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Miango v. Democratic Republic of Congo

United States District Court, District of Columbia

March 22, 2017

JACQUES MIANGO, et al., Plaintiff,
v.
DEMOCRATIC REPUBLIC OF THE CONGO, et al., Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON United States District Judge.

         Plaintiffs Jacques Miango, Andre Ngoma, Matala Kayaya, and Ouwo Likutu, allege that they were beaten by security forces of the Democratic Republic of the Congo ("DRC") when they staged a protest across the street from the Washington, D.C. hotel where the DRC President and his delegation were staying. According to the complaint, the beating on the sidewalk across from the Capella Georgetown Hotel took place in full view of officers of the District of Columbia Metropolitan Police Department ("MPD") and agents of the United States Secret Service ("Secret Service" or "USSS") who declined to intervene.[1] Second Am. Compl. [Dkt. # 39] ¶ 1. Plaintiffs have brought negligence claims and claims under 42 U.S.C. § 1983 against the law enforcement agencies, alleging that both entities negligently failed to do anything to stop the DRC forces and that they are liable for the violations of plaintiffs' constitutional rights that took place that day. See id.¶¶ 61-71, 133-44, 164-72. Plaintiffs also brought section 1983, negligence, and intentional tort claims against the companies that own and operate the Capella Hotel - Capella Hotels Group, LLC C'Capella") and Castleton Hotel Partners, LLC ("Castleton") (together "the hotel companies") id. ¶¶ 10-11, claiming that because the hotel companies housed the DRC security forces and failed to prevent them from assaulting plaintiffs, they acted negligently, violated plaintiffs' constitutional rights, and bear responsibility under the doctrine of respondeat superior for the alleged assault, trespassing, conversion, and theft committed by the DRC. See Id. ¶¶ 61-71, 126-32, 157-63, 173-77. Finally, plaintiffs Miango and his wife, Micheline Miango ("M. Miango"), have filed a loss of consortium claim against MPD, the Secret Service, and the hotel companies, which is derivative of Miango's negligence claims, and alleges that as a result of the attack on Miango, plaintiff and his wife have suffered a loss of marital relations. Id. ¶¶ 178-82.

         On August 17 and 18, 2016, MPD and the hotel companies moved to dismiss the second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Metropolitan Police Department's Mot. to Dismiss [Dkt. # 66] ("MPD Mot.") at 1; Mem. P. & A. in Supp. of MPD's Mot. ("MPD Mem."); The Capella Group's Mot. to Dismiss Pls' Second Am. Compl. [Dkt. # 67] ("Capella Mot.") at 1. And on December 19, 2016, the Secret Service moved to dismiss the second amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Federal Defs.' Mot. to Dismiss Pls' Compl. [Dkt. # 85] ("USSS Mot") at 1; Mem. of P. & A. in Supp. of USSS Mot. ("USSS Mem").

         Assuming that the complaint is true, it contains disturbing allegations that plaintiffs were seriously injured by the DRC security forces, and one can readily understand why plaintiffs are frustrated by the fact that U.S. law enforcement officers stood by while it happened. But applying the law as the Court is bound to do, the Court finds that the complaint does not set forth a legal basis to hold MPD, the Secret Service, or the hotel companies responsible for plaintiffs' injuries, and therefore, all three motions to dismiss will be granted.

         FACTUAL BACKGROUND

         Plaintiff Jacques Miango is a refugee of the DRC who currently lives in Maryland. Second Am. Compl. ¶ 2. He describes himself as "a known opponent and activist against the DRC governments] human rights violations, " id., and along with the other plaintiffs, he makes the following allegations in the complaint:

         On August 1 through 6, 2014, the President of the DRC, Joseph Kabila Kabange ("President Kabila"), attended the "U.S. - Africa Leaders' Summit" in Washington D.C. Second Am. Compl. ¶¶ 7, 22. During his visit, President Kabila and his delegation stayed at the Capella Hotel. Id.¶¶ 22, 24.

         On August 6, 2014, plaintiffs Miango, Kayaya, and Likutu staged a protest against the DRC on the sidewalk across the street from the Capella Hotel. Second Am. Compl. ¶¶ 24, 27. Although Miango sought a permit from MPD for the protest, he was informed that he did not need one because his group would include less than twenty people. Id. ¶ 25. Miango observed both MPD officers and Secret Service agents in front of the hotel on that date. Id. ¶ 26.

         Shortly after Miango, Kayaya, and Likutu arrived, the DRC's press official, defendant Jeanmarie Kassamba, returned to the hotel. Second Am. Compl. ¶ 27. Miango and his fellow protestors shouted at defendant Kassamba and held up signs condemning rape, corruption, genocide, dictatorship, and human rights violations in the DRC. Id. Then, defendant Kassamba entered the hotel and came back out with "apparent security enforcers of the Kabila regime." Id. ¶ 28. Plaintiffs claim that the DRC security forces approached Miango and "began belittling, threatening, intimidating and disrupting" him and the other protestors. Id. Soon after, President Kabila arrived at the hotel. Id. ¶ 31. Miango started shouting at him, and plaintiffs claim that President Kabila recognized Miango as a "dissident." Id. President Kabila then entered the hotel. Id. ¶ 32.

         After President Kabila entered the hotel, another group of DRC security forces allegedly "rushed out" of the building and joined the security group already harassing Miango and the other protestors. Second Am. Compl. ¶ 32. They "immediately began physically attacking" the protestors, and Miango was "knocked down to the ground, beaten, kicked, choked, and stomped on" by the security forces. Id. As a result, Miango lost several teeth, suffered a concussion, and injured his spine and neck. Id. Plaintiffs allege that after the DRC security forces beat Miango, they broke into his parked car and stole, among other things, protest materials, a computer, an iPod, and a camera. Id. ¶ 34.

         Plaintiff Ngoma was working at the Canal Inn Hotel located across the street from the Capella Hotel at the time of the protest, and he came outside to observe it. Second Am. Compl. ¶ 35. Plaintiffs claim that the security forces beating Miango saw Ngoma and believed he was a part of the protest, so they attacked him as well. Id.

         Plaintiffs allege that during all of these events, MPD officers and Secret Service agents on the scene observed what took place but took no action except to usher away the attackers after they had beaten Miango. Second Am. Compl. ¶¶ 1, 26-27, 30, 33-34, 36. They also claim that similar incidents occurred on August 5 and 6, 2014 in front of the Hays Adams Hotel in Washington D.C., when security forces from The Gambia, another African country, beat protesters in full view of law enforcement agents. Id.¶ 23.

         PROCEDURAL HISTORY

         On January 5, 2015, counsel for plaintiff Miango sent a demand letter to the Secret Service setting forth claims of negligence, constitutional violations, dereliction of duty, and discrimination arising out of the August 6, 2014 incident outside of the Capella Hotel. Ex. 1 to USSS Mot. [Dkt. # 85-1]. The letter stated that Miango was "accompanied by one or two person[s]" during the incident and that "the other protestor ran away." Id. It also demanded $10, 000, 000 in personal injury damages for Miango without identifying any other claimants. Id. The Secret Service responded by letter on April 27, 2015. It stated that it had received Miango's demand letter and asked Miango to re-submit his claim using an enclosed Standard Form 95 if he sought to "proceed with a claim against the Secret Service under the [Federal Torts Claims Act]." Ex. 2 to USSS Mot. [Dkt. # 85-2]. On September 26, 2016, after this lawsuit had already been filed, all five plaintiffs sent individually completed forms to the Secret Service. Ex. 3 to USSS Mot. [Dkt. # 85-3]. Each plaintiff claimed $10, 000, 000 in personal injury damages. Id.

         Plaintiffs Miango, his wife, M. Miango, and Ngoma filed this action on August 6, 2015. Compl. [Dkt. # 1]. The complaint was amended on February 29, 2016, Am. Compl. [Dkt. # 10], and again on May 10, 2016. See Second Am. Compl.[2] It contains the following counts:

• Count I: Crimes Against Humanity in Violation of the Law of Nations and/or Treaty of the U.S. against the individual/official capacity defendants, the DRC, and Joseph Kabila;
• Count II: Cruel and Degrading Treatment in Violation of the Law of Nations and/or Treaty of the U.S. against the individual/official capacity defendants, the DRC, and Joseph Kabila;
• Count III: Deprivation of Constitutional and Civil Rights in Violation of 42 U.S.C. §§1983, 1988 (First Amendment Freedom of Speech and Assembly) against all defendants;
• Count IV: Deprivation of Right to Enter One's Own Country in Violation of the Law of Nations and/or Treaty of the U.S. against the individual/official capacity defendants, the DRC, and Joseph Kabila;
• Count V: Infringement Upon Rights to Free Expression, Assembly, Thought, and Association in Violation of the Law of Nations and/or Treaty of the U.S. against the individual/official capacity defendants, the DRC, and Joseph Kabila;
• Count VI: Deprivation of Equal Protection Under the Law in Violation of the Law of Nations and/or Treaty of the U.S. against the individual/official capacity defendants, the DRC, and Joseph Kabila;
• Count VII: Aiding and Abetting Acts in Violation of the Law of Nations and/or Treaty of the U.S. against the individual/official capacity defendants, the DRC, and Joseph Kabila;
• Count VIII: Battery against the individual/official capacity defendants, the DRC, and Joseph Kabila;
• Count IX: Assault against the individual/official capacity defendants, the DRC, Joseph Kabila, and the hotel companies;
• Count X: Deprivation of Constitutional and Civil Rights in Violation of 42 U.S.C. §§ 1983, 1988 ("First Amendment Freedom of Speech And Assembly Clause, Fourth Amendment Due Process and Search and Seizure Clauses, Fifth Amendment Cruel and Unusual Punishment Clause, Fifth Amendment Takings Clause, and Fourteenth Amendment Equal Protection Clause") against the DRC Joseph Kabila, MPD, and the Secret Service;
• Count XI: Intentional Infliction of Emotional Distress against the individual/official capacity defendants, the DRC, and Joseph Kabila;
• Count XII: False Imprisonment against the individual/official capacity defendants, the Democratic Republic of Congo Government, the Embassy of the Democratic Republic of Congo, and Joseph Kabila
• Count XIII: Negligence against the hotel companies;
• Count XIV: Negligence against MPD and the Secret Service;
• Count XV: Trespassing, Conversion and Theft against the individual/official capacity defendants, the Democratic Republic of Congo Government, Joseph Kabila, and the hotel companies; and
• Count XVI: Loss of Consortium against all defendants.

         Only MPD, the Secret Service, and the hotel companies have responded to date, all with motions to dismiss.[3] So this memorandum opinion addresses only the allegations against those defendants.[4]

         STANDARD OF REVIEW

         In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiffs legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

         I. Subject Matter Jurisdiction

         Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). "[B]ecause subject-matter jurisdiction is 'an Art[icle] III as well as a statutory requirement ... no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

         When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

         II. Failure to State a Claim

         "To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550U.S. 544, 570 (2007). InIqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. And "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679.

         A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. "The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id., quoting Twombly, 550 U.S. at 566. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action, " id, quoting Twombly, 550 U.S. at 555, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

         When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in the plaintiffs favor, and the Court should grant the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiffs legal conclusions. See id.; see also Browning, 292 F.3d at 242. In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002).

         ANALYSIS

         I. MPD's Motion to Dismiss

         The D.C. Metropolitan Police Department has moved to dismiss all of the claims against it on the ground that it is non sui juris, that is, that it lacks the legal capacity to be sued. MPD Mem. at 4-5. This is a correct statement of the law, but the Court recognizes that plaintiffs' complaint alleges that MPD "is an agency of the District of Columbia municipality" and that plaintiffs' claims involve "MPD officers." Second. Am. Compl. ¶ 9. So the Court will proceed with its analysis as if plaintiffs had properly named the District of Columbia as a defendant.

         The District asserts that plaintiffs have failed to state a claim against the municipality under section 1983 because they have not sufficiently alleged that a custom or policy of the District was the cause of plaintiffs' injuries at the hands of the DRC. MPD Mem. at 7-10. It also contends that it is immune from actions for negligence under the public duty doctrine. Id. at 11-14. Since the District is correct on both counts, all of plaintiffs' claims against MPD will be dismissed for failure to state a claim upon which relief can be granted.

         A. MPD is Non Sui Juris.

         Certain government entities are not suable because they are not entities "which Congress has authorized to be sued." Blackmar v. Guerre, 342 U.S. 512, 515 (1952); see Sibley v. U.S. Supreme Court, 786 F.Supp.2d 338, 344 (D.D.C. 2001) ("In the absence of explicit statutory authorization, bodies within the District of Columbia government are not suable as separate entities"), quoting Daskalea v. Wash. Humane Soc'y, 480 F.Supp.2d 16, 22 (D.D.C. 2007). Specifically, courts within this Circuit have determined that MPD "is a noncorporate department or body within the District of Columbia and is not suable as a separate entity." Aleotti v. Baars, 896 F.Supp. 1, 6 (D.D.C. 1995), citing Fields v. D.C. Dep't of Corrections, 789 F.Supp. 20, 22 (D.D.C. 1992). And an examination of the statute that creates MPD shows that it contains no provision allowing suit against it. See D.C. Code § 5-101.01 et. seq.

         Since no statute authorizes suit against MPD, plaintiffs' claims against it must be dismissed. However, the District of Columbia may be substituted as the defendant. See Sampsonv. D.C Dep't of Corrections, 20 F.Supp.3d 282, 285 (D.D.C. 2014) ("When a plaintiff erroneously names as a defendant a District of Columbia agency instead of the District of ...


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