Aubin v. District of Columbia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FRITZ G. AUBIN,

Plaintiff,

Civil Case No. 14-02133 (RJL)

FIiED

JUN052015

Clerk, U.S. District & Bankruptcy

41/ Courts forthe District of Columbia

MEMO NDUM OPINION

June , 2015 [Dkt. # 5]

Plaintiff Fritz G. Aubin (“plaintiff”) brought this suit against defendants the

V.

THE DISTRICT OF COLUMBIA, et al.,

Defendants.

VVVVVVVVV

District of Columbia and Officer David Hong (“defendants”) in DC. Superior Court,

which was removed to this Court on December, 17, 2014, asserting both common law

and constitutional claims for injuries allegedly stemming from plaintiff‘s October 7, 2013

arrest. See generally Second Am. Compl. (“SAC”) [Dkt. # 1—1]. Before the Court is

defendant District of Columbia’s Motion to Dismiss or Alternatively Motion for

Summary Judgment. [Dkt. # 5].l

Upon consideration of the pleadings, record, and

relevant law, I find that the complaint fails to state a claim, and therefore defendant’s

motion is GRANTED, and all claims against defendant District of Columbia are

dismissed with prejudice.

I Defendant David Hong separately moved to dismiss the case on March 27, 2015. See Def.

Hong’s Mot. to Dismiss or Alternatively Mot. for Summary Judgment [Dkt. # 14].

BACKGROUND

Plaintiff alleges that on October 7, 2013, at approximately 9:00 am, he was

approached by DC. Metropolitan Police Officers at the intersection of 8th Street and

Pennsylvania Avenue in the District of Columbia. SAC ‘11 8. Plaintiff was “detained,

handcuffed, arrested and jailed” by defendant David Hong and charged with one count of

driving under the influence and one count of operating while impaired. [d. On October

24, 2013, plaintiff was arraigned and ordered to undergo substance abuse evaluation as

well as pre-trial monitoring. Id. All charges were later dismissed by the DC. Superior

Court on June 10, 2014. Id.

On August 13, 2014, plaintiff filed a complaint in DC. Superior Court, and on

December 3, 2014, plaintiff s counsel amended the complaint to include allegations of

constitutional violations. See Second Am. Compl. [Dkt. # l—l]. On December 17, 2014,

defendant District of Columbia removed this case to federal court. See Notice of

Removal [Dkt. # 1]. In his Second Amended Complaint, plaintiff alleges seven counts

including false imprisonment, false arrest, false light and invasion of privacy,

defamation, negligent training and supervision, and negligent infliction of emotional

distress (collectively, the “common law claims” or “DC. Code claims”), SAC 1111 9—31, as

well as one count of“Violation ofConstitutional Rights” under 42 U.S.C. § 1983 for

violations of plaintiff’s Fourth, Fifth, Sixth, Fourteenth, and Eighth Amendment rights

(collectively, the “constitutional claims”), SAC W 32-35.

ANALYSIS

Federal Rule of Civil Procedure 12(b)(6) provides that a district court shall dismiss

a complaint for “failure to state a claim upon which relief can be granted." Fed. R. Civ.

P. 12(b)(6). Although all factual allegations in a complaint are assumed to be true when

deciding a Rule 12(b)(6) motion, and all reasonable inferences are drawn in a plaintiffs

favor, the Court need not accept either inferences “unsupported by the facts set out in the

complaint” or “legal conclusions cast in the form of factual allegations.” Kowal v. MCI

Commc’ns Corp, 16 F.3d 1271, 1276 (DC. Cir. 1994). “While a complaint attacked by a

Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff‘s

obligation to provide the grounds of his entitle[ment] to relief requires more than labels

and conclusions, and a formulaic recitation of the elements ofa cause of action will not

do." BeIIAIZ. Corp. v. Twombly, 550 US. 544, 555 (2007) (alteration in original)

(citations and internal quotation marks omitted). To survive a motion to dismiss, a

complaint must contain sufficient factual matter that, if accepted as true, “state[s] a claim

to reliefthat is plausible on its face.” Id. at 570. “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 US. 662

(2009). This plausibility standard “asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. In addition, “when the allegations in a complaint, however

true, could not raise a claim of entitlement to relief, ‘this basic deficiency should . . . be

exposed at the point of minimum expenditure of time and money by the parties and the

court.” Twombly, 550 U.S. at 558 (quoting 5 WRIGHT & MILLER § 1216 at 233—234)

(alteration in original).

Plaintiffs constitutional claims fail because he has not alleged that any of the

misconduct took place pursuant to an official policy or custom. The District of

Columbia, as a municipality, can only be liable under 42 U.S.C. § 1983 for constitutional

deprivations suffered by plaintiff if “there is a direct causal link between a municipal

policy or custom and the alleged constitutional deprivation." City of Canton v. Harris,

489 U.S. 378, 385 (1989); see Monell v. Dep’t ofSoc. Servs., 436 U.S. 658, 692 (1978)

(section 1983 “imposes liability on a government that, under color ofsome official

policy, ‘causes' an employee to violate another's constitutional rights”). A direct causal

link can be shown in two ways. Either a municipal body may cause a constitutional tort

through the adoption and promulgation of a formal policy, Monell, 436 U.S. at 690, or, in

the absence of a formal policy, through a “custom” that is so pervasive “as to have the

force of law,” Board of the County Commissioners of Bryan County, Oklahoma v. Brown,

520 U.S. 397, 404 (1997). In all events, the municipality’s liability can be predicated

"only [upon] acts for which the municipality itselfis actually responsible.” City ofSt.

Louis v. Praprotnik, 485 U.S. 112, 123 (1988).

A municipality's failure to train its employees can suffice as a “custom” or

“policy” under 42 U.S.C. § 1983 ifthat failure evidences “‘deliberate indifference’

towards the constitutional rights of persons in its domain.” Daskalea v. District of

Columbia, 227 F.3d 433, 441 (DC. Cir. 2000) (quoting City ofCanton, 489 U.S. at 388~

89 & n. 7). Such indifference attaches only when “the need for more or different training

is so obvious, and the inadequacy so likely to result in the violation of constitutional

rights, that the policymakers of the city can reasonably be said to have been deliberately

indifferent to the need." City ofCanton, 489 US at 390.

Here, plaintiff has utterly failed to allege any facts that would demonstrate a

custom, practice, or policy that led to the violation of his constitutional rights. Similarly,

plaintiff‘s complaint fails to identify any policymaker who consciously chose to violate

plaintiff” s constitutional rights or was deliberately indifferent to the risk that

constitutional rights would be violated. Plaintiff has not alleged that any municipal

employee was so inadequately trained that the city was “deliberately indifferent” to the

need for better training. Instead, plaintiff merely relies upon the one incident ofhis own

arrest in his allegations, which is legally insufficient to allege a municipal custom or

policy. See Brookens v. United States, 981 F. Supp. 2d 55, 64 (D.D.C. 2013) (dismissing

Section 1983 claims where plaintiff relied on own personal circumstances to show policy

or custom). Accordingly, the claims alleging constitution violations under Section 1983

will be dismissed.

Plaintiff“ 5 common law claims—Le, false imprisonment, false arrest, false light,

invasion of privacy, defamation, negligent training and supervision, and negligent

infliction of emotional distress—also fail because plaintiff failed to give defendant timely

notice, which is a strict requirement to preserve those claims against the District of

Columbia. Plaintiff does not contest that his April 23, 2014, letter was untimely, but

instead argues that the police report adequately apprised defendant of the injury claimed,

thus satisfying the notice requirement. See P1.’s Opp. [Dkt. # 7] at 6. I disagree.

In order to maintain an action against the District of Columbia for the type of

common law claims alleged here, a plaintiff must satisfy the mandatory notice

requirement of DC. Official Code § 12-309. Section 12—309 provides, in pertinent part:

[A]n 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 ofthe approximate time,

place, cause, and circumstances ofthe injury or damage.

DC. Code § 12-309. The notice requirement of Section 12-309 is a prerequisite to a suit

against the District of Columbia “because it represents a waiver of sovereign immunity.”

Faison v. District ofColumbia, 664 F. Supp. 2d 59, 68 (D.D.C. 2009) (citing Johnson v.

District ofColumbia, 572 F. Supp. 2d 94, 1 11 (D.D.C. 2008). Compliance with the notice

requirement is mandatory. Id. “Courts should strictly construe Section 12-309’5 notice

requirements.” Day v. District of Columbia Dep ’t of Consumer & Regulatory A flairs,

191 F. Supp. 2d 154, 158 (D.D.C. 2002).

There are two ways to satisfy the 12-309 requirement: (1) a written notice to the

Mayor ofthe District of Columbia, or (2) a police report prepared in the regular course of

duty. Blocker-Burnette v. District ofColumbia, 730 F. Supp. 2d 200, 204 (D.D.C. 2010).

“In order for police reports made in the regular course of duty to satisfy the Section 309

requirement of notice, it must contain information as to the approximate time, place,

cause, and circumstances ofinjury or damage ‘ . . .with at least same degree of specificity

required by written notice.’” Pitts v. District ofColumbia, 391 A.2d 803. 808 (DC.

1978) (quoting Jenkins v. District ofColumbia, 379 A.2d 1177, 1178 (DC. 1977))

(emphasis added). “[T]he inquiry with respect to a police report’s capacity to satisfy §

12-309'5 notice obligation is whether ‘the District should have anticipated, as a

consequence of receiving the police reports, that a complaint by [plaintiffI would be

forthcoming.m Mazloum v. District ofColumbia Metro. Police Dep ’t, 522 F. Supp. 2d

24, 49 (DEC. 2007) (quoting Allen v. District ofColumbia, 533 A.2d 1259, 1262 (DC.

1987): see also Jones v. Ritter, 587 F. Supp. 2d 152, 159 (BBC. 2008).

The police report at issue here fails to satisfy the requirements ofthe statute. See

Def.’s Mot, Ex. 4 (MPD Police Report) [Dkt. # 5-4] at 3. While the police report does

describe the circumstances of the arrest generally, it does not describe any potential

causes of action plaintiffmight have against the District of Columbia. la’. Tellingly, the

report does not describe that plaintiff suffered any actual injury. let alone that plaintiff

suffered an injury that was attributable to defendant. Id; see also Allen v. District of

Columbia, 533 A.2d 1259, 1263 (DC. 1987) ("a police report of an arrest is

presumptively devoid of any notice ofa potential claim of injury or damage from false

arrest. assault and battery, or negligence”). Put simply, there was no reason whatsoever,

on the basis ofthis police report, for defendant to have anticipated that a complaint by

plaintiff was forthcoming. Accordingly, the DC. Code offenses must also be dismissed.

CONCLUSION

Thus, for all of the foregoing reasons, defendant’s motion to dismiss is

GRANTED, and this case is DISMISSED as to defendant District of Columbia with

prejudice for failure to state a claim. A separate Order consistent with this decision

accompanies this Memorandum Opinion.