UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EDWIN RAMIREZ,

Plaintiff,

v. Case No. 22-cv-187 (CRC)

UNITED STATES PARK POLICE, et al,

Defendant.

MEMORANDUM OPINION

In the days following George Floyd’s death in May 2020, racial justice protests sprang up

across the country, including in Lafayette Square adjacent to the White House. Photojournalist

Edwin Ramirez filmed the Lafayette Square demonstrations on behalf of two European-based

news agencies. In this suit, Ramirez alleges that he suffered injuries at the hands of law

enforcement officers who responded to the protests. He sued three sets of defendants for

violations of his civil and constitutional rights, and negligence: (1) the United States and the U.S.

Park Police, a component of the National Park Service (“Federal Defendants”); (2) the

“Arlington County Government” and the Arlington County Police Department (“Arlington

Defendants”); and (3) the “District of Columbia Government” and the D.C. Metropolitan Police

Department (“D.C. Defendants”). Ramirez has since voluntarily dismissed the D.C. Defendants.

The Federal and Arlington Defendants now move to dismiss the claims against them. For the

reasons explained below, the Court will grant both motions and dismiss the case.

I. Background

The Court draws this factual background from Mr. Ramirez’s complaint and, as it must

on a motion to dismiss, assumes the truth of all well-pled allegations. See Sissel v. U.S. Dep’t of

Health & Human Servs.,

(D.C. Cir. 2014). Ramirez recorded the Lafayette Square protests on the evening of May 31, 2020. Compl.

¶¶ 4, 14. While there, he alleges that both protestors and members of the press were subjected to

excessive force by law enforcement, including “violence, rubber bullets, horns, gas, and other

physical force” as police officers worked to “reclaim ground in the park.” Id. ¶¶ 12, 18, 22, 25.

Ramirez recalls being trampled and shot by “five to seven rubber bullets.” Id. ¶ 37. Ramirez

does not specify who harmed him or their governmental affiliation, but alleges generally that the

U.S. Park Police, Arlington Police Department, and D.C. Metropolitan Police Department all

took part in the violence. As a result of his injuries, Ramirez required knee surgery, counseling,

and other medical treatment. Id. ¶ 40.

In January 2022, Ramirez filed a four-count complaint against the United States, the

United States Park Police, the “Arlington County Government,” the Arlington County Police

Department, the District of Columbia, and the D.C. Metropolitan Police Department—but none

of their officials or employees, either by name or as “John Doe” defendants. The complaint

alleges (1) a conspiracy to interfere with Ramirez’s civil rights in violation of

(3); (2) failure to prevent said conspiracy in violation of

; (3) deprivation

of civil rights in violation of

; and (4) negligence under both common law and

the Federal Tort Claims Act,

. Ramirez seeks three million dollars for his

injuries, lost wages, pain, and suffering.

.

Ramirez voluntarily dismissed the D.C. Defendants. Pl.’s Mot. Dis., ECF 7 (Mar. 14,

2022); Min. Order (Mar. 15, 2022). The Federal Defendants have moved to dismiss all claims

against them for lack of subject matter jurisdiction and failure to state a claim. Defs.’ Mot.

Dismiss (May 11, 2022) (“Fed. Mot.”). And the Arlington Defendants have moved to dismiss all

claims against them for improper venue and failure to state a claim. Defs.’ Mot. Dismiss (Mar.

18, 2022) (“Arl. Mot.”).

2 II. Legal Standards

In deciding a motion to dismiss, the Court must determine whether the complaint

“contain[s] 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 requires “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

The Court

“must take all of the factual allegations in the complaint as true.”

It also must “constru[e] the

complaint liberally in the plaintiff’s favor with the benefit of all reasonable inferences derived

from the facts alleged.” Stewart v. Nat’l Educ. Ass’n,

(D.C. Cir. 2006). That

said, “conclusory statements” and “threadbare recitals of the elements” do not suffice. Ashcroft,

.

III. Federal Defendants’ Motion to Dismiss

The Federal Defendants move to dismiss all claims against them under Federal Rule of

Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to

state a claim. Fed. Mot. For the following reasons, the Court will grant the motion.

A. Civil Rights Claims

The Federal Defendants move to dismiss Ramirez’s civil rights claims arising under

, 1985(3), and 1986 for lack of subject matter jurisdiction, arguing that those

statutes do not waive federal sovereign immunity. “Absent a waiver, sovereign immunity shields

the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer,

(1994).

Section 1983 establishes a cause of action against persons who act under the color of

state law to deprive an individual of “any rights, privileges, or immunities secured by the

Constitution and laws.”

. Section 1985(3), meanwhile, prohibits conspiracies

3 among two or more people to deprive any person or class of persons of the equal protection of

the laws, and section 1986 criminalizes knowingly failing to prevent such a conspiracy.

(3), 1986. As the Federal Defendants correctly assert, the United States and its

agencies have not waived sovereign immunity with respect to any of those statutes. See Hohri v.

United States,

, 245 n. 43 (D.C. Cir. 1986) (“[

, 1985–1986], by

their terms, do not apply to actions against the United States”), vacated on other grounds,

(1987); Faller v. DOJ, Civ. A. No. 20-1597 (ABJ),

, at *8 (D.D.C.

Sept. 17, 2021) (holding that sections 1983, 1985 and 1986 do not waive federal sovereign

immunity). Ramirez offers no law to the contrary.

Accordingly, the Court will dismiss Ramirez’s claims against the Federal Defendants for

violating his civil rights (§ 1983), conspiring to interfere with his civil rights (§ 1985(3)), and

neglecting to prevent said conspiracy (§ 1986).

B. Negligence Claim

The only remaining claim against the Federal Defendants is Ramirez’s negligence claim

under the Federal Tort Claims Act (“FTCA”). 1 Compl. ¶¶ 80-83. The FTCA permits suit

against the federal government for allegedly negligent or wrongful conduct by its employees

acting within the scope of their employment.

. But Ramirez’s FTCA claim

suffers from both jurisdictional and procedural flaws that require its dismissal.

1 To the extent Ramirez attempts to sue the Federal Defendants for negligence under D.C. common law, he is foreclosed from doing so by the Federal Tort Claims Act, which is the exclusive remedy for suing federal agencies for injury resulting from negligent or wrongful acts or omissions.

(b)(1).

4 1. Ramirez Cannot Sue the United States Park Police Under the Federal Tort Claims Act.

The United States Park Police is entitled to dismissal of Ramirez’s FTCA claim because

only the United States, and not its agencies, may be sued under that statute. See

(a) (“The authority of any federal agency to sue and be sued in its own name shall not be

construed to authorize suits against such federal agency on claims which are cognizable under

section 1346(b) of this title, and the remedies provided by this title in such cases shall be

exclusive.”); see also Goddard v. District of Columbia Redevelopment Land Agency,

(D.C. Cir. 1961) (affirming dismissal on same grounds); Coulibaly v. Kerry,

(D.D.C. 2016) (dismissing on same grounds). Accordingly, the Court will

dismiss Ramirez’s negligence claims against the Park Police.

2. Exhaustion of FTCA Claim Against the United States

As to Ramirez’s negligence claim against the United States itself, the Federal Defendants

maintain that Ramirez failed to properly exhaust his administrative remedies prior to filing suit.

The FTCA bars plaintiffs from suing in federal court until they have exhausted their

administrative remedies. McNeil v. United States,

(1993). The administrative

process gives the accused agency an opportunity to investigate and evaluate the strength of the

claim and determine if settlement is appropriate. See GAF Corp. v. United States,

(D.C. Cir. 1987). To properly exhaust, an FTCA claimant must “first present[] the claim to

the appropriate Federal agency” and have that claim denied by the agency in writing or remain

unresolved for at least six months.

(a). Filing an FTCA complaint with an

agency not accused of the alleged wrongdoing does not meet a plaintiff’s burden to

administratively exhaust with the “appropriate” federal agency. See Norton v. United States,

, 6–7 (D.D.C. 2021) (dismissing FTCA claim on exhaustion grounds because

5 plaintiff filed it with an unrelated agency). Failure to properly exhaust warrants dismissal of the

claim. Henderson v. Ratner, No. 10-5035,

, at *1 (D.C. Cir. Jun. 7, 2010) (per

curiam).

Here, Ramirez filed an FTCA administrative claim with the “White House Counsel.”

Fed. Mot., Ex. A at 5 (Pl.’s SF 95). The United States asserts that the White House cannot be

considered the “appropriate Federal agency” for purposes of exhaustion because it is not alleged

to have engaged in any wrongdoing in this case.

at 13–16. While the complaint alleges the

conduct occurred near the White House, to the extent the “White House Counsel” is an agency at

all, the complaint does not identify any misconduct by the White House as an institution, or the

White House Counsel in particular. By filing his FTCA paperwork with the White House rather

than one of the agencies he claims are responsible for his injuries, Ramirez failed to properly

exhaust his FTCA claim.

Ramirez responds that his claim is properly exhausted because he subsequently filed an

FTCA complaint with the United States Park Police in May 2022. Pl.’s Opp’n Fed. Mot., Ex. A

at 1. But a FTCA claim must be properly exhausted at the time it is filed in federal court. See

McNeil, 508 U.S. at 111–12 (rejecting argument that subsequent receipt of formal denial from an

agency is sufficient to satisfy the exhaustion requirement); Harrod v. U.S. Parole Comm'n, No.

13-774 (RMC),

, at *1 (D.D.C. 2014) (collecting cases). Ramirez’s attempt to

exhaust his FTCA claim nearly four months after filing his federal complaint cannot save it. The

Court will therefore dismiss Ramirez’s FTCA claim against the United States without prejudice.

Because no claims remain against the Federal Defendants, they are dismissed from the

case.

6 IV. Arlington Defendants’ Motion to Dismiss

The Arlington Defendants move to dismiss all claims against them pursuant to Federal

Rule of Civil Procedure 12(b)(3) for improper venue and Rule 12(b)(6) for failure to state a

claim. The Court will grant the motion.

A. The Arlington County Police Department Cannot be Sued

The Arlington County Police Department urges dismissal on the grounds that it is

incapable of being sued. Arl. Mot. at 4. The Court agrees. “It is beyond peradventure that a

‘noncorporate department or other body within a municipal corporation is not sui juris.’” Hinton

v. Metropolitan Police Dept., Fifth Dist.,

(D.D.C. 1989) (quoting Braxton

v. National Capital Housing Authority,

, 216–17 (D.C. 1978)). And this general

rule has been applied to the Arlington Police Department as well as other local law enforcement

agencies in Virginia. See Est. of Harris v. Arlington Cnty., No. 99-CV-1144,

, at *3 (E.D. Va. Jan. 14, 2000) (“[T]he [Arlington County] police department is not an

entity capable of being sued.”); see also Mobley v. City of Chesapeake, No. 06-cv-139 (JBF),

, at *3 (E.D.Va. Aug. 30, 2006) (City of Chesapeake Police Department),

aff’d

(4th Cir. 2007); Young v. City of Norfolk, No. L03-931,

, at *2 (Va. Cir. 2003) (Norfolk City Attorney’s Office and Norfolk Police

Department).

Ramirez’s citation to Zemedageguhu v. Arlington County Board misses the mark. No.

15-cv-57(JCC/TRJ),

, at *1 (E.D. Va. Feb. 24, 2015). There, the Arlington

County Sheriff’s Office was dismissed from the case after the plaintiff excluded the office from

his amended complaint.

While the plaintiff there was permitted to sue the Arlington County

Sheriff in her official capacity, that is irrelevant to whether Ramirez can sue the Arlington

7 County Police Department as an entity. Accordingly, the Arlington County Police Department is

dismissed from the case.

B. Venue

The Arlington Defendants also move to dismiss the case for improper venue under Rule

12(b)(3). Fed. R. Civ. P. 12(b)(3). Whether venue is proper “depends exclusively on whether

the court in which the case was brought satisfies the requirements of federal venue laws.” Atl.

Marine Const. Co., Inc. v. U.S. Dist. Court for Western Dist. of Tex.,

(2013).

“In considering a Rule 12(b)(3) motion, the court accepts the plaintiff's well-pled factual

allegations regarding venue as true, draws all reasonable inferences from those allegations in the

plaintiff's favor, and resolves any factual conflicts in the plaintiff's favor.” Haley v. Astrue,

(D.D.C. 2009) (quoting Pendleton v. Mukasey,

(D.D.C. 2008)). Still, the burden is on the plaintiff to establish that venue is proper, see, e.g.,

Williams v. GEICO Corp.,

(D.D.C. 2011), and the Court is not obligated to

accept the plaintiff's legal conclusions, Haley,

.

Under the general venue provision for federal question cases set forth in

(b), venue is proper in the district where “the events giving rise to the suit occurred.”

§ 1391(b)(2). Venue is plainly proper in D.C. if this provision were to apply, as no party

disputes that the alleged misconduct occurred in Lafayette Square within the District.

The Arlington Defendants argue that the general venue statute does not apply, however,

because a mutual aid agreement between the Arlington County Police Department and U.S. Park

Police requires that suit be brought in Virginia. Arl. Mot. at 9-13. This argument is based on

Section 7302 of the Intelligence Reform and Terrorism Prevention Act of 2004, which

established a venue rule for some mutual aid agreements between federal and state or local

governments in the Capital region. See

note (National Capital Region Mutual

8 Aid). The liability provision of that statute provides that any action brought against a party

rendering aid under an authorized mutual aid agreement must be brought “under the laws and

procedures of the State of the party rendering aid and only in the Federal or State Courts located

therein.”

§ 5196 note (d). According to the Arlington Defendants, Arlington County police

officers were only in D.C. to respond to the Lafayette Square protests pursuant to a 2016 mutual

aid agreement between the U.S. Park Police and the Arlington County Police Department. Arl.

Mot., Ex. A at 1–5 (“Agreement”). That Agreement expressly states that “[t]his agreement is a

‘mutual aid agreement’ for purposes of § 7302 of the National Intelligence Reform and

Terrorism Prevention Act of 2004” and that “the liability provisions of § 7302(d) . . . shall

apply.” Agreement at 1. Thus, according to Arlington Defendants, the suit must be transferred

to Virginia.

That exact argument was raised and rejected by a fellow judge in this district in Black

Lives Matter D.C. v. Trump.

, 42-43 (D.D.C. 2021). There, Judge Friedrich

concluded that Section 7302’s venue provision did not apply because the Agreement was not

executed by an “authorized representative of the Federal Government” as required by the statute.

Id.;

note (b)(1). The statute defines “an authorized representative of the

Federal Government” as “any individual or individuals designated by the President with respect

to the executive branch.”

note (a)(1). Judge Friedrich reasoned that the

Agreement, which was signed by the Chief of the U.S. Park Police, was not properly authorized

because “there is no indication that the Chief of the U.S. Park Police was so designated by the

President.” Black Lives Matter, 544 F. Supp. 3d at 42. Because the Agreement was not properly

authorized under the relevant statute, Judge Friedrich held that the accompanying venue

provision did not govern, and that the District was the proper venue. Id.

9 This Court is persuaded by Judge Friedrich’s reasoning. The statute specifies who is

authorized to enter mutual aid agreements under Section 7302 and there is no indication that the

Chief of the U.S. Park Police was so authorized. Accordingly, the special venue provision does

not apply and the suit remains in D.C.

The Arlington Defendants contest that outcome, arguing that the Chief of the U.S. Park

Police had implied authority to enter the Agreement. That argument was also raised and rejected

in Black Lives Matter. 544 F. Supp. 3d at 42. As Judge Friedrich noted, the statute is clear

about who has authority to enter a mutual aid agreement, leaving little room for implied

authority. Id. Subsection (b) of the statue clearly delineates who is expressly authorized to

“enter into, request or provide assistance under mutual aid agreements with localities,” and the

statute defines mutual aid agreements as “an agreement, authorized under subsection (b),”

note (a)(6). See Black Lives Matter, 544 F. Supp. 3d at 42. That express

authority is limited to those in the executive branch designated by the President and their

designees,

note (a)(1). While the Arlington Defendants correctly note that the

Secretary of the Interior has been delegated authority to enter such agreements, they offer no

authority to support a finding that the Chief of the U.S. Park Police has also been delegated that

authority. See Memorandum on Designation of Authorized Representative, 2 Pub. Papers 1823

(Nov. 28, 2012), https://www.govinfo.gov/content/pkg/PPP-2012-book2/pdf/PPP-2012-book2-

doc-pg1823.pdf.

Because the Agreement was not properly authorized under Section 7302, that statute’s

special venue provision does not control and the District of Columbia remains the proper venue

for this suit. The Court will therefore move to the substance of Ramirez’s claim against the

Arlington Defendants.

10 C. Section 1983 Municipal Liability

The Arlington Defendants move to dismiss Ramirez’s section 1983 claim on the ground

that he has failed to allege facts to support municipal liability. To hold a municipality liable for

violating section 1983, a plaintiff must allege that the municipality followed a “policy or

custom” that resulted in the constitutional injury. See Monell v. Dep’t of Soc. Servs. of City of

New York,

(1978). Ramirez has failed to identify any specific policy or

practice that caused his alleged injuries. In fact, Ramirez alleges that all the Defendants acted

“in violation of [their] own regulations and standard operating procedures.” Compl. ¶ 33

(emphasis added). Even in his opposition, Ramirez does not allege that his injuries resulted from

any city policy or custom. Accordingly, his section 1983 claim against Arlington County is

dismissed without prejudice.

D. Conspiracy Claims

The Arlington Defendants also move to dismiss Ramirez’s conspiracy allegations for

failure to state a claim under either section 1985(3) or section 1986. To state a claim under

section 1985(3), a plaintiff must plead facts to support four elements: “(1) a conspiracy; (2) for

the purpose of depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws, . . . and (3) an act in furtherance of the conspiracy; (4) whereby a person

is either injured in his person or property or deprived of any right or privilege of a citizen of the

United States.” Martin v. Malhoyt,

(D.C. Cir. 1987). Further, the conspiracy

must be motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory

animus.” Griffin v. Breckenridge,

(1971). Section 1986, meanwhile, imposes

liability on anyone who knowingly fails to prevent a conspiracy in violation of section 1985. “A

plaintiff who has not stated a claim under § 1985 has no basis for relief under § 1986.” Moore v.

11 Castro,

(D.D.C. 2016), aff'd sub nom. Moore v. Carson,

(D.C. Cir. 2019).

Ramirez alleges generally that all Defendants “had an express agreement to deprive [him]

as well as other members of the public and the press of their constitutional rights to be present at

Lafayette Park on May 31, 2020.” Compl. ¶ 30. But he offers scant detail as to the membership,

timing, or contours of any such conspiracy. The only specifics offered are that then-Attorney

General William Barr “requested ‘riot teams’ and other specialized agents” to use force against

Ramirez and others in Lafayette Square, Compl. ¶ 31, and that President Trump’s negative

comments about the press permitted “hatred to invade the numerous Police Officers that attacked

the Plaintiff,” Compl. ¶ 35.

These bare-bones allegations are insufficient to create a plausible inference that the

alleged conspiracy existed, let alone that Arlington County joined it. There are simply no

allegations of “any events, conversations, or documents indicating that there was ever an

agreement or meeting of the minds” amongst the Defendants to violate Ramirez’s rights. See

Barber v. District of Columbia Government,

, 66 (D.D.C. 2019). Indeed,

Judge Friedrich found similar, if not more detailed allegations insufficient to sustain a section

1985(3) conspiracy claim in Black Lives Matter, 544 F. Supp. 3d at 38. Moreover, even if

Ramirez had sufficiently alleged a conspiracy, he has not alleged how the conspiracy was

motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory

animus.” See Griffin,

. Accordingly, Ramirez’s section 1985(3) claim is

dismissed. And without a viable section 1985 claim, Ramirez’s section 1986 claim must be

dismissed as well.

12 E. Negligence

That leaves Ramirez’s negligence claim. The Arlington Defendants move to dismiss it

for failure to state a claim and on the ground that Arlington County has immunity from tort

liability. Finding that Ramirez has failed to adequately allege negligence, the Court need not

assess Arlington County’s immunity argument.

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

action, he must establish three elements: (1) that the defendant owed a duty 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)).

Ramirez alleges that all Defendants acted negligently when they “moved the crowd,”

“failed to erect an adequate structure and thereby allowed for the creation of a dangerous and

unsafe condition,” “failed to manage the crowd and properly communicate with each other,”

“failed to advise or adequately warn Plaintiff and others of the dangerous and unsafe actions to

follow on May 31, 2020,” and “failed to take reasonable safety or protective measures . . . by

unreasonably failing to follow protocol with regularity.” Compl. ¶ 81 (cleaned up).

But all those alleged actions presumably were undertaken by individual law enforcement

officers at the scene, none of whom are party to this suit. Ramirez has not specifically alleged

what acts, if any, Arlington County took that caused his injuries. As discussed in relation to his

section 1983 claim, Ramirez does not identify any County policy or procedure. Nor does he

allege that Arlington County negligently supervised or trained its officers. See e.g., Harvey v.

Kasco,

(D.D.C. 2015) (dismissing negligent training and supervision

13 claim for failure to allege supporting facts). Without any negligent act attributed to Arlington

County, Ramirez’s negligence claim cannot proceed. 2

V. Conclusion

Accordingly, the Court will grant Federal Defendants’ and Arlington Defendants’

Motions to Dismiss. All claims against all defendants are dismissed. A separate Order shall

accompany this opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: February 1, 2023

2 Ramirez does not raise a theory of vicarious liability in either his complaint or his briefs. Because arguments not raised in briefing are waived, see New York Rehab. Care Mgmt., LLC v. N.L.R.B.,

(D.C. Cir. 2007), such a theory cannot now save Ramirez’s negligence claim. Nor has Ramirez sought to amend his complaint to add individual government officials or police officers as defendants.

14