Ramirez v. United States Park Police ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EDWIN RAMIREZ,
Plaintiff,
v. Case No. 22-cv-187 (CRC)
UNITED STATES PARK POLICE, et al,
Defendant.
MEMORANDUM OPINION
In the days following George Floyd’s death in May 2020, racial justice protests sprang up
across the country, including in Lafayette Square adjacent to the White House. Photojournalist
Edwin Ramirez filmed the Lafayette Square demonstrations on behalf of two European-based
news agencies. In this suit, Ramirez alleges that he suffered injuries at the hands of law
enforcement officers who responded to the protests. He sued three sets of defendants for
violations of his civil and constitutional rights, and negligence: (1) the United States and the U.S.
Park Police, a component of the National Park Service (“Federal Defendants”); (2) the
“Arlington County Government” and the Arlington County Police Department (“Arlington
Defendants”); and (3) the “District of Columbia Government” and the D.C. Metropolitan Police
Department (“D.C. Defendants”). Ramirez has since voluntarily dismissed the D.C. Defendants.
The Federal and Arlington Defendants now move to dismiss the claims against them. For the
reasons explained below, the Court will grant both motions and dismiss the case.
I. Background
The Court draws this factual background from Mr. Ramirez’s complaint and, as it must
on a motion to dismiss, assumes the truth of all well-pled allegations. See Sissel v. U.S. Dep’t of
Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014).
Ramirez recorded the Lafayette Square protests on the evening of May 31, 2020. Compl.
¶¶ 4, 14. While there, he alleges that both protestors and members of the press were subjected to
excessive force by law enforcement, including “violence, rubber bullets, horns, gas, and other
physical force” as police officers worked to “reclaim ground in the park.” Id. ¶¶ 12, 18, 22, 25.
Ramirez recalls being trampled and shot by “five to seven rubber bullets.” Id. ¶ 37. Ramirez
does not specify who harmed him or their governmental affiliation, but alleges generally that the
U.S. Park Police, Arlington Police Department, and D.C. Metropolitan Police Department all
took part in the violence. As a result of his injuries, Ramirez required knee surgery, counseling,
and other medical treatment. Id. ¶ 40.
In January 2022, Ramirez filed a four-count complaint against the United States, the
United States Park Police, the “Arlington County Government,” the Arlington County Police
Department, the District of Columbia, and the D.C. Metropolitan Police Department—but none
of their officials or employees, either by name or as “John Doe” defendants. The complaint
alleges (1) a conspiracy to interfere with Ramirez’s civil rights in violation of 42 U.S.C.
§ 1985(3); (2) failure to prevent said conspiracy in violation of 42 U.S.C. § 1986; (3) deprivation
of civil rights in violation of 42 U.S.C. § 1983; and (4) negligence under both common law and
the Federal Tort Claims Act, 28 U.S.C. § 1346. Ramirez seeks three million dollars for his
injuries, lost wages, pain, and suffering. Id. ¶ 83.
Ramirez voluntarily dismissed the D.C. Defendants. Pl.’s Mot. Dis., ECF 7 (Mar. 14,
2022); Min. Order (Mar. 15, 2022). The Federal Defendants have moved to dismiss all claims
against them for lack of subject matter jurisdiction and failure to state a claim. Defs.’ Mot.
Dismiss (May 11, 2022) (“Fed. Mot.”). And the Arlington Defendants have moved to dismiss all
claims against them for improper venue and failure to state a claim. Defs.’ Mot. Dismiss (Mar.
18, 2022) (“Arl. Mot.”).
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II. Legal Standards
In deciding a motion to dismiss, the Court must determine whether the complaint
“contain[s] 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)). This requires “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court
“must take all of the factual allegations in the complaint as true.” Id. It also must “constru[e] the
complaint liberally in the plaintiff’s favor with the benefit of all reasonable inferences derived
from the facts alleged.” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006). That
said, “conclusory statements” and “threadbare recitals of the elements” do not suffice. Ashcroft,
556 U.S. at 678.
III. Federal Defendants’ Motion to Dismiss
The Federal Defendants move to dismiss all claims against them under Federal Rule of
Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to
state a claim. Fed. Mot. For the following reasons, the Court will grant the motion.
A. Civil Rights Claims
The Federal Defendants move to dismiss Ramirez’s civil rights claims arising under 42
U.S.C. §§ 1983, 1985(3), and 1986 for lack of subject matter jurisdiction, arguing that those
statutes do not waive federal sovereign immunity. “Absent a waiver, sovereign immunity shields
the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475
(1994).
Section 1983 establishes a cause of action against persons who act under the color of
state law to deprive an individual of “any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983. Section 1985(3), meanwhile, prohibits conspiracies
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among two or more people to deprive any person or class of persons of the equal protection of
the laws, and section 1986 criminalizes knowingly failing to prevent such a conspiracy. 42
U.S.C. §§ 1985(3), 1986. As the Federal Defendants correctly assert, the United States and its
agencies have not waived sovereign immunity with respect to any of those statutes. See Hohri v.
United States, 782 F.2d 227, 245 n. 43 (D.C. Cir. 1986) (“[42 U.S.C. §§ 1983, 1985–1986], by
their terms, do not apply to actions against the United States”), vacated on other grounds, 482
U.S. 64 (1987); Faller v. DOJ, Civ. A. No. 20-1597 (ABJ), 2021 WL 4243384, at *8 (D.D.C.
Sept. 17, 2021) (holding that sections 1983, 1985 and 1986 do not waive federal sovereign
immunity). Ramirez offers no law to the contrary.
Accordingly, the Court will dismiss Ramirez’s claims against the Federal Defendants for
violating his civil rights (§ 1983), conspiring to interfere with his civil rights (§ 1985(3)), and
neglecting to prevent said conspiracy (§ 1986).
B. Negligence Claim
The only remaining claim against the Federal Defendants is Ramirez’s negligence claim
under the Federal Tort Claims Act (“FTCA”). 1 Compl. ¶¶ 80-83. The FTCA permits suit
against the federal government for allegedly negligent or wrongful conduct by its employees
acting within the scope of their employment. 28 U.S.C. § 1346. But Ramirez’s FTCA claim
suffers from both jurisdictional and procedural flaws that require its dismissal.
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To the extent Ramirez attempts to sue the Federal Defendants for negligence under D.C.
common law, he is foreclosed from doing so by the Federal Tort Claims Act, which is the
exclusive remedy for suing federal agencies for injury resulting from negligent or wrongful acts
or omissions. 28 U.S.C. § 2679(b)(1).
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1. Ramirez Cannot Sue the United States Park Police Under the Federal Tort
Claims Act.
The United States Park Police is entitled to dismissal of Ramirez’s FTCA claim because
only the United States, and not its agencies, may be sued under that statute. See 28 U.S.C. §
2679(a) (“The authority of any federal agency to sue and be sued in its own name shall not be
construed to authorize suits against such federal agency on claims which are cognizable under
section 1346(b) of this title, and the remedies provided by this title in such cases shall be
exclusive.”); see also Goddard v. District of Columbia Redevelopment Land Agency, 287 F.2d
343, 345-46 (D.C. Cir. 1961) (affirming dismissal on same grounds); Coulibaly v. Kerry, 213 F.
Supp. 3d 93, 125 (D.D.C. 2016) (dismissing on same grounds). Accordingly, the Court will
dismiss Ramirez’s negligence claims against the Park Police.
2. Exhaustion of FTCA Claim Against the United States
As to Ramirez’s negligence claim against the United States itself, the Federal Defendants
maintain that Ramirez failed to properly exhaust his administrative remedies prior to filing suit.
The FTCA bars plaintiffs from suing in federal court until they have exhausted their
administrative remedies. McNeil v. United States, 508 U.S. 106, 113 (1993). The administrative
process gives the accused agency an opportunity to investigate and evaluate the strength of the
claim and determine if settlement is appropriate. See GAF Corp. v. United States, 818 F.2d 901,
920 (D.C. Cir. 1987). To properly exhaust, an FTCA claimant must “first present[] the claim to
the appropriate Federal agency” and have that claim denied by the agency in writing or remain
unresolved for at least six months. 28 U.S.C. § 2675(a). Filing an FTCA complaint with an
agency not accused of the alleged wrongdoing does not meet a plaintiff’s burden to
administratively exhaust with the “appropriate” federal agency. See Norton v. United States, 530
F. Supp. 3d 1, 6–7 (D.D.C. 2021) (dismissing FTCA claim on exhaustion grounds because
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plaintiff filed it with an unrelated agency). Failure to properly exhaust warrants dismissal of the
claim. Henderson v. Ratner, No. 10-5035, 2010 WL 2574175, at *1 (D.C. Cir. Jun. 7, 2010) (per
curiam).
Here, Ramirez filed an FTCA administrative claim with the “White House Counsel.”
Fed. Mot., Ex. A at 5 (Pl.’s SF 95). The United States asserts that the White House cannot be
considered the “appropriate Federal agency” for purposes of exhaustion because it is not alleged
to have engaged in any wrongdoing in this case. Id. at 13–16. While the complaint alleges the
conduct occurred near the White House, to the extent the “White House Counsel” is an agency at
all, the complaint does not identify any misconduct by the White House as an institution, or the
White House Counsel in particular. By filing his FTCA paperwork with the White House rather
than one of the agencies he claims are responsible for his injuries, Ramirez failed to properly
exhaust his FTCA claim.
Ramirez responds that his claim is properly exhausted because he subsequently filed an
FTCA complaint with the United States Park Police in May 2022. Pl.’s Opp’n Fed. Mot., Ex. A
at 1. But a FTCA claim must be properly exhausted at the time it is filed in federal court. See
McNeil, 508 U.S. at 111–12 (rejecting argument that subsequent receipt of formal denial from an
agency is sufficient to satisfy the exhaustion requirement); Harrod v. U.S. Parole Comm'n, No.
13-774 (RMC), 2014 WL 606196, at *1 (D.D.C. 2014) (collecting cases). Ramirez’s attempt to
exhaust his FTCA claim nearly four months after filing his federal complaint cannot save it. The
Court will therefore dismiss Ramirez’s FTCA claim against the United States without prejudice.
Because no claims remain against the Federal Defendants, they are dismissed from the
case.
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IV. Arlington Defendants’ Motion to Dismiss
The Arlington Defendants move to dismiss all claims against them pursuant to Federal
Rule of Civil Procedure 12(b)(3) for improper venue and Rule 12(b)(6) for failure to state a
claim. The Court will grant the motion.
A. The Arlington County Police Department Cannot be Sued
The Arlington County Police Department urges dismissal on the grounds that it is
incapable of being sued. Arl. Mot. at 4. The Court agrees. “It is beyond peradventure that a
‘noncorporate department or other body within a municipal corporation is not sui juris.’” Hinton
v. Metropolitan Police Dept., Fifth Dist., 726 F. Supp. 875, 875 (D.D.C. 1989) (quoting Braxton
v. National Capital Housing Authority, 396 A.2d 215, 216–17 (D.C. 1978)). And this general
rule has been applied to the Arlington Police Department as well as other local law enforcement
agencies in Virginia. See Est. of Harris v. Arlington Cnty., No. 99-CV-1144, 2000 WL
34477900, at *3 (E.D. Va. Jan. 14, 2000) (“[T]he [Arlington County] police department is not an
entity capable of being sued.”); see also Mobley v. City of Chesapeake, No. 06-cv-139 (JBF),
2006 WL 4738661, at *3 (E.D.Va. Aug. 30, 2006) (City of Chesapeake Police Department),
aff’d 223 Fed. Appx. 200 (4th Cir. 2007); Young v. City of Norfolk, No. L03-931, 2003 WL
21730724, at *2 (Va. Cir. 2003) (Norfolk City Attorney’s Office and Norfolk Police
Department).
Ramirez’s citation to Zemedageguhu v. Arlington County Board misses the mark. No.
15-cv-57(JCC/TRJ), 2015 WL 13854912, at *1 (E.D. Va. Feb. 24, 2015). There, the Arlington
County Sheriff’s Office was dismissed from the case after the plaintiff excluded the office from
his amended complaint. Id. While the plaintiff there was permitted to sue the Arlington County
Sheriff in her official capacity, that is irrelevant to whether Ramirez can sue the Arlington
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County Police Department as an entity. Accordingly, the Arlington County Police Department is
dismissed from the case.
B. Venue
The Arlington Defendants also move to dismiss the case for improper venue under Rule
12(b)(3). Fed. R. Civ. P. 12(b)(3). Whether venue is proper “depends exclusively on whether
the court in which the case was brought satisfies the requirements of federal venue laws.” Atl.
Marine Const. Co., Inc. v. U.S. Dist. Court for Western Dist. of Tex., 571 U.S. 49, 55 (2013).
“In considering a Rule 12(b)(3) motion, the court accepts the plaintiff's well-pled factual
allegations regarding venue as true, draws all reasonable inferences from those allegations in the
plaintiff's favor, and resolves any factual conflicts in the plaintiff's favor.” Haley v. Astrue, 667
F.Supp.2d 138, 140 (D.D.C. 2009) (quoting Pendleton v. Mukasey, 552 F.Supp.2d 14, 17
(D.D.C. 2008)). Still, the burden is on the plaintiff to establish that venue is proper, see, e.g.,
Williams v. GEICO Corp., 792 F.Supp.2d 58, 62 (D.D.C. 2011), and the Court is not obligated to
accept the plaintiff's legal conclusions, Haley, 667 F.Supp.2d at 140.
Under the general venue provision for federal question cases set forth in 28 U.S.C.
§ 1391(b), venue is proper in the district where “the events giving rise to the suit occurred.”
§ 1391(b)(2). Venue is plainly proper in D.C. if this provision were to apply, as no party
disputes that the alleged misconduct occurred in Lafayette Square within the District.
The Arlington Defendants argue that the general venue statute does not apply, however,
because a mutual aid agreement between the Arlington County Police Department and U.S. Park
Police requires that suit be brought in Virginia. Arl. Mot. at 9-13. This argument is based on
Section 7302 of the Intelligence Reform and Terrorism Prevention Act of 2004, which
established a venue rule for some mutual aid agreements between federal and state or local
governments in the Capital region. See 42 U.S.C. § 5196 note (National Capital Region Mutual
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Aid). The liability provision of that statute provides that any action brought against a party
rendering aid under an authorized mutual aid agreement must be brought “under the laws and
procedures of the State of the party rendering aid and only in the Federal or State Courts located
therein.” Id. § 5196 note (d). According to the Arlington Defendants, Arlington County police
officers were only in D.C. to respond to the Lafayette Square protests pursuant to a 2016 mutual
aid agreement between the U.S. Park Police and the Arlington County Police Department. Arl.
Mot., Ex. A at 1–5 (“Agreement”). That Agreement expressly states that “[t]his agreement is a
‘mutual aid agreement’ for purposes of § 7302 of the National Intelligence Reform and
Terrorism Prevention Act of 2004” and that “the liability provisions of § 7302(d) . . . shall
apply.” Agreement at 1. Thus, according to Arlington Defendants, the suit must be transferred
to Virginia.
That exact argument was raised and rejected by a fellow judge in this district in Black
Lives Matter D.C. v. Trump. 544 F. Supp. 3d 15, 42-43 (D.D.C. 2021). There, Judge Friedrich
concluded that Section 7302’s venue provision did not apply because the Agreement was not
executed by an “authorized representative of the Federal Government” as required by the statute.
Id.; 42 U.S.C. § 5196 note (b)(1). The statute defines “an authorized representative of the
Federal Government” as “any individual or individuals designated by the President with respect
to the executive branch.” 42 U.S.C. § 5196 note (a)(1). Judge Friedrich reasoned that the
Agreement, which was signed by the Chief of the U.S. Park Police, was not properly authorized
because “there is no indication that the Chief of the U.S. Park Police was so designated by the
President.” Black Lives Matter, 544 F. Supp. 3d at 42. Because the Agreement was not properly
authorized under the relevant statute, Judge Friedrich held that the accompanying venue
provision did not govern, and that the District was the proper venue. Id.
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This Court is persuaded by Judge Friedrich’s reasoning. The statute specifies who is
authorized to enter mutual aid agreements under Section 7302 and there is no indication that the
Chief of the U.S. Park Police was so authorized. Accordingly, the special venue provision does
not apply and the suit remains in D.C.
The Arlington Defendants contest that outcome, arguing that the Chief of the U.S. Park
Police had implied authority to enter the Agreement. That argument was also raised and rejected
in Black Lives Matter. 544 F. Supp. 3d at 42. As Judge Friedrich noted, the statute is clear
about who has authority to enter a mutual aid agreement, leaving little room for implied
authority. Id. Subsection (b) of the statue clearly delineates who is expressly authorized to
“enter into, request or provide assistance under mutual aid agreements with localities,” and the
statute defines mutual aid agreements as “an agreement, authorized under subsection (b),” 42
U.S.C. § 5196 note (a)(6). See Black Lives Matter, 544 F. Supp. 3d at 42. That express
authority is limited to those in the executive branch designated by the President and their
designees, 42 U.S.C. § 5196 note (a)(1). While the Arlington Defendants correctly note that the
Secretary of the Interior has been delegated authority to enter such agreements, they offer no
authority to support a finding that the Chief of the U.S. Park Police has also been delegated that
authority. See Memorandum on Designation of Authorized Representative, 2 Pub. Papers 1823
(Nov. 28, 2012), https://www.govinfo.gov/content/pkg/PPP-2012-book2/pdf/PPP-2012-book2-
doc-pg1823.pdf.
Because the Agreement was not properly authorized under Section 7302, that statute’s
special venue provision does not control and the District of Columbia remains the proper venue
for this suit. The Court will therefore move to the substance of Ramirez’s claim against the
Arlington Defendants.
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C. Section 1983 Municipal Liability
The Arlington Defendants move to dismiss Ramirez’s section 1983 claim on the ground
that he has failed to allege facts to support municipal liability. To hold a municipality liable for
violating section 1983, a plaintiff must allege that the municipality followed a “policy or
custom” that resulted in the constitutional injury. See Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658, 694 (1978). Ramirez has failed to identify any specific policy or
practice that caused his alleged injuries. In fact, Ramirez alleges that all the Defendants acted
“in violation of [their] own regulations and standard operating procedures.” Compl. ¶ 33
(emphasis added). Even in his opposition, Ramirez does not allege that his injuries resulted from
any city policy or custom. Accordingly, his section 1983 claim against Arlington County is
dismissed without prejudice.
D. Conspiracy Claims
The Arlington Defendants also move to dismiss Ramirez’s conspiracy allegations for
failure to state a claim under either section 1985(3) or section 1986. To state a claim under
section 1985(3), a plaintiff must plead facts to support four elements: “(1) a conspiracy; (2) for
the purpose of depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, . . . and (3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any right or privilege of a citizen of the
United States.” Martin v. Malhoyt, 830 F.2d 237, 258 (D.C. Cir. 1987). Further, the conspiracy
must be motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory
animus.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Section 1986, meanwhile, imposes
liability on anyone who knowingly fails to prevent a conspiracy in violation of section 1985. “A
plaintiff who has not stated a claim under § 1985 has no basis for relief under § 1986.” Moore v.
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Castro, 192 F. Supp. 3d 18, 36 (D.D.C. 2016), aff'd sub nom. Moore v. Carson, 775 F. App'x 2(D.C. Cir. 2019).
Ramirez alleges generally that all Defendants “had an express agreement to deprive [him]
as well as other members of the public and the press of their constitutional rights to be present at
Lafayette Park on May 31, 2020.” Compl. ¶ 30. But he offers scant detail as to the membership,
timing, or contours of any such conspiracy. The only specifics offered are that then-Attorney
General William Barr “requested ‘riot teams’ and other specialized agents” to use force against
Ramirez and others in Lafayette Square, Compl. ¶ 31, and that President Trump’s negative
comments about the press permitted “hatred to invade the numerous Police Officers that attacked
the Plaintiff,” Compl. ¶ 35.
These bare-bones allegations are insufficient to create a plausible inference that the
alleged conspiracy existed, let alone that Arlington County joined it. There are simply no
allegations of “any events, conversations, or documents indicating that there was ever an
agreement or meeting of the minds” amongst the Defendants to violate Ramirez’s rights. See
Barber v. District of Columbia Government, 394 F. Supp. 3d 49, 66 (D.D.C. 2019). Indeed,
Judge Friedrich found similar, if not more detailed allegations insufficient to sustain a section
1985(3) conspiracy claim in Black Lives Matter, 544 F. Supp. 3d at 38. Moreover, even if
Ramirez had sufficiently alleged a conspiracy, he has not alleged how the conspiracy was
motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory
animus.” See Griffin, 403 U.S. at 102. Accordingly, Ramirez’s section 1985(3) claim is
dismissed. And without a viable section 1985 claim, Ramirez’s section 1986 claim must be
dismissed as well.
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E. Negligence
That leaves Ramirez’s negligence claim. The Arlington Defendants move to dismiss it
for failure to state a claim and on the ground that Arlington County has immunity from tort
liability. Finding that Ramirez has failed to adequately allege negligence, the Court need not
assess Arlington County’s immunity argument.
Generally, for a plaintiff in the District of Columbia to maintain a negligence cause of
action, he must establish three elements: (1) that the defendant owed a duty of care to the
plaintiff, (2) that the defendant violated that duty, and (3) that a causal relationship exists
between the violation and the injury. See Simms v. District of Columbia, 669 F.Supp.2d 217,
227 (D.D.C.2010) (citing Wash. Metro. Area Transit Auth. v. Ferguson, 977 A.2d 375, 377
(D.C.2009)).
Ramirez alleges that all Defendants acted negligently when they “moved the crowd,”
“failed to erect an adequate structure and thereby allowed for the creation of a dangerous and
unsafe condition,” “failed to manage the crowd and properly communicate with each other,”
“failed to advise or adequately warn Plaintiff and others of the dangerous and unsafe actions to
follow on May 31, 2020,” and “failed to take reasonable safety or protective measures . . . by
unreasonably failing to follow protocol with regularity.” Compl. ¶ 81 (cleaned up).
But all those alleged actions presumably were undertaken by individual law enforcement
officers at the scene, none of whom are party to this suit. Ramirez has not specifically alleged
what acts, if any, Arlington County took that caused his injuries. As discussed in relation to his
section 1983 claim, Ramirez does not identify any County policy or procedure. Nor does he
allege that Arlington County negligently supervised or trained its officers. See e.g., Harvey v.
Kasco, 109 F. Supp. 3d 173, 179 (D.D.C. 2015) (dismissing negligent training and supervision
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claim for failure to allege supporting facts). Without any negligent act attributed to Arlington
County, Ramirez’s negligence claim cannot proceed. 2
V. Conclusion
Accordingly, the Court will grant Federal Defendants’ and Arlington Defendants’
Motions to Dismiss. All claims against all defendants are dismissed. A separate Order shall
accompany this opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: February 1, 2023
2
Ramirez does not raise a theory of vicarious liability in either his complaint or his
briefs. Because arguments not raised in briefing are waived, see New York Rehab. Care Mgmt.,
LLC v. N.L.R.B., 506 F.3d 1070, 1076 (D.C. Cir. 2007), such a theory cannot now save
Ramirez’s negligence claim. Nor has Ramirez sought to amend his complaint to add individual
government officials or police officers as defendants.
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