UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) ANG ELA MCALISTE R, ) ) P laintif f, )

) v. ) Civil Action No. 10-1612 (RMC) ) JOHN E. POTTER, For m er P ostm aster Ge neral, United States P ostal Service , et al., ) ) ) ) Defendan ts. ) ) MEMORAN DUM OP INION Ang ela Mc Alister was a

rre sted in November

2005 for a lleg edly

assaultingher supervisor at the United States Postal Service. Ms. McAlister a lleg es that two Postal Service Inspectors use d excessive forc e whe n they “droppe d” her

sever al times and dra g g ed her up a set of stairs while a ssisti ngDistrict of Columbia Metropolitan Police Depa rtment Off

icer s with her
arr est. Ms. McAlister states that she was injured a nd embar rasse d by the ar rest and se eks one milli on dollars in damag es ag ainst the unnamed Postal Service Inspectors a nd ag ainst J ohn E. Potter, the forme r Postmaster Gene ral of the United States Postal Service. Plaintiff filed a simil ar c omplaint in 2008 which was dismissed by this Court on August 23, 2010. The Court will likewise dismis s this C omplaint. I. F ACTS

The fa cts are set forth in greater de tail in this Court’s August 23, 2010 memorandum opinion. See M cAlister v. Potter , 570 F. Supp. 2d 24 (D.D .C. 2008) (“ McAlister I” ). On Septembe r 1, 2005, Ms. McAlister g ot into a fig ht with her super visor, RobertFa

untleroy over a leave slip. Accordingto the Def endants, “ Ms. McAlister . . . pushed Mr. Fa untleroy in his upper-body

and proc eede d to hit him multipl e times in the shoulder with enough forc e [to] knock[] him backwa rd. Ms. McAlister c ontinued pushing a nd hitting Mr. Fa untleroy and swungat him in a slappingmotion . . . .” McAlister I at 138. As a r esult, Ms. McAlister wa s eventua lly terminated f

rom her job a

nd criminal cha

rg es we re f

iled ag ainst her. In November

2005, two Postal S ervic e I nspectors sought to have Ms. McAlister
arr ested. Ac cordingto her Complaint, the inspectors followe d her home from her thera pist’s office and “c ut her off

in traff ic and ne arly

cause d an ac cident.” Compl. ¶ 6. Af ter they arrived, the inspectors a lleg edly

“scr eame d through her f

ront door, broke her storm door, a nd started pounding on he r woode n door.” Id. Eventually , Ms. McAlister agree d to drive to a District of Columbi a Metropolitan Police Department (“ MPD”) station wher e she w as ar rested. Ms. McAlister suff

ers f rom deg ener ative hip diseaseand ca nnot walk without a ca

ne. While she was beingarr ested a

nd taken into the MPD Station, Ms. McAlist er f ell three times, injuring her leg s and hips. “Af

ter she f ell a third time, the Postal Service inspec tors drag g ed her up a set of sta irs on her ba ckside into the station and plac ed her in a cha ir.” Id. She was late r take n to a hospital and tre ated f

or trauma to her lowe r body
. Ms. McAlister cla ims that Defenda nts’ conduct violated he r F ourth Amendment right ag ainst unrea sonable sea rche s and seizures and that it also viol ated he r civil rights under 42 U.S.C. § 1983. Defenda

nts respond that the Complaint should be dismis sed bec ause it is barr ed by both collatera l estoppel and res judicata ; Plainti ff ha s failed to identify a valid wa iver of
sovere ign immunity ; Plainti ff ha s failed to state a claim for r elief; a

nd Plaintiff failed to ser

ve the Def endants prope rly
. -2-II. LEGAL STANDARD A. Insuf fi cient Ser vice of P roce ss Pursuant to Fede ral Rule of Civil Procedure12(b)( 5), “[i] f the plaintiff doe s not proper ly eff ect se rvice on a def

endant, then the defe ndant may move to dismiss the complaint . . . Upon such a motion, the plaintiff car

ries the bur den of e stablishing that he ha s proper ly eff ecte d service .” Hilska v. J ones , 217 F.R.D. 16, 20 (D .D.C. 2003). Personal se rvice of proc ess (or w aiver

of ser vice) is a prer equisite to the Court’s exercise of persona l jurisdiction
over a defe ndant. Murphy Bros. Inc . v. Mic hetti Pipe Stringing Inc. , 526 U.S. 344, 350 (1999). The re quirement is meant to ensur e that def endants re ceive adequa

te notice of

proce eding s ag ainst them. See D usenbery v. United States , 534 U.S. 161, 167 (2002). F ailure of service is a jurisdictional defe ct which is fatal. Cambridge Holdings Group v. Fed. I ns. Co. , 489 F.3d 1356, 1361 (D.C. Cir. 2007) (notingthat “unless the pr ocedur al re quirements of e ffe ctive ser vice of proce ss have be en satisfied, the court lac ks persona l jurisdiction to act with respec t to that defe ndant at all.”) (citing Omni Capital Int’l v. Rudolf W olff &Co., Ltd. , 484 U.S. 97, 104 (1987)) . Acc ording ly , courts routinely dismiss actions whe n service is improper. See, e .g. , Light v. W olf , 816 F.2d 746, 750 ( D.C. Cir. 1987). B. Failure t o State a Claim A motion to dis miss for failure to state a c laim challeng es the a dequac y of a complaint on its face . Fe d. R. Civ. P . 12(b)( 6). A c omplaint mustbe suff icient “to g ive a defe ndant fa ir notice of what the . . . cla im is and the g rounds upon which it re sts.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (inter nal citations omitted). Although a complaint does not nee d detailed f

actua l alleg ations, a plaintiff’s oblig ation to provide the grounds of his

-3-entitlement to relief “ require s more than labe ls and conc lusions, and a formulaic rec itation of the

elements of a

cause of ac tion will notdo.” Id. To survive a motion to di smiss, a complaint must contain suff

icient fa ctual matter , acc epted a s true, to state a claim for r elief that is “plausible on its face .” Twombly , 550 U.S. at 570.

A cour t must t reat the complaint’s fa ctual alleg ations as true “ even if doubtful in fac t.” Twombly , 550 U.S. at 555. But a court ne ed not ac cept a s true leg al conc lusions set forth in a complaint. Ashcroft v. Iqbal , 129 S. Ct . 1937, 1949 (2009). I n decidinga motion under Rule 12(b)(6) , a cour

t may consider the fac ts alleg ed in the complaint, docume nts attache d to the complaint as exhibit s or incorpor ated by ref ere nce, a nd matters about whic h the cour t may take judicial notice. Abhe &Svoboda, Inc . v. Chao , 508 F.3d 1052, 1059 ( D.C. Cir. 2007). III. ANALYSIS A. 42 U.S.C. § 1983 Def endants a rgue that Ms. McAlister’ s Section 1983 claim is barre d by res judicata and collate ral e stoppel. Ms. McAlister re sponds that neither res judicata nor collate ral estoppel ca

n bar he r cla im because it was previously dismiss ed without prejudice . Def endants counter that even if

the claim is not barr ed, Ms. McAlister ha s failed to state a claim upon which relief can be g rante d. Ms. McAlister is corr ect that the c laim is not barred; howe ver, the Court will dism iss her cla ims because — just as in her pre vious complaint — she prese nts no facts from which the Court could g rant re lief.

Under the doctrine of res judicata , also known as c laim prec lusion, “a judg ment on the merits in a prior suit bar s a sec ond suit invol ving ide ntical par ties or their privies ba sed on the same c ause of

action.” Parklane Hosie ry Co. v. Shore , 439 U.S. 322, 327 n.5 (1979); Apotex
-4-Inc. v . FDA , 393 F.3d 210, 217 ( D.C. Cir. 2004). “Res judicata play s a ce ntral role in a dvancing

the ‘purpose for whic h civil courts have been e stablished, the conc lusive resolution of disputes within their jurisdictions.’” Id. (quoting Montana v. United States , 440 U.S. 147, 153 (1979)). “To pre clude pa

rties from c ontesting ma

tters that they

have ha d a full and f

air opportunity

to litigate pr otects their a dversa ries fr om the expense and ve x ation attendingmultipl e lawsuits,
conser ves judicial re source s, and foster s relianc e on judicial ac tion by minimi zing the possibility of inconsistent dec isions.” Montana , 440 U.S. at 153-54. The f our re quisites to find res judicata
are : (1) an ide ntity

of par ties; (2) a judgment from a c ourt of compe tent jurisdiction; (3) a fina l judgme nt on the merits; and (4) a n identity of the c ause of

action. See A m. Forest Res. Council v. Shea , 172 F. Supp. 2d 24, 29 (D.D .C. 2001).

Under the doctrine of collate ral e stoppel, or issue pre clusion, an issue of f act or law that wa s actua lly

litigated a

nd nece ssarily

decide d is conclusive in a subseque nt action betwee n the same pa

rties or their privies. Allen v. Mc Curry , 449 U.S. 90, 94 (1980); Y amaha Corp. v. United States , 961 F.2d 245, 254 ( D.C. Cir. 1992). Collateral estoppe l cannot apply ag ainst a par

ty unless the par

ty had “a ‘full and f

air opportunity ’ to litigate [t he] issue in the
earlier ca se.” Allen , 449, U.S. at 95 (quoting Montana , 440 U.S. at 153). L ike res judicata , collater al estoppel re lieves par ties of the cost a

nd vexation of mult iple lawsuits, conserve s judicial resour ces, pr events inconsistent dec isions, and encour ag es re liance on a djudication. Montana , 440 U.S. at 153-54.

This Court dism issed Ms. McAlister’s prior Section 1983 claim bec ause she failed to alleg e any

fac ts that would “allow the Court to draw any infere nce that the Postal Inspectors
wer e ac ting unde r color of D.C. law.” McAlister I at 146. This Court specifica lly dismiss ed the
-5-claim without prejudice to allow Ms. McAlister to prese nt additional fac ts that would support her

claim. B eca

use the c laim was dismissed without prejudice, ther e wa s no “final judgment on the merits,” and res judicata does not apply
. Am. Forest Re s. Council v. Shea , 172 F. Supp. 2d 24, 29. Simi larly , Ms. McAlister’s Sec tion 1983 claim was not litigate d in McAlister I and wa s not
nece ssary to this C ourt’s judg ment in McAlister I . Thus, collater al estoppel is no bar
. See Allen , 449 U.S. at 94.

Ms. McAlister’s Sec tion 1983 claim must st ill be dismi ssed, howeve r, bec ause, just as in her first complaint, she “ has simply not pleaded suf

ficient fa ctual conte nt to allow the Court to draw a

ny infere nce tha

t the Postal Inspectors w ereactingunder c olor of D.C. law.” McAlister I at 146. Withoutofficia ls acting“under color of” state law, the re is no Section 1983 violation. 42 U.S.C . § 1983. This is as true today as it was more than 15 months ag o when this Court issued its decision in McAlister I . The lawis the same; Ms. McAlister’s c laim is the same; the re sult is t he same
.

B. Claim A gainst John Doe P ostal Service Insp ect or(s) Ms. McAlister cla ims that the two Post al Service Inspectors who assisted in her
arr est used “e x cessive f

orce .” Compl. ¶ 13. Specifica lly , Ms. McAlister cla ims that the inspectors “ dropped he r on the sidewa lk three times, and dr ag g ed her up a flight of stairs ca

using injuries to her leg s and hips.” Id . Although Ms. Mc Alister fa ils to m ention Bivens v . Six Unknown Named Age nts , 403 U.S. 388 (1971) in either her Complaint or opposition to Def endants’ motion to dismiss , the Court liberally construes he r Complaint and finds that she may have a Bivens action ag ainst the two unidentified inspec tors. Her claim still m ust be dismiss ed, howe ver, be cause she fa iled to serve the inspectors.
-6-Bivens held that a plaintiff might ge t money damag es fr om a fe dera l ag ent who violates the plaintiff’s F ourth Amendment rights. Bivens , 403 U.S. at 395-396. The F ourth Amendment prote cts individuals “ag ainst unrea sonable sea rche s and seizures . . . .” U .S. C O N S T . amend. IV. An off

icial who uses e x cessive f orce duringan ar

rest violates the F ourth Amendment’s pr ohibition aga inst unreasona ble seizures. See, e .g., Graham v. Connor , 490 U.S. 386, 396 (1989). In deter mining whe ther the f

orce used duringan ar

rest is unrea sonable, the Court weighs “the nature a nd quality of the intrusion on the individual' s Fourth Ame ndment interests ag ainst the counter vailing g overnme ntal interests at stake .” Id. (interna l quotations and citations omitt ed). “Not ever y push or shove, e ven if it may later se em unnec essar

y in the peac e of a judg e' s chambe rs, violates a prisoner' s constitutional rights.” Johnson v. G lick, 481 F.2d 1028, 1033 (2d Cir.1973). Whether the forc e used is re asonable depends on “ the fa cts and circ umstances of

[t he] particular

case , including the severity of the c rime at issue, whe ther the suspect pose[d] an imm ediate thr eat to the sa fety of the off icer s or others, a

nd whether

[s] he [wa]s actively

resistingarr est or attemptingto evadearr est by flig ht.” Graham , 490 U.S. at 396. “The calc ulus of rea sonablene ss must embody allowanc e for

the fa ct that police of

fice rs ar e ofte n forc ed to make split-sec ond judgme nts — in circumstance s that are tense, unc erta in, and ra pidly evolving— about the amount of f orce that is nece ssary

in a par ticular situation.” Id. at 396–97. “Thus, for

[pl aintiff’s] claim to preva il, ‘the excessiveness of the forc e [must be] so appar ent that
no rea sonable off

icer could have believed in the la wfulness of his a ctions.’” Oberwetter v

. Hilliard , 639 F.3d 545, 555 ( D.C. Cir. 2011) (quoting W ardlaw v. Picke tt , 1 F.3d 1297, 1303 (D.C. Cir.1993)).

At this point , the Court has insufficie nt fac ts to determine if the f orce used in
-7-eff

ectuating the a

rre st was excessive. De fenda nts argue that Ms. McAlister ha s filed “the e x act
same c laim[ ] supported by the exact same f

acts a s her [prior complaint]” and ther efor e this claim should be dismissed as it was in McAlister I . This is not qui te ac curate. This Court dismi ssed Ms. McAlister’s prior

claim of e x cessive f

orce beca use “[t] he only

possible alleg ation of for ce is that the Postal Inspectors ‘ dropped’ Ms. McAlister — which c an be r ead a s inconsistent with the application of f

orce in that the act of

droppingcould be a

passive or ina dverte nt act.” McAlister I at 148. This Court dismi ssed the cla im without prejudice bec ause she had not “plea ded suff icient fac tual content for

the Court to conclude that this claim ha[d] fac ial plausibilit y .” Id. In her prese nt Compl aint, howeve r, Ms. McAlister ha s pleade d additional fac ts. Specifically , she alleg es that the inspec tors dropped he r three times and that they “dra g g ed her

up a flight of stairs causinginjuries to her leg s and hips.” Compl. ¶ 13. The a dditional alleg ations may state a c laim of excessive for ce; the Court c annot conc lude on the fa ce of the Complaint whether the f orce was
rea sonable. This claim must neverthele ss be dismissed beca use Ms. McAlister f

ailed to serve either of the inspectors. See Fe d. R. Civ. P . 12(b)( 5). Ms. McAlister did not serve them within the initial 120 day s require d by Rule 4(m), nor did she se rve the m after the Court g rante d an additional 30 day s in which to eff ect se rvice . In fac t, there is nothingin the rec ord that sug g ests Ms. McAlister has e ven attempted se rvice on either of the inspectors. “ [U] nless the proc edura l require ments of ef

fec tive service of proc ess have been satisfied, the cour t lacks per sonal jurisdiction to act with respec t to that defenda nt at all.” Cambridge Holdings Group v. Fed. I ns. Co. , 489 F.3d 1356, 1361 ( D.C. Cir. 2007). There fore , the Court will dism iss Ms. McAlister’s claim ag ainst the Postal Service Inspectors w ithout prejudice.
-8-C. ClaimAgainst P ostm asterGe neral It is not clear f

rom the Complaint if Ms. McAlister is suing Mr. Potter, the F ormer Postm aster G ener al, in his official c apac ity or per sonal ca

pacity . In either c ase, the claim must be dismissed; however , the ana ly sis is di ffe rent.

I f the Postmaster Ge nera l is being sue d in his official ca pacity , Ms. McAlister

1 needs to identify

a wa iver of sove reign immunit y in order to r ecove r money damag es. See, e .g., Clark v. Library of Congress , 750 F.2d 89, 103 ( collectingcase s). Ms. McAlister ha s failed to do so. Admittedly , the Fe dera l Tort Claims Act (“F TCA”), 28 U .S.C. § 1346(b), provides a limit ed wa iver of sove reign immunit y for money

damag es, but any

claim under

the FT CA would fail for at least two re asons. Fir st, Ms. McAlister fails to “asse rt that [she] has exhausted
nece ssary administrative re medies under the FT CA, which is a mandatory prer equisite . . . .” Epps v. United States Attorney Gen. , 575 F. Supp. 2d 232, 238 (D.D .C. 2008) (citing GAF Corp. v. United States , 818 F.2d 901 904- 05 (D.C. Cir. 1987)). Sec ond, the FT CA does not provide a
reme dy for Constitutional viol ations. See id.; Benoit v. United States De pt. of Agriculture , 608 F.3d 17, 20- 21 (D.C. Cir. 2010) (“suits for da mag es ag ainst the United States under . . . the Constitution are ba

rre d by sovere ign immunity

and . . . suits for dama g es ag ainst the United States under the c ommon law must be brought pursuant to the limited waiver of sovere ign immunit y in the FTCA . . . .” ).

I f the Postmaster Ge nera l is being sue d in his official ca pacity , the prope r def

endant is 1 Patrick H. Dona

hoe, who be came the Postmaster Gene ral on De cembe r 3, 2010. See Fe d. R. Civ. P. 25(d) (whe n a public off icer is replac ed, “[t]he officer ’s succ essor is automatica lly substitut ed as a pa rty .”). Reg ardle ss of who holds the position, Ms. McAlist er’ s claim ag ainst the Postm aster G ener al fa ils for the re asons stated he rein. -9-I f Ms. McAlister is suingMr. Potter individually , then she may have a Bivens claim. Such a c laim fails, howeve r, bec ause Ms. McA lister has not alleg ed that Mr. Potter persona lly

acte d in any way , let alone in a w ay that violated her

constitutional rights. See, e .g., Simpkins v. District of Columbia Governme nt , 108 F.3d 366, 369 ( D.C. Cir. 1997) (to state a Bivens claim “[t] he complaint must at least alleg e that the de fenda nt fede ral off

icial was persona lly

involved in the illega l conduct.”) ; Kurtz v. United States , 798 F.Supp.2d 285, 292-293 (D.D.C. 2011). D ismiss al is also be prope r bec ause Ms. McA lister failed to ser ve Mr. Potter persona lly
. See Fe d. R. Civ. P . 12(b)( 5). The Court will dismiss t his claim with prejudice beca use Ms. McAlister f

ailed to state a

claim ag ainst Mr. Potter. See Fe d. R. Civ. P . 12(b)( 6); Simpkins , 108 F.3d at 369-70. IV. CONCLUSION

Ms. McAlister fa ils to st ate a claim under

Section 1983 ag ainst any of the Def endants be cause they

wer e not ac ting unde r color of state law. Ms. McA lister fails to state a claim ag ainst the Postmaster Gene ral in his officia l capa city beca use she ha s not identified a waiver of sover eign immunit y , and she f ails to state a cla im ag ainst him in hi s persona l capa city beca use she doe s not alleg e that he pe rsonally acte d in any

way . Any

claims Ms. McAlister may make a g ainst the unnamed Postal Service Inspectors must be dismissed bec ause she failed to
serve them. The Court will g rant De fenda nts’ Motion to Dism iss [ Dkt. # 8]. A memorializ ing Orde r ac companies this Opinion.

Date: F ebrua

ry 21, 2012 /s/ ROSEMARY M. COL LYER United States District J udg e -10-