UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_____ __________________________ ) FRANK DAVID MORELLO , ) ) Plaintiff, )

) v. ) Civil Action No. 1 4

- 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. M r . M orello claims that h is constitutionally protected rights were violated when he was denied the photographic identification described in the Law Enforcement Officers Safety Act of 2 004, 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. Background2

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, 20 0 1, 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 issu ed 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 ¶
1 9
. Mr. Morello was also informed t hat , 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 ri ghts. 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 Co urt 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 a ccept plaintiff’s inferences that are “unsupported by4

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 r ecitals of the elements of a cause of action, supported by mere conclusory s tatements, 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 depriva tion of [ a ] constitutional right, ” Carter v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986) , and t hat 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 made5

from among various alternatives by the official or officials

res ponsible 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 af firmative link between th e 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 whe ther 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 thi s 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 rejec tion 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 the6

violation”? Id. The law is clear that the Court must determine whether a plaint iff 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 r ights violation. See Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993) . “Nevertheless, [a] [c] o mplaint must

‘ include some factual basis for the allegation o f 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)); H odges v. Government of District of Columbia , 975 F. Supp. 2d 33, 54 (D.D.C. 20 1 3 ) (findin g 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 factu al allegations regarding the existence and enforcement of a municipal policy, custom or practice that directly caused a violation of his Fifth Amendment right s 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 identifica tion for all qualified former Metropolitan Police Officers in furtherance of [LEOSA].” Compl.,7

IV. C onclusion 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 N ovember 7 , 201 4

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 o f 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 th e manner Mr. Morell o 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 i s 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 t hat a complaint may not be amended by the briefs in oppo sition 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)
.