Before Terry and Steadman, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Steadman, Associate Judge:
Appeal from the Superior Court of the District of Columbia (Hon. Evelyn E. Crawford Queen, Trial Judge)
Maurice Gross, as "brother and next friend of James Spears," *fn1 brought suit against the District of Columbia and unidentified Metropolitan Police Department (MPD) officers for common law and constitutional torts stemming from an alleged incident of police brutality against Spears at a bar near Howard University. The trial court granted the District's motion to dismiss or for summary judgment. *fn2
The principal issues on appeal are (1) whether the failure to timely file the notice required by D.C. Code § 12-309 (1995) is excused by Spears' alleged non compos mentis condition, and (2) whether Gross's proffered evidence to establish "deliberate indifference" by the District in training and supervision of its police officers was sufficient to survive summary judgment on a claim under 42 U.S.C. § 1983 (1994 & Supp. II 1996).
We affirm the grant of summary judgment regarding the claims against the District. We also uphold dismissal, but without prejudice, of the claims against the unidentified police officers.
I. Allegations and Proceedings
Gross' version of events was as follows. On February 16, 1993, James Spears was at a club called the Basement near Howard University, dancing on stage and singing with the band. Earlier in the evening Spears had smoked marijuana twice. He bumped into an off-duty police officer serving as a bouncer. The officer told him to get off stage and he did. He later went back on stage to dance. Approximately ten police officers entered the club to start breaking up the party and told him to get off the stage, and he complied. The police officers surrounded him and said he was going downtown. Spears pushed an officer's hands off of him, and one officer pulled a gun and held it in his face. Spears knocked the gun away. He was then beaten up by the officers in the club and taken outside. There he was slammed on the concrete ground, his face was stomped on, and he was beaten some more. An officer put a billy club around his neck and tried to choke him. He was then thrown in a police van, made to throw up, and his head was pushed into his own vomit, nearly suffocating him. He was later taken out of the van and put on a stretcher and taken to D.C. General Hospital. Subsequently he was taken to St. Elizabeths Hospital and then released. *fn3 No charges were ever filed against Spears.
At the time of the events, Spears was a Howard University junior. Spears' affidavit indicates that he remained at Howard through the spring of 1994. Spears also held jobs at Blue Cross/Blue Shield in 1994-1995 but was then placed on leave for mental health reasons. Subsequently Spears had various mental health problems and was arrested for assault and found not guilty by reason of insanity in Michigan. He was housed in a Michigan state mental hospital in 1996.
On February 16, 1996, Gross filed suit against unnamed District police officers and, in addition, the District on the theory of respondeat superior liability, alleging common law torts for negligence, assault and battery (excessive use of force), and false arrest. Gross also sought damages for violation of Spears' civil rights under 42 U.S.C. § 1983 from the officers and, in addition, from the District based on an alleged municipal custom or policy that led to the alleged violations by the unnamed police officers. On this same date, plaintiff's counsel sent notice of this action to the Mayor of the District. The officers involved in the incident have never been identified nor served with the summons and complaint.
The District moved to dismiss or alternatively for summary judgment. *fn4 With respect to the common law claims, the District's motion to dismiss asserted that Gross failed to provide the notice required by D.C. Code § 12-309 and, in addition, raised the defense of statute of limitations. With respect to the claim of municipal liability under 42 U.S.C. § 1983, the District asserted that Gross failed to allege facts sufficient to establish a District custom or policy that caused the constitutional violations alleged and that it could not be held liable under a theory of respondeat superior. In support of its motion, the District presented the affidavit of Police Chief Thomas regarding Metropolitan Police Department (MPD) training and policies, District and Congressional standards regarding use of excessive force, and the creation and existence of the Civilian Complaint Review Board (CCRB).
Gross filed an opposition to the motion, along with supporting exhibits, and asked the court to treat the motion as one for summary judgment and to consider all the information and affidavits. The supporting exhibits included unsigned affidavits of Ugo, a band member at the club the night of the incident, and a doctor friend with whom Spears stayed after the alleged incident. Gross also supplied the March 17, 1997 affidavit of Dr. Baxter, Spears' treating psychiatrist in Michigan, stating that Spears was non compos mentis from the time of the alleged incident. An affidavit from Robert W. Klotz, *fn5 appellant's police expert, stated that the unnamed officers violated the Fourth Amendment and that their violations were caused by deficiencies in the District's police training program. Klotz based his opinion on the following: Spears' answers to interrogatories, a conversation with Ugo, two Supreme Court cases, police assault/false arrest cases for the years 1987-1991, and his involvement in over 30 cases in the prior five years. He concluded that there were the following problem areas in the MPD: (1) officers were not receiving in-service refresher training; (2) there had been no periodic evaluation of officers since 1986; (3) the CCRB was inefficient and ineffective in that it had huge backlogs and officers knew that they would seldom be disciplined; and (4) problems with training were indicated by a GAO report and Chief Thomas' admitted plan to overhaul training.
The trial court granted the District's motion to dismiss or for summary judgment, crossing out the words "summary judgment" on the form that was submitted by the District. Although the order references only defendant District of Columbia, the parties agreed at oral argument that the order should be interpreted as applying not only to the District but also to all the unknown police officers. *fn6
II. Summary Judgment for the District
As a preliminary matter, Gross asserts that the trial court's order should be reviewed as a dismissal in favor of the District under Rule 12(b)(6), and that his complaint clearly was not subject to dismissal on that basis. However, the District's motion to dismiss or for summary judgment presented substantial evidence beyond the pleadings, and both the District and Gross filed extensive exhibits and affidavits. The trial court thus was required to treat the motion to dismiss as a motion for summary judgment. *fn7
Super Ct. Civ. R. 12(b) states in pertinent part (emphasis added):
"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." See, e.g., Kitt v. Pathmakers, Inc., 672 A.2d 76, 79 (D.C. 1996) (citing American Ins. Co. v. Smith, 472 A.2d 872, 873-74 (D.C. 1984)); Fulwood v. Porter, 639 A.2d 594, 598 (D.C. 1994).
Gross makes no claim that he did not have a sufficient opportunity to respond to the District's motion and to present all material pertinent to such motion. As we have often said, on appeals from the grant of summary judgment, "[t]his court conducts an independent review of the record, but the substantive standard is the same as that utilized by the trial court." Millstein v. Henske, 722 A.2d 850, 853 n.7 (D.C. 1999) (internal ...