The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff Eugene Hunter filed suit against the District of Columbia
and Metropolitan Police Department Officer Krister Suter, asserting
claims under 42 U.S.C. § 1983 (Count I), 42 U.S.C. §§ 1981, 1985, and
1986 (Count II), and common law claims for false arrest and false
imprisonment (Count III), assault and battery (Count IV), negligent
infliction of emotional distress (Count V), intentional infliction of
emotional distress (Count VI), negligent supervision and repondeat
superior (Count VII), equitable relief (Count VIII), and negligence
(Count IX). Am. Compl. ¶¶ 46-104. Presently before the Court is
Defendants'  Motion for Partial Summary Judgment and/or Motion to
Dismiss Counts I, II, III (as to Officer Suter only), IV (as to
Officer Suter only), V, VI, VII (negligent supervision only), VIII,
and IX. Defendants do not move to dismiss Counts III and IV as to the
District of Columbia, or Count VII to the extent it asserts a claim
for respondeat superior. Also pending before the Court is Plaintiff's
 Motion to Strike Notice of Supplemental Authority. Upon review of
the parties' submissions, the
relevant legal authorities, and the record as a whole,*fn1
the Court shall grant Defendants' motion for summary judgment
as to Counts I, II, III (as to Officer Suter only), IV (as to Officer
Suter only), V, VI, VII (negligent supervision only), and IX. The
Court shall also dismiss Count VIII for lack of subject matter
jurisdiction. The Court will deny Plaintiff's motion to strike.
Plaintiff was arrested on February 27, 2007 around 9:00 PM, and charged with possession of an open container of alcohol. Def.'s Stmt. ¶¶ 1-2.*fn2 Plaintiff alleges he was sitting in his parked car near his residence when several Metropolitan Police Department ("MPD") officers approached the vehicle, asked how Plaintiff was doing, and began to search the vehicle. Am. Compl. ¶¶ 7-13. The MPD officers were later identified as Officers Joseph Chaplin, Frank Bauserman, Jeffrey Leslie, and Krister Suter. Def.'s Stmt. ¶ 3. One of the officers asked Plaintiff to step out of the vehicle, placed him in handcuffs, and moved him to the rear of the vehicle. Am. Compl. ¶¶ 14-15. While some of the officers continued to search Plaintiff's vehicle, Plaintiff was allegedly pushed to the ground and forced to lie handcuffed, face down, while an officer knelt on Plaintiff's back. Id. at ¶¶ 17, 20-22. At some point, Plaintiff's girlfriend exited their residence and asked the Officers why Plaintiff was on the ground. Id. at ¶¶ 23-24. When Plaintiff tried to tell his girlfriend to go back inside their residence, the officer holding Plaintiff to the ground purportedly grabbed and twisted Plaintiff's leg, before hitting it with a baton, allegedly breaking Plaintiff's leg. Id. at ¶¶ 24-27. While the parties dispute which officer initially handcuffed Plaintiff, the parties agree Officer Suter did not push Plaintiff to the ground or twist and strike Plaintiff's leg. Def.'s Stmt. ¶ 8. Plaintiff was later transported to the police station, where Plaintiff allegedly requested but did not receive medical care for his leg. Am. Compl. ¶¶ 34, 37. Plaintiff signed a "Collateral/Bond Receipt," which informed Plaintiff he was "agreeing to waive [his] right to a hearing in court, and the case against [him] will be concluded without an admission of guilt." Pl.'s Ex. 11 (2/22/2007 Collateral/Bond Receipt). Plaintiff paid the $25.00 collateral required by this "post and forfeit" procedure, and was released from MPD custody just over one hour later, at 10:17 PM that same evening. Id.
Plaintiff initially filed suit against the District of Columbia, the MPD Chief of Police, Officer William Suter, Officer Krister Suter, and several John Doe officers and supervisors on February 22, 2008. Compl., ECF No. . The Amended Complaint was filed September 24, 2008. Am. Compl., ECF No. . Officer William Suter, the Chief of Police, and the Doe defendants were subsequently voluntarily dismissed by Plaintiff, leaving only the District of Columbia and Officer Krister Suter as defendants. 1/12/2009 Order, 2/11/11 Order, & ECF No.  (2/16/11 Notice of Voluntary Dismissal as to Doe Defendants).
Defendants style their motion as one for summary judgment pursuant to Federal Rule of Civil Procedure 56, or in the alternative, a motion to dismiss pursuant to Rule 12(b)(6).*fn3 Plaintiff argues the motion should be treated as one for summary judgment. Pl.'s Opp'n at 22-24. With one exception, the Court agrees. Defendants moved to dismiss Count VIII, seeking equitable relief, on the grounds Plaintiff lacks standing. The thrust of this argument is one for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Therefore the Court shall treat Defendants' motion as one for summary judgment for all counts except Count VIII, which shall be treated as a motion under Rule 12(b)(1).
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials); or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e). When considering a motion for summary judgment, the court may not make credibility determinations or weigh the evidence; the evidence must be analyzed in the light most favorable to the nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).
The mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Liberty Lobby, 477 U.S. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. For a dispute about a material fact to be "genuine," there must be sufficient admissible evidence that a reasonable trier of fact could find for the nonmoving party. Id. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted). The adverse party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute. See Ass'n of Flight Attendants-CWA v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
With regards to Plaintiff's claim for equitable relief, in determining whether the Court has subject matter jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) ("[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction."). "At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). "Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff['s] factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted). The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence, Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 90 (D.D.C. 2000).
A. Claims Conceded By Plaintiff
In his opposition, Plaintiff agreed to dismiss Count II in its entirety against both Defendants, and to dismiss the claim for negligent supervision against the District in Count VII. In responding to Defendants' arguments regarding Count I (42 U.S.C. § 1983), Plaintiff conceded "Officer Suter should not be held individually liable for the violation of Plaintiff's Constitutional rights." Pl.'s Opp'n at 24. This apparent concession is bolstered by the fact Plaintiff fails to counter Defendants' arguments regarding Officer Suter's liability under Section 1983. SeePl.'s Opp'n at 24-30. Plaintiff also appears to have abandoned his claim for negligence against the District, apart from the claim for respondeat superior which is not the subject of the District's motion for summary judgment. In his opposition, Plaintiff deliberately omits the allegations of failure to investigate and failure to prevent injury in quoting the Amended Complaint. See Pl.'s Opp'n at 33 (quoting Am. Compl. ¶ 103). The only specific references to the District of Columbia in the Opposition rely on Plaintiff's Expert Report. The Expert Report however, supports only a claim for failure to supervise, which Plaintiff specifically abandoned. Pl.'s Ex. 8 at 3-4 ("[I]f the supervisors of these officers failed to see that the required reports were made and failed to conduct an investigation into this event, this would be contrary to national and local police standards."). Therefore, the Court shall grant Defendants' motion for summary judgment as to Count I (as to Officer Suter), Count II, Count VII (negligent supervision only), and Count IX (as to the District) as conceded.
B. Count I: Section 1983 As To The District Of Columbia
Count I of the Amended Complaint alleges the District is liable under 42 U.S.C. § 1983 for violations of Plaintiff's constitutional rights to Due Process, freedom from unreasonable search and seizure, freedom from excessive use of force, and equal protection. Am. Compl. ¶ 47. Section 1 of the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Where, as here, the plaintiff seeks to hold a municipality liable under Section 1983, there is a two part inquiry: first, the plaintiff must establish a predicate constitutional violation, and second, the plaintiff must establish that a "policy or custom"*fn4 of the municipality caused the constitutional violation. Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008). Defendants contend the Plaintiff's claim fails at each level, arguing that (1) Plaintiff has failed to establish an underlying constitutional violation because there are no constitutional claims pending against any individuals defendants; and (2) Plaintiff failed to identify any "policy or custom" of the District that caused the alleged constitutional violation(s). ...