United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 25, 2013 Decided June 27, 2014 

No. 12-7090 

STEPHEN IFEANYI AMOBI AND NGOZI AMOBI, 

APPELLANTS

v. 

DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, ET 

AL., 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:08-cv-01501) 

J. Michael Hannon Jr. argued the cause and filed the 

briefs for appellants. 

Richard S. Love, Assistant Attorney General, Office of 

the Attorney General for the District of Columbia, argued the 

cause for appellees. With him on the brief were Irvin B. 

Nathan, Attorney General, Todd S. Kim, Solicitor General, and 

Donna M. Murasky, Deputy Solicitor General at the time the 

brief was filed. Loren L. AliKhan, Deputy Solicitor General 

and Mary L. Wilson, Assistant Attorney General, entered 

appearances. 
2 

Before: TATEL and BROWN, Circuit Judges, and 

EDWARDS, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge BROWN. 

BROWN, Circuit Judge: The facts giving rise to this case 

are as curious as they are disturbing. Eight years ago, Derrick 

Brown (“Brown” or “the Inmate”), a conniving prisoner 

serving a series of weekend sentences at the District of 

Columbia Jail, assaulted Correctional Officer (“CO”) Stephen 

Amobi. Despite the fact that Amobi was the victim of an 

unprovoked attack whose injuries required medical attention, 

Amobi was arrested, criminally prosecuted, and fired from his 

employment. Even after being acquitted at his subsequent 

criminal trial, after Brown admitted to initiating the 

confrontation and assaulting the officer, and after prevailing in 

a contested administrative hearing, Amobi was not reinstated 

until a D.C. Superior Court judge intervened. 

Amobi and his wife sued the District of Columbia, the 

D.C. Department of Corrections (“DOC”), and several Jail 

officials, seeking relief under federal law and D.C. common 

law for conspiracy, false arrest, malicious prosecution, 

defamation, intentional infliction of emotional distress 

(“IIED”), deprivation of due process, aiding and abetting, and 

loss of consortium. The Defendants moved for summary 

judgment and, in a perfunctory nine-page opinion, the district 

court granted the motion. On appeal, Amobi challenges the 

district court’s judgment in favor of the Defendants. 

Concluding that genuine issues of material fact exist regarding 

the false arrest, malicious prosecution, and IIED claims, we 

affirm in part, reverse in part, and remand to the district court 

for further proceedings. 

 
3 

I 

A 

The puzzling details of this dispute begin on the morning 

of June 4, 2006, when the Jail was locked down because of the 

escape of two extremely dangerous inmates the day before. 

Brown, who is transgendered, was serving the third of fifteen 

weekends for simple assault and was scheduled for release at 

noon. The lockdown slowed the release process and Brown 

became increasingly agitated as he waited to be released from 

his cell. When Amobi arrived, Brown was argumentative and 

abusive. By the time Amobi and Brown arrived at the sally 

port, the verbal altercation had escalated into a nose-to-nose 

shouting match. Amobi attempted to retreat into the 

“Bubble,” a round glass enclosure separating the sally port 

from the inmate housing units, but Brown obstructed his path. 

As Brown later testified, when he saw the officials 

approaching the sally port, he wanted to lure Amobi into 

attacking him so he could file a civil suit and “get some 

money.” Brown was in a position to see, and be seen by, 

someone in the adjacent hallway. Warden Robert Clay, 

Deputy Warden Stanley Waldren, and Major Elbert White 

were conducting a fire and safety inspection. As the officials 

approached the sally port, Brown took advantage of their 

restricted line of sight and punched Amobi on his right 

forearm. Amobi reacted immediately by restraining Brown 

and forcing him against the wall. The officials, who saw 

Amobi’s reaction, but not the assault that precipitated it, 

sprinted to the sally port, ordered Amobi to release Brown, and 

turned a deaf ear to Amobi’s attempt to explain he had acted in 

self-defense. White ordered Amobi not to speak until 

instructed to do so. 
4 

After receiving medical attention, Amobi was taken to the 

Command Center where his injuries were photographed. 

When he proceeded to Waldren’s office, as instructed, he 

found the three officials who had stopped the altercation, the 

Director of the Office of Internal Affairs (Wanda Patten) and 

an OIA investigator (Valerie Beard). Amobi was ordered 

placed on administrative leave, and he and the witnesses, 

including the witnesses who had actually seen what happened 

or heard Brown boast that he had just set up a lawsuit, 

completed incident reports. 

The initial investigation ignored this exculpatory evidence 

and focused instead on an alleged interview with Brown in 

which Patten and Beard claimed Brown wanted to press 

criminal charges. While Amobi was preparing his incident 

report, the police were summoned. The responding police 

officer, Albert Henley, was shown the incriminating incident 

reports of Clay, Waldren, and White, but none of the 

exculpatory reports. Officer Henley was also told that the 

Inmate had made a corroborating statement witnessed by 

Patten and Beard. As a result, Amobi was arrested, charged 

with simple assault, and released. 

B 

On July 12, 2006, Amobi was summarily removed from 

his position. The basis for Amobi’s dismissal included the 

interview with Inmate Brown which, as subsequent events 

revealed, was fictional. Amobi promptly challenged the 

Department’s actions and, after a hearing on August 3, 2006, 

the hearing officer determined Amobi had acted in self-defense 

and recommended reinstatement. DOC’s Director, Devon 

Brown, disagreed, and Phuoc Nguyen, the hearing officer, 

under pressure from the administration, reconsidered and 

recommended termination. Amobi appealed, but for reasons 
5 

never explained in the record, the appeal was never resolved. 

Consequently, Amobi demanded arbitration in accordance 

with his union’s collective bargaining agreement (“CBA”). 

C 

The criminal prosecution, which had stalled in August 

2006 when the District was unable to produce the photos of 

Amobi’s injuries, see United States v. Amobi, 2006 CMD 

012120 (D.C. Super. Ct. Aug. 15, 2006), was reopened in 

October 2006, after the U.S. Attorney’s Office was, according 

to Amobi, pressured to refile the charges. The government’s 

case fell apart when Brown took the stand, however, and for 

the first time, provided a damning, self-inculpatory account of 

the artifice he employed during the June 2006 assault. Brown 

admitted he wanted to “set Mr. Amobi up so someone could 

witness [Amobi] do something to [him].” S.A. 297. 1

 

Brown confessed he knew the three Jail officials were 

“important people”2

 and that, in wake of the inmate escape, the 

officials “were very suspicious about things that were going on 

in the jail.” Id. at 296–97. Exultant over having secured the 

Jail officials as witnesses to his ruse, Brown boasted to CO 

Wayne Taylor of his exploits, which CO Stephen Harris 

overheard and documented in his incident report. And true to 

his word, Brown made good on his plan to file a civil suit. See 

 

1 “S.A.” and “P.A.” refer to Appellants’ Supplemental Appendix 

and Public Appendix, respectively. 

2 Brown’s numerous run-ins with the law provided ample 

opportunity to become well acquainted with DOC officials. Brown 

testified he had a criminal history of simple assault, fleeing law 

enforcement, four counts of destruction of property, sexual 

solicitation, and contempt of court. P.A. 12; S.A. 275–76. Brown 

also testified he attempted to smuggle marijuana into the Jail the 

weekend before the June 2006 assault. S.A. 290–91. 
6 

Brown v. D.C. Dep’t of Corrections, 2006 SC3 014278 (D.C. 

Super. Ct. Dec. 22, 2006). Brown explained his motivation 

for the stunt was a desire to get even with those who ridiculed 

him for being transgendered “when [he] was coming to do [his] 

sentence.” S.A. 305–06. Ultimately, Brown owned up to 

“turn[ing] the altercation from verbal to physical . . . [so] that 

[he] would get a response from Mr. Amobi[,] . . . get . . . 

money[,] . . . and . . . get . . . witnesses.” S.A. 312. Following 

Brown’s bombshell testimony, the trial judge found Amobi not 

guilty—the verdict coming exactly one year to the day of the 

June 4, 2006 altercation. 

 

D 

Although Amobi had requested the arbitration, to which 

he was entitled under his CBA, he requested that, in light of his 

exoneration, he be allowed to return to work immediately. 

The District’s attorney, Repunzelle Johnson, also counseled 

against proceeding with the scheduled arbitration and instead 

advised Director Brown to return Amobi to work. In an 

October 1, 2007 memo to Director Brown, Johnson laid bare 

the numerous discrepancies in the District’s case. First, 

Johnson recounted how each of the three Jail officials 

acknowledged they did not see what happened prior to the 

alleged assault. Second, Johnson highlighted the fact that 

DOC “did not do an independent investigation to determine 

what happened prior to the assault of Inmate Brown.” S.A. 

398. Third, and perhaps most seriously, Johnson cautioned 

that although the police had relied on DOC’s eyewitness 

statements, Patten and Beard’s supposed interview of Brown 

was pure fiction, and Amobi’s incident report was never given 

to the police. Fourth, Johnson reminded Director Brown of 

the Inmate’s incriminating testimony and that CO Ernest 

Wallace also corroborated Amobi’s account. Fifth, Johnson 

informed Director Brown that, in addition to Amobi’s visit 
7 

with Dr. Boakai, the District had “independent medical 

documentation from a private physician which supports that 

Amobi had a bruise on his right arm.”3

 Id. Sixth, Johnson 

lamented DOC’s inability to locate the three photographs taken 

of Amobi’s injuries. Finally, Johnson admonished the 

Director for failing to consider all the Douglas Factors, which, 

on balance, suggested “termination is probably not 

warranted.”4 S.A. 399. 

 

Despite Amobi’s request and Johnson’s appeal to reason, 

Director Brown proceeded with the arbitration hearing and 

refused to reinstate Amobi. Hearings were held on October 2 

and 3, 2007. A little less than three months later, the arbitrator 

concluded Amobi had applied appropriate self-defense 

 

3 In fact, based on medical reports, the D.C. Office of Risk 

Management, Disability Compensation Program determined that 

Amobi was eligible for disability compensation as a result of the 

contusion he suffered on his right arm. See P.A. 14, 158. 

4 See Douglas v. Veterans Admin., 5 MSPB 313, 332 (1981). In 

Douglas, the United States Merit Systems Protection Board 

announced twelve factors relevant to determination of an appropriate 

penalty for a government employee’s job-related misconduct, 

including: the nature and seriousness of the offense; the employee’s 

job level, past work record, and past disciplinary record; likely effect 

of the offense on the employee’s ability to perform at a satisfactory 

level; consistency of proposed penalty with those imposed for 

similar offenses and with an applicable agency table of penalties; 

notoriety of the offense; impact on agency reputation; clarity of the 

rules violated; potential for employee rehabilitation; mitigating 

circumstances; and adequacy of alternative sanctions. See also 

Stokes v. District of Columbia, 502 A.2d 1006, 1011 (D.C. 1985) 

(noting that an agency must “conscientiously consider the relevant 

[Douglas] factors and . . . strike a responsible balance within 

tolerable limits of reasonableness”). 
8 

techniques and that his summary dismissal was without cause. 

The arbitrator further ordered that Amobi be reinstated with 

full backpay and benefits and that DOC correct, remove, or 

destroy all records related to Amobi’s summary removal. 

Seeking further redress, Amobi and his wife filed suit 

against the District, DOC,5

 and several Jail officials on June 4, 

2008. On August 9, 2012, the district court granted the 

Defendants’ motion for summary judgment, and Amobi and 

his wife timely appealed on September 10, 2012. 

II 

We review de novo a district court’s grant of summary 

judgment, viewing all evidence in the light most favorable to 

the non-moving party. Ayissi-Etoh v. Fannie Mae, 712 F.3d 

572, 576 (D.C. Cir. 2013). The district court focused on the 

following claims: common law and constitutional false arrest; 

common law malicious prosecution; common law and 

constitutional defamation; deprivation of procedural due 

process; and IIED.6

 We address each in turn. 

 

5 DOC is a non sui juris subordinate government agency, D.C. 

Code § 24-211.01; Simmons v. District of Columbia Armory Bd., 656 

A.2d 1155, 1156 (D.C. 1995), and has since been dismissed from 

this suit. 

6 Holding that Amobi had no other viable claim against any of the 

defendants, the district court summarily dismissed Amobi’s aiding 

and abetting and loss of consortium claims. Amobi v. District of 

Columbia Gov’t, 882 F. Supp. 2d 78, 84 (D.D.C. 2012). Perhaps 

employing a similar rationale, the district court did not address 

Amobi’s conspiracy claims. See id. at 82 n.6. Because we 

conclude genuine issues of material fact exist as to the false arrest, 

malicious prosecution, and IIED claims, on remand the district court 

must reckon with these previously unanalyzed counts. 
9 

A 

1 

Amobi claims the district court erred in concluding there 

was probable cause to effectuate his arrest. We are unable to 

decide the merits of the common law claim, however, because 

it is barred by a one-year statute of limitations. See D.C. Code 

§ 12-301(4). Amobi filed his complaint on June 4, 2008, two 

years after his arrest. Although the district court did not 

decide the claim was time-barred, Appellees raised the 

timeliness of the common law claim in their motion for 

summary judgment below. See P.A. 94. Appellees may 

therefore reassert the argument now. Warren v. District of 

Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004) (“[A] prevailing 

party may defend the judgment on any ground decided or 

raised below.”). 

Amobi’s rejoinder is unavailing. He claims Appellees’ 

fraudulent concealment of exculpatory evidence tolls the 

statute of limitations. This argument fails. To establish a 

claim of fraudulent concealment, Amobi must demonstrate that 

the information fraudulently concealed was material to the 

delay. Fitzgerald v. Seamans, 384 F. Supp. 688, 693 (D.D.C. 

1974). “If plaintiff’s delay in bringing the lawsuit is to be 

excused, the Court must have reason to believe that the ‘timely 

assertion’ of plaintiff’s rights ‘has been postponed as a result of 

the fraud of the party against whom liability might otherwise 

have been urged.’” Id. (quoting Searl v. Earll, 221 F.2d 24, 

26 (D.C. Cir. 1954)). 

Our cases require that the information concealed be “so 

material in character that knowledge of a basis for, or 

intelligent prosecution of, the cause of action was precluded.” 

Emmett v. E. Dispensary & Cas. Hosp., 396 F.2d 931, 937 
10 

(D.C. Cir. 1967). Said differently, the fraudulent concealment 

must actually succeed in precluding the plaintiff from 

acquiring knowledge of the material facts. See Westinghouse 

Elec. Corp. v. City of Burlington, 351 F.2d 762, 764 (D.C. Cir. 

1965). Where “the plaintiff knew, or by the exercise of due 

diligence could have known, that he may have had a cause of 

action,” the claim that defendants’ fraudulent concealment of 

the facts tolls the statute of limitations must fail. Id. 

Here, Amobi contends “[t]he concealment of the lack of 

an investigation by the Office of Internal Affairs, and the 

cover-up of the fact that no interview with the inmate ever took 

place following the incident caused the statute to be tolled until 

this information was revealed.” Appellants’ Reply Br. at 3. 

But Amobi’s eventual claim for false arrest was not predicated 

on the fraudulently concealed evidence. See P.A. 36, ¶ 38 

(noting as the basis for his false arrest claim his arrest by the 

police “without probable cause and without the issuance of a 

warrant as required under District of Columbia law”). Indeed, 

Amobi concedes, perhaps unwittingly so, that “[t]he evidence 

of fraudulent concealment was not revealed to [him] until after

the initiation of his lawsuit.” Appellants’ Reply Br. at 3 

(emphasis added). Thus, if Amobi knew he had—and in fact 

initiated—a cause of action for false arrest, Appellees did not 

succeed in precluding him from acquiring knowledge of the 

material facts necessary to initiate the claim. While 

knowledge of the alleged fraudulent concealment would have 

no doubt buttressed a claim of false arrest, “[m]ere ignorance 

of evidentiary details, although such information might be 

useful at trial, will not suffice,” Fitzgerald, 384 F. Supp. at 693 

(citing Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80, 87 

(2d Cir. 1961)). 
11 

2 

Amobi’s constitutional false arrest claim presents a 

tougher question. Constitutional and common law claims of 

false arrest are generally analyzed as though they comprise a 

single cause of action. See, e.g., Scott v. District of Columbia, 

101 F.3d 748, 753–54 (D.C. Cir. 1996); District of Columbia v. 

Minor, 740 A.2d 523, 529 (D.C. 1999) (noting that, if the court 

finds a viable common law claim of false arrest, then a viable 

constitutional claim naturally flows, and vice versa). The 

elements of both claims are “substantially identical.” Scott, 

101 F.3d at 753. Amobi seeks compensatory and punitive 

damages under 42 U.S.C. § 1983 for violations of his Fourth 

Amendment right to be free from unreasonable seizure. 

Specifically, Amobi claims that, in contravention of D.C. Code 

§ 23-581(a)(1),7

 he was arrested without probable cause for an 

alleged assault that did not occur in Officer Henley’s presence. 

Appellees agree that, construed as a Fourth Amendment claim 

for false arrest, Amobi is safely within the prescribed 

three-year statute of limitations. See Appellees’ Br. at 33 

(citing Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir. 

1998)). Yet, because Amobi did not name Officer Henley as a 

defendant in his complaint, see P.A. 25–26, he must show 

either that the “custom or policy of the [District] caused the 

violation,” Brown v. District of Columbia, 514 F.3d 1279, 

1283 (D.C. Cir. 2008), or that one of the individually named 

 

7 Section 23-581(a)(1) provides that an officer may only make a 

warrantless arrest for a misdemeanor committed outside his presence 

if there is probable cause and reason to believe that unless 

immediately arrested, the individual “may not be apprehended, may 

cause injury to others, or may tamper with, dispose of, or destroy 

evidence.” See also Enders v. District of Columbia, 4 A.3d 457, 

466 (D.C. 2010). 
12 

defendants8

 is to blame, see Jones v. Horne, 634 F.3d 588, 600 

(D.C. Cir. 2011). 

As to the District, Amobi seems to argue that it violated 

his Fourth Amendment rights based on its alleged custom and 

policy of failing to comply with its statutory prohibition on 

warrantless arrests for misdemeanors committed outside of an 

officer’s presence. Amobi is mistaken. Whether the assault 

occurred in Officer Henley’s presence is not the sine qua non

of a Fourth Amendment violation. The Supreme Court has 

made clear that the “Constitution’s protections concerning 

search and seizure” do not vary with state arrest law, see 

Virginia v. Moore, 553 U.S. 164, 172–73 (2008), and Amobi 

makes no argument that the Constitution requires the District’s 

misdemeanor arrest rule. Nevertheless, whether Officer 

Henley could have had probable cause to execute Amobi’s 

arrest—even without the crime occurring in his presence—is 

still a relevant inquiry. 

“Generally, probable cause exists where the facts and 

circumstances within the arresting officer’s knowledge, of 

which he had reasonably trustworthy information, are 

sufficient in themselves to warrant a reasonable belief that an 

offense has been or is being committed.” Rucker v. United 

States, 455 A.2d 889, 891 (D.C. 1983). “The issue of 

probable cause in a false arrest case is a mixed question of law 

and fact that the trial court should ordinarily leave to the jury.” 

Bradshaw v. District of Columbia, 43 A.3d 318, 324 (D.C. 

2012). Only where the facts are undisputed or clearly 

established does probable cause become a question of law for 

the court. Id. The district court held Amobi’s claim for false 

 

8 The individually named defendants include Devon Brown, 

Robert Clay, Stanley Waldren, Elbert White, Joan Murphy, and 

Denise “Toni” Shell. See P.A. 25–26, 32. 
13 

arrest failed because the Jail officials “merely reported what 

they observed, and their observations constituted probable 

cause” for Amobi’s arrest and prosecution. Amobi, 882 F. 

Supp. 2d at 83. Amobi counters with two arguments he 

claims demonstrate want of probable cause. 

First, Amobi contends his claim of innocence created a 

genuine issue of material fact that should have been sent to the 

jury. See Appellants’ Reply Br. at 6–7 (citing Wolter v. 

Safeway Stores, 153 F.2d 641, 642 (D.C. Cir. 1946)). This 

argument fails. “Once a police officer has a reasonable basis 

for believing there is probable cause, he is not required to 

explore and eliminate every theoretically plausible claim of 

innocence before making an arrest.” Ricciuti v. N.Y.C. 

Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); Panetta v. 

Crowley, 460 F.3d 388, 395–96 (2d Cir. 2006) (“[A]n officer’s 

failure to investigate an arrestee’s protestations of innocence 

generally does not vitiate probable cause.”). 

Here, Officer Henley testified that he based his probable 

cause finding on statements from five witnesses. Although 

Amobi contends the five witnesses provided inaccurate 

information, the officer had no reason to discredit the 

eyewitness testimony. See Enders, 4 A.3d at 470–71 (“[T]he 

relevant inquiry in a false arrest defense is not what the actual 

facts may be but rather what the officers could reasonably 

conclude from what they were told and what they saw on the 

scene.”). Thus, Amobi’s statement that Brown struck him 

first does not by itself vitiate probable cause. In sum, because 

violation of § 23-581 did not result in constitutional injury, and 

because Amobi failed to identify any other municipal policy, 

practice, or custom that was a moving cause of his claimed 

constitutional violation, his constitutional false arrest claim 

against the District was properly dismissed. 
14 

Amobi’s second argument is more nettlesome, but 

persuasive. He asserts that, although the three Jail officials 

did not carry out his arrest, they are nevertheless personally 

liable for his false arrest because they withheld exculpatory 

evidence from the arresting officer. “[T]o establish personal 

liability in a § 1983 action, it is enough to show that the 

official, acting under color of state law, caused the deprivation 

of a federal right. . . . [T]he plaintiff in a personal-capacity suit 

need not establish a connection to governmental policy or 

custom . . . .” Hafer v. Melo, 502 U.S. 21, 25 (1991). 

Under D.C. law, “[l]iability is incurred for the procuring 

of a false arrest and imprisonment if by words, one directs, 

requests, invites or encourages the unlawful detention of 

another.” Smith v. District of Columbia, 399 A.2d 213, 218 

(D.C. 1979). “[P]rocurement of false imprisonment is the 

equivalent in words or conduct to ‘Officer, arrest that man.’” 

Id. (quoting RESTATEMENT (SECOND) OF TORTS, § 45A). 

Accordingly, “[t]o accuse a person of committing a crime, 

however slanderous it may be, is not enough to sustain a claim 

of false arrest so long as the decision whether to make the 

arrest remains with the police officer and is without the 

persuasion or influence of the accuser.” Id. But “[t]he 

weight of authority holds that an informer who knowingly 

gives false information to a police officer necessarily interferes 

with the intelligent exercise of the officer’s independent 

judgment and discretion and thereby becomes liable for a false 

arrest that later occurs.” Vessels v. District of Columbia, 531 

A.2d 1016, 1020 (D.C. 1987). Logic counsels that “[t]o 

consciously misstate the facts under such circumstances must 

be for the purpose of inducing action by the police.” Id. For 

this reason, “[a] complainant is required to disclose . . . 

material facts; that is, facts material to the alleged crime 

charged, facts which would have a tendency to throw light 

upon whether any malicious mischief was in fact committed, 
15 

and who in all probability committed them. Immaterial facts 

need not be stated.” Sears Roebuck & Co. v. Gault, 175 A.2d 

795, 797 (D.C. 1961) 

Provided all material facts are disclosed, complainants 

“may without fear of civil reprisal for an honest mistake, report 

to the police or public prosecutor the facts of a crime and in 

good faith, without malice, identify to the best of their 

ability . . . the perpetrator of the crime.” Smith, 399 A.2d at 

219. “It is settled that merely giving facts to an officer 

showing that an offense has been committed and that a person 

may be suspected of its commission does not comprise the tort 

of false imprisonment.” Id. at 218. Cf. Smith v. Tucker, 304 

A.2d 303, 308 (D.C. 1973) (“Where . . . a crime of a serious 

nature has been committed and from the admitted facts or 

uncontradicted evidence it appears that the injured party has 

done nothing more than take reasonable and proper steps for 

the discovery and apprehension of the criminal that party 

merits, and should receive, the protection of the court.” 

(emphasis added)). 

Here, the three Jail officials did not merely tell Officer 

Henley what they saw; they omitted several material facts they 

either knew or should have taken reasonable and proper steps 

to discover. Clay, Waldren, and White all acknowledge they 

did not see what happened before the assault. Clay admitted 

he “had no idea what had transpired between” Amobi and 

Brown before he arrived on the scene. S.A. 231. 

Nevertheless, Clay told Officer Henley that Amobi’s claim of 

self-defense was “not true.” S.A. 172. Waldren conceded he 

did not know what led to the “physical contact,” S.A. 372, and 

that he could not “testify one way or another as [to] whether 

Mr. Brown ever put his hand on Mr. Amobi,” S.A. 378. 

White confessed Brown’s arms were not always visible from 

the hallway as he and the other officials approached, S.A. 388, 
16 

and that he had a compromised view through the metal gate 

and into the sally port, id. None of these facts were disclosed 

to Officer Henley. See S.A. 190. Furthermore, Waldren 

knew it was “standard operating procedure to take photographs 

of injured officers,” S.A. 18, and to “afford [them] medical 

attention,” S.A. 16. And White knew photographs of 

Amobi’s injuries had been taken and that surveillance footage 

may have been available. S.A. 22–23, 177. Yet neither 

officer took reasonable steps to determine whether the 

photographs or medical examination of Amobi suggested 

Brown had initiated the assault. In fact, White admitted he 

had no reason to disbelieve Amobi’s claim of self-defense, and 

Waldren and White saw that Amobi was using what they 

recognized as a restraint technique taught to COs. 

At the very least, the preceding facts demonstrate the Jail 

officials had no “honest belief” that Amobi did not act in 

self-defense. See Vessels, 531 A.2d at 1020–21; Tucker, 304 

A.2d at 307. Moreover, none of the officials took reasonable 

steps to secure and submit to Henley the exculpatory 

statements from COs Wallace, Taylor, and Harris, despite 

Waldren’s acknowledgment that it was his duty to oversee and 

manage the approximately 600 COs at the Jail. Failing to 

disclose the foregoing material facts evinces a lack of good 

faith and is equivalent to “Officer, arrest that man.” Smith, 

399 A.2d at 218. Accordingly, we reverse the grant of 

summary judgment on this claim as to Clay, Waldren, and 

White, but affirm as to the other parties. 

3 

Genuine issues of material fact persist concerning whether 

probable cause existed for both the initiation and continuation 

of Amobi’s prosecution. To support a malicious prosecution 

claim, “[t]here must be (a) a criminal proceeding instituted or 
17 

continued by the defendant against the plaintiff, (b) 

termination of the proceeding in favor of the accused, (c) 

absence of probable cause for the proceeding, and (d) Malice, 

or a primary purpose in instituting the proceeding other than 

that of bringing an offender to justice.” DeWitt v. District of 

Columbia, 43 A.3d 291, 296 (D.C. 2012) (emphasis added). 

In the District, a common law claim of malicious 

prosecution encompasses criminal, civil, and administrative 

proceedings. See Melvin v. Pence, 130 F.2d 423, 426 (D.C. 

Cir. 1942). “The issue in a malicious prosecution case is not 

whether there was probable cause for the initial arrest, but 

whether there was probable cause for the underlying suit.” 

Pitt v. District of Columbia, 491 F.3d 494, 502 (D.C. Cir. 

2007); Dellums v. Powell (Dellums II), 566 F.2d 216, 220 

(D.C. Cir. 1977) (noting that in the criminal context, “the 

critical event triggering liability for malicious prosecution is 

the filing of an information”). Nevertheless, a malicious 

prosecution claim is sustained where the proceeding is 

“induced by fraud, corruption, perjury, fabricated evidence, or 

other wrongful conduct undertaken in bad faith.” Moore v. 

Hartman, 571 F.3d 62, 67 (D.C. Cir. 2009); Dellums v. Powell

(Dellums I), 566 F.2d 167, 192 (D.C. Cir. 1977); Melvin, 130 

F.2d at 428 (“Instigation is sufficient, when institution [of a 

criminal, civil, or administrative proceeding] actually follows 

from it.”). Additionally, “appearing in court and testifying 

and keeping the prosecution alive” creates a genuine issue of 

dispute as to whether a defendant continued a malicious 

prosecution. See Viner v. Friedman, 33 A.2d 631, 632 (D.C. 

1943); see also id. at 633. 

Before turning to the merits, we must quickly dispense 

with Appellees’ contention that the claim is time-barred. 

Appellees appear to calculate the statute of limitations from the 

date the malicious prosecution was initiated—June 4, 
18 

2006—instead of from the date the prosecution was terminated 

in Amobi’s favor—June 4, 2008. The former method is 

incorrect. See Shulman v. Miskell, 626 F.2d 173, 174–75 

(D.C. Cir. 1980). 

Turning to the merits, we note Appellees dispute only 

prongs (c) and (d)—the existence of probable cause and 

whether malice was shown.9

 See Appellees’ Br. at 25–28. 

We think our discussion of probable cause for the false arrest is 

sufficiently analogous so as to be dispositive on the malicious 

prosecution claim. The record is clear that the U.S. 

Attorney’s Office relied on the Jail officials’ statements. See

Appellants’ Br. at 10 (noting that the Jail officials’ statements 

were among the documents produced to Amobi during 

discovery). Similarly, we think the Jail officials’ lack of good 

faith and honest belief suggests the primary purpose in 

instituting and continuing (by testifying against Amobi at trial) 

the criminal proceeding was for some purpose “other than . . . 

bringing an offender to justice.” DeWitt, 43 A.3d at 296. 

Even were that not the case, it is axiomatic that malice may be 

presumed from the lack of probable cause. Viner, 33 A.2d at 

632. As such, the malicious prosecution claim should have 

been submitted to the jury. Pitt, 491 F.3d at 504 (“The 

determination of malice is exclusively for the factfinder.”). 

In addition to the criminal prosecution, the record raises 

genuine issues of material fact regarding whether Director 

Brown and Toni Shell continued the administrative proceeding 

 

9 The district court concluded Amobi did not allege any 

defendant acted with malice. Amobi, 882 F. Supp. 2d at 82 n.4. 

This is demonstrably false. Amobi’s complaint alleged each 

defendant acted with malice. See P.A. 32, 34, 36–37, 39. 
19 

against Amobi without probable cause.10 As recounted above, 

Nguyen (the hearing officer) initially found inadequate 

evidence to terminate Amobi, S.A. 209, but Director Brown 

and Shell pressured her to reach a different conclusion, S.A. 

43, 47, 50.11 Similarly, the Director elected to proceed with 

the arbitration although the District’s attorney had detailed 

numerous discrepancies in the District’s case against Amobi. 

See Part I.D., supra. Of most concern is Director Brown’s 

tacit ratification of Patten and Beard’s fabricated interview 

memorandum. The interview memorandum, which was 

drafted on the same day as Amobi’s notice of summary 

dismissal, formed part of the evidentiary basis for Amobi’s 

summary discharge. Brown knew this portion of evidence 

was now in dispute. For these reasons, the district court erred 

in granting summary judgment on the malicious prosecution 

claim. Thus, we reverse the grant of summary judgment on 

this claim as to Director Brown, Clay, Waldren, White, and the 

District. 

4 

Amobi also sought relief for malicious prosecution under 

42 U.S.C. § 1983, asserting that Appellees deprived him of his 

 

10 Toni Shell was not named as a defendant in the common law 

malicious prosecution claim. 

11 The district court suggested Director Brown was justified in 

remanding Nguyen’s decision because the “initial written 

recommendation was quite conclusory in nature.” Amobi, 882 F. 

Supp. 2d at 82. We are not convinced. Each recommendation was 

of equal length, compare S.A. 201–02, with S.A. 208–09, and 

Nguyen was not given any new evidence to consider in her second 

recommendation, see S.A. 47. Yet, despite the seemingly cursory 

analysis of both recommendations, Director Brown took issue only 

with the first. 
20 

constitutional rights by initiating criminal proceedings against 

him without probable cause. As with the common law claim, 

disputed issues of material fact exist here, too. “[M]alicious 

prosecution is actionable under 42 U.S.C. § 1983 to the extent 

that the defendant’s actions cause the plaintiff to be 

unreasonably ‘seized’ without probable cause, in violation of 

the Fourth Amendment.” Pitt, 491 F.3d at 511. 

Nevertheless, because the relevant conduct at issue in this case 

occurred before we issued our decision in Pitt, clearly 

establishing malicious prosecution as a violation of 

constitutional rights, qualified immunity is appropriate here. 

That the Defendants failed to make this argument in their briefs 

in this court is of no moment because they raised the issue in 

the district court. See P.A. 72, 82–85; see also Jones v. 

Bernanke, 557 F.3d 670, 676 (D.C. Cir. 2009) (“[W]e may 

affirm a judgment on any ground the record supports and that 

the opposing party had a fair opportunity to address”). 

Accordingly, we affirm the district court’s grant of summary 

judgment as to all Defendants on Amobi’s constitutional 

malicious prosecution claim. 

5 

Amobi argues the district court erred in holding his 

common law defamation claim is time-barred. He is wrong. 

D.C. Code § 12-301(4) establishes a one-year statute of 

limitations for common law defamation claims. Amobi filed 

his complaint on June 4, 2008, two years after his defamation 

injury accrued. Nevertheless, Amobi maintains the common 

law claim is not time-barred because “Defendants’ defamatory 

statements and reckless disregard for the truth were 

continuing,” Appellants’ Reply Br. at 13, and therefore tolled 

the statute of limitations. We are not persuaded. 
21 

“The statute of limitations on a tort claim ordinarily begins 

to run when the plaintiff sustains a tortious injury . . . .” 

Beard v. Edmondson & Gallagher, 790 A.2d 541, 546 (D.C. 

2002). “At the latest . . . a cause of action accrues for 

limitations purposes when the plaintiff knows or by the 

exercise of reasonable diligence should know (1) of the injury, 

(2) its cause in fact, and (3) of some evidence of wrongdoing.” 

Id. Here, it is undisputed that, as of June 4, 2006, Amobi 

knew of his injury and the role Appellees played in causing it. 

The question is whether the continuation of the criminal 

litigation delayed the accrual of Amobi’s cause of action. “A 

‘continuous tort’ can be established for statute of limitations 

purposes by showing (1) a continuous and repetitious wrong, 

(2) with damages flowing from the act as a whole rather than 

from each individual act, and (3) at least one injurious act . . . 

within the limitation period.” Id. at 547–48. Yet, under D.C. 

law, continuous defamatory statements do not toll the statute of 

limitations. Id. The only exception—not applicable 

here—is “if the continuing tort has a cumulative effect, such 

that the injury might not have come about but for the entire 

course of conduct.” Id. at 548 (emphasis in original). Thus, 

because Amobi knew, as of June 4, 2006, that he had been 

injured, the statute of limitations began to run and was not 

tolled. 

6 

Amobi fares no better on his constitutional defamation 

claim. As a threshold matter, the parties dispute whether 

Amobi adequately pled a constitutional defamation claim 

under § 1983. We need not resolve the dispute however, 

because even assuming the claim is adequately pled, Amobi is 

not entitled to further relief. 
22 

In his reply brief, Amobi claims to have pled a 

reputation-plus defamation claim under § 1983. Appellants’ 

Reply Br. at 14. Amobi asserts his defamation “stemmed 

from the constitutional violation of his due process rights by 

depriving him of his property interest in his employment.” Id.

at 14–15. A plaintiff may be able to state a due process claim 

based on the allegedly defamatory actions of government 

officials if “the defamation [is] accompanied by a discharge 

from government employment or at least a demotion in rank 

and pay.” Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C. Cir. 

1983). This type of action “is usually termed a 

reputation-plus claim.” O’Donnell v. Barry, 148 F.3d 1126, 

1140 (D.C. Cir. 1998). The remedy for an established 

reputation-plus claim is “an opportunity to refute the charge,” 

one which will “provide the person an opportunity to clear his 

name.” Codd v. Velger, 429 U.S. 624, 627 (1977); 

McCormick v. District of Columbia, No. 12-7115, 2014 WL 

2178831, at *9 (D.C. Cir. May 27, 2014). Here, Amobi had 

an opportunity to refute the charges at both a criminal judicial 

proceeding and an administrative arbitration. This was 

sufficient. Thus, even assuming Amobi adequately pled a 

claim for constitutional defamation, he received all the process 

he was due, and the claim is therefore moot.12 

 

12 Amobi also was afforded adequate pre-termination due process. 

The Supreme Court has suggested that the way to ensure 

pre-termination due process rights are preserved is to suspend an 

employee accused of detrimental conduct with pay. See Cleveland 

Bd. of Educ. v. Loudermill, 470 U.S. 532, 544–45 (1985); Munoz v. 

Bd. of Trs. of Univ. of Dist. of Columbia, 427 F. App’x 1, 3 (D.C. Cir. 

2011). That is exactly what happened here. Clay ordered Amobi 

placed on paid administrative leave, see P.A. 45, 49, and Amobi’s 

termination was not finalized until August 29, 2006, see S.A. 203. 

In any event, in the district court Amobi argued only that his 

termination infringed his procedural due process rights because 

Director Brown’s “remand” of Nguyen’s decision violated the CBA. 
23 

7 

We turn finally to Amobi’s IIED claim. The district court 

concluded there was “no evidence that any of the defendants 

engaged in extreme or outrageous conduct or that Amobi 

suffered severe emotional distress.” Amobi, 882 F. Supp. 2d 

at 84. We disagree. 

 “Establishing a prima facie case of intentional infliction 

of emotional distress requires a showing of (1) extreme and 

outrageous conduct on the part of the defendants, which (2) 

intentionally or recklessly (3) causes the plaintiff severe 

emotional distress.” Futrell v. Dep’t of Labor Fed. Credit 

Union, 816 A.2d 793, 808 (D.C. 2003). The conduct alleged 

must be “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.” Bernstein v. Fernandez, 649 A.2d 1064, 1075 

(D.C. 1991). “Where reasonable persons may differ, it is for 

the jury, subject to the control of the court, to determine 

whether, in the particular case, the conduct has been 

sufficiently extreme and outrageous to result in liability.” 

Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998). 

Amobi argues that our affirmance of a jury verdict for 

IIED in Pitt is instructive in this case. We concur. In Pitt, 

the plaintiff was falsely arrested for robbery although both 

victims of the crime told the police that the plaintiff was not the 

perpetrator. 491 F.3d at 502. The police affidavit 

subsequently submitted to the prosecutor’s office contained no 

 

See P.A. 91. Because the collective bargaining agreement clearly 

authorized the remand, and because Amobi failed to argue that the 

pre-termination proceedings were otherwise constitutionally 

defective, we affirm the district court’s dismissal of this claim. 
24 

mention of the victims’ negative identifications, despite 

containing inconsequential details about the robbery and the 

stop of plaintiff’s car. Id. at 504. The affidavit also 

contained one unambiguously false statement—that the 

plaintiff was observed “getting into a car within seconds after a 

building employee saw the robber leave the building,” when, in 

fact, “the perpetrator had been gone for at least eight minutes 

by the time the police spotted [the plaintiff] in the area.” Id. 

In addition, there was a dispute about whether the officers’ 

notes describing the show-up identification in detail was 

included in the case file submitted to prosecutors; the officer 

did not recognize the notes and did not know if those had been 

shown to the prosecutors. Id. Based upon this evidence, we 

affirmed the jury’s verdict, noting the “material 

misstatements” and “glaring omissions” in the arrest report and 

affidavit submitted to prosecutors. Id. at 504, 506. 

As recounted above, the facts here bear some resemblance 

to those in Pitt. As in Pitt, Clay, Waldren, and White’s 

incident report contained several glaring omissions, and at 

least one false statement, which was later ratified by Director 

Brown. From these facts, we think it clear that genuine issues 

of material fact exist and that it was for the jury to determine 

whether the conduct has been sufficiently extreme and 

outrageous to result in liability. For these reasons, the grant of 

summary judgment is reversed as to Director Brown, Clay, 

Waldren, White, and the District. 

**** 

The district court’s order is affirmed in part, reversed in 

part, and remanded for further proceedings consistent with this 

opinion. 

So ordered.