UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MARK THORP,
Plaintiff, v. Civil Action No. 15-195 (JEB) THE DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
In a May 24, 2018, Opinion, this Court granted summary judgment to Defendants District
of Columbia and a police officer on claims arising from the search of Plaintiff Mark Thorp’s
home and the subsequent seizure of his Doberman Pinscher. In now seeking reconsideration,
Thorp contends that the Court committed numerous errors in its analysis of his constitutional and
common-law claims. Although Plaintiff spends thirty pages describing his many criticisms of
the prior Opinion’s findings (as well as launching a variety of ad hominem attacks on Defendants
and the Court), he demonstrates no cause for reconsideration under the requirements of Rule
59(e).
I. Background
Given that the Court has already described this suit at length in a couple of prior
Opinions, see Thorp v. D.C. (Thorp I), 142 F. Supp. 3d 132 (D.D.C. 2015); Thorp v. D.C. (Thorp
II), 2018 WL 2364291 (D.D.C. May 24, 2018), it will include only a brief summary of the facts
and procedural history below.
This case arose out of events that took place over three years ago, when Lieutenant
Ramey Kyle of the Metropolitan Police Department executed a search warrant of Plaintiff’s
1 home. Although the initial warrant was predicated on an allegation of animal cruelty committed
by Thorp against his dog, an inspection of his freezer during the search revealed substances that
tested positive for amphetamines. Following that discovery, Kyle sought an additional search
warrant and subsequently arrested Plaintiff on charges of animal cruelty and possession with
intent to distribute illegal drugs.
Aggrieved by the search of his home and the seizure of his dog, Thorp brought this suit
against the District and Kyle. See Thorp I, 142 F. Supp. 3d at 136-37. He filed his First
Amended Complaint on February 15, 2015, see ECF No. 12, and added a Second Amended
Complaint on July 13, 2015. See ECF No. 22 (Second Amended Complaint). That latter
Complaint, which remains the operative pleading in this case, originally advanced ten separate
counts under 42 U.S.C. §§ 1983, 1985 and the common law of the District of Columbia. Id., ¶¶
81-133. After Defendants subsequently moved to dismiss, see ECF Nos. 23, 24, 26, the Court
winnowed the claims to the following: Counts II and III against Kyle only, for limited Fourth
Amendment violations; Count IV against the District only, under D.C. law for negligent
supervision and retention; and Counts VIII and IX, consolidated into a single abuse-of-process
claim, against Kyle on a direct-liability theory and against the District on a vicarious-liability
theory. See Thorp I, 142 F. Supp. 3d at 149. Both sides subsequently filed cross-motions for
summary judgment and, on May 24, 2018, the Court granted Defendants’. See Thorp II, 2018
WL 2364291. The next month, Plaintiff filed the instant Motion for Reconsideration, which
Defendants subsequently opposed. See ECF Nos. 119 (Mot. for Recon.), 121 (Def. Opposition).
Although Plaintiff filed no reply, the Motion is ripe for review.
2 II. Legal Standard
Federal Rule of Civil Procedure 59(e) permits the filing of a motion to alter or amend a
judgment when such motion is filed within 28 days after the judgment’s entry. The Court must
apply a “stringent” standard when evaluating Rule 59(e) motions. See Ciralsky v. CIA, 355 F.3d
661, 673 (D.C. Cir. 2004). “A Rule 59(e) motion is discretionary and need not be granted unless
the district court finds that there is an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent manifest injustice.” Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal quotation marks and citation omitted);
see also 11 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 2810.1 at 158-62 (3d ed. 2012)
(stating that “four basic grounds” for Rule 59(e) motion are “manifest errors of law or fact,”
“newly discovered or previously unavailable evidence,” “prevent[ion of] manifest injustice,” and
“intervening change in controlling law”). Critically, Rule 59(e) “is not a vehicle to present a new
legal theory that was available prior to judgment.” Patton Boggs LLP v. Chevron Corp., 683
F.3d 397, 403 (D.C. Cir. 2012).
III. Analysis
In seeking reconsideration, Thorp launches a fusillade of attacks on the Court’s prior
Opinion. Although certain of his arguments are difficult to parse, the Court believes it most
efficient to begin with two threshold disputes – Thorp’s filing of depositions and the application
of qualified immunity with respect to Defendant Kyle – before moving on to Plaintiff’s more
specific grievances.
A. Depositions
Thorp’s Motion asserts that the Court improperly “proceed[ed] to judgment without at
least some effort to obtain [deposition] transcripts or even a cursory mention to the parties of
3 their absence.” Mot. at 6. The Court had noted in the prior Opinion that “Thorp does not attach
copies of the depositions to which he cites,” and that it was therefore “rely[ing], when available,
on the excerpts of those depositions provided by Defendants.” Thorp II, 2018 WL 2364291, at
*1. Thorp now claims that he “provided all deposition transcripts to this Court at the time of
filing Plaintiff’s summary judgment motion,” Mot. at 2, attaching as proof Postal Service records
demonstrating that a compact disk was sent to chambers. See Mot., Exhs. 2 (Shipping Label
Receipt); 3 (Package Tracking Printout). He also notes that his “forty-five-page memorandum in
support of the Motion for Summary Judgment contained over four hundred lines of deposition
excerpts,” Mot. at 6, a fact he asserts should have put the Court on notice of the need to procure
the depositions, regardless of whether it in fact received the CD allegedly containing such
materials. The District responds that none of Thorp’s arguments related to the depositions
justifies reconsideration, as “Defendants’ briefing engaged with all the lines plaintiff cited, filed
or not,” and that they “prevailed because the record supported their position, not because of
Plaintiff’s clerical errors.” Opp. at 4-5.
The Court agrees with the District. It first notes that while Thorp’s printout of the
package tracking may state “delivered,” no compact disk of depositions ever made its way to
chambers. The Court need not linger here because any delivery failure is of no moment. The
Court was able to review all relevant depositions either by relying on Thorp’s admittedly
voluminous in-text quotations or, where available, by looking to Defendants’ exhibits. To the
extent Plaintiff meant to rely on other portions of the depositions existing on the elusive CD, it
was his obligation to have cited them during briefing. See Jackson v. Finnegan, Henderson,
Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (“[A] district court should not
be obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in
4 order to make [its] own analysis and determination of” the disputed claims). It was no “clear
error” or “manifest injustice” for the Court to consider only those excerpts of the depositions
relied upon and cited by Plaintiff – whether the source of such materials came from his own
filings or Defendants’ exhibits.
B. Qualified Immunity
Thorp next sets his sights on the qualified-immunity analysis in the prior Opinion. He
asserts that the Court improperly granted such immunity to Defendant Kyle because
“government officials are not entitled to [this] immunity for intentional constitutional violations”
and because the “Court improperly usurp[ed] the duty of the jury to determine probable cause
and the reasonableness of Kyle’s actions.” Mot. at 6-7, 12 n.4. The District retorts that such
arguments are merely a rehashing of those in Plaintiff’s motion for partial summary judgment,
and, “[t]o the extent [he] raises new arguments . . . in discussing qualified immunity[,] . . . those
arguments do not warrant the Court’s consideration both because they are unavailing . . . and
because they ‘could have been raised prior to the entry of judgment.’” Opp. at 2-3.
Turning first to the proper role of the Court, the D.C. Circuit has explained that “whether
an objectively reasonable officer would have believed his conduct to be lawful” – i.e., whether
he is entitled to qualified immunity – “is a question of law that must be resolved by the court, not
the jury.” Pitt v. District of Columbia, 491 F.3d 494, 509-10 (D.C. Cir. 2007) (emphasis added).
It is thus clear that there was no improper “usurpation” in the Court’s determining whether Kyle
was entitled to such a defense.
Nor was there any error in the Court’s analysis of the qualified-immunity doctrine under
an objective standard. As was stated in the prior Opinion, “[Q]ualified immunity does not turn
on whether an officer is motivated by good intentions or malice.” Thorp II, 2018 WL 2364291,
5 at *8 (quoting Messerschmidt v. Millender, 565 U.S. 535, 571 (2012)); see also Crawford–El v.
Briton, 523 U.S. 574, 588 (1998) (“[A] defense of qualified immunity may not be rebutted by
evidence that the defendant's conduct was malicious or otherwise improperly motivated.
Evidence concerning the defendant's subjective intent is simply irrelevant to that defense.”).
Thorp’s continued emphasis on Kyle’s motivation is therefore not germane to the application of
qualified immunity.
The Court notes, moreover, that the myriad citations in Plaintiff’s Motion do nothing to
rebut this point; indeed, one of his referenced cases supports the objective analysis of the prior
Opinion. Thorp’s reliance on Harlow v. Fitzgerald, 457 U.S. 800 (1982), in fact, is misplaced to
the point of being disingenuous. Plaintiff quotes language from the case stating that qualified
immunity may be defeated if an 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 action with the malicious intention to cause a deprivation of
constitutional rights.” Mot. at 7 (quoting Harlow, 457 U.S. at 815). Pointing to the latter,
subjective inquiry, Thorp asserts that Kyle’s allegedly malicious actions should therefore deprive
him of a qualified-immunity defense. Yet Plaintiff conveniently omits the fact that, only
paragraphs later, the court in Harlow in fact overruled the use of “subjective” inquiries in
qualified-immunity analysis – including “allegations of malice.” 457 U.S. at 817-19. The case
went on to hold that qualified immunity should instead rely on “the objective reasonableness of
an official’s conduct, as measured by reference to clearly established law.” Id. at 818 (emphasis
added). This is the standard the Court applied in the prior Opinion, and although Plaintiff may
wish otherwise, it is the law.
6 C. § 1983 Claims
In the prior Opinion, the Court granted summary judgment for Defendants on each of
Plaintiff’s Fourth Amendment claims brought against Kyle. See Thorp II, 2018 WL 2364291, at
*4. Thorp now alleges a series of errors in that analysis, none of which gives the Court reason to
reconsider its previous determinations.
1. Issuance of First Warrant
Thorp begins by protesting the Court’s finding that the application for the first warrant
presented by MPD did not violate his Fourth Amendment rights. See Mot. at 8-10. The prior
Opinion concluded that his claims against Kyle based on the warrant’s procurement could not go
forward, as that officer played “no role in preparing or submitting the warrant for judicial
approval.” Thorp II, 2018 WL 2364291, at *5. Perhaps finally recognizing that Kyle cannot be
held accountable for the alleged shortcomings in the warrant’s issuance, Thorp now pivots to pin
the blame on various other entities, including the Humane Society officers and the District itself.
He alleges that the Court erred in upholding the issuance of the warrant because the observations
of the Humane Society officers did not support probable cause and because such officers were
permitted by Defendants to “obtain a warrant without any police oversight whatsoever.” Mot. at
11-12. These assertions are unavailing.
First, this count in its current incarnation is asserted only against Kyle, see Thorp I, 142
F. Supp. 3d at 139–40, so any allegedly improper oversight or Monell claim against the District
no longer exists. Second, even if other officers were Defendants, the Court has already
addressed the issue of probable cause in depth, and Thorp identifies no clear error, change in
law, or new evidence that would compel revisiting its earlier findings. See Thorp II, 2018 WL
2364291, at *6 (concluding that observations of officers and other facts underlying first warrant
7 application “certainly provide probable cause”). In fact, the Court has already rejected the basis
of Plaintiff’s renewed attack on the authority of the humane officers, finding that “the D.C. Code
clearly authorizes ‘any humane officer’ to obtain a search warrant when she has ‘reasonable
cause to believe[] that the laws in relation to cruelty to animals have been or are being violated in
any particular building or place.” Id. (quoting D.C. Code § 22-1005). Plaintiff’s attempts to re-
argue these issues in the form of a Motion for Reconsideration finds no purchase here. Although
he may find it “difficult to imagine in our modern age a more vivid example of a deliberate
indifference to a citizen’s civil rights” than humane officers’ obtaining search warrants, see Mot.
at 14, the Court has already made clear that such hyperbole is no substitute for a viable legal
claim.
2. Execution of First Warrant
Thorp next disputes the Court’s treatment of the execution of the first warrant, arguing
that the prior Opinion erroneously awarded Kyle qualified immunity on the related claims.
Plaintiff contends that the officer is entitled to no such defense, as his search went beyond the
bounds of the warrant by proceeding “once the dog was located and it was determined that it was
not injured or abused.” Mot. at 8. He asserts that “Kyle and the other officers . . . were
repeatedly told that they could not” continue with the search, and that they persisted because they
were “intent on violating [Thorp’s] Fourth Amendment rights by proceeding with a search which
had long concluded.” Id. at 10.
The Court need not engage at length with this issue, as it thoroughly analyzed the
execution of the warrant in the prior Opinion. First, Plaintiff’s assertion that the Court failed to
address the “admonition . . . that once what is being searched for is found, the search must end,”
Mot. at 10, ignores the Court’s analysis of the plain text of the warrant. That document allowed
8 “officers [to] search anywhere they might find, for instance, a ‘dead’ animal or additional
‘bowls’ of dog food.” Thorp II, 2018 WL 2364291, at *7. The freezer, the Court concluded,
“was once such place.” Id. Although the Opinion allowed that “[p]erhaps the warrant went too
far in so authorizing” the officers, this observation does not change Kyle’s entitlement to
qualified immunity. As the Court concluded, “[A] reasonable officer” in Kyle’s position “could
have believed that the warrant application was valid,” and thus “should not be held personally
liable” for the concomitant search for any “evidence of animal cruelty.” Id. at *5, 7.
Thorp additionally alleges that the freezer should have been off limits because the
humane officers did not think “it was good idea to enter the Plaintiff’s freezer.” Mot. at 9. Yet
the Court already established that whether or not the humane officers believed that searching the
freezer was a “priority,” such conduct was permitted under the plain terms of the warrant and
was thus reasonable for an officer in Kyle’s position to pursue. See Thorp II, 2018 WL 2364291,
at *7-8. Finally, to the extent that Plaintiff renews his claims regarding Kyle’s “subjective
intent,” Mot. at 10, the Court has already explained that such allegations are immaterial to the
application of qualified immunity. See Thorp II, 2018 WL 2364291, at *8. In sum, Plaintiff
raises no clear error, new evidence, or other justification under Rule 59(e) to cause the Court to
reconsider its prior analysis of the search conducted pursuant to the first warrant.
3. Sufficiency of Second Warrant
Plaintiff next targets the Court’s assessment of the second warrant, which was obtained
after Kyle recognized the capsules contained in Thorp’s freezer as the drug MDMA. According
to Plaintiff, “[T]he purported sight of capsules in the Plaintiff’s freezer, after already observing a
multitude of prescription bottles with [his] name upon the prescription labels in plain view, could
not create probable cause for yet another warrantless search.” Mot. at 20. The Court, once more,
9 disagrees. It has already concluded that it was at least reasonable for Kyle to believe he had
probable cause to procure the second warrant, as the officer “appropriately relied on his
‘training’ to recognize” the drugs and, assuming he did in fact notice Thorp’s prescriptions,
could have “readily distinguished” between those medications and the capsules found in the
freezer. See Thorp II, 2018 WL 2364291, at *9-10. Thorp’s Motion provides no cause for the
Court to revisit those findings.
So, too, with Kyle’s decision to conduct a field test of the suspected drugs before
obtaining the second warrant. Plaintiff accuses the Court of “sidestep[ping] yet another critical
issue in this case” – namely, why Kyle should not be held liable for “breaking open capsules
which so obviously did not contain the items enumerated in the first warrant.” Mot. at 21. Far
from ignoring this question, however, the Court already answered it with five paragraphs of
analysis in the prior Opinion. After addressing Thorp’s assertions regarding the field test, the
Court concluded that Kyle was entitled to qualified immunity, as “the existing precedent” on the
issue of warrantless field tests “supported Kyle’s” decision. See Thorp II, 2018 WL 2364291 at
*11. The precedent has not changed in the two months since the Opinion issued, and neither has
the Court’s conclusion that Kyle’s field test did not violate clearly established “constitutional
rights of which a reasonable person would have known.” Id. at *10 (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)).
Thorp next contends that the importance of Defendants’ alleged “withholding of
photographic evidence . . .elude[d] the grasp of the Court.” Mot. at 22. He asserts that “what
was intended to be demonstrated by the Plaintiff at trial” was that the plastic bag seen in one
photo was “folded in a manner to fit inside the green box immediately next to it.” Id. It is
therefore his position “that not only did Kyle enter the freezer without authority, [but] he opened
10 the green box to remove the baggie from it.” Id. Plaintiff now seemingly claims that when Kyle
opened the freezer, the pills were not in fact in plain sight, therefore calling into question the
basis of the field test and the second warrant.
It is perhaps not surprising that the Court did not “grasp” this argument, as it was never
previously made. Thorp’s “green-box theory” did not appear in his briefing, he explains,
because he “intended to reserve” this point “for trial,” having “not anticipated” the “wholesale
condemnation of his entire case by the Court.” Mot. at 22 n.5. Of course, summary judgment
could never be granted if a party were permitted to keep certain evidence and argument under
wraps for trial without penalty. Whatever Plaintiff’s beliefs regarding the strength of his case, it
was his burden to vigorously oppose the District’s Motion for Summary Judgment – a motion
that could naturally result in the “wholescale” termination of his case. To the extent Thorp
decided not to raise material disputes of fact in the hopes of a trial surprise, he ran the risk that
his case would never actually make it that far.
4. Animal Cruelty
In addition to attacking the Court’s analysis of the first and second warrants, Thorp once
more contests his alleged charge of animal cruelty and the seizure of his Doberman Pinscher,
Vaughn. He asserts that the Court improperly granted Kyle qualified immunity, as the officer
arrested him “without any suggestion of” the “element of intent for the offense of cruelty to
animals.” Mot. at 26. The Court already disposed of this issue, however, when it found that
“[g]iven that [his] arrest was ‘legally justified’ on [the] ground” of the charges for possession
with intent to distribute, it was not required to “decide whether [Kyle] independently had
probable cause to arrest Thorp on grounds of animal cruelty.” Thorp II, 2018 WL 2364291, at
*11.
11 As to the seizure of Vaughn, the Court acknowledged that the Humane Society would
have had “little reason to keep the Doberman” after Plaintiff’s release “but for the animal-cruelty
charges.” Id. In his Motion, Thorp accuses the Court of “conveniently feign[ing] ignorance” as
to the timing of his release, asserting that it should have been apparent that this occurred within
14 days and that he was thus entitled to the return of his pet. See Mot. at 23. The Court, on the
contrary, “assum[ed] he was released within 14 days” and analyzed the issue of the dog’s seizure
accordingly. See Thorp II, 2018 WL 2364291, at *11 (emphasis added).
The Court sees no reason to reconsider its prior determination that Kyle was entitled to
qualified immunity for charging Thorp with animal cruelty and the related seizure of the dog. As
the previous Opinion held, the officer believed that Plaintiff had “forcefully struck” his dog and
that a warrant had been issued to search his home for evidence of animal cruelty. Id. at *12.
Regardless of the fact that “the search did not unearth any new evidence of animal cruelty,” the
Court concluded that “a reasonable officer could assume that there were still sufficient grounds
for” the animal-cruelty charge underlying the seizure of Vaughn. Id. Plaintiff’s Motion does
not cause the Court to doubt that conclusion, and it thus finds that Thorp’s dog-related arguments
are all bark, no bite.
B. Seizure and Damage Claims
1. Seizure of Currency
Thorp next disputes the Court’s analysis of his claims regarding the allegedly unlawful
seizure of $53,326 in cash from his home. See Mot. 15-17. The prior Opinion noted that the
District had “returned the funds” and found that “what remains of this controversy (if anything)
[was] not properly before the Court,” as Plaintiff had failed to properly allege any such claim in
his Complaint. Thorp II, 2018 WL 2364291, at *12. The Court noted that although it had denied
12 Thorp’s attempt to file a supplemental complaint with claims related to the cash, it had offered
him “multiple invitations . . . to amend his Complaint with such allegations.” Id. at *13
(emphasis added). Thorp declined to do so, and the Court concluded that his operative pleading
did not articulate a claim with respect to the seizure of the funds. Id.
Thorp’s Motion asserts that “[t]he Court now appears to blame the Plaintiff for some sort
of inaction” with respect to adding the cash-seizure claims, and that it “violates Rule 15 by again
not accepting” his evidence and not “freely permitting an amendment” of his operative pleading.
See Mot. at 16. The Court does indeed hold Plaintiff accountable for his failure to amend his
Complaint. It has twice explained the distinction between supplementing and amending a
complaint and the reason why Thorp’s attempt to add “allegations and causes of action related to
Defendants’ alleged seizure of $53,326” had to be be pursued via the latter route. See Min.
Order of Dec. 15, 2015; ECF No. 49 (Memorandum Opinion of Apr. 12, 2016) (“The Court’s
instructions to Plaintiff regarding any Rule 15(d) motions could not have been clearer: a
supplemental pleading may be filed only if it is limited to allegations about facts that occurred
after the filing of the Second Amended Complaint in July 2015.”). It twice offered him
opportunities to amend, see id., noting that it remained a “mystery” as to why he continued to
take the position that “all of his new allegations” could be joined instead via supplementation.
See Mem. Op. of Apr. 12, 2016, at 10. Thorp’s contention that the Court “violate[d] Rule 15” by
not permitting “amendment” holds little water given that, after all the Court’s guidance, no
motion to amend was ever filed.
Trying a different tack, Thorp now also asserts that he did in fact raise the unlawful-
seizure allegations in his Second Amended Complaint. See Mot. at 17. This argument rings
hollow, however, in light of his repeated efforts to supplement that pleading to add allegations
13 regarding the funds. As the Court noted two and a half years ago in Thorp I, Plaintiff’s Second
Amended Complaint never mentioned the $53,326, nor did it tether his vague references to “cash
receipts” to any specific claim. See Thorp I, 142 F. Supp. 3d at 148; SAC, ¶¶ 62-63. It was not
until his attempt to supplement that pleading that he asserted any specific facts or claims
regarding the cash, showing that he was aware of the need to correct the deficiency in his
Complaint. See ECF No. 33 (Mot. to Supp. Compl.). The Court, accordingly, sees no need to
revise its prior conclusion that any dispute related to the funds is beyond the scope of this suit.
Thorp’s Motion, moreover, does not address the fact that he has not sufficiently
established any injury resulting from the District’s seizure of the funds pursuant to the second
warrant. Plaintiff states only that he “sustained [a] due process violation,” Mot. at 17, yet the
Court explained in Thorp I that his unlawful-seizure allegations were not actionable under the
Fifth Amendment, as “[his] property was seized during a pretrial search,” and “complaint of that
seizure [thus] sounds in the Fourth Amendment.” Thorp I, 142 F. Supp. 3d at 140. While
Thorp’s Second Amended Complaint may have made a passing mention of “cash receipts” and
his (long-ago dismissed) “Deprivation of Property Interest” count alleged that he “suffered . . .
financial damages by deprivation of . . . funds intended to be used to renovate his real estate
rental property,” see SAC, ¶¶ 62, 87, he provides no record evidence of any harm ensuing from
the seizure – especially now that the money has been returned. Even in a world in which his
cash-seizure claims had been properly presented, they thus would not have survived summary
judgment.
2. Property Damage
In a similar vein, Thorp also contests the Court’s treatment of his property-damage
claims. Because his briefing “inadequately addresse[d] any claim related to property damage,”
14 the Court previously declined to address the matter. Thorp II, 2018 WL 2364291, at *12.
Plaintiff now contends that the prior Opinion erred by finding that he failed to “press a
challenge” that “both the first and second warrants may have been executed improperly, such
that his property was damaged.” Id. He asserts that he did not oppose Defendants’ Motion for
Summary Judgment on the property-damage claims because he was unable to “address[] all
issues” in his briefing, a shortcoming he attributes to “the Court’s 45 page limitation.” Mot. at
27. Thorp therefore argues that, regardless of his briefing, the Court should have deemed the
property-damage issue “entirely appropriate for trial.” Id.
The Court disagrees. In its Motion for Summary Judgment, the District alleged that
Plaintiff had “provide[ed] no evidence of deliberate or inappropriate property damage exceeding
the scope of the searches.” Def. MSJ at 24. In his Opposition, Thorp declined to point to any
record evidence or to make any legal arguments disputing this point, other than a stray statement
that he could “testify to the damage of his home.” Pl. Reply at 3. He made no assertions,
moreover, as to whether any such damage was intentional or excessive, and the Court therefore
found no “material dispute of fact” on that point. Because Thorp articulated no opposition to
Defendant’s arguments on this issue, the Court once more concludes that summary judgment was
appropriate.
D. State-Law Claims
1. Negligent Supervision
Thorp concludes his Motion by turning to the Court’s analysis of his state-law claims.
First, he alleges that the Opinion improperly analyzed his negligent-supervision count as a matter
of state law, instead of as a “cause of action under § 1983 as intended.” Mot. at 28. Plaintiff
15 argues that the Court could, and should, have treated his negligent supervision/negligent
retention claims as “Monell liability causes of action.” Id.
Yet it already did so. As it stated in Thorp I, “[I]t is unclear whether Thorp intends to
plead a common-law or constitutional claim in [Count IV], but the Court will give him the
benefit of the doubt by considering both.” 142 F. Supp. 3d at 139. The Opinion then went on to
explain why the negligent-supervision allegations could not proceed as constitutional claims,
finding that “while [the count] recites some of the elements of Monell liability[,] . . . it is
unaccompanied by any specific factual allegations . . . about how MPD came to know or should
have known” about Kyle’s allegedly unlawful searches. Id. Because Thorp’s Second Amended
Complaint did not sufficiently meet this pleading standard, the Court dismissed the negligent-
supervision count as “insufficient under § 1983” and allowed only his common-law negligent-
supervision claim to proceed. Id. at 140.
In Thorp II, the Court analyzed the merits of this remaining, common-law cause of action
under Count IV. It concluded that Plaintiff had once more failed to “establish the District’s
liability,” as “Kyle’s mere proximity to two allegedly unconstitutional searches – nearly eight
years before the alleged incident – does not constitute a pattern of ‘dangerous or otherwise
incompetent’ behavior for which the District can be held responsible.” Thorp II, 2018 WL
2364291, at *13-14. While Thorp may disagree with this characterization of Kyle’s past
conduct, it remains the conclusion of the Court that Plaintiff failed to proffer evidence sufficient
to support a claim against the District for negligent supervision or retention. Thorp’s new
protestations that the District is liable for failing to supervise and train the humane officers who
obtained the warrant, see Mot. at 12-14, fall similarly short. While Plaintiff brought a negligent-
16 supervision claim against the District for failure to supervise Kyle, his Complaint never alleges
any failure of oversight with respect to the humane officers. See Compl., ¶¶ 102-107.
To the extent that Thorp now accuses the Court of “usurp[ing] the function of the jury to
determine whether the District of Columbia knew or should have known its employee behaved in
a dangerous or otherwise incompetent manner, and that the employer, armed with that actual or
constructive knowledge, failed to adequately supervise the employee,” Mot. at 28, the Court
clarifies that no reasonable jury could find that the record evidence regarding Kyle’s past acts
supports holding the District liable in this case. See Rawlings v. D.C., 820 F. Supp. 2d 92, 116
(D.D.C. 2011) (granting summary judgment for District when Plaintiff failed to provide
“sufficient evidence upon which a jury could reasonably hold the District of Columbia liable”
under common-law claim for negligent training and supervision).
2. Abuse of Process
Thorp turns his final criticism to the Court’s treatment of his abuse-of-process claims.
He contends that it “incorrectly characterizes what process Kyle has abused,” now alleging that
the officer “presented, or caused to be presented a criminal complaint and initiated a civil
forfeiture process,” and that “[s]olely as a result of Kyle’s judicial actions, the Plaintiff lost his
freedom, his dog, and his currency.” Mot. at 29-30. It is perhaps not surprising that the Court
did not consider such “judicial actions” in the prior Opinion, as they are nowhere to be found in
Thorp’s operative Complaint. Instead, the two counts of abuse of process included in that
pleading are both predicated on Kyle’s “arresting the Plaintiff and seizing his property.” SAC,
¶¶ 125, 129.
As the Court explained in the prior Opinion, neither of these actions can “properly form
the basis of an abuse-of-process claim.” Thorp II, 2018 WL 2364291, at *14. Noting that Thorp
17 had “shift[ed] gears” in his briefing to include other theories of abuse of process, the Court
nonetheless considered Plaintiffs’ arguments that Kyle had improperly applied for the search
warrants and that the District should be held vicariously liable for the acts of two other officers
involved in the search. Id. at * 14-15. Finding that neither contention provided any basis to hold
the Kyle or the city liable, the Court granted summary judgment for Defendants. It is true that
the Opinion did not discuss any “criminal complaint” or “civil forfeiture process,” but that is
hardly the result of any “incorrect characteriz[ation]” of Plaintiff’s claims, given that such
allegations were entirely absent from his Complaint or summary-judgment briefing. It is not the
function of the Court to engage in speculation or prophecy as to potential bases for claims of
relief; if Thorp intended to allege that Kyle’s “judicial actions” provided grounds for the abuse-
of-process counts, he could have so pleaded. As he did not, the Court finds that there is no basis
for reconsideration under Rule 59 on this issue.
IV. Conclusion
For the foregoing reasons, the Court will deny Plaintiff’s Motion for Reconsideration.
The Court will issue a contemporaneous Order to that effect this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge
Date: July 30, 2018