United States District Court, District of Columbia
GERRI CHERRY, Personal Representative of the Estate of Alonzo Smith, Deceased, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE
case arises from the death of Alonzo Smith, who died of
cardiac arrest when he was arrested by two special police
officers (“SPOs”). Plaintiff Gerri Cherry, the
personal representative of Smith's estate, filed suit
against the SPOs, the security company that employs the
officers, the property manager and the owner of the apartment
complex that hired the firm, and the District of Columbia
(“the District”). See Compl. [Dkt. # 1].
The complaint alleges that the SPOs used excessive force when
they forcefully restrained Smith face down on the ground with
two sets of handcuffs, and that this prevented him from
breathing and caused his death. Id. ¶¶ 55-
60. Plaintiff claims that the SPOs violated Smith's
Fourth Amendment rights, and that the District is liable
under 42 U.S.C. § 1983 for failing to adequately train
them. Id. The complaint also includes a wrongful
death claim and a survival action against all defendants
based on negligence. Id. ¶¶ 61-77.
District has moved to dismiss plaintiff's claims against
it for failure to state a claim, and this opinion deals with
those claims only. See Def. District of
Columbia's Mot. to Dismiss the Compl. [Dkt. # 22]
(“Def.'s Mot.”). The Court will grant the
District's motion to dismiss the section 1983 claims
because the complaint fails to allege sufficient facts to
establish municipal liability in accordance with the Supreme
Court's decision in Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978). Further, the Court will
dismiss the negligence claims under the Wrongful Death Act
and the Survival Act because the District is entitled to
discretionary function immunity.
The Role of Special Police Officers
Mayor of the District of Columbia, in his or her discretion,
may appoint an SPO in connection with the property of, or
under the charge of, a corporation or individual. D.C. Code
§ 5-129.02(a). A corporation or individual may also
apply for such an appointment. Id. SPOs are
“paid wholly by the corporation or person on whose
account their appointments are made, ” and they are
required “to complete minimum levels of pre-assignment,
on-the-job, and in-service training.” Id.
to the complaint, SPOs Ramon Vega and Alonzo Wilson were
commissioned by the Mayor pursuant to D.C. Code §
5-129.02 to “ensure the safety and security of the
premises located at Marbury Plaza Apartments.” Compl.
¶¶ 4-6. Plaintiff alleges that SPOs “have the
same powers as law enforcement officers to arrest without
warrants for offenses committed within premises to which
their jurisdiction extends.” Id. ¶ 4.
complaint alleges that prior to November 1, 2015, all SPOs
were required to undergo forty hours of pre-assignment
training in a course “designed by and promulgated
by” the District.Compl. ¶ 24. Sixteen hours of
pre-assignment training were dedicated to training on arrest
powers, search and seizure, the D.C. official code, and the
use of force, and twenty-four hours of training focused on
terrorism awareness, evacuation protocols, and first aid.
Id. ¶ 25. All training materials regarding the
use of force that were supplied to the SPOs were prepared and
provided by the District. Id. ¶ 28.
Additionally, SPOs received sixteen hours of on-the-job
training during their first ninety working days. Id.
The Events of November 1, 2015
November 1, 2015, at approximately 3:10 A.M., Alonzo Smith
came out of the Marbury Plaza Apartments building located at
2300 Good Hope Road, S.E., Washington, D.C. 20020. Compl.
¶¶ 5, 32. Smith, who was not wearing a shirt or
shoes, was visibly in distress and yelling for help.
Id. ¶ 32.
approximately 3:30 A.M., SPO Vega reportedly saw Smith hiding
in some bushes in the grassy area of the apartment complex
and radioed SPO Wilson for assistance. Compl. ¶ 33. The
SPOs followed Smith as he “frantically” ran
around the apartment building and a neighboring parking lot.
Id. ¶ 34. SPO Wilson then followed Smith as he
entered a building located at 2312 Good Hope Road and
attempted to climb the fire escape. Id. ¶ 35.
When the SPO caught up to Smith, the SPO allegedly grabbed
him, “restrained him in a choke hold, slammed him onto
the ground . . ., and forcibly restrained” him.
Id. ¶ 37. When SPO Vega arrived, SPO Wilson was
straddling Smith, who was on his stomach, face down.
Id. ¶ 38. According to the complaint, SPO
Wilson put his knee on Smith's back and attempted to
handcuff him, while also asking SPO Vega for his set of
handcuffs. Id. SPO Vega then held Smith's head
down to the ground while he linked his handcuffs to SPO
Wilson's set, thereby restraining Smith with two sets of
handcuffs. Id. ¶ 39.
Police Department (“MPD”) officers Kevin Fitch
and Esteban Alvarez also responded to the incident, and upon
their arrival, they found Smith motionless, lying face down
on the ground with his arms handcuffed behind him. Compl.
¶ 42. The MPD officers asked SPOs Wilson and Vega
whether Smith was breathing. Id. ¶ 43. The SPOs
checked to see if he was, and when they realized that he was
not, they began to administer CPR while Smith was still
was transported to United Medical Center and was pronounced
dead at 5:08 A.M. Compl. ¶ 44. On the following day,
November 2, 2015,  Sasha Osbourne, M.D., performed an autopsy
and ruled Smith's death a homicide. Id.
¶¶ 45, 47. She concluded that Smith had died of
“sudden cardiac arrest while restrained, ” which
had been complicated by “acute cocaine toxicity.”
Id. Dr. Osbourne also determined that the
“twisting of Smith's torso was a contributing
factor in his death.” Id. ¶ 47.
October 31, 2017, plaintiff filed her complaint. Counts I and
IV both invoke 42 U.S.C. § 1983. Count I alleges that
the District violated Smith's Fourth Amendment rights by
commissioning “SPOs and provid[ing] them with police
power[, ] and knowingly and with reckless disregard . . .
allow[ing] a poorly trained police officer to run rampant
over the constitutional rights of the citizens of the
District of Columbia, including Smith.” Compl. ¶
60. Count IV alleges that the District, “intentionally
and with deliberate indifference, ” “failed to
train its SPOs and officers in the proper application of
force.” Id. ¶¶ 80, 83. In her
opposition to defendant's motion to dismiss, plaintiff
explained that the “claim under 42 U.S.C. § 1983
against the District is best understood as alleging that the
District is liable for the unconstitutional excessive force
used against Alonzo Smith . . . as a result of the
District's failure to adequately train the offending
[SPOs] on the use of force.” Pl.'s Mem. of P. &
A. in Opp. to Def.'s Mot. [Dkt. # 24] (“Pl.'s
Opp.”) at 2. Therefore, the Court will treat these
counts as a single claim for damages under section 1983.
II and III allege causes of action for negligence under the
District of Columbia's Wrongful Death Act and Survival
Act. See Compl. ¶¶ 61-77. Plaintiff claims
that the “District owed a duty of care to ensure that
the SPOs commissioned had the necessary and proper training
to carry out the standard of care applicable to law
enforcement, ” and that defendant “breached this
duty of care by failing to promulgate appropriate rules,
regulations, protocols, procedures, a proper training program
and materials[, ] and to properly train SPOs.”
Id. ¶¶ 62-63, 70, 73.
February 26, 2018, the District moved to dismiss
plaintiff's complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). See Def.'s Mot. at 1; Mem.
of P. & A. in Supp. of Def.'s Mot. [Dkt. # 22]
(“Def.'s Mem.”). The District argues that
plaintiff has failed to allege sufficient facts to state a
claim for failure to train under 42 U.S.C. § 1983.
See Def.'s Mem. at 8. It also maintains that it
is entitled to discretionary function immunity with regard to
plaintiff's negligence claim. Id. at
Plaintiff opposed the motion on March 12, 2018, Pl.'s
Opp., and the District replied on March 19, 2018. Reply to
Pl.'s Opp. [Dkt. # 26] (“Def.'s Reply”).
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, 556 U.S. 662, 678 (2009), quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In Iqbal, 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.” Iqbal, 556 U.S. at 678.
And “[s]econd, only a complaint that states a plausible
claim for relief survives a motion to dismiss.”
Id. at 679, citing Twombly, 550 U.S. at
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.”
Iqbal, 556 U.S. 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. 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
evaluating a motion to dismiss under Rule 12(b)(6), a 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
citation 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), quoting Thomas v. Principi, 394 F.3d
970, 972 (D.C. Cir. 2005). Therefore, when considering a
motion to dismiss, a court must construe a complaint
liberally in the plaintiff's favor. 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
plaintiff's legal conclusions. Id.; see also
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
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), citing EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997).
The Court will grant the District's motion to dismiss
plaintiff's section 1983 claim.
Municipal Liability under 42 U.S.C. § 1983
1983 of the Civil Rights Act provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party ...