UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) FRELIMO SIMBA, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1692 (RWR) ) ADRIAN FENTY, et al., ) ) Defendants. ) _____________________________ )

MEMORANDUM OPINION AND ORDER

The plaintiff, Frelimo Simba, brought suit against Mayor

Adrian Fenty and Fire Department Chief Dennis Rubin in their

official capacities, and against the District of Columbia

alleging unlawful discrimination during Simba’s employment as a

fire fighter with the District of Columbia Fire and Emergency

Medical Service Department. The defendants move to dismiss the

amended complaint, arguing that a suit against only the District

of Columbia and not against the individual defendants in their

official capacities is proper, that Simba failed to exhaust his

administrative remedies and failed to allege in his amended

complaint facts entitling him to injunctive relief, and that

Simba failed to serve the District of Columbia with his amended

complaint. Because the claims against Fenty and Rubin are

unnecessary, but Simba provides sufficient proof that he

exhausted his administrative remedies and served the amended

complaint, and the defendants’ request to dismiss a prayer for -2-

relief is baseless, the defendants’ motion to dismiss will be

granted in part and denied in part.

BACKGROUND

Simba is a black male employed by the District of Columbia

Fire and Emergency Services Department. In 2006, Simba, then

serving as a fire fighter, responded to a “‘man down’ call” but

the patient died two days later. (Am. Compl. ¶ 11.) The D.C.

Office of the Inspector General found that the department

“committed multiple failures” in response to that call. (Id.

¶ 18.) As a result, the department placed Simba on

administrative duty and charged him “with obstructing a

Department investigation and violating medical protocols[.]”

(Id. ¶¶ 19-20.) In 2007, Rubin issued a letter stating that

Simba’s employment with the department would be terminated, but

the Superior Court blocked the termination.

Simba thereafter filed a formal administrative complaint of

discrimination. Following that complaint, Simba was

involuntarily reassigned to the Office of Risk Management. Simba

alleges that the reassignment was in retaliation for his filing

the discrimination complaint and deprived him of the ability to

collect overtime and secure part-time employment. Simba further

alleges that since the reassignment, he has been subjected to a

discriminatory hostile work environment. -3-

Simba filed this action in October of 2008. The amended

complaint seeking damages and injunctive relief was docketed in

December of 2008. The defendants moved on February 2, 2009, to

dismiss Simba’s amended complaint under Federal Rule of Civil

Procedure 12(b)(6), asserting that claims against the two

individual defendants named in their official capacities are

duplicative of those against the District of Columbia; that Simba

failed to exhaust his administrative remedies before filing this

suit; that there are no facts alleged that, if proved, would

entitle Simba to injunctive relief; and that Simba did not serve

the District of Columbia with the amended complaint. (Defs.’

Mot. to Dismiss at 1.)

DISCUSSION

Rule 12(b)(6) allows dismissal of a complaint where a

plaintiff fails to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6). When a complaint is

challenged under Rule 12(b)(6), a court must discern whether a

complaint “contain[s] sufficient factual matter, acceptable as

true, to state a claim to relief that is plausible on its face.”

Perry v. Scholar,

(D.D.C. 2010) (quoting

Ashcroft v. Iqbal,

(2009)) (internal

quotation omitted). For a claim to be facially plausible, the

complaint must contain “factual content that allows the court to

draw the reasonable inference that the [defendants are] liable -4-

for the misconduct alleged.”

For purposes of a Rule

12(b)(6) motion, “[t]he complaint must be construed in the light

most favorable to the plaintiff and ‘the court must assume the

truth of all well-pleaded allegations.’”

(quoting Warren v.

District of Columbia,

(D.C. Cir. 2004)).

I. OFFICIAL CAPACITY DEFENDANTS

“Claims brought against government employees in their

official capacity are treated as claims against the employing

government and serve no independent purpose when the government

is also sued.’” Hardy v. Dist. of Columbia,

(D.D.C. 2009) (internal quotation and citation omitted);

see Kentucky v. Graham,

(1985); Monell v.

New York City Dept. Of Social Servs.,

, 690 n.55

(1978). Claims brought against individuals in their official

municipal capacities that are brought simultaneously against the

municipality employing the officials are dismissed as

duplicative. See, e.g., Robinson v. District of Columbia,

(D.D.C. 2005); Cooke-Seals v. District of

Columbia,

(D.D.C. 1997).

Here, Simba asserts all of his claims against all three

defendants. His action, then, is in essence an action against

the District of Columbia. As the District of Columbia is, in

effect, the real party being sued, all claims against Fenty and

Rubin will be dismissed. -5-

II. EXHAUSTION

“‘Title VII requires that a [non-federal employee]

complaining of a violation file an administrative charge . . .

and allow the [responding] agency time to act on the charge.

Only after the [agency] has notified the aggrieved person of its

decision to dismiss or its inability to bring a civil action

within the requisite time period can that person bring a civil

action herself.’” Browne v. Potomac Elec. Power Co., Civil

Action No. 05-1177 (RWR),

at *2 (D.D.C. July 3,

2006) (quoting Park v. Howard Univ.,

(D.C. Cir.

1995)).

The defendants contend that Simba failed to allege that he

exhausted his administrative remedies and received a right to sue

letter before filing suit in this court. (Defs.’ Mem. at 6-7.)

Reading the amended complaint in the light most favorable to

Simba, however, establishes the opposite. Simba specifically

alleges that he pursued an administrative resolution. (See,

e.g., Am. Compl. ¶¶ 3-6, 62, 82.) Indeed, Simba claims that he

was discriminated against because he sought out administrative

relief. While these assertions seem sufficient on their own,

Simba has also submitted a copy of his right to sue letter as

proof of total exhaustion. (Pl.’s Opp’n Ex. 2.) Simba has

sufficiently pled and established that he has exhausted his

administrative remedies. -6-

III. INJUNCTIVE RELIEF

Defendants also move to dismiss the amended complaint’s

request for injunctive relief, arguing that injunctive relief is

permissible only in extreme circumstances, and that the amended

the complaint fails to allege sufficient extreme conduct to

justify injunctive relief. (Defs.’ Mem. at 7-8.) However,

“injunctive relief is not a claim but a remedy,” making a motion

to dismiss under Rule 12(b)(6), as opposed to a motion to strike

under Rule 12(f), an inappropriate method of challenge. Corral

v. Homeeq Servicing Corp., No. 2:10-cv-00465,

, at

*7 (D. Nev. October 6, 2010); see also Jumpfly, Inc. v. Torling,

No. 10-C-0385,

, at *1 (N.D. Ill., May 17, 2010).

The defendants would fare no better if their request were

treated as a motion to strike the prayer for injunctive relief.

“The decision to grant or deny a motion to strike is vested in

the trial judge’s sound discretion.” Pinnacle Airlines, Inc. v.

National Mediation Bd., Civil Action No. 03-1642 (ESH),

, at *1 (D.D.C. Nov. 5, 2003) (citing Talbot v. Robert

Matthews Distrib. Co.,

, 665 (7th Cir. 1992) and

Alvarado-Morales v. Digital Equip. Corp.,

(1st

Cir. 1988)). Under Rule 12(f), any “insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter” may be

stricken “in order to avoid the time, effort, and expense

necessary to litigate spurious issues.’” Nwachukwu v. Karl, 216 -7-

F.R.D. 176, 178 (D.D.C. 2003). However, “[a] defendant’s motion

to strike a prayer for relief is premature if such relief is

provided for by law.” Jumpfly,

, at *4 (citing

Aspen Marketing Services, Inc. V. Russell, No 09-C-2864,

, at *2 (N.D. Ill. December 3, 2009)). Here, since Title

VII specifically provides for injunctive relief, see Porter v.

United States Agency for Int’l Dev.,

(D.D.C.

2002), a request to strike the amended complaint’s prayer for

injunctive relief would be denied as well.

IV. SERVICE

Defendants argue that Simba failed to serve the amended

complaint upon the District of Columbia. In order to serve a

state or local government, an individual must either “(A)

deliver[ ] a copy of the summons and of the complaint to its

chief executive officer; or (B) serv[e] a copy of each in the

manner prescribed by that state’s law.” Fed. R. Civ. P. 4(j)(2).

Under District of Columbia law, the Mayor is entitled to

designate an employee for receipt of service of process upon the

District of Columbia. D.C. Superior Ct. R. 4(j)(1). The Mayor

has designated the Secretary of the District of Columbia as his

agent for service of process and empowered the Secretary to

designate personnel upon whom service may be made. (Defs.’ Mot.

to Dismiss at 8-9.) The Secretary has designated four employees, -8-

including Abby Frankson, as authorized to receive process. (Id.

at 9.)

Simba contends that the District of Columbia was served with

the amended complaint on February 9, 2009, one week after the

defendants moved to dismiss the complaint. Simba has provided a

copy of an affidavit from non-party Robert Storms that he served

the amended complaint upon Frankson on February 9, 2008. (Pl.’s

Opp’n, Ex. 1.) The 2008 entry was an obvious and harmless

typographical error that does not undermine proof of service.

See United States v. Price,

, 1513 n.10 (D.C. Cir.

1990) (refusing to set aside a forfeiture of cash where a

supporting affidavit erroneously alleged a vehicle confiscation

because it was an “obvious and harmless clerical error”). The

original complaint had not even been filed yet in February 2008.

The affidavit was sworn to and notarized on February 11, 2009,

two days after the service Simba argues occurred on February 9,

2009. The affidavit also clearly identifies the current case,

both by caption and by case number. It specifically refers to

service of the amended complaint (id.), and only one amended

complaint exists in this action. Finally, the defendants have

not filed any reply challenging the evidence that the District of

Columbia was served on February 9, 2009. Proof of service has

been established. -9-

CONCLUSION AND ORDER

Simba has demonstrated that he pursued administrative

remedies, received a right to sue letter, and served the amended

complaint upon the District of Columbia. Moreover, the

defendants’ request to dismiss the prayer for injunctive relief

is baseless and would be premature if treated as a request to

strike the prayer. However, the claims against the individual

defendants sued in their official capacity will be dismissed as

duplicative of those brought against the District of Columbia.

Accordingly it is hereby

ORDERED that the defendants’ motion to dismiss be, and

hereby is, GRANTED in part and DENIED in part. Defendants Fenty

and Rubin are dismissed from the case. The remainder of the

motion is denied.

SIGNED this 7th day of December, 2010.

/s/ RICHARD W. ROBERTS United States District Judge