MORENO et al v. DISTRICT OF COLUMBIA OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA et al

Filing 17

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 2/28/2013. (KD)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ISABEL MORENO et al.,

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) Civ. Action No. 12-419 (RMC)
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Plaintiffs,
v.
DISTRICT OF COLUMBIA et al.,
Defendants.

MEMORANDUM OPINION
Plaintiff Isabel Moreno, acting on behalf of himself and his minor son David Moreno,
sues the District of Columbia, the Metropolitan Police Department (“MPD”), and MPD officers
Edward Stewart and Samuel Swarn under 42 U.S.C. § 1983, and the common law. The
complaint arises out of alleged physical and mental injuries the Morenos suffered during an
incident that occurred at their home on March 10, 2009. Mr. Moreno seeks compensatory and
punitive damages.
The District of Columbia and MPD move to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure or for summary judgment pursuant to Rule 56 on the grounds,
among others, that the complaint fails to state constitutional claims and that the Morenos failed
to comply with the District’s statutory notice requirements applicable to the common law claims.
See Defs. District of Columbia and District of Columbia MPD’s Mot. to Dismiss, or, in the
Alternative, Mot. for Summ. J. [Doc. # 6]. Upon consideration of the District and MPD’s motion
to dismiss and Mr. Moreno’s opposition, Pl.’s Response to Defs. District of Columbia and

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District of Columbia MPD’s Mot. to Dismiss [Doc. # 9], the Court will grant the motion in part
and deny it in part.
Defendants Swarn and Stewart have also moved to dismiss under Rule 12(b)(6) on the
grounds that the complaint fails to state constitutional and common law claims against them and
that Isabel Moreno’s common law claims are time-barred. Defs. Samuel Swarn and Edward
Stewart’s Mot. to Dismiss [Doc. # 14]. Mr. Moreno has not complied with the Order of
December 10, 2012, to oppose Officers Swarn and Stewart’s motion to dismiss by the latest
deadline of February 11, 2013. See Min. Order of Jan. 11, 2013 (granting Mr. Moreno’s motion
for an enlargement of time).
In all fairness, the record does not support the granting of Officers Swarn and
Stewart’s unopposed motion to dismiss as conceded. In seeking an enlargement of time to
respond to the Officers’ motion to dismiss, Mr. Moreno stated that he does not speak English and
“all correspondence from the court has come to me in English. My court appointed attorney
withdrew from the case and I have been seeking other counsel.” Pl.’s Mot. for Extension of
Time [Doc. 16]. Indeed, it is obvious from a comparison of Mr. Moreno’s cryptic opposition to
the District of Columbia’s dispositive motion with the well-pled complaint that Mr. Moreno did
not draft the complaint and was most likely assisted by an attorney – albeit not one “appointed”
by this Court. Mr. Moreno has not filed a motion for counsel in this case, and the Court has not
yet issued an order appointing counsel. Considering Mr. Moreno’s admitted limitations, obvious
confusion, and apparent inability to retain counsel, the Court, having considered the factors for
appointing counsel under Local Civil Rule 83.11, will appoint counsel to represent Mr. Moreno
in further proceedings. Officers Swarn and Stewart’s unopposed motion to dismiss will be held
abeyance pending completion of the appointment process and further order of the Court.

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BACKGROUND
Mr. Moreno “was born in El Salvador and has little formal education and little or no
understanding of English.” Compl. ¶ 8. Mr. Moreno alleges that on March 10, 2009, “Officer
Edward Stewart and others forced entry into [his] home . . .[,] struck him about the mouth[,]”
detained him and his son David, and “fatally shot [his] dog, Sammy.” Compl. ¶¶ 1, 11. Mr.
Moreno alleges that the Defendants acted in such a manner even though he had “peacefully
responded to the police requests when they entered into his home.” Id. ¶ 42. As a result of the
alleged encounter, Mr. Moreno alleges that he suffered damage to his face, jaw, and mouth
“commensurate with blunt force trauma,” and “an abscess in the roof of [his] mouth that has
since been removed.” Id. ¶¶ 14-16. Mr. Moreno states that his “jaw is still out of place and he
suffers from a permanent condition which can only be resolved with further surgery and
treatment.” Id. ¶ 17. Mr. Moreno alleges further that his son David “has been traumatized . . .
and is seeking treatment to deal with the stress caused by the unauthorized and excessive force
used by the Defendants.” Id. ¶ 18.
According to the MPD “Incident-Based Event Report” prepared by Officer Swarn,
Stewart and other police officers responded to “a report of a suspiscious [sic] Hispanic Male
climbing through an upstairs window” at Mr. Moreno’s residence. District of Columbia Defs’
Mem. of P. & A., Ex. B [Doc. # 6-1, ECF p. 7]. Stewart “was in the rear” of the residence when
two men “exited its rear door . . . followed by a large German Shepherd Dog . . . .” Id. The dog
ran toward Stewart “aggressively.” Id. Stewart “discharged his service weapon twice at the dog,
striking it at least one time and stopping it.” Id. The two individuals who had exited the rear
door were stopped, identified, and released. Id. In addition, the officers stopped Mr. Moreno “in
the front of the location[,] . . . “handcuffed [him] pending the officer’s investigation of the

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suspiscious [sic] person report, [and] identified [him] as a resident of the home and released
[him].” Id., ECF pp. 9-10. According to the report, an officer of the D.C. Humane Society “took
possession of the dog, which was conscious and breathing at the time.” Id., ECF p. 7.
In the complaint filed on March 19, 2012, Mr. Moreno sets forth the following causes
of action: (1) Negligent Hiring/Training of a Police Officer; (2) Negligent Assault;
(3) Intentional Infliction of Emotional Distress; (4) Negligent Infliction of Emotional Distress;
(5) Destruction of Property; (6) Property Damage; (7) Conversion; (8) Violation of First
Amendment Rights; (9) Violation of Fourth Amendment Rights. As to the District of Columbia,
Mr. Moreno sets forth the following causes: (10) False Arrest (Respondeat Superior Liability of
the District of Columbia); (11) First Amendment Rights; (12) Fourth Amendment Rights;
(13) Eighth Amendment Rights. Compl. at 4-10.
LEGAL STANDARDS
A. Motions to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges
the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. A
complaint must be sufficient “to give a 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
citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. The
facts alleged “must be enough to raise a right to relief above the speculative level.” Id.
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits or incorporated by reference, and

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matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d
1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted). To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is “plausible on its face.” Twombly, 550 U.S. at 570. A court must treat the
complaint's factual allegations as true, “even if doubtful in fact.” Id. at 555. But a court need not
accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id.
B. Motions for Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be
granted “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); accord Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In ruling on a motion for summary judgment, the
court must draw all justifiable inferences in the nonmoving party's favor and accept the
nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however,
must establish more than “the mere existence of a scintilla of evidence” in support of its position.
Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory
statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party
must present specific facts that would enable a reasonable jury to find in its favor. Id. If the
evidence “is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249-50 (citations omitted).
“A party may move for summary judgment, identifying each claim or defense – or the
part of each claim or defense – on which summary judgment is sought.” Fed. R. Civ. P. 56(a).

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The District has proffered evidence requiring summary judgment analysis only with regard to the
common claims. See generally Defs.’ Statement of Material Facts as to Which There Are No
Genuine Disputes. Therefore, the motion with regard to the constitutional claims will be
analyzed under the standard applicable to motions to dismiss.
DISCUSSION
1. The Claims Against MPD
Defendants argue correctly that the complaint against MPD should be dismissed
because MPD cannot be sued separately from the District of Columbia. See Heenan v. Leo, 525
F. Supp. 2d 110, 112 (D.D.C. 2007) (“[I]t is well settled that the MPD is non sui juris and,
therefore, cannot sue or be sued.”) (citations omitted). Hence, the complaint against MPD is
dismissed.
2. The Common Law Claims
The District argues that Mr. Moreno’s common claims should be dismissed on the
procedural grounds (1) that the Morenos failed to provide timely notice of their claims pursuant
to D.C. Code § 12-309, and (2) that Isabel Moreno’s claims are barred by the applicable statute
of limitations. Under D.C. Code § 12–309, “any person wishing to bring a personal injury action
against the District of Columbia for unliquidated damages must, within six months of sustaining
the injury, notify the Mayor in writing ‘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.’ ” Powers-Bunce v. District of Columbia,
479 F. Supp. 2d 146, 161 (D.D.C. 2007) (quoting statute). D.C. Code § 12-309 “constitutes a
departure from the common law concept of sovereign immunity,” and hence “is to be strictly
construed” against the claimaint. Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C.

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1981); accord Brown v. District of Columbia, 853 A.2d 733, 736 (D.C. 2004) (“[C]ompliance
with [§ 12-309] is mandatory as a prerequisite for filing suit against the District.”) (citations and
internal quotation marks omitted, brackets in original). Unlike the disability tolling provision in
the District’s statute of limitations, see D.C. Code § 12-302(a), the six-month notice requirement
“[can] not be tolled during [a] plaintiff’s minority.” Doe by Fein v. District of Columbia, 697
A.2d 23, 29 (D.C. 1997); see Doe by Fein v. District of Columbia, 93 F.3d 861, 876 (D.C. Cir.
1996) (certifying question to the D.C. Court of Appeals).
Mr. Moreno has not disputed the District’s evidence establishing that the Office of
Risk Management (“ORM”) “received a letter, dated March 24, 2011, from Isabel Moreno []
related to the claims . . . that allegedly occurred on or about March 10, 2009,” Decl. of Lana
Craven [Doc. # 6-1] ¶ 4, and he has not proffered any contradicting evidence. See Order [Doc. #
7] (advising Mr. Moreno about his responsibility to support his opposition to the District’s
summary judgment with evidence). Since the District received the claim notice well beyond the
six-month notification period, the Court concludes that the District is entitled to judgment as a
matter of law on the common claims. 1
3. The Constitutional Claims
The District argues that Mr. Moreno has failed to plead sufficient facts to support a
municipal liability claim under 42 U.S.C. § 1983. By the terms of § 1983, a plaintiff must allege
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Since both plaintiffs’ common law claims are foreclosed by the statutory notice
requirement, the Court will not address the District’s equally plausible argument that most of
Isabel Moreno’s common law claims are barred by the District of Columbia’s one-year statute of
limitations applicable to claims of “assault, battery, mayhem, wounding, malicious prosecution,
false arrest or false imprisonment.” D.C. Code § 12-301(4); see Rendall-Speranza v. Nassim,
107 F.3d 913, 920 (D.C. Cir. 1997) (“a claim for emotional distress that is intertwined with any
of the causes of action for which a period of limitation is specifically provided, including assault
and battery, is subject to the limitation period for the intertwined claim.”) (citation and internal
quotation marks omitted).
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that the defendant violated a right protected by the Constitution. In order for the District to be
held liable for the acts of a wrongdoer under its authority, a plaintiff must show that the District
was the “moving force” behind the alleged constitutional deprivation, Monell v. N.Y. City Dep't
of Social Servs., 436 U.S. 658, 694 (1978), as evidenced by an official policy or “practices so
persistent and widespread as to practically have the force of law.” Connick v. Thompson, --U.S. ---, 131 S.Ct. 1350, 1359 (2011); see Matthews v. District of Columbia, 730 F. Supp. 2d 33,
37 (D.D.C. 2010) (discussing “several different ways” the municipality may be held liable). A
municipality cannot be held liable under a theory of respondeat superior, Monell, 436 U.S. at
691, and the mere exercise of discretion by an employee is insufficient to hold a jurisdiction
liable. Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997). “In limited
circumstances, a local government's decision not to train certain employees about their legal duty
to avoid violating citizens’ rights may rise to the level of an official government policy for
purposes of § 1983. [However,] [a] municipality's culpability for a deprivation of rights is at its
most tenuous where a claim turns on a failure to train.” Connick, 131 S.Ct. at 1359.
Constitutional claims against municipalities require a two-step analysis. See Baker v.
District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Collins v. City of Harker
Heights, 503 U.S. 115, 120 (1992)). “First, the court must determine whether the complaint
states a claim for a predicate constitutional violation.” Id. (citation omitted). If so, the Court
must then inquire “whether the complaint states a claim that a custom or policy of the
municipality caused the violation.” Id. (citing Collins, 503 U.S. at 120; Monell, 436 U.S. at
694).

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For the following reasons, the District argues correctly that the complaint fails to
state predicate claims under the First, Fifth, and Eighth Amendments; the District argues
incorrectly that the complaint fails to state a claim under the Fourth Amendment.
The First Amendment Claim
The First Amendment protects the freedom, among others, of speech, but not without
limitation. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467-69 (2009). Mr.
Moreno claims that “the Officers deprived Plaintiffs of their First Amendment right to freedom
of speech.” Compl. ¶ 48. He alleges that “[t]he officers heard his explanation but forcefully
removed him from his home, detained him, injured him and destroyed his property, his dog by
shooting it and it later dying.” Compl. ¶ 47. By his own admission, Mr. Moreno’s speech was
not suppressed or chilled. See Hall v. Lanier, 766 F. Supp. 2d 48, 53 (D.D.C. 2011) (finding
allegations of multiple incidents of MPD officers’ “chilling” plaintiff’s speech under threat of
arrest sufficiently stated First Amendment free speech claim). Mr. Moreno has otherwise
conflated his substantiated Fourth Amendment claim (discussed below) with his unsubstantiated
First Amendment claim. Hence, the First Amendment claim will be dismissed.
The Fifth Amendment Claim
The Fifth Amendment protects against the deprivation of life, liberty, or property
without due process of law. Mr. Moreno mentions this amendment in his “Introduction,” Compl.
at 2, but has stated no supporting facts. Hence, the Fifth Amendment claim will be dismissed as
lacking a factual basis.
The Eighth Amendment Claim
The Eighth Amendment prohibits the government from inflicting “cruel and unusual
punishment” on prison inmates. Farmer v. Brennan, 511 U.S. 825, 828 (1994). Under well-

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settled law, the Amendment's prohibition applies only to persons who are subject to
“punishment” by the government, which the Supreme Court has defined to mean persons against
whom the government “has secured a formal adjudication of guilt in accordance with due
process of law.” Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1979) (internal quotation marks
omitted). Since Mr. Moreno does not allege that he or his son has been adjudicated guilty of
any crime, the Eighth Amendment is inapplicable. See id.; accord Powers-Bunce v. District of
Columbia, 479 F. Supp. 2d at 152-53. Hence, the Eighth Amendment claim will be dismissed.
The Fourth Amendment Claim
The Fourth Amendment prohibits unreasonable searches and seizures. Claims based
on a police officer’s use of “excessive force in the course of making an arrest, investigatory stop,
or other ‘seizure’ of [one’s] person” are properly analyzed under the Fourth Amendment’s
“objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). “The
‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight[,]” id. at 396, considering
such factors as “the severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id. (citations omitted). Excessive force may be found “if ‘the nature and
quality of the intrusion on the individual's Fourth Amendment interests’ is weightier than ‘the
countervailing governmental interests at stake.’ ” Rudder v. Williams, 666 F.3d 790, 795 (D.C.
Cir. 2012) (quoting Graham, 490 U.S. at 396). The Fourth Amendment is not violated by “every
push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers . . . .;
still, a police officer must have some justification for the quantum of force he uses.” Id. (citation
and internal quotation marks omitted).

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Accepting as true Isabel Moreno’s allegations that police officers, without
provocation, beat him so severely that he suffered permanent injury to his face, jaw, and mouth,
the Court finds that Isabel Moreno has sufficiently stated a Fourth Amendment claim of
excessive force. See Rudder, 666 F.3d at 795 (“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[.]’ ”) (quoting Oberwetter v.
Hilliard, 639 F.3d 545, 555 (D.C. Cir. 2011)). The remaining question is whether Mr. Moreno
has sufficiently pleaded a custom or policy as the motivating factor behind the constitutional
violation. Mr. Moreno alleges that the District “had actual or constructive knowledge that police
officers were abusing their arrest procedures and/or misusing force,” particularly as to “those
who do not speak English.” Compl. ¶¶ 59-60. He also claims that the “lack of adequate training
and supervision . . . leads [sic] police officers to improperly arrest and search individuals,
without probable cause, and/or use [sic] of excessive force in violation of arrestee’s Fourth
Amendment rights,” id., ¶ 63, and that “[t]he Officers’ search and subsequent injury caused to
Plaintiff was a result of the District of Columba’s policy, custom, or practice and the failure to
adequately train and supervise its officers[,] [causing] plaintiffs to be deprived of their rights
under the Fourth Amendment . . . .” Id. ¶ 64.
The District of Columbia has not addressed those specific allegations, which the Court
finds are sufficient to state a municipal liability claim. See Connick, 131 S.Ct. at 1359-60 (“To
satisfy [§ 1983], a municipality's failure to train its employees in a relevant respect must amount
to deliberate indifference to the rights of persons with whom the [untrained employees] come
into contact . . . . Only then can such a shortcoming be properly thought of as a city ‘policy or

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custom’ that is actionable under § 1983.”) (citations and internal quotation marks omitted)
(brackets in original). If, as the Court finds here, “a complaint alleging municipal liability under
§ 1983 may be read in a way that can support a claim for relief, thereby giving the defendant fair
notice of the claim, that is sufficient” to survive a motion to dismiss. Baker, 326 F.3d at 1307.
Hence, the District of Columbia’s motion to dismiss the Fourth Amendment claim will be
denied.
CONCLUSION
For the foregoing reasons, the Court will grant the District of Columbia’s motion for
summary judgment on the common law claims and the District’s motion to dismiss the
constitutional claims except Isabel Moreno’s Fourth Amendment claim of excessive force, which
survives. In addition, the Court will hold Officers Swarn and Stewart’s unopposed motion to
dismiss in abeyance, and will appoint counsel to represent Isabel Moreno in further proceedings.
A separate memorializing order accompanies this Memorandum Opinion.

_________/s/____________
ROSEMARY M. COLLYER
United States District Judge

Date: February 28, 2013

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