The opinion of the court was delivered by: JOHN BATES, District Judge
Presently before the Court in this civil rights action brought by
plaintiffs Bruce and Mary Ann Feirson pursuant to 42 U.S.C. § 1983 and
under the common law of the District of Columbia is the motion of
defendant District of Columbia ("the District") for summary judgment.*fn1
The District moves for summary judgment on Sgt. Feirson's common law and
§ 1983 claims, and on Mary Ann Feirson's common law claim for loss of
consortium. For the reasons that follow, the Court will grant in part and
deny in part the District's motion.
This case arises out of Sgt. Bruce Feirson's participation in an
Armament Systems Proficiency ("ASP") training session conducted by the
Metropolitan Police Department ("MPD") on April 27, 2000. The ASP
training, which instructs MPD officers in the use of the ASP baton,
consists of classroom instruction and testing, physical conditioning
exercises and drills, and a
"combat" or "attack" exercise. The combat exercise portion of the ASP
training requires a trainee to engage his training instructor, who plays
the role of a violent suspect, in physical combat and to use the ASP
baton to defend himself. Bruce Feirson was injured while participating in
the combat exercise portion of ASP training.
The Feirsons filed suit against the District, inter alia, on April 26,
2001. Sgt. Bruce Feirson brings two counts against the District, the
first for violating his constitutional rights, privileges, and immunities
under the Fourth, Fifth, and Fourteenth Amendments by intentionally
causing the use of excessive and objectively unreasonable force against
him (Count I, seeking relief under 42 U.S.C. § 1983), and the second
for common law liability for the injuries he sustained from the ASP
training (Count II, brought under the laws of the District of Columbia).
Mary Ann Feirson brings a claim for loss of consortium against the
District (Count III).
Summary judgment is appropriate when the pleadings and the evidence
demonstrate that "there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of
material fact. See Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986).
The moving party may successfully support its motion by "informing the
district court of the basis for its motion, and identifying those
portions of'the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of material fact."
Id (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact
sufficient to preclude summary judgment, the court must regard the
non-movant's statements as true and accept all evidence and make all
inferences in the non-movant's favor. See Anderson v. Liberty Lobby.
Inc. 477 U.S. 242, 255 (1986). A non-moving party, however, must
establish more than the "mere existence of a scintilla of evidence" in
support of its position. Id. at 252. By pointing to the absence of
evidence proffered by the non-moving party, a moving party may succeed on
summary judgment. Celotex. 477 U.S. at 322. "If the evidence is merely
colorable, or is not significantly probative, summary judgment may be
granted." Anderson. 477 U.S. at 249-50 (internal citations omitted).
Summary judgment is appropriate if the non-movant fails to offer
"evidence on which the jury could reasonably find for the [non-movant]."
Id. at 252.
I. Common Law Claims: Notice Under D.C. Code § 12-309
In order to maintain a common law tort claim against the District, a
plaintiff must satisfy the mandatory notice requirement set forth in D.C.
Code § 12-309 (2001), which states:
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
[his] 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. A report in writing by the Metropolitan Police
Department, in regular course of duty, is a sufficient
notice under this section.
The primary purpose of § 12-309 is to provide the District with
sufficient notice to allow it to quickly investigate before evidence
becomes lost or witnesses unavailable; correct hazardous or potentially
hazardous conditions; and settle meritorious claims. See Gwinn v.
Columbia. 434 A.2d 1376
, 1378 (D.C. 1981): see generally H.R. Rep. No.
2010, 72d Cong., 2d Sess. (1933) (describing purposes of statute). The
District asserts that Sgt. Feirson failed to provide the requisite notice
under § 12-309. Sgt. Feirson concedes that he never gave notice to
the Mayor directly, but contends that he provided sufficient notice
through written reports by or to MPD, including his filing of a PD 42
injury report on April 28, 2000, and the cumulative collection of police
reports that include Sgt. Feirson's New Injury Questionnaire (April 28,
2000), Lt. Rodman's Supervisor's Report of Accident (PD 839) dated May
2, 2000, and Lt. Rodman's May 4, 2000 Memorandum to the Commander,
Seventh District, concerning the event.
Sgt. Feirson filed a PD 42 report, the Metropolitan Police Department's
Injury or Illness Report, on the day after the ASP training. In order to
provide sufficient notice to the District under § 12-309, the police
report must contain the same information that is required in any other
notice given under the statute; it must include the approximate time,
place, cause, and circumstances of the injury or damage. See Doe v.
District of Columbia. 697 A.2d 23, 27 (D.C. 1997). The parties do
not dispute that the PD 42 is a report in writing by the Metropolitan
Police Department in the regular course of duty. The District argues,
however, that the PD 42 does not provide the District with sufficient
notice as to the cause and circumstances of the injury.
The District of Columbia Court of Appeals has explained that, under
a written notice or police report must disclose both
the factual cause of the injury and a reasonable basis
for anticipating legal action as a consequence. Such
notice would suffice, therefore, if it either
characterized the injury and asserted the right to
recovery, or without asserting a claim described the
injuring event with ...