UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) JOSE T. VASQUEZ, ) ) Plaintiff, ) ) v. ) Case No. 17-cv-02194 (APM) ) COUNTY OF WILL, ILLINOIS, et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Jose T. Vasquez shares a name and date of birth with, unfortunately for Plaintiff,

another person against whom there is an active warrant for a decades-old homicide. Plaintiff has

been mistakenly arrested and detained numerous times as a result, including twice in the District

of Columbia. He seeks compensatory and punitive damages for these wrongful arrests.

At the center of the present action is the D.C. Metropolitan Police Department’s (“MPD”)

use of teletype messages to confirm that warrants issued by other jurisdictions match the person

arrested in the District of Columbia. Plaintiff claims that, because MPD mishandled a teletype

message confirming that he was not the person wanted for the homicide, he was improperly

detained for days until he was released by a magistrate judge. He also contends that he was arrested

and detained a second time due to MPD’s failure to chronicle the first improper arrest. Plaintiff

brings a seven-count Complaint, alleging multiple section 1983 claims based on violations of the

Fourth and Fifth Amendments, as well as common law claims grounded in intentional tort and

negligence. Defendants in this case are the District of Columbia and MPD Officer Ruben Agosto. They

have moved for summary judgment on all claims.

For the reasons that follow, the court grants in part and denies in part Defendants’ Motion

for Summary Judgment.

II. BACKGROUND

A. Factual Background

Plaintiff Jose T. Vasquez is a resident of the State of Maryland. Pl.’s Unopposed Mot. for

Leave to File Under Seal, ECF No. 73, Third Am. Compl., ECF No. 73-2 [hereinafter Third Am.

Compl.], ¶ 1. He has been arrested multiple times on a warrant issued for a person accused of

homicide who shares the same name and date of birth. The warrant was issued by law enforcement

authorities in Will County, Illinois. Defs.’ Mot. for Summ. J., ECF No. 85 [hereinafter Defs.’

Mot.], Defs.’ Stmt. of Undisputed Material Facts, ECF No. 85-2 [hereinafter Defs.’ SOF], ¶ 3.

Illinois authorities made a grave error leading to Plaintiff’s improper arrests—it entered the

warrant with Plaintiff’s Social Security Number rather than the murder suspect’s Social Security

Number. Defs.’ SOF ¶ 5; Defs.’ Mot., Dep. of Officer Terence Sutton, Ex. 3, ECF No. 85-6, at

17; see also Third Am. Compl. ¶ 3. As a result, Plaintiff matched the warrant database at first

glance, leaving him susceptible to a false arrest. Such an arrest occurred at least four times (i.e.,

2005, “one or more other occasions prior to 2009,” 2016, and 2017) over a period of twelve years.

Third Am. Compl. ¶¶ 30–31 , 36, 61.

In 2013, the Will County Sherriff’s Office, after repeated false notifications, updated their

warrant entry to prevent future arrests of Plaintiff. The updated entry informed law enforcement

agencies: “DO NOT DETAIN A VASQUEZ, JOSE [redacted birthdate] SS [redacted] THIS IS

NOT SUSPECT.” Pl.’s Consent Mot. for Leave to File Under Seal, ECF No. 87 [hereinafter Pl.’s

2 Mot. for Leave], Pl.s Opp’n to Defs.’ Mot. for Summ. J., ECF No. 87-2 [hereinafter Pl.’s Opp’n],

¶ 3; see also Third Am. Compl. ¶ 35 (noting the timing of the change). Regrettably, this update

did not inoculate Plaintiff from future mistaken arrests.

1. First Arrest

This action concerns two such arrests occurring in 2016 and 2017 in the District of

Columbia. The first took place on October 23, 2016. On that date, Officer Terence Sutton of the

MPD arrested Plaintiff after a traffic stop on the 5400 block of Georgia Avenue N.W. Defs.’ SOF

¶ 1; Pl.’s Mot. for Leave, Pl.’s Stmt. of Genuine Issues of Disputed Material Fact & Add’l Issues

of Material Fact, ECF No. 87-3 [hereinafter Pl.’s SOF], ¶ 1. Officer Sutton ran a query in the

National Crime Information Center (“NCIC”) database, which returned two contradictory entries.

Pl.’s SOF ¶ 4; Pl.’s Opp’n, Ex. B., ECN No. 87-8 at 1; see also Third Am. Compl ¶ 26. One entry

for a failure to appear on a homicide charge matched Plaintiff’s name, date of birth, and Social

Security Number. Pl.’s SOF ¶ 3. The other for the underlying homicide charge contained the

notation “DO NOT DETAIN A VASQUEZ, JOSE [redacted birthdate] SS [redacted]. THIS IS

NOT SUSPECT.” Id. Officer Sutton did not notice this second entry and arrested Plaintiff on the

warrant. Pl.’s SOF ¶ 3; Pl.’s Opp’n, Dep. of Officer Terence Sutton, ECF No. 87-7, at 19–20.

The next day, a different MPD officer, Officer Ernest Cole, sent a teletype message

notifying the Will County Sheriff’s Office of Plaintiff’s apprehension and seeking confirmation

that it would extradite him. Defs.’ SOF ¶ 9; Pl.’s SOF ¶ 9. He did not, however, send Plaintiff’s

Social Security Number with this “hit and locate” inquiry. Pl.’s SOF ¶ 9. Meanwhile, Officer

Cole also initiated a fugitive criminal action against Plaintiff, despite his protests that he was a

victim of mistaken identity and had never stepped foot in Illinois. Defs.’ SOF ¶¶ 10–11; Pl.’s SOF

3 ¶¶ 10–11, 39. After his arraignment, a D.C. Superior Court judge ordered Plaintiff detained

without bond pending an extradition hearing. Defs.’ SOF ¶ 11; Pl.’s SOF ¶ 11.

On October 28, 2016, MPD Officer Ruben Agosto, a Defendant in the present action,

emailed the Will County Sheriff’s Office a photograph of Plaintiff and his fingerprints. Defs.’

SOF ¶ 12; Pl.’s SOF ¶ 12. Later that day, Will County alerted the MPD Fugitive Unit by teletype

that any holds on Plaintiff should be released. Defs.’ SOF ¶ 16; Pl.’s SOF ¶ 16. Plaintiff, however,

would not be released for another five days. Defs.’ SOF ¶¶ 22–23; Pl.’s SOF ¶¶ 22–23. On

November 2, 2016, at a bond review hearing, Plaintiff’s defense counsel raised the issue of

mistaken identity, and the court ordered the U.S. Attorney’s Office to look into the matter. Defs.’

SOF ¶ 20; Pl.’s SOF ¶ 20. The next day, November 3, 2021, Officer Agosto sent the now days-

old, exonerating teletype message received from Will County to the U.S. Attorney’s Office, which

then moved to dismiss the fugitive case against Plaintiff, leading to his release that same day.

Defs.’ SOF ¶¶ 22–23; Pl.’s SOF ¶¶ 22–23.

2. Second Arrest

On March 3, 2017, Plaintiff was arrested in the District of Columbia once again following

a traffic stop, this time by a U. S. Secret Service Officer. Defs.’ SOF ¶¶ 24, 27; Pl.’s SOF ¶¶ 24,

27. Plaintiff was taken into custody after discovery of the open warrant from Will County. Defs.’

SOF ¶ 26; Pl.’s SOF ¶ 26. Plaintiff eventually was taken to MPD for processing; he claimed his

innocence throughout, both to the arresting officer and to MPD. Pl.’s SOF ¶ 67; Defs.’ Reply in

Further Supp. of Defs.’ Mot., ECF No. 93 [hereinafter Defs.’ Reply], Defs.’ Resp. to Pl.’s Stmt.

of Genuine Issues of Disputed Material Fact & Add’l Issues of Material Fact, ECF No. 93-1

[hereinafter Defs.’ Reply SOF], ¶ 67. MPD again initiated a fugitive case against Plaintiff. Defs.’

SOF ¶ 30; Pl.’s SOF ¶ 30. Only after his arraignment on March 4, 2017, when his defense attorney

4 alerted the presiding judge that he had been arrested based on this mistaken identity just months

earlier, was Plaintiff released. Defs.’ SOF ¶ 31; Pl.’s SOF ¶ 31.

B. Procedural Background

This matter has taken many twists and turns since its filing. Plaintiff brought this action

on October 23, 2017. Compl., ECF No. 1. The Complaint, as originally filed, contained twelve

counts against various defendants, including individual MPD officers, the arresting Secret Service

officer, the District of Columbia, a John Doe defendant from Illinois, and two Illinois state

governments: the County of Will and the City of Joliet. Id. ¶¶ 2–7. On April 23, 2018, Plaintiff

filed a First Amended Complaint that dropped claims against the individual MPD officers and the

arresting Secret Service officer. First Am. Compl., ECF No. 28. Then, on April 30, 2018, Plaintiff

moved to split his claims into two actions and transfer the claims against the Illinois-based

defendants to the Northern District of Illinois. Pl.’s Unopposed Mot. to Sever Claims & Transfer

Claims to N.D. Ill., ECF No. 29. The court granted that motion, Order, ECF No. 30, leaving only

Plaintiff’s claims against the District of Columbia in the then-operative complaint.

Thereafter, the District moved to dismiss the action for failure to state a claim on May 7,

2018. Def.’s Mot. to Dismiss, ECF No. 32. The court granted this Motion on November 14, 2018,

but gave Plaintiff leave to file an amended complaint. Mem. Op. & Order, ECF No. 39. Plaintiff

filed a Second Amended Complaint on November 28, 2018, against the District of Columbia and

a John Doe MPD officer. Pl.’s Unopposed Mot. for Leave to File Under Seal, ECF No. 41, Second

Am. Compl., ECF No. 41-2. Defendant District of Columbia again moved to dismiss. Def.’s Mot.

to Dismiss Pl.’s Second Am. Compl., ECF No. 47. The court granted the motion in part and denied

the motion in part. Mem. Op. & Order, ECF No. 52. The court permitted Plaintiff to proceed on

his common law claims of false imprisonment and malicious prosecution against the District of

5 Columbia and a section 1983 claim against the John Doe defendant. See id. at 7, 10, 11. The court

dismissed Plaintiff’s claims against the District of Columbia for negligence and under section 1983

for failure to state a claim. See id. at 13, 15. After the District of Columbia filed an Answer, the

matter proceeded to discovery. Discovery closed on September 1, 2020. Order, ECF No. 64.

Plaintiff then filed a Third Amended Complaint on September 25, 2020, which is now the

operative pleading. Third Am. Compl.; Minute Order, Nov. 3, 2020 (accepting the Third Amended

Complaint for filing). This amended pleading identified Defendant Officer Ruben Agosto as the

John Doe defendant and added or amended various claims. See Pl.’s Consent Mot. for Leave to

File Redline Copy of Third Am. Compl. Under Seal, ECF No. 74, Redline of Third Am. Compl.,

ECF No. 74-2. Counts I, II, and III allege false arrest/imprisonment, malicious prosecution, and

negligence against the District of Columbia. Third Am. Compl. ¶¶ 74–88. Count IV asserts a

section 1983 claim against Officer Agosto based on a violation of Plaintiff’s rights under the

Fourth Amendment. Id. ¶¶ 89–99. Counts V through VII allege section 1983 claims against the

District of Columbia based on different theories of Monell liability. Id. ¶¶ 100–118.

Defendants now move for summary judgment on all claims. Defs’ Mot.

III. LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A “genuine dispute” of a “material fact” exists when the fact is “capable of affecting the

substantive outcome of the litigation” and “the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Elzeneiny v. District of Columbia,

(D.D.C. 2015).

6 In assessing a motion for summary judgment, the court looks at the facts in the light most

favorable to the nonmoving party and draws all justifiable inferences in that party’s favor.

Anderson v. Liberty Lobby, Inc.,

(1986). To defeat a motion for summary

judgment, the nonmoving party must put forward “more than mere unsupported allegations or

denials”; its opposition must be “supported by affidavits, declarations, or other competent

evidence, setting forth specific facts showing that there is a genuine issue for trial” and that a

reasonable jury could find in its favor. Elzeneiny,

(citing Fed. R. Civ. P.

56(e)); Celotex Corp. v. Catrett,

(1986).

IV. DISCUSSION

The court addresses the counts in the order in which they appear in the Third Amended

Complaint. So, the court begins with the common law claims against the District of Columbia

(Counts I through III), and then turns to the section 1983 claims against Officer Agosto (Count

IV) and the District of Columbia (Counts V through VII).

A. Count I: False Imprisonment

Although he labels his claim as one for “False Arrest/Imprisonment,” Third. Am. Compl.

at 18, Plaintiff’s claim is better understood as one for only false imprisonment. Although the two

torts are often thought of as “indistinguishable as a practical matter,” Enders v. District of

Columbia,

(D.C. 2010), “[f]alse arrest is a term that describes the setting for false

imprisonment when it is committed by an officer or by one who claims the power to make an

arrest.” Jones v. District of Columbia, No. 16-CV-2405 (DLF),

, at *5 (D.D.C.

June 13, 2019) (internal quotation marks omitted). Thus, a claim for false arrest is limited to

circumstances constituting an arrest, but a claim for false imprisonment applies more broadly to

improper detention. See

Here, Plaintiff’s claim against the District of Columbia in Count I

7 arises from his erroneous detention in March 2017. Third Am. Compl. ¶ 75. MPD did not arrest

Plaintiff then; the Secret Service did. Id. ¶ 61. MPD therefore did not “claim[] the power to make

an arrest” of Plaintiff in March 2017. MPD’s continued detention of him after the arrest by another

entity is therefore best understood as a claim of false imprisonment.

False imprisonment is an intentional tort, and a plaintiff must prove that the defendants

committed “an act intended to impose confinement or known by the actor to be substantially

certain of doing so.” Johnson v. United States,

(D.C. Cir. 1976). The “gist” of

such a claim “is an unlawful detention.” Dent v. May Dep’t Stores Co.,

(D.C.

1982). A plaintiff must produce evidence showing “a restraint against [his] will, as where [he]

yields to force, to the threat of force or to the assertion of authority.” Faniel v. Chesapeake &

Potomac Tel. Co. of Md.,

(D.C. 1979).

The District of Columbia does not contend that Plaintiff was lawfully detained. See Defs.’

Mot. at 17–19. Rather, it advances two defenses to Plaintiff’s claim—neither of which is

convincing.

First, the District contends that Plaintiff had already been arrested by the Secret Service

when he came into MPD’s custody on or about March 4, 2017, and, because “there was [n]ever a

break in his detention,” the District cannot be liable for an unlawful detention. Id. at 18. That

argument misconstrues the tort of false imprisonment. “One way to commit false imprisonment

is through a ‘refusal to release.’” Jones,

, at *5 (alterations omitted) (quoting

Restatement (Second) of Torts § 45 (Am. L. Inst. 1975)). “‘If the actor is under a duty to release

the other from confinement . . . his refusal to do so with the intention of confining the other is a

sufficient act of confinement to make him subject to liability’ for false imprisonment.” Id. (quoting

Restatement (Second) of Torts § 45 (Am. L. Inst. 1975)). And, “where false imprisonment arises

8 from over-detention, courts do not . . . require a new seizure or arrest.” Id. at *6. Here, a trier of

fact could conclude that the MPD refused to release Plaintiff even though it possessed or had

access to information that Plaintiff was not the “Jose T. Vasquez” wanted by Will County.

Pl.’s SOF ¶¶ 47–48, 68–71; Defs.’ Reply SOF ¶¶ 47–48, 68–71. It therefore does not matter that

there was “[n]ever a break in his detention.” Defs.’ Mot. at 18.

Second, the District argues that the record does not establish that “officers intended to

impose unlawful confinement upon the Plaintiff.” Id. at 19. But once again the District

misconstrues the tort of false imprisonment. “Although false imprisonment is classified as an

intentional tort, the case law clearly states that ‘neither malice nor wrongful intent are controlling

considerations in an action for false arrest or false imprisonment.’” Smith v. District of Columbia,

(D.D.C. 2018) (quoting Clarke v. District of Columbia,

(D.C. 1973)).” “In other words, there is no requirement that any person must have carried out

a deliberate plan to unlawfully detain someone.”

Accordingly, even if MPD officers

unlawfully detained Plaintiff by mistake, they can be liable for the tort of false imprisonment, and

the officers’ innocent intent is not a viable defense. The District is therefore not entitled to

summary judgment, and the court denies Defendants’ Motion as to Count I.

B. Count II: Common Law Malicious Prosecution

Count II alleges a claim of malicious prosecution “for [the] March 2017 [a]rrest.” Third

Am. Compl. at 19. A malicious prosecution claim under District of Columbia law requires:

(a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in favor of the accused, (c) absence of probable cause for the proceeding, and (d) “Malice,” or a primary purpose in instituting the proceeding other than that of bringing the offender to justice.

9 DeWitt v. District of Columbia,

(D.C. 2012) (internal quotation marks omitted)

(citing Jarett v. Walker,

(D.C. 1964)); see also Tyler v. Cent. Charge Serv.,

Inc.,

(D.C. 1982) (stating that a plaintiff must prove that “(1) the underlying

suit terminated in the plaintiff’s favor; (2) malice on the part of the defendant; (3) lack of probable

cause for the underlying suit; and (4) special injury occasioned by the plaintiff as the result of the

original action”). The plaintiff has a “heavy burden of proof to show lack of probable cause” in a

malicious prosecution action. DeWitt,

(internal quotation marks omitted) (citing

Schleuter v. S. Energy Homes, Inc.,

(6th Cir. 2007)).

The District advances two arguments for summary judgment, but neither is persuasive.

First, the District maintains that “Plaintiff does not allege intentional conduct by any MPD

officer . . . amounting to malice” and his “claim should be construed as a negligence claim and

dismissed.” Defs.’ Mot. at 20. But it is settled that “malice” for the purpose of a malicious

prosecution claim does not require “the existence of an evil, wrongful, or improper motive,” Tyler,

n.10, but instead can rest on proof of “a willful, wanton, reckless, or oppressive

disregard for the rights of the plaintiff,”

; see also Pitt v. District of Columbia,

(D.C. Cir. 2007) (“The determination of malice is exclusively for the factfinder.” (internal

quotation marks omitted)). Plaintiff has presented sufficient facts for a factfinder to infer that

MPD willfully, wantonly, recklessly, or oppressively disregarded Plaintiff’s rights.

It is undisputed that, although Plaintiff came into MPD’s custody at 5:00 p.m. on March 3,

2017, Officer Rollins did not run a warrant check in the NCIC database until 11:40 a.m. on the

next day. Defs.’ Reply SOF, ¶ 68. When he did so, he ran only Plaintiff’s name and date of birth.

See id. ¶ 69. Had he run Plaintiff’s Social Security Number in the NCIC database, it would have

revealed that the warrant was for a different person. See id. Officer Rollins also did not fully

10 review case information about Plaintiff in the Justice Information System (“JUSTIS”), an online

database of Superior Court cases that tracks fugitive warrant cases. See id. ¶¶ 66, 70. Officer

Rollins reviewed case information only about the March 2017 arrest; had he reviewed information

about Plaintiff’s November 2016 wrongful arrest, he would have learned that the Will County

warrant did not apply to Plaintiff. See id. ¶ 71. Although the District defends Officer Rollins’s

actions in not running Plaintiff’s Social Security Number or reviewing Plaintiff’s earlier fugitive

arrest in JUSTIS, see Defs.’ Reply at 22, based on Officer Rollins’s failures to investigate, a

reasonable trier of fact could find that the District acted with willful, wanton, reckless, or

oppressive disregard of Plaintiff’s rights. See id. (“A reasonable trier of fact could find that Central

Charge acted with such disregard by causing a second writ of attachment to issue without first

checking the Court Registry, which it knew might be holding the money it sought.”).

Second, the District argues that it cannot be held liable for malicious prosecution because

the Secret Service (and not MPD) arrested Plaintiff. Defs.’ Mot. at 20. But that argument

overlooks the undisputed fact that “Officer Rollins prepared an Affidavit in Support of an Arrest

Warrant to present to the United States Attorney’s Office,” which led to Plaintiff being charged as

a fugitive from justice. Defs.’ SOF ¶ 30. The District therefore “instituted” “a criminal

proceeding” against Plaintiff. DeWitt,

; see also Pitt,

(suggesting

that a reasonable jury could conclude that an insufficient affidavit submitted to prosecutors could

constitute malice for a malicious prosecution). The District’s motion is accordingly denied as to

Count II.

C. Negligence

The court reaches a different conclusion with respect to Plaintiff’s negligence claim. Under

District of Columbia law, “[t]he plaintiff in a negligence action bears the burden of proof on three

11 issues: ‘the applicable standard of care, a deviation from that standard by the defendant, and a

causal relationship between that deviation and the plaintiff's injury.’” Toy v. District of Columbia,

(D.C. 1988) (quoting Meek v. Shepard,

(D.C. 1984)). “A plaintiff

must put on expert testimony to establish what the standard of care is if the subject in question is

so distinctly related to some science, profession or occupation as to be beyond the ken of the

average layperson.” Briggs v. Wash. Metro. Area Transit Auth.,

(D.C. Cir.

2007) (quoting District of Columbia v. Arnold & Porter,

(D.C. 2000)).

However, “no expert testimony is needed if the subject matter is within the realm of common

knowledge and everyday experience.” Hill v. Metro. African Methodist Episcopal Church,

(D.C. 2001) (quoting Arnold & Porter,

).

In this case, the court concludes that an expert in police procedures concerning the

processing of fugitive warrants is required to establish the applicable standard of care. See Butera

v. District of Columbia,

(D.C. Cir. 2001) (observing in a case involving police

procedures on undercover operations that an expert “must refer to commonly used police

procedures, identifying specific standards by which the jury could measure the defendant’s

actions”). Plaintiff cites Daskalea v. District of Columbia,

(D.C. Cir. 2000),

and Wesby v. District of Columbia,

(D.C. Cir. 2014), rev’d on other grounds,

(2018), for the proposition that some negligence claims against law enforcement do not

require expert testimony. It is true that there is no categorical rule that expert testimony is required

to establish negligence in a case against law enforcement. But Daskalea and Wesby do not help

Plaintiff’s cause. See Daskalea,

(involving allegations of sexual abuse and

harassment, assault, and forced stripping by correctional officers that clearly violate a reasonable

standard of care); Wesby,

(holding no expert testimony required as to unlawful

12 arrest where a supervisor on the scene ordered the unlawful arrests, rather than an officer with less-

informed judgment). As this case involves police practices and procedures that are beyond the

ken of an average layperson, expert testimony is required to establish the standard of care. Cf.

Wesby,

(observing that “the District correctly points out that courts often require

expert testimony where the training and supervision of police officers is concerned”). Plaintiff,

however, has not provided any expert testimony that purports to establish the standard of care that

MPD officers owed Plaintiff. Without such evidence, Plaintiff’s claim cannot proceed to trial, and

the court grants the District’s motion with respect to Count III.

D. Count IV: Section 1983 Claim Against Officer Agosto

1. Officer Agosto’s Involvement in Plaintiff’s Detention

Having resolved Plaintiff’s common law claims, the court turns to his claims under section

1983, starting with the individual claim against Officer Agosto. The facts as they relate to Officer

Agosto’s actions are largely undisputed. On October 23, 2016, MPD Officer Terence Sutton

stopped Plaintiff for a traffic violation. Defs.’ SOF ¶ 1; Pl.’s SOF ¶ 1. During the traffic stop,

Officer Sutton conducted a license and criminal history check in the NCIC database and discovered

an outstanding arrest warrant on a homicide charge from Will County, Illinois, for a person that

matched Plaintiff’s name, date of birth, and Social Security Number. Defs.’ SOF ¶¶ 2–6; Pl.’s

SOF ¶¶ 2–6. 1 Officer Sutton then arrested Plaintiff as a fugitive from justice. Defs.’ SOF ¶ 7;

Pl.’s SOF ¶ 7. The next day, an MPD officer with MPD’s Fugitive Unit, Officer Ernest Cole,

verified that the warrant on which Plaintiff had been arrested was “active and that Plaintiff would

1 Plaintiff points out that the NCIC database also contained a second entry matching Plaintiff’s identifiers, which indicated not to detain Plaintiff (“DO NOT DETAIN A VASQUEZ, JOSE . . . THIS IS NOT SUSPECT.”), but which Officer Sutton did not review. Pl.’s SOF ¶¶ 2–6. But there is no allegation that Officer Agosto was aware of Officer Sutton’s oversight, so that fact is not material to the Fourth Amendment claim against Officer Agosto. 13 be extradited on the warrant.” Defs.’ SOF ¶ 8; Pl.’s SOF ¶ 8. Officer Cole then prepared an

affidavit in support of an arrest warrant, resulting in the fugitive-from-justice charge filed by the

U.S. Attorney’s Office. 2 Defs.’ SOF ¶ 10; Pl.’s SOF ¶ 10. On October 28, 2016, Officer Agosto,

also a member of the Fugitive Unit, emailed an officer with the Will County Sherriff’s Office a

photograph of Plaintiff along with biographical information and his fingerprints. Defs.’ SOF ¶¶

12–13; Pl.’s SOF ¶¶ 12–13. Although he was not assigned to Plaintiff’s case, Officer Agosto

undertook the task to determine whether Plaintiff was the person wanted by Will County, though

he could not recall at whose request. Pl.’s Mot. for Leave, Dep. of Officer Ruben Agosto, Ex. H,

ECF No. 87-14, at 10. Will County later determined that Plaintiff was not the person wanted on

the fugitive warrant and sent a teletype message to the attention of the “MPD Warrant/Fugitive

Squad,” not Officer Agosto, indicating that any holds on Plaintiff should be released. Defs.’ SOF

¶ 16; Pl.’s SOF ¶ 16; Defs.’ Mot., Ex. 3, ECF No. 85-13. At the time, when a teletype was received

that referenced a particular person, the practice was for the teletype operator to place it an outbox

for pickup by the Fugitive Unit and to place a call to the Fugitive Unit to notify it of the teletype’s

receipt. Defs.’ SOF ¶ 17; Pl.’s SOF ¶ 17; Def’s Mot., Dep. of Tipi Brookins, Ex. 11, ECF No. 85-

14, at 15–17. The record contains no indication that Officer Agosto either received a call about

the Will County teletype or physically received the teletype on October 28, 2016. At the same

time, Officer Agosto apparently undertook no steps to follow up on the confirmatory email he had

sent to Will County. Pl.’s SOF ¶ 51; Defs.’ Reply SOF ¶ 51. MPD did not notify the U.S.

Attorney’s Office about the teletype message from Will County until November 3, 2016, the day

after Plaintiff first appeared for a bond hearing. Defs.’ SOF ¶¶ 20–21; Pl.’s SOF ¶¶ 20–21. Officer

2 Officer Cole likewise missed the NCIC entry indicating that Plaintiff should not be detained. Pl.’s SOF ¶ 8. But, again, Plaintiff does not contend that Officer Agosto was aware of Officer Cole’s oversight, so that fact is not material to the Fourth Amendment claim against Officer Agosto. 14 Agosto forwarded the teletype to the U.S. Attorney’s Office, see Defs.’ SOF ¶¶ 20–21; Pl.’s SOF

¶¶ 20–21, though the record does not reveal when or how he came to possess it. According to

Plaintiff, as a result of Officer Agosto’s “indifference,” Plaintiff was unlawfully detained in

violation of his rights under the Fourth Amendment. Pl.’s Opp’n at 11.

2. Qualified Immunity as a Difficult, Exacting Standard

When, as here, an individual officer is sued for allegedly having violated a constitutional

right, the question is often whether the officer is entitled to qualified immunity. Government actors

who perform “discretionary functions” are generally “shielded from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Mitchell v. Forsyth,

(1985)

(quoting Harlow v. Fitzgerald,

(1982)). Qualified immunity provides “ample

protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v.

Briggs,

(1986). “An official sued under § 1983 is entitled to qualified immunity

unless it is shown that the official violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct.” Plumhoff v. Rickard,

(2014)

(citation omitted) (internal quotation marks omitted).

The court’s analysis has two parts. To defeat a defense of qualified immunity, a plaintiff

must show that: (1) “an official ‘violated a constitutional right’” and (2) “‘the right was clearly

established’ at the time of the violation.” Fenwick v. Pudimott,

(D.C. Cir. 2015)

(quoting Saucier v. Katz,

, 200–01 (2001)). A right can be “clearly established” only

if it is “sufficiently clear that every reasonable officer would have understood that what he is doing

violates that right.” Mullenix v. Luna,

(2015) (citation omitted) (internal quotation

marks omitted). Courts “do not require a case directly on point, but existing precedent must have

15 placed the statutory or constitutional question beyond debate.”

at 12 (quoting Ashcroft v. al-

Kidd,

(2011)). The rule should be “settled law”—not simply precedential, but

so clear through “controlling authority or a robust consensus of cases of persuasive authority” that

“every reasonable official would interpret it to establish the particular rule the plaintiff seeks to

apply.” District of Columbia v. Wesby,

, 589–90 (2018).

3. Plaintiff Cannot Hold Officer Agosto Liable

Plaintiff cannot meet his burden to overcome Officer Agosto’s claim of qualified

immunity. Plaintiff alleges that Officer Agosto’s actions led to his “being illegally detained in

contravention [of] the Fourth Amendment.” 3 Third Am. Compl. ¶ 95. Plaintiff, however, cites no

case from the Supreme Court or this Circuit that would hold an officer accountable in

circumstances like those faced by Officer Agosto. Indeed, the post-arrest constitutional

obligations of an officer under the Fourth Amendment are uncertain.

To be sure, multiple circuits have held that officers “may not disregard facts” available to

them “tending to dissipate probable cause” before making a warrantless arrest. Bigford v. Taylor,

(5th Cir. 1988); see also United States v. Pabon,

, 175–76 (2d

Cir. 2017); United States v. Ortiz-Hernandez,

(9th Cir. 2005); cf. Harte v. Bd.

of Comm’rs,

(10th Cir. 2017) (stating that “even when law-enforcement

officers obtain a proper search warrant, probable cause may dissipate before the warrant’s

execution, rendering the search unreasonable under the Fourth Amendment”).

However, courts have not often considered “dissipation in the context of new information

emerging after a warrantless arrest based on probable cause.” Pabon,

. The Second

3 Officer Agosto does not argue that Plaintiff has failed to show a violation of the Fourth Amendment, so the court does not address that first step of the qualified immunity inquiry. 16 Circuit has observed that “[t]he core obligation the Fourth Amendment imposes on the police at

this stage is to ensure that ‘persons arrested without a warrant . . . promptly be brought before a

neutral magistrate for a judicial determination of probable cause.’”

at 175–76 (quoting County

of Riverside v. McLaughlin,

(1991)). “It is then the magistrate’s job to determine

‘whether there is probable cause for detaining the arrested person pending further proceedings.’”

at 176 (quoting Gerstein v. Pugh,

(1975)). “Other than the obligations

clearly imposed by Gerstein and McLaughlin,” which require an officer to present a warrantless

arrestee to a magistrate and for that magistrate to determine probable cause, “the Supreme Court

has never indicated that the police have a specific Fourth Amendment obligation in the aftermath

of a warrantless arrest continually to reevaluate whether the available evidence still definitively

supports the initial probable cause determination.”

That is nearly the situation in which Officer Agosto found himself. Officer Agosto was

responsible neither for Plaintiff’s arrest nor initiating his fugitive charge in October 2016. Officers

Sutton and Cole, respectively, performed those tasks. Defs.’ SOF ¶¶ 6, 8; Pl.’s SOF ¶¶ 6, 8. It is

therefore unclear what, if any, Fourth Amendment obligation Officer Agosto had at that point. But

even if the court were to assume that in some circumstances the Fourth Amendment requires an

officer to release a detainee “where probable cause has unequivocally dissipated, rendering further

detention prior to the magistrate’s determination unreasonable,”

, the facts here do not

support that Officer Agosto knew that probable cause had “unequivocally dissipated.” Although

Plaintiff attests that he “repeatedly informed MPD officers during his arrest and detention that he

was not the person wanted in the Will County warrants,” he nowhere claims that Officer Agosto

was on the receiving end of those pleas. Pl.’s SOF ¶ 39; Defs.’ Reply SOF ¶ 39.

17 Furthermore, there is no evidence that Officer Agosto was notified of the Will County

teletype, let alone that he had received it and became aware of its directive to release Plaintiff. At

most, the evidence might support a failure to follow up by Officer Agosto, but this cannot support

Plaintiff’s claim. First, Plaintiff has offered no case that establishes a duty to follow up. And

second, Plaintiff has not provided the court with any proof of internal MPD policies or

procedures—formal or informal—that would have obligated Officer Agosto to follow up on his

inquiry with Will County. After all, Officer Agosto was not assigned to the case, and the practice

in place at the time did not call for Officer Agosto specifically, as opposed to the Fugitive Unit

generally, to be notified of the teletype. Based on the present record, the court finds that Officer

Agosto is entitled to qualified immunity and enters judgment in his favor. 4

E. Counts V, VI, and VII: Monell Claims Against the District of Columbia

The court now turns to Plaintiff’s section 1983 claims against the District of Columbia.

A municipality, like the District of Columbia, cannot be subject to suit under section 1983 through

what amounts to a respondeat superior theory of liability. See Monell v. Dep’t of Soc. Servs. of

N.Y.,

(1978); see also Triplett v. District of Columbia,

(D.C. Cir. 1997). Only when “a government’s policy or custom . . . inflicts the injury” is a

government body as an entity liable under section 1983. Monell,

. Thus, a Monell

claim requires “a predicate constitutional violation” caused by a “custom or policy of the

municipality.” Baker v. District of Columbia,

(D.C. Cir. 2003). Courts have

4 Officer Agosto prepares for the possibility that Plaintiff could seek (or that the court could construe Plaintiff’s claim) to hold him liable under section 1983 for violating his Fifth Amendment rights, but Plaintiff does not advance that claim in his Third Amended Complaint. See Third Am. Compl. at 21 (titling claim “Monell Claim under the Fourth Amendment”); id. ¶ 95 (alleging only that “he was being illegally detained in contravention to the Fourth Amendment”). The court therefore does not reach Plaintiff’s contention that Officer Agosto’s deliberate indifference resulted in a deprivation of due process. 18 recognized multiple ways in which a “custom or policy” can support municipal liability. First,

municipal liability will lie when a policy explicitly violates the Constitution. Baker,

(citing Monell, 436 U.S. at 694–95). Second, it applies when a policymaker’s acts violate

the Constitution. Baker,

(citing City of St. Louis v. Praprotnik,

,

123–30 (1988)). Third, a municipality can be held liable where it “adopt[s]” a violation through a

“knowing failure to act by a policy maker of actions by his subordinates that are so consistent that

they have become ‘custom.’” Baker,

(citing Praprotnik,

). Finally,

Monell liability exists for a government’s failure to “respond to a need (for example, training of

employees) in such a manner as to show ‘deliberate indifference’ to the risk that not addressing

the need will result in constitutional violations.” Baker,

(citing City of Canton

v. Harris,

(1989)).

Plaintiff brings three claims against the District of Columbia under section 1983 for

violations of his Fifth Amendment right to due process. Third Am. Compl. ¶¶ 103, 110, 116.

Plaintiff’s first count, Count V, asserts that “MPD policy and custom regarding the transmission

of incoming teletype fugitive warrant messages from the Teletype Unit to the Fugitive Unit . . .

and the distribution of . . . fugitive warrant teletype messages within the Fugitive Unit[] all but

ensured that critical messages . . . would be delayed, misplaced and/or mishandled.” Id. ¶ 101.

Further, Plaintiff asserts that MPD “did nothing to correct or improve its policies and customs”

even though this mishandling was “common, if not frequent.” Id. ¶ 102.

The second claim, set forth in Count VI, asserts that “MPD’s policies and customs directed

officers to ignore critical information in MPD’s own files and in the arrest records concerning the

prior disposition of fugitive warrant cases.” Id. ¶ 108. Specifically, Plaintiff contends that MPD’s

“policies and customs directed officers to ignore critical information in the NCIC database” that

19 would have notified them that Plaintiff was not the person wanted by the Will County arrest

warrant. Id. ¶ 107. He also alleges that MPD’s “policies and customs directed officers to provide

only name and date of birth—and to ignore Social Security Numbers—in submitting ‘hit-and-

locate’ requests,” which led to Plaintiff’s erroneous detention. Id. ¶ 109. Thus, both Counts V

and VI appear to be predicated on a “custom or policy” theory of Monell liability.

Count VII, in contrast, is premised on a failure to train. Plaintiff alleges that the “[t]he

District of Columbia failed adequately to supervise and train MPD officers with respect to the

proper handling of and attention to incoming teletype messages exonerating persons being held on

fugitive warrants.” Id. ¶ 114. Further, he maintains that the District “failed adequate[ly] to

supervise and train MPD officers to conduct thorough reviews of NCIC reports” and “to supervise

and train MPD office[r]s to use all available personal identifiers, including Social Security

Numbers, when making ‘hit-and-locate’ requests.” Id. He also alleges the District provided

inadequate training and supervision to officers in entering “sufficient information in electronic

databases to prevent recurring arrests” of persons like Plaintiff and reviewing prior case history

and other information to confirm the identity of a person in custody as a fugitive. Id.

Plaintiff has not offered sufficient evidence to support any of these theories to defeat

summary judgment. When a plaintiff seeks to establish “custom and policy” municipal liability

under section 1983, in the absence of an express policy, he must “present concentrated, fully

packed, precisely delineated scenarios” as proof that an unconstitutional policy or custom exists.

Parker v. District of Columbia,

(D.C. Cir. 1988) (citation omitted) (internal

quotations marks omitted). Put differently, “custom or practice” liability ordinarily is premised

on “practices so persistent and widespread as to practically have the force of law.” Connick v.

Thompson,

(2011); see also Praprotnik,

(recognizing that “if a

20 series of decisions by a subordinate official manifested a ‘custom or usage’ of which the supervisor

must have been aware” then “the supervisor could realistically be deemed to have adopted a

policy”). Because of this high burden, cases involving “deliberate municipal evasions of the

Constitution will be sharply limited.” Praprotnik,

.

The proof required to establish a failure to train is no less rigorous. Such a theory requires

a showing that the government failed to adequately train its employees “in such a manner as to

show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional

violations.” Baker,

. This requires proof that “city policymakers are on actual or

constructive notice that a particular omission in their training program causes city employees to

violate citizens’ constitutional rights.” Connick,

. Failure-to-train liability usually

requires showing a “pattern of similar constitutional violations by untrained employees,” but, on

rare occasions, a single unconstitutional incident may be sufficient to show deliberate indifference.

See

at 62–63. A municipality’s “culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train.”

.

The fatal flaw with Plaintiff’s Monell claims under all counts is that he has offered no

evidence that MPD routinely holds fugitives in error. Indeed, Plaintiff identifies no other person

whom MPD has held on a fugitive warrant for any period based on mistaken identity, as happened

to Plaintiff, or any other person that has suffered a re-arrest, as Plaintiff did, on a warrant that was

previously determined not to apply to him. Without such evidence, Plaintiff cannot establish

“practices so persistent and widespread as to practically have the force of law” or a “pattern of

similar constitutional violations by untrained employees.” Connick, 563 U.S. at 61–63.

Plaintiff notes that once or twice per month MPD receives teletype messages advising that

a person held is not the person sought by a fugitive warrant, see Pl.’s Opp’n at 18, but he identifies

21 no other occasion, other than his own detention, when such a message was ignored or mishandled,

resulting in an improper detention. Plaintiff also asserts that, “[a]t least 10 times per month,” MPD

fails to “provide timely information from jurisdictions outside the District of Columbia regarding

persons being held on fugitive warrants.” Id. at 19. The evidentiary basis for that claim is

dubious—it relies on what a witness “heard” without identifying from whom she heard that

statistic. See Defs.’ Mot., Dep. of Shavaka Melvin, Ex. 20, ECF No. 85-23, at 26. But, in any

event, even if the statistic is true, it tells the court nothing about how often untimely reporting

results in improper detentions or mistaken re-arrests.

And there is an equally glaring evidentiary omission in Plaintiff’s failure-to-train theory:

he offers no proof at all about how MPD officers are trained with respect to confirming the

identities of persons arrested on fugitive warrants. Plaintiff asserts various flaws in the system that

led to Plaintiff’s wrongful detentions, see Pl.’s Opp’n at 18, but nowhere does he show that those

flaws are the result of deficient training.

Accordingly, the District’s Motion is granted with respect to Counts V, VI, and VII.

V. CONCLUSION AND ORDER

Defendants’ Motion for Summary Judgment is granted in part and denied in part. With

respect to the section 1983 claim against Officer Agosto, Officer Agosto is entitled to qualified

immunity as a complete defense, so his motion with respect to Count IV is granted. With respect

to the Monell claims against the District of Columbia, the motion as to Counts V, VI, and VII is

likewise granted.

As for Plaintiff’s common law claims, the District’s motion as to Counts I (false

imprisonment) and II (malicious prosecution) are denied, but the motion is granted as to Count III

(negligence). The court will retain supplemental jurisdiction over Counts I and II. See Women

22 Prisoners v. District of Columbia,

(D.C. Cir. 1996) (allowing supplemental

jurisdiction at judicial discretion).

The parties shall appear for a remote status conference to discuss a schedule for further

proceedings on October 20, 2021, at 10:30 a.m.

Dated: September 30, 2021 Amit P. Mehta United States District Court Judge

23