                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
___________________________________
                                    )
DEONTE SPICER,                      )
                                    )
            Plaintiff,              )
                                    )
      v.                            )    Civil Action No. 10-1576 (BJR)
                                    )
DISTRICT OF COLUMBIA, et al.,       )
                                    )
            Defendants.             )
___________________________________ )


                                  MEMORANDUM OPINION


        This matter is before the Court on defendant William Thomas’ motion to dismiss under

Rule 12(b)(6) of the Federal Rules of Civil Procedure, and on the remaining defendants’ motion

for partial judgment on the pleadings under Rule 12(c). The Court denies the former and grants

the latter.


                                       I. BACKGROUND 1


        Deonte Spicer (“Plaintiff”) has brought this action against the District of Columbia,

correctional officers Anthony D. Lancaster (“Lancaster”), Michael A. Makie (“Makie”), William

Conner (“Conner”) and Robert Fowler (“Fowler”), and their supervisor, Lieutenant William

Thomas (“Lt. Thomas”), under 42 U.S.C. § 1983 and the common law of the District of

Columbia. See Amended Complaint (“Am. Compl.”) at 1 (introductory paragraph). Although



1
        For purposes of this Memorandum Opinion, the Court accepts as true the allegations of
Plaintiff’s Amended Complaint. See Haynesworth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C.
Cir. 1987), overruled on other grounds by Hartman v. Moore, 547 U.S. 250 (2006).

                                                 1
Plaintiff has been serving his sentence at a Federal Bureau of Prisons (“BOP”) facility, the events

giving rise to this action occurred while Plaintiff was in the District of Columbia’s custody at the

Central Detention Facility (“D.C. Jail”). See id. ¶ 1.

       Deputy United States Marshals transported Plaintiff to the District of Columbia in order

that Plaintiff could appear at a proceeding related to the appeal of his criminal conviction. See

id. ¶¶ 7-9. Plaintiff arrived at the D.C. Jail on October 30, 2009, id. ¶ 7, and upon his entry into

the Receiving and Discharge Unit (“R&D”), Lancaster recognized him, id. ¶ 9. After searching

Plaintiff, Lancaster led him “to an adjacent area that was not monitored by video cameras and

where Officers Makie, Conner, and Fowler were waiting.” Id. ¶ 10. The four corrections

officers then punched, kicked and stomped on Plaintiff. See id. ¶¶ 11-13. The officers then

handcuffed Plaintiff’s hands behind his back, lifted him “by the throat,” and “continued to punch

and kick” him. Id. ¶ 14. Plaintiff fell to the floor, and one of the officers photographed him. Id.

¶ 15. Lt. Thomas arrived after the assault ended. Id. ¶ 17. He “suggested that [Plaintiff] had

started the incident by attempting to hit one of the officers.” Id.. Along with Lancaster, Makie,

Conner and Fowler, Lt. Thomas “filled out a disciplinary report” representing that Plaintiff

“attempted to hit Officer Fowler ‘on the right side of [his] face.’” Id. ¶ 18. A disciplinary

review panel considered the report and found Plaintiff not guilty. Id. ¶¶ 25-26.

       A subsequent medical examination showed that Plaintiff suffered “a fracture of the

cuboid bone in the left foot.” Id. ¶ 22. He wore a cast for over two months and took medication

for pain. Id. ¶ 23. In addition, Plaintiff “suffered psychological pain, anxiety, and distress” as a

result of the attack. Id. Plaintiff has sustained a permanent injury that “limits his ability to

engage in athletic activities and his ability to seek employment that requires physical labor” and




                                                  2
prompts him to take pain medication whenever he “engages in activity above walking a short

distance.” Id. ¶ 24.

        Plaintiff alleges that Lancaster, Makie, Conner and Fowler not only used unreasonable

force in violation of rights protected under the Eighth Amendment to the United States

Constitution, id. ¶ 34 (Count I), but also committed assault and battery, id. ¶ 37 (Count II), and

intentionally inflicted emotional distress, id. ¶ 40 (Count III). In addition, Plaintiff alleges

negligence by the four corrections officers, see id. ¶¶ 43-45 (Count IV), and by their supervisor,

see id. ¶¶ 47-50 (Count V). He posits that Lancaster, Makie, Conner and Fowler “were under a

legal duty to provide [him] reasonable care . . . as he was [an] inmate under their care and

supervision,” id. ¶ 43, and breached their duty “by punching, kicking, and striking [him] on

October 30, 2009,” id. ¶¶ 43-44 (Count IV). Lt. Thomas, he alleges, had a duty to “ensur[e] that

subordinates provided an appropriate standard of care” to inmates under their control, id. ¶ 47,

yet “failed to prevent [the corrections officers’] tortious conduct even though [they] were under

his supervision and control,” id. ¶ 48, resulting in Plaintiff’s physical and psychological injuries,

id. ¶ 50. Lastly, Plaintiff asserts that the District of Columbia is vicariously liable for the tortious

actions of its employees. See id. ¶¶ 52-54 (Count VI).


                                          II. DISCUSSION


                                 A. Lt. Thomas’ Motion to Dismiss 2




2
       Good cause exists for Plaintiff’s failure to serve process on Lt. Thomas within the 120-
day time limit set forth in Rule 4(m) of the Federal Rules of Civil Procedure, and his motion to
dismiss for failure to effectuate proper service is denied.

                                                   3
       Lt. Thomas moves to dismiss Count V of the Amended Complaint on the ground that

“Plaintiff has not pled sufficient facts to establish the elements of his negligent supervision

claim.” Mem. of P. & A. in Supp. of Def. William Thomas’ Mot. to Dismiss Am. Compl. at 6

(page number designated by ECF). According to Lt. Thomas, the pleading “fails to allege facts

which demonstrate that [he] knew or should have known that . . . Lancaster, Makie, Conner and

Fowler behaved in a dangerous or otherwise incompetent manner.” Id. Plaintiff responds by

reiterating his allegations that Lt. Thomas “was negligent in failing to adequately supervise the

other officers of the night of the incident,” and due to the lack of adequate supervision, “they

attacked an inmate and broke his foot.” Pl.’s Opp’n to Def.’s Mot. to Dismiss Am. Compl. at 8.

       “To establish a cause of action for negligent supervision, a plaintiff must show: that the

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.’” Phelan v. City of Mount Ranier, 805 A.2d 930,

937-38 (D.C. 2002) (quoting Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985)). The

Court presumes without deciding that Lt. Thomas may be considered the correctional officers’

employer for purposes of the negligence supervision claim. See Brown v. Argenbright Sec., Inc.,

782 A.2d 752, 760 n.11 (D.C. 2001) (noting “that a claim of negligent supervision does not

require proof that the supervised person was also an employee or agent”).

       The Amended Complaint “is somewhat light on factual allegations,” James v. District of

Columbia, 869 F. Supp. 2d 119, 121 (D.D.C. 2012), with respect to the negligent supervision

claim against Lt. Thomas. However, Plaintiff’s burden at the pleading stage is minimal, and he

manages – barely – to set forth “a short and plain statement establishing that [he] is entitled to

relief and providing [Lt. Thomas] with sufficient notice” of the claim against him. Hopkins v.


                                                  4
Blue Cross & Blue Shield Assoc., No. 10-0900, 2010 WL 5300536, at *7 n.1 (D.D.C. Dec. 21,

2010). Lt. Thomas’ motion to dismiss, therefore, will be denied. See Linares v. Jones, No. 04-

0247, 2007 WL 1601725, at *7 (D.D.C. June 4, 2007).


                  B. Defendants’ Motion for Partial Judgment on the Pleadings


       Defendants maintain that “Plaintiff has pled this case as an intentional assault.” Defs.’

Mot. for Partial J. on the Pleadings at 6 (page numbers designated by ECF). Without “other facts

separate and apart” from the factual allegations pertaining to the cause of his injuries, Defendants

argue that Plaintiff “has not pled and cannot establish a separate and distinct claim for

negligence.” Id. at 6-7. They demand judgment in their favor on Count IV of the Amended

Complaint “based on Plaintiff’s failure to state a claim for negligence.” Id. at 1.

       “[A]n assault may be defined as an intentional and unlawful attempt or threat, either by

words or by acts, to do physical harm to the victim,” and a battery “is an intentional act that

causes a harmful or offensive bodily contact.” Etheredge v. District of Columbia, 635 A.2d 908,

916 (D.C. 1993) (citations omitted). Assault and battery are intentional acts; they cannot be

committed negligently. See District of Columbia v. Chinn, 839 A.2d 701, 708 (D.C. 2003) (“[I]t

is impossible to negligently commit assault and/or battery as the states of mind are separate and

incompatible.”); Sabir v. District of Columbia, 755 A.2d 449, 453 (D.C. 2000) (“Thus it is

settled that a person cannot negligently commit an intentional tort.”). Thus, for example,

“[u]nder 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.”


                                                  5
Dormu v. District of Columbia, 795 F. Supp. 2d 7, 30 (D.D.C. 2011) (quoting Chinn, 839 A.2d at

711) (internal quotation marks omitted). Because “[t]he duty not to use excessive force cannot

serve as the standard of care for the negligence count,” Chinn, 839 A.2d at 711, Plaintiff can

maintain both his assault and battery claim and his negligence claim only if he identifies “an

independent breach of a standard of care beyond that of not using excessive force . . . , which

may properly be analyzed . . . on its own terms apart from the intentional tort[s],” id. at 707.

       Plaintiff responds that he “has alleged both that the correctional officers assaulted him,

and separately, that they violated their duty to provide reasonable care to him as an inmate in

their custody.” Pl.’s Opp’n to Defs.’ Mot. for Partial J. on the Pleadings (“Pl.’s Opp’n”) at 3.

For example, Plaintiff refers to his allegations, see Am. Compl. ¶¶ 16-18, “describ[ing] the lack

of supervision, oversight and reporting by the Defendants after they assaulted [him], which form

the basis of separate breaches of their duties.” Pl.’s Opp’n at 4-5. He also refers to Defendants’

other actions after the assault -- handcuffing him, holding him by the throat, failing to prevent

him from being unreasonably restrained, photographing him, and failing to conduct an

investigation – as if they were allegations of negligence separate and distinct from allegations of

assault. Id. at 5-6. These arguments are not persuasive.

       The sole alleged breach of the correctional officers’ duty of care is the “punching,

kicking, and striking [of Plaintiff] on October 30, 2009.” Am. Compl. ¶ 44. Missing is a claim

of negligence that is both “distinctly pled and based upon at least one factual scenario that

presents an aspect of negligence apart from the [intentional torts] and violative of a distinct

standard of care.” Chinn, 839 A.2d at 711. Plaintiff “may not bootstrap from the battery proof

alone” that defendants were negligent, id. at 710, and there simply are no factual allegations

separate from those comprising the intentional tort claims to support a distinct negligence claim.


                                                  6
In short, “[i]nvoking the words ‘duty,’ ‘breach,’ ‘cause,’ and ‘injury’ does not transform an

intentional tort into negligence.” Kivanc v. Ramsey, 407 F. Supp. 2d 270, 277 (D.D.C. 2006).

Defendants’ motion for partial judgment on the pleadings, therefore, will be granted. See, e.g.,

Magliore v. Brooks, 844 F. Supp. 3d 38, 45 (D.D.C. 2012) (granting summary judgment for

defendants on negligence claim “based principally on the [police] officers’ intentional use of

force, factual allegations indistinct from those advanced in support of his excessive force and

assault and battery claims”); Lucas v. District of Columbia, 505 F. Supp. 2d 122, 127 (D.D.C.

2007) (“Because [plaintiff] rests his claims concerning an alleged breach of a duty of care on

excessive force, he fails to state a claim upon which relief can be granted for a cause of action

sounding in negligence.”); see also Rawlings v. District of Columbia, 820 F. Supp. 2d 92, 109

(D.D.C. 2011) (finding that alternative scenario alleging negligence based on unreasonable use

of force presents a claim “indistinguishable from the assault and battery claim”).


                                       III. CONCLUSION


       Plaintiff’s Amended Complaint sets forth neither a negligent supervision claim against

Lt. Thomas, and it fails to allege a negligence claim against Lancaster, Mackie, Conner and

Fowler separate and apart from the assault and battery claim. Accordingly, Lt. Thomas’ motion

to dismiss Count V of the Amended Complaint will be denied, and judgment on the pleadings

will be granted on Count IV in the defendants’ favor. An Order accompanies this Memorandum

Opinion.



DATE: January 2, 2013                                 /s/
                                                      BARBARA J. ROTHSTEIN
                                                      United States District Judge


                                                 7
