UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________

)

FRANK DAVID MORELLO, )

)

Plaintiff, )

)

v. ) Civil Action No. 14-82 (EGS)

)

DISTRICT OF COLUMBIA, )

)

Defendant. )

_______________________________)

MEMORANDUM OPINION

Frank David Morello brings this action against the District of 

Columbia (“the District”) under 42 U.S.C. § 1983, alleging a 

violation of rights protected under the United States 

Constitution, specifically, the equal protection and due process 

guarantees of the Fifth Amendment. Mr. Morello claims that his

constitutionally protected rights were violated when he was 

denied the photographic identification described in the Law 

Enforcement Officers Safety Act of 2004, 18 U.S.C. § 926C 

(“LEOSA”). Pending before the Court is the defendant’s motion 

to dismiss plaintiff’s complaint for failure to state a claim 

under Federal Rule of Civil Procedure 12(b)(6). Upon 

consideration of the motion, the response and reply thereto, the 

applicable law, and the entire record, the Court GRANTS 

defendant’s motion.

I. Background
2

Mr. Morello is a former police officer with the Metropolitan 

Police Department (“MPD”). See Compl., ECF No. 1 ¶ 1. Mr. 

Morello began his career with the MPD on February 20, 1990 and 

on December 21, 2001, after more than ten years of service as a 

police officer, submitted his resignation paperwork to pursue 

other career opportunities. See id. ¶¶ 10, 11. 

On September 19, 2013, Mr. Morello, pursuant to LEOSA, 

submitted an application to the MPD for a photographic 

identification. Id. at ¶ 16. Under LEOSA, a “qualified retired 

law enforcement officer” who possesses “photographic 

identification issued by the agency from which the individual 

separated from service as a law enforcement officer” “may carry 

a concealed firearm that has been shipped or transported in 

interstate or foreign commerce.” 18 U.S.C. § 926C. On November 

15, 2013, Mr. Morello was informed, by Sergeant Colin Hall of 

the MPD Gun Control Unit, that his application for the 

photographic identification was rejected because his separation 

from the MPD was not “in good standing.” See Compl., ECF No. 1 ¶ 

19. Mr. Morello was also informed that, should he have any 

questions about the MPD’s decision, he can contact Sergeant Hall 

directly. Id. at Ex. F. 

On January 21, 2014, Mr. Morello filed this lawsuit against 

the District. Compl., ECF No. 1. He alleged violations of his 

Fifth Amendment rights. Id. On April 7, 2014, the District 

moved to dismiss Mr. Morello’s claims. See Mot., ECF No. 6. 
3

Mr. Morello filed his opposition brief on May 8, 2014. See Opp., 

ECF No. 8. The District filed its reply on May 19, 2014. See

Reply, ECF No. 9. The District’s motion to dismiss is now ripe 

for determination by the Court. 

II. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6) “tests the legal sufficiency of a complaint.” Browning 

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must 

contain “a short and plain statement of the claim showing that 

the pleader is entitled to relief, in order to give the 

defendant fair notice of what the . . . claim is and the grounds 

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555 (2007) (quotation marks omitted). While detailed factual 

allegations are not necessary, plaintiff must plead enough facts 

to “raise a right to relief above the speculative level.” Id.

When ruling on a Rule 12(b)(6) motion, the Court may consider 

“the facts alleged in the complaint, documents attached as 

exhibits or incorporated by reference in the complaint, and 

matters about which the Court may take judicial notice.” 

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002). 

The Court must construe the complaint liberally in plaintiff’s 

favor and grant plaintiff the benefit of all reasonable 

inferences deriving from the complaint. Kowal v. MCI Commc’ns 

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court 

must not accept plaintiff’s inferences that are “unsupported by 
4

the facts set out in the complaint.” Id. “[O]nly a complaint 

that states a plausible claim for relief survives a motion to 

dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Most 

important for this case, the Supreme Court instructs that a 

pleading must offer more than “labels and conclusions” or a 

“formulaic recitation of the elements of a cause of action.” 

Id. at 678. “Threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not 

suffice.” Id.

III. Analysis

“[A] municipality can be found liable under [Section] 1983 

only where the municipality itself causes the constitutional 

violation at issue.” City of Canton, Ohio v. Harris, 489 U.S. 

378, 385 (1989) (citing Monell v. Dep’t of Soc. Servs. of the 

City of New York, 436 U.S. 658, 694 (1978) (emphasis in 

original)). The District, as a municipality, see D.C.Code § 1–

102, is subject to liability under § 1983 only “when an official 

policy or custom causes the [plaintiff] to suffer a deprivation 

of [a] constitutional right,” Carter v. District of Columbia,

795 F.2d 116, 122 (D.C. Cir. 1986), and that policy or custom 

must itself be the moving force behind the alleged 

constitutional violation. Id. (citing Monell, 436 U.S. at 694); 

see also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) 

(“[M]unicipal liability under § 1983 attaches where—and only 

where—a deliberate choice to follow a course of action is made 
5

from among various alternatives by the official or officials 

responsible for establishing final policy with respect to the 

subject matter in question.”); Oklahoma City v. Tuttle, 471 U.S. 

808, 817 (1985) (requiring a plaintiff to show a course 

deliberately pursued by the city establishing an affirmative 

link between the city’s policy and the alleged constitutional 

violation).

In Baker v. District of Columbia, 326 F.3d 1302 (D.C. Cir. 

2003), the Court of Appeals explained that a district court 

assessing a § 1983 complaint must ask two questions. First, the 

Court asks whether the complaint states a claim for a predicate 

constitutional violation. To satisfy that prong of the analysis, 

all that need be established is some constitutional harm 

suffered by the plaintiff; it is not necessary that the 

municipality’s policy makers be implicated. Id. at 1306. In this 

case, it is unclear whether the MPD’s rejection of Mr. Morello’s 

application for a photographic identification could be deemed to

be a constitutional violation. But even assuming, without 

deciding, that the MPD’s rejection of Mr. Morello’s application 

violated his constitutional rights in some way, Mr. Morello has 

failed to allege sufficient facts to establish the critical 

second prong of the municipal liability analysis — causation.

The second question to be answered when assessing the 

sufficiency of a § 1983 claim is: does the complaint state a 

“claim that a custom or policy of the municipality caused the 
6

violation”? Id. The law is clear that the Court must determine 

whether a plaintiff has alleged this “affirmative link” between 

the policy and the injury; the municipal policy must be alleged 

to be the “moving force” behind the violation. Id.

There is no heightened pleading standard in a case alleging 

municipal liability for a civil rights violation. See Leatherman 

v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit,

507 U.S. 163, 164 (1993). “Nevertheless, [a] [c]omplaint must 

‘include some factual basis for the allegation of a municipal 

policy or custom.’” Hinson ex rel. N.H. v. Merritt Educ. Ctr.,

521 F. Supp. 2d 22, 29 (D.D.C. 2007) (quoting Atchinson v. 

District of Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996)); Hodges 

v. Government of District of Columbia, 975 F. Supp. 2d 33, 54

(D.D.C. 2013) (finding that sufficiency of plaintiff’s 

allegations of liability under Monell “must be assessed under 

the standard set by the Supreme Court in Twombly and Iqbal ”).

Regardless of the circumstances under which Mr. Morello’s 

application was rejected by the MPD, the complaint sets forth no 

factual allegations regarding the existence and enforcement of a 

municipal policy, custom or practice that directly caused a 

violation of his Fifth Amendment rights to equal protection and 

due process.

1 This pleading defect is fatal.2 

 

1 Mr. Morello, in his complaint, alleges that “[MPD] has 

established procedures for establishing eligibility and the 

issuance of photographic identification for all qualified former 

Metropolitan Police Officers in furtherance of [LEOSA].” Compl., 
7

IV. Conclusion

For the foregoing reasons, the Court hereby GRANTS the 

District’s motion to dismiss. An appropriate Order accompanies 

this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

November 7, 2014

 

ECF No. 1 ¶ 24. The complaint, however, makes no further 

mention of those established procedures, nor does the complaint 

assert any facts affirmatively linking those established 

procedures to the denial of Mr. Morello’s application for LEOSA 

identification.

2 Mr. Morello’s contention that the “absence of any due process 

mechanism” related to LEOSA permitting constitutes “inaction” 

implicating Monell liability fails because inaction gives rise 

to municipal liability under § 1983 only when it can be said 

that the government’s failure to act amounted to “deliberate 

indifference” towards the plaintiff’s constitutional rights. 

See Huthnance v. District of Columbia, 793 F. Supp. 2d 183, 197-

98 (D.D.C. 2011). Notably, there is absolutely nothing alleged 

in the complaint suggesting that the District or any of its 

officials knew or should have known that the system in place was 

constitutionally defunct in the manner Mr. Morello now claims. 

See Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) 

(deliberate indifference is a “stringent standard of fault” 

requiring either actual or constructive notice). Finally, the 

Court is not persuaded by Mr. Morello’s frivolous argument that 

a statement made by an Assistant Attorney General in an 

unrelated case is somehow an admission by the District of a 

policy and is the “moving force” behind the denial of his LEOSA 

identification. In any event, “[i]t is axiomatic that a 

complaint may not be amended by the briefs in opposition to a 

motion to dismiss.” See Arbitraje Casa de Cambio, S.A. de C.V. 

v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003).