                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

________________________________
                                )
GREGORY FOUCH,                  )
                                )
               Plaintiff,       )
                                )   Case No. 1:12-CV-1291 (EGS)
          v.                    )
                                )
DISTRICT OF COLUMBIA, et al.,   )
                                )
               Defendant.       )
________________________________)


                        MEMORANDUM OPINION

     Pending before the Court are defendants’ Motion to

Partially Dismiss the Amended Complaint and Motion to Remand.

The Defendants argue, inter alia, that plaintiff’s two federal

law claims should be dismissed, and that any remaining claims

should be remanded to the Superior Court of the District of

Columbia.   Upon consideration of the motions, the responses and

replies thereto, the relevant case law, and the entire record,

the Motion to Partially Dismiss is GRANTED IN PART and DENIED

WITHOUT PREJUDICE in part.   Specifically, the Court will grant

the motion insofar as it requests dismissal of plaintiff’s two

federal law claims (Counts II and VI of the Amended Complaint).

The Motion to Remand is GRANTED, and the Court will REMAND the

remaining claims to the Superior Court.
I.      BACKGROUND

        Plaintiff Gregory Fouch is a resident of Maryland.          Am.

Compl., [Dkt. #17], ¶ 3.       In December 2011, Mr. Fouch was

charged with one misdemeanor count of threats in the District of

Columbia.     Id. ¶ 7.     On January 5, 2012, plaintiff went to the

D.C. Metropolitan Police Department (“MPD”)’s Central Booking

Division to voluntarily turn himself in to be processed.

Id. ¶ 10.     At the station, Mr. Fouch was advised that he would

be taken to an alternative location for processing.           Id. ¶ 11.

Defendant Albert Scott, an MPD officer, handcuffed plaintiff

behind his back and placed him in a police carrier van, which

did not contain seatbelts or restraints.        Id.     ¶¶ 11-12.    When

defendant Scott began driving the van, another police vehicle,

driven by Officer Robert Sharpe, backed out of a parking space

directly in front of the van driven by defendant Scott.             Id.

¶¶ 18-19.    Defendant Scott stopped the van abruptly to avoid the

other vehicle and Mr. Fouch was thrown off the seat of the van.

Id. ¶¶ 20-21.        Defendant Scott exited the van, picked up Mr.

Fouch, and sat him back on the seat.        Id. ¶ 22.    At that time,

defendant Scott noticed blood coming from plaintiff’s ear.                Id.

Plaintiff was then taken to Howard University Hospital.             Id.

¶ 23.    Mr. Fouch suffered severe injuries from the incident,

including fractured cervical discs, a spinal cord injury, and

partial paralysis.        Id. ¶ 25.

                                      2
     Plaintiff initially brought this action in the Superior

Court of the District of Columbia on June 21, 2012, alleging

various claims arising under state and federal law against the

District of Columbia, Officer Scott, and Officer Sharpe.

Compl., [Dkt. #1-1].   On August 3, 2012, the District removed

this matter to federal court on the basis of federal question

jurisdiction. Notice of Removal of Action, [Dkt. #1].

Defendants subsequently moved to partially dismiss plaintiff’s

complaint, Defs.’ Mot. to Dismiss I, [Dkt. #8], and on June 19,

2013, a motions hearing was held before this Court.

     On July 3, 2013, plaintiff filed a first amended complaint,

in which he dismissed Officer Sharpe as a defendant in this

matter.   Am. Compl., [Dkt. #17].       Pending before the Court is

defendants’ motion for partial dismissal of plaintiff’s amended

complaint, including plaintiff’s federal law claims, for failure

to state a claim upon which relief can be granted pursuant to

Federal Rule of Civil Procedure 12(b)(6).       Defs.’ Mot. to

Dismiss II, [Dkt. #18].   The defendants have also filed a Motion

to Remand, arguing that in the event plaintiff’s federal law

claims are dismissed, the case be remanded to the Superior Court

of the District of Columbia.    See Defs.’ Supplemental Mot. to

Remand, [Dkt. #14]; Pl.’s Resp. to Defs.’ Supplemental Mot. to

Remand, [Dkt. #16].    The motions are ripe for review.



                                    3
II.   STANDARD OF REVIEW

      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).        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).

While detailed factual allegations are not necessary, plaintiff

must plead enough facts “to raise a right to relief above the

speculative level.”     Id.

      When ruling on a Rule 12(b)(6) motion, the Court may

consider “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

The Court must construe the complaint liberally in plaintiff’s

favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint.         Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).        However, the Court

must not accept plaintiff’s inferences that are “unsupported by

the facts set out in the complaint.”      Id.     “[O]nly a complaint



                                    4
that states a plausible claim for relief survives a motion to

dismiss.”     Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

III. DISCUSSION

        A.   Count II: Substantive Due Process Violation Claim

        In Count II, plaintiff alleges that the District and

Officer Scott violated his constitutional rights under the Fifth

Amendment1 “to be free from custody and confinement which create

an unreasonable danger to his health and safety.”    Am. Compl.,

[Dkt. #17], ¶ 37.    Plaintiff alleges that by handcuffing him

behind his back and then transporting him in a vehicle without

seatbelts or harnesses when other vehicles with seatbelts were

available, Officer Scott “acted intentionally and/or with

deliberate indifference to and reckless disregard of,

Plaintiff’s civil rights and his health and safety.”     Id. ¶ 40.

Moreover, plaintiff seeks to hold the District responsible for

Officer Scott’s acts under the respondeat superior theory.       Id.

¶ 44.    However, as defendants point out in their partial motion

to dismiss, a municipality cannot be held liable, under the

doctrine of respondeat superior, for constitutional violations


1
  Plaintiff also alleges that defendants violated his Fourteenth
Amendment rights. Am. Compl., [Dkt. #17], ¶ 42. “The
Fourteenth Amendment is not applicable to the District of
Columbia. However, concepts of equal protection are inherent in
the due process of law guaranteed to citizens of the District by
the Fifth Amendment.” Bulluck v. Washington, 468 F.2d 1096,
1100 n.9 (D.C. Cir. 1972) (citing Bolling v. Sharpe, 347 U.S.
497, 499 (1953)).
                                   5
committed by its employees.    Monell v. Dept. of Soc. Servs., 436

U.S. 658, 691 (1978); Triplett v. Dist. of Columbia, 108 F.3d

1450, 1453 (D.C. Cir. 1997).   Because plaintiff’s claim against

the District fails as a matter of law, the Court will DISMISS

Count II of plaintiff’s amended complaint against the District.

     The standard for plaintiff’s substantive due process

violation claim, because he was in custody of the District when

the events in the amended complaint occurred, is whether the

state actor was deliberately indifferent to plaintiff’s safety

and well-being.   See Butera v. Dist. of Columbia, 235 F.3d 637,

651-52 (D.C. Cir. 2001).   To state a claim for deliberate

indifference, plaintiff must allege: (1) that the challenged

condition of confinement posed “a substantial risk of serious

harm,” and (2) that defendant Scott’s state of mind was one of

“deliberate indifference” to plaintiff’s health or safety.

Farmer v. Brennan, 511 U.S. 825, 834 (1995); see also Cottrell

v. Caldwell, 85 F.3d 1480 (11th Cir. 1996).

     The use of the term deliberate “arguably requires . . . an

act (or omission) of indifference to a serious risk that is

voluntary, not accidental.”    Farmer, 511 U.S. at 840.   Thus,

there can be no liability “unless the official knows of and

disregards an excessive risk to [an arrestee’s] health and

safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm

                                  6
exists, and he must also draw the inference.”      Id. at 837.

There is no liability for “an official’s failure to alleviate a

significant risk that he should have perceived but did not.”

Id. at 838.    Moreover, “[i]nadvertent errors . . . [or] even

negligence in the performance of official duties, do not warrant

redress” under the substantive due process clause.      Silverman v.

Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988); see also Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“the Constitution

does not guarantee due care on the part of state officials;

liability for negligently inflicted harm is categorically

beneath the threshold of constitutional due process.”)

        Plaintiff’s main argument is that Officer Scott’s decision

to transport him in a vehicle not equipped with seatbelts or

safety restraints constituted deliberate indifference to

plaintiff’s safety in violation of the Fifth Amendment.

Plaintiff alleges that by being handcuffed behind his back and

placed in a vehicle without seatbelts, he was in a “very

vulnerable situation and could not protect himself in the event

of a foreseeable automobile accident.”     Am. Compl., [Dkt. #17],

¶ 13.    Plaintiff further alleges that Officer Scott deliberately

chose to handcuff plaintiff behind his back rather than in the

front, and deliberately chose to place plaintiff in a vehicle

without seatbelts when other vehicles with seatbelts were

available.     Id. ¶¶ 12-13.   These allegations, however, do not

                                    7
support the claim that Officer Scott acted with deliberate

indifference to the threat of injury to plaintiff.   Plaintiff

does not allege facts that plausibly support the inference that

Officer Scott knew or should have known there was a substantial

risk of serious harm to plaintiff when placing plaintiff in a

police vehicle for transportation to be processed, nor does

plaintiff allege that Officer Scott deliberately disregarded

such a risk.

     The D.C. Circuit has not yet addressed whether transporting

handcuffed arrestees in vehicles that are not equipped with

seatbelts or restraints may rise to the level of a substantive

due process violation.   However, at least three other circuits

have found that transporting handcuffed persons in police

custody in a vehicle without seatbelts does not constitute

deliberate indifference.   Jabbar v. Fischer, 683 F.3d 54, 58 (2d

Cir. 2012) (concluding that allegation of “absence of seatbelts

on inmate bus transport,” without more, does not constitute

deliberate indifference in violation of Eighth or Fourteenth

Amendment); Wright v. Shawnee Twp., No. 98-3558, 2000 U.S. App.

LEXIS 1395, at *2 (6th Cir. Jan. 28, 2000) (finding no

constitutional violation when police officer failed to observe

traffic laws while transporting handcuffed arrestee and police

car door opened unexpectedly, causing arrestee to fall out and

sustain injuries); Spencer v. Knapheide Truck Equip. Co., 183

                                 8
F.3d 902, 906 (8th Cir. 1999) (finding no constitutional

violation when handcuffed arrestee had trouble maintaining

balance while being transported in vehicle without seatbelts and

was thrown forward with enough force to render him

quadriplegic).2

     In his opposition to defendants’ motion to dismiss,

plaintiff argues that the Court should instead look to two cases

from the Fifth Circuit and the Eighth Circuit, in which the

courts concluded that the allegations of failure to provide

seatbelts and reckless driving were sufficient to proceed to the

next stage in the litigation.   Pl.’s Opp’n to Defs.’ Mot. to

Dismiss (“Pl.’s Opp’n”), [Dkt. #21], 14, 17.   As an initial

matter, it is worth noting that both cases involve Eighth

Amendment claims brought by prison inmates.    See Rogers v.

Boatright, 709 F.3d 403 (5th Cir. 2013); Brown v. Fornter, 518

F.3d 552 (8th Cir. 2008).   More important, plaintiffs in both


2
  Defendants cite two additional cases from the Tenth Circuit and
the Eleventh Circuit to support the argument that failure to
provide seatbelts does not constitute deliberate indifference.
Defs.’ Mot. to Dismiss II, [Dkt. #18], at 7-8, citing Smith v.
Sec’y for Dep’t of Corrs., 252 F. App’x 301 (11th Cir. 2007)
(per curiam); Dexter v. Ford Motor Co., 92 F. App’x 637 (10th
Cir. 2004). These cases involve Eighth Amendment claims brought
by prison inmates, as opposed to substantive due process claims
brought by handcuffed arrestees. However, the courts rely on
the same test: whether plaintiff alleged the prison officials
were deliberately indifferent to a substantial risk of serious
harm. Smith, 252 F. App’x at 303-304; Dexter, 92 F. App’x at
639-40. Accordingly, these cases provide further support for
defendants’ Motion to Dismiss Count II of the Amended Complaint.
                                 9
cases alleged more than just the official’s failure to provide

seatbelts.   For example, the plaintiff in Rogers alleged that

the official recklessly operated the vehicle, by “darting in and

out of traffic at high speeds” and at one point having to “brake

hard to avoid hitting a vehicle in front of him.”           Rogers, 709

F.3d at 406.   Additionally, the Rogers plaintiff alleged that

the official had knowledge of the potential danger to plaintiff,

which he alleged could be inferred from the official’s prior

statement that he knew incidents involving injuries to

handcuffed inmates while being transported in vehicles without

seatbelts “happen[] all the time, [it] isn’t a big deal.”               Id.

at 409.   The Fifth Circuit concluded that based on these

allegations, plaintiff’s complaint should not have been

dismissed sua sponte by the district court.     Id.    Similarly, the

plaintiff in Brown alleged that seatbelts were available in the

vehicle he was being transported in, but claimed that the

officers refused his request to fasten the seatbelt and taunted

him in response.   Brown, 518 F.3d at 557.    He also alleged that

the officer “traveled in excess of the speed limit (55 miles per

hour), going up to 75 miles per hour,” and ignored inmates’

repeated requests to slow down before the vehicle collided into

another vehicle, causing plaintiff’s injuries.        Id.    Moreover,

the police investigation of the collision listed the officer’s

inattentive driving as the cause of the accident.           Id.   The

                                10
Eighth Circuit concluded that the district court should not have

dismissed the plaintiff’s complaint at the summary judgment

stage because there was sufficient evidence that one of the

defendant officer’s actions may have violated the plaintiff’s

Eighth Amendment right.   Id. at 560.

     Plaintiff argues that because of his additional allegations

that Officer Scott “acted recklessly, negligently, grossly

negligent, and with wanton and conscious of the rights of

Plaintiff,” the present case is more analogous to Rogers and

Brown.   Pl.’s Opp’n, [Dkt. #21], at 17.   However, in contrast to

the Rogers and Brown cases in which there were additional

factual allegations to support the claim of the officers’

recklessness, the allegations contained in plaintiff’s amended

complaint are legal conclusions, which the Court need not accept

as true unless accompanied by sufficient factual matter to state

a plausible claim to relief.   Iqbal, 556 U.S. at 678.3   Because


3
  In his opposition to defendant’s motion to dismiss, plaintiff
argues that defendants’ motion turns on questions of fact and,
therefore, should be converted into a motion for summary
judgment and denied as premature, so that discovery may go
forward. Pl.’s Opp’n [Dkt. # 21] at 4-6. Specifically,
plaintiff claims that there is a factual dispute over whether
Officer Scott acted with an intent to punish or injure
plaintiff. Plaintiff argues that he has alleged as much, and
that accordingly, his Amended Complaint must survive the motion
to dismiss. While plaintiff alleges that Officer Scott “acted
intentionally and/or with deliberate indifference to . . .
Plaintiff’s civil rights and his health and safety,” Am. Compl.
¶ 40, this does not create a factual dispute. Rather, these are
legal conclusions, which the Court need not accept as true
                                11
plaintiff fails to allege facts to support his legal conclusion

that Officer Scott acted recklessly or with deliberate

indifference, the Court finds that the present case is

distinguishable from Rogers and Brown.

     While sympathizing with Mr. Fouch and the unfortunate

circumstances leading to his injuries, these facts do not rise

to the level of a constitutional deprivation.   Construing the

amended complaint in the light most favorable to plaintiff, and

granting plaintiff all reasonable inferences from those facts,

the Court finds that plaintiff has failed to allege a claim for

a Fifth Amendment substantive due process violation.

Accordingly, the Court will DISMISS Count II of the amended

complaint against the District and Officer Scott for failure to

state a claim.

     B.   Count VI: § 1983 Claim Against the District

     In Count VI, plaintiff claims that the District’s negligent

hiring, training, and supervision of Officer Scott violated his

constitutional rights.   Am. Compl., [Dkt. #17], ¶¶ 67-72.

Plaintiff seeks to hold the District liable for money damages

under 42 U.S.C. § 1983 for the injuries and loss of wages he



unless accompanied by sufficient factual matter to state a
plausible claim to relief. Iqbal, 556 U.S. at 678 (“the tenet
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”)
Accordingly, the Court declines to convert defendant’s Motion to
Dismiss into a motion for summary judgment.
                                12
suffered as a result of the incident on January 5, 2012.       Id.

¶ 74.

        To state a claim under § 1983, plaintiff must plead facts

sufficient to allege (1) that a right secured by the

Constitution was violated, and (2) that the alleged deprivation

was committed by a person acting under color of state law.       West

v. Atkins, 487 U.S. 42, 48 (1988).     Additionally, because

municipalities are liable for their agents’ constitutional torts

only if the agents acted pursuant to municipal policy or custom,

Monell, 436 U.S. at 694, plaintiff must also allege “causation –

specifically, a § 1983 plaintiff must plead facts to support an

inference that some official government policy or custom caused

an employee to violate another’s constitutional rights.”       Blue

v. Dist. of Columbia, 850 F. Supp. 2d 16, 24 (D.D.C. 2012)

(citing Monell, 436 U.S. at 692) (internal quotation marks

omitted).

        The Court finds that plaintiff has failed to plead a

predicate constitutional violation necessary for a § 1983 claim.

As already discussed in connection with Count II of plaintiff’s

amended complaint, plaintiff has failed to state a claim that

his substantive due process rights were violated as a result of

the injuries he sustained while being transported in a police

vehicle containing no seatbelts or restraints.    “A claim of

inadequate training, supervision and policies under 1983 cannot

                                  13
be made out against a supervisory authority absent a finding of

a constitutional violation by the person supervised.”    Webber v.

Mefford, 43 F.3d 1340, 1344-45 (10th Cir. 1994) (citing, e.g.,

Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992);

City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).

     Moreover, the Court finds that plaintiff failed to state a

claim that the District was deliberately indifferent to the risk

of constitutional violations.   Under the “deliberate

indifference” theory of municipal liability, which plaintiff

relies on to support his § 1983 claim against the District, see

Am. Compl., [Dkt #17], ¶¶ 70-72, plaintiff must establish that

the city adopted a “policy of inaction” when “faced with actual

or constructive knowledge that its agents will probably violate

constitutional rights.”    Warren v. Dist. of Columbia, 353 F.3d

36, 39 (D.C. Cir. 2004).   Because plaintiff has not pled that

the District’s agents violated his constitutional rights or are

likely to violate anyone else’s, plaintiff’s emphasis on the

“deliberate indifference” theory cannot save his § 1983 claim.

Accordingly, the Court will DISMISS Count VI of the amended

complaint against the District for failure to state a claim.

     C.   Supplemental Jurisdiction

     Upon dismissal of Counts II and VI, the Amended Complaint

contains no further federal cause of action over which this



                                 14
Court has original subject matter jurisdiction.4    “Whether to

retain jurisdiction over pendant . . . claims after dismissal of

the federal claims is a matter left to the sound discretion of

the district court.”     Ali Shafi v. Palestinian Auth., 642 F.3d

1088 (D.C. Cir. 2011).

     The factors enumerated in 28 U.S.C. § 1367(c) – judicial

economy, convenience, fairness, and comity - guide the Court’s

discretion in determining whether to dismiss state law claims.

Shekoyan v. Sibley Int’l, 409 F.3d 414, 424 n.4 (D.C. Cir.

2005).   In this case, the factors point toward declining to

exercise supplemental jurisdiction.    Mr. Fouch originally filed

this case in the Superior Court of the District of Columbia;

once it was removed to this Court the defendants immediately

moved to dismiss.   This Court has not invested significant time

or resources on the state law claims, and considerations of

comity and efficiency weigh in favor of allowing District of

Columbia courts to make determinations about District of

Columbia law.   Accordingly, the Court will decline to exercise

supplemental jurisdiction and remand the remaining state law

claims to the Superior Court for the District of Columbia.




4
  Diversity jurisdiction is not available because one of the
defendants is the District of Columbia, which, like the fifty
states, is not subject to diversity jurisdiction. Long v. Dist.
of Columbia, 820 F.2d 409, 413-14 (D.C. Cir. 1987).
                                  15
IV.   CONCLUSION

      For the foregoing reasons, Counts II and VI of plaintiff’s

amended complaint are DISMISSED.     In the absence of a federal

claim against defendants, the Court, in its discretion, declines

to exercise supplemental jurisdiction over plaintiff’s remaining

claims pursuant to 28 U.S.C. § 1367(c).    Accordingly,

defendants’ motion to remand is GRANTED and this case is

REMANDED to the Superior Court of the District of Columbia.    An

appropriate Order accompanies this Memorandum Opinion.

      SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           January 8, 2014




                                16
