                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA


                                    )
ANTOINE MARTIN,                     )
                                    )
                  Plaintiff,        )
                                    ) Civil Action No. 09-1241 (EGS)
                  v.                )
                                    )
DISTRICT OF COLUMBIA, et al.,       )
                                    )
                  Defendants.       )
                                    )


                            MEMORANDUM OPINION

     Pending before the Court is the motion to dismiss, or

alternative motion for summary judgment, of Defendant District of

Columbia (the “District”).      Upon consideration of the motion, the

response and reply thereto, the applicable law, and for the

reasons stated below, the Court hereby GRANTS the District’s

motion to dismiss.1




     1
          Also pending before the Court is plaintiff’s Motion for
Leave to File Out of Time, which plaintiff improperly docketed as
an attachment to his opposition brief. In his motion, plaintiff
seeks leave to file his opposition brief nine days late due to
purported computer problems. Defendant asks the Court to reject
plaintiff’s request and grant its motion to dismiss as conceded
pursuant to Local Civil Rule 7(b). Given the presumption in
favor of deciding cases on the merits, the Court declines
defendant’s request for summary dismissal and will therefore
GRANT plaintiff’s motion for leave to file out of time.
Plaintiff’s counsel is forewarned, however, that the Court will
not tolerate such behavior in the future. Leave to late-file a
brief must be obtained from the Court prior to filing the brief,
and such relief will not be granted absent an exigent
circumstance.
I.   BACKGROUND

     Plaintiff, Antoine Martin, alleges that on July 5, 2008,

while “walking peacefully in the vicinity of Fourth Street,

N.W.,” he was approached by Metropolitan Police Officer Alfonso

Matos.   Compl. ¶ 7.   Officer Matos then “began to violently beat

[Martin] with hands, fist and feet, and kick and stomp him, and

violently throw [sic] him to the ground[.]”     Compl. ¶ 7.

Plaintiff was then handcuffed and placed under arrest for

possession with intent to distribute marijuana.     See Compl. ¶¶ 7-

8; see also Pl.’s Ex. 1.    Plaintiff appeared before a judge in

the Superior Court of the District of Columbia on July 6, 2008,

and was given a date to appear back in court.    Compl. ¶ 9.

Following a subsequent court appearance all charges against

plaintiff were dismissed.   Compl. ¶ 10.

     On July 6, 2009, plaintiff filed suit in this Court against

the District of Columbia, Officer Matos, and other unknown and

unidentified officers of the Metropolitan Police Department

(“other MPD officers”).    Plaintiff alleges that “[a]s a direct

and proximate result of the actions of the Defendants,” he

“sustained numerous personal injuries to his body as a whole and

suffered humiliation and embarrassment and a loss of self

esteem[,] has suffered emotional distress, and has otherwise been

severely damaged and injured.”   Compl. ¶ 12.   He also alleges




                                  2
violations of his Fourth and Fifth Amendment rights pursuant to

42 U.S.C. § 1983.   Compl. ¶ 13.   The District filed a motion to

dismiss plaintiff’s complaint as to the District.    This motion is

now ripe for determination by the Court.

II.   LEGAL STANDARD

      A motion to dismiss under Rule 12(b)(6) tests the legal

sufficiency of a complaint.     Browning v. Clinton, 292 F.3d 235,

242 (D.C. Cir. 2002).    A complaint must contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief, in order to give the defendant fair notice of what the

. . . claim is and the grounds upon which it rests.”     Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation

marks and citations omitted).    “‘[W]hen ruling on a defendant’s

motion to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint[,]’”     Atherton v. D.C.

Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting

Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and grant the

plaintiff “the benefit of all inferences that can be derived from

the facts alleged.”     Kowal v. MCI Commc’ns Corp., 16 F.3d 1271,

1276 (D.C. Cir. 1994).    A court must not, however, “accept

inferences drawn by plaintiffs if such inferences are unsupported

by the facts set out in the complaint.    Nor must the court accept

legal conclusions cast in the form of factual allegations.”        Id.

In addition, “[t]hreadbare recitals of the elements of a cause of


                                   3
action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).     “[O]nly a

complaint that states a plausible claim for relief survives a

motion to dismiss.”     Id.   A complaint must therefore plead

“‘factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.’”     Atherton, 567 F.3d at 681 (quoting Iqbal, 129 S. Ct.

at 1949).    This, in turn, “asks for more than a sheer possibility

that a defendant has acted unlawfully”; 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.’” Iqbal, 129 S. Ct. at

1949 (quoting Twombly, 550 U.S. at 557).

III. ANALYSIS

     The District moves to dismiss plaintiff’s claims under 42

U.S.C. § 1983 for failure to state a claim.     The District also

moves to dismiss plaintiff’s common law tort claims for failure

to comply with the statutory notice requirements of D.C. Code

§ 12-309.    These arguments will be explored in turn.

     A.      Municipal Liability Under § 1983

     Plaintiff alleges that the conduct of Officer Matos and

other MPD officers violated his Fourth Amendment rights, and that

as a result of their actions, the District is liable pursuant to




                                    4
42 U.S.C. § 1983.   See Compl. ¶¶ 14-16.   Section 1983 provides,

in relevant part:

         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.

     As a threshold matter, a municipality cannot be held

vicariously liable for the actions of its officers.    See Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (“[A]

municipality cannot be held liable solely because it employs a

tortfeasor – or, in other words, a municipality cannot be held

liable under § 1983 on a respondeat superior theory.”).     Instead,

a municipality can only be liable under § 1983 if “the

municipality is itself responsible for an unconstitutional

deprivation of rights” – i.e., when the “execution of a

government’s policy or custom . . . inflicts [an] injury.”

Atchinson v. District of Columbia, 73 F.3d 418, 420 (D.C. Cir.

1996) (citing Monell, 436 U.S. at 690-91, 694) (internal

quotation marks omitted).2   Therefore, “[i]n considering whether


     2
          “There are a number of ways in which a ‘policy’ can be
set by a municipality to cause it to be liable under § 1983: the
explicit setting of a policy by the government that violates the
Constitution; the action of a policy maker within the government;

                                 5
a plaintiff has stated a claim for municipal liability . . . the

court must [first] determine whether the complaint states a claim

for a predicate constitutional violation. . . . [and] if so, then

. . . determine whether the complaint states a claim that a

custom or policy of the municipality caused the violation.”

Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir.

2003); see also Feirson v. District of Columbia, 506 F.3d 1063,

1066 (D.C. Cir. 2007) (“To impose liability on the District under

42 U.S.C. § 1983, [the plaintiff] must show 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.”

(internal quotation marks omitted)).

     In his complaint, plaintiff alleges that he was deprived of

his right under the Fourth Amendment “to be secure in his person

against unreasonable searches and seizures” by the actions of

Officer Matos and other MPD officers.   See Compl. ¶ 15.

Accepting as true all of the factual allegations contained in the

complaint, the Court concludes that plaintiff has sufficiently

pled a predicate constitutional violation.




the adoption through a knowing failure to act by a policy maker
of actions by his subordinates that are so consistent that they
have become ‘custom,’; or the failure of the government to
respond to a need (for example, training of employees) in such a
manner as to show ‘deliberate indifference’ to the risk that not
addressing the need will result in constitutional violations[.]”
Baker, 326 F.3d at 1306-07 (internal citations omitted).

                                6
     The Court must now determine whether plaintiff has

sufficiently pled a municipal custom or policy as the moving

force behind the alleged misconduct of Officer Matos and other

MPD officers.    See Baker, 326 F.3d 1306 (“The court must

determine whether the plaintiff has alleged an affirmative link,

such that a municipal policy was the moving force behind the

constitutional violation[.]” (internal citations and quotation

marks omitted)).   In his complaint, plaintiff alleges that:

      Defendant District of Columbia followed policies
      and practices that did not require and provide
      adequatestandards [sic] for h [sic] officers, and
      that did not require and provide adequate training,
      supervision, and discipline of MPD officers,
      including Defendants Matos, and other unknown and
      unidentified MPD officers. Defendant District of
      Columbia was deliberately indifferent to the rights
      of persons with whom these officers would come into
      contact. The policies and practices of the
      District of Columbia thereby caused plaintiff to be
      deprived of his right under the Fourth Amendment to
      the United States Constitution to be secure in his
      person against unreasonable searches and seizures.

Compl. ¶ 16.    While the failure to train, supervise, or

discipline city employees can constitute an actionable policy or

custom under § 1983 if it amounts to “‘deliberate indifference

towards the constitutional rights of persons in its domain’,"

Daskalea v. District of Columbia, 227 F.3d 433, 441 (D.C. Cir.

2000) (quoting City of Canton v. Harris, 489 U.S. 378, 388-89

(1989)), the Court concludes that plaintiff’s allegations cannot

survive the District’s motion to dismiss as “[t]hey do nothing

more than recite the requisite causal elements of custom or

                                  7
policy liability based on deliberate indifference[.]”   Smith v.

District of Columbia, 674 F. Supp. 2d 209, 212 (D.D.C. 2009).

Plaintiff’s conclusory statements – unsupported by additional

factual allegations – are simply insufficient to state a claim

under § 1983 against the District.3   Accordingly, because

plaintiff has provided only “‘a formulaic recitation’” of the


     3
          See, e.g., Missel v. County of Montoe, 351 Fed. Appx.
543, 546 (2d Cir. 2009) (finding that plaintiff’s municipal
liability claim was properly dismissed where the complaint did
not “contain any factual allegations to support [the plaintiff’s]
conclusory and speculative assertions” regarding the County’s
alleged failure to train the individual defendant); Ainsworth v.
City of Tampa, No. 10-293, 2010 U.S. Dist. LEXIS 54742, at *21-22
(M.D. Fla. June 2, 2010) (dismissing complaint for failure to
state a claim of municipal liability where “plaintiffs provide[d]
no additional factual allegation – other than conclusory
statements as to the City’s failure to train – supporting the
existence of an unconstitutional municipal policy”); Ottovich v.
City of Fremont, No. 09-4181, 2010 U.S. Dist. LEXIS 61761, at *11
(N.D. Cal. May 28, 2010) (“[T]he [amended complaint] fails to
identify any deficiency in [the municipality]’s training program,
let alone how any such deficiency reflects a deliberate or
conscious choice by [the municipality] or resulted in the alleged
injury to [plaintiffs]. Rather, plaintiffs’ allegations are
wholly conclusory, and, consequently, insufficient to support
plaintiffs’ claim.”); Humphrey v. John Doe Officer One, No. 09-
1689, 2010 U.S. Dist. LEXIS 38661, at *9-10 (M.D. Pa. April 20,
2010) (dismissing plaintiff’s claim for municipal liability for
failure to “‘raise a right to relief above the speculative
level’” where plaintiff alleged the legal elements of a failure-
to-train claim without supporting factual allegations (quoting
Twombly, 550 U.S. at 555)); Abreu v. City of New York, 657 F.
Supp. 2d 357, 360 (E.D.N.Y. 2009) (dismissing municipal liability
claim because the complaint’s “conclusory, boilerplate language”
that the City “fail[ed] to adequately train, discipline, and
supervise [the individual defendants]” and “fail[ed] to
promulgate and put into effect appropriate rules and regulations
applicable to the duties, conduct, activities and behavior [of
their employees]” was insufficient to suggest “a deliberate
choice by municipal policymakers to turn a blind eye to
unconstitutional conduct”).

                                8
elements of a § 1983 failure-to-train claim, Iqbal, 129 S. Ct. at

1951 (quoting Twombly, 550 U.S. at 555), the Court GRANTS

defendant’s motion to dismiss as to plaintiff’s municipal

liability claim.     This claim is hereby dismissed without

prejudice.4

     B.      Plaintiff’s Common Law Tort Claims

     The District also asserts that plaintiff’s common law tort

claims against the District should be dismissed because plaintiff

failed to provide proper notice of those claims pursuant to D.C.

Code § 12-309.     See Def.’s Br. at 7-8.   In order to bring a tort

claim against the District, § 12-309 requires a plaintiff to

provide written notice of the approximate time, place, cause, and

circumstances of the injury or damage to the Mayor of the

District of Columbia within six months of sustaining the injury

or damage.     See D.C. Code § 12-309.5   Section 12-309 can also be

     4
          In the event that plaintiff seeks leave of the Court to
file an amended complaint reasserting municipal liability,
plaintiff should be mindful that he must assert a factual basis
for his municipal liability claim sufficient to overcome the more
stringent pleading standards imposed by the Supreme Court’s
decisions in Twombly, 550 U.S. 544 and Iqbal, 129 S. Ct. 1937.
Specifically, plaintiff must plead “factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged,” not mere conclusory
statements regarding the District’s alleged liability. Atherton,
567 F.3d at 681 (quoting Iqbal, 129 S. Ct. at 1949).
     5
          D.C. Code § 12-309 provides that: “An 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

                                   9
satisfied by a written report by the Metropolitan Police

Department.    See id.   The purpose of § 12-309 is to “‘provide an

early warning to District of Columbia officials regarding

litigation likely to occur in the future,’” and “‘permit the

District to conduct an early investigation of the facts and

circumstances surrounding such claims.’”     Musgrove v. District of

Columbia, 602 F. Supp. 2d 141, 145 (D.D.C. 2009) (quoting Pitts

v. District of Columbia, 391 A.2d 803, 807 (D.C. 1978)).

     Plaintiff contends that the written police report in this

case satisfies § 12-309.     Pl.’s Opp’n Br. at 6-9; see also Def.’s

Ex. 1.    This report states, in relevant part:

         Officers were traveling north in the 4200 block of
         2nd Street when [plaintiff] looked at Officer Hill’s
         cruiser and ran in the south alley of the 4300
         Block of 2nd Street, NW. Officer Matos then
         observed [plaintiff] placed [sic] his hand in his
         right from [sic] jeans pocket and tossed [sic] a
         plastic bag containing green weed like substance
         between two black garbage bags. Officer Matos
         observed [plaintiff’s] action and pursue[d]
         [plaintiff] from the 4300 Block of 2nd Street, NW to
         the 200 block of Varnum Street, NW. [Plaintiff]
         turned north in the 4300 block of 4th Street, when
         Officer Dossen and Officer Matos stopped
         [plaintiff] in the middle of the block. Officer
         Hill respondent [sic] back to the location where
         [plaintiff] tossed the clear plastic bag and
         recovered the bag. . . . [Plaintiff] was placed
         under arrest for USCA PWID Marijuana and was
         transported to the 4th district for process[.]



of Columbia of the approximate time, place, cause, and
circumstances of the injury or damage. A report in writing by the
Metropolitan Police Department, in regular course of duty, is a
sufficient notice under this section.”

                                  10
Def.’s Ex. 1.6

     While a police report can satisfy § 12-309, it does so only

if it asserts facts from which the District could reasonably

anticipate that a claim against the District would arise from

plaintiff.   See, e.g., Allen v. District of Columbia, 533 A.2d

1259, 1262 (D.C. 1987).   The existence of a police report,

therefore, “does not necessarily mean that the District has

received the actual notice which § 12-309 contemplates[.]”     Id.

Instead, to satisfy § 12-309, the police report “must contain

information as to the time, place, cause and circumstances of

injury or damage with at least the same degree of specificity

required of a written notice.”   Id. (internal quotation marks

omitted).

     In this case, the police report suggests a lawful arrest of

plaintiff, and contains no reference to any assault or injury of

plaintiff.   While plaintiff asserts that “a police report noting

the details of the arrest of a defendant puts one on notice that

if the defendant is not subsequently convicted, that the arrest



     6
          Although the police report was not attached to the
complaint, the Court will treat it as incorporated therein, see
Compl. ¶ 8 (“On July 5, 2008, Plaintiff Martin was placed under
arrest and cited as arrest number 040802022.”), and therefore
declines to convert defendant’s motion to dismiss to a motion for
summary judgment. See generally, e.g., Marcelus v. Corr. Corp.
of America, 540 F. Supp. 2d 231, 235 n.5 (D.D.C. 2008)
(explaining that courts “may consider documents attached to or
incorporated by the complaint in deciding a Rule 12(b)(6) motion
without converting the motion into one for summary judgment”).

                                 11
was unlawful” he cites no caselaw to support this point, see

Def.’s Opp’n Br. at 8-9, nor is the Court aware of any.   To the

contrary, the District of Columbia Court of Appeals has held that

“a police report of an arrest is presumptively devoid of any

notice of a potential claim of injury or damage from false

arrest, assault and battery, or negligence[.]”   Allen, 533 A.2d

at 1263.   Accordingly, because the police report in this case did

not provide the type of information that would have allowed the

District to anticipate plaintiff’s claims, the Court concludes

that plaintiff cannot maintain his common law tort claims against

the District as he failed to satisfy the notice provisions

of § 12-309.

IV.   CONCLUSION

      For the reasons set forth above, the Court GRANTS the

District’s motion to dismiss.   An appropriate Order accompanies

this Memorandum Opinion.

SIGNED:    Emmet G. Sullivan
           United States District Court Judge
           July 1, 2010




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