Gates v. District of Columbia ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
DONALD EUGENE GATES, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-40 (RWR)
)
DISTRICT OF COLUMBIA et al., )
)
Defendants. )
______________________________)
MEMORANDUM ORDER
Plaintiff Donald Eugene Gates brings a claim under D.C. Code
§ 2-421 et seq. for unjust imprisonment (Count 1) and
constitutional claims under 42 U.S.C. § 1983 (Counts 2 through 5)
against the District of Columbia, retired Metropolitan Police
Department (“MPD”) detectives Ronald S. Taylor and Norman Brooks,
retired MPD lieutenant John Harlow, Gerald M. Smith, and unnamed
MPD officers relating to Gates’ wrongful conviction in D.C.
Superior Court for the rape and murder of Catherine Schilling.
The District of Columbia defendants have filed an answer,1 and
Gates has moved to strike under Federal Rule of Civil Procedure
12(f) certain portions of that answer.
“The decision to grant or deny a motion to strike is vested
in the trial judge’s sound discretion.” Naegele v. Albers, 355
F. Supp. 2d 129, 142 (D.D.C. 2005). Under Rule 12(f), a “court
1
Gates served defendant Smith on June 9, 2011, and Smith
has failed to file any response. Gates moved for default
judgment against defendant Smith on September 14, 2011.
- 2 -
may strike from a pleading an insufficient defense[.]” Fed. R.
Civ. P. 12(f). However, a motion to strike is a drastic remedy
that courts disfavor. See Naegele, 355 F. Supp. 2d at 142.
The defendants have structured their answer with thirteen
headings styled as “defenses.” While some of the sections styled
as defenses in the answer plead what the Federal Rules of Civil
Procedure would classify as an avoidance or affirmative defense,
see Fed. R. Civ. P. 8(c)(1) (“In responding to a pleading, a
party must affirmatively state any avoidance or affirmative
defense[.]”), other sections merely contain admissions and
denials. See Fed. R. Civ. P. 8(b)(1)(B) (“In responding to a
pleading, a party must . . . admit or deny the allegations
asserted against it by an opposing party.”). Gates argues that
some of the defendants’ defenses do not apply to certain counts
in his complaint and that others are without legal or factual
basis, and he urges that these portions of the answer be stricken
before the parties devote unnecessary resources in discovery to
them. (Pl.’s Mem. of P. & A. in Supp. of Pl.’s Mot. to Strike
Certain Affirmative Defenses (“Pl.’s Mem.”) at 2-3.)
While the defendants’ answer fails to identify the
particular counts to which the pled defenses apply, see Lee v.
Habashy, No. 6:09-cv-671-Orl-28GJK, 2009 WL 3490858, at *4 (M.D.
Fla. Oct. 27, 2009) (“To give fair notice of the defense, . . . a
party should identify the claim to which the defense applies.”),
- 3 -
they concede in their opposition that their third defense does
not apply to Counts 2 through 5, and that their fifth, ninth,
tenth, eleventh, and twelfth defenses do not apply to Count 1.
(Defs.’ Opp’n to Pl.’s Mot. to Strike Certain Affirmative
Defenses (“Defs.’ Opp’n”) at 5, 7, 8.) Gates’ motion to strike
will be granted as conceded with respect to these defenses as to
these counts. In addition, Gates appears in his reply to have
abandoned his motion to strike the fourth defense as to Counts 2
through 5 (Pl.’s Reply in Supp. of Pl.’s Mot. to Strike Certain
Affirmative Defenses (“Pl.’s Reply”) at 8), and the thirteenth
defense as to Count 1 (Pl.’s Reply at 3 n.1). The motion will be
denied with respect to these defenses as to these counts.
Furthermore, the defendants offer no response to Gates’
argument to strike the fourth defense as applied to the
allegations in Count 1. The defendants’ arguments with regard to
that defense relate only to the § 1983 claims. (Defs.’ Opp’n at
4.) They thereby implicitly concede that argument by their
silence, see, e.g., Ardente, Inc. v. Shanley, No. C 07-4479 MHP,
2010 WL 546485, at *6 (N.D. Cal. Feb. 10, 2010), and Gates’
motion to strike the fourth defense as applied to Count 1 will be
granted. Nor have the defendants rebutted the plaintiff’s
argument that the sixth defense, which denies proximate causation
by the defendants, is irrelevant to Count 1. The only proof of
causation required for Gates to sustain his claim in Count 1
- 4 -
under the Unjust Imprisonment Act is proof that he did not cause
his own prosecution by his misconduct. See D.C. Code § 2-422(2)
(stating that a person bringing suit under this section must
allege and prove that “he did not, by his misconduct, cause or
bring about his own prosecution”). Thus, Gates’ motion to strike
the sixth defense as applied to Count 1 will be granted.
Gates claims that the defendants have cast the sixth defense
as an affirmative defense to Counts 2 through 5, and he argues
that it asserts insufficient facts to survive as pled. Gates’
premise that the sixth defense is cast as an affirmative defense
is faulty. In Counts 2 through 5, Gates asserts section 1983
claims with respect to which he bears the burden to prove that
defendants proximately caused a violation of his constitutional
rights. West v. Atkins, 487 U.S. 42, 48 (1988). Defendants
argue that “[t]he role played by the testimony of the police
informant, Gerald M. Smith, a Defendant herein, may break the
chain of causation of acts attributable to the District
Defendants. The independent decisions of the U.S. Attorney’s
Office, a grand jury, a jury in the criminal case, and the D.C.
Court of Appeals may likewise break the chain of causation of
acts attributable to the District Defendants.” (Defs.’ Opp’n at
5.) “[I]n cases brought under § 1983 a superseding cause, as
traditionally understood in common law tort doctrine, will
relieve a defendant of liability.” Warner v. Orange County Dept.
- 5 -
of Probation, 115 F.3d 1068, 1071 (2d Cir. 1997). The assertion
that the actions of other individuals and entities may have
broken the chain of causation is not an affirmative defense, on
which the defendants bear the burden of proof, but rather a
denial of Gates’ allegation that the defendants proximately
caused his injuries.2 The burden of proof remains on Gates to
prove causation. Gates’ motion to strike the sixth defense as
applied to Counts 2 through 5 will be denied and the defense will
be construed as a denial.
The parties do not agree on the sufficiency of the
defendants’ third defense as applied to Count 1. The third
defense asserts that “plaintiff may have failed to comply fully
with the mandatory notice requirements of D.C. Official Code §
12-309 (2001 ed.).” (Defs.’ Answer at 17.) Gates argues that
the defendants failed to challenge the notice and that the third
defense is “legally insufficient.” (Pl.’s Reply at 3 n.2.) Rule
8(b)(5) permits a defendant who “lacks knowledge or information
sufficient to form a belief about the truth of an allegation” to
say so in an answer. Fed. R. Civ. P. 8(b)(5). The defendants
have done so (Answer, Second Defense ¶ 18) in addition to
asserting the language in the third defense. According these
2
The parties appear to agree on that conclusion. (See
Pl.’s Mem. at 15 (“The sixth affirmative defense . . . is not in
reality an affirmative defense at all: it merely denies the
element of causation.”); Defs.’ Opp’n at 5 (describing the sixth
defense as “not technically a required affirmative defense”).)
- 6 -
assertions the presumption of good faith bases to which they are
entitled at this stage, see Fed. R. Civ. P. 11(b), and absent
binding authority presented by Gates precluding such defenses
here, there is no reason to deem the third defense as it applies
to Count 1 legally insufficient.
The court, moreover, has an independent obligation to
satisfy itself that Gates has complied with the notice
requirement. Section 12-309 “requires that the District receive
written notice within six months of the injury giving rise to the
claim.” DeKine v. District of Columbia, 422 A.2d 981, 985 (D.C.
1980). District of Columbia case law “has firmly established
that, because it is in derogation of the common law principle of
sovereign immunity, section 12-309 is to be construed narrowly
against claimants.” District of Columbia v. Dunmore, 662 A.2d
1356, 1359 (D.C. 1995). “[U]nless timely notice is given, no
right of action or entitlement to maintain an action accrues.”
Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C. 1981)
(internal quotation marks omitted). The record at present
establishes only that Gates mailed his notice letter on May 14,
2010 and received an acknowledgment from the District dated June
7, 2010. (Pl.’s Mem. at 5.) It does not resolve the boundaries
of the six-month statutory period for notice or establish that
the District received the notice letter within that period.
- 7 -
Gates’ motion to strike therefore will be denied with respect to
the third defense as to Count 1.
The parties also disagree on the applicability of the
seventh defense (contributory negligence and/or assumption of
risk) and eighth defense (wilful conduct) as to all counts. With
regard to Count 1, as is discussed above, Gates must prove the
absence of his own culpability in causing his injury. The
defenses, and the defendants’ arguments in their opposition, that
Gates’ contributory negligence and wilful conduct brought about
his conviction amount to a denial that Gates can meet his burden.
The seventh and eighth defenses thus are not properly
characterized as affirmative defenses. Gates’ motion to strike
the seventh and eighth defenses will be denied as to Count 1 and
those defenses will be construed as denials.
As applied to Counts 2 through 5, the seventh defense is
legally insufficient. To prevail on these § 1983 claims, Gates
must prove some intentional or reckless conduct. See Daniels v.
Williams, 474 U.S. 327, 328 (1986) (holding that due process
clause not implicated by merely negligent conduct); City of
Canton v. Harris, 489 U.S. 378, 388-89 (1989) (holding that
liability for failure to train requires proof of deliberate
indifference). The defense of contributory negligence and/or
assumption of risk is insufficient because contributory
negligence is a defense only to negligent, not to reckless or
- 8 -
intentional, conduct. See Santiago v. Lane, 894 F.2d 218, 224
(7th Cir. 1990) (rejecting contributory negligence defense to a
section 1983 suit alleging deliberate indifference because “it is
well settled that contributory negligence is not a defense to an
allegation of intentional or reckless conduct.”). Gates’ motion
to strike the seventh defense therefore will be granted as to
Counts 2 through 5.
Finally, the eighth defense (wilful conduct) as to Counts 2
through 5 does not function in this action as an affirmative
defense, for the same reasons as are discussed above with regard
to the sixth defense as to Counts 2 through 5. The assertion
that Gates’ injuries resulted from his own wilful conduct is not
an affirmative defense, on which the defendants bear the burden
of proof, but rather a denial of Gates’ allegation that the
defendants proximately caused his injuries. Bodine v. Warwick,
72 F.3d 393, 400 (3rd Cir. 1995) (recognizing that a plaintiff’s
own conduct could “constitute a superseding cause that would
limit the officer’s liability” in a § 1983 action) (internal
quotation marks and citations omitted). Gates’ motion to strike
the eighth defense will be denied as to Counts 2 through 5 and
the defense will be construed as a denial.3
3
Because the motion to strike is resolved on other grounds,
Gates’ argument that heightened pleading standards should apply
to affirmative defenses will not be addressed. (Pl.’s Mem. 9-
14.)
- 9 -
Accordingly, it is hereby
ORDERED that the plaintiff’s motion to strike be, and hereby
is, GRANTED as to the defendants’ fourth, fifth, sixth, ninth,
tenth, eleventh and twelfth defenses as to Count 1, and GRANTED
as to the defendants’ third and seventh defenses as to Counts 2
through 5. It is further
ORDERED that the plaintiff’s motion to strike be, and hereby
is, DENIED as to the defendants’ sixth defense as to Counts 2
through 5, DENIED as to the defendants’ seventh defense as to
Count 1, and DENIED as to the eighth defense as to all counts.
It is further
ORDERED that the plaintiff’s motion to strike be, and hereby
is, DENIED as to the defendants’ third and thirteenth defenses as
to Count 1, and DENIED as to the defendants’ fourth defense as to
Counts 2 through 5.
SIGNED this 18th day of November, 2011.
/s/
RICHARD W. ROBERTS
United States District Judge