GREENE v. SHEGAN

Filing 38

MEMORANDUM OPINION AND ORDER denying the District of Columbia's motion 32 to dismiss or, alternatively, for summary judgment. Signed by Judge Richard W. Roberts on 5/1/13. (lcrwr2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
)
)
Plaintiff,
)
)
v.
)
)
JODY SHEGAN, et al.,
)
)
Defendants.
)
______________________________)
ABDUL GREENE,

Civil Action No. 12-109 (RWR)

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,

-2Greene “began escorting some of his guests to their cars which
Id. ¶ 8.

were parked in the surrounding area.”

As Greene was

returning to Roses Dream Lounge, Shegan drove a marked MPD
cruiser down the street toward Greene.
to move out of the street.

Id. ¶ 9.

Shegan yelled at Greene
However, it was difficult

for Greene to move out of the street because he was positioned
between Shegan’s cruiser and a parked van.
car and continued to yell at Greene.

Shegan got out of his

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.
in November 2010.

The IAD issued a report of its investigation

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”)).

-3Greene’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.

-4If 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.

-5D.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 § 12309 requirements.

The District does not dispute that the IAD

-6report, 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

-7Columbia, 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.

-8Finally, 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