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Moreno v. District of Columbia

United States District Court, District of Columbia

February 28, 2013

Isabel MORENO et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA et al., Defendants.

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[Copyrighted Material Omitted]

Page 95

Isabel Moreno, Washington, DC, pro se.

David Moreno, Washington, DC, pro se.

Kerslyn D. Featherstone, Office of Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Plaintiff Isabel Moreno, acting on behalf of himself and his minor son David Moreno, sues the District of Columbia, the Metropolitan Police Department (" MPD" ), and MPD officers Edward Stewart and Samuel Swarn under 42 U.S.C. § 1983, and the common law. The complaint arises out of alleged physical and mental injuries the Morenos suffered during an incident that occurred at their home on March 10, 2009. Mr. Moreno seeks compensatory and punitive damages.

The District of Columbia and MPD move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment pursuant to Rule 56 on the grounds, among others, that the complaint fails to state constitutional claims and that the Morenos failed to comply with the District's statutory notice requirements applicable to the common law claims. See Defs. District of Columbia and District of Columbia MPD's Mot. to Dismiss,

Page 96

or, in the Alternative, Mot. for Summ. J. [Doc. # 6]. Upon consideration of the District and MPD's motion to dismiss and Mr. Moreno's opposition, Pl.'s Response to Defs. District of Columbia and District of Columbia MPD's Mot. to Dismiss [Doc. # 9], the Court will grant the motion in part and deny it in part.

Defendants Swarn and Stewart have also moved to dismiss under Rule 12(b)(6) on the grounds that the complaint fails to state constitutional and common law claims against them and that Isabel Moreno's common law claims are time-barred. Defs. Samuel Swarn and Edward Stewart's Mot. to Dismiss [Doc. # 14]. Mr. Moreno has not complied with the Order of December 10, 2012, to oppose Officers Swarn and Stewart's motion to dismiss by the latest deadline of February 11, 2013. See Min. Order of Jan. 11, 2013 (granting Mr. Moreno's motion for an enlargement of time).

In all fairness, the record does not support the granting of Officers Swarn and Stewart's unopposed motion to dismiss as conceded. In seeking an enlargement of time to respond to the Officers' motion to dismiss, Mr. Moreno stated that he does not speak English and " all correspondence from the court has come to me in English. My court appointed attorney withdrew from the case and I have been seeking other counsel." Pl.'s Mot. for Extension of Time [Doc. 16]. Indeed, it is obvious from a comparison of Mr. Moreno's cryptic opposition to the District of Columbia's dispositive motion with the well-pled complaint that Mr. Moreno did not draft the complaint and was most likely assisted by an attorney— albeit not one " appointed" by this Court. Mr. Moreno has not filed a motion for counsel in this case, and the Court has not yet issued an order appointing counsel. Considering Mr. Moreno's admitted limitations, obvious confusion, and apparent inability to retain counsel, the Court, having considered the factors for appointing counsel under Local Civil Rule 83.11, will appoint counsel to represent Mr. Moreno in further proceedings. Officers Swarn and Stewart's unopposed motion to dismiss will be held abeyance pending completion of the appointment process and further order of the Court.

BACKGROUND

Mr. Moreno " was born in El Salvador and has little formal education and little or no understanding of English." Compl. ¶ 8. Mr. Moreno alleges that on March 10, 2009, " Officer Edward Stewart and others forced entry into [his] home ... [,] struck him about the mouth[,]" detained him and his son David, and " fatally shot [his] dog, Sammy." Compl. ¶¶ 1, 11. Mr. Moreno alleges that the Defendants acted in such a manner even though he had " peacefully responded to the police requests when they entered into his home." Id. ¶ 42. As a result of the alleged encounter, Mr. Moreno alleges that he suffered damage to his face, jaw, and mouth " commensurate with blunt force trauma," and " an abscess in the roof of [his] mouth that has since been removed." Id. ¶¶ 14-16. Mr. Moreno states that his " jaw is still out of place and he suffers from a permanent condition which can only be resolved with further surgery and treatment." Id. ¶ 17. Mr. Moreno alleges further that his son David " has been traumatized ... and is seeking treatment to deal with the stress caused by the unauthorized and excessive force used by the Defendants." Id. ¶ 18.

According to the MPD " Incident-Based Event Report" prepared by Officer Swarn, Stewart and other police officers responded to " a report of a suspiscious [sic] Hispanic Male climbing through an upstairs window" at Mr. Moreno's ...


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