Xingru Lin v. District of Columbia , 268 F. Supp. 3d 91 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
XINGRU LIN,
Plaintiff
v. Civil Action No. 16-645 (CKK)
DISTRICT OF COLUMBIA, et al.,
Defendants
MEMORANDUM OPINION
(August 2, 2017)
Plaintiff, a bus company ticket agent, alleges that the District of Columbia Metropolitan
Police Department (“MPD”) violated her rights in various different ways during four separate
encounters between December 2015 and April 2016. Pending before the Court is Defendant
District of Columbia’s [20] Motion for Partial Dismissal, or in the Alternative Partial Summary
Judgment. Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as
a whole, the Court will GRANT-IN-PART and DENY-IN-PART Defendant’s motion. The
Court will dismiss Plaintiff’s claim under 42 U.S.C. § 1983 against the District of Columbia, as
well as Plaintiff’s negligence and malicious prosecution claims. However, the Court will not
dismiss Plaintiff’s intentional infliction of emotional distress or negligent training and
supervision claim.
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The Court’s consideration has focused on the following documents:
• Def.’s Mot. for Partial Dismissal, or in the Alternative Partial Summary Judgment
(“Def.’s Mot.”), ECF No. 20;
• Pl.’s Opp’n to Def.’s Mot. for Partial Dismissal, or in the Alternative Partial Summary
Judgment (“Pl.’s Opp’n”), ECF No. 21; and
• Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. for Partial Dismissal, or in the Alternative
Partial Summary Judgment (“Def.’s Reply”), ECF No. 22.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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I. BACKGROUND
A. Factual Allegations
Plaintiff works as a ticket agent for a bus company called Focus Travel Agency in
Washington, D.C. See Pl.’s Am. Compl. for 1983 Civil Rights Violation, Conspiracies to Violate
Civil Rights, False Arrests and Personal Injuries, ECF No. 16 (“Am. Compl.”), ¶ 30. She works
the night shift, and her duties include selling tickets and checking the tickets of passengers. Id.
¶¶ 18, 30. She is of Chinese decent and “can barely speak English, although she understands
some.” Id. ¶ 8.
Plaintiff’s Amended Complaint contains allegations regarding four different encounters
with the MPD that took place between December 2015 and April 2016. Plaintiff states that she
“has experienced all the four unfortunate incidents within six-months,” including “two arrests
within such a short period of time,” and that she is accordingly “extremely anxious whenever she
sees an MPD officer.” Id. ¶ 118. She “believes that she did not have any right[s] in this country
and [is] afraid to be arrested again,” and feels “threatened by the D.C. MPD all the time.” Id.
Plaintiff alleges that “[a]t no time did [she] commit any offense in violation of the laws of” the
District of Columbia or the United States, and that accordingly all of the arrests, detentions and
uses of force described below were without legal cause. Id. ¶¶ 122-24. Plaintiff claims that all
Defendants acted willfully, recklessly, and with disregard to Plaintiff’s rights, and that “[t]he
actions and conduct of the defendant officers and D.C. MPD are the result of a policy, practice,
custom and deliberate indifference on the part of Defendant Washington, D.C. and individual
officers and D.C. M.P.D.” Id. ¶ 13.
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1. The December 2015 Incident
According to the Amended Complaint, Plaintiff alleges that in mid-December 2015 she
got into a dispute with a customer who “cussed Plaintiff out.” Id. ¶¶ 63-65. Plaintiff refused to
sell the customer a ticket, but he nonetheless continued to attempt to board a bus. Id. The
would-be passenger called the police. Id. ¶ 66.
Plaintiff alleges that two officers interviewed the individual who had called them and
then ordered Plaintiff to sell him a bus ticket. Id. ¶ 67. Plaintiff refused. Id. ¶ 68. Plaintiff
demanded a Chinese police officer be present, and eventually a female Chinese officer was
called to the scene. Id. ¶ 72. She instructed Plaintiff that Plaintiff had to show the police officers
the video tape of what had occurred, or the bus would not be allowed to leave. Id. ¶ 73. Plaintiff
did so, and the officers agreed that she had done nothing wrong. Id. ¶¶ 74-75. In the meantime,
however, the bus was delayed leaving for almost two hours. Id. ¶ 76.
Plaintiff filed a complaint with the D.C. police department, but was given “a whole array
of lame excuses” from a supervisor, including that the officers involved were junior traffic
officers, were not familiar with proper procedure, and “did not know anything about
Chinatown.” Id. ¶¶ 77-78. The supervisor promised to provide a patrol in the area, but that
patrol allegedly only lasted for two weeks. Id. ¶¶ 78-79.
2. The February 15, 2016 Arrest
On February 15, 2016, Plaintiff alleges that a drunk woman boarded a bus without
paying. Id. ¶ 31. Plaintiff asked the woman to leave. Id. The woman initially left, but then
continued to attempt to sneak onto the bus multiple times. Id. ¶ 32. Eventually, defeated, the
apparently drunken woman sat on the steps of a nearby building and “curs[ed] Plaintiff
continuously.” Id. Plaintiff then took the woman’s photograph with a cell phone “for the
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company’s records[s].” Id. ¶ 33. The woman, not pleased at having been photographed, chased
and assaulted Plaintiff. Id. ¶¶ 34-35. Both women called the police. Id. ¶ 36.
Plaintiff alleges that when the “D.C. MPD finally sent some officer,” he was a “white
male” and “could not communicate with Plaintiff.” Id. ¶ 37. Other officers quickly arrived on
the scene. Id. ¶ 38. One, “a African American male officer (Officer X),” grabbed Plaintiff’s
hand as she was trying to make another 911 call. Id. ¶ 39. Officer X and another male officer
(Officer Y) then pushed Plaintiff against a wall and then down onto the floor. Id. ¶ 40. One of
the officers (Officer Z) stepped on Plaintiff’s back and two others (Officers X and Y) twisted
Plaintiff’s arms “in the back.” Id. The officers then picked Plaintiff up off the ground and
“forced Plaintiff to sit on the chairs in the waiting room, still with hand-cuffed behind her back.”
Id. ¶ 41. Plaintiff alleges that during this time—approximately 15-20 minutes—there was no
MPD officer who spoke Chinese, and no one asked her if she spoke English. Id. ¶¶ 42, 48. An
interpreter was provided after 15 or 20 minutes. Id. ¶ 48.
Plaintiff alleges she was upset and experienced pain. Id. ¶ 43. Plaintiff also alleges her
constitutional rights were violated when one officer placed his card into her jacket pocket, briefly
took it back out and then put it back in. Id. ¶ 45. Plaintiff claims that “officers X, Y and Z[ ]
conducted unlawful arresting, maliciously prosecuting and using excessive and unreasonable
force,” and that “[t]he actions and conduct of the Defendant officers are the result of a policy,
practice, custom, and deliberate indifference on the part of Defendant MPD of D.C.” Id. ¶ 46.
Eventually, a “higher-ranking officer/sergeant” (Sergeant A) arrived, reviewed video of
the incident and “confirmed that Plaintiff was not the aggressor.” Id. ¶¶ 49-50. As a result,
Plaintiff’s handcuffs were removed. Id. ¶ 50. However, after Plaintiff “took paper and pen to
take police officer badge numbers,” the officers placed her back in handcuffs, falsely claiming
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that she was “assaulting” the officers. Id. ¶¶ 51-53. Plaintiff was subsequently arrested and
charged with three counts of assaulting a police officer. Id. ¶ 54. Plaintiff claims this charge is
“false[ ] and malicious[ ].” Id. ¶ 119. At the police station, Plaintiff was searched and then
locked up without the assistance of a Chinese interpreter. Id. ¶ 55. A Chinese translating officer
later helped Plaintiff write a statement of the events. Id. ¶ 56.
The police officers then sent Plaintiff to a hospital to have her injuries checked. Id. ¶ 57.
Plaintiff alleges that she was sent with two “white male officers,” (Officers B and C) who were
present while a doctor or nurse examined her. Id. ¶¶ 57-58. No female officers were present. Id.
¶ 2. Plaintiff was embarrassed and humiliated by this event, because she had never before been
unrobed in front of a man other than her husband. Id. ¶ 58. Plaintiff complains that she was
never informed what hospital she had been taken to and did not receive any paperwork from the
hospital. Id. ¶ 2. Plaintiff then spent the night in jail. Id. ¶ 61. The next morning, February 16,
2016, Plaintiff went to the Superior Court of the District of Columbia, where she was “finally
released because of ‘No Paper.’” Id. ¶¶ 61-62. In sum, Plaintiff was detained for almost 19
hours. Id. ¶ 62.
3. The April 6, 2016 Incident
On April 6, 2016, two “would-be robbers” came into the bus company’s basement office
and ordered Plaintiff to open the door to the booth where she was stationed. Id. ¶ 80. Plaintiff
was frightened but refused to open the door. Id. ¶ 82. She shouted “911 coming,” which caused
the individuals to flee the scene. Id. ¶ 83. Plaintiff did not call the police during this incident.
Id. ¶ 84.
Plaintiff did however call the police—via the “D.C. M.P.D. Asian Liaison office”—after
the individuals left. Id. ¶ 85. The police came, but did not review the videotape of the incident,
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and simply asked Plaintiff “What do you want us to do?” Id. ¶ 86. The officers told Plaintiff
that “they could do nothing other than issue citations.” Id. Plaintiff alleges that, in stark contrast
to how she was treated “like a real criminal” during the February 15, 2016 incident, the police
did not show any real effort to pursue these suspects. Id. She also alleges that the “MPD did not
pay attention to her report as a form of retaliation and reprisal.” Id. More generally, Plaintiff
alleges that the MPD does not patrol the area around her business from midnight to 4:00 a.m.,
takes too long to respond to Plaintiff’s calls, and that Plaintiff has to rely on English-speaking
intermediaries to get the police’s attention. Id. ¶¶ 87-88.
4. The April 12, 2016 Incident
On April 12, 2016, Plaintiff refused to allow a customer to board a bus with an expired
ticket. Id. ¶¶ 89-91. The customer “dashed up to the bus” regardless. Id. ¶ 91. He eventually
left the bus voluntarily, but said he would call the police. Id.
When Plaintiff returned to her office later that day, a police officer, (Officer E) was
waiting and told Plaintiff she needed to come with him to submit a report. Id. ¶¶ 93-94. Officer
E ignored Plaintiff’s request for a Chinese translator and did not ask her if she spoke English. Id.
¶¶ 95-96. He also refused to view the bus company’s close-circuit video, and refused to listen to
a tenant from above the bus company office who offered to act as an interpreter. Id. ¶¶ 97-98.
Plaintiff, feeling “under the pressure,” agreed to go to the police station with the officer and his
female partner (Officer F). Id. ¶¶ 100-01. When she was leaving the office waiting area with the
officer, however, he allegedly handcuffed Plaintiff without giving any explanation or reading
Plaintiff Miranda warnings. Id. ¶¶ 9-10, 101-02. Officer F allegedly searched Plaintiff in public
before putting her in the police cruiser. Id. ¶ 7. Plaintiff alleges that Officers E and F did not
have an arrest warrant. Id.
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Plaintiff was interviewed at the police station about the incident, but complains that the
interview was insufficient, used only a telephonic interpreter, and otherwise was “lopsided with
complaining witness, not one word from Plaintiff at all.” Id. ¶ 104. Plaintiff also complains that
the police officers did not appropriately convey to her why she had been arrested, took too long
to tell her when she would be allowed to leave, only allowed her to make a local phone call, did
not provide a Chinese interpreter so that Plaintiff could understand her right to use the phone,
was told to sign a form she didn’t understand, and did not give Plaintiff certain police officers’
names and badge numbers when requested. Id. ¶¶ 105-111.
As a result of this arrest, Plaintiff was issued a citation to come to court on May 12, 2016.
Id. ¶ 113. Plaintiff was detained for approximately two hours and had to pay for a taxi “out of
her own funds” to get back to her office. Id. ¶¶ 11, 114. Plaintiff alleges that her resulting arrest
record will create issues for her travelling to China to visit relatives. Id. ¶ 117. She has
experienced such difficulties as a result of prior citations. Id.
B. Causes of Action
Plaintiff’s Amended Complaint contains a number of counts, which purport to assert a
long list of causes of action. Plaintiff asserts causes of action for: “Violation of civil rights: 42
U.S.C. 1983,” “Violation of Plaintiff’s Constitutional Rights, including but not limited to, First
Amendment, Fourth Amendment and Fifth Amendment; Due Process and Equal Protection,”
“PERSONAL INJURY AGAINST ALL DEFENDANTS, including officer X.Y.Z., Sgt. A, B&C
and E & F,” “False Arrest and Imprisonment,” “Intentional Infliction of Emotional Distress,”
“Negligence,” “District of Columbia: Gross Negligence and/or Negligence,” “District of
Columbia: Negligent Supervision, Training, and Maintenance or Personnel” and “Retaliatory
prosecution.” Id. ¶¶ 127-183.
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C. Procedural History
Plaintiff originally filed this case in the Superior Court of the District of Columbia, and it
was removed to this Court by Defendant District of Columbia. Notice of Removal, ECF No. 1.
Defendant then promptly filed a partial motion to dismiss. See Def. District of Columbia’s
Motion for Partial Dismissal of the Complaint, ECF No. 7. Before the Court could rule on
Defendant’s motion, however, Plaintiff filed a Motion for Leave to File an
Amended/Supplemental Complaint, seeking to add allegations to her complaint concerning
additional encounters Plaintiff has had with the MPD. ECF No. 13. The Court granted
Plaintiff’s motion to amend, and Defendant has now filed the pending motion targeted at
Plaintiff’s Amended Complaint. Defendant’s motion, which seeks to dismiss several of the
causes of actions listed in the Amended Complaint, has been fully briefed and is ripe for
resolution.
II. LEGAL STANDARDS
A. Failure to State a Claim under Rule 12(b)(6)
Pursuant to Federal Rule 12(b)(6), a party may move to dismiss a complaint on the
grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. 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.” Iqbal, 556 U.S. at 678.
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B. Summary Judgment under Rule 56
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
III. DISCUSSION
Defendant moves to dismiss several of Plaintiff’s claims. Specifically, Defendant moves
to dismiss Plaintiff’s (A) 42 U.S.C. § 1983 claim against the District of Columbia, (B)
negligence claim, (C) malicious prosecution claim, (D) intentional infliction of emotional
distress claim, and (E) negligent supervision and training claim. The arguments in support of
Defendant’s request to dismiss each of these claims are distinct, and the Court will address each
separately in turn.
A. Plaintiff’s Section 1983 Claim
As an initial matter, the Court will dismiss Plaintiff’s cause of action under 42 U.S.C. §
1983 against the District of Columbia for failure to state a claim. Section 1983 states that:
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 . . .
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42 U.S.C. § 1983.
Plaintiff’s Amended Complaint contains numerous factual allegations about the conduct
of various different individual MPD officers employed by the District of Columbia, but the
District “cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t
of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Instead, “[t]o state a claim under § 1983
against the District, a plaintiff ‘must allege not only a violation of [her] rights under the
Constitution or federal law, but also that the municipality’s custom or policy caused the
violation.” Trimble v. D.C., 779 F. Supp. 2d 54, 57 (D.D.C. 2011) (quoting Warren v. D.C., 353
F.3d 36, 38 (D.C. Cir. 2004)). Plaintiff must allege an “‘affirmative link,’ such that a municipal
policy was the ‘moving force’ behind the constitutional violation.” Baker v. District of
Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citation omitted).
Plaintiff has not pled any facts that would plausibly suggest that the alleged violations of
her constitutional rights, which were committed by various different MPD officers, were caused
by any custom or policy of the District. The nearest Plaintiff comes are conclusory allegations
that these various officers were acting “under color of state law” and that “[t]he actions and
conduct of the defendant officers and D.C. MPD are the result of a policy, practice, custom and
deliberate indifference on the part of Defendant Washington, D.C. and individual officers and
D.C. MPD.” Am. Compl. ¶¶ 13, 24, 27, 46, 128. But conclusory allegations of this sort are not
sufficient. “The mere assertion that the police officer ‘was acting fully within the scope of his
employment and pursuant to the policies of defendant . . .’ is not specific enough to withstand
dismissal,” where plaintiff points “to no rule, procedure or policy of the District which would
require or even permit the alleged unconstitutional actions.” Miller v. Barry, 698 F.2d 1259,
1261 (D.C. Cir. 1983); see also Patrick v. D.C., 179 F. Supp. 3d 82, 88 (D.D.C. 2016)
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(dismissing complaint that “merely assert[ed] that the police officers were acting in accordance
with District custom”); Haight v. O'Bannon, 102 F. Supp. 3d 179, 182 (D.D.C. 2015) (dismissing
section 1983 claim where plaintiff “merely speculat[ed] that some unknown MPD policy or
custom might have been the moving force behind her injuries” because “[s]uch conclusory
allegations that merely recite the legal standard fall short of the requirements for pleading
municipal liability.”); Maldonado v. D.C., 924 F. Supp. 2d 323, 331 (D.D.C. 2013) (dismissing
section 1983 claim against the District based on allegations that “recite legal conclusions, not
facts”); Trimble, 779 F. Supp. 2d at 59 (“merely speculating that an unidentified policy and
uncorroborated practice or custom exists without providing any factual heft to support the
allegation is insufficient to state a claim under § 1983”).
In her opposition to Defendant’s motion to dismiss, Plaintiff attempts to resolve this
inadequacy in her Amended Complaint by referencing various other unrelated court cases or
complaints against the District of Columbia. Pl.’s Opp’n at 1-3. This attempt fails for a number
of reasons. As an initial matter, these allegations are absent from Plaintiff’s Amended
Complaint, and Plaintiff, who is represented by counsel, may not amend her pleadings through
her opposition. See Williams v. Donovan, 219 F. Supp. 3d 167, 177-78 (D.D.C. 2016) (“Where a
plaintiff fails to include allegations in her complaint, she may not amend her complaint via the
briefs in opposition to a motion to dismiss.”). More fundamentally, the unsurprising existence of
other claims against the District, which do not appear to be factually related to this case in any
way and span over a period of ten years, simply does not demonstrate that Plaintiff’s injuries in
this case were caused by any policy or custom of the District. See York v San Pablo, 626 F Supp
34 (N.D. Cal. 1985) (holding that plaintiff could not show any systematic policy of violence
where “the incidents appeared to be discreet occurrences involving several different officers.”).
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Plaintiff also argues in her opposition that “Defendant also can be found with municipal
liability based on a failure to train, supervise or discipline.” Pl.’s Opp’n at 3. Plaintiff is correct
in theory. However, “[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice
by a municipality—a ‘policy’ as defined by our prior cases—can a city be liable for such a
failure under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989); Dorman v.
D.C., 888 F.2d 159, 165 (D.C. Cir. 1989) (holding that section 1983 claim could not survive on
the basis of a failure to train where “there [was] no evidence of a conscious choice or a policy of
deliberate indifference.”) (emphasis in original); Hawkins v. Lanier, 605 F. Supp. 2d 291, 295
(D.D.C. 2009) (rejecting argument that plaintiff had stated claim for municipal liability by
alleging “inadequacy of police training” because although plaintiff had alleged inadequate
training or supervising, she did not allege that this represented “city policy”).
Here, at most, Plaintiff alleges that she encountered several poorly trained officers. She
has not alleged that this was the result of any deliberate indifference, choice or policy on the
District’s behalf. The only suggestion the Court can discern of any training-related policy in any
of Plaintiff’s pleadings is Plaintiff’s statement that the “law mandates” officers “provid[e] timely
language access” to non-English speaking citizens, and that they “follow[ ] proper procedure to
arrest suspects.” Pl.’s Opp’n at 4. But these alleged policies do not help Plaintiff’s claim. To
the contrary, if anything, they suggest that the officers who allegedly violated Plaintiff’s rights
were acting in violation of the District’s policies. In other words, as the government argues,
“Plaintiff is alleging that the MPD officers in this case failed to follow proper MPD policy, not
that there is anything wrong with the MPD policy itself.” Def.’s Reply at 2; see also Davis v.
D.C., 800 F. Supp. 2d 28, 35 (D.D.C. 2011) (holding that plaintiff had failed to plead a section
1983 claim based on an identified policy because “the plaintiff states that the officers’ actions
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occurred ‘in violation of’ the District’s police regulations . . . indicating that the cited policy was
not in any way the ‘moving force’ behind the alleged violations.”). Because failure to train is
only actionable under section 1983 if it reflects a municipal policy, which is not alleged here,
Plaintiff’s failure to train argument fails. Accordingly, Plaintiff’s section 1983 claim against the
District of Columbia will be dismissed for failure to state a claim.
B. Plaintiff’s Negligence Claim
The Court will also dismiss Plaintiff’s negligence claim pursuant to the public duty
doctrine. “Under that doctrine, a government and its agents owe no duty to provide public
services to particular citizens as individuals.” Hines v. D.C., 580 A.2d 133, 136 (D.C. 1990).
“Instead, absent some ‘special relationship’ between the government and the individual, the
District’s duty is to provide public services to the public at large.” Id. Absent any such duty,
Plaintiff’s negligence claim fails as a matter of law.
The Court is not persuaded by Plaintiff’s argument that she has developed a “special
relationship” with the MPD. “The threshold for establishing a special relationship is very high.”
Jefferies v. D.C., 917 F. Supp. 2d 10, 33 (D.D.C. 2013) (citing Trifax Corp. v. D.C., 53 F. Supp.
2d 20, 30 (D.D.C. 1999)). As relevant to Plaintiff’s argument, one way that an individual can
establish a special relationship is by demonstrating that there was some direct or continuing
contact between herself and the relevant government official, and that she justifiably relied on
that relationship. Snowder v. District of Columbia, 949 A.2d 590, 604 (D.C. 2008). To establish
justifiable reliance, “[t]he plaintiff must specifically act . . . or refrain from acting . . . in such a
way as to exhibit particular reliance upon the actions of the police in providing personal
protection.” Morgan v. D.C., 468 A.2d 1306, 1315 (D.C. 1983).
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Plaintiff has not made this showing. In this case, Plaintiff merely argues that “there were
prior contacts between D.C. MPD police officers and Plaintiff on numerous occasions” and that
“[t]hese facts created a special relationship as an exception to the public duty doctrine.” Pl.’s
Opp’n at 9. As an initial matter, the Court is not convinced that the four instances at issue in this
case, which span multiple months and involve various different police officers, are sufficient to
establish the sort of “continuing contact” envisioned by this exception. Moreover, Plaintiff
certainly cannot demonstrate that she came to justifiably rely on her relationship with these
police officers as a result of these contacts. To the contrary, Plaintiff alleges that she found the
officers’ conduct negligent or otherwise wrongful. Because the special relationship exception to
the public duty doctrine does not apply here, Plaintiff’s negligence claim must be dismissed.
C. Plaintiff’s Malicious Prosecution Claim
Next, the Court will also dismiss Plaintiff’s claim for malicious prosecution. To state a
claim for malicious prosecution, Plaintiff must plead the following: “(a) a criminal proceeding
instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in
favor of the accused, (c) absence of probable cause for the proceeding, and (d) ‘Malice,’ or a
primary purpose in instituting the proceeding other than that of bringing an offender to justice.”
DeWitt v. D.C., 43 A.3d 291, 296 (D.C. 2012) (quoting Jarett v. Walker, 201 A.2d 523, 526
(D.C. 1964)).
Here, Plaintiff has not pled that there was a decision in her favor in any criminal
proceeding. To establish this element of a malicious prosecution claim, “the termination must
reflect on the merits of the underlying action.” Brown v. Carr, 503 A.2d 1241, 1245 (D.C.
1986). As discussed above, Plaintiff alleges that she was arrested but that her case was
immediately “no papered” and she was released. It is true that in some cases, “[d]ismissal for
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failure to prosecute has been held to be a favorable termination where the facts of the case
indicate that such a disposition reflects on the innocence of the defendant in the underlying suit,”
but no such facts have been alleged here. Plaintiff has accordingly not stated a claim for
malicious prosecution. See Kenley v. D.C., 83 F. Supp. 3d 20, 42 (D.D.C. 2015) (dismissing
malicious prosecution claim where “the prosecutor moved to dismiss the criminal charges after a
few months” because “[m]erely alleging that criminal charges were dismissed is . . . insufficient
to plead that the underlying case was favorably terminated.”); Harris v. D.C., 696 F. Supp. 2d at
123, 133-34 (dismissing malicious prosecution claim where “the prosecutor dismissed Plaintiff’s
criminal charges” because “Plaintiff has failed to allege any facts that, if proven, would
demonstrate that termination was on the merits.”); Rice v. D.C., 626 F. Supp. 2d 19, 24–25
(D.D.C. 2009) (dismissing malicious prosecution claim where plaintiff could not “show that the
underlying criminal proceeding terminated in his favor” because although “the underlying case
was dismissed by the District there was no resolution based on the merits.”).
D. Plaintiff’s Intentional Infliction of Emotional Distress Claim
Although a close call, the Court will not dismiss Plaintiff’s intentional infliction of
emotional distress (“IIED”) claim at this time. In the District of Columbia, “[t]he tort of
intentional infliction of emotional distress consists of (1) ‘extreme and outrageous’ conduct on
the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff ‘severe
emotional distress.’” Kotsch v. D.C., 924 A.2d 1040, 1045 (D.C. 2007) (quoting Waldon v.
Covington, 415 A.2d 1070, 1076 (D.C. 1980)). “As to the first element, ‘[l]iability has been
found only where the conduct has been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.’” Id. at 1045-46 (quoting Restatement (Second) of Torts §
15
46, cmt. d (1965)). “In general, ‘a case of intentional infliction of emotional distress is made out
only if the recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim ‘Outrageous!’” Larijani v. Georgetown
Univ., 791 A.2d 41, 44 (D.C. 2002) (quoting Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998)).
Defendant argues that Plaintiff’s IIED claim should be dismissed because she has not
alleged sufficiently “extreme and outrageous” conduct. It is true that not every rough arrest or
unfortunate interaction with police officers gives rise to an IIED claim. See, e.g., Johnson v.
Paragon Sys., Inc., 195 F. Supp. 3d 96, 99 (D.D.C. 2016) (granting motion to dismiss IIED claim
based on allegations that plaintiff “was handcuffed for up to two hours” and threatened with
criminal action); Cotton v. D.C., 541 F. Supp. 2d 195, 206 (D.D.C. 2008) (“[t]he court cannot
conclude that a police officer’s handcuffing a person . . . even if based on a mistaken assumption
that she was a threat, ‘goes beyond all possible bounds of decency,’ is ‘atrocious, and utterly
intolerable in a civilized community.’”); Black v. D.C., 466 F. Supp. 2d 177, 180 (D.D.C. 2006)
(granting motion to dismiss IIED claim based on arrest plaintiff appeared to claim was unfair,
where plaintiff was held overnight and his case was not papered).
On the other hand, allegations of particularly egregious and improper police conduct have
in past cases served as the basis for IIED claims that survived the pleading stage. See, e.g.,
Daniels v. D.C., 894 F. Supp. 2d 61, 68 (D.D.C. 2012) (declining to dismiss IIED claim based on
allegations that officers “pushed, shoved, and jerked” plaintiff, subjected her to a violent ride in a
police car, and cursed at her, even after plaintiff informed the officers that she was pregnant, and
plaintiff eventually needed to be hospitalized to stabilize her pregnancy); Liser v. Smith, 254 F.
Supp. 2d 89, 106 (D.D.C. 2003) (stating that allegations “that Detective Smith and his fellow
officers recklessly and intentionally fabricated facts in order to support his unjustified arrest and
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continued detention . . . are sufficient to state a claim of intentional infliction”) (internal
modification omitted); Amons v. D.C., 231 F. Supp. 2d 109, 118 (D.D.C. 2002) (declining to
dismiss IIED claim based on allegation that “police officers unlawfully entered and searched
[plaintiff’s] home without justification, that the police officers killed his pet dog in his home,”
“that they detained him for twenty-two hours” and that they “failed to secure his home after his
arrest causing the loss of his property valued in excess of $6,000.”).
One particularly relevant example of such a case is Chen v. D.C., 256 F.R.D. 267 (D.D.C.
2009) (Friedman, J.). In Chen, the court denied an MPD officer’s motion to dismiss plaintiff’s
IIED claim where plaintiff alleged that the officer “detained her without cause on a street in the
District of Columbia’s Chinatown neighborhood in the early morning hours,” based on the
“mistaken belief that [plaintiff] had failed to pay a $60 bill at a local Red Roof Inn.” Id. at 269.
The plaintiff in Chen alleged that the officer “shouted at her, grabbed her left arm, pushed her
across the street, ‘slammed’ her on the hood of a car and handcuffed her.” Id. Plaintiff “was then
placed into a police car and transported against her will to a Red Roof Inn,” where two officers
watched as plaintiff “was searched by a male officer and relieved of $60.” Id. at 273.
“Throughout this ordeal, [plaintiff] pleaded for help (or at least for an interpreter), but neither
request was granted.” Id. “Finally, she was released without any formal proceedings.” Id. The
Court concluded that plaintiff had adequately stated a claim for IIED.
The Court concludes that Plaintiff’s allegations here are similarly sufficient to establish
the extreme and outrageous conduct element of an IIED claim at the pleading stage. Among
numerous other things, Plaintiff alleges that police officers used excessive force while detaining
her on February 15, 2016. The officers allegedly pushed her against a wall and then down onto
the floor, stepped on her back, and twisted her arms before eventually handcuffing her.
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According to Plaintiff, the police officers then realized that they were mistaken and that Plaintiff
was not actually at fault for the incident that night, and temporarily released her. However, upon
learning that Plaintiff intended to file complaints against them, Plaintiff alleges that the officers
fabricated the claim that Plaintiff “assaulted” them and arrested her. Plaintiff was eventually
taken to the hospital for her injuries, where she was forced to undress in front of male police
officers. Plaintiff also alleges that she was forced to spend the night in jail before her case was
“no-papered.”
Certainly, the development of the factual record in this case may demonstrate that the
conduct complained of was not, in fact, sufficiently extreme or outrageous to establish an IIED
claim. However, accepting all of the allegations in Plaintiff’s Amended Complaint as true and
granting her all reasonable inferences, the Court concludes that it would be inappropriate to
dismiss her IIED claim at this time for the reasons raised by the Defendant.
E. Plaintiff’s Negligent Supervision and Training Claim
Finally, Defendant moves to dismiss Plaintiff’s claim for negligent supervision and
training for failure to comply with D.C. Code § 12-309. This is the only argument Defendant
raises for dismissing this claim, and the Court rejects it. Section 12-309 states, with certain
exceptions not relevant here, that:
an 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 of the approximate time, place, cause, and
circumstances of the injury or damage.
D.C. Code § 12-309(a). Section 12-309 “is designed to ‘(1) protect the District of Columbia
against unreasonable claims and (2) to give reasonable notice to the District of Columbia so that
the facts may be ascertained and, if possible, deserving claims adjusted and meritless claims
resisted.’” Gaskins v. D.C., 579 A.2d 719, 721 (D.C. 1990) (quoting Pitts v. District of
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Columbia, 391 A.2d 803, 807 (D.C. 1978)). With respect to the “cause” element, “notice would
be sufficient ‘if it recites facts from which it could be reasonably anticipated that a claim against
the District might arise.’” Washington v. D.C., 429 A.2d 1362, 1366 (D.C. 1981) (quoting Pitts,
391 A.2d at 809). With respect to the “circumstances” element, “the circumstances must be
detailed enough for the District to conduct a prompt, properly focused investigation of the
claim.” Id. Compliance with section 12-309 is a necessary prerequisite “[t]o maintain[ing] a tort
action for damages against the District of Columbia.” Kirkland v. D.C., 70 F.3d 629, 632 (D.C.
Cir. 1995).
Defendant concedes that Plaintiff filed three separate statements pursuant to section 12-
309, which “detail Plaintiff’s factual allegations and suggest claims of assault, battery, false
arrest and civil rights violations,” but argues that the statements did not provide sufficient notice
that Plaintiff intended to assert a negligent supervision or training claim in particular. Defs.’
Mot. at 14-15. The Court disagrees. Plaintiff’s notices describe in some detail her complaints
about the conduct of the MPD officers at issue, state that a “supervisor” told Plaintiff that the
officers’ misconduct was a result of the officers not being “familiar with proper procedure” and
assert that “D.C. MPD should have an obligation to train their officers well.” Id., Ex. 1 at 5.
Although the Court acknowledges that Plaintiff’s notices, like her complaint, are not a model of
clarity, the District of Columbia Court of Appeals “has long held that ‘although strict compliance
with § 12-309’s requirement that timely notice be given to the District is mandatory, greater
liberality is appropriate with respect to the content of the notice.’” Enders v. D.C., 4 A.3d 457,
468 (D.C. 2010) (quoting Wharton v. District of Columbia, 666 A.2d 1227, 1230 (D.C. 1995)).
“[W]here the District is given facts that would allow it to comprehend through a reasonable
investigation the circumstances underlying the claim, the notice is sufficient.” Id. The Court
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finds that Plaintiff’s multiple notices were at least sufficient to allow the District to be able to
anticipate and comprehend the circumstances underlying Plaintiff’s negligent training and
supervision claim. Accordingly, the Court will not dismiss this claim for failure to comply with
section 12-309.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-PART
Defendant’s Motion for Partial Dismissal. The Court dismisses Plaintiff’s section 1983 claim
against the District of Columbia, as well as Plaintiff’s negligence and malicious prosecution
claims. The Court does not dismiss Plaintiff’s IIED or negligent supervision and training claims.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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