Johnson v. District

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SHARNENE JOHNSON,

Plaintiff,

v. Civil Action No. 22-3167 (JEB)

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Sharnene Johnson alleges that Metropolitan Police Department officers used

excessive force in unlawfully restraining and subsequently shooting and killing her son,

DeAndre Johnson, on October 18, 2021. Her Amended Complaint names as Defendants the

District of Columbia, Chief of Police Robert Contee, Officer Juwan Jefferson, and the two

unknown police officers who accompanied Jefferson during the incident. Defendants now move

to dismiss a subset of Plaintiff’s causes of action as legally deficient. The Court agrees that she

has not sufficiently pled Contee’s supervisory liability, the District’s municipal liability, or one

theory for negligent use of force leading to death. Her counts for negligent supervision,

retention, discipline, and training, conversely, survive. The Court accordingly grants the Motion

in part and denies it in part.

I. Background

The Court at this stage sets forth the facts as pled in the Amended Complaint, assuming

them to be true. Johnson brings this case as the mother of decedent DeAndre Johnson and as

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Personal Representative of his estate. See ECF No. 23 (Am. Compl.), ¶ 1. (At times the Court

calls individuals by their first names for the sake of clarity and without meaning any disrespect.)

Sharnene alleges that on October 18, 2021, Jaquia Taylor, the mother of DeAndre’s son,

obtained a Temporary Protection Order against DeAndre. Id., ¶¶ 14–16; ECF No. 23-1, Exh. 3

(TPO). Later that day, Taylor requested a police escort to retrieve her belongings from the home

that she shared with him. See Am. Compl., ¶¶ 14, 17. Taylor and her two children arrived at the

home approximately one hour later, accompanied by Officer Jefferson and unknown officers A

and B. Id., ¶¶ 19–20. Plaintiff alleges that Taylor neither provided any officer with the TPO nor

informed them of DeAndre’s prior violent behavior towards her. Id., ¶¶ 17–18.

After Taylor and the officers entered the home, she and DeAndre engaged in a verbal

exchange, id., ¶ 22, during the course of which the unknown officers began to surround

DeAndre. Id. While the pair continued their conversation, “Officer Jefferson tapped Officer B

and crossed his wrists in a handcuffing motion indicating that he was going to make an arrest.”

Id., ¶ 23. Jefferson then placed DeAndre’s right wrist into one handcuff and — along with

Officer B — tackled him onto the floor of his apartment. Id., ¶ 24. While Officer B was still on

top of DeAndre, Jefferson fired two shots into DeAndre’s body. Id., ¶ 25. Taylor did not

observe any officers providing immediate medical assistance to DeAndre after the shooting. Id.,

¶ 26. He was pronounced dead on the scene. Id., ¶ 27.

On October 18, 2022, Sharnene, as Personal Representative of DeAndre’s estate, brought

her initial Complaint against the District of Columbia, Chief of Police Robert Contee, Officer

Jefferson, and the unknown officers. See ECF No. 1 (Compl.). She then filed an Amended

Complaint, which is the operative pleading here, on January 9, 2023. Her Amended Complaint

raises a Fourth Amendment claim through 42 U.S.C. § 1983 against Jefferson (Count I), a § 1983

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supervisory-liability claim against Contee (Count II), a municipal-liability claim against the

District (Count III), as well as common-law claims for battery (Counts IV–V), assault (Counts

VI–VII), negligent supervision, retention, discipline, and training (Counts VIII–XI), negligence

leading to death (Counts XII–XIII), false arrest (Count XIV), and false imprisonment (Count

XV). See Am. Compl. at 6, 10, 19, 23, 24, 26, 27, 30. Defendants have now filed a Partial

Motion to Dismiss challenging Counts II, III, and VIII–XIII of the Amended Complaint. See

ECF No. 28 (MTD).

The Court notes that Plaintiff appears to argue in her Opposition that she cannot respond

to the Motion while she has Freedom of Information Act requests still pending. See ECF No. 29

(MTD Opp.) at 1–3. That, however, is not a proper response to the Motion, and the Court does

not entertain it here. See Clay v. U.S. Dep’t of Just., 680 F. Supp. 2d 239, 248 (D.D.C. 2010)

(citing Stonehill v. IRS, 558 F.3d 534, 538 (D.C. Cir. 2009)) (noting that “FOIA is not a

substitute for discovery rules which govern civil and criminal litigation”); see also Rollins v.

Wackenhut Services, Inc., 703 F.3d 122, 130 (D.C. Cir. 2012) (quoting Belizan v. Hershon, 434

F.3d 579, 582 (D.C. Cir. 2006)) (“[A] bare request in an opposition to a motion to dismiss —

without any indication of the particular grounds on which amendment is sought — does not

constitute a motion within the contemplation of Rule 15(a).”).

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint for failure to

state a claim upon which relief may be granted. In evaluating such a motion to dismiss, courts

must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of

all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,

216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.

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Cir. 1979)). Although “detailed factual allegations” are not necessary to withstand a Rule

12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “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 Twombly, 550 U.S. at 570) — that

is, the facts alleged in the complaint “must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555.

The Court need not accept as true “a legal conclusion couched as a factual

allegation,” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478

U.S. 265, 286 (1986)), nor “inferences . . . unsupported by the facts set out in the

complaint.” Id. (quoting Kowal v. MCI Communications Commc’ns Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994)). And it may consider not only “the facts alleged in the complaint,” but also

“any documents either attached to or incorporated in the complaint[,] and matters of which

[courts] may take judicial notice.” Equal Emp. Opportunity Comm’n v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

III. Analysis

In seeking dismissal here, Defendants first challenge Plaintiff’s supervisory-liability and

municipal-liability claims under 42 U.S.C. § 1983, asserting that she has failed to sufficiently

plead the required elements. They also contend that Johnson has not established her common-

law causes of action for negligent supervision, retention, discipline, and training, as well as

negligent use of force leading to death. The Court addresses each of these arguments in turn.

A. Counts II and III: 42 U.S.C. § 1983 Claims

Plaintiff invokes the Fourth Amendment in seeking relief under 42 U.S.C. § 1983. That

section creates liability for anyone who subjects or causes one to be subjected to the deprivation

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of constitutional “rights, privileges, or immunities.” To state a claim under § 1983, a plaintiff

must plead facts sufficient to allege: 1) “the violation of a right secured by the Constitution and

the laws of the United States” and 2) “that the alleged deprivation was committed by a person

acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Johnson principally alleges that Jefferson is personally liable for his use of excessive

force when he shot and killed DeAndre. See Am. Compl., ¶¶ 28–36. Defendants do not

challenge that claim here. See MTD at 1. Instead, they argue that Contee and the District may

not also be held liable under § 1983 for the alleged violation of DeAndre’s Fourth Amendment

rights. This means that Count II, which alleges supervisory liability against Contee, and Count

III, which alleges municipal liability against the District, would be dismissed. See id.; Am.

Compl. at 10, 19.

1. Supervisory Liability

Johnson seeks to hold Contee liable in his individual capacity because he did not

“properly investigate, discipline, and train officers” before Jefferson shot and killed DeAndre.

See Am. Compl., ¶ 58. More specifically, Plaintiff points to Contee’s failure to properly train

officers about MPD policies governing the use of deadly force and the treatment of handcuffed

prisoners that she claims Jefferson violated during the incident. See id., ¶¶ 38–46, 49. She does

not allege, however, that “Contee was personally involved in the events giving rise to the death

of Mr. Johnson.” MTD Opp. at 5. In seeking dismissal, Defendants contend that Contee cannot

be held liable on such a supervisory-liability theory.

A government official may not be held liable under § 1983 solely on a respondeat

superior theory. See Iqbal, 556 U.S. at 676. Rather, “[s]upervisory liability under § 1983 is

triggered only when a supervisor fails to provide more stringent training in the wake of a history

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of past transgressions by the agency or provides training ‘so clearly deficient that some

deprivation of rights will inevitably result absent additional instruction.’” Elkins v. District of

Columbia, 690 F.3d 554, 566 (D.C. Cir. 2012) (quoting Int’l Action Ctr. v. United States, 365

F.3d 20, 27 (D.C. Cir. 2004)). In other words, a supervisory-liability claim under § 1983

requires a plaintiff to show that the supervisor was on notice that additional training was required

and that his failure to provide that additional training was causally linked to the predicate

constitutional violation. Id.; see Wheeler v. Am. Univ., No. 20-2735, 2022 WL 160226, at *23

(D.D.C. Jan. 18, 2022). Allegations about prior incidents of excessive force are insufficient to

establish that causal connection here; the Court requires a stronger link between the “past

transgressions” and the “likelihood” that MPD officers would use unjustified deadly force. See

Jefferies v. District of Columbia, 917 F. Supp. 2d 10, 26 (D.D.C. 2013) (quoting Int’l Action

Center, 365 F.3d at 27); cf. Leach v. District of Columbia, No. 19-947, 2022 WL 1316436, at

*12 (D.D.C. May 3, 2022) (denying plaintiff’s municipal-liability claim because he did not plead

facts “specific to lethal uses of force by MPD officers”).

Johnson presents three theories why Contee was or should have been aware of defects

with MPD’s training and disciplinary programs and why a “sufficient causal connection” thus

exists between his failure to respond to those deficiencies and her son’s death. See Am. Compl.,

¶ 58; id., ¶¶ 59–88. None is availing.

Plaintiff first argues that Contee’s oversight role over MPD’s Disciplinary Review

Division exposed him to at least six lawsuits against MPD, which should have alerted him to

“MPD’s continued use [of] excessive force.” Id., ¶ 58; see id., ¶¶ 59–67. Plaintiff, however,

never asserts that any of the incidents giving rise to these suits involved violations of MPD’s

policies governing the use of deadly force or the treatment of handcuffed prisoners. See id.,

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¶¶ 59–67; MTD at 8. These lawsuits consequently could not have notified Contee that there

existed a need to better train officers to avoid the infraction alleged in the Amended Complaint.

Plaintiff, moreover, does not establish that Contee — who assumed his position with the review

board in 2016 — was or should have been familiar with this series of lawsuits stretching back to

2010. See Am. Compl., ¶¶ 52, 59–67; MTD at 8.

Johnson next maintains that Contee was placed on notice for purposes of § 1983

supervisory liability because Jefferson had “one prior UFRB [Use of Force Review Board]

finding against him for reckless use of his firearm and a history of violating MPD General

Orders” regarding paperwork. See Am. Compl., ¶¶ 68, 73. Plaintiff includes as an exhibit to the

Amended Complaint a report describing the incident that precipitated the adverse UFRB finding.

See ECF No. 23-1, Exh. 9 (MPD Audit). The report states that during a firefight with an armed

suspect, Jefferson fired a round that struck a fellow police officer in his bulletproof vest, and it

recommends that Jefferson undergo further tactical training. See id. at xii–xiii; Am. Compl.,

¶¶ 69–71. Despite noting Jefferson’s “tactical shortcomings,” the report concludes that his use

of deadly force was justified. See MPD Audit at xiii, 76. While that incident may have created

concerns about Jefferson’s marksmanship, it cannot be said to have raised a red flag that he

would use unjustified deadly force in the future. Similarly, Plaintiff’s allegation that Jefferson

violated District policy by failing to submit required paperwork after the incident is inapposite,

for that administrative infraction bears little relation to his alleged use of excessive deadly force.

See Am. Compl., ¶ 73; MTD at 9.

Last, Johnson relies on a portion of a June 2022 report from the Office of Police

Complaints detailing instances in which MPD officers discharged their weapons at people during

the previous year. See id., ¶¶ 76-77; ECF No 23-1, Exh. 10 (OPC Use of Force Report). She

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points to the report’s description of the shooting of DeAndre and its recommendation that MPD’s

policies be reformulated to clarify that only a minimum of force may be applied to handcuffed

prisoners. See OPC Use of Force Report at 37, 41; Am. Compl., ¶ 80. That recommendation

made in June 2022, however, cannot be said to have placed Contee on notice as to a need for

additional training on the treatment of handcuffed prisoners before the October 18, 2021,

incident occurred. Plaintiff, moreover, does not identify in the report any mention of an officer-

involved shooting beyond our incident that the UFRB deemed to have involved the unjustified

use of lethal force, even assuming Contee was aware of them before the report. Instead, she

points only to the report’s criticism of MPD officers’ use of neck restraints. See OPC Use of

Force Report at 38; Am. Compl., ¶ 79. Because Plaintiff does not allege that Jefferson or the

unidentified officers applied such a tool against Jefferson, those allegations have no bearing here.

In sum, as the Amended Complaint is devoid of factual allegations that Contee “had

actual or constructive knowledge of past transgressions or that [he was] responsible for or aware

of ‘clearly deficient’ training,” Johnson’s attempt to hold him liable “fades into respondeat

superior or vicarious liability, clearly barred under Section 1983.” James v. District of

Columbia, No. 20-335, 2022 WL 951265, at *4 (D.D.C. Mar. 30, 2022) (quoting Int’l Action

Ctr., 365 F.3d at 27–28)). Plaintiff’s 42 U.S.C. § 1983 claim against Contee will accordingly be

dismissed.

2. Municipal Liability

The District similarly contends that it cannot be held liable under a theory of municipal

liability. A municipality, including the District of Columbia, may be sued as a person under

§ 1983. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978); see also

Dorman v. District of Columbia, 888 F.2d 159, 162 (D.C. Cir. 1989). That section, however,

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imposes liability on a municipality only for its own illegal actions — i.e., “‘action [taken]

pursuant to official municipal policy’” — that “‘subjects’ a person to a deprivation of rights or

‘causes’ a person ‘to be subjected’ to such a deprivation.” Connick v. Thompson, 563 U.S. 51,

60 (2011) (quoting Monell, 436 U.S. at 691–92).

Plaintiffs may state a claim that such an official municipal policy exists by showing that:

(1) the municipality adopts a policy that itself violates the

Constitution; (2) the unconstitutional action was taken by a “policy

maker” within the government; (3) the employees’ unconstitutional

actions “are so consistent that they have become [a] ‘custom’” of the

municipality of which the supervising policymaker must have been

aware; or (4) the municipality knew or should have known of a risk

of constitutional violations, but showed “deliberate indifference” to

that risk by failing to act.

Hurd v. District of Columbia, 997 F.3d 332, 337 (D.C. Cir. 2021) (quoting Baker v. District of

Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)) (emphasis added).

Municipal liability under Monell also requires a showing of causation — specifically, a

§ 1983 plaintiff must plead facts to support an inference that the official municipal policy

“‘cause[d] an employee to violate another’s constitutional rights.” Monell, 475 U.S. at 692

(citing Rizzo v. Goode, 423 U.S. 362, 370–71 (1976)). In other words, “a municipality can be

liable under § 1983 only where its policies [or customs] are the ‘moving force [behind] the

constitutional violation.’” City of Canton v. Harris, 489 U.S. 378, 388–389 (1989) (quoting

Monell, 436 U.S. at 694; Polk County v. Dodson, 454 U.S. 312, 326 (1981)).

Johnson’s § 1983 claim against the District draws on the custom and deliberate-

indifference routes in seeking to show that there existed a District policy condoning “MPD

officers’ excessive use of force” and that this policy was the “moving force[]” behind the

violation of DeAndre’s Fourth Amendment rights. See Am. Compl., ¶¶ 105, 107. The District

maintains that dismissal is appropriate because Plaintiff has not pled sufficient facts to establish

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such an official municipal policy or, in the alternative, to demonstrate that such a policy caused

the predicate constitutional violation. See MTD at 12. The Court looks separately at Johnson’s

custom and deliberate-indifference theories.

a. Custom

Plaintiff first alleges that Contee and the District were “aware of MPD officers’ excessive

use of force,” Am. Compl., ¶ 107, and that this misfeasance was adopted as municipal custom

through Contee’s failure to intervene to improve MPD’s training or disciplinary programs. See

id., ¶ 106. The factual allegations supporting this theory, however, are far too general to

establish municipal liability based on custom.

“To hold a municipality liable based on a pattern of similar constitutional violations, a

plaintiff must show that the municipality ‘knowingly ignore[d] a practice that was consistent

enough to constitute custom.’” Hurd, 997 F.3d at 338 (quoting Warren v. District of Columbia,

353 F.3d 36, 39 (D.C. Cir. 2004)). To impose municipal liability, moreover, the consistent past

practice must consist of “facially similar past wrongdoing” to the predicate violation. Leach,

2022 WL 1316436, at *13; compare Hunter v. District of Columbia, 824 F. Supp. 2d 125, 133–

34 (D.D.C. 2011) (holding that plaintiff failed to state custom basis for municipal liability for

arrests without probable cause where “[he] was not arrested for the offense examined in the

report on which he relies”), with Matthews v. District of Columbia, 730 F. Supp. 2d 33, 37–38

(D.D.C. 2010) (finding plausible claim of municipal custom of conducting unlawful strip

searches where six such searches occurred in two-year span).

Leach v. District of Columbia, 2022 WL 1316436, decided by Judge Mehta of this

district, is instructive on this point. In that case, the plaintiff adduced “generic data about

lawsuits, settlements, District budgets, and sustained complaints about MPD officers’ use of

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force” in support of his allegation that there existed a municipal custom condoning the excessive

use of force. Id. at *12. The court dismissed that claim, explaining that “data about unspecified

officer misconduct and facts and figures about the same are simply too generic to plausibly

support municipal liability based on custom for Plaintiff’s specific excessive use-of-force claim.”

Id. at *13 (internal quotation marks omitted).

Plaintiff does not identify a single incident preceding the October 18, 2021, shooting in

which the URFB deemed an MPD officer to have used unjustified deadly force. See MTD at 11.

This is fatal to her claim. She falls back instead on figures about a much broader category —

incidence of excessive force during Contee’s tenure as Chief of Police — and a report criticizing

MPD’s response to community complaints as being too lenient. See Am. Compl., ¶¶ 98–103;

ECF No. 23-1, Exh. 11 (OPC Policy Report) at 1–6. Absent allegations that these excessive-

force incidents involved conduct resembling Jefferson’s or that insufficiently stern discipline of

officers with sustained complaints for using excessive force was relevant to DeAndre’s shooting,

these data points bear too attenuated a relationship to the predicate constitutional violation

Plaintiff alleges to establish a municipal custom. See Hurd, 997 F.3d at 338 (finding failure to

establish municipal custom where plaintiff relied on “failures by the District that bear little

resemblance to the type of unconstitutional conduct asserted by [plaintiff]”).

b. Deliberate Indifference

Johnson next maintains that the District was deliberately indifferent to the risk that, if it

did not better train its officers in the legal use of force and more sternly discipline those officers

found to have used force excessively, MPD personnel would inevitably commit constitutional

violations. See Am. Compl., ¶ 106; MTD Opp. at 6.

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“[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal

actor disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 61

(internal quotation marks omitted). Plaintiffs whose deliberate-indifference theories for

municipal liability rest on an alleged failure to train or to discipline must show that “[municipal]

policymakers are on actual or constructive notice that a particular omission in their training

program causes [municipal] employees to violate citizens’ constitutional rights.” Id. To make

this showing, plaintiffs must ordinarily demonstrate “[a] pattern of similar constitutional

violations by untrained employees.” Id. at 62. Whether a pattern of constitutional torts bears a

sufficient relationship to the alleged violation to place the defendant municipality on notice

hinges on whether the violations “have materially similar legal implications.” Hurd, 997 F.3d at

340.

Johnson does not identify such a pattern. She instead draws on the same evidence that

was insufficient to support either her supervisory-liability or her municipal-custom claim — e.g.,

OPC adjudications detailing MPD officers’ use of either excessive but non-lethal force or

justified deadly force. See Am. Compl., ¶ 107; ECF No. 23-1, Exh. 13 (OPC Adjudications).

Because the information Plaintiff presents is not “specific to lethal uses of force by MPD

officers,” she has failed to “allege [the] comparable situational data or examples to make out a

plausible deliberate-indifference theory.” Leach, 2022 WL 1316436, at *12 (emphasis omitted);

cf. Robinson v. Pezzat, 818 F.3d 1, 13 (D.C. Cir. 2016) (holding that pattern of lawful shootings

by MPD officers of dogs did not place District on notice as to risk of unconstitutional canine

killings).

There is an alternative route to establishing deliberate indifference, but it is not applicable

here. In those “rare” instances when the “unconstitutional consequences of failing to train” were

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“patently obvious,” municipalities may be held liable on a deliberate-indifference theory

“without proof of a pre-existing pattern of violations.” Connick, 563 U.S. at 64 (citing Bd. of

Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997)). Plaintiff, however, does not expressly

raise a single-incident theory, and even if she did, this is not an exceptional instance where such

a theory would be successful. See MTD at 14. Johnson does not allege, for example, that MPD

has entirely failed to train its officers on its use-of-force policies or that those policies were

themselves deficient. On the contrary, she has “at most, allege[d] that [DeAndre] encountered

several poorly trained officers” who violated MPD’s policies. Xingru Lin v. District of

Columbia, 268 F. Supp. 3d 91, 101 (D.D.C. 2017); see Am. Compl., ¶¶ 44–46. Absent a

showing that “the failure to provide proper training may fairly be said to represent a policy for

which the city is responsible[,] . . . [the fact that] a particular officer may be unsatisfactorily

trained will not alone suffice to fasten liability on the city.” Canton, 489 U.S. at 390.

For these reasons, the District must also be dismissed as a Defendant on this cause of

action.

B. Counts VIII–XIII: Common-Law Negligence Claims

Defendants’ challenges to the next series of counts can be divided into two groups for

ease of analysis.

1. Negligent Supervision, Retention, Discipline, and Training

Defendants first move to dismiss the Amended Complaint’s Counts VIII–XI on the

ground that Plaintiff did not sufficiently plead facts supporting the claims that Defendants

Contee’s and the District’s negligent supervision, retention, disciplining, and training of MPD

officers resulted in DeAndre’s wrongful death. See MTD at 16 (arguing that Plaintiff’s

“pleadings provide no factual support” for negligence claims).

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“The law is well-settled that [l]iability for negligent supervision arises when an employer

knew or should have known its employee behaved in a dangerous or otherwise incompetent

manner, and that the employer, armed with that actual or constructive knowledge, failed to

adequately supervise the employee.” Moore v. District of Columbia, 79 F. Supp. 3d 121, 142

(D.D.C. 2015) (citing Godfrey v. Iverson, 559 F.3d 569, 571 (D.C. Cir. 2009)) (quotation marks

omitted); see also James v. District of Columbia, 869 F. Supp. 2d 119, 121 (D.D.C. 2012) (same

standard for negligent retention and including failure to discipline in negligent-supervision

analysis); Xingru Lin v. District of Columbia, No. 16-645, 2019 WL 1597876, at *11 (D.D.C.

Apr. 15, 2019) (same standard for negligent training).

While Plaintiff’s Amended Complaint did not sufficiently plead § 1983 supervisory

liability, the standard for common-law negligent supervision, retention, discipline, and training

— as aggregated in the collected cases above — is much lower. Here, Plaintiff must merely link

(1) a showing of prior “dangerous or otherwise incompetent” behavior to (2) a “fail[ure] to

adequately supervise.” Moore, 79 F. Supp. 3d at 142. Even where a complaint “is somewhat

light on factual allegations[,] . . . the plaintiff’s burden at the pleading stage is ‘minimal.’”

James, 869 F. Supp. 2d at 121 (allowing an MPD negligent-supervision case with “thin” factual

allegations to survive motion to dismiss) (citation omitted). Because Plaintiff alleges no facts

detailing Unknown Officers A’s or B’s past behavior, her negligent-supervision claims as they

pertain to those Defendants will be dismissed. The Court now considers Defendants’ supervision

of Officer Jefferson.

Turning to the first prong, Johnson sufficiently alleges facts supporting the inference that

Defendants had actual or constructive knowledge of Jefferson’s past dangerous or incompetent

behavior. Ashcroft, 556 U.S. at 678; Am. Compl., ¶¶ 68–75. According to the MPD Audit of a

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prior incident, the UFRB endorsed the finding that Jefferson’s actions, although justified,

“warranted a ‘tactical improvement opportunity’ for accidentally shooting [another officer]

during the exchange of gunfire.” MPD Audit at 77. The officers’ positioning, a key tactical

error in that incident, “had a number of significant consequences, including . . . excessive gunfire

from unsafe shooting positions[] and unnecessary risks to civilians both inside and outside the

apartment building.” Id. at xiii. Notably, “the only tactical improvement recommended by the

report was directed at Officer Jefferson,” and “all of the officers, except Officer Jefferson, acted

within MPD policy.” Id. at 77, 85. The report found that Jefferson was “responsible for

ensuring no other persons were within his line of fire for each shot.” Id. at xiii. Such

allegations, while insufficient for a constitutional claim, tend to support a finding that “the

employer ‘knew or should have known its employee behaved in a dangerous or otherwise

incompetent manner’” and suffice for the 12(b)(6) stage. Spicer v. District of Columbia, 916 F.

Supp. 2d 1, 3 (D.D.C. 2013) (quoting Phelan v. City of Mount Rainier, 805 A.2d 930, 937–38

(D.C. 2002)).

Defendants erroneously cite Rice v. District of Columbia, 715 F. Supp. 2d 127 (D.D.C.

2010), for the proposition that “general allegations that an officer is not ‘competent’ do[] not

state a claim of negligent retention.” MTD at 16. In Rice, however, the “Amended Complaint

[merely] allege[d] that the District had knowledge of [the] Officer[’s] alleged incompetence and

negligently breached its duty of care by continuing to employ [the] Officer.” 715 F. Supp. 2d at

133. The pleadings essentially amounted to a “formulaic recitation of the elements of a cause of

action” lacking in any factual substantiation. Id. Not so here, where the Amended Complaint

contains factual allegations suggesting that Jefferson had incompetently violated MPD policy in

the past by accidentally firing his gun at his colleague. See Xingru Lin, 2019 WL 1597876, at

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*12 (finding that Plaintiff “pled at least minimal factual allegations in support of the District of

Columbia’s actual or constructive knowledge” of dangerous or incompetent behavior by listing

prior incidents).

Similarly, Defendants cite Spiller v. District of Columbia, 302 F. Supp. 3d 240 (D.D.C.

2018), and Harvey v. Kasco, 109 F. Supp. 3d 173 (D.D.C. 2015), as examples of dismissals of

negligent-training and -supervision claims. See MTD at 16–17. “In both Spiller and Harvey, it

appears that the plaintiffs had failed to plead any facts in support of the allegations that the

District of Columbia knew or should have known about the risk posed by its officers.” Xingru

Lin, 2019 WL 1597876, at *12. In contrast, “[h]ere, Plaintiff has pled at least minimal factual

allegations in support of the District of Columbia’s actual or constructive knowledge.” Id; see

also Blakeney v. O’Donnell, 117 F. Supp. 3d 6, 21 (D.D.C. 2015) (dismissing negligent-training

and -supervision claim where Plaintiff pled no facts relating to District’s knowledge or

supervision of employees).

On the second prong of the standard, Johnson’s allegations link Defendants’ constructive

knowledge of prior dangerous behavior or incompetence with a failure to adequately supervise.

See Am. Compl., ¶ 129. For example, the MPD Audit highlighted tactical “shortcomings [that]

were not adequately investigated by [MPD’s Internal Affairs Division (IAD)] and not adequately

identified and analyzed in the IAD report or by the UFRB.” MPD Audit at xiii. According to

the Audit, MPD’s internal report should have further addressed “how Officer Jefferson could

have avoided [his] potentially deadly error.” Id. at 77. As relevant to Plaintiff’s negligent-

supervision allegations: “[B]est policing practices require a more thorough follow-up by the

UFRB on each finding [of a tactical shortcoming]. The investigative record should include

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evidence that MPD officials discussed inappropriate and ill-advised tactics with the officers and

implemented remedial actions.” Id.

As a result, the Complaint sufficiently identified Jefferson’s prior dangerous conduct and

alleged a negligent failure to supervise — and, by extension, to retain, discipline, and train — in

response. “[T]hese factual allegations meet Rule 8(a)(2)’s threshold requirement that the

plaintiff put forth a ‘short and plain statement of the claim’ such that the defendant is put on ‘fair

notice’ of the nature of the plaintiff’s claim and the grounds upon which it rests.” James, 869 F.

Supp. 2d at 121 (citing Twombly, 550 U.S. at 555). The Court accordingly denies Defendants’

Motion to Dismiss with respect to Counts VIII–XI relating to Jefferson.

2. Negligent Use of Force Leading to Death

Last, Plaintiff alleges two separate theories to support her negligence-leading-to-death

claims under Counts XII and XIII: Defendants failed (1) “to provide immediate first-aid services

and failed to promptly relay the urgent need for medical support”; and (2) “to exercise

reasonable care, including using only the minimum amount of force necessary against him,

exhausting every other reasonable means of apprehension or defense before resorting to the use

of firearms, and calling emergency services immediately after a shooting occurs.” Am. Compl.,

¶¶ 143–44. Defendants’ Motion challenges only the latter theory on the ground that it is

subsumed by Plaintiff’s assault and battery claims. See MTD at 17.

Although Plaintiff raises this as an unintentional-tort claim, it is based on facts similar to

those that form the basis of Counts IV-VII — Plaintiff’s assault and battery causes of action. See

Am. Compl., ¶¶ 108–16. “[B]oth negligence and battery claims, [however], must be separate

and distinct from each other, even though related, and each of the two counts must be supported

by the necessary evidence.” District of Columbia v. Chinn, 839 A.2d 701, 707 (D.C. 2003). In

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other words, Plaintiff must separately plead a distinct factual scenario for her negligence and

assault and battery claims. If she “does not articulate [distinct] elements of a negligen[ce] action,

[she] may not bootstrap from the battery proof alone, as one may not commit a negligent

assault.” Id. at 710.

Plaintiff identifies distinct “duties” in the MPD’s General Orders, see Am. Compl.,

¶¶ 139–41, but she does not plead a distinct factual pattern separating her negligence claim from

her assault and battery claims. In Chinn, the court held that “where the excessive force is the

product of a battery, an unwanted touching inherent in any arrest, which escalates in an unbroken

manner into excessive force, the cause of action is a battery alone, with [a negligence claim]

having ended at the point where excessive force began.” 839 A.2d at 707. In Blair v. District of

Columbia, 190 A.3d 212, 222 (D.C. 2018), the court further elaborated that, “as a general rule,

evidence reflecting an unbroken escalation from permissive to excessive force preempts a lesser

negligence claim based on the same evidence.” Here, Plaintiff describes such an unbroken

escalation. From the moment that Jefferson signaled to Unknown Officer B that he was going to

make an arrest, the interaction devolved into a violent confrontation. See Am. Compl., ¶¶ 23–25.

Plaintiff does not identify distinct factual patterns that differentiate her intentional torts from her

unintentional ones as they pertain to use of force. Id., ¶¶ 133–54 (describing violent escalation

as unbroken chain of events). “[A] plaintiff cannot seek to recover by ‘dressing up the

substance’ of one claim, here assault, in the ‘garments’ of another, here negligence.” Blair, 190

A.3d at 222. The Court therefore dismisses the components of Counts XII–XIII that are based

on negligent use of force leading to death.

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IV. Conclusion

The Court, accordingly, will dismiss Counts II and III. It will also dismiss Counts XII–

XIII only insofar as they are predicated on the negligent use of force rather than the negligent

failure to provide medical care. The Court will deny Defendants’ Motion as to Counts VIII–XI.

A contemporaneous Order will so indicate.

/s/ James E. Boasberg

JAMES E. BOASBERG

Chief Judge

Date: April 4, 2023

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