                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
CAROLINE ROBINSON, the Personal )
Representative of the Estate of )
Arnell Robinson,                 )
                                 )
               Plaintiff,        )
                                ) Case No. 07-CV-1796 (EGS)
          v.                     )
                                 )
DISTRICT OF COLUMBIA,            )
                                 )
               Defendant.        )
________________________________)

                         MEMORANDUM OPINION

       Pending before the Court is the District of Columbia’s

Motion for Partial Summary Judgment and Judgment on the

Pleadings.    The District of Columbia argues, inter alia, that

plaintiff’s claim under 42 U.S.C. § 1983 should be dismissed.

Upon consideration of the motion, the response and reply

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

motion is GRANTED IN PART and DENIED WITHOUT PREJUDICE in part.

Specifically, the Court shall grant the motion insofar as it

requests dismissal of plaintiff’s Section 1983 claim.    The Court

will REMAND the remaining claims to the Superior Court of the

District of Columbia.

  I.     BACKGROUND

       Arnell Robinson filed a complaint on October 3, 2007,

alleging various claims against the District of Columbia,
Officer Earl Brown, and various “John Doe” officers.         Mr.

Robinson alleged that defendants violated his rights in

connection with an arrest at the 400 Block of O Street, NW in

Washington, DC on October 4, 2006.       Specifically, Mr. Robinson

alleged that while he was walking home from school, Officer

Brown stopped his police cruiser, exited the vehicle, and began

to verbally harass Mr. Robinson.       Compl. ¶¶ 7-9.    Mr. Robinson

alleged that Officer Brown forcefully grabbed his right arm and

twisted it behind him, throwing him face first into an iron

fence.   Compl. ¶ 10.   Officer Brown also allegedly slammed his

arm across Mr. Robinson’s neck.    Compl. ¶ 11.     Several years

earlier, Mr. Robinson had been shot in the face and neck area

and this injury prevented Mr. Robinson from being able to yell,

scream, or speak in a loud voice, and also affected his ability

to hear in his right ear.    Compl. ¶¶ 11, 16-17.       Although Mr.

Robinson’s friends allegedly told Officer Brown about this

injury, Officer Brown refused to remove his arm from Mr.

Robinson’s neck.   After he was arrested, Mr. Robinson was

allegedly treated for pain in his neck and ribs and for ringing

in his ears.   Compl. ¶¶ 17-22.

     Upon the unrelated death of Mr. Robinson in early 2009, the

Court granted plaintiff’s motion to substitute a party, and

substituted Caroline Robinson, Mr. Robinson’s mother, as the

Personal Representative of the Estate of Arnell Robinson.          Jun.

                                   2
1, 2009 Minute Order.   On November 18, 2009, the Court granted

as conceded Officer Brown’s motion to dismiss for failure to

serve Officer Brown with process in accordance with the Federal

Rules of Civil Procedure.    Nov. 18, 2009 Minute Order.   On

January 11, 2013, the District of Columbia, the only remaining

defendant in this case, filed the instant motion.

  II.   STANDARD OF REVIEW

        A. Motion for Judgment on the Pleadings

     Under Rule 12(c) of the Federal Rules of Civil Procedure,

“[a]fter the pleadings are closed—but early enough not to delay

trial—a party may move for judgment on the pleadings.”     Fed. R.

Civ. P. 12(c).   A motion pursuant to Rule 12(c) is appropriately

granted when, at the close of the pleadings, “no material issue

of fact remains to be resolved, and [the movant] is clearly

entitled to judgment as a matter of law.”    Montanans for

Multiple Use v. Barbouletos, 542 F. Supp. 2d 9, 13 (D.D.C. 2008)

(citations omitted).

     When evaluating a motion for judgment on the pleadings

under Federal Rule of Civil Procedure 12(c), courts employ the

same standard that governs a Rule 12(b)(6) motion to dismiss.

Jung v. Ass'n of Am. Med. Colls., 339 F. Supp. 2d 26, 35–36

(D.D.C. 2004).   A court must treat the complaint's factual

allegations as true, “even if doubtful in fact,” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007), but it need not accept as

                                  3
true legal conclusions set forth in a complaint.       Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).       Accordingly, a court must

accept the plaintiff's well-pleaded factual allegations to the

extent that “they plausibly give rise to an entitlement to

relief,” id. at 679, and “may thus only grant judgment on the

pleadings if it appears, even accepting as true all inferences

from the complaint's factual allegations, that the plaintiff

cannot prove any set of facts entitling him to relief.”         Lans v.

Adduci Mastriani & Schaumberg LLP, 786 F. Supp. 2d 240, 265

(D.D.C. 2011).

       B. Motion for Summary Judgment

     Summary judgment is appropriate “if 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).    The party seeking summary judgment bears the

“initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which

it believes demonstrate the absence of a genuine issue of

material fact.”    Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986) (internal quotation marks omitted).       To defeat summary

judgment, the non-moving party must “designate specific facts

showing there is a genuine issue for trial.”       Id. at 324

                                   4
(internal quotation marks omitted).         The existence of a factual

dispute is insufficient to preclude summary judgment.         Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).         A dispute

is “genuine” only if a reasonable fact-finder could find for the

non-moving party; a fact is only “material” if it is capable of

affecting the outcome of the litigation.         Id. at 248; Laningham

v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).         In

assessing a party's motion, “[a]ll underlying facts and

inferences are analyzed in the light most favorable to the non-

moving party.”    N.S. ex rel. Stein v. District of Columbia, 709

F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at

247.

  III. DISCUSSION

         A. Conceded Claims

       In its motion, the District argues that plaintiff’s claims

for punitive damages should be dismissed because a plaintiff

cannot recover punitive damages against the District.         The

District also argues that plaintiff’s claims for injunctive

relief must be dismissed because Mr. Robinson is deceased and

thus cannot be in danger of sustaining a direct injury from

Officer Brown.    In his opposition, plaintiff agreed to dismiss

those claims.    Pl.’s Opp. at 26.       Accordingly, plaintiff’s

claims for punitive damages and for injunctive relief are

DISMISSED.

                                     5
       B. Municipal Liability Under Section 1983

     The District argues that plaintiff’s Section 1983 claim,

alleged in Count I of the complaint, should be dismissed because

the District cannot be liable under a theory of respondeat

superior.   The District is correct.

     Section 1983 provides that

     [any] person who, under color of any statute,
     ordinance, regulation, custom, or usage, of any State
     or Territory or the District of Columbia, subjects, or
     causes to be subjected, any citizen of the United
     States or other person within the jurisdiction thereof
     to the deprivation of any rights, privileges, or
     immunities secured by the Constitution and laws, shall
     be liable to the party injured....

42 U.S.C. § 1983.

     To establish that a municipality is liable under section

1983, a plaintiff must prove both (1) “a predicate

constitutional violation” and (2) “that a custom or policy of

the municipality caused the violation.”   Baker v. District of

Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Collins

v. Harker Heights, 503 U.S. 115, 124 (1992)); see also Monell v.

Dep't of Soc. Servs. of New York, 436 U.S. 658, 691 (1978).

Indeed, the policy or custom must be “the moving force behind

the constitutional violation.”    Carter v. District of Columbia,

795 F.2d 116, 122 (D.C. Cir. 1986) (quoting Monell, 436 U.S. at

694); see also Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)




                                  6
(requiring an affirmative link between the city's policy and the

alleged constitutional violation).

     A municipality cannot be liable for the unconstitutional

conduct of its employees based simply on a theory of respondeat

superior or vicarious liability.       Monell, 436 U.S. at 693; see

also City of Canton v. Harris, 489 U.S. 378, 385 (1989); Pembaur

v. City of Cincinnati, 475 U.S. 469, 479 (1986) (“[W]hile

Congress never questioned its power to impose civil liability on

municipalities for their own illegal acts, Congress did doubt

its constitutional power to impose such liability in order to

oblige municipalities to control the conduct of others.”).       “The

‘official policy’ requirement was intended to distinguish acts

of the municipality from acts of employees of the municipality,

and thereby make clear that municipal liability is limited to

action for which the municipality is actually responsible.”

Pembaur, 475 U.S at 479.   This requirement flows directly from

the statute itself. There are four basic categories of municipal

action plaintiff may rely on to establish municipal liability:

(1) express municipal policy; (2) adoption by municipal

policymakers; (3) custom or usage; and (4) deliberate

indifference.   Monell, 436 U.S. at 690-94.

     Although plaintiff did not allege a “custom or policy”

theory of Section 1983 liability in the complaint, plaintiff

responds to the District’s motion and argues that the District

                                   7
had a custom or policy of violating constitutional rights. 1

Plaintiff also argues that liability is appropriate because of

the District’s deliberate indifference to constitutional

violations.   Section 1983 liability is not appropriate against

the District under either theory.

              1. Custom and Policy

     Plaintiff argues that two documents put the District on

notice that there were MPD customs that violated constitutional

rights.   The first document is a 2001 Memorandum of Agreement

(“2001 MOA”) between the Department of Justice and the

Metropolitan Police Department regarding the use of excessive

force by MPD officers.   The second document is a 2003 report

issued by the Citizen Complaint Review Board (“2003 CCRB

Report”).   Plaintiff argues that the reports put the District on

notice of the problems with its officers’ use of excessive force

and that they “establish the liability of the District” or at

the very least, establish that there are genuine issues of

material fact in dispute.

     The Court disagrees.   Several courts have considered, and

rejected, similar arguments regarding the 2001 MOA and the 2003

1
 Because plaintiff did not allege this theory in his complaint
and also because he relies on documents outside of the
complaint, the Court will consider the “custom and policy” issue
under the summary judgment standard. Fed. R. Civ. P. 12(d)
(when matters outside of the pleadings are presented to and not
excluded by the court, a motion for judgment on the pleadings
must be treated as one for summary judgment).
                                 8
CCRB Report.   See, e.g., Robinson v. District of Columbia, 403

F. Supp. 2d 39, 54-55 (D.D.C. 2005) (denying plaintiff’s claim

that the 2001 MOA established a “custom or policy”); Byrd v.

District of Columbia, 297 F. Supp. 2d 136, 140 (D.D.C. 2003)

(rejecting plaintiff’s “lame attempt to transform the mere

existence of a MOA into a policy or custom” of the District and

noting that, if anything, the MOA indicated the District’s

efforts to improve); Dormu v. District of Columbia, 795 F. Supp.

2d 7, 25-27 (D.D.C. 2011) (holding that the mere awareness of an

issue and need for improvement, as indicated in 2003 CCRB

report, was not sufficient to impose municipal liability for

conduct that occurred at a later date); Hunter v. District of

Columbia, 824 F. Supp. 2d 125, 134 (D.D.C. 2011) (2003 CCRB

Report was insufficient to establish a District custom or policy

in favor of the use of excessive force and false arrest for

conduct that occurred prior to arrival at the police station).

     Plaintiff relies heavily on Huthnance v. District of

Columbia for the proposition that the 2003 CCRB Report “put the

District on notice that there was a problem with its police

officers using excessive force and improper disorderly conduct

arrests.”   793 F. Supp. 2d 183, 199 (D.D.C. 2011).   Plaintiff

argues that such conduct was precisely what happened to

plaintiff and, thus, are the proper basis for municipal

liability under Section 1983.   In Huthnance, however, the

                                 9
alleged constitutional violation was the specific practice that

was discussed in the 2003 CCRB Report.   Specifically, the 2003

CCRB Report detailed the “post and forfeiture” procedure used by

MPD, under which an arrestee posted $25 in collateral and was

released from custody several hours later.   After resolving the

charge by paying $25, little or no review occurred after the

arrests were completed, and CCRB believed that there was “the

potential for a significant number of improper or unlawful

disorderly conduct arrests in the District that could go

unnoticed.”   CCRB Rep. at 24, ECF No. 106-28.   In Huthnance, the

court focused on the similarity between the arrest in that case

and the problem identified in the 2003 CCRB Report.   793 F.

Supp. 2d at 200.   The court concluded that the 2003 CCRB Report

put the MPD on constructive notice regarding the problems with

its post and forfeiture policy.    The court also noted, however,

that there were several other ways in which the District could

have been on notice of problems with its post and forfeiture

policy.

     In this case, the facts are not those specifically

identified in the 2003 CCRB Report.    Plaintiff was arrested but

was not subject to the post and forfeiture procedure. Similarly,

in Hunter, the court noted that even if the 2003 CCRB Report

established a policy or custom relevant to a plaintiff’s release

from custody (the post and forfeiture procedure), it would not

                                  10
make the District liable for the alleged false arrest and use of

excessive force that plaintiff alleges occurred prior to his

arrival at the police station.    824 F. Supp. 2d at 134.    The

Court agrees and finds that the 2003 CCRB Report did not put the

District on notice of a custom or policy of constitutional

violations such that municipal liability under Section 1983 can

be imposed on the District.    Similarly, the Court finds that the

2001 MOA also does not establish a custom or policy sufficient

to impose municipal liability on the District.

               2. Deliberate Indifference

       Plaintiff also claims that the District acted with

deliberate indifference to the constitutional violations of the

MPD.    Specifically, plaintiff argues that the District’s failure

to accept and investigate citizen complaints about Officer Brown

and failure to take disciplinary action against Officer Brown”

amounts to deliberate indifference of plaintiff’s constitutional

rights.

       For there to be municipal liability under a theory of

deliberate indifference, a jury must find from admissible

evidence that the District was “the moving force” behind the

alleged constitutional violations based on a theory of

deliberate indifference to a known risk of such harm.       Muhammad

v. District of Columbia, 584 F. Supp. 2d 134, 138 (D.D.C. 2008).

“Deliberate indifference means that ‘faced with actual or

                                 11
constructive knowledge that its agents will probably violate

constitutional rights, the city may not adopt a policy of

inaction.’”   Coleman v. District of Columbia, 828 F. Supp. 2d

87, 94 (D.D.C. 2011) (quoting Warren v. District of Columbia,

353 F.3d 36, 39 (D.C. Cir. 2004)).   Furthermore, a

municipality's failure to train its officers or employees

adequately qualifies as a custom or policy that violates Section

1983 only when that failure “amounts to deliberate indifference

towards the constitutional rights of persons in its domain.”

Kivanc v. Ramsey, 407 F. Supp. 2d 270, 278 (D.D.C. 2006)

(quoting Daskalea v. District of Columbia, 227 F.3d 433, 441

(D.C. Cir. 2000)) (other citation omitted).   Similarly, the

failure to investigate complaints cannot support a deliberate

indifference theory unless the conduct was suggestive of the

unconstitutional behavior on hand and put the District on notice

of the possibility of constitutional violations.   Muhammad v.

District of Columbia, 881 F. Supp. 2d 115, 123 (D.D.C. 2012)

(investigation of 13 complaints against officer did not

constitute deliberate indifference where only two of the

complaints were sustained and none of the complaints were for

conduct suggestive of the asserted unconstitutional behavior in

the case at hand).

     Here, there is no evidence that the MPD would have been

aware of Officer Brown’s alleged likelihood of violating

                                12
constitutional rights.   Plaintiff avers that Mr. Butler, who had

been with Mr. Robinson at the time of his arrest, attempted to

file a complaint against Officer Brown on October 4, 2006, the

day of the arrest, but was deterred from doing so.    Even

assuming this to be true, it does not provide evidence of the

District’s prior knowledge of Officer Brown’s alleged propensity

to violate constitutional rights.    Plaintiff also argues that

Officer Brown made false statements regarding the arrest under

oath.   Again, even assuming this is true, it does not provide

any evidence of the District’s prior knowledge of Officer

Brown’s conduct.   Nor would a false statement under oath have

been “suggestive” of the alleged constitutional violation in

this case.   See Muhammad, 881 F. Supp. 2d at 123.    Accordingly,

because none of the evidence cited by plaintiff would have

provided the District with knowledge of Officer Brown’s alleged

propensity to violate the constitutional rights of arrestees,

the Court finds that the District cannot be held liable under

Section 1983 under a “deliberate indifference” theory.

     Accordingly, Count I of plaintiff’s complaint, alleging a

Section 1983 violation against the District, will be DISMISSED.




                                13
       C. Supplemental Jurisdiction

     In light of the dismissal of the Section 1983 claim, the

complaint contains no further federal causes of action over

which this court has original subject matter jurisdiction.    The

Court must therefore consider whether to continue to exercise

supplemental jurisdiction over these remaining claims pursuant

to 28 U.S.C. § 1367(a), which provides, in pertinent part, that

“in any civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims

in the action within such original jurisdiction that they form

part of the same case or controversy[.]”   “Whether to retain

jurisdiction over pendent . . . claims after the 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, 1097 (D.C. Cir. 2011) (citations omitted).

     In determining whether to dismiss supplemental state law

claims, “the district court is to be ‘guided by consideration of

the factors enumerated in 28 U.S.C. § 1367(c).’”   Shekoyan v.

Sibley Int’l, 409 F.3d 414, 424 n.4 (D.C. Cir. 2005) (citations

omitted).   “’[I]n the usual case in which all federal law claims

are dismissed before trial, the balance of factors to be

considered under the pendent jurisdiction doctrine—judicial

economy, convenience, fairness, and comity—will point toward

                                14
declining to exercise jurisdiction over the remaining state law

claims.’”    Id. at 424 (citations omitted).

     Here, although the claims have been pending for several

years, most of that time has been spent in discovery, with very

little Court involvement.    The Court has thus not yet invested

significant time and resources on the state law claims, and the

District of Columbia Superior Court would naturally have greater

familiarity and interest in the issues that remain, insofar as

they require interpretation of the District’s own statutory and

common law.    Accordingly, the Court finds that it is in the

interests of judicial economy, convenience, fairness, and comity

to remand the remaining state law claims to the Superior Court

for the District of Columbia.

  IV.   CONCLUSION

     For all of the foregoing reasons, the District of

Columbia’s Motion for Partial Summary Judgment and Judgment on

the Pleadings is GRANTED IN PART and DENIED WITHOUT PREDJUDICE

IN PART.    Specifically, the Court shall grant the motion for

summary judgment insofar as it requests dismissal of plaintiff’s

Section 1983 claim.    The Court will also grant as conceded the

motion for judgment on the pleadings as to plaintiff’s claims

for punitive damages and for injunctive relief.    The Court, in

its discretion, declines to exercise supplemental jurisdiction

over the remaining claims.    Instead, this case is hereby

                                 15
REMANDED for further proceedings to the Superior Court of the

District of Columbia.

     An appropriate Order accompanies this Memorandum Opinion.

Signed:   Emmet G. Sullivan
          United States District Judge
          August 30, 2013




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