United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For SHEIKH SHAHID, Plaintiff: Charles C. Parsons, CHARLES C. PARSONS & ASSOCIATES, CHTD., Washington, DC.
For NICOLE SPADY, Officer, Second District, Metropolitan Police Department, Washington, D.C., GREGORY CURRY, Officer, Second District, Metropolitan Police Department, Washington, D.C., DISTRICT OF COLUMBIA, Defendants: David A. Jackson, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.
For YFE, INC., Defendant: Steven Michael Oster, LEAD ATTORNEY, OSTER LAW FIRM, Washington, DC.
COLLEEN KOLLAR-KOTELLY, United States District Judge.
This action arises from injuries that Plaintiff Shahid Sheikh suffered at the hands of individuals who are not parties to this action in a public space near several Alcohol Beverage Control (" ABC" ) licensees in the District of Columbia. Plaintiff brought this action against several defendants in this Court: the District of Columbia; Metropolitan Police Department officers Nicole Spady and Gregory Curry (" Officer Defendants" ); and three Alcohol Beverage Control licensed establishments (" ABC Establishment Defendants" ), YFE, Inc. (operating 18th Street Lounge), HAK LLC (operating Midtown Lounge), and Inner Circle 1223, LLC (operating Dirty Martini Inn Bar). Essentially, Plaintiff alleges that Officer Spady and Officer Curry failed to prevent Plaintiff from being injured by third parties and asserts that the District of Columbia and the ABC Establishment Defendants are liable as well for the injuries that resulted. Plaintiff asserts causes of action for negligence and for violations of the Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution
pursuant to 42 U.S.C. § 1983. Specifically, Plaintiff asserts two section 1983 claims against the Officer Defendants (Count I, which alleges a failure to protect Plaintiff, and Count II, which alleges a conspiracy to cover up the failure to protect Plaintiff); a section 1983 claim against the District of Columbia (Count III); and a negligence claim against each defendant (Count IV).
The District of Columbia, the Officer Defendants, and YFE each move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Presently before the Court are the District of Columbia's  Motion to Dismiss, the Officer Defendants'  Motion to Dismiss, and YFE's  Motion to Dismiss the Amended Complaint. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court GRANTS each motion to dismiss. The Court concludes that, with respect to each defendant, the Amended Complaint fails to state a claim upon which relief may be granted. Accordingly, the Court dismisses every claim against the District of Columbia, the Officer Defendants, and YFE. In addition, for the same reasons that the Court dismisses the negligence claim against YFE, the Court sua sponte dismisses the claims against the two bar defendants, HAK LLC and Inner Circle 1223, LLC, that have not entered an appearance. Because there are no claims remaining, the Court DISMISSES this action in its entirety.
For the purposes of these motions, the Court accepts as true the well-pleaded allegations
in Plaintiff's Amended Complaint. The Court does " not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315, 411 U.S.App.D.C. 105 (D.C. Cir. 2014).
In the early morning hours of February 27, 2011, Plaintiff and his companions exited the Current Lounge in the 1200 block of Connecticut Avenue, N.W., in Washington, D.C. Am. Compl., Prelim. Statement of Facts at 4; see id.¶ 1. Upon exiting the Current Lounge, Plaintiff and a companion were confronted by and threatened by several people who had exited a nearby ABC licensed establishment. Id.¶ 7. Meanwhile, three ABC licensed establishments -- YFE, Inc. (operating 18th Street Lounge), HAK LLC (operating Midtown Lounge), and Inner Circle 1223, LLC (operating Dirty Martini Inn Bar) -- had arranged with the Metropolitan Police Department for a reimbursable detail, pursuant to D.C. Code § 25-798, that was ongoing at the time of these events. Id.¶ 3. A reimbursable detail is " an assignment of MPD officers to patrol the surrounding area of an [ABC] establishment for the purpose of maintaining public safety, including the remediation of traffic congestion and the safety of public patrons, during their approach and departure from the establishment." D.C. Code § 25-798. Officers Spady and Curry were assigned to the reimbursable detail, serving as uniformed police officers in Plaintiff's vicinity at the time when Plaintiff exited the Current Lounge. Am. Compl. ¶ 1; id., Prelim. Statement of Facts at 4. Plaintiff and his companion approached Officers Spady and Curry at their " duty station" and pointed out people lurking menacingly and asked the officers to protect Plaintiff and his companion from these assailants. Id.¶ 8. Officers Spady and Curry allegedly refused Plaintiff's pleas for protection. Id.¶ 10. Plaintiff was then assaulted by these would-be assailants and suffered severe permanent and painful injuries. Id.¶ 11.
After the incident, on February 27, 2011, Officers Spady and Curry filed a police report without referencing any failure to intervene by the Officer Defendants. Id.¶ 15; see District of Columbia's Supp. Mem., Ex. 1 at 1. Plaintiff made a written complaint to the Metropolitan Police Department, " pointing out the substandard conduct of Defendants Spady and Curry and their violations of his constitutional rights." Am. Compl. ¶ 16. Plaintiff does not indicate when this complaint was submitted or to whom it was submitted; nor does Plaintiff provide a copy of the complaint. See id. It does not appear that this complaint corresponds to any of the police reports provided by the District of Columbia or that the complaint is referenced in those reports. See generally District of Columbia's Supp. Mem., Ex. 1. Subsequently, Officers Spady and Curry executed a supplemental report, which did not reference any failure to intervene by the officers. Am. Compl. ¶ 17. The District of Columbia has provided two reports that could match the description of the supplemental report in the Amended Complaint. The first is a " Supplement Report," dated March 1, 2011, which states that Plaintiff visited the police station to report additional facts regarding the incident. See District of Columbia's Supp. Mem., Ex. 1 at 10. The second is a " Supplement Report," dated March 10, 2011, which recounts the events surrounding the incident. See id., Ex. 1 at 13-17. Neither of these supplement reports references any actions by police officers before or during the incident. See id., Ex. 1 at 9-10, 13-17. Later, on April 3, 2013, Officer Spady testified in a criminal proceeding that she and Officer Curry had not refused Plaintiff's request to intervene and further
testified that the officers had " thoroughly canvassed the zone" and " properly ruled out the presence of any person posing a risk of an imminent attack upon the Plaintiff." Am. Compl., Prelim. Statement of Facts at 7, ¶ 18. Finally, the District of Columbia did not investigate any alleged wrongdoing by Officers Spady and Curry. Id. ¶ ¶ 23, 25. Plaintiff then filed this action in this Court.
II. LEGAL STANDARD
The District of Columbia, the Officer Defendants, and YFE move to dismiss for failure to state a claim. Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds it " fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). " [A] complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, " state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may consider " the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," or " documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss." Ward v. District of Columbia Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (citations omitted).
Plaintiff brings section 1983 claims against the Officer Defendants and against the District of Columbia, as well as negligence claims against all of the defendants, including the three ABC Establishment Defendants. The Officer Defendants, the District of Columbia, and YFE each move to dismiss all claims against them for failure to state a claim pursuant to 12(b)(6). Based on the analysis below, the Court concludes that the Amended Complaint fails to state a claim upon which relief may be granted with respect to any of the defendants in this action, including those that have not appeared.
A. Section 1983 Claims Against the Officer Defendants
Plaintiff brings two claims against the Officer Defendants pursuant to section 1983. First, Plaintiff claims that the Officer Defendants failed to protect Plaintiff in violation of Plaintiff's constitutional rights. See Am. Compl. ¶ ¶ 1-11. Second, Plaintiff alleges that the Officer Defendants conspired to cover up their failure to protect him in violation of his constitutional rights. See id. ¶ ¶ 12-19. The Officer Defendants move to dismiss both of these claims pursuant to Rule 12(b)(6), arguing that the complaint fails to state a claim under section 1983. In doing so, the Officer Defendants also incorporate by reference the relevant arguments of the District of Columbia in its motion to dismiss, specifically the argument that Plaintiff failed to set forth a facially plausible constitutional claim. See Officer Defs.' Mot. at 3. The Court addresses the Officer Defendants'
arguments with respect to each section 1983 claim against them in turn.
1. Failure to Protect Claim (Count I)
Plaintiff claims that the conduct of the Officer Defendants violated his constitutional rights. See Am. Compl. ¶ ¶ 10-11. He claims that the defendants, as a whole, violated his rights pursuant to the Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. See id.¶ a. But he does not link the alleged conduct of the Officer Defendants to the violation of his rights pursuant to these four amendments. See id. ¶ ¶ 1-11. The Officer Defendants argue, as does the District of Columbia, that Plaintiff's rights have not been violated under any of these amendments.
With respect to the Fourth, Ninth, and Fourteenth Amendments, Plaintiff does not respond to the arguments of either the Officer Defendants or the District of Columbia. Therefore, the Court concludes that Plaintiff has conceded that neither the Officer Defendants nor the District of Columbia have violated Plaintiff's rights with respect to these three amendments. Nonetheless, in the interest of completeness, a succinct analysis demonstrates that Plaintiff has failed to state a claim with respect to these amendments. Because Plaintiff does not allege that the Officer Defendants conducted any search or seizure of him or of his property or issued a warrant for Plaintiff's arrest, the Amended Complaint does not adequately allege a violation of the Fourth Amendment. See Fernandez v. California, 134 S.Ct. 1126, 1131-32, 188 L.Ed.2d 25 (2014) (" The Fourth Amendment prohibits unreasonable searches and seizures and provides that a warrant may not be issued without probable cause ... ." ). Because " the Ninth Amendment is not a source of substantive rights, unless it is coupled with the denial of other fundamental rights," Slaby v. Fairbridge, 3 F.Supp.2d 22, 30 (D.D.C. 1998), Plaintiff's reference to the Ninth Amendment is superfluous. Given that the Court concludes in this section that Plaintiff has not adequately alleged the violation of his rights with respect to any other amendment, he has similarly not adequately alleged violation of his rights pursuant to the Ninth Amendment. Plaintiff's Fourteenth Amendment claim fails because it has long been settled that the Fourteenth Amendment does not apply to the District of Columbia. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954) supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, 71 Ohio Law Abs. 584 (1955).
However, Plaintiff does respond to the defendants' arguments concerning Plaintiff's Fifth Amendment claims. The Officer Defendants argue that the Amended Complaint does not adequately allege a violation of the Fifth Amendment. Plaintiff responds that " the Complaint adequately states a plausible Fifth Amendment, substantive due process claim under the state endangerment exception to DeShaney [ v. Winnebago County Department of Social Services ]." Pl.'s Opp'n to D.C.'s Mot. at 8. The Court agrees with the Officer Defendants.
" As a general matter, a State's failure to protect an individual from private violence, even in the face of a known danger, 'does not constitute a violation of the Due Process Clause.'"
Butera v. District of Columbia, 235 F.3d 637, 647, 344 U.S.App.D.C. 265 (D.C. Cir. 2001) (quoting DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). But " in 'certain limited circumstances[,] the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.'" Id. quoting ( DeShaney, 489 U.S. at 198). One such set of circumstances is state endangerment. See id. at 648. " [U]nder the State endangerment concept, an individual can assert a substantive due process right to protection by the District of Columbia from third-party violence when District of Columbia officials affirmatively act to increase or create the danger that ultimately results in the individual's harm." Butera, 235 F.3d at 651. Moreover, " Plaintiff must also show that the District of Columbia's conduct was 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). If a plaintiff has shown that District of Columbia officials have acted to " increase or create the danger," that plaintiff can show that the official's conduct " 'shocked the conscience' by meeting the lower threshold of 'deliberate indifference.'" Id. at 652.
In support of his argument that the Officer Defendants' conduct qualifies for the state endangerment exception, Plaintiff relies on the fact that, while on duty pursuant to the reimbursable detail program, Officers Spady and Curry " ignored Plaintiff's pleas for protection and directed him to move away from their duty station." Am. Compl., Prelim. Statement of Facts at 6; see Pl.'s Opp'n to D.C.'s Mot. at 7. Plaintiff argues that, " [b]y affirmatively ordering Sheikh to move away from the safety of the officers' duty station and towards the Aslamis [the assailants] and others who had gathered around the duty station while Sheikh was asking for help and were lying in wait to carry out their threatened assault, the officers affirmatively created, or the very least increased danger to Sheikh." Id. at 7-8. As an initial matter, the facts necessary to support this argument are not in the Amended Complaint. Specifically, Plaintiff never alleges that Officers Spady and Curry directed him " ...