P ETE R JAMES ATHERTON, P laintif f,
v. DISTRICT OF COLUMBIA OF F ICE OF THE MAYOR et al

, Defendan ts. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action 04-0680 (HHK )

MEMORAN DUM OP INION In this civil rights ac tion filed pro se , plaintiff cha lleng es his remova l on April 11, 2001, from a grand jury

convene d in the Superior Court of the D istrict of Columbia. On April 5, 2007, the Court enter ed judg ment for the de fenda nts. The Court of Appe als for the District of Columbi a Circuit af

firmed in par

t, reve rsed in par

t, and re manded the c ase f or a de termination of whether defe ndants Suz anne B ailey -Jones and Daniel M. Z ache m are protec ted by qualified immunit y from plaintiff’ s due proc ess claim. See A therton v. District of Columbia Off ice of the Mayor , 567 F.3d 672, 677 ( D.C. Cir. 2009) (re versingdismiss al of due proce ss claims ag ainst those defe ndants on ground of a bsolute immuni ty). 1 Presently befor e the Court ar e the se parate motions of Suz anne B ailey-Jones [ Dkt. # 64] and Assistant United States Attorney (“AUSA”) D aniel Z ache m [ Dkt. # 66] t o dismiss under

In addition to Bailey -Jones and Z ache m, plaintiff had sued the District of Columbia 1 Offic e of the Mayor, the Superior Court Office of the Clerk, Super ior Court Clerk Duane Delane y , Direc tor of Specia l Operations Divisi on Roy Wy nn, and the Department of Justice Offic e of the Attorney

Gene ral. The dismiss al of c laims ag ainst those defe ndants was a ffirme d.Fe d. R. Civ. P . 12(b)( 6), on the g round of qua lified immunity , which plaintiff, by counsel, ha s opposed [Dkt. # 72]
. Upon consider ation of the pa rties’ submissions and the rele vant par ts of 2 the re cord, the Court will gra nt eac h defe ndant’s motion to dism iss. I. BACKG ROUND The c omplaint alleg ations as re cited by the D.C. Circuit are as follows. Atherton is a D.C. resident with degree s in elec trical and nuclea r eng ineer ing. Compl. ¶¶ 1, 68. On April 9, 2001, he was sworn in as a D.C. Superior Court grand juror for a term schedule d to last 25 day s. Id
. ¶¶ 1, 16. Howeve r, on April 11, 2001, Atherton wa s permane ntly remove d from the grand jury
. Id . ¶¶ 22- 24. At h er t o n an d t h e g rand jurors with whom he serve d we re gi v en j u ry instruction books identifying crimes and their elements. Atherton believed that some of the case s for which indictments wer e being soug ht included alleg ed crimes which wer e not in the instruction book. Id
. ¶ 18. Concerne d that g rand jurors had voted to i n d i ct without knowing the elements of the crimes, Atherton reque sted additio n al information from an AUSA on the elements of crimes that wer e not contained in the instruction book. Id
. ¶¶ 18-19. Some jurors “see med upset” beca use they had voted to indict without knowledg e of the elements “and a new vote would be neede d once the eleme nts of the cha

rg e wer e known.” Id . ¶ 20. Ather ton “fe lt a hostile attitude from a few members of the jury when there was continuing rebuttal to ever y comment [he] m ade c oncer ning de liberation on ele ments of cr imes.” Id . ¶ 66. Atherton also felt that his fellow gra nd jurors rea cted neg atively to his Hi s p anic ethnicity
. At one point during their deliberations, the g rand jury was considering a homicide case involving an alt erc ation betwee n black and Hispanic individuals. After a Hispanic witness had finished testifying, Atherton thanked the witness in Spanish. Atherton subsequent l y p er ceive d hostili ty from other g rand jurors based on this incident. Id
. ¶¶ 64-67. He is half M ex i can and “wa s the only semi-fluent [S] panish speakingg rand juror .” Id . ¶ 67. During the course of g rand jury deliberations on April 11, 2001, supervising AU S A Z ache m enter ed the jury room wher e the g rand jurors wer e deliber at i n g, confiscated Atherton' s notes, and direc ted Atherton to immediately repor t to Wy nn' s office
. Id
. ¶ 23-24. Atherton we nt to W y nn' s office as he had been instructed. Id
. Atherton was then direc ted to Ba iley -Jones, who “per manently dismiss ed” him. Id
. The Court appr ecia

tes the pro bono a ssistance of D avid T. Ralston, J r., and B enjamin 2 R. Dryden of F oley

& L ardne r L L P, appointed from the Court’s Civil Pro Bono Panel to repr esent plaintiff. 2¶ 24. Atherton “wa s never permitted the opportunity to defe nd himself,” id
. ¶ 28, and

Bailey -Jones did not provide rea sons for his dismiss al, other than that he wa s alleg edly “disruptive.” Id
. ¶ 24. Atherton asked for a written explan at i on and Ba iley -Jones assented to this reque st. Howeve r, written notice was never g iven. Id
. ¶¶ 28, 44. “Ather

ton left fee ling very humiliated, embar [r] assed and questioning his self wor th, and did not return to g rand jury duty .” Id . ¶ 27. Atherton , 567 F.3d at 678. II. DISCUSS ION 1. Qualified Immunity Qualified immunity

from suit ordinarily

attache s to gove rnment off icials perf orming discretionar

y functions unless the off

icial " ' knew or

rea sonably

should have known that the action he took within his sphere of off icial re sponsibili ty

would violate the constitutional rig hts of the [plaintiff], or if he took the ac tion with the malicious int ention to cause a depr ivation of constitutional rights or other injury . . . ." Harlow v. Fitzgerald , 457 U.S. 800, 813 (1982) (quoting W

ood v. Strickland, 420 U.S. 308, 322(1975)); accord Farmer v . Moritsugu , 163 F.3d 610, 613 (D.C. Cir. 1998). An off icial enjoy s protection fr om a lawsuit “whe re [his or her] conduct is objec tively

rea sonable in lig ht of exist ing la w.” Farmer , 163 F.3d at 613. On the other ha nd, an off icial is not shielded wher e he “ could be e x pecte d to know that cer tain conduct would violate statutory

or constitutional rig hts.” Id . The “ qualified immunity analy sis is identical” whether

brought ag ainst a state of ficial, such a s Ba iley -Jones, under 42 U.S.C. § 1983 or a f eder al offic ial, such as Z ache m, under Bivens v . Six Unknown Fe d. Narcotics Agents , 403 U.S. 388 (1971). W

ilson v. Layne , 526 US. 603, 609 (1999). To overc ome an immunity defe nse, a pla intiff must show “that the def endant violated ‘cle arly established statutory

or constitutional rig hts of which a r easona ble per son would have known.’ ” Harlow , 457 U.S. at 818. “The contours of the right must be sufficiently clea r that a
3rea sonable off icial would under stand that what he is doing violates that r ight.” Anderson v. Creighton , 483 U.S. 635, 640 (1987); accord Butera v. District of Columbia , 235 F.3d 637, 646 (D.C. Cir. 2001). Whether a n officia l has qualified immunity is resolved by

a two-step inquiry
. The thre shold question is whether, " [t ]aken in the light most favor able to the pa rty asser ting the injury , . . . the fa cts alleg ed show the of fice r' s conduct violated a

constitutional right[.] " Saucier v. Katz , 533 U.S. 194, 201 (2001) (c iting Siegert v. G illey , 500 U.S. 226, 232 (1991)). " I f no constitutional right would have been violate d wer e the a lleg ations established, there is no
nece ssity for f urther inquirie s conce rningqualified immunity ." Id . I f the plaintiff' s rig hts were violated, the cour

t must t hen asse ss whether , “in light of the spec ific conte x t of the ca se,” the rig ht in question was “cle arly established.” Id
. The for eg oing se quence “should not be re g arde d as an infle x ible require ment,” Pearson v. Callahan , 555 U.S. 223, 227 (2009), and it is not mandatory
. Id . at 236. Rather, “ courts . . . [are] permitted to exercise . . . discre tion in deciding which of the two pr ong s of the qualifie d immunit y analy sis should be addresse d first in light of the c ircumstance s in the particular case at hand.” Id . As the Court observe d in Pearson , “[t] here are case s in which it is plain that a constitutional right is not clea rly established but fa

r fr om obvious whether in fa ct there is such a rig ht.” Id . at 237. B eca

use this is such a ca se, the Court will addre ss the second pr ongof the qualified immunity

analy sis first. See B ame v . Dillard , 637 F.3d 380, 384 ( D.C. Cir. 2011) (dete rmining that “the princ iple of constitutional avoidance counsels that we turn direc tly to the second que stion” conce rningqualified immunity) (quoting Pearson ); Atherton , 567 F.3d at 690 (“the District Court retains the discr etion to decide ‘ which of the two prong s of the qualifie d immunit y analy sis should be addresse d first . . . .’ ”) (quoting Pearson ).

4Whether a statutory or constitutional rig ht was cle arly established at the time of the officia l's c onduct is "a

n ' essentially

leg al question.' " Crawf

ord-El v. Britton , 523 U.S. 574, 588 (1998) ( quoting Mitchell v. Forsy th , 472 U.S. 511, 526-29 (1985)) . I t is not enough simply to alleg e the violation of a

clea rly established but conc eptually broad r ight, suc h as the right to due proce ss, or the rig ht to equal protec tion under the law
. See A shcroft v. al-Kidd , — U.S. —, 131 S.Ct . 2074, 2084 (2011) ( “We have repe atedly told courts . . . not to define c lear ly established law at a high le vel of g ener ality .”) ( citations omitt ed). Rathe r, " the rig ht the officia l is alleg ed to have violate d must have bee n ' clea rly established' in a more pa rticularized, and he nce mor e rele vant, sense: The contours of the right must be sufficiently clea r that a r easona

ble offic ial would understand that what he is doingviolates that rig ht." Anderson , 483 U.S. at 640; see alKidd , — U.S. —, 131 S.C t. at 2083 (“We do not re quire a case direc tly

on point, but ex isting prec edent must have place d the statutory or constitutional question beyond debate .”). “Rea sonable knowle dg e of the law mea ns . . . knowledg e of pr esent c onstitut ional law [and] involves knowledg e only

of leg al rules that we re ‘ clea rly established’ at the time of the conduc t at issue.” Harris v. District of Col umbia , 932 F.2d 10, 13 ( D.C. Cir. 1991) (citation omitted). Thus, “[w]hen properly

applied, [qualified immunity ] protects ‘all but the plainly incompetent or those who knowing ly

violate the law.’ ” al-Kidd , 131 S.Ct . at 2085 (quoting Malley v . Briggs , 475 U.S. 335, 341 (1986)). 2. Analy sis The que stion is whether in April 2001, def endants B ailey -Jones and Z ache m should have
rea sonably

known that their a ctions were unconstitutional. P laintiff admits that he “is not awa re of dec isions specifically

addre ssing the pr ocedur al due pr ocess r ights of impane led g rand juror s . . . .” Pl.’s Mem. of P. & A . in Opp’n to Def s.’ Motions to Dism iss (“Pl.’s Mem.”) [Dkt. # 72] at 527. He surmises, howe ver, that none is available beca use “wrong fully

dismiss ed jurors la ck any incentive to vindicate their rig hts through litig ation.” Id . at 31, n.8. Neve rtheless, plaintiff c ites
case s addre ssing the r emoval of juror s duringtrial, seePl.’s Mem. at 27-30, but wisely ref rains from re lying on those case s beca use it is established that, unlike a petit jury , “the grand jury is an instit ution separate from the c ourts . . . [and] that, as a g ener al matter a t least, no [] ‘super

visory ’ judicial authority

exis ts . . . .” United States v. W illiams , 504 U.S. 36, 47 (1992); see United States v. Coachman , 752 F.2d 685, 690- 91 (D.C. Cir. 1985) (“ The trial of an indictment serve s a purpose diff

ere nt from that ac complished by a g rand jury

investigation . . . . A gr and jury investigating a

suspect and a

court try ing a n acc used [] eng ag e in sepa rate and dissimilar functions. Indeed, when fe lony is the char g e, a grand jury must complete its investigation and return a n indictment before the fa ctfindingproce ss of a trial e ver be g ins.”) (f ootnote omitted). Given these fundame ntal differ ence s, a trial judg e’s supe rvision over a petit jury at trial is incompara

ble to “[j] udg es’ dire ct involvement in the func tioning of the g rand jury [t hat] has g ener ally been c onfined to the c onstitut ive one of callingthe g rand juror s toge ther a nd administeringtheir oaths of of fice .” W illiams , 504 U.S. at 47; see id . at 50 (sug g esting“that any power fede ral c ourts may

have to f ashion . . . rules of grand jury proce dure is a ve ry

limit ed one, not remotely

compar able to the powe r they maintain over the ir own proc eeding s.”) ( citation omitted). Ba iley -Jones reasona

bly counter s that in the absenc e of “ pre- exis ting law prohibiting [her] actions, the unlawfulness of he r ac tions is notappar ent” to a “ rea sonable off icial.” Reply

to Pl.’s Opp’n and in F urther Support of D ef. Suzanne B ailey -Jones’ Mot. to Dism iss [ Dkt. # 77] at 2. See W ilson , 526 U.S. at 615-16 (holding“that it was not unre asonable for a police off

icer in April 1992 to have be lieved that bring ing me dia observe rs along duringthe execution of an a rre st 6war

rant (e ven in a home) was law ful” whe re “ in 1992 there w ere no judicial opinions holdi ng that this practice beca

me unlawf

ul when it enter ed a home .”); Bame , 637 F.3d at 386 (finding U.S. Marshal prote cted by qualified immunity

wher e “the law in 2002 did not clear ly establish that strip searc hing a ll male arr estee s prior to place ment in holding ce lls at the Superior Court violated the F ourth Amendment.” ). District of Columbia law g ener ally authorizes the re moval of a juror on the basis that his service “would be likely to disrupt the proce eding s[,] ” D.C. Code § 11-1908(b) (1), but it makes no distinction betwee n a member of a pe tit jury

and one of

a g rand jury
. The statute mandates that “[t] he proc edure s for c halleng es to and re view of e x clusions 3 from jury service shall be set for

th in the jury

sy stem plan.” D.C. Code § 11-1908( c). The Superior Court rule in e ffe ct at the time of pla intiff’s re moval stated that: A g rand jury

order ed by

the Superior Court shall ser ve until discharg ed by

the Chief J udg e or othe r judg e desig nated by the Chief Judge; but no g rand jury may serve more than 18 months unless the Chief Judge or desig nee e x tends the ser vice of the g rand jury

for a period of 6 months or less upon a deter mination that such extension i s in the public interest. At any time for causeshown, the Chief Judge or other judge designated by the Chief Judge m ay ex cuse a juror either tem porarily or permanently, and in the latter event the Chief

J udg e or de signe e may

impanel another person in plac e of the juror excused. D.C. Sup. Ct . R. Crim. P . 6(g ) (e mphasis added) . Howeve r, in his initi al opposition papers, plaintiff proff

ere d evidenc e showingthat no sy stem was in place to implement the rule. Notably , in an Aff idavit signe d on November 14, 2006, former

Superior Court Chief Judge Rufus G. King , I I I , who “ha d only

rec ently acc epted [that] pos ition” in April 2001, stated that “ther e we re no formal pr ocedur es in place in April 2001 for disciplining jur ors.” Af fidavit of Rufus G. King , I I I , Chief J udg e [Dkt. # 40-5] ¶ 4. J udg e Kingalso stated that he “ was ne ver c ontacted by anyone
Plaintiff had also cla imed that he wa s dismis sed base d on invidious di scrimination, 3 which is prohibited under the Constitut ion’s equal pr otection clause and D.C. Code § 11-1903, but the D.C. Circuit found that plaintiff had f ailed to state a

discrimination claim. See A therton , 567 F.3d at 687-89. 7from the Court’s jury office or the U.S. Attorney ’s offic e bef ore or at the time of the r emoval of g rand juror

Atherton,” but “[t] he pra ctice the n in place did not include c ontactingthe chief judge befor e a grand juror

was involuntarily

dismiss ed.” K ing A ff. ¶

4. J udg e Kingchang ed the proce dures “ [s] ince then . . . to r equire that [he] be consulted be fore imposit ion of any g rand jury discipline.” Id
. Plaintiff also proffe red B ailey -Jones’ job description of Juror Office r that pre sumably was controlling in 2001. Pl.’s Ex . 4 [Dkt. # 40-4] (Juror Office r (Revised 4- 14-97)) . The
overa rchingresponsibility

of the Juror Offic er w as to assure the “smooth opera tion of the Superior Court’s Jury

Sy stem.” Id . at 6 (pa g e number supplied). B eca

use the position was “hig hly visible and projec t[ ed] an imag e of the court, [the] [ i] ncumbent [was to] alway s exercise tact, g ood judgme nt and discre tion in making indepe ndent dec isions and interac ting with jurors [and] corr ectly

interpre t all leg islation and policies that g overn the J uror’ s office .” Id . at 5. Amongthe J uror Of

fice r’s va ried re sponsibili ties was to make “ quick dec isions concer ning the qualifying, de fer

ringor excusing of

jurors[.] ” Id
. Given (1) the abse nce of

any leg al pre cede nt at the re levant time establishingthe alleg ed due proc ess rig ht, (2) the a bsence in 2001 of any

formal pr ocedur es for

(and judicia l involvement in) removingg rand juror s in Superior Court, (3) the a ppare nt informal pra ctice of deleg ating g rand juror

remova l decisions to the J uror Of fice r, and ( 4) the Juror Offic er’ s job description implicitl y authorizing the pr actice , the Court finds that, even if a constitutional rig ht exi sts in servingon a g rand jury , defe ndants could not have rea sonably known that their re moval of plaintiff from the grand jury in April 2001 violated any "c lear ly established statutory

or constitutional rights of whic h a re asonable person would have known." Crawf ord-El , 523 U.S. at 588; see W

ilson , 526 U.S. at 617 (“G iven such a n undevelope d state of the la w, the off icer s in
8this case c annot have been ‘ expected to pre dict the future course of constitutional law.’ ” )

(quoting Procunier v . Navarette , 434 U.S. 555, 562 (1978)). III. CONCLUSION For the fore g oing r easons, the Court f inds that the moving de fenda nts are pr otected by qualified immunity

and, thus, will gr ant their re spective motions to dismi ss. A separ ate, f inal order acc ompanies this Memorandum Opinion.
________s/s____________ Henr y H. Kenne dy , J r. United States District J udg e Date: Septembe r 26, 2011

9