UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) HECTOR MOLINA-AVILES, ) ) P laintif f, )

) v. ) Civil Action No. 10-953 (R MC) ) (consolidated w ith 10-954, 10-955, 10-956, DISTRICT OF COLUMBIA and KELVIN K

ING , ) ) ) ) 10-957, 10-958, 10- 959, 10-960, 10-1088, 10-1096, 10-1097, 10- 1102, 10-1181, 10- 1183, 10-1185, 10-1188, 10- 1204, 10-1205, 10-1207, and 10-1214) Defendan ts. ) ) MEMORAN DUM OP INION Def endants District of Columbi a and Officer Ke lvin King move to dismiss the 1 complaints broug ht ag ainst them by twenty Plaintiffs who have sued Def endants for various constitutional claims under 42 U.S.C. § 1983 arising out of what Plaintiffs alleg e are unlawful convictions for driving while intox icated (“D WI ”). Def enda n t s ar gu e that Hec k v. Humphrey 2 prec ludes these lawsuits beca use a civil suit broug ht under 42 U.S.C. § 1983, which challeng es the validity of a criminal conviction or sentenc e, may only be broug ht if a plaintiff demonstrates that the conviction or sentenc e has been favor ably terminated, i.e. “that the conviction or sentenc e has been

Def endant King is a police office r with the M etropolitan Police De partment, and was, at 1 all rele vant times, head of the I mpaired Driver Support U nit of the MPD, where he wa s the principal office r responsible for c alibrating breath test machines and testing them for acc urac y . See Compl. [ Dkt. # 1] ¶¶ 35–36. On Aug ust 27, 2010, the Court consolidated Civil C ase N os. 10-953, 10-954, 10-955, 2 10-956, 10-957, 10- 958, 10-959, 10-960, 10- 1088, 10-1096, 10-1097, 10- 1102, 10-1181, 10- 1183, 10-1185, 10-1188, 10- 1204, 10-1205, 10-1207, a nd 10-1214. All of these case s alleg e the same c ounts by

differ ent individuals. See Orde r Consolidating Case [Dkt. # 18] . These c ases shall remain c onsolidated for pur poses of this Memorandum Opinion, as the Court determines that the law a ffe cts ea ch individual case equally

.reve rsed on direc t appea l, expunged by executive order , decla red invalid by a state tribunal authorized to make such deter mination, or called into question by a fede ral court’s issuance of a writ of h ab ea s co rp u s.” 512 U.S. 477, 487 (1994). Plaintiffs conce de that these civil suits call into question the validity of their convictions or sentenc es, but counter that Spence r v. Kemna , 523 U.S. 1 (2008), sets forth an exception to the “fa vorable -termination” require ment for those case s in which a plaintiff ha s no ability

to attack his convic tion via a habe as-ty pe ac tion. The Court conclude s that Hec k rema ins binding prec ed en t and the exception to “fa vorable -termination” voiced by the dicta of the concur ring and dissenting judge s in Spence r when habea s-ty pe re lief is unavailable is not bindi ng on the Court. Fur thermore , even if

the Court wer e bound by the exception in Spence r , the District of Columbi a has available habea s-ty pe reme dies to

vacate Plaintiffs’ DWI convictions, there by maki ng the Spence r exception inapplicable. 3 Acc ording ly , b ecause six teen of the twenty Plaintiffs do not have favor able terminations of their convictions, and beca

use habea s-ty

pe reme dies exis t to do so, those six teen Plaintiffs’ case s will be dismiss ed without pr ejudice, and the rema ining four Plaintiffs, whose DWI convictions have been favor ably terminated, w ill remain part of this lawsuit. I. F ACTS On various dates, P laintiffs wer e indi vidually arr ested under s uspici o n of DW I

. A

This is particularly

evident by

twelve of the twenty

Plaintiffs’ use of suc h proce dures. 3 I n fac t, four Plaintiffs have employ ed such pr ocedur es to succe ssfully withdraw the ir DWI pleas, thus having a “f

avora ble-ter mination.” Plaintiff David B eeme r, whose motion for a new tria l is still pending , is barre d from suit at this tim e bec ause the re ha s been no “ favor able- termination” of his conviction. The se ven Plaintiffs who have only rec ently (May 17, 2011) moved to withdraw the ir pleas a

nd dismiss their DWI char g es, ar e similarly barr ed fr om suit because the re has bee n no “fa

vorable -termination” of

their convic tions. W hen, and if , a “f avorabletermination” oc curs, those Plaintiffs may then bring suit. 2conviction for DWI require s that the prosec utor prove that a defe ndant’s blood alcohol level rea ched

.08 g rams per 210 liters of breath or above. D.C. Code § 50-2201.05 (b)( 1)(A) (i)(I ). Proof of this element is supplied by a defe ndant’s measure d blood alcohol level tested on an I ntox ily zer 5000EN machine. On Fe bruar

y 26, 2010, the District of Co l u m b i a an n o u n ced that there was a potential problem with the acc urac y of its I ntox ilyzer machines. Compl. ¶ 134. Due to err oneous calibra tions, the machines wer e g ener ating rea dings that wer e all e g edly thirty -per cent highe r than the actua l blood alcohol level. Id

. ¶ 92. As a result, the DWI char g es and convictions that relied upon such bl ood alcohol leve ls are suspe ct.

Plaintiffs all alleg e the same five counts under 42 U.S.C. §1983: (1) a vio lation of substantive due proce ss, per the Fifth Amendment of the Constit ution, based upon a rig ht “to be fre e from criminal conviction based upon inacc urate and unreliable evidenc e manufa cture d by the District,” id

. ¶ 148; (2) a violation of substantiv e due proce ss, per the Fifth Amendment of the Constit ution, based upon a rig ht “to be fre e from criminal conviction based on inacc urate and

u n r e li a b le e v id e n c e manufa cture d by District employ ees who wer e improperly overse en, trained, and

co n t ro l l ed in the manner in which they car ry out their functions,” id

. ¶ 168; (3) a violati o n o f substantive due proce ss, per the Fifth Amendment of the Constit ution, based upon a rig ht “to be fre e from criminal conviction due to the District wrong fully withholding exculpatory materia l from the

acc used,” id

. ¶ 190; (4) a violation of the Eig hth Amendment of the Constit ution, based upon a rig ht “to be fre e from cr u el and unusual punishment,” id

. ¶ 205; and (5) a violation of substantive due proce ss, per the Fifth Amendment of the Constit ution, based upon a rig ht “to be fre e from criminal

conv i ction based upon inacc urate evidenc e manufa cture d by the District,” direc ted at Def endant

3King in h i s i n d i v i d u al capa city , id

. ¶ 220. All of t hese alleg ed viol ations aim to undermine eac h 4 Plaintiff’s conviction for D WI

.

Due to the dy

namic procedura l posture of the underly ing case s and t h e at t empts to withdraw some g uilty pleas in some case s and reque st new trials on other s, the Court order ed Plaintiffs to update the Court on the underlying criminal case s and how any chang es to those case s aff ect this c ivil ca se. See Minute Entry Orde r 12/15/10. Plaintiffs r esponded on J anuar y 6, 2011. See Pls.’ Consolidated Mem. of Chang ed St atus es (“F irst Chang ed Status”) [Dkt. # 25]. On Fe bruar y 24, 2011, the Court stay ed the case , denied Def endants’ Motions to Dismiss [Dkt. ## 11, 16], without prejudice , and ag ain order ed a status repor t as to the status of Plaintiffs’ criminal case s by May 25, 2011. See Minute Entry Orde r 2/24/11. Plaintiffs filed such a repor t, and the following status exi sts. Eig hteen of the twenty Plaintiffs orig inally pled g uilty to the DWI char g e. See D.C. Reply [Dkt. # 21] at 8. The rema ining two Plaintiffs, Messrs. Be emer and Nunez, contested the DWI char g e and wer e found g uilty afte r trial. Id

. at 8–9. As of J une 6, 2010, the date of the Complaint, Messrs. Be emer and Nunez had not moved for new trials. On Aug ust 20, 2010, upon motion by the District of C o l u mb i a , Plaintiff Nunez’s conviction for DWI was vacated. Id

. at 9 n.8. His convictions fo r Dr iving Under the I nfluenc e (“D UI ”) and Oper ating Whil e I ntox icated (“O WI ”), howeve r, rema in valid. See D.C. Response to Pls.’ Consolidated Mem. of Chang ed Statuses (“D .C. Response”) [Dkt. # 29] at 2. On November 3, 2010, Mr. Be emer moved for a new trial; that motion is c urre ntly pending

. See First Chang ed Status, Ex

. I ; see also Pls.’ Second Consolidated Me m. of

The Court cites to the Complaint in Civ. No. 10-953, but all P laintiffs bring the same 4 five c ounts. 4Chang ed Statuses (“ Second Chang ed Status”) [Dkt. # 31], Ex . H. Only ten of the e ighte en Plaintiffs who had ple d g uilty attempted to w ithdraw their pleas of g uilty , and t h es e m o t i o n s wer e only filed after D.C.’s Reply of October 8, 2010, wher ein D.C. noted that habea s-ty pe proce dures wer e available to these Plaintiffs. See D.C. Reply at 5–10. Mr. Fe nwick’s g uilty plea to DWI has since been withdrawn and his case has been dismiss ed in full. See Second Chang ed Status at 4–5. Messrs. Manneh and Turner ’s g uilty pleas to DWI h av e al so been withdrawn, but they are awa iting trials rela ted to the rema ining DUI and OWI char g es. Id

. at 5–6. Messrs. Eckwood, Craig , Wil liams, Gordy , Ba con, Elissetche, and Clements have only

rec ently , on May 17, 2011, attempted to withdraw their g uilty pleas. The following eig ht Plaintiffs have not attempted to withdraw their pleas: Hec tor M o l i n a-A viles, Steven Br oderic k, J acinta C o u n ci l , Christina Mejia, Wil liam Calhoun, Thomas McCarthy , Kenne th Rey na, and Nicholas Sanchez. II. LEGAL STANDARDS

A motion to dismiss pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6) challeng es the adequa cy of a complaint on its fac e, testing whether a plaintiff has proper ly stated a cl aim

. Fe dera l Rule of Civil Procedur e 8(a) require s that a complaint contain “a short and plain statement of the claim showing that the pleade r is e ntitled to relief .” Fe d. R. Civ. P. 8( a). A complaint must be suff i cient “to give a defe ndant fair notice of what the

. . . claim i s and the g rounds upon which it rests.” Bell Atl. Corp. v. Tw o mb l y , 5 5 0 U.S

. 544, 555 (2007) (interna l citations omitted). Although a complaint does not ne ed detailed fac tual alleg ations, a plaintiff’s obliga tion to provide the g rounds of his entitlement to relief “re quires more than labels and conclusions, and a formulaic

rec itation of the elements of a cause of action will not do.” Id. The fac ts alleg ed “must be enoug h

5to r aise a rig ht to relief above the specula tive level.” Id

. Rule 8(a) require s an actua l show ing and not just a blanket asser

tio n o f a ri gh t to relief

. Id. at 555 n.3. “[A] complaint needs some information about the circumstance s g iving r ise to the claims.” Aktieselsk abet Af 21. Nov. 2001 v. Fame J eans, Inc

. , 525 F.3d 8, 16 n.4 ( D.C. Cir. 2008). I n deciding a motion under Rule 12(b)(6) , a cour

t may consider the fac ts a lleg ed in the complaint, documents attache d to the complaint as exhibi ts or incorporated by ref ere nce, and matters about which the court may take judicial not i ce . A b he & Svoboda, Inc. v. Chao , 508 F.3d 1052, 1059 (D.C. Cir. 2007)

. To survive a motion to dismiss , a complaint must contain suffic ient fac tual matter, acc epted as true, to state a claim for r elief tha t is “plausible on its fa ce.” Twombly , 550 U.S. at 570. When a plaintiff pleads fac tual content that allows the court to draw the rea sonable infere nce that the defe ndant is liable for the misconduct alleg ed, t h en t h e claim has fac ial plausibilit y . Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009). “The plausibilit y standard is not akin to a ‘proba

bility require ment,’ but it asks for more than a sheer possibili ty that a defe ndant has acte d unlawfully .” Id

.

A court must trea t the complaint’s fac tual alleg ations as true, “e ven if doubtful in fac t.” Twombly , 550 U.S. at 555. But a court need not a cce pt a s true leg al conclusions set forth in a complaint. Iqbal , 129 S. Ct. at 1949. “Thre adbar e recitals of the e l em en t s of a cause of action, supported by mere conclusory statements, do not suffice .” Id

. “While leg al conclusions can provide the framework of a complaint, they must be supported by fac tual alleg ations. When there are wellpleade d fac tual alleg ations, a court should assume their v er ac i ty and then deter mine whether they plausibly g ive rise to an e ntitlement to relief.” Id . at 1950.

6III. ANALYSIS Hec k v. Humphrey held that a civ i l s u i t broug ht under 42 U.S.C. § 1983 that challeng es the validi t y o f a cr i m i nal conviction or sentenc e may only be broug ht if the plaintiff demonstrates “that the conviction or sentenc e has b ee n re v er s ed on direc t appea l, expunged by executive order , decla

red invalid by a state tribunal authorized to make such deter mination, or called into question by a fede ral court’s issuance of a writ of habea s corpus, 28 U.S.C. § 2254.” 512 U.S. at 487. I n such a case , “the district court must consider whether a judgme nt in favor of the plaintiff would nece ssarily imply the invalidity of his conviction or sentenc e; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has alre ady been invalidated.” Id

.

Plaintiffs do not deny that their succe ss in these lawsuits would imply the invalidity of t he DW I convictions, but they arg ue that Hec k has s u b sequently been limi ted by Spence r . I n a

concur ring opinion in Spence r , J ustice Souter, joined by three concur ring J ustices and a dissenting J ustice Stevens, rea ffirme d his ow n Hec k concur renc e that Hec k ’s favor able- termination principle does not apply

when no ha

beas- ty pe re lief is available , e.g . such as when a defe ndant i s no longe r incar cer ated. J ustice S outer’s anal y s i s co nflicted with the m ajority in Hec k , which stated t hat t he favor able- termination principle would “not [be] rende red inapplicable by th e f o r tu it y th a t a c o n v ic te d criminal i s no longe r i ncar cer ated.” Hec k , 512 U.S. at 498 n . 1 0 ; s ee a l s o A leotti v. Baars , 896 F. S u p p . 1 , 8 (D.D.C. 1995) (finding Hec k prec ludes a § 1983 lawsuit even when a plaintiff is n o t incar cer ated) . The Supreme Court reta ins the s ole pre rog ative to over rule its own dec isions. See, e.g., Tenet v. Doe , 544 U.S. 1, 10–11 (2005) (citing Rodriguez de Qu i jas v. Shearson/American

7Express, Inc ., 490 U.S. 477, 484 (1989))

. I t has not done s o o n this point of law. The Court 5 conclude s that the fra cture d g roup of five c oncurr ing a nd dissenting Justi ces in Spence r cannot be found to have overr

uled the majority decision in Hec k

. Whether the curr ent Supreme Court–absent 6 three of the retire d Spence r J ustices on whom Plaintiffs rely –ag ree s rema ins to be seen. This Court conclude s that it is bound by the majority in Hec k unless and until the Supreme Court speaks clea rly

. Acc ording ly , the C o u rt co n cl udes that Hec k prec ludes any § 1983 suit challeng ing a criminal conviction that has not alre ady been f avora bly terminated, reg ardle ss of the availability of habea sty pe re lief. Even it the exception to favor able- termination was binding in the absenc e of habea sty pe proce dures, it would not save any complaints here beca use the District of Columbi a has habea sty pe relief available for all of Plaintiffs–the very condition to which Spence r attempted to car ve out

an exception to Hec k

. Plaintiffs (1) could have broug ht a habea s claim while on probation, see D.C.

There is definitely

a Circuit split on thi s point. The First, F ifth, and Eig hth Circuits 5 have de termined that the Spence r exception is mere dicta, a nd without an actua l Supreme Court decision over

ruling Hec k , those Circuits continue to follow Hec k , wher eas the Second, F ourth, Six th, Seventh, Ninth, and Eleve nth Circuits have ac cepte d the Spence r exception. Compare Figueroa v. Riv era, 147 F.3d 77, 80 ( 1st Cir. 1998), and Randell v. J ohnson, 227 F.3d 300, 301 (5th Cir. 2000), and Entzi v. Redmann, 485 F.3d 998, 1003 ( 8th Cir. 2007), with Huang v. Johnson, 251 F.3d 65, 75 ( 2d Cir. 2001), and W ilson v. Johnson , 535 F.3d 262, 267–68 ( 4th Cir. 2008), and Powers v. Hamilton County Public Defe nder Comm'n, 501 F.3d 592, 603 ( 6th Cir. 2007), and Carr v. O'L eary , 167 F.3d 1124, 1127 ( 7th Cir. 1999), and Nonette v. Small, 316 F.3d 872, 874 (9th Cir. 2002), and Harden v . Pataki, 320 F.3d 1289, 1298 ( 11th Cir. 2003). The D.C. Circuit has not ruled on this particular issue. See M alden v. City of W

aukegan , 2009 U.S. Dist. L EXI S 82481 (N.D. I ll. Sept. 10. 6 2009) (noting , in dismi ssing c laim that Spence r renounc ed the f avora ble termination re quirement for those individuals who have no habea s-ty pe re lief ava ilable, that (1) c ourts are not allowed to specula te about the c ontinued vitality of pre cede nt; (2) that the conc urre nce in Spence r was dicta ; and (3) that the composition of the Court has so dra stically chang ed that it is not clear w hat the Supreme Court mig ht do, should they someday square ly addre ss the exception proposed in Spence r ). 8Code § 23-110 (2011) (the District of Columbi a’s habea s stat u t e) ; (2) could have filed a motion

pursuant to D .C. Crimi nal Rule 32(e) , afte r sentenc e, to “se t aside the judg ment of convic tion and permit the defendant to withdraw the plea,” if the Plaintiff had pled g uilty ; or (3) c ould have filed

a motion under Superior Court Rule 33 to “g rant a new trial to the defe ndant if the interests of justice

so require ” if the Plaintiff was convicted afte r trial. I n fac t, now that Plaintiffs have become awa re of these habea s-ty

pe relief s, they have applied for relief, there by undermining their Spence r arg ument. First, § 23-110 aff ords ea ch o f the Plaintiffs the ability to vacate their convictions while “in custody .” I ndividuals on probation are “in custody ” both for purposes of § 23-110 and the fede ral habea s statute. See Snell v. United States , 754 A.2d 289, 291–92 (D.C. 2000) (finding that “in custody ” under § 23-110 includes probationer s, as in fede ral habea s proce eding s); see also Jones

v. Cunningham , 371 U.S. 236, 243 (1962). Eac h of the Plaintiffs was s en t en ce d to a term of probation, there by g iving eac h an ability to attack his conviction. See D.C.’s Reply at 7. None of 7 the Plaintiffs had ava iled themselves of § 23- 110 as of the be g inning of this lawsuit. Second, D.C. Criminal Rul e 32(e ) af fords those Plaintiffs who e ntere d g uilty pleas

an opportunity to withdraw those pleas. Eig hteen of the twenty Plaintiffs pled g u i l ty to the DWI char g e. See D.C.’s Reply at 8. When this civil lawsuit was filed, none of the eig hteen Plaintiffs who pled g uilty had availed themselves of this potential habea s-ty pe relief

. I n fac t, only afte r Def

endants attacke d Plaintiffs’ Spence r arg ument as inapplicable, d u e to the availability of D.C. habea s-ty pe proce dures, did some Plaintiffs ava il themselves of D.C. Criminal Rule 32(e).

Acc ording to Defe ndants, eig ht plaintiffs were still on active pr obation as of Oc tober 8, 7 2010, the date of

D.C.’s Reply

in support of its Moti on to Dismiss

. See D.C.’s Reply at 7. 9Third, Superior Court Rule 33 aff ords Plaintiffs who have been convicted afte r trial to move for a new trial when the interests of justice require

. Messrs. Be emer and Nunez contested their DWI char g es at trial and wer e convicted. See D.C.’s Reply at 8. Ag ain, when they instit uted suit, neither Mr. Be emer nor Mr. Nunez had availed himself of t h i s potential habea s-ty pe relief

. Only afte r Def

endants attacke d Plaintiffs’ Spence r arg ument did Mr. Be emer move for a new trial pursuant to Superior Court Rule 33, and it was D.C. that moved for Mr. Nunez’s new trial afte r the Complaint was filed.

Be cause habea s-ty

pe reme dies were available to all twenty Plaintiffs, the Spence r exception is sim ply

not applicable, r eg ardle ss of whethe r it is binding. I t also bear s repe ating that twelve of the Plaint if

f s h ave now used these habea s-ty pe proce dures, there by undermining Plaintiffs’ arg ument that Spence r applies bec ause the re a re no ha beas- ty pe proc edure s available

.

IV. CONCLUSION For the rea sons stated above, Def endants’ Motions to Dismiss [Dkt. ## 11, 16] will be GR ANTED IN P ART AN D DENIED IN P ART

. Def endants’ Motions to Dismiss will be 8 GR ANTED as to civil case numbers 10-953 (He ctor Molina-Aviles), 10-954 (Da vid L ee Be emer ), 10-955 (Steven Br oderic k), 10-956 (Jacinta Council), 10-957 (Mar tin Elissetche), 10-959 (Sheldon Gordy ), 10-960 (Christina Mejia) , 10-1088 (Will iam Calhoun), 10-1102 (Thomas McCarthy ), 10- 1181 (Ke nneth Rey

na), 10-1183 (Dwa ine Ba con), 1 0 -1 1 8 5 (B rian Craig ), 10-1188 (C. Aar on Clement), 10-1204 (Tommy Eckwood) , 10-1205 (Nichola s Sanchez) , and 10-1207 (Donne ll

Be cause the issue is rea dy for r esolution, the Court-order ed stay will be lifted, and 8 Def endants’ Motions to Dismiss [ Dkt. ## 11, 16] wil l be re newe d. 10Wil liams). and those case s will be DISMISSE D without prejudice ; Def endants’ Motion to Dismiss will be DE NI E D , wi thout prejudice , as to civil case numbers 10-958 (John Fe nwick), 10-1097 (L amar r Turner), 10-1214 (Hamid Manneh), a nd 10-1096 (Jose Nunez). A m emorializing Order 9

acc ompanies this Memorandum Opinion.

Date: June 23, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

The Court re cog nizes that Defenda nt King ha s separ ate a

rguments within his m otion to 9 dismiss

. See King ’s Mot. to Dismis s [Dkt. #16] . These a rguments, as applied to the r emaining four Plaintiffs, will be addr essed in a se parate opinion in the future. 11