SMOTHERS v. DISTRICT OF COLUMBIA et al

Filing 13

MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 9/9/2020. (lcabj3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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DANE SMOTHERS, JR.,
)
)
Plaintiff,
)
)
v.
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Civil Action No. 19-2632 (ABJ)
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DISTRICT OF COLUMBIA, et al.,
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Defendants.
)
____________________________________)
MEMORANDUM OPINION
On August 2, 2017, plaintiff Dane Smothers, Jr., a newly minted District of Columbia
firefighter, was struck by a ladder truck while he was attending his first fire. Am. Compl. [Dkt.
# 1-2] at ¶¶ 1, 34. 1 Plaintiff sustained serious injuries in the accident. Am. Compl. ¶ 1. He filed
a lawsuit in Superior Court against the District of Columbia; Gregory Dean, Chief of the District
of Columbia Fire and Emergency Services (“DCFEMS”); and Jon Thomas Dyson and Patrick
Mackin Carey, the operators of the truck, in their official capacities as D.C. firefighters, and the
gravamen of his complaint is that he and the other firefighters on the scene had been inadequately
trained, and that training deficiencies were well known to departmental officials. See generally
Am. Compl. Because the eight count amended complaint included constitutional claims grounded
in federal law, the case was removed to this Court. See generally Notice of Removal [Dkt. # 1].

1
The Amended Complaint begins at page 115 of the PDF of the Superior Court Documents
filed as Ex. 2 to the Notice of Removal [Dkt. # 1-2]. References to the page and paragraph numbers
of the Amended Complaint refer to page numbers at the bottom of the Amended Complaint itself.

1

Now defendants are moving to dismiss the complaint. Defs.’ Mot. to Dismiss [Dkt. # 3]
(“Defs.’ Mot.”); Defs.’ Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss [Dkt. # 3] (“Defs.’
Mem.”). Because the Court finds that the complaint fails to state any constitutional claims, the
counts that provided a basis for this Court’s jurisdiction will be dismissed, and the case will be
remanded. Plaintiff may well have grounds for relief, and this opinion finding fault with the federal
claims should not be read to express any point of view about the seriousness of plaintiff’s injuries
or the viability of the negligence allegations or any other claim.
BACKGROUND
Plaintiff joined the fire department on September 18, 2016, and he was certified by District
of Columbia Fire Chief Dean as having met the International Fire Services Accreditation Congress
training requirements on April 16, 2017. Am. Compl. ¶ 34. On August 2, 2017, the firefighters
were responding to a fire in the 800 block of F Street Northeast, Am. Compl. ¶ 30, and plaintiff
on the scene when he was struck by Ladder Truck # 7 (“Truck # 7”). Defendant Dyson was in the
driver’s seat at the front of the truck and Carey was in the tillerman position at the back of the
truck. Am. Compl. ¶¶ 6–7. Based on reports prepared by the Metropolitan Police Department and
DCFEMS, and an illustration included as part of the amended complaint, the complaint alleges
that Truck # 7 was proceeding northbound on 8th Street NE, and attempting to make a right turn
onto F Street, at the same time another firetruck was heading southbound on 8th Street. Am.
Compl. ¶¶ 30–32. Plaintiff was standing at the rear of a parked firetruck, in the intersection of F
and 8th Street NE. See Am. Compl. ¶ 32.
According to the complaint, the back portion of Truck # 7, steered by the tillerman, could
not successfully make the turn onto F Street because its turning radius was limited by the
southbound truck on 8th Street. Am. Compl. ¶ 32. The complaint alleges that “[t]he drivers of the
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ladder truck intentionally drove into [p]laintiff . . . to avoid a collision with” the southbound truck.
Am. Compl. ¶ 32. Plaintiff suffered “injury to parts of his body, some of which are believed to be
permanent, especially to his spinal cord, suffered severe pain of the body and mind; incurred
medical damages and he will lose time and money from his employment; will continue to suffer
pain, severe emotional distress, mental psychological harm, as well as other damages.” Am.
Compl. ¶ 73.
On June 6, 2019, plaintiff filed the original complaint in D.C. Superior Court, see Superior
Court of the District of Columbia Civil Division Information Sheet [Dkt. # 1-2]; Compl. [Dkt.
# 1-2], and he amended it on July 24, 2019. See Am. Compl. It contains four tort claims, Am.
Compl. ¶¶ 37–61, as well as four constitutional claims brought under 42 U.S.C. §1983. Am.
Compl. ¶¶ 62–76. As to the tort claims:
•

Count I, “Fraudulent Misrepresentation by the District of Columbia
Government and Chief Gregory Dean,” alleges that: the District and
Fire Chief Dean fraudulently misrepresented that plaintiff and his
coworkers were adequately trained in conformity with national
guidelines; plaintiff relied on this misrepresentation when he chose to
begin working as a firefighter; and plaintiff’s emotional and physical
injuries were a result of the fraudulent misrepresentations. Am. Compl.
¶¶ 37–46.

•

Count II, “Gross Negligence of Defendants Carey, Dyson, Dean, and
the District of Columbia Government” alleges that: the District acted
with gross negligence when it trained “drivers of emergency response
vehicles in violation of the national standard of care;” that Dean’s
intentional misrepresentations injured plaintiff; and that Carey and
Dyson “chose their safety over the safety of [plaintiff]. This is, they
sacrificed [plaintiff] for their safety. Am. Compl. ¶¶ 47–54.

•

Count III, “Intentional Tort by Carey, Dyson, and Dean,” alleges that
defendants Carey and Dyson intentionally drove their firetruck into
plaintiff, that their actions were unreasonable under the circumstances,
and that defendant Dean “knew that affirmatively misrepresenting the
extent of training to firefighters was substantially certain to cause
serious injury to firefighters and the public.” Am. Compl. ¶¶ 55–56.
3

•

Count IV, “Vicarious Liability and Respondeat Superior,” seeks to hold
the District accountable for the drivers’ negligence as well as the
intentional torts they allegedly committed while acting in their official
capacity. Am. Compl. ¶¶ 58–61.

As for the federal claims, Counts V through VIII are all predicated on 42 U.S.C. § 1983,
and they allege that each of the defendants violated plaintiff’s constitutional rights. See Am.
Compl. ¶¶ 62–76.
•

Count V, “Constitutional and Civil Rights Violations Pursuant to 42
U.S.C. § 1983 by Defendant District of Columbia,” seeks to hold the
District of Columbia liable for defendant Dean’s intentional
misrepresentations that allegedly deprived plaintiff of his Fifth
Amendment rights to due process and equal protection. Am. Compl.
¶¶ 62–67.

•

Count VI, “Constitutional and Civil Rights Violations Pursuant to 42
U.S.C. § 1983, Defendant Dean Individually,” alleges that the Fire
Chief’s affirmative efforts to mislead plaintiff into believing that he and
his coworkers were adequately trained, and his failure to properly hire,
train, and supervise firefighters under his control deprived plaintiff of
his Fifth Amendment rights to due process and equal protection. Am.
Compl. ¶¶ 68–71.

•

Count VII, “Constitutional and Civil Rights Violations Pursuant to 42
U.S.C. § 1983 Compensatory Damages,” alleges violations of plaintiff’s
Fifth Amendment rights by the District of Columbia and appears to be
largely duplicative of Count V. Am. Compl. ¶¶ 72–73.

•

Count VIII, “Constitutional and Civil Rights Violations Pursuant to 42
U.S.C. § 1983, Defendants Dysons and Carey Compensatory
Damages,” alleges that defendants Carey and Dyson violated plaintiff’s
Fifth Amendment due process and equal protection rights when they
intentionally struck him with the firetruck. Am. Compl. ¶¶ 74–76.

On September 3, 2019, Defendant Carey removed the action because the amended
complaint contains claims that give this Court federal question jurisdiction pursuant to 28 U.S.C.
§ 1331. See Notice of Removal at 2. On September 10, 2019, defendants moved to dismiss the
amended complaint on multiple grounds, including that the complaint fails to state any viable

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constitutional claims, and that the individual defendants are entitled to qualified immunity. See
generally Defs.’ Mem. 2 The Court need not reach all of the issues raised in the motion because
while the facts of this case are quite disturbing, and plaintiff has suffered a serious injury, he has
not alleged facts to state a plausible claim that his constitutional rights were violated that day, and
a constitutional violation is a necessary element of a section 1983 claim against either an individual
or a municipality. 3 For that reason, the Court will dismiss the federal claims, and it will remand
the case to the D.C. Superior Court.
STANDARD OF REVIEW
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly:
“First, the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions,” and “[s]econd, only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at 678–79, citing Twombly, 550 U.S. at 555–56.
A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, citing
Twombly, 550 U.S. at 556. “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., citing

2
Plaintiff opposed the motion, see Plaintiff Dane Smothers’ Opposition to Defendants’
Motion to Dismiss [Dkt. # 6] (“Pl.’s Opp.”); and defendants submitted a reply. See Defs.’ Reply
to Pl.’s Opp. [Dkt. # 8].
3
On February 6, 2020, the parties submitted a consent motion to dismiss the action against
Defendant Dyson, which the Court granted on March 17, 2020. See Min. Order (Mar. 17, 2020).
5

Twombly, 550 U.S. at 556. A pleading must offer more than “labels and conclusions” or a
“formulaic recitation of the elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555,
and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id., citing Twombly, 550 U.S. at 555.
When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe
a complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit of all
inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994), citing Schuler v. United States, 617 F.2d 605, 608 (D.C.
Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s
legal conclusions. See id.; see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In
ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only
“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), citing EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
ANALYSIS
Plaintiff’s complaint is not a model of clarity. The four constitutional claims are a mashup
of section 1983 jurisprudence, as the claims against individuals recite language drawn from the
case law and principles that bear on municipal liability, and the claims against the District weave
together multiple potential grounds for municipal liability while also complaining about individual
negligence and other largely tortious conduct. Also, the constitutional allegations – which make
no effort to differentiate whether they are based on substantive and procedural due process -- are
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largely conclusory, and while the Court is obliged to accept plaintiff’s factual allegations as true,
it need not accept his legal analysis.
I.

Section 1983
Counts V through VIII – that is, all of the federal claims – are predicated on section 1983

of the Civil Rights Act, which provides:
Every 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 in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983. To bring a claim against an individual under section 1983, a plaintiff must
establish the following elements: first, a “violation of a right secured by the Constitution and the
laws of the United States;” West v. Atkins, 487 U.S. 42, 48 (1988), second, that the “alleged
deprivation was committed by a person acting under color of state [or District of Columbia] law,”
id.; and third, that the defendant’s acts were the proximate cause of the injuries he sustained.
Elkins v. District of Columbia, 610 F. Supp. 2d 52, 61 (D.D.C. 2009), clarified on denial of
reconsideration, 636 F. Supp. 2d 29 (D.D.C. 2009), aff’d, 690 F.3d 554 (D.C. Cir. 2012).
The allegation of a constitutional deprivation is fundamental to a suit brought against a
governmental entity as well. “Because vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. “Only those who cause a violation
of a right secured by the Constitution are liable.” Elkins v. District of Columbia, 690 F.3d 554, 564
(D.C. Cir. 2012), citing Iqbal, 556 U.S. at 676.

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To proceed against a municipality, a plaintiff must allege that the “execution of a
government's policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the government as an entity
is responsible under § 1983.”

Monell v. Dep’t of Soc. Servs. of New York, 436

U.S. 658, 694 (1978). In other words, “a municipality cannot be held liable under § 1983 on a
respondeat superior theory,” id. at 691, because “[t]he ‘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 v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original).
Therefore, to maintain a section 1983 action against the District of Columbia, the Court must first
“determine whether the complaint states a claim for a predicate constitutional violation,” and “then
the court must determine whether the complaint states a claim that a custom or policy of the
municipality caused the violation.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.
Cir. 2013). The D.C. Circuit has explained that there are several ways in which the requirement
may be satisfied:
[T]he explicit setting of a policy by the government that violates the
Constitution; the action of a policy maker within the government; the
adoption through a knowing failure to act by a policy maker of actions by
his subordinates that are so consistent that they have become custom; or the
failure of the government to respond to a need (for example, training of
employees) in such a manner as to show deliberate indifference to the risk
that not addressing the need will result in constitutional violations.
Id. at 1306 (internal quotations and citations omitted).
Plaintiff predicates his section 1983 claims on both the Equal Protection Clause and the
Due Process Clause: he alleges that he was deprived of the right not to be subjected to excessive
or deadly force, the right not to be deprived of life, liberty or property without due process, and
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the right to equal protection, all secured by the Fifth Amendment. But since he has not put his
finger on any constitutional violation committed by Chief Dean or the individual firefighters, the
claims fail at the first level of the analysis, and one need not go on to consider whether the
complaint plausibly alleges that any alleged constitutional violation was caused by a custom or
practice, or deliberate indifference, on the part of the municipality.
II.

The Equal Protection Claims
Plaintiff alleges in Counts V through VIII that the actions of each of the defendants in this

case violated his right to the equal protection of the laws, guaranteed by the Fifth Amendment.
Am. Compl. ¶¶ 70, 73, 75. The Fifth Amendment states in relevant part that, “[n]o person . . .
shall be . . . deprived of life, liberty, or property without due process of law . . . .” U.S. Const.
amend. V. And although it does not contain its own equal protection clause, the Supreme Court
has directed that the Fourteenth Amendment’s Equal Protection Clause applies to the District of
Columbia through the Fifth Amendment’s Due Process Clause. See Bolling v. Sharpe, 347
U.S. 497, 499 (1954). In order to establish an equal protection violation, a litigant is required to
show that “the defendant acted with discriminatory purpose,” meaning “[i]t [] involves a
decisionmaker’s undertaking a course of action ‘because of, not merely in spite of, the action’s
adverse effects upon an identifiable group.’” Iqbal, 556 U.S. at 676, quoting Pers. Adm’r of
Mass. v. Feeney, 442 U.S. 256, 279 (1979).
But the amended complaint does not contain any allegations that plaintiff is a member of a
protected group or that that defendants’ actions were undertaken to purposefully discriminate
against him because of his membership in that group. See Iqbal, 556 U.S. at 676. Indeed, the
complaint includes no allegations about anyone’s race, sex, or national origin, and it does not
suggest that anyone harbored any bias against the plaintiff on any of those bases. For those
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reasons, plaintiff has failed to plausibly allege that his rights under the Equal Protection Clause
were violated, and, to the extent it is an alleged violation of the Equal Protection Clause that is
meant to serve as the predicate for Counts V, VI, VII, and VIII, the counts must be dismissed.
III.

The Substantive Due Process Claims
It appears that plaintiff is also attempting to allege in Counts V, VI, VII, and VIII that

Dean, Carey, and the District of Columbia have deprived him of his substantive rights under the
due process clause of the Fifth Amendment. He alleges that the individual named defendants
deprived him of his constitutional rights while acting in their official capacities, and he seeks to
extend liability to the District for their actions. See Am. Compl. ¶ 63. Specifically, plaintiff alleges
that “the District of Columbia arbitrarily created a heightened risk of danger that ultimately harmed
[plaintiff].

The conduct of the District is so egregious, so outrageous, that it shocks the

conscience.” Am. Compl. ¶ 65.
“The touchstone of due process is protection of the individual against arbitrary action of
government . . . whether the fault lies in a denial of fundamental procedural fairness . . . or in the
exercise of power without any reasonable justification in the service of a legitimate governmental
objective.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998) (internal citations
omitted). The Lewis case presented the question of whether police had violated the constitutional
guarantee of substantive due process by causing a person’s death during a high speed chase. While
the Supreme Court recognized the existence of a substantive claim under the due process clause,
it emphasized that negligently inflicted harm, and even reckless indifference to life, would not
satisfy the test; instead, there likely had to be a purpose to cause harm unrelated to the legitimate
object of the governmental action. Lewis, 523 U.S. at 848–49.

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As both parties acknowledge, the standard to be applied when assessing a claim alleging a
substantive due process violation is whether the executive action underlying the claim is “so
egregious, so outrageous that it may fairly be said to shock the contemporary conscience.”
Lewis, 523 U.S. at 847 n.8; see Pl.’s Opp. at 11; see Defs.’ Mem. at 8. For governmental action
to be arbitrary and conscience shocking in the constitutional sense, it must violate “‘the decencies
of civilized conduct.’”

Lewis, 523 U.S. at 846, quoting Rochin v. California, 342

U.S. 165, 172-73 (1952). The D.C. Circuit has directed that “the conscience-shock inquiry is a
threshold question in a due process challenge,” which “exists to differentiate substantive due
process . . . from local tort law.”

FOP Dep’t of Corr. Labor Comm. v. Williams, 375

F.3d 1141, 1145 (D.C. Cir. 2004) (internal quotations and citations omitted). And the Supreme
Court has explained that “conduct intended to injure in some way unjustifiable by any government
interest is the sort of official action most likely to rise to the conscience-shocking level.”
Lewis, 523 U.S. at 849.
A. Plaintiff does not state a substantive due process claim against Carey.
In Count VIII, plaintiff alleges that Carey, acting under the color of law as a firefighter,
violated his constitutional rights when he “intentionally drove a fire truck into [p]laintiff Smothers
in order to protect [his] own interests and the District of Columbia’s property.” Am. Compl. ¶ 74.
Based on this conduct, plaintiff claims that he was deprived of his Fifth Amendment rights to “not
be subjected to excessive or deadly force . . . [and] not to be deprived of life, liberty, or property
without due process of the law.” Am. Compl. ¶¶ 70, 75.
Plaintiff has not pled sufficient facts to overcome the high threshold established by the
Supreme Court in Lewis. The complaint alleges that “the drivers of the ladder truck intentionally
drove into . . . [plaintiff] to avoid a collision with another ladder truck that was passing in a
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southerly direction.” Am. Compl. ¶ 32. For purposes of this motion to dismiss, the Court will
assume the truth of the allegation that the firefighters made a deliberate decision, and that they did
not strike the plaintiff accidentally. But given the circumstances surrounding the accident,
including the fact that the trucks were en route to assist in an active fire, and the drivers were
seeking to avert a collision with another firetruck, the applicable case law compels a finding that
notwithstanding its dire consequences, this was not an action that “shocks the contemporary
conscience.” Lewis, 523 U.S. at 847 n.8.
The Lewis court explained in some detail why decisions made by officers on the street in
the heat of the moment are not likely to supply the basis for a constitutional claim. In that case, a
police officer was engaged in a high-speed pursuit of a motorcycle carrying two men, and at the
abrupt end of the chase, he skidded into one of the riders, Lewis, causing his death. 523 U.S.
at 837. Lewis’s family brought the case in part pursuant to section 1983, alleging that Smith
deprived Lewis of his Fourteenth Amendment substantive due process right to life. Id. The
Supreme Court granted certiorari after the Ninth Circuit held that there was a genuine dispute of
material fact as to whether Smith’s involvement in the high-speed pursuit amounted to deliberate
indifference to the decedent’s rights and remanded the case to the district court for trial. Id.
at 838-39.
In reversing the Ninth Circuit’s ruling, the Supreme Court gave significant weight to the
fact that the officers involved in the chase had “practically instantaneous” responses to lawless
behavior, and that there was “no reason to believe they were tainted by an improper or malicious
motive. Id. at 855. The Court held that even if Smith’s choice to engage in a high-speed pursuit
“offended the reasonableness held up by tort law or the balance struck in law enforcement’s own

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codes of sound practice, it does not shock the conscience,” and he could not be held liable for
violating Lewis’s substantive due process right to life. Id.
The same reasoning can be applied here. Carey and Dyson were operating a vehicle under
exigent circumstances when time was of the essence – responding to a fire – and as plaintiff
recounts the incident, they were forced to make a split second decision between two dangerous
alternatives. While plaintiff’s injuries cannot be minimized, the complaint is devoid of any
allegations suggesting that Carey acted with malicious intent to harm him or any other improper
motivation. Carey, like the officer in Lewis, was acting in response to a public safety emergency
and did not have the luxury of taking the time to consider alternative options to avoid any injuries.
His alleged conduct does not shock the conscience, and for that reason, the complaint fails to state
a substantive due process claim against him. Count VIII will, therefore, be dismissed. 4
B. Plaintiff fails to state a constitutional claim against Chief Dean.
The complaint also fails to plausibly allege that Chief Dean violated plaintiff’s
constitutional rights. In Count V, the claim against the District, plaintiff alleges that Dean’s alleged
lies about firefighter training “infringed on [plaintiff’s] constitutional right to be free of unjustified
intrusions on his personal liberty.”

Am. Compl. ¶ 62. Count VI alleges that Chief Dean

“affirmatively took steps to mislead [plaintiff] into believing that [he] and his co-workers had been
adequately trained,” and that the Chief “arbitrarily acted when he falsified graduation certificates.”
Am. Compl. ¶ 68. Plaintiff claims that Dean acted with “reckless disregard with deliberate
indifference for the plaintiff’s rights under the Constitution,” specifically pointing to the Chief
4
Defendants argue that Carey is entitled to qualified immunity on the constitutional claims
against him. Defs.’ Mem. at 7–11. But because qualified immunity requires a finding of a
constitutional violation, see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), which the Court has
determined does not exist here, the Court need not reach the issue.
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Dean’s “fail[ure] to properly hire and . . . to train and supervise firefighters under his control.”
Am. Compl. ¶ 69.
While plaintiff may ultimately be able to sustain his tort claims against Dean, the complaint
does not set forth a plausible allegation that Dean deliberately deprived him of his substantive due
process rights not to be subjected to excessive or deadly force and to not be deprived of life, liberty,
or property without due process of law. Am. Compl. ¶ 70. Instead, plaintiff simply tosses together
the “custom and practice” and “deliberate indifference” phraseology that would be necessary to
support a section 1983 claim against a municipality based on Dean’s conduct while omitting the
facts needed to allege that the conduct itself was unconstitutional. See, e.g., Am. Compl. ¶ 68
(“Chief Dean’s conduct was egregious conduct that shocks the conscience. He acted with
deliberate indifference to the constitutional rights of [plaintiff].”); Am. Compl. ¶ 69 (“Each and all
of the acts of [] Dean were done under the color and pretense of the laws, statutes, ordinances,
regulations, customs and usages of the District of Columbia and in bath faith and with reckless
disregard with deliberate indifference for the plaintiff’s rights under the Constitution . . . .”). But
these allegations, even when viewed in the light most favorable to plaintiff, do not contain any
facts that could lead to a reasonable inference that Chief Dean’s knowingly exposed the plaintiff
to a risk of constitutional harm. For that reason, Count VI will be dismissed.
C. Plaintiff has not stated a constitutional claim against the District.
In Counts V and VII, plaintiff alleges that Chief Dean “is an agent of the District of
Columbia, acting as the alter ego of the Defendant District of Columbia,” and that he “acted
concurrently with the intent to harm by the District of Columbia’s agents Carey and Dyson.” Am.
Compl. ¶ 62. The amended complaint also says that District of Columbia is liable for the
deprivation of plaintiff’s constitutional rights by failing “to properly hire and . . . to train and
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supervise its firefighters,” thereby “arbitrarily creat[ing] a heightened risk of danger that ultimately
harmed [plaintiff].” Am. Compl. ¶¶ 63, 65, 72. It seems, then, that plaintiff is attempting to hold
the District liable based on two different theories: 1) a respondeat superior theory that the District
is vicariously liable for the conduct of its agents in their official capacity, and 2) municipal liability
as the Supreme Court defined it in Monell.
But the central holding of Monell is that “a municipality cannot be held liable under § 1983
on a respondeat superior theory.” 436 U.S. at 691. And one cannot even begin the Monell analysis
to determine whether the acts of an individual state actor were caused by the municipality itself
absent the predicate constitutional violation. Baker, 326 F.3d at 1306, citing Collins v. City of
Harker Heights, 503 U.S. 115, 120 (1992). Because the Court has already determined that neither
of the individual defendants committed constitutional violations, that requirement is not met, and
the complaint also fails to state a section 1983 claim against the District. Counts V and VII must,
therefore, be dismissed.
CONCLUSION
For the foregoing reasons, Counts V through VIII will be dismissed for failure to state a
constitutional claim. Because the Court’s jurisdiction over this matter is based solely on the
allegations grounded in federal law that are being dismissed, the remainder of the case will be
remanded to the D.C. Superior Court. A separate order will issue.

AMY BERMAN JACKSON
United States District Judge
DATE: September 9, 2020
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