UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ GREGORY HARRIS, ) ) Plaintiff, ) ) v. ) Civi l Action No . 0 9 - 0 6 2 2 ( GK ) ) ) DISTRICT OF COLUMBIA ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION Plaintiff, Gregory Harris (“Plainti ff”), brings this action against Defendant, the District of Columbia (“Defendant”), under 42 U.S.C. § 1983 and various common law claims arising from Plaintiff’s arrest. This mat t e r is now before the court on Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment (“Def.’s Mot.”) [Dkt. No. 17]. Upon consideration of the Motion, Opposition, Reply, the entire re c o rd herein, and for the reasons stated below, Defendant’s Motion to Dismiss is granted .I. BACKGROUND

A. Factual Background1 Parties offer markedly different accounts of the underlying incident. Plaintiff is a duly-commissioned Special Police Officer for the District of Columbia. Compl. ¶ 10 [Dkt. No. 1]. On April 7, 2008, membe r s of the District of Columbia Metropolitan Police Department (“MPD”) conducted what Defendant terms an “administrative inspection” and Plaintiff terms a warrantless “raid” at Community Deve l opment Institute (“CDI”) Head Start School, a daycare center located at 444 16th Street, N.E. in Washington, DC, where Plaintiff was on duty. Pl.’s Opp’n at 1; see U.S. Dep’t of Health and Human Servs., Admin. For Children and Families, Community Development Institute Fast Facts, available at http://cditeam.org/cdheadstart/facts/. The MPD officers were assigned to perform the inspe c t i on because the MPD Secu r i t y Officers Management Branch (“SOMB”) received a memorandum from Falken Industries, Plaintiff’s employer, “requesting a uniform waiver for a special protective detail to work at CDI head start school,” and to allow the Falken employees to carry handguns while on duty there. Affidavit of Sgt. Anthony

For purposes of ruling on a motion to dismiss, the 1 factual allegations of the complaint must be presumed to be true and liberally construed in favor of the plaintiff. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C. Cir. 1979). Therefore, the facts set forth herein are taken from the Complaint unless otherwise noted. -2-Moye, Def.’s Mot., Ex. A [Dkt. No. 17-2]. S OMB o rdered the

inspection after a WALES search showed that none of the listed handgun s were on record. Id. Plaintiff believes that he had authorization both to work at the dayc a re center and to carry a gun, based on his employer’s verbal notification to SOMB. Pl.’s Opp’n to Mot. to Dismiss or for Summ. J. at 1-2, 13 (“Pl.’s Opp’n”) [Dkt. No. 18]. At the daycare center, the MPD officers observed that Plaintiff’s identification badge indicated he was assigned to work at a different location, and that he was not authorized to carry a firearm. Def.’s Mot. at 1-2. The MPD ran a search for Plaintiff’s gun, and found no record of registration for it. Id. The officers arrested Plaintiff and seized “numerous items” of the Plaintiff’s personal property and Plaintiff ’ s employer’s personal property. Compl. ¶ 16. Defendant s t at e s that the officers requested to speak to Plaintiff and another officer in private, that Plaintiff led them to an empty classroom, and that the arrest occurred there. Def.’s Mot. at 1. Harris, however, describes being arrested by twelve officers with weapons drawn, who forced him to the ground in front of the very schoolchildren he was assigned to protect. Pl.’s Opp’n at 2, 24. Parties agree, however, that he then spent the night in jail. At Plaintiff’s presentment hearing, he was released on the condition that he not possess a firearm in the District of

-3-Columbia. Def.’s Mot., Ex. E [Dkt. 17-5]. Based on the affidavit

of Sergeant Anthony Moye , the supervising officer at the arrest, the United States Attorney’s Office charged Plaintiff with “Carrying a Pistol Without a License [Outside Home or Place of Bu s i ness], in violation of 22 D.C. Code § 4504(a) (2001 ed . ) . ” However, after Defendant moved to dismiss the c a s e , charges were dismissed on June 16, 2008. Plaintiff alleges that, on June 11, 2008, he received a letter from Sgt. Moye revoking his Special Police Commission. Compl. ¶ 28. Plaintiff received another letter, dated July 30, 2008, stating that Plaintiff’s Special Police Commission was suspended for twenty days. Id. at ¶ 32. The MPD has not returned Plaintiff’s personal 2 property. B. Procedural Background Plaintiff initiated this suit on Ap r i l 3 , 2009, filing a Complaint that contains the following seven counts: deprivation of liberty under the Fourth Amendment, when Plaintiff was arrested without probable cause during a warrantless search (Count I); deprivation of a property interest, under the Fifth Amendment, when his property was seized and never returned (Count I I ) ; malicious prosecut i on of the Plaintiff initiated by Sgt. Moye (Count III);

There is much confusion as to whether Plaintiff was 2 revoked, suspended, or both. Plaintiff never filed the letter of June 11, 2008; Defendant filed the letter of July 30, 2008. Because of this confusion, the Court will often refer simply to the “revocation/suspension.” -4-deprivation of a property interest when he was denied the right to

work as a Special Police Officer (Count IV); deprivation of a liberty interest, under the Eighth Amendment (Count V), excessive for ce employed during the search (Count VI); and intentional infliction of emotional distress (Count VII). Counts I, II, IV, V and VI are brought pursuant to 42 U.S.C. § 1983, and Counts III and VII are brought under the common law of the District of Columbia. The Clerk entered a default judgment against the Defendant on May 21, 2009, after it failed to respond to the Comp l aint. [Dkt. No. 5]. Defendant filed a Motion to Set Aside Default on June 5, 2009, to which Plaintiff timely replied and which the Court granted

on August 17, 2009. The Court ordered Defendant to file an Answer, which both parties have requested be stayed pending resolution of Defendant’s Motion to Dismiss. Consent Mot. to Stay Filing of the Answer [Dkt. No. 30]. Defendant then filed the instant Motion on August 25, 2009. The Motion includes two broad arguments: (1) that all claims brought under § 1983 should be dismissed for failure to show that the District of Columbia is liable for his injuries, and (2) that all common law claims s hould be dismissed because Plaintiff failed to provide notice of the action to the District of Columbia, as required by local law. Defendant presents s epa rate argument for dismissal of each individual claim. Parties completed briefing of the Motion to Dismiss on September 24, 2009.

-5-II. STANDARD OF REVIEW

A. Motion to Dismiss To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face” and to “nudge[ ][his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563. A complaint will not suffice, however, if it “t enders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (citing Twombly, 550 U.S. at 557). Under the Twombly standard, a “court deciding a motion to dismiss must not make any judgment about the probability of the plaintiffs’ success . . . must assume a l l the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)(internal quotation marks and citations omitted). Whe n de ciding a 12(b)(6) Motion to Dismiss, “the Court may consider only the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint

-6-and matters about which the court may take judicial notice.” Brown

v. Bureau of Prisons, 498 F. Supp. 2d 298, 301 (D.D.C. 2007); see Marshall v. Honeywell Technology Solutions In c . , 5 36 F. Supp. 2d 59, 65 (D.D.C. 2008)(stating that “where a document is referred to in the complaint and is cent ral to the plaintiff’s claim, such a document attached to the motion papers may be c on s i dered without

conve rt i ng the motion to one for summary judgment”); Baker v. Henderson, 150 F. Supp. 2d 13, 15 (D.D.C. 2001). B. Summary Judgment “If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). “However, if the court renders its decision without reference to the extraneous material, then the motion may still be treated as one for dismissal.” American Sharecom, Inc. v. Southern Bell Tel. and Tel. Co., Civ. No. 87-1334, 1989 WL 229397, at *2 (D.D.C. Aug. 28, 1989); see Basel v. Knebe l , 5 5 1 F.2d 395 (D.C. Cir. 1977). “In other words, it is not the submission, but rather the consideration, of the extraneous documents which renders the motion one for summary judgment.” American Sharecom, Inc. , 1989 WL 229397 at *2. Summary judgment is appropriate “when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine

-7-issue as to any material fact and that the moving party is entitled

t o judgment as a matter of law.” Fed. R. Civ. P. 56(c) . “A dispute ove r a material fact is genuine if the evidence is such that a reasonable [fact-finder] could return a [decision] for the non-moving party.” Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is “material” if it might affect the outcome of the action under the governing law. Liberty Lobby Inc., 477 U.S. at 248. III. ANALYSIS A. Defendant’s Motion to Dismiss the § 1983 Claims in Counts I, II, IV, V, and VI for Failure to State a Claim Is Granted. Defendant argues that Plaintiff’s § 1983 cla ims in Counts I, II , IV , V, and VI should be dismissed because Plaintiff fails to allege an unconstitutiona l custom, practice, or policy, which is required to establish a claim against a municipality. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). To state a claim under § 1 9 8 3, a plaintiff must allege a deprivation of “rights, privileges, or immunitie s s ecured by the Constitution and laws” by a person acting under color of state, territorial, or District of C o l umbia law, 42 U.S.C. § 1983, or a practice “so permanent and well settled as to constitute a ‘custom

or usage’ wi th fo r ce of law.” Monell, 436 U.S. at 694. Under Monell, liability for a Constitutional tort will not attach to a

-8-municipality merely because the tortfeasor is employed by the

municipality. Monell, 436 U.S. at 691 (rejecting responde at superior liability). Instead, a plaintiff must allege a specific unconstitutional custom, practice, or policy which was the source of the rights violation. Id. Plaintiff has failed to meet this bedrock requirement for stating a § 1983 claim. Plaintiff simply restated, in each count of his Complaint, the conduct of which he complains and alleges that “[s]uch conduct was the official policy of the Defendant.” For example, he alleges that “[t]he unlawful ra i d, warrantless search and unlawful warrantless arrest of plaintiff,” Compl. ¶¶ 40, 74, “[t]he unlawful seizure of Plaintiff’s person and property,” id. at ¶ 46, “[t]he unlawful denial of Plaintiff’s person and property,” id. at ¶ 62, and the “excessive conditions” of his release, id. at ¶ 69, were all “the officia l policy of the Defendant.” None of these phrases constitute a “polic y statement, ordinance, regulation, or decision officially adopted and promulgated by [Defendant],” a s mandated in Monell, 436 U.S. at 690. Plaintiff has failed to include an y allegations whatsoever demonstrating how the individual actions cited in his Complaint constitute “the official policy” of the District of Columbia. 3

Cf. Jones v. City of Chicago, 856 F.2d 985, 995-96 (7th 3 C i r. 1988), cited by Plaintiff, which held that the Ci t y ’ s (continued...) -9-These are the kind of “naked assertion[s]” which both Iqbal, 129 S.

Ct. at 1948, and Twombly, 550 U.S. at 557, have firmly rejected. Thus, Plaintiff has failed to satisfy a key requirement for stating

a claim under § 1983, and therefore, the Motion to Dismiss the § 1983 Claims in Counts I, II, IV, V, and VI for Failure to State a Claim is granted . 4 B. Defendant’s Motion to Dismiss Counts I II and VII for Failure to Satisfy the Notice Requirement of D.C. Code § 12-309 Is Granted. Defendant argues that Plaintiff’s common law claims against the District o f Columbia (Counts III and VII) are barred because Plainti f f failed to satisfy the mandatory notice requirement for maintaining such claims against the District. Def.’s Mot. at 8. Under the governing statute:

(...continued) 3 maintenan ce of secret “street files” was a custom since “the practice was departme nt-wide and of long standing, the jury was entitled to conclude that it had been consciously approved at the highest policy-making level for decisions involving the po l i ce department.”

Defendant also argues that a single incident such as the 4 one alleged in this case cannot support a finding of municipal liability. Def.’s Mot. at 8 (quoting Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996)). However, “section 1983 does not require a plaintiff . . . t o p rove multiple in c i dences of misconduct if the plaintiff can prove an unconstitutional municipal policy responsible for a single instance of misconduct.” Amons v. District of Columbia, 231 F. Supp.2d 109, 115-116 (D.D.C. 2002) (citing City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985)) (emphasis added). Here, Plaintiff has not alleged, no less proved, an unconstitutional municipa l policy responsible for the incident of April 7, 2008, at the daycare center. -10-An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayo r o f the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in the regular course of duty, is a sufficient notice under this section. D.C. Code § 12-309. Because this provision “repres ent s a waiver of sovereign immunity,” Tibbs v. Williams, 263 F. Supp. 2d 39, 43 (D.D.C. 2003), compliance is mandatory and “is to be strictly construed” against the claimant, Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C. 1981). Thus, the “notice is fatally defective if one or more of the statutory elements is lacking,” Boone v. District of Columbia, 2 9 4 F. Supp. 1156, 1157 (D.D.C. 1968), and no right of action accrues. Gwinn, 434 A.2d at 137; accord Doe by Fein v. District of Columbia, 93 F.3d 861, 870 (D.C. Cir. 1996). Plaintiff’s at t o rney mailed a notice letter on September 26, 2008. Pl.’s Opp’n at 11. Defendant argues that the letter does not indicate the location of the incident. Defendant’s Reply to Pl.’s Opp’n at 1 (“Def.’s Reply”) [Dkt. No. 24]. Plaintiff’s letter indicates the cause and circumstances of the incident, references the police report of the incident, including the report number, but does not indicate the location of the incident. Pl.’s

-11-Opp’n, Ex. B [Dkt. No. 18-3]. Failure to include the location of

the incident is usually fatal. 5 However, “[t]he police report is an alternative form of notice added to ‘[take] care of those instances in which actual notice is had by the District of Columbia from the police department, although technical notice may not have been filed by the person injured.’” Miller v. Spencer, 330 A.2d 250, 252 (D.C. App. 1974), quoting H.R. Rep. No.2010, 72d Cong., 2d Sess. 2 (1933). If the police report contains the information required b y § 1 2-309, the report will satisfy the notice requirement. Id. Because Plaintiff failed to attach the police report to his Complaint, it is impossible to discern whether it gives sufficient i n fo rmation to Defendant to comply with § 12-309. Consequently, the Court is

Plaintiff c i tes to a District of Columbia case stating 5 that “with respect to the details of the [notice letter] precise exactness is not abs o l ut e ly essential,” so long as the letter reasonably complies with the statute and “the city is not misled to its prejudice by any defects of description.” Hurd v. District of Columbia, 106 A.2d 702, 704 ( D . C . 1954). However, Hurd does not excuse P l a i ntiff from reasonably complying with the statute. In that case, the plaintiff included a location of the underlying incident in her notice letter that was an incorrect address. Id. at 703-04. The court excused the mistake as a reasonable attempt to comply with the statute. Id. at 704. Where plaintiffs have omitted the location of the incident completel y , courts have consistently held that notice was defective. Kirkland v. District of Columbia, 70 F.3d 629 (D.C. Cir. 1995); Hunter v. D i s trict of Columbia, 943 F.2d 69 (D.C. Cir. 1991). -12-const ra i ned to grant the Motion to Dismiss Counts III and VII on

notice grounds. 6 C. Defendant’s Motion to Dismiss Count I for Lack of Standing to Contest the Search at the Daycare Center Is Granted. In Count I, Plaintiff asserts a §1983 claim against Defendant for violation of his Fourth Amendment right against unreasonable searches and seizures. Const. Amend. IV; Compl. ¶ 34. Plaintiff argues that his arrest was unlawful, as it was made without either

a warrant or p robable cause, during an “unlawful raid and warrantless search of the daycare.” Compl. ¶¶ 37-38. Defendant makes two arguments for dismissal of Count I. Defendant argues that Plaintiff lacks standing to challenge the search at the daycare center because he did not have a reasonable expectation of privacy, either because he was not the owner or operator of the commercial property, or because he was only authorized to work at the location printed on his badge, which was not that of the daycare center. Def.’s Mot. at 9-11. Defendant relies on a Supreme Court case, New York v. Burger, 482 U.S. 6 9 1 ( 1 9 8 7 ), which states that the owner or operator of commercial property has a reasonable expectation of privacy. This reliance on Burger is misplaced. That c ase did not hold that the

As noted earlier, Defendant has raised separate 6 additional arguments for each claim in its Motion to Dismiss. For purposes of judicial efficiency should any of the rulings herein be overturned on appeal, the Court will address al l of those arguments. -13-owner or operator of commercial property is the only person who may

have a reasonable expectation of property at a workplace. In a case decided the same ye a r a s Burger, the Supreme Court reaffirmed its prior rulings that “[w]ithin the workplace context

. . . employees may have a reasonable expectation of privacy against intrusion by police.” O’Connor v. Ortega, 480 U.S. 709, 716 (1987). The Court explained that an employee’s expectation of privacy is limited by the “operational realities of the workplace,” id. at 717, and “must be assessed in the context of the employment relation.” Id. The Court went on to say that “[g]iven the great variety of work envi ronments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.” Id. at 718. See Gatlin v. United States, 833 A.2d 995, 1005-1006 (D.C. 2003)(finding no

re a s onable expectation of privacy when police officers entere d areas of a charter school, including the main hallway, foyer, and outer portion of the main office, because the school was publicly funded and these areas were open to employees, students, and the public). Here, as in Gatlin, the daycare center where Plaintiff was on duty is a part of the District of Columbia public school system. See “District of Columbia Public Schools, Pre-School (PS), PreKindergarten (PK) and Head Start: A Guide for Parents,” available

at http : / / dcp s . dc . gov/ DCPS / Learn+About+Schools/Pre-schools%2C+Pre

-

-14-Kindergarten%2C+and+Head+Start (explaining that enrollment in a

Head Start school is an option within the District of Columbia public school system). When Plaintiff was on duty at the daycare

ce nt er, entry by students, daycare employees, parents, and the public could be reasonably expected. The parties do not dispute that Plaintiff was standing in the doorway when the MPD officers arrived and approached him. Def.’s Mot. at 1; Compl. ¶ 14. Based

on these facts and the reasoning in Gatlin, the Court concludes that Plaintiff did not enjoy a reasonable expectat i on of privacy while on duty at the daycare center . C onsequently, Plaintiff cannot contest the search bec au s e his Fourth Amendment right was not implicated in terms of the legal i t y o f the administrative search, Thomas J. Brown v. United States, 627 A.2d 499, 504 (D.C. 1993), and the Motion to Dismiss Count I for lack of standing to contest the search at the daycare center is granted . D. Defendant’s Motion to Dismiss Count I for Unlawful Arrest Is Denied. Where an arrest is made without a warrant, it must be supported by probable cau s e . Wa rdlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993). Probable cause is determined on the basis of the “totality of the circumstances,” see Illino i s v . Gates, 462 U.S. 213, 230 (1983), which requires that “the police had enough information to warrant a [person] of reasonable caution in the belief that a crime has been committed and that the person arrested has committed it,” Barham v. Ramsey, 434 F.3d 565, 572 (D.C. Cir. -15-2006) (internal quotations omitted); see Gerstein v. Pugh, 420 U.S.

103, 111 (1975)(stating that probable cause to arrest exists when the fact s and circumstances are sufficient to warrant a prudent person to believe that the individual has committed an offense). The parties do not dispute that Plaintiff was arrested without a warrant. Compl. ¶ 37. Plaintiff, however, asserts that he was arrested without probable cause, id., because he was on duty at the daycare center “with the knowledge , con sent and authority of [SOMB],” id. at ¶ 14, because his “firearm was . . . registered with [MP D ] , ” id. at ¶ 24, and because Sgt. Moye, the supervising officer at the arrest, knew these facts at the time of the arrest, id. at ¶¶ 22, 24. Defendant argues that the officers had probable

cause t o arrest, based on the their finding that he carried an unregistered gun. Def.’s Mot. at 1 0 . Whether the officers had probable cau s e to arrest, however, is a factual issue, inappropriat e for resolution at this time. The Court concludes 7 that Plaintiff has sufficiently stated the l e gal elements of an unlawful arrest claim in his Complaint, and has supported them with sufficient facts to make the claim plausible. See Twombly, 550

The Court declines to consider the affidavits parties 7 have submitted regarding probable cause because discovery i s required to resolve this issue. See Baker, 150 F. Supp. 2d at 16; American Sharecom, 1989 WL 229397, at *2 (Aug. 28, 1989); Basel, 551 F.2d 395. Delaying summary judgment will not prejudice the parties in any way. -16-U.S. at 555. Therefore, Defendant’s Motion to Dismiss Count I for

unlawful arrest is denied . E. Defendant’s Motion to Dismiss Count II for Failure to State a Fifth Amendment Due Process Claim for Deprivation of Personal Property Is Granted. In Count II of the Complaint, Plaintiff asserts a § 1983 claim for violation of his Fifth Amendment right against deprivation “of life, liberty, or property without due process of law.” U.S. Const. Amend. V; Compl. ¶ 43. Specifically, Plaintiff alleges that his personal property was unlawfully seized during the arrest and

never returned, and that the arrest constituted an unlawful seizure of his person. Compl. ¶ 44. Defendant argues that P laintiff “seems to assert a Fourth Amendment unlawful seizure claim” even though he identifies Count II a s a Fifth Amendment claim. Def.’s Mot. at 11. The Supreme Court has made clear that Government seizure of personal property

can violate both the Fourth and Fifth Amendments. United States v. James Daniel Good Real Property, 510 U.S. 43, 49-52 (1993) (holding that seizures of real property for purposes of civil forfeiture are governed by both the Fourth and the Fifth Amendments). Therefore, Plaintiff has stated a claim under the Fifth Amendment for the personal property seized at his arrest. To state a Fifth Amendment Due Process violation, “ P l a i ntiff must first have ‘a property . . . interest that triggers Fifth Amendment due process protection” which ari s e s “from ‘state

-17-law-rules or understandings that secure certain benefits and that

support claims of entitlement to those benefits.’” Davis & Assoc., Inc. V. D i s t r i c t of Columbia, 501 F. Supp. 2d 77, 81-82 (D.D.C. 2007)(quoting C & E Serv. Inc. of Wa s h . v . District of Columbia Water and Sewer Auth., 310 F.3d 197, 200 (D.C. Cir. 2002) and Bd. Of Regents of State Colleges v. Roth, 408 U.S. 5 6 4 , 577 (1972)). However, the Plaintiff does not identify what property was seized. He argues that “enumeration of such property is a proper subject for discovery, not a Motion to Dismiss.” Pl.’s Opp’n at 19. However, Plaintiff must demonstrate what property interest he has that triggers Fifth Amendment protection in order to state a claim, and has failed to do so. Davis & Assoc., 501 F. Supp. 2d at 81;

see Twombly, 550 U.S. at 555 (requiring “more than labels and conclusions” to state a claim). Consequently, the Defendant’s 8 Motion to Dismiss Count II for failure to state a Fifth Amendment due process claim is granted . F. Defendant ’ s Motion to Dismiss Count III for Malicious Prosecution Is Granted. Plaintiff asserts a malicious prosecution claim in Count III, based on the criminal suit initiated against him for possession of

an unregistered handgun. His basic argument is that the prosecution was initiated against him with malice because Defendant

Although Plaintiff mentions the seizure of his person in 8 Count II, he on l y states a claim for deprivation of a property interest. Thus, the Court assumes that Plaintiff did not intend to also contest his arrest in Count II. -18-knew that the allegations against him contained in Sgt. Moy’s

affidavit, were false. Compl. ¶¶ 19-26, 48-54. To state a claim for maliciou s prosecution under District of Columbia law, Plaintiff must show “(1) termination of the underlying suit in plaintiff's favor; (2) malice on the part of the defendant; (3) lack of probable cause for the underlying suit; and (4) special injury occasioned by plaintiff as a result of the original action.” Pitt v. District of Columbia, 491 F.3d 494, 501 (D.C. Cir. 2007)(citing Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980)). Defendant challenges Count III on three grounds, the first of which is dispositive. Defendant argues that Plaintiff cannot establ ish favorable termination of the underlying criminal suit because dismissal of Plaintiff’s crimi na l suit was not on the merits. Under District of Columbia law, “the termination must reflect on the merits of the underlying action”. Brown v. Carr, 503 A.2d 1241, 1245 (D.C. App. 1986). In Brown, the District of Columbia Court of Appeals relied on the approach taken by the California st at e courts and cited with approval their reasoning. “If [the termination] is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons, . . . it does not

-19-constitute favorable termination.” Brown, 503 A.2d at 1245

(quoting Lackner v. LaCroix, 25 Cal.3d 747, 750,(1979)). He re , De fe ndant submitted the District of Columbia Superi o r Court docket entry showing that the prosecutor dismissed Plaintiff’s criminal charges. Def’s Mot., Ex. F [Dkt. No. 17-6]. The document does not state any reason for termination of the prosecution. However, under District of Col umbia law, “[a] dismissal shall be without prejudice unless otherwise stated.” D.C. R. Crim. P. 48(a). “[A] dismissal without prejudice ‘renders the proceedings a nullity and leave[s] the parties as if the action had never been brought.’” Thoubboron v. Ford Motor Company, 809 A.2d 1204, 1210 (D.C. 2002) (quoting Bonnevi l l e Assocs. Ltd. v. Barram, 165 F.3d 1360, 1364 (Fed. Cir. 1999) (citations omitted). To satisfy this essential element of malicious pros e cution, Plaintiff bears the burden of alleging that his charges were dismissed with prejudice. See United States v. Jackson, 528 A.2d 1211, 1223 n. 29 (D.C. 1987) (stating that plaintiff failed to show that certain charges aga inst him were dismissed with prejudice where “[t]he do c ke t entry . . . simply reads that [the count in question] was dismissed by the government.”). Plaintiff has failed to allege any facts that, if proven, would demonstrate that termination was on the merits. Without a showing of favorable termination, Plaintiff fails to state a claim for malicious

-20-prosecution. Therefore, the Motion to Dismiss Count III is

granted . G. Defendant’s Motion to Dismiss Count IV, Alleging Deprivation of a Property Interest, Is Denied. In Count IV of the Complaint, Harris asserts a § 1983 claim for deprivation of a property interest, stemming from revocation of his authority to work as a Special Police Officer and from a later 20- day suspension of his authority to work as a Special Police Officer. Compl. ¶¶ 56-57. Defendant argues that Count IV must

9 1 0 be dismissed because Plaintiff failed to exhaust the administrative remedies made available to him in his suspension letter. That letter informed him he had the opportunity to “appeal [the] de c i s i on in writing to the Office of the Chief of Police . . . within twenty (20) days upon receipt of this notice.” Def.’s Mot. at 15-16; Def.’s Mot., Ex. G [Dkt. No. 17-7]. Plaintiff maintains that he was offered no “me an i ngful opportunity to contest or appeal” his suspension. Compl. ¶ 60. He further argues that the appeals process offered cannot “provide a sufficient remedy such as monetary damages,” that “the Attorney

The precise extent of Plaintiff’s injuries resulting from 9 revo cation/suspension of his work authorization is unclear . Plaintiff indicates that he was sent two letters, one revoking his authority to work indefinitely, and one s uspending him from work for twenty days. Compl. ¶¶ 28, 32, 56-57. Defendant consistently refers to the action against Plaintiff as a suspension, and provided a copy of the July 30, 2008 le t t e r suspending him for twenty days. Def.’s Mot. at 15-16, Ex. G.

See Footnote 5, supra. 1 0 -21-General offers no authority or citation . . . which authorizes or

mandates the appeals process,” and that because Plaintiff was arrested by the same officials to which he was required to report his a r rest, his suspension was a mere “pretext.” Pl.’s Opp’n at 21-22 and n.5. “State admi n istrative exhaustion requirements” like the ones here “are treated as non-jurisdictional by federal courts, meaning that the exhaustion requirement is a prudential doctrine exercised

as a matter of judicial discretion.” Washington v. District of Columbia, 538 F. S upp. 2d 269, 278 (D.D.C. 2008). In such instances, “ [ a ] plaintiff’s failure to satisfy [the exhaustion requirement] . . . constitutes a failure to sufficiently plead a necessary element of a federal cause of action.” Hidalgo v. FBI, 344 F.3d 1256, 1259-69 (D.C. Cir. 2003); Washington, 538 F. Supp. 2 d at 278. To enforce the requirement, the Court must balance Plaintiff’s interest in immediate judi c ial relief against the interests promoted by the exhaust i on requirement, such as agency autonomy and judicial efficiency. Washington, 538 F. Supp. 2d at 278. Exhaustion is not typically required for § 198 3 actions. Milton S. Kronheim & Co. v. District of Columbia, 877 F. Supp. 21, 29 (D.D.C. 1995); Ifill v. District of Columbia, 665 A.2d 185, 194 (D.C. 1995) . However, an exception exists for procedural Due Process claims, at least where “an alleged constitutional violation

-22-is intertwined with a statutory one,” and complete relief can be

provided by the administrative process. Nat’l Treasury Employees Union v. King, 961 F.2d 240, 243 (D.C. Cir. 1992); Washington, 538 F. Supp. 2d at 278; Hoey, 540 F. Supp. 2d at 226-27. Relief, for purposes of the exhaustion requirement, is not “complete” unless it is “sufficient to right the wrong.” Randolph-Sheppard Vendors of Am . v . Weinberger, 795 F.2d 90, 107 (D.C. Cir. 1986). In determining what remedy is sufficient, the reviewing court considers whether “the administrative proceeding affords the claimant a recovery commensurate with his or her remedy, regardless of whether he or she mi ght recover more by filing a federal-law claim in federal court.” Johnson v. District of Columbia, 368 F. Supp. 2d 30, 51 n. 9 (D.D.C. 2005); Washington, 538 F. Supp. 2d at 277. Plaintiff seeks monetary damages in his Complaint and alleges that the Po l i ce Chief is not authorized to award them. The Defendant does not deny that allegation. Consequently, the relief sought will not be complete because it is not “sufficient to right the wrong,” and Defendant’s Motion to Dismiss Count IV, for failure to exhaust administrative remedies, is denied . H. Defendant’s Motion to Dismiss Count V, Alleging an Eighth Amendment Claim for Excessive Conditions of Release, Is Granted. In Count V, Plaintiff asserts a ¶ 1983 claim for violation of his Eighth Amendment right against excessive bail. Const. Am.

-23-VIII; Compl. ¶ 65. Specifically, Plaintiff argues that the

condition of his release--that he not possess a firearm in the District of Columbia--was excessive because i t wa s based on Sgt. Moye’s knowingly false affidavit. Compl. ¶ 66; Def.’s Mot., Ex. F. Defendant argues that Plaint i ff fails to assert an Eighth Amendment violation. While excessive release conditions can form the basis of an Eighth Amendment claim, United States v. Salerno, 481 U.S. 739, 754-55 (1987), there appears to be a paucity of law

on the subject. The Sixth Circuit, in Bacon v. Patera, 772 F.2d 259, 264 (6th Cir. 1985), explained why:

Most eighth amendment claims have involved the constitutionality of state treatment for individuals already convicted of crimes. Those few cases finding eighth amendment violations in pre-conviction conduct by the state have all involved the infliction of some kind of physical abuse. It would require a tremendous expansion of eighth amendment doctr i ne to hold that simply misuse of the state’s prosecutorial machinery constitutes the type of “cruel and unusual punishment” that the eighth amendment was meant to prohibit (internal citations omitted). Plaintiff claims no physical abuse whatsoever; he simply alleges a misuse of Defendant’s prosecutorial authority. Such allegations do not constitute an Eighth Amendment violation. Therefore, Defendant’s Motion to Dismiss Count V, Alleging an Eighth Amendment Claim for Excessive Conditions of Release, is granted .

-24-I. Defendant’s Motion to Dismiss Count VI, Alleging Excessive Force During Plaintiff’s Arrest, Is Granted. Plaintiff asserts a § 1983 claim in Count VI that he suffered deprivation of a liberty interest in “[t]he raid and search without

a warrant of the Plaintiff’s workplace,” which constituted excessive force. Compl. ¶ 72. Excessive force claims are examined under the Fourth Amendment reasonableness standard, to determine “whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Scott v. District of Columbia, 101 F.3d 748, 760 (D.C. Cir. 1996)(quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). “An officer will be found to have used excessive force only ‘if the force used was so excessive that no reasonable officer could have believed in the lawfulness of his actions.’” Oberwetter v. Hilliard, Civ. No. 09-0588, 2010 WL 274409, at *12 (D.D.C. Jan. 2 5 , 2010)(quoting Rogala v. Dist. of Columbia, 161 F.3d 44, 54 (D.C. Cir. 1998)). Under the “ ob j e ctive reasonableness” st andard officers are authorized to use “some degree of physical coercion or threat thereof” during the course of

an arrest, and “not every push or shove, even if it may later seem

unnecessa ry i n the peace of a judge's chambers,” violates the Fourth Amendment. Graham, 490 U.S. at 395-97; Hirpassa, 648 F. Supp. 2d at 151.

-25-Defendant argues that P l a i ntiff’s claim fails because he did

not allege injury or physical contact of any kind in his Complaint. Def.’s Mot. at 17. Plaintiff’s only response is to allege facts in his Opposition--not his Complaint--which he believes would adequately flesh out his Count VI claim. This he cannot do. When considering a 12(b)(6) Motion to Dismiss, the Court may only consider those facts alleged in the Complaint. Henthorn v. Dep’t of the Navy, 29 F.3d 682, 688 (D.C. Cir. 1994); Clark v. Flach, 604 F. Supp. 2d 1, 6 n.6 (D.D.C. 2009); Alexander v. Wash. Gas Light Co., 481 F. Supp. 2d 16, 25 (D.D.C. 2006). The only facts Plaintiff alleges in the Complaint are that twelve officers conducted the arrest, with guns drawn. Compl. ¶ 72. P l a i nt i f f includes no allegation of injury, apart from a deprivation “of his rights, privileges, and immunities.” Id. at ¶ 73. Wi thout any allegation that Plaintiff suffered an injury resulting from the force used, or any facts indicating physical contact that could support a finding of excessive force, Plaintiff has not stated a claim for excessive fo r ce . S e e Wasserman v. Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009)(stating that lack of “bruise or injury, . . . tends to confirm that [ the arresting officer] did not u s e more force than reasonably appeared necessary ” ) ; Oberwetter, 2010 WL 274409, at *13 (dismissing an excessive force claim where plaintiff described the physical force used in an arrest but failed t o a l l e ge injury arising from it);

-26-Hirpassa, 648 F. Supp. 2d at 151 (dismissing a claim for excessive

force where the claims were “not supported by any allegations as to the actua l force used, physical contact between the parties, or phys i c a l harm or injury resulting from the arrest”). Therefore, Defendant’s Motion to Dismi s s Count VI, alleging excessive force during Plaintiff’s arrest is granted . J. Defendant’s Motion to Dismiss Count VII, Alleging Intentional Infliction of Emotional Distress, Is Granted. Plaint i f f a s s erts a common law claim in Count VII for Intentional Infliction of Emotional Distress (“IIED”). Compl. ¶¶ 76-78. Defendant argues that the facts in this case do not support

a finding of outrageous conduct, and therefo re Plaintiff’s claim must be dismissed. Def.’s Mot. at 18. “To establish a cause of action for intentional infliction of emotional distress a plaintiff must show 1) extreme and outrageous conduct on the part of the defendant which 2) either intentionally

or recklessly 3) causes the plaintiff severe emotional distress.” Henson v. W.H.H. Trice and Co., 466 F. Supp. 2d 187, 193 (D.D.C. 2006) ( c i t i ng Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002)). To assess whether Plaintiff has stated a claim, the Court must consider “whether the defendant’s conduct may be regarded as

so outrageous as to permit recovery.” Amons, 231 F. Supp. 2d at 117 (quoting Abourezk v. New York Airlines, Inc., 895 F.2d 1456, 1458 (D.C. Cir. 1990)). Outrageous condu c t i s conduct “so outrageous in character, and so extreme in degree, as to go beyond -27-all possible bounds of decency and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Id. Plaintiff alleges that he was arrested without a warrant during

a search at the daycare center, that excessive force was used by 12 officers with guns drawn, that he was detained overnight, and that Sgt. Moye falsified his affidavit in support of a “Gerstein Proffer.” See Gerstein, 420 U.S. 103. Compl. ¶¶ 13, 15, 20. 1 1 These facts cannot in any way compare with the outrageousness of the facts alleged in Amons. The only fact alleged about which

some question might be raised is the allegation that Sgt. Moye intentionally lied in his affidavit. The lie alleged in the Compla i nt i s that Sgt. Moye stated in his affidavit that he had conducted “an administrative i n spection of the daycare center” when, according to Plai nt i f f , he had “conducted a raid and warrantless search of the daycare center with more than a dozen officers, some with their guns drawn.” Compl. ¶ 20. Assuming for the purposes of this Motion to Dismiss that this allegation can be

As noted earlier, the Court will not consider the 1 1 supporting facts Plaintiff alleges only in his Opposition brief. When considering a 12(b)(6) Motion to Dismiss, the Court may only consider those facts alleged in the Complaint. Henthorn, 29 F.3d at 688; Clark, 604 F. Supp. 2d at 6 n. 6; Alexander, 481 F. Supp. 2 d at 25. Because Plaintiff has not yet had a “reasonable opportunity” for discovery, the Court also declines to consider the affidavits Defendant has submitted or to convert the Motion to Dismiss Count VII to a Motion for Summa ry Judgment. Baker, 150 F. Supp.2d at 16 (requiring that “[w]hen a district court converts a Rule 12(b)(6) motion to one for summary judgment, it must allow all parties a reasonable opportunity to present all material made pertinent to such a motion by Rule 56, and a chance to pursue reasonable discovery”). -28-proven, it is not, as a matter of law, “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.” Abourezk v. New York Airlines, Inc., 895 F.2d 1456, 1458 (D.C. C i r . 1990). Therefore, Defendant’s Motion to Dismiss Count VII, alleging intentional infliction of emotional distress, is granted. IV. CONCLUSION Upon consideration of the Motion, Opposition, Reply, the entire record herein, and for the reasons stated above, Defendant’s Motion to Dismiss is granted . An Order shall issue with this Memorandum Opinion.

March 22, 2010 /s/ Gladys Kessler United States District Judge Copies via ECF to all counsel of record

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