UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________) JOEL T HOMAS HALL, ) ) P laintif

f, )

) v. ) Civil Action No. 07-0970 ( RBW) ) CATHY LANIER et al. , ) ) Defendan ts. ) ____________________________________) MEMORAN DUM OP INION In this civil rights ac tion, the plaintiff sues the District of Columbia (“ District”), the Metropolitan Police Depa rtment (“MPD” ), MPD Chief Cathy L anier and MPD Off

icer s J ose Fr eema n, Venson Wy

tch, Donnay

Davis, Ray

mond Hawkins, Michae l Ly nch and “ [o] ther [u] nnamed [MPD] [o] ffice rs” unde r 42 U.S.C. §§ 1983, 1985(3), 1986 (1996) and various common law torts. The pla intiff alleg es that betwe en June 2004 and Marc h 2007, MPD office rs repe atedly

subjected him to “thre ats of bodily injury , assaults, battery , illega l detainments, illeg al

sear ches a

nd seizures and violations of his rig ht to speech[.]” Second Amende d Complaint (“A m. Compl .”) [Dkt. No. 40] at 4, ¶ 11. He se eks monetar y damag es excee ding $2.5 million. Id . at 73. Pending be fore the Court is Defe ndant Donnay Davis’s Motion to Partially Dismiss under Rule 12(b)(6) of the F eder al Rules of Civil P roce dure [Dkt. No. 55]. This defendant a sserts that most of the common law tort cla ims ag ainst him are ba rre d by the statute of limitations, that the plaintiff has fa iled to state a ne g lige nce c laim ag ainst him, and that the alleg ations fail to comport with Fede ral Rule of Civil Procedure 9(f) conce rningtime and place of the a lleg ed misdeeds. Upon consider ation of the a lleg ations in the complaint, Davis’s motion and re ply [Dkt. No. 59] and the plaintiff’ s opposition [ Dkt. No. 58], the Court will g rant De fenda nt Davis’s motion for partial dismissal.I. F ACTUAL BACK GR OUND

The fa cts applica

ble to Def

endant Da

vis as alleg ed by

the plaintiff ar e as f

ollows. On November

15, 2006, “at a

pproxi mately

8:50 p.m.,” the plaintiff tappe d on the door of Mc Kinley Marke t at 321 T Street in the northe ast quadra nt of the District of Columbia “to g et the attention of employ ees inside[,]” Am. Com pl. ¶ 14, as he ha d done “[o]n previous occa sions[ ] when the store wa s closed,” id . ¶ 16. The pla intiff and the e mploy ees of the neig hborhood store “ had a friendly relationship” as a re sult of his near- daily trips to the store to purcha se items for himself and his family

. Id . ¶ 15. On that pa rticular da

y , howeve r, Off

icer s Wy tch, Fr eema

n and Davis “pulled up in front of

the store . . . in a ma

rked MPD vehic le[, and one] of the [officer s] flashed a light into [t he plaintiff’ s] ey es fr om the marke d . . . vehicle.” Id . ¶ 17. The pla intiff “aske d that the light not [be] shi ned into his ey es and a sked the MPD Off icer s to stop harassinghim for no

rea son.” Id . After

telling the of

fice rs that he wa s g oing to the store , one off icer told him t hat the store wa s closed, but the plaintiff r esponded that the store did not close until 9:00 p.m. Id . ¶ 18. In response to the plaintiff’s stated “ conce rns of be ing ha rasse d” and his a ccusations of “continuous violations” of his constitutional and civil rig hts by “other MPD Office rs[] ,” one office r “r esponded, ‘ Oh, you have a n attitude.’ ” Id . ¶ 19. The of fice rs then “jumped out [of] their vehic les and rushe d very fast towar ds [t he plaintiff] with one of [the office rs] point ing a g un at [him ] and one ask[ing] . . . [ whether the plaintiff had] any

thing on him they

neede d to know about,” to which the plaintiff “r esponded ‘ No.’ ” Id . ¶ 20. When the plaintiff be came confuse d over the office rs’ “ inconsistent commands,” the of fice rs “jumped on [his] back . . . a nd attacke d him.” Id . ¶ 21. While restrainingthe plaintiff, the of fice rs threwhim to the gr ound, injured his shoulder, sat on his bac k, ¶¶ 22- 24, and appa rently hit him on t he bac k of the he ad, “which

2forc ed his skull to hitthe conc rete alley paveme nt” twice, “ knockinghim unconscious for a few seconds,” id . ¶ 25. Eventua lly , the offic ers “ arr ested” the plaintiff at the sc ene, id . ¶ 31, but later rele ased him fr om their custody , id . ¶ 36, and the plaintiff went home, id . ¶ 37. The pla intiff “suff ere d injuries to his forehe ad, hea d, scalp, ne ck, fa ce, shoulde r, one [knee], one [ankle], and his elbows. . . .” Id . ¶ 39. Prior to his relea se fr om police custody , the plaintiff dec lined the office rs’ off

er to g o to the hospital “bec ause at that time he did not know and was not a war e of the damag es done. . . .” Id . ¶ 36. The pla intiff later w ent to the Fif th District Poli ce Hea dquarte rs to file a c omplaint ag ainst the offic ers. Id . ¶ 37. While there, he “fe lt so faint that he aske d to be taken to a

hospital” and wa s taken by ambulance to the Emerg ency Depa rtment at Providence Hospital in the District of Columbia, id . ¶ 38, whe re he was late r diagnosed “w ith havinga contusion of the he ad, sca lp, fac e and ne ck,” id . ¶ 39. The plaintiff c laims that Office rs Fr eema n, Wy tch and Da

vis collectively

denied him medical c are for the injurie s he sustained duringhis encounter with them, in violation of the Fifth Amendment’s due proce ss clause. Am. Compl. ¶¶ 84-87. The pla intiff also prese nts claims of 1 assault, batter

y , neg lige nce, f

alse a rre st, defamation, libel and slander, a nd intentional infliction of emotional distress ag ainst those office rs. See id . ¶¶ 157, 165- 66, 172-74, 196-97, 206- 07, 217-21. In the sec ond amende d complaint filed on May 1, 2009, the plaintiff adde d Davis as a defe ndant to this action initi ally filed on May

24, 2007. 2

SeeOrde r and a ccompa

nying Me morandum Opinion of De cembe r 2, 2009 [Dkt. Nos. 1 56, 57] (dism issing cla im based on the unc onstitut ional denial of me dical ca re)

. Be cause Davis is implicated only in the events of N ovember 15, 2006, the Court finds 2 no merit to his argument that the complaint ag ainst him is deficient under F ed. R. Civ. P. 9(f) as to time and place

. 3II. DISCUSS ION

1. The Statute of L imitations Davis ar gues that the plaintiff’ s claims of Assault (Count XI I I ), B attery (Count XI V), Fa lse Arr est (Count XVI I ), De famation, L ibel and Slander (Count XVI I I ), and I

ntentional Infliction of Emotional Distress (Count XIX) a re ba rre d by the District of Columbia’s one- y ear statute of limitations set forth at D.C. Code § 12-301. Memora ndum of Points and Authorities in Support of Def

endant Donna

y Davis’ Motion to Partially Dismiss (“Def

.’s Mem.”) at 3-4. The plaintiff does not dispute that he ha d until November 15, 2007, one y ear from the a

rre st date of November

15, 2006, to file those claims ag ainst Davis, but he ar gues that the time for filing the m should be equitably

tolled under the doc trine of “ lulling.” SeePlaintiff’s Opposition to Def endant Donna

y Davis’ Motion to Partially Dismiss wit h Incorpor ated Me morandum of Points and Authorities (“ Pl.’s Opp’n”) at 2. I t is a well-esta blished principle of la

w that “[a] defenda

nt who eng ag es in ‘inequitable c onduct’ c an be e quitably estopped fr om invoking the statute of limit ations.” Jankov ic v. I nt’l Crisis Group , 494 F.3d 1080, 1086 ( D.C. Cir. 2007) (quoting Chung v. U.S. De

p't of Justice , 333 F.3d 273, 278 ( D.C. Cir. 2003)). “Similar to equitable estoppel, the doc trine of lulling a pplies when the de fenda

nt ‘ha[s] done somethingthat amounted to an af firmative induce ment to plaintiffs to delay bring ing a ction[.] ’ ” Id . at 1087 (quoting Bailey v . Gree nberg , 516 A.2d 934, 937 (D.C. 1986)) (other c itation omit ted; alteration in orig inal); see M

onroe v. W

illiams , 705 F. Supp. 621, 626 (D.D .C. 1988) (" I t is clear f rom the

case law that def

endant must have somehow ac ted affirmati vely to preve nt plaintiff from filing his lawsuit.") ( emphasis in orig inal). The plaintiff a

rgues that “[t] he lulling doc trine is available . . . beca use of the spe cific a cts by the def endant wa s [s ic] directed to conc eal his identity to preve nt the plaintiff from f iling any 4cause of ac tions [ sic] aga inst him .” Pl.’s Opp’n at 3. Even if true , such conduc t does not

constitute an “a ffirmative inducement[;] ” thus, the “doc trine of lulling is una vailing.” Jankov ic , 494 F.3d at 1087; see id . (desc ribingsuch induce ment “as when a de fenda nt promises to settle a dispute outside of court” ) (c itations omi tted). As the plaintiff a cknowledg es, seePl.’s Opp’n at 2, District of Columbia law does not per mit a party ’s conc ealment of his identity

to serve a s a basis for e quitable estoppel. See J ankovic , 494 F.3d 1086 ( stating that “the Chappelle rule

rema ins the law of the D istrict of Columbia”) (c iting Chappelle's Estat e v. Sande rs , 442 A.2d 157, 158-59 (D.C. 1982) ( holding that the c oncea lment of one’s ide ntity does not toll the running of the statute of

limit ations). Ther efor e, the Court g rants De fenda nt Davis’s motion to dism iss the af oreme ntioned common law cla ims as time-barr ed. 2. Fa ilure to State a Claim of Ne g lige nce A cour t may dismiss a complaint on the ground that it fails to state a c laim upon which relief can be g rante d if, assumingthe fa cts as alleg ed by the plaintiff to be true and dra wingall infere nces in the pla intiff’s favor, it appea rs that the plaintiff c an prove no fac ts “consistent with the alleg ations in the complaint” to support the cla im. Bell Atl. Corp. v. Tw ombly, 550 U.S. 544, 563 (2007) ( citations omitt ed). “ Although de tailed fa ctual alleg ations are not nece ssary to withstand a Rule 12(b)( 6) motion to dism iss, to provide the g rounds of e ntitlement to relief, a plaintiff must furnish more than la bels and c onclusions or a for mulaic re citation of the e lements of a c ause of

action.” Hinson ex re l. N.H. v. Merritt Educ. Ctr. , 521 F. Supp. 2d 22, 27 (D.D .C. 2007) (inter

nal quotation marks omitted) (quoting Bell Atl. Corp. , 550 U.S. at 555). Thus, “[t] he complaint' s fac tual alleg ations must be enoug h to raise a rig ht to relief a

bove the spe culative level, on the a ssumption t hat all the alleg ations in the complaint are true (e ven if doubtful in

5fac t).” Hinson , 521 F. Supp. 2d at 27 (a lteration in orig inal) (inter nal quotation marks omitted) (quoting Bell Atl. Corp . , 550 U.S. at 555). In support of his neg lige nce c laim, the plaintiff alleg es that Davis, alongwith Wy tch and Fr eema n, “ca used [him] to suffer

injuries to his forehe ad, hea d, scalp, fa ce, ne ck, bac k, ankles, knees, wrists and shoulder on Nove mber 15, 2006,” Am. Compl. ¶ 172, when they “g rabbe d [hi m] and thre w him on a conc rete alley paveme nt on the g round, id . ¶ 173, and that Davis and the other of

fice rs bre ache d their “duty to exercise re asonable car e in the ar rest and de tention of the Plaintiff to ensure that he was not subjec ted to injuries,” id . ¶ 172. The pla intiff contends in conjunction with pleadinghis neg lige nce c laim that those same ac ts were also “intentional,

rec kless, and malicious bre ach of duty . . . .” Id . ¶ 175. The de fenda nt argues that bec ause the alleg ed fa cts are indisti nguishable fr om those supporting the assault and battery claims, the neg lige nce c laim must be dismi ssed. SeeDef .’s Mem. at 5-6 ( citing Maddox v . Bano , 422 A.2d 763, 764-65 (D.C. 1980) a nd District of C

olumbia v. Chinn , 839 A.2d 701, 711 (D.C. 2003)) . As discussed next, the Court finds Chinn to be dispositive of the plaintiff’s ne g lige nce c laim ag ainst Davis. 3 Whil e ac knowledg ing tha t “[a]n i ndividual who has bee n injured by a District police office r may

sue under

one or more common law theor ies of leg al liability such as a ssault and battery or neg lige nce,” id . at 705, the District of Columbia Court of Appe als explained in Chinn that “if, in a c ase involvingthe intentional use of f orce by police off

icer s, a neg lige nce c ount is to

“[T] he substantive tort law of the District of Columbia controls” the pla intiff’s 3 neg lige nce c laim. Smith v. Hope V illage, Inc. , 481 F. Supp. 2d 172, 184 (D.D .C. 2007) (interna l quotation marks and c itation omit ted). “ [T] o establish neg lige nce [in the District of Columbia,] a plaintiff must prove a duty of ca re ow ed by

the def endant to the plaintiff, a

brea ch of that duty

by the def endant, a nd damag e to the intere sts of the plaintiff, proximately cause d by

the bre ach.” Id (alter ations in origina l) (interna l quotation marks and citation omitted). 6be submitted to a jury , that neg lige nce must be distinctly pled and ba sed upon at lea st one fac tual

scena rio that prese nts an aspec t of neg lige nce a part fr om the use of e x cessive f orce itself and violative of a distinct standar d of ca re,” id . at 711. That c ourt there fore found that alleg ations that office rs used “ ‘unnec essar y and wa nton severity

while ar restingPlaintiff[ ,]’ . . . ‘brea ched their duty as they wer e neg lige nt in their excessive use of f orce ’ and ‘ knowing ly

and maliciously acte d in manner that would cause injury to Plainti ff’ s person’ ” failed to state a claim “se parate and distinct from the a lleg ed batter y . . . .” Id .; see Ste wart-Veal v. District of Columbia , 896 A.2d 232, 235 (D.C. 2006) ( aff irming dismissal of neg lige nce c laim “base d on the [int entional] actions of the a

rre sting off

icer s, and not on the alleg ed neg lige nce of their super iors.”). L ikewise, the a lleg ations of the complaint ag ainst Davis “do not re flec t neg lige nce, but r ather an intentional tort with a conclusory alleg ation of neg lige nce.” Id . (citation omitted); see Sabir v. District of Columbia , 755 A.2d 449, 452 (D.C. 2000) ( stating “ it is settl ed that a pe rson ca nnot neg lige ntly

commit an intentional tort.”); District of C olumbia v. Tinker , 691 A.2d 57, 64 (D.C. 1997) (obse rvingthat “[n] othing in the c ase la w [addressingexcessive forc e cla ims] even hints at an ele ment of neg lige nce, or a tort distinct from assault and battery .”); accord Austin v. D istrict of Columbia , No. 05-2219 (JDB) , 2007 WL1404444, at *6 n.4 (D.D .C., May 11, 2007) (c iting

case s in this C ourt, except for one , applying “ the Chinn fra mework in e x cessive- forc e ca ses [and concluding ] t hat the plaintiffs’ ne g lige nce c laims could not be submitted to the jury .”); Harrison v. District of Columbia , Civil Action No. 00-3008 ( RBW) at *7 (D.D .C. filed Mar. 31, 2004) (conc luding that “ beca

use the grava

men of the c laim is that the police offic ers intentionally used excessive forc e ag ainst plaintiffs, the neg lige nce c laim must be dismi ssed as the intentional use of excessive for ce c omponent of the c laim is subsum ed with the assa ult and battery

claim.”) 4 The plaintiff’ s strained a ttempt to resurre ct the neg lige nce c laim in his opposi tion by 4 (continued...) 7CONCLUSION

For the fore g oing r easons, the Court grants De fenda nt Davis’s motion to dism iss the common law tort cla ims as time-barr ed and the neg lige nce c laim for fa ilure to state a c laim. 5

________s/________________ Reg g ie B . Walton Date: Apr il 22, 2010 United States District J udg e

(...continued) 4 arguing that Davis deviate d from what seems to be a g ener alized standard of car e in appr oaching citizens, seePl.’s Opp’n at 11-13, not only fails to state the e lements of a ne g lige nce c laim set forth at note 3, but it also pre sents the ty pe of “ labels and c onclusions” the Supreme Court instructed ag ainst acc eptingwhen c onsideringa Rule 12(b) (6) motion to dismi ss. Twombly , 550 U.S. at 555. A sepa rate Orde r ac companies this Memora ndum Opinion. 5 8