UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANTHONY MARSH II,

Plaintiff,

v. Civil Action No. 24-cv-683 (RDM)

JOHN BEWLEY, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

At least as alleged in the complaint, the facts of this case are straightforward. Plaintiff

Anthony Marsh alleges that he was walking his dog on January 20, 2021, when two Metropolitan

Police Department (“MPD”) officers, Anthony Delborrell and John Bewley, approached him.

They claimed to see a “bulge” in his pocket that resembled a gun, and, on that basis alone, they

stopped and searched him. On Plaintiff’s telling, however, the officers’ claim was baseless; he

was not carrying a gun, and more importantly, it is “highly unlikely” that the officers actually

believed that he was carrying a gun. Instead, according to Plaintiff, the officers stopped and

frisked him in knowing violation of his rights. Based on these allegations, Plaintiff asserts three

claims against the two MPD officers and the MPD itself. He asserts a claim for negligence, false

imprisonment, and a violation of his Fourth Amendment rights. Although he does not identify

the cause of action for his federal law claim, he presumably intends to premise that claim on

Section 1983,

.

Defendants’ motion to dismiss for failure to state a claim, Dkt. 7, and Plaintiff’s request

for leave to file an amended complaint, Dkt. 8, are currently before the Court. For the reasons

explained below, the Court will GRANT the MPD’s motion to dismiss all claims against it, will GRANT Defendants’ motion to dismiss the two common law counts, will DENY the individual

Defendants’ motion to dismiss Plaintiff’s Section 1983 claim, and will GRANT Plaintiff leave to

file an amended complaint adding the District of Columbia as a defendant in lieu of the MPD,

but only on the condition that he can, in good faith, allege a relevant policy or custom, as

required under Monell v. New York City Department of Social Services,

(1978).

I. BACKGROUND

For the purposes of Defendants’ motion to dismiss, the Court takes Plaintiff’s factual

allegations as true. See Harris v. D.C. Water & Sewer Auth.,

(D.C. Cir. 2015).

According to Plaintiff, he “was walking his dog around the neighborhood where he

resides” on January 20, 2021. Dkt. 1-1 at 4 (Compl. ¶ 8). Officers Delborrell and Bewley

approached him, claiming to see a “‘bulge’ in his pocket which they thought could have been a

gun.”

(Compl. ¶ 9). Plaintiff did not “blade his body in a suspicious manner or increase his

pace,” and, in fact, “there was no bulge” in his pocket. Id. at 5 (Compl. ¶ 13). As a result, there

was no basis reasonably to believe that he possessed a gun. Id. The officers, nonetheless,

“demanded [that] [Plaintiff] [] stop” and “accus[ed] him of carrying a weapon.” Id. at 6 (Compl.

¶ 19). During the stop, the officers “restrict[ed]” Plaintiff from returning to his home and

demanded that he “tell them” what he had in his pockets. Id. (Compl. ¶¶ 21–22). The nature of

the interaction led Plaintiff to believe that he was not free to leave, and he did not consent to the

stop and frisk. Id. at 4-6 (Compl. ¶ 11, 22).

In an effort to bolster his allegations, Plaintiff refers to the “Findings of Fact and Merits

Determination from the Government of the District of Columbia [O]ffice of [P]olice

[C]omplaint[s]” throughout his complaint. Id. at 4 (Compl. ¶ 10). Although he does not attach a

copy of that report to his complaint, Plaintiff alleges that the Findings of Fact and Merits

2 Determination “f[ound] that there was no bulge in the Plaintiff’s pocket.” Id. He also alleges

that MPD “admits there was no bulge in [his] jacket pocket” and that the “[u]nion’s observation

presented in the complaint states that ‘it was highly unlikely that the subject officers would have

been able to see a bulge in the shape of a gun or weapon.’” Id. at 5 (Compl. ¶ 12). And, perhaps

most significantly, he alleges that the report determined that “the officers violated MPRD

General Orders and did not have [] reasonable suspicion to frisk the Plaintiff.” Id. (Compl. ¶ 14).

Plaintiff commenced this action on January 19, 2024, by filing a suit against the MDP

and officers Delborrell and Bewley in the Superior Court, seeking compensatory damages in the

amount of $150,000. Dkt. 1-1 at 4 (Compl. ¶¶ 2–6). Defendants timely removed the action to

this Court, Dkt. 1 (Notice of Removal), and have now moved to dismiss the complaint for failure

to state a claim, Dkt. 7. Plaintiff opposes the motion, Dkt. 8, and also seeks leave to file an

amended complaint.

II. LEGAL STANDARD

“To survive a motion to dismiss, 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,

(quoting Bell Atl. Corp. v. Twombly,

(2007)). A claim is

plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable

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

Although “detailed factual

allegations” are not required, the complaint must contain “more than labels and conclusions, [or]

a formulaic recitation of the elements of a cause of action.” Twombly,

. The

Court must “assume [the] veracity” of “well-pleaded factual allegations,” Iqbal,

,

and must “grant [the] plaintiff the benefit of all inferences that can be derived from the facts

alleged,” Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000) (internal

3 quotation marks omitted). The Court, however, need not accept “a legal conclusion couched as a

factual allegation.” Iqbal,

(quoting Twombly,

).

III. ANALYSIS

Plaintiff asserts three claims: (1) a negligence claim, (2) a false imprisonment claim, and

(3) a Section 1983 claim. As currently framed, Plaintiff’s complaint seeks relief from the MPD

and the individual officers. The Court will start with the amenability of the MPD to suit before

turning to the substance of Plaintiff’s claims.

A. Claims Against the MPD and Leave to Amend

Defendants correctly observe that the MDP is non sui juris and, therefore, is not a proper

party to this suit. “‘[I]n the absence of explicit statutory authorization, bodies within the District

of Columbia government are not suable as separate entities.’” Scahill v. District of Columbia,

(D.D.C. 2017) (alteration in original) (quoting Sibley v. U.S. Sup. Ct.,

(D.D.C. 2011)); see also Roberson v. D.C. Bd. Higher Educ.,

, 31 n.4 (D.C. 1976) (explaining that an entity within D.C. government may only be sued if the

entity is statutorily a separate legal entity). Here, the MDP is an independent agency within D.C.

government.

Plaintiff does not take issue with this reasoning in his opposition brief but, rather, states

that he “will be filing a motion [for] leave to amend the complaint” to name the District of

Columbia in lieu of the MPD. Dkt. 8 at 2. In response, Defendants note that merely substituting

the District of Columbia for the MPD will not save Plaintiff’s complaint, because he has failed to

“plead that a custom or practice of the District was the moving force that cause[d] his alleged

injury.” Dkt. 9 at 3. Defendants are correct that a plaintiff seeking to recover from the District

of Columbia under Section 1983 for an alleged violation of his Fourth Amendment rights must,

4 under Monell,

, plead both a constitutional violation and that a custom or policy

of the District of Columbia caused that violation. They are also correct that, to state a claim, the

plaintiff must allege facts in his complaint that plausibly state a claim under Monell and that

arguments set forth in an opposition brief do not count. See Sai v. Transp. Sec. Admin.,

, 33 (D.D.C. 2018) (“It is axiomatic . . . that a party may not amend his complaint

through an opposition brief.”) (internal quotation marks and citation omitted).

“The decision to grant or deny leave to amend . . . is vested to the sound discretion of the

district court,” Doe v. McMillan,

(D.C. Cir. 1977), and “[t]he court should

freely give leave when justice so requires,” Fed. R. Civ. P. 15(a)(2). Where new allegations will

“clarify, but [] not reshape the action,” granting leave to amend is favored. Council on

American-Islamic Relations Action Network, Inc. v. Gaubatz,

(D.D.C.

2011). Here, however, merely substituting the District of Columbia for the MDP will not solve

the problem; such an amendment would be futile given the requirements for stating a municipal

liability claim that are set forth in Monell and its progeny. It would not be futile, however, to the

extent Plaintiff can allege facts sufficient to satisfy the Monell standard.

In light of all of this—and recognizing that the better course would have been for

Plaintiff to file a motion for leave to amend accompanied by a proposed, amended complaint—

the Court will proceed as follows: The Court will, first, dismiss Plaintiff’s claim against the

MPD. All agree that that entity is not subject to suit. Second, the Court will deny Plaintiff’s

request merely to substitute the District of Columbia for the MPD. To do so would be futile.

Third, the Court will grant Plaintiff’s request for leave to file an amended complaint, but on the

condition that Plaintiff may do so only if he can, in good faith, allege facts sufficient to satisfy

the Monell standard.

5 B. Negligence

Although the Court has dismissed all claims against the MPD, Plaintiff’s negligence

claim against the individual officers remains—at least for the moment. “The elements of a cause

of action for negligence are (1) a duty of care owed by the defendant to the plaintiff, (2) a breach

of that duty by the defendant, and (3) damage to the interests of the plaintiff, (4) proximately

caused by the breach.” Goolsby v. District of Columbia,

(D.D.C. 2019)

(quoting Taylor v. District of Columbia,

(D.C. 2001)). Under D.C. law,

however, “negligence must be distinctly pled,” and to state a claim, a plaintiff must present “at

least one factual scenario” that is “violative of a distinct standard of care.” District of Columbia

v. Chinn,

(D.C. 2003)); see also Stewart-Veal v. District of Columbia,

(D.C. 2006) (affirming dismissal of the plaintiff’s negligence claim because it was

“not separate and distinct from [the plaintiff’s] false arrest claim; rather, it is intertwined with

and dependent on that claim”); see also McCrea v. D.C., No. 16-cv-808,

, at

*4 (D.D.C. June 14, 2023).

Here, Plaintiff alleges that Defendants owed him a “duty of care so as not to falsely

accuse him of a crime with[out] any probable cause,” Dkt. 1-1 at 5 (Compl. ¶ 15), and he

contends that they “acted negligently by unlawful[ly] searching [him] without his consent or the

requisite probable cause,”

(Compl. ¶ 16). Understood in this light, Plaintiff’s negligence

claim is not “separate and distinct” from his false imprisonment claim; it relies on the same

factual allegations and allegedly unlawful conduct—namely, the unlawful stop and detention of

Plaintiff. See Kenley v. District of Columbia,

(D.D.C. 2015) (dismissing

the plaintiff’s negligence claim against police officers because the “allegations . . . d[id] not

plead a distinct theory of negligence; rather, they [went] to whether the officers had probable

6 cause and whether they were immune.”); see also Stewart-Veal,

. As a result,

Plaintiff’s negligence claim fails as a matter of law. Notably, Plaintiff does not even attempt to

defend his negligence claim in his opposition brief.

The Court will, accordingly, dismiss Plaintiff’s negligence claim on two, independent

grounds: First, the claim fails as a matter of law. Second, the Court can—and should—treat

Defendants’ motion to dismiss the claim as conceded. See Local Civ. R. 7(b); Texas v. United

States,

(D.C. Cir. 2015).

C. False Imprisonment

A false imprisonment claim has two elements: “(1) the detention or restraint of one

against his will, within boundaries fixed by the defendant[s], and (2) the unlawfulness of the

restraint.” Jones v. District of Columbia, No. 16-cv-2405,

, at *6 (D.D.C.

June 13, 2019) (quoting Faniel v. Chesapeake & Potomac Tel. Co.,

(D.C.

1979)). Here, Plaintiff alleges that Defendants “demanded” that he “stop” and accused him of

“carrying a weapon.” Dkt. 1-1 at 6 (Compl. ¶ 19). Defendants then allegedly “restrict[ed]

[Plaintiff] from going back to []his home,” and he did not “feel [like he could] . . . leave [the

interaction] freely.”

(Compl. ¶¶ 21–22). Plaintiff, accordingly, maintains that Defendants

“unlawfully and intentionally detained” him.

(Compl. ¶ 20).

The Court’s analysis, however, begins and ends with timeliness. D.C. Code Section 12-

301 imposes a one-year statute of limitations for claims of false arrest and false imprisonment.

See

(4). The statute of limitations accrued on the day of Plaintiff’s alleged

false imprisonment, January 20, 2021. But because the events at issue occurred during the

COVID-19 pandemic, the statute of limitations was tolled until July 31, 2022. Dkt. 7-3 at 2.

Plaintiff, however, did not file suit until January 19, 2024. See Dkt. 1-1 at 1 (Compl.).

7 Although Defendants’ motion to dismiss addresses the statute of limitations in detail,

Plaintiff, once again, ignores the issue in his opposition brief. He has, accordingly, conceded

that the claim is untimely. See Local Civ. R. 7(b). But the Court also notes that Defendants are

correct on the law. The statute of limitations is one year, and even with the COVID tolling rule,

Plaintiff’s claim was not filed until long after the statute of limitations expired. Although the

D.C. Circuit has cautioned that “courts should hesitate to dismiss a [claim] on statute of

limitations grounds based solely on the face of the complaint,” Firestone v. Firestone,

(D.C. Cir. 1996), here, there is no “contested question[] of fact” regarding timeliness,

and thus “dismissal is appropriate” on the ground that the claim is, “on its face,” “conclusively

time-barred,”

The Court will, accordingly, dismiss Plaintiff’s false imprisonment claim.

D. Fourth Amendment

That leaves Plaintiff’s Section 1983 claim against the individual Defendants. Plaintiff

alleges that they violated his rights under the Fourth Amendment when they “stopped and

searched” him “without any reasonable articulable suspicion of any wrongdoing.” Dkt. 1-1 at 6

(Compl. ¶ 23). He argues that he was “racial[lly] profiled” and that he was “[a]ccused of

carrying a weapon with no reasonable and articulable suspicion.”

(Compl. ¶ 25). He further

alleges that he did not engage in any behavior that could have given rise to a reasonable

suspicion that he was unlawfully carrying a firearm.

(Compl. ¶ 25). Construing the

complaint in the light most favorable to Plaintiff, and drawing all reasonable inferences in his

favor, Iqbal,

, the Court reads the complaint plausibly to allege that the two

officers did not observe a bulge that resembled a gun and did not observe any other suspicious

behavior, but that they nonetheless stopped and frisked Plaintiff. The truth of those allegations,

8 of course, are not before the Court at this time; the only question is whether Plaintiff has alleged

facts sufficient to state a claim.

The Fourth Amendment safeguards “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.

amend. IV. There are two different types of seizures: (1) arrests which require that an officer

have probable cause, see Payton v. New York,

(1980), and (2) Terry stops,

“temporary detentions for investigative purposes,” Goolsby v. District of Columbia,

(D.D.C. 2018), which require only that an officer have “a reasonable suspicion

supported by articulable facts that criminal activity may be afoot,” United States v. Sokolow,

(1989) (internal quotation marks and citation omitted). Plaintiff’s complaint is not a

picture of clarity, but it appears that Plaintiff intends to allege only that the officers conducted a

Terry stop and frisk without reasonable suspicion; he does not appear to allege that the stop ever

crossed the line from a stop to an arrest, which would have required probable cause.

For purposes of determining whether a Terry stop was justified, courts are required to

“look to the record as a whole to determine what facts were known to the officer and then

consider whether a reasonable officer in those circumstances would have been suspicious.”

United States v. McKie,

(D.C. Cir. 1991) (per curiam); see also Illinois v.

Wardlow,

(2000) (concluding that Terry stops require only that officers have

“a minimal level of objective justification”) (internal quotation marks and citation omitted). “The

principal components of a determination of reasonable suspicion . . . will be the events which

occurred leading up to the stop or search, and then the decision whether these historical facts,

viewed from the standpoint of an objectively reasonable police officer, amount to reasonable

suspicion.” Ornelas v. United States,

(1996).

9 At this early stage of the proceeding, the Court is persuaded that Plaintiff has alleged

enough—although just enough—to state a Section 1983 claim against the individual officers. He

has plausibly alleged that it is “highly unlikely” that the “officers would have been able to see a

bulge in the shape of a gun or weapon,” Dkt. 1-1 (Compl. ¶ 12), and that Plaintiff did not engage

in any suspicious behavior like blading or walking away at an “increase[d] . . . pace,”

(Compl.

¶ 13). He further alleges that “the officers violated MPRD General Orders and did not have []

reasonable suspicion to frisk” him.

(Compl. ¶ 14). In response, Defendants argue that the

officers are entitled to qualified immunity and that “Plaintiff identifies only statements made

without first-hand knowledge of the incidence.” Dkt. 7-2 at 9.

Given Plaintiff’s allegations, “various questions remain regarding the legal sufficiency of

the justification” for the Terry stop, which also prevents the Court from making any

determination as to the officers’ entitlement to qualified immunity. Goolsby v. District of

Columbia,

(D.D.C. 2019). The Court cannot ascertain, on the bare record

before it, whether the officers had a reasonable suspicion sufficient to conduct a Terry stop or

whether, as Plaintiff alleges, they stopped and frisked him without any colorable legal basis.

Under these circumstances, the Court cannot dismiss the complaint,

, and must wait for

some factual development before resolving the merits of the claim or the individual Defendants’

qualified immunity defense.

The Court will, accordingly, deny Defendants’ motion to dismiss Plaintiff’s Fourth

Amendment claim against the individual Defendants.

10 CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss, Dkt. 7, is hereby GRANTED

in part and DENIED in part. The motion is GRANTED with respect to the MPD, GRANTED

as to Plaintiff’s negligence and false imprisonment claims, and DENIED as to Plaintiff’s Section

1983 claim against the individual Defendants. The Court will also GRANT Plaintiff leave to file

an amended complaint on or before April 18, 2025, provided that Plaintiff can, in good faith,

allege that his asserted Fourth Amendment injuries were caused by a policy or custom of the

District of Columbia. All claims against the MPD and the first and second claims of the

complaint against all Defendants are hereby DISMISSED.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: March 28, 2025

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