*fn3,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,DANNY COSTELLO, AND GAI NGUYEN, PLAINTIFFS, v. DISTRICT OF COLUMBIA, DEFENDANT." />

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Danny Costello, and Gai Nguyen v. District of Columbia

December 1, 2011 *fn3


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


The plaintiffs, Danny Costello and Gai Nguyen, bring this civil lawsuit against the District of Columbia (the "District"), seeking redress for an alleged unlawful search of their apartment in violation of 42 U.S.C. § 1983 (2006), the Fourth Amendment of the United States Constitution, and 18 U.S.C. § 3109 (2006). See Third Amended Complaint for Violation of Civil and Constitutional Rights ("Am. Compl.") ¶¶ 4-23. Currently before the Court is the defendant's motion to dismiss the third amended complaint. Upon careful consideration of the third amended complaint, the defendant's motion, and all memoranda of law relating thereto,*fn1 the Court must grant the defendant's motion.


The third amended complaint contains the following material allegations. The plaintiffs are a married couple who reside at an apartment located in Washington, D.C. Am. Compl. ¶¶ 2, 4. On April 1, 2010, a Judge of the Superior Court for the District of Columbia issued a warrant authorizing a search of the plaintiffs' apartment. Id. ¶¶ 4-5. The search warrant was issued upon a finding of probable cause to believe that the plaintiffs' apartment contained "[m]oney derived from the sale of illegal drugs, paperwork showing dominion control of narcotics, US currency, scales, bank records, mailboxes, safes, similar storage cabinets, photographs, tally sheets, proof of occupancy, receipts, packing, boxes, [and] indicia of sale of weapons." Id. ¶ 5. On April 9, 2010, ten officers from the District's Metropolitan Police Department executed the search warrant. Id. ¶ 4. The officers forcibly entered the plaintiffs' apartment without first knocking and announcing their authority and purpose. Id. When Mr. Costello asked the officers "what was going on," one of the officers "put a gun to his head, told him to shut up, forcefully twisted his arm, handcuffed him, and restricted him to [a] couch" in the apartment. Id. Ms. Nguyen then entered the room and asked "what's wrong," to which another officer "rushed over to her and told her to 'shut up,' pushed Ms. Nguyen against the wall, and forcibly pushed her outside of the apartment." Id. The officers restrained both plaintiffs while they conducted their search. Id. Ultimately, the officers uncovered none of the items listed in their search warrant, nor any other contraband. Id.

The plaintiffs instituted this action on February 16, 2011, and thereafter filed their third amended complaint on April 14, 2011, asserting the following three claims against the District based upon the officers' search of the plaintiffs' apartment: Count I (for violations of the plaintiffs' civil and constitutional rights under 42 U.S.C. § 1983), id. ¶¶ 8-13; Count II (for violations of the plaintiffs' constitutional rights under the Fourth Amendment), id. ¶¶ 14-18; and Count III (for violations of the plaintiffs' constitutional rights under 18 U.S.C. § 3109), id. ¶¶ 19-23. On April 28, 2011, the District moved for dismissal of the third amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that the plaintiffs have failed to state a claim of municipal liability against the District for the officers' allegedly unconstitutional search. Def.'s Mem. at 3-5.


"A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether the complaint properly states a claim on which relief may be granted." Davis v. Billington, 775 F. Supp. 2d 23, 32 (D.D.C. 2011). For a complaint to survive a Rule 12(b)(6) motion, Federal Rule of Civil Procedure 8(a) requires only that it provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although "'detailed factual allegations'" are not required, a plaintiff must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555--57 (2007)), in order to "give the defendant fair notice . . . of what the claim is and the grounds upon which it rests," Twombly, 550 U.S. at 555 (citation omitted). Nor may a plaintiff offer mere "labels and conclusions . . . [or] a formulaic recitation of the elements of a cause of action." Id. at 555. Rather, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). "A complaint alleging facts which are merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Id. (citing Twombly, 550 U.S. at 557) (internal quotation marks omitted).

In evaluating a Rule 12(b)(6) motion, the complaint must be liberally construed in the plaintiff's favor and the Court must accept as true all of the well-pleaded factual allegations made therein. Davis, 775 F. Supp. 2d at 32-33. Nevertheless, while the Court must accept well-pleaded factual allegations, any conclusory allegations are not entitled to an assumption of truth, and even those allegations pleaded with factual support need only be accepted insofar as "they plausibly give rise to an entitlement to relief." Iqbal, 129 S. Ct. at 1950.


A. Municipal Liability Under § 1983 for Alleged Constitutional Violations Section 1983 creates a private cause of action against any person who, acting under color of state or District of Columbia law, deprives another of a federal constitutional or statutory right. 42 U.S.C. § 1983. Under the Supreme Court's decision in Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), "municipalities are liable for their agents' constitutional torts only if the agents acted pursuant to municipal policy or custom . . . . Respondeat superior liability does not apply." Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004) (citing Monell, 436 U.S. at 694). To state a § 1983 claim against the District, then, a plaintiff "must allege not only a violation of his rights under the Constitution or federal law, but also that the [District's] custom or policy caused the violation." Id. (citing Collins v. City of Harker Heights, 503 U.S. 115, 123-24 (1992)). "The plaintiff bears the burden of pleading the existence of a municipal custom or practice that abridge[d] her federal constitutional or statutory rights." Trimble v. District of Columbia, 779 F. Supp. 2d 54, 57 (D.D.C. 2011). A plaintiff may satisfy this burden by alleging that (1) "the municipality or one of its policymakers explicitly adopted the policy that was 'the moving force of the constitutional violation,'" Warren, 353 F.3d at 39 (quoting Monell, 436 U.S. at 694); (2) "a policymaker 'knowingly ignore[d] a practice that was consistent enough to constitute custom,'" Jones v. Horne, 634 F.3d 588, 601 (D.C. Cir. 2011) (quoting Warren, 353 F.3d at 39); or (3) the municipality "failed to respond to a need . . . in such a manner as to show 'deliberate indifference' to the risk that not addressing the need will result in constitutional violations," id. (quoting Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)).

In attempting to identify a municipal custom or policy that caused the alleged violations of their constitutional rights, the plaintiffs claim that the District's officers executed the search warrant on their apartment pursuant to the District's long standing policy, practice, and custom that allows police officers to execute search warrants[] without training its officers how to properly execute a search warrant to insure that [it is] not executed in violation of the requirements of 18 U.S.C. § 3109,*fn2 and the Fourth Amendment of the United States Constitution's prohibition against unreasonable searches and seizures. It is the execution of this long standing policy, practice, and/or custom that caused the Plaintiff's injuries, alleged in this complaint.

Am. Compl. ¶ 7. From these allegations it appears that the plaintiffs are seeking to predicate the District's liability on a failure to train theory. As this Court has recognized, "only in limited circumstances can a municipality's failure to train employees constitute a policy or practice, and thus serve as the basis for municipal liability." Davis v. District of Columbia, ___ F. Supp. 2d ___, ___, 2011 WL 3240439, at *5 (D.D.C. 2011) (Walton, J.) (citing Atchinson v. District of Columbia, 73 F.3d 418, 421 (D.C. Cir. 1996)). The Supreme Court recently expounded in detail upon the standards governing municipal liability based on a failure to train theory:

A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train . . . . To satisfy [§ 1983], a municipality's failure to train its employees in a relevant respect must amount to "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact." Canton [v. Harris, 489 U.S. 378, 388 (1989)]. Only then "can such a shortcoming be properly thought of as a city 'policy or custom' that is actionable under § 1983." Id. at 389 . . . . "'[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." [Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)]. Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program. Id. at 407 . . . . A pattern of similar constitutional violations by untrained employees is "ordinarily necessary" to demonstrate deliberate indifference for purposes of failure to train. [Id. at 409]. Policymakers' "continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the ...

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