UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DWAYNE ANTHONY NOWLIN,

Plaintiff,

v. Case No. 1:15-cv-00524 (CRC)

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Dwayne Anthony Nowlin was incarcerated by the District of Columbia Department of

Corrections (“DOC”) from August 2013 to March 2014. In this lawsuit, Nowlin alleges that

while transferring him between facilities, several corrections officers attacked him without cause,

beating and kicking him and spraying his eyes with pepper spray. Am. Compl. ¶¶ 8–11. He

claims he was then placed in administrative segregation, and that DOC subsequently refused to

investigate the incident or provide him with adequate medical attention. Id. ¶¶ 11–18. Nowlin

brings claims for assault and battery and for deprivation of civil rights against two corrections

officers: Sergeant Harrison Ekwonna and Officer Chukwuemeka Ekwonna, a father and son.

Nowlin also filed claims for common law excessive force and for various forms of negligence

against the Ekwonnas and the District of Columbia.

All defendants move to dismiss the negligence claims, 1 and the District also moves to

dismiss the excessive force claim. Because, as Nowlin acknowledges, see Pl.’s Opp’n Partial

Mot. Dismiss, ECF No. 5, at 4, excessive force is not recognized as an independent cause of

1 The District of Columbia has not moved to dismiss Nowlin’s claim for negligent supervision, see Reply to Pl.’s Opp’n Partial Mot. Dismiss, ECF No. 17, at 4, which therefore will proceed.

1 action in the District of Columbia, the Court will grant the District’s motion as to Nowlin’s

excessive force claim. Further, because Nowlin does not plead distinct and plausible facts

supporting a theory of negligence separate and apart from his assault and battery claim, the Court

will grant Defendants’ motions as to negligence on the part of the officers. Finally, because the

District cannot be held liable in tort for failing to investigate an inmate’s grievance in accordance

with its own procedures, the Court will also grant the District’s motion as to Nowlin’s negligent

investigation claim.

I. Background

According to Nowlin’s account of the facts, which the Court accepts as true for purposes

of assessing a motion to dismiss, Nowlin was formerly an inmate at the District of Columbia jail.

On August 26, 2013, Sergeant Harrison Ekwonna was transferring Nowlin between correctional

facilities when they had a verbal altercation that led Ekwonna to call a “Code Blue,” requesting

emergency assistance from other corrections officers. Am. Compl. ¶¶ 8–9. Officer

Chukwuemeka Ekwonna—Harrison Ekwonna’s son—and approximately five unknown officers

approached Nowlin, sprayed him with an inflammatory substance, and “gratuitously and

viscously [sic] beat him”—despite his voluntary submission. Id. ¶¶ 10–11. The officers then

placed him in administrative segregation. Id. Nowlin suffered severe pain in his lower back,

hip, and right leg following the incident. Id. ¶ 12.

Nowlin alleges that his injuries were not properly diagnosed until almost two months

after the altercation and that he did not begin receiving physical therapy until three weeks after

the diagnosis. Id. ¶ 17. According to Nowlin, the delayed treatment exacerbated his injury. Id.

¶ 18. At some point during his incarceration, Nowlin filed three grievances claiming that he was

subjected to excessive force and given inadequate medical attention, but these grievances were

2 ultimately denied. Id. ¶ 13. Nowlin claims the District of Columbia “failed to . . . secure video

evidence” in connection with these grievances, which would have “exonerated” him and “caused

him to be released from segregation” at an earlier time. Id. ¶ 19.

Nowlin initially filed this lawsuit in March 2015 in the Superior Court of the District of

Columbia. He subsequently amended his complaint, and the District of Columbia removed the

case to this Court in April 2015. Nowlin seeks to recover both from the officers and the District

for common law excessive force and for several forms of negligence, and also seeks to recover

from the officers for assault and battery and for deprivation of his civil rights. All defendants

now move to dismiss the negligence claims, with the exception of the claim for negligent

supervision. The District also moves to dismiss the excessive force claim.

II. Standard of Review

Defendants’ motions to dismiss should be granted if Nowlin’s 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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). This standard “does not require ‘detailed factual allegations,’ but it

demands more than” bare accusations against the defendant. Iqbal,

(quoting

Twombly,

). In deciding the District’s Rule 12(b)(6) motion, the Court “must

accept as true all of the facts in the complaint.” Erickson v. Pardus,

, 93–94 (2007)

(citing Twombly, 550 U.S. at 555–56). Any ambiguities must be viewed in a light most

favorable to the plaintiff, giving him the benefit of every reasonable inference drawn from the

facts and allegations in the complaint. In re Interbank Funding Corp. Sec. Litig.,

(D.D.C. 2009) (citing Scheuer v. Rhodes,

(1974)). Although the Court

3 must accept all well-pled facts as true, legal allegations devoid of factual support are not entitled

to this assumption. See Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994).

III. Analysis

A. Excessive Force Claim Against the District of Columbia

Nowlin seeks to hold the District of Columbia vicariously liable for the officers’ alleged

use of excessive force under a theory of respondeat superior. Confusingly, he acknowledges

that “the District of Columbia does not recognize excessive force as a standalone common law

claim,” Pl.’s Opp’n Partial Mot. Dismiss, ECF No. 5, at 5, yet nonetheless insists that he is

bringing “a common law claim of excessive force which does not require [him] to plead facts in

support of municipal liability,” id. at 4. He contends further that the allegations in his excessive

force claim overlap with his assault and battery claim as well as his negligence claim. Id. at 5.

Plaintiffs typically bring claims alleging excessive force under

, alleging

violations of their Fourth Amendment rights. See, e.g., Graham v. Connor,

(1989).

Under Section 1983, a municipality cannot be held liable on a respondeat superior theory.

Monell v. Dep’t of Soc. Servs.,

(1978); Singletary v. District of Columbia,

(D.C. Cir. 2014). Accordingly, if Nowlin seeks to hold the District of Columbia

liable for violation of his constitutional rights, he cannot do so on the basis of respondeat

superior. Nowlin insists, however, that “[t]here are no constitutional claims being brought

against the District of Columbia,” Pl.’s Opp’n Partial Mot. Dismiss, ECF No. 5, at 5, reiterating

that he is simply bringing a “common law claim of excessive force,” id. at 4. Because common

law excessive force is not recognized as an independent cause of action in the District of

Columbia, the Court will grant the District’s motion to dismiss Nowlin’s excessive force claim.

4 B. Negligent Acts by the Officers

Nowlin also alleges that Harrison and Chukwuemeka Ekwonna acted negligently in using

force against him. The defendants respond that Nowlin’s negligence claims are based entirely on

an intentional tort and thus necessarily cannot constitute negligence. Although “[a]n individual

who has been injured by [an officer] may sue under one or more common law theories of legal

liability such as assault and battery or negligence,” District of Columbia v. Chinn,

(D.C. 2003), the “negligence [claim] must be (1) distinctly plead, (2) based upon at least one

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

and (3) violative of a distinct standard of care,”

. Further, to maintain both claims, “the

applicable standard of care cannot be the duty not to use excessive force and the negligence claim

must identify an independent breach of a standard of care . . . which may properly be analyzed

. . . on its own terms.”

(emphasis added); see also Hall v. Lanier,

(D.D.C. 2010) (holding that an arrestee’s allegations that police officers grabbed him and

threw him to the ground, causing him various injuries, were insufficient to plead a separate and

distinct claim of negligence). “[W]hile it is true that one incident may give rise to claims of

intentional tort or negligence, these are separate theories of liability which must be presented

individually and founded on appropriate evidence.” Sabir v. District of Columbia,

(D.C. 2000) (emphasis added); McCracken v. David Walls–Kaufman,

(D.C. 1998) (reaffirming that “the same course of conduct may give rise to claims of both assault

and battery and negligence if the necessary predicates for both are shown to exist”).

Nowlin responds that “all the facts in his complaint,” taken together, support a negligence

claim. Pl.’s Opp’n Partial Mot. Dismiss, ECF No. 5, at 5. He then states, for instance, that “[t]he

negligence claim against the defendant Sgt. Harrison Ekwonna relates to his making a Code Blue

5 call when he knew or should have known that the situation did not require such a drastic

measure,” labeling this an “alternate theor[y] of liability” to assault and battery. Id. at 6.

Nowlin’s complaint, however, appears to describe solely intentionally tortious conduct: If

Sergeant Ekwonna in fact “vindictively radioed in a ‘Code Blue’ . . . knowing that officers would

arrive and physically subdue Mr. Nowlin using maximum force,” Am. Compl. ¶ 9 (emphasis

added), then Sergeant Ekwonna would potentially be liable for an intentional tort—not

negligence. While Nowlin is not automatically precluded from asserting both assault and battery

claims and negligence claims arising out of the same incident, he must distinctly plead these

alternating theories of liability in his complaint. He has not done so.

Moreover, Nowlin cannot recover on negligence claims related to the alleged assault

itself simply by “dressing up the substance” of these intentional tort claims in the “garments” of

his negligence claim. Sabir,

(citation and quotation marks omitted). Simply

“[i]nvoking words such as ‘duty,’ ‘breach’ and ‘negligent’” with respect to the facts and

circumstances surrounding an alleged assault or use of excessive force “does not transform an

intentional tort into negligence.”

Here, Nowlin alleges that Sergeant Ekwonna “vindictively

and without cause radioed a ‘Code Blue,’” Am. Compl. ¶ 3, and that the officers “sprayed an

inflammatory substance . . . into [his] eyes, . . . threw him to the ground and gratuitously and

viscously [sic] beat him with their fists and kicked him . . . .” id. ¶ 11. These allegations of

intentional conduct do not support a theory of negligence separate and apart from Plaintiff’s

assault and battery claim. Accordingly, the Court will grant Defendants’ motions to dismiss as

to the negligence claims involving the officers’ actions during the incident itself.

6 C. Negligent Investigation by the District of Columbia

In addition to claiming that the officers and District acted negligently with regard to the

alleged assault, Nowlin alleges that he did not receive a timely response to three separate

grievances about the incident and his inadequate medical attention. He contends that the District

“had a duty to investigate the correctional officer’s [sic] use of force and the circumstances

surrounding their disciplinary infraction and [Nowlin’s] grievance concerning it.” Am. Compl.

¶¶ 13, 19. In particular, Nowlin explains that Defendants owed him a “duty to review the use of

force by looking at the video tape,” Pl.’s Opp’n Partial Mot. Dismiss, ECF No. 5, at 11. Other

than making the conclusory allegation that Defendants “failed to exercise reasonable care” in

investigating the incident, Nowlin’s only factual allegation is that Defendants “failed to . . .

secure video evidence of the code blue incident and use of force.” Am. Compl. ¶ 19.

In support of his position that DOC owed him a duty to investigate and review video,

Nowlin points to internal policies which provide that “after any incident involving the use of

force . . . the Warden, Deputy Warden of Operations and the applicable shift Major shall meet

and review the incident to include the videotape and incident statements.” Pl.’s Opp’n Partial

Mot. Dismiss, ECF No. 5, at 9 (citing DOC’s Program Statement on Use of Force, PS 5010.9D).

Nowlin contends that had DOC fully complied with its policy, he would have been “exonerated”

and consequently released from administrative segregation earlier. Am. Compl. ¶ 19; Pl.’s

Opp’n Partial Mot. Dismiss, ECF No. 5, at 9. The District responds that Nowlin’s complaint

lacks independent factual allegations to support this claim and that, regardless, Nowlin has not

shown that this alleged negligence proximately caused any of his injuries.

Generally, for a plaintiff in the District of Columbia to maintain a cause of action under a

theory of negligence, he or she must establish three elements: (1) that the defendant owed a duty

7 of care to the plaintiff, (2) that the defendant violated that duty, and (3) that a causal relationship

exists between the violation and the injury. See Simms v. District of Columbia,

(D.D.C. 2010) (citing Wash. Metro. Area Transit Auth. v. Ferguson,

(D.C. 2009)). Thus, the “plaintiff must allege facts which show that the defendant breached

some legally imposed duty owed to the plaintiff.” District of Columbia v. White,

(D.C. 1982) (quoting Kelton v. District of Columbia,

, 922 n.5 (D.C. 1980)).

Legislative action occasionally “fashions applicable standards of conduct which

themselves create the duty of care required.” Richardson v. Gregory,

(D.C.

Cir. 1960). “Under D.C. law, ‘[w]here a particular statutory or regulatory standard is enacted to

protect persons in a plaintiff’s position or to prevent the type of accident that occurred, and the

plaintiff can establish his relationship to the statute, an unexplained violation of the standard

renders the defendant negligent as a matter of law . . . .’” Blake v. Securitas Sec. Serv., Inc.,

(D.D.C. 2013) (quoting Perkinson v. Gilbert/Robinson, Inc.,

,

691–92 (D.C. Cir. 1987)).

The District of Columbia Court of Appeals has held, however, that “[a]gency protocols

and procedures, like agency manuals, do not have the force or effect of a statute or an

administrative regulation,” but rather “provide officials with guidance on how they should

perform . . . .” Clark v. District of Columbia,

, 636–37 (citing Wanzer v. District of

Columbia,

(D.C. 1990)). A defendant “cannot be held liable for aspiring to

efforts beyond” what would otherwise be required of it. Clark,

. “To hold

otherwise would create the perverse incentive for [a defendant] to write its internal operating

procedures in such a manner as to impose minimal duties upon itself in order to limit civil

8 liability rather than imposing . . . requirements upon its personnel that may far exceed those

followed by comparable institutions.”

Nowlin contends that DOC owed him a duty that is “evidenced by [the Department’s]

own established policies and procedures on a variety of matters referred to as Program

Statements.” Pl.’s Opp’n Partial Mot. Dismiss, ECF No. 5, at 8. These program statements,

however, are only internal policies that by themselves cannot establish a duty or a standard of

care. See Abney v. District of Columbia,

, 1040–41 (D.C. 1990) (noting that an

unpublished Metropolitan Police Department General Order was the equivalent of an “internal

operating manual” and not a “rule” or regulation). As a result, the District owed no specific duty

to Nowlin to investigate his grievances in accordance with its Program Statements. Therefore, in

the absence of a separate, recognized cause of action for negligent investigation, 2 Nowlin’s claim

that the District is liable in negligence for failing to adequately investigate his grievances must

fail. The Court will grant the District’s motion as to the negligent investigation claim.

IV. Conclusion

For the forgoing reasons, it is hereby

ORDERED that [5] and [14] Defendants’ Partial Motions to Dismiss are GRANTED. It

is further

ORDERED that Count One (Excessive Force) as to the District of Columbia is hereby

DISMISSED. It is further

2 The District of Columbia is generally reluctant to impose upon police an enforceable duty to specific individuals to investigate their complaints. See, e.g., McGaughey v. District of Columbia,

(D.C. Cir. 2012) (“If the police owed an enforceable duty to each person, then ‘every complaint—whether real, imagined, or frivolous’—would raise the spectre of civil liability for failure to respond.”) (quoting Morgan v. District of Columbia,

(D.C. 1983));

(“[T]he police have no duty to investigate any particular crime . . . .”).

9 ORDERED that Count Three (Negligence), except as to Plaintiff’s claim of negligent

supervision against the District of Columbia, is hereby DISMISSED.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: August 28, 2015

10