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FEIRSON v. DISTRICT OF COLUMBIA

March 30, 2004.

BRUCE AND MARY ANN FEIRSON, Plaintiff's,
v.
DISTRICT OF COLUMBIA, et al., Defendants



The opinion of the court was delivered by: JOHN BATES, District Judge

MEMORANDUM OPINION

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.

BACKGROUND

  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 Page 2 "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).

  STANDARD OF REVIEW

  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)). Page 3

  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.

  ANALYSIS

 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. District of Page 4 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 § 12-309,

  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 ...


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