UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JOEL THOMAS HALL, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-0970 (RBW) ) CATHY LANIER et al., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

In this civil rights action, the plaintiff sues the District of Columbia (“District”), the

Metropolitan Police Department (“MPD”), MPD Chief Cathy Lanier and MPD Officers Jose

Freeman, Venson Wytch, Donnay Davis, Raymond Hawkins, Michael Lynch and “[o]ther

[u]nnamed [MPD] [o]fficers” under

, 1985(3), 1986 (1996) and various

common law torts. The plaintiff alleges that between June 2004 and March 2007, MPD officers

repeatedly subjected him to “threats of bodily injury, assaults, battery, illegal detainments, illegal

searches and seizures and violations of his right to speech[.]” Second Amended Complaint

(“Am. Compl.”) [Dkt. No. 40] at 4, ¶ 11. He seeks monetary damages exceeding $2.5 million.

.

Pending before the Court is Defendant Donnay Davis’s Motion to Partially Dismiss under

Rule 12(b)(6) of the Federal Rules of Civil Procedure [Dkt. No. 55]. This defendant asserts that

most of the common law tort claims against him are barred by the statute of limitations, that the

plaintiff has failed to state a negligence claim against him, and that the allegations fail to comport

with Federal Rule of Civil Procedure 9(f) concerning time and place of the alleged misdeeds.

Upon consideration of the allegations in the complaint, Davis’s motion and reply [Dkt. No. 59]

and the plaintiff’s opposition [Dkt. No. 58], the Court will grant Defendant Davis’s motion for

partial dismissal. I. FACTUAL BACKGROUND

The facts applicable to Defendant Davis as alleged by the plaintiff are as follows. On

November 15, 2006, “at approximately 8:50 p.m.,” the plaintiff tapped on the door of McKinley

Market at 321 T Street in the northeast quadrant of the District of Columbia “to get the attention

of employees inside[,]” Am. Compl. ¶ 14, as he had done “[o]n previous occasions[] when the

store was closed,”

. The plaintiff and the employees of the neighborhood store “had a

friendly relationship” as a result of his near-daily trips to the store to purchase items for himself

and his family.

. On that particular day, however, Officers Wytch, Freeman and Davis

“pulled up in front of the store . . . in a marked MPD vehicle[, and one] of the [officers] flashed a

light into [the plaintiff’s] eyes from the marked . . . vehicle.”

. The plaintiff “asked that

the light not [be] shined into his eyes and asked the MPD Officers to stop harassing him for no

reason.”

After telling the officers that he was going to the store, one officer told him that the

store was closed, but the plaintiff responded that the store did not close until 9:00 p.m.

.

In response to the plaintiff’s stated “concerns of being harassed” and his accusations of

“continuous violations” of his constitutional and civil rights by “other MPD Officers[],” one

officer “responded, ‘Oh, you have an attitude.’ ”

. The officers then “jumped out [of]

their vehicles and rushed very fast towards [the plaintiff] with one of [the officers] pointing a gun

at [him] and one ask[ing] . . . [whether the plaintiff had] anything on him they needed to know

about,” to which the plaintiff “responded ‘No.’ ”

. When the plaintiff became confused

over the officers’ “inconsistent commands,” the officers “jumped on [his] back . . . and attacked

him.”

. While restraining the plaintiff, the officers threw him to the ground, injured his

shoulder, sat on his back, ¶¶ 22-24, and apparently hit him on the back of the head, “which

2 forced his skull to hit the concrete alley pavement” twice, “knocking him unconscious for a few

seconds,”

. Eventually, the officers “arrested” the plaintiff at the scene,

, but later

released him from their custody,

, and the plaintiff went home,

. The plaintiff

“suffered injuries to his forehead, head, scalp, neck, face, shoulder, one [knee], one [ankle], and

his elbows. . . .”

. Prior to his release from police custody, the plaintiff declined the

officers’ offer to go to the hospital “because at that time he did not know and was not aware of

the damages done. . . .”

. The plaintiff later went to the Fifth District Police

Headquarters to file a complaint against the officers.

. While there, he “felt so faint that

he asked to be taken to a hospital” and was taken by ambulance to the Emergency Department at

Providence Hospital in the District of Columbia,

, where he was later diagnosed “with

having a contusion of the head, scalp, face and neck,”

.

The plaintiff claims that Officers Freeman, Wytch and Davis collectively denied him

medical care for the injuries he sustained during his encounter with them, in violation of the Fifth

Amendment’s due process clause.1 Am. Compl. ¶¶ 84-87. The plaintiff also presents claims of

assault, battery, negligence, false arrest, defamation, libel and slander, and intentional infliction

of emotional distress against those officers. See

. In the second amended complaint filed on May 1, 2009, the plaintiff added Davis as a

defendant to this action initially filed on May 24, 2007.2

1 See Order and accompanying Memorandum Opinion of December 2, 2009 [Dkt. Nos. 56, 57] (dismissing claim based on the unconstitutional denial of medical care). 2 Because Davis is implicated only in the events of November 15, 2006, the Court finds no merit to his argument that the complaint against him is deficient under Fed. R. Civ. P. 9(f) as to time and place.

3 II. DISCUSSION

1. The Statute of Limitations

Davis argues that the plaintiff’s claims of Assault (Count XIII), Battery (Count XIV),

False Arrest (Count XVII), Defamation, Libel and Slander (Count XVIII), and Intentional

Infliction of Emotional Distress (Count XIX) are barred by the District of Columbia’s one-year

statute of limitations set forth at

. Memorandum of Points and Authorities in

Support of Defendant Donnay Davis’ Motion to Partially Dismiss (“Def.’s Mem.”) at 3-4. The

plaintiff does not dispute that he had until November 15, 2007, one year from the arrest date of

November 15, 2006, to file those claims against Davis, but he argues that the time for filing them

should be equitably tolled under the doctrine of “lulling.” See Plaintiff’s Opposition to

Defendant Donnay Davis’ Motion to Partially Dismiss with Incorporated Memorandum of Points

and Authorities (“Pl.’s Opp’n”) at 2. It is a well-established principle of law that “[a] defendant

who engages in ‘inequitable conduct’ can be equitably estopped from invoking the statute of

limitations.” Jankovic v. Int’l Crisis Group,

(D.C. Cir. 2007) (quoting

Chung v. U.S. Dep't of Justice,

(D.C. Cir. 2003)). “Similar to equitable

estoppel, the doctrine of lulling applies when the defendant ‘ha[s] done something that amounted

to an affirmative inducement to plaintiffs to delay bringing action[.]’ ”

at 1087 (quoting

Bailey v. Greenberg,

(D.C. 1986)) (other citation omitted; alteration in

original); see Monroe v. Williams,

(D.D.C. 1988) ("It is clear from the

case law that defendant must have somehow acted affirmatively to prevent plaintiff from filing

his lawsuit.") (emphasis in original).

The plaintiff argues that “[t]he lulling doctrine is available . . . because of the specific acts

by the defendant was [sic] directed to conceal his identity to prevent the plaintiff from filing any

4 cause of actions [sic] against him.” Pl.’s Opp’n at 3. Even if true, such conduct does not

constitute an “affirmative inducement[;]” thus, the “doctrine of lulling is unavailing.” Jankovic,

; see

(describing such inducement “as when a defendant promises to settle a

dispute outside of court”) (citations omitted). As the plaintiff acknowledges, see Pl.’s Opp’n at

2, District of Columbia law does not permit a party’s concealment of his identity to serve as a

basis for equitable estoppel. See Jankovic,

(stating that “the Chappelle rule

remains the law of the District of Columbia”) (citing Chappelle's Estate v. Sanders,

(D.C. 1982) (holding that the concealment of one’s identity does not toll the running

of the statute of limitations). Therefore, the Court grants Defendant Davis’s motion to dismiss

the aforementioned common law claims as time-barred.

2. Failure to State a Claim of Negligence

A court may dismiss a complaint on the ground that it fails to state a claim upon which

relief can be granted if, assuming the facts as alleged by the plaintiff to be true and drawing all

inferences in the plaintiff’s favor, it appears that the plaintiff can prove no facts “consistent with

the allegations in the complaint” to support the claim. Bell Atl. Corp. v. Twombly,

(2007) (citations omitted). “Although detailed factual allegations are not necessary to

withstand a Rule 12(b)(6) motion to dismiss, to provide the grounds of entitlement to relief, a

plaintiff must furnish more than labels and conclusions or a formulaic recitation of the elements

of a cause of action.” Hinson ex rel. N.H. v. Merritt Educ. Ctr.,

(D.D.C.

2007) (internal quotation marks omitted) (quoting Bell Atl. Corp.,

). Thus, “[t]he

complaint's factual allegations must be enough to raise a right to relief above the speculative

level, on the assumption that all the allegations in the complaint are true (even if doubtful in

5 fact).” Hinson,

(alteration in original) (internal quotation marks omitted)

(quoting Bell Atl. Corp.,

).

In support of his negligence claim, the plaintiff alleges that Davis, along with Wytch and

Freeman, “caused [him] to suffer injuries to his forehead, head, scalp, face, neck, back, ankles,

knees, wrists and shoulder on November 15, 2006,” Am. Compl. ¶ 172, when they “grabbed

[him] and threw him on a concrete alley pavement on the ground, id. ¶ 173, and that Davis and

the other officers breached their “duty to exercise reasonable care in the arrest and detention of

the Plaintiff to ensure that he was not subjected to injuries,” id. ¶ 172. The plaintiff contends in

conjunction with pleading his negligence claim that those same acts were also “intentional,

reckless, and malicious breach of duty. . . .” Id. ¶ 175. The defendant argues that because the

alleged facts are indistinguishable from those supporting the assault and battery claims, the

negligence claim must be dismissed. See Def.’s Mem. at 5-6 (citing Maddox v. Bano,

(D.C. 1980) and District of Columbia v. Chinn,

(D.C. 2003)). As

discussed next, the Court finds Chinn to be dispositive of the plaintiff’s negligence claim against

Davis.3

While acknowledging that “[a]n individual who has been injured by a District police

officer may sue under one or more common law theories of legal liability such as assault and

battery or negligence,”

, the District of Columbia Court of Appeals explained in Chinn

that “if, in a case involving the intentional use of force by police officers, a negligence count is to

3 “[T]he substantive tort law of the District of Columbia controls” the plaintiff’s negligence claim. Smith v. Hope Village, Inc.,

(D.D.C. 2007) (internal quotation marks and citation omitted). “[T]o establish negligence [in the District of Columbia,] a plaintiff must prove a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the interests of the plaintiff, proximately caused by the breach.” Id (alterations in original) (internal quotation marks and citation omitted).

6 be submitted to a jury, that negligence must be distinctly pled and based upon at least one factual

scenario that presents an aspect of negligence apart from the use of excessive force itself and

violative of a distinct standard of care,” id. at 711. That court therefore found that allegations

that officers used “ ‘unnecessary and wanton severity while arresting Plaintiff[,]’ . . . ‘breached

their duty as they were negligent in their excessive use of force’ and ‘knowingly and maliciously

acted in manner that would cause injury to Plaintiff’s person’ ” failed to state a claim “separate

and distinct from the alleged battery . . . .” Id.; see Stewart-Veal v. District of Columbia,

(D.C. 2006) (affirming dismissal of negligence claim “based on the [intentional]

actions of the arresting officers, and not on the alleged negligence of their superiors.”).

Likewise, the allegations of the complaint against Davis “do not reflect negligence, but rather an

intentional tort with a conclusory allegation of negligence.”

(citation omitted); see Sabir v.

District of Columbia,

(D.C. 2000) (stating “it is settled that a person cannot

negligently commit an intentional tort.”); District of Columbia v. Tinker,

(D.C.

1997) (observing that “[n]othing in the case law [addressing excessive force claims] even hints at

an element of negligence, or a tort distinct from assault and battery.”); accord Austin v. District

of Columbia, No. 05-2219 (JDB),

, at *6 n.4 (D.D.C., May 11, 2007) (citing

cases in this Court, except for one, applying “the Chinn framework in excessive-force cases [and

concluding] that the plaintiffs’ negligence claims 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)

(concluding that “because the gravamen of the claim is that the police officers intentionally used

excessive force against plaintiffs, the negligence claim must be dismissed as the intentional use

of excessive force component of the claim is subsumed with the assault and battery claim.”)4

4 The plaintiff’s strained attempt to resurrect the negligence claim in his opposition by (continued...)

7 CONCLUSION

For the foregoing reasons, the Court grants Defendant Davis’s motion to dismiss the

common law tort claims as time-barred and the negligence claim for failure to state a claim.5

________s/________________ Reggie B. Walton Date: April 22, 2010 United States District Judge

4 (...continued) arguing that Davis deviated from what seems to be a generalized standard of care in approaching citizens, see Pl.’s Opp’n at 11-13, not only fails to state the elements of a negligence claim set forth at note 3, but it also presents the type of “labels and conclusions” the Supreme Court instructed against accepting when considering a Rule 12(b)(6) motion to dismiss. Twombly,

.

5 A separate Order accompanies this Memorandum Opinion.

8