Simmons v. Skelonc

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSEPH SIMMONS,
Plaintiff,
v.
Civil Action No. 20-2845 (CKK)
OFFICER DANIEL SKELONC, in his
individual and official capacity and
DISTRICT OF COLUMBIA,
Defendants.
MEMORANDUM OPINION
(July 29, 2021)
Plaintiff Joseph Simmons brings this action against Defendants Officer Daniel Skelonc of
the Metropolitan Police Department (“MPD”) and the District of Columbia (“the District”)
alleging violations of his Fourth Amendment rights under 42 U.S.C. § 1983, false arrest, false
imprisonment, intentional infliction of emotional distress, and respondeat superior liability.
Compl. ¶¶ 22–30, ECF No. 1. These allegations stem from Officer Skelonc’s response to a
reported shoplifting incident; Plaintiff claims Officer Skelonc impermissibly seized him and used
excessive force when incorrectly confronting him as the suspected shoplifter. See id. ¶¶ 6, 15–20.
Presently before the Court are motions to dismiss filed by the District (ECF No. 8) and Officer
Skelonc (ECF No. 12).
In his response to Officer Skelonc’s Motion to Dismiss, Plaintiff consented to dismissal of
his common law claims of false arrest, false imprisonment, and intentional infliction of emotional
distress (Counts II, III, and IV), acknowledging that the applicable one-year statute of limitations
elapsed before his Complaint was filed. 1 Pl.’s Opp’n to Def. Skelonc’s Mot. at 7, ECF No. 16.
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In his Opposition to the District’s Motion to Dismiss (filed before his Opposition to Officer Skelonc’s Motion to
Dismiss), Simmons did not acknowledge that the common law claims were time-barred. However, Plaintiff concedes
in his Opposition to Officer Skelonc’s Motion to Dismiss that he “has no objection to dismissing the common law
1
In addition, in his response to the District’s Motion to Dismiss, Plaintiff consented to dismissal of
his § 1983 claim (Count I) against the District, acknowledging that he did not allege facts “that
support a finding of municipal liability under section 1983.” Pl.’s Opp’n. to Def. D.C.’s Mot. at
5, ECF No. 11. Based on Plaintiff’s consent to the dismissal of these claims, the Court shall order
that Count I as to the District and Counts II, III, and IV as to both defendants be DISMISSED.
The remaining claims at issue in the pending motions are: (1) Plaintiff’s § 1983 claim based
on alleged Fourth Amendment violations against Officer Skelonc (Count I); and (2) Plaintiff’s
“respondeat superior liability” claim against the District (Count VI). 2 Upon review of the
pleadings, 3 the relevant legal authority, and the record as a whole, the Court shall GRANT
Defendants’ motions to dismiss as to both remaining claims and shall DISMISS the Complaint.
I. BACKGROUND
For the purposes of Defendants’ motions to dismiss, the Court accepts as true the
well-pleaded allegations in Plaintiff’s Complaint. 4 The Court does “not accept as true, however,
the plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls
Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 314–15 (D.C. Cir. 2014).
claims for false arrest, false imprisonment, and intentional infliction of emotional distress (Counts II, III and IV) as
being barred by the one-year statute of limitations. [D.C. Code] § 12–301.” Pl.’s Opp’n to Def. Skelonc’s Mot. at 1.
2
Plaintiff’s Complaint contains five claims, but labels the fifth count as “Count VI.” See Compl. ¶¶ 26–30. For
consistency with the Complaint, the Court may refer to Plaintiff’s “respondeat superior liability” claim as “Count VI.”
3
The Court’s consideration has focused on the following:
• Def. D.C.’s Mot. to Dismiss (“Def. D.C.’s Mot.”), ECF No. 8;
• Def. Daniel Skelonc’s Mot.to Dismiss (“Def. Skelonc’s Mot.”), ECF No. 12;
• Pl.’s Opp’n to Def. D.C.’s Mot. to Dismiss (“Pl.’s Opp’n to Def. D.C.’s Mot.”), ECF No. 11-1;
• Pl.’s Opp’n to Def. Skelonc’s Mot. to Dismiss (“Pl.’s Opp’n to Def. Skelonc’s Mot.”), ECF No. 16-1;
• Def. D.C.’s Reply to Pl.’s Opp’n to Mot. to Dismiss (“Def. D.C.’s Reply”), ECF No. 14; and
• Def. Skelonc’s Reply to Pl.’s Opp’n to Mot. to Dismiss (“Def. Skelonc’s Reply”), ECF No. 17.
4
The Complaint indicates that the alleged facts are based on body-worn camera footage. See Compl. ¶ 12.
2
Around midnight on February 7, 2019, Plaintiff was standing outside a store in Northwest
Washington, D.C. with an acquaintance. Compl. ¶¶ 6–7. Shortly after Plaintiff stopped outside
the store, MPD Officer Skelonc and his partner pulled into the parking lot, in response to a report
of shoplifting by the store’s manager. Id. ¶ 6. The dispatcher described the suspects to the officers
as two black men wearing black jackets. Id. Plaintiff indicates that he arrived at the store after
the store manager reported the shoplifting incident, but before Officer Skelonc pulled into the
parking lot. Id. ¶¶ 6–7.
Officer Skelonc entered the store and spoke with the manager to determine if the
shoplifting suspects were still nearby. Id. ¶ 9. The manager pointed towards the glass door at the
front of the store and said, “he’s in front, right there.” Id. Officer Skelonc attempted to clarify
where the manager was pointing, and the manager again indicated that he thought the suspects
were “in front.” Id. Plaintiff indicates that he was standing directly in front of the store when
Officer Skelonc was speaking with the manager. Id. ¶ 10.
After the manager pointed to the men standing outside the front of the store, Officer
Skelonc walked outside and called out to Plaintiff and his acquaintance, who had both begun
walking away from the store towards a bus stop. Id. ¶¶ 10–11. Officer Skelonc initially called out
“gentlemen, gentlemen,” and then called to the “guy in the gray shirt.” Id. ¶ 11. Plaintiff was
wearing a tan jacket and blue jeans. Id. ¶ 12. Not realizing that Officer Skelonc was speaking to
him, Plaintiff continued to walk away. Id. ¶¶ 10–12. When Plaintiff failed to stop, Officer Skelonc
began yelling, and the two men got into a heated argument. Id. ¶¶ 13–14. Plaintiff, now alerted
to the fact that Officer Skelonc wanted to speak with him and was attempting to stop him, “made
a dismissive sound and turned and began walking away.” Id. ¶ 15. Officer Skelonc “grabbed the
[P]laintiff’s right arm and jerked it backwards forcefully, spinning [Plaintiff] around to face him.”
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Id. Officer Skelonc explained to Plaintiff that the store manager had reported a shoplifting
incident. Id. ¶ 16. Plaintiff, who had not been inside the store that evening, volunteered to return
to the store to “prove his innocence.” Id. When Officer Skelonc and Plaintiff went back inside
the store, the store manager confirmed that Plaintiff was not inside the store that evening and was
not the person who had shoplifted. Id. ¶ 18. Officer Skelonc then “stopped communicating” with
Plaintiff. Id. ¶ 19.
On September 29, 2020, Plaintiff filed his Complaint in this case, bringing claims against
the District of Columbia and Officer Skelonc. See Compl. Each defendant subsequently moved
to dismiss Plaintiff’s complaint. Both motions are now ripe for the Court’s consideration.
II. LEGAL STANDARDS
A. Motion to Dismiss
Both defendants have moved to dismiss Plaintiff’s Complaint under Federal Rule of Civil
Procedure 12(b)(6). Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint that
“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)). The factual allegations within a complaint, if accepted as true, must be sufficient to
“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. Courts
“do not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported
by the facts alleged.” Ralls Corp., 758 F.3d at 315.
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B. Qualified Immunity
Officer Skelonc has also moved to dismiss Plaintiff’s remaining § 1983 claim on the basis
that his actions are protected by qualified immunity. Def. Skelonc’s Mot. at 4–5. Public officials
have immunity from suits brought under § 1983 unless their alleged conduct violated “clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal citation omitted). To determine if
qualified immunity will protect the official, the Court applies a two-part test: (1) whether the
officials “violated a federal statutory or constitutional right” and (2) whether “the unlawfulness of
their conduct was ‘clearly established at the time.’” Dist. of Columbia v. Wesby, 138 S. Ct. 577,
589 (2018) (citation omitted). The Court has the discretion to determine which of the two prongs
to proceed on first. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
Once a defendant asserts a defense of qualified immunity, the burden falls to the plaintiff
to show that the official is not entitled to qualified immunity. Winder v. Erste, 905 F. Supp. 2d
19, 28 (D.D.C. 2012). At the motion to dismiss stage, “a plaintiff must allege sufficient facts to
establish that the defendants are not entitled to qualified immunity.” Patterson v. United States,
999 F. Supp. 2d 300, 311 (D.D.C. 2013). The plaintiff must “show that the particular right in
question—narrowly described to fit the factual pattern confronting the [official]—was clearly
established” at the time of the official’s conduct. Dukore v. District of Columbia, 799 F.3d 1137,
1145 (D.C. Cir. 2015). A clearly established right is one that is “sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.” Reichle v.
Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and alteration omitted). In other
words, “existing precedent must have placed the statutory or constitutional question beyond
debate.” Id. (internal citations and quotation marks omitted).
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III. DISCUSSION
As noted above, Plaintiff has consented to the dismissal of his § 1983 claim in Count I as
it relates to the District, and his common law claims in Counts II, III, and IV. Accordingly, the
only remaining claims at issue in the pending motions to dismiss are Plaintiff’s claim brought
pursuant to § 1983 based on alleged Fourth Amendment violations by Officer Skelonc (Count I),
and his respondeat superior claim against the District of Columbia (Count VI). For the reasons set
forth below, the Court shall grant the motions to dismiss as to the remaining claims and shall order
that the Complaint be dismissed.
A. Section 1983 Claims Against Officer Skelonc Based on Alleged Fourth Amendment
Violations (Count I).
In Count I of his Complaint, Plaintiff alleges that Officer Skelonc violated his Fourth
Amendment rights pursuant to 42 U.S.C. § 1983 by seizing him without probable cause and by
using excessive force. Compl. ¶¶ 22(b)–(c). Officer Skelonc argues that Plaintiff has failed to
state a plausible claim of constitutional violations because the allegations describe, at most, a
lawful Terry stop during which he used a reasonable amount of force. Def. Skelonc’s Mot. at
3–4. Officer Skelonc further argues that even if Plaintiff has alleged a constitutional violation, he
is entitled to qualified immunity. The Court concludes that Plaintiff has failed to state a plausible
claim of an unconstitutional seizure or an unreasonable use of force, and so shall grant Officer
Skelonc’s motion with respect to both claims. In the alternative, the Court concludes that Officer
Skelonc is entitled to qualified immunity with respect to both claims.
1. Investigatory Stop
Plaintiff first alleges that Officer Skelonc “without sufficient probable cause . . . detained
him against his will,” in violation of his constitutional rights under the Fourth Amendment.
Compl. ¶ 22(b). Officer Skelonc argues that he conducted a lawful investigatory stop based on a
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reasonable articulable suspicion that Plaintiff had shoplifted. See Def. Skelonc’s Mot. at 3–4
(citing Def. D.C.’s Mot. at 4–5). Before addressing the parties’ arguments, the Court briefly
discusses relevant Fourth Amendment principles.
The Fourth Amendment ensures the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” Const. amend. IV. A
“seizure” under the Fourth Amendment occurs “when physical force is used to restrain movement
or when a person submits to an officer's show of authority.” United States v. Delaney, 955 F.3d
1077, 1081 (D.C. Cir. 2020) (internal citations and quotation marks omitted). The Fourth
Amendment generally requires that an officer have probable cause and a warrant to seize a person
lawfully. See Payton v. New York, 445 U.S. 573, 603 (1980). As an exception to this general
requirement, an officer may “briefly detain a citizen” where the officer “has a reasonable,
articulable suspicion that ‘criminal activity may be afoot.’” United States v. Edmonds, 240 F.3d
55, 59 (D.C. Cir. 2001) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). To determine whether an
officer had reasonable suspicion to conduct a “Terry stop,” courts “look to the record as a whole
to determine what facts were known to the officer and then consider whether a reasonable officer
in those circumstances would have been suspicious.” United States v. McKie, 951 F.2d 399, 402
(D.C. Cir. 1991) (per curiam). The burden for showing that reasonable suspicion existed to justify
a stop rests with the government. See United States v. Castle, 825 F.3d 625, 634 (D.C. Cir. 2016).
Moreover, the stop must be brief, and the officer must work as quickly as possible to “confirm or
dispel their suspicions.” United States v. Sharpe, 470 U.S. 675, 686 (1985).
Plaintiff alleges that Officer Skelonc violated his Fourth Amendment rights by seizing him
without probable cause. See Compl. ¶ 22(b). Officer Skelonc argues that, at most, his actions
amounted to a lawful Terry stop supported by a reasonable articulable suspicion that Plaintiff had
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shoplifted. Def. Skelonc’s Mot. at 3–4. The allegations in the Complaint demonstrate that Officer
Skelonc had a reasonable articulable suspicion to conduct an investigatory stop: after Officer
Skelonc arrived at the store in response to a report of shoplifting, the store manager pointed through
the glass front door of the store and said the suspects were “directly in front of the store,” where
Plaintiff admits he was standing, Compl. ¶ 10; and when Officer Skelonc asked that the manager
clarify the suspects, the store manager pointed towards Plaintiff and his acquaintance, id. ¶ 9. The
manager’s repeated identification of Plaintiff as the suspected shoplifter supported a reasonable
articulable suspicion that Plaintiff was engaged in criminal activity. See, e.g., United States v. Bass,
Case No. 19-CR-206 (RJL), 2020 WL 1873590, at *2 (D.D.C. Apr. 15, 2020) (noting that
identification by a witness on the scene of a suspect supported officer’s reasonable articulable
suspicion).
Plaintiff argues that the dispatcher’s description of the suspects to Officer Skelonc as two
men wearing “black” jackets undermines any reasonable suspicion that Plaintiff was the shoplifter
because Plaintiff was wearing a tan jacket. Pl.’s Opp’n. to Def. Skelonc’s Mot. at 6. However, “a
precise color match to a lookout is not an indispensable element of reasonable suspicion.” United
States v. Abdus-Price, 518 F.3d 926, 930 (D.C. Cir. 2008); see also United States v. Turner, 699
A.2d 1125, 1129 (D.C. 1997) (“Because we examine the totality of the circumstances and require
far less than certainty, we have routinely held that an imperfect description, coupled with close
spatial and temporal proximity between the reported crime and seizure, justifies a Terry stop”);
Robinson v. United States, 756 A.2d 448, 456 (D.C. 2000) (finding reasonable articulable
suspicion even where there were differences in clothing descriptions in part because [plaintiff] was
arrested only one block away and within an hour of the alleged crime). The “close spatial and
temporal proximity” of the stop to the reported crime, together with the manager’s identification
8
of Plaintiff as the possible suspect, provided sufficient justification for Officer Skelonc’s brief
detention of Simmons despite the discrepancy between the color of Plaintiff’s jacket and the color
described by the dispatcher.
Moreover, as Plaintiff acknowledges, the stop conducted by Officer Skelonc was
“minimal.” Pl.’s Opp’n. to Def. D.C.’s Mot. at 1. When determining whether a detention is
sufficiently brief to be considered an investigative stop, courts should “examine whether the police
diligently pursued a means of investigation that was likely to confirm or dispel their suspicions
quickly” Sharpe, 470 U.S. at 686. After stopping Plaintiff, Officer Skelonc explained to him that
the manager of the store had reported a shoplifting incident. Compl. ¶ 16. Officer Skelonc and
Plaintiff then immediately returned to the storefront and the manager confirmed that Plaintiff had
not entered the store that evening. Id. ¶¶ 17–18. Plaintiff does not allege that the detention
continued beyond this point. See id. ¶¶ 18–19. Nor does he identify any examples of unnecessary
delay by Officer Skelonc. The Complaint describes a brief stop, during which Officer Skelonc
took immediate steps to investigate his suspicion of Plaintiff, resulting in a seizure “so minimally
intrusive as to be justifiable on reasonable suspicion.” United States v. Place, 462 U.S., 696, 709
(1983).
Construing the factual allegations in Plaintiff’s favor, the Complaint describes a lawful
investigatory stop. Accordingly, the Complaint fails to state a plausible claim for a Fourth
Amendment violation based on an unreasonable seizure.
2. Excessive Force
Plaintiff also claims that Officer Skelonc violated the Fourth Amendment by using
excessive force during the stop—namely, by grabbing Plaintiff’s arm and spinning him around to
prevent him from walking away from the store. See Pl.’s Opp’n to Skelonc’s Mot. at 5. Officer
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Skelonc argues that his actions did not violate the Fourth Amendment because he used minimal
force, which was reasonable in view of the surrounding circumstances. Def. Skelonc’s Reply at
1–2. The Court concludes that the use of force alleged in the Complaint is reasonable based on
the totality of the circumstances and therefore fails to state a claim for a Fourth Amendment
violation. See Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir. 1987) (affirming motion to dismiss
for failure to state a claim where the court was unable to “conclude that [the officer] used
unreasonable force” based on the facts as alleged in the complaint). Before addressing the parties’
arguments, the Court shall again briefly discuss the relevant Fourth Amendment principles.
As the Supreme Court has explained, the right of police officers to make “an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). “[N]ot every push or
shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth
Amendment.” Id. (citation omitted). However, the force used must be objectively reasonable
under the circumstances. Id at 397. To determine whether an officer’s use of force was reasonable,
courts consider “the severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id. at 396.
According to the allegations in the Complaint, Officer Skelonc only used force after
Plaintiff refused to stop. Compl. ¶ 15. Although the Complaint describes some initial confusion
about whether Officer Skelonc was addressing Plaintiff to direct him to stop, Plaintiff “made a
dismissive sound and turned and began walking away from” Officer Skelonc even after he was
aware that Officer Skelonc was addressing him and wanted him to stop. Id. ¶ 15. Officer Skelonc
10
prevented Simmons from continuing to walk away by grabbing his arm and turning him around to
face him so they could speak. Id.Based on these allegations, Plaintiff has failed to plead a sufficient factual basis to conclude
that Officer Skelonc used an unreasonable degree of force. An officer is permitted to use some
amount of force when needed to restrain or stop a suspect. Otherwise, “Terry stops would be
outlawed. Defendants would simply disobey the police and run, knowing that the police would
then need probable cause to chase and tackle them.” United States v. Wilson, No. 11–0275, 1994
WL 408264, at *2 (D.C. Cir. May 5, 1994) (per curiam). Although Simmons argues that he “did
not attempt . . . to evade the officer,” Pl.’s Opp’n to Def. Skelonc’s Mot. at 5, he nonetheless
indicates that refused to stop even after it became clear that Officer Skelonc was speaking to him
and wanted him to stop, Compl. ¶ 15. Considering these circumstances, the force used by Officer
Skelonc—grabbing Plaintiff’s arm—was not objectively unreasonable.
In his Opposition to Officer Skelonc’s Motion to Dismiss, Plaintiff claims that he was
seriously injured when Officer Skelonc grabbed him, contending, “As a result of [Officer Skelonc]
forcefully grabbing Plaintiff's arm and jerking it backwards, the Plaintiff experienced back spasms
and went to the hospital shortly thereafter for injuries to his chest, shoulder, and lower back.” Pl.’s
Opp’n to Def. Skelonc’s Mot. at 3. Plaintiff failed to include this allegation of physical injury in
his complaint; a plaintiff may not amend his complaint by the briefs in opposition to a motion to
dismiss. See, e.g., Kelleher v. Dream Catcher, LLC, 263 F. Supp. 3d 322, 327 n. 1 (D.D.C. 2017);
Perkins v. Vance-Cooks, 886 F. Supp. 2d 22, 29 n. 5 (D.D.C. 2012). Even if the Court were to
consider the severity of the alleged injury, it is not dispositive of whether an officer used excessive
force. See Wardlaw v. Pickett, 1 F.3d 1297, 1304 n.7 (D.C. Cir. 1993) (“Although the severity of
11
[plaintiff’s] injuries is not by itself the basis for deciding whether the force used was excessive, it
does provide some indication of the degree of force [defendant] used.”).
Considering the totality of the circumstances alleged in the Complaint, the Court
concludes that the allegations fail to state a claim for an unreasonable use of force in violation of
the Fourth Amendment
3. Qualified Immunity
Although the Court concludes that the allegations in the Complaint fail to state a plausible
claim of any Fourth Amendment violation, it also finds that Officer Skelonc is entitled to qualified
immunity for his conduct. This conclusion provides an alternative basis for granting Officer
Skelonc’s motion to dismiss.
As noted supra Section II(B), once a defendant asserts a defense of qualified immunity,
the burden then falls to the plaintiff to show that the official is not entitled to qualified immunity.
See Winder, 905 F. Supp .2d at 28. Here, Plaintiff has not “identified a single precedent—much
less a controlling case or robust consensus of cases—finding a Fourth Amendment violation ‘under
similar circumstances.’” Goolsby v. Dist. of Columbia, 317 F. Supp. 3d 582, 591 (D.D.C. 2018)
(quoting Wesby, 138 S. Ct. at 591). Plaintiff cites only Hall v. District of Columbia, 867 F.3d 138(D.C. Cir. 2017) to argue that Officer Skelonc is not entitled to qualified immunity for use of
excessive force; he offers no legal authority—much less a “controlling case”—finding a Fourth
Amendment violation under similar circumstances related to his claim for an illegal seizure. Pl.’s
Opp’n to Def. Skelonc’s Mot. at 6. With respect to the seizure claim, Plaintiff relies only on
general legal principles that Officer Skelonc did not have reasonable articulable suspicion to stop
him. Id. But “citations to such general principles are insufficient to show that no reasonable
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officer would have believed the officers’ actions in stopping [the plaintiff] were constitutional.”
Goolsby, 317 F. Supp. 3d at 592.
As to Plaintiff’s excessive force claim, Plaintiff relies on Hall, a case in which the plaintiff
was “slammed against a wall,” dragged out of a bar, handcuffed, forced to her knees on the
sidewalk, and detained for forty-five minutes before the officers took basic steps to resolve what
turned out to be a false accusation of theft of services. Id. at 145. The Court does not find Hall to
be on point with the allegations described here. See Doe v. District of Columbia, 796 F.3d 96, 104
(D.C. Cir. 2015) (“Ordinarily, in order for the law to be clearly established, there must be a
Supreme Court or [ ] Circuit decision on point, or the clearly established weight of authority from
other courts must have found the law to be as the plaintiff maintains.” (internal citations and
quotation marks omitted)). The officers in Hall used significantly more force than what this
Complaint describes, and so that decision would not convey to a reasonable officer that his conduct
amounted to any “clearly established” constitutional violation. Moreover, in Hall, the court denied
the officer qualified immunity based on the officer’s failure to take basic steps to verify that the
plaintiff actually committed the crime for which she was accused, Hall, 867 F. 3d at 165—not, as
Plaintiff contends, because “the complaint contained no indication that the Plaintiff posed a threat
to the officers or that she had committed a serious offense.” Pl.’s Opp’n. to Skelonc’s Mot. at 6.
Here, unlike in Hall, Officer Skelonc endeavored to verify the identity of the shoplifting suspects
by asking the store manager to identify them. Plaintiff offers no other legal authority and therefore
has failed to carry his burden to demonstrate that Officer Skelonc is not entitled to qualified
immunity. See id. at 6.
Because Plaintiff has failed to “allege sufficient facts to establish that [Officer Skelonc] is
not entitled to qualified immunity,” Patterson, 999 F. Supp. 2d at 311, and has failed to
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demonstrate that “the particular right in question—narrowly described to fit the factual pattern
confronting the [official]—was clearly established,” Dukore, 799 F.3d at 1145, qualified immunity
provides an additional basis for dismissing Plaintiff’s remaining claims against Officer Skelonc.
B. Respondeat Superior Claim Against the District of Columbia (Count VI)
In Count VI of his Complaint, Plaintiff pleads a claim of “respondeat superior” against the
District. Respondeat superior is not a stand-alone tort claim, and there are no remaining claims to
which the theory of respondeat superior could be applied to create liability for the District.
Accordingly, the Court shall dismiss Count VI.
Respondeat superior is not available as a theory of municipal liability for claims brought
under 42 U.S.C § 1983. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978); Bd. Of the County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997) (“We
have consistently refused to hold municipalities liable under a theory of respondeat superior.”).
Plaintiff has conceded that the facts alleged in the Complaint are insufficient to state a plausible
claim for municipal liability based on Officer Skelonc’s actions. Pl’s Opp’n. to Def. D.C.’s Mot.
at 5 (“The Plaintiff agrees that the Complaint fails to allege facts that support a finding of municipal
liability under section 1983.”). Moreover, where, as here, a court concludes that an official is
immune from § 1983 liability, “the District’s liability is precluded.” Dist. of Columbia v. Evans,
644 A.2d 1008, 1018 (D.C. 1994).
To the extent Plaintiff seeks to assert a respondeat superior theory of liability against the
District based upon his common law tort claims—which he has conceded are time-barred— that
argument also fails. “Respondeat superior” is not an independent tort claim, but rather a legal
theory of vicarious liability that transfers liability from an agent to its principals. See Convit v.
Wilson, 980 A.2d 1104, 1114 (D.C. 2009) (“Vicarious liability . . . is merely a legal concept used
14
to transfer liability from an agent to a principal and includes the theory of respondeat superior as
developed in agency law.”) (internal quotation marks omitted); Logan v. Jones Lang LaSalle
Americas, Inc. No. 18-CV-2278 (APM), 2019 WL 1960208, at *1 n.1 (D.D.C. May 2, 2019)
(“‘[R]espondeat superior’ is not a stand-alone claim, but rather a basis for finding Defendants
liable for the conduct of their employees or agents.”).
Plaintiff cites Bostic v. District of Columbia, 906 A.2d 327 (D.C. 2006) for the proposition
that “the District of Columbia may be sued only for the torts of its agent police officers if there
exists a respondeat superior relationship between the officers and the District.” Pl.’s Opp’n to
Def. D.C.’s Mot. at 7 (citing Bostic, 906 A.2d at 331). But that case does not establish that
“respondeat superior” is a stand-alone tort claim. Rather, in Bostic, the plaintiff sued the District
based on tortious acts allegedly committed by a United States Capitol Police officer, contending
that the District was responsible for the officer’s actions. Bostic, 906 A.2d at 329. The District of
Columbia Court of Appeals concluded that the District did not have an agency relationship with
the federal police officer and therefore the complaint had been properly dismissed against the
District. Id. at 329, 331–32. The court did not consider whether “respondeat superior” is a stand-
alone claim, but instead analyzed whether such a relationship existed for the District to be held
vicariously liable for the tortious actions of the individual officer. Plaintiff’s reliance on Bostic,
therefore, is unpersuasive.
Because “respondeat superior” is not an independent tort claim, the Court shall grant the
District’s motion to dismiss.
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IV. CONCLUSION
For the foregoing reasons the Court shall GRANT the motions to dismiss filed by the
District (ECF No. 8) and Officer Skelonc (ECF No. 12) and ORDER that Plaintiff’s Complaint be
dismissed. An appropriate Order accompanies this Memorandum Opinion.
Date: July 29, 2021 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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