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Cherry v. District of Columbia

United States District Court, District of Columbia

March 18, 2016

TAMIQUELA J. CHERRY, as parent and Next Friend of D.C., a minor, Plaintiff,


REGGIE B. WALTON, United States District Judge

The plaintiff in this civil matter asserts a number of claims against the District of Columbia based on allegations that a Metropolitan Police Officer improperly ordered the plaintiff’s daughter to “undress” and then “proceeded to take photographs of her vaginal, breast, and anal areas” during the course of an investigation. First Amended Complaint (“Compl.”) ¶¶ 6, 7. Currently before the Court is the Defendant’s Motion to Dismiss [the] Plaintiff’s Amended Complaint (“Def.’s Mot.”). Upon careful consideration of the motion and the parties’ memoranda of law, the Court concludes that it must grant the defendant’s motion to dismiss.[1]


According to the allegations contained in the plaintiff’s First Amended Complaint, on November 30, 2013, the plaintiff “reported to the [Metropolitan Police Department (“MPD”)] that her 15-year-old daughter, D.C., had run away from home.” Compl. ¶ 6. On the morning of December 1, 2013, Metropolitan Police Officer Marcus Washington (“Officer Washington”) “responded to the [plaintiff’s] home to speak with [the plaintiff about the report she had made concerning her daughter].” Id. The plaintiff then alleges that the following occurred:

During the early afternoon of December 1, 2013, D.C. returned home from a friend’s house. [The plaintiff] notified the MPD of D.C.’s return. On December 1, 2013 at approximately 11:40 p.m.[, ] Officer Washington came to the [plaintiff’s] home to conclude his investigation. Officer Washington instructed the family that he had to speak to D.C. alone and took her into a back bedroom of the home away from her mother where he proceeded to close the door. While in the bedroom with the door closed, Officer Washington firmly ordered D.C. to undress partially at first before forcing her to disrobe entirely whereupon he began to take photographs of her naked body.[] D.C. protested but was told that the photographs were necessary to document her scars, injuries[, ] and tattoos. D.C. informed Officer Washington that she had no injuries and did not want to disrobe. Nonetheless, Officer Washington persisted and insisted that D.C. do as he had ordered. Feeling fearful and compelled to obey, D.C. did as she had been ordered. Once D.C. was undressed, Officer Washington proceeded to take photographs of her vaginal, breast, and anal areas, ordering her to position her body in various ways as he did so.

Id. ¶ 7. The plaintiff asserts that she “promptly contacted the police department, ” and that after an investigation, Officer Washington’s “camera was confiscated and he was subsequently arrested.” Id. ¶ 8.

The plaintiff contends that “Officer Washington’s actions were the natural outgrowth of the MPD’s long-standing policy of rehiring or failing to fire officers who abuse their positions of power over civilians.” Id. ¶ 14. Specifically, the plaintiff alleges that “[t]he District of Columbia, acting through the MPD, has a custom and practice of rehiring officers and failing to terminate the employment of officers who commit crimes or otherwise unethical, dangerous, and reckless acts, both on and off duty.” Id. ¶ 13.


A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). So to survive a motion to dismiss for “failure to state a claim upon which relief may be granted, ” Fed.R.Civ.P. 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, ’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The “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.” Id. (citing Twombly, 550 U.S. at 556); see also Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (plaintiff is entitled to “the benefit of all inferences that can be derived from the facts alleged”). Although the Court must accept the facts pleaded as true, legal allegations devoid of factual support are not entitled to this assumption. See, e.g., Kowal, 16 F.3d at 1276. Along with the allegations made within the four corners of the complaint, the court can also consider “any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).


A. The Plaintiff’s Section 1983 Claim

A claim brought pursuant to 42 U.S.C. § 1983 (2012) “provides a remedy against ‘any person’ who, under color of state law, deprives another of rights protected by the Constitution.” Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).[2] “Although a municipality[3] is a ‘person’ subject to suit under [Section] 1983 for constitutional violations, it ‘cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under [Section] 1983 on a respondeat superior theory.’” Singletary v. Dist. of Columbia, 766 F.3d 66, 72 (D.C. Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691(1978)). As this Circuit has explained,

in considering whether a plaintiff has stated a claim for municipal liability, the district court must conduct a two-step inquiry. First, the court must determine whether the complaint states a claim for a predicate constitutional violation. Second, if so, then the court must determine whether the complaint states a claim that a custom or policy of the municipality caused the violation.

Baker v. Dist. of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citations omitted). For the purposes of resolving its motion to dismiss, the defendant assumes that the plaintiff has satisfied the first prong of this test, in that Officer “Washington’s alleged conduct violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.” Def.’s Mem. at 4. Instead, the defendant contends that the plaintiff has failed to satisfy the second ...

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