UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RUTH E. RICHARDS,

Plaintiff,

v. Civil Action No. 16-1002 (JDB)

METROPOLITAN POLICE 

DEPARTMENT OFFICER JENNIFER 

GELSOMINO,

 Defendant.

MEMORANDUM OPINION & ORDER

In this action brought pursuant to 42 U.S.C. § 1983, plaintiff Ruth Richards alleges that 

she was arrested by Metropolitan Police Department Officer Jennifer Gelsomino without probable 

cause and because of her race and national origin, in violation of the Fourth and Fifth Amendments. 

Gelsomino has moved to dismiss, arguing that she is entitled to qualified immunity from Richards’ 

Fourth Amendment claim and that Richards’ complaint fails to state a claim under the Fifth 

Amendment. For the reasons explained below, the Court disagrees. Gelsomino’s motion to 

dismiss will therefore be denied. 

BACKGROUND

The following account is taken from Ms. Richards’ complaint. Ms. Richards is a 56-year 

old United States citizen. She is black, was born in Jamaica, and speaks with a Jamaican accent. 

Compl. [ECF No. 1] ¶¶ 13, 20. In May 2013, she was walking to a friend’s house when she saw 

her ex-husband, George Richards, driving down the street. Id. ¶ 16. Mr. Richards pulled his car 

alongside Ms. Richards and got out. Id. ¶ 17. So did a passenger, Sharniesha Grady, and Ms. 

Grady’s child. Id. Ms. Richards thought that Ms. Grady appeared to be more than 30 years 
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younger than Mr. Richards. Id. According to the complaint, Mr. Richards then “assaulted Ms. 

Richards in the face, and the two had a heated argument.” Id. ¶ 18. A neighbor witnessed the 

assault, but was unable to hear the argument. Id. ¶ 19. After telling Mr. Richards that she would 

call the police, Ms. Richards left the intersection where the alleged assault occurred and entered 

the house of Eva Wood, who is Mr. Richards’ mother. Id. ¶ 21. Mr. Richards, Ms. Grady, and 

Ms. Grady’s child entered Grady’s house, which is next door to Ms. Wood’s. Id. ¶ 22. From her 

home, Ms. Grady placed a number of calls to 911. Id. ¶ 24. Officer Gelsomino and another officer 

soon arrived in separate police cars. Id. ¶ 23. Gelsomino exited her car and went to speak with 

Mr. Richards and Ms. Grady. Id. ¶¶ 23, 27. The other officer spoke with Ms. Richards and Ms. 

Wood, who informed the officer about the alleged assault and other occasions on which Mr. 

Richards had allegedly behaved violently. Id. ¶ 26. 

The situation escalated, however, as Gelsomino approached the porch where Ms. Richards 

and Ms. Woods were sitting. Requesting that Ms. Richards step off the porch, Gelsomino asked 

her: “Where were you born?” Id. ¶ 28. Ms. Richards responded “I am an American citizen.” Id. 

Unsatisfied with Ms. Richards’ answer, Gelsomino repeated her question. Id. When Ms. Richards 

responded that she was born in Jamaica, Gelsomino placed her in handcuffs and under arrest 

without asking any further questions. Id. ¶ 29. Both Ms. Richards and Ms. Wood asked why Ms. 

Richards was being arrested; Ms. Richards pointed out that she had been the victim of an assault 

by her ex-husband. Id. ¶ 30. But Gelsomino still provided no explanation for the arrest. Id. 

Instead, she asked whether there were any witnesses to the alleged assault. Id. ¶ 31. Told that 

there were, just two houses down the street, Gelsomino refused to seek them out, saying “I’m not 

going down there.” Id. ¶ 32. As Gelsomino was leading Ms. Richards to the police car, however, 

one such witness came to the scene. Id. ¶ 32. This witness indicated that she had seen the 
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altercation and that Ms. Richards had indeed been assaulted by her ex-husband. Id. In light of this 

new information, the officers placed Mr. Richards under arrest as well but did not release Ms. 

Richards. Id. Ms. Richards was held at the police station for 19 hours, without being offered food, 

provided with her prescription medications, or allowed to report her arrest to her attorney or family. 

See id. ¶¶ 3, 33–37. She was ultimately released—without being charged or told why she had been 

arrested in the first place. Id. ¶ 36. 

After being released, Ms. Richards filed a formal complaint with the Office of Police 

Complaints (OPC). Id. ¶ 38. The OPC process culminated with a written decision by an 

independent complaint examiner, who found in favor of Ms. Richards on her harassment and 

discrimination allegations. See id. ¶¶ 39–40. Specifically, the examiner concluded that Gelsomino 

lacked probable cause to believe that Ms. Richards had committed an intra-family offense 

involving a threat, see id. ¶ 42; see also D.C. Code § 16-1031(a)(2); that Gelsomino failed to take 

the procedural steps necessary to support a warrantless arrest, see id. ¶ 43; and that Gelsomino 

discriminated against Ms. Richards based on her national origin, see id. ¶ 45. Ms. Richards quotes 

these conclusions in her complaint in this case. 

That complaint alleges that Gelsomino, while acting under color of state law, violated the 

Fourth and Fifth Amendments by arresting Ms. Richards without probable cause and because of 

her race and national origin. See 42 U.S.C. § 1983; Compl. ¶¶ 56, 69. Richards (hereinafter

referring to Ms. Richards, unless otherwise specified) has also attached the examiner’s full merits 

decision to her complaint. See OPC Merits Determination [ECF No. 1-4]. The examiner’s

decision, however, includes some factual information that Richards’ complaint does not. For 

example, the examiner found that Grady had reported to the 911 operator that Richards “was 

talking loudly and making threats in front of her neighbors.” Id. at 2. The examiner also noted
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Grady’s allegation that, in connection with the altercation at the center of this case, Richards had 

“approached [Grady] in front of her home aggressively and said ‘Bitch, I’ll smack you.’” Id. 

According to the examiner, Gelsomino included this statement in the arrest report. Id. 

Gelsomino now moves to dismiss. See Def.’s Mot. to Dismiss [ECF No. 14]. Relying on 

Grady’s allegations as summarized in the examiner’s decision, Gelsomino argues that she is 

entitled to qualified immunity from Richards’ Fourth Amendment claim because the arrest was 

supported by probable cause. She also argues that Richards’ complaint fails to state a claim under 

the Fifth Amendment. 

LEGAL STANDARD

In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court 

must presume the truth of a complaint’s factual allegations, although it is “not bound to accept as 

true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555 (2007) (internal quotation marks omitted). The court then asks whether the facts alleged 

suffice “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (internal quotation marks omitted). On a motion to dismiss, the court may generally 

consider “facts alleged in the complaint, any documents either attached to or incorporated in the 

complaint and matters of which [the court] may take judicial notice.” Mpoy v. Rhee, 758 F.3d 

285, 291 n.1 (D.C. Cir. 2014) (internal quotation marks omitted).

ANALYSIS

The first task in this case is to identify the set of factual allegations that must be taken as 

true for purposes of Gelsomino’s motion to dismiss. Gelsomino argues that, by attaching the 

examiner’s decision to her complaint, Richards has incorporated all of its factual content into her 

complaint, thus allowing the Court to accept all that as true. See Def.’s Reply [ECF No. 17] at 1–
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2. As a result, Gelsomino argues, the Court should consider Grady’s account—that Richards “was 

talking loudly and making threats,” including a threat to “smack” Grady—as it is set out in the 

examiner’s decision. Richards, of course, disagrees. She asks the Court to disregard these alleged 

statements for present purposes, because she has “never asserted or accepted” them as true. Pl.’s 

Opp’n [ECF No. 16] at 9. 

Federal Rule of Civil Procedure 10(c) permits a plaintiff to attach an exhibit to her 

complaint, thus making the exhibit “a part of the pleading for all purposes.” But, as the D.C. 

Circuit has recently observed, the “incorporation by reference doctrine has limits.” Banneker 

Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015). Indeed, several circuits “have 

rejected the ‘fantastic argument’ that ‘all facts contained in any attachments to a complaint are 

automatically deemed facts alleged as part of the complaint.’” Id. (quoting Carroll v. Yates, 362 

F.3d 984, 986 (7th Cir. 2004)). “Rule 10(c) ‘does not require a plaintiff to adopt every word within 

the exhibits as true for purposes of pleading simply because the documents were attached to the 

complaint to support an alleged fact.’” Id. (quoting N. Ind. Gun & Outdoor Shows, Inc. v. City of 

South Bend, 163 F.3d 449, 454–56 (7th Cir. 1998)). When considering what facts to accept as 

true, therefore, “it is necessary to consider why a plaintiff attached the documents, who authored 

the documents, and the reliability of the documents.” Id. at 412–13 (internal quotation marks 

omitted); accord Goines v. Valley Comm. Servs. Bd., 822 F.3d 159, 167 (4th Cir. 2016). 

Richards’ complaint walks a fine line when using the examiner’s decision. On the one 

hand, she plainly wants to make the Court aware of the examiner’s conclusions, which she believes

“support” her constitutional claims. Compl. ¶ 6. She also wants the Court to know that the 

examiner reached her conclusions after a “full investigation” of the facts, including conducting 

interviews and gathering evidence. Id. ¶ 5; see also id. ¶¶ 39, 59, 72. But that does not mean that 
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Richards has implicitly adopted all of the decision’s factual content into her complaint. Richards’ 

view of the arrest, and her related allegations, are the foundation of her complaint—“no portion of 

any of [her] claims is dependent upon the truth of any statements contained in” the examiner’s 

decision. Goines, 822 F.3d at 168. Richards comes closest to relying on the decision’s factual 

content when she quotes sections referring to Grady’s account of the incident, including the alleged 

threats that Gelsomino now seeks to rely on in support of a finding of probable cause. See, e.g., 

Compl. ¶ 54 (“The OPC also finds that ‘the circumstantial evidence illustrates Ms. Grady herself 

was not particularly concerned about the words that had been uttered, such that Officer 

Gelsomino’s assessment of having probable cause to arrest for an intrafamily offense involving a 

threat is not reasonable.’” (brackets omitted) (first emphasis added)); id. (“The OPC explains that 

Ms. Grady was ‘quite calm’ on the 911 recording in asking how the officer was and in saying that 

it was not an emergency.” (emphasis added)). 

But in the Court’s view, Richards’ complaint stops well short of incorporating the 

statements in the examiner’s decision themselves. These paragraphs of Richards’ complaint are 

best read as a “preemptive acknowledgement of the defense” case—i.e., Richards is noting that, 

even if she did threaten to “smack” Grady, and even if Grady did report that threat to the 911 

dispatcher and to Gelsomino, the examiner still concluded that Richards’ arrest was discriminatory 

and unsupported by probable cause. See Goines, 822 F.3d at 169–70. This “may be unusual as a 

matter of pleading style,” but it does not “support a Rule 12(b)(6) dismissal in the face of disputed 

facts.” Id. at 170. And here, the relevant facts are indeed disputed. Richards claims that she never 

threatened to “smack” Grady at all. Pl.’s Opp’n at 12. Grady’s contrary allegation—apparently

conveyed to the 911 dispatcher and to Gelsomino, who apparently also included it in her arrest 

report—is the foundation of Gelsomino’s motion to dismiss. See OPC Merits Determination at 2. 
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The examiner’s decision, which was reached without the benefit of a statement from Gelsomino 

herself, is the Court’s only window into these conversations. Id. at 4. The 911 call and the arrest 

report are not a part of the record. Thus, the Court has little ability to resolve this factual dispute, 

and a motion to dismiss is not the proper vehicle for doing so in any event (indeed, ultimately it 

may not even be the Court’s role to do so). In the analysis below, the Court will accept as true the 

allegations in Richards’ complaint and give her “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 omitted). Here, that means rejecting Gelsomino’s 

invitation to rely on factual information contained in the examiner’s decision but not also 

incorporated into Richards’ complaint. 

As a defense to Richards’ Fourth Amendment claim, Gelsomino invokes qualified 

immunity. “The doctrine of qualified immunity protects government officials from liability for 

civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 

U.S. 223, 231 (2009) (internal quotation marks omitted). “Qualified immunity gives government 

officials breathing room to make reasonable but mistaken judgments, and protects all but the 

plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, 134 S. Ct. 3, 5 

(2013) (per curiam) (internal quotation marks omitted). For a constitutional right to be clearly 

established, existing precedent must have placed the constitutional question “beyond debate,” 

White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (internal quotation marks omitted), such 

that “any reasonable official in the defendant’s shoes would have understood that [she] was 

violating it,” Lash v. Lemke, 786 F.3d 1, 5 (D.C. Cir. 2015) (quoting Plumhoff v. Rickard, 134 S.

Ct. 2012, 2023 (2014)). “[C]learly established law should not be defined at a high level of 
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generality.” White, 137 S. Ct. at 552 (internal quotation marks omitted). Instead, a court should 

focus on the issue “‘in light of the specific context of the case.’” Lash, 786 F.3d at 6 (quoting 

Saucier v. Katz, 533 U.S. 194, 201 (2001)). 

Here, Richards claims that Gelsomino violated the Fourth Amendment by arresting her 

without a warrant or probable cause. To comport with the Fourth Amendment, a warrantless arrest 

outside the home “must be predicated on particularized probable cause.” Barham v. Ramsey, 434 

F.3d 565, 573 (D.C. Cir. 2006). “In determining whether probable cause exists, courts examine 

‘the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of 

the arrest.’” Garay v. Liriano, 943 F. Supp. 2d 1, 18 (D.D.C. 2013) (quoting Devenpeck v. Alford, 

543 U.S. 146, 152 (2004)). “Probable cause exists where the arresting officer possesses 

information ‘sufficient to warrant a prudent person in believing that the suspect has committed or 

is committing an offense.’” United States v. Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996) (alterations 

omitted) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). 

Richards has adequately alleged a violation of the Fourth Amendment. Taking the 

allegations of her complaint as true, Gelsomino did not see the altercation between Mr. and Ms. 

Richards. Arriving at the scene after the fact and in response to a 911 call, she spoke first with 

Mr. Richards and Ms. Grady. The complaint contains fewallegations shedding light on the content 

of the 911 call or Gelsomino’s conversation with Mr. Richards and Ms. Grady. For the reasons 

stated above, moreover, the Court will not consider any factual information contained in the 

examiner’s decision but not adopted in Richards’ complaint. Nor, at the motion to dismiss stage, 

will it draw inferences favorable to Gelsomino, the defendant, about what the content of those 

conversations may have been. Proceeding, thus far, without any reason to believe that Richards 

had committed a crime, Gelsomino approached her. She asked only one question, “Where were 
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you born?” When Richards replied that she was born in Jamaica, Gelsomino arrested her. But 

being born in Jamaica is not a crime. According to the complaint, Gelsomino asked no other 

questions and performed no additional investigation that would illicit information regarding 

possible criminal activity by Richards. Because the warrantless arrest, as alleged, was founded on 

a total absence of inculpatory information, it violated the Fourth Amendment. And, as alleged, 

such a baseless arrest raises the specter of plain incompetence or of a knowing violation of the law. 

See Stanton, 134 S. Ct. at 5.

Gelsomino does not separately argue that the constitutional right invoked by Richards was 

not “clearly established.” Richards, for her part, notes that it “is well settled that an arrest without 

probable cause violates the fourth amendment.” Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir. 

1987) (citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975)); see also Compl. ¶ 58. Limited at this 

early stage to the allegations in Richards’ complaint, that may indeed be as precise a framing of 

the constitutional right as is possible. Cf. Pearson, 555 U.S. at 238–39 (“When qualified immunity 

is asserted at the pleading stage, the precise factual basis for the plaintiff’s claim or claims may be 

hard to identify.”). On the facts as currently alleged, then, Gelsomino is not entitled to qualified 

immunity because she violated a clearly established constitutional right when she arrested 

Richards without a warrant or probable cause. That being said, the Court remains cognizant of the

Supreme Court’s instruction to define the relevant right within the “particularized” facts of the 

case. See White, 137 S. Ct. at 552 (internal quotation marks omitted). Should Gelsomino revive 

her qualified immunity defense at the summary judgment stage, after further factual development, 

she will be entitled to a more contextualized assessment of the constitutional right at issue. 

Richards has also adequately alleged a violation of the Fifth Amendment right to equal 

protection of the law. The equal protection component of the Fifth Amendment “prohibits 
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selective enforcement of the law based on considerations such as race” or national origin. Whren 

v. United States, 517 U.S. 806, 813 (1996). “Where the claim is invidious discrimination” in 

violation of the Fifth Amendment, plaintiff must allege that “the defendant acted with 

discriminatory purpose.” Iqbal, 556 U.S. at 676; see also Atherton v. District of Columbia Office 

of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009); Fernandors v. District of Columbia, 382 F. Supp. 

2d 63, 69 (D.D.C. 2005). In other words, plaintiff must plausibly allege that the defendant took 

the challenged action “because of, not merely in spite of,” her race or national origin. Iqbal, 556 

U.S. at 677–78 (internal quotation marks omitted). 

Here, Richards has alleged facts that, when accepted as true, are sufficient to give rise to a 

plausible inference of purposeful discrimination. According to the complaint, Gelsomino asked 

only one question when approaching Richards. The question was about Richards’ national origin. 

She did not ask Richards about the incident described in the complaint, and she showed little 

interest in talking with individuals who had witnessed it. When asked by Richards and Wood to 

provide a reason for the arrest, Gelsomino declined. Viewed collectively, Gelsomino’s alleged 

interest in Richards’ national origin, her alleged disinterest in the details of the altercation, and her 

refusal to provide an explanation for Richards’ arrest give rise to a plausible inference that 

Gelsomino acted on the basis of race or national origin. 

Gelsomino does not appear to raise a qualified immunity defense to Richards’ Fifth 

Amendment claim. Perhaps she believes that to be unnecessary, in light of her argument that the 

arrest was supported by probable cause. But if so, she is mistaken. Even an arrest supported by 

probable cause can violate the Fifth Amendment’s guarantee to equal protection. See Whren, 517 

U.S. at 813. In any event, the right that Richards seeks to vindicate is clearly established. See, 

e.g., Elliot-Park v. Manglona, 592 F.3d 1003, 1008 (9th Cir. 2010) (“It hardly passes the straight-
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face test to argue at this point in our history that police could reasonably believe they could treat 

individuals disparately based on their race.”). 

CONCLUSION

Based on the consideration of the parties’ memoranda, the applicable law, and the entire 

record herein, and for the reasons explained above, it is hereby ORDERED that [14] defendant’s

motion to dismiss is DENIED. A separate Order setting an Initial Scheduling Conference will 

issue on this date. 

 /s/ 

 JOHN D. BATES

 United States District Judge

Dated: March 3, 2017