The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Ashley Magliore brings this action for damages against the District of Columbia (the "District") and Metropolitan Police Department ("MPD") Officers Larry Brooks and Luis Cartagena, asserting constitutional claims of excessive force and false arrest under 42 U.S.C. § 1983, and common law claims of false arrest, assault and battery, negligence, and malicious prosecution. The defendants have moved for summary judgment. Because Magliore has not shown that the alleged unconstitutional conduct was caused by any District of Columbia policy or practice, judgment will be entered for the District on the § 1983 claims. Because Magliore has not shown that his criminal charges were terminated on the merits in his favor, and his claim of negligence is not distinct from his claims of assault and battery and excessive force, judgment will be entered for the defendants on the malicious prosecution and negligence claims. However, because there are genuine issues of material -fact as to the remaining excessive force, assault and battery, and false arrest claims, the remainder of the defendants' motion will be denied.
One evening, Magliore patronized a tavern named Eye Bar located on I Street N.W. in Washington, D.C. (Pl.'s Stmt. of Mat. Facts Not in Genuine Dispute ("Pl.'s Stmt.") ¶ 3; Defs.' Stmt. of Mat. Facts as to Which There are No Genuine Disputes ("Defs.' Stmt.") ¶ 2.) Cartagena and Brooks were on patrol that night, and they stopped in front of Eye Bar to "watch the crowd." (Pl.'s Stmt. ¶ 27.) Magliore had at least three drinks while inside Eye Bar. (Defs.' Stmt. ¶ 3.) At approximately 11:00 p.m. that evening, Magliore left Eye Bar and saw his friend, Sigidi Mbonisi, engaged in a dispute with Brooks and Cartagena. Mbonisi had been expelled from Eye Bar for, among other things, striking a bouncer. (Defs.' Stmt. ¶¶ 4-5; Pl.'s Stmt. ¶¶ 4-5.) Magliore heard Mbonisi state to the officers that he had not done anything wrong. (Pl.'s Stmt. ¶ 6.) The officers directed Magliore to leave, but Magliore told the officers that he wanted information about the incident to provide to Mbonisi's fiance. (Pl.'s Stmt. ¶¶ 7-8; Defs.' Stmt. ¶ 8.) Brooks grabbed Magliore's arm, causing Magliore to put his hands out and say, "wait, wait, wait." (Pl.'s Stmt. ¶¶ 9-11; Defs.' Stmt. ¶ 9.) Brooks then struck Magliore in the rear left side of his head, leaving a three-inch laceration. (Pl.'s Stmt. ¶¶ 12, 15; Compl. ¶ 4.) Magliore alleges that Brooks and Cartagena also struck him in the ribs, chest, right hand, and left knee with asp batons. However, Magliore did not specifically remember the blows to his ribs, left knee, and chest. (Pl.'s Stmt. ¶ 14; Defs.' Stmt. ¶ 12.) An eyewitness, Ilyas Mumin, saw the officers beat Magliore with their batons, and later kick him while he was on the ground in handcuffs. (Pl.'s Stmt. ¶¶ 21, 22.) Magliore was taken to a local hospital, where, in addition to the laceration on his head, he was diagnosed with five fractured ribs. (Pl.'s Stmt. ¶ 16.) Magliore was arrested and charged with assaulting Brooks and resisting arrest. (Defs.' Stmt. ¶ 15.) Magliore denied assaulting Brooks or resisting arrest, and Mumin said Magliore had not been physically aggressive toward the officers. (Pl.'s Stmt. ¶¶ 12, 26.) The charges were eventually dropped. (Defs.' Stmt. ¶ 15.)
Magliore filed this six-count complaint against the District, Brooks and Cartagena alleging claims under 42 U.S.C. § 1983 for violating Magliore's Fourth Amendment rights to be free from police use of excessive force (Count 1) and from false arrest (Count 4); a claim for common law assault and battery (Count 2); a claim for negligence for Brooks' and Cartagena's failure to use reasonable care in the performance of their official duties, and for the defendants' failure to have a sufficient number of police officers present at Eye Bar (Count 3); a claim for common law false arrest (Count 5); and a claim for malicious prosecution (Count 6). The defendants have moved for summary judgment. They argue that judgment should be entered against Magliore on his § 1983 claims because he failed to establish municipal liability against the District, and his claims do not rise to the level of violations under § 1983. The defendants further seek judgment against Magliore on his negligence, false arrest and malicious prosecution claims. They argue that a negligence claim joined with an intentional force claim against police cannot survive without distinct facts, missing here, reflecting negligence. They add that the evidence in the record establishes that Magliore was lawfully arrested for assaulting a police officer and resisting arrest, and he has not shown that the dismissal of his charges was with prejudice. Finally, the defendants assert that no evidence supports the excessive force and assault and battery claims against Cartagena.*fn1 Magliore opposes the defendants' motion.
"'Summary judgment may be appropriately granted when the moving party demonstrates that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law.'" Pueschel v. Nat'l Air Traffic Controllers Ass'n, 772 F. Supp. 2d 181, 183 (D.D.C. 2011) (quoting Bonaccorsy v. Dist. of Columbia, 685 F. Supp. 2d 18, 22 (D.D.C. 2010) (citing Fed. R. Civ. P. 56(c)). "'In considering a motion for summary judgment, [a court is to draw] all 'justifiable inferences' from the evidence . . . in favor of the non-movant.'" Pueschel, 772 F. Supp. 2d at 183 (quoting Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "The relevant inquiry 'is the threshold inquiry of determining whether there is a need for a trial - - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307, 312 (D.D.C. 2009) (quoting Anderson, 477 U.S. at 250) (overruled on other grounds by Prime Time Int'l Co. v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010)).
A court should determine that a genuine issue is present in a case where the "evidence is such that a reasonable jury could return a verdict for the non-moving party," a situation separate and distinct from a case where the evidence is "so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 248, 252.
Count 1 alleges that Brooks and Cartagena, acting under color of their authority as police officers and acting within the scope of their employment by the District, violated Magliore's Fourth Amendment right to be free from the use of excessive force. (Compl. ¶¶ 3, 8.) The District argues that judgment should be entered against Magliore on Count 1 of his complaint to the extent it seeks to impose liability against the District because Magliore has failed to establish any municipal liability.
Section 1983 makes it unlawful for a person acting under color of District of Columbia law or custom to deprive one of his federal constitutional or statutory rights. 42 U.S.C. § 1983. To state a claim under § 1983 against the District of Columbia, a plaintiff "must allege not only a violation of his rights under the Constitution or federal law, but also that the municipality's custom or policy caused the violation." Warren v. Dist. of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004). The District can be held liable under § 1983 only if its policy or custom causes the plaintiff's injury; it will not be held liable on a theory of respondeat superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-94 (1978).
The plaintiff bears the burden of pleading the existence of a custom or practice that abridged his federal constitutional or statutory rights. Bonaccorsy, 685 F. Supp. 2d 18 at 26. A plaintiff can establish the existence of a policy or custom by showing that "the municipality or one of its policymakers explicitly adopted the policy that was 'the moving force of the constitutional violation,'" or that a policymaker "knowingly ignore[d] a practice that was consistent enough to constitute custom." Warren, 353 F.3d at 39 (quoting Monell, 436 U.S. at 694). A plaintiff can also allege that the District showed deliberate indifference to a risk and that not addressing that risk resulted in constitutional violations. See Barnhardt v. Dist. of Columbia, 425 Fed. Appx. 2, 2-3 (D.C. Cir. 2011); Warren, 353 F.3d at 39 (citing Baker v. Dist. of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)). However, "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy," City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985); see also Konah v. Dist. of Columbia, Civil Action No. 10-904 (RMU), 2011 WL 4056673, at *8 (D.D.C. September 14, 2011); Byrd v. Dist. of Columbia, 297 F. Supp. 2d 136, 139 (D.D.C. 2003), or unless a single action actually establishes the District's policy. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). Accordingly, demonstrating a single instance of a constitutional violation -- that does not itself establish municipal policy -- without connecting it to an existing, unconstitutional policy is not sufficient to establish municipal liability under § 1983. Bonaccorsy, 685 F. Supp. 2d at 27.
Here, Magliore has conceded this issue by completely failing to address or rebut the District's arguments. See Fed. R. Civ. P. 56(e)(2) ("If a party fails to . . . properly address another party's assertion of fact . . ., the court may . . . consider the fact undisputed[.]"); CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986); Maib v. F.D.I.C., 771 F. Supp. 2d 14, 20 (D.D.C. 2011); Felter v. Salazar, 679 F. Supp. 2d 1, at 4 n.2 (D.D.C. 2010). Therefore judgment will be entered for the District on Count 1 to the extent Magliore seeks to impose municipal liability. Since Magliore has neither pled nor proven the requisite municipal policy as ...