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McComb v. Ross

United States District Court, District of Columbia

August 12, 2016

RICKY MCCOMB, Plaintiff,
v.
OFFICER J.P. ROSS, et al., Defendants.

          MEMORANDUM OPINION

          JOHN D. BATES United States District Judge.

         Plaintiff Ricky McComb has brought this action against several officers of the Metropolitan Police Department ("MPD") and the District of Columbia ("the District"), claiming he was subjected to an unlawful body cavity search in violation of the Fourth Amendment and the laws of the District of Columbia. Before the Court is McComb's motion for leave to file a second amended complaint. Also before the Court is the District's motion for leave to file a surreply in response to plaintiffs motion for leave to amend. For the reasons discussed below, the Court will grant both motions.

         BACKGROUND

         Plaintiff alleges that on February 1, 2013, he was arrested in Northwest D.C. pursuant to an outstanding arrest warrant, and transported to the Third District police station. First Am. Compl. [ECF No. 33] ¶¶ 10, 12. He states that although "[n]o weapons or contraband were found" at the time of his arrest, he was informed by officers at the police station that he would be strip searched. Id. ¶¶ 11-12. At the time of these events, MPD General Order PCA-502.01, Transportation of Prisoners (January 12, 2001) (revised March 28, 2014) ("General Order 502.01"), strictly prohibited officers from conducting body cavity searches, defined as the search "of a prisoner's genital and/or anal cavities." Exhibit 1 to Def.'sRule 15 Opp'n [ECF No. 50-1] at 4. Nonetheless, McComb alleges that, in the presence of other officers including Officer Culver, Officer Ross "pulled Mr. McComb's pants and underwear down, exposing Mr. McComb's genitalia and buttocks . . . then stuck his index finger through Mr. McComb's anus and into Mr. McComb's rectum." First Am. Compl. ¶¶ 15, 17. "When Officer Ross removed his finger, Mr. McComb began weeping. No contraband or weapon was found in Mr. McComb's rectum." Id. ¶ 17. Plaintiff was subsequently taken to Howard University Hospital, "where he was treated for rectal bleeding and abdominal and rectal pain, " and later discharged and released from police custody. Id. ¶¶ 21-22. As a result of the incident, plaintiff alleges that he "suffered extreme and severe emotional distress" and "has been subjected to ridicule and disparagement of his manhood." Id. ¶¶ 34-35.

         Plaintiff asserts that four MPD officers and the District are liable for violating his rights under the Fourth Amendment to the U.S. Constitution, and for assault, battery, and intentional infliction of emotional distress. Id. ¶¶ 37-46. In his first amended complaint, McComb claimed the District is liable under Monell v. Department of Social Services, 436 U.S. 658 (1978), due to its "custom and practice of performing body cavity searches on pretrial detainees without probable cause or a warrant." Id. ¶ 39. Following discovery, McComb now seeks to drop his "custom and practice" municipal liability claim against the District, and replace it with a claim that the District is liable under Monell "due to the MPD's deliberately indifferent failure adequately to train, supervise, and discipline Defendants Ross and Culver." Revised Proposed Second Am. Compl. [ECF No. 53-2] ¶ 47.

         PROCEDURAL HISTORY

         Although McComb appropriately sought leave from the Court to amend his complaint, Fed.R.Civ.P. 15(a), he has now filed two different versions of the proposed second amended complaint. McComb's original proposed second amended complaint alleged that:

Officers Ross and Culver have a history of complaints involving similar conduct, with no adequate response by the District of Columbia until after an expression of concern by the United States Attorney's Office in the course of considering prosecution of those officers. The District of Columbia failed adequately to train and supervise these defendant officers, when the need for better training and supervision of those officers was obvious, as was the likelihood that their conduct would result in violations of civilians' constitutional rights.

         Original Proposed Second Am. Compl. [ECF No. 49-2] ¶ 32. The District opposed McComb's motion to amend on grounds of futility, arguing that the allegations of the proposed second amended complaint were too conclusory to adequately state a constitutional cause of action. See Def.'s Rule 15 Opp'n [ECF No. 50] at 2, 7. In his reply brief, McComb then stated for the first time detailed factual allegations in support of his new Monell claim. He alleged that "Officers Ross and Culver have an extensive history of complaints involving similar conduct in the 33 months prior to the incident involving plaintiff McComb, " and listed eleven prior citizen complaints against them. PL's Rule 15 Reply [ECF No. 51] ¶ 2. In response, the District moved for leave to file a surreply, and argued that the Court "should disregard the facts not alleged in the proposed Complaint." Def.'s Surreply [ECF No. 52] at 2. McComb then filed a response to that motion and attached a revised proposed second amended complaint. The District has now addressed plaintiff's allegations in the revised proposed second amended complaint through its reply in support of its surreply. See Def.'s Surreply Reply [ECF No. 54] at 4-9.

         No doubt, plaintiffs failure to plead all relevant allegations in his original proposed second amended complaint was not the best practice. See Local Civil Rule 15.1. Nonetheless, the Court sees no reason to elevate form over substance where McComb is able to plead detailed factual allegations in support of his claim. Rule 15 dictates that the Court "should freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a)(2). Indeed, when "the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). Both parties have now fully argued the merits of plaintiff's revised proposed second amended complaint through their briefs on McComb's original motion and the on District's proposed surreply. Accordingly, the Court finds it appropriate to decide plaintiff's motion to amend on the basis of his revised proposed second amended complaint.

         The Court will also grant the District's motion for leave to file a surreply. Although "surreplies are generally disfavored, " the Court finds that the District's proposed surreply and the subsequent briefs are "helpful to the resolution of the pending motion, " Banner Health v. Sebelius, 905 F.Supp.2d 174, 187 (D.D.C. 2012), because they address the facts alleged in McComb's revised proposed second amended complaint. Therefore, the Court will grant the District's motion, and consider the attached surreply and briefs in ruling on McComb's motion to amend.

         LEGAL STANDARD

         Rule 15 directs the Court to "freely give leave" to amend a complaint "when justice so requires." Fed.R.Civ.P. 15(a)(2). The Court may deny leave to amend where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencie s by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Foman, 371 U.S. at 182. The District argues that ...


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