UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TYANNA THOMAS,

Plaintiff,

v. Case No. 21-cv-00584 (CRC)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Plaintiff Tyanna Thomas was sentenced on two counts of assault in D.C. Superior Court.

The judge gave her 75 days on count 1 and time served on count 2. At the time of sentencing,

Thomas had already served 75 days in jail, so she expected to be released immediately. But the

Department of Corrections had other ideas. It computed count 2 as the first sentence, applying

the 75 days she had already served to that count, and began to hold her for an additional 75 days

on count 1. Thomas successfully petitioned the court to clarify that it had intended that she be

released upon sentencing. But by then she had spent about 55 extra days in jail. Thomas filed

this action against the District of Columbia under

, alleging that this

overdetention violated her Fifth Amendment rights to due process. To state a claim against the

District, she must adequately allege a policy or custom that caused the violation.

This complaint falls short. It does not contain factual allegations to support a showing of

a municipal policy or custom. The Court will therefore grant the District’s motion to dismiss. In

her opposition to the motion, however, Thomas points to a potential source of an alleged policy

or practice. While that maneuver cannot properly supplement the complaint, the Court will

invite Thomas to seek leave to file an amended complaint within 30 days. Absent a proposed

amended complaint by that time, dismissal will be with prejudice. I. Background

The underlying facts of this case are straightforward. On January 9, 2020, Thomas was

sentenced on two counts of simple assault in D.C. Superior Court. Compl. ¶ 7. On count 1, she

received 75 days; on count 2, the judge sentenced her to time served.

. And Thomas had

already served “approximately 75 days in jail.”

. She alleges that the court intended that

count 1 be credited first and then count 2, and thus knew this meant “the sentence would likely

result in [her] immediate release.”

¶¶ 11–12. But the Department of Corrections did the

opposite; it applied count 2’s sentence first and then started to hold her for an additional 75 days

on count 1. See

¶¶ 13–14. On March 2, 2020, the Superior Court issued an amended

Judgment and Commitment order, which clarified that count 1 should be credited first and count

2 second.

¶¶ 16–17. The Department of Corrections released Thomas three days later,

, but by then she had spent a few extra months in jail than she says she should have.

A year later, Thomas filed this action against the District. She brings a single Fifth

Amendment due process claim under

, also known as a Monell claim, along

with two trailing common-law claims of negligence and false imprisonment. The District filed a

motion to dismiss, primarily arguing that the complaint fails to adequately plead a policy or

custom as required by Monell v. Department of Social Services,

(1978).

II. Legal Standards

The District has moved to dismiss the complaint for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6). “To survive a motion to dismiss [under 12(b)(6)], a complaint

must 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)). A claim is plausible “when the plaintiff pleads factual content that

2 allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”

A court “must treat the complaint’s factual allegations as true and must grant

plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow v.

United Air Lines, Inc.,

(D.C. Cir. 2000) (cleaned up). Although a

complaint need not provide “detailed factual allegations” to withstand a 12(b)(6) motion, it must

offer “more than labels and conclusions.” Twombly,

.

III. Analysis

Thomas brings her Fifth Amendment due process claim under § 1983, which provides a

cause of action for individuals whose constitutional rights have been violated. “Under Monell,

municipalities are liable for their agents’ constitutional torts only if the agents acted pursuant to

municipal policy or custom.” Warren v. District of Columbia,

(D.C. Cir. 2004).

Thus, to state such a claim against D.C., a plaintiff “must allege not only a violation of [her]

rights under the Constitution or federal law, but also that the municipality’s custom or policy

caused the violation.”

Courts “have identified various ‘ways in which a ‘policy’ can be set’” such that it triggers

municipal liability under § 1983. See Singletary v. District of Columbia,

(D.C.

Cir. 2014) (citations omitted). As relevant here, a plaintiff must allege that the municipality:

(1) explicitly adopted a policy; (2) knowingly ignored a practice that was consistent enough to

constitute a custom; or (3) failed to respond to a need in such a manner as to show deliberate

indifference to the risk that not addressing the need will result in constitutional violations. Irving

v. District of Columbia, No. 19-3818 (RDM),

, at *5 (D.D.C. Feb. 9, 2021); see

also Warren,

.

3 Here, Thomas has pled that the District has “a longstanding custom and practice of

detaining people past their release dates,” that its “actions, and failure to act, . . . directly,

proximately, and affirmatively resulted in” her overdetention, and that the “District was

deliberately indifferent to her rights.” Compl. ¶¶ 20–22. There is nothing wrong with pleading

“alternative theories of liability” like this, however, “these contentions are merely ‘legal

conclusions cast in the form of factual allegations.’” Grissom v. District of Columbia,

(D.D.C. 2012) (citation omitted). A complaint must offer more than these

“keywords” and instead “identify supporting facts.”

This one falls short.

Thomas does lay out facts relating to the single instance of overdetention that forms the

basis of her case. “But absent a pattern of constitutional violations, a complaint ‘must include

some factual basis for the allegation of a municipal policy or custom.’” Wells v. Hense,

(D.D.C. 2017) (citations omitted). Thomas “does not name or identify” the

policy, practice, or custom, “nor does she cite any incident other than the events alleged in her

complaint.” Trimble v. District of Columbia,

(D.D.C. 2011). The upshot

is she is “merely speculating that an unidentified policy and uncorroborated practice or custom

exists without providing any factual heft to support the allegation.”

A long line of cases in

this district have found similarly sparse allegations of a policy or custom to be inadequate to state

a claim. See Wells, 235 F. Supp. 3d at 12–13 n.11 (collecting cases); see also Tyson v. District

of Columbia, No. 20-1450 (RC),

, at *4 (D.D.C. Mar. 8, 2021) (to plead an

explicit policy, the complaint must contain “facts that show an explicit setting of a policy” and

that the alleged unconstitutional action “executes a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by [municipal] officers” (quoting Monell,

)); id. at *5 (to establish liability via a failure to act, a plaintiff must plead “specific

4 incidents that plausibly show a custom or pattern of behavior” (citation omitted)); id. at *6 (for

deliberate indifference, plaintiff must allege, for example, a “failure to respond to repeated

complaints about misconduct” or “facts that show a pattern of misconduct that municipality

officials ignored” (citation omitted)).

But “a plaintiff need not identify multiple instances of unconstitutional conduct in order”

to show a “municipal policy.” Grissom,

. In her opposition to the

District’s motion to dismiss, Thomas provides some additional factual detail relating to a

potential policy or custom. She asserts that “[i]n response to an inquiry as to why [she] had not

been released,” the Department of Corrections “stated that it was their practice to credit the ‘time

served’” count first, see Opp’n at 4, “regardless of [the] order in which it is imposed.” See id. at

3. The Court also takes Thomas to be potentially alluding to other “cases” of the Department

applying jail credit in this manner, id. at 2–3, though no others are specifically mentioned. The

problem for Thomas is that these facts are not in her complaint. “It is well settled law that a

plaintiff cannot amend his or her complaint by the briefs in opposition to a motion to dismiss.”

Kingman Park Civic Ass’n v. Gray,

, 160 n.7 (D.D.C. 2014).

While the Court rejects the attempt to inject new facts into the case in this manner, it will

nonetheless allow Thomas an opportunity to explain how she could cure the deficiencies

identified in this opinion. The Court invites her to file a motion for leave to file an amended

complaint, attaching the proposed amendment, within 30 days.

Thomas’s common-law claims remain for now. The Court will defer a definitive ruling

on those until it assesses any proposed amended complaint. But if this dismissal stands, the

Court will follow the “usual” approach and decline to exercise supplemental jurisdiction over the

5 common-law claims. Shekoyan v. Sibley Int’l,

(D.C. Cir. 2005); Trimble, 779

F. Supp. 2d at 59–60.

IV. Conclusion

For these reasons, the Court will grant the motion to dismiss without prejudice. If the

plaintiff does not submit a proposed amended complaint and accompanying motion within 30

days, the Court will dismiss the case with prejudice. A separate Order accompanies this opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: December 6, 2021

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