UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ANDREW J. MARCUS, ) ) Plaintiff, ) ) v. ) ) Civ. Action No. 08cv1900 (RJL) THE DISTRICT OF COLUMBIA, ) etal ) ) Defendant. )
~ MEMORANDUM OPINION (August ~ 2009) [Dkt. 22, 23, and 26]
The plaintiff, Andrew Marcus, brought this action against the District of Columbia
and various individuals alleging violations of his constitutional rights and the commission
of a number of common law torts. Three of the defendants, current or former MPD
officers Curtis Braxton, John Reasonover, and Diane Jackson, moved to dismiss each of
plaintiffs claims against them. For the reasons discussed below, these motions to dismiss
are GRANTED.
BACKGROUND
Marcus's complaint arises from events that took place on November 7,2007, at
Metropolitan Police Department ("MPD") headquarters. (CompI.,-r 16.) On that
afternoon, Marcus went to 301 C Street, N.W., in Washington, D.C., in the mistaken
belief that he was going to the Department of Motor Vehicles ("DMV"). (Jd.,-r 15-17.)
-1- When Marcus arrived, he approached the security table and told two privately employed
security guards, who are also defendants in this suit, that he was looking for the DMV.
(ld. ~ 16-17.) One of the two security guards ("the Guard") informed Marcus that he was
in fact at MPD headquarters, and not the DMV, at which point Marcus said "that moron
at the DMV sent me here." (ld. ~ 17.)
Marcus and the Guard continued their exchange for a short while before Marcus
asked to speak with the Guard's supervisor. (ld. ~ 18-20.) According to Marcus, the
Guard became rather angry at this request, refused to divulge the name of his supervisor,
shoved Marcus's briefcase and coat back into Marcus's arms, and told Marcus to leave.
(ld. ~ 21-22.) When Marcus didn't comply, the Guard allegedly restrained him by force
after spinning him around and pushing him once again. (ld., 23-24.)
At that point, defendants Reasonover and Jackson came along with one of the
other defendants in this case. I (ld., 24.) Seeing the confrontation in progress, they
placed Marcus in handcuffs. (ld.) Thereafter, Marcus was brought to a room inside MPD
headquarters, where he was detained for a short while in the custody of an MPD
detective-allegedly named Braxton-before being taken to George Washington University
Hospital to be treated for minor injuries. (ld., 27 -36.) From there, Marcus was taken to
a few lockup facilities around the District of Columbia, ultimately ending up at the
facility in the District of Columbia Superior Court. (ld., 37 -38.) In all, Marcus claims
I This defendant has not, as of yet, filed a motion to dismiss the plaintiff's against him.
-2- he was held for roughly 2S hours. (Id. ~ 40.)
On November 3, 200S, plaintiff filed this suit. On December 5, 200S, defendants
Braxton and Reasonover moved to dismiss all of plaintiff's claims against them;
defendant Jackson did the same on December 19, 200S. For the following reasons, the
Court GRANTS defendants Braxton, Reasonover, and Jackson's motions.
ANALYSIS
Defendants Braxton, Reasonover, and Jackson have moved under Federal Rule of
Civil Procedure 12(b)(6) to dismiss plaintiff's claims against them. Dismissal is
warranted under Rule 12(b)(6) ifit appears that, under any reasonable reading of the
complaint, there are no set of facts which could be proved to justify the relief sought. See
Conley v. Gibson, 355 U.S. 41, 45-46 (1977). Recently, the Supreme Court has held that
Rule 12(b)(6) requires dismissal if the complaint does not set forth "plausible" claims.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). The complaint must
contain "more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Id. at 555. "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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). To survive a motion
to dismiss, a plaintiff must allege facts "above the speculative level," Twombly, 550 U.S.
at 555, such that the facts, if taken as true, are "suggestive of illegal conduct." Id. at 564
n.S. Marcus has failed to do so here. How so?
-3- First, with respect to defendant Braxton, it has become clear in the course of the
parties' pleadings that he could not have been the officer identified in Marcus's complaint
as "Braxton." This is so because defendant Braxton retired from the MPD on June 9,
2007, and the incidents alleged in Marcus's complaint did not occur until November 7,
2007. (Braxton Mot. at 3.) Indeed, Marcus does not even dispute the mistaken identity of
defendant Braxton. 2 (PI. Opp'n to Braxton Mot. at 2.) Clearly, under prevailing pleading
standards, all claims against defendant Braxton must be dismissed because there is no
possibility that Braxton acted unlawfully towards Marcus. See Conley, 355 U.S. at 45-46.
Next, as to defendants Reasonover and Jackson, Marcus alleges six common law
tort claims and one count of deprivation of his civil rights in violation of 42 U.S.C. §
1983. The Court, of course, has discretionary jurisdiction over Marcus's pendent
common law tort claims (Counts I through VI) because these claims arise from the same
set of alleged facts as the federal § 1983 claim (Count VII). 28 U.S.C. § 1367(a) (2008).
As to Counts III, IV, and VI, these counts can be summarily dismissed because
they plainly lack any facts which might be "suggestive" of unlawful conduct by
Reasonover and Jackson. See Twombly, 550 U.S. at 564 n.8. According to Marcus,
Reasonover and Jackson did not arrive on the scene until his physical confrontation with
the Guard was already under way. (CompI.,-r 24.) Once on the scene, the only action
allegedly taken by Reasonover and Jackson was to place Marcus in handcuffs. (Id.)
2 The Court declines to consider the requests for relief included in plaintiff s opposition to Braxton's motion to dismiss because they are not raised in an appropriate fashion.
-4- Therefore, Count III, for malicious prosecution, fails because it does not allege any facts
to suggest Reasonover and Jackson acted with malice. 3 Similarly, Count IV, for abuse of
process, fails because it does not allege any facts to suggest Reasonover and Jackson
misused the judicial process. 4 Finally, Count VI, which alleges negligent hiring, training,
supervising, and/or retaining, fails because Marcus does not allege any facts suggesting
that Reasonover and Jackson were ever responsible for any of these functions. To say the
least, they cannot be held liable for breaching duties they did not have.
Next, with respect to Counts I, II, V, and VII, these counts must also be dismissed
because, even assuming Marcus's allegations to be true, the Court finds that Reasonover
and Jackson still had probable cause to arrest the plaintiff. How so? Probable cause
exists when "facts and circumstances within the officer's knowledge . .. are sufficient to
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ANDREW J. MARCUS, ) ) Plaintiff, ) ) v. ) ) Civ. Action No. 08cv1900 (RJL) THE DISTRICT OF COLUMBIA, ) etal ) ) Defendant. )
~ MEMORANDUM OPINION (August ~ 2009) [Dkt. 22, 23, and 26]
The plaintiff, Andrew Marcus, brought this action against the District of Columbia
and various individuals alleging violations of his constitutional rights and the commission
of a number of common law torts. Three of the defendants, current or former MPD
officers Curtis Braxton, John Reasonover, and Diane Jackson, moved to dismiss each of
plaintiffs claims against them. For the reasons discussed below, these motions to dismiss
are GRANTED.
BACKGROUND
Marcus's complaint arises from events that took place on November 7,2007, at
Metropolitan Police Department ("MPD") headquarters. (CompI.,-r 16.) On that
afternoon, Marcus went to 301 C Street, N.W., in Washington, D.C., in the mistaken
belief that he was going to the Department of Motor Vehicles ("DMV"). (Jd.,-r 15-17.)
-1- When Marcus arrived, he approached the security table and told two privately employed
security guards, who are also defendants in this suit, that he was looking for the DMV.
(ld. ~ 16-17.) One of the two security guards ("the Guard") informed Marcus that he was
in fact at MPD headquarters, and not the DMV, at which point Marcus said "that moron
at the DMV sent me here." (ld. ~ 17.)
Marcus and the Guard continued their exchange for a short while before Marcus
asked to speak with the Guard's supervisor. (ld. ~ 18-20.) According to Marcus, the
Guard became rather angry at this request, refused to divulge the name of his supervisor,
shoved Marcus's briefcase and coat back into Marcus's arms, and told Marcus to leave.
(ld. ~ 21-22.) When Marcus didn't comply, the Guard allegedly restrained him by force
after spinning him around and pushing him once again. (ld., 23-24.)
At that point, defendants Reasonover and Jackson came along with one of the
other defendants in this case. I (ld., 24.) Seeing the confrontation in progress, they
placed Marcus in handcuffs. (ld.) Thereafter, Marcus was brought to a room inside MPD
headquarters, where he was detained for a short while in the custody of an MPD
detective-allegedly named Braxton-before being taken to George Washington University
Hospital to be treated for minor injuries. (ld., 27 -36.) From there, Marcus was taken to
a few lockup facilities around the District of Columbia, ultimately ending up at the
facility in the District of Columbia Superior Court. (ld., 37 -38.) In all, Marcus claims
I This defendant has not, as of yet, filed a motion to dismiss the plaintiff's against him.
-2- he was held for roughly 2S hours. (Id. ~ 40.)
On November 3, 200S, plaintiff filed this suit. On December 5, 200S, defendants
Braxton and Reasonover moved to dismiss all of plaintiff's claims against them;
defendant Jackson did the same on December 19, 200S. For the following reasons, the
Court GRANTS defendants Braxton, Reasonover, and Jackson's motions.
ANALYSIS
Defendants Braxton, Reasonover, and Jackson have moved under Federal Rule of
Civil Procedure 12(b)(6) to dismiss plaintiff's claims against them. Dismissal is
warranted under Rule 12(b)(6) ifit appears that, under any reasonable reading of the
complaint, there are no set of facts which could be proved to justify the relief sought. See
Conley v. Gibson, 355 U.S. 41, 45-46 (1977). Recently, the Supreme Court has held that
Rule 12(b)(6) requires dismissal if the complaint does not set forth "plausible" claims.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). The complaint must
contain "more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Id. at 555. "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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). To survive a motion
to dismiss, a plaintiff must allege facts "above the speculative level," Twombly, 550 U.S.
at 555, such that the facts, if taken as true, are "suggestive of illegal conduct." Id. at 564
n.S. Marcus has failed to do so here. How so?
-3- First, with respect to defendant Braxton, it has become clear in the course of the
parties' pleadings that he could not have been the officer identified in Marcus's complaint
as "Braxton." This is so because defendant Braxton retired from the MPD on June 9,
2007, and the incidents alleged in Marcus's complaint did not occur until November 7,
2007. (Braxton Mot. at 3.) Indeed, Marcus does not even dispute the mistaken identity of
defendant Braxton. 2 (PI. Opp'n to Braxton Mot. at 2.) Clearly, under prevailing pleading
standards, all claims against defendant Braxton must be dismissed because there is no
possibility that Braxton acted unlawfully towards Marcus. See Conley, 355 U.S. at 45-46.
Next, as to defendants Reasonover and Jackson, Marcus alleges six common law
tort claims and one count of deprivation of his civil rights in violation of 42 U.S.C. §
1983. The Court, of course, has discretionary jurisdiction over Marcus's pendent
common law tort claims (Counts I through VI) because these claims arise from the same
set of alleged facts as the federal § 1983 claim (Count VII). 28 U.S.C. § 1367(a) (2008).
As to Counts III, IV, and VI, these counts can be summarily dismissed because
they plainly lack any facts which might be "suggestive" of unlawful conduct by
Reasonover and Jackson. See Twombly, 550 U.S. at 564 n.8. According to Marcus,
Reasonover and Jackson did not arrive on the scene until his physical confrontation with
the Guard was already under way. (CompI.,-r 24.) Once on the scene, the only action
allegedly taken by Reasonover and Jackson was to place Marcus in handcuffs. (Id.)
2 The Court declines to consider the requests for relief included in plaintiff s opposition to Braxton's motion to dismiss because they are not raised in an appropriate fashion.
-4- Therefore, Count III, for malicious prosecution, fails because it does not allege any facts
to suggest Reasonover and Jackson acted with malice. 3 Similarly, Count IV, for abuse of
process, fails because it does not allege any facts to suggest Reasonover and Jackson
misused the judicial process. 4 Finally, Count VI, which alleges negligent hiring, training,
supervising, and/or retaining, fails because Marcus does not allege any facts suggesting
that Reasonover and Jackson were ever responsible for any of these functions. To say the
least, they cannot be held liable for breaching duties they did not have.
Next, with respect to Counts I, II, V, and VII, these counts must also be dismissed
because, even assuming Marcus's allegations to be true, the Court finds that Reasonover
and Jackson still had probable cause to arrest the plaintiff. How so? Probable cause
exists when "facts and circumstances within the officer's knowledge . .. are sufficient to
warrant a prudent person in believing that the suspect has committed, is committing, or is
about to commit an offense," United States v. Wesley, 293 F.3d 541, 545 (D.C. Cir. 2002)
(citations omitted) (emphasis added). Here, Marcus alleges that Reasonover and Jackson
arrived on the scene only after he was embroiled in a physical altercation with the security
guard tasked with safeguarding the entrance to MPD headquarters. Whether Marcus, or
3 See Tyler v. Central Charge Serv .. Inc., 444 A.2d 965, 968 (D.C. 1982) (noting that malice is an essential element of malicious prosecution).
4 See Scott v. District a/Columbia, 101 F.3d 748, 755 (D.C. Cir. 1996) ( "The essence of the tort of abuse of process is the use of the legal system 'to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be required to do. "') (quoting Bown v. Hamilton, 601 A.2d 1074,1079 (D.C. 1992)).
-5- the Guard, initiated the altercation is irrelevant here because Reasonover and Jackson did
not show up until after the altercation was already under way. Upon seeing the
confrontation unfold in police headquarters, they had every reason to believe Marcus was,
at the very least, committing disorderly conduct. 5
Given that probable cause existed for Marcus's arrest, and given that Marcus has
not alleged that Reasonover and Jackson used excessive force when they handcuffed him,
Count I, which alleges assault and battery, must be dismissed. See District o/Columbia v.
Chinn, 839 A.2d 701, 705 (D.C. 2003). Likewise, with respect to the false arrest claims
alleged in Counts II and VII,6 these too must fail in turn because such claims, whether
common law or constitutional, cannot proceed against police officers when the officers
acted with probable cause. See Pierson v. Ray, 386 U.S. 547, 555-557 (1967).
Finally, Count V, which alleges intentional infliction of emotional distress, must
also fail because Marcus's claim that Reasonover and Jackson were acting in a manner
"extreme" or "outrageous" when they arrested him is neither factually, nor legally,
supported by the record. Indeed, it is contradicted by this Court's conclusion that these
5 Disorderly conduct is defined by D.C. Code § 22-1321 (2001), which has been interpreted to proscribe conduct that "occur[ s] under circumstances such that a breach of peace may be occasioned thereby." Shepherd v. District o/Columbia, 929 A.2d 417, 418 (D.C. 2007) (quoting Chemalali v. District a/Columbia, 655 A.2d 1226, 1228 (D.C. 1995)).
6 Plaintiffs remaining claims under Count VII do not merit discussion because they are
not colorable. For the reasons discussed in this opinion, Marcus cannot make out common law claims for assault and battery, malicious prosecution, abuse of process, or intentional infliction of emotional distress; accordingly, he has no basis to frame the same allegations as constitutional tort claims.
-6- two officers had probable cause to arrest Marcus.
CONCLUSION
Thus, for all of the reasons stated above, the Court GRANTS the motions to
dismiss of defendants Braxton [Dkt. # 23], Reasonover [Dkt. # 22], and Jackson [Dkt. #
26]. An appropriate order will issue with this Memorandum Opinion. ,//t
~ RICHARD J. United States District Judge
-7-