MEMORANDUM OPINION

RICARDO URBINA, District Judge

Granting in Part and Denying in Part The Defendants' Renewed Motion for Summary Judgment and Motion to Strike Testimony of Expert Witness

This matter is before the court on Defendants' Renewed Motion for Summary Judgment and to Strike the Testimony of Plaintiff's Expert Witness ("Deft's Mtn."). Upon consideration of the parties' submissions and the entire record, the court will grant in part and deny in part the renewed motion for summary judgment.

I. BACKGROUND

Separate from the shooting incident, plaintiff alleges that while confined in solitary confinement for 10 months at the District's Correctional Treatment Facility, he was assaulted, denied proper medical care and subjected to unconstitutional prison conditions, e.g., backed-up toilet, roach infestation, and severe limitations on bathing. Plaintiff alleges that defendants destroyed evidence pertinent to his civil suit, knowing that he intended to file a lawsuit.

Plaintiff brought this action under the civil rights laws, 42 U.S.C. §§ 1983, 1981, 1985, and the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. He also asserts claims under District of Columbia common law for negligent infliction of emotional distress, assault and battery, and reckless or negligent spoliation of evidence. Plaintiff names as defendants, inter alia, the District of Columbia, Metropolitan Police Department Chief Charles Ramsey (and his predecessor Fred Thomas), Department of Corrections Director Odie Washington, and several MPD officers. He is suing the individually named defendants in their individual and official capacities. Plaintiff's claims against the District of Columbia and the individuals sued in their official capacity are based on alleged unconstitutional customs and practices and failure to train. Plaintiff seeks $100 million in damages and demands a jury trial.

Defendants move for summary judgment on the grounds that plaintiff has failed to state a claim of constitutional violations, defendants are entitled to qualified immunity, and plaintiff's common law claims are barred because he failed to comply with the notice provisions of D.C. Code § 12-309. Alternatively, defendants assert that plaintiff's assault and battery claim is barred by the statute of limitations and that he has failed to state a claim upon which relief may be granted on the remaining common law claims.

II. DISCUSSION A. Legal Standard

Summary judgment is appropriate upon a finding that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The substantive law upon which a claim rests determines which facts are "material." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If a fact bears upon an essential element of the legal claim, then it is material; otherwise, it is not. See id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Only disputes over facts that can establish an element of the claim, and thus those that might affect its ultimate resolution, can create a "genuine issue" sufficient to preclude summary judgment. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 322.

To prevail on a motion for summary judgment, the moving party must establish that there are no genuine issues of material fact and that the non-moving party has failed to offer sufficient evidence to support a valid legal claim. See Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 325. A moving party may succeed on summary judgment by pointing to the absence of evidence proffered by the non-moving party. See Celotex, 477 U.S. at 322. In ruling on the motion, the court must accept the evidence of the non-moving party as true and must draw all justifiable inferences in favor of the non-moving party. See Anderson, 477 U.S. at 255. It is not sufficient, however, for the non-moving party to establish "the mere existence of a scintilla of evidence in support of the [non-moving party's] position . . .; there must be evidence on which the jury could reasonably find for the [non-moving party]." Id. at 252. If the evidence in favor of the non-moving party "is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted).

B. Federal Claims

As an initial matter, plaintiff appears to have abandoned his ADA and prison conditions claims. See Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Pltf's Opp.") at 5 (Facts in Issue to be Tried by A Jury). Although plaintiff lists as a disputed fact "[w]hether Plaintiff was assaulted and battered while in jail," Pltf's Opp. at 5, and mentions that "Defendant disputes that Plaintiff received substandard care while in prison," id. at 9, he has neither asserted an opposing argument to defendants' basis for dismissal, nor has he proffered any evidence to overcome summary judgment. The court therefore will grant defendants' motion for summary judgment on the ADA and prison condition claims.

1. Excessive Use of Force

Through deposition testimony and the complaint allegations, it is undisputed that plaintiff had robbed a District of Columbia liquor store and was in the process of fleeing from the scene when he was shot. Plaintiff was armed with a 9 millimeter Baretta handgun, which he brandished in front of the store clerks during the robbery and continued to possess while fleeing. See Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment and Motion to Strike Expert Witness (Deft's Mem.") at 2-4 (citing record). According to plaintiff's version of subsequent events, "police officers drove alongside him and without provocation or warning began shooting at [him]." Pltf's Opp at 8. Plaintiff identifies Officers Baker, Wear, and Powers as the shooters. He accuses Officer Baker of shooting him in the head as he laid "motionless on the ground," after falling "from the officers' fire." Id. The gunshot to plaintiff's head allegedly resulted in his permanent loss of sight, smell and taste. Id.

Through his deposition and the depositions of eyewitnesses, plaintiff disputes whether, among other facts, he fired his gun at the officers, wielded his gun at Officer Baker while laying on the ground and was warned. For purposes of the pending motion, the court must accept plaintiff's version of the facts as true. From plaintiff's version of events, a reasonable juror could find that plaintiff posed no threat to the officers or anyone else at the time he was shot at and eventually hit, thereby establishing the use of excessive force. The parties' credibility is a determination reserved not for this court but for the fact finder.

Defendants Baker and Wear assert that they are entitled to qualified immunity. Qualified immunity protects a government official from a damages lawsuit arising from the performance of his discretionary duties unless the official "`knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury . . .'" Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982) (quoting Wood v. Strickland, 420 U.S. 308, 322(1975)); accord Farmer v. Moritsugu, 163 F.3d 610, 613 (D.C. Cir. 1998). An official enjoys protection from liability "where [his] conduct is objectively reasonable in light of existing law." Farmer, 163 F.3d at 613. On the other hand, an official is not shielded from liability where he "could be expected to know that certain conduct would violate statutory or constitutional rights." Id. Because there is a genuine factual dispute about the reasonableness of Baker's and Wear's conduct, the court concludes that qualified immunity cannot shield them from liability. See Parker v. Grand Hyatt Hotel, 124 F. Supp.2d 79, 91 (D.D.C. 2000) (citing Jackson v. Hoylman, 933 F.2d 401, 402-03 (6^th Cir. 1991)) ("the test for excessive force and the test for qualified immunity turn on the same objective-reasonableness standard"). The court denies summary judgment with respect to this claim against defendants Baker, Wear, and Powers.

2. Civil Conspiracy

Defendants assert that this claim fails as a matter of law because a municipality cannot conspire with itself. See Mtn. at 3; Mem. at 15. This is true to the extent that plaintiff is claiming a conspiracy between the District of Columbia and its officers. See, e.g, Michelin, at 4 ("there can be no conspiracy between the District of Columbia Board of Education and its officials to violate plaintiff's rights, since these defendants comprise a single entity, not capable of entering into a conspiracy") (citing Gladden v. Barry, 558 F. Supp. 676, 679 (D.D.C. 1983)). Plaintiff alleges, however, that at least ten police officers conspired to deprive him of "his ability to defend himself in the criminal trial and to deprive Plaintiff of the ability to prove that the Defendants are liable." Pltf's Opp. at 19. "As evidenced by court decisions from both this jurisdiction and others, it is questionable whether plaintiffs' allegations of a conspiracy between individual municipal employees and the municipality itself could ever pass muster as a matter of law." Estate of Phillips v. District of Columbia 257 F. Supp.2d 69, 83 (D.D.C. 2003). Assuming, without deciding, that plaintiff may bring such a claim, the court determines that the claim nonetheless fails. Plaintiff cannot recover damages for his claim of conspiracy arising from his underlying criminal conviction without first invalidating the conviction by "revers[al] on direct appeal, expunge[ment] by executive order, declar[ation of invalidity] by a state tribunal authorized to make such determination, or . . . a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). As for his claim that the officers conspired to interfere with his right to bring a civil action against them, plaintiff has presented no evidence from which a reasonable juror could reach such a finding. The court will grant summary judgment to defendants on plaintiff's conspiracy claim.

3. Municipal Liability

In addition to the individual defendants, plaintiff has sued the District of Columbia. A municipality may be liable under § 1983 if its official acts or omissions are "so permanent and well settled as to constitute custom or usage with the force of law." Cox v. District of Columbia, 821 F. Supp. 1, 11 (D.D.C. 1993), aff'd 40 F.3d 475 (D.C. Cir. 1994) (table) (internal citations and quotation marks omitted); see also Carter v. District of Columbia, 795 F.2d 116, 125 (D.C. Cir. 1986) (approving district court's statement of municipal liability law requiring plaintiff to show a "persistent, pervasive practice of the city officials . . . which, although not officially adopted, was so common and settled as to be considered [a custom or policy]") (brackets in original); Thomas v. District of Columbia, 887 F. Supp. 1, 5 (D.D.C. 1995) (citing Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658 (1978)) ("a widespread practice or custom, even an informal one, can meet Monell's standards for the imposition of municipal liability").

Plaintiff theorizes that the District of Columbia failed to properly train and supervise its officers on the use of firearms. Defendants point out, however, that plaintiff has not stated facts nor proffered any competent evidence to support his theory relative to the defendant officers. Plaintiff asserts that the District of Columbia was "on notice of the need to provide better training and supervision of its officers particularly in their use of firearms." Pltf's Opp. at 21 (citing Ex. 16, Memorandum of Agreement (June 13, 2001)). He also refers to a series of newspaper articles in November 1998 "which bespeaks of a problem which the District knew or should have known of long ago, particularly in 1994, the year of Fletcher's shooting." Id. These observations may have been sufficient to survive a motion to dismiss, but they provide no respite for plaintiff who must at this stage proffer admissible evidence. This court previously rejected a plaintiff's proffer of the same Memorandum of Agreement ("MOA") between the Department of Justice, the District of Columbia, and the MPD "as proof of a pattern or practice by the District of failing to investigate and discipline officers for their excessive use of force." Byrd v. District of Columbia, 297 F. Supp.2d 136, 139-40 (D.D.C. 2003). There, the court determined that "plaintiff's lame attempt to transform the mere existence of a MOA into a policy or custom of deliberate indifference" was insufficient because the MOA failed to provide evidence of specific instances of police officers' constitutional violations and the District's failure to address them. Id. at 140. Plaintiff fares no better in this case. He has failed to provide any competent evidence from which a reasonable juror could find that the District of Columbia was the "`moving force of the constitutional violation,'" at issue. Carter, 795 F.2d at 122 (quoting Monell, supra, at 694). The court therefore will grant summary judgment to the District of Columbia on this claim.

C. Common Law Claims

Defendants assert that the common law claims should be dismissed because plaintiff failed to provide proper notice of a claim pursuant to D.C. Code § 12-309. Under that provision:

An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.

D.C. Code § 12-309. Plaintiff responds by providing a letter from plaintiff's former attorney, Kim E. Hallmark, dated November 2, 1994, regarding "Earlier 12-309 Notice Dated September 4, 1994, and October 15, 1994." Pltf's Ex. 4. Defendants counter that the letter is insufficient compliance with the notice requirement because it does not provide the year of the incident. The letter, submitted as a supplement to earlier notices regarding "[t]he shooting of Mr. Fletcher . . . on the evening of May 3^rd, shortly before 8 p.m," incorporates by reference the year 1994. The court therefore determines that plaintiff satisfied the notice requirement and denies defendants' motion on this ground.

1. Assault and Battery

Plaintiff does not dispute, and therefore concedes, defendants' argument that his assault and battery claim is barred by the one-year statute of limitations. Plaintiff's claim was tolled during his incarceration, but he does not dispute that he waited three years after his release from incarceration before bringing this claim into court. See Deft's Mem. at 18. Defendants' motion for summary judgment on the assault and battery claim is granted

2. Negligent Infliction of Emotional Distress ("NIED")

A claim for negligence in the District of Columbia has four elements: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached its duty, (3) and that breach was the proximate cause of (4) damages sustained by the plaintiff. Powell v. District of Columbia, 634 A.2d 403, 406 (D.C. 1993). Plaintiff has not identified the duty owed nor has he proffered any evidence from which a reasonable juror could find a "breach of [the police officers'] appropriate standard of care as trained Police Officers." Compl. at 50 ¶¶ 182-84. See Allison v. Howard University, 209 F. Supp. 2d 55, 61 (D.D.C. 2002) (rejecting negligence claims where plaintiff "fail[ed] entirely to articulate the applicable standard of care or to state how the defendants might have deviated from that standard").

Notwithstanding the pleading deficiency, defendants argue that the claim is defeated by plaintiff's failure to designate an expert witness to establish the applicable standard of care. Def't's Mem. at 21. Plaintiff counters that an expert witness is not necessary because "[i]t is common knowledge and expected that emotional distress necessarily follows a violent (undeserved) shooting which renders its victim blind, smelless and tasteless." Pltf's Opp. at 21. This argument misses the point. To sustain his claim, plaintiff must prove that defendants deviated from the proper standard of care with respect to their use of firearms. Under District of Columbia law, as interpreted by the District of Columbia Court of Appeals, "expert testimony is required when the subject presented is so distinctly related to some . . . profession . . . or occupation as to be beyond the ken of the average layman." District of Columbia v. White, 442 A.2d 159, 164 (D.C. 1982) (citations and internal quotation marks omitted). That court concluded that "questions of adequate weapons safety training and evaluation are technical questions" requiring expert testimony. Id. at 164-65. The Court will grant summary judgment to defendants on the NIED claim.

3. Reckless or Negligent Spoliation of Evidence

Although the complaint lists numerous pieces of evidence from the underlying crime scene plaintiff claims was lost, see id ¶ 192, plaintiff appears to preserve the spoilation claim only in regards to the police car at which plaintiff is alleged to have shot, crack cocaine allegedly found in the police car, the tape of the 911 call and the transcript of the radio run. Pltf's Opp. at 20. Plaintiff concludes that "[t]here is a material issue of fact as to whether evidence previously in the possession of the Defendant was purposely destroyed or lost," but he has not articulated how this evidence helps him in prosecuting this civil action. Nor has plaintiff refuted with any competent evidence defendants' assertions that he has failed to identify "anyone in particular" charged with the duty of preserving the evidence and "to allege or establish the existence of a `proximate relationship' between any purported impairment of the underlying suit and the unavailability of the destroyed evidence." Def't's Mem. at 25. In other words, plaintiff has failed to present any basis for a reasonable juror to find in his favor on at least four of the seven factors listed above. The Court therefore will grant summary judgment to defendants on the spoilation claim.

III. CONCLUSION

For the foregoing reasons, the court grants defendants' motion for summary judgment on all claims except the §§ 1981 and 1983 claims against defendants Michael Baker and Micheal Wear. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 22nd day of March 2005.