United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2011 Decided January 17, 2012

No. 10-7101

ROGER RUDDER, ET AL.,

APPELLANTS

v.

SHANNON WILLIAMS, OFFICER, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-02174)

Gregory L. Lattimer argued the cause for appellants. 

With him on the briefs was Anitha W. Johnson. 

Mary L. Wilson, Senior Assistant Attorney General, 

Office of the Solicitor General for the District of Columbia, 

argued the cause for appellees. With her on the brief were 

Irvin B. Nathan, Acting Attorney General at the time the brief 

was filed, Todd S. Kim, Solicitor General, and Donna M. 

Murasky, Deputy Solicitor General. 
2

Before: GINSBURG,

* HENDERSON and KAVANAUGH, 

Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: Roger Rudder, two other 

adults, and two juveniles sued the District of Columbia and

two Metropolitan Police officers for using excessive force 

against them in violation of their civil rights. The district 

court dismissed their suit “with prejudice.” We reverse the 

judgment of the district court with respect to the claims

against the officers under the Fourth Amendment to the 

Constitution of the United States and with respect to the 

juveniles’ common law claims and remand the case for 

further proceedings. In all other respects, we affirm the 

judgment of the district court.

I. Background

Roger Rudder, Rosena Rudder, Noverlene Goss, and 

juveniles E.R. and D.G. allege William Chatman and Shannon 

Williams, officers of the Metropolitan Police Department,

assaulted them at the 2008 Caribbean Carnival Parade in 

Washington, D.C. According to their complaint, the five 

plaintiffs stepped into the street to embrace family members 

participating in the parade. Officer Chatman ordered them to 

return to the sidewalk. While they were doing so, Chatman 

“forcibly shoved” Rosena Rudder and Officer Williams struck 

the two children with her baton. Several other officers 

arrived, “withdrew their batons and used excessive force on 

all Plaintiffs.” In particular, “Officers Williams and Chatman 

... beat Plaintiffs with their batons and forced Plaintiffs to the 

 * As of the date the opinion was published, Judge Ginsburg had 

taken senior status.
3

ground.” The officers then arrested the adult plaintiffs. After 

being released, they were taken to a hospital for treatment of 

their injuries.

In 2009 the plaintiffs filed this suit claiming damages for 

common law torts and, pursuant to 42 U.S.C. § 1983, for 

violations of their rights under the Fourth, Fifth, and 

Fourteenth Amendments to the Constitution. The claims 

against Officers Chatman and Williams were based upon their

allegedly excessive use of force. The claim against the 

District was premised upon the allegation the District “as a 

matter of policy, practice, and custom, has with deliberate 

indifference failed to adequately train” or “supervise, 

sanction, or discipline” its police officers. See Monell v. 

Dep’t of Social Services, 436 U.S. 658 (1978) (establishing 

the criteria for municipal liability under § 1983). 

The defendants filed separate motions seeking dismissal

of certain counts for failure to state a claim upon which relief 

can be granted. Officers Williams and Chatman argued (1) 

the Fifth Amendment does not apply to the use of force 

incident to arrest, (2) the Fourteenth Amendment does not 

apply to the District of Columbia, and (3) the adult plaintiffs’ 

common law claims were barred by the one-year statute of 

limitations for assault and battery, see D.C. Code § 12-301(4). 

The District argued the complaint did not contain sufficient 

factual allegations regarding its policies or customs to state a 

claim under the pleading standard established in Ashcroft v. 

Iqbal, 556 U.S. 662; 129 S. Ct. 1937 (2009). All the 

defendants noted that, because the statute of limitations for 

common law claims by juveniles does not begin to run until 

they reach 18 years of age, D.C. Code § 12-302, “the common 

law claims of the juveniles as well as the constitutional claims 

against the police officers remain.”
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In their response to the motions to dismiss, the plaintiffs 

expressly abandoned their claims under the Fifth and 

Fourteenth Amendments. They also inexplicably did “not 

oppose that their common law claims are time-barred by a 

one–year statute of limitations,” a concession not limited to 

the adults’ claims and thus broader than the affirmative 

defense raised against them. They went on, specifically 

listing as time-barred all the counts of the complaint alleging 

common law torts and proposed an order stating “all of 

Plaintiffs’ common law claims are dismissed.” The plaintiffs 

did, in contrast, “re-affirm their claims against Defendants 

under the Fourth Amendment.” They also argued their 

constitutional claim against the District was viable. In reply 

the defendants noted the plaintiffs had conceded the common 

law claims of both the adult and the juvenile plaintiffs and 

argued the complaint lacked sufficient factual allegations to 

support the Fourth Amendment claims against the District.

*

The district court dismissed the complaint in its entirety 

pursuant to Federal Rule of Civil Procedure 12(b)(6), stating 

it did so “with prejudice.” The court noted the plaintiffs had 

conceded all their common law claims as barred by the statute 

of limitations and had conceded their claims under the Fifth 

and Fourteenth Amendments were without merit. The court 

then rejected their claim against the District because the 

complaint “merely recite[d] the elements of municipal 

liability” and “utterly failed to allege any fact as to the 

District’s custom or policy that could form the basis of 

liability under Section 1983.” The court did not specifically 

address the plaintiffs’ Fourth Amendment claims for 

 * In the reply the defendants also said Officer Williams had not 

been served with the complaint. Williams, however, did not file a 

motion to dismiss the complaint for insufficient service of process 

pursuant to Federal Rule of Civil Procedure 12(b)(5), nor did the 

district court address the matter. Neither, therefore, do we.
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excessive force, nor had the defendants included those claims 

in their motions to dismiss; by dismissing the entire 

complaint, however, the court necessarily dismissed those 

claims sua sponte.

The plaintiffs moved for reconsideration, arguing their

“concession went only so far as to [sic] the adult Plaintiffs, 

and did not concede that the claims of the minor Plaintiffs 

were barred by the one-year statute of limitations.” They also 

suggested the court had “inadvertently dismissed Plaintiffs’ 

count against Defendant Officer Williams and Officer 

Chatman for violation of their Fourth Amendment rights 

under Section 1983.” The district court denied the motion 

without explanation.

II. Analysis

The plaintiffs challenge the district court’s dismissal with 

prejudice of the juvenile plaintiffs’ common law claims on the 

ground their concession was misconstrued. That concession, 

they argue, went only to the adult plaintiffs’ claims, which 

clearly were barred by the statute of limitations. They

challenge the district court’s dismissal with prejudice of their

claims under the Fourth Amendment on the ground their 

complaint alleges facts showing Officers Chatman and 

Williams used excessive force against them.

We decide de novo the merits of a motion to dismiss for 

failure to state a claim upon which relief can be granted. 

Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 378 

(D.C. Cir. 2010). A court should dismiss a complaint for 

failure to state a claim only if the complaint does not “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, ____; 129 S. Ct. 1937, 1949 (2009) (quoting Bell 
6

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To 

state a facially plausible claim, a complaint must set forth 

“factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct 

alleged.” Id.

A. Common Law Claims

The plaintiffs urge us to read their response to the 

defendants’ motions to dismiss as having conceded only the 

adult plaintiffs’ and not the juveniles’ common law claims. 

Although we agree it made no sense for the plaintiffs to 

concede as untimely claims that were not barred by the statute 

of limitations, that is clearly what they did, going so far as to 

submit a proposed order providing “all of Plaintiffs’ common 

law claims are dismissed.” Lest there be any doubt upon that 

score, we note the defendants’ reply had put the plaintiffs on 

notice of the full scope of their concession. Yet only after the 

district court had accepted the plaintiffs’ invitation to dismiss 

“all of Plaintiffs’ common law claims” did the plaintiffs speak

up. That belated attempt at clarification cannot undo their 

repeated and unambiguous concession, which simply does not 

admit of an implied qualification excepting the juveniles’ 

claims. We cannot but conclude the plaintiffs conceded the 

common law claims of the juveniles.

The district court was therefore on solid ground in 

dismissing those claims. The court erred, however, in 

dismissing them with prejudice.

Dismissal with prejudice is the exception, not the rule, in 

federal practice because it “operates as a rejection of the 

plaintiff’s claims on the merits and [ultimately] precludes 

further litigation of them.” Belizan v. Hershon, 434 F.3d 579, 

583 (D.C. Cir. 2006) (quotation marks and citation omitted); 
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see also Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485, 

2494 (2010) (noting “the preference expressed in the Federal 

Rules of Civil Procedure ... for resolving disputes on their 

merits”). Accordingly, the “standard for dismissing a 

complaint with prejudice is high: ‘dismissal with prejudice is 

warranted only when ... the allegation of other facts consistent 

with the challenged pleading could not possibly cure the 

deficiency.’” Belizan, 434 F.3d at 583 (quoting Firestone v. 

Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)). That

exacting standard is not met here. Indeed, because the statute 

of limitations for the juvenile plaintiffs’ common law claims 

is tolled until they reach majority, no additional facts need be 

pled. That is, the deficiency in this case lies not in the 

complaint but in the plaintiffs’ erroneous concession, which

requires no cure beyond simply filing the complaint anew. 

The defendants suggest no reason to deny the juvenile 

plaintiffs the opportunity to pursue their common law claims

in a new case, and we see none. Accordingly, we reverse the 

judgment of the district court insofar as it dismisses the 

juvenile plaintiffs’ common law claims “with prejudice.”

B. Fourth Amendment Claims

The district court also erred in dismissing the plaintiffs’ 

claims under the Fourth Amendment. A police officer’s use 

of force is excessive and therefore violates the Fourth 

Amendment if it is not “reasonable,” that is, if “the nature and 

quality of the intrusion on the individual’s Fourth Amendment 

interests” is weightier than “the countervailing governmental 

interests at stake.” Graham v. Connor, 490 U.S. 386, 396 

(1989). To be sure, “[n]ot every push or shove, even if it may 

later seem unnecessary in the peace of a judge’s chambers,” 

violates the Constitution, Johnson v. District of Columbia, 

528 F.3d 969, 974 (D.C. Cir. 2008) (quotation marks and 
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citation omitted); still, “a police officer must have some 

justification for the quantum of force he uses,” id. at 977.

The plaintiffs allege facts sufficient to support their claim 

that Officers Chatman and Williams acted with a degree of 

force unjustified by the circumstances. The defendants wisely

concede this point with respect to the allegations against 

Officer Williams. The complaint alleges that, unprovoked 

and without warning, she struck with her baton children aged 

five and 15. The complaint also alleges Officer Williams beat 

plaintiff Goss with her baton after Ms. Goss “called out to the 

officer in response” to Officer Williams’ use of force against 

the child D.G. A person who responds verbally to a police 

officer assaulting a child hardly invites violence against 

herself.

The allegations against Officer Chatman, although less 

graphic, no less clearly state a claim for a violation of the 

Fourth Amendment. Both Officers Chatman and Williams 

allegedly “beat [the adult] Plaintiffs with their batons and 

forced [them] to the ground” even though they had complied 

with Officer Chatman’s order to return to the sidewalk. 

Unlike, say, pushing an arrestee against a wall and pulling his

arm behind his back, beating a suspect to the ground with a 

baton exceeds in violence anything “we would expect in the 

course of a routine arrest,” Oberwetter v. Hilliard, 639 F.3d 

545, 555 (D.C. Cir. 2011). Nor was there any aggravating 

factor justifying a greater degree of force. See Graham, 490 

U.S. at 396 (listing factors, such as “attempting to evade

arrest,” that would justify the use of force). In sum, we hold 

the facts alleged in the complaint set forth plausible claims the 

officers violated the plaintiffs’ rights under the Fourth 

Amendment. The district court therefore erred in dismissing 

those claims.
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Even if the facts set forth in the complaint had been

insufficient to survive a motion to dismiss, it would have been 

an error to dismiss those claims with prejudice because it 

could not be said “the allegation of other facts consistent with 

the challenged pleading could not possibly cure the 

deficiency,” Belizan, 434 F.3d at 583. Nothing in the 

complaint is inconsistent with a plausible claim to relief.

Nor did the defendants ever move the court to dismiss the 

Fourth Amendment claims against the officers. Hence we reiterate “our long-standing rule”:

[S]ua sponte dismissal for failure to state a claim 

without leave to amend is reversible error unless the 

claimant cannot possibly win relief ... [because] the 

facts alleged affirmatively preclude relief, or because, 

even though plaintiff makes clear that he has facts to 

add to his complaint, he would not have a claim upon 

which relief could be granted even with those facts.

Razzoli v. Federal Bureau of Prisons, 230 F.3d 371, 377 

(2000) (internal quotation marks and citation omitted). 

Justice requires that a plaintiff be afforded the opportunity to 

refine his allegations without losing forever the right to 

litigate his claims on the merits. The Federal Rules reflect 

this principle: “The court should freely give leave [to amend a 

complaint] when justice so requires.” FED. R. CIV. P.

15(a)(2). So it did here.*

 * The plaintiffs do not dispute on appeal the dismissal of their 

constitutional claim against the District. Accordingly, that claim is 

either abandoned or forfeit.
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III. Conclusion

Although the plaintiffs unambiguously conceded all their 

common law claims, the juvenile plaintiffs’ common law 

claims should have been dismissed without prejudice because 

those claims were not time-barred. The complaint also alleges 

facts stating facially plausible claims against Officers 

Chatman and Williams for violations of the Fourth 

Amendment. In the foregoing respects, therefore, the 

judgment of the district court is

Reversed.