G'sell v. Carven .

• Decision Date: 21 July 2010
• Docket Number: Civil Action No. 09-2309 (JDB).
• Citation: 724 F.Supp.2d 101
• Parties: Grant G'SELL, et al., Plaintiffs, v. Michael CARVEN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

724 F.Supp.2d 101

Grant G'SELL, et al., Plaintiffs,

v.Michael CARVEN, et al., Defendants.

Civil Action No. 09-2309 (JDB).

United States District Court,District of Columbia.

July 21, 2010.

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Steven A. Cash, Harris, Cutler, Cash & Houghteling, LLP, Washington, DC, for Plaintiffs.

Robert Leon Wilkins, Damon W.D. Wright, Venable, LLP, Henry Adam Platt, Shannon Hadley Rutngamlug, Saul Ewing, LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Grant G'Sell, Jordyn G'Sell, and Kristen Hulse allege that while staying at a Washington, D.C. apartment building in June 2009, three men-Michael Carven, Bryan Meuse, and Richard McNeil (“individual defendants”)-violently attacked them without provocation. They have brought common law and constitutional claims against these individuals, two of whom they allege to be law enforcement agents. They have also sued the apartment building's owner, the building's management company, and the management company's parent corporation (“building defendants”) under a premises liability negligence theory. ¹ Currently before the Court is Bryan Meuse's motion to dismiss in part, as well as the building defendants' motion to dismiss. For the reasons detailed below, the Court will grant in part and deny in part Meuse's motion, and will grant the building defendants' motion.

BACKGROUND ²

On June 25, 2009, plaintiffs were staying with Jane Maynard, the G'Sells' mother, at The Jefferson at Capitol Yards, an apartment building in Washington, D.C. Compl. ¶ 25. That evening, plaintiffs saw the individual defendants in the public common area of the apartment building. Compl.

¶ 26. According to them, “Officer Carven was naked, lying on the floor in the entrance of the elevator; Deputy Meuse was straddling Officer Carven engaging in simulated anal intercourse.” Compl. ¶ 27. ³ Plaintiffs contend that the building's video surveillance system captured this event, but that the building's security officer took no action. Compl. ¶¶ 28-29.

Some hours later, plaintiffs encountered the individual defendants in a common hallway in the apartment building. Compl. ¶ 30. Plaintiffs assert that Carven approached Jordyn G'Sell in a sexually aggressive manner and tried to embrace her; she attempted to retreat. Compl. ¶¶ 31-32. Carven shouted and swore at Jordyn, calling her a “lesbian” and a “dyke,” and “raised his fists as if to ... punch her.” Compl. ¶¶ 33-34. Carven instead hit Hulse in the face, drawing blood. Compl. ¶ 35.

Plaintiffs fled to the elevator, but after they got in Meuse blocked the doorway and prevented the elevator doors from closing. Compl. ¶¶ 36-37. Meuse then entered the elevator, took Grant G'Sell by the neck, and held him off the floor against the elevator wall. Compl. ¶ 38. Jordyn begged Meuse to release her brother, but Meuse refused, and Carven again tried to hit Jordyn. Compl. ¶ ¶ 39-40. Plaintiffs threatened to call the police, but Carven and Meuse laughed and told them it would do no good because “they were the police.” Compl. ¶ 41.

Meuse released Grant, but he again blocked the elevator doors. Compl. ¶ 42. He took Grant by the neck once more and again held him against the elevator wall. Compl. ¶ 43. After about 10 minutes, Carven and Meuse allowed the elevator doors to close. Compl. ¶ 44.

Plaintiffs sued Carven, Meuse, and McNeil, alleging assault, sexual assault, battery, intentional infliction of emotional distress (“IIED”), unlawful imprisonment, and liability under 42 U.S.C. § 1983. They also sued security officer Doe; 70 Eye Street L.L.C., the building's owner; and JPI Management Services, L.P., the building's management company. ⁴ Against these latter entities they have alleged a negligence claim for premises liability. The building defendants have moved to dismiss the premises liability claim, and Meuse has moved to dismiss the IIED, unlawful imprisonment, and § 1983 claims against him.

STANDARD OF REVIEW

All that the Federal Rules of Civil Procedure require of a complaint is that it contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955. “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 in its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); accord Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir.2009). A claim to relief is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. This amounts to a “two-pronged approach,” under which a court first identifies the factual allegations entitled to an assumption of truth and then determines “whether they plausibly give rise to an entitlement to relief.” Id. at 1950-51.

The notice pleading rules are not meant to impose a great burden on a plaintiff. See Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. See Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). However, “the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Nor does the court accept “a legal conclusion couched as a factual allegation,” or “naked assertions devoid of further factual enhancement.” Iqbal, 129 S.Ct. at 1949-50 (internal quotation marks omitted); see also Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 n. 4 (D.C.Cir.2008) (the D.C. Circuit has “never accepted legal conclusions cast in the form of factual allegations” (internal quotation marks omitted)).

DISCUSSION

I. Building Defendants' Motion to Dismiss

“As a general rule, a private person does not have a duty to protect another from a criminal attack by a third person.” Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d 477, 481 (D.C.Cir.1970). Nonetheless, “[t]he law imposes a special duty upon the landlord to protect his tenant from foreseeable criminal acts of third parties.” Morton v. Kirkland, 558 A.2d 693, 694 (D.C.1989); see also Graham v. M & J Corp., 424 A.2d 103, 104 (D.C.1980) (landlord's duty to keep common areas safe “has been extended to encompass situations where third party criminal acts injure tenants on the premises, when the criminal activity should have been foreseen by the landlord” (internal citations omitted)). Here, plaintiffs allege that the building defendants breached their “duty to take such precaution as were [sic] reasonably necessary to protect [their] tenants and their guests[ ] from criminal attacks in the building.” Compl. ¶ 90.

“ ‘[F]oreseeability is the key element in establishing the landlord's duty.’ ” Doe v. Dominion Bank, N.A., 963 F.2d 1552, 1560 (D.C.Cir.1992) (quoting Graham, 424 A.2d at 105). In actions brought against a landlord for criminal acts committed by a third party, “liability depends upon a more heightened showing of foreseeability than would be required if the act were merely negligent.” Bd. of Trs. of Univ. of Dist. of Columbia v. DiSalvo, 974 A.2d 868, 870 (D.C.2009) (quoting Potts v. Dist. of Columbia, 697 A.2d 1249, 1252 (D.C.1997)). Such heightened foreseeability “does not require previous occurrences of the particular type of harm, but can be met instead by a combination of factors”-the totality of the circumstances, in other words-“which give defendants an increased awareness of the danger of a particular criminal act.” Dist. of Columbia v. Doe, 524 A.2d 30, 33 (D.C.1987). “It is not sufficient,” however, “to establish a general possibility that the crime would occur, because ... the mere possibility of crime is easily envisioned and heightened foreseeability requires more precision.” DiSalvo, 974 A.2d at 872-73.

Plaintiffs contend that because the building's security officer saw-or should have seen-the individual defendants simulating anal intercourse in a common area earlier that evening, their subsequent violent attack was foreseeable. See Pls.' Opp'n at 11. According to plaintiffs, the earlier incident put the building defendants “on notice that the two men were capable of outrageous, repugnant, and criminal conduct.” Id. Such generalized notice, however, is insufficient: to show foreseeability, the evidence must demonstrate “that the...