### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA ROBERT HAMPTON III, Plaintiff, 

### v. ) ) ) ) 

### ) Civil Case No. 10-1061 (RJL) ) 

### GOVERNMENT OFTHE DISTRICT ) 

### OF COLUMBIA, 

### etal., Defendants. ) ) )**~** 

### MEMORANDUM OPINION (February

## l!f., 2011) [#4] PlaintiffRobertHampton II ("plaintiff') brings this action againstthe District of Columbia ("the District" or "defendant"), as well as Metropolitan Police Officer Robert Elliot ("OfficerElliot"), l 

### for violations ofhis constitutional rights under 42 U.S.C. 

### §§ 1983, 1985 and the common law torts offalse arrest and false imprisonment. Currently before this Court is defendant's Motion to Dismiss. Upon consideration ofthe parties' pleadings, relevant law, and the entire record herein, defendant's motion is GRANTED. 

### BACKGROUND Forthe purpose ofthis motion, this Court accepts the allegations set forth in plaintiffs Complaint as true. In the early hours ofJune 4, 2007, plaintiffand three companions arrived at a gas station on M Street, S.E. in Washington, D.C. Compi.**~** 

### 4. While plaintiffwas inside the stationpurchasing a bottle ofwater, OfficerElliot

1

### As ofthe date ofthis opinion, OfficerElliot has not been served with the Complaint. Forthe reasons stated in this Memorandum Opinion, however, any claims against Officer Elliot are also dismissed. 1approached plaintiffs companions who were standing around the outside ofplaintiffs vehicle. Compl.,-r 5. As OfficerElliot approached, plaintiffs male companion began to walk away and, despite OfficerElliot's request that he stop andreturn to the vehicle, immediately left the scene. Compl.,-r 6. When plaintiffcame out ofthe station, he found OfficerElliot inside the vehicle searching the glove compartment. Compl.,-r 7. Plaintiff alleges that OfficerElliot had neitherprobable cause norpermissionto search the vehicle. Compl. ,-r 8. Nevertheless, OfficerElliot found a pistol in the glove compartment and arrested plaintifffor carrying a pistol without a license. Compl.,-r 9. Plaintiffwas held without bond and incarcerated from June 4,2007 until October 19,2007, at which time the charges were dismissed. Compl.,-r 11. Plaintiffnow claims restrictions on his freedom, cruel and unusual punishment, violations ofhis due process rights and violations ofequal protection, underthe Fourth, Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution. Compl.,-r 12. Plaintiffalso brings claims alleging the common law torts offalse arrest and false imprisonment. Compl.,-r,-r 14-22. Defendant, however, seeks to dismiss these claims under Fed. R. Civ. P. 12(b)(6), arguing that plaintiffhas failed to put forth facts that support any cognizable claim upon which reliefcanbe granted. I agree. ANALYSIS To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts, which ifaccepted as true, "state a claim to reliefthat is plausible on its face." BellAt!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a court must assume all factual allegations to be true and draw all reasonable inferences in the plaintiffs favor, 2the Court "neednot accept inferences drawn by plaintiffl] ifsuch inferences are unsupported by the facts set out in the complaint. Nor mustthe court accept legal conclusions cast in the form offactual allegations." 

### Kowal v. 

### MCI Commc'ns Corp., 16 F.3d 1271,1276 (D.C. Cir. 1994). Indeed, "when allegations in a complaint, however, true, could notraise a claim ofentitlementto relief, this basic deficiency should be exposed atthe point ofminimum expenditure oftime and money bytheparties and the court." 

### Twombly, 550 U.S. at 558 (internal quotes and citations omitted). As an initial matter, several claims made in the complaint are conceded. First, in his opposition to defendant's motion to dismiss, plaintiffconcedes that both common law tort claims, false arrest and false imprisonment, are precludedby the one-year statute of limitation. PI.'s Opp'n to Def.'s Mot. Dismiss ("PI. Opp'n") at 6. Second, it is the law in

our Circuitthat "when a plaintifffiles an oppositionto a dispositive motion and addresses only certain arguments raised by the defendant, the court may treat those arguments that theplaintifffailed to address as conceded." 

### Buggs v. 

### Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) 

### (citing Fed. DepositIns. Co. v. 

### Bender, 127 F.3d 58, 67-68 (D.C. Cir. 

### 1997)); see also L.Cv.R. 7(b). Becauseplaintiffmade no attemptto address defendant's arguments with respect to plaintiffs claims under42 U.S.C. 

### § 1985, the Eighth and Fourteenth Amendments andthe Equal Protection clause, this Courtwill treat those claims as conceded. 

### See L.Cv.R. 7(b).2 The remaining claims allege constitutional

2The decision to treat a claim as conceded, however, is highly discretionary. Here, the Courtis persuaded to dismiss these claims as it is apparent thatplaintiffalso fails onthe merits. Plaintiff, who only alleges wrongdoingby a single person - OfficerElliot

- has not alleged a conspiracy as required under 42 U.S.C. § 1985. 

### See generally 42 U.S.C. § 3violations ofplaintiffsFourth and Fifth Amendmentrights under42 U.S.C. 

### § 1983. These claims, however, must also be dismissed. How so? Under42 U.S.C. § 1983, a municipality, such as the District, is only liable for the acts ofits employees ifa plaintiffcan show that: (1) he was deprived ofa constitutional right; and (2) such deprivation was the result ofa governmentpolicy or custom. 

### Warren

v. 

### District o/Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004). This standard rejects a theory of

### respondeatsuperior with respect to municipalities and precludes them from being sued "under § 1983 for an injury inflicted solely by its employees or agents." 

### Monnell v. 

### Dep 't o/Soc. Servs., 436 U.S. 658, 694 (1978); 

### see also Oklahoma City v. 

### Tuttle, 471 U.S. 808, 816 (1985). Simply put, the municipality, itself, must be at fault. Thus, a complaintthat fails to allege a municipal policy or custom thatresulted in the constitutional violation fails to allege a necessary element ofa § 1983 claim. 

### See Dant v. 

### District o/Columbia, 829 F.2d 69, 77 (D.C. Cir. 1987). 

### In addition, a plaintiffalleging a violation ofa constitutionally protected interest under 

### § 1983 must demonstrate that the violation was the proximate cause ofthe plaintiffs injury. 

### Carey v. 

### Piphus, 435 U.S. 247, 258-59 (1978). Specifically, because

1985. 

### In addition, neitherthe Eighth norFourteenth Amendments even apply toplaintiff. 

### See Estate o/Gaitherv. 

### Districto/Columbia, 655 F. Supp. 2d 69, 85-86 (D.D.C. 2009) (explaining that the Eighth Amendment only applies to convicted persons, notpretrial detainees); 

### Powers-Bunce v. 

### Districto/Columbia, 659 F. Supp. 2d 173, 179 (D.D.C. 2009) (explaining that suits againstthe District ofColumbia mustbebrought under the Fifth and not the Fourteenth Amendment). Finally, plaintiffdid not make any allegations regarding any disparate treatment that could amount to a challenge under the Equal Protection Clause. 

### See Vill. O/Willowbrookv. 

### Olech, 528 U.S. 562, 564 (2000). This Court, therefore, does not hesitate in enforcing the local rules and treating each ofthese claims as conceded. 4the interest protected by the FourthAmendment is a person'sprivacy interest, a plaintiff must show legal causation between the invasion ofprivacy and the actual injury suffered. 

### Townes v. 

### New York, 176 F.3d 138, 148 (2d Cir. 1999). There is no legally cognizable causal relationship, however, between an officer's search ofa plaintiffsbelongings and the arrest and detainment that may result from the fruits ofthat search. Id. at 148-49 (noting that "the fruit ofthe poisonous tree doctrine is not available to assist a § 1983 claimant"); 

### see also Elkins v. 

### District o/Columbia, 610 F. Supp. 2d 53, 60 (D.D.C. 2009) (finding that "avictim ofan unreasonable search may recover damages directly related to the invasion ofprivacy, but not for injuries resulting from the discovery ofincriminating evidence and consequentprosecution"). Finally, the Fifth Amendmentprotects against the deprivation oflife, liberty or property without due process oflaw. U.S. CONST. amend. V. To this end, the Fifth Amendmentprotects pretrial detainees from conditions ofconfinementthat would otherwise violate the EighthAmendment. 

### See Powers-Bunce v. 

### District

## 0/ Columbia, 659 F. Supp. 2d 173, 179 (D.D.C. 2009). Thus, for a pretrial detainee to have a valid 

### § 1983 claim, he must show a "wanton and unnecessary infliction ofpain" or conditions that are "grossly disproportionate" to the reason for detention. 

### See Rhodes v. 

### Chapman, 452 U.S. 337,347 (1981). Here, plaintifffails to allege any facts regarding policies or customs, which would sustain a claim against the District. 

### See Monnell, 436 U.S. at 694. 3 Nor does plaintiff

3 Plaintiffs Opposition mentions the existence ofan unnamed Washington Post article from 2005 indicating that OfficerElliot was involved in an illegal search and seizure on 

### 5

### assert any facts that would amount to a constitutional violation. Even assuming that OfficerElliothad no probable cause to search plaintiffs glove compartment, the illegal search alone would not cause his arrest and detention to be similarly illegal. 

### See Townes, 176 F.3d at 148. Plaintiffalso attempts to argue that the arrest itselfwas not based on probable

cause and, therefore, also violated his Fourth Amendmentrights. Plaintiffdevelops this argument in his Opposition and asks the Court to grant "leave to amend the Complaintto allege [that plaintiffs] arrest was illegal and lacked probable cause." PI. Opp'n at 6. Such an amendment, however, would be futile. Probable cause requires "facts and circumstances within the officer's knowledge that are sufficientto warrant a prudent person ... in believing

... that the suspect has committed, is committing, or is about to commit an offense." 

### UnitedStates 

### v. Dawkins, 17 F.3d 399, 403 (D.C. Cir. 1994). Further, it is well established thatprobable cause may be based on constructive possession. 

### See UnitedStates v. 

### Holly, 219 F. Supp. 2d 117, 123-24 (D.D.C. 2002). Plaintiffadmits that OfficerElliot discovered a pistol in the glove compartment ofa vehicle that was registered to the plaintiff. Compl.**~** 

### 9. These facts are sufficient to show

at least one prior occasion. PI. Opp'n at 5. Plaintiffconcludes thatbased on these two incidents involving the same officer, "it appears that there is a failure to properly train and instruct the police officers in the law ofsearch and seizure." PI. Opp'n at 5. This argument is to no avail. Indeed, the Supreme Courthas stated that "it may happen that in light ofthe duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers ofthe city canreasonably be said to have been deliberately indifferent to the need." 

### City a/Canton v. 

### Harris, 489 U.S. 378, 390 (1989) (footnote omitted). Nonetheless, plaintiffalleges no facts to support a finding of deliberate indifference on the part ofthe District. This argument, therefore, must fail. 6

### probable cause. See Blackmon 

### v. UnitedStates, 

### 835 A.2d 1070, 1075 (D.C. 2003) (finding sufficientprobable cause to arrest the driver (and presumptive owner) ofa vehicle for constructive possession ofcocaine found in the vehicle). This Court need not acceptplaintiffs conclusion that his arrest violated any constitutionally protected interest when that conclusion is so flatly contradicted by the facts. The Court, therefore, denies plaintiffsrequest for leave to amend. See James Madison Ltd. byHecht 

### v. Ludwig, 82 

### F.3d 1085, 1099 (D.C. Cir. 1996). Finally, plaintifffails to raise any facts relating to the conditions ofhis confinement that would have amount to a violation ofhis Fifth Amendmentrights. See Powers-Bunce, 

### 659 F. Supp. 2d at 179. In addition, having found that plaintiffs arrest was, indeed, lawful, this Court finds that plaintifffails to raise any other cognizable claim under the Fifth Amendment.4 CONCLUSION 

### For all ofthe foregoing reasons, the Court GRANTS defendant's Motion to Dismiss [#4]. An Order consistent with this decision accompanies this Memorandum Opinion. 

# ,

RICHARDJ. United States DistrictJudge

4 

### In his Opposition, plaintiffraises for the first time the fact that he was on probation at the time ofhis arrest. PI. Opp'n at 4. As this Court finds thatplaintiffs arrest was lawful, it is difficult to see how this fact bares any relevance to any ofhis claims. 7