UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ GREGORY HARRIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-0622(GK) ) ) DISTRICT OF COLUMBIA ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION
Plaintiff, Gregory Harris (“Plaintiff”), brings this action
against Defendant, the District of Columbia (“Defendant”), under 42
U.S.C. § 1983 and various common law claims arising from
Plaintiff’s arrest.
This matter is now before the court on Defendant’s Motion to
Dismiss or, in the Alternative, for Summary Judgment (“Def.’s
Mot.”) [Dkt. No. 17]. Upon consideration of the Motion,
Opposition, Reply, the entire record herein, and for the reasons
stated below, Defendant’s Motion to Dismiss is granted. I. BACKGROUND
A. Factual Background1
Parties offer markedly different accounts of the underlying
incident. Plaintiff is a duly-commissioned Special Police Officer
for the District of Columbia. Compl. ¶ 10 [Dkt. No. 1]. On April
7, 2008, members of the District of Columbia Metropolitan Police
Department (“MPD”) conducted what Defendant terms an
“administrative inspection” and Plaintiff terms a warrantless
“raid” at Community Development Institute (“CDI”) Head Start
School, a daycare center located at 444 16th Street, N.E. in
Washington, DC, where Plaintiff was on duty. Pl.’s Opp’n at 1; see
U.S. Dep’t of Health and Human Servs., Admin. For Children and
Families, Community Development Institute Fast Facts, available at
http://cditeam.org/cdheadstart/facts/.
The MPD officers were assigned to perform the inspection
because the MPD Security Officers Management Branch (“SOMB”)
received a memorandum from Falken Industries, Plaintiff’s employer,
“requesting a uniform waiver for a special protective detail to
work at CDI head start school,” and to allow the Falken employees
to carry handguns while on duty there. Affidavit of Sgt. Anthony
1 For purposes of ruling on a motion to dismiss, the factual allegations of the complaint must be presumed to be true and liberally construed in favor of the plaintiff. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C. Cir. 1979). Therefore, the facts set forth herein are taken from the Complaint unless otherwise noted.
-2- Moye, Def.’s Mot., Ex. A [Dkt. No. 17-2]. SOMB ordered the
inspection after a WALES search showed that none of the listed
handguns were on record. Id. Plaintiff believes that he had
authorization both to work at the daycare center and to carry a
gun, based on his employer’s verbal notification to SOMB. Pl.’s
Opp’n to Mot. to Dismiss or for Summ. J. at 1-2, 13 (“Pl.’s Opp’n”)
[Dkt. No. 18].
At the daycare center, the MPD officers observed that
Plaintiff’s identification badge indicated he was assigned to work
at a different location, and that he was not authorized to carry a
firearm. Def.’s Mot. at 1-2. The MPD ran a search for Plaintiff’s
gun, and found no record of registration for it. Id. The officers
arrested Plaintiff and seized “numerous items” of the Plaintiff’s
personal property and Plaintiff’s employer’s personal property.
Compl. ¶ 16.
Defendant states that the officers requested to speak to
Plaintiff and another officer in private, that Plaintiff led them
to an empty classroom, and that the arrest occurred there. Def.’s
Mot. at 1. Harris, however, describes being arrested by twelve
officers with weapons drawn, who forced him to the ground in front
of the very schoolchildren he was assigned to protect. Pl.’s Opp’n
at 2, 24. Parties agree, however, that he then spent the night in
jail. At Plaintiff’s presentment hearing, he was released on the
condition that he not possess a firearm in the District of
-3- Columbia. Def.’s Mot., Ex. E [Dkt. 17-5]. Based on the affidavit
of Sergeant Anthony Moye, the supervising officer at the arrest,
the United States Attorney’s Office charged Plaintiff with
“Carrying a Pistol Without a License [Outside Home or Place of
Business], in violation of 22 D.C. Code § 4504(a) (2001 ed.).”
However, after Defendant moved to dismiss the case, charges were
dismissed on June 16, 2008.
Plaintiff alleges that, on June 11, 2008, he received a letter
from Sgt. Moye revoking his Special Police Commission. Compl. ¶ 28.
Plaintiff received another letter, dated July 30, 2008, stating
that Plaintiff’s Special Police Commission was suspended for twenty
days. Id. at ¶ 32.2 The MPD has not returned Plaintiff’s personal
property.
B. Procedural Background
Plaintiff initiated this suit on April 3, 2009, filing a
Complaint that contains the following seven counts: deprivation of
liberty under the Fourth Amendment, when Plaintiff was arrested
without probable cause during a warrantless search (Count I);
deprivation of a property interest, under the Fifth Amendment, when
his property was seized and never returned (Count II); malicious
prosecution of the Plaintiff initiated by Sgt. Moye (Count III);
2 There is much confusion as to whether Plaintiff was revoked, suspended, or both. Plaintiff never filed the letter of June 11, 2008; Defendant filed the letter of July 30, 2008. Because of this confusion, the Court will often refer simply to the “revocation/suspension.”
-4- deprivation of a property interest when he was denied the right to
work as a Special Police Officer (Count IV); deprivation of a
liberty interest, under the Eighth Amendment (Count V), excessive
force employed during the search (Count VI); and intentional
infliction of emotional distress (Count VII). Counts I, II, IV, V
and VI are brought pursuant to 42 U.S.C. § 1983, and Counts III and
VII are brought under the common law of the District of Columbia.
The Clerk entered a default judgment against the Defendant on
May 21, 2009, after it failed to respond to the Complaint. [Dkt.
No. 5]. Defendant filed a Motion to Set Aside Default on June 5,
2009, to which Plaintiff timely replied and which the Court granted
on August 17, 2009. The Court ordered Defendant to file an Answer,
which both parties have requested be stayed pending resolution of
Defendant’s Motion to Dismiss. Consent Mot. to Stay Filing of the
Answer [Dkt. No. 30]. Defendant then filed the instant Motion on
August 25, 2009. The Motion includes two broad arguments: (1) that
all claims brought under § 1983 should be dismissed for failure to
show that the District of Columbia is liable for his injuries, and
(2) that all common law claims should be dismissed because
Plaintiff failed to provide notice of the action to the District of
Columbia, as required by local law. Defendant presents separate
argument for dismissal of each individual claim. Parties completed
briefing of the Motion to Dismiss on September 24, 2009.
-5- II. STANDARD OF REVIEW
A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff
need only plead “enough facts to state a claim to relief that is
plausible on its face” and to “nudge[ ][his or her] claims across
the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “[O]nce a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Id. at 563. A
complaint will not suffice, however, if it “tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (citing Twombly, 550 U.S. at
557).
Under the Twombly standard, a “court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs’ success . . . must assume all the allegations in the
complaint are true (even if doubtful in fact) . . . [and] must give
the plaintiff the benefit of all reasonable inferences derived from
the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame
Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)(internal quotation
marks and citations omitted).
When deciding a 12(b)(6) Motion to Dismiss, “the Court may
consider only the facts alleged in the complaint, documents
attached as exhibits or incorporated by reference in the complaint
-6- and matters about which the court may take judicial notice.” Brown
v. Bureau of Prisons, 498 F. Supp. 2d 298, 301 (D.D.C. 2007); see
Marshall v. Honeywell Technology Solutions Inc., 536 F. Supp. 2d
59, 65 (D.D.C. 2008)(stating that “where a document is referred to
in the complaint and is central to the plaintiff’s claim, such a
document attached to the motion papers may be considered without
converting the motion to one for summary judgment”); Baker v.
Henderson, 150 F. Supp. 2d 13, 15 (D.D.C. 2001).
B. Summary Judgment
“If, on a motion under Rule 12(b)(6) . . . matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.”
Fed. R. Civ. P. 12(d). “However, if the court renders its decision
without reference to the extraneous material, then the motion may
still be treated as one for dismissal.” American Sharecom, Inc. v.
Southern Bell Tel. and Tel. Co., Civ. No. 87-1334, 1989 WL 229397,
at *2 (D.D.C. Aug. 28, 1989); see Basel v. Knebel, 551 F.2d 395
(D.C. Cir. 1977). “In other words, it is not the submission, but
rather the consideration, of the extraneous documents which renders
the motion one for summary judgment.” American Sharecom, Inc.,
1989 WL 229397 at *2.
Summary judgment is appropriate “when the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine
-7- issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “A
dispute over a material fact is genuine if the evidence is such
that a reasonable [fact-finder] could return a [decision] for the
non-moving party.” Arrington v. United States, 473 F.3d 329, 333
(D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). A fact is “material” if it might affect the
outcome of the action under the governing law. Liberty Lobby Inc.,
477 U.S. at 248.
III. ANALYSIS
A. Defendant’s Motion to Dismiss the § 1983 Claims in Counts I, II, IV, V, and VI for Failure to State a Claim Is Granted.
Defendant argues that Plaintiff’s § 1983 claims in Counts I,
II, IV, V, and VI should be dismissed because Plaintiff fails to
allege an unconstitutional custom, practice, or policy, which is
required to establish a claim against a municipality. Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).
To state a claim under § 1983, a plaintiff must allege a
deprivation of “rights, privileges, or immunities secured by the
Constitution and laws” by a person acting under color of state,
territorial, or District of Columbia law, 42 U.S.C. § 1983, or a
practice “so permanent and well settled as to constitute a ‘custom
or usage’ with force of law.” Monell, 436 U.S. at 694. Under
Monell, liability for a Constitutional tort will not attach to a
-8- municipality merely because the tortfeasor is employed by the
municipality. Monell, 436 U.S. at 691 (rejecting respondeat
superior liability). Instead, a plaintiff must allege a specific
unconstitutional custom, practice, or policy which was the source
of the rights violation. Id.
Plaintiff has failed to meet this bedrock requirement for
stating a § 1983 claim. Plaintiff simply restated, in each count
of his Complaint, the conduct of which he complains and alleges
that “[s]uch conduct was the official policy of the Defendant.”
For example, he alleges that “[t]he unlawful raid, warrantless
search and unlawful warrantless arrest of plaintiff,” Compl. ¶¶ 40,
74, “[t]he unlawful seizure of Plaintiff’s person and property,”
id. at ¶ 46, “[t]he unlawful denial of Plaintiff’s person and
property,” id. at ¶ 62, and the “excessive conditions” of his
release, id. at ¶ 69, were all “the official policy of the
Defendant.”
None of these phrases constitute a “policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by [Defendant],” as mandated in Monell, 436 U.S. at
690. Plaintiff has failed to include any allegations whatsoever
demonstrating how the individual actions cited in his Complaint 3 constitute “the official policy” of the District of Columbia.
3 Cf. Jones v. City of Chicago, 856 F.2d 985, 995-96 (7th Cir. 1988), cited by Plaintiff, which held that the City’s (continued...)
-9- These are the kind of “naked assertion[s]” which both Iqbal, 129 S.
Ct. at 1948, and Twombly, 550 U.S. at 557, have firmly rejected.
Thus, Plaintiff has failed to satisfy a key requirement for stating
a claim under § 1983, and therefore, the Motion to Dismiss the §
1983 Claims in Counts I, II, IV, V, and VI for Failure to State a
Claim is granted.4
B. Defendant’s Motion to Dismiss Counts III and VII for Failure to Satisfy the Notice Requirement of D.C. Code § 12-309 Is Granted.
Defendant argues that Plaintiff’s common law claims against the
District of Columbia (Counts III and VII) are barred because
Plaintiff failed to satisfy the mandatory notice requirement for
maintaining such claims against the District. Def.’s Mot. at 8.
Under the governing statute:
3 (...continued) maintenance of secret “street files” was a custom since “the practice was department-wide and of long standing, the jury was entitled to conclude that it had been consciously approved at the highest policy-making level for decisions involving the police department.” 4 Defendant also argues that a single incident such as the one alleged in this case cannot support a finding of municipal liability. Def.’s Mot. at 8 (quoting Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996)). However, “section 1983 does not require a plaintiff . . . to prove multiple incidences of misconduct if the plaintiff can prove an unconstitutional municipal policy responsible for a single instance of misconduct.” Amons v. District of Columbia, 231 F. Supp.2d 109, 115-116 (D.D.C. 2002) (citing City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985)) (emphasis added). Here, Plaintiff has not alleged, no less proved, an unconstitutional municipal policy responsible for the incident of April 7, 2008, at the daycare center.
-10- 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 the regular course of duty, is a sufficient notice under this section.
D.C. Code § 12-309.
Because this provision “represents a waiver of sovereign
immunity,” Tibbs v. Williams, 263 F. Supp. 2d 39, 43 (D.D.C. 2003),
compliance is mandatory and “is to be strictly construed” against
the claimant, Gwinn v. District of Columbia, 434 A.2d 1376, 1378
(D.C. 1981). Thus, the “notice is fatally defective if one or more
of the statutory elements is lacking,” Boone v. District of
Columbia, 294 F. Supp. 1156, 1157 (D.D.C. 1968), and no right of
action accrues. Gwinn, 434 A.2d at 137; accord Doe by Fein v.
District of Columbia, 93 F.3d 861, 870 (D.C. Cir. 1996).
Plaintiff’s attorney mailed a notice letter on September 26,
2008. Pl.’s Opp’n at 11. Defendant argues that the letter does
not indicate the location of the incident. Defendant’s Reply to
Pl.’s Opp’n at 1 (“Def.’s Reply”) [Dkt. No. 24]. Plaintiff’s
letter indicates the cause and circumstances of the incident,
references the police report of the incident, including the report
number, but does not indicate the location of the incident. Pl.’s
-11- Opp’n, Ex. B [Dkt. No. 18-3]. Failure to include the location of
the incident is usually fatal.5
However, “[t]he police report is an alternative form of notice
added to ‘[take] care of those instances in which actual notice is
had by the District of Columbia from the police department,
although technical notice may not have been filed by the person
injured.’” Miller v. Spencer, 330 A.2d 250, 252 (D.C. App. 1974),
quoting H.R. Rep. No.2010, 72d Cong., 2d Sess. 2 (1933). If the
police report contains the information required by § 12-309, the
report will satisfy the notice requirement. Id. Because Plaintiff
failed to attach the police report to his Complaint, it is
impossible to discern whether it gives sufficient information to
Defendant to comply with § 12-309. Consequently, the Court is
5 Plaintiff cites to a District of Columbia case stating that “with respect to the details of the [notice letter] precise exactness is not absolutely essential,” so long as the letter reasonably complies with the statute and “the city is not misled to its prejudice by any defects of description.” Hurd v. District of Columbia, 106 A.2d 702, 704 (D.C. 1954). However, Hurd does not excuse Plaintiff from reasonably complying with the statute. In that case, the plaintiff included a location of the underlying incident in her notice letter that was an incorrect address. Id. at 703-04. The court excused the mistake as a reasonable attempt to comply with the statute. Id. at 704. Where plaintiffs have omitted the location of the incident completely, courts have consistently held that notice was defective. Kirkland v. District of Columbia, 70 F.3d 629 (D.C. Cir. 1995); Hunter v. District of Columbia, 943 F.2d 69 (D.C. Cir. 1991).
-12- constrained to grant the Motion to Dismiss Counts III and VII on
notice grounds.6
C. Defendant’s Motion to Dismiss Count I for Lack of Standing to Contest the Search at the Daycare Center Is Granted.
In Count I, Plaintiff asserts a §1983 claim against Defendant
for violation of his Fourth Amendment right against unreasonable
searches and seizures. Const. Amend. IV; Compl. ¶ 34. Plaintiff
argues that his arrest was unlawful, as it was made without either
a warrant or probable cause, during an “unlawful raid and
warrantless search of the daycare.” Compl. ¶¶ 37-38. Defendant
makes two arguments for dismissal of Count I.
Defendant argues that Plaintiff lacks standing to challenge the
search at the daycare center because he did not have a reasonable
expectation of privacy, either because he was not the owner or
operator of the commercial property, or because he was only
authorized to work at the location printed on his badge, which was
not that of the daycare center. Def.’s Mot. at 9-11.
Defendant relies on a Supreme Court case, New York v. Burger,
482 U.S. 691 (1987), which states that the owner or operator of
commercial property has a reasonable expectation of privacy. This
reliance on Burger is misplaced. That case did not hold that the
6 As noted earlier, Defendant has raised separate additional arguments for each claim in its Motion to Dismiss. For purposes of judicial efficiency should any of the rulings herein be overturned on appeal, the Court will address all of those arguments.
-13- owner or operator of commercial property is the only person who may
have a reasonable expectation of property at a workplace.
In a case decided the same year as Burger, the Supreme Court
reaffirmed its prior rulings that “[w]ithin the workplace context
. . . employees may have a reasonable expectation of privacy
against intrusion by police.” O’Connor v. Ortega, 480 U.S. 709,
716 (1987). The Court explained that an employee’s expectation of
privacy is limited by the “operational realities of the workplace,”
id. at 717, and “must be assessed in the context of the employment
relation.” Id. The Court went on to say that “[g]iven the great
variety of work environments in the public sector, the question
whether an employee has a reasonable expectation of privacy must be
addressed on a case-by-case basis.” Id. at 718. See Gatlin v.
United States, 833 A.2d 995, 1005-1006 (D.C. 2003)(finding no
reasonable expectation of privacy when police officers entered
areas of a charter school, including the main hallway, foyer, and
outer portion of the main office, because the school was publicly
funded and these areas were open to employees, students, and the
public).
Here, as in Gatlin, the daycare center where Plaintiff was on
duty is a part of the District of Columbia public school system.
See “District of Columbia Public Schools, Pre-School (PS), Pre-
Kindergarten (PK) and Head Start: A Guide for Parents,” available
at http://dcps.dc.gov/DCPS/Learn+About+Schools/Pre-schools%2C+Pre-
-14- Kindergarten%2C+and+Head+Start (explaining that enrollment in a
Head Start school is an option within the District of Columbia
public school system). When Plaintiff was on duty at the daycare
center, entry by students, daycare employees, parents, and the
public could be reasonably expected. The parties do not dispute
that Plaintiff was standing in the doorway when the MPD officers
arrived and approached him. Def.’s Mot. at 1; Compl. ¶ 14. Based
on these facts and the reasoning in Gatlin, the Court concludes
that Plaintiff did not enjoy a reasonable expectation of privacy
while on duty at the daycare center. Consequently, Plaintiff
cannot contest the search because his Fourth Amendment right was
not implicated in terms of the legality of the administrative
search, Thomas J. Brown v. United States, 627 A.2d 499, 504 (D.C.
1993), and the Motion to Dismiss Count I for lack of standing to
contest the search at the daycare center is granted.
D. Defendant’s Motion to Dismiss Count I for Unlawful Arrest Is Denied.
Where an arrest is made without a warrant, it must be supported
by probable cause. Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C.
Cir. 1993). Probable cause is determined on the basis of the
“totality of the circumstances,” see Illinois v. Gates, 462 U.S.
213, 230 (1983), which requires that “the police had enough
information to warrant a [person] of reasonable caution in the
belief that a crime has been committed and that the person arrested
has committed it,” Barham v. Ramsey, 434 F.3d 565, 572 (D.C. Cir.
-15- 2006) (internal quotations omitted); see Gerstein v. Pugh, 420 U.S.
103, 111 (1975)(stating that probable cause to arrest exists when
the facts and circumstances are sufficient to warrant a prudent
person to believe that the individual has committed an offense).
The parties do not dispute that Plaintiff was arrested without
a warrant. Compl. ¶ 37. Plaintiff, however, asserts that he was
arrested without probable cause, id., because he was on duty at the
daycare center “with the knowledge, consent and authority of
[SOMB],” id. at ¶ 14, because his “firearm was . . . registered
with [MPD],” id. at ¶ 24, and because Sgt. Moye, the supervising
officer at the arrest, knew these facts at the time of the arrest,
id. at ¶¶ 22, 24. Defendant argues that the officers had probable
cause to arrest, based on the their finding that he carried an
unregistered gun. Def.’s Mot. at 10. Whether the officers had
probable cause to arrest, however, is a factual issue,
inappropriate for resolution at this time.7 The Court concludes
that Plaintiff has sufficiently stated the legal elements of an
unlawful arrest claim in his Complaint, and has supported them with
sufficient facts to make the claim plausible. See Twombly, 550
7 The Court declines to consider the affidavits parties have submitted regarding probable cause because discovery is required to resolve this issue. See Baker, 150 F. Supp. 2d at 16; American Sharecom, 1989 WL 229397, at *2 (Aug. 28, 1989); Basel, 551 F.2d 395. Delaying summary judgment will not prejudice the parties in any way.
-16- U.S. at 555. Therefore, Defendant’s Motion to Dismiss Count I for
unlawful arrest is denied.
E. Defendant’s Motion to Dismiss Count II for Failure to State a Fifth Amendment Due Process Claim for Deprivation of Personal Property Is Granted.
In Count II of the Complaint, Plaintiff asserts a § 1983 claim
for violation of his Fifth Amendment right against deprivation “of
life, liberty, or property without due process of law.” U.S.
Const. Amend. V; Compl. ¶ 43. Specifically, Plaintiff alleges that
his personal property was unlawfully seized during the arrest and
never returned, and that the arrest constituted an unlawful seizure
of his person. Compl. ¶ 44.
Defendant argues that Plaintiff “seems to assert a Fourth
Amendment unlawful seizure claim” even though he identifies Count
II as a Fifth Amendment claim. Def.’s Mot. at 11. The Supreme
Court has made clear that Government seizure of personal property
can violate both the Fourth and Fifth Amendments. United States v.
James Daniel Good Real Property, 510 U.S. 43, 49-52 (1993) (holding
that seizures of real property for purposes of civil forfeiture are
governed by both the Fourth and the Fifth Amendments). Therefore,
Plaintiff has stated a claim under the Fifth Amendment for the
personal property seized at his arrest.
To state a Fifth Amendment Due Process violation, “Plaintiff
must first have ‘a property . . . interest that triggers Fifth
Amendment due process protection” which arises “from ‘state
-17- law-rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.’” Davis & Assoc.,
Inc. V. District of Columbia, 501 F. Supp. 2d 77, 81-82 (D.D.C.
2007)(quoting C & E Serv. Inc. of Wash. v. District of Columbia
Water and Sewer Auth., 310 F.3d 197, 200 (D.C. Cir. 2002) and Bd.
Of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)).
However, the Plaintiff does not identify what property was seized.
He argues that “enumeration of such property is a proper subject
for discovery, not a Motion to Dismiss.” Pl.’s Opp’n at 19.
However, Plaintiff must demonstrate what property interest he has
that triggers Fifth Amendment protection in order to state a claim,
and has failed to do so. Davis & Assoc., 501 F. Supp. 2d at 81;
see Twombly, 550 U.S. at 555 (requiring “more than labels and
conclusions” to state a claim).8 Consequently, the Defendant’s
Motion to Dismiss Count II for failure to state a Fifth Amendment
due process claim is granted.
F. Defendant’s Motion to Dismiss Count III for Malicious Prosecution Is Granted.
Plaintiff asserts a malicious prosecution claim in Count III,
based on the criminal suit initiated against him for possession of
an unregistered handgun. His basic argument is that the
prosecution was initiated against him with malice because Defendant
8 Although Plaintiff mentions the seizure of his person in Count II, he only states a claim for deprivation of a property interest. Thus, the Court assumes that Plaintiff did not intend to also contest his arrest in Count II.
-18- knew that the allegations against him contained in Sgt. Moy’s
affidavit, were false. Compl. ¶¶ 19-26, 48-54.
To state a claim for malicious prosecution under District of
Columbia law, Plaintiff must show “(1) termination of the
underlying suit in plaintiff's 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 a result of the
original action.” Pitt v. District of Columbia, 491 F.3d 494, 501
(D.C. Cir. 2007)(citing Morowitz v. Marvel, 423 A.2d 196, 198 (D.C.
1980)).
Defendant challenges Count III on three grounds, the first of
which is dispositive. Defendant argues that Plaintiff cannot
establish favorable termination of the underlying criminal suit
because dismissal of Plaintiff’s criminal suit was not on the
merits. Under District of Columbia law, “the termination must
reflect on the merits of the underlying action”. Brown v. Carr,
503 A.2d 1241, 1245 (D.C. App. 1986). In Brown, the District of
Columbia Court of Appeals relied on the approach taken by the
California state courts and cited with approval their reasoning.
“If [the termination] is of such a nature as to indicate the
innocence of the accused, it is a favorable termination sufficient
to satisfy the requirement. If, however, the dismissal is on
technical grounds, for procedural reasons, . . . it does not
-19- constitute favorable termination.” Brown, 503 A.2d at 1245
(quoting Lackner v. LaCroix, 25 Cal.3d 747, 750,(1979)).
Here, Defendant submitted the District of Columbia Superior
Court docket entry showing that the prosecutor dismissed
Plaintiff’s criminal charges. Def’s Mot., Ex. F [Dkt. No. 17-6].
The document does not state any reason for termination of the
prosecution. However, under District of Columbia law, “[a]
dismissal shall be without prejudice unless otherwise stated.”
D.C. R. Crim. P. 48(a). “[A] dismissal without prejudice ‘renders
the proceedings a nullity and leave[s] the parties as if the action
had never been brought.’” Thoubboron v. Ford Motor Company, 809
A.2d 1204, 1210 (D.C. 2002) (quoting Bonneville Assocs. Ltd. v.
Barram, 165 F.3d 1360, 1364 (Fed. Cir. 1999) (citations omitted).
To satisfy this essential element of malicious prosecution,
Plaintiff bears the burden of alleging that his charges were
dismissed with prejudice. See United States v. Jackson, 528 A.2d
1211, 1223 n. 29 (D.C. 1987) (stating that plaintiff failed to show
that certain charges against him were dismissed with prejudice
where “[t]he docket entry . . . simply reads that [the count in
question] was dismissed by the government.”). Plaintiff has failed
to allege any facts that, if proven, would demonstrate that
termination was on the merits. Without a showing of favorable
termination, Plaintiff fails to state a claim for malicious
-20- prosecution. Therefore, the Motion to Dismiss Count III is
granted.
G. Defendant’s Motion to Dismiss Count IV, Alleging Deprivation of a Property Interest, Is Denied.
In Count IV of the Complaint, Harris asserts a § 1983 claim for
deprivation of a property interest, stemming from revocation of his
authority to work as a Special Police Officer and from a later 20-
day suspension of his authority to work as a Special Police
Officer.9 Compl. ¶¶ 56-57.10 Defendant argues that Count IV must
be dismissed because Plaintiff failed to exhaust the administrative
remedies made available to him in his suspension letter. That
letter informed him he had the opportunity to “appeal [the]
decision in writing to the Office of the Chief of Police . . .
within twenty (20) days upon receipt of this notice.” Def.’s Mot.
at 15-16; Def.’s Mot., Ex. G [Dkt. No. 17-7].
Plaintiff maintains that he was offered no “meaningful
opportunity to contest or appeal” his suspension. Compl. ¶ 60. He
further argues that the appeals process offered cannot “provide a
sufficient remedy such as monetary damages,” that “the Attorney
9 The precise extent of Plaintiff’s injuries resulting from revocation/suspension of his work authorization is unclear. Plaintiff indicates that he was sent two letters, one revoking his authority to work indefinitely, and one suspending him from work for twenty days. Compl. ¶¶ 28, 32, 56-57. Defendant consistently refers to the action against Plaintiff as a suspension, and provided a copy of the July 30, 2008 letter suspending him for twenty days. Def.’s Mot. at 15-16, Ex. G. 10 See Footnote 5, supra.
-21- General offers no authority or citation . . . which authorizes or
mandates the appeals process,” and that because Plaintiff was
arrested by the same officials to which he was required to report
his arrest, his suspension was a mere “pretext.” Pl.’s Opp’n at
21-22 and n.5.
“State administrative exhaustion requirements” like the ones
here “are treated as non-jurisdictional by federal courts, meaning
that the exhaustion requirement is a prudential doctrine exercised
as a matter of judicial discretion.” Washington v. District of
Columbia, 538 F. Supp. 2d 269, 278 (D.D.C. 2008). In such
instances, “[a] plaintiff’s failure to satisfy [the exhaustion
requirement] . . . constitutes a failure to sufficiently plead a
necessary element of a federal cause of action.” Hidalgo v. FBI,
344 F.3d 1256, 1259-69 (D.C. Cir. 2003); Washington, 538 F. Supp.
2d at 278. To enforce the requirement, the Court must balance
Plaintiff’s interest in immediate judicial relief against the
interests promoted by the exhaustion requirement, such as agency
autonomy and judicial efficiency. Washington, 538 F. Supp. 2d at
278.
Exhaustion is not typically required for § 1983 actions.
Milton S. Kronheim & Co. v. District of Columbia, 877 F. Supp. 21,
29 (D.D.C. 1995); Ifill v. District of Columbia, 665 A.2d 185, 194
(D.C. 1995). However, an exception exists for procedural Due
Process claims, at least where “an alleged constitutional violation
-22- is intertwined with a statutory one,” and complete relief can be
provided by the administrative process. Nat’l Treasury Employees
Union v. King, 961 F.2d 240, 243 (D.C. Cir. 1992); Washington, 538
F. Supp. 2d at 278; Hoey, 540 F. Supp. 2d at 226-27. Relief, for
purposes of the exhaustion requirement, is not “complete” unless it
is “sufficient to right the wrong.” Randolph-Sheppard Vendors of
Am. v. Weinberger, 795 F.2d 90, 107 (D.C. Cir. 1986). In
determining what remedy is sufficient, the reviewing court
considers whether “the administrative proceeding affords the
claimant a recovery commensurate with his or her remedy, regardless
of whether he or she might recover more by filing a federal-law
claim in federal court.” Johnson v. District of Columbia, 368 F.
Supp. 2d 30, 51 n. 9 (D.D.C. 2005); Washington, 538 F. Supp. 2d at
277.
Plaintiff seeks monetary damages in his Complaint and alleges
that the Police Chief is not authorized to award them. The
Defendant does not deny that allegation. Consequently, the relief
sought will not be complete because it is not “sufficient to right
the wrong,” and Defendant’s Motion to Dismiss Count IV, for failure
to exhaust administrative remedies, is denied.
H. Defendant’s Motion to Dismiss Count V, Alleging an Eighth Amendment Claim for Excessive Conditions of Release, Is Granted.
In Count V, Plaintiff asserts a ¶ 1983 claim for violation of
his Eighth Amendment right against excessive bail. Const. Am.
-23- VIII; Compl. ¶ 65. Specifically, Plaintiff argues that the
condition of his release--that he not possess a firearm in the
District of Columbia--was excessive because it was based on Sgt.
Moye’s knowingly false affidavit. Compl. ¶ 66; Def.’s Mot., Ex. F.
Defendant argues that Plaintiff fails to assert an Eighth
Amendment violation. While excessive release conditions can form
the basis of an Eighth Amendment claim, United States v. Salerno,
481 U.S. 739, 754-55 (1987), there appears to be a paucity of law
on the subject. The Sixth Circuit, in Bacon v. Patera, 772 F.2d
259, 264 (6th Cir. 1985), explained why:
Most eighth amendment claims have involved the constitutionality of state treatment for individuals already convicted of crimes. Those few cases finding eighth amendment violations in pre-conviction conduct by the state have all involved the infliction of some kind of physical abuse. It would require a tremendous expansion of eighth amendment doctrine to hold that simply misuse of the state’s prosecutorial machinery constitutes the type of “cruel and unusual punishment” that the eighth amendment was meant to prohibit (internal citations omitted).
Plaintiff claims no physical abuse whatsoever; he simply alleges a
misuse of Defendant’s prosecutorial authority. Such allegations do
not constitute an Eighth Amendment violation. Therefore,
Defendant’s Motion to Dismiss Count V, Alleging an Eighth Amendment
Claim for Excessive Conditions of Release, is granted.
-24- I. Defendant’s Motion to Dismiss Count VI, Alleging Excessive Force During Plaintiff’s Arrest, Is Granted.
Plaintiff asserts a § 1983 claim in Count VI that he suffered
deprivation of a liberty interest in “[t]he raid and search without
a warrant of the Plaintiff’s workplace,” which constituted
excessive force. Compl. ¶ 72.
Excessive force claims are examined under the Fourth Amendment
reasonableness standard, to determine “whether the officers'
actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying
intent or motivation.” Scott v. District of Columbia, 101 F.3d
748, 760 (D.C. Cir. 1996)(quoting Graham v. Connor, 490 U.S. 386,
397 (1989)). “An officer will be found to have used excessive
force only ‘if the force used was so excessive that no reasonable
officer could have believed in the lawfulness of his actions.’”
Oberwetter v. Hilliard, Civ. No. 09-0588, 2010 WL 274409, at *12
(D.D.C. Jan. 25, 2010)(quoting Rogala v. Dist. of Columbia, 161
F.3d 44, 54 (D.C. Cir. 1998)). Under the “objective
reasonableness” standard officers are authorized to use “some
degree of physical coercion or threat thereof” during the course of
an arrest, and “not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers,” violates the
Fourth Amendment. Graham, 490 U.S. at 395-97; Hirpassa, 648 F.
Supp. 2d at 151.
-25- Defendant argues that Plaintiff’s claim fails because he did
not allege injury or physical contact of any kind in his Complaint.
Def.’s Mot. at 17. Plaintiff’s only response is to allege facts in
his Opposition--not his Complaint--which he believes would
adequately flesh out his Count VI claim. This he cannot do. When
considering a 12(b)(6) Motion to Dismiss, the Court may only
consider those facts alleged in the Complaint. Henthorn v. Dep’t
of the Navy, 29 F.3d 682, 688 (D.C. Cir. 1994); Clark v. Flach, 604
F. Supp. 2d 1, 6 n.6 (D.D.C. 2009); Alexander v. Wash. Gas Light
Co., 481 F. Supp. 2d 16, 25 (D.D.C. 2006).
The only facts Plaintiff alleges in the Complaint are that
twelve officers conducted the arrest, with guns drawn. Compl.
¶ 72. Plaintiff includes no allegation of injury, apart from a
deprivation “of his rights, privileges, and immunities.” Id. at ¶
73. Without any allegation that Plaintiff suffered an injury
resulting from the force used, or any facts indicating physical
contact that could support a finding of excessive force, Plaintiff
has not stated a claim for excessive force. See Wasserman v.
Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009)(stating that lack of
“bruise or injury, . . . tends to confirm that [the arresting
officer] did not use more force than reasonably appeared
necessary”); Oberwetter, 2010 WL 274409, at *13 (dismissing an
excessive force claim where plaintiff described the physical force
used in an arrest but failed to allege injury arising from it);
-26- Hirpassa, 648 F. Supp. 2d at 151 (dismissing a claim for excessive
force where the claims were “not supported by any allegations as to
the actual force used, physical contact between the parties, or
physical harm or injury resulting from the arrest”). Therefore,
Defendant’s Motion to Dismiss Count VI, alleging excessive force
during Plaintiff’s arrest is granted.
J. Defendant’s Motion to Dismiss Count VII, Alleging Intentional Infliction of Emotional Distress, Is Granted.
Plaintiff asserts a common law claim in Count VII for
Intentional Infliction of Emotional Distress (“IIED”). Compl. ¶¶
76-78. Defendant argues that the facts in this case do not support
a finding of outrageous conduct, and therefore Plaintiff’s claim
must be dismissed. Def.’s Mot. at 18.
“To establish a cause of action for intentional infliction of
emotional distress a plaintiff must show 1) extreme and outrageous
conduct on the part of the defendant which 2) either intentionally
or recklessly 3) causes the plaintiff severe emotional distress.”
Henson v. W.H.H. Trice and Co., 466 F. Supp. 2d 187, 193 (D.D.C.
2006)(citing Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C.
2002)). To assess whether Plaintiff has stated a claim, the Court
must consider “whether the defendant’s conduct may be regarded as
so outrageous as to permit recovery.” Amons, 231 F. Supp. 2d at
117 (quoting Abourezk v. New York Airlines, Inc., 895 F.2d 1456,
1458 (D.C. Cir. 1990)). Outrageous conduct is conduct “so
outrageous in character, and so extreme in degree, as to go beyond
-27- all possible bounds of decency and to be regarded as atrocious, and
utterly intolerable in a civilized community.” Id.
Plaintiff alleges that he was arrested without a warrant during
a search at the daycare center, that excessive force was used by 12
officers with guns drawn, that he was detained overnight, and that
Sgt. Moye falsified his affidavit in support of a “Gerstein
Proffer.” See Gerstein, 420 U.S. 103. Compl. ¶¶ 13, 15, 20.11
These facts cannot in any way compare with the outrageousness
of the facts alleged in Amons. The only fact alleged about which
some question might be raised is the allegation that Sgt. Moye
intentionally lied in his affidavit. The lie alleged in the
Complaint is that Sgt. Moye stated in his affidavit that he had
conducted “an administrative inspection of the daycare center”
when, according to Plaintiff, he had “conducted a raid and
warrantless search of the daycare center with more than a dozen
officers, some with their guns drawn.” Compl. ¶ 20. Assuming for
the purposes of this Motion to Dismiss that this allegation can be
11 As noted earlier, the Court will not consider the supporting facts Plaintiff alleges only in his Opposition brief. When considering a 12(b)(6) Motion to Dismiss, the Court may only consider those facts alleged in the Complaint. Henthorn, 29 F.3d at 688; Clark, 604 F. Supp. 2d at 6 n. 6; Alexander, 481 F. Supp. 2d at 25. Because Plaintiff has not yet had a “reasonable opportunity” for discovery, the Court also declines to consider the affidavits Defendant has submitted or to convert the Motion to Dismiss Count VII to a Motion for Summary Judgment. Baker, 150 F. Supp.2d at 16 (requiring that “[w]hen a district court converts a Rule 12(b)(6) motion to one for summary judgment, it must allow all parties a reasonable opportunity to present all material made pertinent to such a motion by Rule 56, and a chance to pursue reasonable discovery”).
-28- proven, it is not, as a matter of law, “so outrageous in character,
and so extreme in degree as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Abourezk v. New York Airlines, Inc.,
895 F.2d 1456, 1458 (D.C. Cir. 1990). Therefore, Defendant’s
Motion to Dismiss Count VII, alleging intentional infliction of
emotional distress, is granted.
IV. CONCLUSION
Upon consideration of the Motion, Opposition, Reply, the entire
record herein, and for the reasons stated above, Defendant’s Motion
to Dismiss is granted. An Order shall issue with this Memorandum
Opinion.
March 22, 2010 /s/ Gladys Kessler United States District Judge
Copies via ECF to all counsel of record
-29-