The opinion of the court was delivered by: Gladys Kessler U.S. District Judge
This action, brought under 42 U.S.C. § 1983 and common law, is before the Court on Defendants' motion to partially dismiss Plaintiff's second amended complaint or for partial summary judgment. Based upon the parties' submissions and the entire record, the Court will grant Defendants' motion in part and deny it in part.
This action arises from Plaintiff's encounter on January 3, 2002, with three officers of the Metropolitan Police Department ("MPD"). Plaintiff alleges that while driving from a nightclub in the District of Columbia, gun shots were exchanged between passengers in his car and another car. 2nd Am. Compl. ¶ 17. While "retreat[ing] from the shooting . . . Plaintiff's vehicle collided with a white Mitsubishi automobile. Plaintiff's airbags deployed, and he lost consciousness." Id. ¶ 18. Plaintiff's car was soon surrounded by police officers, one of whom "punched out the window and struck Plaintiff in his face [bringing him] back to consciousness." Id. The officers then pulled Plaintiff from the car through the driver's side window, and one officer proceeded to punch him "repeatedly in the face, and another  officer punched [him] in the stomach," causing Plaintiff to "double over" presumably in pain. Id. ¶ 19. The officers continued to kick and punch Plaintiff while "yelling racially charged insults at him." Id. One officer slammed Plaintiff to the ground face down, and "stepp[ed] hard on the back of Plaintiff's head. The officers pushed Plaintiff into the gravel, causing abrasions on his face and arms." Id. While on the ground, Plaintiff was "struck in the face with a blunt object," which fractured his nose and caused him again to lose consciousness. Id. Plaintiff "suffered head trauma, developed bruises in both of his eye sockets and [suffered] pain in his lower back." Id.
Plaintiff alleges that during his transport to the police station, officers refused his request to be taken to a hospital. After sitting at the police station for "four to five hours," Plaintiff was taken to D.C. General Hospital. Id. ¶ 21. Despite his complaints to police officers, Plaintiff sat at D.C. General Hospital for 12 hours without seeing a doctor and was then transported back to the police station where he sat for "another four to five hours" until his transport to the Central Detention Facility ("CDF"). Id. ¶ 22. After "another four to five hours" at CDF, Plaintiff was examined by a nurse who "gave him some over-the-counter pain medication, and told him that there was nothing wrong with him." Id. ¶ 23. When Plaintiff finally saw a doctor, he was told that he "had a broken nose and required an X-ray," but a month passed without the taking of an X-ray or further medical treatment. Id. ¶ 24. When Plaintiff complained, he was given "over-the-counter pain medications that were ineffective in treating his severe pain." An X-ray was never taken. Id.
Plaintiff names as defendants the District of Columbia, former Mayor Anthony Williams, former Police Chief Charles H. Ramsey, and MPD officers Curtis Jones, Curtis Reed and Stanley Rembish. He sues the police officers in their individual and official capacities under 42 U.S.C. § 1983 for allegedly violating his rights under the Fourth and Fifth Amendments to the United States Constitution, and under common law. See 2nd Am. Compl., Counts 1-III, V. He sues the District of Columbia for Fifth Amendment violations and under common law ( Counts IV, VI-VII) and Ramsey and Williams in their individual capacities under common law (Counts VIII-IX).
Because the Court will rely on matters beyond the pleadings, it will employ the standard for summary judgment, except as later discussed. See Fed. R. Civ. P. 12(b)(6) (conversion clause). Summary judgment is warranted if the movant shows that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317 (1986). As a general rule, "[i]n deciding whether there is a genuine issue of fact before it, the court must assume the truth of all statements proffered by the party opposing summary judgment." Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999). All reasonable inferences that may be drawn from the facts must be drawn in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-movant, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Id., 477 U.S. at 248. Thus, when facts are not controverted in opposition to a summary judgment motion, the Court "may assume that facts identified by the moving party in its statement of material facts are admitted." Local Civil Rule 7(h).
A. Plaintiff's Federal Claims
1. Plaintiff Failed to Exhaust His Administrative Remedies with Respect to Count IV
Defendants seek dismissal of Counts IV and V, arising from the alleged unconstitutional denial of medical treatment, on the ground that Plaintiff failed to exhaust his administrative remedies by appealing his grievance to the Director (the final step of the Department of Corrections Inmate Grievance Procedure ("IGP")). See Def.'s Ex. 1 at 6.*fn1 Pursuant to the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The United States Supreme Court has determined that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong," Porter v. Nussle, 534 U.S. 516, 532 (2002), and that "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules. . . ." Woodford v. Ngo, 548 U.S. ___, 126 S.Ct. 2378, 2386 (2006).
Plaintiff does not dispute that he did not appeal his grievance to the Director. Rather, he asserts that he "substantially complied with the inmate grievance procedures that were available to him." Pl.'s Statement of Disputed Material Facts ¶ 3. Specifically, Plaintiff states that he "filled out a grievance form stating that I had not received medical treatment for injuries I suffered during my arrest. . . . After I did not receive a response to that form, I filled out a second, 'remedy appeal' form. . . . In the entire time I was in District of Columbia Department of Corrections custody[,] I never received any response to any of my grievance forms." Pl.'s Ex. 1 (Declaration of Harold Linares ¶¶ 4, 6, 8).
Plaintiff does not state when he pursued his grievance, and he has not provided copies of the grievance forms or requested discovery as a possible means of obtaining said copies. Thus, there is no proof in the record that his grievance was in compliance with the IGP's time constraints. The IGP provides for an appeal first to the Associate Director for Institutions and finally to the Director. Def.'s Ex. 1 at 6. "Whenever a grievance does not receive a response within the prescribed response time . . . the inmate may proceed to the next step in the grievance procedure." Id. at 5. Plaintiff has not proffered any evidence that contradicts Defendants' evidence indicating that he did not take the final step of appealing to the Director, see Affidavit of ...