Cherry v. Dist. of Columbia

Citation330 F.Supp.3d 216
Decision Date07 September 2018
Docket NumberCivil Action No. 17-2263 (ABJ)
Parties Gerri CHERRY, Personal Representative of the Estate of Alonzo Smith, Deceased, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
CourtU.S. District Court — District of Columbia

John J. Yannone, Price Benowitz LLP, Washington, DC, for Plaintiff.

Robert A. DeBerardinis, Jr., Office of the Attorney General for the District of Columbia, Michael Lawrence Pivor, Andrew J. Marcus, Robert S. Morter, Bonner Kiernan Trebach & Crociata, LLP, Washington, DC, Margaret Fonshell Ward, Ward & Herzog, LLC, Baltimore, MD, for Defendants.


AMY BERMAN JACKSON, United States District Judge

This case arises from the death of Alonzo Smith, who died of cardiac arrest

when he was arrested by two special police officers ("SPOs"). Plaintiff Gerri Cherry, the personal representative of Smith's estate, filed suit against the SPOs, the security company that employs the officers, the property manager and the owner of the apartment complex that hired the firm, and the District of Columbia ("the District").See Compl. [Dkt. # 1]. The complaint alleges that the SPOs used excessive force when they forcefully restrained Smith face down on the ground with two sets of handcuffs, and that this prevented him from breathing and caused his death. Id. ¶¶ 55–60. Plaintiff claims that the SPOs violated Smith's Fourth Amendment rights, and that the District is liable under 42 U.S.C. § 1983 for failing to adequately train them. Id. The complaint also includes a wrongful death claim and a survival action against all defendants based on negligence. Id. ¶¶ 61–77.

The District has moved to dismiss plaintiff's claims against it for failure to state a claim, and this opinion deals with those claims only. See Def. District of Columbia's Mot. to Dismiss the Compl. [Dkt. # 22] ("Def.'s Mot."). The Court will grant the District's motion to dismiss the section 1983 claims because the complaint fails to allege sufficient facts to establish municipal liability in accordance with the Supreme Court's decision in Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Further, the Court will dismiss the negligence claims under the Wrongful Death Act and the Survival Act because the District is entitled to discretionary function immunity.

I. The Role of Special Police Officers

The Mayor of the District of Columbia, in his or her discretion, may appoint an SPO in connection with the property of, or under the charge of, a corporation or individual. D.C. Code § 5-129.02(a). A corporation or individual may also apply for such an appointment. Id. SPOs are "paid wholly by the corporation or person on whose account their appointments are made," and they are required "to complete minimum levels of pre-assignment, on-the-job, and in-service training." Id. 5-129.02(a)(b).

According to the complaint, SPOs Ramon Vega and Alonzo Wilson were commissioned by the Mayor pursuant to D.C. Code § 5-129.02 to "ensure the safety and security of the premises located at Marbury Plaza Apartments." Compl. ¶¶ 4–6. Plaintiff alleges that SPOs "have the same powers as law enforcement officers to arrest without warrants for offenses committed within premises to which their jurisdiction extends." Id. ¶ 4.

The complaint alleges that prior to November 1, 2015, all SPOs were required to undergo forty hours of pre-assignment training in a course "designed by and promulgated by" the District.1 Compl. ¶ 24. Sixteen hours of pre-assignment training were dedicated to training on arrest powers, search and seizure, the D.C. official code, and the use of force, and twenty-four hours of training focused on terrorism awareness, evacuation protocols, and first aid. Id. ¶ 25. All training materials regarding the use of force that were supplied to the SPOs were prepared and provided by the District. Id. ¶ 28. Additionally, SPOs received sixteen hours of on-the-job training during their first ninety working days. Id. ¶ 26.

II. The Events of November 1, 2015

On November 1, 2015, at approximately 3:10 A.M., Alonzo Smith came out of the Marbury Plaza Apartments building located at 2300 Good Hope Road, S.E., Washington, D.C. 20020. Compl. ¶¶ 5, 32. Smith, who was not wearing a shirt or shoes, was visibly in distress and yelling for help. Id. ¶ 32.

At approximately 3:30 A.M., SPO Vega reportedly saw Smith hiding in some bushes in the grassy area of the apartment complex and radioed SPO Wilson for assistance. Compl. ¶ 33. The SPOs followed Smith as he "frantically" ran around the apartment building and a neighboring parking lot. Id. ¶ 34. SPO Wilson then followed Smith as he entered a building located at 2312 Good Hope Road and attempted to climb the fire escape. Id. ¶ 35. When the SPO caught up to Smith, the SPO allegedly grabbed him, "restrained him in a choke hold, slammed him onto the ground ..., and forcibly restrained" him. Id. ¶ 37. When SPO Vega arrived, SPO Wilson was straddling Smith, who was on his stomach, face down. Id. ¶ 38. According to the complaint, SPO Wilson put his knee on Smith's back and attempted to handcuff him, while also asking SPO Vega for his set of handcuffs. Id. SPO Vega then held Smith's head down to the ground while he linked his handcuffs to SPO Wilson's set, thereby restraining Smith with two sets of handcuffs. Id. ¶ 39.

Metropolitan Police Department ("MPD") officers Kevin Fitch and Esteban Alvarez also responded to the incident, and upon their arrival, they found Smith motionless, lying face down on the ground with his arms handcuffed behind him. Compl. ¶ 42. The MPD officers asked SPOs Wilson and Vega whether Smith was breathing. Id. ¶ 43. The SPOs checked to see if he was, and when they realized that he was not, they began to administer CPR while Smith was still handcuffed. Id.

Smith was transported to United Medical Center and was pronounced dead at 5:08 A.M. Compl. ¶ 44. On the following day, November 2, 2015,2 Sasha Osbourne, M.D., performed an autopsy and ruled Smith's death a homicide. Id. ¶¶ 45, 47. She concluded that Smith had died of "sudden cardiac arrest

while restrained," which had been complicated by "acute cocaine toxicity." Id. Dr. Osbourne also determined that the "twisting of Smith's torso was a contributing factor in his death." Id. ¶ 47.

On October 31, 2017, plaintiff filed her complaint. Counts I and IV both invoke 42 U.S.C. § 1983. Count I alleges that the District violated Smith's Fourth Amendment rights by commissioning "SPOs and provid[ing] them with police power[,] and knowingly and with reckless disregard ... allow[ing] a poorly trained police officer[ ] to run rampant over the constitutional rights of the citizens of the District of Columbia, including Smith." Compl. ¶ 60. Count IV alleges that the District, "intentionally and with deliberate indifference," "failed to train its SPOs and officers in the proper application of force." Id. ¶¶ 80, 83. In her opposition to defendant's motion to dismiss, plaintiff explained that the "claim under 42 U.S.C. § 1983 against the District is best understood as alleging that the District is liable for the unconstitutional excessive force used against Alonzo Smith ... as a result of the District's failure to adequately train the offending [SPOs] on the use of force." Pl.'s Mem. of P. & A. in Opp. to Def.'s Mot. [Dkt. # 24] ("Pl.'s Opp.") at 2. Therefore, the Court will treat these counts as a single claim for damages under section 1983.

Counts II and III allege causes of action for negligence under the District of Columbia's Wrongful Death Act and Survival Act. See Compl. ¶¶ 61–77. Plaintiff claims that the "District owed a duty of care to ensure that the SPOs commissioned had the necessary and proper training to carry out the standard of care applicable to law enforcement," and that defendant "breached this duty of care by failing to promulgate appropriate rules, regulations, protocols, procedures, a proper training program and materials[,] and to properly train SPOs." Id. ¶¶ 62–63, 70, 73.

On, February 26, 2018, the District moved to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Def.'s Mot. at 1; Mem. of P. & A. in Supp. of Def.'s Mot. [Dkt. # 22] ("Def.'s Mem."). The District argues that plaintiff has failed to allege sufficient facts to state a claim for failure to train under 42 U.S.C. § 1983. See Def.'s Mem. at 8. It also maintains that it is entitled to discretionary function immunity with regard to plaintiff's negligence claim. Id. at 10.3 Plaintiff opposed the motion on March 12, 2018, Pl.'s Opp., and the District replied on March 19, 2018. Reply to Pl.'s Opp. [Dkt. # 26] ("Def.'s Reply").


"To survive a [ Rule 12(b)(6) ] 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 , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Iqbal , the Supreme Court reiterated the two principles underlying its decision in Twombly : "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. And "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679, 129 S.Ct. 1937, citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955.

A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A pleading must offer more than "labels and conclusions" or a "formulaic recitation...

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    • 11 Abril 2020 all—of similar violations which might alert the District to provide better training to its officers. See Cherry v. District of Columbia, 330 F. Supp. 3d 216, 226 (D.D.C. 2018); Bell v. District of Columbia, 82 F. Supp. 3d 151, 158 (D.D.C. 2015). Nor have the plaintiffs alleged facts that......
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    ...dichotomy when challenging the training and supervision of officers is nicely summarized in the recent case, Cherry v. District of Columbia, 330 F. Supp. 3d 216 (D.D.C. 2018). According to Cherry, "the issue to be resolved is whether th[e] complaint alleges flaws in the District's day-to-da......
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    ...of misconduct, let alone plead facts demonstrating such a pattern. See Harris, 2019 WL 3605877, at *4 (citing Cherry v. District of Columbia, 330 F. Supp. 3d 216, 226 (D.D.C. 2018)). And, relatedly, she does not adequately define the "particular omission that caused a deprivation" or allege......
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