505 F. Supp. 2d 122
D.D.C.
2007

MEMORANDUM OPINION

COLLYER, District Judge.

Shane Lucas complains that he was “assaulted, harassed, threatened and arrested by the bullying tactics” of Metropolitan Police Department (“MPD”) Officers Carlton B. Wicker, Timothy Ford, and Jeffery Clay. See Compl. ¶ 11. He sues these officers and also names John Does, other unnamed officers of the MPD, Mayor Adrian Fenty, former Chief of Police Charles Ramsey, Chief of Police Cathy Lanier, and the District of Columbia as Defendants. Defendants move to dismiss Officers Wicker, Clay, and Ford for lack of service and to dismiss the Mayor аnd Police Chiefs for failure to state a claim. Defendants further ask the Court to dismiss Mr. Lucas’s claims of negligence and malicious prosecution. Mr. Lucas opposes the motion.

I. LEGAL STANDARDS

A. Service of Process

Service of process upon “individuals within a judicial district of the United States” is governed by rule 4(e) of the Federal Rules of Civil Procedure. Rule (4)(e)(2) states that service upon an individual may be effected

by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at thе individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

See Fed.R.Civ.P. 4(e)(2). Federal Rule of Civil Procedure 4(e)(1) also permits service to be effected according to the “law of the state in which the district court is located, or in which service is effected.” Fed. R.Civ.P. 4(e)(1). The Civil Rules of the Supеrior Court of the District of Columbia establish, in pertinent part, service requirements parallel to those contained in Rule 4(e)(2) of the Federal Rules of Civil Procedure. See D.C.Super. Ct. Civ. R. 4(e)(2). Rule 4(c) of the D.C. Superior Court Civil Rules also permits service to be effected upon an individual by certified or registered mail. See D.C.Super. Ct. Civ. R. 4(c)(3). Rule 4(m) of the Federal Rules of Civil Procedure places a time limit on service of process. It states that:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plаintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

See Fed.R.Civ.P. 4(m).

B. Failure to State a Claim A motion to dismiss pursuant to Federal Rule of ‍​​‌​‌​‌​​‌‌‌‌​​‌‌‌‌‌‌​​​​‌​​​‌​​‌‌​​​‌‌​‌​​‌‌‌‌‌‍Civil Procedure 12(b)(6) challenges the legal sufficiency of a сomplaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). “While a complaint attacked by a rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ for ‘entitlement to relief requires more than labels and conclusions, and a formulaiс recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise the right of relief above a speculative level.” Bell Atl. Corp. v. Twombly, — U.S.-, ---, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (internal citations omitted). The Court must treat the complaint’s factual allеgations — including mixed questions of law and fact — as true, drawing all reasonable inferences in the plaintiffs favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C.Cir.2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003). But the Court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning, 292 F.3d at 242. In deciding a 12(b)(6) motion, the Court “may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002) (citation omitted).

II. ANALYSIS

A. Service on the Police Officers

Mr. Lucas appended affidavits to his Complaint signed by Henri J. Dingle and swearing that Mr. Dingle personally served Officer Wicker, Officer Ford and Officer Clay at the Third District Police Station, 1624 V Street N.W., Washington, D.C., on May 23, 2007, at 9:30 a.m. See Compl., Affidavits attached. Each officеr has submitted a sworn declaration denying that he was at the Third District Police Station at 9:30 a.m. on that date and asserting that he has not been served in this case. See Defs.’ Partial Mot. to Dismiss (“Defs.’ Mot.”), Exs. 4, 5, & 6.

An evidentiary hearing is necessary to resolve this issue. One will be scheduled by the Deputy Clerk of this Court.

B. Mayor Fenty and the Police Chiefs

Nothing in the Complaint indiсates that Mayor Fenty or the Police Chiefs played any personal role in the encounter between Mr. Lucas and the MPD. They are apparently sued in their official capacities. The claims lie against the District of Columbia and not the individuals. It is wеll settled that “[a] suit against a municipal official in his official capacity is treated as a suit against the municipality itself.” Robinson v. Dist. of Columbia, 2005 WL 491467 at *3, 2005 U.S. Dist. LEXIS 3556 at *10 (D.D.C. Mar. 2, 2005) (citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) & Atchinson v. Dist. of Columbia, 73 F.3d 418, 424 (D.C.Cir.1996)).

To establish a claim under 42 U.S.C. § 1983, a plaintiff must allege that the municipality adopted an unconstitutional policy, such as a statute оr regulation, that violates the constitutional rights of the individual, Monell v. Dep’t of Soc. Sews., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), or that the municipality has a practice that is “so permanent and well ‍​​‌​‌​‌​​‌‌‌‌​​‌‌‌‌‌‌​​​​‌​​​‌​​‌‌​​​‌‌​‌​​‌‌‌‌‌‍settled as to constitute a ‘custom or usage’ with the force of law.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Alternatively, a plaintiff may allege an unconstitutiоnal decision or action taken by an official policymaker of the municipality. Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).

Here, Mr. Lucas has simply alleged an unconstitutional policy and named the Mayor and Police Chiefs as Defendants without establishing any connection between thеm. He has completely failed to articulate what “policy making decision” on which he might be relying, either in his complaint or his brief. The Mayor and Police Chiefs will be dismissed.

C. Negligence

“[EJxcessive force is a term of art denoting an act of assault or battery by law enforcement officials committed in the course of their duties.” Dist. of Columbia v. Tinker, 691 A.2d 57, 64 (D.C.1997). “[T]here is no such thing as a negligent assault.” Sabir v. Dist. of Columbia, 755 A.2d 449, 452 (D.C.2000). When a plaintiff alleges excessive force by a police officer and adds a negligence claim, the “negligence must be distinctly pled and based upon at least one factual scenario that presents an aspect of negligence apart from the use of excessive force itself and violative of a distinct standard of care.” Dist. of Columbia v. Chinn, 839 A.2d 701, 711 (D.C.2003). Because law enforcement officers have a privilege to use reasonably necessary force, a plaintiff cannot allege negligence based only on the duty not to use excessive force because “that is the precise boundary line of the privilege itself, and it matters not whether it is exceeded because of the deliberate intention of the officer or through a mistake as to the limit of objectively reasonable allowable force.” Id. It is for this reason that any negligence claim must be based on facts thаt are different from the alleged excessive force. Any negligence claim must also arise from the breach of a standard of care that is different and distinct from the alleged excessive force.

The Complaint fails in this regard. While it alleges negligence, the claim is based entirely on the alleged excessive force. Mr. Lucas pleads:

20. Officers Wicker, Clay and Ford and the Unnamed members of the police department ‍​​‌​‌​‌​​‌‌‌‌​​‌‌‌‌‌‌​​​​‌​​​‌​​‌‌​​​‌‌​‌​​‌‌‌‌‌‍had a duty to use reasonable force to effect a detention and/or arrest.
21. The Defendants breached this duty when they shoved, punched and attacked the person of the Plaintiff.

Compl. ¶¶ 20-21 (Count II). Because Mr. Lucas rests his claims concerning an alleged breach of a duty of care on excessive force, he fails to state a claim upon which relief can be granted for a cause of action sounding in negligence. Count II will be dismissed.

D. Malicious Prosecution

The officers allegedly filed formal criminal charges against Mr. Lucas, which were “dismissed on December 26, 2006 for want of proseсution.” Id. ¶ 14. In the District of Columbia, a plaintiff alleging malicious prosecution must plead and prove: “1) that the underlying suit terminated in plaintiffs 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.” Joeckel v. Disabled Am. Veterans, 793 A.2d 1279, 1282 (D.C.2002). “The special injury required has been defined as arrest, seizure of property, or ‘injury which would not necessarily result from suits to recover for like causes of action.’ ” Id. (quoting Ma-zanderan v. McGranery, 490 A.2d 180, 182 (D.C.1984)).

The District of Columbia faults the Complaint for alleging malicious prosecution when the underlying criminal prosecution did not result in a favorable termination in Mr. Lucas’s favor. See Defs.’ Mem. at 9-10 It cites Brown v. Carr, 503 A.2d 1241 (D.C.1986), for the proposition that a termination is favorable only where “it tends to indicate the innocence of thе accused.” Id. at 1245. Thus, “[w]hile this approach does not require a termination following trial on the merits, the termination must reflect on the merits of the underlying action.” Id. (internal quotation and citation omitted).

[N]o favorable termination is found where the earlier action is dismissed on the ground of the statutе of limitations, or laches, because these dispositions do not reflect on the merits of the underlying claim. By contrast, dismissal for failure to prosecute has been held to 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.

Id. (emphasis added). The District of Columbia argues that the “dismissal of Plaintiffs criminal case ‘was manifestly not of such a nature as to indicate the innocence of the accused and did not reflect on the merits of the underlying action.’ ” Defs:’ Mem. at 10 (citing Brown v. Carr, 503 A.2d at 1246 (internal citations omitted)).

Defendants provide no “facts of the case” arising from the criminal charges filed against Mr. Lucas from which the Court could find that the disposition did not reflect on the innocence of the Defendant. The Court will deny this aspect of Defendants’ motion without prejudice.

III. CONCLUSION

The Plaintiff bears the burden of proving that all Defendants were served. The Court is faced with conflicting sworn statements from the process server and the MPD officers as to whethеr they were served. The Clerk will set an evidentiary hearing so that the process server and the officers can appear and testify. The remainder of the Defendants’ Partial Motion to Dismiss will be granted in part and denied in part. For the reasons stated аbove, the allegations against Mayor Fenty and the Police Chiefs, brought in their official capacities, will be dismissed. In addition, the Complaint allegations are insufficient to make out a claim for negligence in connection with the alleged assault and battery by the MPD officers and the claim will be dismissed. The motion to dismiss the malicious prosecution claim will be denied without prejudice: without knowing more of the facts of the criminal case, the Court is unable to find that dismissal for want of prosecution was not a disрosition that is favorable to Mr. Lucas. A memorializing order accompanies this Memorandum Opinion.

SUPPLEMENTAL MEMORANDUM OPINION AND ORDER

Shane Lucas complains that he was “assaulted, harassed, threatened and arrested by the bullying tactics” of Metropolitan Police Department (“MPD”) Officers Carlton B. Wicker, Timothy Ford, and Jeffrey Clay. See Compl. ¶ 11. Defendants moved to dismiss Officers Wicker, Clay, and Ford for lack of service and to dismiss the May- or and Police Chiefs for failure to state a claim. See Defs.’ Partial Mot. to Dismiss [Dkt. # 3]. The Court granted the motion in part and denied the motion in part. See Aug. 29, 2007 Order [Dkt. # 11]. The Court granted the motion as to the Mayor and Police Chiefs Ramsey and Lanier for failure to state a claim, and also dismissed Count 2 (Negligence) of the Complaint. See [Dkt. ## 10 & 11]. The Court denied without prejudice the Defendants’ motion as tо Count IV (Malicious Prosecution) and scheduled the issue of service of process on the officers for an evidentiary hearing. Id.

An evidentiary hearing was held August 21, 2007, to resolve whether the officers were properly served in this matter. The Court received tеstimony from Officers Clay, Ford, Wicker, and Sheryl McClean, the Time and Attendance Clerk for the Third District Police Station. These witnesses provided credible testimony that the Officers were not properly served. Plaintiffs process server did not attend the evidentiary hеaring. The Court continued the evidentiary hearing to October 1, 2007, to allow counsel for Plaintiff to subpoena the process server, Henri Dingle. Subsequently, counsel for ‍​​‌​‌​‌​​‌‌‌‌​​‌‌‌‌‌‌​​​​‌​​​‌​​‌‌​​​‌‌​‌​​‌‌‌‌‌‍Plaintiff subpoenaed Mr. Dingle to compel his testimony at the October 1 hearing. Mr. Dingle oncе again failed to attend the eviden-tiary hearing and counsel for Defendant moved for dismissal of the officers in their individual capacities. Initially, the Court was willing to grant the Defendants’ motion with prejudice, but after review of the Complaint, the Court will grant the motiоn without prejudice. Plaintiff has pled a section 1983 claim against the officers and there is no recovery against a local government or municipality under section 1983 on a respondeat superior theory. See generally Miller v. Barry, 545 F.Supp. 105 (D.D.C.1982) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).

For the reasons stated in this Supplemental Memorandum Opinion it is hereby

ORDERED that Defendants’ Partial Motion to Dismiss [Dkt. # 3] for failure to serve process is GRANTED; and it is

FURTHER ORDERED that the claims against Officers Wicker, Clay, and Ford are DISMISSED WITHOUT PREJUDICE.