                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
ABDUL GREENE,                 )
                              )
     Plaintiff,               )
                              )
     v.                       )      Civil Action No. 12-109 (RWR)
                              )
JODY SHEGAN, et al.,          )
                              )
     Defendants.              )
______________________________)

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Abdul Greene brings common law tort and 42 U.S.C.

§ 1983 damages claims against Metropolitan Police Department

(“MPD”) Officer Jody Shegan and the District of Columbia

(“District”) following Shegan’s arrest of Greene.    The District

moves to dismiss Greene’s common law claims against it under

Federal of Rule of Civil Procedure 12(b)(6) or, in the

alternative, for summary judgment arguing that Greene did not

provide notice of his claims to the District before filing this

action, as is required by D.C. Code § 12-309.     Because the

District had sufficient notice of Greene’s claims, the District’s

motion to dismiss or for summary judgment will be denied.

                             BACKGROUND

     Greene’s complaint makes the following allegations.        In

November of 2010, Greene hosted a private party at Roses Dream

Lounge in Northeast, Washington, D.C. to celebrate his wife’s

birthday.   Compl. ¶ 7.   Around 1:30 a.m. on November 6, 2010,
                                  -2-

Greene “began escorting some of his guests to their cars which

were parked in the surrounding area.”    Id. ¶ 8.   As Greene was

returning to Roses Dream Lounge, Shegan drove a marked MPD

cruiser down the street toward Greene.    Shegan yelled at Greene

to move out of the street.    Id. ¶ 9.   However, it was difficult

for Greene to move out of the street because he was positioned

between Shegan’s cruiser and a parked van.    Shegan got out of his

car and continued to yell at Greene.     Shegan “then grabbed the

plaintiff by the arm, which he twisted behind plaintiff’s back,

and then threw plaintiff against the parked van.”    Id.   In front

of his family and friends, Greene was handcuffed and made to

stand near Shegan’s cruiser for approximately 25 minutes.      Id.

¶ 10.

        The next day, Greene registered a complaint with MPD

officials about the incident.    As a result of his e-mail, the

Internal Affairs Division (“IAD”) of the MPD investigated

Greene’s complaint.    The IAD issued a report of its investigation

in November 2010.    See D.C.’s Mot. to Dismiss Pl.’s Compl. and/or

Mot. for Summ. Judg. (“D.C.’s Mot.”), Ex. 4 (MPD IAD Report of

Investigation (“IAD Report”)).
                               -3-

     Greene’s complaint seeks damages from the defendants1 for

false arrest and false imprisonment, intentional infliction of

emotional distress, and assault and battery.    The complaint also

includes a claim against Shegan under 42 U.S.C. § 1983 alleging

that Shegan violated Greene’s rights under the Fourth Amendment

of the U.S. Constitution.

     The District moves to dismiss Greene’s common law claims

against it or, in the alternative for summary judgment arguing

that Greene did not comply with the mandatory statutory notice

prerequisites before bringing suit against the District.2

                            DISCUSSION

     A court may dismiss a case for “failure to state a claim

upon which relief can be granted[.]”     Fed. R. Civ. P. 12(b)(6).



     1
       Greene’s complaint initially named as a defendant only
Shegan, although in both his individual and official capacities.
The District was later added as a defendant because a suit
against a government official in his official capacity is treated
as a suit against the government entity since the “real party in
interest is the entity.” See Greene v. Shegan, Civil Action No.
12-109 (RWR), 2013 WL 238892, at *2 (D.D.C. Jan. 22, 2013)
(internal quotation marks omitted).
     2
       The District also moves to dismiss Greene’s § 1983 claim
against it. Although Greene’s complaint names Shegan in his
official capacity as well as individually and includes a claim
against Shegan under 42 U.S.C. § 1983, Greene “unequivocally
states” in his opposition to the District’s motion to dismiss
“that he is not pursuing a constitutional claim against the
District of Columbia pursuant to 42 U.S.C. § 1983 or otherwise.
The only claims being pursued against the District of Columbia
are common law claims.” Pl.’s Opp’n at 2. Any claim stated in
the complaint under § 1983 against the District will be deemed
withdrawn.
                                 -4-

If on such a motion, “matters outside the pleadings are presented

to and not excluded by the court, the motion must be treated as

one for summary judgment under Rule 56.”    Fed. R. Civ. P. 12(d);

see also Highland Renovation Corp. v. Hanover Ins. Grp., 620 F.

Supp. 2d 79, 82 (D.D.C. 2009).   Here, the District submitted the

IAD report as an attachment to its motion and Greene relies on it

in his opposition.   However, the report was not attached to

Greene’s complaint and the complaint does not refer to it.     Thus,

the defendant’s motion to dismiss will be treated as a motion for

summary judgment.    Summary judgment may be granted when “the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66

(D.C. Cir. 2009).

     The District argues that it is entitled to judgment as a

matter of law on Greene’s common law claims because Greene failed

to provide timely and proper notice of his claims under D.C. Code

§ 12-309.   Section 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 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.
                                -5-

D.C. Code § 12-309.   “‘The purpose of § 12–309 is to (1) protect

the District of Columbia against unreasonable claims and (2) to

give reasonable notice to the District of Columbia so that the

facts may be ascertained and, if possible, deserving claims

adjudicated and meritless claims resisted.’”   Maldonado v.

District of Columbia, Civil Action No. 11-1473 (BAH), 2013 WL

632964, at *6 (D.D.C. Feb. 21, 2013) (quoting R. v. District of

Columbia, 370 F. Supp. 2d 267, 271 (D.D.C. 2005)).

     The notification requirement is strictly applied, and the

provision is “‘construed narrowly against claimants.’”   Snowder

v. District of Columbia, 949 A.2d 590, 600 (D.C. 2008) (quoting

Gross v. District of Columbia, 734 A.2d 1077, 1081 (D.C. 1999));

see also District of Columbia v. Dunmore, 662 A.2d 1356, 1359

(D.C. 1995).   As such, there are only two types of notice that

can satisfy the requirements of D.C. Code § 12-309: “(1) a

written notice to the Mayor of the District of Columbia, or (2) a

police report prepared in the regular course of duty.”

Blocker–Burnette v. District of Columbia, 730 F. Supp. 2d 200,

204 (D.D.C. 2010) (citing Brown v. District of Columbia, 251 F.

Supp. 2d 152, 165 (D.D.C. 2003)).

     Greene argues that the IAD report was created by the MPD in

the regular course of duty within six months of the incident

between Greene and Shegan and thus satisfies the D.C. Code § 12-

309 requirements.   The District does not dispute that the IAD
                                 -6-

report, which was dated and signed by both the IAD investigator

and his supervisor in November 2010, was prepared within six

months of the November 6, 2010 incident.   The District also does

not dispute, as it cannot, that the IAD report is a “report

created in the regular course of duty.”    See Jones v. District of

Columbia, 879 F. Supp. 2d 69, 80 (D.D.C. 2012) (stating that “IAD

generated reports are reports created in the regular course of

duty”).    Instead, the District argues that the IAD report is

“devoid of any notice as to what injuries [Greene] allegedly

sustained as a result” of the November 6, 2010 incident.    See

D.C.’s Mot., D.C.’s Mem. of P. & A. in Supp. of its Mot. to

Dismiss Pl.’s Compl. and/or Mot. for Summ. Judg. at 6-7.

     To satisfy D.C. Code § 12-309, a police report

     must contain the same information that is required in
     any other notice given under the statute. Campbell v.
     District of Columbia, 568 A.2d 1076, 1078-1079 (D.C.
     1990). Thus, in order to be considered a sufficient
     notice, a police report must include, in the words of
     the statute, “the approximate time, place, cause, and
     circumstances of the injury or damage.” See, e.g.,
     Miller v. Spencer, 330 A.2d 250, 252 (D.C. 1974).

Doe by Fein v. District of Columbia, 697 A.2d 23, 27 (D.C. 1997).

“[A] police report . . . sets forth ‘cause’ within the meaning of

§ 12–309 [only] ‘if it recites facts from which it could be

reasonably anticipated that a claim against the District might

arise.’”   Doe by Fein v. District of Columbia, 93 F.3d 861, 875

(D.C. Cir. 1996) (quoting Pitts v. District of Columbia, 391 A.2d

803, 809 (D.C. 1978)); see also Washington v. District of
                                 -7-

Columbia, 429 A.2d 1362, 1366 (D.C. 1981) (en banc) (explaining

that a notice sets forth cause “if it either characterize[s] the

injury and assert[s] the right to recovery, or without asserting

a claim describe[s] the injuring event with sufficient detail to

reveal, in itself, a basis for the District’s potential

liability”).   A report provides the circumstances of the injury

or damage if it provides sufficient detail “for the District to

conduct a prompt, properly focused investigation of the claim.”

Washington, 429 A.2d at 1366.

     Here, the IAD report includes the approximate time and place

of the incident.   Namely, it specifies “November 6, 2010, at

appropriately 0130 hours” near the “‘Roses Dream Lounge,’ located

at 1370 H Street Northeast[.]”   IAD Report at 1.

     The IAD report also describes the injuring event in

sufficient detail to reveal a basis for the District’s potential

liability.   The report contains Greene’s allegation that Shegan

used unnecessary force in twisting Greene’s arm and throwing him

up against a van, that Shegan handcuffed and purported to arrest

Greene without cause, that Shegan and other MPD officers verbally

abused and berated Greene, and that Greene’s family and friends

witnessed the event.   In this context, the report gave the

District sufficient detail to be put on notice that it might be

sued for assault and battery, false arrest and imprisonment, and

intentional infliction of emotional distress.
                                  -8-

     Finally, the circumstances described in the report are

sufficient to have allowed the District to conduct a prompt,

properly focused investigation.    The report identifies Greene by

badge number and duty station, and lists his attorney by name and

telephone numbers.   It also provides the names of the MPD

officers allegedly involved in the incident and states that

Greene provided a list of witnesses that the District could

interview in investigating the incident.    Since the IAD report

reflects the time, place, cause, and circumstances of Greene’s

alleged injury, the District’s motion will be denied.

                         CONCLUSION AND ORDER

     The IAD report satisfied the D.C. Code § 12-309 requirement

that the District receive notice of Greene’s claims before Greene

filed a damage action.    Accordingly, it is hereby

     ORDERED that the District of Columbia’s motion [32] to

dismiss or, alternatively, for summary judgment be, and hereby

is, DENIED.

     SIGNED this 1st day of May, 2013.



                                       /s/
                                RICHARD W. ROBERTS
                                United States District Judge
