UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSEPH SIMMONS, Plaintiff, v. Civil Action No. 20-2845 (CKK) OFFICER DANIEL SKELONC, in his individual and official capacity and DISTRICT OF COLUMBIA, Defendants.

MEMORANDUM OPINION (July 29, 2021)

Plaintiff Joseph Simmons brings this action against Defendants Officer Daniel Skelonc of

the Metropolitan Police Department (“MPD”) and the District of Columbia (“the District”)

alleging violations of his Fourth Amendment rights under

, false arrest, false

imprisonment, intentional infliction of emotional distress, and respondeat superior liability.

Compl. ¶¶ 22–30, ECF No. 1. These allegations stem from Officer Skelonc’s response to a

reported shoplifting incident; Plaintiff claims Officer Skelonc impermissibly seized him and used

excessive force when incorrectly confronting him as the suspected shoplifter. See

, 15–20.

Presently before the Court are motions to dismiss filed by the District (ECF No. 8) and Officer

Skelonc (ECF No. 12).

In his response to Officer Skelonc’s Motion to Dismiss, Plaintiff consented to dismissal of

his common law claims of false arrest, false imprisonment, and intentional infliction of emotional

distress (Counts II, III, and IV), acknowledging that the applicable one-year statute of limitations

elapsed before his Complaint was filed. 1 Pl.’s Opp’n to Def. Skelonc’s Mot. at 7, ECF No. 16.

1 In his Opposition to the District’s Motion to Dismiss (filed before his Opposition to Officer Skelonc’s Motion to Dismiss), Simmons did not acknowledge that the common law claims were time-barred. However, Plaintiff concedes in his Opposition to Officer Skelonc’s Motion to Dismiss that he “has no objection to dismissing the common law

1 In addition, in his response to the District’s Motion to Dismiss, Plaintiff consented to dismissal of

his § 1983 claim (Count I) against the District, acknowledging that he did not allege facts “that

support a finding of municipal liability under section 1983.” Pl.’s Opp’n. to Def. D.C.’s Mot. at

5, ECF No. 11. Based on Plaintiff’s consent to the dismissal of these claims, the Court shall order

that Count I as to the District and Counts II, III, and IV as to both defendants be DISMISSED.

The remaining claims at issue in the pending motions are: (1) Plaintiff’s § 1983 claim based

on alleged Fourth Amendment violations against Officer Skelonc (Count I); and (2) Plaintiff’s

“respondeat superior liability” claim against the District (Count VI). 2 Upon review of the

pleadings, 3 the relevant legal authority, and the record as a whole, the Court shall GRANT

Defendants’ motions to dismiss as to both remaining claims and shall DISMISS the Complaint.

I. BACKGROUND

For the purposes of Defendants’ motions to dismiss, the Court accepts as true the

well-pleaded allegations in Plaintiff’s Complaint. 4 The Court does “not accept as true, however,

the plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls

Corp. v. Comm. on Foreign Inv. in U.S.,

, 314–15 (D.C. Cir. 2014).

claims for false arrest, false imprisonment, and intentional infliction of emotional distress (Counts II, III and IV) as being barred by the one-year statute of limitations. [D.C. Code] § 12–301.” Pl.’s Opp’n to Def. Skelonc’s Mot. at 1. 2 Plaintiff’s Complaint contains five claims, but labels the fifth count as “Count VI.” See Compl. ¶¶ 26–30. For consistency with the Complaint, the Court may refer to Plaintiff’s “respondeat superior liability” claim as “Count VI.” 3 The Court’s consideration has focused on the following: • Def. D.C.’s Mot. to Dismiss (“Def. D.C.’s Mot.”), ECF No. 8; • Def. Daniel Skelonc’s Mot.to Dismiss (“Def. Skelonc’s Mot.”), ECF No. 12; • Pl.’s Opp’n to Def. D.C.’s Mot. to Dismiss (“Pl.’s Opp’n to Def. D.C.’s Mot.”), ECF No. 11-1; • Pl.’s Opp’n to Def. Skelonc’s Mot. to Dismiss (“Pl.’s Opp’n to Def. Skelonc’s Mot.”), ECF No. 16-1; • Def. D.C.’s Reply to Pl.’s Opp’n to Mot. to Dismiss (“Def. D.C.’s Reply”), ECF No. 14; and • Def. Skelonc’s Reply to Pl.’s Opp’n to Mot. to Dismiss (“Def. Skelonc’s Reply”), ECF No. 17. 4 The Complaint indicates that the alleged facts are based on body-worn camera footage. See Compl. ¶ 12.

2 Around midnight on February 7, 2019, Plaintiff was standing outside a store in Northwest

Washington, D.C. with an acquaintance. Compl. ¶¶ 6–7. Shortly after Plaintiff stopped outside

the store, MPD Officer Skelonc and his partner pulled into the parking lot, in response to a report

of shoplifting by the store’s manager. Id. ¶ 6. The dispatcher described the suspects to the officers

as two black men wearing black jackets. Id. Plaintiff indicates that he arrived at the store after

the store manager reported the shoplifting incident, but before Officer Skelonc pulled into the

parking lot. Id. ¶¶ 6–7.

Officer Skelonc entered the store and spoke with the manager to determine if the

shoplifting suspects were still nearby. Id. ¶ 9. The manager pointed towards the glass door at the

front of the store and said, “he’s in front, right there.” Id. Officer Skelonc attempted to clarify

where the manager was pointing, and the manager again indicated that he thought the suspects

were “in front.” Id. Plaintiff indicates that he was standing directly in front of the store when

Officer Skelonc was speaking with the manager. Id. ¶ 10.

After the manager pointed to the men standing outside the front of the store, Officer

Skelonc walked outside and called out to Plaintiff and his acquaintance, who had both begun

walking away from the store towards a bus stop. Id. ¶¶ 10–11. Officer Skelonc initially called out

“gentlemen, gentlemen,” and then called to the “guy in the gray shirt.” Id. ¶ 11. Plaintiff was

wearing a tan jacket and blue jeans. Id. ¶ 12. Not realizing that Officer Skelonc was speaking to

him, Plaintiff continued to walk away. Id. ¶¶ 10–12. When Plaintiff failed to stop, Officer Skelonc

began yelling, and the two men got into a heated argument. Id. ¶¶ 13–14. Plaintiff, now alerted

to the fact that Officer Skelonc wanted to speak with him and was attempting to stop him, “made

a dismissive sound and turned and began walking away.” Id. ¶ 15. Officer Skelonc “grabbed the

[P]laintiff’s right arm and jerked it backwards forcefully, spinning [Plaintiff] around to face him.”

3 Id. Officer Skelonc explained to Plaintiff that the store manager had reported a shoplifting

incident. Id. ¶ 16. Plaintiff, who had not been inside the store that evening, volunteered to return

to the store to “prove his innocence.” Id. When Officer Skelonc and Plaintiff went back inside

the store, the store manager confirmed that Plaintiff was not inside the store that evening and was

not the person who had shoplifted. Id. ¶ 18. Officer Skelonc then “stopped communicating” with

Plaintiff. Id. ¶ 19.

On September 29, 2020, Plaintiff filed his Complaint in this case, bringing claims against

the District of Columbia and Officer Skelonc. See Compl. Each defendant subsequently moved

to dismiss Plaintiff’s complaint. Both motions are now ripe for the Court’s consideration.

II. LEGAL STANDARDS

A. Motion to Dismiss

Both defendants have moved to dismiss Plaintiff’s Complaint under Federal Rule of Civil

Procedure 12(b)(6). Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint that

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A] complaint

[does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Ashcroft v. Iqbal,

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

(2007)). The factual allegations within a complaint, if accepted as true, must be sufficient to

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

. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

. Courts

“do not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported

by the facts alleged.” Ralls Corp.,

.

4 B. Qualified Immunity

Officer Skelonc has also moved to dismiss Plaintiff’s remaining § 1983 claim on the basis

that his actions are protected by qualified immunity. Def. Skelonc’s Mot. at 4–5. Public officials

have immunity from suits brought under § 1983 unless their alleged conduct violated “clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Pearson v. Callahan,

(2009) (internal citation omitted). To determine if

qualified immunity will protect the official, the Court applies a two-part test: (1) whether the

officials “violated a federal statutory or constitutional right” and (2) whether “the unlawfulness of

their conduct was ‘clearly established at the time.’” Dist. of Columbia v. Wesby,

(2018) (citation omitted). The Court has the discretion to determine which of the two prongs

to proceed on first. Ashcroft v. al-Kidd,

, 735 (2011).

Once a defendant asserts a defense of qualified immunity, the burden falls to the plaintiff

to show that the official is not entitled to qualified immunity. Winder v. Erste,

(D.D.C. 2012). At the motion to dismiss stage, “a plaintiff must allege sufficient facts to

establish that the defendants are not entitled to qualified immunity.” Patterson v. United States,

(D.D.C. 2013). The plaintiff must “show that the particular right in

question—narrowly described to fit the factual pattern confronting the [official]—was clearly

established” at the time of the official’s conduct. Dukore v. District of Columbia,

(D.C. Cir. 2015). A clearly established right is one that is “sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.” Reichle v.

Howards,

(2012) (internal quotation marks and alteration omitted). In other

words, “existing precedent must have placed the statutory or constitutional question beyond

debate.”

(internal citations and quotation marks omitted).

5 III. DISCUSSION

As noted above, Plaintiff has consented to the dismissal of his § 1983 claim in Count I as

it relates to the District, and his common law claims in Counts II, III, and IV. Accordingly, the

only remaining claims at issue in the pending motions to dismiss are Plaintiff’s claim brought

pursuant to § 1983 based on alleged Fourth Amendment violations by Officer Skelonc (Count I),

and his respondeat superior claim against the District of Columbia (Count VI). For the reasons set

forth below, the Court shall grant the motions to dismiss as to the remaining claims and shall order

that the Complaint be dismissed.

A. Section 1983 Claims Against Officer Skelonc Based on Alleged Fourth Amendment Violations (Count I).

In Count I of his Complaint, Plaintiff alleges that Officer Skelonc violated his Fourth

Amendment rights pursuant to

by seizing him without probable cause and by

using excessive force. Compl. ¶¶ 22(b)–(c). Officer Skelonc argues that Plaintiff has failed to

state a plausible claim of constitutional violations because the allegations describe, at most, a

lawful Terry stop during which he used a reasonable amount of force. Def. Skelonc’s Mot. at

3–4. Officer Skelonc further argues that even if Plaintiff has alleged a constitutional violation, he

is entitled to qualified immunity. The Court concludes that Plaintiff has failed to state a plausible

claim of an unconstitutional seizure or an unreasonable use of force, and so shall grant Officer

Skelonc’s motion with respect to both claims. In the alternative, the Court concludes that Officer

Skelonc is entitled to qualified immunity with respect to both claims.

1. Investigatory Stop

Plaintiff first alleges that Officer Skelonc “without sufficient probable cause . . . detained

him against his will,” in violation of his constitutional rights under the Fourth Amendment.

Compl. ¶ 22(b). Officer Skelonc argues that he conducted a lawful investigatory stop based on a

6 reasonable articulable suspicion that Plaintiff had shoplifted. See Def. Skelonc’s Mot. at 3–4

(citing Def. D.C.’s Mot. at 4–5). Before addressing the parties’ arguments, the Court briefly

discusses relevant Fourth Amendment principles.

The Fourth Amendment ensures the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” Const. amend. IV. A

“seizure” under the Fourth Amendment occurs “when physical force is used to restrain movement

or when a person submits to an officer's show of authority.” United States v. Delaney,

(D.C. Cir. 2020) (internal citations and quotation marks omitted). The Fourth

Amendment generally requires that an officer have probable cause and a warrant to seize a person

lawfully. See Payton v. New York,

(1980). As an exception to this general

requirement, an officer may “briefly detain a citizen” where the officer “has a reasonable,

articulable suspicion that ‘criminal activity may be afoot.’” United States v. Edmonds,

(D.C. Cir. 2001) (quoting Terry v. Ohio,

(1968)). To determine whether an

officer had reasonable suspicion to conduct a “Terry stop,” courts “look to the record as a whole

to determine what facts were known to the officer and then consider whether a reasonable officer

in those circumstances would have been suspicious.” United States v. McKie,

(D.C. Cir. 1991) (per curiam). The burden for showing that reasonable suspicion existed to justify

a stop rests with the government. See United States v. Castle,

(D.C. Cir. 2016).

Moreover, the stop must be brief, and the officer must work as quickly as possible to “confirm or

dispel their suspicions.” United States v. Sharpe,

(1985).

Plaintiff alleges that Officer Skelonc violated his Fourth Amendment rights by seizing him

without probable cause. See Compl. ¶ 22(b). Officer Skelonc argues that, at most, his actions

amounted to a lawful Terry stop supported by a reasonable articulable suspicion that Plaintiff had

7 shoplifted. Def. Skelonc’s Mot. at 3–4. The allegations in the Complaint demonstrate that Officer

Skelonc had a reasonable articulable suspicion to conduct an investigatory stop: after Officer

Skelonc arrived at the store in response to a report of shoplifting, the store manager pointed through

the glass front door of the store and said the suspects were “directly in front of the store,” where

Plaintiff admits he was standing, Compl. ¶ 10; and when Officer Skelonc asked that the manager

clarify the suspects, the store manager pointed towards Plaintiff and his acquaintance, id. ¶ 9. The

manager’s repeated identification of Plaintiff as the suspected shoplifter supported a reasonable

articulable suspicion that Plaintiff was engaged in criminal activity. See, e.g., United States v. Bass,

Case No. 19-CR-206 (RJL),

, at *2 (D.D.C. Apr. 15, 2020) (noting that

identification by a witness on the scene of a suspect supported officer’s reasonable articulable

suspicion).

Plaintiff argues that the dispatcher’s description of the suspects to Officer Skelonc as two

men wearing “black” jackets undermines any reasonable suspicion that Plaintiff was the shoplifter

because Plaintiff was wearing a tan jacket. Pl.’s Opp’n. to Def. Skelonc’s Mot. at 6. However, “a

precise color match to a lookout is not an indispensable element of reasonable suspicion.” United

States v. Abdus-Price,

(D.C. Cir. 2008); see also United States v. Turner,

(D.C. 1997) (“Because we examine the totality of the circumstances and require

far less than certainty, we have routinely held that an imperfect description, coupled with close

spatial and temporal proximity between the reported crime and seizure, justifies a Terry stop”);

Robinson v. United States,

(D.C. 2000) (finding reasonable articulable

suspicion even where there were differences in clothing descriptions in part because [plaintiff] was

arrested only one block away and within an hour of the alleged crime). The “close spatial and

temporal proximity” of the stop to the reported crime, together with the manager’s identification

8 of Plaintiff as the possible suspect, provided sufficient justification for Officer Skelonc’s brief

detention of Simmons despite the discrepancy between the color of Plaintiff’s jacket and the color

described by the dispatcher.

Moreover, as Plaintiff acknowledges, the stop conducted by Officer Skelonc was

“minimal.” Pl.’s Opp’n. to Def. D.C.’s Mot. at 1. When determining whether a detention is

sufficiently brief to be considered an investigative stop, courts should “examine whether the police

diligently pursued a means of investigation that was likely to confirm or dispel their suspicions

quickly” Sharpe,

. After stopping Plaintiff, Officer Skelonc explained to him that

the manager of the store had reported a shoplifting incident. Compl. ¶ 16. Officer Skelonc and

Plaintiff then immediately returned to the storefront and the manager confirmed that Plaintiff had

not entered the store that evening.

¶¶ 17–18. Plaintiff does not allege that the detention

continued beyond this point. See

¶¶ 18–19. Nor does he identify any examples of unnecessary

delay by Officer Skelonc. The Complaint describes a brief stop, during which Officer Skelonc

took immediate steps to investigate his suspicion of Plaintiff, resulting in a seizure “so minimally

intrusive as to be justifiable on reasonable suspicion.” United States v. Place,

(1983).

Construing the factual allegations in Plaintiff’s favor, the Complaint describes a lawful

investigatory stop. Accordingly, the Complaint fails to state a plausible claim for a Fourth

Amendment violation based on an unreasonable seizure.

2. Excessive Force

Plaintiff also claims that Officer Skelonc violated the Fourth Amendment by using

excessive force during the stop—namely, by grabbing Plaintiff’s arm and spinning him around to

prevent him from walking away from the store. See Pl.’s Opp’n to Skelonc’s Mot. at 5. Officer

9 Skelonc argues that his actions did not violate the Fourth Amendment because he used minimal

force, which was reasonable in view of the surrounding circumstances. Def. Skelonc’s Reply at

1–2. The Court concludes that the use of force alleged in the Complaint is reasonable based on

the totality of the circumstances and therefore fails to state a claim for a Fourth Amendment

violation. See Martin v. Malhoyt,

(D.C. Cir. 1987) (affirming motion to dismiss

for failure to state a claim where the court was unable to “conclude that [the officer] used

unreasonable force” based on the facts as alleged in the complaint). Before addressing the parties’

arguments, the Court shall again briefly discuss the relevant Fourth Amendment principles.

As the Supreme Court has explained, the right of police officers to make “an arrest or

investigatory stop necessarily carries with it the right to use some degree of physical coercion or

threat thereof to effect it.” Graham v. Connor,

(1989). “[N]ot every push or

shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth

Amendment.”

(citation omitted). However, the force used must be objectively reasonable

under the circumstances. Id at 397. To determine whether an officer’s use of force was reasonable,

courts consider “the severity of the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight.”

.

According to the allegations in the Complaint, Officer Skelonc only used force after

Plaintiff refused to stop. Compl. ¶ 15. Although the Complaint describes some initial confusion

about whether Officer Skelonc was addressing Plaintiff to direct him to stop, Plaintiff “made a

dismissive sound and turned and began walking away from” Officer Skelonc even after he was

aware that Officer Skelonc was addressing him and wanted him to stop. Id. ¶ 15. Officer Skelonc

10 prevented Simmons from continuing to walk away by grabbing his arm and turning him around to

face him so they could speak. Id.

Based on these allegations, Plaintiff has failed to plead a sufficient factual basis to conclude

that Officer Skelonc used an unreasonable degree of force. An officer is permitted to use some

amount of force when needed to restrain or stop a suspect. Otherwise, “Terry stops would be

outlawed. Defendants would simply disobey the police and run, knowing that the police would

then need probable cause to chase and tackle them.” United States v. Wilson, No. 11–0275,

(D.C. Cir. May 5, 1994) (per curiam). Although Simmons argues that he “did

not attempt . . . to evade the officer,” Pl.’s Opp’n to Def. Skelonc’s Mot. at 5, he nonetheless

indicates that refused to stop even after it became clear that Officer Skelonc was speaking to him

and wanted him to stop, Compl. ¶ 15. Considering these circumstances, the force used by Officer

Skelonc—grabbing Plaintiff’s arm—was not objectively unreasonable.

In his Opposition to Officer Skelonc’s Motion to Dismiss, Plaintiff claims that he was

seriously injured when Officer Skelonc grabbed him, contending, “As a result of [Officer Skelonc]

forcefully grabbing Plaintiff's arm and jerking it backwards, the Plaintiff experienced back spasms

and went to the hospital shortly thereafter for injuries to his chest, shoulder, and lower back.” Pl.’s

Opp’n to Def. Skelonc’s Mot. at 3. Plaintiff failed to include this allegation of physical injury in

his complaint; a plaintiff may not amend his complaint by the briefs in opposition to a motion to

dismiss. See, e.g., Kelleher v. Dream Catcher, LLC,

, 327 n. 1 (D.D.C. 2017);

Perkins v. Vance-Cooks,

, 29 n. 5 (D.D.C. 2012). Even if the Court were to

consider the severity of the alleged injury, it is not dispositive of whether an officer used excessive

force. See Wardlaw v. Pickett,

, 1304 n.7 (D.C. Cir. 1993) (“Although the severity of

11 [plaintiff’s] injuries is not by itself the basis for deciding whether the force used was excessive, it

does provide some indication of the degree of force [defendant] used.”).

Considering the totality of the circumstances alleged in the Complaint, the Court

concludes that the allegations fail to state a claim for an unreasonable use of force in violation of

the Fourth Amendment

3. Qualified Immunity

Although the Court concludes that the allegations in the Complaint fail to state a plausible

claim of any Fourth Amendment violation, it also finds that Officer Skelonc is entitled to qualified

immunity for his conduct. This conclusion provides an alternative basis for granting Officer

Skelonc’s motion to dismiss.

As noted supra Section II(B), once a defendant asserts a defense of qualified immunity,

the burden then falls to the plaintiff to show that the official is not entitled to qualified immunity.

See Winder, 905 F. Supp .2d at 28. Here, Plaintiff has not “identified a single precedent—much

less a controlling case or robust consensus of cases—finding a Fourth Amendment violation ‘under

similar circumstances.’” Goolsby v. Dist. of Columbia,

(D.D.C. 2018)

(quoting Wesby,

). Plaintiff cites only Hall v. District of Columbia,

(D.C. Cir. 2017) to argue that Officer Skelonc is not entitled to qualified immunity for use of

excessive force; he offers no legal authority—much less a “controlling case”—finding a Fourth

Amendment violation under similar circumstances related to his claim for an illegal seizure. Pl.’s

Opp’n to Def. Skelonc’s Mot. at 6. With respect to the seizure claim, Plaintiff relies only on

general legal principles that Officer Skelonc did not have reasonable articulable suspicion to stop

him.

But “citations to such general principles are insufficient to show that no reasonable

12 officer would have believed the officers’ actions in stopping [the plaintiff] were constitutional.”

Goolsby,

.

As to Plaintiff’s excessive force claim, Plaintiff relies on Hall, a case in which the plaintiff

was “slammed against a wall,” dragged out of a bar, handcuffed, forced to her knees on the

sidewalk, and detained for forty-five minutes before the officers took basic steps to resolve what

turned out to be a false accusation of theft of services. Id. at 145. The Court does not find Hall to

be on point with the allegations described here. See Doe v. District of Columbia,

(D.C. Cir. 2015) (“Ordinarily, in order for the law to be clearly established, there must be a

Supreme Court or [ ] Circuit decision on point, or the clearly established weight of authority from

other courts must have found the law to be as the plaintiff maintains.” (internal citations and

quotation marks omitted)). The officers in Hall used significantly more force than what this

Complaint describes, and so that decision would not convey to a reasonable officer that his conduct

amounted to any “clearly established” constitutional violation. Moreover, in Hall, the court denied

the officer qualified immunity based on the officer’s failure to take basic steps to verify that the

plaintiff actually committed the crime for which she was accused, Hall, 867 F. 3d at 165—not, as

Plaintiff contends, because “the complaint contained no indication that the Plaintiff posed a threat

to the officers or that she had committed a serious offense.” Pl.’s Opp’n. to Skelonc’s Mot. at 6.

Here, unlike in Hall, Officer Skelonc endeavored to verify the identity of the shoplifting suspects

by asking the store manager to identify them. Plaintiff offers no other legal authority and therefore

has failed to carry his burden to demonstrate that Officer Skelonc is not entitled to qualified

immunity. See id. at 6.

Because Plaintiff has failed to “allege sufficient facts to establish that [Officer Skelonc] is

not entitled to qualified immunity,” Patterson,

, and has failed to

13 demonstrate that “the particular right in question—narrowly described to fit the factual pattern

confronting the [official]—was clearly established,” Dukore,

, qualified immunity

provides an additional basis for dismissing Plaintiff’s remaining claims against Officer Skelonc.

B. Respondeat Superior Claim Against the District of Columbia (Count VI)

In Count VI of his Complaint, Plaintiff pleads a claim of “respondeat superior” against the

District. Respondeat superior is not a stand-alone tort claim, and there are no remaining claims to

which the theory of respondeat superior could be applied to create liability for the District.

Accordingly, the Court shall dismiss Count VI.

Respondeat superior is not available as a theory of municipal liability for claims brought

under 42 U.S.C § 1983. See Monell v. New York City Dep’t of Soc. Servs.,

(1978); Bd. Of the County Comm’rs of Bryan County v. Brown,

(1997) (“We

have consistently refused to hold municipalities liable under a theory of respondeat superior.”).

Plaintiff has conceded that the facts alleged in the Complaint are insufficient to state a plausible

claim for municipal liability based on Officer Skelonc’s actions. Pl’s Opp’n. to Def. D.C.’s Mot.

at 5 (“The Plaintiff agrees that the Complaint fails to allege facts that support a finding of municipal

liability under section 1983.”). Moreover, where, as here, a court concludes that an official is

immune from § 1983 liability, “the District’s liability is precluded.” Dist. of Columbia v. Evans,

(D.C. 1994).

To the extent Plaintiff seeks to assert a respondeat superior theory of liability against the

District based upon his common law tort claims—which he has conceded are time-barred— that

argument also fails. “Respondeat superior” is not an independent tort claim, but rather a legal

theory of vicarious liability that transfers liability from an agent to its principals. See Convit v.

Wilson,

(D.C. 2009) (“Vicarious liability . . . is merely a legal concept used

14 to transfer liability from an agent to a principal and includes the theory of respondeat superior as

developed in agency law.”) (internal quotation marks omitted); Logan v. Jones Lang LaSalle

Americas, Inc. No. 18-CV-2278 (APM),

, at *1 n.1 (D.D.C. May 2, 2019)

(“‘[R]espondeat superior’ is not a stand-alone claim, but rather a basis for finding Defendants

liable for the conduct of their employees or agents.”).

Plaintiff cites Bostic v. District of Columbia,

(D.C. 2006) for the proposition

that “the District of Columbia may be sued only for the torts of its agent police officers if there

exists a respondeat superior relationship between the officers and the District.” Pl.’s Opp’n to

Def. D.C.’s Mot. at 7 (citing Bostic,

). But that case does not establish that

“respondeat superior” is a stand-alone tort claim. Rather, in Bostic, the plaintiff sued the District

based on tortious acts allegedly committed by a United States Capitol Police officer, contending

that the District was responsible for the officer’s actions. Bostic,

. The District of

Columbia Court of Appeals concluded that the District did not have an agency relationship with

the federal police officer and therefore the complaint had been properly dismissed against the

District.

, 331–32. The court did not consider whether “respondeat superior” is a stand-

alone claim, but instead analyzed whether such a relationship existed for the District to be held

vicariously liable for the tortious actions of the individual officer. Plaintiff’s reliance on Bostic,

therefore, is unpersuasive.

Because “respondeat superior” is not an independent tort claim, the Court shall grant the

District’s motion to dismiss.

15 IV. CONCLUSION

For the foregoing reasons the Court shall GRANT the motions to dismiss filed by the

District (ECF No. 8) and Officer Skelonc (ECF No. 12) and ORDER that Plaintiff’s Complaint be

dismissed. An appropriate Order accompanies this Memorandum Opinion.

Date: July 29, 2021 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

16