165 F.3d

1360, 1364 (Fed. Cir. 1999) (citations omitted)).   To satisfy the

fourth element of malicious prosecution, Magliore was required to

prove that his charges were dismissed with prejudice.   Magliore

has not presented any evidence that his charges were dismissed

with prejudice, and his failure to do so is fatal to Count 6.

See Rice v. Dist. of Columbia, 715 F. Supp. 2d 127, 132 (D.D.C.

2010) (dismissing claims of malicious prosecution where the

plaintiff failed to show that his criminal charges were dismissed

with prejudice); Harris v. Dist. of Columbia, 696 F. Supp. 2d

123, 134 (D.D.C. 2010) (dismissing claim of malicious prosecution

where the plaintiff submitted a docket sheet indicating only that

his criminal charges were dismissed by the government).

                        CONCLUSION AND ORDER

     Magliore has not established that the District of Columbia’s

policy or practice caused the harms he complains of or that his

criminal charges were terminated on the merits in his favor, and

his claim of negligence is not distinct from his claims of

assault and battery and excessive force.   However, genuine

disputes of material fact preclude entry of summary judgment on

the remaining claims.   Therefore, it is hereby
                               -16-

     ORDERED that the defendants’ motion [24] for summary

judgment be, and hereby is, GRANTED in part and DENIED in Part.

Judgment is entered for the District of Columbia on Counts 1 and

4, and for all defendants on Counts 3 and 6.    The motion is

otherwise denied.   It is further

     ORDERED that the parties confer and file by March 7, 2012 a

joint status report and proposed order reflecting three mutually

agreeable dates on which to hold a scheduling conference.

     SIGNED this 22nd day of February, 2012.


                                          /s/
                                      RICHARD W. ROBERTS
                                      United States District Judge
