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

GRANT G 'SE LL, et al., P laintif fs, v. Civil Action No. 09-2309 (JD B) MICHAEL CARVEN, e t al., Defendan ts.

MEMORAN DUM OP INION Gra nt G' Sell, J ordy n G' Sell, and Kristen Hulse a lleg e that while staying at a Washington, D.C. apartment building in J une 2009, thre e men - - Michae l Carven, B ry an Meuse , and Richar d McNe il ("individual def

endants" ) -- violently

attacke d them without provocation. They have broug ht common law and c onstitut ional claims ag ainst these individuals, two of whom they alleg e to be law enfor ceme nt ag ents. They have a lso sued the apa

rtment building' s owner, the building' s manag ement compa ny , and the mana g ement company ' s pare nt corporation ("building defe ndants" ) under

a pre mises liabilit y

neg lige nce the ory . Currently befor e the Court is Br

y an 1 Meuse' s motion t o dismiss in part, as we ll as the building de fendants' motion to dismis s. For the

rea sons detailed below, the Court will grant in part and de ny in part Meuse ' s motion, and will g rant the building defe ndants' motion.

They have a lso sued a building se curity office r, name d as a " J ohn Doe" defe ndant. 1 Plaintiffs have not y et completed se rviceof proc ess ag ainst the security office r, or a g ainst McNe il. See Pls.' Opp' n to Mots. to Dis miss ("Pls.' O pp' n") [Docket Entry 30], at 2 n.4 & 3 n.5. -1-BACK GR OUND 1

On J une 25, 2009, plaintiffs we re staying w ith J ane May nard, theG' Sells' mother, at The J eff erson at Capitol Yards, an a partment building in Washington, D.C. Compl. ¶ 25. That evening , plaintiffs saw the individual def endants in the public c ommon area of the a partment building. Compl. ¶ 26. Acc ording to them, "Of fice r Carve n was na

ked, ly ing on the floor in the entra nce of

the elevator; Deputy

Meuse wa s straddling Offic er Carven eng ag ing in simulated anal intercour se." Compl. ¶ 27. Plaintiffs contend that the building ' s video surveillanc e sy stem 2 captur ed this event, but that the building ' s security office r took no ac tion. Com pl. ¶¶ 28-29. Some hours later, pla intiffs encounte red the individual defendants in a common hallway in the apartment building. Compl. ¶ 30. Plainti ffs a ssert that Carve n approa ched Jordyn G' Sell in a sexuallyag g ressive ma nner a nd tried to embra ce he r; she attempted to r etre at. Compl. ¶¶ 31- 32. Carven shoute d and swore at J ordy n, calling her a "le sbian" and a " dy

ke," and " raised his fists as if to . . . punch her ." Compl. ¶¶ 33- 34. Carven instea d hit Hulse in the fac e, dra wing blood. Compl . ¶ 35. Plaintiffs fled to the elevator, but after they g ot in Meuse blocked the doorwa y and preve nted the ele vator doors f rom closing . Compl. ¶¶ 36-37. Meuse the n enter ed the e levator, took Grant G' Sell by

the nec k, and held him off the floor ag ainst the elevator wall. Compl. ¶ 38. J ordy n beg g ed Meuse to relea se her brother, but Me use re fused, a nd Carven a g ain tried to hit J ordy n. Compl. ¶¶ 39-40. Plaintiffs threate ned to call the police, but Carven and Meuse laug hed

The fa ctual bac kg round is draw n entirely from plaintiffs' complaint. 1 Plaintiffs alleg e that, at the time in question, Carve n was a U.S. Secre t Service O ffice r 2 and Meuse was a

Middlesex C ounty

(Massac husetts) Sheriff' s Deputy . Compl. ¶¶ 4-5.

-2-and told them it would do no good be cause "the y wer e the police ." Compl. ¶ 41. Meuse r elea sed Grant, but he ag ain blocked the elevator doors. Compl. ¶ 42. He took Gra nt by the nec k once mor e and a g ain held him ag ainst the elevator wall. Compl. ¶ 43. After about 10 minutes, Carven a nd Meuse a llowed the ele vator doors to c lose. Compl. ¶ 44. Plaintiffs sued Carven, Me use, and Mc Neil, alleg ing a ssault, sex ual assault, batter y , intentional infliction of emotional distress (" I I ED" ), unlawf ul imprisonment, and liabilit y under 42 U.S.C. § 1983. They

also sued sec urity

office r Doe ; 70 Ey e Stree t L .L .C., the building' s

owner ; and J PI

Manag ement Servic es, L .P., the building' s manag ement compa ny . Ag ainst these 3 latter e ntities they

have a lleg ed a ne g lige nce c laim for pre mises liabilit y . The building defe ndants have moved to dismiss the pre mises liabilit y claim, and Me use has moved to dismiss the I I ED, unlawf

ul imprisonment, and § 1983 claims ag ainst him.

STANDARD OF REVIEW All that the Fe dera l Rules of Civil Procedur e re quire of a complaint is that it contain "' a short and plain stateme nt of the cla im showing that the ple ader is entitled to relief,' in order to

' g ive the def

endant f air notice of what the . . . claim is and the g rounds upon which it re sts.'" Be ll Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) ; acc ord Eric kson v. Pardus, 551 U.S. 89, 93 (2007) (pe r curiam). Althoug h "de tailed fac tual alleg ations" a

re not ne cessa

ry to withstand a Rule 12(b)( 6) motion to dism iss, to provide the " g rounds" of " entitle[m ent] to relief," a plaintiff must furnish " more than la bels and conclusions" or " a formulaic re citation of the e lements of a c ause of action." Twombly , 550 U.S.

J PI Manag ement Servic es is a subsidiary of Gre y star Rea l Estate Partner s, LL C, another 3 defe ndant. -3-at 555-56. " To survive a motion to di smiss, a complaint must contain sufficient fa ctual matter , acc epted a s true, to ' state a c laim to relief that is plausible in its face .' " A shcrof t v. I qbal, 129 S.Ct . 1937, 1949 (2009) ( quoting Tw ombly , 550 U.S. at 570); ac cord A therton v. Dist. of Columbi a Of

fice of the May or, 567 F .3d 672, 681 (D.C. Cir. 2009). A c laim to relief is plausible on its face "w hen the plaintiff ple ads fa ctual conte nt that allows the court to dra w the re asonable infere nce that the defe ndant is liable for the misconduct alleg ed." I qbal, 129 S.Ct. at 1949. This amounts to a " two-prong ed appr oach," under w hich a c ourt first identifies the f actua l alleg ations entitled to an assumption of truth and then de termines " whether they plausibly g ive rise to an entitlement to relief." I d. at 1950-51. The notice pleading rules ar e not meant to impose a g rea t burden on a

plaintiff. See Dur a Pharms., I nc. v. B roudo, 544 U.S. 336, 347 (2005); see also Swierkiewic z v. S orema N.A., 534 U.S. 506, 512-13 (2002). When the suf ficienc y of a c omplaint is challeng ed by a motion to dismiss under Rule 12( b)(6) , the plaintiff' s fac tual alleg ations must be presumed true and should be libera lly

construed in his or he r favor. See L eathe rman v. Ta rra nt CountyNar cotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phil lips v. Bure au of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). The pla intiff must be g iven eve ry favor able infe renc e that may be dra wn from the alleg ations of fa ct. See Sche uer v. Rhodes, 416 U .S. 232, 236 (1974); Sparrow v. U nited Air L ines, I nc., 216 F .3d 1111, 1113 (D.C. Cir. 2000). Howe ver, " the court need not ac cept infere nces dr awn by

plaintiffs if such infe renc es ar e unsupported by the fa cts set out in the complaint." K owal v. MCI Commc'ns Corp., 16 F .3d 1271, 1276 (D.C. Cir. 1994). Nor doe s the court a cce pt "a

leg al conc lusion couched a s a fa ctual alleg ation," or "na ked asse rtions devoid of further fac tual enhanc ement." I qbal, 129 S.Ct. at 1949-50 (internal quotation mar ks omitt ed); see
-4-also Aktieselskabe t AF 21. Nov. 2001 v. F ame Jeans I nc., 525 F .3d 8, 17 n.4 (D.C. Cir. 2008)

(the D.C. Circuit has " never acc epted leg al conc lusions cast in the form of f actua l alleg ations" (interna l quotation marks omitted)). DISCUSSIO N I. Bui ldin g Defendan ts' Motion to Dism iss "A s a g ener al rule, a

private pe rson does not have a duty to protect a nother fr om a criminal attac k by

a third per son." K line v. 1500 Mass. Ave. A partment Corp., 439 F .2d 477, 481 (D.C. Cir. 1970). None theless, " [t ]he law imposes a spec ial duty upon the landlord to protec t his tenant from for esee able c riminal acts of third pa rties." Morton v. Kirkland, 558 A.2d 693, 694 (D.C. 1989); see also Graham v. M & J Corp., 424 A.2d 103, 104 (D.C. 1980) (landlord' s duty

to keep c ommon area s safe "ha s been e x tended to enc ompass situations where third party

criminal ac ts injure tenants on the pre mises, when the c riminal activity should have been f orese en by

the landlord" (interna l citations omit ted)). H ere , plaintiffs alleg e that the building def

endants bre ache d their " duty to take such pr eca

ution as were[si c] reasona bly

nece ssary to protect [their] tenants and their g uests[] from cr iminal attacks in the building." Compl. ¶ 90.

"' [F]oreseea

bilityis the key

element in esta

blishing the landlord' s duty .' " D oe v. Dominion Bank, N .A., 963 F.2d 1552, 1560 ( D.C. Cir. 1992) (quoting Graham, 424 A.2d at 105). I n actions broug ht ag ainst a landlord f or criminal acts committed by a third party , "liability depends upon a

more he ighte ned showing of for esee ability than would be r equire d if the ac t were

mere ly neg lige nt." B d. of Trs. of Univ. of Dist. of Columbia v. DiSalvo, 974 A.2d 868, 870 (D.C. 2009) (quoting Potts v. Dist. of Columbi a, 697 A.2d 1249, 1252 ( D.C. 1997)). Such
-5-heig htened f orese eability

"doe s not require previous occ urre nces of the particular ty

pe of ha rm, but can be met instead by a combination of f

actor s" - - the totality

of the c ircumstance s, in other words -- "w hich g ive def

endants a n incre ased a war eness of the dang er of

a particular c riminal act." Dist. of Columbi a v. Doe , 524 A.2d 30, 33 (D.C. 1987). " I t is not sufficient," how ever , "to establish a g ener al possibilit y that the crime would occur , beca use . . . the mer e possibilityof crime is ea silyenvisioned and he ighte ned for esee ability require s more pre cision." D iSalvo, 974 A.2d at 872-73. Plaintiffs contend that bec ause thebuilding' s security office r saw - - or should have seen - - the individual defe ndants simulating ana l intercourse in a common ar ea e arlier that evening , their subsequent violent attac k was for esee able. See Pls.' Opp' n at 11. Acc ording to plaintiffs, the

earlier incident put the building defe ndants " on notice that the two men w erecapa ble of outrag eous, re pug nant, and c riminal conduct." I d. Such g ener alized notice, howeve r, is insufficient: to show fore seea bility , the evidenc e must demonstrate " that the def endant ha d

rea son to anticipate the ty pe of pa rticular c riminal attack that actually occur red." DiSalvo, 974 A.2d at 873 (e mphasis added) . Her e, thoug h, the individual defe ndants' indece nt conduct g ave the building de fenda nts no reason to a nticipate that they would later a ssault plaintiffs. To be sure, the individual def

endants we re e ng ag ed in obnoxi ous behavior, but they wer e not being violent or hara ssing third pa rties. Nor w as there an indication that they wer e intruder s or otherwise not pe rmitted in the building. Simplyput, plaintiffs cannot dra w a c ausal line fr om the

earlier incident to the e vents later that night. Eve n in light of the individual def endants' prior conduct, the building defe ndants could not " know in advanc e of the particula r attac k in

-6-question." Ellis v. S afe way Stores, Inc., 410 A.2d 1381, 1382 ( D.C. 1979); cf. D ominion Bank 4 of Wash., 963 F.2d at 1561 (vac ant floors, c rime and se x in the building, ag g ressive intrude rs, and wa rning s about safe ty

from tena nts to landlord made ra pe for esee able) ; Doe, 524 A.2d at 33- 34 (ar son, robbery , and sexual assaults, the pre sence of male a dults roaming f ree ly , and def

icient

security sufficie nt to render

abduction and r ape at a school for esee able)

. 5 Plaintiffs further a

rg ue that the building defe ndants' "se curity surveillance video sy stem, their staff ing a security desk to monitor that sy stem, and their e x plicit publication of rules to g overn c onduct in the common ar eas de monstrate that not only was such c onduct fore seea ble, it was, at least as a c lass of possible dang er, f orese en long befor e this incident." Pls.' Opp' n at 11. But these security

measure s demonstrate, at most, a broad conc ern f or tena nts' sa fety , and ar e not enoug h to meet the heig htened f orese eability

require ments applicable here . See DiSalvo, 974 A.2d at 872-73 ( "It is not sufficient to establish a g ener al possibilit y that the crime would occur . . . .") . Acc ording ly , the Court will gr ant the building de fendants' motion to dismis s. 6

That the simulated interc ourse may have violate d District of Columbia laws prohibiting 4 indece nt or lewd c onduct, seeD.C. Code §§ 22-1312, -2201, doe s not alter this conclusion. Even assuming the individual defendants violated these laws, the ir non-violent beha vior did not make it forese eable that they

would violently

attack pla intiffs. Plaintiffs also contend that, " [e] ven assuming that the ea rlier [indece nt] incident did not, 5 itself, rise to the leve l which meets the ' heig htened leve l of fore seea bility ' demande d under D .C. law, the late r incident, a s it progr essed, c erta inly met that standard." Pls.' Opp' n at 11-12. B ut plaintiffs offe r no authority for their sug g estion that a criminal event ca n provide a landlord with notice of itself, e ven if the e vent spans a long time. The Court nee d not rea ch the que stion whether the building defe ndants' duty to protect 6 ag ainst third-party

criminal ac ts ex tends to non-tenants. See Building Def s.' Mot. to Dismi ss [Docket Entry

15], at 9-10. Nor nee d it address whe ther Gr ey star Rea l Estate Partner s and JP I Manag ement Servic es ar e, in fa ct, landlords as to whom such a duty applies. See B uilding De fs.' Reply in Supp. of Mot. to Dis miss [ Docke t Entry 32], at 4-5. -7-II. Meuse's Motion to Dism iss

Meuse se eks to dismiss pl aintiffs' claims ag ainst him for I I ED, unlawf ul imprisonment, and § 1983 liability . The Court take s eac h in turn. A. I I ED To assert a claim for

I I ED, a pla intiff must show "' (1) e x treme and outrag eous conduc t on the part of the def

endant whic h (2) intentionally or re cklessly

(3) c auses the pla intiff sever e emotional distress.' " Minc h v. Dist. of Columbi a, 952 A.2d 929, 940 ( D.C. 2008) (quoting Dist. of Columbia v. Thompson, 570 A.2d 277, 289-90 (D.C. 1990)) . "T he conc ept of

' outrag eousness' is centra l to the tort," a nd "[l]i ability will not be imposed for ' mere insults, indignities, threats, annoy ance s, petty oppressions, or other

trivialities.'" Homan v. Goy al, 711 A.2d 812, 818 (D.C. 1998) ( citations omitt ed). Rathe r, " [l ]i ability will be imposed only

for conduct ' so outrag eous in cha rac ter, a nd so ext reme in deg ree , as to g o bey ond all possible bounds of dec ency , and to be r eg arde d as atroc ious, and utterly intolerable in a

civiliz ed community .' " I d. (quoting Dre jza v. Vacc aro, 650 A .2d 1308, 1312 n.10 (D.C. 1994)). Plaintiffs contend that watching the individual defe ndants' simulated anal interc ourse meets this standard. See Compl. ¶ 70. The Court disag ree s. "[T]he require ment of 7 outrag eousness is not an ea sy one to meet." Dre

jza, 640 A.2d at 1312. "' Ag ainst a larg e part of the fric tions and irritations and clashing of temper aments incident to participation in a community

life, a c erta in toughne ss of the mental hide is a be tter protec tion than the law could

ever be.' " H oman, 711 A.2d at 818 ( quoting W. Pag e Ke eton, Prosser & Kee ton on Torts § 12, at 56 (5th ed. 1984)) . What plaintiffs witnessed may have be en inappr opriate, inde cent, and, g iven Plaintiffs do not arg ue that the a lleg ed assault constitut es I I ED. See Compl. ¶¶ 69- 72. 7 -8-that one participant was naked, eve n obscene . But the inc ident was, at base, mer ely juvenile behavior that was not direc ted at plaintiffs, a nd that plaintiffs wer e not oblige d to watch. Obnoxi ous though it may have be en, the simulated sex act wa s not "so extreme in deg ree [] as to g o bey ond all possible bounds of dece ncy ." See id. 9 Moreove r, in order

to sustain a claim for II ED, a pla intiff must establish that he suffer ed "se vere emotional distress." Minc h, 952 A.2d at 940. To mee t this st andar d, "thedefe ndant' s actions must prox imately cause the plaintiff emotional distress ' of so ac ute a nature that ha rmful phy sical conse quence s might be not unlikely to result.' " K otsch v. Dist. of Columbia, 924 A.2d 1040, 1046 (D.C. 2009) (quoting Clark v. Assoc. Reta il Credit Men of Wash., D.C., 105 F.2d 62, 65 (D.C. Cir. 1939)). Mere"me ntal ang uish" or " stress" is insufficient. Futr ell, 816 A.2d at 1 0 808; see a lso Kitt v. C apital Concer ts, 742 A.2d 856, 861-62 (D.C. 1999) ( "ang st, sleeplessness, and humiliation" is not "g reater [discomfort] than a rea sonable pe rson could be e x pecte d to tolerate ") . Her e, plaintiffs ha ve alleg ed only that they "suf fer ed, and w ill continue to suffer, g reat fea r, emotional trauma

and humiliation." Compl. ¶ 72. Such alleg ations are no more than "me ntal ang uish" a nd thus cannot sustain a c laim for I I ED.

Ag ain, that the individual defe ndants may have violate d District of Columbia laws 9 prohibiting indec ent conduc t, see D.C. Code §§ 22-1312, - 2201, does not alter this conc lusion. Simpl y beca use beha vior is lewd or indec ent does not nec essarily rende r it "so outra g eous in char acte r, and so e x treme in de g ree , as to g o bey ond all possible bounds of dece ncy ." See Homan, 711 A.2d at 818. Plaintiffs insis t that they

need to alleg e only

the individual defe ndants' "' intent to 1 0 purposely cause a disturbanc e of pla intiff' s mental or emotional tra nquilityof so ac ute a nature that harmful phy sical conse quence s might be not unlikely to result.' " Pls.' Opp' n at 13 (quoting Waldon v. Covi ng ton, 415 A.2d 1070, 1076 (D.C. 1980)) ( emphasis adde d). Not so. Althoug h I I ED re quires intent to causeemotional distress, it also require s that "the defe ndant' s actions must proxi mately

cause the plaintiff emotional distress." Kotsch, 924 A.2d at 1046. -9-B. Unlawf ul I mprisonment Meuse a lso seeks to dismiss pl aintiffs' claim that he unlaw fully imprisoned them by blocking the elevator doors during the alleg ed assault. An unlawful imprisonment claim requir es "[a]n unlawful deprivation of fre edom of locomotion for any amount of time, by

actua l force or a threat of forc e." Marsha ll v. Dist. of Col umbia, 391 A.2d 1374, 1380 (D.C. 1978). " I ntent is require d," and "in or der to be actionable , the intended a ctions or words of the def endant must at least furnish a basis for a

rea sonable a

pprehe nsion of prese nt confineme nt." I d. "Submission to the mere verba l direction of a nother, una ccompa nied by forc e or thre ats of any

char acte r does not constitute false imprisonment." Fa niel v. Chesapea ke and Potomac T el. Co. of Md., 404 A.2d 147, 152 (D.C. 1979). Plaintiffs easily

satisfy this standard. They

alleg e that Meuse twice pr evente d the elevator doors from c losing, thus trapping them inside. Compl. ¶¶ 37, 42. And Meuse' s actions took place in the midst of an alleg edly violent assault, which amply indicates that plaintiffs we re

rea sonably

appre hensive of pr esent c onfinement. Meuse c ontends that holding e levator door s open " occur s every day in office buildings," and ther efor e cannot support a claim for false imprisonment. See Me use' s Mot. to Dism iss (" Meuse' s Mot.") [Docke t Entry 25], at 8-9. This arg ument is frivolous. Under normal circ umstances, holding elevator doors open doe s not create a r easona ble appr ehension of confine ment. Quite the opposite in the conte x t alleg ed her e, whe re pla intiffs were try ing to use the elevator to flee an attack. 1 1

Meuse state s that a video of the assault contra dicts plaintiffs' fac tual alleg ations. See 1 1 Meuse' s Reply

in Supp. of Mot. to Dis miss ("Meuse ' s Reply ") [Docket Entry 31], at 1 & 9 n.2. (continued...) -10-C. § 1983 Claim

Finally , Meuse se eks to dismiss pl aintiffs' § 1983 claim for damag es. Claims broug ht under § 1983 r equire the " violation of a rig ht secure d by the Constitut ion and laws of the United States" by "a person a cting under c olor of state la w." West v. Atkins, 487 U.S . 42, 48 (1988). 1 2 Offic ers a cting solely

"in the ambit of their persona l pursuits" ar e not ac ting unde r color of state law. Scre ws v. United States, 325 U.S. 91, 111 (1945). "[W] hile it is clear that ' persona l pursuits' of police office rs do not g ive rise to sec tion 1983 liability , there is no bright line test for distinguishing ' persona l pursuits' fr om activities taken unde r color of

law." Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994). Rathe r, " whether a police of

fice r is acting under c olor of state la w turns on the natur e and c ircumstance s of the office r' s conduct a nd the re lationship of that conduct to the performanc e of his off icial duties." Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995). The te st is objective. Pitchell, 13 F.3d at 548-49. " The ke y

determinant is whether the a ctor, at the time in question, purposes to act in an officia l capa city

or to exercise of

ficial re sponsibili ties pursuant to state law." Martinez, 54 F.3d at 986. Thus, " [a] cts committed by a police of

fice r eve n while on duty

and in uniform ar e not under c olor of state la w unless they are in some way

related to the per formanc e of policeduties." (...continued) 1 1 But the vide o is not before the Court, and in any event it would be imprope r to assess the va lidity of plaintiffs' fac tual alleg ations on a motion to dism iss. See I qbal, 129 S. Ct. at 1950 (courts must assume the vera city of we ll-pled fac tual alleg ations). For this reason, the Court a lso cannot cre dit Meuse' s assertion that it would be phy sically impossibl e for

him to "block the e levator entra nce and hold someone ag ainst a wa ll insi de the e levator at the same time," as he be lieves plaintiffs have alleg ed. Meuse ' s Reply at 9-10. Meuse sug g ests that plaintiffs have failed to plea d sufficie nt fac ts to show that he 1 2 violated plaintiffs' constitutional rights. See Me use' s Mot. at 5. He provide s no support for this assertion, however

. -11-Gibson v. Cityof Chicag o, 910 F.2d 1510, 1516 ( 7th Cir. 1990) (interna l quotation marks

omitted); see also Parrilla-Bur g os v. Hernandez-Rivera, 108 F .3d 445, 449 (1st Cir. 1997) (an office r does not ac t under c olor of law " if the cha lleng ed conduc t is not related in some meaning ful way

either to the of

fice r' s g overnme ntal status or to the perf ormanc e of his duties" ). And " liabilitymay

be found w here a police of fice r, albe it off-duty , nonetheless invokes the rea l or appa rent powe r of the police department." Pitchell, 13 F.3d at 548. "[O]ff-duty

police off

icer s who purport to exercise officia l authority will ge nera lly

be found to have acte d under c olor of state la w." Ba rna v. City

of Perth Amboy , 42 F.3d 809, 816 (3d Cir. 1994); see also J ocks v. Tave rnier, 316 F .3d 128, 134 (2d Cir. 2003) (" We have no doubt that when a n [off-duty ] officer ide ntifies himself as a police office r and use s his service pistol, he acts unde r color of

law." ); Revene v. Charles County Comm'rs, 882 F .2d 870, 872 (4th Cir. 1989) (that off icer was " off duty , out of uniform and dr iving his own ve hicle" is "not dispositive"). B ut simplybeca

use an individual is known to be a police office r " does not alone transform private acts into ac ts under color

of state law ." V an Ort v. Estate of Stanew ich, 92 F.3d 831, 839 ( 9th Cir. 1996). Her e, Meuse contends that hewas not ac ting unde r color of state law be cause his actions throug hout the evening in question were his own private pur suits whollyunrelated to any police activities or oblig ations. Plaintiffs, for their pa rt, contend that the individual defendants' 1 3

As a thre shold matter, Meuse insists that he " was mer ely employ ed as a

jail gua rd with 1 3 the Middlesex C ounty

Sheriff' s Depa

rtment," and thus lacke d the power to seize or arr est plaintiffs. Meuse' s Mot. at 6. There fore , acc ording to him, he cannot be liable under § 1983 beca use he ha d no actua l authority to seize or detain plaintiffs. I d. (citing Gibson, 910 F.2d at 1518) (" [O] ne cannot misuse power that one[does not] possess.") ). Plaintiffs, howeve r, have alleg ed that Meuse is a deputy sheriff , Compl. ¶5, and there fore the Court must acce pt for (continued...) -12-actions, " toge ther with Meuse and Carve n' s joint communi cation of la w enf orce ment status in the fac e of thre ats to call the police [,] support the log ical infe renc e that they wer e ac ting unde r ' color of state law .' " Pl.' s Opp' n at 15. This is a close ca se. To dete rmine whe ther a n office r is acting under c olor of state la w, a court must examine the office r' s "c onduct in light of the totalityof surrounding circ umstances." Martinez, 54 F.3d at 987. Here , plaintiffs first enc ountere d Meuse while he was e ng ag ed in a lewd incident ha ving nothing to do with any police business. And whe n plaintiffs saw Me use later that evening , he did not identify himself as a police office r. Nor did a nything a bout him sug g est that he wa s a law e nforc ement ag ent -- he was not we aring a badg e or uniform, or holding a wea pon. Indeed, by

the time Meuse identifie d himself as a police office r, the a ssault, as plaintiffs desc ribe it, was we ll-underway . Carven ha d alre ady approa ched Jordy n G' Sell in a sexuallyag g ressive ma nner a nd tried to embra ce he r, Compl. ¶ 31, and had sworn at J ordy n and hit Hulse in the fac e. Compl. ¶¶ 33-35. Me use, for his part, had blocke d plaintiffs inside the elevator and wa s holding Gr ant G' Sell by the nec k ag ainst the elevator wall. Compl. ¶¶ 37-38. Further, Meuse did not attempt to arrest plaintiffs or sug g est that they

wer e bre aking the law. Nor did he make any

other show of

police authority , such as by using ha ndcuff

s or bra ndishing a service wea

pon. See Jocks, 316 F.3d at 134 (" We have no doubt that whe n an [off-duty ] officer identifies himself as a

police off

icer and uses his service pistol, he ac ts under color of law." ). Moreove r, " [m ]ere stateme nts by individuals that they

are entitled to a spec ial privileg e beca use of their

officia l status do not constit ute ac tion under color or prete nse of state law if the (...continued) 1 3 purposes of this motion that Meuse did in fac t have law enfor ceme nt authority at the time of the assault. See I qbal, 129 S. Ct. at 1950. -13-asserted privileg e lies cle arly outside the scope of

their off icial duties." Parrilla-B urg os, 108 F.3d at 450. Thus, in Parilla-B urg os, the First Circuit held that a n office r' s statements that he c ould "look dirty " at another pe rson bec ause hewas a police off

icer "so c lear ly

fell outside his officia l capa city that they did not constitut e a r easona ble pre tense that he was a cting as a police office r at the time." I d. Meuse' s statement that he wa s the police -- isolated and made in the middle of a violent confrontation -- is arg uably no differ ent. Nonethele ss, the Court will not gra nt Meuse' s motion t o dismiss , which is made be fore any discovery

into the fac ts has occur

red. Spec ifically , the Court cannot y et eva luate Meuse ' s "c onduct in light of the totalityof surrounding circ umstances." See Martinez, 54 F.3d at 987. The c omplaint alleg es that, af ter plaintiffs thre atene d to call the police, Me use and Carven " told them it would do no good be cause ' they wer e the Police.' " Compl. ¶ 41. B ut the complaint does not reve al plaintiffs' version of the entirety of Meuse ' s statement -- namely , the portion of Meuse' s statement wher e he told them it would do no g ood to call the police. N or, obviously , is Meuse' s version of the e vents y et bef ore the Court. As noted above , "of

f-duty police off

icer s who purport to exercise officia l authority will g ener ally be found to have ac ted under color of state law." Ba

rna, 42 F .3d at 816. And "[m]anifestations of such pre tended authority may include . . . identifying one self as a police office r." I d. Moreove r, " liabilitymay be found w here a police of fice r, albe it off-duty , nonetheless invokes the rea l or appa rent powe r of the police department." Pitchell, 13 F.3d at 548. Acc ording to plaintiffs, Meuse did just that: by say ing that calling the police would do no g ood beca

use he w as the law , Meuse use d his authority as a police office r to intimi date plaintiffs and to pre vent them from se eking help. In fac t, by telling plaintiffs that calling the police would
-14-be futile, if that in fa ct happe ned, Meuse arg uably sug g ested to them that other of fice rs would sanction his behavior , and indee d that his actions wer e lawf ul because of his authority as a police office r. But without knowing more a bout the event a nd its surrounding c ircumstance s, including just what Meuse said, the Court c annot determine the extent to which he " invoke[d] the re al or appar ent power

of the police department," se e Pitchell, 13 F.3d at 548, or whethe r, as Me use arg ues, his behavior

"so c lear ly

fell outside his officia l capa city that [i t] did not constitut e a

rea sonable pre tense that hewas a cting as a police office r at the time," see Par rilla-B urg os, 108 F.3d at 450. Be cause plaintiffs alleg e that Meuse identified himself as a police off

icer , and used his authority

as a police office r to intimi date them and to further the assault, howe ver, it is "plausible," I qbal, 129 S. Ct. at 1949, that Meuse' s actions " related in some meaning ful way either to [his] g overnme ntal status or to the perf ormanc e of his duties," see Par rilla-B urg os, 108 F.3d at 449. Accor dingly , the Court will deny Meuse' s motion t o dismiss plaintiffs' claim for § 1983 liabilityat this tim e to allow discove ry into the relevant fac ts and, perha ps, a fuller

rec ord for subseque nt rec onsideration of this admittedly close que stion. 1 4 CONCLUSION For the re asons stated a

bove, the Court will g rant the building defe ndants' motion to dismiss , and will g rant Meuse ' s motion t o dismiss as to the plaintiffs' I I ED claim. The Court will

I n deny ing Me use' s motion t o dismiss , the Court is not ruling on whe ther plaintiffs' 1 4 alleg ations, if proven, w ould be suffic ient to establish that Meuse wa s acting under c olor of state law during the assault. Rather , acc epting all "r easona ble infer ence [s] " in plaintiffs' favor , and with the totalityof surrounding circ umstances y et to be re veale d, the Court mere ly conclude s that plaintiffs have "state[d] a claim to relief that is plausible on its face ." I qbal, 129 S. Ct. at 1949 (interna l quotation marks omitted). -15-deny

Meuse' s motion t o dismiss plaintiffs' unlawful imprisonment claim and theclaim under § 1983. A sepa

rate Orde r ac companies this Memora ndum Opinion.

/s/ J ohn D. B ates J OHN D. B ATES United States District J udg e Date: July21, 2010

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