 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 20, 2011           Decided January 17, 2012

                        No. 10-7101

                   ROGER RUDDER, ET AL.,
                       APPELLANTS

                              v.

           SHANNON WILLIAMS, OFFICER, ET AL.,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:09-cv-02174)



    Gregory L. Lattimer argued the cause for appellants.
With him on the briefs was Anitha W. Johnson.

     Mary L. Wilson, Senior Assistant Attorney General,
Office of the Solicitor General for the District of Columbia,
argued the cause for appellees. With her on the brief were
Irvin B. Nathan, Acting Attorney General at the time the brief
was filed, Todd S. Kim, Solicitor General, and Donna M.
Murasky, Deputy Solicitor General.
                                2
    Before: GINSBURG, * HENDERSON and KAVANAUGH,
Circuit Judges.

    Opinion for the Court filed by Circuit Judge GINSBURG.

     GINSBURG, Circuit Judge: Roger Rudder, two other
adults, and two juveniles sued the District of Columbia and
two Metropolitan Police officers for using excessive force
against them in violation of their civil rights. The district
court dismissed their suit “with prejudice.” We reverse the
judgment of the district court with respect to the claims
against the officers under the Fourth Amendment to the
Constitution of the United States and with respect to the
juveniles’ common law claims and remand the case for
further proceedings. In all other respects, we affirm the
judgment of the district court.

                        I. Background

      Roger Rudder, Rosena Rudder, Noverlene Goss, and
juveniles E.R. and D.G. allege William Chatman and Shannon
Williams, officers of the Metropolitan Police Department,
assaulted them at the 2008 Caribbean Carnival Parade in
Washington, D.C. According to their complaint, the five
plaintiffs stepped into the street to embrace family members
participating in the parade. Officer Chatman ordered them to
return to the sidewalk. While they were doing so, Chatman
“forcibly shoved” Rosena Rudder and Officer Williams struck
the two children with her baton. Several other officers
arrived, “withdrew their batons and used excessive force on
all Plaintiffs.” In particular, “Officers Williams and Chatman
... beat Plaintiffs with their batons and forced Plaintiffs to the

*
  As of the date the opinion was published, Judge Ginsburg had
taken senior status.
                               3
ground.” The officers then arrested the adult plaintiffs. After
being released, they were taken to a hospital for treatment of
their injuries.

     In 2009 the plaintiffs filed this suit claiming damages for
common law torts and, pursuant to 42 U.S.C. § 1983, for
violations of their rights under the Fourth, Fifth, and
Fourteenth Amendments to the Constitution. The claims
against Officers Chatman and Williams were based upon their
allegedly excessive use of force. The claim against the
District was premised upon the allegation the District “as a
matter of policy, practice, and custom, has with deliberate
indifference failed to adequately train” or “supervise,
sanction, or discipline” its police officers. See Monell v.
Dep’t of Social Services, 436 U.S. 658 (1978) (establishing
the criteria for municipal liability under § 1983).

     The defendants filed separate motions seeking dismissal
of certain counts for failure to state a claim upon which relief
can be granted. Officers Williams and Chatman argued (1)
the Fifth Amendment does not apply to the use of force
incident to arrest, (2) the Fourteenth Amendment does not
apply to the District of Columbia, and (3) the adult plaintiffs’
common law claims were barred by the one-year statute of
limitations for assault and battery, see D.C. Code § 12-301(4).
The District argued the complaint did not contain sufficient
factual allegations regarding its policies or customs to state a
claim under the pleading standard established in Ashcroft v.
Iqbal, 556 U.S. 662; 129 S. Ct. 1937 (2009). All the
defendants noted that, because the statute of limitations for
common law claims by juveniles does not begin to run until
they reach 18 years of age, D.C. Code § 12-302, “the common
law claims of the juveniles as well as the constitutional claims
against the police officers remain.”
                                4
      In their response to the motions to dismiss, the plaintiffs
expressly abandoned their claims under the Fifth and
Fourteenth Amendments. They also inexplicably did “not
oppose that their common law claims are time-barred by a
one–year statute of limitations,” a concession not limited to
the adults’ claims and thus broader than the affirmative
defense raised against them. They went on, specifically
listing as time-barred all the counts of the complaint alleging
common law torts and proposed an order stating “all of
Plaintiffs’ common law claims are dismissed.” The plaintiffs
did, in contrast, “re-affirm their claims against Defendants
under the Fourth Amendment.” They also argued their
constitutional claim against the District was viable. In reply
the defendants noted the plaintiffs had conceded the common
law claims of both the adult and the juvenile plaintiffs and
argued the complaint lacked sufficient factual allegations to
support the Fourth Amendment claims against the District. *

     The district court dismissed the complaint in its entirety
pursuant to Federal Rule of Civil Procedure 12(b)(6), stating
it did so “with prejudice.” The court noted the plaintiffs had
conceded all their common law claims as barred by the statute
of limitations and had conceded their claims under the Fifth
and Fourteenth Amendments were without merit. The court
then rejected their claim against the District because the
complaint “merely recite[d] the elements of municipal
liability” and “utterly failed to allege any fact as to the
District’s custom or policy that could form the basis of
liability under Section 1983.” The court did not specifically
address the plaintiffs’ Fourth Amendment claims for
*
  In the reply the defendants also said Officer Williams had not
been served with the complaint. Williams, however, did not file a
motion to dismiss the complaint for insufficient service of process
pursuant to Federal Rule of Civil Procedure 12(b)(5), nor did the
district court address the matter. Neither, therefore, do we.
                               5
excessive force, nor had the defendants included those claims
in their motions to dismiss; by dismissing the entire
complaint, however, the court necessarily dismissed those
claims sua sponte.

    The plaintiffs moved for reconsideration, arguing their
“concession went only so far as to [sic] the adult Plaintiffs,
and did not concede that the claims of the minor Plaintiffs
were barred by the one-year statute of limitations.” They also
suggested the court had “inadvertently dismissed Plaintiffs’
count against Defendant Officer Williams and Officer
Chatman for violation of their Fourth Amendment rights
under Section 1983.” The district court denied the motion
without explanation.

                          II. Analysis

     The plaintiffs challenge the district court’s dismissal with
prejudice of the juvenile plaintiffs’ common law claims on the
ground their concession was misconstrued. That concession,
they argue, went only to the adult plaintiffs’ claims, which
clearly were barred by the statute of limitations. They
challenge the district court’s dismissal with prejudice of their
claims under the Fourth Amendment on the ground their
complaint alleges facts showing Officers Chatman and
Williams used excessive force against them.

     We decide de novo the merits of a motion to dismiss for
failure to state a claim upon which relief can be granted.
Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 378
(D.C. Cir. 2010). A court should dismiss a complaint for
failure to state a claim only if the complaint does not “contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, ____; 129 S. Ct. 1937, 1949 (2009) (quoting Bell
                               6
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To
state a facially plausible claim, a complaint must set forth
“factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id.

A. Common Law Claims

     The plaintiffs urge us to read their response to the
defendants’ motions to dismiss as having conceded only the
adult plaintiffs’ and not the juveniles’ common law claims.
Although we agree it made no sense for the plaintiffs to
concede as untimely claims that were not barred by the statute
of limitations, that is clearly what they did, going so far as to
submit a proposed order providing “all of Plaintiffs’ common
law claims are dismissed.” Lest there be any doubt upon that
score, we note the defendants’ reply had put the plaintiffs on
notice of the full scope of their concession. Yet only after the
district court had accepted the plaintiffs’ invitation to dismiss
“all of Plaintiffs’ common law claims” did the plaintiffs speak
up. That belated attempt at clarification cannot undo their
repeated and unambiguous concession, which simply does not
admit of an implied qualification excepting the juveniles’
claims. We cannot but conclude the plaintiffs conceded the
common law claims of the juveniles.

    The district court was therefore on solid ground in
dismissing those claims. The court erred, however, in
dismissing them with prejudice.

     Dismissal with prejudice is the exception, not the rule, in
federal practice because it “operates as a rejection of the
plaintiff’s claims on the merits and [ultimately] precludes
further litigation of them.” Belizan v. Hershon, 434 F.3d 579,
583 (D.C. Cir. 2006) (quotation marks and citation omitted);
                               7
see also Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485,
2494 (2010) (noting “the preference expressed in the Federal
Rules of Civil Procedure ... for resolving disputes on their
merits”).     Accordingly, the “standard for dismissing a
complaint with prejudice is high: ‘dismissal with prejudice is
warranted only when ... the allegation of other facts consistent
with the challenged pleading could not possibly cure the
deficiency.’” Belizan, 434 F.3d at 583 (quoting Firestone v.
Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)). That
exacting standard is not met here. Indeed, because the statute
of limitations for the juvenile plaintiffs’ common law claims
is tolled until they reach majority, no additional facts need be
pled. That is, the deficiency in this case lies not in the
complaint but in the plaintiffs’ erroneous concession, which
requires no cure beyond simply filing the complaint anew.
The defendants suggest no reason to deny the juvenile
plaintiffs the opportunity to pursue their common law claims
in a new case, and we see none. Accordingly, we reverse the
judgment of the district court insofar as it dismisses the
juvenile plaintiffs’ common law claims “with prejudice.”

B. Fourth Amendment Claims

     The district court also erred in dismissing the plaintiffs’
claims under the Fourth Amendment. A police officer’s use
of force is excessive and therefore violates the Fourth
Amendment if it is not “reasonable,” that is, if “the nature and
quality of the intrusion on the individual’s Fourth Amendment
interests” is weightier than “the countervailing governmental
interests at stake.” Graham v. Connor, 490 U.S. 386, 396
(1989). To be sure, “[n]ot every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers,”
violates the Constitution, Johnson v. District of Columbia,
528 F.3d 969, 974 (D.C. Cir. 2008) (quotation marks and
                                8
citation omitted); still, “a police officer must have some
justification for the quantum of force he uses,” id. at 977.

     The plaintiffs allege facts sufficient to support their claim
that Officers Chatman and Williams acted with a degree of
force unjustified by the circumstances. The defendants wisely
concede this point with respect to the allegations against
Officer Williams. The complaint alleges that, unprovoked
and without warning, she struck with her baton children aged
five and 15. The complaint also alleges Officer Williams beat
plaintiff Goss with her baton after Ms. Goss “called out to the
officer in response” to Officer Williams’ use of force against
the child D.G. A person who responds verbally to a police
officer assaulting a child hardly invites violence against
herself.

     The allegations against Officer Chatman, although less
graphic, no less clearly state a claim for a violation of the
Fourth Amendment. Both Officers Chatman and Williams
allegedly “beat [the adult] Plaintiffs with their batons and
forced [them] to the ground” even though they had complied
with Officer Chatman’s order to return to the sidewalk.
Unlike, say, pushing an arrestee against a wall and pulling his
arm behind his back, beating a suspect to the ground with a
baton exceeds in violence anything “we would expect in the
course of a routine arrest,” Oberwetter v. Hilliard, 639 F.3d
545, 555 (D.C. Cir. 2011). Nor was there any aggravating
factor justifying a greater degree of force. See Graham, 490
U.S. at 396 (listing factors, such as “attempting to evade
arrest,” that would justify the use of force). In sum, we hold
the facts alleged in the complaint set forth plausible claims the
officers violated the plaintiffs’ rights under the Fourth
Amendment. The district court therefore erred in dismissing
those claims.
                                 9
     Even if the facts set forth in the complaint had been
insufficient to survive a motion to dismiss, it would have been
an error to dismiss those claims with prejudice because it
could not be said “the allegation of other facts consistent with
the challenged pleading could not possibly cure the
deficiency,” Belizan, 434 F.3d at 583. Nothing in the
complaint is inconsistent with a plausible claim to relief.

     Nor did the defendants ever move the court to dismiss the
Fourth Amendment claims against the officers. Hence we re-
iterate “our long-standing rule”:

        [S]ua sponte dismissal for failure to state a claim
        without leave to amend is reversible error unless the
        claimant cannot possibly win relief ... [because] the
        facts alleged affirmatively preclude relief, or because,
        even though plaintiff makes clear that he has facts to
        add to his complaint, he would not have a claim upon
        which relief could be granted even with those facts.

Razzoli v. Federal Bureau of Prisons, 230 F.3d 371, 377
(2000) (internal quotation marks and citation omitted).
Justice requires that a plaintiff be afforded the opportunity to
refine his allegations without losing forever the right to
litigate his claims on the merits. The Federal Rules reflect
this principle: “The court should freely give leave [to amend a
complaint] when justice so requires.” FED. R. CIV. P.
15(a)(2). So it did here. *




*
  The plaintiffs do not dispute on appeal the dismissal of their
constitutional claim against the District. Accordingly, that claim is
either abandoned or forfeit.
                             10
                      III. Conclusion

     Although the plaintiffs unambiguously conceded all their
common law claims, the juvenile plaintiffs’ common law
claims should have been dismissed without prejudice because
those claims were not time-barred. The complaint also alleges
facts stating facially plausible claims against Officers
Chatman and Williams for violations of the Fourth
Amendment.      In the foregoing respects, therefore, the
judgment of the district court is
                                                   Reversed.
