United States District Court, District of Columbia
D. BATES United States District Judge.
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
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.
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.
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
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.
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.
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
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
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 ...