UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHUGUANG CHEN,

Plaintiff,

v. No. 23-cv-01253 (DLF)

ICS PROTECTIVE SERVICES, et al.,

Defendants.

MEMORANDUM OPINION

Shuguang Chen brings this action against ICS Protective Services (“ICS”), Keith Moyler,

and a John Doe defendant 1 for injuries he sustained protesting outside of the Chinese Embassy.

Before the Court is the defendants’ Partial Motion to Dismiss. Dkt. 13. For the reasons that follow,

the Court will grant in part and deny in part the motion.

I. BACKGROUND 2

Chen is a citizen of the People’s Republic of China (“PRC”) and a lawful permanent

resident of the United States. Compl. ¶ 7, Dkt. 1. His relationship with the Chinese government

soured after he brought a lawsuit in 1997 to recover approximately $812,000 USD lost in a loan

that Chen extended to a business acquaintance. Id. ¶ 14. Despite prevailing in his lawsuit in China,

1 Although the defendants have identified the John Doe as Matthew Mitroine, see Opp’n at 1 n.1, Dkt. 19, Chen has not properly served Mitrione or substituted him as a party to this action. Accordingly, the Court does not consider Mitroine a properly named defendant for purposes of the motion to dismiss, and it will treat the allegations in the complaint as directed toward a John Doe defendant. 2 For purposes of this motion to dismiss, the Court accepts as true all material factual allegations in the complaint. See Am. Nat. Ins. Co. v. FDIC,

(D.C. Cir. 2011). At this stage of the proceedings, the Court will not accept the defendants’ invitation to consider facts not alleged in the complaint, see, e.g., Opp’n at 13. Chen alleges that he never recovered his financial assets and Chinese judicial officials instead

“pocketed the money.” Id. ¶ 16. He spent over 20 years seeking redress from the Chinese court

system and other governmental bodies. Id. Because he has “dedicated his life to protesting judicial

corruption,” Chen asserts that he “became what in the PRC is known as a ‘petitioner,’ that is,

someone who petitions the [Chinese] government . . . for redress of grievances.” Id. ¶¶ 7, 17.

In 2011, Chen immigrated to the United States. Id. ¶ 17. From 2019 to 2021, he engaged

in a “live-in and peaceful protest” in a tent erected across the street from the Chinese Embassy in

the District of Columbia. He regularly protests “on the sidewalk adjacent to” the Embassy,

including by using “a bullhorn to broadcast his grievances.” Id. ¶¶ 20–21.

ICS is a security company that provides “24/7 private security” for the Chinese Embassy

and its staff. Id. ¶¶ 8, 22. ICS has served the Embassy since 2003. Id. ¶ 8. ICS guards “frequently

observe[]” “victims of [Chinese] human rights abuse and judicial corruption” protest in front of

the Embassy. Id. Chen alleges that ICS guards “got to know him by observing him protest for

years” and “knew that he was a fearless but also harmless non-violent protestor.” Id. ¶¶ 22, 24.

This suit arises from altercations between Chen and ICS guards that occurred on May 4,

and June 25, 2022. According to Chen, on May 4, when he was “peacefully protesting outside of

the ambassador’s residence,” John Doe, an ICS security guard, “inexplicably and abruptly turned

violent” on Chen. Id. ¶ 25. Chen alleges that Doe “suddenly approached him and aggressively

shined his flashlight into his eyes.” Id. Doe allegedly then, without provocation, “struck [Chen]

on his chest and threatened to kill [Chen].” Id. Chen asserts that Doe stated, “Touch me mother

fucker! Don’t touch me, bitch. I will fucking kill you.” Id. Chen recorded the interaction on his

cell phone, and the complaint includes a screenshot of Doe standing and pointing his flashlight at

Chen’s eye level. Id. ¶ 25. For several weeks after the interaction, Chen allegedly experienced “fatigue, headaches, irritated eyes, and sensitivity to light,” as well as “fear and emotional

distress.” Id. ¶ 25.

On June 25, Chen had another altercation with ICS guard Keith Moyler while he was

protesting with his bullhorn “on the sidewalk near the ambassador’s residence.” Id. ¶ 28. That

day, Chen was fitted with a bodycam and a cell phone. Id. As he watched then-Chinese

Ambassador Qin Gang play tennis outside, he aimed his bullhorn at the court. Suddenly, Minister

Xu Xueyan—a female “high-ranking member” the Chinese diplomatic mission—approached him.

Id. A screenshot from his bodycam video shows Minister Xu with her arms outstretched toward

his cell phone, which he was holding above his head. Id. Minister Xu then allegedly “grabbed

and threw [his] cell phone . . . onto the middle of the road” while Moyler watched the interaction

between Chen and Minister Xu from the sidewalk. Id. ¶ 28. Chen then “ran into the street to pick

up his cell phone.” Id. ¶ 29. Another screenshot from his bodycam shows Moyler standing over

him as he bent down to retrieve his cell phone in the middle of the road. Id. ¶ 29. Moyler then

returned to the sidewalk to “exchange[] a few words with Xu.” Id. ¶ 30.

After “conferring” with Minister Xu, Moyler proceeded to arrest Chen. Id. According to

Chen, Moyler “caused him to trip and the right side of his head, shoulder, elbow, and pelvis hit the

ground.” Id. ¶ 31. Moyler then “forcefully contorted [Chen’s] arms behind his back and succeeded

in subduing [him] to the ground.” Id. After calling U.S. Secret Service officers to the scene,

Moyler allegedly sat on Chen’s torso for “nearly ten minutes, periodically striking at his ribs and

shoulder” while he was “lying face down on the ground with his hand forced behind his back.” Id.

Moyler also handcuffed him during the waiting period. Id. Upon the arrival of Secret Service,

Moyler allegedly provided false statements to the officers, claiming that Chen “assaulted . . . both

[Minister Xu and Moyler].” Id. ¶ 33. Moyler also provided a written statement, which stated that he had arrested Chen because “he witnessed [Chen] grab Xu’s hand and snatch her phone, while

moving aggressively towards Xu.” Chen alleges that, in reality, Minister Xu was the aggressor

who grabbed his phone. Id. According to Chen, Moyler’s statement also included the false

assertion that Chen “continued actively resisting arrest” after he “was already subdued and forced

to the ground.” Id. Chen was arrested and detained at the D.C. Central Detention Facility for

almost two days. Id. ¶ 35.

Chen’s complaint includes photographs of physical injuries that he sustained in the

altercation with Moyler. The photographs, taken after his release from detention approximately

45 hours after the incident, show a quarter-sized scab on his knee, a quarter-sized scab surrounded

by scrapes on his inner elbow, two fingernail-sized scabs on his upper temple and cheekbone, a

light pink thumb-sized bruise on his wrist, and multiple hairline scrapes on his shoulder, upper

forearm, and armpit. Id. ¶ 35. Chen alleges that these injuries “persisted for weeks” after his arrest

and that the “pain from the physical injuries he sustained persists to this day.” Id. ¶¶ 34, 37.

Chen was charged and prosecuted by the U.S. Department of Justice for assault on a police

officer, simple assault on Minister Xu, and resisting arrest. Id. ¶¶ 35–36. But the charges were

later dropped. Id. ¶ 36. Chen alleges that the experience of being arrested and assaulted by Moyer,

and of being “wrongfully prosecuted for offenses he did not commit[,] was humiliating and

traumatizing.” Id. ¶ 37.

On May 3, 2023, Chen filed suit against the defendants alleging eight counts: assault,

battery, intentional infliction of emotion distress (“IIED”), prejudice-motivated injury under

, false arrest and false imprisonment, malicious prosecution, civil conspiracy, and

negligent training and supervision. The defendants move to dismiss all but the assault and battery

counts for failure to state a claim. See Fed. R. Civ. P. 12(b)(6); Mot. to Dismiss at 1. II. LEGAL STANDARDS

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to

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

(2007). A facially plausible claim is one that “allows the court to draw the reasonable inference

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

(2009). This standard does not amount to a specific probability requirement, but it does require

“more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly,

(“Factual allegations must be enough to raise a right to relief above the speculative

level.”). A complaint need not contain “detailed factual allegations,” Iqbal,

, but

alleging facts that are “merely consistent with a defendant’s liability . . . stops short of the line

between possibility and plausibility,”

(internal quotation marks omitted).

When deciding a Rule 12(b)(6) motion, well-pleaded factual allegations are “entitled to

[an] assumption of truth,”

, and the court construes the complaint “in favor of the plaintiff,

who must be granted the benefit of all inferences that can be derived from the facts alleged,”

Hettinga v. United States,

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

But the Court need not accept “a legal conclusion couched as a factual allegation” nor an inference

unsupported by the facts alleged in the pleadings. Trudeau v. FTC,

(D.C. Cir.

2006) (quoting Papasan v. Allain,

(1986)). An “unadorned, the defendant-

unlawfully-harmed-me accusation” is not credited; likewise, “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

. Ultimately, “[d]etermining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.”

.

When deciding a Rule 12(b)(6) motion, the court may consider only the complaint itself,

documents attached to the complaint, documents incorporated by reference in the complaint, and

judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997). A Rule 12(b)(6) dismissal “is a resolution on the merits and is ordinarily

prejudicial.” Okusami v. Psychiatric Inst. of Wash., Inc.,

, 1066 (D.C. Cir. 1992).

III. DISCUSSION

For the reasons that follow, the Court will grant the defendants’ motion to dismiss the

plaintiff’s claims for intentional infliction of emotional distress, prejudice-motivated injury under

, malicious prosecution, and negligent supervision and training. The Court

will deny their motion with respect to the false arrest/false imprisonment and civil conspiracy

claims.

A. Intentional Infliction of Emotional Distress

To state a claim for IIED, “a plaintiff must [allege] (1) extreme and outrageous conduct by

the defendant that (2) intentionally or recklessly (3) caused the plaintiff severe emotional distress.”

Robertson v. D.C.,

, 1033 (D.C. 2022). “This common law claim has been described

as ‘a very narrow tort with requirements that are rigorous, and difficult to satisfy.’” Hargraves v.

D.C.,

(D.D.C. 2015) (quoting Snyder v. Phelps,

, 464–65

(2011)). “Where reasonable persons may differ, it is for the jury, subject to the control of the court,

to determine whether, in the particular case, the conduct has been sufficiently extreme and

outrageous to result in liability.” Amobi v. D.C. Dep’t of Corr.,

(D.C. Cir. 2014)

(citation omitted). Chen fails to plead facts sufficient to satisfy the first element of an IIED claim—that the

defendants’ conduct was sufficiently “extreme” and “outrageous.” Abourezk v. New York Airlines,

Inc.,

(D.C. Cir. 1990). This element requires conduct “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” Kotsch v. D.C.,

, 1945–46 (D.C. 2007) (quoting RESTATEMENT (SECOND) OF TORTS § 46 (1965)); see

Abourezk,

(same standard). A court considers “applicable community standards,

the nature of the activity at issue, the relationship between the parties, and the particular

environment in which the conduct took place.” Duncan v. Children’s Nat. Med. Ctr.,

(D.D.C. 1997). Chen’s claim relies on Doe’s pointing of a flashlight in his eyes while

Doe threatened him; Moyler’s unlawful and forceful arrest, “periodically striking at his ribs and

shoulder,” and Moyler’s false statements to law enforcement resulting in his prosecution. Compl.

¶¶ 25, 31–33. Although these allegations are sufficient to support claims for assault, battery, and

false arrest, see infra, they do not satisfy the elements of an IIED claim. To the contrary, the ICS

guards’ alleged uses of force fall well within the realm that courts have found insufficiently

extreme and outrageous. See Hargraves,

(officers’ use of a baton to force

plaintiff to ground not extreme and outrageous); Smith v. D.C.,

, 790–91 (D.C. 2005)

(IIED claim rejected where an officer, intervening in a fight, “applied a chokehold to [plaintiff’s]

throat” after watching him spit blood with a broken jaw); Harris v. District of Columbia,

(D.D.C. 2010) (dismissing IIED claim where plaintiff alleged twelve officers

used excessive force and unlawfully arrested him with guns drawn). Likewise, Chen’s assertions

that Moyler provided false statements to the Secret Service leading to his arrest cannot sustain his

claim. See Harris, 696 F.Supp.2d at 137–38 (dismissing IIED claim where officer “intentionally lied” in an affidavit). Even viewed together, these allegations fall far short of the types of conduct

found to support IIED claims. See, e.g., Daniels v. D.C.,

(D.D.C. 2012)

(denying motion to dismiss where officers “manhandle[d],” “pushed, shoved, and jerked” a 6-

month pregnant plaintiff who stated she was willing to “go peacefully”); Amons v. D.C.,

(D.D.C. 2002) (denying motion to dismiss where officers entered a plaintiff’s

home, killed his dog, and searched and detained him for twenty-two hours without legal

justification).

Chen also has not shown that the defendants’ conduct caused distress severe enough to

satisfy the third element of an IIED claim. Severe emotional distress “requires more than “general

distress, embarrassment, and unhappiness.” Bakeir v. Cap. City Mortg. Corp.,

(D.D.C. 2013); see also Cooper v. District of Columbia,

, 184 (D.D.C.

2021) (“[E]mbarassment and difficulty do not approach the level required to support an IIED

claim.” (citation and internal quotation marks omitted)); Garay v. Liriano,

(D.D.C. 2013) (same). “[M]erely suffering from mental anguish and stress is insufficient;”

instead, the emotional distress must be “so acute that harmful physical consequences are likely to

result.” Hargraves, 134 F. Supp. 3d at 93–94 (quoting Futrell v. Dep’t of Lab. Fed. Credit Union,

(D.C. 2003)) (alterations adopted). Chen alleges that after the May 4 altercation

with Doe, he felt “fear and emotional distress” as well as “fatigue, headaches, irritated eyes, and

sensitivity to light.” Compl. ¶ 27. He further asserts, in a conclusory manner, that his

“humiliate[ion]” and “trauma[]” from the altercations resulted in “extreme physical and

psychological suffering.” Id. ¶ 37. But conclusory assertions of “emotional distress[ ] and mental

anguish” cannot support an IIED claim. Daniels,

; Wood v. Neuman,

(D.C. 2009) (plaintiff who was “shaken at her arrest,” “constantly crying and almost sleepless,” and “embarrassed at having been made out to be a ‘pariah’ in the neighborhood” did

not show sufficient emotional distress).

Because Chen has failed to satisfy the first and the third elements of an IIED claim, the

Court will grant the defendants’ motion to dismiss the claim.

B. Prejudice-Motivated Injury under

(a) provides a cause of action for “any person who incurs injury to

his or her person . . . as a result of an intentional act that demonstrates an accused's prejudice based

on the actual or perceived . . . political affiliation of a victim of the subject designated act.” A

“designated act” encompasses “any criminal act under District of Columbia law, including threats

of bodily harm,” and the criminal act may be a misdemeanor or felony. Aboye v. U.S.,

, 1248–50 (D.C. 2015) (citing

(2)). The plaintiff must be the victim of

a “designated act” perpetrated by defendants.

(a).

Chen’s prejudice-motivated injury claim under

fails because his

complaint is devoid of any factual allegations that the defendants acted out of prejudice against

Chen’s actual or perceived political affiliation—that is, his “petitioner” status and opposition to

the government of the PRC, see Compl. ¶ 19. Even assuming that Chen is known as a “petitioner”

in the PRC, he alleges no facts in support of his conclusory statement that the ISC guards “assaulted

him based in part on their negative feelings about persons belonging to that group.” Opp’n at 9.

For example, he does not allege that Doe or Moyler made any statement expressing prejudice

toward him or that either guard had any knowledge of Chen’s political affiliation. Chen’s

conclusory allegations and his “formulaic recitation of the elements of” a

violation are insufficient to support a prejudice-motivated injury claim. Iqbal,

.

The Court will therefore grant the defendants’ motion to dismiss the claim. C. False Arrest and False Imprisonment

To state a claim for false arrest or false imprisonment, a plaintiff must allege “(1) the

detention or restraint of one against his will within boundaries fixed by the defendant, and (2) the

unlawfulness of the restraint.” Edwards v. Okie Dokie, Inc.,

(D.D.C. 2007).

“Depriving someone of the ability to freely move for any amount of time, either by real force or

threat of force, is sufficient to bring a claim for false arrest or false imprisonment.” Lyles v.

Micenko,

(D.D.C. 2006). An arrest is not unlawful if the arresting officer

had probable cause, that is, “a reasonable basis to believe that a crime had been committed and the

officer acted in good faith in making the arrest.’” Edwards,

; Koroma v. U.S.,

(D.D.C. 1986); Lyles,

(“[I]n civil cases the test is

whether the officer had a reasonable good faith belief that the suspect has committed or is

committing a crime, based on the fact and circumstances then known to him.”). Under D.C. law,

a special police officer such as a licensed privately-commissioned guard has “the same powers as

a law enforcement officer to arrest without warrant for offenses committed within premises to

which his jurisdiction extends, and may arrest outside the premises on fresh pursuit for offenses

committed on the premises.” D.C. Code § 23–582(a). “The issue of probable cause in a false

arrest case is a mixed question of law and fact that the trial court should ordinarily leave to the

jury.” Amobi,

(quoting Bradshaw v. D.C.,

(D.C. 2012)).

Viewing the facts in the light most favorable to Chen, as the Court must, the complaint

plausibly alleges that Moyler lacked probable cause to execute an arrest. According to Chen, he

was “peacefully protesting” when Minister Xu accosted him and Moyler unlawfully arrested him.

Compl. ¶ 3. He was allegedly standing on the sidewalk with a bullhorn when Minister Xu

approached him to “repress” his “free speech,” grabbed his cell phone, and threw it into the middle of the road. Id. ¶ 44, 28. In Chen’s telling, Moyler observed this sequence of events and arrested

him without legal justification. Id. The defendants resist Chen’s allegations and assert, relying on

facts not alleged in the complaint, that Moyler had probable cause to arrest Chen. Reply Mot. at

4–5, Dkt. 20. At least at this stage of the proceedings, however, the Court must credit Chen’s

version of events, where Minister Xu was the unilateral aggressor who grabbed Chen’s cell phone

as Chen reacted “peacefully,” id. ¶ 3, and Moyler acted without probable cause or a “reasonable

basis to believe” that Chen had committed an assault, id. These allegations are sufficient to state

a claim for false arrest and false imprisonment, see Edwards, 473 F. Supp. at 44, and thus the Court

will deny the defendants’ motion to dismiss the claim.

D. Malicious Prosecution

To state a claim for malicious prosecution, a plaintiff must allege “(1) that 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 plaintiff as the result of the

original action.” Lyles, 468 F. Supp. 2d at 75–76 (citing Tyler v. Ctr. Charge Serv., Inc.,

(D.C. 1982)). The claim may stand if a defendant “induced by fraud, corruption, perjury,

fabricated evidence, or other wrongful conduct undertaken in bad faith” in support of a plaintiff’s

wrongful prosecution. Moore v. Hartman,

(D.C. Cir. 2009). As to the first

element, “[a] favorable termination must ‘reflect on the merits of the underlying action.’”

Singleton v. D.C., No. CV 21-1914 (RJL),

, at *4 (D.D.C. Sept. 14, 2022)

(quoting Brown v. Carr,

(D.C. 1986)). Dismissal for a failure to prosecute

may be a favorable termination “where the facts of the case indicate that such a disposition reflects

on the innocence of the defendant in the underlying suit.” Carr,

. But “[m]erely alleging that criminal charges were dismissed is . . . insufficient to plead that the underlying case

was favorably terminated.” Kenley v. D.C., 83 F. Supp. 3d at 42.

Chen has not pleaded facts sufficient to support his claim that the defendants caused him

to be maliciously prosecuted after the June 25 altercation, Compl. ¶¶ 66–68. The complaint fails

to allege a favorable termination because it contains only a brief statement that criminal “charges

against [Chen] were finally dropped on August 2, 2022,” Comp. ¶ 36. It does not assert the grounds

for dismissal, nor does it offer reasons that “tend to indicate” Chen’s innocence. See Blakeney v.

O'Donnell,

(D.D.C. 2015). Chen argues for the first time in his opposition brief

that “video of the altercation, which investigators had in their possession, showed that Plaintiff

was innocent,” Opp’n at 10, but he does not incorporate the video footage into his complaint, see

generally Compl. Nor does he allege that the criminal proceedings were dismissed “with

prejudice,” as might support an inference of innocence. See Singleton,

, at *4.

He thus has failed to show that the underlying prosecution was terminated in his favor.

The cases on which Chen relies in which courts have inferred innocence from a “terse

assertion” of dismissal are distinguishable. In Blakeney,

, and Lucas v. D.C.,

(D.D.C. 2007), courts permitted malicious prosecutions claims to survive

a motion to dismiss where the plaintiffs made plain assertions that criminal charges were dropped.

But, unlike here, those cases involved malicious prosecution claims against the state actor—the

District of Columbia—that was also responsible for the underlying prosecution. See, e.g.,

Blakeney,

(explaining that the District’s failure to “offer any facts regarding

the circumstances of the underlying case’s dismissal” weighed in favor of the plaintiffs). ICS, in

contrast, is a private entity with no special insight into the U.S. Attorney’s Office’s rationale for

terminating the prosecution against Chen. Thus, ICS’s failure to provide the “facts of the case” of the underlying prosecution is not enough to show that the prosecution was terminated in Chen’s

favor. The Court thus will dismiss the claim.

E. Civil Conspiracy

The elements of civil conspiracy are “(1) an agreement between two or more persons; (2)

to participate in an unlawful act, or in a lawful act in an unlawful manner; and (3) an injury caused

by an unlawful overt act performed by one of the parties to the agreement; (4) pursuant to, and in

furtherance of, the common scheme.” Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp.,

(D.C. 2000) (citation omitted). A claim of civil conspiracy “depends on the

performance of some underlying tortious act.” Halberstam v. Welch,

(D.C. Cir.

1983). “Advice or encouragement to act [that] operates as a moral support to a tortfeasor” may be

a basis for liability if that encouragement “has the same effect upon the liability of the adviser as

participation or physical assistance.” Halberstam,

(citation omitted). “Proof of a

tacit, as opposed to explicit, understanding is sufficient to show agreement,” see

, and

allegations supported by circumstantial evidence can survive a motion to dismiss, see Doe v.

Roman Cath. Diocese of Greensburg,

, 212 (D.D.C. 2022).

Chen just barely alleges sufficient facts to support a claim that Moyler and Minister Xu

agreed to commit at least one of the tortious acts alleged in the complaint. The complaint alleges

that just before Moyler unlawfully arrested Xu, he observed Xu grab Chen’s cell phone and throw

it into the street and then “conferr[ed]” and “exchange[ed] a few words with Xu” on the sidewalk.

. The complaint also includes a screenshot of Moyler engaged in conversation with Xu.

Comp. ¶ 30. Immediately after this exchange, Moyler arrested Chen by “caus[ing] him to trip and

the right side of his head, shoulder, elbow, and pelvis to hit the ground.”

. These facts are

sufficient to state a claim for at least the underlying tortious acts of assault and battery. Moyler’s witnessing of Xu’s alleged assault on Chen, followed by Moyler’s conference with Xu and

immediate false arrest of Chen, is circumstantial evidence that the two reached an agreement to

commit an unlawful act against Chen. See Halberstam,

, 480. Because Chen has

alleged the elements of a civil conspiracy claim, the Court will deny the defendant’s motion to

dismiss the claim.

F. Negligent Training and Supervision

To state a claim for negligent training and supervision, a plaintiff must establish “that an

employer knew or should have known its employee behaved in a dangerous or otherwise

incompetent manner, and that the employer, armed with that actual or constructive knowledge,

failed to adequately supervise [or train] the employee.” Spiller v. D.C.,

(D.D.C. 2018) (quoting Giles v. Shell Oil Corp.,

(D.C. 1985)). An employer

must have the “actual or constructive knowledge” of “problematic behavior on the part of the

[employee] in question before the incident at issue.” Id. at 255 (emphasis added); see also

Rawlings v. D.C.,

, 114–15 (D.D.C. 2011) (requiring evidence of the employee’s

negligent “behavior before” an incident giving rise to injury).

Chen fails to state a negligent training or supervision claim because he has not alleged that

ICS had actual or constructive knowledge of previous problematic behavior by Doe or Moyler

before the altercations giving rise to the suit. Although Chen’s burden at the motion-to-dismiss

stage is “minimal,” Johnson v. D.C., No. CV 22-3167 (JEB),

, at *7 (D.D.C.

Apr. 4, 2023), and even “thin” factual allegations may survive, James v. D.C.,

(D.D.C. 2012), Chen must make some “showing of prior dangerous or otherwise

incompetent behavior” on the part of the defendants, Johnson,

, at *7. He has

not done so. The complaint does not allege that either Doe or Moyler have previously been involved in any similar incident or “behaved in a dangerous or incompetent manner in the past.”

Rawlings,

(citing D.C. v. Tulin,

(D.C. 2010)). Chen

cannot rely on the altercation with Doe to establish that ICS had knowledge of prior misconduct

by Moyler. See Opp’n at 13; Johnson,

, at *7 (prior misconduct must be

employee-specific). The Court also rejects Chen’s contention, raised for the first time in his

opposition brief, that it should take judicial notice of events underlying a separate suit and conclude

that “ICS has long known that its employees have behaved dangerously towards petitioner-

protestors against the PRC government.” Opp’n at 13; see Yang v. ICS Protective Servs.,

, at *1 (D.D.C. Aug. 28, 2023). Even if the Court were permitted to consider factual

allegations raised outside the pleadings, Chen’s “conclusory statement,” see Iqbal,

, does not raise a reasonable inference that ICS had knowledge of prior misconduct by either

of the officers referenced in the complaint.

Accordingly, Chen has failed to state a claim for negligent training and supervision, and

the Court will dismiss the claim.

CONCLUSION

For these reasons, the Court grants the defendants’ motion to dismiss, Dkt. 13, under Rule

12(b)(6) with respect to Count III (intentional infliction of emotional distress), Count IV

(prejudice-motivated injury under

), Count VI (malicious prosecution), and

Count VIII (negligent supervision and training). Accordingly, Counts III, IV, VI, and VIII are

dismissed without prejudice. The Court denies the motion with respect to Count V (false arrest

and false imprisonment) and Count VII (civil conspiracy). A separate order consistent with this

decision accompanies this memorandum opinion. ________________________ DABNEY L. FRIEDRICH September 5, 2024 United States District Judge