                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
DONALD EUGENE GATES,           )
                               )
          Plaintiff,           )
                               )
          v.                   )      Civil Action No. 11-40 (RWR)
                               )
DISTRICT OF COLUMBIA et al., )
                               )
          Defendants.          )
______________________________)

                        MEMORANDUM ORDER

     Plaintiff Donald Eugene Gates brings a claim under D.C. Code

§ 2-421 et seq. for unjust imprisonment (Count 1) and

constitutional claims under 42 U.S.C. § 1983 (Counts 2 through 5)

against the District of Columbia, retired Metropolitan Police

Department (“MPD”) detectives Ronald S. Taylor and Norman Brooks,

retired MPD lieutenant John Harlow, Gerald M. Smith, and unnamed

MPD officers relating to Gates’ wrongful conviction in D.C.

Superior Court for the rape and murder of Catherine Schilling.

The District of Columbia defendants have filed an answer,1 and

Gates has moved to strike under Federal Rule of Civil Procedure

12(f) certain portions of that answer.

     “The decision to grant or deny a motion to strike is vested

in the trial judge’s sound discretion.”    Naegele v. Albers, 355

F. Supp. 2d 129, 142 (D.D.C. 2005).   Under Rule 12(f), a “court


     1
       Gates served defendant Smith on June 9, 2011, and Smith
has failed to file any response. Gates moved for default
judgment against defendant Smith on September 14, 2011.
                                 - 2 -

may strike from a pleading an insufficient defense[.]”       Fed. R.

Civ. P. 12(f).    However, a motion to strike is a drastic remedy

that courts disfavor.    See Naegele, 355 F. Supp. 2d at 142.

        The defendants have structured their answer with thirteen

headings styled as “defenses.”    While some of the sections styled

as defenses in the answer plead what the Federal Rules of Civil

Procedure would classify as an avoidance or affirmative defense,

see Fed. R. Civ. P. 8(c)(1) (“In responding to a pleading, a

party must affirmatively state any avoidance or affirmative

defense[.]”), other sections merely contain admissions and

denials.    See Fed. R. Civ. P. 8(b)(1)(B) (“In responding to a

pleading, a party must . . . admit or deny the allegations

asserted against it by an opposing party.”).    Gates argues that

some of the defendants’ defenses do not apply to certain counts

in his complaint and that others are without legal or factual

basis, and he urges that these portions of the answer be stricken

before the parties devote unnecessary resources in discovery to

them.    (Pl.’s Mem. of P. & A. in Supp. of Pl.’s Mot. to Strike

Certain Affirmative Defenses (“Pl.’s Mem.”) at 2-3.)

        While the defendants’ answer fails to identify the

particular counts to which the pled defenses apply, see Lee v.

Habashy, No. 6:09-cv-671-Orl-28GJK, 2009 WL 3490858, at *4 (M.D.

Fla. Oct. 27, 2009) (“To give fair notice of the defense, . . . a

party should identify the claim to which the defense applies.”),
                               - 3 -

they concede in their opposition that their third defense does

not apply to Counts 2 through 5, and that their fifth, ninth,

tenth, eleventh, and twelfth defenses do not apply to Count 1.

(Defs.’ Opp’n to Pl.’s Mot. to Strike Certain Affirmative

Defenses (“Defs.’ Opp’n”) at 5, 7, 8.)   Gates’ motion to strike

will be granted as conceded with respect to these defenses as to

these counts.   In addition, Gates appears in his reply to have

abandoned his motion to strike the fourth defense as to Counts 2

through 5 (Pl.’s Reply in Supp. of Pl.’s Mot. to Strike Certain

Affirmative Defenses (“Pl.’s Reply”) at 8), and the thirteenth

defense as to Count 1 (Pl.’s Reply at 3 n.1).    The motion will be

denied with respect to these defenses as to these counts.

      Furthermore, the defendants offer no response to Gates’

argument to strike the fourth defense as applied to the

allegations in Count 1.   The defendants’ arguments with regard to

that defense relate only to the § 1983 claims.   (Defs.’ Opp’n at

4.)   They thereby implicitly concede that argument by their

silence, see, e.g., Ardente, Inc. v. Shanley, No. C 07-4479 MHP,

2010 WL 546485, at *6 (N.D. Cal. Feb. 10, 2010), and Gates’

motion to strike the fourth defense as applied to Count 1 will be

granted.   Nor have the defendants rebutted the plaintiff’s

argument that the sixth defense, which denies proximate causation

by the defendants, is irrelevant to Count 1.    The only proof of

causation required for Gates to sustain his claim in Count 1
                                - 4 -

under the Unjust Imprisonment Act is proof that he did not cause

his own prosecution by his misconduct.     See D.C. Code § 2-422(2)

(stating that a person bringing suit under this section must

allege and prove that “he did not, by his misconduct, cause or

bring about his own prosecution”).      Thus, Gates’ motion to strike

the sixth defense as applied to Count 1 will be granted.

      Gates claims that the defendants have cast the sixth defense

as an affirmative defense to Counts 2 through 5, and he argues

that it asserts insufficient facts to survive as pled.     Gates’

premise that the sixth defense is cast as an affirmative defense

is faulty.    In Counts 2 through 5, Gates asserts section 1983

claims with respect to which he bears the burden to prove that

defendants proximately caused a violation of his constitutional

rights.   West v. Atkins, 487 U.S. 42, 48 (1988).     Defendants

argue that “[t]he role played by the testimony of the police

informant, Gerald M. Smith, a Defendant herein, may break the

chain of causation of acts attributable to the District

Defendants.   The independent decisions of the U.S. Attorney’s

Office, a grand jury, a jury in the criminal case, and the D.C.

Court of Appeals may likewise break the chain of causation of

acts attributable to the District Defendants.”     (Defs.’ Opp’n at

5.)   “[I]n cases brought under § 1983 a superseding cause, as

traditionally understood in common law tort doctrine, will

relieve a defendant of liability.”      Warner v. Orange County Dept.
                                 - 5 -

of Probation, 115 F.3d 1068, 1071 (2d Cir. 1997).       The assertion

that the actions of other individuals and entities may have

broken the chain of causation is not an affirmative defense, on

which the defendants bear the burden of proof, but rather a

denial of Gates’ allegation that the defendants proximately

caused his injuries.2    The burden of proof remains on Gates to

prove causation.    Gates’ motion to strike the sixth defense as

applied to Counts 2 through 5 will be denied and the defense will

be construed as a denial.

     The parties do not agree on the sufficiency of the

defendants’ third defense as applied to Count 1.      The third

defense asserts that “plaintiff may have failed to comply fully

with the mandatory notice requirements of D.C. Official Code §

12-309 (2001 ed.).”     (Defs.’ Answer at 17.)   Gates argues that

the defendants failed to challenge the notice and that the third

defense is “legally insufficient.”       (Pl.’s Reply at 3 n.2.)   Rule

8(b)(5) permits a defendant who “lacks knowledge or information

sufficient to form a belief about the truth of an allegation” to

say so in an answer.    Fed. R. Civ. P. 8(b)(5).    The defendants

have done so (Answer, Second Defense ¶ 18) in addition to

asserting the language in the third defense.      According these


     2
       The   parties appear to agree on that conclusion. (See
Pl.’s Mem.   at 15 (“The sixth affirmative defense . . . is not in
reality an   affirmative defense at all: it merely denies the
element of   causation.”); Defs.’ Opp’n at 5 (describing the sixth
defense as   “not technically a required affirmative defense”).)
                                - 6 -

assertions the presumption of good faith bases to which they are

entitled at this stage, see Fed. R. Civ. P. 11(b), and absent

binding authority presented by Gates precluding such defenses

here, there is no reason to deem the third defense as it applies

to Count 1 legally insufficient.

     The court, moreover, has an independent obligation to

satisfy itself that Gates has complied with the notice

requirement.   Section 12-309 “requires that the District receive

written notice within six months of the injury giving rise to the

claim.”    DeKine v. District of Columbia, 422 A.2d 981, 985 (D.C.

1980).    District of Columbia case law “has firmly established

that, because it is in derogation of the common law principle of

sovereign immunity, section 12-309 is to be construed narrowly

against claimants.”   District of Columbia v. Dunmore, 662 A.2d

1356, 1359 (D.C. 1995).   “[U]nless timely notice is given, no

right of action or entitlement to maintain an action accrues.”

Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C. 1981)

(internal quotation marks omitted).     The record at present

establishes only that Gates mailed his notice letter on May 14,

2010 and received an acknowledgment from the District dated June

7, 2010.   (Pl.’s Mem. at 5.)   It does not resolve the boundaries

of the six-month statutory period for notice or establish that

the District received the notice letter within that period.
                               - 7 -

Gates’ motion to strike therefore will be denied with respect to

the third defense as to Count 1.

     The parties also disagree on the applicability of the

seventh defense (contributory negligence and/or assumption of

risk) and eighth defense (wilful conduct) as to all counts.    With

regard to Count 1, as is discussed above, Gates must prove the

absence of his own culpability in causing his injury.   The

defenses, and the defendants’ arguments in their opposition, that

Gates’ contributory negligence and wilful conduct brought about

his conviction amount to a denial that Gates can meet his burden.

The seventh and eighth defenses thus are not properly

characterized as affirmative defenses.   Gates’ motion to strike

the seventh and eighth defenses will be denied as to Count 1 and

those defenses will be construed as denials.

     As applied to Counts 2 through 5, the seventh defense is

legally insufficient.   To prevail on these § 1983 claims, Gates

must prove some intentional or reckless conduct.   See Daniels v.

Williams, 474 U.S. 327, 328 (1986) (holding that due process

clause not implicated by merely negligent conduct); City of

Canton v. Harris, 489 U.S. 378, 388-89 (1989) (holding that

liability for failure to train requires proof of deliberate

indifference).   The defense of contributory negligence and/or

assumption of risk is insufficient because contributory

negligence is a defense only to negligent, not to reckless or
                               - 8 -

intentional, conduct.   See Santiago v. Lane, 894 F.2d 218, 224

(7th Cir. 1990) (rejecting contributory negligence defense to a

section 1983 suit alleging deliberate indifference because “it is

well settled that contributory negligence is not a defense to an

allegation of intentional or reckless conduct.”).   Gates’ motion

to strike the seventh defense therefore will be granted as to

Counts 2 through 5.

     Finally, the eighth defense (wilful conduct) as to Counts 2

through 5 does not function in this action as an affirmative

defense, for the same reasons as are discussed above with regard

to the sixth defense as to Counts 2 through 5.   The assertion

that Gates’ injuries resulted from his own wilful conduct is not

an affirmative defense, on which the defendants bear the burden

of proof, but rather a denial of Gates’ allegation that the

defendants proximately caused his injuries.   Bodine v. Warwick,

72 F.3d 393, 400 (3rd Cir. 1995) (recognizing that a plaintiff’s

own conduct could “constitute a superseding cause that would

limit the officer’s liability” in a § 1983 action) (internal

quotation marks and citations omitted).   Gates’ motion to strike

the eighth defense will be denied as to Counts 2 through 5 and

the defense will be construed as a denial.3



     3
      Because the motion to strike is resolved on other grounds,
Gates’ argument that heightened pleading standards should apply
to affirmative defenses will not be addressed. (Pl.’s Mem. 9-
14.)
                                 - 9 -

     Accordingly, it is hereby

     ORDERED that the plaintiff’s motion to strike be, and hereby

is, GRANTED as to the defendants’ fourth, fifth, sixth, ninth,

tenth, eleventh and twelfth defenses as to Count 1, and GRANTED

as to the defendants’ third and seventh defenses as to Counts 2

through 5.   It is further

     ORDERED that the plaintiff’s motion to strike be, and hereby

is, DENIED as to the defendants’ sixth defense as to Counts 2

through 5, DENIED as to the defendants’ seventh defense as to

Count 1, and DENIED as to the eighth defense as to all counts.

It is further

     ORDERED that the plaintiff’s motion to strike be, and hereby

is, DENIED as to the defendants’ third and thirteenth defenses as

to Count 1, and DENIED as to the defendants’ fourth defense as to

Counts 2 through 5.

     SIGNED this 18th day of November, 2011.


                                           /s/
                                 RICHARD W. ROBERTS
                                 United States District Judge
