                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                               )
JAUNICE ODOM, et al.,                          )
                                               )
              Plaintiffs,                      )
                                               )
        v.                                     )       Civil Action No. 16-cv-864 (TSC)
                                               )
DISTRICT OF COLUMBIA, et al.,                  )
                                               )
              Defendants.                      )
                                               )


                                  MEMORANDUM OPINION

        Plaintiff Jaunice Odom brings this case, individually and on behalf of her minor child

M.U., against the District of Columbia and D.C. Metropolitan Police Department (“MPD”)

Officer Joseph Hudson. Plaintiffs seek to hold Officer Hudson individually liable, as well as the

District municipally liable, for violations of Plaintiffs’ constitutional rights pursuant to 42 U.S.C.

§ 1983, and for violations of a number of state tort laws arising out of a May 9, 2015 altercation

involving several individuals at D.C.’s Maine Avenue Wharf. Defendants have moved for

dismissal of all claims brought on behalf of Odom as well as dismissal of a number of counts

brought on behalf of M.U.

        For the reasons below, Defendants’ motion to dismiss will be GRANTED in part as to all

counts brought on Odom’s behalf except Count X; and Count III, Count IV, and Count XI; and

DENIED in part as to Count X on behalf of both Plaintiffs and Count IX as to M.U.

   I.        BACKGROUND

        Plaintiffs allege that Odom and M.U., who was sixteen years old at the time, were at the

Maine Avenue wharf when Odom was assaulted by two individuals. (Am. Compl. ¶¶ 15-16).

They allege that one of the individuals hit Odom in the face with a crab box, while the second

                                                   1
repeatedly struck her in the face with a closed fist. (Id. ¶¶ 17-18). According to Plaintiffs, an

MPD officer, who they believe was Defendant Hudson, arrived at the scene, and without

announcing himself as a police officer, approached M.U. from behind—although M.U. was not

participating in the fray or engaging in any criminal conduct, and was unarmed—and grabbed his

neck, placing him in a chokehold. (Id. ¶¶ 19, 22, 23, 30). At the time, M.U. was approximately

5’9” to 5’10” and weighed 130 to 140 pounds. (Id. ¶ 29). Plaintiffs claim that a witness told

Hudson when he arrived at the wharf that M.U. had not been involved in the assault. (Id. ¶ 21).

Plaintiffs allege that Hudson then threw M.U. to the ground and restrained him by wrapping his

legs around M.U.’s body. (Id. ¶ 24). Hudson then handcuffed and detained M.U. for at least

twenty minutes, ignoring Odom’s requests for emergency medical attention for M.U. (Id. ¶¶ 27,

44). Plaintiffs claim that as a result of the incident, M.U., who has hemophilia, experienced

severe physical and emotional injuries. (Id. ¶¶ 36, 38, 64). Odom alleges that she also

experienced severe emotional trauma. (Id. ¶ 39).

        Plaintiffs allege eleven counts against Defendants: violations of the Fourth Amendment

in the form of (I) excessive use of force and (II) unlawful seizure, (III) deprivation of due process

rights in violation of the Fifth Amendment, and (IV) municipal liability on the part of the District

for constitutional violations, as well as (V) assault, (VI) battery, (VII) false arrest, (VIII) false

imprisonment, (IX) negligence, (X) negligent infliction of emotional distress, and (XI) negligent

training and supervision. Defendants have moved for partial dismissal of the Complaint as to all

claims brought by Odom individually, as well as M.U.’s Fifth Amendment due process claim

against Officer Hudson (Count III), all constitutional claims against the District (Count IV),

M.U.’s negligence claim against both Defendants (Count IX), M.U.’s negligent infliction of

emotional distress claim against both Defendants (Count X), and M.U.’s negligent training,



                                                   2
supervision, or retention claim (Count XI). Defendants also ask the court to “dismiss” (which

the court construes as a motion to strike), Plaintiffs’ punitive damages claim against the District.

   II.       LEGAL STANDARD

             A. Federal Rule of Civil Procedure 12(b)(6)

          A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal

sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In order

to survive a motion to dismiss, a complaint must contain factual allegations that are “enough to

raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). Additionally, the facts alleged in the complaint must “state a claim to relief that is

plausible on its face.” Id. at 570. The “plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a motion to dismiss for failure to

state a claim under Rule 12(b)(6), a court must construe the complaint in the light most favorable

to the plaintiffs and “must assume the truth of all well-pleaded allegations.” Warren v. District

of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).

   III.      ANALYSIS

             A. Odom’s claims

          Defendants argue that Odom’s individual claims against Hudson and against the District

must be dismissed because she has not pleaded any facts that would entitle her to relief. Odom

appears to concede that she has not brought a Fourth Amendment or assault claim on her own

behalf, and that she has not brought a Fifth Amendment claim at all. (See Opp. at 2 (“plaintiffs

concede that their Fifth Amendment claims merge with their Fourth Amendment claims, and

concede that no assault occurred against plaintiff Odom”). Even absent Plaintiffs’ concession,

the court notes that Plaintiffs have cited no precedent, nor is the court aware of any, providing

                                                  3
for recovery under section 1983 by a parent for unlawful use of force or seizure of their minor

child. The court will therefore grant Defendants’ motion to dismiss Counts I and II, as well as

Count IV, which is also based on violations of M.U.’s constitutional rights, to the extent that

Odom brings those counts on her own behalf. The court will dismiss Count III (Fifth

Amendment violation) as to both Defendants, as Plaintiffs concede is appropriate, and Count V

(assault), as to Odom individually, as Plaintiffs also concede is appropriate.

        Odom continues to assert her Count X negligent infliction of emotional distress claim,

(see Opp. at 11-12), but her Opposition is silent as to whether she continues to assert claims on

her own behalf on Count VI (battery), Count VII (false arrest), and Count VIII (false

imprisonment). Because Odom concedes that she does not allege assault on her own behalf, and

assault is generally a lesser-included offense of battery, the court assumes Odom does not intend

to bring a battery claim in her own name, and because the Complaint does not reference any

injury to Odom herself in Counts VII and VIII, the court assumes she does not intend to bring

her own claims under those counts as well. The Complaint references Odom as an injured party

with regards to Count IX (negligence), but does not reference her with regards to Count XI

(negligent training, supervision, and retention). Because Plaintiffs’ Opposition does not argue

that the negligence claim applies to Odom personally, the court presumes Plaintiffs intend to

pursue Count IX only with regard to M.U. Therefore, the court will address Odom’s ability to

state a claim individually only with regards to Count X (negligent infliction of emotional

distress).

        A plaintiff alleging negligent infliction of emotional distress must demonstrate that “the

defendant has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, of

a nature that necessarily implicates the plaintiff’s emotional well-being,” “there is an especially

likely risk that the defendant's negligence would cause serious emotional distress to the

                                                  4
plaintiff,” and such harm ensues. Under D.C. law, there is a “general rule” that “there is no

freestanding duty to avoid the negligent infliction of emotional distress to a ‘stranger’ unless the

actor’s negligent conduct has put the plaintiff in danger of bodily harm.” Hedgepeth v. Whitman

Walker Clinic, 22 A.3d 789, 810-11 (D.C. 2011). But the D.C. Court of Appeals has recognized

the “‘zone of physical danger’ rule, which permits recovery for mental distress if the defendant’s

actions caused the plaintiff to be ‘in danger of physical injury’ and if, as a result, the plaintiff

‘feared for his own safety.’” Id. at 796 (quoting Williams v. Baker, 572 A.2d 1062, 1066 (D.C.

1990)). A plaintiff alleging negligent infliction of emotional distress under a “zone of danger”

theory need not show physical injury, though the emotional distress alleged must be “serious and

verifiable.” Id. at 797 (internal quotation marks and citation omitted). Courts have applied this

principle to law enforcement officers’ conduct. See D.C. v. Evans, 644 A.2d 1008, 1019 (D.C.

1994) (upholding jury finding of negligent infliction of emotional distress where police officers

shot plaintiff’s son in her presence).

        Although Odom does not allege with regard to Count X that she feared for her own

safety, she does allege elsewhere in her Complaint that “Defendant Hudson intentionally acted in

a physically aggressive manner to create a state of fear or danger to plaintiffs Odom and M.U.”

(Am. Compl. ¶ 160).1 The court finds it plausible, based on the factual allegations in the

Complaint, that Odom may have feared for her own safety when Hudson arrived on the scene of

a fight and, unprovoked, assaulted her son. Odom has alleged sufficient facts to indicate that she

was in the “zone of danger,” where a law enforcement officer was using unwarranted and

unpredictable force against her minor son, and could have turned to her and treated her in the

same manner. Although the D.C. Court of Appeals has held “a mother cannot recover for the


1
 Plaintiffs also state in their Opposition that “[b]oth plaintiffs were placed in a zone of danger
due to the negligent acts of defendants, which resulted in them fearing for their life and safety.”
(Opp. at 11).
                                                   5
emotional distress caused by witnessing harm that was negligently inflicted on her child alone,”

see Johnson v. D.C., 728 A.2d 70, 77 (D.C. 1999), the court finds Odom has sufficiently alleged

“that she was physically endangered by the defendant's negligent activity.” Id. The court will

accordingly deny Defendants’ motion to dismiss as to Odom’s claim in Count X on her own

behalf.

             B. M.U.’s Claims

          Defendants move to dismiss M.U.’s claims in Counts III, IV, IX, X, and XI.

                i.   Count III (Fifth Amendment)

          In light of Plaintiffs’ concession that the Fifth Amendment claim merges with the Fourth

Amendment claim, Count III will be dismissed.

               ii.   Count IV (Municipal liability)

          Defendants contend that Plaintiffs have failed to plead a viable constitutional claim

against the District in Count IV. A plaintiff cannot bring a section 1983 claim against a

municipality for an injury inflicted by a municipal employee or officer; municipal liability is

only appropriate where a plaintiff can demonstrate that a government policy or custom was the

“moving force” behind the alleged constitutional injury. Monell v. Dep’t of Soc. Servs. of City of

N.Y., 436 U.S. 658, 694 (1978). To meet Monell’s requirements, a plaintiff may show an

unconstitutional ordinance, see id.; an act of city council that violates the plaintiff’s

constitutional rights, see Owen v. City of Indep., Mo., 445 U.S. 622, 629 (1980); or a one-time

decision by a municipal employee or official with final, policy-making authority. See Pembaur

v. City of Cincinnati, 475 U.S. 469, 480 (1986). The Supreme Court has held that “[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, which policy can be attributed to a municipal policymaker.” City of Oklahoma

                                                   6
City v. Tuttle, 471 U.S. 808, 823–24 (1985). A city or municipality can be held liable for failure

to properly train officials or employees in a manner that makes it highly foreseeable that

constitutional violations will result. See City of Canton, Ohio v. Harris, 489 U.S. 378, 390

(1989) (“it may happen that in light of the duties assigned to specific officers or employees 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”). And a city or municipality may be liable for failure to

properly screen employees, where review of an applicant’s background would lead a reasonable

policymaker to conclude that it is a “plainly obvious consequence” that the person would commit

constitutional violations. See Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397,

411 (1997). A Monell claim must allege a degree of culpability of at least deliberate indifference

toward constitutional violations on the part of the municipal officers responsible for the policy,

ordinance, custom, decision, or absence of policy, in the case of a failure to train or screen claim.

Id. at 411.

        The D.C. Circuit has differentiated between “[p]roving a failure-to-train claim,” which

“is no easy task,” and “alleging municipal liability under section 1983 for failure to train,” which

“is to be judged not by the standards that would govern a decision on the merits.” Atchinson v.

D.C., 73 F.3d 418, 421 (D.C. Cir. 1996) (citing Leatherman v. Tarrant Cty. Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 163-69 (1993) (rejecting a heightened pleading

standard for Monell claims). Although Atchinson was decided before Twombly and Iqbal, the

holdings in Atchison and Leatherman continue to suggest that a plaintiff need only allege facts

that meet the plausibility standard. Where liability is premised on a municipal policy or absence

thereof, rather than a single act by a policymaker, a plaintiff should describe at least “the



                                                  7
contours” of the policy. Blue v. D.C., 811 F.3d 14, 20 (D.C. Cir. 2015), cert. denied, 137 S. Ct.

77 (2016).

        The D.C. Circuit has described a Monell analysis as a two-step inquiry: first, whether the

plaintiff alleges a “predicate constitutional violation,” and second, “whether the complaint states

a claim that a custom or policy of the municipality caused the violation.” Baker v. D.C., 326

F.3d 1302, 1306 (D.C. Cir. 2003). Here, Plaintiffs have clearly alleged a “predicate

constitutional violation”—the use of excessive force against M.U. in violation of his Fourth

Amendment rights. But Plaintiffs’ Amended Complaint fails at the second step.

        Plaintiffs allege that the District has a “pattern, practice, policy, and custom” of “failing

to effectively train, supervise, discipline, and control the personnel its [sic] employs as police

officers;” that the District did not properly hire, train, supervise, suspend, fire, and discipline

Hudson; that MPD has a pattern and practice of using excessive force against civilians in

violation of the Fourth Amendment; and that the District, with deliberate indifference, fails to

deter unconstitutional conduct. (Am. Compl. ¶¶ 136-142).

        Defendants contend, and the court agrees, that Plaintiffs’ allegations are not specific

enough to state a Monell claim—not under a Harris theory involving an absence of training in

the face of an obvious need, nor under a pattern and practice theory. Plaintiffs have alleged one

actual incident of use of excessive force—the incident described in the Complaint—and alleged

a “pattern” in a conclusory fashion, without pleading any facts that would demonstrate a pattern.

Plaintiffs have not alleged the existence of other lawsuits against MPD officers for similar

excessive use of force, or complaints filed with the Office of Police Complaints; their Complaint

is devoid of any factual allegations which would support their claim that the District has a

custom or unwritten policy that caused the constitutional violation. The court therefore finds that

Plaintiffs have not pleaded facts that would demonstrate Monell liability.

                                                   8
       Plaintiffs attempt to rely on Harris’s holding that Monell liability may be possible where

the lack of training is obviously likely to result in constitutional violations. Harris, 489 U.S. at

190. But this reliance is misplaced. Harris recognized that a municipality’s failure to provide

any training on an issue that would obviously necessitate training—such as use of force or

determining when detainees need medical treatment—can in some circumstances demonstrate

municipal deliberate indifference. But Plaintiffs here have not alleged that the District or MPD

provides no training to police officers on the use of excessive force; in fact, Plaintiffs referenced

the MPD’s official policies restricting the use of force to its constitutional limits. (Am. Compl. ¶

47 (“Defendant Hudson acted in a manner that was contrary to the procedures set forth by the

District of Columbia and the District of Columbia Metropolitan Police Department General

Orders, specifically, GO-RAR-901.07, Use of Force”)). Plaintiffs’ argument that the officers’

training is inadequate, (see Am. Compl. ¶ 70 (“District of Columbia has . . . fail[ed] to . . .

conduct sufficient training or supervision with respect to the constitutional limitations on the use

of force”)), does not state a claim under Harris. Because Plaintiffs do not allege that the District

fails to provide any training on the use of force, Plaintiffs’ Monell claim requires pleading

additional facts that would demonstrate that the training was insufficient and that the District

knew or should have known that the training was insufficient.

       Plaintiffs allege that the District and MPD failed to discipline Hudson after the incident

with M.U. Defendants contend that the failure to discipline Hudson after the fact cannot be

causally linked to the prior incident, to which Plaintiffs respond that the failure to discipline was

not the “moving force” of the alleged constitutional violations, but serves as “evidence of the

customs, practices, patterns, and policies” the Plaintiffs allege. (Opposition at 7). The court

finds that failure to discipline Officer Hudson could constitute evidence of an unwritten policy or

custom, but not taken in isolation. Plaintiffs’ Monell theory relies on one incident involving one

                                                  9
officer and the District’s subsequent response to that one incident; without more, Plaintiffs fail to

state a claim for municipal liability based on failure to reprimand. See Blue, 811 F.3d at 19

(pleading Monell liability based on failure to reprimand requires allegations of “fail[ure] to

respond to improper actions by numerous municipal officials”).

       Simply put, Plaintiffs have not stated a Monell claim based on the incident alleged in the

Amended Complaint, and have not alleged any additional incidents or facts that could comprise a

pattern or custom. Plaintiffs have not named other complainants in excessive force cases, or

cited any statistics or reports on excessive force lawsuits brought against MPD or D.C. The

court therefore must dismiss Count IV. See Costello v. D.C., 826 F. Supp. 2d 221, 225-26

(D.D.C. 2011) (“While the plaintiffs have alleged in conclusory terms that the District failed to

train its officers regarding the lawful execution of search warrants, they have pleaded no facts

indicating that the District’s decisionmakers knew or should have known of any deficiencies in

the training of its police officers concerning the execution of search warrants.”) (internal citation

omitted).

            iii.   Count IX (Negligence)

       Defendants argue that Plaintiffs cannot bring both battery and negligence claims in an

excessive force case, citing D.C. v. Chinn, 839 A.2d 701, 707 (D.C. 2003), which held that in

order to state a claim for negligence as well as assault and battery against a police officer for use

of excessive force, there must be “at least one distinct element, involving an independent breach

of a standard of care beyond that of not using excessive force in making an arrest.” In other

words, a plaintiff may not plead negligence and assault and battery as alternatives where the

basis of either claim is excessive use of force. The claims are not alternatives; they are the same

claim, because if a jury finds that a police officer used a reasonable amount of force, the officer

neither breached the standard of care (as required to find negligence) nor committed assault or

                                                 10
battery. Plaintiffs respond by citing a federal district court case in which a plaintiff was allowed

to plead negligence and battery as alternative theories of liability as long as they did not recover

for both inconsistent theories. Harvey v. Kasco, 109 F. Supp. 3d 173, 178-79 (D.D.C. 2015).

The court in Harvey explained that Federal Rule of Civil Procedure 8(d)(3), which Plaintiffs also

invoke here, allows the pleading of alternative inconsistent theories. Id. (citing Fed. R. Civ.

Proc. 8(d)(3)). Because Rule 8 is a procedural, rather than a substantive rule, the court will apply

the federal rule in this supplemental jurisdiction context.2 Whether Plaintiffs’ theories of liability

are alternatives under D.C. law, or constitute different torts that represent the same claim, the

court will allow both at this stage. If the case proceeds to trial, the parties will have to brief, and

the court determine, the appropriate jury instruction. See, e.g., Rice v. D.C., 818 F. Supp. 2d 47,

57 (D.D.C. 2011) (reducing jury award because jury had found defendant police officer both

negligent and liable for battery for excessive use of force).

        Plaintiffs proffer an additional argument in support of their negligence claim: that under

D.C. law, they may plead a “distinct element, involving an independent breach.” Chinn, 839

A.2d at 707. Here, Plaintiffs allege Hudson committed the “independent breach” of failing to

provide appropriate medical care after causing M.U.’s injuries by assault and battery. Although

police officers do not generally have a heightened duty to provide care to strangers,3 there is an


2
  See Houben v. Telular Corp., 309 F.3d 1028, 1032 (7th Cir. 2002) (“the Supreme Court has
made clear that the [Erie] doctrine applies . . . to state law claims . . . that are brought to the
federal courts through supplemental jurisdiction”); Hanna v. Plumer, 380 U.S. 460, 473–74
(1965) (a Federal Rule of Civil Procedure is to be applied by federal courts in resolving state
claims unless the Rule exceeds the scope of the Rules Enabling Act). See also Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938) (finding federal courts without power to implement federal
substantive law in diversity jurisdiction cases).
3
  See, e.g., McGaughey v. D.C., 734 F. Supp. 2d 14, 18 (D.D.C. 2010), aff’d, 684 F.3d 1355
(D.C. Cir. 2012) (quoting Hines v. District of Columbia, 580 A.2d 133, 136 (D.C.1990)) (“Under
the public duty doctrine, the District ‘owe[s] no duty to provide public services to particular
citizens as individuals. Instead, . . . the District’s duty is to provide public services to the public
at large.’”).
                                                  11
exception where there is a “special relationship” between the police officer and the plaintiff.

Powell v. D.C., 602 A.2d 1123, 1128 (D.C. 1992). A special relationship exists where an official

has “a direct transaction with the person injured or an arms-length relationship in which the

city’s agent is dealing directly, in some form, with the person injured.” Id. at 1130 (internal

quotation marks and citation omitted). Plaintiffs’ Complaint plausibly alleges the type of special

relationship between M.U. and Hudson, who, according to Plaintiffs, assaulted M.U. and caused

him physical injury, such that Hudson would have had a duty under the “special relationship”

exception to assist M.U. in obtaining medical care. The court therefore finds that Plaintiffs state

an additional claim for negligence based on failure to call an ambulance or otherwise provide

medical care.

            iv.    Count X (Negligent Infliction of Emotional Distress)

       Defendants argue that M.U. has not properly stated a claim for negligent infliction of

emotional distress because “the claim is inextricably and fatally intertwined with the intentional

torts claims.” (Mot. to Dismiss at 12). As discussed previously, the court disagrees with

Defendants’ premise and will allow alternative pleading. Defendants also contend that “[t]he

facts alleged . . . simply do not support Plaintiffs’ conclusory allegations that they experienced

negligent infliction of emotional distress.”

       Plaintiffs allege that, without any indication of wrongdoing, a police officer placed a 16-

year-old in a chokehold from behind, slammed him to the ground, restrained him, and then

ignored his mother’s request for help obtaining urgent medical assistance. Defendants’ argument

that these facts, if true, would not support an emotional distress claim, is mystifying. It will

ultimately be the task of a jury, not the court, to determine whether Plaintiffs’ representations as

to their emotional state are credible, but under the pleading standard enunciated in Twombly and



                                                 12
Iqbal, Plaintiffs have alleged sufficient facts to establish a claim for negligent infliction of

emotional distress. 4

             v.    Count XI (Negligent training, supervision, and retention)

       A claim for “negligent supervision” requires a plaintiff to demonstrate “that an employer

knew or should have known its employee behaved in a dangerous or otherwise incompetent

manner, and that the employer, armed with that actual or constructive knowledge, failed to

adequately supervise the employee.” Brown v. Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C.

2001). Negligent training and retention claims require similar allegations. See D.C. v. White,

442 A.2d 159, 165 (D.C. 1982) (negligent training issue improperly submitted to the jury absent

evidence regarding MPD training); Rogala v. D.C., 161 F.3d 44, 56 (D.C. Cir. 1998) (“In order

to prevail on a negligent retention claim, plaintiffs must first prove that [defendant police officer]

was negligent and must then prove the additional element of negligent retention”).

       Defendants contend that Plaintiffs have not pleaded any facts demonstrating the District

knew or should have known of Hudson’s or other employees’ tendencies to behave in a

dangerous manner. Plaintiffs respond that their allegations of a pattern, practice, and policy of

excessive force, and of allowing the use of excessive force to go undisciplined, suffices to allege

that the District had notice of its employees’ tendencies. The court finds that Count XI must be

dismissed for the same reasons as the Monell claim. Plaintiffs have not pleaded any facts

demonstrating a pattern or practice of excessive force, nor any facts which, if true, would provide

the District with actual or constructive notice of inadequate training or supervision. Plaintiffs



4
  The court notes that Defendants have moved for dismissal of the negligence and negligent
infliction of emotional distress claims as to both Defendants, but the parties have only briefed
whether dismissal is warranted as to Officer Hudson. The court will therefore deny the motion
as to both counts as to both Defendants. Should Defendants believe dismissal is warranted
against the District as to counts IX and X on separate grounds, they may so argue in a subsequent
motion to dismiss.
                                                  13
have not alleged any prior incidents involving Officer Hudson and have therefore similarly failed

to state a claim for negligent retention.

           C. Punitive damages

       The Complaint requests punitive damages because of the District’s conduct with regards

to Count IV. (Am. Compl. ¶ 156). Defendants argue that punitive damages against the District

are not authorized, and Plaintiffs have not addressed Defendants’ argument in their Opposition.

Although the court grants Defendants’ motion to dismiss Count IV, thereby mooting the question

of punitive damages against the district, the court agrees with Defendants; the Supreme Court

has held that punitive damages may not be assessed against a municipality in a section 1983 suit.

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). To the extent that Plaintiffs

seek punitive damages against the district for any non-constitutional count, the court notes that

D.C. tort law also does not allow for recovery of punitive damages against a municipality. See

Finkelstein v. D.C., 593 A.2d 591, 599 (D.C. 1991) (“punitive damages may not be awarded

against the District of Columbia”); Ramos v. D.C. Dep’t of Consumer & Regulatory Affairs, 601

A.2d 1069, 1074 n.9 (D.C. 1992) (“We note ‘[t]he clear weight of authority ... is that as a general

rule there can be no recovery of punitive damages against a municipality absent a statute

expressly authorizing it’”) (quoting Smith v. District of Columbia, 336 A.2d 831, 832

(D.C.1975)); Daskalea v. D.C., 227 F.3d 433, 447 (D.C. Cir. 2000) (finding that although it is

possible that “the D.C. Court of Appeals would permit punitive damages in some not-yet-

presented category of ‘extraordinary’ cases” against the District, such a category would likely be

one “where taxpayers are directly responsible for perpetrating the policies that caused the

plaintiff’s injuries” or “where a municipality or its policymakers have intentionally adopted the

unconstitutional policy that caused the damages in question”). Here, Plaintiffs have not alleged

any tort liability stemming from taxpayers’ conduct, and the court has dismissed any claims

                                                14
pertaining to District policy. The District is therefore not subject to punitive damages for any

other counts alleged against the District, and the court will strike the request for punitive

damages against the District.

   IV.      Conclusion

          For the reasons set forth above, Defendants’ partial motion to dismiss will be

GRANTED in part and DENIED in part. The court will grant the motion to dismiss all claims

brought by Plaintiff Odom in her own name, with the exception of Count X for negligent

infliction of emotional distress; the court will grant the motion to dismiss Count III, Count IV,

and Count XI; and the court will deny the motion to dismiss M.U.’s claims in Counts IX and X.

The court will grant Defendants’ request that it construes as one to strike the punitive damages

demand against the District.

         A corresponding order will issue separately.



Dated: March 31, 2017

                                               Tanya S. Chutkan
                                               TANYA S. CHUTKAN
                                               United States District Judge




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