United States District Court, District of Columbia
MEMORANDOM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
Perry Spiller and James McCray bring this action against the
District of Columbia and two Metropolitan Police Department
Officers, who are identified in the complaint as Timothy
Murphy and Robert Barillaro. Spiller and McCray allege that
they were unlawfully arrested, injured, and detained, and
that Spiller was maliciously prosecuted, after police
officers observed them laughing at a fight outside a
nightclub in Washington, D.C. The two men bring suit under 42
U.S.C. § 1983 and various provisions of the
Constitution, and they also assert common law claims for
false arrest, false imprisonment, negligent supervision and
training, and negligent infliction of emotional distress.
move to dismiss Plaintiffs' claims in part pursuant to
Rule 12(b)(6), or in the alternative, for summary judgment in
part under Rule 56. For the reasons explained below, the
Court concludes that (1) Plaintiffs fail to state a
substantive due process claim; (2) Spiller fails to state a
claim for “malicious prosecution” under §
but does so under D.C. Law; (3) Plaintiffs' § 1983
“negligent infliction of emotional distress”
claim is duplicative of their § 1983 “negligent
supervision and training” claims; and (4) Plaintiffs
fail to state claims for negligent supervision and training,
regardless of whether those claims are premised on the common
law or § 1983.
Court will, accordingly, GRANT in part and
DENY in part Defendants' motion to
dismiss, or in the alternative, for summary judgment.
considering Defendants' motion to dismiss, the Court will
accept Plaintiffs' factual allegations as true. See
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Although
Plaintiffs' allegations are not entitled to that same
deference for purposes of Defendants' motion for summary
judgment, Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-49 (1986), the facts relevant to the determination
of that motion-namely, the content and date of the notices
sent to the District-are undisputed.
30, 2015, McCray and Spiller stood outside a nightclub, which
was closing for the night. Dkt. 1 at 6 (Compl. ¶ 19).
Around midnight, they observed two people begin to fight in a
“loud and violent” manner. Id. (Compl.
¶ 19). Barillaro and his partner were in a police car
down the block and were soon approached by one of the
individuals involved in the fight. Id. (Compl.
¶ 19). Spiller and McCray “stood nearby and
laughed at the incident taking place.” Id.
(Compl. ¶ 20). The police officers came over to the two
men, and “asked [them] to leave the scene where the
fight took place.” Id. (Compl. ¶ 20). The
police did not arrest either of the individuals involved in
the fight. Id. (Comp. ¶ 20). McCray and Spiller
relocated to two “chairs in an alleyway adjacent to the
street where the incident took place.” Id.
(Compl. ¶ 21). The officers “then re-approached
and grabbed the Plaintiffs and said . . . ‘You're
under arrest for noise violation!'” Id.
(Compl. ¶ 21). After a brief conversation in which
Spiller insisted that he and McCray had had nothing to do
with the earlier fight, Barillaro “tackled . . .
Spiller by using his hands and arms to . . . forcefully
conduct a takedown of [Spiller].” Id. at 7
(Compl. ¶ 22). Spiller “suffered swelling and
abrasions to his legs, [a] sore throat, and . . . numbness on
the left side of his body” as a result of the
“takedown.” Id. at 7, 8 (Compl.
¶¶ 22, 25). The other officer, “using his
arms and hands and full force of his weight, ” also
“tackl[ed] . . . McCray to the ground using an
unnecessary and excessive amount of force.”
Id. at 7 (Compl. ¶ 22). While Barillaro's
partner “held down” McCray, Barillaro
“grabbed . . . McCray's hands and with full force .
. . yanked . . . McCray's right hand and slammed [it] on
the hard ground causing . . . McCray to suffer a broken
hand.” Id. (Compl. ¶ 23).
men required treatment for the injuries they sustained when
the officers tackled them. Id. at 7-8 (Compl.
¶¶ 24-25). McCray was arrested for “Making
Noise at Night, ” despite having “made no
noise.” Id. at 8 (Compl. ¶ 26). He was
“shackled and handcuffed and sent to D.C. Superior
Court for processing, ” but “[a]fter spending
several hours in jail for having committed no offense,
” he was released without being charged. Id.
(Compl. ¶ 26). Spiller was arrested for “Making
Noise at Night” and for “Assault on a Police
Officer, ” although he was not charged with the former.
Id. (Compl. ¶ 27). He was, however, charged
with “Assault on a Police Officer” and
“Carrying a Dangerous Weapon” (nunchucks
“allegedly recovered from his backpack pursuant to a
search incident to arrest”). Id. (Compl.
¶ 27). On October 5, 2015, all charges were dismissed by
the United States Attorney's Office, and “the
assigned prosecuting attorney informed” Spiller's
attorney that the office “had opened an internal
investigation against” the two officers involved in the
arrest. Id. at 8-9 (Compl. ¶ 27).
Four days later, Spiller and McCray's counsel sent
letters to the Mayor of the District of Columbia asserting
their “intention to file suit against the District of
Columbia for [their] unlawful arrest[s] and for the
intentional, unjustifiable, and brutal physical assault of
[their] person[s] by Metropolitan Police Department (MPD)
officers.” Dkt. 19 at 29; id. at 31.
survive a 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.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible if “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. Although “detailed factual
allegations” are not required, the complaint must
contain “more than labels and conclusions, [or] a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555. The Court
must “assume [the] veracity” of
“well-pleaded factual allegations, ”
Iqbal, 556 U.S. at 679, and must “grant [the]
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 quotation marks omitted). The Court, however, need
not accept “a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).
judgment is granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); see Liberty Lobby, 477 U.S. at 247-48;
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006). A fact is “material” if it is capable of
affecting the outcome of the litigation. Holcomb,
433 F.3d at 895; Liberty Lobby, 477 U.S. at 248. A
dispute is “genuine” if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party. See Scott v. Harris, 550 U.S. 372, 380
(2007); Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion by . . . citing to particular parts of
materials in the record . . . .” Fed.R.Civ.P.
56(c)(1)(A). The party seeking summary judgment “bears
the heavy burden of establishing that the merits of his case
are so clear that expedited action is justified.”
See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d
294, 297 (D.C. Cir. 1987).
sides have, at least modestly, narrowed the issues for
decision at this early stage of the litigation. As an initial
matter, although Plaintiffs initially named Timothy Murphy as
one of the two individual defendants, no one by that name
works for MPD. Plaintiffs acknowledge as much, and suggest
they will seek leave to amend their complaint to name the
correct officer in the future. See Dkt. 18. For now,
the Court will dismiss “Timothy Murphy” from the
suit by virtue of Plaintiffs' concession. Plaintiffs also
concede that Count I, alleging false arrest, and Count II,
alleging false imprisonment, should be merged. Dkt. 19 at 12.
For their part, Defendants have not moved to dismiss Count
VII, alleging “gross negligent excessive force, ”
and they concede that Count VIII, insofar as it alleges a
common law negligent infliction of emotional distress claim,
states a claim. Dkt. 13 at 21-22; Dkt. 21 at 5. The remaining
claims are discussed below.
Substantive Due Process
III alleges “that the Defendants denied the Plaintiffs
substantive due process;” “that the negligent
conduct of the officers ‘shocks the
conscience;'” and that the officers
“conducted a reckless investigation” by failing
to establish probable cause prior to arresting Spiller and
McCray because they “failed to properly investigate the
arrest area, scene and location.” Dkt. 1 at 12 (Compl.
¶¶ 50-51). Defendants, in response, assert that the
officers' alleged actions are not “so egregious, so
outrageous, that [they] may fairly be said to shock the
contemporary conscience.” Abdelfattah v. U.S.
Dep't of Homeland Sec., 787 F.3d 524, 540 (D.C. Cir.
2015) (quoting County of Sacramento v. Lewis, 523
U.S. 833, 847 n.8 (1998)). While that may be true, the Court
need not reach the question, because the actions underlying
the due process claim are barred by the threshold application
of the “more  specific provision rule”
announced in Graham v. Connor, 490 U.S. 386 (1989).
Lewis, 523 U.S. at 844. That rule holds that when
“an explicit textual source of constitutional
protection against [the] sort of physically intrusive
governmental conduct” at issue exists, that more
specific provision, “not the more generalized notion of
‘substantive due process, ' must be the guide for
analyzing th[o]se claims.” Graham, 490 U.S. at
395. The relevant conduct at issue in this case is MPD's
seizure of McCray and Spiller without probable cause. The
claim thus “arises in the context of an arrest or
investigatory stop of a free citizen, ” and “is
most properly characterized as one invoking the protections
of the Fourth Amendment.” Id. at 394. Because
that claim is “‘covered by' the Fourth
Amendment, ” “[s]ubstantive due process analysis
is therefore inappropriate.” Lewis, 523 U.S.
at 843. Defendants' motion to dismiss Plaintiffs'
substantive due process claim will, therefore, be granted.
alleges that he was subject to malicious prosecution from May
30, 2015 to October 5, 2015, and, in particular, that he was
“arrested, ” “beaten, ”
“prosecuted, ” and “forced to come to
Court, ” even though he did not commit a crime. Dkt. 1
at 14-15 (Compl. ¶¶ 66-70). Spiller does not
expressly invoke § 1983, although he labels the claim a
“Fourth Amendment Malicious Prosecution Claim.”
Dkt. 1 at 14-15 (Compl. ¶¶ 66-70). Defendants treat
the count as a claim under § 1983 in their motion to
dismiss, and argue that such a claim “hinges on the
continued detention of a plaintiff once his/her
criminal prosecution is instituted.” Dkt. 13 at 19
(citing Wallace v. Kato, 549 U.S. 384 (2007)).
Because “Spiller makes no allegation that he was held
in custody subsequent to the initiation of the criminal
prosecution, ” Defendants argue he has failed to state
a claim. Id. at 19-20. The nub of the current
controversy, then, is whether something less than detention
in a prison or jail-which, for clarity, the Court refers to
as “incarceration”-can support a § 1983
claim for malicious prosecution, and if so, whether Spiller
has nevertheless failed to allege a sufficiently severe
deprivation of his liberty.
to Defendants' categorical argument, in the D.C. Circuit,
incarceration is not an essential element of a malicious
prosecution claim under § 1983. Instead,
“malicious prosecution is actionable under 42 U.S.C.
§ 1983 to the extent that the defendant's actions
cause the plaintiff to be unreasonably
‘seized' without probable cause, in
violation of the Fourth Amendment.” Pitt v.
District of Columbia, 491 F.3d 494, 511 (D.C. Cir. 2007)
(emphasis added); accord Amobi v. D.C. Dep't of
Corr., 755 F.3d 980, 993 (D.C. Cir. 2014); Demery v.
Montgomery Cty., 602 F.Supp.2d 206, 212 (D.D.C. 2009)
(holding that plaintiff alleging “the unreasonable
seizure of his person” stated a claim for malicious
prosecution under § 1983). Exactly what pretrial
restrictions constitute “seizures” for this
purpose, however, is less clear. In the D.C. Circuit's
only direct discussion of the issue, it concluded that a
ten-day commitment to a halfway house constituted a seizure
sufficient to support a claim for malicious prosecution.
Pitt, 491 F.3d at 511. Courts within this circuit
have also held that short periods of detention directly
following an arraignment or “being restricted by
pretrial conditions and being compelled to appear in
court” can constitute a seizure sufficient to state a
§ 1983 malicious prosecution claim. See, e.g.,
Mehari v. District of Columbia, 268 F.Supp.3d 73, 82
(D.D.C. 2017); Thorp v. District of Columbia, 142
F.Supp.3d 132, 145-46 (D.D.C. 2015) (suggesting that
“drug testing and weekly interviews with court
officials” constitute a seizure in context of §
1983 malicious prosecution claim).
circuits have produced a diverse set of standards for
discerning whether conditions short of incarceration are
sufficient to support a § 1983 malicious prosecution
claim. The Second Circuit has held that restrictions on
travel and the requirement that a defendant make
“periodic court appearances” constitute
sufficient limitations on liberty for purposes of a §
1983 malicious prosecution claim. See Murphy v.
Lynn, 118 F.3d 938, 946 (2d Cir. 1997). The Third
Circuit has found similar terms of pretrial release
sufficient to state a § 1983 malicious prosecution
claim, and it has expressly recognized that, under its
capacious definition of seizure, “nearly all
individuals alleging malicious prosecution in cases against
public officials will be able to sue under section 1983
because travel restrictions and required attendance at court
hearings inhere in many prosecutions.” See Gallo v.
City of Philadelphia, 161 F.3d 217, 225 (3d Cir. 1998);
see also Id. at 222 (holding that it “amounted
to a seizure” when a defendant “was prohibited
from traveling outside New Jersey and Pennsylvania” in
addition to having to “post a $10, 000 bond, ”
“attend all court hearings including his trial and
arraignment, ” and “contact Pretrial Services on
a weekly basis”). And the Fifth Circuit has held that a
“summons to appear in court, coupled with the
requirements that [the plaintiff] obtain permission before
leaving the state, report regularly to pretrial services,
sign a personal recognizance bond, and provide federal
officers with financial and identifying information,
diminished [the plaintiff's] liberty enough to render him
seized under the Fourth Amendment.” Evans v.
Ball, 168 F.3d 856, 861 (5th Cir. 1999), abrogated
on other grounds by Castellano v. Fragozo, 352 F.3d 939
(5th Cir. 2003) (en banc).
contrast, the First and Tenth Circuits have held that
compelled pretrial appearances and other common release
conditions, without more, are not seizures sufficient to
support a § 1983 malicious prosecution claim because,
“if the concept of a seizure is regarded as elastic
enough to encompass standard conditions of pretrial release,
virtually every criminal defendant will be deemed to be
seized pending the resolution of the charges against
him.” Nieves v. McSweeney, 241 F.3d 46, 55
(1st Cir. 2001); accord Becker v. Kroll, 494 F.3d
904, 915-16 (10th Cir. 2007). Still other circuits have
declined to delineate the exact boundaries of what
constitutes a pretrial seizure while simultaneously
cautioning against an overly broad interpretation that
encompasses the standard conditions of pretrial release.
See, e.g., Kingsland v. City of Miami, 382
F.3d 1220, 1235-36 (11th Cir. 2004) (holding that being
“required to (1) pay a $1, 000 bond; (2) appear at [an]
arraignment; and (3) make two trips from New Jersey to
Florida to defend herself in court, pursuant to the authority
of the state” did not “constitute a significant
deprivation of [the plaintiff's] liberty” and
therefore did not “constitute a seizure violative of
the Fourth Amendment”); Karam v. City of
Burbank, 352 F.3d 1188, 1193-94 (9th Cir. 2003) (holding
that a person not charged with a felony was not seized when
only restrictions on liberty were required court ...